Schedule
Schedule H or the SPAs. The pleaded case is only to apply for the strata title. These are clearly issues to be canvassed and ventilated in the Ps 315 challenge on the impugned EOT by the Ministry. 6.8 I am unpersuaded with Ps’ arguments, and it is my determination that: 6.8.1 It is evident that the foundation of the present suit hinges on the amendment to insert the impugned EOT in clauses 25 and 27 of the respective SPAs. 320 6.8.2 The Ps must seek legal recourse by way of Judicial Review (O.53 RC 2012) to attempt to quash the administrative decision of the Ministry in granting the impugned EOT. 6.8.3 Clearly, the Ps are out of time, for laying idle and sitting on their rights but they may seek an abridgment of time under O.57, r.7 325 RC 2012 by providing cogent reasons to persuade the Court to grant an extension to apply for leave for Judicial Review of that administrative decision: Ketua Pengarah Kastam dan Eksais v Coach Malaysia Sdn Bhd [2019] 4 CLJ 454, CA. The Privy Council in Maharaj v National Energy Corporation of 330 Trinidad and Tobago [2019] 2 LRC 693, PC observed that prejudice or detriment was relevant in the test for determining a good reason for an abridgement of time to mount a judicial review. 6.8.4 The impugned EOT is interlocked with the variation in the 335 clauses 25 and 27, it predominantly involves public law issues, and it must be challenged to quash it: Ang Ming Lee, FC S/N taothZevjEaBVhFms10aVw 6.8.5 The heart of the plaintiffs' argument hinges on the said EOT, then it has to be quashed and not evasively by this civil action seeking declaratory reliefs that would render judicial review 340 meaningless in the circumstances. Public law is obviously the predominant factor and cannot be stated otherwise. 6.8.6 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 Asia Pacific Higher Learning Sdn Bhd (Owner of 345 Lincoln University College) [2019] 1 MLJ 471, CA; Yahya bin Kassim v. Kerajaan Malaysia [1997] 3 MLJ 749, CA. The Court of Appeal in Bluedream City Development Sdn Bhd v Kong Thye & Ors and Other Appeals [2022] 2 CLJ 829, said that the purchasers were entitled to mount a leave to commence 350 judicial review as soon as becoming aware 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 plaintiffs before the execution of the respective SPAs between 2012-2013. Feigning ignorance is untenable in the circumstances. The nature of this 355 argument was canvassed and ventilated in Obata Ambak Holdings Sdn Bhd & 2 Ors v Prema Bonanza Sdn Bhd [2021] MLJU 1602, HC, which was subsequently affirmed by the Court of Appeal. 6.8.7 It is trite in administrative law that an administrative decision that 360 is allegedly void or judicially determined to be a nullity must as a matter of course be quashed to remove which is a remedial process under Judicial Review. The Supreme Court in Inchcape Malaysia Holdings Berhad v RB Gray [1985] 2 MLJ 297, SC, left the question of whether or not it is necessary to 365 issue a certiorari to quash a void decision open. However in Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 All ER 865; the Court of Appeal in Chan Kwai Chun v Lembaga Kelayakan [2002] 3 MLJ 550 observed that a void decision is no decision at all, but in 370 S/N taothZevjEaBVhFms10aVw practice, however, certiorari is usually granted to quash decisions which are held to be nullities. Whether in a given proceeding a person affected is entitled to be heard or not, and whether natural justice has been infringed or not in reaching a decision are questions that only a court can answer definitively, 375 and certiorari is the proper remedy for the purpose. 6.8.8 In London & Clydeside Estates Ltd v Aberdeen District Council [1980] 182: A void order will not disappear on its own. Certiorari is not only a proper but a necessary remedy for setting aside a void decision. See the Privy Council in Calvin v Carr 380 [1979] 2 All ER 440, PC. In the circumstances I find for D1 on the issue of JR. C. STRATA TITLES FOR THE KL GATEWAY PROPERTIES [7] D1 also argued that the Ps' claim that D1 failed to secure the issuance 385 of strata titles for the KL Gateway properties is premature and untenable. 7.1 In refuting the baseless allegation of the Ps, D1 enclosed the following: 7.1.1 D1 Land surveyor's Application to Reconcile the SIFUs (Sijil Formula Unit Syer) of KL Gateway and the reply from the PTG: 390 exhibit AAA-5. 7.1.2 The PTG's approval of D1's application to amend the land usage condition: Exhibit AAA-5. 7.1.3 D1 Land Surveyor's application for sub-division of KL Gateway: Exhibit AAA-5. 395 7.1.4 D1 Proposed Strata Plan: Exhibit AAA-6. 7.1.5 Payments receipts for Strata Tiltle Application: Exhibit: AAA-14. S/N taothZevjEaBVhFms10aVw These contemporary documents deny entirely the allegations of the Ps that D1 had not made any attempt to secure the issuance of the strata 400 titles. The Ps claim is baseless. 7.2 The Ps went on lengthy submissions on the intricacies and technicality of the strata title, but it remained merely a discourse on the technicality of the issuance of the strata title by the relevant authority. 