Johan Bin Ramli v Ameer Bin Noordin (BA-22NCvC-242-06/2024)

NOR A’SHIKIN BINTI ABDULLAH .…. PLAINTIFFS

NOR ASMAH HASHIM ….. DEFENDANTS GROUNDS OF JUDGMENT (Plaintiffs’ Order 14 Application for Summary Judgment) A.

This is the Plaintiffs’ application for summary judgment pursuant to Order 14 of the Rules of Court 2012. The Plaintiffs seek judgment for the balance purchase price of RM760,000.00 arising from a Sale and Purchase Agreement (“SPA”) dated 2 October 2015, together with interest and costs.

The Plaintiffs submit that the Defendants have enjoyed vacant possession, and the property has been duly transferred and registered in the 1st Defendant’s name since 10 March 2016, 09/12/2025 11:41:43 BA-22NCvC-242-06/2024 Kand. 39 but the Defendants have failed to pay the balance of the price. The Plaintiffs say the Defendants raise no triable issue and the matter is a plain debt claim suitable for summary judgment.

The Defendants resist the application, contending that:

the Plaintiffs’ claim is statute-barred under s.6(1)(a) of the

the purchase monies were paid to the 2nd Defendant, who allegedly acted as “stakeholders” under the SPA; and

due to the alleged stakeholder arrangement, the 1st Defendant contends he has discharged his obligation and is not liable to pay again.

Having considered the affidavits, exhibits and submissions, the Court finds that: i) the 2nd Defendant was not a true stakeholder, ii) payment to her did not discharge the 1st Defendant’s obligation, iii) the claim is not time-barred, and iv) there is no bona fide triable issue.

Accordingly, the Plaintiffs’ Order 14 application is allowed. My full reasons are set out below. B.

The Plaintiffs were the registered proprietors of a parcel of land held under Title HS(D) 12345 Lot 789 Mukim Petaling, Selangor. On 2 October 2015, they entered into an SPA with the 1st Defendant for a purchase price of RM1,600,000.00.

Under the SPA:

RM100,000.00 was to be paid as deposit;

(ii) the balance RM1,500,000.00 was to be paid through the purchaser’s financier, CIMB Bank Berhad;

(iii) payment was to be made through the purchaser’s solicitor, the 2nd Defendant;

(iv) the SPA stated that the “Purchaser’s Solicitors shall act as stakeholders”.

Vacant possession was delivered on 3 January 2016. The Form 14A Memorandum of Transfer was executed, presented and subsequently registered in the 1st Defendant’s name on 10 March 2016.

Between 2015 and 2016, the Plaintiffs received a total of RM740,000.00. The balance of RM760,000.00 was never paid to the Plaintiffs.

The 2nd Defendant subsequently ceased practice, failed to account for the balance monies, and admitted in November 2019 via WhatsApp message that the sum was still outstanding and promised to resolve the matter.

The Plaintiffs filed this suit on 20 March 2024. C.

The Plaintiffs plead that: i) they have fully performed their obligations under the SPA; ii) transfer has long been completed; iii) the 1st Defendant has enjoyed all benefits of ownership and possession; and iv) the 1st Defendant remains contractually liable for the balance

They plead that the 2nd Defendant acted solely for the 1st Defendant. Although the SPA used the expression “stakeholders”, in substance the 2nd Defendant was never jointly appointed by both vendor and purchaser, and therefore she was the agent of the purchaser, not a neutral stakeholder.

The Plaintiffs further plead that the cause of action was renewed by the 2nd Defendant’s acknowledgment dated 12 November 2019, which is binding on the purchaser under s.26- 27 of the Limitation Act. D.

The 1st Defendant contends that he has discharged his obligations because the SPA stated that the purchaser’s solicitor shall “act as stakeholders”.

He asserts that he has paid the purchase monies to the 2nd Defendant and that any failure by the 2nd Defendant is a matter between the Plaintiffs and the 2nd Defendant.

He further pleads that the claim is time-barred under s.6(1) of the Limitation Act.

No alternative plea of fraud, misrepresentation or mistake is pleaded. The Defendants do not dispute that they have received transfer, title and possession. E.

The key issues for determination are:

Whether the 2nd Defendant was a true stakeholder for both parties or merely the agent of the purchaser.

Whether payment to the 2nd Defendant discharged the purchaser’s obligation.

Whether the Plaintiffs’ claim was revived by acknowledgment in 2019 under ss.26-27 Limitation Act.

Whether there exists any bona fide triable issue warranting a full trial.

Whether summary judgment under Order 14 should be granted. F. THE APPLICABLE LEGAL PRINCIPLES

Order 14 Principles

The starting point is Order 14 of the Rules of Court 2012. The law is settled that summary judgment may be entered where the Plaintiff’s claim is clear, supported by contemporaneous documents, and where the Defendant raises no bona fide triable issue.

