Ahmad Husairi Bin Ali v Suditasia (M) Sdn. Bhd. (WA-22NCvC-96-02/2022)

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1 IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA SUIT NO.: WA-22NCvC-96-02/2022

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Schedule H SPA (‘Category A Plaintiffs’); (b) SPA post-Certificate of Completion and Compliance (‘CCC’) (‘Category B Plaintiffs’); and (c) Sub-sale SPA (‘Category C Plaintiffs’). The Defendant exemplified its argument by way of a diagram in ANNEXURE B to the Written Submissions (encl. 70) as reproduced below: Types of SPA

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Schedule H (“P23”) Kee (“P14 & P15”) (“P26 & P27”) Ali (“P8”) Teng (“P12 & P13”) 11.Rahsidi Bin Hussain & Marhamah Binti Mohamad (“P16 & P17”) 14.Mohamed Tajudeen Bin Chowkkadali (“P2”) Post CCC 1.Syed Muhammad Rafie Bin Syed Salim & Rosnah Binti Ngah (“P10 & P11”) 3.Mohammad Ibrahim Shah (“P9”) Subsale Imam Sahib (“P23”) & Sumathi Chandraskhar (“P24 & P25”) (“P20”) Batcha Bin S.M. Ziaudeen (“P21”) 20. Mr. Chris Tan submitted for the Defendant that – (a) the Plaintiffs ventured into trial on the sole basis of Clause 11, Schedule H SPA disregarding the fact that there are other categories of Plaintiffs; (b) PW1 (P23) who purchased one unit directly from the Defendant, also purchased another unit through sub-sale. When asked under cross-examination, PW1 conceded that Clause 11, Schedule H SPA is not stated in his sub-sale SPA; (c) the other Plaintiffs produced and relied on different types of SPAs which do not contain a provision which is the same as Clause 11, Schedule H SPA. None of the Category B Plaintiffs or Category C Plaintiffs were called to give evidence. Thus, it is not sufficient for PW1 (P23) to represent all the Plaintiffs to give evidence on their purported losses; and (d) whilst the Defendant may be required to apply for the strata title under the STA 1985, the Defendant does not owe similar obligations to the Category B Plaintiffs and Category C Plaintiffs. As such, the 1st Issue must be confined to only the Category A Plaintiffs. 21. After having read the Defendant’s submission on the above point of argument and the Plaintiffs’ reply to the same, on 14.5.2025, I directed the Plaintiffs’ solicitors to tabulate the agreement which was entered into by each Plaintiff with complete particulars such as the date, type of agreement, relevant Clauses governing separate strata title or transfer of title and the pages in the Common Bundle of Documents where the agreements are located. 22. The Plaintiffs’ solicitors produced a 14-page document titled “Types of SPA”. 23. Going back to the pleadings, in the SoC, the Plaintiffs had pleaded, among others, the following: “25. Upon completion of the said condominium, the Defendant sold the condominium units to the interested purchasers, namely, the Plaintiffs. Sale and Purchase Agreement with the Defendant and/or prior purchasers who had previously bought from the Defendant. The particulars of the Sale and Purchase Agreement are as follows: … … … Strata Title Act 1985. Sale and Purchase Agreement and the Act and the Plaintiffs have the rights to obtain the 48 strata title from the Defendant. …”. 24. It is obvious that the Plaintiffs’ pleaded case was that all of them had entered into SPAs and among the terms in the SPAs is Clause 11 as quoted above. 25. However, based on the Types of SPA as prepared by the Plaintiffs’ solicitors, it can be seen that there is truth in the Defendant’s contention that there are three types of SPAs and thereby, three categories of Plaintiffs with different contractual provisions in relation to strata title and the transfer of title, namely – (a) for P1 to P8, P12 to P18 and P23, Clause 11 in the

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Schedule H SPA reads as follows: “Separate strata title and transfer of title 11. (1) The Vendor shall, at its own cost and expense and as expeditiously as possible, apply for subdivision of the said Building so as to obtain the issue of a separate strata title to the said Parcel under the Strata Titles Act 1985. (2) Upon the issuance of the strata title to the said Parcel and subject to the payment of the purchase price by the Purchaser to the Vendor in accordance with subclause 4(1) and the observance of all the terms and conditions herein provided, the Vendor shall, within twenty-one (21) days, execute a valid and registrable memorandum of transfer of the said Parcel to the Purchaser, his heir or nominee or lawful assign, as the case may be.”; (b) for P9 to P11 and P28, Clause 12 in the SPA post-CCC provides that: “12. Transfer of Title Upon the issuance of the strata title to the said Parcel and subject to the payment of the purchase price by the Purchaser to the Vendor in accordance with clause 3 hereof and the observance of all the terms and conditions herein provided, the Vendor