1. ) Ng Kong Onn v Platinum Eminent Sdn Bhd (Company No.: 1081467-W) (BA-22NCvC-106-03/2023)

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HAIZARUDIN BIN AMIN NORDIN @ AMIR NORDIN

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NOR FADILAH BINTI ISMAIL … PLAINTIFFS AND PLATINUM EMINENT SDN BHD (COMPANY NO.: 1081467-W) … DEFENDANT GROUNDS OF JUDGMENT 3 GROUNDS OF JUDGMENT [Enclosure 9] Introduction [1] Although the Courts are very reluctant to summarily strike out an action under O. 18 r. 19 on grounds relating to the substantive merits of the claims and disputes in the action, the Courts do not have reluctance in summarily striking out the action on the grounds which do not relate to the substantive merits of the action. Such grounds which do not relate to the substantive merits of the action and upon which the Court are ready to summarily strike out an action include, but are not necessarily limited to, lack of locus standi, want of jurisdiction, expiry of limitation period, premature action, wrong party cited as the defendant, and res judicata. [2] The main issue in the Defendant’s Enclosure 9 application here is whether the Plaintiffs’ action here is frivolous or abuse of process of court on the ground that it constitutes duplicity or multiplicity with another pending court suit or that it is premature. Legal principles on duplicity of proceedings [3] The rule against multiplicity of proceedings is contained in Courts of Judicature Act 1964, specifically the Schedule thereto, at paragraph 11 which gives the Court the discretion to dismiss or stay proceeding that constitutes multiplicity of proceedings. Multiplicity in this context also include duplicity of proceedings. [4] Cotton LJ in Searle v. Choat [1884] 25 Ch D 723 at p 727, made reference to the English legislation and said that the whole tenor of 4 the Judicature Acts was to require that all proceedings, as far as possible, are to be taken in one action. [5] Similarly in the Court of Appeal case of Penang Port Commission v. Kanawagi A/L Sepurumaniam [2009] 1 CLJ 169, which is squarely on point to the case at hand wherein it was held at page 179 that "The plaintiff is certainly not at liberty to file his originating summons in defiance of the order of CA Coram 1, particularly when the issue in the plaintiff's originating summons and the triable issue in the plaintiff's writ action are identical. To do so would clearly constitute multiplicity of actions." and at page 180 that “This multiplicity of actions is plainly an abuse of the process of the court, which comes within the purview of O. 18, r. 19(1)(d) and must be treated as such...". Legal principles regarding premature action [6] In the Supreme Court Case of Lai Kim Loi v. Dato' Lai Fook Kim & Anor [1989] 2 MLJ 290 the ownership of shares has already been challenged in another High Court suit filed earlier and the dispute was still pending. The plaintiff in the second suit, who was the first defendant in the first suit, file the second suit claiming the benefits (the dividends) arising from the same shares. The Supreme Court held that the second suit was clearly a premature proceeding and an abuse of the process of court. [7] The court does not encourage fragmentation of litigation between the same or similar parties over the same subject matter. Where the final decision in a judicial review application to challenge the validity of the Minister’s grant of extension of time under the Covid-19 Act is 5 still pending before the High Court and has not been made by the High Court, it is premature for the purchasers to commence another action to claim for liquidated damages premised upon the assumption that the Minister’s decision of extension of time is invalid. See also the Court of Appeal’s decision in Dr Mahmud Mohd Nor & Anor v. Dr Mohd Ismail Abdul Hamid [2023] 1 LNS 869 paragraphs [27] to [36] where premature action and/or fragmentation of judicial process was not allowed. [8] A suit which is filed or commenced at a time when it is premature to seek the reliefs claimed in the suit would be dismissed or struck out: see Court of Appeal’s decision in Boonrich Sdn Bhd v. The Chief Conservator of Forests, Sabah Forestry Department [2023] 6 CLJ 180 para [27]. Whether this suit is premature or a duplication with the other pending judicial review [9] In the circumstances of the present case, the Minister has granted extensions of time of 442 days to the Defendant-developer under the Covid-19 Act. [10] If the Minister’s extensions are taken into account, the Defendant-developer would have delivered the vacant possession and completed the common facilities within the contractual time. In other words, until and unless that Minister’s decision on grant of extension of time is nullified or set aside, the Plaintiffs here would have no valid basis to claim for any liquidated damages for any alleged delay. 6 [11] On or about 27.7.2022 the Plaintiffs commenced a judicial review application against the Defendant and the Ministry of Housing and Local Government vide Kuala Lumpur Judicial Review Application No. WA-25-434-07/2022. [Exhibit “NKO-1” and para 13 of Plaintiffs’ Affidavit in Reply (Enclosure 13)]. This KL judicial review application seeks to challenge the legality or validity of the Minister’s decision in granting extension of 442 days to the Defendant-developer here. [12] The Judicial Review Application is still pending and has not been decided by the KL High Court yet. [13] In our present suit filed on 16.3.2023, the Plaintiffs are claiming for liquidated damages premised on the absence of any valid extension of time by the Minister [Enclosures 1 and 2]. There is no prayer in the present suit to seek a declaration or order that the Minister’s extensions of time under the Covid-19 Act were null or invalid. [14] In the circumstances, this Court finds that the present suit is premature in that it includes claims for liquidated damages premised on the absence of any valid extension of time by the Minister at a time when the very issue on validity of the Minister’s extensions have not been decided by the Court in the other KL Judicial Review Application. The material facts of the present case fall within the principle against premature proceeding as decided in Lai Kim Loi v. Dato' Lai Fook Kim & Anor (Supreme Court) and Dr Mahmud Mohd Nor & Anor v. Dr Mohd Ismail Abdul Hamid (Court of Appeal). 7 [15] This Court also find that insofar as the present suit for liquidated damages seeks to impliedly challenge the validity of the Minister’s extensions, there is duplicity between the present suit and the KL Judicial Review Application. See paragraph 11 of the Schedule to the Courts of Judicature Act 1964; Penang Port Commission v. Kanawagi A/L Sepurumaniam (Court of Appeal). What order should this Court make in view of premature and duplicity [16] From the past decided authorities of the Court of Appeal, it is clear that where a suit is commenced prematurely, the premature suit is to be dismissed or struck out, while leaving the plaintiff to wait for the right time to commence a fresh suit in future. [17] In considering and deciding this matter at hand in connection with duplicity of proceedings, this Court is aware that the Schedule to the Courts of Judicature Act read with the Rules of Court 2021 give the Court the discretion whether to order a stay of action or to strike out an action on ground of duplicity of proceedings. Having considered the pros and cons of the two alternatives for the exercise of discretion, this Court is in favour of striking out this Shah Alam Suit on ground of duplicity of proceedings with clarification that such striking out does not create any res judicata to the pre-existing suit in KL Judicial Review Application, instead of granting a stay of this Shah Alam Suit pending the trial and disposal of the KL Judicial Review Application. Among others, the reasons for such preference include: 8