7.3 However, I believe that the submissions by the Ps could not negate the 405 contemporary evidence that the D1 had submitted documents for the strata title. It is not D1 that can cause to be issued the strata title. It is the governing authority upon successful submissions of all required documents. D1 could not determine when the relevant governing authority would issue the strata title. All things considered; I find no 410 basis for this argument. D. DIFFERENT RATES OF MAINTENANCE CHARGE [8] In response to the Ps' claim on the imposition of different rates of maintenance charges for different types of properties, D1 argued that 415 it is an issue to be taken up with the JMB pending the formation of the Management Corporation and not D1. 8.1 Contemporaneous documents adduced by D1 clearly showed that service charge rates were passed by the current JMB (Joint Management Body) of KL Gateway: Exhibit AAA-9. 420 S/N taothZevjEaBVhFms10aVw 8.2 It is erroneous on the Ps' part to argue that D1 controls the JMB. This assertion is not part of the pleaded case of the Ps. This is scandalous, frivolous and vexatious. It is an abuse of process. 8.3 I find no merits in the Ps’ arguments, and all the more reason since it does not form part of their pleaded case. Parties are, by law, bound to 425 their pleadings and not otherwise. [9] Accordingly, D1 argued that the Ps claim ought to be struck out in its entirety under O.18, r.19(1) RC 2012, (a) It discloses no cause of action; (b) It is scandalous, frivolous and vexatious; and (d) It is an abuse of the process 430 of the Court. In the circumstances, D1 prays for enclosure 16 to be allowed with costs. THE LAW [10] Striking out in a nutshell: 435 10.1 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 or dismiss an action or enter judgment accordingly where the pleading: (i) Discloses no reasonable cause of action or defense [(1) (a)]; 440 (ii) Is scandalous, frivolous or vexatious [(1)(b)]; (iii) It may prejudice, embarrass or delay the fair trial of this action [(1)(c)]; (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. 445 S/N taothZevjEaBVhFms10aVw 10.2 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 450 [1993] 3 MLJ 36, the Supreme Court held that the 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 455 of it, "obviously 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: 460 "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 465 'obviously unsustainable' before the action could be struck out summarily. 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." 470 10.3 The Federal Court in Tan Wei Hong (a minor suing through guardian 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 S/N taothZevjEaBVhFms10aVw applicable only in a plain and obvious case or where a claim is, on the face 475 of it, obviously unsustainable. In the present case, the burden is on D1 to show that the plaintiffs’ claim against D1 is obviously unsustainable. 10.4 The Court has an inherent jurisdiction to strike out pleadings that are shown to be frivolous, vexatious, or scandalous and to stay or dismiss an 480 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. [11] The power to strike out, stay or dismiss under the inherent jurisdiction 485 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 490 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 495 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. 500 S/N taothZevjEaBVhFms10aVw FINDINGS [12] Considering the arguments of the parties herein with my determinations above, I find the scale of evidence undoubtedly tilted in D1’s favour for striking out. In addition, it is also my determination that: 505 12.1 The Ps suit herein hinges on the delivery of the individual residential parcels, the subject matter of the SPAs (19.04.2013 - 31.05.2013) that was varied from 36 months to 48 months, brought about by approval for an EOT by the Ministry of Housing and Local Government applied by D1 before the formalization and execution of the said SPAs. 510 12.2 The Ps elected not to challenge the variation occasioned by the said EOT in 2013 when the respective SPAs were executed or anytime thereafter. There is no judicial determination as to the validity of the said EOT that has been taken pursuant to a judicial review proceeding 515 under O.53 RC 2012. The Court of Appeal in Bluedream City Development Sdn Bhd v Kong Thye & Ors and Other Appeals [2022] 2 CLJ 829, CA, affirmed by the FC, had clarified that under the present legislative construct, the Minister in the Ministry of Housing and Local Government is empowered to grant an EOT. The FC 520 subsequently affirmed this finding by the CA. The Ps, however, in circumventing O.53 RC 2012, challenge the validity of that EOT collaterally in this civil suit seeking declaratory reliefs. 12.3 When the wrong mode is used as in the present action, it must, as a 525 matter of course, be struck off: Majlis Perubatan Malaysia & Anor v Asia Pacific Higher Learning Sdn Bhd (Owner of Lincoln S/N taothZevjEaBVhFms10aVw 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 530 were entitled to mount a leave to commence judicial review as soon as becoming aware of the EOT, but did not do so. 12.4 Feigning total ignorance of the said variation is not a tenable or sustainable position to take. Ps are bound to the signed bargains and 535 cannot renege from them. I find that the Ps who are not illiterates, cannot now claim ignorance of a fundamental term on the completion and delivery of the property they purchased in executing their respective SPAs between May to April of 2013. Such a claim is improbable in the circumstances. In conveyancing, solicitors and/or 540 their authorized representatives would have attended to the parties at the time of execution of the respective SPAs. 12.5 If they were genuinely aggrieved, then a challenge should have been mounted for a judicial review of the administrative decision on the said 545 EOT for determination by the Courts. Obata Ambak Holdings Sdn Bhd & 2 Ors v Prema Bonanza Sdn Bhd, HC (supra), the decision 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 550 improper and an abuse of process. The prayers seeking several declarations on the amendments are flawed and irreparable. S/N taothZevjEaBVhFms10aVw 12.6 When a litigant misuses the Court's process, the Court is vested with ample powers to strike out an irregular proceeding. 