1. ) Affan Bin Mohd Nawi v 1. ) Lakefront Residence Sdn Bhd (WA-22NCvC-212-04/2022)

“Kata itu kota” is a well-known peribahasa. It means that every promise made must be honoured. Its English equivalent is “A man’s word is his bond”.

In the instant case before me, the plaintiff’s learned counsel Ravindran Shanmuganathan submits that there is a prevalence of developers riding roughshod over the Latin maxim Omnia promissa servanda, “All promises must be kept”.

He urges me to hold the defendant developer in this case to its promise to the 46 house buyers here.

Learned counsel for the defendants Justine Voon urges me not to be swayed by the emotive language of the plaintiffs’ counsel.

Let me put Mr Voon's fears to bed at the outset. The Court will always treat a developer and the property buyers fairly and squarely, without fear or favour.

However, if a developer had contracted with the buyers to deliver a development with specific features, the court expects the developer to meet its bargain. Nothing more nothing less. Background Facts

This is a suit filed by 46 plaintiffs who are house buyers against Lakefront Residence Sdn Bhd / the 1st defendant (“D1”) who is the developer of a housing development known as Lakefront Villa @ Cyberjaya (“LFV Project”), Timeless Hectares Sdn Bhd / the 2nd defendant (“D2”) who is the registered proprietor of the land used for the LFV Project and MCT Berhad/ the 3rd defendant [“D3”].

D1 and D2 are wholly owned subsidiaries of MCT Consortium Berhad (“MCT Consortium”) which, in turn, is a wholly owned subsidiary of D3. D3 is a public company listed on the Main Board of Bursa Malaysia.

The suit is filed for breaches of a Sale and Purchase Agreement entered into between each of the 46 plaintiffs and D1 and D2 [“SPA or SPAs”]; and for misrepresentations by D1, D2 and D3 in respect of the LFV Project.

The SPAs are governed by the Housing Development (Control and Licensing) Act 1966 (“HDA 1966”) except for the SPA of plaintiff No. 34 (“P34”), dated 07-08-2020, which is not governed by the HDA

[11] I heard the trial over 7 days on 10-01-2023, 11-01-2023, 13-01-2023, 25-04-2023, 19-05-2023, 26-05-2023 and 02-06-2023. Oral submissions by counsel were held before me on 08-08-2023 and 06- 09-2023. I delivered decision with full grounds on 06-09-2023. [12] During oral submissions counsel for the plaintiffs has informed me that the plaintiffs are dropping the relief in Re - Amended Statement of Claim [“Re - ASOC”] at paragraph 65[3]. The plaintiffs have also said the same in the Plaintiffs’ Written Submissions at paragraph 110. [13] During oral submissions counsel for the plaintiffs has also informed me that if the court grants their prayer for a perpetual injunction in Re - ASOC at paragraph 65[4] their prayers for damages in paragraph 65[9] and paragraph 65[11] would be redundant. The plaintiffs have also said the same in the Plaintiffs’ Reply Written Submissions at paragraph 69. [14] If references are made in this judgment to say “E129/5(A)” it refers to Enclosure 129, PDF page 5 (Bundle A). The summary of the plaintiffs’ case [See Enclosure 30 / G 1] [15] The plaintiffs’ claim against the defendants is in respect of the housing and / or residential development project known as the LFV Project developed on the piece of land held under HS(D) 35967 PT 49802 Mukim Dengkil, Daerah Sepang, Negeri Selangor Darul Ehsan measuring approximately 64,586 square meters (“Master Land”). [16] Between 2014 and 2020, the plaintiffs purchased their respective parcels on the Master Land, pursuant to SPAs with D1 and D2. Contemporaneously with their respective SPAs, the plaintiffs also entered into a Deed of Mutual Covenants (“DMC or DMCs”) with D1. [17] D1 is the developer of the LFV Project whilst D2 is the registered owner of the Master Land. [18] D3 is a public listed company. [19] D1, D2 and a company known as Modular Construction Technology Sdn Bhd (the main contractor for the LFV Project) are wholly owned subsidiaries of MCT Consortium which, in turn, is a wholly owned subsidiary of D3. [20] The plaintiffs contend that, at all material times, the defendants were acting collectively and / or represented and / or held themselves out as operating as a single economic entity for all matters and purposes related to the LFV Project. The 110 Units Promise [21] D3, on behalf of and / or in complicity with D1 and D2, made representations to the plaintiffs to the effect that the LFV Project was its “maiden project” and that it would be a “gated and guarded development features just 110 exclusive luxury villas surrounding a panoramic lake – a picturesque retreat promising privacy and quiet respite” and that “catered with quality living and families in mind, LakeFront Villa are life-inspired homes in a holistic environment” (“110 Units Promise”). [22] The SPAs incorporated the 110 Units Promise. Planning Permission Current Position [23] On 21-06-2016, Majlis Perbandaran Sepang (“MPS”) approved an application by the defendants to amend the Planning Permission [E44/148-159(B4)], which insofar as it referred to the LFV Project, to provide for the development of the LFV Project in 2 phases (“Amendment 1”) i.e :

Phase 1 comprising of 86 Bungalow Villa Units (“Phase 1”); and

Phase 2 comprising of 24 Bungalow Villa Units (“Phase 2”). Note - This is an Agreed Fact. [Enclosure 32 / F] [24] On 11-01-2017, MPS approved a further amendment for the conversion of Phase 2 from 24 Bungalow Villa Units into commercial lots / Kedai Pejabat. [“Amendment 2”]. [See E44/161- 174(B4)]. Note - This is an Agreed Fact. [Enclosure 32 / F] [25] On 10-04-2018, Pejabat Daerah Tanah Sepang (“PDTS”) approved D2’s application to subdivide the Master Land for the purposes of residential and commercial development (“Conversion”). [See E44/182-185(B4)]. Note - This is an Agreed Fact. [Enclosure 32 / F] [26] On 22-04-2020, temporary titles (Hakmilik Sementara) were issued to D2 [E41/51-53(B1)] for the sub-divided lands :

HS(D) 53382, PT 4 for the land measuring 11,607 sqm (“PT 4”); and

HS(D) 53383, PT 5 for the land measuring 52,979 sqm (“PT 5”). Note - This is an Agreed Fact. [Enclosure 32 / F] [27] On 14-10-2020, Geran 339577, Lot 2 was issued for PT 4 (“Lot 2”). [E41/48-50(B1)]. Note - This is an Agreed Fact. [Enclosure 32 / F] [28] On 20-10-2020, D1 and D2 filed a Planning Permission Application to Jabatan Perancangan Bandar for a proposed commercial development project on Lot 2 (“Commercial Development”). Note - This is an Agreed Fact. [Enclosure 32 / F] [29] The application was rejected on 16-06-2021. [E44/269-270(B4)]. [30] D1 and D2 filed an appeal to the Appeal Board pursuant to Section 36 of the Town and Country Planning Act 1976. [31] On 27-10-2022 the Selangor Appeal Board allowed the Appeal. [E66/13-15(D1)]; [E136/5-9(D2]. [32] As matters presently stand: i. 86 units of bungalows / villas have been built on PT 5; ii. The remaining 24 units of bungalow / villas have not been built; and iii. Lot 2 is a vacant land. Refuse Chamber [33] The SPAs and DMCs also provide for D1 to construct a refuse chamber within the LFV Project. It has not been done. Relief [34] The plaintiffs claim for the following reliefs in paragraph 65 of the

A Declaration that the development project known as Lakefront Villa @ Cyberjaya constructed on Lot HS(D) 35967 PT 49802 Mukim Dengkil, Daerah Sepang, Negeri Selangor Darul Ehsan is a housing / residential development comprising of inter alia 110 units as shown in the approved Building Plans;

A Declaration that the development project known as Lakefront Villa @ Cyberjaya shall be used for residential purposes only;

A Declaration that the defendants have breached the Sale and Purchase Agreement(s) and the Deed of Mutual Covenants;

An injunction be granted to restrain the defendants, whether by themselves, their servants, agents, proxies, nominees or others from howsoever carrying out and / or proceeding with the Phase 2 Commercial Development, or any part of it, on the Land;

An Order of Specific Performance of the Sales and Purchase Agreements compelling the 1st and 2nd defendants to fully complete the construction of bungalow units on the remaining parcels within the housing / residential development known as Lakefront Villa @ Cyberjaya within 36 months from the date of this Judgment;

In furtherance of and / or consequence of Prayer (5), the defendants do:

Apply within 14 days to revert Phase 2 to residential use;

(ii) Apply to amend the Planning Permission to its original form of 110 residential units;

(iii) All such acts as are necessary to give effect and comply with the Order in Prayer (5).

