1. ) Lau Seng Yee v Venus Assets Sdn Bhd (WA-22NCvC-359-05/2021)

The plaintiffs' Writ of Summons and Statement of Claim dated 11.05.2021 (enclosure 1 & 2);

The defendant statement of defence 21.07.2021 (enclosure 10);

The plaintiffs reply dated 13.08.2021 (enclosure 12);

Notice of application dated 18.11.2021 (enclosure 24);

The defendant's affidavit in support was affirmed by Zahir Kelvin Ong Abdullah on 18.11.2022 (enclosure 25);

The plaintiffs' affidavit in reply affirmed by Lau Seng Yee on 23.12.2021 (enclosure 29-33);

The defendant's affidavit in reply affirmed by Zahir Kelvin Ong 35 Abdullah on 24.01.2022 (enclosure 35); Submissions/submissions in reply filed by the plaintiffs and the defendant. 30/09/2022 11:25:08 WA-22NCvC-359-05/2021 Kand. 60 [3] On 03.08.2022, after perusing the relevant cause papers and hearing the submissions of counsels, I found for the plaintiff and this application for striking out was dismissed with costs in the cause. 40 Dissatisfied, the defendant appealed against the said decision, and my reasons are as follows: BRIEF FACTS [4] The brief facts gathered from the cause papers and submissions in 45 a nutshell are:

The defendant is the developer of the Four Seasons Place Building,

On 04.10.2012, the Ministry of Housing and Local Government granted the defendant the waiver to comply with the provisions under 50 the Housing Development (Control and Licensing) Act 1966 and that the defendant was allowed to adopt a commercial form of agreement for every contract of sale for the sale and purchase of a housing accommodation in Four Seasons Place;

On 30.10.2013, the 1st Plaintiff (P1) and the 2nd Plaintiff (P2) (the 55 plaintiffs) entered into a Sale and Purchase Agreement (the SPA) with the defendant for the purchase of Parcel 59-1 (the Parcel) for a purchase consideration of RM11,467,969.00;

On 01.10.2018, the defendant served a Notice of Vacant Possession on the plaintiffs;

On 01.11.2018, P1 emailed the defendant and demanded, among other things, liquidated ascertained damages (LAD) for the late delivery of the Parcel and to make good the defects in the Parcel.

On 12.11.2018, in response to the plaintiffs' demand for LAD, the defendant requested the plaintiffs to produce and/or provide 65 documents evidencing loss or damage.

On 21.12.2018, the defendant completed the defect rectification works in the Parcel.

On 05.01.2019, the plaintiffs inspected the Parcel, signed the Key Return Form and the defendant handed over the Parcel to the 70 plaintiffs.

The plaintiffs then commenced renovation works on the Parcel from 23.04.2019 to 17.12.2019.

Sometime in 2020, five (5) water leakage incidents occurred in the Parcel, as follows:- 75

On 08.01.2020, the 1st water leakage incident happened where water from the private swimming pool at the Parcel above, i.e., Parcel 60-1, seeped and leaked into the Parcel's living room, damaging its ceiling and flooring and leaving visible water stains;

(ii) On 07.02.2020, the 2nd water leakage incident happened where 80 water from the private swimming pool at the Parcel above, i.e., Parcel 60-1, again leaked into the Parcel's living room, this time causing the ceiling of the Parcel to collapse and thereafter flooding the whole Parcel;

(iii) On 24.06.2020, the 3rd water leakage incident happened when 85 rainwater seeped into the Parcel, damaging the ceiling and the flooring of bedrooms 1 and 2;

(iv) On 11.07.2020, the 4th water leakage incident happened where the pipe above Parcel 60-1 burst and water leaked and damaged the Parcel, causing a visible hole in the ceiling; and 90

On 05.08.2020, the 5th water leakage incident happened when rainwater seeped into the Parcel again.

The plaintiffs claimed that these water leakage incidents are within the knowledge of the defendant and the Property Management Office of Four Seasons Place. However, despite repeated promises, they 95 failed to rectify it.

In its defence, the defendant claimed that they had attended to the water leakage incidents by addressing repair works at the source of the leakages (i.e., the swimming pool and the wear and tear of the silicone sealant of the facade of the building) and completed the 100 repair works in the middle of February 2021 despite the limitations set by the implementation of different categories of Movement Control Order since March 2020.

Repair works were duly carried out by the defendant until the plaintiffs subjected on the defendant, which had occasioned the defendant to 105 stop all further rectification works on the Parcel, even though the defendant was at all material times willing and ready to attend to the same.

