1. ) Toh Chiun Er v Ekovest Capital Sdn Bhd (Dulu Dikenali Sebagai Prompt Capital Sdn Bhd) (WA-22NCvC-281-04/2021)

TOH CHIUN ER

CHENG WEE SIANG

AU YEONG KOON YEE

LAI HO YEE

LOW SAI MON

LEE YUEN KEI

LOH TOO CHIN (NRIC NO.: 630727-10-7148) 27/10/2025 13:04:26

EE HOCK CHOUNG

EE CHERN YANG

PHUAH SIEW CHENG

LIM TECK LEONG

YONG CHENG YEE

CHANG SHING WAN (NRIC NO.: 860602-38-5893) … PLAINTIFFS [The Plaintiffs are initiating and bringing this representative action, suing in their personal capacity and as representatives of all thirteen

Plaintiffs/Purchasers in the housing development project known as “Eko Cheras”

This is an application by the Plaintiffs pursuant to Order 14A and/or Order 92 Rule 4 of the Rules of Court 2012 and/or the inherent jurisdiction of this Court for the following orders:

That this Court shall determine the questions of law or construction of documents as annexed in Annexure 1 herein pursuant to Order 14A and/or Order 92 Rule 4 of the Rules of Court 2012 and/or the inherent jurisdiction of this Court;

That until the determination of the questions of law or construction of documents as annexed in Annexure1 herein pursuant to Order 14A and/or Order 92 Rule 4 of the Rules of Court 2012 and/or the inherent jurisdiction of this Court, any further proceedings in this civil action is stayed;

That an order for the reliefs pursuant to the Plaintiffs’ Writ of Summons dated 23.4.2021 at paragraphs (i) to (q) is granted and the Statement of Claim dated 23.4.2021 at paragraphs 96 (i) to (q) is granted, upon this Court’s determination in respect of the questions of law or construction of documents as annexed in Annexure 1 herein in favour of the Plaintiffs;

Cost; and

Such further reliefs as deemed fit by this Court.

The brief grounds for this application, amongst others, are as follows:

The filing of this application has been agreed upon by both parties, i.e. the Plaintiffs and Defendant.

The Plaintiffs had entered into their respective Sale and Purchase Agreements (as Purchasers) with the Defendant (as Developer, Vendor and Registered Proprietor)

The Defendant had obtained the Partial Certificate of Completion and Compliance (Form F1) which was issued by the Architect (Principal Submitting Person), Dato’ Sri Ar. John Lau Kah Sieng [LAM Registration No.: A/L 92] on 2.5.2019 for the housing project.

The Defendant had issued the Notices of Delivery of Vacant Possession dated 2.5.2019 to the Plaintiffs and requested the Plaintiffs to take vacant possession of their respective parcels.

The Defendant had obtained the Certificate of Completion and Compliance (Form F) which was issued by the Architect (Principal Submitting Person), Dato Sri Ar. John Lau Kah Sieng [LAM Registration No.: A/L 92] on for the housing project 13.9.2019.

However, despite having statutory and contractual obligations, the Defendant had failed to:

Apply for the subdivision of building or land within the prescribed time period pursuant to existing legislation, i.e. the Strata Titles Act 1985;

(ii) Obtain the separate strata titles for the Plaintiffs’ parcels within the prescribed time period pursuant to existing legislation, i.e. the Strata Titles Act 1985;

(iii) Execute and forward a valid and registrable Memorandum of Transfer for the said parcels to the Plaintiffs within the prescribed time period pursuant to existing legislation, i.e. the Strata Titles Act 1985;

(iv) Establish a Joint Management Body for the housing project within the prescribed time period pursuant to existing legislation, i.e. the Strata Management Act 2013; and

Convene the first Annual General Meeting for the Joint Management Body within the prescribed time period pursuant to existing legislation, i.e. the Strata Management Act 2013.

Due to the Defendant’s failures as mentioned at paragraph f (i) to (v) above, the Plaintiffs are entitled to claim general damages against the Defendant.