shall as soon as practicable and/or before 12 months of the issuance of the Strata Title, execute a valid and registrable memorandum of transfer and to deposit with us as Solicitors the original strata title, current quit rent and assessment receipt, letter of consent of transfer and all other relevant documents (hereinafter referred to as “the Transfer documents” required to facilitate the transfer of the said Parcel to the Purchaser, his heir or nominee or lawful assign, as the case may be.”; (P23)] and P24 to P27, the applicable contractual provisions in the Sub-sale SPA differs as set further set out below: P18: Clause 5A in the Subsale SPA provides as follows: “Execution of Deed of Assignment Agreement the Vendor and the Purchaser shall forthwith execute and deliver to the Purchaser’s Solicitors a valid and proper Deed of Assignment of the said Property in favour of the Purchaser. Upon full payment of all Balance Purchase price by the Purchaser to the Purchaser’s Solicitors are authorised to send the Deed of Assignment for adjudication.”; P19: Clause 15 in the Subsale SPA states as follows: “15. NOTICE OF ASSIGNMENT 15.1 For the avoidance of any doubt, the Deed of Assignment by way of transfer executed by the Vendor in favour of the Purchaser shall be deemed to be effectual in law to pass and transfer the proprietary right, interest, chose in action and all legal and other remedies of the Property to the Purchaser and the concurrence of the Developer shall not be required. 15.2 A notice of the assignment given to the Developer shall be delivered by the Vendor to the Developer at or after the completion of this Agreement shall be accompanied by – (a) a duplicate stamped copy of this Agreement between the Vendor and the Purchaser of the Property; (b) a duplicate stamped copy of the Deed of Assignment between the Vendor and the Purchaser of the Property or if not available, a letter of undertaking by the Purchaser to deliver the duly stamped Deed of Assignment within fourteen (14) days after the same has been adjudicated and stamp duty paid; and (c) the Vendor’s payment of all sums and outgoings due to the Developer or the management body. 15.3 Should the assignment in respect of the Property by the Vendor in favour of the Purchaser be for whatever reason not due to the fault or default of the Purchaser not completed, the Vendor shall within fourteen Purchaser in full to the Purchaser free of interest whereupon this Agreement shall determine and become null and void and of no further effect and the Purchaser’s Solicitors shall return the Deed of Assignment to the Vendor for cancellation.”; P20: Clause 8 in the Subsale SPA stipulates that: “8. NOTICE OF ASSIGNMENT Upon their receipt of the full payment of the Balance Purchase Price, the said Solicitors shall be authorized to effect delivery express notice in writing of the Deed of Assignment, to the Developer in the manner set out in Section 22D of the Housing development (Control and Licensing) 1966 9hereinafter referred to as ‘the Delivery of Notice of Assignment”) that is the notice shall be accompanied by the following: (a) a duly stamped sales and Purchase Agreement between the Purchaser and the Vendor; (b) a duly stamped Deed of Assignment or the Purchaser’s written undertaking addressed to the Developer to deliver the same within fourteen (14) days after the same has been stamped (hereinafter referred to as “the Purchaser’(s0’s Undertaking”); and (c) full payment of all sums and outgoings due to the Developer.”; P21: Clause 8 in the Subsale SPA provides that: “8. 8.1 Simultaneous with the execution of this agreement, the Vendor shall execute a valid Deed of Assignment of the said Property in favour of the Purchaser together with Stamping Proforma in Section Five (Form PDS 15) free from all encumbrances and the parties hereto hereby expressly authorise the Purchaser Solicitors to proceed with adjudication of the said Deed of Assignment after the Deed of Receipt and Reassignment between the Vendor and the Assignee has been dated. In the event that this agreement shall be determined, the Purchaser Solicitors shall return the said Deed of Assignment to the Vendor for cancellation Provided Always that if the Deed of Assignment has been stamped, the Purchaser are duly authorised to use the Original copy thereof to claim a refund of stamp duties from the relevant authorities. 8.2 In the event that the Developer requires a Deed of Novation to be executed instead of the Deed of Assignment, the Purchaser shall execute the same within fourteen (14) days after receiving written notice from the Solicitors.”; P22: Clause 6 in the Subsale SPA states as follows: “6. 