On 29.12.2020, the plaintiffs filed an application for Judicial Review seeking, inter-alia, for the following reliefs (the JR Suit):- 110

That the plaintiffs be granted leave to quash the decision of the

(ii) That the plaintiffs be granted leave to apply for a declaration that the SPA executed between parties is illegal and contrary to the Housing Development (Control And Licensing) Act, 1966 and the 115 Regulations.

However, on 12.1.2021, the plaintiffs proceeded to a civil suit against the defendant vide KLHC Civil Suit No: WA- 22NCvC-18-01/2021, seeking relief to rely on Schedule H of the Housing Development (Control and Licensing) Regulations 1989 to claim for LAD to be 120 calculated from thirty-six (36) calendar months from the date of execution of the SPA (the LAD Suit);

On 22.01.2021, one (1) water leakage occurred in Bedrooms 1 and 2 of the Parcel caused by the silicone sealant's wear and tear on the building's facade. The defendant attended to repair works at the 125 source of the problem of the leakages identified;

On 10.05.2021, the plaintiffs filed this instant suit seeking, among others; a declaration to rescind the SPA, a full refund of the purchase price of the Parcel and damages;

On 07.01.2021, a joint inspection of Parcel 59-1 and Parcel 60-1 130 were conducted (in compliance with this Court's order on 29.09.2021); and

After the water leakage incident on 22.01.2021, there have been no further water leakages to the Parcel to date. 135 SUBMISSIONS BY THE DEFENDANT [5] The defendant submits that the plaintiffs' claim is obviously unsustainable and ought to be struck out under limb (a), (b) and/or (d) of the RC 2012 for the following reasons:

It discloses no reasonable cause of action against the defendant;

It is scandalous, frivolous and/or vexatious; and/or

It amounts to an abuse process of the Court.

Discloses no reasonable cause of action against the defendant. [6] The defendant argued that the plaintiffs' claim is obviously 145 unsustainable and ought to be struck out under O.18 r.19(1)(a) ROC 2012 and cited:

A cause of action is the entire set of facts giving rise to an enforceable claim that the plaintiffs must prove to obtain a judgment. Where the action has been brought solely to get relief being asked on a ground 150 which is no ground for such relief, it ought to be struck out: Tuan Haji Ishak Ismail v Leong Hup Holdings Berhad & Other Appeals [1996] 1 CLJ 393, CA.

A statement of claim which fails to set forth with clarity and precision the overt acts, which are alleged to have been done by the defendant, 155 renders the suit as having no reasonable cause of action and ought to be struck out: Renault SA v lnokom Corp Sdn Bhd & Anor and other appeals [2010] 5 MLJ 394, CA.

The plaintiffs' claimed that the Parcel delivered has a real and imminent danger to the life and safety of its occupant and therefore 160 entitles the plaintiffs to rescind the SPA. The defendant submitted that to rescind the SPA, the plaintiff must prove that there has been a total failure of consideration whereby the defendant had committed a fundamental breach of the SPA, which is so serious that it goes to the root of the SPA. 165 In proving the same, the plaintiffs need to establish that the defendant shows an intention to no longer be bound by the SPA: S & M Jewellery Trading Sdn Bhd & Ors v Fui Lian-Kwong Hing Sdn Bhd [2015] 5 MLJ 717, FC.

If the consequences of the breach are not serious in the sense that 170 they do not go to the root of the contract, the innocent party are only entitled to recover damages but not to treat the contract as being at an end: Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1996] 3 MLJ 675, CA.

In the absence of any total failure of consideration, the innocent party 175 cannot avail himself of the right to rescind the contract: Berjaya Ditan Sdn Bhd v M Concept Sdn Bhd [2010] 1 MLJ 597, FC. [7] Based on the above authorities, the defendant submitted that it is plain and evident that the plaintiffs' claim herein discloses no reasonable cause 180 of action against the defendant, which entitles the plaintiffs to rescind the SPA based on the following:

The defendant has carried out the rectification work and repair of the water leakages and attended to the damages caused by the water leakages, which were satisfactorily done in accordance with the SPA, 185 and subsequently verified by the architect (enclosures 10 and 35). Hence, in the absence of clarity and precision of materials facts pleaded by the plaintiffs to show the defendant's inaction or refusal to carry out its obligations under the SPA which resulted in total failure of consideration;

