Ng Sock Foon v Marimo Land Sdn Bhd (BA-22NCvC-299-08/2021)

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YAM LEE BING (NRIC No.: 730310-09-5012) …PLAINTIFFS [The Plaintiffs are initiating and bringing this representative action, suing in their personal capacity and as representatives of all one hundred and twenty (120) Plaintiffs/Purchasers in the housing development project known as “Residence O’Hako”/ “Residensi O’Hako”

MARIMO LAND SDN BHD (Company No.: 1002481-V)

TARO FUKAGAWA (Japanese Passport No.: MZ1275021) …DEFENDANTS GROUNDS OF JUDGMENT

This is a representative action brought by 120 Plaintiffs, who are purchasers of residential units in the housing development project known as “Residensi O’Hako”, against the First Defendant, the developer of the project, and the Second Defendant, the Managing Director of the First Defendant.

The Plaintiffs’ claims were premised on allegations of negligent and fraudulent misrepresentation, breach of statutory duty, and breach of contractual obligations under the Sale and Purchase Agreements (SPAs). They sought to impose personal liability on the Second Defendant by lifting the corporate veil.

The Plaintiffs contended that, prior to entering into the SPAs, the Defendants made representations through brochures, promotional materials, and oral statements about the housing development project, which allegedly induced the Plaintiffs to purchase their respective units.

The Defendants denied the Plaintiffs’ claims and contended that the Plaintiffs failed to plead and prove them with sufficient particularity and to establish any actionable wrongdoing.

After a full trial and having carefully considered all the evidence and submissions, this Court dismissed the Plaintiffs’ claims.

These are my grounds for the decision of this Court.

The First Defendant is a licensed housing developer under the Housing Development (Control and Licensing) Act 1966 and served as the developer of the housing project known as “Residensi O’Hako”.

The Second Defendant was, at all material times, the Managing Director of the First Defendant.

The Plaintiffs are purchasers who entered into SPAs with the First Defendant for the purchase of residential units in the project.

The Advertisement Permit and Developer’s Licence (APDL) for the project was issued on 7 October 2015.

The Certificate of Completion and Compliance (CCC) was issued on 26 August 2019, and vacant possession was delivered to the Plaintiffs by 31 October 2019.

The Plaintiffs alleged that prior to entering into the SPAs, the Defendants made representations regarding various aspects of the development project that were not fulfilled.

The Plaintiffs further alleged breaches of statutory provisions and contractual obligations, as well as unlawful collection of booking fees.

The issues to be tried, as stated in Enclosure 72, are as follows:

Whether the First and Second Defendants have committed negligent and fraudulent misrepresentation towards the Plaintiffs?

(ii) Whether the Defendants have breached the law, specifically, regulation 5 of the Housing Development (Control and Licensing) Regulations 1989 (“HDR 1989”), regulations 11(1) and 11(2) of the HDR 1989, section 258(1) of the Uniform Building By-Laws 1984, section 70B of the Street, Drainage and Building Act 1974, and section 9 of the Strata Management Act 2013? Breach Of Contract

(iii) Whether the Defendants have breached the law, specifically, clauses 14(1), 14(2), 28, the Second Schedule and implied terms of the Sale and Purchase Agreements? Further, whether clause 28 is ultra vires the Housing Development (Control and Licensing) Act 1966 (HDA 1966)? Rebates

(iv) Whether the 2nd, 6th 7th, 23rd, 43rd, 53rd, 54th, 55th, 71st, 89th, 108th, 118th and 119th Plaintiffs were promised rebates to be given upon the delivery of the vacant possession by the First Defendant, and whether the 2nd, 6th 7th, 23rd, 43rd, 53rd, 54th, 55th, 71st, 89th, 108th, 118th and 119th Plaintiffs are entitled to their respective rebates? Lifting Of The Corporate Veil

Whether the corporate veil of the First Defendant ought to be lifted and the Second Defendant is to be held liable? PARTIES

The Plaintiffs produced four (4) witnesses-

Lee Kong Boon (the 99th Plaintiff) - PW1

Nanthikesvran a/l Balakrishnan (the 23rd Plaintiff) - PW2

Victor Lee Koon Poh (the 102nd Plaintiff) – PW3

Navanithan a/l Radzakrisnan (10th Plaintiff) – PW4

The Defendants called three (3) witnesses-

Taro Fukugawa (the Second Defendant) - DW1

Azizah binti Baharom (engineer at Majlis Bandaraya

Ir. Rosli bin Mohammad Yunus (Director of the Engineering Department at Majlis Bandaraya Subang Jaya) – DW3 ANALYSIS OF EVIDENCE AND FINDINGS OF THE COURT

Based on the facts and evidence before this Court, I find that the principal issues this Court must decide are as follows:

Whether the Defendants committed negligent misrepresentation.

