Kenneth Kong Kok Leong v Mayfair Ventures Sdn Bhd (BA-22NCvC-263-06/2023)

KENNETH KONG KOK LEONG

KHAW TEIK HOCK

LIM BOON HOCK

KHOR SENG CHEE

TAN SHEOW PING

CHONG MING LIANG

FONG CHEAN FOONG

WOO CHEW HONG

CHOW YIN CHING

KOK CHUN MING (NO. K/P: 820110-08-5409) 02/01/2025 11:22:18

JEFFREY NG EOW OO

LAM MAY YEE

BATHOLOMEW FRANCIS

YAP YOON KIEN

KOONG YUNG CHENG

YAP PECK SIEN

LOKE WEI FENG

CHERYLL WONG LI SHEN

KOON TECK WAI

NG MIN HUI

YEOH XIAN YEE

WONG SAU KUAN

THAM SAU WAN

LIANG LOKE SAN

KHOO LAY YING

LEOW PEK TIN (NO. K/P: 631205-10-7700) PLAINTIF-PLAINTIF DAN MAYFAIR VENTURES SDN BHD (No. Syarikat: 201301016368 (1046201-T)) DEFENDAN GROUNDS OF JUDGMENT (Enclosures 8 and 15) Introduction [1] The 26 Plaintiffs in this action are purchasers of units in a housing project developed by the Defendant known as Lumi Tropicana. The Plaintiffs claim liquidated ascertained damages ( ) for late delivery of vacant possession ( ) of their individual units. [2] Two (2) applications came before me for hearing on 13-12-2024. Enclosure 8 was filed by the Defendant on 9-10-2023 to strike out the action. Enclosure 15 was filed by the Plaintiffs on 7-10-2024 to stay this action pending a judicial review application in BA-25-45-06/2022 ( ) filed by 12 of the 26 Plaintiffs. Background Facts [3] The Plaintiffs paid booking deposits and signed their respective sale and purchase agreements ( ) to purchase units in Lumi Tropicana on various dates in 2017. They all received vacant possession of their units after the notice of delivery of VP on 28-12-2021. [4] The SPAs were in the prescribed form under Schedule H of the Housing Development (Control and Licensing) Regulations 1989 ( ) except that the period for delivering VP had been varied from 36 months to 48 months. [5] By the time the Plaintiffs received VP of their units, the development had experienced the following periods of delay beyond the statutory period of 36 months stipulated in the prescribed form Schedule

the 12-month extension of time granted by Controller of Housing to the Defendant on 21-6-2017 to amend the statutory period for delivery of VP to 48 months pre-SPA EOT ;

a 167-day extension of time (18-3-2020 to 31-8-2020) granted by the Minister and/or the Director General of National Housing Department, Ministry of Housing and Local Government on 6-7-2021 under section 35 of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 ( COVID- ) (1st Covid ); and

a 153-day extension of time (1-6-2021 to 31-10-2021) granted by the Minister and/or the Director General of National Housing Department, Ministry of Housing and Local Government on 15-3-2022 pursuant to an application made by the Defendant under section 38C of the COVID-19 Act ( nd Covid ). [6] The 1st Covid EOT is not disputed, but the JR application was filed by the 1st to 3rd, 6th to 9th, 11th to 13th, 15th and 16th JR Plaintiffs to quash the 2nd Covid EOT which the JR Plaintiffs say they received notice of on 29-4-2022. Leave was granted on 18-10-2022 and the JR application proper is fixed for hearing on 19-2-2025. [7] At the outset, the Plaintiffs had pleaded the 2nd Covid EOT as the basis for part of their claim here. They then amended the Statement of Claim to remove that plea prior to service of the Writ. Consequently, the Plaintiffs asserted the invalidity of the 2nd Covid EOT here but claimed no relief from it, and decided to pursue both the writ action and the JR application at the same time. [8] As it stands therefore, the Plaintiffs in this action are only claiming LAD for the period of delay caused by the pre-SPA EOT, with a reservation of rights to further amend the claim if the JR application is decided in their favour ( ). [9] By the time Enclosures 8 and 15 came up before me for hearing, both this action and the JR application had been at abeyance for some time pending the anticipated outcome of the Federal Court decision in Obata-Ambak Holdings Sdn Bhd v. Prema Bonanza Sdn Bhd & Other Appeals [2024] 8 CLJ 519 ( Obata- ). [10] It has now come to pass that the Federal Court made the following rulings in Obata-Ambak:

that the doctrine of prospective overruling is to apply to the decision in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals which held that regulation 11(3) of the HDR on to modify the terms of the prescribed SPA is ultra vires the HDA;

that the Second Actor Theory justified the prospective overruling because the developers (second actors) had relied on the presumed validity of decisions made by the Controller. This is premised on the reasoning that administrative acts exist in fact and may have legal consequences even if they are legally invalid, and so they cannot be declared void independently of

that in the case of modification to the period stipulated in the prescribed SPA for delivery of VP by a developer, a purchaser may not launch a collateral attack on the validity of the extension of time through a writ action against the developer. Striking Out Application [11] The Defendant applied to strike out the action of each of the Plaintiffs on various grounds, the key grounds argued being:

The JR application to quash just the 2nd Covid EOT points to this suit being an abuse of process as all could have been finally determined in the JR application;

The pre-SPA EOT is valid in the light of Obata-Ambak since it was granted by the Controller of Housing before the decision of the Federal Court in Ang Ming Lee;

It is an abuse of process for the Plaintiffs to have filed in the High Court, a consolidated action comprising individual claims which did not meet the jurisdictional limit of the High Court;

The 19th Plaintiff has no locus standi to sue since he had assigned his rights to the chargee and the chargee has since enforced those rights and auctioned off the property. Stay of Proceedings [12] f the 2nd Covid EOT is determined to be invalid in the JR application, then the Plaintiffs should be entitled to re-amend their Statement of Claim here to add a further 153 days to the computation of LAD that may be claimed. [13] The Plaintiffs say that for this reason, this Court should await the outcome of the JR application. The Plaintiffs also contend that the Defendant had previously agreed to stay this action pending the JR application and thus conceded that it will have an impact on this action. [14] The formal application to stay this action pending the disposal of the JR application was filed by the Plaintiffs when the Defendant took the position that:

during a prior case management of this action, the Defendant had only agreed to adjourn the proceedings and it was primarily pending the decision in Obata-Ambak; and

the decision in Obata-Ambak presented a change of circumstances which warranted proceeding with the striking out of this action without awaiting the outcome of the JR application. Issues for Determination [15] Both the stay of proceedings application and the striking out application are inter-connected because according to the Defendant, one of the grounds for striking out this action is that the circumstances relied upon by the Plaintiffs to justify the stay of proceedings is itself an abuse of process. [16] I heard Enclosures 8 and 15 together and have considered the following issues in this order:

Is it an abuse of process for the Plaintiffs to have filed in the High Court, a consolidated action comprising individual claims which did not meet the jurisdictional limit of the High Court?

Is the pre-SPA EOT valid in the light of Obata-Ambak since the pre-SPA EOT was granted by the Controller of Housing before the decision of the Federal Court in Ang Ming Lee?

Is it an abuse of process for the Plaintiffs to file this action as well as ve been finally determined in the JR application?

Does the 19th Plaintiff still have locus standi to sue since he had assigned his rights to the chargee and the chargee has enforced those rights and auctioned off the property? Analysis and Findings Monetary Jurisdiction of Courts [17] The Defendant relies on the civil jurisdiction of the Magistrates and Sessions Court as prescribed in sections 65 and 90 of the Subordinate Courts Act 1948 the Subordinate Courts and not in the High Court. [18] Each of the SPA sued on in this action are indeed separate contracts involving separate Plaintiffs. Strictly speaking, they should have been filed as separate actions in the appropriate Subordinate Court according to the quantum of each claim as follows: [19] However, the Plaintiffs argued that because the High Court is a Court of unlimited jurisdiction, there is no jurisdictional impediment to filing this action as they have for expediency, instead of filing 20 different claims in the Subordinate Courts against the same Defendant in respect of the same project. [20] short-cut, the monetary limits of the courts are set by statute for good reason. In arguments, I was referred to Koh Kien Hooi & Ors v Kepong Industrial Park Sdn Bhd [2022] 12 MLJ 440 about litigants combining small claims and filing it as a single claim in the High Court. [21] This Court does not disagree with the sentiments expressed in Koh Kien Hooi which ended in a transfer of the suit in that case to the Sessions Court. In that case and others where the issue had been raised, the cases were not struck out with prejudice. In this case, it would be a waste of time to transfer the claim or claims to the Subordinate Courts 18 months into the action here. [22] Further, it is also true that proceeding via the technically correct way would ultimately still result in a set of cases before the Magistrates Court and another set before the Sessions Court. Where there is a commonality of issues, I would regard the paramount consideration as being to avoid having them decided before two (2) different judges whose decisions may conflict with each other. Applicability of Ang Ming Lee [23] The Plaintiffs contend that notwithstanding the ruling in Obata-Ambak that Ang Ming Lee applies prospectively, the principles from that landmark case still applies to invalidate the pre-SPA EOT which was given by the Controller of Housing on 21-6-2017 because the Defendant cannot in fact, rely on the Second Actor Theory. The logic is as follows:

the pre-SPA EOT was granted after the High Court in Ang Ming Lee had adjudged on 15-6-2017 that such an extension of time would be ultra vires the Housing Development (Control and Licensing) Act 1966 ( )

The Obata-Ambak ruling is fact specific to developers who are bona fide in relying on the validity of the decision of the Controller, and the Defendant was not bona fide because the High Court in Ang Ming Lee had ruled it invalid before the modified SPAs were signed. [24] To recap, Ang Ming Lee (High Court) found regulation 11(3) ultra vires the HDA and therefore void on 15-6-2017, Ang Ming Lee (Court of Appeal) reversed that on 22-5-2018 and Ang Ming Lee (Federal Court) settled the substantive question on 26-11-2019. In effect, the outcome is that the Controller cannot be delegated the power to modify the prescribed terms of the SPA. [25] Controller extended VP delivery dates for SPAs entered into before the Federal Court decision in Ang Ming Lee is once again in a state of flux depending on the subjective knowledge of the law and bona fides of the developers (and the purchasers) when the SPAs were signed. [26] I am unable to agree with the Plaintiffs on this. The argument misses the point of Obata-Ambak which specifically adopted the doctrine of prospective overruling as it relates to the Federal Court decision in Ang Ming Lee. The basic objective of this is to declare the law without it having a retrospective effect. As noted by the Federal Court: [144] It is said that the prospective declaration of law is a device innovated by the apex court to avoid reopening of the settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of the prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law prior to its date of declaration are validated. This is done in the larger public interest. Therefore, the subordinate forums which are legally bound to apply the declaration of law made by this court are also duty bound to apply such cases which would arise in future only. [27] In the entire judgment of the Federal Court in Obata-Ambak the reference to Ang Ming Lee is to the Federal Court decision made on 26- 11-2019 and not to the High Court decision on 15-6-2017. Thus, it was intended to clarify, without any qualification, that the principles enunciated in Ang Ming Lee do not apply to extension granted by the Controller before 26-11-2019. [28] The principles enunciated in Ang Ming Lee are that the Controller cannot be delegated the power to modify the prescribed terms of the SPA riod for delivery of VP is void because regulation 11(3) of the HDR is ultra vires the HDA. These principles do not apply to the present case. [29] Accordingly, this Court finds that there is no need to determine whether the Second Actor Theory applies to the Defendant or not because the pre-SPA EOT was given before 26-11-2019 and following Obata-Ambak it was not automatically nullified but existed in fact and was validated before it was ever declared to be void. [30] The pre-for LAD is to that extent unsustainable. Litigation by Instalments [31] This leaves the unanswered question of the 2nd Covid EOT. The Defendant urged this Court to hold the Plaintiffs to their pleadings as they now stand and strike out the claim, regardless of whether the High Court in the JR application might find the 2nd Covid EOT to be invalid when it comes up for hearing on 19-2-2025. [32] Relying on Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd [1999] 4 MLJ 637, the Defendant contends that the categories of abuse this litigation is tantamount to an abuse of process because it gives rise to a duplicity of proceedings and/or litigation by instalments. [33] The Plaintiffs say there is no abuse of process because:

the parties, causes of action and remedies in the JR application are different from those in this action;

it is necessary to straddle both courts because the JR application must decide that the 2nd Covid EOT is invalid first before the LAD claim based on it can be made in the writ; and