An Order of Specific Performance of the Sales and Purchase Agreements compelling the 1st and 2nd defendants to construct and provide for a Refuse Chamber within the vicinity of Lakefront Villa @ Cyberjaya within 2 months from the date of the judgment of this court;

An Order for Liquidated Damages for the failure to construct and / or provide a Refuse Chamber in a suitable location within Lakefront Villa @ Cyberjaya calculated from day to day at the rate of ten per centum (10%) per annum of the last twenty per cent (20%) of the respective plaintiffs’ purchase price from the date of the respective SPAs until full compliance in Prayer (6);

Damages for the misrepresentation;

Damages, Compensation or Reimbursement in respect of Service Charges and Sinking Fund paid by the plaintiffs;

General Damages;

Interest;

Costs; and

Such further and other reliefs and/or directions as deemed fit and proper by this Court. The summary of the defendants’ case [See Enclosure 27 / G 2] [35] The defendants contend that D3 is the holding company of D1 and D2 and was not involved at all in the LFV Project and in particular, did not at any time enter into SPA and DMC with any of the plaintiffs. [36] The defendants also contend that the plaintiffs’ whole action is an attempt to reverse decisions of the public authorities in respect of amendments of Planning Permissions i.e. Amendment 1 and Amendment 2, Subdivision and Issuance of new subdivided Land Title as well as Planning Permission on the new subdivided Land Title in D2’s name (“the said Subdivided Title”) i.e. predominantly a public law matter, without filing a Judicial Review application. [37] The defendants further contend there was no proper legal challenge (vide Judicial Review and / or relevant appeal process in court) made by the plaintiffs on the validity of the Amendment 1 and Amendment 2 and the subdivision of Master Title and the plaintiffs’ grievance (if any, which is denied), ought to be raised through a Judicial Review process and / or the proper procedure and not via Writ action herein. [38] In addition, the defendants contend that the issues raised by the plaintiffs directly involve and affects the rights and / or interest of all purchasers and / or owners of the development i.e. the whole “Lakefront Villa @ Cyberjaya” (“LFV Project”) and not just the plaintiffs (only 32 out of 86 units of houses). In this regard, the Joint Management Body i.e. “Badan Pengurusan Bersama Lakefront Villa @Cyberjaya” (“JMB”) should sue. [39] The defendants also contend that the subdivided title for Lot 2 has been issued and registered in D2’s name since 22-04-2020 and D2 has an indefeasible title to Lot 2. However, the plaintiffs are attempting to impugn the registered Land Title i.e. the said Subdivided Title without any “frontal attack” against the said title pursuant to section 340 of the National Land Code 1965 and this is fatal to the plaintiffs’ claim. [40] The defendants further contend that the Preamble and / or First Schedule and / or clause 13 of the SPA (titled “Materials and workmanship to conform to description”) and Clauses 18, 19 and 34 of the SPA and also the DMC do not assist the plaintiffs. [41] The defendants also state that the plaintiffs’ claim for liquidated damages based on the alleged failure to construct a “refuse collection centre” and / or “refuse chamber” are misconceived and denied. Vacant possession had been delivered to the plaintiffs and the date of completion of the common facilities serving the said development has been certified by the Vendor’s Architect i.e. AR. Haji Saiful Azlan Shah vide the Certificate of Completion and Compliance dated 27-07-2017

(ii) provide a Refuse Chamber in the LFV Project? iv. Whether the first (“D1”) and second (“D2”) defendants breached the Sale and Purchase Agreements with the plaintiffs in failing to (i) build 110 bungalow units / villas and (ii) provide a Refuse Chamber in the LFV Project? v. Whether the D2 breached the Deed of Mutual Covenants with the plaintiffs in failing to (i) build 110 bungalow units / villas and (ii) provide a Refuse Chamber in the LFV Project? vi. Whether the 3rd defendant (“D3”), on behalf of and/or in complicity with D1 and D2 made the representations (“Representations”) set-out in paragraph 39 of the Re Amended Statement of Claim dated 30-06-2022? vii. Whether D3: a) Was actively involved and / or had control of the management and business activities of D1 and D2 in respect of the LFV Project and / or b) Represented and / or held itself out as being responsible for and / or supporting and backing-up the LFV Project? viii. Whether the defendants made the representations knowingly without belief in its truth or recklessly not caring whether they were true or false? ix. Whether, at all material times, the defendants were acting collectively and / or represented and / or held themselves out as operating as a single economic entity for all matters and purposes related to the LFV project? x. Whether the plaintiffs’ claims against the defendants based on legitimate expectation that amongst others the Defendant would construct 110 bungalow units / villas in LFV Project is plainly and obviously unsustainable? xi. Whether the proper party to bring the action herein is the Joint Management Body instead of the plaintiffs? xii. Whether the plaintiffs (comprising 32 villa / bungalow out of 86 units of houses) have the locus standi to bring this action? xiii. Whether the plaintiffs are entitled to reliefs prayed for in the Re - ASOC, in particularly paragraphs 65(1), 65(2), 65(4), 65(5) and 65(6) of the Re - ASOC when the plaintiffs are not challenging D2’s indefeasible title (Including under Section 340 of the National Land Code 1965) and registered ownership of Geran 339577, Lot 2, Bandar Cyberjaya, Daerah Sepang, Negeri Selangor (“Lot 2”) being a separate title and subdivided land now? xiv. Whether the plaintiffs are entitled to any or all of the reliefs prayed for the Re - ASOC? Analysis of court - How the courts should interpret the terms of a SPA that is governed by the HDA 1966 [49] I start by considering the law on how the courts should interpret the terms of a SPA that is governed by the HDA 1966. [50] It is common ground between counsel that the SPAs in our case [except for P34] are based on the prescribed form set out in Schedule G HDA 1966 prior to the 2015 amendments. The Trilogy of decisions of the Federal Court [51] I consider it settled law now that the approach to be taken in interpreting a SPA that is governed by the HDA 1966, which are the SPAs in this case before me [except for P 34 SPA], has been clearly set out in a trilogy of recent decisions of the Federal Court. [52] This trilogy of cases, in chronological order, are - i. Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals [2020] 1 CLJ 162 FC, decided in 2019 [“Ang Ming Lee”] ii. PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor And Other Appeals [2021] 2 CLJ 441 FC, decided in 2021 [“PJD Regency”] and iii. Remeggious Krishnan v SKS Southern Sdn Bhd [2023] 4 CLJ 36 FC, decided in 2023 [“Remeggious Krishnan”]. [53] In a nutshell, the three Federal Courts have stated affirmatively that - i. It is now settled law that the HDA 1966 and its subsidiary legislation are social legislation. ii. A social legislation is a legal term for a specific set of laws passed by the legislature for the purpose of regulating the relationship between a weaker class of persons and a stronger class of persons. iii. Even where a term or provision of a social legislation or a statutory contract enacted thereunder is literally clear or unambiguous, the court no less shoulders the obligation to ensure that the said term or provision is interpreted in a way which ensures maximum protection of the class in whose favour the social legislation was enacted. iv. A statutory contract enacted under the HDA 1966 must be interpreted in a way which ensures maximum protection for the house buyers against the developer. [54] I will set out the relevant extracts of this trilogy of cases below. [55] In Ang Meng Lee Tengku Maimun Tuan Mat CJ delivering the judgment of the Federal court said of the HDA 1966 - [40] The Act being a social legislation designed to protect the house buyers, the interests of the purchasers shall be the paramount consideration against the developer. [56] In PJD Regency Tengku Maimun Tuan Mat CJ delivering the judgment of the Federal Court analysed the significance and ambit of the phrase "social legislation” attached to the HDA 1966 and its ensuing subsidiary legislation i.e., the Housing Development (Control and Licensing) Regulations 1989 ("HDR 1989") in a judgment that bears reproduction in extenso. [57] Tengku Maimun Tuan Mat CJ delivering judgment of the Federal Court said : Introduction [1] The phrase "social legislation" attached to the Housing Development (Control and Licensing) Act 1966 ("HDA 1966") and its ensuing subsidiary legislation ie, the Housing Development (Control and Licensing) Regulations 1989 ("HDR 1989") is not merely a fanciful label. In disputes between home buyers and housing developers, its significance lies in the approach taken by the courts to tip the scales of justice in favour of the home buyers given the disparity in bargaining power between them and the housing developers. [2] The question then arises: what happens when the developers devise ingenious schemes to circumvent the law and when they are called out for it, turn around to say that it is the home buyers who seek to make a windfall under the guise of "protection"? To our minds, this is the crux of these appeals. … The Concept of Social Legislation [27] That the HDA 1966 and its subsidiary legislation are social legislation is settled beyond dispute (see the decisions of the Federal Court in: Veronica Lee Ha Ling & Ors v. Maxisegar Sdn Bhd [2009] 6 CLJ 232; [2011] 2 MLJ 141 and Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor And Other Appeals [2020] 1 CLJ 162; [2020] 1 MLJ 281). [32] Mr Lambert Rasaratnam, learned counsel for the developers contended that the scheduled contracts must be read literally and in accordance with the intention of parties and that this is a feature of the principles of contractual interpretation. Ms Sheena Sinnappah, also counsel for the developers, submitted that the principles of statutory interpretation should apply and that we ought to prioritise the literal rule. Essentially, the developers submitted that it was the intention of the parties or the intention of Parliament that the date of the agreement should follow the printed date in the first page of the agreement. When queried about how this could be reconciled with the concept of social legislation, Mr Lambert Rasaratnam stated that the courts cannot purport to rewrite the written agreement between the parties. [33] With the greatest of respect, it is our view that the submission is untenable. When it comes to interpreting social legislation, the State having statutorily intervened, the courts must give effect to the intention of Parliament and not the intention of parties. Otherwise, the attempt by the Legislature to level the playing field by mitigating the inequality of bargaining power would be rendered nugatory and illusory. … [36] From the above, we would summarise the principles on the interpretation of social legislation as follows:

Statutory interpretation usually begins with the literal rule. However, and without being too prescriptive, where the provision under construction is ambiguous, the courts will determine the meaning of the provision by resorting to other methods of construction foremost of which is the purposive rule (see the judgment of this court in All Malayan Estates Staff Union v. Rajasegaran & Ors [2006] 4 CLJ 195; [2006] 6 MLJ 97).

(ii) The literal rule is automatically displaced by the purposive rule when it concerns the interpretation of the protective language of social legislation.

(iii) For the avoidance of doubt, it is important to emphasise that even where a term or provision of a social legislation or a statutory contract enacted thereunder is literally clear or unambiguous, the court no less shoulders the obligation to ensure that the said term or provision is interpreted in a way which ensures maximum protection of the class in whose favour the social legislation was enacted. [Emphasis added] [58] In Remeggious Krishnan Harmindar Singh Dhaliwal FCJ delivering the judgment of the Federal Court said - [14] In any discussion on the HDA 1966, it is necessary to allude to the purpose and objective of the legislation. It is beyond doubt that the HDA 1966 was enacted as a piece of social legislation to protect house buyers. With that in mind, any term or provision in the statute must be interpreted in a way which ensures maximum protection for the house buyers against the developer. (See Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals [2020] 1 CLJ 162 and PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor And Other Appeals [2021] 2 CLJ 441; [2021] 2 MLJ 60). [15] It is therefore imperative that ss. 16M and 16Q of HDA 1966 be interpreted in such a way as to provide protection of house buyers in keeping with the intention of Parliament. [Emphasis added] The Agreed Issues to be Tried by Me [59] Guided by the trilogy of Federal Court cases above that the terms in the SPAs must be interpreted in a way which ensures maximum protection for the plaintiffs’ house buyers against the developer i.e. the defendants here, I will now consider the Agreed Issues. [60] I will consider Agreed Issue no 1 and 2 together as they are related. Agreed Issue no 1 – Whether the action herein is an attempt and / or collateral attack to reverse decision of the public authorities in respect of amendments of Planning Permissions, Subdivision and Issuance of new subdivided Land Title as well as Planning Permission on the new subdivided Land Title in D2’s name (“the said Subdivided Title”)? Agreed Issue no 2 – Whether the plaintiffs’ grievance ought to be vindicated by way of Judicial Review against the relevant public authorities? The defendants’ contentions [61] Agreed Issues No. 1 & No. 2 are raised by the defendants. The defendants contend that the plaintiffs cannot claim for reliefs in the Re - ASOC prayers [1] to [6] by way of a writ but must file for reliefs via a judicial review. The purported rational advanced by the defendants was that prayers [1] to [6] are predominantly an issue relating to public law and the plaintiffs must file for judicial review under O 53 of the Rules of Court 2012. [See Defendants Written Submissions paragraph 22]. [62] The defendants rely on the Federal Court case of Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145, 172 ,173 , the High Court case of Sarjit Singh @ Ramday v Lembaga Pembangunan Perumahan Dan Bandar [2015] MLJU 1014 and Perdana Parkcity Sdn Bhd v Government Of Malaysia & Ors [2016] MLJU 890. Analysis of the court [63] In my mind, Agreed Issues No 1 and No 2 must both be answered in the negative. The plaintiffs are correct to file for their reliefs by way of a writ. The objection raised by the defendants are with respect misconceived. [64] Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145 FC, the High Court case of Sarjit Singh @ Ramday v Lembaga Pembangunan Perumahan Dan Bandar [2015] MLJU 1014 and Perdana Parkcity Sdn Bhd v Government Of Malaysia & Ors [2016] MLJU 890 relied on by the defendants are all cases where the defendants are public authorities or statutory bodies. [65] Where the defendants are public authorities or statutory bodies, the law is clear that a plaintiff must file for judicial review under O 53 of the Rules of Court 2012. [See Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145 FC at Held 3, para 4 and 61 and Khairul Izman Kamal v Lembaga Jurutera Malaysia [2023] 3 MLRH 250 HC. [66] In the instant case before me, the plaintiffs are suing the defendants who are not public authorities or statutory bodies based on private law. Their causes of actions are premised on contract i.e. breaches of the terms of the SPAs and in tort for misrepresentations. Therefore, the filing by way of a writ to vindicate their rights against the defendants is correct. [67] I now consider Agreed Issues no 3 and 4 together as they are related. Agreed Issue no 3 - Whether the SPAs entered by the respective plaintiffs provide that D1 and D2 have agreed to (i) build 110 bungalow units / villas and (ii) provide a Refuse Chamber in the LFV Project? Agreed Issue no 4 - Whether D1 and D2 breached the SPAs with the plaintiffs in failing to (i) build 110 bungalow units / villas and (ii) provide a Refuse Chamber in the LFV Project? Contention of the plaintiffs in respect of the defendants’ alleged failure to build 110 bungalow units / villas [68] I start with the contention of the plaintiffs that D1 and D2 breached the SPAs with the plaintiffs in failing to build 110 bungalow units / villas before I consider the Refuse Chamber claim. [69] In addition to this contention on the alleged failure to build 110 units, the plaintiffs in their Written Submissions [paragraphs 30 – 56] now mount an additional submission that the SPA expressly provide for an exclusive housing development on the Master Land. The plaintiffs rely on : i. The Preamble to the SPAs; ii. The Plans in the First Schedule: and iii. Clause 13 Contention of the defendants in respect of the defendants’ alleged failure to build 110 bungalow units / villas [70] The defendants deny that the Preamble to the SPAs and the plans in the Schedules to the SPAs have contractual force. [See defendants’ Written Submissions paragraphs 55 and 56]. [71] The defendants rely on the wording at paragraph 6 of the Preamble to the SPAs. The defendants further rely on the testimony during the trial where DW1 gave evidence that the Preamble and the plans in the Schedules to the SPA are merely for the purpose of identifying the parcels purchased by the respective plaintiffs. [E169/13(WSPW1)], Q&A15]. Analysis of the Court [72] I begin with the reliance by the plaintiffs on the Preamble to the SPAs before I consider their reliance on the Plans in the First Schedule and then the reliance on clause 13 of the SPAs. Can a house buyer rely on the Preamble of the SPAs to bind the developer? [73] The Preamble to the SPAs [B2 page 34] provides that :

