1. ) Danny Foo Sek Han v 1. ) Kl Eco City Sdn Bhd (WA-22NCvC-183-03/2021)

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1 IN THE HIGH COURT OF MALAYA IN KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA CIVIL SUIT NO: WA-22NCvC-183-03/2021

Preamble

pursuant to Order 15 rule 12 of the Rules of Court 2012 (“ROC 2012”).

Schedule

Schedule H SPA under the Housing Development (Contracts of Sale) Regulations 1989, executed jointly by D1 and D2. Clauses 11(1) and 11(2) of the SPA expressly impose obligations upon the developer to — (a) apply for the subdivision of the master title; (b) procure the issuance of strata titles to each parcel; and (c) execute and deliver registrable MOT to the purchasers once strata titles are issued. 12. The Plaintiffs’ case is that both Defendants failed to comply with those contractual and statutory duties. They allege that the subdivision and strata title process remains incomplete notwithstanding the completion and occupation of the project, and that the delay has adversely affected the market value of their respective units. S/N 8t28FVM9pk6Go/xwtHEcbw 13. The Plaintiffs seek, inter alia, declaratory and mandatory reliefs compelling the completion of the subdivision and strata title processes and the execution of the MOTs, together with general damages for alleged diminution in value and loss of capital appreciation. 14. Plaintiffs contend D1 and D2 are both obliged under the SPA and statutory framework to ensure completion of subdivision and strata titles, failure of which has reduced property value. They rely on the Strata Titles Act 1985 and related case law. 15. D1 in its Defence denies any breach, maintaining that it is the sole licensed developer responsible for the project, and that all purchasers’ SPAs were executed and delivered in accordance with the HDA 1966. It avers that any delay in the issuance of strata titles was due to administrative or governmental approval processes beyond its control. 16. D1 also asserts that the Plaintiffs’ previous claim for LAD has been struck out by the order of this Court dated 27 January 2023 (Encl. 184) and cannot be revived. D1 emphasises LAD has been struck out, Plaintiffs are limited to their pleaded case, and damages are unproven for want of expert valuation. D1 argues any delay is procedural, not a breach warranting damages. 17. D2 in turn contends that it is not a developer within the meaning of section 5 of the HDA 1966. It merely executed the SPAs as registered proprietor pursuant to the privatisation agreement S/N 8t28FVM9pk6Go/xwtHEcbw under which D1 was granted the sole responsibility to undertake the housing development. D2 maintains that all statutory and contractual obligations under the HDA 1966 rest exclusively with D1 and that D2 bears no liability to the Plaintiffs. 18. In their Replies, the Plaintiffs reiterate that D2’s co-execution of the SPAs constitutes an assumption of joint contractual obligations with D1, and that the protective intent of the HDA 1966 should be construed broadly in favour of purchasers. They deny that the Defendants have fulfilled their obligations and maintain that both D1 and D2 are jointly responsible for the continuing failure to deliver strata titles and execute MOTs. 19. The Court notes that the matter proceeded to full trial with witnesses called on both sides and extensive documentary exhibits tendered, including interrogatories without order (Encl. 17 and 18). The parties subsequently filed comprehensive written submissions and bundles of authorities (Encl. 257–269). 20. By the time of trial, following the striking-out of the LAD claims, the surviving issues were confined to: (a) whether D1 breached its obligations under Clauses 11(1) and 11(2) of the SPA; (b) whether D2 bears any contractual or statutory responsibility; and (c) whether the Plaintiffs have proved any compensable loss. S/N 8t28FVM9pk6Go/xwtHEcbw C. ISSUES FOR DETERMINATION 21. The issues are: (a) Whether D1 breached its contractual obligations under the SPAs and whether declaratory/mandatory reliefs should issue; (b) Whether D2 bears contractual or statutory responsibility; (c) Whether Plaintiffs proved compensable loss (capital appreciation/diminution). D. EVIDENCE OF THE PARTIES (a) Evidence of the Plaintiffs 22. The Plaintiffs’ case was presented through the testimony of several representative purchasers, supported by the documentary record, including copies of their executed Schedule H Sale and SPAs, correspondence with the Defendants, and relevant authorities from the Ministry of Housing and Local Government. 23. The witnesses for the Plaintiffs testified consistently that they had purchased their respective parcels in the Vogue Suites One / Residensi Vogue 1 development on the faith of the representations made by the D1 as the developer and the D2 as the registered proprietor and co-signatory to the SPAs. They S/N 8t28FVM9pk6Go/xwtHEcbw stated that vacant possession had been delivered, yet no strata titles or MOTs were ever executed or registered in their names. 24. The Plaintiffs further testified that repeated follow-ups with D1 and D2 yielded no tangible result. They highlighted that under Clause 11(1) and (2) of the SPA, the developer is expressly obliged to submit the application for subdivision, procure the issuance of strata titles, and execute the MOTs in favour of the purchasers. They also relied on section 8 of the HDA 1966, which places a statutory duty on the licensed developer to ensure such compliance. 