1. ) Dickson Woo Boon Siew v Cosmopolitan Avenue Sdn Bhd (BA-22NCvC-450-10/2020)

BETWEEN DICKSON WOO BOON SIEW

CHOONG SOO HOI (P)

LEE SWEE KIAT

LEE MEI PENG (P)

CHU SWEE WAH

TIONG POH LING (P)

PRISTINE CLEAR SDN BHD (COMPANY NO.: 200401033763)

CSL PROPERTIES SDN BHD (COMPANY NO.: 201001030756) (PREVIOUS COMPANY NO.: 914677-V … PLAINTIFFS AND COSMOPOLITAN AVENUE SDN BHD (COMPANY NO.: 201001004123) (PREVIOUS COMPANY NO.: 888713-V) … DEFENDANT 10/07/2024 10:06:04 BA-22NCvC-450-10/2020 Kand. 183 JUDGMENT Introduction [1] The Plaintiff’s claim against the Defendant is for declarations, Liquidated and Ascertained damages (after this referred to as “LAD”), refund of overpayment by the 6th Plaintiff, damages, interest, and costs. [2] The Defendant refuted every allegation in the claims brought by the Plaintiffs. Background Facts [3] The Plaintiffs are purchasers of office suite units in Block M in an Empire City, Damansara Development Project. [4] The mega project comprises a mixed commercial development. It consists of 11 blocks scheduled to be constructed in 6 phases. Block M is in the 6th phase of this development. [5] The Plaintiffs had never challenged the validity of the Sale and Purchase Agreements between them and the Defendant. [6] The main crux of the case revolves around the interpretation sought by the Plaintiffs regarding the mode of calculating the “LAD” due to them as a result of late delivery of the vacant possession of the Plaintiffs' units. [7] The 1st, 2nd, 3rd, 4th and 7th Plaintiffs seek for the “LAD” to be calculated from the expiry of 42 months from the purported date of the booking fee payment till the date of Certificate of Completion and Compliance. [8] The 5th, 6th and 8th Plaintiffs seek for the “LAD” to be calculated from the expiry of 42 months from the purported date of the booking fee payment till the handover of the complete set of keys. [9] The defendant contended that the “LAD” should be calculated from the expiry of 42 months from the date the Building Plan Approval is obtained or the date of the Sale and Purchase Agreement whichever is later. [10] It is the Defendant’s version that the vacant possession of the Plaintiff’s units has been deemed to be delivered to the Plaintiffs under Clause 25.1 and Clause 25.3 of the Sale and Purchase Agreement. [11] In addition, the Defendant states that the Plaintiffs are estopped from filing this case to claim for “LAD” as the majority of the Plaintiffs had entered into settlement agreements with the Defendant to accept an agreed sum for “LAD” as a full and final settlement in respect of the claims. [12] The full trial for this case went on for 11 days. [13] 10 issues as listed in Enclosure 155 were ventilated by the parties respectively. Issues on Appeal [14] Upon the final decision of this Court, the Defendant has filed an appeal in respect of the following issues:

Declaration and Order of this Court that the settlement letters between the 1st, 2nd, 3rd, 4th, and 7th Plaintiffs and the Defendant are not valid and void.

The Defendant is to return the sum of RM25,394.00 to the 6th Plaintiff as it was an overpayment by the 6th Plaintiff to the Defendant.

Interest at 5% per annum to be calculated on the judgment sum from the filing date of the Writ Summons (30.10.2020) till full realisation of the judgment sum.

Costs for RM30,000.00 to be paid to the Plaintiffs by the Defendant subject to the allocator fee. Decision of the Court [15] As for the issue in paragraph 14 (a), Defendant submitted that the 1st, 2nd, 3rd, 4th, 5th, and 7th Plaintiffs’ had signed settlement letters with Defendant on an agreed “LAD” sums to be paid to the Plaintiffs’ respectively. [16] The Defendant further contends that the settlement letters were prepared based on calculation according to Clause 24.2 of the Sale and Purchase Agreement. [17] Therefore Defendant submits that the 1st, 2nd, 3rd, 4th, 5th and 7th Plaintiffs’ are estopped from claiming “LAD” beyond the calculated sum as stated in the settlement letters. [18] Reference was made to the Court of Appeal case of Oxbridge Height Sdn Bhd v Abdul Razak Mohd Yusof of Anor [2015] 2 CLJ 252 was decided as follows: “On the law, the signing of the settlement agreement would fall within the terms of s.64 of the Contracts Act which deals with the “dispensation” of a promise made to a promise:

Promisee may dispense with or remit performance of promise. Every promise may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of any it satisfaction which he thinks fit.” … It was therefore not right and proper for the respondents, despite their promise to conditionally waive LAD under the SPA, to resile from promise and sue for late under the SPA as if the settlement agreement did not exist.” [19] It is also the Defendant’s submission that the Plaintiffs had elected to abide by the settlement letters. [20] Therefore once an election has been made, it cannot be revoked as parties are bound by the doctrine of estoppel. [21] The Federal Court decision in Boustead Trading (1985) v Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331 and the Court of Appeal decision in Lim Ah Moi v AMS Periasamy a/l Suppiah Pillay [1997] 3 MLJ 323 were referred to. [22] Defendant asserted that by their conduct in which they had communicated to Defendant as to the payment of the “LAD” sums agreed upon in the settlement letters, the Plaintiffs cannot take inconsistent positions and dispute the validity of the settlement letters. [23] Defendant denied the Plaintiffs’ allegations that Defendant or its staff had made fraudulent misrepresentations that the Plaintiffs would receive their unit faster and would be allowed to schedule an appointment for inspection and the “LAD” sum would be settled faster if they signed the “LAD” settlement letters. [24] The Court of Appeal case of Victor Cham & Anor v Loh Bee Tuan [2006] 5 MLJ 359 referred to what has been defined as fraudulent misrepresentation, as follows: “[13] Fraudulent misrepresentation comes under the tort of deceit. To succeed in his claim, the respondent in this case need to establish that he had in reliance on the fraudulent misrepresentation and that the representation was false. He further needs to establish that the first appellant had made those statements knowingly or recklessly without caring whether it was true or false. And that as a result of reliance on such representation, the respondent had suffered damage. For the elements of the tort of deceit, see Panatron Pte Ltd v Lee Cheow Lee [2001] 3 SLR 405.” (emphasis added) [25] The principle enunciated in the Court of Appeal case of Sim Thong Realty Sdn Bhd v Teh Kim Dar @ Tee Kim [2003] 3 MLJ 460 is as follows: “Now the elements of actionable misrepresentation are well settled. They are set out as follows in Professor McKendrick’s Contract Law (3rd Ed), a leading work on the subject: A misrepresentation may be defined as an unambiguous, false statement of fact which is addressed to the party misled and which materially induces the contract. This definition may be broken down into three distinct elements. The first is that the representation must be an unambiguous false statement of fact, the second is that it must be addressed to the party misled and the third is that it must be a material inducement to entry into the contract.” [26] I had the opportunity to hear the evidence of all the Plaintiffs who signed the settlement letters. [27] On weighing the facts adduced during the trial I am left with no doubt that the witnesses, all the Plaintiffs’ were witnesses of truth. [28] Upon examining the factual evidence adduced in Court, the only inference of fact that I can arrive at is that the Plaintiffs signed the settlement letters upon being induced by the Defendant’s employees who had fraudulently misrepresented the Plaintiffs that the Plaintiffs would get the unit faster and “LAD” faster if they signed the settlement letters. [29] It is self-evident that the 6th and 8th Plaintiffs who did not sign the settlement letters were only allowed to inspect their respective units in 2019. [30] There is no iota of evidence from the Defendant to rebut all the factual evidence of the Plaintiffs before this Court. [31] Both of the Defendant’s witnesses gave evidence before this Court that the “LAD” sums offered to the Plaintiffs in the settlement letters were to be paid in full following the terms as stipulated in the Sale and Purchase Agreements. [32] However, I am satisfied that there is no evidence before this Court that Defendant did or even attempted to settle the “LAD” sums due to the Plaintiffs’ although the Plaintiffs did ask for payments to be made. [33] It is clear from the evidence adduced in Court that the Defendant’s representative Mr Yeo had proposed a 50% discount in 2019 concerning the proposed sums offered to the Plaintiffs in the settlement letters. [34] The Defendant didn’t rebut the evidence adduced in Court by calling its staff or representative. [35] I opined to derive a factual finding that the settlement letters were fraudulent misrepresentations made by Defendant to the Plaintiffs and not as what has been envisaged by Defendant in their submissions. [36] I find the very Court of Appeal decision referred to be the Defendant in the case of Victor Cham & Anor v Loh Bee Tuan [2006] 5 MLJ 359 fit the Plaintiffs’ case as the settlement letters were not honoured and the Plaintiffs’ till to date had not received the “LAD” sums due to them. [37] All the allegations adduced by the Plaintiffs remained unchallenged and unrebutted. [38] The only conclusion I can draw is that the Plaintiffs