6.1 Upon the execution of this Agreement hereof the Vendor and purchaser shall forthwith execute in escrow and deliver to the office of the Purchaser’s Solicitors a valid Deed of Assignment (hereinafter referred to as “the Deed of Assignment”) to assign the Vendor’s rights title and interest in and to the said Property and under and pursuant to the Principal Sale Agreement to the Purchaser shall be kept in the custody of the Purchaser’s Solicitors for the sole purpose of adjudication and stamping and thereafter the Purchaser’s Solicitors shall hold the same as stakeholders until the Purchaser shall have settled the Balance Purchase Price and Late Payment Interest, if any, to the Vendor’s Solicitors as stakeholder. 6.2. In the event the strata title to the said Property is issued prior to the Completion Date, the Vendor shall procure the Developer’s Confirmation for direct transfer and to execute the Memorandum of Transfer in favour of the Purchaser subject to the Developer’s consent to the same and the Memorandum of Transfer duly executed shall be kept in the custody of the Purchaser’s Solicitors as stakeholders until the Balance Purchase Price and the Late Payment Interest, if any, is paid to the Vendor’s Solicitors, as stakeholders.”; P23: Subclauses 7.4 – 7.7 in the Subsale SPA provide that: “7. EXECUTION AND DEPOSIT/DELIVERY OF DOCUMENTS … 7.4. Within fourteen (14) days from the receipt of the State Authority Consent, the Vendor shall deliver and deposit with the Purchaser’s Solicitors as stakeholders the following documents:- (a) a validly executed and registrable Deed of assignment to the said Property provided that the Deed of Assignment is not being unreasonably withheld by the developer due to any non-fulfilment by the Purchaser of any conditions imposed by the Developer and/or the State Authority; (b) the current quit rent and assessment receipts and Indah Water receipts and latest maintenance receipts shall be delivered to the to the Purchaser’s Solicitors together with Discharge Documents; any other documents reasonably incumbent on the Vendor to produce for the registration of the Deed of Assignment PROVIDED ALWAYS that the Deed of Assignment is not being withheld by the Developer due to non-fulfilment of any conditions required of the Purchaser by the Developer’s Consent and/or State Authority Consent in such an event, time will be extended accordingly. 7.5. The parties hereto do hereby irrevocably authorise the Purchaser’s Solicitors to submit the valid and registrable and duly executed Deed of Assignment for the purpose of adjudication of Stamp Duty payable thereon. 7.6. The Purchaser hereby deposits at the same time the execution of this Agreement an estimated sum payable as stamp duty and undertakes to pay any short fall of the adjudicated Stamp Duty payable and any penalty thereof immediately upon request for the same by the Collector of Stamp Duty’s Office and/or by the Purchaser’s Solicitors. 7.7. The Purchaser hereby declares and confirms that although the Vendor has at the Purchaser’s request executed the Deed of Assignment or cause the Developer to do so in respect of the said Property in favour of the Purchaser the Deed of assignment is executed for the purposes of adjudication of Stamp Duty only and the acknowledgement of receipt of the consideration stated in the Deed of Assignment shall not be construed as payment in full of the consideration stated therein and the said property shall not be deemed to be transferred to the Purchaser by the Vendor until and unless the full Purchase Price has been paid by the Purchaser to the Purchaser’s Solicitors who holds it as stakeholders for the Vendor.”; P24 and P25: Clause 5 in the Subsale SPA states the following: “5. DELIVER NOTICE OF ASSIGNMENT TO THE DEVELOPER It is hereby expressly agreed between the parties hereto that the vendor and the Purchasers shall respectively deliver or cause to be delivered to the Developer at or after the completion of the sales and purchase herein a notice of assignment of the said Property pursuant to Section 22D(2) of Act 118 accompanied by the following documents: Vendor’s obligation (a) a certified true copy of the duly stamped Sales and Purchase Agreement between the Vendor and the Purchasers; (b) a copy of the duly executed and stamped Deed of Receipt and Reassignment between the Vendor and the said lender (if any); and (c) full payment of all sums and outgoings due to the Developer under the Principal Agreement as at the completion of the sales and purchase herein shall be settled by the Vendor. Purchasers’ obligation A copy of the duly executed and stamped deed of assignment between the vendor and the Purchasers.”. P26 and P27: Clause 7 in the Subsale SPA stipulates that: “7. The parties shall simultaneously with the execution of this Agreement execute a deed of assignment (“the Deed of Assignment”), effecting the assignment by the Vendor to the Purchaser of all his/her/its/their rights title and interest in, to and under the Principal Agreement together with the Said Property comprised therein and the Vendor Solicitors shall thereafter deliver the same to the Purchaser’s Solicitor’s in accordance with Clause 3 herein.”