The further reasonings are as contained in the Plaintiffs’ Affidavit in Support affirmed by Ee Chern Yang on 30.5.2025.

The Questions of Law or Construction of Documents as reflected in Annexure 1 are as follows:

Whether the Defendant has a statutory and contractual obligation, within the prescribed time period pursuant to existing legislations, i.e. the Strata Titles Act 1985, to apply for subdivision of the building or land on which the housing project known as “Eko Cheras” is developed on?

If the answer is yes, whether the Defendant has fulfilled the said obligation?

Whether the Defendant has a statutory and contractual obligation, within the prescribed time period pursuant to existing legislations, i.e. the Strata Titles Act 1985, to obtain separate strata titles for the Plaintiffs’ parcels? S/N Ilcq9tZAmkuxiyz4R1C2dw

If the answer is yes, whether the Defendant has fulfilled the said obligation?

Whether the Defendant has a statutory and contractual obligation, within the prescribed time period pursuant to existing legislations, i.e. the Strata Titles Act 1985, to execute and forward a valid and registrable Memorandum of Transfer for the said parcels to the Plaintiffs?

If the answer is yes, whether the Defendant has fulfilled the said obligation?

If the answer to questions (2), (4) and (6) above are no, whether the Plaintiffs are entitled to claim general damages?

Whether the Defendant has a statutory and contractual obligation, within the prescribed time period pursuant to existing legislations, i.e. the Strata Management Act 2013, to establish a Joint Management Body for the housing project?

If the answer is yes, whether the Defendant has fulfilled the said obligation? S/N Ilcq9tZAmkuxiyz4R1C2dw

Whether the Defendant has a statutory and contractual obligation, within the prescribed time period pursuant to existing legislations, i.e. the Strata Management Act 2013, to convene the first Annual General Meeting for the Joint Management Body?

If the answer is yes, whether the Defendant has fulfilled the said obligation?

If the answer to paragraph 3 Questions (9) and (11) above are no, whether the Plaintiffs are entitled to claim general damages? What led to Order 14A Rules of Court 2012.

On 19.5.2025 during the case management, the Plaintiffs informed Court that they are abandoning Paragraph 96 (Q) Claims (a) to (h) of Encl. 2 [BOP A PP 54 & 55]. The Plaintiffs shall proceed only with prayers (i) to (q).

Both the Plaintiffs and Defendant wish to dispose of the matter on Question of Law under O. 14A ROC 2012 (Disposal of Case on Point of Law) when the matter was called for case management on 13.8.2025. S/N Ilcq9tZAmkuxiyz4R1C2dw Chronology of proceedings

For ease of reference, the relevant contemporaneous documents, proceedings and dates can be gleaned from the table as follows: No.

The cause papers filed in relation to Encl. 64 are as follows:

Plaintiff’s Affidavit in Support of Ee Chern Yang filed on 30.5.2025 (Encl. 65 & 66) and Reply Affidavit of filed on 1.7.2025 (Encl. 68);

Defendant’s Affidavit in Reply of Danial Dee Wang filed on 17.6.2025 (Encl. 67);

Plaintiff’s Written Submissions (Encl. 69), Reply Submissions (Encl. 73) & Bundle of Authorities (Encl. & 74); and

Defendant’s Written Submissions (Encl. 71), Reply Submissions (Encl. 75) and Bundle of Authorities (Encl. 72 & 76).

The Plaintiffs submit that under Clauses 8, 11 (1) and 11 (2) of the Sales and Purchase Agreements and Section 8 of the Strata Titles Act 1985 (Act 318), the Defendant has a statutory and contractual obligations as follows:

To apply for subdivision of building or land within three

months of the procurement of the Certificate of Completion and Compliance (CCC) and thereafter procure separate strata titles to the parcels; and

Within 21 days of the issuance of the strata titles, to execute and forward a valid and registrable Memorandum of Transfer of the parcels to the Plaintiffs.

