Ang Bee Chin v Kemuning Setia Sdn Bhd (PA-22NCvC-49-03/2021)

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Schedule G of the Regulations and thus the six (6) year limitation period applicable to contractual claims does not apply to the Plaintiffs’ claim. (2) The Limitation Act does not prescribe a limitation period for claims arising from breaches of the HDA. Similarly, the HDA does not impose any limitation period. As such, the Plaintiffs submit that limitation does not apply: [11] In the case of Tan Geok Hwa v Centamin Construction & Development Sdn Bhd & Ors [2019] MLJU 1500, the Court determined that limitation did not apply to a shareholder oppression action under Section 346 of the Companies Act 2016, even where the Plaintiffs sought payment of a compensatory sum as his remedy. [12] The Plaintiffs’ cause of action is not contractual in that it does not arise from the SPAs, but rather from the HDA and the Regulations. Thus, absent any prescription of limitation in the HDA or the Limitation Act, the Plaintiffs contend that limitation does not apply to their claim. The foregoing excerpts from Tan Geok Hwa (supra) establish that limitation is based on the nature of the cause of action, rather than the remedy sought. The Court held that: “Even though the claim of the plaintiff was premised upon the non-payment of dividends, the actual cause of action upon which the claim was grounded was the statutory cause of action afforded by section 346 of the Companies Act 2016. The key and determinative question was thus whether such a cause of action came within section 6(1)(d) of the Limitation Act 1953… ….the Limitation Act 1953 does not apply to proceedings for which no period of limitation has been specifically prescribed by the Act Halsbury’s Laws of Malaysia, 2016 at para 510.012…. ….It would stand to reason that the applicability of limitation should be determined based not upon the remedy that is being sought, but rather based upon the nature of the cause of action. This, in my judgment, would be the only coherent way to differentiate between different classes of actions and the applicability of limitation thereto” [13] In the case of Collin v Duke of Westminster and others [1985] 1 All ER 463, the central issue was whether the original notice of enfranchisement, issued approximately eight (8) years before the tenant instituted proceedings, was time-barred. The owners contended that: “If the notice gave rise to a cause of action, it was one in contract which accrued on 12.3.1975 and limitation set in on 12.3.1981. The cause of action was one in contract because the Act provided: “that the rights and obligations arising from the tenant’s notice are enforceable ‘to the like extent…as rights and obligations arising under a contract for a sale or lease freely entered into between the landlord and tenant’” [14] In Collin’s case, the tenant argued that the limitation of action is entirely statutory and an action will only be barred if the statute provides for some period of limitation applicable to it. Oliver LJ concluded that the rights and duties of the parties as well as any claims arising therefrom, arise from the statutory rights and obligations under the Act. Thereafter, his Lordship considered whether the matter might be considered an action upon a specialty pursuant to section 8 of the English Limitation Act 1980. This provision is absent from the Malaysian Limitation Act. Nevertheless, the Court of Appeal’s reasoning remains instructive to the present case i.e “broadly the test is whether any cause of action exists apart from the statute” [15] The Plaintiffs contend that their rights derive from the HDA and the Regulations, not the SPAs per se. In this regard, the Plaintiffs are not seeking to enforce any part of the SPAs or sue for any breach of the SPAs. The Plaintiffs are suing to enforce what they are entitled to pursuant to the HDA and the Regulations. Without the HDA and the Regulations, the Plaintiffs would have no claim. [16] Therefore, submit that this statutory cause of action falls outside the remit of the Limitation Act (not having been specifically prescribed therein) and the Plaintiffs’ claim is not time-barred. [17] In the alternative, even if the Limitation Act Applies, the Plaintiffs are within time. For the purposes of the accrual of the Plaintiffs’ cause of action, time only begins to run from the date of delivery of vacant possession of the Plaintiffs’ Lots to the respective Plaintiffs. It is only from