1. ) Vital Living Empire Sdn Bhd v Elegant Group Sdn Bhd (WA-12ANCvC-16-02/2025)

VITAL LIVING EMPIRE SDN BHD (Company No.: 1125321-T)

2.

VIGNESWARAN A/L AH WALI ... APPELLANTS AND ELEGANT GROUP SDN BHD (Company No.: 159996-U) ... RESPONDENT [IN THE SESSIONS COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA CIVIL SUIT NO.: WA-B52NCVC-481-11/2022

VITAL LIVING EMPIRE SDN BHD (Company No.: 1125321-T)

SASHITHERAN A/L ANAGASABAPATHI 19/09/2025 11:02:44 WA-12ANCvC-16-02/2025 Kand. 44 S/N tjV1toaTg0CKypzrOK6kfA

VIGNESWARAN A/L AH WALI ... PLAINTIFFS

ELEGANT GROUP SDN BHD (Company No.: 159996-U)

2.

3.

YEW DING WEI (THE 3RD AND 4TH DEFENDANTS SUED AS A FIRM PRACTISING UNDER THE NAME AND STYLE OF NGEOW & TAN ADVOCATES & SOLICITORS] ... DEFENDANTS

By the Notice of Appeal dated 18.2.2025, the Appellants appealed against the decision of the learned Sessions Court Judge (‘SCJ’) made on 12.2.2025 in deciding to allow the Respondent’s application (encl. 93) to enter summary judgment against the Appellants with costs of RM3,000.00 pursuant to O. 14, r. 5 of the Rules of Court 2012 (‘RC 2012’). S/N tjV1toaTg0CKypzrOK6kfA

After having considered the Record of Appeal and the oral and written submissions by the parties, I was satisfied that there are triable issues and this is not a case which is fit to be disposed summarily. Therefore, the Appellants’ appeal was allowed and the case was remitted to the Sessions Court to be heard before a different Judge. A case management (‘CM’) date was given on 6.8.2025 by e-review before the Registrar.

Dissatisfied, the Respondent has appealed against my decision. These are my full grounds for purposes of the appeal.

The parties shall hereinafter be referred to as they were in the court below.

The 1st Plaintiff (‘P1’), formerly known as Usaha Pintar Group Sdn Bhd, is a private limited company incorporated in Malaysia with a registered address at CT-09-12, Corporate Tower, Subang Square, Jalan SS15/4G, 47500 Subang Jaya, Selangor Darul Ehsan. P1 is in the business of Diagnostic and Health Centres.

The 2nd Plaintiff (‘P2’) and 3rd Plaintiff (‘P3’) are directors and shareholders of P1 whose addresses for service are at Sungai Buloh and Ampang Jaya, Selangor, respectively. S/N tjV1toaTg0CKypzrOK6kfA

The 1st Defendant (‘D1’) is a company incorporated under Malaysian law with an address for service at Block J, J-05-02, 2 Persiaran Jalil Utama, Bukit Jalil, 57000 Kuala Lumpur.

The 2nd Defendant (‘D2’) represented himself to be an advocate and solicitor practicing in the law firm of Ngeow & Tan Advocates & Solicitors, B-06-03A, Gateway Corporates Suites, Gateway Kiaramas, No. 1 Jalan Desa Kiara, 50480 Mont Kiara, Kuala Lumpur.

The 3rd Defendant (‘D3’) and 4th Defendant (‘D4’) are partners of the law firm of Ngeow & Tan Advocates & Solicitors.

D1 is the registered owner and landlord of the premises known as –

No. 1 & 3 (4th Floor), Lorong 4/137C, Batu 5, Jalan Klang Lama, 58200 Kuala Lumpur (‘Lot 1 & 3’); and

No. 5 (4th Floor), Lorong 4/137C, Batu 5, Jalan Klang Lama, 58200 Kuala Lumpur (‘Lot 5’) (hereinafter collectively referred to as the ‘Demised Premises’).

