1. ) LIM JOO SWEE v 1. ) Perbadanan Kemajuan Negeri Selangor (PKNS) (BA-22NCvC-385-09/2023)

LIM JOO SWEE [NRIC No: 600523-01-5439]

LEONG ENG KEONG [NRIC No: 481209-03-5109]

CHONG BOON KIONG [NRIC No: 580321-04-5167]

CHEAH KIM LOOI [NRIC No: 640224-07-5526] (Suing for and on behalf of all the 99 proprietors and owners of the Selangor Polo Residency and members of the Residents and Owners Association of Selangor Polo & Equestrian Centre, Kota Damansara) ...PLAINTIFFS

1.

SELANGOR POLO SDN. BHD. [Company Registration No: 199201019580 (251084-H)] 30/05/2025 18:13:34

SELANGOR COUNTRY CLUB SDN. BHD. [Company Registration No: 199401021096 (306775-P)]

MAYANG TIASA SDN. BHD. [Company Registration No: 200901000702 (843626-V)]

DATUK BANDAR MAJLIS BANDARAYA PETALING JAYA … DEFENDANTS GROUNDS OF JUDGMENT

There are four (4) applications before this Court for determination, namely Enclosures 10, 23, 36 and 40. All five (5) Defendants have filed these applications, each seeking to strike out the Plaintiffs’ claim pursuant to Order 18 rule 19 of the Rules of Court 2012 (ROC 2012). The Defendants invoke various grounds under rule 19(1)(a),

(b), (c) and (d), as well as the inherent jurisdiction of the Court, contending that the Plaintiffs’ claim discloses no reasonable cause of action, is frivolous, vexatious, and/or constitutes an abuse of the process of the Court.

Enclosure 10 is the Fourth Defendant’s application to strike out the Plaintiffs’ Writ of Summons and Statement of Claim pursuant to Order 18 rule 19 and/or under Order 92 rule 4 of the ROC 2012.

Enclosure 23 is the Fifth Defendant’s application to strike out the Plaintiffs’ Writ of Summons and Statement of Claim pursuant to Order 18 rule 19(1) (a), (b), and/or (d) and/or Order 92 rule 4 of the

Enclosure 36 is the First Defendant’s application to strike out the Plaintiffs’ Writ of Summons and Statement of Claim pursuant to Order 18 rule 19(1) (b) and/or (c) of the ROC 2012 and/or under the inherent jurisdiction of the Court.

Enclosure 40 is an application by the Second and Third Defendants to strike out the Plaintiffs’ Writ of Summons and Statement of Claim pursuant to Order 18 Rule 19(1) (a), (b) and/or (d) and/or Order 92 rule 4 of the ROC 2012.

This suit arises from a long-standing dispute concerning two parcels of land—H.S.(D) 266270, PT 12397, Pekan Baru Sungai Buloh, Daerah Petaling, Selangor (Lot 12397) and PN 99575, Lot 45198, Pekan Baru Sungai Buloh, Daerah Petaling, Selangor (Lot 45198)— which originally formed part of a 63-acre tract of land alienated to the First Defendant by the State Authority in 1992 for the designated use of “Bangunan”.

The First and Second Defendants entered into a joint venture to develop the land in two distinct components: (i) a residential development comprising 99 bungalow lots marketed as “Selangor Polo Residency”; and (ii) a polo and equestrian centre. Pursuant to this arrangement, the First Defendant sold approximately 60.67 acres to the Second Defendant by way of a Sale and Purchase Agreement dated 20 December 1994 and a Supplementary Agreement dated 19 May 1997. The First Defendant contended that its role thereafter was solely that of a bare trustee, responsible only for securing the issuance of titles and facilitating their transfer.

Sale and Purchase Agreements (SPAs) for the Bungalow Lots were executed between the First and/or Second Defendants and the original purchasers. Of the four Plaintiffs in this action, only the Fourth Plaintiff is an original purchaser (vide SPA dated 2 April 1999). The remaining Plaintiffs and most current owners acquired their bungalow lots through subsequent transfers. The Third Defendant, a related entity, was not a party to any SPA with the Plaintiffs.

The remaining land, which did not form part of the bungalow development, was eventually subdivided into Lot 12397 and Lot

Lot 12397 was registered in the name of the Third Defendant and designated as “Bangunan Perniagaan”, while Lot 45198 was registered under the First Defendant with the designation “Padang Polo”.

A clubhouse with recreational amenities (the Clubhouse) was constructed on Lot 12397, and a polo field (the Polo Field) on Lot

These facilities commenced operations around 2003 upon the issuance of the Certificate of Fitness for Occupation dated 28 June 2003 and were open to the public on a fee-paying basis. However, both the Polo Field and the Clubhouse ceased operations in 2006 due to poor financial performance and underutilisation.

In 2008, the First Defendant applied to Majlis Bandaraya Petaling Jaya (MBPJ) for planning permission to amend the approved layout plan of Lot 45198 for the construction of 174 semi-detached houses (the Proposed Development). Pursuant to section 21 of the Town and Country Planning Act 1976 (TCPA), MBPJ served written notice of the application to neighbouring landowners, including the bungalow lot owners, and erected a public notice board at the project site.

Objections were raised by the Selangor Polo & Equestrian Centre Residents’ Association along with several individual owners including Chin Jit Pyng and Choi Swee Ping. They cited, among others, the loss of recreational amenities, alleged breach of SPA terms, and increased residential density.

A public hearing was held on 30 January 2009. MBPJ rejected the application on 2 October 2009. The First Defendant appealed to the Selangor Appeal Board, which allowed the appeal on 2 June 2010. Chin Jit Pyng and Choi Swee Ping subsequently filed a judicial review application in the Shah Alam High Court (Application No. 21- 424-2010), which was dismissed on 14 April 2011. Their appeal to the Court of Appeal was later withdrawn on 16 May 2013.

Following the resolution of the planning dispute, Lot 12397 and Lot 45198 were separately titled. Lot 12397 was registered under the Third Defendant on 1 July 2013, and Lot 45198 was registered under the First Defendant on 10 March 2014. On 24 November 2020, the Third Defendant sold both Lot 12397 and Lot 45198 to the Fourth Defendant under two separate SPAs.

On 4 May 2021, the Fourth Defendant applied to change the express condition of Lot 45198 from “Padang Polo” to “Bangunan Kediaman”; the change was approved and endorsed on 11 November 2021. Planning permission for residential development on Lot 45198 was subsequently obtained on 4 May 2022. To date, no planning permission has been granted for the development of Lot 12397, and the Fourth Defendant has not submitted a formal application for rezoning from recreational to commercial use.

The zoning of Lot 45198 as “residential” was reflected in the Rancangan Tempatan Petaling Jaya (Pengubahan 2) gazetted on 16 January 2020 and Pengubahan 3 gazetted on 16 February 2023.

The Plaintiffs filed the present suit on 11 September 2023, asserting claims against the First to Fifth Defendants based on, among others, misrepresentation, breach of SPA, negligence, and nuisance. In respect of the Fourth Defendant, the Plaintiffs alleged that the Fourth Defendant owed them a duty of care and had caused a nuisance through construction activities on Lot 45198 and proposed development on Lot 12397. The Plaintiffs also sought declaratory and injunctive relief to restrain further development and alterations to the zoning of the said lands.

The First Defendant asserted that it acted merely as a bare trustee in respect of the land sold to the Second and Third Defendants and was not involved in the sale of any bungalow lots. The Second and Third Defendants contended they no longer have any proprietary interest in Lots 12397 and 45198. The Fourth Defendant denied owing any duty of care or causing any actionable nuisance.

In response, the Defendants have filed four separate striking out applications pursuant to Order 18 rule 19(1) of the ROC 2012, asserting that the Plaintiffs’ claims are unsustainable, fail to disclose any reasonable cause of action, and/or constitute an abuse of the process of the court.

