Tan Yoke Mee v Tajudin Bin Ibrahim & 5 Lagi (W-01-(NCVC)(W)-462-07/2018)

TAN YOKE MEE

TAN YET CHIN (I.C. NO. 720506-14-5342) … APPELLANTS

TAJUDIN BIN IBRAHIM

FADASON HOLDINGS SDN BHD

3.

TUNAS UNTUNG SDN BHD (COMPANY NO. 672283-P) (C/O REGISTRAR OF COMPANIES,

LEE CHEE TEONG

TETUAN TENGKU AZLINA, RAO, LOW & ASSOCIATES … RESPONDENTS 2 [In the High Court of Malaya at Kuala Lumpur Suit No: WA-22NCVC-341-06/2016 Between (I.C. No. 680729-10-6320) (I.C. No. 720506-14-5342) … Plaintiffs And (I.C. No. 500826-02-5265) (Company No. 47223-M) (Company No. 672283-P) (C/o Registrar of Companies, Companies Commission of Malaysia) (I.C. No. 630817-07-5581 / 7121830) & Associates … Defendants] 3 CORAM: MARY LIM THIAM SUAN, JCA HAS ZANAH BINTI MEHAT, JCA VAZEER ALAM BIN MYDIN MEERA, JCA JUDGMENT OF THE COURT [1] The appellants before us were the plaintiffs at the High Court. Their suit was primarily to assert legal and beneficial ownership rights over a shop lot. The 1st respondent counterclaimed for the same purpose while the 6th respondent counterclaimed for damages for defamation. [2] After a full trial, their claims and the counterclaims were dismissed by the learned Judge. Only the plaintiffs appealed. At the commencement of hearing of this appeal, the appellants withdrew their appeal against the 3rd and 4th respondents, and the appeal was accordingly struck out against them with costs. [3] In this appeal, the parties will be referred to as they were at the High Court. Background facts [4] By a sale and purchase agreement dated 5.8.2008, the plaintiffs purchased from the 5th defendant, an individual, “the parcel of shop lot known 4 as Parcel D-G-4 measuring an area approximately 840 square feet within Storey No. 4 of Building No. Block D in a project known as Taman Fadason forming part of the land held under Master Title No. H.S.(D) 99535, P.T. No. 16914 (formerly part of Lot 9016 and 9017) in the Mukim of Batu, District of Kuala Lumpur and State of Wilayah Persekutuan” [the property] for the sum of RM800,000.00 [the SPA]. The plaintiffs paid the purchase price in full and was given vacant possession of the property from around August 2008. The plaintiffs have since then been renting out the property to various tenants without interruption. The plaintiffs have also been paying the quit rent, assessment charges, water, insurance and service charges for the property. [5] In December 2015, the plaintiffs discovered that strata title for the property had been issued to the 1st defendant who proceeded to assert possessory rights over the property. The plaintiffs commenced action seeking the following main reliefs:

(a) a declaration that the plaintiffs are the true legal and/or beneficial owners of the property currently held under title PN(WP) 32992/M1/1/5, Lot No. 57297, Mukim Batu, Negeri Wilayah Persekutuan, Kuala Lumpur;

(b) further and/or in the alternative, a declaration that the 1st defendant is trustee for the plaintiffs of the property and is bound to account to the plaintiffs any legal estate or interest therein outstanding in relation to the property; 5

(c) further and/or in the alternative, an order for rectification of the pleaded agreements, as the case may be;

(d) an order directing the defendants to within 7 days from the service of the order made herein take all steps to vest the property in the name of the plaintiffs as legal proprietor and beneficial owners thereof;

(e) an injunction restraining the defendants from interfering with the plaintiffs’ rights and possession over the property; and