D1 had, vide two separate tenancy agreements (‘Tenancy Agreements’), agreed to rent the Demised Premises and P1 has agreed to accept the same, the particulars of which are as follows: S/N tjV1toaTg0CKypzrOK6kfA

In relation to Lot 1 & 3, the Tenancy Agreement dated 24.12.2020 was executed by P1 and D1 (‘TA for Lot 1 & 3’) for a term of tenancy of three years commencing from 1.2.2021 until 31.1.2024 upon the following monthly rental rates to be paid in advance on or before the 7th day of each month:

RM14,000.00 for the period 1.2.2021 until 31.1.2022;

(ii) RM17,000.00 for the period 1.2.2022 until 31.1.2023; and

(iii) RM23,000.00 for the period 1.2.2023 until 31.1.2024.

In relation to Lot 5, the Tenancy Agreement dated 15.2.2021 was executed by P1 and D1 (‘TA for Lot 5’) for a term of tenancy of three years commencing from 1.3.2021 until 29.2.2024 upon the following monthly rental rates to be paid in advance on or before the 7th day of each month:

RM5,000.00 for the period of 1.3.2021 until 28.2.2022;

(ii) RM5,500.00 for the period of 1.3.2022 until 28.2.2023; and S/N tjV1toaTg0CKypzrOK6kfA

(iii) RM6,000.00 for the period of 1.3.2023 until 29.2.2024; and an additional RM400.00 per month for the exclusive use of the Ground Floor Lift Lobby at Lot 1.

The terms and conditions in the Tenancy Agreements are identical.

Since November 2021, P1 had fallen in arrears in making payments towards monthly rentals, lift maintenance fees and utilities charges for the Demised Premises.

D1 then instructed its previous solicitors, Messrs. Ngeow & Tan (‘Firm’), to issue numerous letters to P1 to demand for all outstanding payments which were due and payable to D1.

In the Firm’s letter dated 27.7.2022, notice was given to terminate the Tenancy Agreements and to demand for all outstanding payments amounting to RM282,552.41 as at 14.7.2022 and the return of vacant possession of the Demised Premises to D1 on or before 1.9.2022.

Throughout the period from July 2022 until September 2022, P1 had, through P2 and P3, on numerous occasions sought D1’s indulgence for extension of time to settle the outstanding sums and had conveyed several settlement proposals, which were ultimately rejected by D1. The details of the exchange of S/N tjV1toaTg0CKypzrOK6kfA proposals between P1 and D1 between 5.8.2022 and 19.9.2022 were pleaded in the Statement of Claim (‘SoC’).

On 5.10.2022, D1 had instructed the Firm to terminate the Tenancy Agreements effectively on the same date and to demand for delivery of vacant possession of the Demised Premises in an original and tenantable condition to D1 within seven days from 5.10.2022, failing which P1 shall be liable to double rental for holding over the Demised Premises without D1’s consent (‘Notices of Termination’).

The Plaintiffs commenced the present action against the Defendants on 4.11.2022 whereby in the SoC, it was pleaded, among others, that –

there was a variation of the payment terms by conduct of the parties. During the first round of negotiations between P1 and D1, it was agreed that the rental should be varied and paid in instalments with interest;

on 1.9.2022, P3 had attended a meeting at the Firm and D2 assured that P1’s proposal for settlement will or shall be accepted by D1 subject to P2 and P3 signing a Letter of Guarantee and Indemnity (‘LGI’). Acting on this promise or assurance, P2 and P3 signed the LGI on 2.9.2022. The events which transpired on these dates were said to have led to a second contract being formed (‘Second Contract’); and S/N tjV1toaTg0CKypzrOK6kfA

the LGI imposed new prejudicial terms on P2 and P3 and is illegal due to fraud, fraudulent misrepresentation and/ or negligent misrepresentation.

The Plaintiffs had applied for an Interim Injunction to restrain D1 from interfering with P1’s possession and quiet enjoyment of the Demised Premises. This injunction application was dismissed by the Sessions Court and the Plaintiffs’ appeal was dismissed by the High Court.

Thereafter, D2, D3 and D4 applied to strike out the Plaintiffs’ claim pursuant to O.18, r. 19(1) RC 2012. The Sessions Court allowed the application and the Plaintiffs’ appeal was similarly dismissed by the High Court.