All four applications are made pursuant to Order 18 rule 19(1) of the ROC 2012. The rule provides that the Court may, at any stage of the proceedings, strike out any pleading or the endorsement on any writ in the action, or any part thereof, on any of the following grounds:

That it discloses no reasonable cause of action or defence;

That it is scandalous, frivolous or vexatious;

That it may prejudice, embarrass or delay the fair trial of the action; or

That it is otherwise an abuse of the process of the Court.

The principles applicable to striking out applications under Order 18 rule 19(1) are well established and have been authoritatively summarised in the Supreme Court’s decision in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36. The Supreme Court observed: “The principles upon which the court acts in exercising its power under any of the four limbs of O18 r 19(1) of the RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’ (see AG of Duchy of Lancaster v L & NW Rly Co). 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 defence (see Wenlock v Moloney & Ors). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 (which is in pari materia with our O 33 r 2 of the RHC) (see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” [emphasis added]

This passage emphasised that the power to strike out is a draconian one and should be exercised sparingly. A claim must be “obviously unsustainable” on its face, without requiring a detailed inquiry into evidence or facts.

The Federal Court reaffirmed these principles in Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin E) & Ors v Malaysia Airlines Bhd and other appeals [2019] 1 MLJ 59. Ramly Ali FCJ, delivering the judgment of the Court, stated as follows: “[19] The basic test for striking out as laid down by the Supreme Court in Bandar Builder is that the claim on the face of it must be ‘obviously unsustainable’. The stress is not only on the word ‘unsustainable’ but also on the word ‘obviously’, ie, the degree of unsustainability must appear on the face of the statement of claim without having to go into a lengthy and mature consideration in detail. If one has to go into a lengthy detailed argument and mature consideration of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at the trial.” [emphasis added] [see also: Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1; Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473; Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011] 6 MLJ 70, CA)]

In essence, the power to strike out a claim aims to prevent the continuation of proceedings that are bound to fail, either because the cause of action is legally untenable or because the pleading is so defective that it cannot support any relief. However, if a case involves a novel point of law or if the facts are contentious and require proper ventilation at trial, the matter should not be summarily disposed of. The threshold is high, and the Court must be satisfied that the claim is plainly and obviously without merit to justify striking it out at a preliminary stage.

The Plaintiffs, in opposing the respective striking out applications by the First, Second, Third, Fourth and Fifth Defendants, contended that the Plaintiffs’ claim discloses serious triable issues that warrant a full adjudication on the merits. At the outset, the Plaintiffs raised a preliminary objection in respect of all four applications, contending that each application is fatally defective for non-compliance with the procedural requirements under Order 18 rule 19(1) of the ROC

It is submitted that the rule mandates disjunctive invocation of its four limbs and that any application relying cumulatively on multiple limbs, or failing to specify the particular limb invoked, is incurably flawed. In support of this proposition, the Plaintiffs relied on Sambu (M) Sdn Bhd v Stone World Sdn Bhd & Anor [1997] 1 CLJ 775, and Metroplex Holdings Sdn Bhd v Commerce International Merchant Bankers Bhd [2013] 4 MLJ 520, along with other authorities where courts have struck out such non-compliant applications as procedurally incompetent.

In response to the First Defendant’s application (Enclosure 36), the Plaintiffs contended that the First Defendant was not merely a passive landowner or bare trustee but was integrally involved in the Selangor Polo Residency development. The First Defendant was a joint venture partner with the Second Defendant and holds substantial shares in both the Second and Third Defendants. A senior officer of the First Defendant remained as a director of those entities. The Plaintiffs argued that the First Defendant had actual participation and control in formulating and implementing the project’s layout and concept, including the integration of equestrian and recreational facilities, therefore, it cannot disclaim responsibility for the conduct now impugned. The sale of Lots 12397 and 45198, along with the First Defendant’s facilitation of the development's alteration, is said to constitute breaches of express and implied contractual obligations.

As against the Second and Third Defendants (Enclosure 40), the Plaintiffs contended that these entities were central to the development’s conception, marketing, and execution. The Second Defendant was the vendor named in the SPAs, while the Third Defendant was tasked with the construction and operation of the Polo Field and the Clubhouse. The Plaintiffs submitted that the Defendants made representations—both express and implied— through promotional materials, layout plans, and conduct, suggesting that the equestrian centre and Clubhouse would remain integral and permanent features of the gated residential development. It is alleged that the subsequent closure of these facilities and their sale to the Fourth Defendant for commercial redevelopment constitutes a breach of contract and/or negligence. The Plaintiffs argued that the legal relationship between the Defendants and the purchasers, along with the unity of interest, common control, and shared operational premises, justifies piercing the corporate veil. They rely on the case of Hotel Jaya Puri Sdn Bhd v National Union of Hotel, Bar & Restaurant Workers & Anor [1980] 1 MLJ 109 in support of this submission. The Plaintiffs dismissed the Defendants’ plea of res judicata and limitation, asserting that the earlier judicial review proceedings did not involve the same causes of action or legal rights now asserted, and that the present harm remains ongoing in nature.

In opposition to the Fourth Defendant’s striking out application (Enclosure 10), the Plaintiffs submitted that although the Fourth Defendant is a subsequent purchaser of Lots 12397 and 45198, it acquired the properties with knowledge of their intended use as recreational facilities forming part of the original layout and planning. The Plaintiffs averred that the Fourth Defendant’s decision to redevelop Lot 45198 into a high-density residential area and its intention to convert Lot 12397 into a commercial complex significantly undermine the residential character and exclusivity of Selangor Polo Residency. The Plaintiffs further contended that the Fourth Defendant’s use of the existing Clubhouse as a sales gallery and the purported development approvals obtained violated statutory planning requirements, particularly the mandatory 30% open space requirement. They claimed that the acts of the Fourth Defendant have directly contributed to the devaluation of their properties and the erosion of their collective rights as owners under the original development framework.

Resisting the Fifth Defendant’s application (Enclosure 23), the Plaintiffs contended that the Fifth Defendant, as the approving authority for the original development layout of Selangor Polo Residency, is estopped from allowing any change in land use for Lot

They asserted that the 1994/1995 Development Order and approved Layout Plan—issued by the Fifth Defendant—included designated recreational facilities on Lot 12397 and Lot 45198, forming an integral part of the overall development. Relying on this approved plan, the Plaintiffs purchased their respective bungalow lots with the legitimate expectation that the recreational zoning would be preserved. The Plaintiffs argued that the Fifth Defendant’s subsequent conduct in entertaining or considering any application to rezone Lot 12397 for commercial or high-density residential use is contrary to this expectation and amounts to administrative unfairness. The Plaintiffs, therefore, sought declaratory and injunctive relief to restrain the Fifth Defendant from approving any change in zoning or land use for Lot 12397.

Across all four applications, the Plaintiffs urged the Court to reject the arguments that their claims are frivolous, vexatious, or an abuse of the process of the Court. They submitted that the Statement of Claim, considered in its entirety, discloses triable issues that are neither plainly nor obviously unsustainable.

In support of their respective striking out applications, the First to Fifth Defendants contended that the Plaintiffs’ action is plainly and obviously unsustainable, discloses no reasonable cause of action, is frivolous or vexatious, and amounts to an abuse of the process of the Court. They submitted that the Plaintiffs’ claim is both legally and factually defective and ought to be summarily dismissed.

