JCW

[Striking Out – Res Judicata] Justin was counsel for the 1st Defendant. The 1st Defendant filed a striking out application due to a similar Suit 567 taken commenced by the 1st Defendant (as the plaintiff there) against another party and the Plaintiff (as the 2nd defendant there). The Court held amongst others as follows : - It is trite law that a claim should not be struck out save in exceptional circumstances where, for instance, it was without any sustainable basis or had no prospect at all of success. The strength or weakness of the claim was not a relevant factor. - In Suit 567 it was alleged that the first defendant had purportedly acted ultra vires. It was noteworthy that the present suit and Suit 567 clearly involved the same set of facts. It is indisputable that the aforesaid allegation was considered and disposed of by the court in Suit 567. It was evident from the learned judge’s grounds of judgment that all relevant issues and the disputes between the parties were litigated and adjudicated in Suit 567. Thus, as the issue of ultra vires had already been fully litigated and disposed of in Suit 567, the plaintiff was now estopped from re-litigating the same issues or any other issues which were covered in Suit 567. - Although there may be several issues that may be considered different and the plaintiff had in the present case prayed for a different reliefs/orders, it was trite law that the principle of res judicata has, on the law as it stood, wide application and implications that would operate in the present scenario in the wider sense. Both suits shared the same set of facts, subject[2020] 8 MLJ 305 at 306matter and the same primary questions of law that have been litigated and adjudicated by the High Court whose decision had been affirmed by the Court of Appeal. Hence, the plaintiff would be barred from regurgitating and relitigating the issues that were essentially the same (see para 31).

[Project abandoned and converted from medium cost to high end Project] Justin was counsel for the Appellant. The Appeal was partially allowed and the Court of Appeal reversed the relief of Specific Performance given by the High Court. Although the Court of Appeal upheld the High Court's decision that the SPA is genuine and not a sham, the court could not order specific performance as the 18 properties are no longer in existence i. e in the form it was purchased. The Court referred to the Appellant’s written submission which stated: “It is impossible and absurd - D1 has developed the units in a DIFFERENT PROJECT which bears no resemblance to the 18 units. In fact, the P wants an unjust enrichment";

[Judicial Review – initial sum paid to the Stakeholder to make offer to purchase and LAD] Justin was counsel for the Applicant for Judicial Review, Southville City Sdn Bhd. In this case, the first respondent appointed Messrs Khairin Nisa & Co as a stakeholder to represent him to make an irrevocable offer (“IO”) to the applicant to purchase a unit in a housing project (“the project”) to be developed by the applicant. The first respondent then placed a sum of RM3,000.00 (“the stakeholder sum”) with the stakeholder with instruction to release the same to the Applicant once there is acceptance by the applicant of the first respondent’s offer to purchase. The first respondent subsequently entered into a sale and purchase agreement (“the SPA”) with the applicant on 27/3/201 and vacant possession was delivered by the applicant on 29/3/2018. The first respondent thereafter filed a claim against the applicant for liquidated damages for late delivery of vacant possession. The Court in allowing the Applicant’s judicial review application inter-alia :- (i)Based on clause 1.2 of the IO, the first respondent was aware that the applicant was under no obligation to collect any payment before the property was opened for sale and pursuant to clause 3 of the IO the stakeholder was instructed to release the monies to the applicant upon the applicant’s confirmation that project was open for sale and acceptance of the first respondent’s offer to purchase and towards settlement of the first 10% of the purchase price. On the facts the stakeholder sum was only released to the applicant on 27/3/2014 after the SPA was signed by both parties. Thus, the stakeholder sum cannot be constituted as “booking fee” and/or “deposit” towards the sale and purchase of the project. Even if the court were to accept that the stakeholder sum is a booking fee or a deposit, the sum was received by the applicant on 27/3/2014 and not 28/9/2013. (ii)There was no agreement or SPA between the applicant and the first respondent on 28/9/2013. For the applicant to accept payment before the contract of sale would contradict reg 11(2) of the Housing Development (Control and Licensing) Regulations 1989 which prohibits any parties from collecting any payment as stakeholder. There is no evidence to show that Messrs. Khairin Nisa & Co had acted as the agent or panel lawyer for the applicant to collect the stakeholder sum. (iii)Clause 25 and 27 of the SPA specifically mentions that delivery of vacant possession shall be within 48 calendar months from the date of the SPA, whereas clause 27 states that the completion of common facilities shall be completed within 48 calendar months from the date of the SPA. The SPA does not provide that the delivery of vacant possession and completion of common facilities must be completed from any other date. On the facts, the SPA is in accordance with Schedule H of the Regulation 1989 and the terms thereof are to be strictly followed and cannot be contracted out of. (iv)No binding contract was formed on 28/9/2013 as there was no consideration, no acceptance and no intention to create legal relations between the applicant and the first respondent. The second respondent thus had erred in holding that the date of ascertaining the delivery of vacant possession should be 28/9/2013. (v)The Tribunal had committed jurisdictional errors and/or Anosminic errors and acted on incorrect basis in fact. The award therefore ought to be quashed for being tainted with illegality and unreasonableness. (vi)The liquidated damages payable for late delivery of the vacant possession of the property and late completion of the common facilities should have been calculated from date of the SPA and not from the date of the stakeholder sum was deposited with the stakeholder.

