Chia Kim Hoong v Eco Green City Sdn Bhd (BA-12ANCvC-31-06/2025)

Chia Kim Hoong [No. Kad Pengenalan: 750731145469]

Puvaneswary a/p Raja Gopal [No. Kad Pengenalan: 860206105538]

Jayraj a/l Thanapalu [No. Kad Pengenalan: 810622086473]

Hema Nathan a/l Raja Gopal [No. Kad Pengenalan: 880202086737]

Marzuk bin Hashim [No. Kad Pengenalan: 830313145087]

Ruhaiza Azereen binti Abdul Rani [No. Kad Pengenalan: 860212015264]

Abdul Rahim bin Abdul Rahman [No. Kad Pengenalan: 780721065083] … PERAYU-PERAYU

Eco Green City Sdn Bhd [No. Syarikat: 822302-T] … RESPONDEN 04/03/2026 08:47:18 BA-12ANCvC-31-06/2025 Kand. 32 GROUNDS OF JUDGMENT

This in an appeal against the decision of the Sessions Court judge on 13.05.2025 in allowing the Respondent’s/Defendant’s application under Order 14A and/or Order 33, Rule 2 and/or Order 33, Rule 5 of the Rules of Court 2012.

The Appellants/Plaintiffs, purchasers of houses purchased from the Respondent/Defendant (Developer), had filed a suit in the Sessions Court alleging breach of contract, breach of implied terms, negligent misrepresentation, and breach of statutory duty. Some of the Appellants/Plaintiffs, proceeded to file notice of discontinuance and four principal appellants still remain, mainly the 1st, 2nd, 3rd, and 4th Appellant.

The Sessions Court, in allowing the Respondent’s/Defendants’ striking out application, found that the Appellant’s/Plaintiff’s claims were frivolous, vexatious, and/or an abuse of court process, and that the claims were outside the Sessions Court’s monetary jurisdiction.

The Respondent/Defendant is Eco Green City Sdn Bhd who developed a housing project comprising about 418 unit of terraced houses called the GreenCasa @ Cybersouth, Phase 1B. The Appellants/Plaintiffs are purchasers, of individual units whom entered into sale and purchase agreements with the Respondent/Defendant and the terms of the SPA were provided for in Schedule G of the Housing Development (Control and Licensing) Regulations 1989 (“HDR”). On 19.10.2018, the Certificate of Completion and Compliance (“CCC”) was issued for the Project and vacant possession of the units were delivered to the respective Appellants/Plaintiffs.

When the CCC was issued and the Appellants took vacant possession, the SPA contained, a 24‑month Defect Liability Period under Clause 25, with express provisions dealing with delivery of vacant possession, certificates of completion and compliance

(CCC), and the purchaser’s remedies for defect.

The SPA provided for the rights and mandatory steps to be taken by the Appellants against the Respondent in the event there is any “defect, shrinkage or other faults” in the units as follows: - Clause 25 SPA states as follows:- “DEFECT LIABILITY PERIOD

Any defect, shrinkage or other faults in the said Building which shall become apparent within a period of twenty-four

calendar months after the date the Purchaser takes vacant possession of the said Building not having been constructed in accordance with the plans and description as specified in the Second and Fourth Schedule as approved or amended by the Appropriate Authority, shall be repaired and made good by the Vendor at its own cost and expense within thirty (30) days of the Vendor having received written notice thereof from the Purchaser.

If the said defect, shrinkage or other faults in the said Building have not been made good by the Vendor within the said period of thirty (30) days under subclause (1), the Purchaser shall be entitled to carry out the works to repair and make good the said defect, shrinkage or other faults himself and to recover from the Vendor the costs of repairing and making good the same and the Purchaser may deduct such costs from any sum which has been held by the Vendor’s solicitors as stakeholder for the Vendor under item 5 of the Third Schedule provided that the Purchaser shall, at any time after the expiry of the said period of thirty (30) days, notify the Vendor of the cost of repairing and making good the said defect, shrinkage or other faults before the commencement of the works and shall give the Vendor an opportunity to carry out the works himself within fourteen

days from the date the Purchaser has notified the Vendor of his intention to carry out the said works and provided further that the Purchaser shall carry out and commence the said works as soon as practicable after the Vendor’s failure to carry out the said works within the said period of fourteen (14) days. In such an event, the Vendor’s solicitors shall release such costs to the Purchaser from the stakeholder sum held by the Vendor’s solicitors under item 5 of the Third Schedule within fourteen (14) days after receipt by the Vendor’s solicitors of the Purchaser’s written demand specifying the amount of such costs.

