1. ) Toh Shu Hua v 1. ) Wawasan Rajawali Sdn Bhd (WA-22NCvC-296-05/2019)

TOH SHU HUA

TOH SHU CHING

AHMAD FARID BIN MOHD SHAHBUDIN

JOEAKMAL BIN JOHARI

HAIRUL HILMI BIN RAMLEE

AQILAH BINTI YAHAYA

MUHAMMAD FARHAN BIN MISNAN

MOHD ASMIZAL BIN CHE MAT

NIK ALYANI BINTI NIK ABDUL ADEL

SURIYANI BINTI KADIR (NOMBOR KP: 790129-11-5108_ 10/01/2023 11:31:52 WA-22NCvC-296-05/2019 Kand. 339 S/N 8umjH72JIEqiG9Dsl0Hohw

NIK AZFA AHMAD BIN NIK AZIZ

MOHAMAD PETRA BIN MUZAMMEL

ELEENA AQMAL BIN AB RAHIM

ZARINA BT ABU BAKAR

LEE KEAN WAH

NIK HAZWANI BIN HASHIM @ NIK HASHIM

EDI AZRUL BIN AG HAMAT

HARME BIN MOHAMED

SHARON SUSAN HIU

TUTY ZALMY BINTI MOHD HASIM

ILANGO S/O K KULANDAVELU (NOMBOR KP: E1398930A – REPUBLIC OF SINGAPORE)

TAMILMANGAI RAMASAMY (NOMBOR KP : E33699671 – REPUBLIC OF SINGAPORE) S/N 8umjH72JIEqiG9Dsl0Hohw

NORSYIMA BINTI ISMAIL

MAIZATUL AZMA BT MASRI

SITI HANOM BINTI MARJUNI

NURUL FATHIHAH BINTI ZAINAL ABIDIN

NURFAIKA BINTI MUHAMAD

LIEW SIEW KHEI

YONG CHUN YEE

FARRAH FELINDA HANIM BINTI RAZALI

OH EN YEE

OH EN THEAN

NORYANI BINTI MOHD SAMAT

SARAVANAN RAJ A/L MUNISAMY (NOMBOR KP: 801022-05-5249) S/N 8umjH72JIEqiG9Dsl0Hohw

WONG LU YIT

MOHD FAUDZI BIN MUSA

NAZITA BINTI YAACOB

FOO VAN JEAN

PHOO SIANG CHUEN

CHIN SIANG PING

MARLIZAN BIN MUHAMMAD YUSOFF

ALI II BIN ALI @ LEE KING HONG

CHANG YANG YI

NOR KATRINA ANIS BIN AHMAD GHANI

MUHAMMAD HAKIMI BIN ZARIME

AHMAD HAIFEEZ BIN KAMARUDIN (NOMBOR KP: 760912-06-5459) S/N 8umjH72JIEqiG9Dsl0Hohw

ENGKU INTAN KARTINI BT ENGKU ABD RAHMAN

AHMAD FAIZ BIN AWANG @ MUSTAFA

KU NORILHAM BIN IMAM ASMAWI

FOO KAI LENG

AZAM BIN ABAS

CHANG YANG YAW

SYED MUHAMMAD AFDHAL BIN S AHMAD GHAZALI

MOHAMMED ZEKRI BIN GHAZALI

LAM CHOOI FOONG

MUHAMAD ZHARIF BIN NOR ASIKIN

IDA HARYANI BINTI MOHAMAD KHAIRI

TEO KOK LEONG (NOMBOR KP: 820424-10-5169) S/N 8umjH72JIEqiG9Dsl0Hohw

KOH GOON FOONG

TEW LAY SHAN

TEO YING HUI

KU NORZAINUN BINTI IMAM ASMAWI

TEH SIOK HAR

STANISLAUS JOSEPH ANTONY IRUDAYARAJ (NOMBOR KP: Z1809314 – REPUBLIC OF INDIA)

