Abd Razak Bin Mohd Aris v Dato' Lee Su Ha (BA-22C-43-10/2019)

1.

2.

TAN SOON LEE (Mendakwa sebagai Plaintif-Plaintif dan wakil-wakil kepada semua pembeli-pembeli untuk projek pemajuan yang dikenali sebagai “City of Green”) …PLAINTIF-PLAINTIF

1.

BJ HOMES DEVELOPMENT SDN BHD

TETUAN SAYHAN LIM ARCHITECT (Didakwa sebagai sebuah firma akitek)

4.

TETUAN GANESH & CO (Didakwa sebagai sebuah firma guaman)

6.

7.

DATIN LOKE MAY KAM …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT

Enclosure 605 is an application by the 1st and 2nd Defendants pursuant to Order 14A and/or Order 33 rule 2 of the Rules of Court 2012 (“RoC”) for the determination of, as questions of law, whether the Plaintiffs, totalling 70 of them, are competent to proceed with this action as a representative action on behalf of all purchasers in the City of Green development (“the Application).

Central to the Application is the 1st and 2nd Defendants’ contention that the Plaintiffs’ suit is fundamentally defective as a representative action under Order 15 rule 12 of the RoC and ought therefore to be disposed of without the need for a full trial.

The Plaintiffs resisted the application, contending that the requirements of a representative action are satisfied and that the matters raised by the Defendants go to merits, relief, or individual defences rather than to representative standing.

It is important to note that the Application was brought after the trial has commenced for 10 days and evidence through 5 witnesses had been adduced.

However, the Court is empowered to determine threshold questions of law if they are suitable for determination without further factual inquiry and would finally dispose of the issue concerned. Order 14A rule 1 of the RoC provides :

The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that-

such question is suitable for determination without the full trial of the action; and

such determination will finally determine the entire cause or matter or any claim or issue therein. And Order 33 rule 2 of RoC 2012 stipulates: The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.

For present purposes, the Court confines itself strictly to the issue of representative standing under Order 15 rule 12. No findings are made on liability, credibility of witnesses, or the ultimate merits of the Plaintiffs’ substantive claims.

As such, the Court will only answer the issue posed at Question 1 of the Application, viz. : whether the Plaintiffs in this action can represent all purchasers in the City of Green project, including those who are not parties to this suit, in pursuing claims against the 1st Defendant and the 2nd Defendant for, inter alia, the termination of the Sale and Purchase Agreements, that all Deeds of Mutual Covenants

(DMC), the Partial Certificate of Completion and Compliance dated 1-6-2018 and the Certificate of Completion and Compliance dated 3-7-2018 be declared void.

The 1st and 2nd Defendants contend that the determination of, inter alia, this question at a preliminary stage would result in a substantial saving of time and costs, as the answers thereto may dispose of the action in whole or in part.

On 9.2.2026, having considered all the relevant cause papers and submissions by the counsel, I allowed the Application and dismissed the amended Writ and Statement of Claim with costs as follows:-

RM50,000 to the 1st and 2nd Defendants;

(ii) RM50,000 to the 3rd Defendant;

(iii) RM50,000 to the 4th, 6th and 7th Defendants;

(iv) RM 50,000 to the 5th Defendant;

RM50,000 to the 8th Defendant.

Dissatisfied with my decision, Plaintiff filed an appeal on 10.3.2026. I set below my grounds for allowing the Application.

Undisputed Facts

This action arose from a housing development project known as City of Green (“COG development” or “the Project” which is used interchangeably in this Grounds) situated on a parcel of freehold land held under Geran Mukim Lot 1944, Mukim of Petaling, Selangor (“the Land”).

The 1st Defendant is the registered proprietor of the Land, whilst the 2nd Defendant is the developer responsible for the construction and delivery of the said project.

The remaining Defendants were the project architect, project surveyor and solicitors involved in the Project.

The Project consisted of two phases, with Phase 1 comprising Blocks A, B and C, and Phase 2 comprising Block D. The dispute before this Court principally concerns Phase 1 of the Project.

15.