signed the settlement letters based on the fraudulent misrepresentations made by the Defendant’s staff and representatives. [39] Therefore I concluded that the settlement letters be declared invalid and void. And adopt what was decided in the Court of Appeal case of Global Globe Property (Melawati) Sdn Bhd v Jangka Prestasi Sdn Bhd [2020] 6 CLJ 1 which held as follows: “[99] A sham agreement is slimily resorted to in creating a smoke screen to shield the real transaction from surfacing for the eyes of the authorities to scrutinize and sanction. Often it has less than an honourable purpose for otherwise why a sham. It is a device to divert and direct an observer the other way, if not to distract him from being detained by what is real, and often less palatable if not downright perverse! It is as old as mankind and after all, there is nothing new under the sun but accepting always that sunlight is the best disinfectant and the electric light the best policemen. [100] Often times the weaker party has no choice but to agree to signing documents prescribed by the stronger party who is in a position to dictate. Through initially starting off as documents that the parties would not act as in both sides understand that it would not be used, its dark side is that when the stronger controlling party reneges on it, it can be abused to serve a nefarious end.” [40] In the next issue paragraph 14 (b), Defendant submitted that the 6th Plaintiff has failed to prove that she had made an overpayment for the sum of RM25,394.00. [41] The Defendant further contended that the proof of payment referred to P1 and P1a (Enclosure 114, pages 59-60) was a forged and fraudulent document. [42] Mr. Jeffrey Liaw (WSPW1) had testified that he made payment to the Defendant’s representative by the name of Daniel Neik for a sum of RM76,774.00. [43] According to WSPW1, Daniel Neik was the same sales agent who had dealt with the purchase of a unit in Block E and the purchase of a unit made by the 6th Plaintiff in this case. [44] Defendant failed to tender evidence in Court that Daniel Neik did not act as agent for the 6th Plaintiff. They also failed to adduce evidence by producing their statement of account to prove that the alleged amount was never banked into their account. [45] The argument put forward by Defendant that the said money was not reflected in the 6th Plaintiff’s unit statement of account is flawed. I opine to say that Defendant must check their bank statement of account and not blame innocent parties like WSPWI and the 6th Plaintiff who had acted in good faith that Daniel Neik was Defendant’s representative in handing over the money. [46] The fact that Daniel Neik had given the original acknowledgment letter signed by him on behalf of Defendant at Defendant’s sales office remained unchallenged. [47] I view that it was not for the Plaintiffs to rebut a fact raised by the Defendant that the payment was never made. Section 101 of the Evidence Act 1950 applies to the Defendant to disprove the fact proven by the Plaintiffs. [48] I agreed with the submission by the Plaintiffs that since the payment was made by WSPW1 about 13 years ago, it would be nearly impossible for WSPW1 to obtain a bank statement to show the said payment was made. The principle in the High Court case of Bespile Sdn Bhd (in liquidation) v Asianshine Sdn Bhd & Ors [2010] 4 MLJ 824 applies to the facts of this case. [49] The act of WSDW1 in lodging a police report two years after the incident that the acknowledgment letter given to the 6th Plaintiff was forged and fraudulent does not disprove the fact that WSPW1 and the 6th Plaintiff had made the said payment to one Daniel Neik whom they believed to be the Defendant’s representative. [50] Moreover, the entire transaction took place in the Defendant’s sales office, which only strengthens Plaintiff’s version of undisputed facts that they handed over the money to Defendant’s representative. [51] In weighing the evidence presented before me, I make a finding of fact that there was an overpayment for a sum of RM25,394.00 made by the 6th Plaintiff and it ought to be refunded back to her. [52] Next on the issue of the interest at 5% per annum, it is self-explanatory from the “Arahan Amalan Ketua Hakim Negara Bil.1/2012”. [53] Finally on the issue of costs, taking into consideration the trial went on for 11 days, the number of witnesses called, and the submissions prepared, I view a sum of RM30,000.00 as costs awarded to Plaintiffs as reasonable and fair. [54] I am aware that many of the Plaintiffs' claims were disallowed, however, they put forward their case meticulously and this defeated the Defendant’s efforts to have the case dismissed. It warrants a fair sum of costs to be awarded to the Plaintiffs. Therein amount is fixed at RM30,000.00. Conclusion [55] Based on the reasons elaborated, I view the decision derived from the issues appealed upon as fair and justified. Dated: 10th July 2024 (INDRA NEHRU SAVANDIAH) Judicial Commissioner High Court of Malaya Shah Alam. Selangor Date of Decision: 29 April 2024 Counsels: For the Plaintiffs: Tan Chung Ming & Kirthana a/p Sarangapany, [Messrs Joseph Khoo & Co.] For the Defendant: Alvin Lai Kok Wing & Cheryl Leong Kit Yee, [Messrs Justin Voon Chooi & Wing]