MICHELLE YEO SUK LING

MOHD KHAIRI BIN KADIR

ZULKIFLI BIN MOHD ZIN

WOOI LANG ZHUANG

KEONG WEI HAN

AIDA ZETI BINTI ZAINAL KASSIM (NOMBOR KP: 781116-06-5346) S/N 8umjH72JIEqiG9Dsl0Hohw

SALMAN BIN HAJI HASAMUDDIN

ROSZETA BINTI KASSIM

WALLACE LEE SOON YEW

HO WEI YEN

NOOR HAZIANTI BINTI DESA

CHEAM SHEUE JIN

RAHA BINTI ABDUL KADIR

SHARIFAH ZAKIAH BINTI SYED SAHAB

GOH LIP HAU

SHUM LAI KWAN

ANJALAI A/P SINASAMY

AB HALIM BIN SANIB @ MUSANNIF NOMBOR KP: 750408-01-6595) S/N 8umjH72JIEqiG9Dsl0Hohw

GUNASAKTHI A/P GUNARATNAM

ABDUL FATTAH BIN ISHAK

NOR AMIRAH ATHIRAH BT NOOR AIDI KESUKMA

AZMA BINTI ABDUL RAHMAN

RAFIANEE BINTI A RAZAK

TAN HAK KOON

THIEN SIEW FUN

THIEN FEN KHONG

SITI NUR IZNI BINTI SHAIKH HAMZAH

SITI NURHANI BINTI SHAIKH HAMZAH

ADAM BIN ABDUL RAHMAN

ANAS BIN ADAM (NOMBOR KP: 950421-06-5451) S/N 8umjH72JIEqiG9Dsl0Hohw

MOKHTAR BIN JAMALUDDIN

DZUL FAKHRI BIN ABD RAFFAR

YUSREE BIN MOHD HIDIR

ASMADI BIN BUKHARI

MOHD HAFIZAN BIN ABDUL WAHAB

NURUL ‘AIZAT BINTI ARIFFIN

NORSYIDA BINTI ISMAIL (NOMBOR KP: 820107-14-5562) 102 FAIZAL BIN ZULKIFLI (NOMBOR KP: 860903-78-5049) 103 LIM JIN PIN (NOMBOR KP: 881022-35-5033) 104 LIM PEI FANG (NOMBOR KP: 861213-35-5062) 105 CHONG CHIAW NGAN

WONG KEE KIEN (NOMBOR KP: 690717-10-5143) S/N 8umjH72JIEqiG9Dsl0Hohw

MARZUKI BIN MOHAMMAD

IBRAHIM BIN AHMAD FUAD

NATHANIEL ALAGAN A/L KOVALAN

ARIS FAZILAH @ ISMAIL BIN MUHAMAD

ASTRIYANA BINTI ANUAR

SHARIFAH SALWAH BINTI SYED SAHAB

MOHAMAD JAMI’AN BIN MOHAMAD JAHARUDIN

MOHD IZUDDIN BIN ZULKIFLI

MOHAMAD SYAFIEE BIN ALI

EMI HAFIZZUL BIN JAMALUDDIN

MANIAM A/L C PERIASAMY

MICHELLE YEO SUK LING (NOMBOR KP: 860501-52-5682) S/N 8umjH72JIEqiG9Dsl0Hohw

NOORHASNIDA BINTI KHAIRUDDIN

MOHAMED IZWAN MORIFF BIN MOHD SHARIFF

SHAIKH AHMAD IZZAT BIN SHAIKH HAMZAH

SHAIKH HAMZAH BIN ABDUL RAZAK (NOMBOR KP: 560219-07-5337) ...PLAINTIF-PLAINTIF

WAWASAN RAJAWALI SDN BHD

OSK PROPERTY HOLDINGS BERHAD (NO. SYARIKAT : 201666-D) ...DEFENDAN-DEFENDAN JUDGMENT Introduction

This is a claim brought by 122 Plaintiff’s as a representative action against the Defendants for purchases of apartment in a project known as Eclipse Residence (“the project”) which was developed by the 1st Defendant with the 2nd Defendant being the parent company of the 1st Defendant. S/N 8umjH72JIEqiG9Dsl0Hohw