. 26. In view of the foregoing, I agreed with the Defendant that the Plaintiffs cannot rely on different clauses in respect of the Category B Plaintiffs (SPA post-CCC, namely P9 to P11 and P28) and Category C Plaintiffs [Subsale SPA, namely P18 (the SPA between Young Trenton Mark and P18) to P23 (the SPA between Lee Min Hye and PW1 (P23)) and P24 to P27] when the Plaintiffs’ pleaded cause of action was solely based on Clause 11, Schedule H SPA. 27. The 1st Issue was therefore answered in the affirmative only for the Category A Plaintiffs (Schedule H SPA, namely P1 to P8, P12 to P18 and P23). 2nd Issue: Whether the Defendant has failed to apply and obtain the individual strata title for the respective units of the Condominium in favour of the Plaintiffs within a reasonable time in accordance to the STA 1985 28. The SPAs entered into by the Plaintiffs were between 15.6.2004 and 2.10.2014 [see the list of SPA as tabulated in Appendix C in the Plaintiffs’ Supplementary Submission (encl. 78)]. 29. Hence, the applicable provision in the STA 1985 is s 8 as amended by the Strata Titles (Amendment) Act 2001 [Act A1107] which came into operation on 1.12.2001 and the Strata Titles (Amendment) Act 2007 [Act A1290] which came into operation on 12.4.2007 as quoted below: s 8 as amended by Act A1107: “Circumstances in which it is compulsory for a proprietor to apply for subdivision of a building 8. (1) The proprietor of any alienated land on which there is a completed building capable of being subdivided under section 6 shall, within the period specified in subsection (2), apply in accordance with section 10 for the subdivision of the building if at any time he has sold or agreed to sell any parcel in such building to any person. (2) The period within which the requirement of subsection (1) shall be complied with is as follows: (a) in the case of a building completed on a date after the commencement of this subsection – (i) if the sale of, or agreement to sell, any parcel of the building, or the first of such sales or agreements, took place before that date, the period is six months from that date; (ii) if the sale of, or agreement to sell, any parcel of the building, or the first of such sales or agreements, took place after that date, the period is six months from the date of the sale or agreement or the first of such sales or agreements; …”. s 8 as amended by Act A1290 and s 8A: “Circumstances in which it is compulsory to apply for subdivision of a building or land 8. (1) The original proprietor of any alienated land on which there is a building capable of being issued with strata titles shall, within the period specified in subsections (2) and (3), apply in accordance with subsections 8A(1) and 9(1) for the subdivision of the building or land if at any time he has sold or agreed to sell any parcel in such building or land to any person. (2) The period within which the requirements of subsection 8A(1) shall be complied with is as follows: (a) in the case where the sale of, or agreement to sell, any parcel of the building or the first of such sales or agreements takes place and the document that certifies the super structure stage is issued after the commencement of this Act, the period is three months from the date of issuance of the document that certifies the super structure stage; (b) in the case where the building is completed after the commencement of this Act and the sale of, or agreement to sell, any parcel of the building or the first of such sales or agreements took place before the commencement of this Act, the period is three months from the date the building is completed; (c) in the case where the building is completed and the sale of, or agreement to sell, any parcel of the building or the first of such sales or agreements takes place after the commencement of this Act, the period is three months from the date the building is completed or the sale of, or agreement to sell, any parcel of the building or the first of such sales or agreements took place whichever is the later; (d) in the case where the building was completed and the sale of, or agreement to sell, any parcel of the building or the first of such sales or agreements took place before the commencement of this Act, the period is three months from the date of the commencement of this Act; (e) in the case where the building was completed before the commencement of this Act and the sale of, or agreement to sell, any parcel of the building or the first of such sales or agreements takes place after the commencement of this Act, the period is three months from the date of the sale of, or agreement to sell, any parcel of the building or the first of such sales or agreements took place. (3) The original proprietor of any alienated land on which the building or land had been issued with the certificate of proposed strata plan under subsection 8A(8), shall apply for subdivision in accordance with subsection 9(1) within a period of one month from the date of issuance of the certificate of proposed strata plan. Application for certificate of proposed strata plan 8A. (1) For the purpose of subsection 9(1), the original proprietor of any alienated land on which the building or land is capable of being issued with strata titles shall apply for a certificate of proposed strata plan to the Director of Survey by submitting Form 10 together with the following: …”. 