Sing Foong Niap Sdn Bhd v Gem in Property Management Sdn Bhd (BA-22NCC-3-01/2024)

There are two interlocutory applications before this Court, arising from the same suit concerning a Sale and Purchase Agreement dated 30 September 2022 (the SPA) for a four-storey commercial property known as Gem In Mall.

Enclosure 34 is the Plaintiff’s application, pursuant to Order 15 rules 4(1) and 6(2) and Order 20 rules 1(3) and 5(1) of the Rules of Court 2012, seeking leave to (i) join Sing Foong Niap S/N 0BZpoYcfIEqjnlmO1kGkig Engineering Sdn Bhd as the Second Plaintiff and (ii) amend the Statement of Claim accordingly.

Enclosure 37, filed by the Defendant, seeks interim injunctive relief, including mandatory and prohibitory injunctions, to restrain the Plaintiff from occupying, entering, or dealing with the property and to compel the delivery of vacant possession to the Defendant pending the disposal of the main suit.

Having considered the cause papers and written submissions filed by both parties, I allowed the Plaintiff’s application in Enclosure 34 and dismissed the Defendant’s application in Enclosure 37.

Hence, the Defendant appealed against both my decisions. My reasons are set out below.

The Plaintiff and the Defendant entered into the SPA dated 30 September 2022, under which the Plaintiff agreed to purchase and the Defendant agreed to sell a four-storey commercial building with basement parking, known as Gem In Mall, situated at Gem In Mall, Mutiara Ville, Persiaran Sepang, Cyber 11, Selangor (the Property), for a purchase price of

It was the Plaintiff’s pleaded case that, following the execution of the SPA, the parties proceeded to carry out the necessary documentation to give effect to the transaction. This included the execution of Form 14A, the relevant CKHT forms (real property gain tax), and corporate resolutions by the Defendant confirming the transaction.

The developer, Seri Mutiara Development Sdn Bhd, also issued confirmation of a direct transfer of the Property to the Plaintiff.

The Plaintiff further averred that, pursuant to clause 24 of the SPA, all payments under the SPA were made through the Plaintiff’s representative, namely Sing Foong Niap Engineering Sdn Bhd. It was stated that these payments were made at the Defendant’s request and in accordance with the payment structure set out in the SPA.

According to the Plaintiff, the total sum paid in relation to the purchase amounted to RM27,984,685.62, comprising the purchase price (RM27,000,000.00) and additional sums, including the redemption amount (RM984,685.62), required to discharge the Defendant’s existing financier’s charge over the Property.

The Plaintiff further stated that Sing Foong Niap Engineering Sdn Bhd made the various payments to third parties and contractors as directed by the Defendant; procured financing from Al Rajhi Banking & Investment Corporation (Malaysia) S/N 0BZpoYcfIEqjnlmO1kGkig Berhad; and settled the redemption sum payable to the Defendant’s chargee bank on 23 May 2023.

It was also pleaded that, despite the full settlement of the purchase price and redemption sum, the Defendant failed, refused and/or neglected to take the necessary steps under the SPA to complete the transaction.

In particular, the Defendant was said to have failed to remove existing private caveats lodged against the Property; to apply for the relevant consent to transfer from the authorities; and to deliver vacant possession of the Property to the Plaintiff as stipulated in the SPA.

The Plaintiff asserted that multiple caveats remained registered against the Property, including caveats lodged by the Defendant and third parties, which prevented the transfer from being completed.

The Plaintiff maintained that repeated demands were made on the Defendant to resolve these encumbrances, but no effective action was taken.

The Plaintiff further alleged that, notwithstanding the full payment of the purchase price, the Defendant continued to collect rental income and tenant deposits from the Property after 23 May 2023 and retained them. The Plaintiff’s position S/N 0BZpoYcfIEqjnlmO1kGkig was that the Defendant held the Property, the rental income, and the deposits on trust for the Plaintiff following full payment.

