Schedule
Schedule H of the Housing Development (Control and Licensing) Regulations 1989 requires delivery of vacant possession of the residential parcels and to complete the common facilities of the Project within 36 months from the date of the SPAs failing which D1 would be 90 liable to pay liquidated damages (LAD) to the respective purchasers. 4.3 Knowing that it would require more than 36 months to complete the Project, D1 through letters dated 19.12.2011 and 19.01.2012 respectively, applied to the Menteri Perumahan Dan Kerajaan 95 Tempatan (the Minister) for additional time to deliver vacant possession of the parcels and complete the common facilities for the Project from 36 months to 54 months: 4.3.1 The Minister approved D1's application through a letter dated 06.02.2012 signed by Suhaimi Bin Sawal (Suhaimi), an officer in 100 the Ministry of Housing and Local Government, where a 54-month extension of time (EOT) was granted. 4.3.2 On the basis of this Ministrial approved EOT: (i) D1 altered the completion period and delivery of vacant possession in the SPAs to reflect the said EOT before the 105 respective SPAs were finalised and executed between 2012-2013; and (ii) D1 agreed to sell the parcels to the Ps at the purchase prices stated in the respective SPAs with discounts offered on the individual purchase price. 110 4.3.3 Subsequently, through settlement letters entered into on different dates from 2017 onwards (Settlement Letters), 78 Ps accepted payments in full and final settlement of their LAD claims. 4.4 On 24.03.2021, the Ps filed this action claiming that the EOT granted by 115 the Controller is invalid and that the impugned parcels should have been delivered within 36 months instead of 54 months. 4.5 The Ps claimed various relief against the D1, including a declaration to nullify the extension and, consequently, LAD for late delivery. In support, 120 the Ps grounded their claims primarily on Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor and Other Appeals [2020] 1 CLJ 162, FC in that, the said letter approving the EOT is not valid in law. 125 SUBMISSIONS BY THE FIRST DEFENDANT (D1) [5] In support of enclosure 161, D1 argued: 5.1 That paragraphs 103-122, and 141(a)-(d) of the ASoC are plainly and obviously unsustainable because: 5.1.1 The EOT granted was by the Minister and not the Controller; 130 5.1.2 This challenge must be by way of Judicial Review; 5.1.3 This action is already time-barred; and 5.1.4 The Settlement Letters had superseded and extinguished the 78 Ps' original cause of action under the SPAs. 5.2 In an earlier application to issue a Third-Party Notice by D1 (enclosure 135 25) to bring in the Government of Malaysia, the Minister, and the officer of the Ministry seeking indemnity from them: 5.2.1 It was averred in an affidavit by the Government (20.08.2021) that the Minister granted the EOT; 5.2.2 Only that it was conveyed to D1 by the Ministry's officer (Suhaimi) 140 via a letter; 5.2.3 A handwritten note by the Minister was exhibited to that effect, confirmed by Suhaimi.; 5.2.4 The EOT is, therefore, valid in law contrary to the Ps arguments in opposing enclosure 25 (Third Party Proceedings); 145 5.2.5 In enclosure 25, this Court determined that the said EOT was granted by the Minister as required by law. Therefore, the decision in Bluedream City Development Sdn Bhd v Kong Thye & Ors And Other Appeals [2022] 2 CLJ 829, CA applies in that a Minister is empowered to grant an EOT; 150 5.2.6 Whereas, Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor and Other Appeals [2020] 1 CLJ 162, FC revolves on the validity of an EOT granted by the Controller as opposed by the Minister; 5.2.7 The Ps participated in the Third-Party Proceeding (enclosure 25) 155 by D1 by filing an affidavit in reply (21.07.2022) disputing the validity of the impugned EOT. Based on the parties' arguments herein, the Court determined that it was the Minister's decision and dismissed enclosure 25; 5.2.8 The Ps elected not to appeal on that issue to the CA. It must, 160 therefore, be taken to be final and binding between the parties herein: SIS Forum(M) & Ors v Jawatankuasa Fatwa Negeri Selangor & Ors [2018] 3 MLJ 706, CA: Though it was a decision made on an interlocutory matter which