Next was D1’s application to strike out the Plaintiffs’ claim pursuant to O.18, r. 19(1) RC 2012 which was allowed by the Sessions Court and the decision was affirmed by the High Court.

The Plaintiffs have appealed to the Court of Appeal in respect of the decision by the High Court in relation to the striking out applications by the Defendants.

D1, in exercising its rights to recover vacant possession of the Demised Premises, had applied – S/N tjV1toaTg0CKypzrOK6kfA

vide Originating Summons No. WA-A54-120 09/2023 for an order for P1 to handover vacant possession of the Demised Premises along with the keys to the same; and

for summary judgment against P1 pursuant to O. 81 RC 2012 for an order that P1 deliver vacant possession of the Demised Premises to D1. This application was not challenged by the Plaintiffs and was subsequently allowed by the Sessions Court.

On 9.4.2024, P3 made arrangements for the removal of P1’s belongings from the Demised Premises and returned the keys to the Demised Premises to D1’s representative.

Although vacant possession of the Demised Premises was returned to D1, the Demised Premises were not in its original and tenantable condition as P1’s belongings had not been completely removed.

On 30.4.2024, D1 had instructed its solicitors to issue a letter to highlight the breaches committed by P1 under the Tenancy Agreements and to demand for all losses and damages suffered by D1.

In the light of events which had transpired after the filing of D1’s Amended Defence and Amended Counterclaim on 13.12.2022, D1 had applied to amend its pleadings. The application was not challenged by the Plaintiffs and following the amendments S/N tjV1toaTg0CKypzrOK6kfA made to D1’s pleadings, the Plaintiffs did not make any amendments to their pleadings.

D1 then applied for summary judgment against the Plaintiffs on its counterclaim premised upon the following heads of claim:

the total outstanding rentals, lift maintenance charges, electricity charges, water charges, sewerage charges and late payment interests in relation to the Demised Premises as at the termination of the Tenancy Agreements on 12.10.2022;

basic rental along with additional rental pursuant to s 28(4)(a) of the Civil Law Act 1956 [Act 67] for the Demised Premises for the period of holding over from 13.10.2022 until 9.4.2024 (545 days);

the total electricity charges, water charges, sewerage charges and lift maintenance charges arising from the usage and occupation of the Demised Premises throughout the period of holding over;

the costs for the repair of the damages and impairments to the fixtures, fittings and furniture within the Demised Premises arising from P1’s usage and occupation of the Demised Premises; and S/N tjV1toaTg0CKypzrOK6kfA

legal costs and expenses incurred by D1 for legal representation and in advancing D1’s rights and remedies pursuant to the Tenancy Agreements.

In defending the counterclaim, the Plaintiffs relied on their pleadings in the SoC. In essence, the Plaintiffs claimed that the Notices of Termination are invalid and cannot be enforced, and that rental for the alleged period of holding over is inapplicable, in the light of the Second Contract.

O. 14, rr. 1 and 5 of the RC 2012 provide that: “Application by plaintiff for summary judgment (O. 14, r. 1)

1.

Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant. S/N tjV1toaTg0CKypzrOK6kfA

Subject to paragraph (3), this rule applies to every action begun by writ other than —

a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or

a claim by the plaintiff based on an allegation of fraud. ... Application for summary judgment on counterclaim (O. 14, r. 5)

5.

Where a defendant to an action begun by writ has served a counterclaim on the plaintiff, then, subject to paragraph (3), the defendant may, on the ground that the plaintiff has no defence to a claim made in the counterclaim, or to a particular part of such a claim, apply to the Court for judgment against the plaintiff on that claim or part.

Rules 2, 3 and 4 shall apply in relation to an application under this rule as they apply in relation to an application under rule 1 but with the following modifications: S/N tjV1toaTg0CKypzrOK6kfA

references to the plaintiff and defendant shall be construed as references to the defendant and plaintiff respectively;

the words “any counterclaim made or raised by the defendant in” in rule 3(2) shall be omitted; and

the references in rule 4(3) to the action shall be construed as a reference to the counterclaim to which the application under this rule relates.

