Kcsb Konsortium Sdn. Bhd. v XXXX (22NCVC-52-02/2013)

1.

TEKAD URUS SDN BHD … PLAINTIF-PLAINTIF DAN THE STORE (M) SDN BHD … DEFENDAN GROUNDS OF JUDGMENT (Enclosure 92) Introduction and background [1] This is an application filed by the Defendant in Enclosure 92 to set aside the ex-parte Order dated 28.9.2022 which allowed the Plaintiffs leave to issue a writ of possession pursuant to a judgment obtained by them on 30.8.2013. [2] As a brief background of facts, the 1st Plaintiff is the registered owner of a piece of land held under Lot 1876, Hakmilik No. PN 11044, Mukim Plentong, Daerah Johor Bahru, with the acreage of 125.7559 hectares 15/04/2024 10:08:44 22NCVC-52-02/2013 Kand. 129 (“Property”). Vide a power of attorney dated 13.4.2012, the 1st Plaintiff appointed the 2nd Plaintiff as its lawful attorney to manage and deal with the Property. [3] Vide a tenancy agreement dated 10.6.2003 (“Tenancy Agreement 2003”) the Plaintiffs tenanted a plot of the Property known as Parcels 5 and 6 (“Plot”) to Rohaizat Holding (M) Sdn Bhd (“RHSB”). The Plot was a vacant land then. [4] By virtue of the Tenancy Agreement 2003, RHSB was allowed to erect a building known as Pasar Rakyat Johor Bahru (“Building”) on the Plot. [5] Vide an agreement dated 20.9.2005 (“2005 Agreement”), RHSB sub-tenanted the Plot together with the Building to the Defendant. [6] Since 2012, the Defendant became the main tenant of the Plot. [7] On 18.2.2013, the Plaintiffs filed this suit, inter alia, to claim for the outstanding rentals and to order the Defendant to surrender the vacant possession of the Plot. [8] After a full trial, on 30.8.2013, this Court delivered a judgment (“2013 Judgment”) which consists the following orders, inter alia –

the Defendant is to pay a sum of RM100,000.00 being the agreed outstanding balance of rental to the Plaintiffs;

the Defendant is to pay the outstanding rental of RM545,040.00 to the Plaintiffs;

the Defendant is to continue to pay monthly rental of RM136,260.00 until the delivery of vacant possession of the Plot to the Plaintiffs and the said vacant possession is to be delivered in its original condition; and

the Defendant is to pay all renovation costs of the Building. [9] On 26.9.2013, the Defendant filed an appeal to the Court of Appeal against the above judgment. Pending the disposal of the appeal, on 24.10.2013, this Court allowed the Defendant’s application to stay the order to deliver the vacant possession of the Plot. [10] On 20.3.2014, the Court of Appeal dismissed the Defendant’s appeal. [11] It is an undisputed fact that since 2013, there were series of discussions and meetings held between the parties in relation to the Plot and the Building but failed to reach any settlement. [12] On 17.5.2022, the Plaintiffs filed an ex-parte notice of application for leave to issue a writ of execution under O. 46 r. 3 of the Rules of Court 2012 (“ROC”) against the Defendant for the vacant possession of the Plot. On 23.6.2022, this Court allowed the Plaintiffs’ application and an order (“Order dated 23.6.2022”) was issued inter alia, that the Plaintiffs are allowed to issue a writ of execution based on the 2013 Judgment despite six years had lapsed. [13] On 18.7.2022, the Plaintiffs served the 2013 Judgment and Order dated 23.6.2022 on the Defendant and its solicitors. [14] As the Defendant failed to comply with the said writ of execution, on 28.9.2022, this Court granted the Plaintiffs, 14 days after this order is received by the Defendant, leave to issue a writ of possession against the Defendant to enforce the 2013 Judgment (“ex-parte Order dated 28.9.2022”). [15] On 31.10.2022, the Bailiff of the Johor Bahru High Court together with the Plaintiffs’ solicitors went to the Building and pasted the ex-parte Order dated 28.9.2022 and the Bailiff Notice dated 31.10.2022 at the Building. During this action, the Plaintiffs alleged that the Defendant representatives were also present. It was stated in the Order and the Bailiff Notice that the Defendant is ordered to vacate the Plot and the Building within 14 days from that day. [16] On 20.1.2023 the Defendant filed an application in Enclosure 92 to set aside the ex-parte Order dated 28.9.2022 and to revoke the writ of possession on the following grounds, inter alia –

the delivery of vacant possession of the Plot is invalid as it would involve the Building whereas the tenancy only relates to the land and not the Building. The Building on the Plot was renovated massively by the Defendant and thus, the Plaintiffs are not entitled to own the Building;

the Plaintiffs failed to make a full and frank disclosure in their ex-parte application on the material facts of the existence of the