All defects and the damage caused by the water leakage incidents are rectifiable, and it was not due to any fault in the workmanship or materials relating to the Parcel. The Parcel is still habitable and fit for occupation. It is an accepted principle that if the defects are correctable, there is no total failure of consideration on the part of the 195 defaulting party: Fabulous Range Sdn Bhd v Helena a/p K Gnanamuthu [2021] 5 MLJ 736, CA;

The entire plaintiffs' cause of action is dependent on merely one document, i.e., the Property Inspection Report & Advisory prepared by the plaintiffs' expert, which shows very little that could sustain the 200 plaintiffs' allegations that there is a "real and imminent danger to the life and safety" of the occupants of the Parcel. Therefore, the plaintiffs' cause of action in this present suit is heavily premised on mere speculation, assumptions and conjecture that the Parcel was delivered with a "real and imminent danger to the life and safety" of 205 its occupants. And the fact that the plaintiffs had accepted the vacant possession and were well informed that the development has been certified with a Certificate of Completion and Compliance (CCC) itself negates the plaintiffs' allegations that the Parcel is unfit for occupation. 210

The plaintiffs' cause of action is no longer sustainable as they had affirmed the SPA that would deny them the right to rescind the SPA long after its due performance. Citing Fabulous Range Sdn Bhd v Helena a/p K Gnanamuthu (supra), the defendant submitted that since the plaintiffs, in this case, had not formally rejected the said 215 property and rescinded the SPA at the first opportunity available to them but had instead elected to affirm the SPA, the remedy of rescission ought not to be allowed. The allegation of breach of the SPA by the defendant is not equivalent to a total failure of consideration or fundamental breach of 220 condition, which goes to the root of the SPA. The defects and damage caused are rectifiable. There is no total failure of consideration on the part of the defaulting party.

Scandalous, frivolous and/or vexatious 225 [8] The defendant submitted that the plaintiffs' claim is scandalous, frivolous and/or vexatious and ought to be struck out under O.18 r.19

(1)(b) ROC 2012, and cited:

Frivolous or vexatious cases connote purposelessness or a lack of seriousness or truth and a lack of bona fide and merely wishes to 230 annoy or embarrass his opponent, or when it is not calculated to lead to any practical result: Middy Industries Sdn Bhd & Ors v Arensi-Marley (M) Sdn Bhd [2013] 3 MLJ 511, CA.

Where a claim contains improbable allegations, which remain unsupported by any material evidence and assertions which are 235 inconsistent with the contemporaneous documents and are inherently improbable, the Court will consider it to be scandalous, frivolous and vexatious: Deepak Jaikishan a/I Jaikishan Rewachand & Ors v Dato' Seri Mohd Najib bin Tun Abdul Razak & Ors [2020] MLJU 1282, HC.

The defendant submitted that the plaintiffs' allegations that there has been inaction or refusal on the defendant's part to repair the damage caused by the water leakage incidents are baseless and without merits. As the plaintiffs are seeking rescission (which is no longer sustainable), the plaintiffs cannot be allowed to claim for rescission 245 and, at the same time, claim for damages.

The plaintiffs' claim was made out of the purported fundamental breach of the SPA by the defendant, it goes without saying that the plaintiff's claim for damages which is also premised on the purported fundamental breach, is, therefore, frivolous: Amazing Place Sdn 250 Bhd v Couture Homes Sdn Bhd & Anor [2011] 7 MLJ 52, HC.

It is also imperative to note that the party claiming damages is under a duty to mitigate its loss. It is incumbent for the plaintiffs to take all reasonable steps to mitigate the loss consequent upon the defendant's wrong. The plaintiffs cannot recover damages for any 255 such loss they could have avoided but failed through reasonable action or inaction to prevent: TTDI Jaya Sdn Bhd v. Yew Hong Teng & Anor [2017] 1 CLJ 436, CA.

As the plaintiffs here clearly had a duty to mitigate their losses, it can be established that their conduct evidently caused any alleged other 260 defects to the Parcel. Rather than allowing the defendant to attend to all further rectification works to the Parcel, the plaintiffs have chosen this route of filing such a frivolous suit against the defendant. Hence, the plaintiffs should not be allowed to recover damages for any alleged losses suffered, as this could have been avoided altogether 265 if they had not restricted and/or prevented the defendant from attending to all further rectification works to the Parcel. In addition, the plaintiffs' allegations against the defendant are improbable. The plaintiffs have failed to mitigate their losses regarding this instant suit. Hence, for the reasons above, the defendant submitted that the present 270 suit by the plaintiffs against the defendant is scandalous, frivolous and/ or vexatious and should be struck out.

