1. ) Chan Mui Choy v Billion Century Premier Sdn. Bhd. (WA-22NCvC-76-02/2024)

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CHUA SERN TEEN 22/09/2025 11:07:26

FOCK YENG KOK @ FOCK YEN LIN

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CHONG SWEE YON @ CHOONG SIEW YOON

CHONG NYONG CHIN @ CHONG KEW MOY

LOW WEI SIM @ IRENE LOW

LOH SHOOK KIM @ CHERIE LOW

CHAN KAI CHENG ... PLAINTIFFS AND BILLION CENTURY PREMIER SDN. BHD. [COMPANY NO.: 199001007780 (199350K)] ... DEFENDANT GROUNDS OF JUDGMENT (Enclosure 5)

Two applications were heard by the Court, namely –

the application by the Defendant in encl. 30 to strike out the Writ of Summons and Statement of Claim (‘SoC’) dated 2.2.2024 pursuant to O. 18, r. 19(1) of the Rules of

the application by the Plaintiffs in encl. 5 for an order pursuant to s 50 of the Specific Relief Act 1950 [Act 137] (‘SRA 1950’) and O. 29, r.1 and O. 92, r. 4 of the RC 2012 for an interlocutory injunction to restrain the Defendant, either by themselves and/ or their representatives from –

destructing or demolishing a single storey building and its ancillary facilities, including, but not limited to, a swimming pool and other facilities (‘Properties’) which were erected on the land held under Geran Mukim Lot 37217, Mukim Petaling,

(ii) closing, blocking or doing any act to cause the Plaintiffs not to have access to the Properties;

(iii) making any threat to the Plaintifffs, in whatever form or manner, regarding the demolition of the Properties; and

(iv) implementing, carrying out or commencing the project or taking any action which is a condition for the commencement of the project, unless with leave from the Court.

After having considered the affidavit evidence and submissions of the parties, I had –

allowed the Defendant’s application in encl. 30 only against P19, P30, P31, P63, P66, P70, P77 and P85 who were not the registered proprietors. The application was dismissed in respect of the other 156 Plaintiffs; and

allowed the Plaintiffs’ application in encl. 5.

The Defendant is dissatisfied with my decision in respect of encl. These are my full grounds of judgment for the decision.

The cause papers are as follows:

Notice of Application dated 20.2.2024 (encl. 5);

the Plaintiffs’ Affidavit In Support (‘AIS’) affirmed by P1, Chan Mui Choy on 20.2.2024 (encl. 6);

the Defendant’s Affidavit In Reply (‘AIR’) affirmed by its Director, Lim Soo Jiuan on 14.3.2024 (encl. 8); and

the Plaintiffs’ AIR affirmed by the same deponent on 3.4.2024 (encl. 12).

The Defendant’s AIR (2) affirmed on 17.4.2024 (encl. 14) and the Plaintiffs’ AIR (2) affirmed on 30.4.2024 (encl. 23) were both filed without leave of the Court.

The Defendant is a company incorporated in Malaysia with its registered address at 61-6B, Suite 1, Jalan SS 2/75, Petaling Jaya, Selangor. The Defendant is in the business of property development and management.

In the 1990s, the Defendant entered into Sale and Purchase Agreements (‘SPA’) with the purchasers, including the Plaintiffs, to sell parcels in the Sri Desa Condominiums (‘Condominium’). At the same time, a Deed of Mutual Covenants was also signed with each purchaser.

The Condominium is located on a piece of land formerly bearing master title Geran Mukim 1766, Lot 37216, Mukim Petaling, Daerah Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur until it was subdivided into strata titles and the Sri Desa Condominium Management Corporation (‘MC’) was established on 30.12.2002.

At all material times, the Defendant is the registered owner of the Land, which is a separate piece of land adjacent to, and outside of, the Condominium.

The Properties were built on the Land, and the Defendant granted permission to the MC for the residents of the Condominium to use the same.

On 10.1.2023, the Defendant issued a letter to the MC informing of its intention to demolish the Properties and the MC was asked to vacate the Properties; remove any belongings and properties that belong to the MC, residents of the Condominium or any users; cease the usage of the Clubhouse facilities by the residents or any users; and advise all residents or any users to remove their vehicles parked at the car parking area around the Properties on or before 5.00 p.m. on 9.2.2023 (‘Notice to Demolish the Properties’) .

This was met with strong objections by the Plaintiffs and resulted in the filing of this action against the Defendant.

