Khew Keat Seen v Khew Kok Seng (BA-22NCvC-462-08/2017)

KHEW KEAT SEEN

LAU LAI HUN (No KP: 791026-03-5150) Pentadbir Estet KHEW KIAT WEE simati (NO. K/P: 670114-10-0506)

KHEW WEI SIANG (No.KP: 970909-14-5445) Pentadbir Estet KHEW KOK HOONG simati (NO. K/PL: 550714-10-6015)

KHEW KOK FEI (NO. K/P: 721016-14-5467) ... PLAINTIF-PLAINTIF

KHEW KOK SENG

KHEW FARMING SDN BHD (NO. SYARIKAT: 1047992-M) ... DEFENDAN-DEFENDAN 23/04/2026 15:06:29 BA-22NCvC-462-08/2017 Kand. 203

This case arose from a family dispute pertaining to land which had unfortunately escalated into a protracted litigation between siblings.

This suit was filed in 2017. The original Plaintiffs at that time were Khew Keat Seen, Khew Kiat Wee, Khew Kok Hoong and Khew Kok Fei. Unfortunately, two of the Plaintiffs have since then, passed on and in place, the administrators of their estates have been substituted as Plaintiffs. For the purpose of this judgment the original Plaintiffs will be referred to as the Plaintiffs.

The Plaintiffs and the 1st Defendant (“D1”) are brothers.

In 2015, the Plaintiffs instituted an action against D1 vide Shah Alam High Court Civil Suit No:.22NCVC-171-03/2015. The details of the suit are not relevant for the purpose of these proceedings.

The suit was resolved by a consent judgment entered between the parties. The consent judgment provided for the disposal of two pieces of land of which the Plaintiffs and D1 are co-proprietors, and the proceeds to be divided equally between all the parties. The present dispute pertains to one of the lands.

However, as a result of the non-compliance by D1 of the terms of the consent judgment, the Plaintiffs have filed the present suit for reliefs consequent upon the said breach. Salient facts

The material facts are not in dispute and they are as follows.

On 25.6.2015 the Plaintiffs and D1 entered into a Consent Judgment in a suit brought by the Plaintiffs vide Shah Alam High Court Civil Suit No:.22NCVC-171-03/2015. The terms of the Consent Judgment in so far as it is relevant to the present proceedings, is reproduced below as follows: “(b) KEDUA, DIPERINTAHKAN BAHAWA tanah dipegang di bawah Hak Milik GM 6009, Lot 809, Mukim Ulu Yam, Daerah Ulu Selangor, Negeri Selangor (selepas ini disebut sebagai “Tanah Ulu Yam”) hendaklah dijualkan kepada pihak ketiga dengan harga tidak kurang daripada RM 3,000,000.00 (Ringgit Malaysia Tiga Juta sahaja) DAN JUGA DIPERINTAHKAN Plaintif plaintif atau Defendan dibenarkan mencari seorang pembeli dalam tempoh enam (6) bulan dan selepas enam (6) bulan, harga jualan yang baru hendaklah dipersetujui oleh kesemua Plaintif-plaintif dan Defendan DAN JUGA DIPERINTAHKAN pemilik pemilik berdaftar iaitu Khew Keat Seen, Khew Kiat Wee dan Khew Kok Seng dikehendaki menandatangani Perjanjian Jual Beli, Borang Pindahmilik (Borang 14A), Borang Melepaskan Gadaian (Borang 16N) (jika ada) dan dokumen-dokumen yang berkenaan dengan pembeli DAN JUGA DIPERINTAHKAN BAHAWA Defendan menyerahkan suratan hakmilik asal Tanah Ulu Yam itu kepada Tetuan Tan Chap & Associates sebagai stakeholder dalam tempoh empat belas (14) hari dari tarikh penghakiman persetujuan ini DAN SETERUSNYA DIPERINTAHKAN BAHAWA hasil jualan Tanah Ulu Yam hendaklah diagihkan sama rata dalam lima (5) bahagian di antara Plaintif-plaintif dan Defendan selepas menolak wang tebusan (jika ada), fi peguam, cukai tanah dan kos lain-lain.”

