Nur Fatehah Binti Roslee v Melima Assets Sdn Bhd (CA-22NCvC-40-11/2024)

MUHAMMAD MUKTASIM BIN BAHARUDIN (NO. K/P: 920320-06-5607) [Joint Owner of Unit No. 060]

SITI SARAH BINTI MAT ALI (NO. K/P: 860815-38-5504) [Owner of Unit No. 046]

NORAZIRA BINTI NOR HASHIM (NO. K/P: 880404-06-5846) [Owner of Unit No. 055]

ERDAYANI BINTI AMIR MOHAMMAD (NO. K/P: 920120-06-5688) [Owner of Unit No. 142]

ALIAS BIN AHMAD (NO. K/P: 510307-08-6153) [Joint Owner of Unit No. 140] GROUNDS OF JUDGMENT Introduction [1] This was the Defendant's application vide Enclosure 53 seeking amongst others, orders that the present action, Civil Suit No. CA- 22NCvC-40-11/2024 ("Suit 40"), be transferred to the Court hearing Civil Suit No. CA-23NCvC-8-10/2022 ("Suit 8") and that both actions be heard together. [2] Having considered the affidavits filed by the parties, the written and oral submissions advanced before this Court, as well as the submissions of the parties in Suit 8 whom this Court specifically invited to be heard due to the direct effect that the present application would have upon their proceedings, this Court dismissed the application with costs. [3] For completeness, it ought to be recorded that although Jalur Cahaya Sdn Bhd ("Jalur Cahaya") and CWM Group Sdn Bhd ("CWM") are not parties to Suit 40, this Court specifically invited them to be heard because the orders sought in Enclosure 53 would directly affect the conduct, management and progress of Suit 8 in which they are parties. Both Jalur Cahaya and CWM opposed the application. Their objections were principally grounded on prejudice, procedural delay, the absence of common issues of sufficient significance, the differing causes of action and legal issues in both suits and the advanced stage of Suit 8. [4] These are the grounds for the decision. Brief Background [5] Suit 40 was commenced by the Plaintiffs, who are purchasers and residents of a residential development known as Aman Plus, Taman Kuantan Jaya, against the Defendant, Melima Assets Sdn Bhd ("MASB"), the developer of the said development. [6] In Suit 40, the Plaintiffs allege that their respective properties suffer from various defects, including settlement-related damage, structural and non-structural cracking, ground movement and associated defects. The Plaintiffs contend that MASB is liable by reason of breaches of obligations arising under the Sale and Purchase Agreements executed pursuant to the Housing Development (Control and Licensing) Act 1966, breaches of statutory duties and breaches of duties owed by a housing developer to purchasers. [7] MASB denies liability. In its Defence, MASB contends, amongst other things, that the damage complained of by the Plaintiffs was not caused by any act or omission on its part but was instead attributable to excavation, dewatering and related construction activities carried out in connection with a sewerage treatment plant project situated on adjoining land. [8] The latter allegation forms the basis of Suit 8, which was commenced earlier in 2022 by MASB together with Global Seasons Construction Sdn Bhd and Costa Oriental Builders Sdn Bhd against Jalur Cahaya Sdn Bhd and CWM Group Sdn Bhd. [9] In Suit 8, the plaintiffs therein allege that excavation and dewatering works carried out in connection with the construction of a regional sewerage treatment plant caused severe and intolerable ground settlement within the Aman Plus development, resulting in structural damage to houses, infrastructure and related facilities. The claims in Suit 8 are principally founded upon the torts of negligence, nuisance and loss of support. [10] MASB's present application is premised on the contention that both suits involve substantially overlapping factual issues concerning the cause of the alleged settlement and damage suffered within Aman Plus. MASB therefore contends that Suit 40 ought to be transferred to the Court hearing Suit 8 and that both actions ought thereafter to be heard together. Finding and Analysis Whether the Present Application Was Truly One for Consolidation [11] At the outset, the Defendant submitted that the present application ought not to be characterised as a consolidation application. According to the Defendant, what was sought was merely a transfer of Suit 40 to the Court hearing Suit 8, followed by a joint hearing of both actions. [12] This Court accepts that a distinction exists between a formal consolidation of proceedings and an order directing separate actions to be heard together. [13] A consolidation ordinarily results in the merging of proceedings for the purposes of trial and determination. A joint hearing, on the other hand, preserves the separate identity of each action whilst allowing common evidence or issues to be heard concurrently. [14] Accordingly, authorities dealing with the procedural consequences of formal consolidation, including cases concerning the impropriety of a party appearing simultaneously as both plaintiff and defendant in a consolidated action, may not apply with full force to the present application. [15] Nevertheless, the distinction does not materially alter the principles governing the exercise of the Court's discretion. [16] Whether the relief sought is framed as consolidation, transfer coupled with a joint hearing or a combined