the Plaintiffs were forced to file this writ action on 30-6-2023 with the JR application still pending to avoid the statutory time bar. Duplicity of Proceedings [34] Technically, there is no duplicity of proceedings because it is true that the parties, causes of action and remedies in the JR application are different from those in this action. However, they are clearly related because the Plaintiffs have premised one on the outcome of the other. [35] As this manner of proceeding by the Plaintiffs is by design, the complaint is that the Plaintiffs are litigating by instalments and that this too is an abuse of process. The crux of the complaint is that the Plaintiffs could have and should have proceeded entirely by way of judicial review instead of filing this action. [36] The concept derives from res judicata in the wider sense as established in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, citing Henderson v Henderson (1843) 3 Hare 100: where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have [37] Based on the same concept, a multiplicity of proceedings is also regarded as vexatious and an abuse of process. Multiplicity of proceedings is argued where res judicata does not apply because the proceedings were not launched sequentially i.e. there is no final disposal of the issue in one court when the other is commenced. [38] Section 25(2) of the Courts of Judicature Act 1964 read together with item 11 of the Schedule to the Act expressly recognizes this: Power to dismiss or stay proceedings where the matter in question is res judicata between the parties or where by reason of multiplicity of proceedings in any court or courts the proceedings ought not to [39] As it relates to the JR Plaintiffs, they are asserting their rights to claim LAD because they consider the 2nd Covid EOT to be null and void in both this action and the JR application at the same time. They cannot now say that they are not asserting their rights in this action yet because they have only pleaded a Reservation of Right to Amend. [40] The fact that the JR Plaintiffs have chosen to limit the remedies sought in the JR application by applying only to quash the 2nd Covid EOT was also calculated. Unfortunately for the Plaintiffs, this litigation by instalment was a miscalculated since the remedies sought by the Plaintiffs in this action could have been sought as part of the JR application. [41] As pointed out, Order 53 Rule 5(1)(a) of the Rules of Court 2012 provides that on an application for judicial review, the Court may award damages to the applicant if: he has included in the statement in support of his application for leave under rule 3 a claim for damages arising from any matter to which the application relates; and

the Court is satisfied that, if the claim has been made in an action begun by the applicant at the time of making his [42] In Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865, the Federal Court considered when it is appropriate to proceed by way of judicial review under Order 53 (of the then Rules of the High Court 1980) and when it is appropriate to proceed by writ or originating summons: We observed that a challenge on the use of appropriate procedure is very much fact based. Thus, it is necessary for a judge when deciding on such matter to first ascertain whether there is a public law element in the dispute. If the claim for infringement is based solely on substantive principles of public law then the appropriate process should be by way of O. 53 RHC. If it is a mixture of public and private law then the court must ascertain which of the two is more predominant. If it has a substantial public law element then the procedure under O. 53 RHC must be adopted. Otherwise, it may be set aside on the ground that it [43] Thus, it is not a matter for the JR Plaintiffs to elect any mode they prefer there is a correct mode, and a wrong mode. It is an abuse of process to permit a person seeking to establish that a decision of a public authority infringed protected rights under public law to proceed by way of an ordinary action as that would be the wrong mode of proceeding. [44] Per Gopal Sri Ram JCA in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 CLJ 697: If it is not clear whether judicial review or an ordinary action is the correct procedure it will be safer to make an application for judicial review than commence an ordinary action since then there should be no question of being treated as abusing the process of the court [45] In the present case, the asserted right to LAD is also premised on the invalidity of the 2nd Covid EOT, which is an administrative action of a public authority. It is predominantly a public law matter that should have proceeded in the way that Ang Ming Lee did. Proceeding entirely via judicial review would have also addressed the statutory time bar issue. [46] Evidently, the JR Plaintiffs also recognized this by filing the JR application. Having correctly elected to move the Court to review the validity of the 2nd Covid EOT, there is no apparent justification for this action. At any point in the course of the last 30 months since June 2022, it was open to the JR Plaintiffs to seek leave to amend the JR application and withdraw this action. Necessity for a Stay of Proceedings [47] The disposal of this writ action is now said to be conditional upon the outcome of the JR application. This is not a matter of waiting two (2) months for the outcome of the JR application for a decision. There may well be appeals. [48] Further, the JR Plaintiffs are expecting the Court to allow them leave to re-amend their Statement of Claim if the 2nd Covid EOT is found to be invalid. This Court finds such a prospect most unsatisfactory as it . [49] On a closer look at the JR application, it is noted that a major plank of the challenge there is that the purported empowering provision for the 2nd Covid EOT is section 38C(1) and (3) of the COVID-19 Act which came into effect on 14-1-2022 to temporarily modify the HDA as it relates to delivery of VP and completion of common facilities. Those sections provide as follows: In relation to a housing development, notwithstanding any agreement entered into between a developer and a purchaser, the developer may apply to the Minister for any period from 1 January 2021 to 31 December 2021 to be excluded from the calculation of the time for delivery of vacant possession of a housing accommodation or completion of common facilities, as the case may be, in the housing development