I have summarized the essential terms of the Consent Judgment as follows:

The Ulu Yam land is to be sold at a price not less than RM 3,000,000.00. Both parties are allowed to separately procure a buyer at the stated price within 6 months from the date of the Consent Judgment;

(ii) If a purchaser is not obtained within the 6 months, the property is to sold thereafter at a price to be agreed upon by the parties;

(iii) The proceeds of the sale of the Ulu Yam land is to be distributed in 5 equal shares between the parties after deducting necessary costs incurred.

At the time of the Consent Judgment, the Plaintiffs were represented by the firm of Messrs Khoo Chin Nam & Co. D1 on the other hand, was represented by Messrs Tan Chap & Associates.

The Ulu Yam land is jointly owned by the 1st and 2nd Plaintiffs (P1 and P2 respectively) together with D1.

The Ulu Yam land is presently used for the business of Khew Farming Sdn Bhd, the 2nd Defendant (“D2”). It is operated by D1. On it, is a poultry farm, a feed mill and a fertilizer factory.

Subsequent to the Consent Judgment, D1 bought over the shares of the Plaintiffs in D2. The transfer of the shares was provided for in the Consent Judgment. D1 paid each of the Plaintiffs RM 25,000.00. Thereafter, the Plaintiffs tendered their resignation as directors.

Sometime in early 2016, there was an interested purchaser in the Ulu Yam land, G-Pile Sistem Sdn. Bhd (“G-Pile”). The Plaintiffs appointed Messrs SM Look & Associates (“SM Look”) to deal with the documentation pertaining to the sale and purchase of the said land.

On 19.2.2016, SM Look wrote to Messrs Tan Chap & Associates (“Tan Chap”) who represented D1, to inform that G-Pile had deposited RM 38,000 being 1% of the purchase price, as earnest deposit with SM Look as stakeholder. Tan Chap was asked if his client, D1 would agree to sell the Ulu Yam land at RM 3,800,000.00.

Tan Chap responded by letter dated 3.3.2016 stating that D1 was willing and prepared to dispose of the Ulu Yam land at RM 3,800,000.00.

SM Look together with G-Pile’s solicitors then prepared the Sale and Purchase Agreement (“SPA”) for the sale of the Ulu Yam land. G-Pile executed the SPA, together with the Memorandum of Transfer, and returned the same to SM Look on 28.3.2016. P1 and P2 also did the same. A further payment of 9% of the purchase price was paid by G-Pile.

D1 appeared to have a change of heart subsequently. On 5.4.2016, Tan Chap informed SM Look that D1 had computed his losses at RM 600,000.00 arising from demolition of his farm in the event of the sale. He stated that he wanted to be compensated for these losses. He will execute the SPA only upon confirmation that he will be paid for his losses.

When the transaction documents were handed over to D1 for execution, he refused to sign. Instead, Tan Chap’s letter dated 27.4.2016 informed SM Look that the proposed sale had completely disregarded D1’s interest in the poultry farm, feed mill and fertilizer factory on the said land. Having examined the SPA which provided for the land to be sold on a “as is where is” basis, he requested to meet the purchaser to clarify whether the purchase price of the land included D1’s chicken farm, fertilizer and livestock.

SM Look responded to inform that the sale of the Ulu Yam land was not inclusive of the poultry farm, feedmills, fertilizer and the livestock.

As matters turned out, parties eventually could not agree to D1’s demands. The 10% deposit paid by G-Pile was then returned by SM Look in two amounts in April and May 2016.

By letter dated 6.6.2017, the Plaintiffs through their solicitors Messrs H.C Tan & Zahani wrote to D1 stating that his refusal to execute the SPA had caused the sale of the Ulu Yam land to be aborted. D1 was then given 14 days notice to cease all operations and business on the land and to remove all structures on the land immediately.

D1 responded to deny that he refused to sign the SPA. Instead he merely requested to meet the directors of G-Pile to discuss the compensation payable as after the sale, his business on the land would cease. He further added that the Plaintiffs were estopped from evicting him as he is also a co-proprietor, and that he would not cease his business until the Ulu Yam land was sold.

On 20.7.2017, the Plaintiffs through their solicitors wrote to D2, giving notice to quit and deliver vacant possession upon the expiry of 10 days from the said letter.