The Defendant raised the following preliminary objections:

Filing of the Plaintiff’s AIR (2) (encl. 23) The Defendant objected to encl. 23 on the ground that there was no direction by the Court allowing the parties to file an additional affidavit. This objection was allowed and for the same reason, I did not consider the Defendant’s AIR (2) (encl. 14) as the Defendant did not seek leave of the Court before filing the same.

Res Judicata The Defendant’s position was that the issues raised by the Plaintiffs in this suit have already been determined by the court and are therefore res judicata. Pursuant to a Writ of Summons dated 5.8.2005, the MC, consisting of all the parcel proprietors of the Condominium, had commenced Suit No. S5-22-900-2005 against the Defendant, known as Puncak Suria Sdn. Bhd. at that time (‘2005 Suit’). In the 2005 Suit, the MC prayed for an order that the Land, on which the Facilities are located, be transferred and registered into the MC’s name or alternatively, for compensation and damages from the Defendant for not providing the recreational facilities that were supposed to be enjoyed by the MC or the parcel proprietors of the Condominium. The MC’s claim was dismissed by Zabariah Mohd Yusof JC (as Her Ladyship then was) on 3.6.2010, after a one-day trial. The MC did not appeal against the decision of the court. Hence, the Defendant contended that the following have been established:

the Land where the Facilities are located belongs to the Defendant;

(ii) the Development Order does not contain any condition that the Clubhouse is to be part of the common property;

(iii) under the Sri Desa Condominium House Rules (‘House Rules’), the Clubhouse remains the exclusive property of the Defendant and it binds all the purchasers/ residents. The Clubhouse is not to be part of common property; and

(iv) nowhere in the brochure does it state that the Land is common property and in the SPA that the Land shall be transferred to the MC. The SPA clearly states that only part of the Land is developed for the residents. The Plaintiffs retorted that the 2005 Suit revolved around the issue of alleged misrepresentation by the Defendant to the Plaintiffs and the prayer was for the Land to be registered in the MC’s name. However, in the instant suit, the Plaintiffs are merely asking this Court to estop the Defendant from demolishing the Clubhouse, or to build a new clubhouse instead of service apartments. The Plaintiffs relied on the case of Chua Wee Seng v Fazal Mohamed [1971] 1 MLJ 106 where Sharma J held that – “To constitute a matter res judicata the following conditions must be fulfilled:

The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.

The former suit must have been a suit between the same parties or between parties under whom they or any of them claim.

The parties as aforesaid must have litigated under the same title in the former suit.

The court which decided the former suit must have been a court competent to try the subsequent suit or the suit in which such issue is subsequently raised.

The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit.” in submitting that elements (1) and (5) above have not been fulfilled. After comparing the SoC in the 2005 Suit and in the instant suit, I agree with the Plaintiffs’ submission. The matter directly and substantially in issue in the instant suit is not the same matter which was directly and substantially in issue either actually or constructively in the 2005 Suit. In paragraphs 29 - 31 of the SoC in the instant suit, the Plaintiffs pleaded as follows: “29) Plaintiffs state that the execution of the Project by the Defendant will cause, among others: - a) Nuisance to the Plaintiffs such as noise nuisance, sight nuisance, vibration nuisance and physical obstruction. The Plaintiffs state that the nuisance are not limited to the nuisance listed here; b) The safety of the Plaintiffs will be greatly threatened. The Plaintiffs plead that the Demolition and later the Project will threaten the Plaintiffs’ safety especially Plaintiffs’ kid which will be exposed to the risk of accidents at the site of the Project due to the proximity of distance between the Condominium and the Project; c) Exposing and/or causing high risk of damaging the piping system, underground electric cable system and any utilities that is being put at risk for malfunctioning; d) High risk for occurrence of landslide due to the process of drilling for the Project; e) Crack on the Plaintiffs’ house which as consequence, will cause and/or expose the risk for collapsing and/or destroy and/or damage to the Condominium; and f) Loss of benefits and enjoyments which had and/or still being used and utilized by the Plaintiffs and other residents. 30) Situations and/or impact as stated in Paragraph 28 above is based on the study conducted towards the structures of the Condominium and is not simply an allegation and imagination of the Plaintiffs. 31) Hence, the Plaintiffs believe that the Defendant’s action for the Demolition and the Project are actions which if allowed and approved, will bring great harm to the Plaintiffs and the residents. Even if alternatively, a pecuniary compensation is possible, however it is impossible to replace the value of the Properties, the safety and the comfort of the Plaintiffs.”. Although the SoC could have been better drafted, it shows that the Plaintiffs have pleaded nuisance and safety issues in the event the Defendant’s plans to demolish the Properties and to construct the service apartments are allowed to proceed. There were repeated references in the Plaintiffs’ submission to the purported nuisance when the Defendant allowed a firecrackers stall to operate during Chinese New Year. Reference to the construction of a stall on 20.1.2024 which allegedly caused nuisance and difficulties to the Plaintiffs was pleaded in paragraph 23 of the SoC (see too, paragraph 29 of the AIS) However, in my opinion, this was a one-off incident. The Plaintiffs’ cause of action, is in the main, on the potential harm to them if the demolition of the Properties and the construction of the service apartments should continue and the prayers sought in paragraph 33 of the SoC are, among others, for a permanent injunction. As regards the decision of the court in the 2005 Suit, only the Order was exhibited. Presumably no Grounds of Judgment was written as there was no appeal by the MC. Without a written judgment, the High Court’s reasons for dismissing the MC’s claim were purely speculative (see Malaysian Motor Insurance Pool v. Tirumeniyar Singara Veloo [2019] 10 CLJ 731 and Tetuan Wan Shahrizal, Hari & Co v Public Prosecutor [2023] 4 MLJ 1. Hence, it is not possible for this Court to make any finding that the earlier judgment has necessarily and with precision determined the points which are in issue in the instant suit (see the authorities cited by the Defendant, namely, Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 and The Pacific Bank Bhd v Chan Peng Leong [1998] 2 CLJ 440). The objection on the ground of res judicata was therefore dismissed.