the Plaintiffs failed to serve the ex-parte Order dated 28.9.2022 on the Defendant. Whether the delivery of vacant possession of the Plot in its original condition involves the land without the Building [17] The Defendant averred that when it took over the Building (formerly known as the Pasar Rakyat) from RHSB vide the 2005 Agreement, the Pasar Rakyat was temporary in nature and accommodating only stalls and business lots. Later, the Defendant appointed a contractor to carry out significant construction and internal renovation works on the Pasar Rakyat with the approval of RHSB. The Pasar Rakyat was then converted into the existing Building and about three times larger than the Pasar Rakyat. As such, the Defendant contended that it owns the Building and as in line with the 2013 Judgment which requires the Defendant to demolish the Building, the Defendant is only obliged to deliver the vacant possession of the Plot in its original condition which should involve the land without the Building. In view of this, the Defendant contended that as long as the Building is still in existence, the Plaintiffs are not entitled to execute the writ of possession of the Plot. [18] The Defendant also argued that it was never the intention of the parties to regard the Building as part and parcel of the Plot in the first place. This can be seen in the 2005 Agreement where it deliberately provides separate definitions for the Plot (referred to as the Said Parcel in the Agreement) and the Building (Business Premises) as follows: Business Premises Means the stalls and/or business lots erected and/or to be erected by RHSB on the Said Parcel, which are temporary in nature and with such specifications as may be agreed in writing by TUSB and in conformity with relevant approval(s) Said Parcel Means part of the Said Parcel having an area of approximately fifteen (15) acres and indicated in the layout plans as attached in Schedule 1 [19] By having two sets of definition for the Plot and the Building, the Defendant alleged that the 2005 Agreement has purposely made a demarcation between the Plot and the Building. As such, the Plaintiffs are only entitled to the Plot namely the land and not the Building. [20] This narrative nevertheless was strenuously disputed by the Plaintiffs. According to them, the Defendant was only allowed to do renovations on the Pasar Rakyat as clearly stated in the 2005 Agreement. It means that the RHSB was the party who originally built the Building. In short, the Building was undoubtedly erected by RHSB and later renovated by the Defendant. Thus, by only renovating the Building, the Plaintiffs averred that the Building does not in any manner belong to the Defendant. [21] To deal with this issue, it is pivotal to note that the National Land Code (“NLC”) defines “land’ to include anything attached to the earth or permanently fastened to anything attached to the earth. S. 5 of the NLC reads – "land" includes –

that surface of the earth and all substances forming that surface;

the earth below the surface and all substances therein;

all vegetation and other natural products, whether or not requiring the periodical application of labour to their production, and whether on or below the surface;

all things attached to the earth or permanently fastened to any thing attached to the earth, whether on or below the surface; and

land covered by water; [22] It is trite that whether a building or structure can be regarded as part of the land depends on such chattel has been physically fixed to the land. In Goh Chong Hin & Anor v. The Consolidated Malay Rubber Estates Ltd 5 FMSLR 86, it was held that chattels affixed to land for its improvement or better enjoyment or its greater utility for the purpose for which the land is applied is treated as being part of the land. Thus, the underground tanks were held as part of the land in The Shell Company of the Federation of Malaya Ltd v. Commissioner of the Federal Capital of Kuala Lumpur [1964] CLJU 206; [1964] 1 LNS 206. [23] Likewise, in Chua Sai Ngoh (f) v. Beh Ai Meng [1955] 1 LNS 20 [1955] MLJ 167 [1955] CLJU 20, where the defendant who was the tenant in that case argued that he was the owner of three houses on the land as he built them whereas the landlord was only the landowner and not the houses. Thompson J dismissed such argument and decided that the landlord was the owner of the houses. The Lordship held – Moreover, he can derive no assistance from anything connected with the mode of attachment of the buildings to the soil. The cement floors clearly cannot be removed without complete disintegration; the supporting pillars could only be removed after the disintegration of the floors and, as regards, the walls and roofs, although, no doubt, they might be removed piecemeal, it seems to me that the pieces of material comprising them have completely lost their separate identity and that each house is to be considered as a single entity. It follows, then, that the houses in question are part of the land on which they stand and are thus the property of the proprietor of the land, that is to say, of the plaintiff and for what it is worth she must therefore have the declaration to that effect for which she asks. [24] Back to the present action, looking at the Building, it is undoubtedly that it is attached permanently to the Plot. Not only that, when the Defendant took over the Building (formerly known as the Pasar Rakyat) and renovated it significantly, the purpose of the Defendant’s action was none other than for the better enjoyment of the Plot so as to improve its usefulness and value. Further, the Building was intended to remain in situ for as long as the departmental store continues in operation and not for a temporary basis. Based on the authorities above, I have no hesitation to rule that the Building is part of the Plot and its ownership vests with the landowner namely the Plaintiffs. As such, being the owner of the Building, the vacant possession of the Plot should include the Building as well. Whether the Plaintiffs failed to make a full and frank disclosure on the material facts of the existence of the Building on the Plot [25] Another issue raised by the Defendant is that the Plaintiffs failed to make a full and frank disclosure on the material facts of the existence of the Building on the Plot especially on the fact that the Building is owned or renovated by the Defendant. [26] On this issue, it is pertinent to note that the existence of the Building is not something new. This fact has been fully disclosed and deliberated during the trial in 2013. That is why the 2013 Judgment (which is confirmed by the Court of Appeal) states inter alia that the Defendant has to remove the Building and surrender the vacant possession of the Plot in its original condition. In fact, I am fully aware of this fact when allowing the ex-parte Order dated 28.9.2022. Thus, the issue raised by the Defendant is a non-starter. Whether the Plaintiffs failed to serve the ex-parte Order dated 28.9.2022 on the Defendant [27] The Defendant argued that it has no knowledge of the ex-parte Order dated 28.9.2022 since the application was made ex-parte by the Plaintiffs. [28] On this issue, it is pivotal to note that O. 45 r. 3(3) of the ROC states the requirement to be complied with before a writ of possession can be enforced. The Order says –