Due to the Defendant’s alleged failure to complete the transaction, the Plaintiff lodged several police reports and, thereafter, commenced this suit by filing the Writ and Statement of Claim on 3 January 2024, seeking, among other things, specific performance of the SPA, the removal of caveats, vacant possession, and ancillary reliefs.

After the commencement of the suit, the Defendant filed its Statement of Defence and Counterclaim, disputing the Plaintiff’s entitlement to the Property and maintaining that it remained the legal and beneficial owner of the Property.

The Defendant also alleged that the condition precedent under the SPA was not fulfilled.

Against this backdrop, two interlocutory applications were filed.

The Plaintiff filed Enclosure 34 seeking to join Sing Foong Niap Engineering Sdn Bhd as the Second Plaintiff and to amend the pleadings accordingly. The Plaintiff explained that this application was filed for completeness and clarity after reviewing the trial documents and noting that all payments under the SPA were made through Sing Foong Niap Engineering, which had also assumed the financial obligations arising from the redemption of the Property.

The Defendant opposed Enclosure 34 on the basis that Sing Foong Niap Engineering was not a party to the SPA, had no privity of contract with the Defendant, and that the Plaintiff’s cause of action remained grounded solely in the SPA.

Separately, the Defendant filed Enclosure 37, seeking interim injunctive relief against the Plaintiff. In this application, the Defendant sought, among other things: orders restraining the Plaintiff from entering, occupying, or dealing with the Property; and a mandatory order compelling the Plaintiff to deliver vacant possession of the Property to the Defendant pending the disposal of the suit.

The Defendant’s position in Enclosure 37 was premised on its assertion that it remained the legal and beneficial owner of the Property and that the Plaintiff’s acts in relation to the Property were unlawful.

The Plaintiff opposed Enclosure 37, contending that the Defendant’s application was inconsistent with the documentary record and the payments made, that no serious question to be tried had been shown, and that the Defendant had failed to satisfy the higher threshold required for mandatory interlocutory injunctive relief. S/N 0BZpoYcfIEqjnlmO1kGkig

The Plaintiff’s case was that the joinder and amendment were necessary to reflect the true factual matrix already relied upon in the suit and to ensure that all matters in dispute could be effectively and completely determined.

The Defendant opposed the application on both procedural and substantive grounds, contending that the proposed joinder was inconsistent with the doctrine of privity of contract and that the amendment was neither necessary nor permissible.

The central issue raised by the Defendant was that Sing Foong Niap Engineering was not a party to the SPA and therefore had no legal interest capable of justifying its joinder as a Plaintiff.

The Defendant emphasised that the SPA was executed solely between the Plaintiff and the Defendant; that the reliefs originally pleaded were sought only by the Plaintiff; and that payment by a third party, even if proven, did not confer contractual rights.

The Plaintiff, however, contended that the test under Order 15 rule 6(2) was not confined to privity of contract but extended to whether the presence of the proposed party was necessary or proper to enable the Court to determine all questions involved in the cause.

In support of this position, the Plaintiff relied on the following factual matters, which were expressly pleaded and affirmed-a. All payments under the SPA were made through Sing Foong Niap Engineering at the Plaintiff’s request. b. Sing Foong Niap Engineering procured financing and paid the redemption sum to the Defendant’s chargee bank. c. Sing Foong Niap Engineering continued to service the bank loan arising from the redemption. d. The SPA itself expressly contemplated performance through representatives.

This Court considered the Plaintiff’s application for joinder under Order 15, rules 4(1) and 6(2) of the Rules of Court 2012, which confer discretion on the Court to join parties at any stage of the proceedings to ensure that all matters in dispute may be effectually and completely determined.

Order 15 rule 4(1) of the Rules of Court 2012 provides that two or more persons may be joined as Plaintiffs where, if separate actions were brought, common questions of law or fact would arise and where the rights to the relief claimed arise out of the same transaction or series of transactions.