Abuse process of the Court 275 [9] The defendant submitted that the plaintiffs' claim is scandalous, frivolous and/or vexatious and ought to be struck out under O.18 r.19

(1)(d) ROC 2012, and cited:

The term 'abuse of the process of the court' signifies that the process must be used bona fide and appropriately and not be abused. If an 280 action was not brought bona fide for obtaining relief but for some other ulterior or collateral purpose, it might be struck out as an abuse of the process of the court: Boo Are Ngor (p) v Chua Mee Liang (p) (sued as a public officer of Kim Leng Tze Temple) [2009] 6 MLJ 145, FC.

The defendant contends that the plaintiffs seek contradictory reliefs by failing to elect a consistent position regarding their intention to affirm or rescind the SPA. Bakti Dinamik Sdn Bhd v Bauer (Malaysia) Sdn Bhd [2016] 10 CLJ 247 observed that it is a well-established principle that a party should not be allowed to approbate 290 and reprobate as it is a practice that is both unconscionable and unfair. Therefore, it is trite that a party cannot blow hot and cold in the position he adopts. He must make an election, and having elected to adopt one stance, a party cannot after that be permitted to go back and adopt an inconsistent stance: Cheah Theam Kheang v City 295 Centre Sdn Bhd & Other Appeals [2012] 1 MLJ 761, CA.

The plaintiffs have filed three (3) separate actions against the defendant and have made completely contradictory claims:

The plaintiffs seek to declare the SPA to be illegal but at the same time seeking for payment of LAD (in the event the SPA is 300 rendered unlawful, parties are bound to be put in the original position, and therefore it can be assumed that the plaintiffs are no longer interested in keeping the Parcel);

(ii) The plaintiffs filed separate actions at the same time to claim for the payment of LAD (it can be assumed that the plaintiffs intend 305 to keep the Parcel); and

(iii) In this present action, the plaintiffs seek rescission and refund of the purchase price and, at the same time, claim damages (it cannot be assumed which position seems to be taken by the plaintiffs in respect of the Parcel). 310 The defendant submitted that the plaintiffs' conduct violates the doctrine of election as the plaintiffs ought to be consistent in their choice of remedies in all three (3) actions: Dato' Sivananthan Shanmugam v. Artisan Fokus Sdn Bhd (2015] 2 CLJ 1062, CA. The plaintiffs' conduct 315 of filing multiple actions with inconsistent and contradictory reliefs against the defendants is abusing the process of the Court and should be struck out. [10] The plaintiffs argued that since this Court has granted a mandatory 320 injunction, there are serious questions to be tried, and a strong prima facie case exists. The defendant argued that that allegation is misplaced on the following grounds:

It is well within the knowledge of both counsel of the parties that no merits were heard and considered by this Court in enclosure 3;

The granting of the mandatory injunction was due to this Court adamant position for parties to resolve the matter. Hence the parties agreed to a joint inspection, where the plaintiffs were allowed to inspect Unit 60-1, and in return, the defendant was allowed to inspect the plaintiffs' Parcel; and 330

Given the above, it is wrong for the plaintiffs to submit that this Court has considered all the circumstances and held that there are serious questions to be tried, and there is a strong prima facie case. [11] There are no issues to be tried as the alleged questions have been 335 settled before the plaintiffs filed the present action. Their claim, in essence:

That the Parcel has been delivered in horrendous condition and full of defects;

(ii) That the repair work to the damage caused by the water leakage 340 incidents has not been attended by the defendant; and

(iii) Given paragraphs (i) and (ii) above, the Parcel is alleged to be unfit. Therefore, the defendant has committed a fundamental breach of the SPA, which entitles the plaintiffs to rescind the SPA. 345 [12] The defendant submitted:

That there are no issues to be tried between parties in respect of the SPA as to whether the plaintiffs have the right to rescind the SPA. If the Parcel had been delivered in horrendous condition and full of 350 defects which amount to total failure of consideration, any reasonable purchaser would have rejected the property at the outset and exerted their right for a rescission of the SPA: Fabulous Range Sdn Bhd v Helena a/p K Gnanamuthu (supra).

The plaintiffs have exercised their rights under the SPA and affirmed 355 the SPA. Consequently, the plaintiffs cannot enjoy their rights to rescind the SPA after its long-due performance under the SPA.