Upon completion of construction works for Phase 1 and based on Forms G1-G21, a Partial Certificate of Completion and Compliance (Borang F1) dated 1.6.2018 was issued in respect of Blocks A, B and C, certifying that the said blocks were completed and were safe for occupation.

Following the issuance of Partial Certificate of Completion and Compliance (Borang F1), the 2nd Defendant issued Notices of

Vacant Possession dated 6.6.2018 to all purchasers of Phase By the virtue of Clause 26(3) of the SPAs, the purchasers were deemed to have taken vacant possession of their respective units 14 days thereafter, namely on 20.6.2018, irrespective of whether actual physical occupation had taken place.

Subsequently, a Certificate of Completion and Compliance (Borang F) dated 3.7.2018 was issued, in compliance with Majlis Perbandaran Subang Jaya’s instruction, to replace the Partial Certificate of Completion and Compliance (Borang F1) dated 1.6.2018.

Following the delivery of vacant possession, the Plaintiffs and/or other purchasers have since taken possession of their units, with many of them occupying or letting out the same.

On 11.3.2023, a Joint Management Body (“JMB”) for COG development was established to undertake the management and maintenance of the development, which is indicative of the completion, operational status and occupation of the units in the COG development.

Notwithstanding the foregoing, the Plaintiffs commenced this action by way of Writ dated 7.10.2019, seeking, among others, the termination of all the Sale and Purchase Agreements and that all Deeds of Mutual Covenants (DMC), the Partial Certificate of Completion and Compliance (Borang F1) dated 1- 6-2018 and the Certificate of Completion and Compliance (Borang F) dated 3-7-2018 be declared void.

The Plaintiffs commenced this action purportedly in a representative capacity on behalf of all purchasers of the 1,054 residential units of the Project.

In the course of the proceedings, 8 Plaintiffs have since withdrawn their claims against the Defendants, whilst 2 others were struck out by the Court due to their failure to attend trial.

For ease of reference, the Plaintiffs who had expressly withdrawn their case against the Defendants are as listed below:-

Whilst the Plaintiffs who had their claim against the Defendants struck out due to their failure to attend the trial on 7.11.2024 are as follows:

The remaining Plaintiffs in this case may broadly be categorised into the following groups, namely:

Group 1 : Plaintiffs (all except no.s 33, 53 and 50) who have assigned absolutely their rights and interests in their units to their respective end financiers, namely Malaysia Building Society Berhad, CIMB Bank Berhad, United Overseas Bank Bank Berhad, Hong Leong Bank Berhad, AmBank (M) Berhad, Public Bank Berhad, RHB Bank Berhad, Al Rajhi Banking & Investment Corporation (Malaysia) Bhd (collectively referred to as “the End

(ii) Group 2 : Plaintiffs (no.s 33 and 53) were cash purchasers and had respectively accepted liquidated ascertained damages (“LAD”) pursuant to Letters of Acceptance of Settlement prior to the commencement of this action;

(iii) Group 3 : Plaintiffs (28 in total) had, prior to the commencement of this action, either claimed and/or accepted LAD pursuant to Letters of Acceptance of Settlement or Settlement Agreements in Kuala Lumpur High Court Suits No. WA- 22NCVC-575-09/2018 (“Suit 575”) and WA-22NCVC- 723-11/2018 (“Suit 723”), while the 1st Plaintiff had pursued his LAD claim before the Homebuyer Tribunal, which was subsequently quashed by way of Judicial Review Application No. WA-25-3-01/2019; and

(iv) Group 4 : Plaintiffs (no.s 14 and 50) who no longer retained any interest in their units, including instances where the property has been auctioned or where the SPA has been terminated.

Related Shah Alam and Kuala Lumpur Proceedings

In addition to the present action, there were previous and subsequent proceedings involving the purchasers of the COG development.

Vide Suit 575 and Suit 723, a total of 66 purchasers, including 6 Plaintiffs in this case (no.s 58, 60, 65, 67, 68 and 70), initiated legal action against, inter alia, the 2nd Defendant for LAD premised on late delivery of vacant possession which culminated in all the plaintiffs therein (including the 6 Plaintiffs in this case) entering into Settlement Agreements which were negotiated and advised by the plaintiffs’ solicitors therein where they accepted settlement sums as full and final settlement of their claims.