was merely procedural, it was binding on the Court and all parties to this unless and until it 165 is reversed on Appeal; and 5.2.9 It renders the Ps claim in so far as it relates to LAD (paragraphs 103-122, and 141(a)-(d) of the ASoC) as scandalous, frivolous and vexatious (O.19, r.19(1)(b) RC 2012). It also would constitute an abuse of process (O.19, r.19(1)(d) RC 2012). Collectively it makes 170 the said claim plainly unsustainable and must be struck off. 5.3 A challenge on the validity of the administrative decision on the said EOT in the said impugned paragraphs must be taken by Judicial Review as prescribed by the rules and not by this writ action. It is in the realm of 175 public law and not a private law issue: Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865, FC. It, therefore, amounts to an improper and an abuse of the Court process. This error is fatal and irreparable: Obata Ombak Holdings Sdn Bhd v Prema Bonaza Sdn Bhd & Other Cases [2021] 10 CLJ 180 596, which the CA had affirmed. See also Choy May May & Ors v Prema Bonaza Sdn Bhd [2022] 8 CLJ 614: “Since they (Ps) are aggrieved with the executive decision in allowing the EOT in clauses 25 and 27 of the SPAs (after a lapse of ten years), they must challenge that executive decision by way of Judicial Review (O.53 RC 2012) in seeking an 185 abridgement of time under O.53, r.3(7). This legal and procedural mechanism cannot be circumvented since granting the said EOT is interlocked with the variation in the impugned clauses that involve predominantly public law issues. The heart of the Ps civil suits hinges on the said EOT, which Judicial Review must quash if it was invalid and not by a declaration in this civil suit. When a wrong mode is used, it must 190 be struck off as a matter of course”. It renders the impugned paragraphs obviously unsustainable and liable to be struck off: Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Sdn Bhd [1993] 4 CLJ 7, SC (the Bandar Builder 195 SC test). 5.4 A decision given by a Court at one stage on a particular matter or issue binds it at a later stage in the same or a subsequent suit. Parties are not allowed to raise a second time in the same suit a matter already decided 200 expressly or by implication: SIS Forum(M) & Ors v Jawatankuasa Fatwa Negeri Selangor & Ors (supra). In responding to the Ps arguments: 5.4.1 That the letter by the Ministry's officer did not say he was acting on behalf of the Minister cannot hold in light of the evidence; 205 5.4.2 The letter did not say the EOT was issued under Regulation 12 of HDR is not sustainable; 5.4.3 No Federal Gazette that the Minister delegated his power over the matter to the Controller or his officer since evidence before the Court shows it’s the Minister that had decided the approval of the 210 EOT and not otherwise; and 5.4.4 The Ps were not allowed to be heard on the EOT is untenable since the EOT was granted before the SPAs were executed. 5.4.5 The nature of these arguments had been canvassed and ventilated during the Third-Party Notice proceeding (enclosure 215 25), with a determination made by this Court based on cogent evidence that the Minister had approved the EOT. 5.4.6 Res-judicata must apply in the circumstances to deny a regurgitation of similar arguments: Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, SC. 220 5.4.7 The argument that the date for the LAD runs from the booking fee (PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah Ng Chee Kuan and Other Appeals [2021] MLRAU 8, FC) is a misdirection. It makes no difference at this juncture when it runs since the claim on the LAD is obviously unsustainable. In addition, 225 the 78 Ps had voluntarily executed the Settlement Letters that were legally valid and bound them. 5.5 The Ps actions are grounded on the SPAs executed between 2012-2013 is, more than six years old when this suit was filed on 24.3.2021. It is 230 clearly barred by limitation (s.6 Limitation Act 1953): Obata Ombak Holdings Sdn Bhd v Prema Bonaza Sdn Bhd & Other Cases (supra), CA, agreed with the HC that the Ps claim, in that case, had already been barred by limitation on the filing of the civil suits. Consequently, the impugned paragraphs should be dismissed as prayed where the 235 doctrine of stare decisis applies: Choy May May & Ors v Prema Bonaza Sdn Bhd (supra). 