the date of delivery of vacant possession that the Plaintiffs should have received their respective housing accommodation together with the sub divisional portion of land appurtenant thereto as provided in Schedule. [18] Thus, it is on this date that the Defendants failed to carry out their obligations vis-à-vis the Schedule G statutory form and it is on this date that the Plaintiffs’ cause of action accrued. The date of the notices of vacant possession issued by the 1st Defendant is 5.3.2015 and vacant possession is deemed to have been delivered fourteen (14) days thereafter. Accordingly, the Plaintiffs’ cause of action arose on 19.3.2015 and the Plaintiffs’ claim is not time-barred. [19] The case of Obata-Ambak Holdings Sdn Bhd v. Prema Bonanza Sdn Bhd & Other Appeals [2024] 6 MLRA 1, does not have any bearing on the limitation issue here as it was dealing with a contractual claim there. In short, the Limitation Act only applies to causes of action that are specifically stated therein. The need for a precise and proper identification of the cause of action in question cannot be understated. In Halsbury’s Laws of Malaysia (Vol. 21, 2016 Reissue), it is stated that: “The Limitation Act 1953 does not apply to any action or arbitration for which a period of limitation is prescribed by any written law… The Act also does not apply to the issue of execution on judgments, criminal proceedings or to proceedings for which no period of limitation has been specifically prescribedy the Act.” In the circumstances, the Plaintiffs’ 3rd Question ought to be answered in the negative. Defendants’ Submissions [20] The Plaintiffs' claim herein is time barred as the Sale and Purchase Agreements signed between 2012 and 2013, had not only been completed in that each of the Plaintiffs had been registered as lessees of the property for a term of ninety-nine years (99 years), but that on the average, nine (9) to ten (10) years had lapsed between the registration of the Plaintiffs' leasehold titles in or about 2013 and 2014 and the commencement of the Plaintiffs' action herein in March 2021. [21] In the case of Obata-Ambak Holdings Sdn Bhd v. Prema Bonanza Sdn Bhd & Other Appeals [2024] 6 MLRA 1 (Obata-Ombak), The Federal Court held that as the cause of action is based on contract and that Section 6(1) of the Limitation Act 1953 requires a civil claim to be filed before the expiration of six years from the date on which the cause of action accrued, and as the validity of some of the clauses in the sale and purchase agreement are being disputed, the date on which the cause of action accrued would be the date on which the sale and purchase agreements was executed. [22] If at all that the Plaintiff's claim is not time barred, which is denied, the Plaintiffs would nonetheless have no cause of action in law for the cancellation of the lease so registered in favour of each of the Plaintiffs and for the transfer of a freehold title to the Plaintiffs instead, as each of the Plaintiffs had acquired an indefeasible title which could not be challenged save for the exceptions under Section 340(2) of the National Land Code 1965. [23] Incidentally, the issue of limitation may not at all be relevant in the light of the undisputed fact that the Plaintiffs would have suffered no loss or damage whatsoever to sustain any action against the Defendants given that the said Sale and Purchase Agreements had been fully performed in that the Defendants had duly discharged their obligations and that the Plaintiffs had duly received their entitlements under the said Sale and Purchase Agreements. (See McGregor on Damages by Harvey Gregor, 17th Edition (2003). [24] The Sale and Purchase Agreements between the Plaintiffs and the Defendants had been fully performed, notwithstanding that the Sale and Purchase Agreements are not in the statutory form in Schedule G of the Housing Development Regulations 1989, the Plaintiffs as purchasers are not entitled to revisit the terms and conditions of the Sale and Purchase Agreements and to claim any reliefs beyond what they have contracted for, ie. a leasehold term of ninety-nine (99) years with an irrevocable option to extend for a further term of ninety-nine (99) years. [25] The Plaintiffs' claim for a declaration that the Sale and Purchase Agreements ought to have been in conformity with Schedule G of the Housing Development Regulations 1989 and for a freehold title is based on the Sale and Purchase Agreements as executed between the Plaintiffs and