The Submissions of the Plaintiffs in a nutshell are as follows:

The Defendant has the statutory and contractual obligations in relations to the strata titles (paras. 16 - 20);

The Defendant failed in its statutory and contractual obligation in applying for the subdivision of the building or land, issuing the strata titles and effecting the Memorandums of Transfers within the prescribed period and failed to advance any reasons for such delay and failure (paras. 28 - 32); and

The Defendant’s delay and/or failure to comply with the said statutory and contractual obligations have caused the Plaintiffs to suffer a lack of capital appreciation and diminution in value of the respective parcels, which entitled the Plaintiffs to claim for general damages against the Defendant (para. 33).

The Defendant submits that the delay in the issuance of strata titles was caused by circumstances wholly beyond its control. The Defendant had at all times acted diligently, transparently and in good faith to meet its obligations both under the Sales and Purchase Agreement (SPA) and applicable statutory requirements.

The Defendant had filed the Sijil Formula Unit Syer (SIFUS) application in March 2022 and later applied for the Certificate of Proposed Strata Plan (CPSP) on 21.6.2023. (Encl. 68 Exh. P1) The Defendant later communicated with the Department of Survey and Mapping Malaysia (JUPEM), the Land Office and other relevant authorities to expedite the said application. (Encl, 67 Exh. DN1).

The Submissions of the Defendant in a nutshell are as follows:

the Defendant had complied with its statutory obligations under the Strata Titles Act 1985 and Strata

the Plaintiff have failed to prove any actual loss and therefore the claims for general damages is without legal basis and ought to be dismissed. The Law and the Relevant part of the SPA

Order 14A Rule 2 ROC 2012 reads as follows: “Determination of questions of law or construction (O. 14A, r. 1)

(1) The Court may, upon the application of a party or of its own motion, determine any question of law or construction S/N Ilcq9tZAmkuxiyz4R1C2dw of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that –

such question is suitable for the determination without the full trial of the action; and

such determination will finally determine the entire cause or matter or any claim or issue therein.

On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.

The Court shall not determine any question under Order 14A unless the parties have had an opportunity of being heard on the question.

The relevant part of the said Sales and Purchase Agreement are as follows: Clause 8 “Time shall be the essence of the contract in relation to all provisions of this Agreement.” Clause 11(1) “The Vendor shall, at its own cost and expense and as expeditiously as possible, apply for subdivision of the said Building or Land intended for subdivision into parcels, as the S/N Ilcq9tZAmkuxiyz4R1C2dw case may be, so as to obtain the issue of a separate strata title to the said Parcel under the Strata Titles Act 1985.” Clause 11 (2) “Upon the issuance of the strata title to the said Parcel and subject to the payment of the purchase price by the Purchaser to the Vendor in accordance with subclause 4 (1) and the observance of all the terms and conditions herein provided, the Vendor shall, within twenty-one (21) days, execute or cause the Proprietor to execute a valid and registrable Memorandum of Transfer of the said Parcel in favour of the Purchaser and the Vendor shall forward the same together with the strata title to the Purchaser.”

Section 8 (1) of the Strata Titles Act 1985 (Act 318) reads as follows: “the original proprietor of any alienated land on which there is a building capable of being issued with strata titles shall, within the period specified in subsections (2) and (3), apply in accordance with subsections 8A (1) and 9 (1) for the subdivision of the building or land if at any time he has sold or agreed to sell any parcel in such building or land to any person.”

Section 8 (2) of the Strata Titles Act 1985 (Act 318) reads as follows: “the period within which the requirements of subsection 8A (1) shall be complied with is in the case where the building is completed after the commencement of the Act and the sale of, or agreement to sell, any parcel of the building or the first of such sales or agreements took place before the commencement of the Act, the period is three months from the date the building is completed.”

Section 8 (3) of the Strata Titles Act 1985 (Act 318) reads as follows: “the original proprietor of any alienated land on which the building or land had been issued with the certificate of proposed strata plan under subsection 8A(8),shall apply for subdivision in accordance with subsection 9(1) within a period of one month from the date of issuance of the certificate of proposed strata plan.”