5.6 The Settlement Letters voluntarily executed by the 78 Ps to settle their LAD issue had accepted and acknowledged receipt of their respective 240 agreed compensation. It constitutes a full and final settlement of the issue of the LAD arising under the individual SPAs between the parties. It binds the 78 Ps under s.64 Contracts Act 1950 (accord and satisfaction): Pinpoint Consortium (M) Sdn Bhd v Mammoth Empire Land Sdn Bhd [2020] 5 CLJ 281, HC (S.16T and 16AB Housing 245 Development (Control & Licensing) Act 1966 recognize the validity of Settlement Agreements to facilitate resolution of the dispute between parties). Settlement Agreements are valid under s.64 Contracts Act 1950, and the HDA has no provision to strike down such an agreement reached between the parties. Parties who voluntarily entered into such agreement must be 250 estopped in claiming otherwise save for the presence of vitiating factors: Obata Ombak Holdings Sdn Bhd v Prema Bonaza Sdn Bhd & Other Cases (supra); Choy May May & Ors v Prema Bonaza Sdn Bhd (supra). 255 In the circumstances, this is a plain and obvious case where striking out of the impugned paragraphs, as prayed in enclosure 161, should be granted with costs. SUBMISSIONS BY THE PLAINTIFFS (the Ps) 260 [6] In opposing enclosure 161, the Ps argued that: 6.1 As required in the Bandar Builder, SC test, it is trite that this summary process of striking out should be resorted to only in plain and obviously unsustainable action. This legal position had also been referred to, reaffirmed and followed in Seruan Gemilang Makmur Sdn Bhd v 265 Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1, FC. If an issue requires lengthy arguments and mature consideration with viva voce evidence at trial, striking out should not be granted: Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473, CA. If pleading discloses some cause of action or raises some questions fit 270 for trial, striking out should be dismissed: Jamal Md Yunos v Teresa Kok Suh Sim [2021] 1 MLJ 438. 6.2 The Ps argued that: 6.2.1 The impugned EOT is invalid as it was issued not by the Minister by law but by his subordinate: Ang Ming Lee, FC; 275 6.2.2 The Ps are rightfully entitled to the correct computation of the LAD, which runs from the date the Booking Fee was paid and not the date the SPAs were executed: PJD Regency, FC; 6.2.3 The commencement of this action by a writ is the correct approach; 280 6.2.4 This claim is not caught by limitation as argued; 6.2.5 The Settlement Letters are invalid and consequently not binding; and 6.2.6 There are evidently triable issues that render enclosure 161 unsuitable. 285 6.3 There is no conclusive finding that the EOT was granted by the Minister as argued by D1: Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors [1995] 2 MLJ 213, CA; ALbilt Resources Sdn Bhd v Jasin Construction Development (M) Sdn Bhd [2011] MLJU 616, HC. 290 Therefore, the decision in the Third-Party Notice proceeding (enclosure 25) does not bind this Court: 6.3.1 The said EOT was issued and signed by the officer of the Ministry; 6.3.2 It was not signed on behalf of the Minister, and/or that the officer was acting on behalf of the Ministry; 295 6.3.3 There was no mention that the EOT was granted after an appeal under Regulation 12 HDR; 6.3.4 There is no Federal gazette indicating the Minister had delegated his power to the Controller or the officer concerned: Ang Ming Lee, FC. 300 6.4 The impugned EOT in the circumstances above constitutes a triable issue making enclosure 161 unsuitable. Parties cannot contract out of statute: UE E&C Sanjia (M) Sdn Bhd v Lee Jeng Yuh & Anor [2021] 10 CLJ 271, CA. There is no conclusive evidence that the Minister of 305 Housing and Local Government granted the EOT. Other than Ang Ming Lee, FC, the Ps anchored their arguments fundamentally on the HC decision in Lam Su See v Prema Bonanza Sdn Bhd [2021] MLJU 713, which was affirmed by the CA in Prema Bonanza Sdn bhd v Lam Su See and the FC in Prema Bonanza Sdn Bhd v Lam Su See, it was 310 held as follows:- "[25] In any event, I do not think it makes a difference that the EOT was obtained before the signing of the SPA. Or that P ought to know of the 54-month EOT Period since it was reflected in the SPA. The outcome remains the same. Namely, the EOT is unlawful. One cannot waive or consent to illegality." 