1. ) Newara Sdn. Bhd. v Johor Land Berhad (JA-22NCvC-48-04/2022)

NEWARA SDN.BHD.

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YESS COMMERCIAL DEVELOPMENT SDN. BHD.

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LEONG CHIN LING ... PLAINTIF-PLAINTIF DAN JOHOR LAND BERHAD (NO. SYARIKAT: 12379-K) … DEFENDAN GROUNDS OF JUDGMENT (ENCLOSURE 30) 17/06/2025 12:59:17 JA-22NCvC-48-04/2022 Kand. 52 Introduction [1] The plaintiffs’ action against the defendant herein is primarily for a declaration that certain agreed terms established through exchange of letters between both parties’ solicitors in February 2021 (the “agreed terms”) are valid, binding and enforceable against each of them and as a consequential thereof an order for specific performance for the defendant to fulfill their obligations according to the said agreed terms. [2] On 28.12.2023, the plaintiffs and the defendant had reached an amicable settlement where by way of a Consent Order (“CO”), it was recorded among others that the plaintiffs agreed to make an application for an extension of the lease tenure of their lands to the Land Office within 2 months from the date of the CO and such application shall only be submitted through a firm of solicitors appointed by the defendant namely Messrs Rosli Kamaruddin & Co (“RKC”). [3] Due to certain issues which will be dealt with later, the application could not be made by RKC within the stipulated time. [4] Hence, before this Court now is an application by the defendant vide Enclosure 30 to vary the CO for the purpose of enlarging the time for the making of the said application and to appoint Messrs Ikbal Salam & Associates (“IKSA”) as new solicitors to replace RKC for the same tasks. [5] On 30.4.2024, this Court had allowed Enclosure 30 with costs of RM10,000.00 to be paid by the defendant to the plaintiffs. The extension of time granted by this Court however was only for a period of 3 months from the date of the order instead of 18 months as applied by the defendant. In relation to the plaintiffs’ application to the Land Office, IKSA appointed by the defendant will now be the solicitors in charge for the said application. [6] Dissatisfied with the said decision, the plaintiffs have filed their appeals to the Court of Appeal. [7] The followings are the Grounds of Judgment for the said decision. The factual background [8] The plaintiffs and another person known as “Pau’ are the purchasers of 8 units of 2-storey shop office sold by the Defendant as the vendor and developer of the shop offices project (“subject properties”). To that end, parties have entered into various Sales and Purchase Agreements all dated on 14.12.2013. [9] The defendant's Sales Proforma relied on by the plaintiffs for the abovesaid transaction stated that the leasehold period of the subject properties is for 99 years. [10] However, when individual titles for the subject properties were issued by the Land Office somewhere in 2014, the plaintiffs discovered that the actual remaining lease period is only for 83 years 11 months. At the time of delivery of vacant possession in 2016, the remaining lease period for the subject properties was only for 81 years 10 months. [11] As a consequence, the plaintiffs and ‘Pau’ took out an action against the defendant claiming damages for misrepresentation at the Johor Bahru High Court registered as JA-22NCvC-214-12/2019 ("Suit 214") and another action against Johor Corporation (the defendant’s parent company) registered as JA-22NCvC-170-11/2020 (“Suit 170”). [12] The parties through their solicitors subsequently negotiated settlements which led to the agreed terms as aforementioned. Due to the agreed terms, Suit 214 and Suit 170 were technically adjourned to enable the parties to take steps as per the agreed terms in order to achieve global settlement for both suits. [13] It was later alleged by the plaintiffs that the defendant had tried to change the agreed terms to the plaintiffs’ detriment. Hence the filing of the instant action which ended with the CO dated 28.12.2023. It must be mentioned that at the time of filing of the instant action, Suit 214 and Suit 170 are still pending but subsequently withdrawn in accordance with terms stipulated in the CO. Enclosure 30 [14] The reliefs prayed for by the defendant in Enclosure 30 are briefly as follows:

that the original 2-months period as stated in the CO for the purpose of submitting the plaintiffs’ application to the Land Office be extended to 18 months from the date of the order for

that Messrs lkbal Salam & Associates or any other firm selected by the defendant be named as the new solicitors to replace RKC for the same tasks;

that the plaintiffs do not appoint any other solicitors in respect of their applications to the Land Office;

that the plaintiffs do obtain a letter of no objection to their applications and other documents required by the Land Office from their respective financiers;