Order 15 Rule 6(2) further empowers the Court, at any stage of the proceedings, to add a party whose presence is necessary to ensure that all matters in dispute may be effectually and completely determined and adjudicated upon, or to add a party where there is a question or issue arising out of or connected with any relief claimed which it would be just and convenient to determine together.

These principles were affirmed by the Supreme Court in Tajjul Ariffin Mustafa v Heng Cheng Hong [1993] 3 CLJ 117, where it was held that the overriding consideration is that all necessary and proper parties should be before the Court at the same time to enable the effectual and complete determination of all questions and issues arising for decision. The Supreme Court further recognised the Court’s extensive discretionary power to add parties to prevent multiplicity of proceedings and inconsistent findings.

A similar approach was adopted by the High Court in Perbadanan Kemajuan Negeri Selangor v Projek Lebuhraya Usahasama Berhad & Ors [2017] 1 LNS 1266, where the Court emphasised that the prime consideration is S/N 0BZpoYcfIEqjnlmO1kGkig whether the presence of the proposed party is necessary for the effectual and complete adjudication of the issues before the Court.

In the present case, this Court noted that the Plaintiff’s application to join Sing Foong Niap Engineering Sdn Bhd as the Second Plaintiff was grounded on matters expressly stated in the Plaintiff’s Notice of Application in Enclosure 34 and the Affidavit in Support. In particular, it was stated that all payments under the SPA were made by Sing Foong Niap Engineering at the Plaintiff’s request, as evidenced by the documents exhibited in Enclosure 35.

It was also stated that Sing Foong Niap Engineering procured financing from Al Rajhi Banking & Investment Corporation (Malaysia) Berhad to redeem the Property from the Defendant’s chargee bank and has continued to service the loan instalments to date.

These matters were relied upon by the Plaintiff in support of its position that Sing Foong Niap Engineering had a direct connection to the subject matter of the dispute and that its presence as a party would enable all issues arising from the SPA and the payments made thereunder to be determined in a single action.

Having considered the competing argument, this Court accepted the Plaintiff’s submission that the threshold for joinder under Order 15 rule 6(2) is whether the presence of the proposed party is necessary or proper for the complete adjudication of the issues already in dispute.

On the materials placed before the Court, this Court is satisfied that the role of Sing Foong Niap Engineering was directly connected to the performance of the SPA as pleaded by the Plaintiff; and issues relating to payment, redemption, and financial obligations had already been raised by both parties in the existing affidavits.

Therefore, the joinder did not introduce a new or independent cause of action but was intended to ensure that all matters already raised could be adjudicated without a multiplicity of proceedings.

In light of the statutory provisions and the authorities cited, this Court finds that the presence of the proposed party, Sing Foong Niap Engineering Sdn Bhd, is necessary for the effectual and complete adjudication of the issues before the Court. Accordingly, the Plaintiff’s application is allowed.

The Defendant argued that the proposed amendment was an attempt to improve the Plaintiff’s case after the dismissal of the summary judgment application.

The Plaintiff, on the other hand, argued that the amendment was bona fide; it arose from a review of documents already in existence; and it caused no prejudice to the Defendant that could not be compensated by costs.

The Plaintiff further contended that the amendment did not alter the nature or character of the suit, which remained a claim founded on the SPA and alleging the Defendant's non-compliance.

This Court considered the Plaintiff’s application to amend the pleadings pursuant to Order 20 rule 5(1) of the Rules of Court 2012, which confers discretion on the Court to allow amendments at any stage of the proceedings and to allow any party to amend its pleading on such terms as to costs or otherwise as may be just.

This Court noted the Plaintiff’s position that the necessity for amendment arose from the joinder of Sing Foong Niap Engineering as a party to the suit, and that the pleadings relating to its involvement ought to be specifically pleaded.

