1. ) Puncak Haruman Sdn Bhd v 1. ) JW Development Sdn Bhd (BA-22NCvC-138-03/2024)

PUNCAK HARUMAN SDN BHD … PLAINTIFFS

ELIT BINARAYA SDN BHD

MOHD RASHID BIN MOHD ALI (IDENTITY CARD NO. : 701014-04-5173)

JWD DEVELOPMENT SDN BHD … DEFENDANTS

SYARIKAT BAMAS ENTERPRISE SDN BHD (COMPANY NO. : 204361-P)

LEE KAH KOON (IDENTITY CARD NO. : 760515-14-5703) SELAKU WAKIL ESTET LEE HAN CHO (IDENTITY CARD NO. : 470811-02-5209)

ABDUL WAHAB BIN ABDULLAH

ZULKARNAIN BIN OMAR (IDENTITY CARD NO. : 730730-12-5011) 22/10/2025 21:31:22 BA-22NCvC-138-03/2024 Kand. 153 GROUNDS OF JUDGMENT (Enclosure 105 Application to Stay the Execution Order) A. INTRODUCTION [1] Enclosure 105 is an application by the plaintiffs to stay the execution of the Order dated 28.02.2025 and the applications for assessment of damages and taxation of costs pending the disposal of the Plaintiffs’ appeal in the Court of Appeal. [2] On 31st July 2025, the High Court allowed Enclosure 105 with costs of RM5000.00 to be paid by the plaintiffs to the 1st defendants. The 1st defendant is dissatisfied with the order, and here are the reasons for my decision. B. BACKGROUND [3] The plaintiffs filed this Suit (Suit 138) on 28 March 2024 following the decision of the learned High Court Judge on 24 January 2024 in Kuala Lumpur High Court Civil Suit No: WA-22NCvC-694- 09/2019 (Suit 694). [4] In Suit 694, JW Development Sdn Bhd (JWD) sued Puncak Haruman Sdn Bhd (Puncak), Elit Binaraya Sdn Bhd (Elit), Mohd Rashid bin Mohd Ali (Rashid), Syarikat BAMAS Enterprise Sdn Bhd (BAMAS), Lee Kah Koon (LKK), Abdul Wahab Abdullah (Wahab), and Zulkarnain Omar (Zulkarnain). The High Court Judge allowed JWD’s claim against them after a full trial for, among others, as follows –

That the transfer of the following lands from BAMAS to Puncak and the registration of Puncak as the proprietor of the lands thereof be set aside/ cancelled: -

PT1138, HSD 78429, Pekan Kuang, District of

(ii) PT1139, HSD 78430, Pekan Kuang, District of Gombak;

(iii) PT1141, HSD 78432, Pekan Kuang, District of Gombak; and

(iv) PT1142, HSD 78433, Pekan Kuang, District of Gombak; [(i) to (iv) are hereinafter collectively referred to as “Subject Lands 1”;]

That the transfer of the following lands from BAMAS to Elit and the registration of Elit as the proprietor of the lands thereof be set aside/ cancelled:

PT1140, HSD 78431, Pekan Kuang, District of

(vi) PT1143, HSD 78434, Pekan Kuang, District of Gombak;

(vii) PT1144, HSD 78435, Pekan Kuang, District of Gombak;

(viii) PT1145, HSD 78436, Pekan Kuang, District of Gombak;

(ix) PT1146, HSD 78437, Pekan Kuang, District of Gombak;

PT1147, HSD 78438, Pekan Kuang, District of

(xi) PT1148, HSD 78439, Pekan Kuang, District of Gombak; [(v) to (xi) are hereinafter collectively referred to as “Subject Lands 2”), whereas (i) to (xi) are hereinafter collectively referred to as “the said Lands”;].

Further and/or consequential to paragraphs (1) and

above: -

That the Fraudulent Parties (Defendants in the Original Suit) and/or each of them, whether by themselves, their directors, servants, agents or otherwise, howsoever, do surrender and/or deliver the original issue documents of title for the said Lands to JWD within seven (7) days from the date of the order of this Honourable

That the Registrar of Titles (“Registrar”) shall rectify the register documents of title and all other memorials and/or records and/or endorsements to record that BAMAS is the registered proprietor of the said Lands within thirty (30) days from the date of the Registrar’s receipt of the order of this Honourable Court;

That the Registrar shall rectify the issue documents of title to record that BAMAS is the registered proprietor of the said Lands within thirty (30) days from the date of the Registrar’s receipt of the original issue documents of title from JWD and to forward the original duly rectified issue documents of title to JWD after rectification;

That all costs in attending to and/or arising from and/or incidental to the above be borne by the Fraudulent Parties on the basis of joint and several liability;