that the plaintiffs do issue and sign documents as requested by Messrs Ikbal Salam & Associates for the purpose of their applications to the Land Office. [15] The primary reason advanced by the defendant for the need of such extension of time is that after the CO was recorded in court, RKC had communicated to the plaintiffs’ solicitors relaying their objection over their appointment as solicitors to handle the plaintiffs’ application to the Land Office as stated in the CO. What actually happened between the defendant and RKC is only between them to know. [16] However, due to the said issue, the defendant had to find and engage other solicitors to substitute RKC which had caused delay and had taken a toll on the 2-months period in the CO for the said application to be made to the Land Office. [17] In resisting Enclosure 30, the plaintiffs averred that the delay that had consumed much of the 2-months’ time frame for the said application be made to the Land Office were due to the defendant’s solicitors being indolent in approving the draft CO for 20 days and the defendant’s appointed solicitors objecting to their appointment and involvement in the said application as stated in the CO. [18] Further, it was also contended by the plaintiffs that Enclosure 30 is in effect an application to amend the CO which the defendants are not allowed to do so unilaterally without the consent by the plaintiffs. Since the plaintiffs now do not consent to such enlargement of time, Enclosure 30 ought to be dismissed. [19] Whereas the plaintiffs on the other hand averred that the extension of time applied for in Enclosure 30 is not an amendment but an application to extend time under O.42, r.6 read together with O.45, r.6 of the Rules of Court 2012 (“RHC”) to enable the defendant to carry out the same obligation as stated in the CO. Analysis and decision on Lampiran 30 [20] At the outset, it is necessary to set out the salient terms in the CO dated 22.12.2023 where briefly they are as follows: -

that the Plaintiffs (except the 8th and 9th Plaintiffs) will apply to the Land Office for an extension of the lease tenure of their properties (referring to subject properties) to a 99 years lease and will liaise with and render their assistance to the Land Office whenever necessary;

that the plaintiffs (except the 8th and 9th Plaintiffs) will appoint Messrs Rosli Kamaruddin & Co. as solicitors for the purpose of making the said application to the Land Office where all payment to the said solicitors’ firm shall be borne solely by the defendant;

that the said application shall be made by the said solicitors to the Land Office within two (2) months from the date of the CO and the Defendant must ensure compliance by the said solicitors of the aforesaid time line;

that the Defendant shall bear all processing fees and premium incurred against the Plaintiffs (except the 8th and 9th Plaintiffs) for the purpose of the extension of the lease period to 99 years;

that the 8th and 9th Plaintiffs shall withdraw the instant action against the Defendant with no liberty to file a fresh and with no as to costs;

that the Plaintiffs including another person known as Pau Geok Tor shall forthwith, by way of filing of Notice of Discontinuance duly executed by the parties, withdraw Suit 214, Suit 170 and another appeal at the Court of Appeal registered as No: J-02(1M)(NCvC)-1268-07/2022 against the Defendant and Perbadanan Kerjasama Johor with no liberty to file a fresh and with no order as to costs; and

in the event the application to extend the lease period is not successful, the Defendant will pay each Plaintiffs (except 8th and 9th Plaintiff) a sum of RM300,000.00 as full and final settlement under the respective sale and purchase agreements of the subject properties executed between the parties. [21] Now, O.42, r.6 RHC provides that: - “ORDER 42 JUDGMENT AND ORDERS

Judgment requiring act to be done: Time for doing it (O. 42, r.6)

Subject to paragraph (2), a judgment or order which requires a person to do an act shall specify the time after service of the judgment or order, or some other time, within which the act is to be done.

Where the act which any person is required by any judgment or order to do is to pay money to some other person, give possession of any immovable property or deliver any movable property, a time within which the act is to be done need not be specified in the judgment or order in accordance with paragraph (1), but the foregoing provision shall not affect the power of the Court to specify such a time and to adjudge or order accordingly.”. [22] Whereas, O.45, r.6 RHC provides: - “ORDER 45 ENFORCEMENT OF JUDGMENT AND ORDERS Judgment or order requiring act to be done: Order fixing time for doing it (O. 45, r. 6)

6.

Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, without prejudice to Order 3, rule 5, have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time as may be specified therein.

Where, notwithstanding Order 42, rule 6(1), or by reason of Order 42, rule 6(2), a judgment or order requiring a person to do an act does not specify a time within which the act is to be done the Court shall have power subsequently to make an order requiring the act to be done within such time after service of that order, or such other time, as may be specified therein.

An application for an order under this rule shall be made by notice of application and such notice of application shall, notwithstanding anything in Order 62, rule 10, be served on the person required to do the act in question.” [23] In my view, the defendant’s reliance on O.42, r.6 and O.45, r.6 RHC for their application in Enclosure 30 is in order. The wordings in O.45, r.6(2) could not be anything clearer than to confer a discretionary power to the Court to grant an extension of time for certain acts that are supposed to be done at a certain time in a judgment to be varied to another time. [24] It is also my considered view that such power to extend time would also include a judgment which was obtained by consent as in the CO herein. [25] Being discretionary in nature, the manner in which such power to be exercised is of upmost importance. [26] In the present application, the first complained by the plaintiffs is that the defendant’s solicitors were indolent in approving the draft. To that end, the 20 days purported delay was calculated by the plaintiffs from the date of the CO itself, i.e. 28.12.2023. In my view, such calculations, although not wrong, cannot per se be used by the plaintiffs to impute undue delay on the part of the defendant for the purpose of enforcing the 2-months’s time frame in the CO. [27] I said this because the procedural framework for the workings and filings of a draft judgement as prescribed in the RHC particularly under O.42, r.10(4) gives parties 7 days to draw up an order and O.42, r.8(3) & (4) allows parties with disputes over the draft order to refer the disputes to the Registrar or to the Judge respectively for it to be settled. For ease of reference, both r.8 and r.10 of O.42 are reproduced below in full as follows: “Preparation of judgment or order (O. 42, r. 8)

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Where the party in whose favour a judgment or order is given or made is represented by a solicitor, a copy of the draft shall be submitted for approval to the solicitor, if any, of the other party who shall within two days of the receipt thereof, or within such extended or abridged time as may in any case be allowed by the Registrar, return such copy with his signed consent or any required amendments thereto.