Subject to subclause (2), where the Purchaser has, before the expiry of eight (8) months or twenty-four months after the date the Purchaser takes vacant possession of the said Building as set out in item 5(a) and item 5(b) respectively of the Third Schedule, duly served on the Vendor’s solicitors a copy of the written notice from Purchaser to the Vendor under subclause (1) to rectify the said defect, shrinkage or other faults in the said Building, the Vendor’s solicitors shall not release to the Vendor the relevant sum held by the Vendor’s solicitors as stakeholder pursuant to item 5(a) and/or 5(b) of the Third Schedule, as the case may be, until the Vendor’s solicitors shall have received a certificate signed by the Vendor’s architect certifying that the said defect, shrinkage or other faults in the said Building have been repaired and made good by the Vendor.”

This court takes note that, prior to the filing of this case in the Sessions Court, the Appellants together with many other purchasers, had filed a civil suit in the High Court against the Respondent based on the same similar facts in relation to alleged breaches and defects in the SPA.

Namely the first suit, WA‑22NCVC‑438‑06/2019 (referred as “Suit 438” which was withdrawn eventually on the 26.05.2022 because parties were amidst settlement as well as some purchasers refused to proceed for trial. The second suit BA‑22NCVC‑260‑07/2022 (referred as “Suit 260”), was struck out by the High Court on 16.01.2023 with liberty to refile subject to certain categorisation and conditions by a court order.

The High Court’s order in “Suit 260” required purchasers to refile according to categories “A”, “B”, and “C” which generally, limited the number of transactions in a single suit and provided specific rules for matters concerning res judicata and settlement as below: - “(A)” Transactions that involve the issue of res judicata (where the Plaintiffs had filed in the court or tribunal with regard to the liquidated ascertained damages for late delivery of vacant possession) should be filed by the respective buyers in a separate suit; “(B)” Transactions that involve the issue of settlement agreement (regarding the liquidated ascertained damages for late delivery of vacant possession) should be filed in a suit subject to a maximum of ten (10) transactions in a suit; and “(C)” Transactions that are outside of the above categories may be filed in one (1) suit, subject to a maximum of ten (10) transactions in a suit.”

The Respondent filed an application under Order 14A/Order 33 r.2/r.5 as to whether the matter should be disposed of summarily by the Sessions Court with regards to the above High Court Suits and judgements. The Sessions Court Judge, allowed the application on 13 May 2025, dismissing the Appellants’ action and the main question for determination on this appeal, concerns the substance of the Order 14A application by the Respondent.

11.

Whether the Appellants’ action in the Sessions Court was filed in breach of the High Court’s order in Suit 260 and hence constituted an abuse of process?

12.

Whether the Appellants’ pleaded claims, in particular the claim for liquidated ascertained damages (LAD) for delay, exceeded the monetary jurisdiction of the Sessions Court under Sub-section.65(1)(b) of the Subordinate Courts Act 1948?

13.

Whether the Appellants, the owners of only a few units, have locus standi to challenge Form G7 and the CCC which were issued for an entire development?

14.

Whether the Plaintiffs have pleaded a reasonable cause of action for breach of contract, negligent misrepresentation and/or breach of statutory duty?

15.

Whether the learned Judge was right to dispose of the matter summarily under Order 14A and/or Order 33 r.2 and r.5. LAW AND RELEVANT FACTS FOR COURTS DETERMINATION. Abuse of process and the binding nature of court orders

The High Court in “Suit 260” struck out the Appellants’ Writ with liberty to refile subject to categorization of “A”, “B” or “C” and a maximum of ten transactions per suit for certain categories. This court notes that the order remains in force and binding upon the relevant parties since there was no appeal made against that decision.

Furthermore, some purchasers included amongst the Appellants in this appeal, had entered into settlement agreements and had accepted settlement monies in relation to LAD claims in respect of their individual units. Therefore, those mixed purchasers would fall within the High Court’s Category B and not entitled to refile as Plaintiffs in the same manner as Category C purchasers.

Based on the facts, the high court order in “Suit 260” requested some of the Plaintiffs to refile under specified conditions, which to date are still binding, until set aside. Refiling another suit in the Sessions Court, would clearly contravene a valid High Court order amounting to an abuse of process. The Sessions Court has the right to strike out or dismiss proceedings which contravene prior valid orders amounting to an abuse of process.

