XXXX v Sime Darby Property (Ara Damansara) Sdn Bhd (22C-24-10/2015)

SIME DARBY ARA DAMANSARA … DEFENDANT PERTAMA DEVELOPMENT SDN. BHD (dahulu dikenali sebagai SIME DARBY

ARA HILL JOINT MANAGEMENT BODY … DEFENDANT KEDUA (No. Pendaftaran: 0282) GROUNDS OF JUDGMENT A.

The Plaintiffs comprise of 72 individuals and corporate entities who are the owners, original purchasers, and/or interested parties of the parcel units within the development known as Ara Hill Condominium (“Ara Hill”), located in Ara Damansara, Petaling Jaya. ARA Hill consists of residential condominium and villa units together with common facilities. 29/07/2026 09:32:12 22C-24-10/2015 Kand. 720 2 | P a g e

The 1st Defendant (D1) is the licensed housing developer of Ara Hill, who had entered into Sale and Purchase Agreements (“SPA”) with the Plaintiffs and other purchasers of condominium and villa parcels within Ara Hill. Since 2010, D1 had progressively delivered vacant possession of the parcels to the purchasers and handed over the common property of the development.

The 2nd Defendant (D2) is a statutory joint management body (JMB) established pursuant to Section 17 of the Building and Common Property (Maintenance and Management) Act 2007 (BCPA), which has since been repealed and replaced by the Strata Management Act 2013 (SMA 2013). D2 was duly incorporated and had taken over the management and maintenance of the common property from D1 since 02.02.2013.

The Plaintiffs have informed D1 of its breaches of the many statutory laws available in the property development of the Plaintiffs. Particulars of breaches of statutory law claimed are: i) The Uniform Building By-Laws 1984; ii) The Street, Drainage and Building Act 1974; iii) The Akta Bangunan dan Harta Bersama (Penyenggaraan dan Pengurusan) 2007 (Act 663); iv) The Housing Development (Control and Licensing) Act 1966; v) The Akta Bekalan Elektrik 1990; 3 | P a g e vi) The Akta Hakmilik Strata 1985; vii) The Kanun Tanah Negara 1960, and viii) The Town and Country Planning Act 1976

The Plaintiffs’ claims against D1 as per stated in the Amended Statement of Claim (4th amendment) (ASOC) are as follows: i) Encroachment into Third (3rd) Parties’ Lands and also Common Areas’ infrastructure fixed structures wilfully built on Third Parties’ encroached lands in breach of Approved Buildings Plans dated 24.07.2006, the SPA and statutory laws; ii) D1 did not complete and is still delayed in delivering ‘Common Facilities’ occasioning in breaches of clauses 14, 28 and 30 of the SPA; iii) Exemption from prior maintenance charges and sinking fund from the date of vacant possession until 31.12.2012; iv) D1 caused a title to be issued on 13.09.2017 which undermined the substratum of the SPA and breached clauses 2, 11(1), 11(2), 18 and 24 of the SPA; v) D1’s failure to submit Strata Title Application in breach of clause 11 (1) of the SPA; 4 | P a g e vi) Installation of ‘Common Service’ built under covered car park for Accessory Parcel owned by Plaintiffs’ villa breaches the law and the SPA; vii) Reduction in size of the car parks not complying with the ‘Common Plan’; viii) D1’s termination of appointed main contractor for Phase 2 ARA Hill; ix) Wrongful manner of delivery of vacant possession in breach of clause 27 of the SPA; and x) Defective Certificate of Fitness (CFO) in breach of clauses 27 and 29 of the SPA.

The claims made by Plaintiff 72 (Suria First Holdings Sdn. Bhd.) (P72) against D1 are as follows: i) Liquidated Ascertained Damages (LAD) for the period between 14.05.2011 and 28.07.2011; ii) The size of the Car Park is in breach of Clause 14 and 30 of the SPA, Approved Building Plans as well as noncompliance with the Standard Car Park Size pursuant to the Uniform Building By-Laws; iii) Joint Wiring and Claim for Safety Warranty from the D1; iv) Electricity supply cuts as a result of D1’s negligence; 5 | P a g e v) Dislocation of floor titles in breach of Clause 14 and 30 of the SPA by the D1; and vi) Negligence by the D1.

The Plaintiffs’ prayers in the ASOC against D1 have been stipulated separately by the Plaintiffs according to the ownership of the parcels. Generally, the Plaintiffs’ [other than Plaintiff 60, Ho Sze Keen (PW8) & Plaintiff 61, Toh Ooi Peng (P60 & P61 respectively) and P72 represented by Koh Soo Hiong (PW9)] claims are for general damages, special damages, interest on damages, specific performances against D1 and costs.

As for P60 & P61, the general claims are as per the other Plaintiffs’ claims except for additional declarations to be made against D1 by this court.