Whether the Defendants committed fraudulent misrepresentation.

Whether the Defendants breached statutory duties.

Whether the Defendants breached the SPAs.

Whether the corporate veil should be pierced to impose liability on the Second Defendant. WHETHER THE DEFENDANTS COMMITTED NEGLIGENT AND/OR FRAUDULENT MISREPRESENTATION

The Plaintiffs relied on section 18 of the Contracts Act 1950 and the Court of Appeal decision in Sim Thong Realty Sdn Bhd v Teh Kim Dar [2003] 1 MLRA 272 to establish the elements of misrepresentation. The essential elements that must be proven are:

There must be a representation of fact by words or conduct.

The representation must be made with the knowledge that it is false.

The representation must be made with the intention that it should be acted upon by the person to whom the representation is made.

The person to whom the representation is made must have acted on or relied upon the false statement.

The person to whom the representation is made must have sustained damage or loss.

The Plaintiffs further relied on ALW Car Workshop Sdn Bhd v AXA Affin General Insurance Bhd [2019] 4 MLJ 561 to establish the elements of fraudulent misrepresentation.

The Plaintiffs alleged that the Defendants made misrepresentations regarding the construction of a bridge and/or a new access road connecting the housing development to Subang.

The letter dated 28 August 2014, issued by Majlis Perbandaran Subang Jaya (MPSJ) (Bundle D2, Enclosure 51, page 4), clearly established that, as part of the consideration for the First Defendant’s application for a development order in respect of the housing project, the First Defendant was required to contribute to the infrastructure fund, specifically for the construction of a bridge connecting Puchong Jaya to Bukit Tandang (the Proposed Bridge). This requirement was part of the development conditions imposed by the said local authority.

The evidence further showed that the First Defendant fully complied with this condition. In accordance with the development order requirements, the First Defendant made payments in three stages, totalling RM1,595,366.50, as a contribution to the infrastructure fund for the Proposed Bridge. Proof of these payments was exhibited at pages 4 to 8 of Bundle D5, Enclosure 70.

Following these payments, MPSJ approved the First Defendant’s application for a development order, and construction of the housing project commenced around 2015. This sequence of events demonstrated that the infrastructure contribution was a mandatory precondition imposed by MPSJ, and that the First Defendant had fulfilled that obligation to obtain approval for the development.

This Court also accepted evidence that the First Defendant had continuously and diligently followed up with MPSJ regarding the status of the Proposed Bridge. Correspondence exhibited at page 8 of Bundle D2, Enclosure 51, showed that the First Defendant had made enquiries and had been informed that MPSJ was undertaking the necessary procedures for the construction of the Proposed Bridge.

The latest written response received by the First Defendant was dated 7 May 2019, shortly before vacant possession of the units was delivered to the purchasers. This demonstrated that the First Defendant had maintained ongoing communication with MPSJ and had acted on the understanding that the authority would implement the bridge project.

Importantly, the Court finds that the First Defendant’s representations to the purchasers were limited to informing them of the existence of a proposal for the bridge and access road. This was clearly reflected in the Information Kit, signed and acknowledged by the Plaintiffs, which expressly stated: “Contribution paid, which allows us to advertise about the new access road and bridge near to Taylor’s Lakeside Campus.” (Bundle D1, Enclosure 48, page 14)

This statement did not amount to a guarantee or promise by the First Defendant that the bridge would be constructed, but rather accurately reflected that the First Defendant had made the required contribution, thereby entitling it to advertise the proposed infrastructure improvement.

In assessing the significance of the term “proposed bridge,” this Court finds that the proposal was not merely speculative or illusory. The fact that MPSJ imposed the infrastructure contribution as a formal condition of development approval, together with the First Defendant’s substantial payment of RM1,595,366.50, demonstrates that the bridge project was seriously contemplated by MPSJ. A reasonable person, having regard to these facts, would understand that the project was under consideration and subject to implementation by the relevant authority, rather than a private undertaking by the First Defendant.