[Encroachment of Land, trespass, negligence and/or breach of statutory duty] Justin was counsel for the Plaintiff in the Counterclaim in this action which proceeded for Full Trial. The case involve encroachment of the said Plaintiff’s Land by a right of way where the Pentadbir Tanah issued a letter granting a right of way not in accordance with the National Land Code. and The said Plaintiff sought for declaratory and injunctive relief and also damages for trespass and/or negligence and/or breach of statutory duty. The Court inter-alia held that :- (i)The fourth defendant (Pentadbir Tanah) owed a duty of care in common law to the plaintiff as the registered proprietor to ensure its rights of enjoyment to the said land was not deprived or encroached by the fourth defendant’s unlawful act. Based on the above, the plaintiff was therefore entitled to judgment against the fourth defendant for breach of statutory duty and negligence. (ii)There was no statutory duty owed by the fifth defendant to the plaintiff as the duties owed by the fifth defendant under by-law 25 of the Uniform Building By-Laws were only to qualified persons defined therein. By virtue of the close proximity of the plaintiff’s land, it was foreseeable that any planning permission that allowed for the encroachment by the applicant for that planning permission onto the plaintiff’s land would cause damage to the plaintiff, and when the added requirement of justice fairness and reasonableness of the case under the Caparo test was considered, there was a clear duty or care owed by the fifth defendant to the plaintiff. Nevertheless, the court found that D5 (Land authority) had acted reasonably to ensure that there was no unlawful encroachment onto the said land. Thus, D5 had properly discharged its duty of care and there was no breach of that duty.

[Judicial Review and calculation of LAD] Justin was counsel for the Developer in this case. The Court dismissed the Judicial Review application and inter-alia held :- (i)The tribunal was correct to find that M/s Khairin Nisan was the lawyer for acting for Applicant. Notwithstanding the fact that it was expressly stipulated in the S&P agreement that vacant possession was to be given within 48 months from the date of the agreement and that the common facilities are to be completed within the same time frame, following Faber Union Sdn Bhd v Chew Nyat Shong & Anor [1995] 3 AMR 2094, the calculation of LAD begins from the date of payment of the booking fee. In this regard, upon payment of the booking fee, the contract is valid as the consideration and object of the agreement are legal.