The First Defendant (Perbadanan Kemajuan Negeri Selangor) contended that it has no legal obligation to the Plaintiffs arising from the SPAs for the bungalow lots in Selangor Polo Residency. The First Defendant contended that it had divested all its interest in the relevant land parcels via two separate agreements in 1994 and 1997 and thereafter acted only as a “bare trustee” with no substantive rights or duties in respect of Lots 12397 and 45198. It was the Second Defendant, not the First, who was responsible for the development, layout approval, and sale of the bungalow lots. The First Defendant maintained that it did not undertake any obligation to maintain the equestrian centre or Clubhouse and was not privy to any contractual terms giving rise to the Plaintiffs’ alleged expectations. The First Defendant argued that any redevelopment activity was conducted by the Fourth Defendant pursuant to legally obtained planning approvals and land title endorsements. The First Defendant further pleaded that the Plaintiffs’ claim was barred by res judicata and estoppel, stemming from the dismissal of earlier objections and judicial review proceedings brought by other residents challenging the same redevelopment approval. It argued that the claim is, in substance, a collateral attack on those concluded proceedings and thus amounts to an abuse of the Court’s process.

The Second and Third Defendants (Selangor Polo Sdn Bhd and Selangor Country Club Sdn Bhd) advance multiple grounds for striking out. First, they submitted that the Plaintiffs’ claim is unsustainable in law as the Second and Third Plaintiffs never contracted with them and thus lack privity of contract. Only the Fourth Plaintiff entered into a SPA with the Second Defendant, while the Third Defendant was never a party to any SPA with any Plaintiff. The Defendants argued that they owed no duty of care to the Plaintiffs in tort, particularly as the Clubhouse and Polo Field were constructed for commercial use open to the general public and not exclusively for the benefit of residents. Additionally, the Defendants relied heavily on the doctrine of res judicata and estoppel, asserting that the objections now raised mirror those previously raised and adjudicated in the 2009 Selangor Appeal Board hearing and the subsequent High Court judicial review, both of which were resolved against the objectors. They argued that the current action improperly seeks to reopen those issues under a different procedural guise. Moreover, the Defendants also pleaded that the claim is time-barred under section 6 of the Limitation Act 1953 and that the representative nature of the suit is procedurally defective under Order 15 rule 12 of the ROC 2012.

The Fourth Defendant (Mayang Tiasa Sdn Bhd) submitted that as a bona fide purchaser of Lots 12397 and 45198, it owed no duty of care to the Plaintiffs and is not liable for any alleged misrepresentations or obligations arising under the SPAs. The Fourth Defendant argued that it was never involved in the original development, sale, or marketing of the Selangor Polo Residency, and had no dealings with the Plaintiffs at the time of their purchases. Accordingly, the Fourth Defendant cannot be bound by any promises or representations made by the original developer. The Fourth Defendant also denied that any duty of care arose merely by virtue of being the current landowner, relying on authority that ownership alone does not create a duty to prevent or remedy third-party wrongs. The Plaintiffs’ claim in nuisance is likewise said to be vague, unparticularised, and unsupported by material facts. The Fourth Defendant stressed that its planning permission for the redevelopment of Lot 45198 was lawfully granted, while no formal application has yet been made in respect of Lot 12397. It contended that the claims made against it are speculative, legally baseless, and fail to meet the threshold of a recognised cause of action in tort.

The Fifth Defendant (Datuk Bandar Majlis Bandaraya Petaling Jaya) argued that it is not a proper party to the suit as the Plaintiffs have no legal interest in Lot 12397 and thus lack the requisite locus standi to challenge any zoning or planning decisions concerning the lot. The Fifth Defendant pointed out that any rezoning application must ultimately be approved by the State Planning Committee, not by the Fifth Defendant itself. It is submitted that the Plaintiffs' grievances should to be addressed through administrative processes such as public objections under section 13 of the TCPA rather than by civil proceedings. The Fifth Defendant further argued that it is not privy to the SPAs and cannot be estopped or restrained by private contractual expectations arising therefrom. Relying on the case of Perbadanan Pengurusan One Tanjong & Anor v Jawatankuasa Perancang Negeri Pulau Pinang & Anor & Lone Pine Residence Sdn Bhd (Intervener) [2023] 1 LNS 2036, it asserted that neighbours or adjoining landowners have no standing to challenge changes to the category of land use where they hold no registered interest in the affected land. Consequently, the Fifth Defendant contended that the Plaintiffs’ claim discloses no reasonable cause of action, is legally misconceived, and ought to be struck out.

All Defendants collectively submitted that the Plaintiffs’ claim, as pleaded, did not meet the threshold for a sustainable cause of action, and urged the Court to strike out the action pursuant to Order 18 rule 19(1) of the ROC 2012 and/or its inherent jurisdiction.

Upon perusal of all the cause papers, and having considered the written and oral submissions by parties, I find that the Plaintiffs’ claim is plainly and obviously unsustainable against all the Defendants. My reasons are stated below.

All Defendants informed the Court that they would be adopting and relying upon the submissions filed by the other Defendants. Whether the Plaintiffs’ preliminary objection to the Defendants' striking out applications has merit

Having considered the Plaintiffs’ preliminary objection, the Court finds it to be without merit, both in law and in substance. The objection is premised on the contention that the Defendants’ striking out applications are defective and liable to be dismissed in limine, on the ground that they failed to specifically identify the precise sub-paragraph(s) of Order 18 rule 19(1) of the ROC 2012 on which they were made.

The Plaintiffs argued that the Defendants’ applications are incurably defective for pleading sub-paragraphs (a), (b), (c), and (d) cumulatively, relying on Sambu (M) Sdn Bhd v Stone World Sdn Bhd & Anor (supra) and Razshah Enterprise Sdn Bhd v Arab Malaysian Finance Bhd [2009] 2 MLJ 102. They further relied on Abeo International Pte Ltd & Ors v Tia And Noordin Solutions Pte Ltd [2020] 1 LNS 795 and Kainan Sdn Bhd v Ocean Packaging Sdn Bhd & Anor [2021] 1 LNS 2326, contending that specificity is required and that lumping all four limbs together is impermissible.

With respect, this Court finds that this line of objection is no longer supported by the prevailing judicial authorities.

The current legal position, as authoritatively laid down by the Court of Appeal in See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235, is that an applicant is entitled to rely on any one or more of the grounds specified in Order 18 rule 19(1). The application is not rendered void or ineffective merely because multiple limbs have been pleaded together. In that case, the Court held: “[9] An applicant for striking out under O 18 r 19 can rely on any one or more than one sub-paras (a)–(d). So far, there is no authority to say otherwise. Halsbury's Laws of Malaysia clearly confirms that an applicant under this rule is entitled to rely on any or all of the grounds specified in the rule. An application under this rule is not void and ineffective merely because sub-para (a) had been pleaded together with sub-paras (b)–(d). The only limitation imposed under sub-r (2) is that for an application under sub-para (a), no evidence is admissible. However, where the court proceeds to decide an application under any other sub-paragraph, affidavit evidence should be admissible. Even though sub-paras (b)–(d) are to be read disjunctively, it does not mean that an applicant cannot rely on more one sub-paragraph in his application, (see Malayan United Finance Bhd lwn Cheung Kong Plantation Sdn Bhd dan lain-lain [2000] 2 MLJ 38; [2000] 2 CLJ 601; Pegasus Engineers Sdn Bhd v Sambu (M) Sdn Bhd [1998] 4 MLJ 129 and Malaysian Court Practice 2007 Desk Edition (High Court) p 239). [10] In the present case since the application by the respondent is also based on sub-para (1)(a), the learned judge should have dealt with the said sub-para notwithstanding the fact that both parties had filed their respective affidavits. Those affidavits are actually to be used for the other two sub-paras (b) and (d). What the learned judge should have done is to deal with the issue under sub-para (a) first and to ignore completely the two affidavits filed by the parties; before proceeding to deal with sub-paras (b) and (d)." [emphasis added]

This position was reaffirmed in Solai Realty Sdn Bhd v United Overseas Bank (M) Bhd [2013] 4 MLJ 545, where the Court of Appeal confirmed that cumulative pleading under rule 19(1) is permissible and does not vitiate the application (see also: Innoseven Sdn Bhd v Big Blue Capital (M) Sdn Bhd & Anor [2022] 1 LNS 2727; Joanna Kong Suit Lee v Eco Green City Sdn Bhd [2022] 5 LNS 129; Badrul Hisham Mohd Salleh v IOI City Mall Sdn Bhd & Ors [2022] 5 LNS 32).