Locus standi The Defendant argued that the Plaintiffs do not have locus standi to bring this suit against Defendant because the Plaintiffs claimed that the Clubhouse is common property. Applying the decision in Syarikat East Coast & Ors v Makna Mujur Sdn Bhd & Ors [2020] 2 CLJ 539, the claims against the Defendant can only be brought by the MC and not the individual parcel owners or some of them together as they do not have any right in law or in equity to pursue their claims. Furthermore, the Defendant emphasised that the effect of the prayers in this application and in the SoC are wide-ranging, applying to every proprietor in the Condominium and, not just the Plaintiffs. Any order made by the Court will bind all the proprietors of the Condominium. The Plaintiffs responded that they are the proper plaintiffs as they had signed the SPA as a contract with the Defendant. As bona fide purchasers of the Defendant’s parcels, they have the right to initiate the suit. As submitted by the Defendant, if the Plaintiffs’ claim is premised on the Properties being common properties, only the MC has the locus to bring the suit. The Plaintiffs have locus only if their claim is premised on the Properties being facilities which they are entitled to under the SPA and that the Defendant has breached a term of the SPA. In paragraph 32 of the SoC, the Plaintiffs pleaded that: “32) As of now, the Defendant still have not given the common area inclusive of the Properties, to the Plaintiffs, for their utilization and their benefits, as stated in the Sale and Purchase Agreement which had been signed by the Plaintiffs and the Defendant.”. However, in the reliefs sought by the Plaintiffs, there is no prayer for an order that the common area shall include the Properties. In subparagraphs 33(c) and (g) of the SoC, the Plaintiffs have sought an order that the Plaintiffs shall be allowed to use the common area and the Properties, and that the common area to be handed to the Plaintiffs. Nonetheless, there are sufficient averments in the Plaintiff’s AIR to indicate that their claim is premised on the Properties being facilities which they are entitled to under the SPA and that the Defendant has breached a term of the SPA (see paragraphs 7, 17 and 18 in encl. 12). In my considered view, the objection on the ground of locus standi must similarly be dismissed.

The Plaintiffs’ application was made pursuant to the following statutory provisions: Section 50 of the SRA 1950: “Preventive relief how granted

Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.” O. 29, r. 1 of the RC 2012: “Application for injunction (O. 29, r. 1)

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An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in the party's originating process, counterclaim or third party notice, as the case may be. …”.

For present purposes, sub-s 51(1) of the SRA 1950 is also relevant and it reads: “Temporary injunctions are such as are to continue until a specified time, or until the further order of the court. They may be granted at any period of a suit, and are regulated by the law relating to civil procedure.

Interlocutory injunctions are usually granted to continue until the disposal of the main action or until further order by the Court to preserve the status quo between the parties in the meantime.