315 6.5 Relying on PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeal [2021] 2 CLJ 441, FC, the computation of the LAD must commence from the payment of the booking fee and not the date the SPAs were executed. This is a triable 320 issue that renders enclosure 161 unsuitable, and it should be canvassed and ventilated at the substantive hearing of this suit. 6.6 The argument by D1 on the mode of proceedings (Judicial Review) also constitutes a triable issue which should deny enclosure 161. Any EOT 325 granted by the Controller and not the Minister is invalid: And Ming Lee, FC. An invalid decision is no decision at all and ought to be disregarded: Tenaga Nasional Berhad v Bandar Nusajaya Development Sdn Bhd [2016] 8 CLJ 163. FC. The Ps further argued that Judicial Review is unnecessary since the decision on the EOT was not by the Minister but 330 by his subordinates. That invalid decision can be challenged in any collateral attack, citing ECO Green City Sdn Bhd v Hou Zhou Yee & Ors [2022] MLJU 2435, HC. 6.7 The argument by D1 on the limitation issue is also an issue that ought 335 to be ventilated at the trial proper and not at this summary juncture under enclosure 161. It must run from the date the Ps took vacant possession and from the date D1 completed the common facilities in 2017. Contrary to D1's arguments that since the LAD claims by the Ps hinge on the impugned EOT by the Ministry, the challenge to the validity of the SPAs 340 ought to commence from the date of the breach, i.e., the date of the execution of the individual SPAs that had deviated from the statutory format (schedule H) with the EOT. 6.8. The Settlement Letters are invalid and do not bind the Ps and cited Tee 345 Kian Chong v Lakefront Residence Sdn Bhd [2022] MLJU 2377. This remains a triable issue to be ventilated at trial; therefore, a striking out is inappropriate. The Ps recited ECO Green City Sdn Bhd v Hou Zhou Yee & Ors (supra), that postulated that one could not honour a term in the SPA, which is illegal. The Ps' knowledge or consent on the said 350 amendment and/or EOT is immaterial since estoppel does not operate against a statutory form of contract and the purchaser's right to claim for LAD in late delivery circumstances cannot be denied: Yvonne Chow Shin Sze v MRCB Seputih Land Sdn Bhd & Ors [2022] MLJU 987. Therefore, estoppel does not apply in the present case. No agreement 355 can exist alongside a statutory form contract: Encony Development Sdn Bhd v Rober Geoffrey Gooch & Anor [2016] 3 MLJ 400, CA. Estoppel is, by its nature, necessarily a factual one which warrants a trial and not a summary disposal: UNP Plywood Sdn Bhd v HSBC Bank Malaysia Bhd [2010] 5 MLJ 323, CA. 360 In the circumstances, the plaintiffs' claim herein is unsuitable for summary dismissal. There are serious issues to be tried of both facts and law. The plaintiffs pray that enclosure 161 for striking out (the impugned paragraphs) is dismissed with costs. 365 THE LAW [7] Striking out in a nutshell: 7.1 The law on striking out is settled. Under O.18 r.19 (1) (a), (b), (c) and/or (d) RC 2012, the Court is duly empowered in a summary manner to stay 370 or dismiss an action or enter judgment accordingly where the pleading: (i) Discloses no reasonable cause of action or defense [(1) (a)]; (ii) Is scandalous, frivolous or vexatious [(1)(b)]; (iii) It may prejudice, embarrass or delay the fair trial of this action [(1)(c)]; 375 (iv) Is an abuse of the process of the Court [(1) (d)]. An applicant under this rule is entitled to rely on any or all of the grounds specified. Sub-para (a) to (d) are to be read disjunctively. 