This matter went for a full trial whereby both parties relied on oral testimony of witnesses, documentary evidence which were contained in the Joint Bundle of Documents as well as a report prepared in pursuance of a site visit directed by the Court. A Summary of the Evidence Adduced

While there was no dispute that the Plaintiffs were the purchasers of the project developed by the 1st Defendant there were a number of grievances by the Plaintiffs against the Defendants which can be summarized from the totality of the evidence adduced.

The grievances of the Plaintiffs against the Defendants could be categorized as follows: i) Late delivery of vacant possession of the apartments purchased; ii) Loss suffered as a result of misrepresentation by the Defendants as to the nature of the project; iii) Damages suffered as a result of prevalent defects both in the apartments purchased as well as common areas;

The Plaintiff further claimed that the 2nd Defendant was vicariously liable for the breach of contract of the 1st Defendant. Finally the Plaintiffs also claimed as the damages are ongoing and no steps have been taken by the Defendants to rectify all the wrongdoings nor has the Defendant showed any remorse, entitled them to aggravated damages S/N 8umjH72JIEqiG9Dsl0Hohw The Issues

The Court viewed that the issues to be decided this case to follow the determination of the grievances of the Plaintiff as categorized above. Damages for Late Delivery

The Court agrees with the submission of the Plaintiff that this issue has been with finality decided by the Apex Court in the case of Ang Ming Lee v Menteri Kesejahteraan Banadar, perumahan dan Kerajaan Tempatan & Anor and other appeals [2020] 1 CLJ 162 where it was stated as follows: “[38] In the case of Sentul Raya Sdn Bhd v. Hariram Jayaram & Ors And Other Appeals [2008] 4 CLJ 618; [2008] 4 MLJ 852, Gopal Sri Ram JCA (as he then was) speaking for the Court of Appeal said: The contract which has fallen for consideration in the present case is a special contract. It is prescribed and regulated by statute. While parties in normal cases of contract have freedom to make provisions between themselves, a housing developer does not enjoy such freedom. Hence parties to a contract in Form H cannot contract out of the scheduled form. Terms more onerous to a purchaser may not be imposed. So too, terms imposing additional obligations on the part of a purchaser may not be included in the statutory form of contract. S/N 8umjH72JIEqiG9Dsl0Hohw [39] The Federal Court in Veronica Lee Ha Ling & Ors v. Maxisegar Sdn Bhd [2009] 6 CLJ 232, reiterated the object of the Act by making the following observation: Now, cl. 23 is part of a statute based contract. In this country, the relationship between a house-buyer and a licensed developer is governed by the Housing Developers legislation. Its object is to protect house buyers against developers. A developer must execute the agreement set out in the schedule to the relevant subsidiary legislation. He cannot add other clauses in it. [40] The Act being a social legislation designed to protect the house buyers, the interests of the purchasers shall be the paramount consideration against the developer. Parliament has entrusted the Minister to safeguard the interests of the purchasers and the Minister has prescribed the terms and conditions of the contract of sale as per Schedule H. We find no contrary indication in the language, scope or object of the Act that such duty to safeguard the interests of the purchasers may be delegated to some other authority. [41] The legislative intent that the duties shall remain with the Minister, may be discerned from ss. 11 and 12 of the Act. Under s. 11, whilst the Controller is given the power to investigate on the reason why a licensed housing developer is unable to meet his obligation to the purchasers, or is about to suspend his building operations or is carrying on his business detrimental to the interests of the purchaser, it is the Minister S/N 8umjH72JIEqiG9Dsl0Hohw who is empowered to give directions and to take such other measures for purposes of safeguarding the interests of the purchasers and for carrying into effect the provisions of the Act. Likewise under s. 12 which provides for the powers of the Minister to give general directions as he considers fit, to the licensed housing developer for purposes of ensuring compliance with the Act. Such directions, which shall be given in writing, are binding on the developer.”