Applying the above principles, this Court finds that the Defendants’ applications under Order 18 rule 19(1) of the ROC 2012 are properly constituted. The Defendants’ have expressly pleaded that the Plaintiffs’ claim: a. Discloses no reasonable cause of action [rule 19(1)(a)]; b. Is scandalous, frivolous or vexatious [rule 19(1)(b)]; and/or c. It may prejudice, embarrass or delay the fair trial of the action rule 19(1)(c)]; and/or d. Is otherwise an abuse of process of the Court [rule 19(1)(d)].

The particulars supporting each of those limbs have been set out in the applications and elaborated in the supporting affidavits. The Defendants have also clarified the reliance on the respective limbs in their written submissions and oral arguments. Therefore, the applications meet both the procedural and substantive requirements of the rule.

Moreover, to uphold the Plaintiffs’ preliminary objection on such technical grounds would elevate form over substance, especially where the merits of the applications have been fully ventilated and no prejudice has been shown. As rightly observed in See Thong, the only limitation imposed under rule 19(2) is that no affidavit evidence may be admitted for applications under sub-paragraph

(a)—a procedural safeguard which does not affect the validity of the application itself.

In the circumstances, this Court finds that the Plaintiffs’ preliminary objection is misguided and legally unsustainable. Accordingly, the preliminary objection is dismissed, and the Court proceeds to consider the Defendants’ striking out applications on the merits. Whether the Plaintiffs are barred by the doctrine of res judicata, cause of action estoppel and/or issue estoppel

Having carefully considered the factual background and the submissions from the parties, this Court concludes that the First, Second, and Third Defendants have presented a strong and compelling basis for striking out the Plaintiffs’ claim, as it is barred by the doctrine of res judicata, cause of action estoppel, and/or issue estoppel. The Plaintiffs’ suit is, is essentially a relitigation of issues that have already been subject to judicial determination in prior proceedings involving parties who are either the same or privies to one another.

The relevant chronology is largely undisputed. In 2008, the First Defendant submitted an application to MBPJ for planning approval to amend the approved layout plan for Lot 45198, seeking to convert the designated Polo and Equestrian Centre into a development comprising 174 semi-detached houses.

Objections were promptly lodged by the Residents and Owners Association of the Selangor Polo & Equestrian Centre along with two bungalow lot owners, Chin Jit Pyng and Choi Swee Ping. The objections raised, both in content and in language, are materially similar to the allegations currently pleaded by the Plaintiffs in the present suit. These include, among others, assertions that the proposed development violated express or implied representations made by the developer, that it contravened the layout plan attached to the SPAs, and that it would adversely affect the value and character of the surrounding properties.

These objections were initially accepted by MBPJ, which rejected the First Defendant’s application. The First Defendant then appealed to the Selangor Appeal Board, which on 2 June 2010 allowed the appeal and approved the proposed development.

Dissatisfied, Chin Jit Pyng and Choi Swee Ping commenced Judicial Review Application No. 21-424-2010 in the Shah Alam High Court, seeking, inter alia, to quash the Selangor Appeal Board’s decision on the basis that the development approval constituted a breach of the SPAs and misrepresentations concerning the Polo Club’s use. The High Court dismissed the Judicial Review on 14 April 2011 after a full hearing, and the applicants subsequently withdrew their appeal to the Court of Appeal.

It is axiomatic that for the doctrine of res judicata to apply, three elements must be satisfied: (a) the matter in question was directly in issue in the earlier proceedings; (b) it was adjudicated upon by a court of competent jurisdiction; and (c) the parties to the current proceedings are the same as, or privies to, the parties in the previous suit.

In the present case, the Court finds that all three elements are met. Firstly, the issues raised by the Plaintiffs—namely, that the First and/or Second Defendants made binding representations and undertook contractual obligations to preserve the Polo Field for community use—were squarely placed before the Shah Alam High Court. In fact, the Judicial Review applicants relied on the very same clauses of the SPA (sections 2.02, 2.05, and 23.01) that the Plaintiffs now rely on, and submitted that the development of 174 semi-detached homes would constitute a breach of those obligations. Those arguments were exhaustively canvassed, and ultimately rejected by the High Court.

Secondly, the Shah Alam High Court undoubtedly exercised competent jurisdiction when it dismissed the Judicial Review application on its merits. The withdrawal of the appeal reinforces that the High Court’s decision remains final and binding.

Thirdly, while the Plaintiffs in this action were not named parties to the Judicial Review, they are bringing this suit in a representative capacity on behalf of the Association and its members, which include the same individuals who participated in the earlier proceedings. In Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, the Supreme Court explained that res judicata creates an estoppel not only between the parties but also their privies. The Court held: “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation – interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action – nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy.” [emphasis added] (see also: Manoharan Malayalam v Menteri Dalam Negeri,

In the present case, the Plaintiffs—though nominally different—are undeniably privies to Chin Jit Pyng and Choi Swee Ping and cannot evade the legal consequences of the earlier judgment.

Even assuming that certain claims or causes of action now asserted were not expressly decided in the Judicial Review, such as, negligence or estoppel, the Plaintiffs are equally barred from raising them under the extended doctrine of res judicata, often referred to as the Henderson v Henderson principle. The locus classicus of that aspect of res judicata is the judgment of Wigram V.-C. in Henderson v. Henderson (1843) 3 Hare 100, 115, where His Lordship stated: "... 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 brought forward at the time." [emphasis added]

This principle has since been adopted in Malaysia and reiterated in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd and Another [1975] A.C. 581, where the Privy Council observed: “But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.” [emphasis added]

Our Court of Appeal reaffirmed this in Chemfert Sdn Bhd & Anor v Lim Hua [2010] 5 MLJ 228. The Court of Appeal held: “Res judicata for this purpose is therefore not confined to the issues which the court is actually asked to decide, but covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them: per Somervell LJ in Greenhalgh v Mallard [1947] 2 All ER 255 at p 257…”

In this case, the Plaintiffs (through their privies) had every opportunity to advance arguments of negligence or estoppel during the Judicial Review. Their failure to do so at that time does not entitle them to a second bite at the cherry in this fresh proceeding.

In light of the foregoing, this Court finds that the Plaintiffs’ action is barred by: a. Cause of action estoppel – the very contractual breaches and misrepresentations now alleged were already the subject of prior adjudication. b. Issue estoppel – the specific questions raised have been conclusively determined in the earlier proceedings. c. Extended res judicata – even if framed differently, the current causes of action could and should have been raised previously, and allowing them now would constitute an abuse of process.

This Court also finds that the Plaintiffs, though not formally parties to the earlier Judicial Review, are estopped because of their privity with Chin Jit Pyng and Choi Swee Ping. The judicial reasoning and conclusions in the prior proceedings bind the Plaintiffs and preclude them from resurrecting these issues. Whether the Plaintiffs’ claim is time-barred under section 6(1) of the

This Court accepts the First, Second and Third Defendants’ submission that the Plaintiffs’ claim, as presently framed, is statute-barred. The cause of action is premised on an alleged breach of contract and/or misrepresentation arising from the SPAs concerning the Selangor Polo development, as well as on tortious claims of negligence. Both causes of action are clearly subject to a six-year limitation period under section 6(1)(a) of the Limitation Act 1953.