trial, the Court must still consider substantially the same factors, namely:- i. whether there exist common questions of law or fact of sufficient significance; ii. whether the actions arise from the same transaction or series of transactions; iii. whether a joint hearing would facilitate the just, expeditious and economical disposal of the proceedings; iv. whether separate hearings would create a real risk of inconsistent findings; and v. whether any party would suffer prejudice. [17] These considerations are reflected in Order 4 rule 1 of the Rules of Court 2012 and are consistent with the overriding objectives embodied in Orders 1A and 1B. [18] Having considered the matter in that light, this Court was not satisfied that the Defendant had established sufficient grounds to warrant the exercise of the Court's discretion. Different Causes of Action and Distinct Legal Issues [19] The principal difficulty confronting the Defendant's application lies in the fundamentally different nature of the two proceedings. [20] Suit 40 concerns claims brought by purchasers and residents against the developer, MASB, arising from alleged breaches of obligations under Sale and Purchase Agreements entered into pursuant to the Housing Development (Control and Licensing) Act 1966 and its subsidiary legislation. [21] The issues arising in Suit 40 includes :- i. the contractual obligations undertaken by MASB under the Sale and Purchase Agreements; ii. the statutory obligations imposed upon a housing developer; iii. the validity and propriety of the issuance of the Certificate of Completion and Compliance; iv. the existence and scope of duties owed by MASB to purchasers; and v. the losses allegedly suffered by the residents. [22] Suit 8, by contrast, is a tortious action. The claims therein arise from allegations of negligence, nuisance and loss of support relating to excavation and dewatering works undertaken in connection with the construction of a sewerage treatment plant adjacent to Aman Plus. [23] The issues to be determined in Suit 8 includes:- i. the existence of a duty of care; ii. the applicable standard of care; iii. engineering and geotechnical considerations; iv. causation; v. mitigation; and vi. whether the contractors and subcontractors were negligent. [24] It is therefore immediately apparent that the legal inquiries required in the two actions are substantially different. [25] The Defendant placed considerable emphasis on the fact that both actions concern settlement and structural damage allegedly occurring within Aman Plus. [26] Whilst that observation is factually correct, the existence of a common factual background does not, by itself, justify a transfer and joint hearing. [27] This Court was guided by the principle articulated in Central Securities (Holdings) Bhd v Haron bin Mohamed Zaid [1979] 2 MLJ 244 where the Court observed that a common question of fact must possess sufficient significance in relation to the overall subject matter of the proceedings before consolidation or a combined trial becomes appropriate. [28] In the present case, the overlap identified by the Defendant was, at best, incidental. The common factual background does not displace the numerous distinct legal, contractual, statutory and tortious issues that arise separately in each action. [29] The commonality relied upon is therefore insufficiently dominant to justify the relief sought. Different Parties and Resulting Prejudice [30] A further consideration weighing heavily against the application is the composition of the parties in both actions. [31] Suit 40 involves purchasers and residents as plaintiffs, with MASB as the defendant. [32] Suit 8 involves MASB, Global Seasons Construction Sdn Bhd and Costa Oriental Builders Sdn Bhd as plaintiffs and Jalur Cahaya together with CWM as defendants. [33] The only common party in both proceedings is MASB. The Court notes that none of the individual Plaintiffs in Suit 40 are parties to Suit 8. Equally, Global Seasons Construction Sdn Bhd, Costa Oriental Builders Sdn Bhd, Jalur Cahaya Sdn Bhd and CWM Group Sdn Bhd are not parties to Suit 40. This substantial divergence of parties weighs heavily against the exercise of the Court's discretion to order a transfer and joint hearing. [34] The Court accepts the submissions of Jalur Cahaya and CWM that a joint hearing would inevitably require numerous parties, solicitors and witnesses to participate in substantial portions of a trial that bear little or no relevance to their respective cases. [35] Far from promoting efficiency, such an arrangement would increase complexity, prolong the proceedings and substantially increase costs. [36] The prejudice is particularly acute for the parties in Suit 8 who have prepared their case over an extended period and are entitled to have their action proceed without unnecessary disruption. Different Procedural Stages [37] This Court regarded the procedural posture of the two actions as one of the most compelling factors militating against the application. [38] Suit 8 was commenced in 2022 and has progressed substantially towards trial. [39] The Court was informed that pre-trial directions have largely been complied with, expert evidence has been prepared, common bundles have been compiled and substantial trial