This rule does not apply to a counterclaim which includes any such claim as is referred to in rule 1(2).”.

In Muhammad Zahir Sanjay bin Abdullah (Yang Beramal Atas Nama dan Gaya Tetuan Muhammad Zahir) v Mega Taikun Holdings Sdn Bhd & Ors [2024] MLJU 2650, I said the following as regards the legal principles on appellate intervention: “[32] All appeals to the High Court shall be by way of re-hearing (see s 29 of the Courts of Judicature Act 1964 [Act 91] and O. 55, r. 2 of the RC 2012). [33] It is settled law that an appellate court will not intervene with the decision of the court at first S/N tjV1toaTg0CKypzrOK6kfA instance unless the court below is shown to be plainly wrong in arriving at the decision. A decision which was arrived at without judicial appreciation of the evidence or which cannot reasonably be explained or justified and one which no reasonable judge could have reached, is susceptible to appellate intervention (see Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 (FC) for the central feature of appellate intervention and Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC) for a comprehensive discussion of the case authorities on the legal principles).”. The SCJ’s decision and the Grounds of Appeal

The SCJ found that, based on the Affidavit In Support (‘AIS’), D1 has proven a prima facie case that there was a tenancy agreement between D1 as the landlord and the Plaintiffs as the tenants, and that the Plaintiffs have breached the agreement by failing to pay the rentals, maintenance fee and utility charges. The SCJ cited the case of Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685 where it was held that: “In an application under O.14 RHC, the burden is on the Plaintiff to establish the following conditions: (i) that the S/N tjV1toaTg0CKypzrOK6kfA defendant must have entered appearance; (ii) that the statement of claim must have been served on the defendant; and (iii) that the affidavit in support must comply with r.2 of O.14 RHC in that it must verify the facts on which the claim is based and must state the deponent's belief that there is no defence to the claim. Once those conditions are fulfilled, the burden then shifts to the defendant to raise triable issues. The law on this is trite.”.

The SCJ noted that the Plaintiffs did not file an affidavit to reply to D1’s application. The SCJ applied the legal principle in Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 that “In evaluating affidavit evidence, where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted.”.

The other findings by the SCJ will be discussed in the subsequent part of this judgment.

At the outset, it should be made clear that I was fully cognisant of the fact that the Plaintiffs did not file an affidavit to reply to the AIS. Hence, in the deliberation of this appeal, I only considered the Plaintiffs’ pleadings and the submissions by their counsel on points of law.

At the CM on 21.3.2025, the Plaintiffs’ counsel had identified the following grounds for purposes of the present appeal, namely, S/N tjV1toaTg0CKypzrOK6kfA that the SCJ had erred in fact and in law by failing to notice that –

the Plaintiffs had pleaded fraud and misrepresentation in this case;

the Plaintiffs have raised a triable issue, namely whether there exists a Second Contract between the parties;

the outstanding sums claimed by D1 is wrong; and

the Plaintiffs are pursuing two ongoing appeals before the Court of Appeal regarding the striking out of the Plaintiffs’ claims against the Defendants. 1st Ground: Whether the SCJ erred in fact and in law by failing to appreciate that the Plaintiffs have a triable issue as they have pleaded fraud and misrepresentation