Further, vide Shah Alam High Court Suit No.s BA-22C-21- 07/2020 (“Suit 21”) and BA-22C-30-09/2020 (“Suit 30”) a total of 74 purchasers commenced legal action against, inter alia, the 2nd Defendant. These actions were for, amongst others, claims for LAD premised on alleged a later date of delivery of vacant possession. The suits were heard together and on 23.6.2025, the Court found that the vacant possession was delivered on a later date and gave judgment for the LAD accordingly. All but 5 purchasers accepted the Court’s decision; with 5 purchasers lodging an appeal.

Order 14A rule 1 of the Rules of Court 2012 expressly provides that the Court has the power on its own motion or upon application by the parties, to determine any questions of laws where it appears to the Court that such questions are suitable for determination without proceedings with the full trial and that such determination will finally determine the entire cause or matter or any claim or issue therein.

Further, Order 33 rule 2 of the Rules of Court 2012 empowers the court where it appears to the Court that a decision of a question would substantially dispose of the cause or matter or renders the trial of the cause or matter unnecessary, the Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter.

It must be emphasised that an application for disposal of case on points of law under Order 14A of the Rules of Court 2012 should only be considered by the Court if the necessary material facts relating to the subject matter of the questions or issues are proven and undisputed.

In the case of Lembaga Pembangunan Industri Pembinaan Malaysia v. Konsortium JGC Corporation [2015] 9 CLJ 273 the Federal Court held that an application for disposal on points of law under O.14A should only be considered by the Court if the necessary material facts relating to the subject matter of the questions or issues are proven and undisputed. “[38] We begin by briefly discussing the mode of action, which alludes to O. 14A of the Rules. This Order enables the High Court to determine any question of law or construction of documents arising in any cause or matter at any stage of the proceedings, where to the court such questions are suitable for determination without going through a full trial, and that determination will dispose of the entire matter. In order to do that it is crucial that all the necessary and material facts relating to the subject matter of the question have been duly proved or admitted. In a gist there are no substantial factual disputes left to be resolved. In The Malaysian High Court Practice 2001 Desk Edition at para. 14A.1.3 the writers authored: The question of law or construction must be suitable to be determined without the full trial of the action. The test of whether the question of law or construction is 'suitable' to be determined under this order is whether all the necessary and material facts relating to the subject matter of the question have been duly proved or admitted. This postulates that there is no dispute or no further dispute exists as to the relevant facts at the time when the court proceeds to determine the question. The suitability of disposing of an action under this order depends entirely on whether the court can determine the question of law raised without a full trial of the action.”

The Court of Appeal in Petroleum Nasional Berhad v Kerajaan Negeri Terengganu [2004] 1 MLJ 8 held that even in complex cases, the Court should not avert the possibility of the applicability of an that Order 14A application or the alternative application under Order 33 rule 2. The relevant passage from the Court of Appeal are as follows:- “[41] In our view, even if the case appears to be or is complicated it does not mean that the court must shun away from considering the applicability of O 14A and O 33 r 2 in relation to the questions of law posed which are clear and definite and the issues are clear cut. Real and serious attempt must be made to identify the material facts pleaded which are obviously undisputed or which should not have been disputed and then to apply the relevant rule to the facts as found. There are authorities in support of the proposition that merely because an issue of law takes a little longer to determine does not mean that the court should refuse the application (see Korso Finance Establishment Anstalt v John Wedge). In Ringtower Holding Plc, Re (1989) BCC 82 at p 84, it was held that if the applicants can satisfy the court that the petitioner’s claims are manifestly unsustainable or are an abuse of the process, justice requires that the petition (even one running to 28pp) be struck out forthwith.”

A representative action under Order 15 rule 12(1) RoC states: Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun and, unless the Court otherwise orders, continued by or against any one or more of them as representing all or as representing all except one or more of them.