380 7.2 The plethora of cases serves to remind the Court that the power to strike out summarily without a trial is a drastic power that should be exercised with utmost caution and should only be exercised in plain and obvious cases. In Bandar Builders Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, the Supreme Court held that the 385 principle upon which the court acts in exercising its power under any of the four limbs of O.18 r.19 is well settled. It is only in plain and obvious cases that recourse should be had to the summary process under the rule. This summary procedure can only be adopted when it can be clearly seen that a claim or answer is, on the face of it, "obviously 390 unsustainable”. It cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence. The Federal Court in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 15, held that: 395 "the 'obviously unsustainable' test adopted by Bandar Builder would ensure a fair trial and access to the court to litigants. The respondents should be given their day in court to prove their case. The court should not strike out an action purely or simply because it was unsustainable. The degree of 'unsustainability' (must be higher, i.e., it must be 'obviously unsustainable' before the action could be struck out summarily. 400 The High Court and the Court of Appeal were right in holding that the respondents’ action was not obviously unsustainable and dismissed the appellant's application for striking out." 7.3 The Federal Court in Tan Wei Hong (a minor suing through guardian 405 ad litem and next friend Chuang Yin E) & Ors v Malaysia Airlines Bhd and other appeals [2019] 1 MLJ 59, held that the principle for striking out of pleadings pursuant to O.18 r.19 ROC 2012 is well settled. It is applicable only in a plain and obvious case or where a claim is, on the face of it, obviously unsustainable. In the present case, the burden 410 is on the First Defendant to show that the plaintiffs’ claim against them is obviously unsustainable. 7.4 The Court has an inherent jurisdiction to strike out pleadings that are shown to be frivolous, vexatious, or scandalous and to stay or dismiss 415 an action or to strike out a matter which is an abuse of the process of the Court: Raja Zainal Abidin bin Raja Haji Tachik & Ors v British-American Life & General Insurance Bhd [1993] 3 MLJ 16, SC. [8] The power to strike out, stay or dismiss under the inherent jurisdiction 420 is discretionary. It is a jurisdiction that will be exercised with great caution and only where it is clear that the plea cannot succeed; it ought to be exercised sparingly and only in exceptional cases: Chung Khiaw Bank Ltd v Multidev Sdn Bhd [1979] 1 MLJ 93. There is an apparent overlap between paragraphs (1) (d) and the Court's inherent jurisdiction where it 425 appears that there has been an abuse of the process of the Court. Yet the intrinsic jurisdiction is broader in its ambit and operation than the jurisdiction under the rule since it is not confined to cases where the abuse is manifest from the pleading or indorsement but may be exercised whenever it appears, if necessary, by facts proved by affidavit, that there has been an abuse of 430 process. An abuse of the court process arises where it is used not in good faith and for proper purposes but as a means of vexation, oppression, ulterior purposes, or, more simply, where the process is misused. FINDINGS 435 [9] All things considered; I find that: 9.1 The Ps suit for LAD hinges on the delivery of the individual residential parcels, the subject matter of the SPAs (2012-2013) that was varied from 36 months to 54 months, brought about by a Ministerial approval 440 for an EOT applied by D1 before the formalization and execution of the said SPAs: 9.1.1 During the Third-Party Proceeding (enclosure 25) taken by D1 to enjoin the Minister, his officer, and the Government of Malaysia into this suit as a party to seek indemnity in the event D1 is found 445 liable; 9.1.2 It was established that but for the approval of the EOT, the SPAs from Schedule H would not have been amended on the delivery period as in the foregoing; 9.1.3 The learned Senior Federal Counsel, in representing the proposed 450 Third Parties, in his affidavit in response to the application, adduced evidentiary materials evidently showing that the Minister decided to approve the said EOT. His officer (Suhaimi) was not acting on a frolic of his own in informing D1 of the approval. This can be seen in exhibit ZAAH-1, enclosure 47. 