preparation has already been undertaken. [40] Suit 40, on the other hand, was only commenced in 2024 and remains subject to unresolved interlocutory matters. [41] The disparity in procedural readiness is significant. [42] This Court found the observations of the learned Judge in Federal Land Development Authority & Anor v Tan Sri Hj Mohd Isa bin Dato' Hj Abdul Samad & Ors [2022] 7 MLJ to be persuasive and applicable to the circumstances of the present case. In that case, the court recognised that the discretionary powers under Order 4 rule 1 are not intended to impede the progress of proceedings that are already substantially advanced. [43] Allowing the present application would inevitably delay the disposal of Suit 8. [44] The prejudice arising from such delay is neither speculative nor remote. It is real and substantial. [45] This Court also notes that the alleged overlap between both proceedings was known to the Defendant well before the filing of the present application. Yet no application was pursued until Suit 8 had already reached an advanced stage of preparation. [46] Whilst delay alone is not determinative, the timing of the application is a relevant consideration in the exercise of discretion. [47] Viewed against the overriding objectives in Orders 1A and 1B, the present application would not advance the just, expeditious and economical disposal of proceedings. Rather, it would undermine those objectives. No Real Risk of Inconsistent Findings [48] The Defendant further submitted that separate hearings may result in inconsistent findings concerning the cause of the settlement and structural damage experienced at Aman Plus. This Court was unable to accept that submission. [49] The existence of overlapping facts does not necessarily translate into a genuine risk of contradictory judgments. [50] The issues to be determined in Suit 8 concern tortious liability arising from excavation and dewatering works. [51] The issues in Suit 40 concern MASB's contractual and statutory obligations owed to purchasers. [52] A finding in Suit 8 that a contractor was negligent would not automatically determine whether MASB breached obligations owed under the Sale and Purchase Agreements. [53] Conversely, a finding in Suit 40 that MASB is liable to purchasers does not conclusively determine whether any contractor or subcontractor is liable in tort. [54] The legal inquiries are different. The standards to be applied are different. The parties against whom liability is asserted are different. [55] Accordingly, this Court found that the alleged risk of inconsistent findings was overstated. No Real Saving of Time or Costs [56] Finally, this Court was not persuaded that a joint hearing would result in any meaningful saving of time or costs. [57] On the contrary, the likely consequences would includes:- i. longer trial duration; ii. greater procedural complexity; iii. increased scheduling difficulties involving multiple counsel and witnesses; iv. duplication of issues irrelevant to particular parties; and v. expansion of the overall scope of trial. [58] Any limited factual overlap between the two proceedings is outweighed by the practical inefficiencies that would inevitably arise. [59] In the circumstances, a joint hearing would not promote procedural economy but would instead impede it. Conclusion [60] For the reasons set out above, this Court found that the Defendant had failed to satisfy the requirements warranting the exercise of the Court's discretion under Order 4 rule 1 of the Rules of Court 2012. [61] The common factual background relied upon by the Defendant is insufficiently significant when viewed against the substantial differences in causes of action, legal issues, parties, procedural posture and trial readiness of the two proceedings. [62] Further, the Court was not satisfied that a joint hearing would result in any genuine saving of time or costs nor was it persuaded that separate hearings posed any real risk of inconsistent findings. On the contrary, the Court found that the relief sought would likely occasion delay, increase complexity and cause prejudice, particularly to the parties in Suit 8. [63] Accordingly, Enclosure 53 was dismissed with costs of RM8,000.00 to the Plaintiffs, subject to allocatur. [64] This Court further notes that Jalur Cahaya and CWM were specifically invited by the Court to participate in the hearing because the orders sought would directly affect the conduct and progress of Suit 8. Both parties incurred costs in preparing affidavits and submissions and materially assisted the Court in determining the issues arising from the present application. [65] In the circumstances, this Court considered it appropriate that they be compensated for those costs.Accordingly, costs of RM1,000.00 each were awarded to Jalur Cahaya Sdn Bhd and CWM Group Sdn Bhd, payable by the Defendant. Dated: 25 June 2026 (SAMRY BIN MASRI) Judicial Commissioner High Court Kuantan Counsel for the Appellant : Tetuan Army Rais Peguambela & Peguamara No. 1-2B, 1 $ ^{st} $ Floor, PJU 8/3A Damansara Perdana 47820 Petaling Jaya Selangor Darul Ehsan Counsel for the : Messrs Chambers of Fadzilah Pilus Respondents Peguambela & Peguamcara Suite 33-01, 33 $ ^{rd} $ Floor Menara Keck Seng 203, Jalan Bukit Bintang 55100 Kuala Lumpur