25. Through cross-examination, the Plaintiffs acknowledged that a portion of the purchase price equivalent to 2.5 per cent had been retained by D1’s solicitors, Messrs Soo Thien Ming & Nashrah, as stakeholders under Schedule 3 of the SPA. They contended that this demonstrated D1’s continuing control over the completion of the transaction. 26. The Plaintiffs also adduced correspondence from the Commissioner of Buildings (COB) and Land Office, showing that as at the material time, the application for strata title subdivision was still pending. The Court notes that no expert valuation was produced by the Plaintiffs to substantiate their claim of monetary loss; however, they relied on the principle that delay in title issuance constitutes a breach of both contractual and statutory duties, entitling them to declaratory and mandatory reliefs. S/N 8t28FVM9pk6Go/xwtHEcbw (b) Evidence of the First Defendant 27. D1 called its project manager and compliance officer, who confirmed that D1 was the sole licensed developer and that the project had been completed with the Certificate of Completion and Compliance (CCC) issued. They testified that all obligations under the SPAs, save for the issuance of strata titles, had been substantially performed. 28. D1’s witnesses attributed the delay in the issuance of strata titles to procedural constraints within the Land Office and Survey Department, arguing that these matters were beyond D1’s control. They maintained that the necessary applications had been lodged and were being processed by the relevant authorities. 29. The witnesses also referred to the Court’s earlier order dated 27 January 2023 (Encl. 184) which had struck out the Plaintiffs’ claim for LAD, asserting that this confirmed the absence of any actionable breach capable of sustaining damages. 30. D1 denied that it had ever authorised the collection of booking fees or deposits in contravention of the HDA 1966, insisting that all payments were received strictly in accordance with the statutory schedule. It contended that the Plaintiffs failed to prove any actual loss or damage and that their action amounted to an abuse of process. S/N 8t28FVM9pk6Go/xwtHEcbw (c) Evidence of the Second Defendant 31. D2 did not call technical witnesses but relied on its solicitor’s testimony and documentary exhibits, including the Privatisation Agreement between D2 and D1. D2’s witness explained that its role was confined to executing the SPAs in its capacity as landowner, and that the entire development was carried out by D1 under licence and approval from the housing authorities. 32. D2’s position was that it was not a “developer” as defined under section 5 of the HDA 1966 and had no operational or financial involvement in the sale process. It therefore bore no legal duty to apply for or deliver strata titles to the purchasers. D2’s participation, it said, was purely formal and necessitated by its ownership of the master title. 33. In cross-examination, D2’s witness maintained that while D2 was aware of the project’s progress, it had no control over construction timelines or title applications, all of which were under D1’s purview pursuant to the privatisation structure. E. ANALYSIS AND FINDINGS (a) Obligations of the First Defendant 34. The Court finds that the contractual and statutory obligations of D1 arise squarely from Clauses 11(1) and (2) of the Schedule H S/N 8t28FVM9pk6Go/xwtHEcbw SPAs executed between the Plaintiffs and D1 (co-executed by D2 as landowner). These clauses impose a clear duty to apply for subdivision, to procure the issuance of strata titles, and to execute and deliver MOTs to purchasers. 35. D1’s Defence (Enc. 8) admits its position as the licensed housing developer under the HDA 1966, but contends that it has substantially fulfilled its duties save for the outstanding title issuance, which it attributes to delays at the Land Office. However, as the SPAs form statutory contracts, D1 cannot rely on administrative delay to excuse non-performance unless it proves the cause was beyond its control and despite due diligence. 36. The Plaintiffs’ evidence, as corroborated by correspondence from the Commissioner of Buildings, demonstrates that the subdivision and title applications remained incomplete long after completion and delivery of possession. D1’s witnesses conceded that the process was ongoing and not finalised. 37. The Court is satisfied that D1’s continuing omission constitutes a breach of Clauses 11(1) and (2) of the SPAs. Even though the Court previously struck out the LAD claims, the duty to complete title issuance remains enforceable as a continuing contractual obligation. S/N 8t28FVM9pk6Go/xwtHEcbw (b) Liability of the Second Defendant 38. D2’s Defence (Enc. 7) asserts that it is not a “developer” within the meaning of section 5 HDA 1966, and that its participation was confined to signing the SPAs as registered proprietor under a privatisation scheme. 39. The Plaintiffs’ Reply (Enc. 11) argues that D2’s co-execution imports joint responsibility and that the protective intent of the HDA requires a broad reading. Nevertheless, the evidence at trial establishes that D2 had no operational, financial, or supervisory control over the development. The Privatisation Agreement and testimony of D2’s witness confirm that D1 alone carried out all aspects of construction and sale, including licence, advertising permit, and stakeholder control. 