The legal position is settled. Where it is clear on the face of the pleadings that a claim is statute-barred, the Defendant is entitled to seek a striking out of the action as being frivolous, vexatious or an abuse of the process of the Court. In Ronex Properties Ltd v John Laing Construction Ltd and Others [1983] QB 398, Donaldson LJ stated: “…Where it is thought to be clear that there is a defence under the Limitation Acts, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence…” [emphasis added]

The Plaintiffs’ claim, as pleaded, clearly falls within this category of cases.

From the Plaintiffs’ own pleadings, the crux of the complaint concerns the alleged failure by the First and/or Second Defendants to preserve the Polo Field and Clubhouse in accordance with the terms of the SPAs. The facts show that the Polo Field ceased operations as early as 2006, and that the application for planning approval to convert Lot 45198 into residential units was submitted to MBPJ in 2008. These events were widely publicised and opposed by members of the Association, including the individuals now represented by the Plaintiffs in this suit.

The Plaintiffs, through the Association and its members, were clearly aware of the impending development. MBPJ’s written notice dated 9 December 2008 and the notice board erected on-site were publicly displayed. More significantly, the Association, through its Chairman Beh Choong Suan, along with purchasers Chin Jit Pyng and Choi Swee Ping, submitted formal written objections against the proposed development in 2008 and early 2009. The objections specifically alleged breaches of the SPAs—substantially mirroring the allegations raised in the current action.

The matters subsequently culminated in a full hearing before the Selangor Appeal Board and ultimately led to the Judicial Review proceedings in the Shah Alam High Court. The High Court’s decision, delivered on 14 April 2011, dismissed the application and upheld the development approval.

In light of these facts, the cause of action—whether based in contract, tort or equity—must be taken to have accrued at the latest by April 2011, if not earlier.

The Plaintiffs have argued that the present claim is not time-barred because: a. The previous planning approval was never acted upon; b. The current proceedings concern different lots (including Lot 12397); c. The earlier proceedings were filed by individuals and not by the Association; and d. The present dispute arises from events between 2020 to the present.

This Court finds these arguments unpersuasive. The real substance of the complaint, namely, that the development constitutes a breach of the SPAs and representations concerning the Polo Field, remains unchanged. The factual matrix, the parties involved, the contractual documents, and the character of the land in question are all substantially the same. To adopt the apt expression used by Awang Armadajaya Awang Mahmud JC in his decision in Mohamad Farid Asyraf bin Dasuki v Masdi bin Javiran [2021] MLJU 589: "Drawing the curtains across the window to shut the sun rays do not change the fact that the sun has risen and the world is bright outside the drawn curtains."

Similarly, mere recharacterisation of the facts or reidentification of the lots cannot disguise the fact that the cause of action is long extinguished by law.

The Plaintiffs’ attempt to portray the matter as having only arisen in 2020 or thereafter are plainly contrived. The substance of the complaint was well known and actively litigated over a decade ago. The alleged injury—the loss of the Polo Field and the failure to honour the layout plan—had already crystallised by the time of the Judicial Review decision in 2011. No fresh breach has been pleaded that could revive the limitation period.

As such, to permit this action to proceed would undermine the legislative intent behind section 6(1) of the Limitation Act 1953. The law imposes time limits not merely as a procedural bar, but to ensure finality and protect Defendants from stale claims.

This Court is satisfied that the Plaintiffs’ claim—whether grounded in contract, tort, or estoppel—is clearly barred by the six-year limitation period under section 6(1) of the Limitation Act 1953. The last possible date on which the cause of action may have accrued was 14 April 2011, when the Shah Alam High Court dismissed the Judicial Review application brought by those now represented by the Plaintiffs. Yet the present suit was only filed in 2023, more than 12 years later.

Accordingly, the Court finds that the Plaintiffs’ claim is frivolous, vexatious and an abuse of process, and is liable to be struck out. Whether the Plaintiffs have any legal interest or rights in Lot 12397 and Lot 45198 to object to the change of land use or planning permission

This Court is of the view that the Plaintiffs do not possess any registrable or cognisable legal interest in either Lot 12397 or Lot 45198 that would entitle them to object to or challenge the process of land use conversion or the grant of planning permission concerning those lots.

As for the status of ownership and legal interests in the disputed lots, the documentary evidence discloses that: a.

It is therefore clear that the Fourth Defendant is the current registered proprietor of both Lots 12397 and 45198 and holds legal title under the National Land Code 1965. The First Defendant no longer has any legal interest in either lot.

The Plaintiffs have not pleaded or established that they hold any registered interest, statutory lien, leasehold, or easement over either lot. They are merely adjacent owners of separate parcels within the larger Selangor Polo Residency. While they contended that the development affects the amenity or value of their properties, such grievances do not create a legal entitlement to challenge the proprietary dealings or land use decisions affecting other independently titled lands.

As emphasised by the Federal Court in See Leong Chye & Anor v United Overseas Bank (Malaysia) Bhd & Another Appeal [2021] 6 CLJ 650 at p. 674, per Vernon Ong FCJ: “[37] As a start, we think that it is apposite to define the meaning of the words "title", "interest" and "indefeasibility" in the context of land law in Malaysia. The words "title to land" denotes legal ownership of the land; whilst the words "interest in land" refers to the statutory interest in registered land which includes a registered lease, charge or easement, statutory lien, and a tenancy exempt from registration. Accordingly, a person who is the registered owner of a piece of land under the issue or register document of title is said to possess legal title to that piece of land. On the other hand, a person taking a lease (a lessee) or a charge of the land (a chargee) acquires only an interest in the land… The words "indefeasibility of title or interest" in the Torrens system connotes the measure of conclusiveness given to a title or interest in alienated land on registration of the dealing in statutory form. Once a title or interest is registered, it cannot be set aside except otherwise statutorily provided under sub-s. 340(2) of the NLC (See Teo Keang Sood and Khaw Lake Tee, Land Law in Malaysia, Cases and Commentary, 3rd edn, LexisNexis 2012 at [4.52]). The register is everything in the sense that the register document of title is conclusive evidence of entries thereon (see s. 89 of the NLC).” [emphasis added]

The Plaintiffs, not having any such registered or statutory interest, cannot assert legal standing to object to the land use changes involving those lots.

Furthermore, any amendment to the express conditions, restrictions in interest, or category of land use on a title falls within the exclusive powers of the State Authority under section 124(1) (a) and (c) of the National Land Code 1965, which provides: “124. Power of State Authority to vary conditions, etc., on application of proprietor.

The proprietor of any alienated land may apply to the State Authority under this section for-

the alteration of any category of land use to which the land is for the time being subject or, where it is not so subject, for the imposition of any it is not so subject, for the imposition of any category thereon; …

the amendment of any express condition or restriction in interest endorsed on, or referred to in, the document of title thereto, or the imposition of any new express condition or restriction in interest: Provided that the State Authority shall not entertain any such application unless it is satisfied with respect to every person or body having a registered interest in the land, or in occupation of any part thereof under any tenancy exempt from registration, either that he has consented thereto or that his consent ought in the circumstances of the case to be dispensed with:”

As the Plaintiffs do not hold any registered interest, they fall outside the category of persons whose consent must be obtained or considered under section 124. They are thus not entitled, in law, to object to applications for rezoning or amendments to land title conditions made by the registered proprietor.

This principle was expressly affirmed in Perbadanan Pengurusan One Tanjong & Anor v Jawatankuasa Perancang Negeri Pulau Pinang & Lone Pine Residence Sdn Bhd (Intervener) (supra).

This Court concurs with the principle enunciated therein. The Plaintiffs, being adjacent landowners with no registrable interest, cannot mount a legal challenge to the rezoning or redevelopment of other land simply by virtue of proximity.