As for P72, it prays for the followings: i. The general claims are the same as the others; ii. Specific damages; iii. Interest for 3 car park bays; iv. Damages and interest relating to the electricity supply cut due to D1’s alleged negligence; v. Damages and interest on restoration costs for floor tiles; and 6 | P a g e vi. Damages and interest for missing rock wool, wire mesh and RC gutters

The Plaintiffs’ prayers against D2 are as follows: i. to provide to D1 and the Plaintiffs the relevant documents, relevant information and the relevant permits in line with its duties and powers under the Strata Management Act 2013, to ensure that all orders granted by this Honourable Court in respect of the common property in this suit are executed properly and completely; ii. to do everything that is necessary by itself and/or with D1 in line with its duties and powers under the Strata Management Act 2013, iii. to ensure that all orders granted by this court in respect of the common property in this claim is executed properly and completely; iv. to do everything necessary by itself and/or with D1 in line with its duties and powers under the Strata Management Act 2013, so that all orders granted by this court with respect to the common property of Ara Hill in this suit are executed properly and completely;

This suit commenced in 2015 and was concluded on 05.05.2026 after 38 days of trial and after hearing the viva voce evidence of 19 witnesses called by the Plaintiffs (9 witnesses), D1 (9 witnesses) 7 | P a g e and D2 (1 witness). The issue on costs was further submitted by the parties and the same was decided on 09.06.2026.

The Plaintiffs (a few of them) not being satisfied with the decision of this court on both liability and costs have filed a Notice of Appeal at the Court of Appeal and as such, this Grounds of Judgment is written for the said purpose. B.

Upon perusing through the bundle of pleadings, the issues raised and argued by the parties, the issues which this court have to consider and deliberate are categorised as per stated in the following paragraphs. Plaintiffs’ claims against D1

Whether D1 has breached the SPAs entered into with the Plaintiffs: i) Whether D1 has committed encroachment into 3rd Parties’ land, wilfully built unlawful major essential service and common infrastructures on Third Parties’ lands. ii) Whether D1 acted against the interests of the Plaintiffs and had caused Plaintiffs having to pay for the unlawful maintenance costs incurred on 3rd Parties’ lands. 8 | P a g e iii) Whether D1 had delivered defective swimming pool, children pools and water features with major water leakages and losses. iv) Whether D1 failed to provide major feature installations missing at swimming pool in breach of the approved building plans under SPA. v) Whether D1’s actions and statutory breaches of governing building by-laws and non-rectification of major defects/omissions had caused diminution in value of Plaintiffs’ properties in Ara Hill. vi) Whether D1 had failed to control illegal renovation and enforcement of House Rules and Deed of Mutual Covenant

(DMC), causing diminution in value and hampering the obtaining and issuance of strata titles. vii) Whether there is a shortage of visitors’ car parks in breach of statutory requirements and Second Schedule of the SPA. viii) Whether there are defective joint-wiring, safety danger that imposes on D1 to provide a Warranty Indemnity sought and in breach of Clauses 14, 24, 29 and 30 of SPA. ix) Whether D1 had provided undersized car parks not in compliance to Common Plan and required car size of 2.4m x 4.8m and at height of 10ft above ground. 9 | P a g e x) Whether D1 has unlawfully transferred 1-month deposit of maintenance charges & sinking fund to others, without Plaintiffs’ prior consent. xi) Whether D1 should honour the earlier agreed waiver of past maintenance charges and sinking fund from the date of vacant possession until 31.12.2012 for and due to the Phase two (2) Plaintiffs. xii) Whether D1 has overcharged the Plaintiffs in view of the surplus of building maintenance fund and where such surplus had not been transferred to Ara Hill Joint Management Body by the D1. xiii) Whether D1 has failed to submit the Strata Title application, obtain and deliver strata titles in compliance with Clause 11 of SPA. xiv) Whether D1 has prematurely collected on final 2.5% of the purchase price when the 2.5% is not legally due for payment by the Plaintiffs. xv) Whether D1 has failed to honour its promise for 3-Years Pest Control and has stopped payment for the termite treatment. xvi) Whether D1 has failed to provide final Audited Accounts. xvii) Whether the Jabatan BOMBA’s illegal turning radius is in breach of statutory requirements. 10 | P a g e xviii) Whether D1 has committed wrongful delivery of vacant possession to the Plaintiffs. xix) Whether D1 has provided Defective Certificate of Fitness for Occupation (CFO).

Whether D1 has breached various statutory laws and had built Ara Hill Development not in accordance with its Development Orders, 2006 Original Approved Building Plans, 2010 Amended Building Plans etc.

Whether there is non-compliance of common service installation built underneath accessory parcel covered car parks belonging to villa Plaintiffs in breach of statutory laws and SPA.

Whether D1 has failed to install rockwool installation/wire mesh/RC gutters and not in accordance with Approved Plans.

Whether D1 had committed and further made major gross misrepresentations to the Plaintiffs pertaining to their properties. Plaintiffs’ claims against D2

Whether D2 had failed to carry out its duty in relation to the illegal renovation and enforcement of House Rules and Deed of Mutual Covenant (DMC), causing diminution in value and hampering the obtaining and issuance of strata titles. 11 | P a g e C.