D2 granted to D1 the absolute right to develop the Master Land as “a housing development” (See paragraph 1 of Preamble);

D1 is developing the Master Land “as a housing development known as Lakefront Villa @ Cyberjaya.” (See paragraph 5 of

And whereas the Vendor has agreed to sell and the purchaser has agreed to purchase a parcel with vacant possession distinguished with the particulars as stated in Section 3 of the Sixth Schedule hereto which is delineated and shaded green in the Delineation Plan measuring the area as stated in Section 3 of the Sixth Schedule hereto which is in turn delineated and shaded red in the Site Plan together with a building to be erected thereon in accordance with the plans approved by the Appropriate Authority (hereinafter referred to as “the said Building”) (“hereinafter referred to as “the said Parcel”), subject to the terms and conditions hereinafter contained.” (See paragraph 6 of Preamble). [Emphasis added] [74] The plaintiffs contend that the Preamble binds D1 and D2 to develop the Master Land strictly “as a housing development known as Lakefront Villa @ Cyberjaya” and not to carve out an area from the Master Land and build a commercial component on the Master Land. [75] The plaintiffs rely on three reasons – i. Based on caselaw; ii. Based on Parliament’s amendments in 2015 to the Housing Development (Control and Licensing) (Amendment) Regulations 2015 (PU(A) 106/2015); and iii. Based on the “maximum protection for home buyers” approach in PJD Regency. First reason – caselaw Third reason - Based on the “maximum protection for home buyers” approach in PJD Regency. [76] I will consider the first and third reasons together as they are related. Does a preamble also known as a recital in an agreement have contractual effect? [77] In 1995 the Court of Appeal in Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719 CA ventured the view that a recital in an agreement may have contractual effect in an appropriate case. [78] Gopal Sri Ram JCA said at paragraphs 746 to 748 - “It is a cardinal rule in the interpretation of contracts that recitals may be taken into account as an aid to construction and this is all the more so where there is ambiguity in the document. Further, in an appropriate case the Court may construe a recital as carrying with it an obligation to carry into effect that which is recited. … Authority for the proposition that any words in a contract which show an agreement to do a thing amounts to an obligation and that no special language is necessary is to be found in Aspdin v. Austin [1844] 1 QB 671, where Lord Denman said that: where words of recital or reference manifested a clear intention that the parties should do certain acts, the Courts have from these inferred a covenant to do such acts, and sustained actions of covenant for the non-performance, as if the instruments had contained express covenants to perform them. … Applying these principles of construction, it is my considered view that although there is no mention of an option anywhere else in the tenancy agreement save in the recital, objectively tested, it was the intention of the parties that the respondents shall have an option to renew the tenancy for a further two-year period. The recital, in the circumstances of the present case, creates a right in the respondents to such an option and in the appellants, and all those who take the land subject to the tenancy, a corresponding obligation to honour that option.” (Emphasis added) [79] Luggage Distributors was decided in 1995. Fast forward to 2019 the Court of Appeal in Abdul Razak Jundar Khan & Ors v Mustapha Mohammed & Ors [2020] 2 CLJ 769 considered it trite law that recitals of an agreement form part of an agreement. [80] Ahmad Asnawi JCA said - “[24] The recitals to the settlement agreement is further evidence of the agreement's purport and intention of the parties therein ... It is trite law that recitals of an agreement forms part of an agreement - see Luggage Distributors (M) Sdn. Bhd. v. Tan Hor Teng & Anor [1995] 3 CLJ 520; [1995] 1 MLJ 719.” (Emphasis added). [81] In my view the time has come for the courts to declare affirmatively that in Malaysia a preamble also known as a recital to a SPA binds a developer to his promise stated in a preamble / recital to the house buyer. The developer is not allowed to wriggle out of his promise by contending that a preamble to the SPA is a mere puff and has no contractual force. For the difference between a puff and a statement that has contractual effect see Louisa Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 (CA). Application to facts [82] The preamble to the SPAs [B2 page 34] at paragraphs 1 and 5 state clearly and unambiguously that D1 and D2 will develop the Master Land strictly “as a housing development and that housing development will be known as Lakefront Villa @ Cyberjaya”. Nowhere is it qualified that D1 and D2 can or will or reserve the right to carve out an area from the Master Land to build a commercial component on the Master Land. [83] I am also of the view that, based on the trilogy of apex courts’ pronouncements in Ang Meng Lee, PJD Regency and Remeggious Krishnan - that a statutory contract under the HDA 1966 must be interpreted in a way which ensures the “maximum protection for home buyers” - the preamble binds D1 and D2 to develop the Master Land strictly “as a housing development. D1 and D2 are not allowed to carve out an area from the Master Land to build a commercial component on the Master Land. Second reason - Based on Parliament’s amendments in 2015 to the Housing Development (Control and Licensing) (Amendment) Regulations 2015 (PU(A) 106/2015) [84] On 01-07-2015, the Housing Development (Control and Licensing) (Amendment) Regulations 2015 (PU(A) 106/2015) came into force. It introduced a (new) SPA in Schedule H which mandates, in clause 35, as follows : “The Preamble and the First, Second, Third and Fourth Schedules shall form part of the Agreement and shall be read, taken and construed as essential part of the Agreement.” (Emphasis added) [85] To my mind, the 2015 amendments by Parliament merely codifies what is existing law. The amendments further support the plaintiffs’ case. [86] I next consider the plaintiff’s contention that the plans in the First Schedule to the SPAs have contractual effect and bind D1 and D2 to provide for an exclusive housing development on the Master Land. The Plans in the First Schedule to the SPAs [87] The plans relied on by the plaintiffs are the Site Plan / Layout Plan and Delineation Plan. [See plaintiffs Written Submissions paragraphs 43 to 49]. [88] The plans can be seen in B2 paragraphs 47 and 57. These plans are part of the First Schedule and are stated in clause 34 of the SPAs to “form part of the Agreement and shall be read, taken and construed as an essential part of this Agreement.” (Emphasis added). [89] Clause 34 of the SPAs provides : “The First, Second, Third and Fourth Schedules shall form part of the Agreement and shall be read, taken and construed as an essential part of this Agreement.” (Emphasis added) [90] The Preamble to the SPAs at paragraph 4 also states that D1 had obtained the approval of MPS in respect of its Building Plan (which phrase includes the Site and Layout Plans) annexed in the First Schedule. [91] Clause 34 of the SPAs read with the Preamble to the SPAs at paragraph 4 therefore put a contractual obligation on D1 that D1 will develop the LFV Project in accordance with the Site Plan / Layout Plan and Delineation Plan. [92] So, what do the Site Plan / Layout Plan and Delineation Plan show? [93] They show when counted a total of 110 villas to be built on the Master Land. [94] It is significant that these plans do not show an existing commercial component or any future commercial component reserved for development on the Master Land. [95] In conclusion, clause 34 of the SPAs read with the Preamble to the SPAs at paragraph 4 and the Site Plan / Layout Plan and Delineation Plan bind D1 and D2 to develop the Master Land strictly “as a 110 villas housing development. D1 and D2 are not allowed to carve out an area from the Master Land to build a commercial component on the Master Land. [96] I now consider the plaintiffs’ reliance on clause 13 of the SPAs. Clause 13 of the SPAs Analysis of Court [97] In my view, clause 13 of the SPAs is not relevant to Agreed Issues No. 3 & No. 4. Clause 13 relates to the obligation on D1 to build the parcel in accordance to the Fourth Schedule of the SPAs. [98] I now move on to consider the contention of the plaintiffs that D1 and D2 breached the SPAs with the plaintiffs in failing to build a central Refuse Chamber. Contention of the plaintiffs in respect of the defendants’ alleged failure to build a central refuse chamber as part of the common property / facilities for the use of all the residents [99] I observe that Agreed Issues 3 and 4 actually refer to a claim to provide a Refuse Chamber in the LFV Project. This is now clarified by the plaintiffs in its Written Submissions at paragraph 101 to refer to “a claim to provide a central Refuse Chamber, as part of the common property / facilities, for the use of all the residents”. [100] The plaintiffs claim that D1 is under an obligation to build a central Refuse Chamber, as part of the common property / facilities for the use of all the residents. The plaintiffs rely on the following provisions of the SPA and say : i. Clause 35(d) defines common property as “so much of the land as is not comprised in any parcel ... including refuse chambers ... and all other facilities and installations used or capable of being used or enjoyed in common by all the purchasers.” ii. Clause 17 obliges D1 to construct the common facilities and provide the services of collection of refuse as specified in the Second Schedule. iii. The Second Schedule describes the services to include the “maintenance and upkeep of all common property (including the landscaped area and refuse collection center)”. The defendants’ contention [101] The defendants say D1 is not under an obligation to build a central Refuse Chamber, as part of the common property / facilities for the use of all the residents. [See defendants’ Written Submissions at paragraphs 111 to 126 and Reply Written Submissions at paragraphs 51 to 53]. Analysis of the court [102] As I see it, this issue involves the interpretation of clauses 17[1], 35[d] definition of “common property” and the list of common facilities and services in the Second Schedule to the SPAs. [103] The starting point must be to ask the question - Does clause 17 [1] of the SPAs impose an obligation on D1 the vendor to construct at its own costs and expense “a central Refuse Chamber, as part of the common property / facilities, for the use of all the residents” as alleged by the plaintiffs? [104] I note that clause 17 [1] of the SPAs draws a distinction between construction of the common facilities by D1 and the provision of services by D1. This distinction is also seen in the second schedule to the SPAs which has a list of common facilities in part (a) and a separate list of services to be provided by D1 in part (b). [105] The second schedule to the SPAs which has a list of common facilities in part (a) does not state a central Refuse Chamber. Therefore clause 17[1] of the SPAs does not impose an obligation on D1 to construct at its own costs and expense “a central Refuse Chamber, as part of the common property / facilities, for the use of all the residents” as alleged by the plaintiffs. [106] The Second Schedule part (b) to the SPAs sets out a list of services to be provided by D1. This includes the maintenance and upkeep of a “refuse collection centre”. These services had ceased when the plaintiffs/purchasers took vacant possession of the Parcels under clause 17(2) of the SPAs. [107] The definition of common property in clause 35(d) of the SPAs does not assists the plaintiffs’ contention. To my mind, this is only a general definition which does not give rise to a specific obligation to build “a central Refuse Chamber”. This is made clear at the beginning of clause 35 which states “In this Agreement, where the context so admits-” [108] A general definition term cannot override the specific obligation imposed on D1 as set out in clause 17 [1] of the SPAs read with the Second Schedule part (a) which has a list of common facilities to be built by D1 which does not state any central Refuse Chamber. [109] If we accept the plaintiffs’ contention it will lead to a reductio ad absurdum, (Latin for "reduction to absurdity"), as the definition of common property in clause 35(d) of the SPAs includes “lifts”. There are no lifts listed as common facilities in the Second Schedule part (a) to the SPAs. If the plaintiffs are right in their argument, D1 and D2 will also have to build lifts as part of the common facilities. [110] In conclusion, I rule that D1 and D2 did not breach the SPAs with the plaintiffs in failing to build a central Refuse Chamber. Agreed Issues 3 and 4 must be answered in the negative. Agreed Issue 5 - Whether D2 breached the Deed of Mutual Covenants with the plaintiffs in failing to (i) build 110 bungalow units / villas and