The SCJ’s reasoning is quoted below for the ease of reference: “4. Plaintif-Plaintif juga mendakwa bahawa Plaintif kedua dan Ketiga telah didorong untuk melaksanakan Surat Jaminan (Letter of Guarantee and Indemnity) akibat daripada frod dan / atau salah nyata melalui ‘representasi’ Satis Kumar (Defendan Kedua) sebagai ‘ejen’ firma tersebut. D1 tidak terlibat dalam apa-apa pernyataan yang didakwa palsu tersebut dan oleh S/N tjV1toaTg0CKypzrOK6kfA demikian sebarang representasi sekiranya ada dibuat oleh Satis Kumar (kewujudannya dinafikan oleh D1) tidak mengikat … Firma tersebut atau Defendan Pertama. Mahkamah juga bersetuju bahawa Plaintif Kedua dan Ketiga tidak melaksanakan Surat Jaminan berkenaan di bawah paksaan malah mereka secara sukarela menandatanganinya dalam percubaan untuk mendapat lebih masa untuk menyelesaikan tunggakannya. Ini kerana Plaintif-Plaintif tidak pernah membangkitkan isu paksaan, penipuan dan salah representasi ini sehinggalah Defendan Pertama menamatkan perjanjian sewaan ini. Plaintif Pertama dan Kedua juga tidak membuat sebarang laporan polis untuk menunjukkan mereka telah dipaksa dan ditipu untuk menandatangani Surat Jaminan berkenaan. Di dalam kes David Wong Hon Leong v Noorazman Bin Adnan [1995] 4 CLJ 155 Mahkamah Rayuan menyatakan “If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant...”.

In gist, D1 submitted that –

the Plaintiffs’ reliance on O. 14, r. 1(2)(b) of the RC 2012 and the case of Letchumanan Chettiar Alagappan @ L Alagappan & Anor v Secure Plantation Sdn Bhd [2017] 3 MLRA 501 was misconceived because D1’s claim was S/N tjV1toaTg0CKypzrOK6kfA strictly based on the breach of the Tenancy Agreements and it does not involve any elements of fraud. It was the Plaintiffs’ themselves who introduced allegations of fraud in their separate claim against the Defendants. Crucially, the Plaintiffs’ claim has been struck out by the Sessions Court. Hence, the Plaintiffs’ reliance on fraud as a defence was legally unsustainable and procedurally irrelevant;

there was no proof of a settlement or a Second Contract being formed between P1 and D1. There was no evidence that D2 gave the alleged promise or assurance to P3, and there is no authority given by D1 to D2 to make such promise or assurance on D1’s behalf;

the Plaintiffs’ act in taking steps to further negotiate settlement terms by furnishing new proposals to D1 defeats the existence of the alleged Second Contract;

P2 and P3 were not induced or forced to execute the LGI but it was voluntarily executed and handed over by them in an attempt to seek D1’s indulgence for more time to settle their arrears; and

the inconsistencies in the Plaintiffs’ version of events renders the Plaintiffs’ allegations to be merely bare allegations, lacking in probative value and illegitimate. During that material time, there was no mention of any fraud or misrepresentation in any of the correspondences issued by the Plaintiffs. The allegation was made for the S/N tjV1toaTg0CKypzrOK6kfA first time after D1 decided to terminate the Tenancy Agreements.

The fact that the Plaintiffs have pleaded fraud, fraudulent misrepresentation and negligent misrepresentation in in the SoC cannot be disputed. Fraud was raised, among others, because the Tenancy Agreements were between P1 and D1 and there was no requirement for a LGI. The need for the LGI came about when D2 purportedly made a fraudulent misrepresentation that P1’s proposal for settlement will be accepted by D1 once the LGI was signed.

It was also pleaded that the representations made by the Defendants were false as D2 was not an advocate and solicitor at the material time; D1 had refused the Plaintiffs’ proposal for settlement and demanded a higher sum and suggested a new payment scheme; and P1 subsequently received the Notices of Termination.

Having scrutinised the Plaintiffs’ defence to the counterclaim, where much of their response is as pleaded in the SoC, I am unable to agree with the Defendants’ contention that the Plaintiffs had merely used the word “fraud” and nothing more. The SoC contains sufficient pleadings on the purported representations made and particulars of fraud and misrepresentation. Although the Defendants were successful in striking out the Plaintiffs’ claim, pending the outcome of the appeals at the Court of Appeal, the Plaintiffs are entitled to defend the counterclaim based on their pleaded defence. S/N tjV1toaTg0CKypzrOK6kfA

Moreover, I observed that there was only a one-month gap each between the time when the LGI was executed (2.9.2022) and the issuance of the Notices of Termination (5.10.2022) and followed by the filing of the Plaintiffs suit in the court below (4.11.2022). Hence, the Defendants assertion that it is reasonable to expect a prompt and vigorous challenge if the Plaintiffs have a genuine dispute or objection to the LGI has actually been fulfilled by the commencement of the suit by the Plaintiffs.