The parties are in agreement that the principles governing the Court’s discretion to grant an interlocutory injunction are as laid down in American Cyanamid Co. v Ethicon Ltd [1975] 1 All ER 504 (see too, Keet Gerald Francis Noel John v Mohd Noor @ Harun bin Abdullah & 2 Ors [1995] 1 CLJ 293).

In order for the Plaintiffs to succeed in this application, they have to satisfy the following criteria:

there are bona fide serious issues to be tried;

the balance of convenience lies in favour of the Plaintiffs; and

the Plaintiffs cannot be adequately compensated by damages.

In Keet Gerald Francis’s case (supra), the Defendant submitted that the court will also take into account the factors as to the plaintiff’s delay in making the application and undertaking to pay damages.

The Defendant contended that the application should be dismissed as the Plaintiffs have failed to satisfy the requirements for an interim injunction to be granted as –

there are no bona fide issues to be tried;

the balance of convenience lies in favour of dismissing the Plaintiffs’ application;

the Plaintiffs did not provide any undertaking to pay damages;

the Plaintiffs delayed in making this application; and

the Plaintiffs did not come to Court with clean hands as they failed to make full and frank disclosure. 1st Issue: Whether the Plaintiffs delayed in making this application

Based on the decisions in Alor Janggus Soon Seng Trading Sdn Bhd & 6 Ors v Sey Hoe Sdn Bhd & 2 Ors [1995] 1 CLJ 461 and Tenaga Nasional Bhd v Teobros Development Sdn Bhd [2008] 6 MLJ 391, the Defendant contended that the Plaintiffs must make the application for an interlocutory injunction to the court without delay and the delay which is considered fatal is the delay after knowing of the infringement.

In this case, the Plaintiffs were aware of the Defendant’s intention to demolish the Properties since 10.1.2023, the date of the Notice To Demolish. However, the Plaintiffs did not file any injunction application or took any legal action until 20.2.2024, despite their repeated claim that the demolition would cause serious consequences. No explanation was provided by the Plaintiffs for the inordinate delay in filing encl.

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I have considered the Defendant’s argument and I find that the Plaintiffs have set out the chronology of events after the issuance of the Notice To Demolish until the filing of encl. 5 in paragraphs 11 – 14 of the AIS and paragraph 21 of the AIR (encl. 12). Basically, the Plaintiffs had to gather support from the residents of the Condominium and through the solicitors whom they have appointed, to sent a notice of objection to the Defendant dated 7.2.2023. This notice was sent to the Defendant’s address as per the SSM search, which turned out to be the Company’s Secretary, and was also e-mailed on 9.2.2023 and 16.2.2023.

It was further explained in encl. 12 that the Plaintiffs are not part of a big company and are ordinary people with ordinary lives. Therefore, they tried to reason and voice their rights as residents of the Condominium with the Defendant. However, no response was forthcoming from the Defendant. Filing the civil suit was their last resort.

In the circumstances, I was inclined to the view that there was no delay by the Plaintiffs in the filing of encl. 5. 2nd Issue: Whether the Plaintiffs failed to make full and frank disclosure

The Defendant referred to the case of JB Kulim Development Sdn Bhd v Great Purpose Sdn Bhd [2002] 2 CLJ 345 in contending that the Plaintiffs have not come to court with clean hands as they have failed to disclose the following facts which will affect the decision of this Court:

the original House Rules where under “Section I Preliminary”, it is stated, among others, that: “2. In these Rules unless the context otherwise requires : “Clubhouse” means the clubhouse containing various recreational facilities and amenities to be constructed by the vendor and situated adjacent to the Condominiums and which Clubhouse shall be and remain the exclusive property of the Vendor. “Common Property” has the meaning assigned to it under the Strata Titles Act 1985 and excludes the Clubhouse. …” (emphasis added); and

the 2005 Suit which was disposed by the High Court.

The point of argument in relation to the 2005 Suit has been addressed under the issue on res judicata and will not be repeated here.

As regards the matter pertaining to the House Rules, the Plaintiffs have explained in their AIR as to the reason for not disclosing the original House Rules, namely that the residents have amended the House Rules at the Extraordinary General Meeting held on 1.10.2023 (‘EGM’) whereby – “…

1.1 In these Rules unless the context otherwise requires: …

1.3 Clubhouse Facilities :- swimming pool, tennis court, playground, squash court, launderette and nursery. The club house containing various recreational facilities and amenities constructed by the Developer and is situated adjacent to the Condominiums and which, Clubhouse shall be and remain part of the common property belong to Purchasers or Residents. The facilities within the Clubhouse parameter is meant solely for the usage of owners/residence of Sri Desa Condominium. The Clubhouse area and facilities are not meant to be used for Public or any business activity.