40. The Court therefore finds that D2’s role was purely formal and incidental to its position as landowner. Consistent with the authorities cited in D2’s Bundle of Authorities (Enc. 268), an executing landowner under a privatisation scheme does not become a developer for purposes of liability under the HDA. 41. The Court is satisfied that no contractual or statutory liability attaches to D2, and the claim against D2 must be dismissed. S/N 8t28FVM9pk6Go/xwtHEcbw (c) Damages and Proof of Loss 42. On the issue of damages, the Plaintiffs alleged loss of capital appreciation and diminution of property value. However, no expert valuation or market report was tendered at trial. 43. D1’s submissions (Enc. 259) correctly emphasised that such claims require proof of actual loss; general assertions of inconvenience or delay are insufficient. The Plaintiffs’ reply (Enc. 263) did not cure this evidential deficiency. 44. The Court thus finds that no compensable loss was proved. The Plaintiffs’ entitlement is limited to declaratory and mandatory reliefs compelling performance of the outstanding obligations, but not to general damages. (d) Counterclaim by D1 45. D1 counterclaimed for declarations that it had fully performed its obligations and that the Plaintiffs’ action was frivolous. Given the findings above that D1 remains in breach of Clauses 11(1) and (2), the counterclaim cannot stand. It is accordingly dismissed with costs. F. DECISION 46. Having considered the totality of the pleadings, evidence, and submissions, the Court is satisfied that the Plaintiffs have S/N 8t28FVM9pk6Go/xwtHEcbw succeeded in establishing a breach of the contractual obligations owed by the D1 under Clauses 11(1) and 11(2) of the respective SPAs. 47. The breach consists of the continuing failure to complete the subdivision of the master title, procure the issuance of the strata titles, and execute registrable MOTs in favour of the purchasers. 48. The Court finds that the Plaintiffs have succeeded in proving that the D1 failed to discharge its continuing obligations under the SPA, particularly those prescribed in Clauses 11(1) and 11(2). The evidence clearly demonstrates that the process of subdivision and issuance of strata titles remains incomplete, and that the D1 has not executed the MOT in favour of the purchasers as required by contract. 49. The Court further finds that the D2, the Datuk Bandar Kuala Lumpur, acted solely in its capacity as registered proprietor of the land and is not a licensed housing developer within the meaning of section 5 of the HDA Act 1966. There is no contractual, statutory, or factual basis upon which liability can be imposed against it. The claim against the D2 is therefore dismissed with costs. 50. The Court is satisfied that this failure constitutes a breach of contractual duty on the part of the D1. However, the Plaintiffs have not proven any measurable or compensable loss, and the claim for general damages must therefore fail. S/N 8t28FVM9pk6Go/xwtHEcbw 51. Declaratory and mandatory reliefs are the appropriate and proportionate remedies to secure compliance with the continuing contractual obligations. 52. The Plaintiffs’ claim against the D1 succeeds in part, and the claim against the D2 fails. Declaratory and mandatory reliefs are granted in the terms set as follows: (a) A declaration that the D1 is in breach of its contractual obligations under Clauses 11(1) and 11(2) of the SPAs executed with the Plaintiffs; (b) A mandatory order directing the D1 to take all necessary steps within a reasonable time—specifically, within six (6) months from the date of this judgment—to procure the issuance of individual strata titles for all units purchased by the Plaintiffs in the project known as “Vogue Suites One / Residensi Vogue 1”; (c) A further order directing the D1, immediately upon issuance of the said strata titles, to execute and deliver the relevant MOT in favour of each purchaser or his/her nominee and to lodge the same for registration without undue delay; (d) The claim for general damages for alleged loss of value or capital appreciation is dismissed, the Court finding that no sufficient proof of actual loss has been adduced; (e) The claim against the D2 is dismissed in its entirety, the Court being satisfied that the D2, as the registered S/N 8t28FVM9pk6Go/xwtHEcbw proprietor, bore no statutory or contractual obligations under the HDA 1966 or the SPAs; and (f) The Court also finds no merit in the Counterclaim advanced by the D1, which is accordingly dismissed. 53. For the avoidance of doubt, the declaratory and mandatory orders granted herein do not revive or reinstate any claims for LAD, which were previously struck out by order of this Court dated 27 January 2023 (Enclosure 184). 54. As to costs, the Court is satisfied that the Plaintiffs are the substantially successful party against the D1. Accordingly, the Court orders that the costs of RM20,000 be awarded to the Plaintiffs against the D1, whilst the D2 is entitled to its costs having succeeded in its defence of an amount of RM10,000. Dated : 22nd October 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR S/N 8t28FVM9pk6Go/xwtHEcbw For The Plaintiff : Harneshpal Singh & Sophia Au Messrs. Lui & Bhulllar Advocates & Solicitors For The Defendant 1 : Dhinesh Bhaskaran & Wong Jia Jing & Serena Azizuddin Messrs. Shean Delamore & Co. Advocates & Solicitors For The Defendant 2 : Abg Zain Azreen Messrs. Akhir & Partners Advocates & Solicitors S/N 8t28FVM9pk6Go/xwtHEcbw