The law does, however, provide limited procedural rights to adjacent landowners to be notified and to object—but only at specific stages, namely during the public notice stage of draft local plans under section 13(2), and during the planning permission stage under section 21(6) of the TCPA. These rights are procedural, not proprietary. Section 13(2) of the TCPA provides: “….

Before making copies of a draft local plan available for inspection under subsection (1), the local planning authority shall publish, in three issues of at least two local newspapers, one of which being in the national language, a notice stating the date on which copies of the draft local plan will begin to be available for inspection, the places where they will be available for inspection, and the time, which shall not be less than four weeks from the date on which copies of the draft local plan begin to be available for inspection, within which objections to or representations in respect of the draft local plan may be made to the local planning authority.”

Section 21(6) of the TCPA further states: “21. Application for Planning Permission ...

If the proposed development is located in an area in respect of which no local plan exists for the time being, then, upon receipt of an application for planning permission, or, where directions have been given under subsection (3), upon compliance with the directions, the local planning authority shall, by notice in writing served on them, inform the owners of the neighbouring lands of their right to object to the application and to state their grounds of objection within twenty-one days of the date of service of the notice.”

This Court agrees that if the Plaintiffs wished to object to any development or planning proposal concerning Lots 12397 or 45198, their recourse was to do so at the planning permission stage under section 21(6) of the TCPA. Their failure to pursue such avenues of objection does not give rise to a freestanding cause of action in this Court. As noted in Perbadanan Pengurusan One Tanjong (supra) at para [56]: “The Applicants’ present action is premature. If there is any grievance, it should be channelled during the planning permission stage. Section 21 of the TCPA provides an avenue for the Applicants to ventilate their objections...”

In the present case, the Plaintiffs have no registered interest, no statutory entitlement, and no justiciable right in relation to Lots 12397 or 45198. Their status as neighbouring owners, without more, does not afford them legal standing to object to land use changes or to maintain a cause of action against the Defendants in this regard. The recourse available to them under the TCPA has not been pursued or pleaded. Further, their challenge is directed at a proprietary decision within the ambit of the State Authority, concerning land in which they have no enforceable interest. Whether the Plaintiffs’ claim against the Fifth Defendant discloses a reasonable cause of action in relation to the rezoning of Lot 12397

This Court finds that the Plaintiffs’ claim against the Fifth Defendant is legally misconceived and discloses no reasonable cause of action. The allegations, as framed, rest on a fundamental misunderstanding of the Fifth Defendant’s role under the statutory framework governing town and country planning.

The Fifth Defendant is the local planning authority within the district of Petaling and is tasked, among others, with regulating, coordinating and processing development-related applications under the TCPA. However, the power to approve any rezoning or change in land use does not lie with the Fifth Defendant. Instead, such approval is vested exclusively in the State Planning Committee and ultimately, the State Authority.

This is confirmed by section 16 of the TCPA, which governs the preparation and approval of local plans, and by the overall structure of Part III of the Act. Any application for rezoning must be submitted to the Selangor State Planning Committee for evaluation, recommendation and final approval.

As asserted by the Fifth Defendant, the composition of the Selangor State Planning Committee includes the Menteri Besar Selangor, the State Legal Adviser, the State Financial Officer, and various Executive Councillors and directors of relevant State departments. In addition, technical reviews are conducted by agencies such as the Department of Town and Country Planning, the Petaling District Land Office, the Public Works Department, and other relevant bodies. The Fifth Defendant, as the local planning authority, may facilitate this process, but does not possess the legal authority to approve any rezoning unilaterally.

In the present case, the Plaintiffs have alleged that the Fifth Defendant failed in its duty by allowing or facilitating the rezoning of Lot 12397, which was previously zoned for recreational use under the Rancangan Tempatan Petaling Jaya (Pengubahan 2) and (Pengubahan 3). However, the Fifth Defendant’s evidence confirmed that, to date, no formal rezoning application has been submitted in respect of Lot 12397. What exists is merely a preliminary engagement between representatives of the First, Fourth and Fifth Defendants regarding the possibility of such development. The mere existence of such a discussion does not, in law, give rise to a cause of action, particularly against a body with no final decision-making authority.

In any event, the law does not allow legal proceedings to be brought pre-emptively, before the relevant decision-making process has even commenced or concluded.

As stated above, the Plaintiffs’ rights to raise objections are limited to the public participation phase during the publication of draft local plans and the planning permission stage, respectively, under section 13(2) and section 21(6) of the TCPA. They have not pleaded any actual objection raised during such stages nor shown that such stages have even arisen in relation to the Fourth Defendant’s intended development. In the absence of any formal application for planning permission or rezoning, there is no operative legal duty owed by the Fifth Defendant to the Plaintiffs at this juncture. Therefore, the claim is speculative, anticipatory, and unsustainable.

Thus, this Court finds that the Plaintiffs’ action against the Fifth Defendant is legally unsustainable, discloses no reasonable cause of action, and is both premature and misconceived. Procedural Impropriety: Public Law Challenge Must Be Brought by Judicial Review under Order 53

This Court further finds that the Plaintiffs’ claim, as far as it seeks to challenge or impugn the acts and decisions of the Fifth Defendant— a public authority within the context of town and country planning— is procedurally flawed and impermissible in law.

Pursuant to Order 53 of the ROC 2012, any application seeking relief against a public authority in respect of a decision affecting the rights of an aggrieved party must be commenced strictly by way of judicial review under Order 53. The Federal Court in Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865 affirmed this position.

While the Court in Ahmad Jefri acknowledged limited exceptions— such as where the public law issue arises collaterally in a private law claim, where the public authority is sued for negligence, none of those exceptions apply in the present case. The Plaintiffs have not pleaded or demonstrated any actionable negligence on the part of the Fifth Defendant. Nor does the alleged administrative misconduct arise collaterally within a legitimate private law cause of action.

Rather, the substance of the Plaintiffs’ claim is a direct challenge to the exercise of public law functions by the Fifth Defendant within the context of development control and rezoning processes. Such matters fall squarely within the realm of judicial review. The Plaintiffs’ failure to invoke Order 53 of the ROC 2012 not only renders the action procedurally improper but also amounts to a clear abuse of the Court’s process, as it seeks to circumvent the safeguards, timelines, and leave requirements imposed under the judicial review regime. Whether the Plaintiffs’ claim in negligence against the Fourth Defendant discloses a reasonable cause of action

This Court finds that the Plaintiffs’ claim in negligence against the Fourth Defendant, as pleaded in paragraphs 48 and 49 of the Statement of Claim, is fundamentally unsustainable in law.

The Plaintiffs alleged, inter alia, that the Fourth Defendant: a. Knew or ought to have known that Lots 12397 and 45198 formed part of the Selangor Polo Residency and were the only recreational facilities serving the development; b. Was aware of their recreational zoning under an approved layout plan; c. Acknowledged this by applying to the Fifth Defendant for a change of zoning from “Recreational” to “Commercial” for Lot 12397; and d. By doing so, it interfered with the Plaintiffs’ amenity value and quality of life, thereby breaching a duty of care.

The Plaintiffs’ claim is predicated on the existence of a legal duty of care owed by the Fourth Defendant to them. However, the Court finds that no such duty arises in law based on the pleaded facts. The Fourth Defendant is not, and was never, a party to any SPAs involving the Plaintiffs. There is no contractual, fiduciary, statutory, or voluntary relationship between the Plaintiffs and the Fourth Defendant. The Fourth Defendant was not involved in the sale, development, or any representation regarding Lots 12397 and 45198 during the Plaintiffs’ purchase of their lots.