Before the Plaintiffs’ issues against D1 and D2 are deliberated, by virtue of Sections 101 and 102 of the Evidence Act 1950, the Plaintiffs have the legal burden to prove on balance of probabilities the liability alleged against D1 and D2. In the recent Federal Court case of Live Capital Sdn Bhd V. Pioneer Conglomerate Sdn Bhd [2025] 6 CLJ 855 [2025] CLJU 1308, Abdul Rahman Sebli CJ (Sabah & Sarawak) (as he then was) had in his judgment held as follows: “[22] As for the burden of proof, we must say with all due respect that it was wrong for the Court of Appeal to have imposed such evidential burden of proof on the appellant. Before any burden legal or evidential shifted to the appellant, it must first be shown that the respondent had succeeded in establishing a prima facie case against the appellant. Should it fail to do so, the appellant need not even call evidence in answer to the respondent's claim as the respondent would then have failed to discharge its legal and evidential burden under ss. 101 and 102 of the Evidence Act 1950 ('the Evidence Act') to prove its pleaded case that the RM7 million was an advance and not a commission. To paraphrase the Privy Council in Raja Chandranath Roy v. Ramjai Mazumdar 6 BLR 303, in that situation the appellant could say to the respondent: "It is wholly immaterial whether I prove my case or not. You have not proved yours."”

In this case, the Plaintiffs having brought this action in their personal capacity as parcel owners at Ara Hill have made allegations against D1 both in relation to their individual parcel(s) and the common property in the said development. 12 | P a g e

According to the Plaintiffs, the cause of action to bring this action arose from the alleged breaches of the terms stipulated in the SPAs entered into by them as purchasers and D1 as the Vendor.

The Plaintiffs in this case are divided to two (2) groups: i) 47 out of 72 Plaintiffs are direct purchasers from D1; and ii) 25 out of 72 Plaintiffs are sub-sale purchasers.

Out of the 47 Plaintiffs who are direct purchasers, P60 & P61 had sold one (1) of their three (3) units i.e. Unit 3B-9-1, whereby transferring their rights and interest in this unit to the new owner(s) (sub-sale purchaser).

Since the filing of this suit, three (3) of the 72 original Plaintiffs have been replaced by their respective estates and one (1) of the 72 Plaintiffs has withdrawn this action with no liberty to file afresh.

The development consists of a total of 400 units, however, this suit was brought against D1 by owners of only 53 units i.e. representing 13.25% of the total number of units.

Among the Plaintiffs, there were only three (3) Plaintiffs who had given evidence i.e. P2, Sharifah Naemah Binti Syed Hassan (PW4), P60 (PW8) and P72 (PW9). 13 | P a g e

Based on these facts, there are several preliminary issues which need to be dealt with: a. Whether P60 & P61 have the locus standi to make their claims for Unit 3B-9-1 having sold the same and whether P60 & P61 are estopped by the doctrine of res judicata to bring this suit; and b. Whether the Plaintiffs have the locus standi to make claims related to common property. a. Whether P60 & P61 have the locus standi to make their claims for Unit 3B-9-1, having sold the same and whether P60 & P61 are estopped by the doctrine of res judicata to bring this suit.

The sale of Unit 3B-9-1 is a fact which P60 & P61 do not deny and as such, having transferred their interest to the new owners of Unit 3B-9-1, P60 & P61 clearly no longer have the right to claim for the special damages (not incurred) for this unit which has been shown in Annexure B of the Plaintiffs’ ASOC. As such, P60 & P61’s claims as owners to unit 3B-9-1 is no longer sustainable by them.

For the other two (2) units still owned by P60 & P61, it is also not denied that these units were the subject matter in a civil litigation filed prior to this suit. Considering the fact that the declaration sought by P60 & P61 in their earlier civil suit has been dismissed, the same cannot be re-litigated through this suit. Hence, I dismiss the claims made by P60 & P61 on the basis that they do not have locus to maintain this suit for unit 3B-9-1 and that they are barred 14 | P a g e /estopped to continue this suit for units C1-1-3A and C1-2-3A by virtue of the doctrine of res judicata. b. Whether the Plaintiffs have the locus standi to make claims related to common property.

Since 02.02.2013, the JMB for this development has been established. At the time of the JMB's formation, the operative legislation was Section 8 of the BCPA and Section 21 of the Strata Management Act 2013 (SMA), which explicitly define the duties and powers of the JMB. The JMB is entitled to both sue and be sued in accordance with the BCPA and the SMA.

Section 2 of the BCPA defined common property to include development area that is not comprised in any parcel that serve more than one parcel, facilities and installations and any part of the land used or capable of being used or enjoyed in common by all the occupiers of the building: “ "common property", in relation to a development area, means so much of the development area as is not comprised in any parcel, such as the structural elements of the building, stairs, stairways, fire escapes, entrances and exits, corridors, lobbies, fixtures, and fittings, lifts, refuse shutes, refuse bins, compound drains, water tanks, sewers, pipes, wires, cables and ducts that serve more than one parcel, the exterior of all common parts of the building, playing fields and recreational area, driveways, car parks, and parking areas, open spaces, landscape areas, walls and fences, and all other facilities and installations and any part of the land used or capable of being used or enjoyed in common by all the occupiers of the building;” 15 | P a g e (Emphasis added)

