JCW

[Summary Judgment – Tenancy Agreement – Specific Performance to reinstate the premises to original state and condition when handing over vacant possession] Justin was the counsel for the Plaintiffs, the owner of the premises. In this case, the Plaintiffs rented 2 adjoining unit of premises to the Defendant and the Defendant removed the partition wall between the 2 premises. A tenancy agreement was entered into with specific terms that the Defendant is to reinstate the premises and give vacant possession to the Plaintiffs upon expiration of the tenancy agreement. The tenancy agreement was subsequently terminated and the Defendant returned the keys of the premises without reinstating the premises in its original state. The Plaintiffs filed an application for summary judgment against the Defendant to reinstate the premises to original state and subsequently to give vacant possession of the premises after the reinstatement. The Plaintiffs’ application for summary judgment was allowed by the Court and the Court held that there are no triable issues.

[Building Contract – Whether the construction works is not in accordance with construction drawings prepared by engineer] Justin was the counsel for Stronpac Contruction Sdn Bhd, the Appellant (Defendant). In this case, the Plaintiff alleged that the Defendant constructed 61 units of houses with discrepancy of 2 sq.ft. per unit (38 sq.ft. instead of 40 sq.ft.) causing the Plaintiff to suffer losses as sale price of the houses was reduced. As such, the Plaintiff claimed that the Defendant failed to carry out the construction works in accordance with the construction drawings prepared by the engineer and consequently breached three (3) construction contracts. The claim was allowed by the High Court and was subsequently overturned by the Court of Appeal. In this case, the Court of Appeal allowed the appeal and held that there was no clause in the contract specifically provides that the houses built must be 40 sq.ft. and that the Defendant had constructed the houses based on the construction drawings given to them which was specified that the length of houses to be built was 38 feet. The Court also finds that the Plaintiff failed to produce any of the plans which they had relied on and throughout the construction period and there was no evidence of non-compliance and delay by the Defendant.

[striking out – purchaser sued developer based on an allegation that his unit had been “substituted” with another unit] Justin and Alvin acted for the defendant in this case and successfully struck out the plaintiff’s claim. The High Court held that the plaintiff’s claim ought to be struck out under Order 18 rule 19 (1) of the Rules of Court 2012. The plaintiff submitted that the defendant had unilaterally and without the plaintiff’s knowledge unlawfully changed and/or substituted the parcel with a different unit ie LG-29. The plaintiff insisted for LG-30 not LG-29 for reasons that the notice of delivery of vacant possession dated 8 October 2009 was issued to the plaintiff in respect of LG-30 and the plaintiff took possession of LG-30 only. The certificate of fitness was also duly issued to the plaintiff for LG-30 and not any other units. On the other hand the defendant explained that the parcel described as LG-30 in the SPA had been relocated and re-designated as LG-29 due to the amendment to the building plan on 4 August 2009 and was approved by MPSJ. Based on the amended building plan, the original location of the LG-30 had been replaced by ‘Switch & Meter Room’ and the staircase. The location of LG-29 on the amended building plan is the nearest and next to the original location with the similar size of the parcel was allocated to the plaintiff. The Court is of the view that such amendment and substitution of LG-30 by the defendant was meant for an expedient and necessary purpose since the building plan had been approved by MPSJ and the original LG-30 is no longer in existence since it had already been replaced by ‘Switch & Meter Room’ and staircase and cannot be used anymore for the parcel. Therefore based on cl 10.1 the building plan is subject to any amendments, variations, modifications and adjustment the position of LG-30 would include changing of its position and permits the defendant to substitute the plaintiff’s unit to another unit. Therefore, such amendment and substitution was meant for ‘expedient or necessary’ purpose and does not amounts to an unjust enrichment by the defendant or otherwise to benefit the defendant by giving ownership of LG-30 to the defendant. Based on the above clear terms, the defendant has a right to amend, vary, substitute, reconstruct and/or in any manner deal with the parcel unit without the need to seek consent from the plaintiff. On the same footing the plaintiff shall accept any changes, variation, modification and any adjustment of the parcel as the position and description of the parcel are not guaranteed to be correct. It is settled law that parties are bound by the terms of the contract that they have entered into. In the present case, the Court held that defendant has fulfilled its contractual obligation under the contract by giving LG-29 with almost similar size to the plaintiff after the building plan has been amended subsequent to the signing of the SPA.