the Defendants between 2012 and 2013, the Plaintiffs' claim is time-barred as the cause of action, if at all available to the Plaintiffs, would have accrued 6 years from the date the Sale and Purchase Agreements were executed, ie. the period between 2012 and 2013. [26] As the Plaintiffs and the Defendants are bound by the terms and conditions of the Sale and Purchase Agreements executed between 2012 to 2013, the Court would have no jurisdiction to alter the contractual obligations and entitlements of the parties to any contract of sale not in conformity with the prescribed statutory form in Schedule G of the Regulations 1989 and thereby to substitute a freehold title in place of the leasehold title as contracted for by the parties under the Sale and Purchase Agreements. Findings [27] The Court acknowledges that there may be duplication of arguments and the Court's justifications in this decision, as well as overlapping arguments between the parties and the questions dealt with. Therefore, to prevent undue duplication of facts and issues, the Court will also examine all of the arguments raised by the Plaintiffs and the Defendants at the same time. [28] To assist the parties in deciding the limitation issue, this Court refers to the issues summarized by the Plaintiffs as follows: “To test the Defendants’ argument, this Court could also ask the following questions: (i) What are the clauses of the SPAs that the Plaintiffs seek to enforce? None, the Plaintiffs are not seeking to enforce any clause of the SPAs. (ii) Did the Plaintiffs allege that the Defendants were in breach of the SPAs? No. The claim is not founded on a breach of contract. (iii) Are the Plaintiffs seeking to uphold the sanctity of the SPAs and hence leaving the SPAs intact? No. The Plaintiffs are essentially challenging that the SPAs are not in conformity of the law i.e. the HDA and the Regulations. (iv) What is the legal basis of the Plaintiffs’ claim – is it the SPAs or the HDA? The legal basis of the Plaintiffs’ claim is NOT the SPAs. It is the HDA and the Regulations. [29] However, this Court has a different view from the Plaintiffs. By looking at the Pleading, it is clear that this action is directly related to the SPA entered into by both parties based on the following: 11. “D. THE ORIGINAL SUIT On or around June 2016, seven (7) purchasers of other lots in 98 Greenlane with sale and purchase agreements identical in form to those of the Plaintiffs herein, instituted proceedings against inter alia Kemuning Setia and K-Asia, similarly claiming the transfer of the freehold titles of their lots on the basis that their sale and purchase agreements contained the unlawful Variations made to Schedule G (“the Original Suit”). 12. In this regard, the Plaintiffs contend and will contend that the premise of the Original Suit is identical to that of the present suit, and in the circumstances, the outcome of the Original Suit ought to be binding upon the outcome of these proceedings. 13. The matter proceeded to full trial before the Penang High Court, which dismissed the plaintiffs’ claim in the Original Suit. The plaintiffs in the Original Suit appealed to the Court of Appeal. 14. On 5.12.2019, the Court of Appeal allowed the appeal and ordered inter alia the following (“the COA Order”): “14.1 That the sale and purchase agreements ought to have been in conformity with Schedule G of the Regulations; 14.2 That K-Asia do transfer and Kemuning Setia do cause K-Asia to transfer the freehold of the respective lots to the plaintiffs in the Original Suit; 14.3 That the leases granted to the plaintiffs in the Original Suit be cancelled; and 14.4 That the plaintiffs in the Original Suit would bear all the costs of the aforesaid transfer.” 15. The Plaintiffs will rely upon the contents of the Court of Appeal’s grounds of judgment in the Original Suit, at the hearing of this matter. Thereafter, both K-Asia and Kemuning Setia filed respective motions for leave to appeal to the Federal Court (“Motions for Leave”). On 6.1.2021, the Motions for Leave were heard and dismissed. The Federal Court thereby upheld the COA Order.” [30] In short, the claim that the Plaintiffs have made against the Defendants is the crucial question in this case. Plaintiffs argue that the time limit under Section 6 Limitation Act 1953 is not applicable because the Plaintiffs' claim is not to enforce the non-compliance in the SPA that was signed and there is no time limit specified for enforcing Regulation 11(1) and