455 9.1.4 The Minister, Dato Seri Chong Chee Heung, had considered and noted his written approval on D1's Letter of Application (19.01.2012), even before the respective SPAs were finalised and executed with the Ps; and 9.1.5 The Minister can be seen from that note to have instructed his 460 subordinate to do the needful on that approval, followed by the issuance of the letter of approval (06.02.2012) as seen in exhibit ZAAH-2, enclosure 47. 9.2 This crucial piece of evidence throughout the Third-Party proceeding 465 remained unrefuted by the Ps. Consequently, I dismissed the Third-Party application by D1 on the basis that there was no necessity to enjoin the proposed Third Party into this suit as a party hereto since; evidently, the Minister had exercised his Ministerial powers on the EOT issue accordingly as provided by the statute. The indemnity claim by D1 470 from the proposed Third Party does not arise in the circumstances. 9.3 The Court of Appeal in Bluedream City Development Sdn Bhd v Kong Thye & Ors And Other Appeals [2022] 2 CLJ 829, CA, had clarified that under the present legislative construct, the Minister in the Ministry 475 of Housing and Local Government is empowered to grant an EOT as in the present case. The FC subsequently affirmed this finding by the CA. 9.4 When the wrong mode is used as in the present action, it must, as a matter of course, be struck off: Majlis Perubatan Malaysia & Anor v 480 Asia Pacific Higher Learning Sdn Bhd (Owner of Lincoln University College) [2019] 1 MLJ 471, CA; The Court of Appeal in Bluedream City Development Sdn Bhd v Kong Thye & Ors And Other Appeals [2022] 2 CLJ 829, made it clear that the purchasers were entitled to mount a leave to commence judicial review as soon as becoming aware 485 of the EOT, but did not do so. In the instant case, the status of the EOT in clauses 25 and 27 were made known to the Ps before the execution of the respective SPAs between 2012-2013. Still, they elected to proceed and never, throughout the construction and completion period, made any challenges to the said EOT in the SPAs if they were genuinely 490 aggrieved. Obata Ambak Holdings Sdn Bhd & 2 Ors v Prema Bonanza Sdn Bhd (supra), the decision which the CA subsequently affirmed held that the amendment to the impugned clauses is interwound and involves public law issues. Judicial review is required and not a writ action. The filing of this suit is improper and an abuse of 495 process. The prayers seeking several declarations on the amendments are flawed and irreparable. When a litigant misuses the court's machinery, the court is vested with ample powers to strike out an irregular proceeding. 500 9.5 It is a fact that the variations of those impugned clauses on the delivery period were not done arbitrarily but are locked to the EOT granted by the Minister, and one can only happen with the other. But for the EOT, the amendment was carried out; otherwise, it would not have occurred. 505 9.6 Regarding the Settlement Letters, I agree with D1's arguments on this. The 78 Ps voluntarily executed the letters to settle their LAD issue where they had accepted and acknowledged receipt of their respective agreed compensation. The matter had by then been put to rest by the parties of their own volition with no coercion or compulsion: 510 9.6.1 In the circumstances of the case, it constitutes a full and final settlement of the issue of the LAD arising under the individual SPAs between the parties. It binds the 78 Ps under s.64 Contracts Act 1950 (accord and satisfaction): Pinpoint Consortium (M) Sdn Bhd v Mammoth Empire Land Sdn Bhd 515 [2020] 5 CLJ 281, HC; 9.6.2 Settlement Agreements are valid under s.64 Contracts Act 1950; 9.6.3 The HDA has no provision to strike down such an agreement reached between the parties. Parties who voluntarily entered into such agreement must be estopped in claiming otherwise save for 520 the presence of vitiating factors: Obata Ombak Holdings Sdn Bhd v Prema Bonaza Sdn Bhd & Other Cases (supra) CA; Choy May May & Ors v Prema Bonaza Sdn Bhd (supra). 9.6.4 I find that the Ps in the instant case who had elected to execute the settlement agreements or letters with D1 voluntarily must be 525 deemed to have waived their right under the Contracts Act 1950 and cannot be allowed to resile from that bargain. 9.6.5 It would be abusive and unjust to allow it unless there are legitimate vitiating factors. In this case, the legal maxim that one cannot approbate and reprobate one's election of choices is most 530 appropriate. 