Section 8 (9) of the Strata Titles Act 1985 (Act 318) reads as follows: “for the purposes of paragraphs (2)(b), (c), (d) and (e), the date on which the building is or was completed shall be the S/N Ilcq9tZAmkuxiyz4R1C2dw date on which the certificate of completion and compliance is issued, certified by any local authority to be fit for occupation or use, or certified in accordance with the provisions of any written law for the time being in operation.”

The High Court in the case of Re Bandar Kinrara Properties Sdn. Bhd. (In Liquidation) [2021] 6 CLJ 599 states that it is the duty of the developer to apply for the strata titles in accordance with s. 8 of Act 318 and further decided as follows: “[77] The relevant periods to apply for the subdivision of the building are thereafter mentioned in sub-ss. 8(2) to (4). In short, from a perusal of the said sub-sections, and based on the facts of the matter before this court, the period in which the developer is required to apply for subdivision is three months from the first such sales or agreement took place and under sub-s.8(5) the period specified may, on an application made before its expiry, be extended once by the Director for any further period not exceeding three months.”

The Court of Appeal in the case of Chrishanthini Angela Regina a/p Sebastiampillai v. View Esteem Sdn. Bhd. [2023] 1 MLJ 309 decided as follows: “[28] A careful consideration of cl 29 SPA would show that it is not intended to bar a purchaser from asserting the common S/N Ilcq9tZAmkuxiyz4R1C2dw law rights to claim for damages under the SPA. The legal framework of cl 29 is such that it is a but a mechanism for the purchaser to ensure that defects which shall become apparent within 24 months after VP are rectified. This is provided the 30 days’ notice is received.”

I have read and perused the Affidavits, Written Submissions and Authorities filed by the Plaintiffs and Defendant. I have also considered the Oral Submissions and Arguments forwarded and articulated by the respective parties’ counsel.

The Questions of Law are tabulated in the table as reflected below: No Category of Questions Questions No.

Subdivision of building or land 1 & 2 2. Strata Titles 3 & 4 3. Memorandum of Transfer 5 & 6 4. General Damages 7 & 12 5. Joint Management Body 8 & 9 6.

The Court shall now deal with Questions 1 to 7 only as Questions 8 to 12 were withdrawn by consent during the oral submissions.

To recapitulate, the Plaintiffs had entered into their respective Sale and Purchase Agreements as Purchasers with the Defendant (as Developer, Vendor and Registered Proprietor)

The Defendant had obtained the Certificate of Completion and Compliance (Form F) dated 13.09.2019 which was issued by the Architect (Principal Submitting Person), Dato Sri Ar. John Lau Kah Sieng [LAM Registration No: A/L 92] for the housing project (Encl. 65 & 66 Exh. P1).

The Court in exercising its power under O14A ROC 2012 shall now determine the question of law or construction of these documents arising in any cause or matter such question is suitable for the determination without the full trial of the action and S/N Ilcq9tZAmkuxiyz4R1C2dw that such determination will finally determine the entire cause or matter or any claim or issue therein. (Prayer (a) of Encl. 64)

27.

Apply for the subdivision of building or land within the prescribed time period pursuant to existing legislation, i.e. the Strata Titles Act 1985;

(ii) Obtain the separate strata titles for the Plaintiffs’ parcels within the prescribed time period pursuant to existing legislation, i.e. the Strata Titles Act 1985; and

(iii) Execute and forward a valid and registrable Memorandum of Transfer for the said parcels to the Plaintiffs within the prescribed time period pursuant to existing legislation, i.e. the Strata Titles Act 1985.

The Court is of the considered view that the Defendant has complied with Clause 11 (1) of the SPA “as expeditiously as possible,” and any residual delay cannot be attributed to breach or omission on the Defendant’s part. On the contrary, the Defendant has at all times demonstrated bona fide efforts to fulfil its statutory and contractual duties despite supervening events.

