1. ) Franco Chan Yoong Jurch v Yu Kuan Chon (WA-22NCvC-64-01/2022)

FRANCO CHAN YOONG JURCH

WONG WAI YIN

SIN LEE PIN

LAU POH CHEOK (NO. K/P: 740918-14-5371) …PLAINTIF-PLAINTIF DAN YU KUAN CHON (NO. K/P: 620914-08-6435) ...DEFENDAN

The Plaintiff applied for summary judgment under Order 14 of the Rules of Court 2012 (“the Rules”) for a claim of breach of contract against the Defendant.

Order 14(1) of the Rules provide as follows: 06/07/2022 13:33:46

Application by plaintiff for summary judgment (O. 14 r. 1)

Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.

Meanwhile the Defendant applied to strike out the Plaintiff’s claim under Order 18 Rule 19 of the Rules which provides as follows:

Striking out pleadings and endorsements (O. 18 r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a). Brief Facts

The Plaintiffs are purchasers of properties in a project called 118 Suites (“the properties”) whereas the Defendant is the director of the company which had developed the project.

The Plaintiffs had signed sale and purchase agreements for the properties in 2014 and 2015 with Kar Sin Sdn Bhd and the Defendant represented the said company in executing the said agreements.

The properties were valued at various prices and the Defendant had undertaken to buy back the properties from the Plaintiffs by way of a buy back agreement.

Amongst the terms of the buyback were that the Defendant will buy back at a price 23.07% above the net purchase price agreed in the agreements and the buyback is to within 3 to 5 years of the handing over of the vacant possession to the Plaintiffs. Other conditions are that the Defendant is not obliged to buyback if the properties are sold to 3rd parties and the Plaintiffs are entitled to specific performance of the buyback agreements.

All the Plaintiffs had exercised the option for the Defendant to buyback the property for which buyback agreements were prepared by a law firm. However the Defendant did not honour the buyback agreements and refused to buyback the properties.

The Plaintiffs are therefore seeking specific performance for the buyback agreements and in the alternative seeking a monetary sum in lieu of the buyback.

For the Plaintiffs application the only issue is whether the Defendant has a defense to the Plaintiffs’ claim. For the Defendant’s application the issue is whether any of the grounds under Order 18 Rule of the Rules apply against the plaintiff’s claim.

In the Statement of Defense the Defendant contends that when the letter of demand were sent to the Defendant the buyback period had lapsed. Further the buyback agreements are void for lacking in consideration, the parties agreeing to the buyback are separate entities from the Defendant and the Plaintiffs have no locus standi to bring this claim.

On the issue of the buyback option having lapsed the Defendant contends that taking into account the delivery of vacant possession the date of buyback lapses in 2020 but the letter of demand by the Plaintiff was only issued on 7/12/2020. In the Court’s view the letter of demand is not the only criteria to determine the lapse and further evidence is needed to determine whether there was a lapse.

The Defendant also contends that the Plaintiffs have assigned their rights under the agreements to their financiers by way of a deed of assignment and as stated under the Deed of assignment the Plaintiffs can only commence action with the consent of the Financiers. The Plaintiffs contend that the financiers need only ne informed and no consent is required.

The buyback agreements are between the Plaintiffs and Fresh Melody Sdn Bhd and Rapid Synergy Sdn Bhd which are separate legal entities from the Defendant. The Plaintiff contends that the companies are the nominees of the Defendant.

Taking into account the issues which have been raised by both parties it is the Court’s view that this is not a clear cut case to be disposed of summarily and a full trail is necessary to appreciate the actual agreement between the parties and whether that agreement has been breached by either side.

In the upshot the Court dismissed both the applications by the Plaintiffs and the Defendant with an order of cost in the cause. Dated: 5.7.2022 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiffs: Tetuan Ho Partnership Suite A-11-3A Level 11 Plaza Taragon Kelana No. 3 Jalan SS 6/6 Kelana Jaya 47301 Petaling Jaya For the Defendant: Tetuan Izauddin Firdaus & Mahendran No. 8D Tingkat 8 Wisma TCT No. 516-1 Batu 3 Jalan Sultan Azlan Shah (Jalan Ipoh) 51200 Kuala Lumpur