This Court further noted that the Plaintiff sought to include the issue of unjust enrichment in the proposed amended Statement of Claim. This Court agrees with the Plaintiff that this did not amount to a new cause of action, as the original Statement of Claim had already pleaded that all monies were paid to the Defendant under the SPA and that the Defendant had breached the terms and conditions of the SPA.

This Court considered the principles governing the amendment of pleadings, as set out by the Federal Court in Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd & Ors [1983] CLJ Rep 428, where it was held that amendments may be allowed if they cause no injustice to the other party, having regard to whether the application is bona fide, whether any prejudice can be compensated by costs, and whether the amendment would alter the character of the suit into one of a different and inconsistent nature.

This Court also noted the decision of the Court of Appeal in Abdul Johari bin Abdul Rahman v Lim How Chong & Ors [1997] 1 CLJ 361, which affirmed that amendments may be allowed at any stage of the proceedings, including after the close of pleadings.

In the present suit, the pleadings had not been closed, and the Plaintiff filed the application for amendment after the Defendant’s Defence and Counterclaim were filed.

This Court finds that the amendments sought were bona fide and arose from the joinder of a party; no prejudice would be caused to the Defendant, particularly as the Defendant would be at liberty to amend its Defence and Counterclaim; and the amendments would not change the character of the suit into another and inconsistent character, as the amendments merely sought to plead matters relating to the involvement of Sing Foong Niap Engineering and the issue of unjust enrichment, while the principal cause of action remained the alleged breach of the SPA.

Moreover, the purpose of the amendments was to ensure that the Plaintiff’s pleaded case was clear and comprehensive, thereby enabling the effective and complete determination of the dispute.

In any event, the Defendant would not suffer prejudice or injustice that could not be compensated by costs. Furthermore, the Defendant would not be deprived of the opportunity to respond to the proposed amendments, as the Defendant would be entitled to amend its Defence and Counterclaim pursuant to Order 20 rule 3(2) of the Rules of Court 2012. Importantly, the Defendant did not demonstrate that the amendment would cause irreparable prejudice or injustice.

In this regard, this Court noted the decision in Tan Kim Hor & Ors v Tan Heng Chew & Ors [2004] 3 CLJ 401, where it was held that amendments which are crucial for a proper and fair S/N 0BZpoYcfIEqjnlmO1kGkig determination of the disputes and which cause no prejudice should be allowed, particularly where the opposing party is at liberty to reply.

In the circumstances and guided by the authorities discussed above, this Court finds that the Plaintiff has satisfied the requirements for joinder and amendment. Accordingly, the Plaintiff’s application in Enclosure 34 is allowed, with costs of RM2,500.00 to the Defendant. The Court also allowed the consequential amendments to the respective pleadings. ENCLOSURE 37 – DEFENDANT’S APPLICATION FOR INTERIM

The principles governing interlocutory injunctions have been authoritatively set out by the Court of Appeal in Keet Gerald Francis Noel John v Mohd Noor @ Harun Abdullah & Ors [1995] 1 CLJ 293. In that case, the Court of Appeal held that a judge hearing an application for an interlocutory injunction must undertake a structured inquiry.

First, the Court must consider whether the totality of the facts before it discloses a bona fide serious question to be tried. In addressing this question, the Court must bear in mind that the pleadings and evidence are incomplete at that stage and must refrain from making any determination on the merits of the claim or defence. It is sufficient for the Court to identify the issues raised and to determine whether they are serious enough to S/N 0BZpoYcfIEqjnlmO1kGkig merit a trial. If no serious question is disclosed, the application must be refused. If a serious question is shown, the Court then proceeds to the next stage of the inquiry.

Second, where a serious issue is disclosed, the Court must consider where the justice of the case lies. In doing so, the Court must weigh the harm that would result from granting the injunction against the harm that would result from refusing it. Relevant considerations include the practical realities of the case and, where appropriate, the parties’ relative financial standing. If the Court concludes that the plaintiff would suffer greater injustice if relief is withheld, it may grant the injunction, particularly if satisfied that the plaintiff is able to honour an undertaking in damages. Conversely, if the defendant would suffer greater injustice from the grant of an injunction, relief should be refused. In appropriate cases, the Court may also take into account the plaintiff’s ability to meet an undertaking in damages or require security for such an undertaking.