[Unlawful accessorizing of carparks accessory parcels in the strata title and definition of “accessory parcel”, unlawful rental of Carparks and commercial business within a Residential Condominium] Justin was counsel for the Respondent in this case. In this case, the developer (D2) in this case sold 45 units of condominium to a closely related company (D1) with 439 accessory carparks attached to the said units, with 40 of the units having 8 to 15 accessory car parks each. The Respondent contend that this caused a shortage of carparks at the condominium including lack of visitors’ carparks and the D1/D2 proceeded to rent the extra carparks to residents/third parties.   The important points of law canvassed by this case from the report include the following :   (i)The Strata Titles Act 1985 prohibits the commercial usage of carparks, where in this case the Defendants were renting out the carparks in a residential condominium to third parties. (ii)Each condominium unit which is about 1000 square feet at most would require one or two carparks. The usage of the 394 carparks ( excessive carparks ) constitute a breach of Section 34 (2) and 69 of the Strata Titles Act 1985 namely that the accessory carparks is used or intended to be used not in conjunction with a parcel unit and dealt with independently of the main parcel unit. (iii)“Dealt” in the said Section 34 ( 2) and 69 include “tenancy” where Section 5 of the National Land Code defines “dealing” as transactions under Division 4 and Division 4 of the NLC include Part 14 and 15 with provisions  on “tenancies”. (iv)There is a breach of the Development Order where the requirement of the DO is a requirement under the law pursuant to Sections 22 (2) , 22 (3) and 22(4) of the Town and Country Planning Act 1976, where D2 failed to provide 10% of the 2180 carparks as visitors carparks. Here, we are not talking about the number of carparks required to be built by D2, which appear to be regular on paper but the dealing of the carparks for business purpose which caused an acute shortage of carparks. (v)There was evidence that the accessory carparks were not sold or transferred with any consideration and/or valuable consideration. (vi)The 40 SPAs were not arms length transactions where vacant possession were given to D1 before purchase price were fully paid, D1 took 3 years to pay the purchase price when the SPA require 3 months and there are instances the 10% deposit were made after balance purchase price made. All these could only happen when D1 and D2 have close relationship and controlled by the “Lee” family. (vii)Carpark transactions are illegal and ordinarily if the SPAs are struck down as void, the carparks after deducting the visitors’ carparks should revert to D2. However, as no approved strata plan was adduced by D2 as the developer, although available, there is no evidence that these carparks are “accessory parcels” or “comprise in any parcel”. Therefore, an adverse inference under Section 114 (g) Evidence Act is invoked against D2 and these carparks are ruled as common property. (viii)Section 143 (2) and (3) of the Strata Management Act 2013 provides that the plaintiff as the management corporation can lawfully sue for the recovery of common property. (ix)The fact that the carparks are already comprised in the strata tiles alone is not a determining factor that they do not form part of common property. If the Court were to agree with the submissions of the defendants in this regard, it will produce an absurd result i.e. any party like the developer can take advantage of the situation by ‘accessorizing” property which should have been “common property”. (x)Once the carparks are no longer part of the strata title, they are no longer accessory parcels and not subjected to Sections 4, 34 and 69 of the Strata Title Act.

110)[Judicial Review against decision of Tribunal for Homebuyer] Justin was counsel for the Applicant for Judicial Review in this case. The Court inter-alia held that :- -Pursuant to s16AE of the Housing Development (Control and Licensing) Act 1966 (“the HDA“), the tribunal can only adopt procedures it thinks fit and proper subject to provisions of the HDA and any regulations made under the HDA. -The tribunal cannot ignore the express provisions in the HDA and regulations in making and adopting any procedure. A template “Surat Wakil Kuasa Bagi Menghadiri Pendengaran” which allowed a homebuyer to authorise a third party to represent him/her was contrary and ignored the provisions of the Part VI of the HDA. -Therefore, the tribunal’s decision in allowing the third parties to represent homebuyers at hearings before it went against the purpose and intent of setting up the tribunal, which was to provide a quick, simple and inexpensive forum for homebuyers to pursue their claim against housing developers. -This ability to appoint a third party which was not extended to the housing developer went against the natural justice principle of rule against bias. Therefore, the decision to allow a third party to represent the purchasers at a hearing was procedurally improper and the tribunal had breached the principles of natural justice and failed to observe the procedural rules laid down in the HDA by which the tribunal’s jurisdiction was conferred.

[Setting aside of Judgment under Reciprocal Enforcement of Judgment Act] Justin was the counsel for the Respondent in this case. The Court of Appeal held that res judicata do not apply in this case and reversed the High Court Judgment (kindly refer to item no 101 above) (i)The Respondent submitted to jurisdiction in Singapore by filing a Defence and taking point in the Trial plus appealing to the Singapore Court of Appeal. The concept of public policy is a narrow and restrictive doctrine. It could not be seen how the registration of a Singapore Judgment at the Johor Bahru High Court could be said that to be contrary to the public policy in Malaysia.