30. Therefore, the law clearly places a statutory duty on the Defendant as the developer to apply for individual strata titles whether within a six months’ time frame or a period of three months according to the different scenarios. There is no provision in the STA 1985 which exempts the developer from this duty. 31. In encl. 70, the Defendant conceded that to date, it has not obtained the individual strata title for the respective units in favour of the Plaintiffs. 32. However, the Defendant asked the Court to take judicial notice of the fact that the Defendant is required to engage with various authorities in the application for strata titles and as to the circumstances leading to the delay in obtaining the same. 33. The facts on the alleged unavoidable delays were pleaded in paragraphs 13.2 and 13.3 of the Defence. The relevant excerpts from the Defence are re-produced below for ease of reference: “13. Paragraphs 36 and 37 of the Statement of Claim are vehemently denied. Further, the Defendant pleads chronologically and in detailed that the events that occurred before and after the year 2019 are as follows: 13.1. The CCC was obtained on 3.3.2008 for Phase 1 and on 3.2.2009 for Phase 2. 13.2. From 2009 to 2014, due to the reason that there were still many unsold condominium units, the Defendant made efforts to conduct sales promotions including providing additional car park accessory parcel to buyers at that time. The Defendant successfully sold 90 condominium units during that period. 13.3. From 2013 to 2015, some buyers who purchased two side by side units had requested that the strata title be issued as a combined single strata title rather than as two separate strata titles. In this regard, the Defendant tried to accommodate the buyers’ requests. Numerous meetings were held between the Defendant, the Architect, and the Land Surveyor. Eventually, the Defendant decided to maintain the issuance of separate strata titles because the Defendant would have to re-apply for the development plan (“DO”) if they attempted to fulfill the request of the buyers. 13.4. As a result of the matters mentioned in Paragraphs 13.2 and 13.3, there were unavoidable delays. …”. 34. The CCC was not produced during the trial. Nevertheless, the Plaintiffs accepted the Defendant’s pleading regarding the obtainment of the CCC and DW1’s evidence that the Defendant received the CCC in 2008 for Phase 1 and 2009 for Phase 2. Despite having obtained the CCC, the Defendant failed to apply for the strata titles within the period as required under the STA 1985. 35. I have considered the chronology of events as a whole and in my view, DW1’s answer to Question 12 in his Witness Statement that “… the delay was not solely by the Defendant. Accordingly, it is unfair for the damages to be awarded based from the delay caused by other parties and not the defendant alone. …” was a clear attempt to deflect liability by attributing the delays to JUPEM, the Selangor Land and Mines Office and the Ampang Jaya Municipal Council as per DW1’s testimony in court. 36. The Defendant did not call anyone from these departments and local authority to give evidence and nor were any documents produced to substantiate the Defendant’s claim of delay by the third parties. Essentially, the Defendant refused to take responsibility and to be accountable for the delay in the obtainment of the strata titles. 37. In the upshot, I was satisfied that the Plaintiff has proven, on a balance of probabilities, that the Defendant has failed to obtain the individual strata title for the respective units in favour of the Plaintiffs within a reasonable time. 3rd Issue: Whether the Plaintiffs have suffered the following losses as the Defendant’s failure in Issue 1: (a) the Plaintiffs have been deprived of the usage and enjoyment of the property as the registered strata title owners; (b) the Plaintiffs are unable to establish a Management Corporation to manage all affairs of the condominium freely as the registered owners of the condominium as they are still dependent on the Defendant as the registered owner of the Master Title; and (c) in the event, the Defendant faces any legal problem, the Plaintiffs’ interest in their respective units will be affected due to the total reliance on the Defendant as the registered owner of the Master Title 38. The Defendant submitted that the 3rd Issue is framed in relation to the Defendant’s failure “in Issue 1”, namely failure of the contractual obligation rather than the statutory obligation. 