An order against BAMAS for specific performance of the Joint Venture Agreement dated 18.10.2000 (“Joint Venture Agreement”);

Damages against BAMAS in addition to specific performance of the Joint Venture Agreement which are to be assessed;

In addition to paragraphs (4) and (5) above: -

That BAMAS shall repay to JWD the Developer’s Advance of RM500,000.00 (“Developer’s Advance”) together with interests thereon at the rate of 12% per annum calculated from the date of payment by JWD to BAMAS until the date of full settlement by

That BAMAS shall repay to JWD half of the Alienation Costs in the sum of RM619,664.54 and such further sum to be assessed for BAMAS’ half share of the said Lands together with interests thereon at the rate of 12% per annum calculated from the date of payment by JWD to the relevant parties until the date of full settlement by BAMAS to JWD;

Damages against BAMAS to be assessed including but not limited to loss of profits;

An injunction restraining the Fraudulent Parties and/or each of them, whether by themselves, their directors, shareholders, servants, employees, agents or otherwise howsoever from dealing, selling, negotiating for the sale of, disposing, transferring, charging, encumbering, leasing, parting with possession and/or entering into any transactions with regard to the said Lands in any manner whatsoever otherwise than for the purpose as set out in paragraphs (1) to (6) above;

Damages to be assessed and paid by the Fraudulent Parties to JWD on the basis of joint and several liability;

Exemplary and/or aggravated damages against the Fraudulent Parties to be paid to JWD on the basis of joint and several liability. [5] In the Amended Statement of Claim of this Suit, the plaintiff seeks a declaration as follows-

That the Judgment of Suit 694 be set aside;

Declaration that the JVA is frustrated, therefore void;

A declaration that Land 1 be maintained in the name of

A declaration that Land 2 be maintained in the name of Elit;

JWD to pay Damages to the Plaintiffs;

JWD to pay Aggravated damages to the Plaintiffs;

JWD to pay Exemplary damages to the Plaintiffs;

JWD to pay to the Plaintiffs RM 300,000.00 being legal costs incurred by the Plaintiffs in defending Suit 694;

Pre-judgment interest at 5% from the date of filing Suit 694 on 19.09.2019;

Interest at 5% per annum calculated daily on the Judgment sum from the date of the Judgment of this court until full and final settlement;

Costs; [6] In essence, the Plaintiffs claim to impeach the Judgment of Suit 694 and submit that the issues to be tried are as follows -

whether the Judgment is valid;

(ii) whether is there contravention of statutes and law;

(iii) whether there is fraud found in the Judgment;

(iv) whether the Judgment can be impeached; and

whether the Plaintiffs should abide by the Judgment. [7] The 1st defendant filed an application under Order 33 rule 2 and 5 of the Rules of Court 2012 seeking to strike out the plaintiff’s present suit. After hearing the parties, on 28 February 2025, this Court granted the 1st defendant’s Order 33 application, thereby striking out the Plaintiffs’ claim in its entirety and allowing the 1st defendant’s tort of abuse of process. PRELIMINARY OBJECTION BY THE 1st DEFENDANT [8] The 1st defendant raised a preliminary objection that this application was filed without obtaining the court’s leave. The reason is that the court has allowed the 1st defendant’s counterclaim and issued an order under paragraph 17 of the First Schedule to Section 25(2) of the Courts of Judicature Act 1964, which restrains the plaintiffs from initiating any legal proceedings against the 1st defendant in any court, except with the leave of a judge. The order states, Plaintif-plaintif dilarang daripada memulakan sebarang prosiding undang-undang terhadap defendan pertama kecuali setelah mendapat kebenaran daripada seorang Hakim Mahkamah Tinggi Malaya. [9] The plaintiffs averred that stay applications and appeals do not constitute the filing or initiation of a new cause of action or proceedings. They are part of the procedural rights available to the plaintiffs within the original proceedings. The plaintiffs agree that leave would be required if a completely new cause of action is initiated. To support their submission, the learned counsel for the plaintiffs is relying on the case of Bhamjee v Forsdick [2003] EWCA CIV 1113 where the English Court of Appeal held as follows - So far we have said nothing to preclude a litigant from exercising the right available to all litigants to seek permission to appeal against an order with which they are dissatisfied… He did not dispute, however, that it would be within the inherent jurisdiction of the court to adopt such an approach if the situation was bad enough to warrant it, but he suggested that a step by step approach would be preferable, with a “no appeal” stipulation a remedy of last resort. [10] The 1st defendant submits that Enclosure 105 was commenced by the plaintiffs in breach of paragraph 3(b)(ii) of the Order dated

28.2.2025 without having first obtained the leave of a Judge of the High Court of Malaya. The phrase 'any legal proceedings' in the said Order, according to the learned counsel for the 1st defendant, is covered by the restraining order sought under Enclosure 105. Therefore, the plaintiffs were required to obtain leave from a Judge of the High Court of Malaya before initiating the application under Enclosure 105. [11] The 1st defendant also referred to the following provisions:

Section 3 of the Court of Judicature Act 1964, which interprets proceeding as any proceeding whatsoever of a civil or criminal nature and includes an application at any stage of a proceeding.