Based on record, the Defendant had, at all times kept purchasers (including the Plaintiffs) duly informed of the ongoing progress of the strata title application and subdivision process. These updates were transparently communicated during the Annual General Meetings (AGMs) of the Joint Management Body (JMB), evidencing the Defendant’s bona fide intention and sustained efforts to comply with its statutory and contractual duties as follows:

At the First AGM (13 August 2022): Purchasers were provided with updates on the Defendant’s efforts.

(ii) At the Second AGM (9 December 2023): It was informed that the application for subdivision had been submitted and that engagement with the relevant authorities was actively ongoing.

(iii) At the Third AGM (7 December 2024): A report was shared confirming that JUPEM had conducted a site inspection in November 2024, and that the process was advancing with strata title issuance anticipated in March 2025 (Exh. DN1 Encl. 67).

The Court is mindful that the Defendant despite facing various constraints and challenges during the Covid-19 pandemic period, and based on the above timeline and sequence of actions, the S/N Ilcq9tZAmkuxiyz4R1C2dw Defendant demonstrated bona fide efforts in discharging its duties under the SPA and the Act 318. Summary of Court’s analysis

The Court makes the following findings:

The Defendant has a statutory and contractual obligation, within the prescribed time period pursuant to existing legislations, i.e. the Strata Titles Act 1985, to apply for subdivision of the building or land on the housing project known as “Eko Cheras”. The Defendant has fulfilled the said obligation in respect of Question 1.

The Defendant has a statutory and contractual obligation, within the prescribed time period pursuant to existing legislations, i.e. the Strata Titles Act 1985, to obtain separate strata titles for the Plaintiffs’ parcels. The Defendant has fulfilled the said obligation in respect of Question 3.

The Defendant has a statutory and contractual obligation, within the prescribed time period pursuant to existing legislations, i.e. the Strata Titles Act 1985, to execute and forward a valid and registrable Memorandum of Transfer S/N Ilcq9tZAmkuxiyz4R1C2dw for the said parcels to the Plaintiffs. The Defendant has fulfilled the said obligation in respect of Question 5.

The answers to the above Questions 1, 3 and 5 are answered in the affirmative. Therefore, the Plaintiffs are not entitled to claim the general damages.

With regards to the claim of general damages, the High Court in the case of Blue Green Network Sdn. Bhd. & Ors v. Pilihan Megah Sdn. Bhd. [2023] MLJU 1405 decided that once the developer had complied with its statutory duty to apply for subdivision, any claim for general damages is deemed academic. Reference is made to the relevant part of the Grounds of Judgment of the case of Blue Green Network (supra) in para 13

as follows: “(c) compensation to the Plaintiffs in the form of general damages to be assessed by this Honourable Court due to the lack of capital appreciation and diminution in value of the Plaintiffs’ parcels? Answer: S/N Ilcq9tZAmkuxiyz4R1C2dw This sub-question of fact is academic and does not arise here at this stage of the Project. The duty of the developer is to apply for subdivision within a prescribed time. After the developer has made the application, the processing of application and issuance of separate strata titles are the statutory functions of the relevant governmental authorities and it is outside the control or responsibility of the developer to procure the issuance of strata title or to cause them to be issued within a fixed period of time.”

Based on the reasons adumbrated above, the Plaintiffs’ Application in Encl. 64 prayers (a), (c) and (d) and the Plaintiffs’ claims in Encl. 2 [para 93 (i) to (q)] are hereby dismissed with costs of RM30,000.00 (subject of allocatur). Dated: 26 September 2025 sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur S/N Ilcq9tZAmkuxiyz4R1C2dw Counsel for the Plaintiffs: Harneshpal Singh Bhullar & Sophia Au Messrs. Lui & Bhullar Kuala Lumpur. Counsel for the Defendant: Shamesh Jeevaratnam & Dashprit Kaur Messrs. Jeeva Partnership Kuala Lumpur. S/N Ilcq9tZAmkuxiyz4R1C2dw