39. In this regard, the general rule is that parties are bound by the ITBT. The exception to this general principle is when the following facts are present: (a) the issue was pleaded in the pleadings; (b) the issue was raised in the course of the trial or in the submission of the parties; and (c) no objection was taken promptly to the departure from the Agreed Issues [see the case authorities as cited by the Defendant i.e. Bounty Dynamics Sdn Bhd (formerly known as Media Development Sdn Bhd) v Chow Tat Ming & 175 Ors [2016] 1 MLJ 507 (CA), Appraisal Property Management Sdn Bhd & Ors v Singham Sulaiman Sdn Bhd [2023] 2 MLJ 153 (CA) and Chiew Yit Kin v Pengarah Tanah dan Galian Wilayah Persekutuan & Ors [2023] MLJU 601 (HC)]. 40. I have scrutinised the SoC and it was my finding that the Plaintiffs have pleaded the fact as to the Defendant’s breach of statutory duty under the STA 1985 and that the Plaintiffs have the right to obtain the strata title and to claim for damages from the Defendant for failing to deliver the strata titles within a reasonable time in paragraphs 30, 31, 34, 36 and 37. 41. Paragraphs 30 and 31 of the SoC are as quoted previously while paragraphs 34, 36 and 37 state the following: “34. In light of the above, a Notice of Demand was issued by the Plaintiffs’ solicitors, Messrs The Chambers of Waran on 3.5.2021, for the Defendant to deliver the strata titles for each of the units mentioned above within 14 days from the date of receipt of the said Notice of Demand. … 36. The Plaintiffs state that although the Defendant is in the process of obtaining the necessary approvals, but the Defendant has failed and/or refused to obtain the necessary approvals within a reasonable time pursuant to the Strata Title Act 1985 because the Defendant only took action to obtain the approval in 2019 and no explanation was given by the Defendant with regards to the steps taken by the Defendant to apply the strata title application process before 2009. 37. Furthermore, the Plaintiffs state that the Defendant is liable to pay compensation to the Plaintiffs for the delay in delivering the said strata titles.”. 42. The 3rd Issue was raised in the course of the trial and in the Plaintiffs’ submission. No objection was taken by the Defendant’s counsel at the trial even though from the line of questioning by the Plaintiffs’ counsel, he was attempting to prove that because of, not only the contractual breach, but also the statutory breach, the Plaintiffs are entitled to damages. Therefore, the Court finds that the Plaintiffs have established the exception to the general rule. 43. Based on the evidence adduced at the trial, I was of the considered view that through the testimony of PW1 (P23), the Category A Plaintiffs have established the losses, as a result of both the contractual and statutory breach, in subparagraph (a) of the 3rd Issue. 44. The pertinent part of PW1’s evidence in re-examination is as follows: “VR Right. Ok. Now, he also referred you to Question No. 17, Q & A 17, where the question is, what losses has the Plaintiffs have suffered as a result of the Defendant’s failure to obtain the strata title? And you have given answers in (a) to (i) but let’s just go to (a) first because that’s where the thrust of this cross was. He says you don’t have any evidence that you have been deprived of legal ownership of the condo units purchased. You said there is no evidence in the bundle. Could you explain what you meant by your losses in para (a)? HABEEB Even though we are owners because we do not have a strata title, when you are, the value of the property is always undervalued because it is not your property. Every time you want to do a sale or a sub-sale, you still have to go back to the developers and there you also have to pay the developers a certain fee. All this type of things also have mixes, I mean you can’t make your own decisions as the owner. When you go and try to get a bank loan, the first question they ask is whether your strata title is there. Even if it is not there, if you are successful in getting the bank loans or anything like or any financial help, it's a struggle, it's not straightforward. You still have to get guarantors and all those type of things even though the property is yours. VR Alright, thank you. Question was also asked on para (b) where you say I have been deprived of complete usage and enjoyment of the property as registered strata title owners. Question posed says there is no evidence in the bundle. Kindly explain. HABEEB The same explanation. For all those items, when you do not have ownership of, when you are not, even though it's on paper that you have paid for something and you're not an owner, you are deprived from all aspects. Like I said, from a financial, to get the finance, to enjoy anything the, for whatever you have paid. It’s not yours. VR Right. HABEEB And I’ve paid, for this property of mine in full to the developers in 2007 and today it’s 2025 and yet I do not have ownership of this property.”