Third, the Court must bear in mind that the remedy of an interlocutory injunction is discretionary, intended to achieve a just result for the interim period pending trial and to preserve the status quo. The exercise of this discretion is subject to appellate review. Accordingly, the Court may consider discretionary factors such as delay in making the application, the availability of an adequate alternative remedy, including monetary compensation, and, where relevant, considerations S/N 0BZpoYcfIEqjnlmO1kGkig of public interest. The Court should briefly set out the factors that weighed in its mind in arriving at its decision.

In addition to the above, it is settled law that an interlocutory injunction, particularly one of a mandatory nature, will not ordinarily be granted before trial, save in exceptional and extremely rare cases. In Gibb & Co v Malaysia Building Society Bhd [1982] 1 MLJ 271, the Federal Court held that such relief may be granted only where the case is “unusually sharp and clear” and where the court feels a high degree of assurance that a similar injunction would probably be granted at the trial.

Similarly, in Tinta Press Sdn Bhd v Bank Islam Malaysia Bhd [1987] 2 MLJ 192, the Supreme Court reaffirmed that the grant of an interlocutory mandatory injunction before trial is confined to exceptional and extremely rare cases. The court must be satisfied that the case is “unusually strong and clear” and that it would be just and equitable to protect the plaintiff’s interest by the immediate grant of an injunction, failing which irreparable injury or serious inconvenience would result (see: Wah Loong (Jelapang) Tin Mine Sdn Bhd v Chia Ngen Yiok [1975] 2 MLJ 109, confirmed by the Federal Court in Sivaperuman v Heah Seok Yeong Realty Sdn Bhd [1979] 1 MLJ 150, and applied in Gibb & Co v Malaysia Building Society Bhd and Shepherd Homes Ltd v Sandham [1971] 1 Ch 340).

The law recognises that a mandatory injunction, being a form of extraordinary relief, should be granted only at the interlocutory stage in rare and clear cases. The Court agrees with the Plaintiff’s contention that the threshold is significantly higher than that applicable to prohibitory injunctions and requires compelling and unambiguous factual circumstances.

Applying the above principles and the authorities relied upon by the parties, the court is required to consider whether the Defendant had demonstrated a case sufficiently strong and clear to warrant the grant of interlocutory injunctive relief.

It was also contended that the Defendant was required to comply with the requirements of Order 29 of the Rules of Court 2012, including the need to place before the Court a clear and concise statement of facts and full disclosure of all material facts relied upon in support of the application.

In Enclosure 37, the Defendant sought interim injunctive relief, including: a. Prohibitory injunctions restraining the Plaintiffs from entering, occupying, managing or dealing with the Property; and b. A mandatory injunction compelling the Plaintiffs to deliver vacant possession of the Property to the Defendant pending the disposal of the suit.

It was not disputed between the parties that the reliefs sought were both prohibitory and mandatory in nature.

The Plaintiffs contended that the Defendant’s application did not merely seek to preserve the status quo but instead sought to reverse the existing factual position at the interlocutory stage, and that such relief required a higher legal threshold.

The Plaintiff relied on Keet Gerald, arguing that if no serious question is disclosed, the inquiry ends and the injunction ought to be refused.

The Plaintiffs argued that the Defendant did not dispute that, where a party seeks a mandatory injunction at the interlocutory stage, a higher threshold applies and the applicant must establish a strong and clear case before such relief may be granted.

The Defendant agreed that the relief sought included mandatory elements but maintained that the legal requirements were satisfied on the facts relied on. Whether there is a Serious Question to Be Tried

The Defendant’s application was based on its assertion that it remained the legal and beneficial owner of the Property and S/N 0BZpoYcfIEqjnlmO1kGkig that the Plaintiffs’ occupation and dealings with the Property were unlawful.