555 12.7 It is a fact that the variations of those impugned clauses on the completion and delivery period were not done arbitrarily but are locked to the EOT granted by the Ministry. 560 12.8 Whether it was valid or otherwise is for the Court to determine and not the Ps. To reiterate, in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 182: A void order will not disappear on its own. Certiorari is not only a proper but a necessary remedy for setting aside a void decision. See the Privy Council in Calvin v Carr [1979] 2 All 565 ER 440, PC; Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 All ER 865; the Court of Appeal in Chan Kwai Chun v Lembaga Kelayakan [2002] 3 MLJ 550, CA. The Court's determination on the validity of the EOT did not occur due to the Ps omission until the limitation set in: 570 12.8.1 Three months upon discovery of the EOT: O.53, r.3(6) RC 2012, or on or before the expiry of any extension granted under O.53, r.3(7) RC 2012: and/or 12.8.2 Sometime in mid-2019 (s.6 (1) Limitation Act) for a challenge on the alleged contractual breach. 575 It is trite that equity aids the vigilant and does not aid the indolent litigant (Vigilantibus non dormientibus aequitas subvenit). From the circumstances of the present case, the Ps irrefutably sat on their rights for over eight years (from April-May 2013) and are guilty of laches. 580 S/N taothZevjEaBVhFms10aVw [13] I find that the 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: 585 13.6.1 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 Ps under s.64 Contracts Act 1950 (accord and satisfaction): Pinpoint Consortium (M) Sdn Bhd v Mammoth Empire Land Sdn Bhd [2020] 5 CLJ 590 281, HC; 13.6.2 Settlement Agreements are valid under s.64 Contracts Act 1950; 13.6.3 The HDA has no provision to strike down such an agreement reached between the parties. Parties who voluntarily entered 595 into such agreement must be estopped in claiming otherwise save for the presence of vitiating factors: Obata Ombak Holdings Sdn Bhd v Prema Bonaza Sdn Bhd & Other Cases (supra) CA. 13.6.4 I find that the Ps in the instant case who had elected to execute 600 the settlement agreements or letters with D1 voluntarily must be deemed to have waived their right under the Contracts Act 1950 and cannot be allowed to resile from that bargain. 13.6.5 It would be abusive and unjust to allow it unless legitimate vitiating factors exist. In this case, the legal maxim that one 605 cannot approbate and reprobate one's election of choices is most appropriate. 13.6.6 The Ps' assertion in their attempted departure from their settlement agreements or letters is overreaching. 13.6.7 A promisee may dispense with or remit performance of a 610 promise: Section 64 Contracts Acts 1950; applied by the Federal Court in Associated Pan Malaysian Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn Bhd [1990] 3 S/N taothZevjEaBVhFms10aVw MLJ 287, FC; Oxbridge Height Sdn Bhd v Abdul Razak Mohd Yusof and Anor [2014] MLJU 1392, CA. 615 [14] In Obata Ambak Holdings Sdn Bhd & 2 Ors v Prema Bonanza Sdn Bhd (supra) and affirmed by the CA: 14.1 The Ps action is held to be time-barred in the circumstances. 14.2 Stare decisis dictates that the CA's determination binds me. 620 14.3 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 to the defendant on an application to dismiss an action as being frivolous and 625 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 Yaacob & Ors; and connected cases [1983] 2 MLJ 227." 630 14.4 All things considered, it renders the Ps claim 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 claim obviously unsustainable and must be struck off. The 635 Supreme Court in Bandar Builder 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 would strike it down. O.18 r.19 RC 2012 is a discretionary power to be exercised by the Court according to the justice of the case: 640 Muniandy s/o Subrayan & Ors v The Chairman & Board Members of Koperasi Menara Maju Bhd [1997] 1 MLJ 557, CA. CONCLUSION S/N taothZevjEaBVhFms10aVw [15] In light of the foregoing, after examining all-cause papers filed and considering the respective submissions of counsels, I find that D1 had met 645 the Bandar Builder, SC test for striking out in enclosure 16 hereof. The suit by the Ps is obviously unsustainable. Therefore, enclosure 16 is allowed, this entire suit is struck off against D1 and costs of RM8,000.00 awarded to D1, payable by the plaintiffs within 30 days from the date of this order. 650 Dated 09.05.2023. 655 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA WILAYAH PERSEKUTUAN KUALA LUMPUR 660 Counsels: Ms Shobah Veeraputhran, together with Ms Niroshini Ragendran Messrs. Hakem Arabi & Associates Counsels for the Plaintiff 665 Ms Celinne Teh Messrs. Haris Ibrahim Kandiah Partnership Counsel for the First Defendant 670 Mr David Chang together with Mr Anthony Hong Messrs. Mustafa Ling & Co Counsels for the Second Defendant S/N taothZevjEaBVhFms10aVw