(ii) provide a Refuse Chamber in the LFV Project? [111] This issue has been dropped by the plaintiffs since it’s not submitted on by the plaintiffs’ counsel. Issue 5 must be answered in the negative. Agreed Issue 6 - Whether the 3rd defendant (“D3”), on behalf of and / or in complicity with D1 and D2 made the representations (“Representations”) set-out in paragraph 39 of the Re - ASOC? Plaintiffs’ submissions [112] The plaintiffs pleaded in paragraph 39 of the Re - ASOC that D3 on behalf of and / or in complicity with D1 and D2 made representations in brochures and Site Plans of the LFV Project published in D3’s website [E44/7-18 (B4)], D3’s Newsletters for the period July - December 2013 and the period January – June 2014 [E44/19-21 and 22-24(B4)]; and in a model of 110 bungalow units for the LFV Project in the MCT showroom [E44/25-27(B4)]; [“Representations”] that - i. “The gated and guarded development features just 110 exclusive luxury villas surrounding a panoramic lake – a picturesque retreat promising privacy and quiet respite”; ii. “The gated and guarded development has just 110 exclusive villas”; [113] The plaintiffs pleaded in paragraph 61 of the Re - ASOC that the Representations proved to be false; and in paragraph 64 of the Re - ASOC that the Representations by the defendants were made knowingly, without belief in its truth, or recklessly not caring whether it was true or false. The defendants’ submissions [114] The defendants submit that the plaintiffs did not rely on the Representations. [115] The defendants also submit that the brochures relied on by the plaintiffs contain express “disclaimers” as follows :-

“The information contained in this material is subject to change and cannot form part of an offer or contract. All renderings are artist’s impressions only. All measurements are approximate. While every reasonable care has been taken in preparing this material, the developer cannot be held responsible for any inaccuracy. All the above items are subject to variations, modifications and substitutions as may be required by the Authorities or recommended by Architect or Engineer.” [E44/11(B4)]; [E145/3(B5)]. The enlarged page can be seen in D 1 p 16.