Since, the common property comes within the purview of the JMB, the Plaintiffs do not have the locus standi to bring this action against D1 in relation to the same. The Court of Appeal in the case of SYARIKAT EAST COAST & ORS v. MAKNA MUJUR SDN BHD & ORS [2020] 2 CJL 539 had in relation to the claims made on common property held as follows: “[57] Even so, there is another serious infirmity in the appellant's standing to commence the suit against the respondents which we are compelled to address. We agree with the respondents that the appellants do not have any right in law or equity to pursue their claims in respect of common property. By virtue of statutory law in the form of s. 8 of BCPA 2007, the second respondent has sole control and management of the common property of KL Plaza. By law, the JMB is the guardian of the common property. Any claims against third parties in relation to the common property can only be brought by the JMB and not the individual parcel owners or some of them together as is the case in the instant suit. It is for the JMB alone to pursue such claims for the benefit of all parcel owners. It is for this reason that the JMB has been given the right in law to sue or be sued in its name.” (Emphasis added)

As such, the Plaintiffs claims involving common property made against D1 are dismissed accordingly. Issues raised pertaining to common property are as follows: 16 | P a g e • reimbursement of maintenance expenses with regards the encroached lands. • defective swimming pool, children pools and water features with major water leakages and losses. • major feature installations missing at swimming pool in breach of the approved building plans under SPA. • shortage of visitors’ car parks in breach of statutory requirements and Second Schedule of the SPA. • unlawfully transferred one (1) -month deposit of maintenance charges & sinking fund to others, without Plaintiffs’ prior consent. • the surplus of building maintenance fund and where such surplus had not been transferred to Ara Hill Joint Management Body by the D1. • final Audited Accounts. • the Jabatan BOMBA’s illegal turning radius is in breach of statutory requirements. • non-compliance of common service installation built underneath accessory parcel covered car parks belonging to villa Plaintiffs in breach of statutory laws and SPA.

As the burden of proof lies on the Plaintiffs, this court’s subsequent findings will be on the following heads (renumbered): 17 | P a g e i. Whether D1 has committed encroachment into 3rd Parties’ land, wilfully built unlawful major essential service and common infrastructures on Third Parties’ lands. ii. Whether D1 has provided Defective Certificate of Fitness for Occupation (CFO). iii. Whether D1 has breached various statutory laws and had built Ara Hill Development not in accordance with its Development Orders, 2006 Original Approved Building Plans, 2010 Amended Building Plans etc. iv. Whether D1 has committed wrongful delivery of vacant possession to the Plaintiffs. v. Whether D1 has failed to submit the Strata Title application, obtain and deliver strata titles in compliance with Clause 11 of SPA. vi. Whether D1 has prematurely collected on final 2.5% of the purchase price when the 2.5% is not legally due for payment by the Plaintiffs.

Since these six (6) issues as stated in paragraph 35 hereinabove are related to each other, they are deliberated together.

It is the Plaintiffs allegation that D1 had encroached/trespassed on 3rd Party’s lands to build major common infrastructures and essential services/facilities, such as, 67 car parks, one (1) 18 | P a g e guardhouse, two (2) water and landscaped feature roundabouts, extensive landscaping area, various street light installations and the only access road into Phase 2, Ara Hill (which are hereinafter known as “essential services/common infrastructures”).

The Plaintiffs contend that the construction had crossed the demarcated boundaries of the development and as such the essential services/common infrastructures are 3rd Party’s land illegally, however, D1 has produced evidence to show that the 3rd Party, being MBPJ (land proprietor) had approved the usage of the land, so long as the structures and services are maintained by D1. This approval is seen on the 2010 Amended Building Plan. MBPJ’s approval of the usage of their land is also seen in their feedback to questions posed by P60 via letter dated 28.11.2012. (see Encl. 384 – pg. 163) 19 | P a g e

Be that as it may, since the Plaintiffs are not the proprietors of the land on which is said to have been encroached, they clearly have no locus standi to bring this action against D1. The Court of Appeal in the case of Sin Heap Lee–Marubeni Sdn Bhd v Yip Shou 20 | P a g e Shan [2005] 1 MLJ 515 held as follows on the issue of right to sue in a trespass situation: “[57] I now propose to deal with the question of locus standi as it relates to the respondent's claim in trespass. [58] Since trespass is an injury to a possessory right, the proper plaintiff in an action of trespass to land is a person who was in possession of the land at the time of the trespass. But if the land is vacant land, as the respondent's land in this case was, the owner has sufficient possession to sue in trespass…” (Emphasis added)

As such, apart from the Plaintiffs failing to establishing their allegations, they also have no locus standi to make these claims.

The Plaintiffs have challenged MBPJ's issuance of the CFO for this development (a total of three (3) CFO). The Plaintiffs contend that the subsequent Second and Third Amended Approved Building Plans carried a condition for the issuance of CCC upon the compliance of Forms G1-G21, i.e., following the amendment of the Street, Drainage and Building Act 1974 (Act 133), which was amended in 2007. As such, the CFO should not have been issued but CCC ought to have been issued instead. Therefore, D1 had wrongly delivered VP to the Plaintiffs with the issuance of the CFO.