It is clear from the above case that the sale and purchase agreement must comply with the statute and must be read within the ambit of the statute where it is stated that the period of completion of a residential property is 36 months. In this case the letter of extension of completion to a period of 48 months was given by a letter dated 16/12/2013 on behalf of the Controller of Housing. The Controller of Housing has no authority to give extension as decided by the case above and therefore the letter has no legal effect.

The Court also rules that the Defendant’s contention that the Plaintiffs were aware of the extension is of no avail as what is unlawful remains unlawful, even if the parties acquiesce to it. The Contracts Act 1950 is clear where it is stated for a valid contract to exist, neither the consideration nor the object can be unlawful.

The Defendant’s contention that the Plaintiff’s should challenge the extension given by the authorities by way of judicial review is without basis as the Plaintiffs can choose to exercise their rights to challenge the agreement with the Defendant by way of a civil suit S/N 8umjH72JIEqiG9Dsl0Hohw instead of challenging the decision of the Minister which is void ab inito in the first place.

In this case the Court is satisfied that the period of delivery of vacant possession exceeded the 36 months allowed by the law and therefore allowed the Plaintiffs’ claim for late delivery of vacant possession according to the amount claimed in the amended Statement of Claim in accordance with the late delivery for each Plaintiff. Misrepresentation

Misrepresentation under contracts law is as stated in section 18 of the Contracts Act 1950 which states as follows : "Misrepresentation" includes-

(a) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

(b) any breach of duty which, without an intent to deceive, gives an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; and

(c) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement. S/N 8umjH72JIEqiG9Dsl0Hohw

For ‘misrepresentation’ under the law as stated above to operate there must be inter alia a positive assertion in a manner not warranted, breach of duty with intent to give advantage thereby inducing a party to the agreement to make a mistake as to the substance of the agreement.

In this case the positive assertions were contained in the brochures published to market the sale of the apartment to which the public had assess to including to the Plaintiffs. The positive assertion of the project were also made by the sales pitch of the sales person. The publication of the brochures for sale of apartment as well as the sales pitch of the sale executives and construction of sales galley are common features in the sale of properties in Malaysia which this Court can take judicial notice of.

In the light of this it is unnecessary for each of the Plaintiffs to testify in what manner they were individually convinced to purchase the apartments. Even without the oral testimony of each Plaintiff it can be inferred that each of the Plaintiff was induced to buy the property based on any of the sale methods employed by the Defendant.

What reverberated in the sale of the apartment in this project is the promise of a complete township offered by the Developer for the purchasers buying apartment in the project. In other words the project promised a person purchasing a property to enjoy work, play, recreate in in one area. Nowhere is this promise more clearly portrayed than the phrase used in the brochures which reads loud and clear “Your world in one place”. S/N 8umjH72JIEqiG9Dsl0Hohw

Amongst this promise of the world in one place was “ a rustle of leaves and wide wooden walkways along side modern glass and steel” and even more attractive is the residence is “ Esclipse Residence at Pan’gaea is part of a self-sustained integrated development in the heart of Cyberjaya. A true urban gem, the freehold property offers semi-furnished service apartments ranging from 458 – 990 sq ft, A diverse ‘habitat’ in which to work, play and thrive, your neighbours includes the Paragon’s solo suites and boutique retail shops, Sostice service apartments, the apatio, a lively street shopping quarter and the gallery Mall with over 300,000 sq feet of net lettable space. Make your home in one of Pangea’s crown jewels and enjoy the pinnacle of urban living”

The brochure was accompanied by other details including the size of the apartments, the overall impression of the entire project and many other features. The Court rules that the brochures were not merely an invitation to treat as contended by the Defendants but were worded in the form of promises.