In the circumstances, the Plaintiffs were not wrong to rely on O. 14, r. 1(2)(b) of the RC 2012 and the case of Letchumanan Chettiar Alagappan. It is not possible, at the stage of hearing of encl. 93, to make any conclusive finding that the Plaintiffs’ allegations of fraud and misrepresentation are “obviously unsustainable, lacking in probative value and does not merit it to be herd and tried” as submitted by the Defendants.

In South East Asia Insurance Bhd v Kerajaan Malaysia [1996] 2 MLRA 659, the Court of Appeal held that if a defendant in an O. 14 application succeeds in raising even a single triable issue, it will not be a fit and proper case to order summary judgement.

As the Plaintiffs have pleaded fraud, fraudulent misrepresentation and negligent misrepresentation as part of their defence to the counterclaim, and the SCJ did not factor this in her deliberation of the application in encl. 93, I was constrained to find and hold that the SCJ was plainly wrong in S/N tjV1toaTg0CKypzrOK6kfA concluding that the Plaintiffs have not raised any triable issue and it was a fit and proper case to order summary judgement in favour of D1. 2nd Ground: Whether the SCJ erred in fact and in law by failing to appreciate that the Plaintiffs have a triable issue i.e. whether there is a Second Contract between the parties

On the issue of the alleged existence of a Second Contract, the SCJ held that: “2. Mahkamah juga bersetuju dengan hujahan Defendan Pertama bahawa dakwaan bahawa terdapat perjanjian penyelesaian yang dipersetujui oleh pihak-pihak yang mengubah dan memberi variasi kepada perjanjian asal adalah satu dakwaan yang tidak benar dan hanya untuk mengelirukan Mahkamah semata-mata. Perjanjian-Perjanjian Penyewaan telah menyatakan di Klausa 9 bahawa sebarang perubahan kepada mana-mana terma dalam Perjanjian-Perjanjian Sewa adalah tidak sah melainkan dibuat secara tulis dan ditandatangani oleh pihak-pihak. [m/s 80 & 99 Afidavit D1 (Jilid 1), Lamp. 94] Di dalam hal ini, Plaintif-Plaintif gagal menunjukkan terdapat perubahan bertulis seperti yang diperuntukkan ini. Oleh demikian, terma-terma di S/N tjV1toaTg0CKypzrOK6kfA bawah Perjanjian-Perjanjian Penyewaan kekal mengikat Plaintif-Plaintif.

Mahkamah juga bersetuju dengan Defendan Pertama berkenaan isu Perjanjian Penyelesaian yang didakwa dimasuki pada 1.9.2022 dan / atau 2.9.2022. Defendan Pertama telah menegaskan bahawa langsung tiada sebarang perjanjian penyelesaian dicapai antara pihak-pihak. Dengan merujuk kepada dokumen-dokumen kontemporari yang dikemukakan, tiada sebarang bukti yang menunjukkan bahawa suatu penyelesaian atau perjanjian akhirnya dicapai antara Plaintif Pertama dan Defendan Pertama. Kedua-dua Plaintif dan Defendan hanya terlibat dalam rundingan penyelesaian di mana terma-terma cadangan hanya ditukar antara pihak-pihak. Akhirnya, tiada sebarang consensus ad idem (“meeting of the minds”) tercapai untuk memuktamadkan satu persetujuan.”.

Clause 9 in the Tenancy Agreements on “Variation” states that “No variation or modification of any of the terms of this Agreement shall be valid unless in writing and signed by or on behalf of the parties hereto.”. D1 contended that, based on this Clause, any variation to the terms contained in the Tenancy Agreements shall not be valid unless made in writing and signed by P1 and D1. S/N tjV1toaTg0CKypzrOK6kfA

However, there was nothing to show that an agreement or settlement was finally reached between P1 and D1 by way of an express acceptance by both parties in writing. P1 and D1 were merely engaged in settlement negotiations whereby proposal terms were being exchanged between them. P1’s conduct, through P2 and P3, by repeatedly requesting D1 to consider its numerous counter proposals extinguishes the existence of the alleged Second Contract.