Schedule G of the Regulations 1989, which are rights under the statute. “The SPA is Ultra vires for not complying with Form G and of the of Regulation 11(1) of the Housing Development (Licensing & Control) Regulations 1989; and "they are entitled to be dismissed as if Schedule G had been complied with" [31] However, this Court disagrees with that argument. If we look at the pleadings stated previously, this becomes even more apparent when referring to Regulation 11(1) of the Housing Development (Licensing & Control) Regulations 1989 prescribes that: “Every contract of sale for the sale and purchase of a housing accommodation together with the sub divisional portion of land appurtenant thereto shall be in the form prescribed in Schedule G…” [32] However, in this case, Plaintiffs argued that the Loh Tina’s decision is binding on this Court as it has been ruled that: (i) A declaration that the SPAs ought to have been in conformity with

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Schedule G of the Regulations; (ii) An order that the proprietor K-Asia do transfer and the developer Kemuning Setia do cause K-Asia to transfer the freehold of the respective plaintiffs’ lots to the plaintiffs; and (iii) The leases granted to the plaintiffs in respect of the plaintiffs’ lots be cancelled. [33] Based on the COA decision in the case of Loh Tina (supra), therefore their right occurred on the date the SPA was signed. It must be seen from the facts of the case brought by the parties. It is clear that the action is directly derived from the SPA entered into by both parties based on the following claim: “The SPA is Ultra vires for not complying with Form G and Regulation 11 of the Regulation 1959 and "they are entitled to be set aside as if Schedule G had been complied with" [34] It must be seen from the facts of the case brought by the parties. In the Loh Tina’s case, the issue of limitation was not decided because it was not an issue arising because as can be seen, the action was brought in 2016 and the SPA was signed in 2012/2013. But the question in Loh Tina’s case is still based on the SPA and this can be seen from the following decision: “[69] A developer that deviates from the HDA and the Regulations by modifying the standard statutory form of SPA in Schedule G without a certificate of the Controller approving the modification would be in breach of the HDA and the Regulations. [70] More than that the purchasers would be entitled to enforce their rights as if the SPA had been in its prescribed form without any amendments or modification and to hold the developer and proprietor to the terms as prescribed by Schedule G.” [35] While in our case, the SPA was also signed in 2012/2013 and this action was filed in 2021.Although the action is being sued based on the statute, the cause of action is ultimately due to the failure to comply with Regulation 11 and Schedule G of the Housing Development (Licensing & Control) Regulations 1989. [36] The requirement for compliance is contained in the SPA. Therefore, the action for failure to comply with the said statute is still due to the SPA. The Court is of the opinion that the Plaintiffs is allowed to bring this action for the said non-compliance if the provision was not expressly stated in the agreement or was not part of the said agreement. Without the SPA, the Plaintiffs would not have had the legal capacity to file a civil lawsuit against the Defendants under Regulation 11 and Schedule G of the Housing Development (Licensing & Control) Regulations 1989. [37] The Plaintiffs also depend on the case of Tan Geok Hwa (Supra) to argue that non-compliance with the statute does not have a time limit as alleged in the case. Nevertheless, after scrutinizing the case, this Court noticed that the facts differed from the claims, which is also why the Court came to the following decision: “[1] The plaintiff in this case commenced an action under section 346 of the Companies Act 2016, alleging that there was oppression of her rights as a shareholder in the first defendant company, Centamin Construction Sdn Bhd (“Centamin”, or the “Company”). [2] I found that the case for shareholder oppression has been made out, and I entered judgment for the plaintiff. The reasons for my decision are set out here. …………….. [51] In my considered judgment: (a)limitation does not apply to a shareholder oppression action under section 346 of the Companies Act 2016; and (b)in any event, even if limitation did apply, the denial by the