1.4 Common Area-Common area is managed by SDCMC as defined according to the Strata Management Act 2013 (ACT 757) & Regulation and Includes the Clubhouse. …”.

A copy of the Minutes of the 15th – No. 2 EGM can be seen in exhibit “CMC-5”.

As the Defendant intends to rely on the original House Rules, it has rightfully exhibited the same in its AIR and the Plaintiffs have provided their response on the matter.

In the discussion on the issue of locus standi, I had noted that the Plaintiffs are not seeking for an order that the common area shall include the Properties. Therefore, the definition of “Clubhouse”, “Common Property” and “Common Area” whether in the original or amended House Rules bears no relevance to the Plaintiff’s application for an interlocutory injunction and the Defendant has not established that the Plaintiffs failed to make full and frank disclosure on this matter. 3rd Issue: Whether there are bona fide issues to be tried

The Defendant asserted that the Plaintiffs did not disclose any bona fide issues to be tried because –

the Land and the Properties belong to the Defendant and the Defendant has the right to exercise its power over them;

the Plaintiffs are not the proper plaintiffs to initiate this suit;

the alleged consequences of the proposed demolition are baseless and premature allegations; and

the Resolution passed during the EGM is null and void.

My justification in rejecting the ground as stated in subparagraph 32(b) above has been elaborated under the issue of locus standi. In fact, from the previous analysis and the extensive averments and submissions by the parties themselves, it is obvious that there are serious and bona fide issues to be tried in this case. Moreover, at this stage of the proceedings, the Court is unable to conclusively determine whether the Resolution passed during the EGM is valid. 4th Issue: Balance of convenience

The Defendant submitted that the balance of convenience lies in dismissing the injunction application because it will suffer injustice for the following reasons:

there are no bona fide issues to be tried;

it would not be in the interest of justice to grant injunction based on the Plaintiffs’ bare allegations which are not supported by any evidence, particularly regarding the consequences of the Defendant’s actions, which are still under investigation after being denied by the Defendant. Consequently, the alleged consequences are not substantiated, rendering this application pre-mature;

if the interlocutory injunction is granted, the Plaintiffs, being mere licensees, will continue to benefit from the Defendant, but the Defendant’s rights will be prejudiced as the Defendant is not allowed to exercise its rights on the Land; and

in the event of any loss suffered by the Defendant due to being restrained from exercising its rights, the Plaintiffs have not provided any undertaking of damages.

In my considered view, the balance of convenience leans in favour of the Plaintiffs as they have shown that there are bona fide issues to be tried. As the purchasers under the SPA and the registered parcel proprietors, the Plaintiffs have every reason to defend their contractual right to the facilities which were promised to them. The Plaintiffs have consistently contributed to the maintenance fee and the sinking fund, which includes expenses to maintain and sustain the Clubhouse. 5th Issue: Undertaking as to damages

No undertaking as to damages was provided by the Plaintiffs in their affidavits. Hence, the Defendant relied on Keet Gerald Francis’s case and Jaks Island Circle Sdn Bhd v Star Media Group Bhd & Anor (and Another Originating Summons) [2020] 1 CLJ 839 in submitting that this requirement, which is meant to mitigate the risk of unfairness to the party against whom an interlocutory injunction is ordered at a time when the issues have not been fully determined and all the facts have not been ascertained, has not been fulfilled.

However, I accepted the submission by the learned counsel for the Plaintiffs that the absence of an undertaking as to damages is not fatal because this application was heard on an inter- partes basis (see Petronas Dagangan Sdn Bhd v Omar Bin Abdul Samad [1996] 4 MLJ 391 and Eshwara Engineering Sdn Bhd v Delta Structure Sdn Bhd [2003] 4 MLJ 18) and it is “a rule of flexible application, and not an immutable pre-requisite” (see Ang Sue Khoon v Majlis Bandaraya Pulau Pinang [2016] 11

Premised on the aforesaid considerations, the Plaintiffs application for an interlocutory injunction as per prayers 1 to 4 in encl. 5, until the disposal of the suit, was allowed. No order was made as to costs. DATED: 22.9.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Solicitors for the Plaintiffs: Navinjit Singh Golen Messrs. Harjit Sandhu, Wan & Associates Solicitors for the Defendant: Au Yong Wai Nyan (Ang Jie Yi with him)