Firstly, Clause 9 is in the Tenancy Agreements which were signed by P1 and D1. P2 and P3 are not parties to the Tenancy Agreements and cannot be held to be bound by the said Clause.

P2’s and P3’s grievances were in relation to the LGI. As mentioned earlier, the Plaintiffs have pleaded that the events which transpired on 1.9.2022 and 2.9.2022 are, for want of a better word, the “Second Contract”. These events revolve around the signing of the LGI. In the counterclaim, D1 sought to attach liability on P2 and P3 as personal guarantors of P1 vide the LGI. As D1 has denied the existence of the Second Contract, in my considered view, the question on whether there is a Second Contract between the parties is a triable issue and the SCJ had erred in failing to recognise this. S/N tjV1toaTg0CKypzrOK6kfA 3rd Ground: Whether the SCJ erred in fact and in law by failing to recognise that the outstanding payment amount submitted by the Defendant was incorrect

The Plaintiffs contended that the SCJ had erred in allowing the application in encl. 93 when the calculation of the outstanding sum owed was wrong and this in itself is a triable issue.

To support their argument, the Plaintiffs relied on the letter dated 29.9.2022 from Messrs. Paniercelvan & Co to Messrs. Ngeow & Tan and payment of the sum of RM164,750.00 to D1 on 23.2.2023 vide a cheque.

However, I did not consider the 3rd ground of appeal because it involves issues of fact and reference to documents whereas the Plaintiffs did not file an affidavit to oppose D1’s averments in the AIS and to exhibit the relevant documents. 4th Ground: Whether the SCJ erred in fact and in law by failing to consider that the Plaintiffs have two appeals which are pending before the CA

The Plaintiffs submitted that there are two appeals pending in respect of encls. 8 and 50, which are D1’s and D2’s to D4’s applications to strike out the Plaintiffs’ claim. In the event the Court of Appeal allows either one or both appeals, the summary judgment obtained by D1 would become redundant or academic S/N tjV1toaTg0CKypzrOK6kfA because one of the grounds in these appeals is that the Plaintiffs have pleaded fraud.

I did not consider the 4th ground of appeal because it was not raised by the Plaintiffs in the application before the SCJ. Furthermore, the Plaintiffs had applied for a stay of the proceedings vide the Notice of Applications dated 1.9.2023 and 25.9.2024 but these were dismissed by the Sessions Court on 23.1.2024 and 12.2.2025, respectively.

In any event, I agree with D1’s submission that, notwithstanding the two appeals at the CA, D1’s counterclaim against the Plaintiffs is a separate action which is independent of the Plaintiffs’ claim. It is for this very reason that the Plaintiffs are entitled to rely on their pleadings in defence of D1’s counterclaim, including references to the SoC, unaffected by the previous orders made by the court as regards the Defendants’ striking out applications.

Premised on the abovesaid considerations, the appeal was allowed with costs of RM5,000.00, subject to allocatur.

After I pronounced the decision to allow the appeal, the Defendants’ counsel drew my attention to pp 17 and 18 of the NoE (encl. 18) and enquired whether the appeal was allowed against all the Plaintiffs or only for P2 and P3 as the Plaintiffs’ S/N tjV1toaTg0CKypzrOK6kfA counsel had stated in the court below that he has no issue with prayers 1 to 10 of encl. 93 i.e. for payments to be made by P1 to D1.

The Plaintiffs’ counsel retorted that the Notice of Appeal is by all three Plaintiffs against the entire decision by the SCJ and hence, the appeal must have been allowed in respect of all the Plaintiffs. I agreed with the learned counsel. Dated: 18.9.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Solicitors for the Appellants : Bhavanash Sharma Messrs. Bhavanash Sharma Solicitors for the Respondent : Brandon Chee (Sarah Chan with him) Messrs. S F Chan & Co S/N tjV1toaTg0CKypzrOK6kfA