defendants of access by the plaintiff to the accounting and other corporate records of the Company was sufficient to amount to equitable fraud, which suspended limitation until the plaintiff discovered the fraud. ………………………. [61] For these reasons, I am of the view that an action founded upon oppression under section 346 of the Companies Act 2016 would not be subject to limitation under section 6(1) of the Limitation Act 1953. This would be the case even where the plaintiff seeks as his remedy the payment of a compensatory sum. The plaintiff was thus not out of time in commencing this suit in January 2019. Suspension of limitation: equitable fraud [62] In any event, based on the facts of the present case, even if limitation were to apply to the present cause of action, section 29 of the Limitation Act 1953 would apply to suspend limitation.” [38] This Court decided that the Plaintiffs’ argument, namely, by relying on Tan Geok Hwa’s case (supra ) to put that as the Plaintiffs’ cause of action is not contractual in that it does not arise from the SPAs, but rather from the HDA and the Regulations, limitation does not apply to their claim (especially so as the HDA and the Regulations do not prescribe any limitation period), cannot be defended due to the differences in the facts of the case that have been discussed, [39] There are significant factual differences. In our case, the cause of action is based on an agreement entered into and the terms of which have not been complied with. This is precisely what the Plaintiffs seeks: “18.1 A declaration that the SPAs should comply with Schedule G of the Regulations” [40] Back to the Loh Tina’s case. Even though Loh Tina is a Court of Appeal case, this Court is still allowed to make its own decisions on the basis that the primary factual disparities that did not serve as the foundation for the decision (the issue of time limits did not arise in Loh Tina’s case). [41] In Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5 MLJ 194, held that [144] Therefore, the Federal Court in CCH did not decide on the same provisions of the FC as in CTEB’s case. I am of the considered opinion that the cases of CTEB and CCH are not in conflict on the same point of law, as the decision of CCH is on s 1(a) of Part II read together with s 19B of Part III. As such, the latter case of CCH did not overrule CTEB on the interpretation of art 14(1)(b) read with s 1(b) of Part II, Second Schedule of the FC.” [42] In Chiu Wing Wa and Ors V Ong Beng Cheng [1994] 1 MLJ 8, held: “Thus, in Hotel Ambassador 2, both the High Court and the Supreme Court were not dealing with rent-controlled premises, and were not asked to consider the effect of the Act. Without any intention of undermining the principle of stare decisis as laid down by Lord Scarman in Duport Steel Ltd v Sirs 6 at p 551C, it is important that decided cases should not be followed blindly. As stated by Lord Halsbury in Quinn v Leathem 7 at p 506: … every judgment must be read as applicable to the particular facts proved, since the generality of expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. (refer to : Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1) [43] The Defendants' right to raise the limitation issue in this case is not automatically waived by the Plaintiff's action after six years and the subsequent use of the Loh Tina’s case, as it was fair to expect the Plaintiffs to adhere to the requirement of the law on limitation. [44] It is important to understand that the cause of action outlined in the pleading is a contract claim, meaning that the remedy provided by these claims is part of breach of contract and caught under Section 6 (1) of the Limitation Act 1953. [45] The pleading's cause of action is a contract claim, which means that the remedy it offers is a component of breach of contract and is covered by Section 6(1) of the Limitation Act of 1953. This Court found that the case of Collin v Duke of Westminster (supra) was not relevant because our case involved SPA and claims are based on breach of contracts and not breach of statutory. The case of Obata-Ambak is applicable in our case. [46] In this case, since the cause of action is based on a contract, the Plaintiffs in this case should have acted early like Loh Tina and not waited until the Loh Tina case was decided. The Defendants will be in a difficult and in-vain scenario if there is no time limit. This Court is bound by the decision of the Obata Ombak case, which is: “[96] In the appeals