The legal principles governing the grant of summary judgment under Order 14 of the Rules of Court 2012 may be seen in the case of National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 where the Federal Court held as follows: "We think it appropriate to remind ourselves once again that in every application under Order 14, the first considerations are

whether the case comes within the Order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14, the preliminary requirements are: (i) the defendant must have entered an appearance; (ii) the statement of claim must have been served on the defendant; and (iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14.”

Thus, the test is not whether the Defendant raises any issue, but whether he raises a real issue worthy of trial.

Likewise In the case of Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 3 CLJ 544, the Federal Court held as follows: “In the instant case, the Court of Appeal had put the burden on the plaintiff to prove his case in an O.14 application. With respect, that could not be the correct proposition of law. In an application under O.14 RHC, the burden is on the plaintiff to establish the following conditions : (i) that the defendant must have entered an appearance; (ii) that the statement of claim must have been served on the defendant; and (iii) that the affidavit in support must comply with r. 2 of the O. 14 RHC in that it must verify the facts on which the claim is based and must state the deponent’s belief that there is no defence to the claim. Once those conditions are fulfilled, the burden then shifts to the defendant to raise triable issues. The law on this is trite (National Company for Foreign Trade v. Kayu Raya Sdn Bhd folld). The Court of Appeal, in reversing the burden of proof, had misapplied the relevant principles relating to an application for summary judgment under O. 14 RHC.”

Stakeholder vs Solicitor as Agent

The issue of stakeholder is central to this case. The SPA uses the expression: “The Purchaser’s solicitors shall act as stakeholders…”

However, Malaysian courts have repeatedly held that the mere use of the word “stakeholder” does not automatically make a solicitor a true stakeholder.

The leading authority is Kuldip Singh & Anor v Lembaga Letrik Negara & Anor [1983] 1 MLJ 256 it was held in gist that although described as a stakeholder, the solicitor was not jointly appointed by both vendor and purchaser. He acted solely for the purchaser. In such circumstances, he is no more than the purchaser’s agent. The purchaser must bear the loss.

Similarly, Wong Kiong Hung & Anor v Chang Siew Lan [2009] 4 MLJ 183 distinguishes between:  a true stakeholder jointly appointed by both sides, versus  a solicitor acting merely for the purchaser.

In the case of Wong Kiong Hung & Anor v Chang Siew (supra), where one of the issues raised was whether the solicitor acting for the vendor was, in law, the agent of the vendor; and if the vendor’s solicitor was indeed the vendor’s agent, whether the vendor would then be legally liable for the solicitor’s acts. The Court of Appeal, through Low Hop Bing JCA, held as follows: “On the capacity of an agent, it was noteworthy that the SPA expressly stated that the vendors had appointed JL Lim & Co as their solicitor to whom the vendors had paid the fees and costs. A solicitor who had been retained by his client and whose fees and costs are paid by his client is in law and in fact the agent of the client. Where a solicitor accepted a sum of money in the capacity of the solicitor for his client, so as to utilise it to redeem the property, but had instead absconded with it, the client was ordered to bear the loss.”

Limitation Act 1953 — Part Payment and Acknowledgment

Section 6(1)(a) prescribes a 6-year limitation for actions based on contract.

However, Sections 26(2) and 27 provide that: i) part payment, or ii) acknowledgment of debt in writing by the debtor or his agent resets limitation and starts a fresh 6-year period.

In Yam Kong Seng v Yee Weng Kai [2014] 4 MLJ 478, one of the issues raised concerned the commencement of the cause of action, the acknowledgment of debt by the defendant, and whether such acknowledgment made via short message service (“SMS”) constituted a valid acknowledgment in law.

Suriyadi FCJ, delivering the judgment of the Federal Court, held as follows: “(2) The defendants’ SMS was a reply to the plaintiffs’ demand of payment of the debt. The defendants’ SMS reflected the intention of the parties clearly and unambiguously. There was no difficulty in putting into effect what they had bargained for on reading the words of the SMS. The intention of the second defendant in the defendants’ SMS was clear in that there was an acknowledgment of a debt which fell within the meaning of s 27(1) of the Act. [41]…The acknowledgment embedded in the SMS of 2 May 2006 being evidential in nature, though forwarded to the appellants before the operation of those provisions of the ECA, is admissible in law and therefore applicable in this appeal. The defence of the appellants’ case being time barred is therefore unsustainable.” G. Court’s Analysis 1. Whether the 2nd Defendant was a true stakeholder

The SPA’s wording - “shall act as stakeholders” - must be interpreted in context.