In response thereto, D1 replied (as the alter ego of D2) to repeat his earlier stand. The Plaintiffs’ case

The Plaintiffs contend that the D1’s conduct in refusing to proceed with the sale of the Ulu Yam land was in clear breach of the Consent Judgment dated 25.6.2015. The principal order the Plaintiffs now seek in this action against D1 is that the Ulu Yam land be sold at a public auction in order that the said land can be sold at market value. In addition to this order, the Plaintiffs seek general and exemplary damages against D1.

In respect of D1 and D2 jointly, the Plaintiffs seek to enforce the Notice to Evict dated 20.7.2017, and that the Defendants be ordered to demolish all the structures currently on the land and vacant possession be delivered to them within 14 days of the order to be made by this court. Defence case

D1 denies having breached the terms of the Consent Judgment. At all material times, he was agreeable to have the Ulu Yam land sold.

When G-Pile expressed an interest to purchase the land, he was not included in the negotiations. The terms of the SPA were prepared without his prior consultation. The Plaintiffs had, on their own, agreed to sell the Ulu Yam land on which his poultry farm, feedmill, fertilizer and factory were situated without first obtaining his consent, hence disregarding his interest. As he wanted to preserve his interest, he requested to meet with G-Pile. However, without acceding to his request, G-Pile aborted the sale instead.

In response to the order for vacant possession, D1 contends that the Plaintiffs had allowed him to occupy the Ulu Yam land and to operate his farm thereon free of rental until its disposal thereof to a third party purchaser. The Plaintiffs cannot now seek to evict him.

D1 also counterclaims damages against the Plaintiffs in the event this court orders the demolition of the structures and for vacant possession to be delivered to the Plaintiff. D1 seeks to be compensated for all losses arising therefrom. Issues for determination

Arising from the competing contention of the parties, the issues for determination are as follows:

Whether D1 was in breach of the Consent Judgment;

(ii) Whether the Plaintiffs have a right to be compensated in damages in the event D1 is found to be in breach;

(iii) Whether the Plaintiffs have a right to vacant possession of the Ulu Yam land against D1 and D2; and

(iv) Whether D1’s counterclaim has merits in that he ought to be compensated in the event he is ordered to deliver vacant possession. Trial and witnesses

The trial proceeded for three days during which the Plaintiffs called five witnesses, and the Defendants, two. Notwithstanding the number of witnesses, the issues in this case are quite confined and largely determined on the basis of documentary evidence. Analysis and findings

In evaluating the evidence before me, I am required to bear in mind two fundamental principles. The first is with respect to the burden of proof. It is trite law that a plaintiff bears the burden of proof on a balance of probabilities. This principle was well enunciated in the Federal Court case of Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697). If on the evidence, the Plaintiffs succeeds in establishing a prima facie case, the burden then shifts to the Defendants to rebut the case against them by credible evidence in an attempt to tilt the balance in their favour.

The second principle is that he who asserts a fact bears the burden of proving that fact.

It leaves me now to deal with the evidence presented by the parties in this case, in relation to the issues as defined above. Whether D1 was in breach of the Consent Judgment

To recapitulate, the parties agreed that for the Ulu Yam land to be sold at a price not less than RM 3,000,000.00 and that parties are at liberty to separately procure a purchaser at that price within 6 months from the date of the Consent Judgment. If a purchaser cannot be found within 6 months, then the purchase price at which the land is to be sold must be agreed upon between the parties.

It is not disputed that in early 2016, when G-Pile was interested to purchase the land, the 6 months had lapsed. Therefore the condition that the Ulu Yam land must be sold at a price not less than RM 3,000,000.00 no longer applied. Nonetheless, G-Pile was keen to purchase the land at RM 3,800,000.00.

SM Look in its letter of 19.2.2016 then communicated with Tan Chap to inform that G-Pile had deposited RM 38,000.00 being 1% of the purchase price as stakeholder. SM Look made a specific request expressed in these terms: “Please let us have your confirmation whether your client Mr. Khew Kok Seng is agreeable to sell the said property at the price of RM 3,800,000.00 and 3% agent fees to Mr. Low

On 3.3.2016, Tan Chap replied to SM Look’s letter. Tan Chap stated: “On a without prejudice basis, our client is willing and prepared to dispose of the abovementioned land to the intended Purchaser at the total purchase price of RM 3,800,000.00.”