(ii) “The information contained in this material is subject to change without notification as may be required by relevant authorities or the developer’s consultants and cannot form part of an offer or contract. Actual built up of units may vary slightly from measurements given. Whilst every care is taken in providing this information, the owner, developers and managers cannot be held liable for variations. The name of the developments is subject to approval by relevant authorities. All illustrations and pictures are artist’s impression only. The items are subject to variations, modifications and substitutions as may be recommended by the Company’s consultants and/or relevant approving authorities.” [E44/34(B4)]; [E145/4(B5)]. The enlarged page can be seen in D 1 page 17. Analysis of the court Did D3 make the Representations? [116] It is clear that D3 made the Representations. [117] The prominent use of D3’s logo, the repeated use of the phrase “our project” by D3, the Newsletters being referred to as “MCT Newsletter” and the information on D3’s website shows that D3 took ownership and promoted the LFV Project. [118] Yaw Sheng Fung (“DW1”) who is a director of D1 testified that D3 was used as part of the “branding” of the Project to create confidence in the public. [119] He explained [NOE (19-05-2023) from line 30 (page 49) to line 20 (page 61).] that when the project was launched in 2014, D1 was an unknown entity whilst D3 was a well - known and reputable developer [See NOE (19-05-2023) at lines 5 – 16 (page 31)] with a proven track record. D1 therefore leveraged and took advantage of D3’s name and reputation as part of the “branding”. And D3 allowed D1 to do so. That explains why D3’s logo was used in the Brochures and Newsletters. He went further to say that since the Newsletters were that of D3, there is no mention whatsoever of D1 being the developer of the LFV Project. [120] The next piece of incriminating evidence is Yaw Sheng Fung / DW1’s business card. [NOE (19-05-2023) from line 20 (page 32) to line 5 (page 39.] [121] DW1 is a director of D1 but is not an employee of D3. Yet he was provided with a business card that carries the MCT name and logo and refers to DW1 as the Director, Development which he explained meant that he was the Project Director. There is nothing in the card that refers to D1. He candidly admitted to giving this card to “a lot of parties”. [122] It is clear that D3 held DW1 as speaking on its (D3) behalf on all matters relating to LFV Project and when DW1 spoke to the plaintiffs / purchasers of LFV, he spoke on behalf of D3. Reliance [123] The defendants submit that the plaintiffs did not rely on the Representations. I do not accept this submission. PW1 has testified in his Q and A 5 that – Q Please explain the background by which you and your wife came to purchase Unit C-02. A In early 2015, my wife and I were looking to purchase a landed property somewhere in Cyberjaya as we were both working there. We visited a Property Expo at Cyberview Lodge Resort in Cyberjaya, where we came across a booth promoting developments and projects by MCT Berhad (“MCT”). One of the projects that was being promoted was Lakefront Villa. We saw the Diorama, brochure and promotional material and were attracted to the Bungalows/Villas in Lakefront Villa. [124] The testimony by PW1 can be treated and accepted as evidence given by PW1 on behalf of all the plaintiffs. As stated earlier by me, in the interest of saving time and cost, the parties have recorded an agreement [E184] on the plaintiffs’ evidence in the course of the Trial as follows - “In the interest of saving time and cost, based on the Plaintiffs’ counsel information that all the Plaintiffs had given authority to Somasundaram a/l Nagappan to speak for them, the Defendants have no objections to the proposal by the Plaintiffs that the evidence of Somasundaram a/l Nagappan, given in Examination-in-Chief, Cross-Examination and Re-Examination, be treated and accepted evidence given by these witnesses on behalf of all the Plaintiffs, subject to the applicability, credibility and/or weight of the same to their individual circumstances to be determined by the Court and/or argued (if any) during submissions before the Court.” [125] I would also say that when a developer and its partners made representations on their websites, newsletters, brochures and in the show model in its show room the court can assume there is reliance on such representations by the house buyers when making their purchases. [126] Support for such an approach can be seen in the case of Toh Shu Hua & Ors v Wawasan Rajawali Sdn Bhd & Anor [2023] 2 CLJ 310. Akhtar Tahir J on the issue of reliance said at paragraphs [14] – [15] : “[14] In this case the positive assertions were contained in the brochures published to market the sale of the apartment to which the public had access to, including to the plaintiffs. The positive assertion of the project was also made by the sales pitch of the sales person. The publication of the brochures for sale of apartment as well as the sales pitch of the sale executives and construction of sales galley are common features in the sale of properties in Malaysia which this court can take judicial notice of. [15] In the light of this, it is unnecessary for each of the plaintiffs to testify in what manner they were individually convinced to purchase the apartments. Even without the oral testimony of each plaintiff, it can be inferred that each of the plaintiff was induced to buy the property based on any of the sale methods employed by the defendant.” (Emphasis added) The plaintiffs need not show that when making their purchases they relied mainly or solely on the Representations [127] The plaintiffs house buyers also need not show that when making their purchases they relied mainly or solely on the Representations. It is sufficient if the Representations were one of the factors they relied on. See Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 FC at [297]. [128] In the Federal Court decision in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 Gopal Sri Ram JCA said at paragraph 297 : “The traditional view adopted by jurists of great learning is that a litigant who invokes the doctrine must prove that he was induced by the conduct of his opponent to act in a particular way. However, having undertaken a careful examination of the authorities, we are of opinion that this requirement is not an integral part of the doctrine. All that a representee (which term includes one who has received encouragement in the sense we have discussed earlier) need do is to place sufficient material before a Court from which an inference may fairly be drawn that he was influenced by his opponent's actings. Further, it is not necessary that the conduct relied upon was the sole factor which influenced the representee. It is sufficient that "his conduct was so influenced by the encouragement or representation... that it would be unconscionable for the representor thereafter to enforce his strict legal rights." (Per Robert Goff J. in Amalgamated Investment (supra) at page 105 of the report.)” (emphasis added) The burden shifts to the developer to prove that the house buyers did not rely on their representation [129] When the court can presume from the evidence presented that there is a reliance, the burden shifts to the developer to prove that the house buyers did not rely on their representation. See Greasley v Cooke [1980] 3 All ER 710 where Lord Denning MR said at 713 : “The first point is on the burden of proof, Counsel for the defendant referred us to many cases, such as … Brikom Investments Ltd v Carr [1979] 2 All ER 753 at 759, [1979] QB 467 at 482–483 where I said that, when a person makes a representation intending that another should act on it — 'It is no answer for the maker to say: “You would have gone on with the transaction anyway.” That must be mere speculation. No one can be sure what he would, or would not, have done in a hypothetical state of affairs which never took place … Once it is shown that a representation was calculated to influence the judgment of a reasonable man, the presumption is that he was so influenced.' So here... There is a presumption that she did so relying on the assurances given to her by Kenneth and Hedley. The burden is not on her but on them to prove that she did not rely on their assurances. They did not prove it, nor did their representatives. So, she is presumed to have relied on them. So, on the burden of proof it seems to me that the judge was in error.” (Emphasis added) Disclaimer in the brochures [130] The defendants relied on the existence of two disclaimers in the brochures [E44/11(B4)]; [E145/3(B5)]. The disclaimers appear in very small font. The enlarged pages can be seen in D1 pages 16 and 17. [131] There is no disclaimer on the Representations by D3 in its website [E44/7 (B4)], MCT Newsletters in 2013 and 2014 [E44/21 and 24 (B4)]; and in a model of 110 bungalow units for the LFV Project in the MCT showroom [E44/25 and 26 (B4)]. A disclaimer that cannot be read by the normal eyes [132] The print of the Disclaimer was so minute that they could not be read in court during Trial. The defendants had to produce a Bundle of Documents to include an “enlarged copy of the fine print” so that they could be read [D1 pages 16 and 17]. The defendants’ witness Yaw Sheng Fung / DW1 a director of D1 himself testified - RS Can’t even see the fine print, you know. YAW Too fine. RS Yes. I can’t see the fine print, My Lord. .. JT There’s a blown-up version, My Lord. [133] In my view the disclaimer in the brochures cannot be relied on by the defendants as it is printed in so fine a print that it can’t be read by the normal eyes. A disclaimer that cannot be read by the normal eyes has no valid legal effect. [134] Support for the proposition that a disclaimer that cannot be read by the normal eyes has no valid legal effect can be seen in Toh Shu Hua & Ors v Wawasan Rajawali Sdn Bhd & Anor [2023] 2 CLJ 310. Akhtar Tahir J said - “[20] The court cannot accept the arguments of the defendants that the brochure had an exclusion clause which safeguarded the defendant from any discrepancy in the description of the project. For one, the exclusion clause was in a fine minute wording at the bottom of the page. Further in marketing the project, there