The court must guard against litigants seeking to relitigate or circumvent a valid prior order by refiling haphazard claims in other settings. The present action, in the posture presented, in the Sessions Court pleadings together with accompanying documents, amounted to an abuse of process because it ignored the High Court order in “Suit 260” and attempted to relitigate, reconstitute claims already governed by the categorisation scheme.

Accordingly, the Sessions Court was entitled to find that the Appellants’ action was filed contrary to the conditions imposed by the High Court order in “Suit 260” and that the action was an abuse of process.

I agree with the Respondents that in the case of Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ 637 the Court of Appeal amongst others held that the categories of abuse are not closed and sometime abuse can be shown by the very steps being taken in the courts: - “Whether the institution of an action or its continuation or a step taken therein amounts to an abuse of process depends upon particular and individual circumstances. Where an action is found to be an abuse of the court's process, it may be struck out or stayed. If it is too late to do this, the party aggrieved may bring an action based upon the tort of abuse of process. This court dealt with the point fairly recently in the context of the tort of abuse of process. It was in Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 2 MLJ 425. I there said (at p 434): … Sometime abuse can be shown by the very steps being taken in the courts. … … At other times, the abuse can only be shown by extrinsic evidence that the legal process is being used for an improper purpose. On the face of it, in any particular case, the legal process may appear to be entirely proper and correct. …” Monetary jurisdiction

Moving on, the Statement of Claim in the Sessions Court consolidated multiple purchasers and an aggregate LAD claim which, as pleaded, computed accordingly, to the formula in the SPAs, exceeded RM1 million. It is clearly pleaded and the LAD of the four Appellants, whom still remain, as at the date of the Writ, exceeds RM1 million.

Section 65(1)(b) Subordinate Courts Act states, that the Sessions Court’s civil jurisdiction is limited to actions where the amount in dispute or the value of the subject matter does not exceed RM1 million. Wherever Plaintiffs consolidate or lump up their claims or multiple plaintiffs in one action, the test is the totality of the claims in that action and whether the action as pleaded falls within the monetary jurisdiction.

The authorities below demonstrate that the limit applies to the action before the court, not to each plaintiff’s separate transaction but where the claims are combined in a single suit.:- a) New Straits Times Press (M'sia) Bhd & Ors v Hazahar Idris [1998] 4 CLJ SUPP 502 b) Mohd. Mustafa Shuib & Ors. v Zakaria Subri & Anor. [1990] 2 CLJ Rep 494

In my opinion, the law is clear, monetary limit governs the action before the court as a whole and therefore the Sessions Court had properly concluded that this claim was beyond its financial jurisdiction and constituted a mis‑forum of the claim. Filing an action in the wrong forum and seeking to force adjudication within the Sessions Court was an abuse of process, and summary disposal of the issue was appropriate.

In particular the LAD claims. in paragraph xiii of the Statement of Claim, placed an aggregate amount in dispute beyond the monetary jurisdiction of the Sessions Court. The pleaded computations in the Record of Appeal show that, even limited to the remaining four Appellants now before this Court, the LAD claim alone exceeded RM1,000,000.00 when computed in accordance with the rate and periods pleaded in the SPAs. Privity and locus to challenge statutory forms

A purchaser who is one of many owners in a development does not automatically have a free‑standing locus to set aside certificates issued for an entire development (Form G7/CCC) where other owners would be affected and where the certifying architect/consultant is not before the court.

Appellants did not produce any evidence regarding the position of the other 410 terrace houses owners in the Project, nor was there any evidence on notices of this case being given to the other owners to enable them to express their position/views.

Further the issue of validity of CCC which in many respects engages statutory and administrative provisions under the Street, Drainage and Building Act 1974, can have criminal implications, referring to the Section 70 of the said Act. Here the court has navigate cautiously as the appropriate parties are not present nor named as a party in this action.

As a point of reference, this court considers the case of Chin Kok Woo & 18 Ors v Sky Park Properties & 3 Ors [2022] 10 MLJ 153, where the High Court held that a developer can deliver vacant possession of the parcel or unit once CCC has been issued by the Architect.

Furthermore, the Appellants attempt to dispute Form G7 and the validity of the CCC, which raises fundamental problems as the CCC was issued for the entire development and the certifying architect/consultant, whom were the primary professional author of the relevant forms, were not a party to this suit.

The Appellants are four out of 418 purchasers, considering the withdrawal of other Plaintiffs, yet now the Appellants are seeking sweeping reliefs that would affect all owners. The implications of invalidating a CCC, under Section 70 of the Street, Drainage & Building Act 1974, ties into criminal liability and to common knowledge, if any buildings are occupied without a CCC, this case would draw third parties and public interests.