This Court also gave weight to the testimony of the independent witnesses from the Engineering Department of Majlis Bandaraya Subang Jaya (MBSJ), namely Pn. Azizah binti Baharom (DW2) and the Director, Ir. Rosli bin Mohammad Yunus (DW3), whose evidence confirmed the existence of the bridge proposal and the First Defendant’s infrastructure contribution.

DW3 further confirmed that the bridge proposal had not been cancelled, although the local authority had subsequently decided not to proceed with the bridge in its original form. Instead, the authority had approved an alternative access road via the Konsortium Expressway Shah Alam Selangor (KESAS) Highway, as confirmed in a letter dated 7 November 2023 (Enclosure 85, page 314). This evidence clearly established that the decision on the bridge or the alternative access road rested entirely with the local authority.

In light of the above evidence, this Court finds that the implementation, timing, and completion of the Proposed Bridge or alternative access road were entirely within the jurisdiction and control of MPSJ, not within the control of the First Defendant. The First Defendant’s role was limited to complying with the infrastructure contribution requirement imposed by the authority, which it duly fulfilled. There was no evidence that the First Defendant had any authority to construct the bridge itself or to determine when such infrastructure would be completed.

Accordingly, this Court finds that the First Defendant had complied with all obligations imposed upon it in relation to the Proposed Bridge and had made truthful and accurate representations regarding its contribution and the proposed infrastructure. The subsequent decision by MPSJ to alter or defer the bridge project did not render the First Defendant liable, as such matters fell exclusively within the purview of the relevant authority.

This Court noted that although 120 Plaintiffs alleged that they had been misled by salespersons or representatives of the First Defendant, none of the Plaintiffs called any of the alleged salespersons or representatives to give evidence in Court. None of the Plaintiffs sought a subpoena to compel the attendance of such salespersons or representatives.

Further, there was no evidence before the Court showing that the Plaintiffs had made any attempt to locate or secure the attendance of these individuals. The Defendants, therefore, invited this Court to apply section 114(g) of the Evidence Act 1950 and draw an adverse inference against the Plaintiffs for failing to call material witnesses. In the absence of testimony from the alleged salespersons or representatives, the precise representations allegedly made were neither established by direct evidence nor subjected to examination by the parties.

In claims of negligent and fraudulent misrepresentation, the representor’s state of mind at the time the representation was made is a material consideration, as it determines the nature of the misrepresentation and the applicable remedy. In this regard, this Court is guided by the Court of Appeal decision in Sim Thong Realty Sdn Bhd v Teh Kim Dar (supra), where Gopal Sri Ram JCA (as his Lordship then was) explained that the expression “misrepresentation” denotes a false pre-contractual statement that induces a contract, but does not, in itself, reflect the representor’s state of mind. The state of mind may be fraudulent, negligent, or entirely innocent, depending on the circumstances of each case. His Lordship further stated that a misrepresentation is innocent where the representor believes the assertion to be true and has no intention of deceiving the representee, and that the representor’s state of mind determines the nature of the remedy available.

This Court further noted that the Plaintiffs failed to plead the identities of the alleged salespersons or representatives in their Statement of Claim or Reply to Defence. The pleadings did not disclose the names, designations, or any identifying particulars of the individuals who allegedly made the misrepresentations. Similarly, details of the promotional materials, documents, and brochures were not pleaded but were only introduced subsequently in the bundle of documents. The pleadings also did not contain specific particulars of the different categories of alleged misrepresentations.

This omission meant that the alleged misrepresentations were not supported by specific particulars identifying the individuals responsible for making them.

The Defendants relied on sections 17, 18 and 19 of the Contracts Act 1950, and on the Federal Court decision in Ang Hiok Seng v Yim Yut Kiu [1996] 2 MLRA i, which clarified the principles governing fraud and misrepresentation and the applicable burden of proof. As the Plaintiffs’ allegations of fraudulent misrepresentation were civil in nature, the burden rested on the Plaintiffs to prove their claims on the balance of probabilities. However, the evidence adduced by the Plaintiffs did not establish the identities of the alleged salespersons or representatives who purportedly made the misrepresentations.

In particular, the testimonies of PW1, PW2, PW3 and PW4 did not clearly identify the alleged salespersons or representatives.