must be a grain of truth in the promise made even if not fully accurate and even if there is an exclusion clause.” (Emphasis added) [135] The defendants rely on Bruce Elwyn Davey & Anor v Bandar Raya Development Bhd [2021] MLJU 2893 HC where the High Court held that the disclaimer appearing at the brochure means that the representations made therein were not binding. This case, however, does not assist the defendants as it is clear that in Bruce Elwyn the disclaimer can be read with the naked eyes. This is what Mohd Arief Emran Arifin JC said - “[43] Finally, I also find that the fine print appearing in the said instrument explains clearly that the said brochure and representations are not binding on the Defendant. It was clearly stated: - “All information contained herein in respect of BDRB’s proposed development is strictly private and confidential and serves as information to the recipient only. It is not intended and shall not be treated as an offer for sale to the recipient and shall not be binding on BDRB. The contents of all information contained herein may be subject to change.” Therefore, these representations would not be binding on the Defendant.” [Emphasis added] [136] In conclusion, D3 on behalf of and / or in complicity with D1 and D2 did made the Representations set-out in paragraph 39 of the Re - ASOC. The disclaimer has no legal effect. The Representations amounted to a collateral warranty [Siti Shamsiyah AB Karim v Melombong & Perumahan Sdn Bhd [2013] 10 MLJ 303 HC] and an estoppel against the defendants. Though estoppel was not pleaded by the plaintiffs, it can be invoked against the defendants based on the three grounds set out in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 at 292 FC. Agreed Issue 6 is therefore answered in the affirmative. Agreed Issue 7 - Whether D3 : i. Was actively involved and / or had control of the management and business activities of D1 and D2 in respect of the LFV Project and / or ii. Represented and / or held itself out as being responsible for and / or supporting and backing-up the LFV Project? [137] Agreed Issue 7 is also answered in the affirmative for the reasons set out by me when answering Agreed Issue 6 above. Agreed Issue 8 - Whether the defendants made the Representations knowingly without belief in its truth or recklessly not caring whether they were true or false? [138] I need not answer this issue in view of my findings that D1 and D2 are in breach of contract in respect of the SPAs and the defendants are bound by their Representations to the plaintiffs under a collateral warranty and estoppel. Agreed Issue 9 - Whether, at all material times, the defendants were acting collectively and / or represented and / or held themselves out as operating as a single economic entity for all matters and purposes related to the LFV project? [139] For the same reasons as for Agreed Issue 8 there is no necessity for me to consider this ground. Agreed Issue 10 - Whether the plaintiffs’ claims against the defendants based on legitimate expectation that amongst others the defendant would construct 110 bungalow units / villas in LFV Project is plainly and obviously unsustainable? [140] I do not need to consider this issue since it’s not relied on and submitted on by the plaintiffs’ counsel. Agreed Issue 11 - Whether the proper party to bring the action herein is the Joint Management Body instead of the plaintiffs? Agreed Issue 12 - Whether the plaintiffs (comprising 32 villa / bungalow out of 86 units of houses) have the locus standi to bring this action? [141] Agreed Issues 11 and 12 will be considered together. [142] The defendants contend that the plaintiffs do not represent all the purchasers of the 86 Villas and that, based on Section 143 of the Strata Management Act 2013 (“SMA”), it is only the Joint Management Body (“JMB”) that has the locus standi to sue. [143] In my view, the law is settled that a Sale and Purchase Agreement is an individual contract between a house buyer and the developer seller. The house buyer is therefore entitled to pursue his individual contractual rights, as a private cause of action, without the need to rely on the JMB to sue on his behalf. To impose such a burden would, in my respectful view, be a travesty of justice. [144] Such an interpretation is also consistent with the trilogy of decisions of the Federal Court that a statutory contract under the HDA 1966 must be interpreted in a way which ensures the “maximum protection for home buyers” [See Ang Meng Lee, PJD Regency and Remeggious Krishnan]. [145] In addition, the following four cases support my view. [146] In Hampshire Residences Joint Management Body v Zelan Development Sdn Bhd [2014] 10 MLJ 471, the JMB for Hampshire Residences sued the developer in respect of defects in the common facilities (the interface intercom, the swimming pool and the water features). The developer succeeded in its striking-out application on the basis that the JMB did not have the “legal standing” to make the claim. Rosnaini Saub J said at paragraphs [6] – [10] : “[6] I think this case brought to the front a very interesting question, that is, whether the plaintiff as JMB is entitle in law to sue the defendant as developer for defects of common properties or facilities. ... [7] ... it is obvious that the plaintiff's claim is related to defect of the common properties and for the rectification costs thereof. It is my considered opinion that the claim of this nature is and should be based on a contractual claim. In this respect, only the purchasers of the condominium units have privity of contract with the defendant vide their respective sale and purchase agreement. Under the standard sale and purchase agreement (exh D1 of the defendant's affidavit in support), the duty to construct the common properties in good and workmanlike manner fell on the defendant as developer. Clause 27.1 of the sale and purchase agreement made it the responsibility for the defendant to make good any defects (to the individual parcel unit and to the common properties) within the stated defect liability period. In other words, the defendant as the developer is under the contractual duty to the purchasers, individual and collectively, to made good or rectify any defect to any particular parcel or to the common facilities. [8] The plaintiff is a separate entity from the purchasers. Its duty, obligation and powers in so far as it relates to common property is the same as that of a management corporation established under the Strata Title Act 1985, to wit, the maintenance and management of the common property. In my opinion the scope of duty of the plaintiff in maintaining and managing the common properties does not extend to suing the defendant for defects arising out of the construction of the common facility. Defects arising out of the construction of the common facilities give rise to a contractual claim against the developer/defendant by the purchasers but not the plaintiff. .. [10] In the circumstances, I agree with the defendant's counsel that the plaintiff does not have a legal standing to make the present claim against the defendant. In other words, the plaintiff has no reasonable cause of action recognised by the law.” (emphasis added) [147] In Re Bandar Kinrara Properties Sdn Bhd (in liquidation) [2021] MLJU 423, Nadzarin Wok Nordin JC said at paragraphs [45] – [62] : “[45] ... this Court will now address the issue of whether the JMB can act for the purchasers of the units in Duet Residence in respect of the matters under the SPA’s. [48] A reading of the said section 21 SMA does not state any express power for the JMB to assume the rights of the purchasers under the SPA’s.. [51] I also hold that the JMB cannot enforce the rights under the SPA's as the JMB is not a party to the SPA's; the locus classicus of such a principle can be found in Kepong Prospecting Ltd v Schmidt [1968] Ac 810 where the Privy Council had held that a contract cannot, as a general rule, confer contractual rights or impose contractual obligations arising under it on any person except the parties to it. The parties to the contract must necessarily be the persons who signed the agreement. [52] Thus, the JMB, ... cannot legally assume the rights of the purchasers under the SPA for the simple reason that the JMB is not privy to the SPA's. It is the purchasers, and they alone, who can exercise their rights under the SPA's and no one else in the absence of any evidence before this Court of any assignment of rights or novation of the SPA's to the JMB. [53] The JMB has attempted to rely on section 143(2) of the SMA to support their contention that they are entitled to represent all the purchasers in the claim for the Stakeholder Sums. I have had the opportunity to carefully read the said section 143(2) of the SMA and find that the said section only deals with representation in proceedings. .. [55] It is also pertinent to note that no mention whatsoever is made in the said section 143(2) for the JMB to take over and/or assume the rights of the purchasers under the SPA's or other agreements for that matter. As mentioned earlier, the said section in my view only relates to the right of the JMB to represent the parcel owners or proprietors of the parcels who are jointly entitled to take the aforementioned legal proceedings for or with respect to the common property. .. [62] Hence I do hold that there is no legal provision which allows the JMB to take over the rights of the purchasers under the SPA's.” (emphasis added) [148] In Dr Looi Mun Choon (bertindak di atas kapasiti sendiri and juga mewakili kumpulan pemilik-pemilik unit pangsapuri Paragon 3) v Paragon Promenade Sdn Bhd [2022] MLJU 265 Alice Loke Yee Ching JC said at paras [23] – [26] : “[23] The 1st Defendant contends that as the subject matter of the suit concerns common property, the action ought to be commenced by the JMB. In support of its contention, section 143 of the Strata Management Act 2013 is referred to. [24] The provision referred to has no application to the factual matrix of this case. [25] This provision has to do with the issue of representation in suits pertaining to common property involving parcel owners and the joint management body or management corporation relating to matters falling within the scope of the Act. [26] This is not the case here. The Plaintiffs’ case is founded