The Minister shall not consider an application under subsection (1) if the application is made after the expiry of the time for delivery of vacant possession or the completion of common facilities specified under the agreement. [50] It may be recalled that the COVID-19 Act was enacted to temporarily alleviate some pandemic hardships. [51] According to the JR Plaintiffs in the JR application, the 2nd Covid EOT is null and void, inter alia, because:

the 2nd Covid EOT was applied for/approved on 15-3-2022, after the deadline to hand over VP to the JR Plaintiffs had already expired; and

the deadline to hand over VP based on their SPAs and the 1st Covid EOT, fell on a date in January 2022 before section 38C of the COVID-19 Act came into effect. [52] As explained by counsel for the Plaintiffs, of the 20 SPAs, only 10 had expired delivery dates for vacant possession as of 14-1-2022, when considering both the pre-SPA EOT (48 months) and the 1st Covid EOT and using the dates of respective SPAs as starting points. This includes the SPAs for the JR Plaintiffs and the 24th, 25th, and 26th Plaintiffs who came on board too late to participate. [53] Evidently, the key ground to quash the 2nd Covid EOT could not be invoked by all the non-JR Plaintiffs whose SPAs were signed later. Thus, the inclusion of the non-JR Plaintiffs in the JR application may have compromised the case for judicial review. It was obviously for this reason that the Plaintiffs were split into two (2) groups. [54] The Plaintiffs argued that if the 2nd Covid EOT is void, then it should be void for the whole project. In that sense, the Plaintiffs are in effect arguing that the JR application is a representative action. However, this is not true for the cited key ground for the JR application as demonstrated above. Yet, this is not a matter that this Court has been asked to concern itself with. [55] Based on first principles, if all the Plaintiffs are relying on the invalidity of the 2nd Covid EOT for their LAD claims, all must challenge the same via the JR application since the JR Plaintiffs do not represent the others. This Court does not countenance the collating of all the claims in a single High Court action insidiously to circumvent legal requirements, if that was the plan. But for procedural convenience and expediency, each claim is separate. [56] According to the Plaintiffs, taking their best case forward now i.e. if the period for delivery of VP is computed from the date of payment of booking fee following PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60 the following claims will survive if the 2nd Covid EOT is invalidated in the JR application: JR Plaintiffs: 1-3, 6-9, 11-13, 15 and 16 Plaintiffs [57] It has not escaped me that there are non-JR Plaintiffs in the above list, and that there are JR Plaintiffs who are not on the list. Conclusions [58] As it relates to the non-JR Plaintiffs, their LAD claim based on the 2nd Covid EOT is unsustainable because they have not launched a frontal attack on the 2nd Covid EOT as required according to the Federal Court in Obata-Ambak. [59] -SPA EOT is valid, no consequential remedy could result from a finding that the 2nd Covid EOT is invalid for the non-JR Plaintiffs in this action who have chosen not to participate in the challenge. [60] As it relates to the JR Plaintiffs, it is an abuse of process to have filed this suit and maintained the action after the JR application had already been filed piecemeal. In fact, it was not necessary to straddle both courts. The present situation was contrived because not all of the Plaintiffs qualified and/or could be on-boarded in the JR application in time. [61] There is no need to consider the sustainability of the individual claim by the 19th Plaintiff on the additional ground cited. [62] In conclusion, Enclosure 15 (Stay) is dismissed with costs of RM5,000.00; and Enclosure 8 (Striking Out) is allowed with costs of RM10,000.00. The Plaintiffs shall be jointly and severally liable for the cost orders made. Bertarikh : 2 Januari 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif-Plaintif : Koh Kean Kang, Messrs Yong Sl & Koh (Petaling Jaya) Untuk Defendan : Justin TY Voon (with Cardine Lim Seah Le), Messrs Justin