PW2 and PW4 expressly stated during cross-examination that they could not recall the names of the alleged salespersons or representatives. PW2 testified that he could not recall the salesperson's name and had only met two individuals to the best of his recollection. Similarly, PW4 confirmed that he could not remember the name of the representative who allegedly made the representations. In the absence of identification of the alleged salespersons, the alleged misrepresentations were not supported by specific evidence as to the individuals responsible.

Although PW1 mentioned the name “Jennie” during cross-examination, his testimony was limited to stating that she was from an agency he believed to be “Gplex.” PW1 could not recall her full details, contact information, or the specific dates of their meetings. He also testified that he no longer had her contact number and could not remember when he lost contact with her. Further, PW1 stated that he had met Jennie on approximately five occasions and had met her with his family members during the signing of the SPA, but neither Jennie nor his family members were called to testify to corroborate his allegations.

Similarly, PW3 first mentioned the name “Louise” as the alleged sales agent during cross-examination, but he could only recall her first name and could not remember further details, including the dates of their meetings.

The names “Jennie” and “Louise” were neither pleaded in the Plaintiffs’ pleadings nor mentioned in the Plaintiffs’ witness statements. No documentary evidence was produced to establish their identities or involvement, and no evidence was tendered to show that reasonable efforts had been made to locate or subpoena them. Although PW1 mentioned the agency “Gplex,” no representative of that agency was called to testify, and no documentation was produced to support that assertion.

In the absence of testimony from the alleged salespersons or representatives, and without corroborating evidence identifying the individuals who allegedly made the representations, the Plaintiffs’ allegations of misrepresentation by salespersons or representatives were neither supported by direct testimony from those individuals nor pleaded with sufficient particulars identifying the persons responsible.

This Court further refers to the Federal Court decision in Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2014] 2 MLJ 799, which emphasised that allegations of fraud and misrepresentation must be pleaded with full and specific particulars.

Fraudulent misrepresentation requires proof that the representation was made knowingly or recklessly. The Plaintiffs failed to produce sufficient evidence to establish fraudulent intent. There was no evidence that the Defendants knowingly made false representations regarding the bridge or the access road. BREACHES OF STATUTORY DUTY INCLUDING PAYMENT OF BOOKING FEE AND PAYMENT BEFORE THE ISSUANCE OF APDL IN VIOLATION OF REGULATION 5, 11(1) AND 11(2) OF THE HDR 1989, SECTION 258(1) OF THE UNIFORM BUILDING BY-LAWS 1984, SECTION 70B OF THE STREET, DRAINAGE AND BUILDING ACT 1974, AND SECTION 9 OF THE STRATA

The Plaintiffs alleged that the First Defendant had breached statutory duties under the Housing Development Act 1966 (HDA 1966), Housing Development Regulations 1989 (HDR 1989), Uniform Building By-Laws 1984, Street, Drainage and Building Act 1974, and Strata Management Act 2013 (SMA 2013). The alleged breaches included the promotion and sale of units prior to the issuance of the APDL and the collection of booking fees in breach of regulations 5 and 11(2) of the HDR 1989; the creation of separate agreements in breach of regulation 11(1) of the HDR 1989; failure to appoint qualified certified consultants and submit reports in breach of by-law 258(1) of the Uniform Building By-Laws 1984 and section 70B of the Street, Drainage and Building Act 1974; failure to comply with orders of the authority under section 9(2)(d) of the SMA 2013; and failure to resolve irregularities in the issuance of statements and bills for maintenance charges and sinking funds in breach of sections 9(2)(a), (b), (f), and (h) of the SMA 2013.

The Plaintiffs relied on the Federal Court decision in Big Man Management Sdn Bhd v Tenaga Nasional Bhd [2025] 5 MLJ 290 to support their position that a private cause of action could arise from a breach of statutory duty. In that case, the Federal Court held that Tenaga Nasional Berhad had a statutory duty under section 24 of the Electricity Supply Act 1990 to supply electricity, and that a cause of action arose when the supply was unlawfully disconnected. This Court also noted that the statutory duty was specifically imposed on the utility provider and that the breach arose from the unlawful disconnection of the electricity supply.