The requirements of a representative action were laid down in Palmco Holdings Bhd v Sakapp Commodities (M) Sdn Bhd

2 MLJ 624 where the Court had the occasion to succinctly state the threshold in a representative action as follows :- ‘… the plaintiff has to satisfy three requirements in order to succeed in a representative action. Firstly, the plaintiff and those represented by it are members of a class and that these members have a common interest. Secondly, the plaintiff and those it represents have a common grievance. Thirdly, the relief sought is in its nature beneficial to them all’.

As such, the three limbs which the Plaintiffs are required to satisfy in this case to successfully maintain and sustain a representative action are as follows :-

that the plaintiff and those represented by it are members of a class and these members have a common interest;

(ii) that the plaintiff and those it represents have a common grievance; and

(iii) that the relief sought is in nature beneficial to them all.

By its Statement of Claim, at paragraph 12, the Plaintiffs averred that : “(T)he Plaintiffs, in addition to the authority of the purchasers of CoG ascertained as in the attached “Appendix A”, represent a class of person/entities who are all purchasers, including those who cannot be ascertained and/or cannot be readily ascertained and/or can be ascertained but cannot be readily found from the remaining purchasers out of the 1,054 residential units in CoG”

By their amended Statement of Claim, the reliefs sought by the Plaintiffs, for all the purchasers of COG, are as follows :- “a) Assessment of damages against any of the Defendants deemed as tortfeasor by the Court for the termination of the sale and purchase agreement; a1) All settlement agreements between the 2nd Defendant and the Plaintiffs, if any, to be null and void but any monetary obtained by the respective Plaintiffs shall be allowed to be set-off from damages thereof from this proceeding in benefit of that Plaintiff(s) against the 2nd Defendant; b) The Deed of Mutual Covenant for the project City of Green be declared void; c) The Partial Certificate of Completion and Compliance dated 1-6-2018 be declared void; d) The Certificate of Completion and Compliance dated 3-7- 2018 be declared void; e) A declaration that the Notice of Vacant Possession dated 6-6-2018 be null and void; f) The sale and purchase agreement between the Plaintiffs, the 1st and 2nd Defendants be terminated; g) The Corporate veil of the 2nd and 4th Defendant to be lifted pierced with directors and shareholder made personally liable; h) General Damages; i) Special Damages against the 1st, 2nd and the 8th Defendant jointly and severally; j) Exemplary Damages against the Defendants jointly and severally”

It is noted that the reliefs sought under prayers (b), (c), (d) and

would have an impact on all purchasers of the COG development, in that their respective individual interests, rights and benefits in their units would be affected.

The parties are sharply divided on whether this action satisfies the requirements of a representative action under Order 15 rule 12 of the RoC.

It is the Plaintiffs contention that all purchasers of the COG development constitute a single class sharing a common interest and a common grievance, namely alleged project-wide misrepresentations, irregularities in the issuance of the Partial Certificate of Completion and Compliance (Borang F1) dated 1.6.2016 and the Certificate of Completion and Compliance (Borang F) dated 3.7.2018, and acts said to taint the entire development. On that footing, the Plaintiffs argue that individual differences, such as acceptance of liquidated damages, occupation of units, or differing financing arrangements, do not negate representative standing, as the essence of the complaint and the declaratory reliefs sought are common and arise from the same factual matrix.

The 1st and 2nd Defendants, however, submitted that the Plaintiffs’ characterisation oversimplifies the position. They argue that the purchasers are not a homogenous class but are instead divided into materially different categories, including :-

purchasers who have accepted vacant possession and liquidated damages;

(ii) purchasers who are content to retain and occupy or rent out their units;

(iii) purchasers who have assigned their interests absolutely to the End Financiers; and

(iv) purchasers who no longer retain any proprietary interest at all.

According to the 1st and 2nd Defendants, these distinctions are not merely incidental but go to the heart of the test set in Palmco case, as the reliefs sought, particularly termination or cancellation of the sale and purchase agreements and voiding the CCC regime, would benefit some purchasers while causing prejudice to others and the End Financiers. In those circumstances, the 1st and 2nd Defendants contended that neither a common grievance nor a universally beneficial remedy exists, rendering the representative action inherently defective.