The defendant reiterates that there are no issues to be tried as to whether the plaintiffs are entitled to rescind the SPA since the parties have performed the respective obligations under the SPA and 360 proceeded to affirm the SPA. [13] The plaintiffs' expert report:

Does not, in any event, demonstrate that the Parcel is unfit for occupation. Instead, the report admitted that the rectification works 365 had been carried out and the defects and/or damage were rectifiable.

The defendant submits that nothing in the said expert suggested that the Parcel is unfit for occupation; no rectification works were carried out by the defendant, and such defects and/or damage caused to the Parcel are permanent and cannot be rectifiable. 370

It is the defendant's submission that the plaintiffs' report admitted that there is evidence of repair works carried out by the defendant and further suggested that the defects and/or damage (if any) are temporary and correctable.

It is an accepted principle that if the defects are rectifiable, there is no 375 total failure of consideration on the part of the defaulting party: Fabulous Range Sdn Bhd v Helena alp K Gnanamuthu (supra).

Since the defects and damage caused by the water leakage incidents were not due to any fault in the workmanship or materials relating to the Parcel and have been rectified and attended to by the defendant, 380 it did not render the Parcel unfit for occupation. Notwithstanding the defects and the damage caused by the water leakage incidents, the defendant submits that the Parcel is still habitable and fit for occupation as the defects are remediable.

Therefore, the defendant submits that there is no total failure of 385 consideration on the defendant's part and that the defendant did not commit a fundamental breach against the SPA. The defendant has attended to the rectification work on the defects.

The plaintiffs' complaint is due to the unsatisfactory rectification work on the defects and not no repair work done on the damage caused 390 by the water leakage incidents. At this juncture, it is worth noting that the plaintiffs are no longer complaining about the root cause of the water leakage incidents occurring in the Parcel.

The defendant reiterates it is also evident from the joint inspection carried out by parties that no further water leakages occurred in the 395 Parcel. The defendant submitted that the rectification works concerning the defects had been attended to. The plaintiffs have inspected the Parcel, signed the Key Return Form commenced renovation works. The repair works concerning the damage sustained by the Parcel due to the water leakage incidents were duly 400 carried out until the plaintiffs imposed a condition on the defendant, which resulted in the stoppage of all further repair works.

Further, in response to the plaintiffs' allegation that the defendant failed to comply with the Strata Management (Maintenance and Management) Regulations 2015, the defendant submitted that by 405 having the joint inspection carried out by parties, the plaintiffs' reliance on such argument could not hold. [14] The defendant concluded that this is a fit and proper application for striking out as it does not disclose any reasonable cause of action, is 410 obviously unsustainable, frivolous, vexatious and amounts to an abuse of the court process. The defendant asks for an order in terms. SUBMISSIONS BY THE PLAINTIFFS [15] The plaintiffs submitted:

That there are issues to be tried in the case herein, i.e., whether the Parcel is fit for occupation and/or whether there is a fundamental breach of the SPA.

The Court had granted enclosure 3, a mandatory injunction for the defendant to give access to allow the plaintiffs to conduct joint 420 inspection on Parcel 60-1. Therefore this Court considered the facts of the case, allowed the mandatory injunction and ordered a joint inspection.

It is trite law that a mandatory injunction would only be allowed if serious issues are to be tried and there is a strong prima facie case. 425 In such circumstances, the defendant's striking out should be dismissed in the present case. The plaintiff cited: American Cyanamid Co v Ethicon Ltd [1975] AC 396; Keet Gerald Francis Noel John v Mohd Noor bin Abdullah [1995] 1 MLJ 193; and Timbermaster Timber Complex Sdn Bhd v Top Origin Sdn Bhd 430 [2002] 1 CLJ 566. [16] The plaintiff submitted that there are issues to be tried which are the defects on Parcel 59-1 and based on the fact that Parcel 59-1 is unfit for occupation. These can all be seen from the repeated water leakage 435 incidents (6 known ones). These incidents are not trivial, as shown in the photo taken and as per the Property Inspection Report & Advisory dated 29.01.2021 prepared by Architect Centre Sdn Bhd, which classified the same as a biohazard danger and danger to life (pages 23, 24 and 26 - enclosure 31). The plaintiffs will further refer to the following exhibits at 440 exhibit 4 and exhibit 5 (enclosures 30-32) to show the seriousness of these water leakage incidents. Based on these documents, the plaintiffs submitted that there are serious issued to be tried by this Court. [17] The serious issues for the Court's determination include:

The fitness and safety of the Parcel for occupation;

Is the defendant in fundamental breach of the SPA;

Can the plaintiff claim restitution for this defendant's breach;

Does the swimming pool in the upper Parcel 60-1 pose an imminent threat and danger to the Parcel;