This Court referred to the principles laid down in X (Minors) v Bedfordshire County Council [1995] 3 WLR 152 and adopted by the Court of Appeal in Shahidan Shafie v Atlan Holdings Sdn Bhd [2017] 4 CLJ 587. The authorities established that a breach of statutory duty does not automatically give rise to a private law cause of action. A private cause of action arises only where, as a matter of statutory construction, it can be shown that the statutory duty was imposed for the protection of a limited class of persons and that Parliament intended to confer upon that class a private right of action for breach of the duty.

This Court further noted that the relevant statutes relied upon by the Plaintiffs contain specific provisions relating to offences, investigation, enforcement, and penalties. In respect of the alleged breaches under the HDR 1989, regulation 13 provides that any person who contravenes the provisions of the regulations commits an offence and shall, upon conviction, be liable to a fine or imprisonment. Similarly, sections 10, 19, 21, 22, and 23 of the HDA 1966 provide specific provisions empowering the Controller or Inspector to investigate offences and prescribe penalties and prosecution procedures, including that prosecution may be instituted only by or with the consent of the Public Prosecutor.

With respect to the alleged breaches of the Uniform Building By-Laws 1984 and the Street, Drainage and Building Act 1974, by-law 258(4) and sections 70B(15), 121, and 123 of the Street, Drainage and Building Act 1974 provide that failure to comply with the statutory requirements constitutes an offence and sets out penalties, enforcement powers, and prosecution procedures. Likewise, under the Strata Management Act 2013, sections 9(5), 125, and 136 provide that non-compliance constitutes an offence and confer powers of investigation on the Commissioner, with prosecution to be instituted only by or with the consent of the Public Prosecutor.

These statutory provisions relied upon by the Plaintiffs contain express provisions relating to investigation, enforcement, and penalties for non-compliance. Therefore, it is clear that it is not the intention of Parliament to confer upon the Plaintiffs a private right of action for breach of the statutory duty.

Further, this Court finds that the Plaintiffs adduced no evidence to establish that they had suffered damage as a result of the alleged breaches of statutory duties.

Furthermore, insofar as the alleged infringement relating to the collection of booking fees is concerned, the Plaintiffs had already been compensated through the computation of liquidated ascertained damages (LAD) calculated from the date of payment of the booking fees.

This Court noted that the brochure relied on by the Plaintiffs constituted an advertisement, and that the Plaintiffs’ contractual relationship with the First Defendant was governed by their respective SPA, the written contract entered into between the parties. The Court of Appeal in Eckhardt Marine GMBH v Sheriff Mahkamah Tinggi Malaya & Ors [2001] 1 MLRA 443 held that, as a general rule, an advertisement is not an offer but merely an invitation to treat. This principle was subsequently affirmed by the Federal Court in Lim Sze On & Ors v Syarikat Gunung Sejahtera Sdn Bhd [2009] 1 MLRA 616, which held that advertisements in newspapers, brochures, and flyers do not constitute binding offers but are invitations to treat.

This Court further noted that the Court of Appeal in Bounty Dynamics Sdn Bhd v Chow Tat Ming & Ors [2016] 1 MLRA 54 considered the effect of an exemption or exclusion clause contained in an advertisement brochure. The Court of Appeal held that where an exemption clause appears in an advertisement brochure, the representations made therein are to be read as mere “puffs” and not binding promises, and that such representations are, at most, in the nature of an invitation to treat. The Court of Appeal further held that failing to evaluate the exemption clause in the advertisement brochure amounted to an error of law. “[42] ...it was common ground that there existed an exemption clause in the advertisement brochure, no doubt in the customary small print. As such, the representations made should be read as mere ‘puffs’ and not binding promises. At most, those representations were in the nature of an invitation to treat. In this connection, the JC failed to evaluate this exemption clause leading to an error of law which invited appellate intervention. (Eckhardt Marine GMBH v. Sheriff Mahkamah Tinggi Malaya & Ors (refd)).”

In the present case, this Court finds that the brochure relied upon by the Plaintiffs contained representations in the nature of an advertisement, and the Plaintiffs’ contractual rights and obligations were governed by the terms of the SPA entered into between the Plaintiffs and the First Defendant.

The housing project, including the respective parcels and common facilities, was constructed up to the issuance of the CCC on 26 August 2019. The issuance of the CCC constituted prima facie evidence that the project was completed in accordance with the approved building plans and development order, unless the Plaintiffs proved otherwise. Upon delivery of vacant possession, the Plaintiffs inspected, or were deemed to have inspected, their respective parcels and accepted that the parcels and common facilities were constructed in accordance with the SPA and/or the approved building plans.