The Appellants did not demonstrate they had either standing to obtain relief that would bind or affect non‑parties who occupy or own the other units, nor did they provide evidence that those other owners were notified or joined. On those grounds alone the Sessions Court was right to answer the question of locus adversely to the Appellants.

The Appellants have no free‑standing right, in the position they demonstrate, to set aside or nullify a CCC affecting an entire development without proper parties and notice. The issue, in any event, engages administrative and regulatory dimensions that the Appellants had not properly framed or supported. Contractual terms, Clause 25 (DLP) and implied terms:

Where the contract is a standard SPA, governed by Schedule G of the HDR, the SPA itself states the purchaser’s remedies for defects in Clause 25 and prescribes mandatory procedural requirements. Where remedies for defects are provided in Clause 25, a purchaser who has not complied with its provisions including notice and procedural steps, cannot, immediately and without satisfying the contract’s preconditions, treat the matter as a free‑standing breach of contract and seek remedies inconsistent with the contract.

Where the SPA is a statutory contract (Schedule G) the court must be slow to imply terms inconsistent with the statutory scheme or which would circumvent express protective mechanisms and I agree with the case of Choot Ewe Hin & Anor v Saujana Triangle Sdn Bhd and another suit [2017] MLJU 333.

This court observes that the Statement of Claim drafted has left some critical legal arrears, firstly, the Appellants alleges a breach of contract, yet did not identify with adequate particularity which express contractual terms in the SPA had been breached, and attempted to characterise defects and associated complaints as broader breach of contract claims that ignored the SPA’s express defect regime in Clause 25.

When a contract sets out mandatory processes and remediation steps, those steps must be followed and shown to have been followed or to have been rendered nugatory before a claimant can proceed to alternative remedies. The Appellants failed to plead, and in the evidence on record failed to show, compliance with Clause 25’s prerequisites on notice, opportunity to rectify, timescales, stakeholder mechanics, in a manner sufficient to sustain a claim inconsistent with the contract.

Secondly, the Appellants sought to rely on implied terms of quality and fitness, however the SPA is a statutory standard contract referring to Schedule G in HDR. The courts have repeatedly stressed caution in implying terms into statutory contracts where the statute and standard terms provide specific protection and allocation of risk. The Appellants’ attempt to import building‑contract implied obligations for example a workmanlike performance and fitness for habitation into the Schedule G SPA without addressing the SPA’s express defect regime was legally unsound.

Thirdly the negligent misrepresentation claim was inadequately pleaded as the SPAs were written agreements as the pre‑contractual brochures and marketing materials contained explicit disclaimers and artist’s impressions and cannot be treated as contractual promises in the face of an express written SPA. Furthermore, a cause of action in negligent misrepresentation requires a special relationship or assumption of responsibility which in this case is not pleaded. Breach of statutory duty and Regulation 5(3) HDR:

Regulation 5(3) makes false or misleading statements in permit applications an offence; it does not on its wording create a private cause of action. The statutory scheme indicates criminal/regulatory consequences (Reg. 13 penalties) rather than a civil private law cause of action, unless the statute plainly provides otherwise. The authorities cited before me confirm that breach of statutory duty will only give rise to a private cause of action if Parliament intended to confer such a right.

Reliance on Regulation 5(3) HDR as creating a private cause of action for misleading advertisements is misconceived. Regulation 5(3) designates misleading permits/advertisements as offences within the Regulations and Regulation 13 prescribes penalties. The HDR’s scheme is primarily regulatory; it does not demonstrate a clear parliamentary intention to create private civil causes of action for every breach of the regulation. The authorities cited by the Defendant on this point are consistent with the position that regulatory offences do not automatically give rise to private civil remedies absent clear legislative intent.

The authority on point referred to is the case of Tuan Hj Zulkifli bin Hj Hussain & Ors v IOI Corp Bhd & Ors [2012] 7 MLJ 215, 228, 245 and 253. Order 14A and Order 33 r. 2 / r.5 of the RHC

There were large groups of Plaintiffs whom filed litigation suits in “Suit 438” which was withdrawn and “Suit 260” which was eventually struck out on the terms that the parties were to refile in categories “A”, “B” and “C”. Following which, some purchasers refiled a new suit in Sessions Court and the Defendants applied for a summary disposal under Order 14A and Order 33 r. 2 / r.5 of the RHC procedures to determine legal questions without full trial.