The Plaintiffs also alleged that the issuance of the CFO was despite the incomplete structures, infrastructures, essential and common services and the presence of defects. In a nutshell, the 21 | P a g e Plaintiffs contend that since the issuance of the CFO is not in accordance to the requirement for the issuance of CCC in the Amended Building Plans, D1 has breached Clauses 27 and 29 of the SPA.

However, there are documentary evidence to show that the period in which this development was commenced i.e. the Development Order and the Approved Building Plans were prior to the coming into force of the Street, Drainage and Building (Amendment) Act 2007 (SDA) where the CFO regime was replaced with the CCC regime. Therefore, during the transition of the new regime, the CFO regime was still operative, Section 14(2)(a) and (b) of the Street Drainage and Building Act 1974 (SDA) allows the CFO to still be issued instead of CCC.

All the allegations made by the Plaintiffs against D1 on this issue have not been substantiated, on the contrary, it is evidentially proven that the issuing body, MBPJ, had confirmed that the development was still under the CFO regime.

Furthermore, since the issuing body is MBPJ, any challenge on the issuance of the CFO ought to have been brought by way of Judicial Review to quash the same. However, this was not done so by the Plaintiffs and neither did the Plaintiffs call MBPJ to give evidence pertaining to the issuance of the CFO during trial.

Since, Clauses 27 and 29 of the SPA clearly requires the Vendor, in this case D1 to obtain CFO as oppose to CCC, the fact that CFO 22 | P a g e has been issued prior to the delivery of VP, only shows that no breaches committed by D1. Although the Plaintiffs witness, PW1 is of the view that CCC should have been issued, he merely relied on the requirement stated in the Amended Building Plans without considering any other factor including the provisions in the SPA and the law governing the circumstances of transition between CFO and CCC as in this case. As such, I find that his opinion on this issue is unreliable, unsubstantiated and unconvincing.

Therefore, it is my considered view that the issuance of CFO was confirmed to be correct by referring to the SPA, the confirmation by MBPJ and the provisions in the relevant legislation. Hence, I find that the issuance of the CFO for this development is not defective and as such, there are no breaches committed by D1.

It was also argued by the Plaintiffs that since 3 separate CFO were issued, the CFO issued are partial CFO and not the final CFO. D1 had argued that the CFO is issued for the building and not the development. As such, upon completion of the building, water and electricity being ready to be connected, CFO can be issued and VP may be delivered.

I concur with D1 that the Uniform Building by Law (UBBL) is the legislation which was relevant at that material time i.e. the time the Development Order and the Amended Building Plans were approved and not the one operative now. In this case, since it has been established that the regime that was operative at that material time was CFO and not the CCC regime, the issuance of partial 23 | P a g e CFO was sufficient for VP to be delivered as there was no express provision restricting the issuance of partial CFO. D1’s clarification as to the position of partial/phased CFO during that material time clearly proves that the CFO issued for this development, all three

separate CFO were issued accordingly and as such the VP delivered was correctly done by D1.

Having failed to establish that the issuance of the CFO was incorrect, the Plaintiffs’ prayer to cancel and replace the CFO with CCC and or to declare the CFO to be null and void is dismissed.

As to the Plaintiffs’ allegation that D1 has breached various statutory laws and had built the Ara Hill Development not in accordance with its Development Orders, the 2006 Original Approved Building Plans, the 2010 Amended Building Plans and so forth, I find that the fact that three (3) separate CFO have been issued by MBPJ for the completion of the buildings in this development only confirms that there is compliance with all the building requirements. As such, it is my considered view that the Plaintiffs failed to establish any of these breaches as alleged and have also failed to challenge the issuance of any of the CFO issued with MBPJ i.e. being the issuing authority.

The Plaintiffs also claim that D1 is in breach of Clause 11 of the SPA i.e. D1 has failed to apply for strata title. It is the Plaintiffs’ allegation that the issuance of the strata title has been delayed due to: 24 | P a g e i. D1’s usage of 3rd Party’s land; ii. D1’s failure to control illegal renovation and enforcement of House Rules; iii. shortage of visitors’ carparks which D1 failed to construct; iv. incomplete defective delivery of common facilities; v. subsisting major non-compliance with various statutory building by-laws governing electrical joint-wiring; and vi. BOMBA cul-de-sac.

Clause 11 of the SPA states as follows: “11. Separate strata title and transfer of title

The Vendor shall, at its own cost and expense and as expeditiously as possible, apply for subdivision of the said Building so as to obtain the issue of a separate strata title to the said Parcel under the Strata Titles Act 1985.

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 to clause 4(1) and the observance of all the terms and conditions herein provided, the Vendor shall, within twenty-one (21) days, execute a valid and registrable memorandum of transfer of the said Parcel to the Purchaser, his heir or nominee or lawful assign, as the case may be.” 25 | P a g e

On this issue, it is factually agreed and established that the application for the issuance of the Strata Title was made on 09.03.2012 and the same was withdrawn on 19.09.2012 as D1 had to acquire the piece of land, Lot PT 35611 (1.165 acre) in order to proceed with the issuance of the strata titles. D1 did subsequently acquire that piece of land and amalgamated the same with the main land title of the development in the year 2017.