The Plaintiffs never signed any stakeholder agreement. The 2nd Defendant: i) acted solely for the purchaser, ii) received all monies from CIMB Bank (the purchaser’s financier), iii) communicated with the Plaintiffs only in her capacity as the purchaser’s solicitor, iv) held no funds in a joint stakeholder account, and v) was never entrusted jointly by both parties.

Applying Kuldip Singh (supra), this Court finds that the 2nd Defendant was not a stakeholder but the agent of the purchaser.

Thus, the 1st Defendant cannot rely on the stakeholder clause as a shield. Payment to your own agent does not equate to payment to the Plaintiffs.

The defence is therefore illusory and not a triable issue.

Whether payment to the 2nd Defendant discharged the purchaser’s obligation

The Defendants argue that payment to the solicitor discharges the debt. This is incorrect.

In Wong Kiong Hung (supra), the Court of Appeal stated: “Where the solicitor acts only for the purchaser, payment to that solicitor cannot discharge the debt unless the solicitor actually pays the vendor.”

Here, the 2nd Defendant misappropriated the funds. The risk rests on the purchaser who appointed her.

Thus, the 1st Defendant remains liable for the full balance

Limitation Issue

The Defendants argue the claim is out of time because the transfer occurred in 2016.

This Court rejects that argument for three reasons:

The obligation is a continuing contractual obligation

43.1. The obligation to pay the balance purchase price only becomes “due” upon fulfilment of conditions namely delivery of vacant possession, and registration of transfer which occurred on 10 March 2016.

Part payment extends limitation

43.2. Payment of RM740,000.00 up to January 2016 is part payment, which under s.27 Limitation Act renews the cause of action from the date of last payment. Therefore, the fresh limitation period ran from January 2016.

2019 acknowledgment renews limitation

43.3. The WhatsApp message dated 12 November 2019 from the 2nd Defendant clearly states:  “Yes, remaining RM760,000 still pending”  “I will settle with vendor after release from bank”

43.4. Under s.26(2), acknowledgment by a solicitor acting for the debtor binds the debtor.

43.5. A new 6-year period therefore runs from 12 November 2019 → expiring November 2025.

43.6. The present suit (filed March 2024) is well within time.

Whether any bona fide triable issue arises

The Defendants raise only two issues:  stakeholder label, and  limitation.

Both are resolved against the Defendants as pure questions of law, supported by documents.

There is no factual conflict requiring cross-examination.

Under Ng Hee Thoong v Public Bank Bhd [1995] 1 MLJ 281, a triable issue must be real, not manufactured.

The defence is shadowy, unsupported, and unmeritorious.

Equity and Unjust Enrichment

The Defendants have: i) obtained title since 2016, ii) enjoyed possession, iii) benefitted from the property, iv) paid only RM740,000.00 of RM1.6 million.

A purchaser cannot retain ownership of land while refusing to pay the price.

The Court will not sanction unjust enrichment. I. Application of Law to Facts 1.

The Court finds that the 2nd Defendant was not a stakeholder. No evidence of: i) joint appointment; ii) joint instructions; iii) trust account; iv) trust receipt; v) escrow terms.

The description “stakeholders” was form only, not substance.

Applying Kuldip Singh and Wong Kiong Hung, the 2nd Defendant was the purchaser’s agent.Thus, any loss from her wrongdoing rests on the purchaser.

This is a key finding: payment to D2 is not payment to Plaintiffs.

Whether the Purchaser Has Discharged His Obligation

The purchaser’s obligation is governed by Clause 4.1.3. That clause required payment upon: i) delivery of vacant possession, and ii) presentation of transfer documents.

Both occurred by March 2016.

However, the Plaintiffs received only RM740,000.00.

The purchaser has therefore not discharged his contractual obligation.

Limitation Issue 1.

The cause of action accrued in March 2016, when the Plaintiffs discovered non-payment.

Part Payment – Section 27

Part payment of RM740,000.00 extends limitation from the date of last payment — January 2016.

Acknowledgment – Section 26

On 12 November 2019, the 2nd Defendant wrote via WhatsApp:  “Balance RM760,000 still pending.”  “I will sort this with vendor after release from bank.”

This unequivocal acknowledgment:  restarts limitation,  creates a new limitation period 2019–2025.

Suit filed in March 2024 is fully within time.

Whether a Triable Issue Exists

The Defendants’ allegations:  lack documentary support,  contradict settled law,  do not challenge any core facts,  raise no alternative interpretation of the SPA.

I make the following findings:

The 2nd Defendant was not a stakeholder - only a solicitor for the purchaser.

Payment to the 2nd Defendant did not discharge the purchaser’s obligation.

The purchaser remains liable for the balance RM760,000.00.

Acknowledgment in November 2019 revived limitation.