The Sessions Court judge allowed that application and dismissed the plaintiffs’ claims and the plaintiffs appealed. In my opinion, the law is very clear, that the court has power to decide on questions of law or construction and to try preliminary questions or issues of fact or law that renders a trial unnecessary.

Order 14A may be used where there is no dispute as to the relevant material facts or where the court, on scrutiny of the pleadings and documents, concludes the material facts are not in dispute and the question is one of law or construction. However, this power to finally determine must be exercised with caution as established by the authorities in the parties’ bundles.

The authorities make clear that Order 14A and Order 33 r.2/r.5 should be deployed where the material facts are not in dispute and/or where the court can, on the pleadings and documents, resolve the legal questions without a full trial. The present case presented such issues, where the High Court’s order, the categorisation of purchasers and the monetary consequences are matters of record and documentary proof clearly specified.

The SPA terms are statutory and in writing and the CCC/Form G7 were issued and are in the record. Given the nature of the legal questions on jurisdiction, abuse of process, compliance with High Court order, whether the pleaded action complied with SPA Clause 25 and whether statutory regulation confers a private right, the Sessions Court was entitled to determine the matters summarily. The Sessions Court took care to consider the relevant authorities and the record and to apply the applicable legal tests. Its exercise of jurisdiction and discretion was not plainly wrong nor attended by any error of law warranting appellate interference.

On a brief note, I would also like to address the dismissal of the Striking Out Application in Enclosure 7 filed in the Sessions Court earlier. However, this court is in the opinion that Enclosure 7, is irrelevant and does not affect the determination of the legal principles of O14A. It must be distinguished from an application under a Striking Out Application in Order 18 rule 19 of the Rules of

Authorities referred to are as follows: -

Sugi Sinar Sdn Bhd v Bank Muamalat Malaysia Berhad (Small Medium Enterprise Development Bank Malaysia Berhad (dahulunya dikenali sebagai Bank Perusahaan Kecil & Sederhana Malaysia Berhad), pihak ketiga) [2017] MLJU 62, which states:- “[10] It is clear from the reading of the above that the provisions in Order 14A is an addition to the powers given under Order 18 Rule 19 of the Rules. It can be exercised separately and independently of Order 18 Rule 19 of the Rules. In this case there had been an earlier unsuccessful attempt by the Defendant to strike off the case by virtue of Order 18 Rule 19. It is the court’s view that the dismissal of the application under Order 18 Rule 19 does not prevent the court from applying Order 14A.” (emphasis added)

(ii) Nora Hayati Ismayatim v Amanah Raya Bhd [2012] 10 CLJ 634 “[18] The court agrees with learned counsel for the defendant that relying on the afore-stated authorities, the doctrine of res judicata would not be applicable in this case. This is because the principles applicable in a striking out application under O. 18 r. 19(1) of the RHC 1980 are quite different from that of an application under O. 14A. In a striking out application, the court is concerned with whether the case was a plain and obvious case where recourse should be had to the summary process under that rule, which process should only be adopted when a claim is on the face of it "obviously unsustainable" (See Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7. The court finds that whilst the Court of Appeal had allowed the plaintiff's appeal in respect of the defendant's striking out application, there is no indication in the order of the Court of Appeal that it was on any other ground other than the fact that it was NOT on the fact of it "obviously unsustainable". The court agrees with learned counsel for the defendant that the Court of Appeal had not "necessarily and with precision" determined the issues that are now raised by the defendant in their O. 14A application such as to preclude them from making the present application.” (emphasis added) CONCLUSION The Plaintiffs’ grievance about defects or other performance concerns remains a grievance of fact. If the Plaintiffs wish to pursue appropriate claims in a proper forum, they must do so in accordance with the High Court’s order, the monetary jurisdictional limits and the terms and procedures in their contracts. The courts will not approve attempts to circumvent orders, statutory regimes or contractual preconditions under cover of multiplicity of suits in an unfitting medium. For the reasons set out above, I dismiss this appeal with cost and the Order of the Sessions Court dated 13 May 2025 is affirmed. Dated : 3 March 2026 sgd SHOBA DORAI RAJAH JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT Peguam bagi pihak Perayu-Perayu: Badrina Ibtisam Binti Badrul Hisham [TETUAN RODNEY & CO.] Peguam bagi pihak Responden: Victor Pang dan Tan Ko Xin [TETUAN JUSTIN VOON CHOOI & WING (KUALA LUMPUR)]