[Derivative Action – leave to commence derivative action on behalf of the company] Alvin was the counsel for the Defendant, Mutual Life Sdn Bhd. This is a case involving an application filed under Section 181A, 181B, 181C, 181D and 181E of the Companies Act 1965 by the Plaintiffs, the shareholders of the Defendant, seeking leave to commence derivative action for and on behalf of the Defendant against the other directors of the Defendant. The Plaintiffs alleged that the Defendants, either individually or in concert, have unjustly enriched themselves and to the detriment of the Defendant. The Court dismissed the Plaintiffs’ leave application and inter-alia held that the proposed action was for the collateral purpose to achieve the personal gains and were merely using the company for the same

[Vacant Possession – eviction of occupiers from common property of a condominium] Justin argued this case and was assisted by CY Leong (who attended the decision). Justin was the counsel for the Plaintiff, the management corporation of Palm Spring. This is a case involving an application by the Plaintiff against the Defendants to deliver vacant possession of the common property to the management corporation. The Plaintiff is entitled to a vacant possession of the common property pursuant to an order by Court of Appeal and the 2nd Defendant is supposed to deliver vacant possession to the Plaintiff. However, the 2nd Defendant failed to deliver vacant possession by allowing its sub-tenant to remain in the common property and continue to collect rent from its sub-tenant for some time. The Court allowed the Plaintiff’s application and ordered the 2nd Defendant to deliver vacant possession within 30 days of the order, failure of which, the 2nd Defendant run the risk of being held in contempt of court

[Application for further and better particulars] Justin was the counsel for the plaintiff. The High Court in dismissing the defendants’ application for further and better particulars with costs held that the defendants had more than sufficient material particulars to state their defence. The defendants’ request was amongst others for matters of evidence for a trial. Further, there was no special reason for the court to allow the defendants’ application when in actual fact the defendants had already filed in their defence and counterclaim.

[Tort of invasion of privacy and tort of “misuse of personal information”] Justin was the counsel for the plaintiff. In dismissing the 1st defendant’s application to strike out the plaintiff’s claim, the Court held that it was premature to say that the plaintiff had no cause of action at all against the 1st defendant. Although tort of invasion of privacy has not gained traction in Malaysian jurisprudence, there are other causes of action, which may well succeed and which at the very least, would warrant a full hearing. “Therefore, the plaintiff should be allowed to have her day in court so as to allow her to ventilate her several causes of action against D1 and the other defendants, no matter how weak these causes of action appeared to be presently. It is both desirable and imperative that the various legal arguments and formulations are given mature consideration at a full trial.

[Sale of defective “steel bars” does not meet the requirement of “Grade 500”, the sampling of “underspec steel bars”] Justin was the counsel for the appellant/defendant. In allowing the appeal with costs against the claim by the Respondent/Plaintiff for the supply of Steel Bars. The Court of Appeal held inter alia as follows:- (i)The conclusion of the trial court that the respondent had “fulfilled their obligation” and had a “legitimate claim” was diametrically and wholly against the weight of the evidence; (ii)The respondent cannot complain that the appellant did not raise any issues within 7/14 days from the Invoices/delivery order when the respondent failed to comply with the primary obligation to supply steel bars according to the required specification; (iii)The steel bars sampled did not meet the requirement of “Grade 500” where the 4 test results do not support this; (iv)The appellant would be suffering further loss and damages by reason of the defective steel bars, hence judgment for the appellant in the counterclaim ought to be given.