Based on the evidences before this court the following has been established: i. With regards to D1’s usage of 3rd Party’s land: - The strip measuring 1.165 acre has been acquired and amalgamated and approval for usage of the balance of the piece of land belonging to MBPJ has also been obtained. These two (2) pieces of land has always been outside the development area as can be seen in the drawings and it is also admitted that the entire area of the development is as per stated in the SPA and now covers a larger piece of land. ii. With regards to D1’s failure to control illegal renovation and enforcement of House Rules: - It is also admitted that while the illegal renovation is still standing despite there being attempts to rectify the same, ironically, the parcel which is involved in this illegal renovation belongs to one of the Plaintiffs. The Plaintiffs are aware of the fact that the parcel concerned does belong to one of the 26 | P a g e Plaintiffs and no evidence to show that any attempt made on the part of the Plaintiffs to request the said parcel owner for the illegal renovation to be taken down. iii. As regards to the shortage of visitors’ carparks which D1 failed to construct: - The visitor carparks which were initially constructed at the additional piece of land outside the development area were then to be reconstructed within the area upon the amalgamation of the two pieces of land, however, D1 was stopped from constructing the same by the Plaintiffs themselves. Evidence of D1 being stopped has been produced in this court. Oddly, the construction of the visitors’ carparks was stopped knowing that the same is required of D1 in order to proceed with the application for the issuance of strata title. iv. As regards to the incomplete/defective delivery of common property: - Although the Plaintiffs claim that the delivery of the common property is incomplete, they failed to show how does this hinder the issuance of strata titles. In any event, the issues pertaining to common property are not being deliberated here on the basis that I have found that the Plaintiffs have no locus to bring this action. What is certain however is that the common property and services as listed in the Second Schedule of the SPA have been delivered as no dispute as been raised by the Plaintiffs on this. 27 | P a g e v. As regards to the subsisting major non-compliance with various statutory building by-laws governing electrical joint-wiring: - The issue pertaining to the joint-wiring where rectification of the same was stopped by the Plaintiffs themselves on the basis that it is sub judice due to this issue being part of the claims made by the Plaintiffs in this suit. Similar stand was taken by the Plaintiffs in relation to rectification for other defects identified in the development after the delivery of VP. - Be that as it may, the Plaintiffs failed to show any evidence to this court that the joint-wiring issue would hinder the issuance of strata titles for this development. If that is so, the fact that the Plaintiffs themselves have refused to allow the rectification in their effected parcels would only mean that they have contributed to the delay in the application for the issuance of strata titles. vii. As regards to the issue involving the BOMBA cul-de-sac: - Although the Plaintiffs claim that out of the 3 cul-de-sac in the development is narrow which would not allow the BOMBA truck to make a U-turn, it is established that BOMBA has certified these cul-de-sac via its letter dated 19.08.2010. Any challenge to this certification was neither taken up with BOMBA nor was a BOMBA officer called to give evidence to support their claim. What was established during trial is that the BOMBA truck did test drive into the development and was able to reverse out of the said cul-de-sac. 28 | P a g e

Based on paragraphs 54 and 55 hereinabove, it is established that although there is delay in D1 applying for the issuance of the strata titles, after the amalgamation of the lands, the reasons for further delay are attributable to the Plaintiffs themselves. The Plaintiffs cannot expect to benefit from their own wrong doing. As such, this claim against D1 will have to fail.

I will also in the same breath address the issue raised by the Plaintiffs that they have been deprived of the interest on the 2.5% of the purchase price which was released to D1 in accordance to Clause 4(1) of the SPA (Third Schedule – Schedule of payment – item 4) when D1 had applied for the issuance of the strata titles. D1 on the other hand had confirmed that as soon as the application was withdrawn the sums amounting to 2.5% of the purchase price have been placed into stakeholder accounts immediately and is still in that account till to date.

The Plaintiffs did not deny this. However, since the release of the 2.5% of the purchase price was made in accordance to the SPA, I am unable to agree with the Plaintiffs’ argument that the release of this sum was made prematurely. As such, this claim is dismissed. v. Whether D1’s actions and statutory breaches of the governing building by-laws and non-rectification of major defects/omissions had caused diminution in value of Plaintiffs’ properties in Ara Hill. 29 | P a g e

Based on the foregoing paragraphs, it has been established that the allegation of statutory breaches has not been established by the Plaintiffs. It has also been found that the non-rectification of major defects/omissions are attributable to the Plaintiffs. The question now is whether all these have caused diminution in value of the Plaintiffs’ properties in the development.

The Plaintiffs rely on their expert witness, Sr. Lee Pak Ling (PW5) being their only valuer to establish this allegation. At trial during cross-examination of PW5, D1 moved this court for leave to commence impeachment proceedings pursuant to Sections 145 and 155 of the Evidence Act 1950 to challenge his credibility due to material contradiction in his viva voce evidence and his expert opinion provided via his affidavit. As this court found that there were material contradictions, leave was granted to allow PW5 to explain his contradictions. Upon completion of the impeachment proceeding, the ruling of the same was reserved to be given after the conclusion of the whole trial taking to account all other facts and evidences.