As held in Teh Aun Yang (berniaga sebagai pemilik tunggal dengan nama Foo Yuan Food Court) v Wan Chow Seng & Ors [2022] MLJU 3108, the mere fact of land ownership does not give rise to a duty of care vis-à-vis third parties relying on representations made by others. The High Court there held: “...the Court may strike out an action where the pleaded duty of care does not exist or is not based on any recognised or established categories of negligence... … …To succeed, the plaintiffs must by legal necessity establish the existence of a duty of care towards them...”

In Caparo Industries Plc v Dickman and Others [1990] 2 AC 605, the House of Lords laid down the three-fold test for the imposition of a duty of care: (a) foreseeability of damage, (b) proximity between the parties, and (c) that it is fair, just and reasonable to impose such a duty.

These principles were adopted by the Federal Court in Lok Kok Beng & 40 Ors v Loh Chiak Eong & Anor [2015] 4 MLJ 734, held that in cases involving pure economic loss, there must be a voluntary assumption of responsibility by the defendant and corresponding reliance by the plaintiff to satisfy the proximity requirement. The absence of such factors would render the claim legally untenable: “[33] Proximity of relationship between the parties and public policy. As rightly pointed out by the Court of Appeal, reasonable foreseeability does not of itself lead to a duty of care. The Privy Council in Yuen Kun-yeu v A-G of Hong Kong [1988] AC 175 held that whether or not a duty of care in negligence existed depended primarily upon foreseeability of damage, together with the existence of a close and direct relationship or proximity between the parties, and that occasionally, it would be necessary to go on to consider whether public policy requires that liability should not attach. In the same case, the Privy Council criticised the applicable law in determining duty of care in England at that time, namely the two-stage test of proximity and policy considerations laid down by Lord Wilberforce in Anns v Merton London Borough Council [1978] AC 728. The reason was that Anns equated ‘proximity’ with the reasonable foresight of damage thus giving rise to an indeterminate liability in negligence claims. [34] To put it in a nutshell the preferred test is the three-fold test, where the requirements of foreseeability,proximity and policy considerations must exist in any claim for negligence. The three-fold test has been recognised by the House of Lords in Caparo Industries plc v Dickman [1990] 2 AC 605, as the elements giving rise to a duty of care. In the judgment of Lord Bridge in Caparo at pp 617–618, His Lordship said that: What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other. [35] The most difficult ingredient to prove in establishing a duty of care is the requirement of sufficient proximity between the claimant and the defendant. The court would have to look at the closeness of the relationship between the parties and other factors to determine sufficient proximity based on the facts and circumstances of each case. These factors are likely to vary in different categories of cases. The fact that damages sought by the claimant is pure economic loss not flowing from personal injury or damage to the property is also a factor to be considered. As has often been acknowledged, a more restricted approach is preferable for cases of pure economic loss. As such, the concepts of voluntary assumption of responsibility and reliance are seen as important factors to be established for purposes of fulfilling the proximity requirement. The reason for a more stringent approach taken in the claims involving pure economic loss is because such loss might lead to an indeterminate liability being imposed on a particular class of defendants, thus leading to policy issues.” [emphasis added]

In the present case, the Plaintiffs have not pleaded any act of voluntary assumption of responsibility by the Fourth Defendant, nor any actual reliance placed upon representations made by the Fourth Defendant. Instead, the Plaintiffs relied on representations made, if at all, by other parties (i.e., the First to Third Defendants), which cannot in law bind the Fourth Defendant. As held in Badan Pengurusan Bersama Tropicana Bay Residence @ Penang World City v Mutiara Metropolis Sdn Bhd (formerly known as Tropicana Ivory Sdn Bhd) & Ors [2023] MLJU 1344, there can be no duty of care where there is no contractual relationship, direct dealing, or reliance by the claimant on the defendant.

There is no nexus pleaded between the Plaintiffs and the Fourth Defendant to support a finding of proximity.

It is not enough that the Plaintiffs allege damage arising from the Fourth Defendant’s actions. They must demonstrate that the Fourth Defendant owed them a legal duty in the first place. This threshold has not been met.

The claim is, at its core, one for pure economic loss, i.e., diminution in amenity value and interference with lifestyle. Such claims are subject to stricter scrutiny. As affirmed in Pilba Trading & Agency v South East Asia Insurance Bhd & Anor [1998] 2 MLJ 53 and Steven Phoa, UDA Holdings Bhd v Kooperasi Pasaraya (M) Bhd and other appeals [2009] 1 MLJ 737, courts will generally not impose liability for pure economic loss unless the proximity and reliance requirements are clearly satisfied.

None of those elements is present here. There is no pleaded representation, reliance, or assumption of responsibility between the Plaintiffs and the Fourth Defendant. Whether the Plaintiffs’ claim in nuisance against the Fourth Defendant is obviously unsustainable and discloses no reasonable cause of action

The Plaintiffs’ claim in nuisance is principally anchored in paragraphs 47 and 49 of the Statement of Claim. The thrust of their allegations is that the Fourth Defendant, by carrying out earthworks or construction on Lot 45198, has interfered with the Plaintiffs’ peaceful environment and quality of life. However, the pleadings are vague and wholly lacking in material particulars. The Plaintiffs have failed to identify the specific acts of nuisance that occurred, what damage or interference resulted, or how such alleged interference rises to the level of an actionable nuisance in law.

As held by the Court of Appeal in Chin Moy Yen & Ors v Chai Weng Sing & Ors [2019] MLJU 681, the tort of private nuisance is only actionable where the defendant’s acts unduly interfere with the plaintiff’s enjoyment of their land. The law recognises only three categories of interference that may ground a nuisance claim: (i) encroachment onto a neighbour’s land; (ii) physical damage to the neighbour’s land or property; or (iii) substantial interference with the use and enjoyment of the neighbour’s land. The Court in Chin Moy Yen further reiterated the test of “reasonableness” and the need to evaluate the interference in light of the locality, nature of the activity, and its impact. The Court of Appeal held: “[39] On the other hand, when it comes to nuisance, the same authors at paragraph 20-01, page 1396, explained that “nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of: (a) a right belonging to him as a member of the public, when it is a public nuisance; or

his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land, when it is a private nuisance.” The “essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land.” Thus, smells, speech, noise or smoke and the like “may amount to a nuisance in fact but whether they are actionable as the tort of nuisance will depend on a variety of considerations and a balancing of conflicting interests.” [40] In the case of private nuisance, as opposed to public nuisance where the act is inter alia not warranted by law, the conduct or act of the defendant which results in the private nuisance is not necessarily unlawful. The defendant may be “doing on his own land something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land but extend to the land of his neighbour by: (1) causing an encroachment on his neighbour’s land, when it closely resembles trespass; (2) causing physical damage to his neighbour’s land or building or works or vegetation upon it; or (3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.” [41] Lord Goff of Chieveley held in Hunter v Canary Wharf Ltd [1997] AC 655, that the term “nuisance is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land.” An old case authority was relied on by Lord Goff, that is, the decision in Sturges v Bridgman (1879) 11 Ch D 852, 863, where Thesiger LJ observed that “whether something is a nuisance is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances”, that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. In the context of the present appeal, that would be in Flora Green Condominium as opposed to say, at one of the shopping complexes in the capital city such as Pavilion, Mid Valley or even OneUtama.” (emphasis added) [42] For an interference to amount to nuisance, while it may or may not be lawful or authorized and done on one’s own land or property, that act must interfere with the neighbour’s reasonable enjoyment of the neighbour’s land. The test of what is “reasonable” would “perhaps be what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society”, as opined by Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903. [43] This principle of reasonableness or reasonable user recognizes and subscribes to the “principle of give and take as between neighbouring occupiers of land, under which ‘…those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action” - as per Lord Goff of Chieveley in Cambridge Water Company v Western Counties Leather plc [1994] 2 AC 264, 299. Consequently, whether a particular activity is or is not a nuisance, often involves an assessment of the locality in which the activity concerned is carried out. [44] It is also a question of degree, when an act which is an interference must be tolerated or forebear, or is said to exceed or breach limits of reasonableness. The case of Stone v Bolton [1949] 1 All ER 337 illustrates this: “Private nuisance occurs when there is an act or omission which interferes with disturbs or annoys a person in the exercise or enjoyment of his ownership or occupation of land or some other right or interest used or enjoyed in connection with the land. Whether the interference complained of amounts to a nuisance is a question of degree. It is necessary to bear in mind that in organized society, one is expected to put up with a certain amount of discomfort and annoyance caused by the legitimate activities of one’s neighbours. Therefore, whether an action constitutes a nuisance must be determined by reference to all the surrounding circumstances of the case. The surrounding circumstances would include the time and place of its commission, the seriousness of the harm, the manner of committing it, whether it is done maliciously or in the exercise of rights and the effect of its commission. … [47] Therefore, to be successful in a claim for the tort of nuisance including a nuisance by noise, as held by the Privy Council in Hiap Lee (Cheong Leong & Sons) Brickmakers Ltd v Weng Lok Mining Co Ltd [1974] 2 MLJ 1, the plaintiffs must prove, on a balance of probabilities, that respondents’ “use which he was making of his own land might interfere with the use or enjoyment by his neighbour of his land was something which the defendant might reasonably have foreseen.” [emphasis added]