It is clear from the evidence adduced that this promises of “your world in one place” was not achieved and not likely to be achieved in the near future, the glaring omission being the shopping mall and other amenities and overall lack of vibrancy promised. It is clear that what was pictured in the brochures was not even remotely visible at present.

The Court cannot accept the arguments of the Defendants that the brochure had an exclusion clause which safeguarded the Defendant S/N 8umjH72JIEqiG9Dsl0Hohw from any discrepancy in the description of the project. For one the exclusion clause was in a fine minute wordings at the bottom of the page. Further in marketing the project there must be a grain of truth in the promise made even if not fully accurate and even if there is an exclusion clause.

In this case the Court noted that the project was not even a semblance of the lifestyle promised and pictured in the marketing of the project. It is a duty upon the Defendant to give a near accurate description of the project which in this case they have failed to do so in this case with the non-completion of many of the amenities promised.

The Court therefore rules that the Defendants did perpetuate misrepresentation on the purchases of the apartment in this project which includes the Plaintiffs in this case. The Court also rules that the Plaintiffs were influenced to buy the apartments in this project, by the way the project was marketed by the 1st Defendant.

The effect of an agreement entered under misrepresentation is as stated under section 19 of the Contracts Act 1950 which provides as follows: 1) When consent to an agreement is caused by coercion, fraud, or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. S/N 8umjH72JIEqiG9Dsl0Hohw

(a) A, intending to deceive B, falsely represents that five hundred gantangs of indigo are made annually at A's factory, and thereby induces B to buy the factory. The contract is voidable at the option of B.

(b) A, by a misrepresentation, leads B erroneously to believe that five hundred gantangs of indigo are made annually at A's factory. B examines the accounts of the factory, which show that only four hundred gantangs of indigo have been made. S/N 8umjH72JIEqiG9Dsl0Hohw After this B buys the factory. The contract is not voidable on account of A's misrepresentation.

(c) B, having discovered a vein of ore on the estate of A, adopts means to conceal, and does conceal, the existence of the ore from A. Through A's ignorance B is enabled to buy the estate at an undervalue. The contract is voidable at the option of A.

(d) A is entitled to succeed to an estate at the death of B; B dies; C, having received intelligence of B's death, prevents the intelligence reaching A, and thus induces A to sell him his interest in the estate. The sale is voidable at the option of A.

From the above provision it is clear that the party suffering the breach by way of misrepresentation may rescind the contract or insist the contract be performed and the Plaintiffs be put in a position if what the representation made were true. This provision negates the Defendants contention that where misrepresentation is proved, the Plaintiffs can only rescind the contract but cannot claim for damages

In this case the Plaintiffs are not seeking to rescind the contract but asking the contract to be performed and that they be put in a position to benefit if the representation were true. The Plaintiffs in this claim seeks to be compensated for the loss of the value of the property which would have otherwise been valued in the event the representation were true. S/N 8umjH72JIEqiG9Dsl0Hohw

For this purpose the Plaintiffs had adduced the evidence of a valuer who has prepared a report of the value of the property in the event all the amenities were provided by the Defendants as promised against the present value in its present state.

In the Court’s view this is not a proper remedy as this loss of value of the property will only be suffered if the Plaintiffs had intention to sell their apartments which none of the Plaintiffs have indicated in this case. In the converse the Plaintiffs are asking for the defects to be rectified. This indicates that the Plaintiffs are intending to stay at the apartments.

The real loss for the Plaintiffs is the loss of enjoyment of the use of the apartments in a manner promised to them. The enjoyment of working, playing recreating all in one place cannot be enjoyed at the moment and even into the future.

It is difficult to quantify this loss of enjoyment but the Court is of the view that some monetary compensation should be awarded. The Court is also of the view that this monetary compensation should be reasonable and should not burden the Defendant, as in this case the claimants are many.