The Plaintiffs’ action is within time.

There is no genuine triable issue.

The matter is fit for summary judgment. K.

The Court reiterates that the essential facts of this case are not in dispute. The Plaintiffs executed the Sale and Purchase Agreement, delivered vacant possession on 3 January 2016, executed the Memorandum of Transfer, and completed all obligations required of them. The Defendants, on the other hand, received the full benefit of the contract including registration of title yet failed to pay the balance of the purchase price amounting to RM760,000.00.

The Defendants’ resistance to the Plaintiffs’ claim is anchored principally on two limbs:

that the 2nd Defendant was a “stakeholder”, and therefore payment to her discharged the purchaser’s obligations; and

that the Plaintiffs’ claim is statute-barred.

Having analysed the SPA, the evidence, and the controlling case law, this Court finds both limbs wholly unsustainable.

On the first limb, the 2nd Defendant was not a stakeholder, but the solicitor and agent of the purchaser. The use of the term “stakeholders” is insufficient in law to constitute a true stakeholder relationship. Applying Kuldip Singh and Wong Kiong Hung, the solicitor’s duty was owed solely to her client the purchaser and failure on her part to disburse the monies cannot prejudice the vendor.

A purchaser cannot transfer his obligation by simply alleging that payment was made to his own solicitor. Conveyancing law and equity would be rendered meaningless if such a proposition were accepted.

On the second limb, the limitation defence similarly collapses. The 2019 acknowledgment coupled with the part-payments made up to 2016 resets the limitation period. Under sections 26 and 27 of the Limitation Act 1953, acknowledgment by a solicitor acting within her authority binds the principal.

Accordingly, the suit filed in 2024 is well within the renewed limitation period running from 2019 to 2025.

The Defendants’ authorities, when examined carefully, do not support their positions. Cases such as Ng Hee Thoong (supra) require a real, genuine, bona fide issue of fact. Here, none exists.

The Defendants raise no factual conflict, no contested evidence, and no alternative interpretation of the SPA text that could meaningfully alter the outcome.

What remains is a straightforward debt claim: the Defendants owe the Plaintiffs RM760,000.00 - a balance of the contract price which must, in equity and in law, be paid.

To deny summary judgment would be to allow a purchaser to retain ownership and possession of property for nine years without paying the price. This offends fundamental principles of contractual fairness and unjust enrichment.

Thus, this is not merely a matter of contract. It is a matter of conscience.

Having examined all arguments, the Court is satisfied that the Defendants’ defence is shadowy, illusory, and destined to fail at trial.

This is precisely the type of case for which Order 14 was designed to prevent delay and ensure that a party is not deprived of justice due to an unmeritorious defence.

For reasons elaborated above, the Court holds:

The 2nd Defendant was not a stakeholder;

Payment to the 2nd Defendant did not discharge the 1st Defendant’s obligation;

The 2019 acknowledgment renewed limitation;

The Plaintiffs’ claim is within time;

There is no bona fide triable issue; and

The Plaintiffs are entitled to summary judgment. M.

Accordingly, the Plaintiffs’ application for summary judgment under Order 14 Rules of Court 2012 is allowed.

Judgment for the Plaintiffs The 1st Defendant shall pay to the Plaintiffs the sum of: RM760,000.00 (being the unpaid balance of the purchase price under the Sale and Purchase Agreement dated 2 October 2015).

Interest Interest is awarded at: 8% per annum calculated from 3 January 2016 (being the date of delivery of vacant possession and accrual of contractual entitlement) until full settlement of the judgment sum.

Costs Costs of this application are awarded to the Plaintiffs, to be taxed if not agreed. N. Final Observations

This case illustrates the importance of ensuring clarity in stakeholder clauses in conveyancing documents. A solicitor cannot be deemed stakeholder merely by labelling; substance, not form, governs the legal consequence.

The Court must emphasise that purchasers remain responsible for the conduct of solicitors whom they appoint. This preserves the integrity of conveyancing practice and ensures fairness in land transactions.

The Defendants’ attempt to rely on the misdeeds of their own solicitor without demonstrating any independent evidence of discharge cannot be permitted to defeat the Plaintiffs’ clear contractual entitlement.

Summary judgment is not granted lightly. However, where the defence is demonstrably hollow, the Court must not compel parties to endure unnecessary litigation.

The Plaintiffs are entitled to the benefit of their bargain, and justice requires that the Defendants honour their contractual obligation. Dated this 25th November 2025 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Plaintiff : Dato’ Akberdin (Ms. Farahdina binti Abu Bakar dan Mr. Ahmad Redza bin Akberdin with him) Messrs. Akberdin & Co Counsel for Defendant : Encik Adi Farris bin Abdul Murad