(f) damages to be assessed against the defendants or such of the defendants as the Court shall find liable to the plaintiffs. [6] Relying on the terms and conditions of the SPA, the plaintiffs alleged that the SPA states the following: i. by SPA dated 30.11.2002 [Principal Agreement] made between the 2nd defendant of the 1st part, the 3rd defendant of the 2nd part and the 1st defendant as ‘1st Purchaser’, the 2nd defendant with the 3rd defendant’s consent agreed to sell and the 1st defendant agreed to purchase the property with vacant possession; ii. 1st defendant had fully paid the purchase price to the 2nd defendant; 6 iii. by SPA dated 13.6.2005 [2nd Agreement] made between 1st defendant and the 4th defendant [2nd Purchaser], the 1st defendant sold and the 4th defendant purchased and accepted the assignment of the property together with all the rights title and interest of the 1st defendant under the Principal Agreement and upon the terms and conditions stated therein; iv. by SPA dated 4.7.2006 [3rd Agreement] and a corresponding Deed of Assignment dated 4.7.2006 made between the 4th defendant of the 1st part, and the 5th defendant of the other part, the 4th defendant sold and assigned and the 5th defendant purchased and accepted an assignment of the property together with all the rights title and interest of the 4th defendant under the Principal Agreement and upon the terms and conditions stated therein; v. the sale to the 5th defendant is subject to the 5th defendant obtaining confirmation from the 2nd defendant and/or relevant authorities as provided under clause 2.1; vi. the 5th defendant has settled the purchase price in full to the 2nd defendant under the Principal Agreement; 7 vii. by SPA dated 5.8.2008 [SPA] made between the 5th defendant as vendor and the plaintiffs as purchasers, the 5th defendant agreed to sell and the plaintiffs agreed to purchase the property; viii. the plaintiffs have fully settled the purchase price under the SPA; ix. strata title to the property had not been issued by the relevant authority; and x. the plaintiffs were represented by the 6th defendant while the 5th defendant elected not to appoint any solicitors to act on his behalf. [7] Save for the 5th defendant who did not enter any Appearance, the remaining defendants filed their respective defences with the 1st defendant asserting title and interest by way of a counterclaim and seeking vacant possession. The 1st and 2nd defendants were initially represented by the same set of solicitors but by the time of appeal, were represented by different solicitors. Due to the peculiarities of the claim, the 4th defendant was represented by the Registrar of Companies; the details of which are no longer relevant with the withdrawal of the appeal against this party. [8] In substance, the 1st defendant denied the plaintiffs’ claims. In particular, the 1st defendant – i. denied knowledge of the various agreements and the SPA; 8 ii. claimed that he was not privy to any of the agreements; iii. claimed that he did not give vacant possession to anyone; iv. alleged that the plaintiffs’ claim for vacant possession was wrong and that the plaintiffs had committed trespass; v. claimed that all payments for quit rent and assessments were made by him and that the receipts for such payments were issued in his name; and vi. claimed that the strata title has been issued to him as the registered and legal owner of the property. [9] The 1st defendant counterclaimed that he be declared the registered owner of the property; that the plaintiffs had been wrongfully and illegally occupying the property and had been renting out the property to third parties. The 1st defendant further claimed for vacant possession and general damages to be assessed by the Court. [10] As for the 2nd defendant, the developer of Taman Fadason, aside from alleging that Master Title number of the plaintiffs’ unit as mentioned in the SPA differed from that appearing in the Principal Agreement and that there was a difference in the measurement of the unit concerned, the 2nd defendant denied owing any contractual obligation or duty to the plaintiffs; especially 9 since it was not a party to the SPA. Instead, its obligations were owed to the 1st defendant as set out under the Principal Agreement. Those obligations were met when it assisted in the application of the 3rd defendant’s consent to transfer so that title could be registered in the 1st defendant’s favour. It had further not endorsed or confirmed the sale and purchase of the unit by the plaintiffs. [11] The 6th defendant were the solicitors acting for the plaintiffs in respect of the SPA. The allegations against them is grounded in negligence, that the 6th defendant was in breach of its duty of care owed to the plaintiffs in the following respects – i. failing to steps to perfect the plaintiffs’ rights over the property; ii. failing to keep the plaintiffs duly informed of all rights pertaining to the property and/or in relation to the SPA; iii. failing to ensure that all steps have been taken to ensure that upon issuance, the relevant strata title would be registered or be registrable in the names of the plaintiffs; iv. failing to advise the plaintiffs of their rights in relation to the property and/or how such rights may be protected; 10 v. failing to notice the blatant discrepancies arising from the 3rd Agreement and the Assignment and Novation Agreement as to whether the purchase price had been paid to the 2nd defendant and the identity of the person concerned; vi. failing to conduct a land search for the Master Title which would have yielded up the misdescriptions earlier mentioned; and vii. without the knowledge or consent of the plaintiffs, commenced civil action against the 2nd and 3rd defendants seeking to compel them to consent to the sale of the property from the 5th defendant to the plaintiffs; and when the action was dismissed, for failing to advise the plaintiffs of the action and of their withdrawal of the related appeal. Decision of the High Court [12] The learned Judge dismissed the plaintiffs’ claim and the counterclaim. In relation to the plaintiffs’ claim that they be declared beneficial and/or legal owners of the property, this was refused on two grounds. First, because the SPA was a conditional agreement and there was no evidence that the conditions precedent had been fulfilled or waived. Second, because of uncertainty in the subject matter – that there was no compelling evidence before the Court that the property described in the SPA was the same property referred to as “D-G-5” and/or “D-O-5”. 