Since the only opinion that the Plaintiffs rely on to establish this allegation against D1 is the opinion given by PW5, the credibility of PW5 must now be considered. Having perused through the notes of proceedings (NOP) on the cross examination of PW5 and the impeachment proceeding against PW5, PW5 failed to provide justifiable explanation for his material and inconsistent contradiction. He even gave evidence that the report which he had provided to this court via his affidavit under Order 40A Rule 3 of the 30 | P a g e Rules of Court 2012 was actually not a report which was prepared for court purposes.

There being no other evidence which corresponds or supports the evidence given by PW5 and there being glaring contradictions in the evidence given by him, I find that PW5’s credibility as an expert witness is impeached and as such, his evidence to be disregarded. Furthermore, it is my considered view that PW5's report has no bearing whatsoever on the Plaintiffs' case because it is not made for court purposes, by his own admission.

Hence, the Plaintiffs have failed to establish their claim that their properties are facing diminution in value. viii. Whether D1 had committed and further made major gross misrepresentations to the Plaintiffs pertaining to their properties.

The Plaintiffs’ claim for special damages against D1 for the misrepresentation made on appreciation of value of their respective parcel(s). The Plaintiffs claim that the representation made by D1 that the Plaintiffs’ parcel(s) at the said Ara Hill development can appreciate by 100% in value in five

years is a misrepresentation. This is on the believe that the properties are facing diminution in value based on their expert’s opinion (PW5).

Additionally, the Plaintiffs claim for general damages for the alleged misrepresentation made to them by D1 in the brochure impressing upon the Plaintiffs that they will have 16 acres of pristine greenery, 31 | P a g e 50% of open space, 150 species of tropical plants, complete common facilities within the development, security power fencing, three (3) years pest control, two (2) ‘state of the art’ gymnasium etc. However, the Plaintiffs contend that these representations were not materialised by D1 and as such, the Plaintiffs should be entitled for general damages as there was reliance on these representations when they entered into the SPA with D1.

It cannot be denied that misrepresentation is subject to it being proven among others that there was reliance on the statement made. In order to establish that, the Plaintiffs have to prove individually that they had relied on the statements made to them. It is a fact that out of the remaining 69 Plaintiffs, only three (3) had testified. Furthermore, amongst the Plaintiffs, there are those who are sub-sale purchasers who had nothing to do with D1 when they had decided to purchase their parcels from the original parcel owners.

PW4 being P2 in this suit when giving her evidence although had claimed that there were representations made to her prior to her entering into an agreement with D1 has however, failed to establish that she had relied on such representation as when she was cross examined she was uncertain of the substance of her claim. As per the NOP, PW2 had directed questions relating to misrepresentation to P60 and P72, who were her advisors on this misrepresentation claim. As such, PW2 clearly had failed to establish her reliance of any representations (if any) made to her. (see NOP dated 4.4.2019, pg. 94, row 1 – 37 at Encl. 225) 32 | P a g e

Since P60 & P61 had made claims on misrepresentation on the sole unit which they had sold and as I have found that P60 & P61 33 | P a g e no longer has any rights to make claims in relation to the sold unit, this claim cannot be considered.

As for P72’s position that he received representation impressing upon him that the property at Ara Hill can appreciate by 100% in value in five (5) years, even if there is representation made, what needs to be established is whether the representation made was a misrepresentation and that P72 in this case had relied on such a representation. The wordings on the brochure in relation to the appreciation of value is as per re-produced below: - “The current market appreciation rate for residential properties in Ara Damansara is about 100% in 5 years, proof of its excellent investment value. There is confidence that Ara Hill will prove to be as profitable.”

Based on the above statement made in the brochure, the factual statement here is, “… the current market appreciation rate for residential properties in Ara Damansara is about 100% in 5 years, …” that being so, there is no evidence produced to court proving that this statement is false. If the factual statement made is a false statement, then it is only reasonable to deem the following statement that “There is confidence that Ara Hill will prove to be as profitable.” is a baseless projection. In this case, there is no such evidence adduce by the Plaintiffs.

Additionally, there is no evidence to show that P72 had relied on the representation made inducing him to enter into the purchase of 34 | P a g e the property. Circumstances establishing misrepresentation is expressly provided in Section 18 of the Contracts Act 1950 as follows; “Section 18 Contracts Act 1950 – Misrepresentation "Misrepresentation" includes-

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;

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

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.”

Further in the case of Sim Thong Realty Sdn Bhd v. The Kim Dar [2003] 3 CLJ 227, the Court of Appeal in addressing Section 19 Contracts Act 1950 i.e. voidability of agreements without free consent held that: “Now, it is trite that the expression "misrepresentation" is merely descriptive of a false pre-contractual statement that induces a contract or other transaction. But it does not reflect the state of mind of the representor at the relevant time. The state of mind of the representor at the time he made the representation to the representee varies according to the circumstances of each case. It may be fraudulent. It may be negligent. Or it may be entirely innocent, that is to say, the 35 | P a g e product of a mind that is free of deceit and inadvertence. See, Abdul Razak bin Datuk Abu Samah v. Shah Alam Properties Sdn Bhd. Put another way, a misrepresentation is innocent "where the representor believes his assertion to be true and consequently has no intention of deceiving the representee." (Cheshire & Fifoot, Law of Contract, 6th edn.) It is the particular state of mind of the representor that determines the nature of the remedy available to the representee. So, if the misrepresentation is made fraudulently, then the representee is entitled to rescission and all damages directly flowing from the fraudulent inducement.”