The Plaintiff, in opposing the application, relied on the facts that: a. that the full purchase price and redemption sum had been paid; b. that the Defendant had failed to remove caveats or to apply for consent to transfer as required under the SPA; and c. that the Defendant continued to collect rental income after full payment was made.

At this interlocutory stage, this Court will not determine the merits of these competing factual assertions. However, the Court must assess whether, on the materials relied upon by the Defendant, a bona fide serious question has been demonstrated, thereby justifying the exceptional relief sought.

The core issue raised by the Defendant, namely whether the Plaintiff’s continued occupation is unlawful, cannot be resolved without a full consideration of the facts at trial. The Plaintiff has placed documents before the Court, including evidence of payment, correspondence, and conduct, which, on their face, S/N 0BZpoYcfIEqjnlmO1kGkig suggest that its occupation was not without basis. These matters remain disputed.

Based solely on the documents placed before the Court at this interlocutory stage, the Court is not persuaded that the Defendant has demonstrated a strong and clear case sufficient to justify the grant of an interim mandatory injunction at this stage.

The Plaintiff contended that even if a serious question were assumed to exist, the balance of convenience did not favour the Defendant.

In this regard, the Plaintiffs contended that: a. damages would be an adequate remedy for the Defendant should it succeed at trial; and b. granting the injunction would cause greater prejudice to the Plaintiff, who asserted that they had paid the full purchase price.

The Plaintiffs also drew the Court’s attention to the timing of the Defendant’s application, which was filed several months after the suit commenced.

While delay alone is not determinative, this Court accepts that the timing of the application was relevant to the overall assessment of where the justice of the case lay.

Having weighed the competing arguments and been guided by the principles articulated in the authorities cited, this Court finds that the balance of convenience did not favour the grant of the interim mandatory injunction sought by the Defendant.

Based on the authorities discussed above, mandatory injunctions at the interlocutory stage are granted only in exceptional circumstances.

The Defendant has not demonstrated that this is an exceptional, rare and strong case that warrants the grant of an interim mandatory injunction. In particular, the court is not satisfied, on the evidence presently before it, that the Defendant would suffer irreparable harm if the injunction is not granted. The assertions of potential loss or prejudice are general in nature and have not been supported by specific or cogent evidence. There is also nothing before the court to suggest that any loss allegedly suffered by the Defendant could not be adequately compensated by an award of damages, if appropriate. In the circumstances, the threshold for the grant of an interim mandatory injunction has not been met.

The Defendant retains legal title and may be adequately compensated by damages if it succeeds at trial. Conversely, granting such an injunction may cause irreversible prejudice to the Plaintiff, particularly if it is later found entitled to the reliefs it claims.

This Court further noted that the Defendant’s application went beyond preserving the status quo and sought to compel the Plaintiffs to take affirmative steps, including the delivery of vacant possession, which is a disputed fact for the Court to decide at the end of a full trial.

I agree with Plaintiff’s contention that the facts in Lee Hui Ling v Chong Nyoke Chin [2022] CLJU 3270 were distinguishable, as the injunction granted there was merely restraining in nature and did not involve a commercial transaction of the present kind.

Based on the facts, evidence and authorities, this Court finds that the Defendant did not establish the exceptional circumstances required to justify such relief.

In light of the above, this Court finds that the Defendant has failed to satisfy the legal requirements for the grant of interim injunctive relief, whether prohibitory or mandatory.

Accordingly, the Defendant’s application in Enclosure 37 is dismissed with costs of RM15,000.00. Dated 31 December 2025 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Appellant : Vicky Ong Xiao Qiu, Dato’ Arthur Wang Ming Way & Siow Yoong Kei (Messrs Arthur Wang, Lian & Associates) For the Respondent : Bruce Toh Chen Hsiang (Messrs Toh & Partners)