To my mind, there is unequivocal agreement to the purchase price of RM 3,800,000.00. By this agreement, the terms of the Consent Judgment stipulating that after 6 months from date of Consent Judgment, the land must be sold at a price agreed upon by the parties, have been fulfilled.

Having agreed to the purchase price, it is not open to D1 to later impose conditions before agreeing to execute the SPA. He is expected to cooperate and allow steps to be taken to give effect to the sale. Instead, he acted to the contrary.

Firstly, he refused to sign the SPA when it was prepared. On 1.4.2016, SM Look informed Tan Chap that P1 and P2 had executed the SPA. Tan Chap was then asked to confirm if D1 would present himself at the office of SM Look to execute the same.

Instead, on 5.4.2016, Tan Chap responded to the letter by stating his client’s instructions that D1 would only execute the SPA upon being paid RM 600,000.00 as compensation for his losses. P1 and P2 did not agree to the demand.

On 19.4.2016, SM Look then forwarded the requisite documents in respect of the land to Tan Chap for due execution of D1. Meanwhile, G-Pile’s solicitors by their letter of 20.4.2016 put SM Look on notice that if the documents were not executed by 25.4.2016, G-Pile no longer wished to proceed with the transaction.

Tan Chap responded to SM Look’s letter on 21.4.2016 with a request to meet with G-Pile. In a subsequent letter by Tan Chap dated 27.4.2016, D1 again reiterated that he wished to meet with G-Pile. However, what it is significant is the statement, “Our client is pleased that you are able to sell the said land at a total purchase price of RM 3.8 million.” Having implicitly expressed his agreement to the price, in the next breath he appeared to resile in the next sentence, “However as far as the sale of the land is concerned, you have completely disregarded our client’s interest in Poultry Farm, feedmill and fertilizer factory on the said land.” Tan Chap added as the terms of the SPA stated that the said land was to be sold on an “as is where is” basis, D1 wished to clarify whether the sale of the land was inclusive of his chicken farm, feedmill, fertilizer factory and livestock.

Several letters were exchanged thereafter between Tan Chap and SM Look, with no resolution. As far as the Plaintiffs were concerned, the land was to be sold at the agreed price together with all that was situated on the land. D1 on the other hand, insisted on being compensated.

This impasse eventually led to G-Pile aborting the sale. The 10% deposit paid was returned to G-Pile.

Having examined the evidence and the conduct evinced from the correspondence exchanged between the solicitors, I am of the view that it establishes breach on the part of D1. D1 had agreed to the purchase price as far back as 3.3.2016. He was now unreasonably insisting that the sale must cater for his interests on the land and imposing that as a condition to executing the SPA. His explanation that he agreed to sell the land but wanted to resolve outstanding issues pertaining to the poultry farm, feedmill, fertilizer, factory does not hold water. These were matters that were not provided for in the Consent Judgment.

He even went further to demand a compensation of RM 600,000.00. The defence of D1 that he was at all material times agreeable to selling the land is not true and is not borne out by his conduct. He was willing to sell the land, but only on his terms. It is obvious that he wanted his assets on the land to be valued and value paid over to him first out of the proceeds from the sale price.

His conduct, in my view, was tantamount to a refusal to execute the SPA.

In the circumstances, the conclusion to be arrived at from the evidence before me, is that D1 was in breach of the Consent Judgment. Whether Plaintiffs are entitled to damages

In view of D1’s breach, I am of the view that the Plaintiffs are entitled to general damages. As a result of D1’s refusal to proceed with the execution of the requisite documents, G-Pile did not proceed with the purchase.

Had the sale been carried through, the Plaintiffs would have enjoyed the proceeds of the sale. The general damages to be awarded are therefore to be computed on the loss of having been put out of the monies they would have received had the land been sold.

54.

On 11.5.2016, it was certain that the sale would not proceed when SM Look returned the balance deposit of 1%. Had the amount of RM 3,040,000.00 been placed in a fixed deposit in the bank, it would have earned interest on the deposit. I therefore compute damages at the rate of 3% (being the average prevailing rate for fixed deposit placement) of the sum of RM 3,040,000.00 calculated from 11.5.2016 till today. The amount of damages is to be distributed between all the Plaintiffs equally. Whether the Plaintiffs have a right to vacant possession of the Ulu Yam land against D1 and D2

It is not in dispute that D1 was operating the business of D2 on the said land. The Defendants were issued a Notices to Vacate.