Such leave shall not be granted unless it is shown that every person in actual possession of the whole or any part of the immovable property has received such notice of the proceedings as appears to the Court sufficient to enable him to apply to the Court for any relief to which he may be entitled. [29] It is trite that the notice of the proceedings must be given to the Defendant and must not be served personally to the Defendant (see Pengurusan Danaharta Nasional Berhad v. Yong Wan Hoi & Anor (No. 2) [2007] CLJU 493; [2007] 1 LNS 493 and Magendiran Muthusamy v. Punitha Jayacelam [2021] CLJU 2129; [2021] 1 LNS 2129). [30] In the present case, as alluded to earlier, the ex-parte Order dated 28.9.2022 and the Bailiff Notice were pasted on 31.10.2022 on the Building in the present of the Defendant. It has to be noted that the Building was still in the possession of the Defendant when the ex-parte Order dated 28.9.2022 and the Bailiff Notice were posted on the Building. Thus, I agree with learned counsel for the Plaintiffs that it is unreasonable for the Defendant to allege that it has no knowledge of the ex-parte Order dated 28.9.2022. In view of the foregoing, I find that the action of pasting both the ex-parte Order dated 28.9.2022 and the Bailiff Notice is sufficient and in accordance with O. 45 r. 3(3) of the ROC. Conclusion [31] It is observed that the Defendant has been given more than ample time since 2013 to deliver the vacant possession of the Plot in the manner stated in the 2013 Judgment but it failed. There is no cogent indication showed by the Defendant when it would carry out the removal works on the Building neither there is an iota of evidence presented by the Defendant to establish that affords have been taken to pull down the Building as to comply with the 2013 Judgment. I agree with learned counsel for the Plaintiffs that the Defendant’s argument that it has not delivered the vacant possession of the Plot due to the existence of the Building on the Plot is nothing more than to unfairly deprive the Plaintiffs from the fruits of the judgment obtained in their favour since 2013. [32] Further, after scrutinizing the narrative of facts in this action, a reasonable inference can be drawn that the Defendant has purposely not demolished the Building despite 9 years after the 2013 Judgment as to delay the delivery of vacant possession of the Plot until the Plaintiffs pay for the market value of the Building. There is nothing in the 2013 Judgment that the Plaintiffs are required to do that. On the other hand, the Defendant is clearly required to pull down the Building as to deliver the vacant possession of the Plot. This Court is not prepared to accept the nonchalant attitude showed by the Defendant in compliance with the 2013 Judgment. [33] As a conclusion, I find that the Defendant failed to establish convincingly the existence of any merit in its application to set aside the ex-parte Order dated 28.9.2022. Thus, I dismiss the Defendant’s application in Enclosure 92 with costs Dated: 14.4.2024 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judge, High Court of Malaya, Johor Bahru Counsels: For the Plaintiffs – Lim Kien Huat; Messrs. Lee & Lim For the Defendant – Gideon Tan (Yip Man Fei with him); Messrs. Gideon Tan Razali Zaini Cases referred to:  Chua Sai Ngoh (f) v. Beh Ai Meng [1955] 1 LNS 20 [1955] MLJ 167 [1955] CLJU 20  Goh Chong Hin & Anor v. The Consolidated Malay Rubber Estates Ltd 5 FMSLR 86  Magendiran Muthusamy v. Punitha Jayacelam [2021] CLJU 2129; [2021] 1 LNS 2129  Pengurusan Danaharta Nasional Berhad v. Yong Wan Hoi & Anor (No. 2) [2007] CLJU 493; [2007] 1 LNS 493  The Shell Company of the Federation of Malaya Ltd v. Commissioner of the Federal Capital of Kuala Lumpur [1964] CLJU 206; [1964] 1 LNS 206 Legislations referred to:  National Land Code – s.  Rules of Court - O. 45 r. 3(3)