The pleadings in this case fall far short of these requirements. The Plaintiffs have neither identified which plots are affected nor pleaded any particulars of physical encroachment or actionable interference. Instead, the statements of claim consist of generalised assertions that the Plaintiffs’ quality of life and enjoyment of their properties have been “compromised.” Such broad and abstract assertions, without concrete factual support, are insufficient to sustain a claim of nuisance.

This Court further notes that the substance of the Plaintiffs’ grievance appears to lie in the perceived diminution in value of their properties, rather than any concrete interference with their use or enjoyment of the land. As held by the English Court of Appeal in Williams v Network Rail Infrastructure Ltd; Waistell v Network Rail Infrastructure Ltd [2018] 3 WLR 1105, the purpose of the tort of nuisance is not to protect the financial or investment value of land, but to protect the owner of the land of their actual use and enjoyment of it. “[48] The purpose of the tort of nuisance is not to protect the value of property as an investment or financial asset. Its purpose is to protect the owner of land (or a person entitled to exclusive possession in their use and enjoyment of the land as such as a facet of the right of ownership or right to exclusive possession…” [emphasis added]

In fact, in the case of Ranjan Paramalingam & Anor v Persatuan Penduduk Taman Bangsar Kuala Lumpur [2023] 1 MLJ 459, the Court of Appeal held that the Plaintiffs failed to define with clarity and precision the tort of nuisance, either private or public, that was allegedly committed by the respondent.

Similar to Ranjan, the Plaintiffs in the present suit also have failed to define the tort of nuisance allegedly committed by the Fourth Defendant with clarity and precision. The Plaintiffs have pleaded a series of conclusions rather than facts, leaving it to the Court to guess the substance of their complaint. This violates the fundamental rule of pleadings and renders the claim defective.

Moreover, the Fourth Defendant, as the registered proprietor of Lot 12397 and Lot 45198, is lawfully entitled to the use and enjoyment of its land, subject to statutory planning permissions. As held in ECH Development & Management Sdn Bhd v Prabagaran a/l Perumal & Anor [2020] MLJU 516 and Terra Damansara Sdn Bhd v Nandex Development Sdn Bhd [2006] 6 MLJ 24, the rights of a registered proprietor are statutorily protected under the National Land Code 1965, and cannot be curtailed without lawful justification. The Plaintiffs have not pleaded any such justification, nor have they demonstrated that the Fourth Defendant’s conduct amounts to an actionable wrong in law.

In view of the above, the Court finds that the Plaintiffs’ claims in nuisance are not only unparticularised and speculative but are also legally untenable. They do not fall within any of the recognised categories of nuisance and fail to disclose any actionable interference with the Plaintiffs’ land. Whether the Plaintiffs’ purported representative action is defective and unsustainable

Pursuant to Order 15 rule 12 of the ROC 2012, this Court finds that the Plaintiffs’ attempt to mount a representative action on behalf of the alleged 99 proprietors and owners of Selangor Polo Residency, as well as members of the Residents and Owners Association of the Selangor Polo & Equestrian Centre, is fatally flawed and unsustainable in law.

The Plaintiffs have failed to establish that the prerequisites for a representative action—namely, a common interest, a common grievance, and a relief beneficial to all—have been met. These three essential elements were clearly laid down by the Court of Appeal in Vellasamy a/l Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN 35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) v Gurbachan Singh a/l Bagawan Singh & Ors [2010] 5 MLJ 437, where it was held: “[442] … The pre-requisites for invoking O 15 r 12 of the RHC are:

there must be numerous persons with the same common interest arising out of the same contract or the same grant or claim pertaining to the same subject matter;

the reliefs sought by these numerous persons must not be personal but beneficial to the class as a whole; and

the plaintiffs and those represented in it must be members of a class having a common interest and a common grievance and the reliefs sought are beneficial to all of them.”

In the present case, the Plaintiffs’ pleadings are devoid of any material facts that establish a uniform interest or grievance shared by all 99 persons they purport to represent. Paragraphs 16 and 17 of the Statement of Claim themselves reveal the heterogeneity of interests. Some owners acquired their lots directly from the First and Second Defendants, while others purchased them on the secondary market. It is therefore implausible to assert that all 99 persons share the same contractual or representational foundation in respect of the alleged representations or duties.

The position is further undermined in respect of the claim in nuisance, where the Plaintiffs have failed to plead how each purported class member has suffered the same or similar harm. As previously held by the Court in Tatalaan Plantation Sdn Bhd & Anor v Barahim bin Andipoh & Ors [2022] MLJU 2509, bare assertions of “common interest” are insufficient. The High Court there cautioned against accepting generalised allegations without demonstrating how each represented party shares a uniform legal interest or is equally affected.

In the present suit, the alleged nuisance is vague and unparticularised, and even if substantiated, it would likely affect the individual lots differently depending on proximity, layout, and specific circumstances. There is no pleading demonstrating that the harm complained of was uniformly suffered or that the nuisance is of such a nature that it applies indiscriminately to the entire class.

Additionally, the representative action must seek relief that is beneficial to all class members. However, the reliefs sought— including injunctive orders and damages—require individualised consideration and assessment, which makes them unsuitable for a representative mechanism.

For the reasons stated above, I find that the Plaintiffs’ claim is plainly and obviously unsustainable. Accordingly, the applications by the First, Second, Third, Fourth and Fifth Defendants to strike out the Plaintiffs’ claim, as set out in Enclosures 10, 23, 36 and 40 respectively, are allowed. Costs of RM10,000.00 are awarded for each application. Dated: 30 May 2025 -sgd-JAMHIRAH ALI JUDGE High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Plaintiffs : Prathib Kumar Patmanabon & K C Cheng (Messrs S.B. Cheah & Associates) For the 1st Defendant : Mohd Yaacob Bin Bakanali & Muhammad Uzair Bin Zol Kanain (Messrs Lainah Yaacob & Zulkepli) For the 2nd & 3rd Defendants: Ling Chee Wei & Sherwin Raphael Francis (Messrs Ho, Loke & Koh) For the 4th Defendant : Khoo Guan Huat, Joshua Teng & Iffah Afrina (Messrs Skrine) For the 5th Defendant : Mohd Azlan Bin Mashod & Siti Hadijah Binti Ahmad (Messrs Azlan Hadijah & Associates)