Are the plaintiff being denied their right to quiet enjoyment of the

The Plaintiffs are entitled to any relief, and if so, what is the appropriate relief? 455 [18] The defendant, in its affidavit in reply, averred that the defendant had rectified all defects of Parcel 59-1, but it failed to explain why the water leakage incidents keep recurring and the conditions of Parcel 59-1 are such to date (exhibit LSY-4 and LSY-5) with a collapsed ceiling. An email from the defendant on 08.01.2020 explained that there was water 460 leakage due to the testing of the swimming pool at Parcel 60-1, and another email from the defendant on 07.02.2020 informed that there was another water leakage due to the testing of the swimming pool at Parcel 60-1. The plaintiff submitted that these documentary evidence also contradicted the defendant's solicitor's letter in reply that all damage to 465 the ceiling and floor have been repaired concerning the 1st, 2nd, and 3rd water leakage incidents (page 19 - enclosure 33). [19] The plaintiffs submit that the defendant had assigned the blame on water leakage incidents to "normal wear and tear", "dislodgment" and 470 classified the same as "normal occurrence in apartment and condominium" even though:-

After the defendant claimed to have rectified all defects of Parcel 59- 1 in December 2019, on 08.01.2020, the 1st water leakage incident took place, which the defendant blamed the structural leakage to the 475 swimming pool at the upper Parcel 60-1;

After the defendant allegedly had rectified the source of the 1st water leakage incident, a 2nd water leakage incident happened, again due to the swimming pool at Parcel 60-1, where the defendant averred that it was caused by the testing of the swimming pool equipment. 480 Similarly, the defendant claimed that it had rectified the same on 10.02.2020. The plaintiffs averred that this 2nd water leakage incident caused the ceiling of the living room of the Parcel to collapse and flooded the whole Parcel damaging the same in the process. The defendant's solicitors, in their letter in reply dated 27.10.2020, stated 485 that all damage to the ceiling and flooring had been repaired, but the conditions of the Parcel are as per exhibit LSY-4 and LSY-5 (enclosure 30);

On 24.6.2020, the 3rd water leakage incident happened again, whereby rainwater seeped into the Parcel. The defendant has now 490 alleged that this was due to the wear and tear of the silicone sealant at the façade of the building, and the same was rectified, which happened less than two years after the delivery of the vacant possession;

On 11.07.2020, the 4th water leakage incident happened where the 495 defendant now alleges it was caused by the dislodgement of the water pipe serving the private swimming pool of Parcel 60-1 that the defendant "supposedly" fixed on 10.02.2020;

Notwithstanding the defendant's averment that the 4th water leakage incident was caused by the dislodgment of the water pipe serving the 500 swimming pool of Parcel 60-1, the plaintiffs believe that the same was caused by the burst of the wastewater pipe of Parcel 60-1 whereby the wastewater has penetrated the ceiling of the Parcel causing a visible hole on the ceiling (refer the Property Inspection Report & Advisory, page 151 and 152 (page 23 and 24 - enclosure 31)

On 05.08.2020, the 5th water leakage incident happened where rainwater seeped into the Parcel despite the alleged immediate action to rectify the wear and tear of the silicone sealant at the façade of the building;

On 22.01.2021, the same water leakage happened due to the wear 510 and tear of the silicone sealant at the façade of the building as averred by the defendant despite the alleged rectification;

The plaintiffs have been denied the quiet enjoyment of the Parcel since the delivery of vacant possession; and

All these incidents happened despite the repeated promises made by 515 the defendant that it had attended to the same immediately; In the circumstances, it was argued that the defendant expects the plaintiffs, who had paid RM 11,467,969.00, to accept the Parcel as it is, i.e., one full of defects and suffered from repeated water leakage 520 incidents. The defendant expects the plaintiffs to move into the Parcel and experience these defects and repeated water leakage incidents firsthand. In support, the plaintiffs cited Hwa Chea Lin & Anor v Malim Jaya (Melaka) Sdn Bhd [1996] 1 LNS 70 (Tab J, PBOA page 118-119) that observed: 525 "Since the plaintiffs did not get delivery of a house in the accepted sense, clearly a fundamental breach had occurred. Case law, too, has clearly come to the forefront to affirm that in a contract with builders for the purchase of a house to be erected, there is an implied warranty by the vendors that the house would be built in an efficient and workmanlike manner, and with proper materials and fit for 530 habitation (see Miller v Cannon Hill Estates Ltd [1931] 2 KB 113; Teh Khem On & Anor v Yeoh & Wu Development Sdn Bhd & Ors [1995] 2 MLJ 663." [20] The plaintiffs further argued that the defendant's lackadaisical 535 approach in attending to the water leakage issue and their refusal to allow inspection of the affected parcels were inconsistent with the Strata Management (Maintenance and Management) Regulations 2015, in particular regulation 57: Inspection of affected Parcel. The defendant argued that the plaintiffs' cause of action is that there is a fundamental 540 breach of the SPA as the Parcel is unfit for occupation and submitted the following to rebut the said cause of action:

Alleged failure to plead material facts that the defendant had unilaterally refused or had disabled itself from performing its promise in particular in rectifying the damage to the Parcel;

All defects complained about, and damage caused by the water leakage incident was not due to any defect in the workmanship or materials relating to the Parcel and have been rectified. The fact Although there exist defects and damage caused by the water leakage incidents, the Parcel is still habitable and fit for occupation as the 550 defects, and the damage are rectifiable;

The plaintiffs plead no material facts to support the claim that there is a "real and imminent danger to the life and safety" of the occupants of the Parcel despite the Property Inspection Report & Advisory, and the Defendant relies on the Certificate of Completion and Compliance 555 ("CCC") showing that the Parcel is fit for occupation; and

The plaintiffs did not, at the first opportunity, rescind the SPA. However, contrary to the foregoing arguments by the defendant, the plaintiff contends that all material particulars had been pleaded and 560 averred in the cause papers in particular enclosure 2. [21] It was also argued that the defendant had assumed that all these water leakage incidents were normal occurrences in its development. As such, the plaintiffs need to wait for rectification works to be done, which 565 will take more than one year to just rectify the swimming pool in Parcel 60-1 above. It was suggested that that could be the reasons why the defendant has refused to attend to rectification works since January 2020 (despite claiming to have done so), declined to issue form 28, refused to allow inspection, and now refused to provide documents,i.e., because it 570 took the stance that the defects are correctable. The plaintiffs just need to wait for their turn, and this is for the Parcel that was sold for more than RM 11 million to the plaintiffs. The defendant's reliance on the issuance of the CCC to argue on the habitable condition of the Parcelis was misplaced premised on the argument that the said CCC was issued in 575 2018, but the numerous water leakage issues only arose in 2020 to 2021. The plaintiffs' Property Inspection and Advisory Report was conducted concerning these water leakage incidents and the other defects of the Parcel. All these issues are best determined at this suit's substantive hearing to ascertain the parties' legal position. The Court of Appeal case 580 cited by the defendant does not help since, in Fabulous Range Sdn Bhd (supra), more than ten years had lapsed where the purchaser took no action. In the present case, notice to rescind the SPA was issued within eight months after the 1st water leakage incident, i.e., faster than the time alleged to be taken by the defendant to rectify the swimming pool at Parcel 585 60-1. The defects and damage show that the Parcel is unfit for occupation, which goes to the SPA's root. It is not just a breach of the warranty issue. In the circumstances, there are indeed issues to be ventilated by parties at the trial. 590 [22] The plaintiff explains that enclosure 1 in the present case is not an abuse of the court process as alleged by the defendant on the premise that the plaintiff had filed two other suits against the defendant and therefore failed to make the appropriate election amounting to approbating and reprobating. These are three separate suits with three different 595 causes of action. It was argued that:

The JR suit concerns the extension of time granted by the housing controller, which is ultra vires of the Housing Development (Control & Licensing) Act 1966. This proceeding is pending before the High Court. The cause of action therein concerns the legality of the 600 extension of time granted by the Controller to the defendant.

The LAD suit filed by the plaintiffs against the defendant concerns the plaintiffs' entitlement to LAD for late delivery. It was filed in January 2021 and subsequently stayed by the defendant, pending the disposal of the JR Suit. The LAD suit enforces the plaintiffs' right to 605 LAD for late delivery of the Parcel. This cause of action on the LAD is different from the cause of action in the present case premised on the basis that the Parcel delivered to the plaintiffs is unfit for occupation. Just because the plaintiffs filed the suit herein for declarative relief to rescind the SPA, it does not mean that the plaintiffs are not entitled to 610 LAD due to the late delivery of the Parcel. The plaintiffs pray that the defendants' striking out application is dismissed with costs. 615 THE LAW [23] The law on striking out of pleadings pursuant to O.18 r.19 ROC 2012 is well settled, the court is duly empowered in a summary manner to stay or dismiss an action or enter judgment accordingly where the pleading:- 620