before us, Obata and Vignesh are in effect challenging the validity of the clauses, which are, cll 25 and 27 of the SPA. Terms which they have agreed to when they signed the SPAs in 2012. In respect of limitation we are of the view that based on the law on limitation it is clear that time begins to run at the earliest point of time the claimants, Obata and Vignesh could commence action. The cause of action would have accrued from the date of the execution of the SPAs or if there was any breach of the terms of the SPAs. This court in Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 2 MLJ 749 at p 759; [2014] 1 CLJ 207 at p 221 held: … A cause of action founded on a contract accrues on the date of its breach, and in the case of a debt, the cause of action arises at the time when the debt could first have been recovered by action. [97] An action founded on a contract or on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. The rationale of the policy for the existence of limitation has been eloquently explained by Hashim Yeop Sani SCJ in Credit Corporation (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409; [1991] 2 CLJ 871: The doctrine of limitation is said to be based on two broad considerations. Firstly, there is a presumption that a right not exercised for a long time is non-existent. The other consideration is that it is necessary that matters of right in general should not be left too long in a state of uncertainty or doubt or suspense. [98] The causes of action in the appeals before us are based on contract and s 6(1) of the Limitation Act requires civil claim to be filed before the expiration [2024] 5 MLJ 897 at 943of six years from the date on which the cause of action accrued which would be the date the SPAs were executed. Both Obata and Vignesh executed the SPAs with the knowledge that the completion period of the housing project was 54 months. Prema had obtained the approval of the Minister of Housing and Local Government to vary the prescribed completion date by extending the completion period to 54 months prior to the execution of the SPA. When they signed the SPA at that material time they would have legal counsel and should have enquired or raised any doubts before or when executing the SPA. [99] Obata and Vignesh had agreed when they signed the SPAs that the completion period shall be 54 months from the date of execution of the SPAs. A very intriguing and relevant fact which we cannot ignore or brush aside is that both Obata and Vignesh executed a full and final settlement when they accepted the payment of the LAD in 2017 from the developer. Obata and Vignesh could have and should have raised the issue of the validity of clauses in the SPAs before signing the full and final settlement in 2017 which they failed to do so.” Conclusion [47] Based on the reasons given, this Court decides that the Plaintiffs’ First, Second and Third Questions be answered in the affirmative, [48] Consequently, the Penang High Court Suit No. PA-22NCVC-49- 03/2021 (“Suit 49”), PA-22NCVC-47-03/2021 (“Suit 47”) and PA22NCVC- 51-03/2021 (“Suit 51”) are dismissed with costs of RM12,000-00 and subject to allocator. ……………sgd……………….. AZIZAN MD ARSHAD Judge High Court (3) Pulau Pinang Dated: 24 March 2025 Counsel for the Plaintiff: Villasini A/P Nethiganantarajah, Ws Saw Tetuan Nethi & Saw D3-5-11, Solaris Dutamas, Jalan Dutamas 1 50480 Kuala Lumpur Counsel for the First Defendant: M Thayalan, Syifa Irdina binti Sheikh Zulkifli, Lim Khai Sin Tetuan JA Yeoh Suite 15-1 (Penthouse Lower) Menara Penang Garden 20 42A, Jalan Sultan Ahmad Shaha 10050 Penang Counsel for the Second Defendant: Allen Choong Ching Yet Tetuan Allen & Associates Lot 1-1-5, The Gallery Medan Batu Lanchang 11600 Penang Legislations referred to: 1. Order 33, Rules 2 and 5, and/or Order 14A of the Rules of Court 2012 ("ROC 2012") 2. Section 340(2) of the National Land Code 1965. 3. Section 6 (1) of the Limitation Act 1953. 4. Housing Development Regulations 1989 Cases referred to: 1. Loh Tina & Ors v Kemuning Setia Sdn Bhd & Ors and another appeal [2020] MLJU 635 2. Tan Geok Hwa v Centamin Construction & Development Sdn Bhd & Ors [2019] MLJU 1500 3. Collin v Duke of Westminster and others [1985] 1 All ER 463 4. Obata-Ambak Holdings Sdn Bhd v. Prema Bonanza Sdn Bhd & Other Appeals [2024] 6 MLRA 1 5. Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5 MLJ 194 6. Chiu Wing Wa and Ors V Ong Beng Cheng [1994] 1 MLJ 8 7. Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1