The Court determined therefore the Plaintiffs are entitled to RM50,000 each for the loss of enjoyment on the promise of the 1st Defendant. S/N 8umjH72JIEqiG9Dsl0Hohw Rectification of the Defects

During the proceedings the Court directed both the parties to carry out a joint inspection of the project to determine the actual defects which exists and to prepare a concise report on the defects as well as identify the places the defects are found.

The report on the joint inspection detected defects both in the various apartments as well as in the common areas. The Court ruled that not all defects need to be rectified by the Defendants as some of the defects were minor and no benefit would be gained in rectifying the defects. The Court also decided that the 1st Defendant is responsible for rectifying the defects as the 1st Defendant had been notified of the defects within the defects liability period.

Amongst the defects the Court allowed found in the apartments and this includes all the apartments are for the Defendants to provide a safety harness and a platform for air condition maintenance services. At the moment there was no safety ledge for a person doing the maintenance from outside the apartment.

A number of apartments were also found to be leaking at certain areas and although the source of the leak could not be properly identified the Court viewed it the responsibility of the Defendants to identify the source and rectify it.

There were also a number of apartments where the electrical plugs were at a place that could be hazardous due to presence of water outlets and therefore such electrical plus needed to be moved. S/N 8umjH72JIEqiG9Dsl0Hohw

The Court was also satisfied that a number of apartments which had tiles both on the floor and the wall which were hollows for lack of proper workmanship. The Defendants needed to rectify this.

For the common area the serious defects were wide cracks which could have only be caused by poor workmanship and material which is the responsibility of the Defendants to rectify. There were also public areas in the common area which had the retaining walls lower than the authorised specification and this need to be rectified by the Defendants.

In short for the defects the Court allowed the Plaintiffs’ claim for the defects to be rectified by the Defendants. Aggravated Damages

In this case the Court noted that the Defendants had taken a defiant and combative attitude in matters that could have been resolved much earlier and with the consultation of the residents. There is also no indication or evidence from the Defendant showing that they will carry out all the promises as stated in the brochure especially the ‘world in one place’.

The Court therefore decided that the Plaintiffs are entitled to aggravated damages to the amount of RM2 million to be shared amongst the Plaintiffs. S/N 8umjH72JIEqiG9Dsl0Hohw Vicarious Liability

On the issue of vicarious liability the Court decided that apart from evidence that the 2nd Defendant was the parent company of the 1st Defendant Company there is no evidence of the 2nd Defendant’s involvement of the project which was fully carried out by the 1st Defendant. The Court could not detect any evidence proving that the 2nd Defendant was the controlling mind of the 1st Defendant and therefore this was not a proper case to lift the veil of corporation.

As both the Defendants are separate entities the Court ruled that there was no cause of action by the Plaintiffs against the 2nd Defendant. Conclusion

Based on the factors above the Court allowed the Plaintiffs’ claim against the 1st Defendant with a cost of RM200,000 and dismissed the Plaintiffs’ claim against the 2nd Defendant with a cost of RM30,000. Dated: 6.1.2023 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N 8umjH72JIEqiG9Dsl0Hohw PARTIES For the Plaintiffs: Tetuan Rajadeevan & Assosciates No. 105, Tingkat 1 Langkawi Mall Persiaran Bunga Raya Kuah 07000 Langkawi For the Defendants: Tetuan Lee Hishamuddin Allen & Gledhill Aras 6 Menara 1 Dutamas Solaris Dutamas Dutamas 1 50480 Kuala Lumpur Tetuan Chooi & Co. + Cheang & Ariff 39 Court@Loke Mansion 273A Jalan Medan Tuanku 50300 Kuala Lumpur

Ang Ming Lee v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals [2020] 1 CLJ 162. S/N 8umjH72JIEqiG9Dsl0Hohw