P1, P2 and D1 are co-proprietors of the Ulu Yam land. D1 has assumed the liability of D2, evident from his letter wherein he stated that he is the alter ego of D2.

Co-proprietors of undivided share in the land are generally entitled to use and occupy the whole of the property. (See: Law King Po & Ors v Sacofa Sdn Bhd & Ors [2008] MLJU 41, Ong Hoo Hong v Kok Yin Weng [1965] 2 MLJ 97).

For this reason, I refrain from granting delivery of vacant possession to the Plaintiffs. Whether D1 ought to be compensated in the event delivery of vacant possession is ordered

D1’s counterclaim is for compensation in the event he is ordered to deliver vacant possession. As vacant possession is not granted to the Plaintiffs, the issue of compensation does not arise. Appropriate reliefs to be ordered

I find it most unfortunate that parties have found themselves in a deadlock situation such as this. The terms of the Consent Judgment provide for the Ulu Yam land to be sold at a price to be agreed upon by all parties. As evidenced by past events, the likelihood of parties ever coming to an agreement on the sale price appears slim.

Parties have also gone through a lengthy litigation process. Prior to the trial of this suit, an order 14A application filed and the decision which was appealed to the Court of Appeal had further contributed to the delay in the disposal of this suit.

Presently, D1 is still operating the farm business. It is not unlikely that D1 could again hold out from agreeing to the sale price of the land if the Plaintiffs are to source a purchaser. As D1 had expressed that he is at all times willing to sell the land, I am of the view that an expedient and just order would be for this court to order the Ulu Yam land to be sold by public auction. In view of D1’s business, he is to be given the option to purchase so that he can continue with his business.

Based on the foregoing, this Court grants as follows:

A declaration that D1 has breached the terms of the Consent Judgment dated 25.6.2015 with respect to the Ulu Yam land;

(ii) An order that the land held under GM 6009, Lot 809, Mukim Ulu Yam, Daerah Ulu Selangor, Negeri Selangor (“Ulu Yam land”) be sold as follows:

by public auction at a reserve price of RM 3,000,000.00;

the Plaintiffs are to make an application to the Registrar for the usual orders to be made in a public auction. The application is to be served on the 1st Defendant 14 days before the hearing date before the Registrar. The Order made by the Registrar is to be served within 14 days from the date of such order;

In the event of a successful bidder, the 1st Defendant is to execute the SPA and the Form 14 A within 14 days of service of the said documents on him/solicitors failing which the Registrar of the court is authorized to sign on his behalf;

The 1st Defendant is to deliver the title to the Ulu Yam land to the Plaintiffs solicitors as and when required within 14 working days from date of written request for the purposes of the public auction;

The sale proceeds are to be distributed between the Plaintiffs and 1st Defendant in equal shares as per the terms of the Consent Judgment dated 25.6.2017;

Without prejudice to the order for sale by public auction, D1 is at liberty and not precluded from purchasing the 1st and 2nd Plaintiffs portion of the Ulu Yam land at any time before the sale by public auction, and the sale proceeds to be distributed equally between the Plaintiffs; and

Parties are at liberty to apply.

(iii) General damages to be paid to the Plaintiffs by the 1st Defendant calculated at 3% on the sum of RM 3,040,000.00 from 11.5.2016 till the date of judgment;

(iv) Post judgment interest is to be paid at the rate of 5% on the amount in (iii) until realization;

The counterclaim of the Defendants is dismissed; and

(vi) Costs of RM 30,000.00 is to be paid by the 1st Defendant to the Plaintiffs. Dated: 23rd April 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Plaintiffs: Mr. Tan Heng Chong (Mr. Gunasegaran a/l Perumal together with him) Tetuan H. C Tan & Zahani Counsel for Defendants: Mr. R.K Sharma (Ms. Cheong Su Yin and Ms. Tan Zhi Ching together with him) Tetuan Cheong Su Yin & Co.