When the solicitor omits to return the copy of the draft within the time prescribed, he shall be deemed to have consented to the terms thereof.

In any case where the solicitors concerned are unable to agree upon the draft, any one of them may obtain an appointment before the Registrar, of which notice shall be given to the other, to settle the terms of the judgment or order.

Every judgment or order shall be settled by the Registrar, but in the case of a judgment or order made by a Judge or Magistrate, any party may require the matter in dispute to be referred to the Judge or Magistrate for his determination.

Where the other party has no solicitor, the draft shall be submitted to the Registrar. Drawing up and entry of judgment and order (O. 42, r. 10)

10.

Where a judgment given in a cause or matter is presented for entry in accordance with this rule at the Registry, it shall be entered by an officer of the Registry in the book kept for the purpose.

The party seeking to have such a judgment entered shall draw up the judgment and present it to the proper officer of the Registry for entry.

On entering any such judgment, the proper officer shall file the judgment and return a duplicate thereof to the party who presented it for entry.

Every order required to be drawn up shall be drawn up by the party in whose favour the order has been made and if that party fails to draw up the order within seven days after it is made, any other party affected by the order may draw it up.

The order referred to in paragraph (4) shall, when drawn up, be produced at the Registry, together with a copy thereof, and when passed by the proper officer, the order, sealed with the seal of the Court, shall be returned to the party producing it and the copy shall be lodged in the Registry.”. [28] Now, from the affidavits filed for the purpose of Enclosure 30, it would appear that the plaintiffs through their solicitors had partook in a series of communication with the defendant’ solicitor as well as the defendant’s appointed solicitors be it RKC or IKSA relating to some disputes over the draft CO. Certainly, the amount of time taken for ironing out such dispute may have caused delay and such delay in my view cannot be attributed solely to the defendant or the defendant’s solicitors. [29] Furthermore, when the plaintiffs did not refer such dispute to the Registrar as per the aforementioned prescribed framework, it is totally unjust for the Court to just ignore the disputes over the draft CO which are certainly relevant for the Court’s judicious consideration whether to extend time or otherwise. [30] In addition, it is trite that a consent judgment or order is said to be akin to a contract between parties. However, when RKC objected to their said appointment as solicitors, would it not tantamount to a frustration of the contract? I am of the view and I so hold that by analogy, it does. [31] In view of the above, I am inclined to conclude that the materials presented before this Court are sufficient and justified for me to exercise my discretion to extend the time under O.45, r.6 RHC for the plaintiffs to make their application through IKSA being the new solicitors appointed by the defendant to carry out the tasks entrusted earlier to RKC. I am also of the view that this is a fit and proper case for me to exercise the Court’s inherent power under O.92, r.4 of RHC to prevent injustice to any of the parties or to prevent abuse of process by any party to the detriment of the other. [32] Having said that however, I do not see any justification for the 18 months extension of time be granted to the defendant as applied in Enclosure 30. In fact, to grant so would be contrary to reasons and would be prejudicial to the plaintiffs on all counts based on the facts and circumstances in the instant matter. In my view, since the evidence has shown that the documents need to be prepared would also involve 3rd party namely the financiers, thus 3 months from the date of the order would be the most appropriate and maximum time to be granted for the purpose of submitting the said application to the Land Office. That too, does not come cheap. In all fairness, the defendant must bear the costs for its application in Enclosure 30. Conclusion [33] Based on the foregoing reasons, this Court allows Enclosure 30 with costs of RM10,000.00 to be paid by the defendant to the plaintiffs, subject to payment of allocator fees. Dated: 16th JUNE 2025 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judicial Commissioner High Court, Johor Bahru Parties: R Paramanandan Messrs Clarence Edwin Law Offices Solicitors for the Plaintiffs No. 112, Jalan Keris, Taman Sri Tebrau, 80050 Johor Bahru, Johor Darul Takzim Rohana binti Ngah & Zainursyazwani binti Zakaria Messrs Abdul Raman Saad & Associates Solicitor for the Respondent No. 3, Jalan Permas 10/3, Bandar Baru Permas Jaya, 81750 Masai, Johor Darul Takzim. Legislation referred to:

O.42, r.8 & r.10 Rules of Court 2012 2. O.45, r.6 Rules of Court 2012 3. O.92, r.4 Rules of Court 2012