Discloses no reasonable cause of action or defense [(1) (a)];

Is scandalous, frivolous or vexatious [(1)(b)];

It may prejudice, embarrass or delay the fair trial of this action[(1)(c)];

Is an abuse of the process of the Court [(1) (d)]. 625 [24] 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 630 Corporation Bhd [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(1) 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 635 that a claim or answer is, on the face 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 defense. The Federal Court in Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin E) & Ors v Malaysia 640 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 applicable only in a plain and obvious case or where a claim is, on the face of it, obviously unsustainable. In the present case, the burden is on the Ds to show that P’'s claim against them is obviously 645 unsustainable. FINDINGS [25] In determining the defendant's striking out application in enclosure 24, The Court cannot act capriciously and arbitrarily. A plaintiff cannot be 650 removed from the judgment seat except where the cause of action is obviously "bad and almost incontestably bad": Fletcher Moulton LJ in Dyson v AG [1911] 1 KB 410. It is only applicable in a plain and obvious case where on the face of it, it is plainly unsustainable: Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin 655 E), FC (supra); Lee Nyan Choi, FC (supra). It is trite that the summary process is inappropriate where the facts and issues are in dispute and ought to be determined through viva voce evidence, or it requires serious arguments. 660 [26] Whether the Parcel is habitable for occupation post the water leakage issues and whether it has caused a fundamental breach of the impugned SPA are legitimate legal concerns for consideration and determination. Looking at the arguments presented, we cannot deny a substantial issue between the parties needing to be ventilated at trial. All 665 that is required from the disputed facts is for any legitimate issue between parties that fits ventilation at trial. And that would be sufficient to deny the striking-out application. In this regard, enclosure 24 must meet the Bandar Builder, FC test for striking out. The Supreme Court in Bandar Builder Sdn Bhd & Ors v United Malayan BankingCorporation Sdn Bhd 670 (supra) ruled 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 out the matter. The court must be satisfied that there is no reasonable cause of action, that the claims are frivolous or vexatious, or that the defences raised are not arguable. 675 [27] At this juncture, pending determination at the substantive hearing, I am in agreement that the defendant's reliance on the issuance of the CCC

to argue on the habitable condition of the Parcel is somewhat misplaced in the circumstances. The numerous recurring water leakage 680 damage arose between 2020 to 2021. The allegations that the defects and damage that could have rendered the said Parcel unfit for occupation must be ventilated, and the burden lies on the plaintiffs to prove it to the Court's satisfaction. Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473, CA, made it clear that a striking out order should 685 not be made summarily if there is an issue of law that requires proper ventilation by the Court, as well as if there is an issue of fact that is only capable of determination after taking viva voce evidence during a trial. I find the SOC to be neither hopeless, baseless, or without foundation in law or equity or otherwise, an abuse of the process of the court: Honan 690 Plantations Sdn Bhd v Kerajaan Negeri Johor & Anor and Another Appeal [1998] 3 CLJ 253, CA. [28] Concerning the plaintiffs' other suits, I believe each will be decided on its own merits at the appropriate time. It does not, however, provide 695 proper justification in the circumstances of this case to be used to support the strike out of the present suit. CONCLUSION [29] All things having been considered, after perusing all cause papers, 700 written submissions and listening to oral arguments by the respective counsels of the parties, I find for the plaintiffs. In coming to this conclusion, I am minded of the legal position that the suit before me must be hopeless, baseless, or without foundation in law or equity or otherwise, an abuse of the court process before it can be struck out. I find there are issues of law 705 and facts that require proper ventilation at trial to determine the position and tights of parties. CB Land Sdn Bhd v Perunding Hashim & Neh Sdn Bhd [2016] 6 MLJ 320, CA, ruled that the case should not be struck out if there are triable issues. The defendant has not met the Bandar Builder SC test in the circumstances of the case, and it is not a suitable 710 case for summary dismissal. Application is dismissed with costs in the cause. Dated 30.09.2022 715 (HAYATUL AKMAL ABDUL AZIZ) JUDGE 720 HIGH COURT OF MALAYA WILAYAH PERSEKUTUAN KUALA LUMPUR 725 Counsels: Dato' Firoz Hussein, together with Choo Shi Jin and Audrey Lim Messrs Firuz Julian 730 Counsels for the Plaintiffs Muhammad Iqram, together with Kwong Jia Yuin and Arjun Kumar Messrs Azman Davidson & Co Counsels for the Defendant 735