Further, clause 30(1) of the SPA provided purchasers with an avenue to notify the First Defendant in writing of any alleged defects or non-compliance within 24 months of the date of delivery of vacant possession. However, no evidence was adduced to show that the Plaintiffs submitted any written notice or complaint to the First Defendant within the stipulated 24- month period.

Similarly, no evidence was adduced to show that any complaint had been lodged with the relevant authorities within that period or before the commencement of this action. This Court finds that the Plaintiffs did not avail themselves of the mechanism provided under the SPA to address the alleged non-compliance.

This Court also finds that the Plaintiffs’ allegations that their parcels and common facilities were not constructed in accordance with the SPA or the approved building plans were made in general terms and lacked specific particulars. The Plaintiffs’ witnesses alleged improper workmanship, deviations from the approved plans, and failure to provide certain facilities, but the evidence adduced did not identify specific discrepancies between the completed construction and the approved plans or the SPA provisions.

With respect to the specific allegation regarding the car park, PW1 relied on a floor plan, a photograph, and certain guidelines. However, no further particulars were provided, and the photograph tendered showed only part of the alleged car park. During the proceedings, the learned counsel for the Plaintiffs conceded that the photograph did not clearly show the alleged issue or establish the alleged non-compliance. No further evidence was tendered to substantiate the allegation concerning the car park.

This Court further noted that the Plaintiffs relied on comparisons between the brochure and the completed project. The brochure expressly stated that all illustrations were artists’ impressions only. This Court noted that such illustrations were expressly described as artists’ impressions and were not representations forming part of the SPA. The Defendants tendered photographs of the completed facilities, including the multi-purpose hall, function pavilion, football game table, book corner, karaoke set, gym facilities, pool facilities, outdoor onsen, barbecue area, yoga deck, kindergarten, lobby areas, and other common facilities, as shown in Bundle D5, Enclosure 70. These photographs showed the existence of the facilities referred to.

This Court also finds that the Plaintiffs failed to plead or prove any specific discrepancies between the completed parcels and common facilities and the approved building plans. The Plaintiffs’ reliance on brochure illustrations, which expressly stated that they were artists’ impressions only, did not establish that the construction deviated from the approved plans or the SPA provisions. The Court further noted that no written complaints were submitted under clause 30(1) of the SPA within the stipulated defect liability period.

The Plaintiffs were handed vacant possession of their respective parcels without the strata titles having been issued at the material time. It was admitted that the strata titles were not delivered simultaneously with vacant possession, as the First Defendant had applied to the Jabatan Perumahan Negara for an extension of time to issue the strata titles. The First Defendant's application was approved by a letter dated 18 September 2019 from the Housing Controller of the Kementerian Perumahan dan Kerajaan Tempatan (KPKT), as exhibited at page 201 of Bundle D4, Enclosure 69.

The approval granted the First Defendant a seven-month extension from the date of issuance of the CCC on 26 August 2019, extending the time to issue the strata titles until 26 March 2020.

This Court finds that the letter issued by the Housing Controller demonstrated that the extension of time was granted pursuant to clause 28 of the SPA and that the First Defendant had applied for and obtained approval in accordance with the procedures of the relevant authority. This Court further noted that the strata titles of the Plaintiffs’ parcels were subsequently issued by the appropriate authority within the time permitted by the relevant laws and the extension.

Initially, the Plaintiffs sought a declaration that clause 28 of the SPA was ultra vires the HAD 1966. However, during oral submissions before this Court, learned counsel for the Plaintiffs withdrew that contention.

PW2’s witness statement records that he was promised a rebate in the form of 5% cashback on renovation or household items upon selecting a particular unit type, and that the promise was communicated orally by a salesperson from the First Defendant at the O’Hako sales gallery in IOI Boulevard. PW2 further stated that he did not receive the rebate as allegedly promised. However, PW2 also stated that he was unable to recall or identify the name of the salesperson who allegedly made the representation.

This Court further noted that PW2 referred to an email dated 23 October 2019 (at pages 183–184 of Bundle D3, Enclosure 68) in support of his claim. However, the email concerned a discount on interest and did not mention any rebate as alleged by PW2.