(ii) Paragraph 17 of the Schedule of the CJA 1964, which provides that – Vexatious litigants Power to restrain any person who habitually and persistently and without reasonable cause instituted vexatious legal proceedings in any court, whether against the same or different persons, from instituting any legal proceedings in any court save by leave of a Judge. ANALYSIS AND DECISION [12] This Court dismissed the preliminary objection for the following reasons. [13] The filing or initiation of a new cause of action or proceedings is not constituted by stay applications and appeals. They are part of the procedural rights that plaintiffs possess in the original proceedings. The plaintiffs have filed an appeal against the decision of this Court, including its ruling on the vexatious litigant. This Court finds that the 1st defendant did not raise the issue that the appeal should be filed only after the plaintiff obtained leave from the High Court. Taking this fact into account, the same reasonable approach applies to applications for a stay of execution of the order. [14] Besides that, Enclosure 105 is filed pursuant to Order 45 rule 11 and/or Order 55 rule 16, as well as under Order 92 rule 4 of the Rules of Court 2012. Order 92 Rule 4 of the ROC 2012 reads – For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [15] It was held in The Motor Emporium v Arumugam [1933] 2 MLJ 276 that every court must have inherent jurisdiction to do justice between the parties and apply such principles as are necessary or desirable for attaining such object. [16] This Court also refers to Pacific Centre Sdn Bhd v United Engineers (Malaysia) Bhd [1984] 2 MLJ 143, where Edgar Joseph Jr J (as he then was) said that the inherent power of the court includes all the powers that are necessary to fulfill itself as a court of law. [17] Since the plaintiffs have filed this application under Order 92 Rule 4 of the ROC 2012, the Court should consider justice for both parties. Therefore, when granting this stay application, the Court ordered the plaintiff to pay RM5000 in costs to the 1st defendant. Having considered the principle in Bhamjee v Forsdick (supra), it is within the scope of Order 92 Rule 4 of the ROC 2012 for this Court to hear the plaintiff’s application in Enclosure 105. [18] In addition, the relief sought in paragraph 5 of the Notice of Application also grants the discretion to this Court to grant leave for this application to be heard and disposed of. Application to Stay the Execution Proceeding [19] In Kosma Palm Oil Mill Sdn Bhd Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257, the Federal Court held that - It is therefore clear beyond doubt that there are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one. It is an example of special circumstances. [20] The primary concern is whether there are any special circumstances warranting a stay of execution. In the case of Hong Leong Finance Bhd v Hon Hoi Weng & Ors [1987] 2 MLJ 377, it was determined that if the applicant can demonstrate a likelihood of success on appeal, the application for a stay would be granted. [21] Having considered submissions from the learned counsel for the plaintiffs and the 1st defendant, this Court finds that—

There is a special circumstance in the plaintiff's application after considering that the plaintiff's claim was dismissed through an interlocutory application filed by the 1st defendant and not after a full trial. This court also took into account the plaintiff's reason regarding the land, which is the subject matter of this Suit and has not been developed to date.

(ii) The stay order is reasonable to maintain the status quo and to prevent the appeal from becoming nugatory if the plaintiff's appeal is allowed and subsequently affects the plaintiff's rights. The court follows the principle in the case of Mohamed Mustafa v Kandasami (No.2) [1979] 2 MLJ 126.

(iii) To the extent that this Court’s order permits the 1st defendant’s application under Order 33 of the ROC 2012, an assessment of damages is ordered to determine the award of damages. Therefore, this Court differentiates the application of the principles of monetary judgment in the case of Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49.

(iv) The stay application is not an abuse of court process but is filed for a legitimate purpose to stay the enforcement of the order of this Court temporarily. CONCLUSION [22] Based on the reasons above, Enclosure 105 is allowed with costs of RM5000.00 to be paid by the plaintiffs to the 1st defendant, subject to allocator. Dated: 22nd October 2025 Signed ............................................................... HAZIZAH BINTI KASSIM Judicial Commissioner Shah Alam High Court (NCvC10)

For the Plaintiffs : Syed Muhd Isa @ Ismat bin Syed Muhamad & Chang Chui May Messrs K K Lim (Federal Territory of Kuala Lumpur)

For the 1st Defendant : Jason Lai Joongkeat & Tan Tong Fang Messrs Munhoe (Federal Territory of Kuala Lumpur)