Staying an action in Shah Alam court entails keeping periodic updates in the Court's CMS system with periodic case management sessions to monitor and update on the progress of the KL Judicial Review Application, thereby involving utilisation of the court's times and resources to do the same and also the parties' time and resources in attending the case management sessions.

There exists in Malaysia several data collection systems which promptly gather and collect updated data and information concerning companies and businesses including filing of court suits, and these include the banks' data system made available to all local banks, CTOS system made available to the public on subscription or upon fee payment. When a court suit has been filed in the court, the data on such court suit is very promptly captured by and recorded in the data collection systems and thereby brought to the attention of the banks and the business community. When a suit has been stayed pending the trial of another suit, the stayed suit is likely to be recorded as pending in such data systems, whereas a suit which has been struck out is likely to be recorded as struck out and terminated in such data system. Banks and businessmen are likely to view or react negatively to companies with pending suits against the companies. As such, having a stayed action hanging over the heads of a defendant can have a negative impact upon his credit standing among the business community. 9

Whether this Shah Alam Suit is stayed pending trial of KL Judicial Review Application or is struck out with clarificatory terms, the effect upon the Plaintiffs is the same. As the cause of action for liquidated damages is deemed to have accrued on the date of delivery of vacant possession in year 2022, there is no risk of expiry of limitation period before the final decision of the High Court in KL Judicial Review Application. [18] In light of the above, this Court has come to the conclusion that in the interest of justice and in the interest of the overall system of administration of justice it is preferable that this Shah Alam Suit 6 be struck out with clarificatory terms rather than be stayed pending the trial and final disposal of the KL Judicial Review Application. Needless to say, the Plaintiffs are at liberty to file their suit for liquidated damages in the event they succeed in invalidating the Minister’s extensions of time in the KL Judicial Review Application. Conclusion [19] In conclusion this Court held that:

The Plaintiffs’ Writ and Statement of Claim was struck out on the following terms;

This Order shall not constitute res judicata or issue estoppel in the Judicial Review Application No. WA-25-434-07/2022 in the High Court of Malaya at Kuala Lumpur or any subsequent suit which may be filed following the decision in the said suit; 10

If the Plaintiff succeeds in obtaining the court order to set aside and invalidate the decisions of the Minister of Housing and Local Government on the extensions of time granted under the Covid-19 Act and subsidiary legislations thereunder, the Plaintiff can file a fresh suit to claim for liquidated damages against the Defendant;

As a consequence of order (a) above, the Plaintiffs’ application for summary judgment in Enclosure 8 has become academic; and

Costs of action and application in the sum of RM10,000, subject to allocatur, shall be paid by the Plaintiffs to the Defendant. Dated : 6th October 2023 Signed …................................................................ TEE GEOK HOCK JUDGE HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors:

For the Plaintiff : Wong Renn Xin Messrs K L Wong (Kuala Lumpur)

For the Defendant : Hiew Yee Peng Messrs K.F. Ee & Co. (Kuala Lumpur)