This Court also finds that no other witnesses were called and that no other documentary evidence was tendered by the Plaintiffs to establish the alleged rebate or to corroborate PW2’s claim.

The Plaintiffs alleged that there was a separate agreement regarding the allocation of car parks. However, the document relied upon by the Plaintiffs was an annexure to the SPA and was to be read and construed as part of the SPA. The annexure was created pursuant to clause 15 of the SPA, which provided for additional works, and it recorded that the First Defendant, at the Plaintiffs' request, agreed to allocate car parks and provide certain additional furnishings, fixtures, and appliances. A copy of the annexure was exhibited in Bundle C3, Enclosure 66.

This Court further noted that the annexure was physically attached to the SPA, bore the title “Annexure,” and expressly stated that it was created pursuant to clause 15 of the SPA. It was not separately stamped, did not require separate execution or signatures, and bore only the parties’ continuous initials at the bottom of each page. The annexure was bound together with the SPA and formed part of the contractual documentation.

This Court also noted the evidence given by the Plaintiffs’ witnesses during cross-examination. PW1 agreed that the annexure was part of the SPA. Similarly, PW4 agreed that the annexure referred to was part of the SPA. Although PW2 and PW3 stated they were unsure whether the annexure was part of the SPA, they confirmed that they had signed and initialled the SPA, indicating their acknowledgment of the documents forming part of the SPA.

Therefore, this Court finds that the annexure recorded the allocation of car parks and additional works under clause 15 of the SPA and was attached to and formed part of the SPA documentation.

The First Defendant was incorporated to develop the housing project, and vacant possession of the Plaintiffs’ parcels and common facilities was delivered or deemed delivered on 31 October 2019. The First Defendant was also incorporated as a separate legal entity to undertake the project’s development. The Plaintiffs’ claims sought to lift the corporate veil of the First Defendant and to impose liability on the Second Defendant.

This Court referred to the applicable legal principles governing the lifting of the corporate veil, as set out by the Federal Court in Gurbachan Singh Bagawan Singh & Ors v Vellasamy Pennusamy & Ors [2015] 1 MLRA 107. The Federal Court affirmed that the doctrine of corporate personality recognises a company as a separate legal entity distinct from its shareholders and directors. The Federal Court held that the corporate veil may be lifted only in limited circumstances, including where the company was established for fraudulent purposes, to avoid an existing legal obligation, or where the corporate personality was used as a façade to conceal wrongdoing. The Federal Court further referred to the principles originating from Salomon v A Salomon & Co Ltd [1897] AC 22, which established that once incorporated, a company must be treated as an independent legal person with its own rights and liabilities.

The Federal Court in Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors [2021] 4 MLRA 211 adopted the principles set out in Prest v Prest and Others [2013] 4 All ER 673, recognised that the corporate veil may be lifted in limited circumstances where the corporate personality is abused for relevant wrongdoing, including where a company is interposed to conceal the identity of the real actors (concealment principle) or where a company is used to evade or frustrate the enforcement of an existing legal obligation (evasion principle). The Federal Court further affirmed that the starting point remains the doctrine of separate legal personality, and that lifting the corporate veil is justified only where such special circumstances are established.

The Plaintiffs’ allegations of negligent and/or fraudulent misrepresentation formed the basis of their attempt to lift the corporate veil of the First Defendant and to impose liability on the Second Defendant.

There was no evidence before this Court to show that the First Defendant was incorporated with the intention of defrauding the purchasers, nor was there evidence to establish that the Defendants committed fraud in connection with the sale of the property.

In light of this Court's findings on the issues of negligent and/or fraudulent misrepresentation, this Court finds that lifting the corporate veil of the First Defendant was unwarranted, and the First Defendant's separate legal personality remained intact.

Therefore, for the reasons stated above, this Court finds that the Plaintiffs have failed to prove their claims against the Defendants on the balance of probabilities. Accordingly, the Plaintiffs’ claims are dismissed. This Court further orders that costs be awarded in favour of the Defendants, with each Plaintiff to pay costs of RM1,000.00, amounting to a total of RM120,000.00. Dated 7 MAY 2026 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM To the parties’ solicitors: For the Plaintiff : Parvinder Kaur with Sophia Au (Messrs Lui & Bhullar) For the Defendant : En. Idris Seydalavi (Messrs Idris & Jannah)