9.6.6 The Ps' assertion in their attempted departure from their settlement agreements or letters is overreaching. 9.6.7 A promisee may dispense with or remit performance of a promise: Section 64 Contracts Acts 1950; applied by the Federal 535 Court in Associated Pan Malaysian Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn Bhd [1990] 3 MLJ 287, FC; Oxbridge Height Sdn Bhd v Abdul Razak Mohd Yusof and Anor [2014] MLJU 1392, CA; Obata Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd and Other Cases [2021] 2 540 CLJ 829, HC. 9.7 On the limitation issue as decided in Obata Ambak Holdings Sdn Bhd & 2 Ors v Prema Bonanza Sdn Bhd and affirmed by the CA, that the Ps action is time-barred in the circumstances. Stare decisis dictates that 545 I am bound by the above Court of Appeal's decision and hereby hold the same. In Alias bin Ismail v Hairuddin bin Mohamad & Anor [1997] 3 M LJ 724, CA, held: “The court has no discretion to set aside a defence of limitation. In Riches v Director of Public Prosecutions [1973) 1WLR 1019, it was held that it was open 550 to the defendant on an application to dismiss an action as being frivolous and vexatious or an abuse of the process of the court to show that the plaintiff's cause of action was statute-barred and must inevitably fail for that reason. This was followed by the Federal Court in Tio Chee Hing & Ors v Government of Sabah [1981] 1 MLJ 207 and Haji Hussin bin Haji Ali & Ors v Datuk Haji Mohamed bin 555 Yaacob & Ors; and connected cases [1983] 2 MLJ 227.” [10] From the above: 10.1 It establishes D1's assertions that paragraphs 103-122 and 141(a)-(d) of the ASoC are plainly and obviously unsustainable because: 560 (i) the EOT granted was by the Minister and not the Controller; (ii) this challenge must be by way of Judicial Review; (iii) this action is already time-barred; and (iv) the Settlement Letters had superseded and extinguished the 78 Ps' original cause of action under the SPAs. 565 10.2 It renders the Ps claim in so far as it relates to LAD (paragraphs 103- 122, and 141(a)-(d) of the ASoC) as scandalous, frivolous and vexatious (O.19, r.19(1)(b) RC 2012). It also would constitute an abuse of process (O.19, r.19(1)(d) RC 2012). Collectively it makes the said 570 claim plainly unsustainable and must be struck off. The Supreme Court in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Sdn Bhd (supra) made the landmark observation that it is only in plain and obvious cases when it can be seen that a claim or answer is on the face of it "obviously unsustainable" that the Court 575 would strike it down. 10.3 In light of the foregoing, I find no merits in the arguments of the Ps and hold as follows: 10.3.1 The impugned EOT is not invalid as it was the Minister's 580 decision; 10.3.2 The issue of the booking fee date for computation of the LAD can be ventilated at trial since only specific paragraphs in the ASoC are struck off; 10.3.3 The commencement of this action by a writ is an incorrect 585 approach; 10.3.4 This claim is caught by limitation as argued by D1; and 10.3.5 The Settlement Letters are valid and consequently binding. 10.4 I find that D1 had met the required threshold in the said test for the 590 striking out of paragraphs 103-122 and 141(a)-(d) of the ASoC, and so it is ordered, while the remaining part of the Ps claim will be canvassed and ventilated at the substantive hearing of this suit. CONCLUSION 595 [11] After considering all cause papers, respective submissions of the parties, and in light of the foregoing findings. I find sufficient merit in the First Defendant's enclosure 161 (striking out). Consequently, I allowed enclosure 161, with costs of RM8,000.00 to be paid within 14 days from the date of this order. 600 Dated 19.04.2023. 605 (HAYATUL AKMAL ABDUL AZIZ) JUDGE 610 HIGH COURT OF MALAYA WILAYAH PERSEKUTUAN KUALA LUMPUR Counsels: 615 Mr Harneshpal Singh Messrs Lui & Bhullar Counsel for the Plaintiffs 620 Mr Dinesh Baskaran, together with Mr Wong Jia Jing Messrs Shearn Delamore & Co. Counsels for the First Defendant Mr Frank Wong, together with Mr Mohd Shahmir Sueilan 625 Messrs Mohd Akhir & Partners Counsels for the Second Defendant