The competing positions therefore reduced to a single point of principle is whether the divergent factual positions, affirmed contracts, and potentially adverse consequences of the reliefs sought defeat the essential requirements of a common interest, common grievance, and benefit to all within the meaning of Order 15 rule 12.

Having carefully weighed the submissions, I am unable to accept that this action satisfies the requirements of a representative action under Order 15 rule 12 of the RoC. Although the Plaintiffs and the other purchasers acquired units within the same development, that is all they have in common.

The evidence before the Court demonstrates that they do not share a sufficiently common interest or grievance in relation to the reliefs sought. The purchasers are divided into materially distinct categories, including :-

those who have accepted vacant possession and liquidated damages;

(ii) those who are occupying or renting out their units without complaint;

(iii) those who have assigned their entire interest to End Financiers, who in turn have a legal and beneficial interest and rights to the units assigned to them; and

(iv) those who no longer retain any proprietary interest in the development at all.

Crucially, the reliefs pursued in this action, particularly termination or cancellation of all sale and purchase agreements, voiding the deeds of mutual covenants, the Partial Certificate of Completion and Compliance (Borang F1) dated 1.6.2016 and the Certificate of Completion and Compliance (Borang F) dated

3.7.2018, would not be beneficial to all purchasers said to be represented.

On the contrary, such reliefs may operate to the prejudice of purchasers who have clearly and unequivocally affirmed their contracts and had benefited as vacant possession delivered and LAD payment was accepted and the End Financiers whose security interests would be directly affected. In these circumstances, and based on the undisputed facts as laid above, this action fell short of the settled test articulated in the Palmco case, as the Court cannot be satisfied that there exists a common interest, a common grievance and/or a remedy beneficial to the entire class.

The absence of a common grievance and the lack of a remedy that is beneficial to all members of the purported class are, in this Court’s judgment, fatal to the maintenance of this action in its present form. The defect is not merely procedural but goes to the very foundation of a representative action, which is premised upon the existence of a unified class interest capable of being advanced with a remedy that is beneficial to that class.

It must be noted that Suit 21 and Suit 30 were filed after the commencement of this action by the Plaintiffs. This clearly demonstrates that the Plaintiffs do not, in fact, represent all such purchasers. Putting it another way, the plaintiffs in Suit 21 and Suit 30 disassociated themselves with the Plaintiffs in this Suit and proceeded on their own, vide separate suits altogether.

These proceedings - Suit 21, Suit 30, Suit 575, Suit 723 - collectively also establish that there are purchasers of the COG development, including some of the Plaintiffs here, who had accepted, affirmed, acted upon and claimed under their respective Sale and Purchase Agreements to enforce their rights and interest in the units purchased to claim and obtain monetary compensation from the 2nd Defendant, namely LAD pursuant to Clauses 25(2) and 27(2).

In my judgment, to permit the action to proceed in a representative form would be unjust and contrary to the settled principles governing such actions.

I therefore hold that the Plaintiffs are not entitled to proceed in a representative capacity, and the action, insofar as it is brought as a representative action, is unsustainable.

In the upshot, prayer 1A of Enclosure 605 is answered in the negative and thereby prayer 2 is allowed whereupon the Writ and Amended Statement of Claim is dismissed with costs as adumbrated in paragraph 9 above. Dated : 30th April 2026 t.t ………………………………………… Shahriza Zalina Binti Abdul Shukor Judicial Commissioner Mahkamah Tinggi Malaya Shah Alam For the Plaintiffs: Mr. Aaron Pang Kok Kang (Aaron Pang & Co.) For 1st and 2nd Defendant: Dato' Ringo Low together with Miss Choy Chi Peng (Ringo Low & Assoc.) For 3rd Defendant: Mr. Edmund Teh (Shu Yin, The & Taing) For 4th, 6th and 7th Defendant: Mr. Lai Yee Fan together with Miss Fiona Phik-Wy (Fyiona, Lai & Dennis Thong) For 5th Defendant: Mr. Ryan Ng Chin Wern together with Mr. Nathaniel Low Shern Min (Robert Low & Ooi) For 8th Defendant: Mr. Lee Tee Kiat (Y.Y Ho & Lee)