on misrepresentation and breach of contract and damages are sought as a consequence. These are private law causes of action which the home buyers can institute against the developer. It is not for a management corporation or the JMB to institute against the developer in respect of these causes of action.” (Emphasis added) [149] In Dua Residency Management Corporation v Edisi Utama Sdn Bhd [2021] 1 LNS 174, the management corporation made a claim against the developer and property manager due to latent defects in a high-end condominium. Lim Chong Fong J said at paragraphs [93] – [95] : [93] The First Defendant denies that it is liable to the Plaintiff for breach of contract because this Suit is not a case of individual purchasers’ rule against the developer but a case of the management corporation rule against the developer. There is plainly no contract whatsoever between the Plaintiff and the First Defendant. That notwithstanding, the First Defendant strenuously contended that the Plaintiff cannot take any benefit of the SPA. [94] In the Singapore Court of Appeal case of RSP Architects Planners & Engineers v. Ocean Front Pte Ltd and another appeal [1995] 3 SLR(R) 653, LP Thean JA held as follows: "The management corporation had no cause of action in contract. It would be staring the language of the sale and purchase agreements to say that it was the intention of the developer and the purchasers that the provisions in their sale and purchase agreements, which related to the construction of the condominium, would run with the land. Such agreements were intended to govern the relations only between the developer and its purchasers and clearly the developer did not intend to extend the benefit of these provisions to others down the line." [95] I share Justice Thean's views. Thus, and unless the SPA is assigned or novated over by the purchasers of the Condominium to the Plaintiff, I find and hold that there is no legal standing for the Plaintiff to initiate and sustain the cause of action of breach of contract against the First Defendant. In other words, it is only the purchasers of the Condominium who can sue the First Defendant based on the SPA ...” (Emphasis added) [150] Agreed Issues 11 and 12 are therefore answered in favour of the plaintiffs. Agreed Issue 13 - Whether the plaintiffs are entitled to reliefs prayed for in the Re - ASOC, in particularly paragraphs 65(1), 65(2), 65(4), 65(5) and 65(6) of the Re - ASOC when the plaintiffs are not challenging D2’s indefeasible title (including under Section 340 of the National Land Code 1965) and registered ownership of Geran 339577, Lot 2, Bandar Cyberjaya, Daerah Sepang, Negeri Selangor (“Lot 2”) being a separate title and subdivided land now? Agreed Issue 14 - Whether the plaintiffs are entitled to any or all of the reliefs prayed for the Re - ASOC? On reliefs prayed for in paragraph 65[1] to [6], [9] and [11] of the Re - ASOC [151] Counsel for the plaintiffs has informed me that the plaintiffs are dropping the relief prayed for at paragraph 65[3] of the Re - ASOC. [152] Counsel for the plaintiffs has also informed me that if the court grants their prayer for a perpetual injunction in the Re - ASOC at paragraph 65[4], their prayers for damages in paragraph 65[9] and paragraph 65[11] of the Re - ASOC would be redundant. [153] I therefore do not need to address the issue of damages in detail since I am going to grant the declarations and injunction sought by the plaintiffs, save to say that I am not convinced by the opinion of the expert valuer for the plaintiffs that the Commercial Development would have an adverse impact on the value of the existing 86 Villas and that this adverse impact would be on a sliding scale based on the respective Villas’ proximity with the Commercial Development. [See pages 93 and 116 @ Bundle B7]. [154] In fact, recognising the difficulty in his own valuer’s methodology, counsel for the plaintiffs in his written submissions actually suggested a different approach. [See paragraph 189 Plaintiffs’ Written Submissions]. [155] Further, in my view, in certain situations proximity to a commercial development can actually enhance the value of the nearby houses. See the opinion of the defendants’ expert DW 2. [E104/27(B8)] and [E152/25(B9)]. [156] I will not grant the prayer in paragraph 65[5] of the Re - ASOC for specific performance compelling D1 and D2 to fully complete the construction of bungalow units within 36 months from the date of this Judgment. It is not appropriate for me to impose such a burden on them when such a term is not in the SPAs in the first place. [157] I will also not grant the consequential prayer in paragraph 65[6] of the Re - ASOC since the interests of the plaintiffs are secured once I grant the declarations and injunction prayed for. [158] In conclusion, declarations coupled with an injunction is appropriate to hold D1 and D2 to their contractual obligations. [See Chitty on Contracts 30th Edition 2008 Volume 1 paragraph 27 - 070 and Lauritzencool AB v Lady Navigation Inc [2005] EWCA Civ 579 CA]. On reliefs prayed for in paragraphs 65[7] and [8] of the Re - ASOC [159] For the reasons set out above in my answers to Agreed Issues 3 and 4, the plaintiffs are not entitled to the reliefs prayed for in the Re - ASOC at paragraphs 65[7] and [8]. On relief prayed for in paragraph 65[10] of the Re - ASOC [160] The plaintiffs are not entitled to the prayer for “Damages, Compensation or Reimbursement in respect of Service Charges and Sinking Fund paid by the plaintiffs” prayed for in the Re - ASOC at paragraph 65[10]. [161] This prayer, the plaintiffs submits, is premised on the fact the current 86 units are sharing the mandatory Service Charges and Sinking Fund when it ought to have been shared by 110 units. In short, the plaintiffs are paying the share that the (unbuilt) 24 Units would have paid. [162] In my view, the plaintiffs’ claim is without basis. Firstly, there is no contractual time frame under the SPAs for D1 and D2 to build the 110 units. Secondly, it is not established by the plaintiffs what is the total mandatory Service Charges and Sinking Fund payable under the SPAs. The amount payable is variable by the JMC / MC and can be varied up or down at the AGMs. Thirdly, only the JMB / MC has the authority to collect maintenance charges and sinking fund [See Sections 24, 25 and 26 SMA]. The plaintiffs have no locus standi to sue for a refund, if any, in respect of this claim. On relief for costs prayed for in paragraph 65[13] of the Re - ASOC [163] On the issue of costs, since the plaintiffs had won some reliefs and lost some reliefs prayed for, an appropriate order is for each party to bear own costs. [164] Lastly, I thank counsel for the parties for their diligent submissions which had greatly assisted me. Decision [165] Based on my grounds and findings on the agreed issues, the plaintiffs are not entitled to the prayers in the Re - ASOC at paragraphs 65[5] to [12], but are entitled to Order in Terms for prayers in the Re - ASOC at paragraphs 65[1], [2] and [4]. These are - i. A Declaration that the development project known as Lakefront Villa @ Cyberjaya constructed on Lot HS(D) 35967 PT 49802 Mukim Dengkil, Daerah Sepang, Negeri Selangor Darul Ehsan is a housing / residential development comprising of 110 units as shown in the approved Building Plans. ii. A Declaration that the development project known as Lakefront Villa @ Cyberjaya shall be used for residential purposes only. iii. An injunction be granted to restrain the defendants, whether by themselves, their servants, agents, proxies, nominees or others from howsoever carrying out and / or proceeding with the Phase 2 Commercial Development, or any commercial development, on the Land. iv. Each party to bear own costs. …………(signed)…………. Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 06th September 2023 COUNSEL: 1) Ravindran Shanmuganathan for plantiffs. (Sreenevasan Young (Kuala Lumpur)) 2) Justin Voon and Tan Ko Xin for defendants. (Justin Voon Chooi & Wing (Kuala Lumpur)) CASES REFERRED TO: 1) Abdul Razak Jundar Khan & Ors v Mustapha Mohammed & Ors [2020] 2 CLJ 769. 2) Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145 FC. 3) All Malayan Estates Staff Union v. Rajasegaran & Ors [2006] 4 CLJ 195; [2006] 6 MLJ 97. 4) Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals [2020] 1 CLJ 162; [2020] 1 MLJ 281 FC. 5) Aspdin v. Austin [1844] 1 QB 671. 6) Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 FC. 7) Brikom Investments Ltd v Carr [1979] 2 All ER 753 at 759, [1979] QB 467. 8) Bruce Elwyn Davey & Anor v Bandar Raya Development Bhd [2021] MLJU 2893 HC. 9) Dr Looi Mun Choon (bertindak di atas kapasiti sendiri and juga mewakili kumpulan pemilik-pemilik unit pangsapuri Paragon 3) v Paragon Promenade Sdn Bhd [2022] MLJU 265. 10) Dua Residency Management Corporation v Edisi Utama Sdn Bhd [2021] 1 LNS 174. 11) Greasley v Cooke [1980] 3 All ER 710. 12) Hampshire Residences Joint Management Body v Zelan Development Sdn Bhd [2014] 10 MLJ 471. 13) Kepong Prospecting Ltd v Schmidt [1968] Ac 810. 14) Khairul Izman Kamal v Lembaga Jurutera Malaysia [2023] 3 MLRH 250 15) Lauritzencool AB v Lady Navigation Inc [2005] EWCA Civ 579 CA. 16) Louisa Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 (CA). 17) Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719 CA. 18) Perdana Parkcity Sdn Bhd v Government of Malaysia & Ors [2016] MLJU 890. 19) PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor And Other Appeals [2021] 2 CLJ 441 FC. 20) Re Bandar Kinrara Properties Sdn Bhd (in liquidation) [2021] MLJU

21) RSP Architects Planners & Engineers v. Ocean Front Pte Ltd and another appeal [1995] 3 SLR(R) 653. 22) Remeggious Krishnan v SKS Southern Sdn Bhd [2023] 4 CLJ 36 FC. 23) Sarjit Singh @ Ramday v Lembaga Pembangunan Perumahan Dan Bandar [2015] MLJU 1014. 24) Siti Shamsiyah AB Karim v Melombong & Perumahan Sdn Bhd [2013] 10 MLJ 303 25) Toh Shu Hua & Ors v Wawasan Rajawali Sdn Bhd & Anor [2023] 2 CLJ 310. 26) Veronica Lee Ha Ling & Ors v. Maxisegar Sdn Bhd [2009] 6 CLJ 232; [2011] 2 MLJ 141. LEGISLATION REFERRED TO: 1) Order 53 of the Rules of Court 2012. 2) Section 16m and Section 16q of the Housing Development (Control and Licensing) Act 1966. 3) Sections 24, 25, 26 and 143 of the Strata Management Act 2013. 4) Section 340 of the National Land Code 1965.