11 [13] As for the counterclaim, it is readily discerned that it was dismissed because the learned Judge disbelieved the 1st defendant finding the transfer and issuance of the strata title to the 1st defendant “very suspicious and something is amiss in the whole transaction of the transfer of the strata title to D1 – see paragraphs 4.9 – 4.10 of D6’s Written Submission.” The learned Judge did not find the 1st defendant to be a credible witness, that there were inconsistencies in his evidence as well as those of another witness, Jaya Jothi (DW2). There is no appeal by the 1st defendant. [14] The claim against the 6th defendant was also dismissed; because there were no particulars of negligence alleged against the 6th defendant, and because no cogent evidence to support the allegation of negligence had been adduced. The 6th defendant had also counterclaimed for defamation. This was dismissed; there is no appeal by the 6th defendant. Our decision [15] Having examined the records of appeal, the reasons for Her Ladyship’s decision and the submissions made, we find merit in the plaintiffs’ appeal. [16] In essence, we disagree with Her Ladyship’s conclusions that the SPA is a conditional agreement and that it is void for uncertainty. We must point out at the outset that the existence and authenticity of the three agreements relied on by the appellants are not in issue. The actions taken by the various parties thus far in any case, affirm the existence of these agreements; 12 especially the action by the 5th defendant in suing the 4th defendant to assert his rights under the 3rd Agreement. Further, the arguments raised in relation to the assignment or lack of such assignment are also irrelevant since title to the property has already been issued. [17] First, the matter of certainty of subject matter, whether the property which formed the subject matter of the SPA is the same subject property under the Principal Agreement, the Second and Third Agreements but more importantly, whether it is the same property to which strata title has been issued to the 1st defendant. In our view, the answer is clearly in the affirmative. [18] The property under the SPA is readily traced to and through the several agreements starting with the Principal Agreement made between the 1st defendant and the 2nd defendant. The subject property of that Principal Agreement is clearly acknowledged in the SPA. Save for the differences in the size of the property in question and the details of the title in the master title, the other details identifying the subject matter or property in question are clear and the parties are not confused to the point where there is no consensus ad idem such as to invalidate the SPA. The differences are minor and can be and were easily explained away by the appellants and the witnesses called. [19] The property under the SPA dated 5.8.2008 is described as Parcel DG- 4 in a building in Block D in Taman Fadason and it forms part of lands held under Master Title No. H.S. (D) 99535, P.T. No. 16914 (formerly Lots 9016 13 and 9017) in the Mukim of Batu, District of Kuala Lumpur, measuring 840 sq. feet [see page 124 CBD]. This same description may be found in both the Second Agreement dated 13.6.2005 [page 54 CBD] and the Third Agreement dated 4.7.2006 [see page 64 of CBD], where the property is described in Schedule A as a shop-lot in Taman Fadason at Parcel No.: 4, Floor No.: G and Building No.: Block D. Both agreements also state that the property is land held under Master Title No. H.S. (D) 99535, P.T. No. 16914 (formerly Lots 9016 and 9017) in the Mukim of Batu, District of Kuala Lumpur. [20] On the other hand, the property in the Principal Agreement is described in the First Schedule as a “shop lot” located in Parcel No.: 4, Building No.: Block D, Floor No.: G, where the “saleable area (parcel including accessories parcel) measured approximately 1,188 sq. ft. The property under the Principal Agreement is part of lands held under Master Title No. H.S. (D) 98840, P.T. No. 16279 (formerly Lots 9016 and 9017). [21] The learned Judge found that it could not be reasonably inferred that all the above referred to the same subject property. In the Deed of Assignment of Tenancy, the property referred to as the “Demised Premises” was described as “All that shop lot of the said property.” All this constituted discrepancies compounded by the fact that there is a difference in the size of the property – under the SPA, it is 840 sq. ft. whereas under the Principal Agreement, it is 1.188 sq. ft. were reasons why it could not be reasonably inferred that the plaintiffs’ SPA with the 5th defendant concerned the same property referred to as “D-G-5” and/or “D-0-5”. 14 [22] With respect, we disagree. [23] The discrepancy, if at all there is one, appears to be in the description of the Master Title. Under the Principal Agreement, it is known as Master Title No. H.S. (D) 98840, P.T. No. 16279 (formerly Lots 9016 and 9017)