. 45. As regards the Category B Plaintiffs and Category C Plaintiffs, the deprivation of the usage and enjoyment of the property as the registered strata title owners was as a result of the failure to comply with the STA 1985. PW1 who served as the representative and voice for all the Plaintiffs, as agreed during the pre-trial case management and in this manner has saved the Court’s time from having to record the evidence of each Plaintiff, had articulated the hardship suffered by all the Plaintiffs as a result of the Defendant’s breach of the statutory requirements. 46. DW1 admitted during cross-examination that, without strata titles, if the purchasers intend to sell the property, consent would have to be obtained from the Defendant and that s 8 of the STA 1985 stipulates that the failure to apply for subdivision and strata titles constitutes a criminal offence. 47. Therefore, the 3rd Issue was answered in the affirmative for subparagraph (a). 4th Issue: If the Plaintiffs suffered the losses, whether the Defendant is liable to pay damages to the Plaintiffs and how much should the quantum be 48. Mr. Chris Tan referred to s 101 of the Evidence Act, 1950 [Act 56] and the case of Selvaduray v Chinniah [1939] 1 MLJ 253 in submitting that the Plaintiff bears the burden of proving that they have suffered losses and are entitled to damages. However, the Plaintiffs have failed to discharge the burden of proof as no documentary evidence was produced to prove the purported losses. The Plaintiffs’ claim for damages was said to be based on speculation and presumptions, rather than evidence, akin to the case of Thermoex Engineering Sdn Bhd v Kokuladevan a/l Pasupathi & Ors [2024] CLJU 1846. 49. As such, it is submitted that the Defendant was not liable to pay any damages to the Plaintiffs and consequently, the 5th Issue becomes moot. 50. The Plaintiffs submitted that their entitlement to an award of damages arises from sub-s 74(1) of the Contracts Act 1950 [Act 136]. 51. In view of the contractual breach and statutory breach as alluded to earlier, I was inclined to find that the Defendant was liable to pay damages to the Plaintiffs. 52. In so far as quantum is concerned, the Plaintiffs relied on the cases of Lee Ming Chong Sdn Bhd v Prudential Properties Sdn Bhd [2012] 8 MLJ 1 and Kong Aik Weng & Ors v. Mayland Universal Sdn Bhd [2025] CLJU 114 in seeking a sum of RM50,000.00 in damages together with interest thereon. 53. However, after having read these case authorities, I agree with the Defendant’s submission that – (a) Lee Ming Chong (supra) can be distinguished as in that case, the court found that there was a breach of the contract on the part of the developer and the plaintiff lost the opportunity to make some gains if he had been able to effectively sell the property but for the unreasonable withholding of consent to the sub sale by the developer. Hence, the court awarded damages of RM50,000.00 to the plaintiff; and (b) Kong Aik Weng (supra) can be distinguished as it involves a claim for liquidated and ascertained damages, which is not the Plaintiffs’ pleaded case in the instant suit. 54. In the light of the above, I was unable to accept the Plaintiffs' submission for the Court to award RM50,000.00 in damages to each Plaintiff. Instead, I made an independent assessment of the evidence and was of the opinion that, in the circumstances of this case, an award of damages in the sum of RM10,000.00 to each Plaintiff was fair and reasonable because the only loss which was established by the Plaintiffs at the trial was the deprivation of the usage and enjoyment of the property as the registered strata title owners. 5th Issue: Whether the Plaintiffs are entitled to the reliefs pleaded in paragraph 38(a), (b), (c) and (d) of the Statement of Claim 55. The 5th Issue was answered in the affirmative for the reasons as explicated for the other Issues. CONCLUSION 56. Premised on the foregoing considerations, the Plaintiffs’ claim as prayed in subparagraphs 38(a) to (d) of the SoC was allowed for a decree of specific performance, an award of damages in the sum of RM10,000.00 to each Plaintiff with interest at the rate of 5% per annum from the date of filing of the Writ of Summons and SoC until full realisation. 57. Costs of RM30,000.00 was ordered to be paid by the Defendant to the Plaintiffs, subject to allocatur. DATED: 29.9.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Solicitors for the Plaintiffs: R. Vigneswaran Raju (Roshini Ramasamy and Lavaniya Balan with him) Messrs. The Chambers of Waran Solicitors for the Defendant: Chris Y.H Tan (Nur Syahirah Binti Ramli with him) Messrs. R. Sivagnanam & Assoc.