In this case, in the absence of any evidence to establish the factual statement in the brochure is a false statement and consequentially the projection therefrom is equally false and any evidence to show that there was reliance on the statement made inducing the Plaintiffs to enter into the SPA, I am of the view that the Plaintiffs have failed to establish misrepresentation against D1. ix. Whether D1 has failed to install rockwool installation/wire mesh/RC gutters and not in accordance with Approved Plans.

The Plaintiffs claim that D1 has failed to install rockwool installation/wire mesh/RC gutters and not in accordance with Approved Plans, however, as seen in the Fourth Schedule of the SPA, there is no mention of this material for the roof but instead the material listed in the SPA is Reinforced Concrete.

It is the Plaintiffs contention that the rockwool installation/wire mesh/RC gutters is stated in the Approved Building Plan 2006 but the same was not used when constructing the roof. 36 | P a g e

Though it is not denied that this material is stated in the 2006 Approved Plan, the same was amended and in the Amended Approved Building Plans, the material to be used for roof is Reinforced Concrete. Since the 2006 Approved Plans was amended, the plaintiffs fail to establish that the material for the roof still has to be the rockwool installation/wire mesh/RC gutters. x. Whether D1 had provided undersized car parks not in compliance to Common Plan and required car size of 2.4m x 4.8m and at height of 10ft above ground.

There is admission by D1 that there are carparks which are undersized, 20 carparks altogether and in the past, steps have been taken to either rectify (9 carparks) or accept compensation of RM3,500.00 (5 carparks). However, three (3) of the Plaintiffs, P43, P44 and P72 who could not come to terms with D1 have made claims for the defective carparks in this suit.

Although P72 claims that all the three (3) carparks for the parcel are undersized, D1 on the other hand claims that there is only one

of three (3) carpark which is undersized.

On this issue of undersized carparks, the Plaintiffs have failed to show the actual size of the carparks which are said to be undersized and failed to substantiate the amount claimed as special damages for the alleged undersized carparks. There is no evidence to show that the Plaintiffs who have claimed for these 37 | P a g e undersized carparks indeed have undersized carparks which D1 being the developer refused to rectify the same.

Pursuant to Clause 30 of the SPA, the defect liability period (DLP) is for 18 months from the date of VP and the same was even extended from 25.04.2012 to 10.05.2014. During this period any defects (as specified in the SPA) shall be repaired and made good by the Vendor, D1 in this case. It is thus my view that in refusing to allow D1 to rectify the defective carparks and subsequently claiming for unsubstantiated exorbitant damages is unacceptable, especially when none of the Plaintiffs had incurred such costs in rectifying the same on their own. xi. Whether D1 should honour the earlier agreed waiver of past maintenance charges and sinking fund from the date of vacant possession until 31/12/2012 for and due to the Phase 2 Plaintiffs.

The Plaintiffs failed to establish this claim with any contemporaneous documents as evidence before this court. The Plaintiffs’ allegation that on the calculation of maintenance and sinking fund which was based on per square meter/square feet basis was unlawful as it should have been based on share units was not pleaded. It is trite that parties are bound by their pleadings, in the Federal Court case of RHB Bank Bhd v Kwan Chew Holdings Sdn Bhd [2020] 1 CLJ 665, James FCJ (as he then was) held that: “[33] … It is a cardinal rule in civil litigation that the parties must abide by their pleadings. This is trite as can be seen from the decision of this 38 | P a g e court in Menah Sulong v. Lim Soo & Anor [1983] CLJ (Rep) 263; [1983] 1 CLJ 26 where Ong Hock Thye CJ said: I think it is necessary in this case to emphasise once again that the Courts should give their decision in strict compliance with the pleadings. As Lord Radcliffe said in Esso Petroleum Co Ltd v. Southport Corporation [1956] 2 WLR 81, 91 If an Appellate Court is to treat reliance as pedantry or mere formalism I do not see what part they play in our trial system. [34] In fact, the Court of Appeal itself has reiterated this in Amanah Butler (M) Sdn Bhd v. Yike Chee Wah [1997] 2 CLJ 79 where Gopal Sri Ram JCA (as he then was) said: It is trite law that a party is bound by its pleadings. [35] On this, we would like to add that it is not the duty of the court to invent or create a cause of action or a defence under the guise of doing justice for the parties lest it be accused of being biased towards one against the other. The parties should know best as to what they want and it is not for the court to pursue a cavalier approach to solving their dispute by inventing or creating cause or causes of action which were not pleaded in the first place. Such activism by the court must be discouraged otherwise the court would be accused of making laws rather than applying them to a given set of facts.”

Hence, this claim is dismissed. Issues specifically relating to P72 i. Whether P72 is entitled for LAD between 13.05.2011 to 28.07.2011. 39 | P a g e

P72’s claim under this heading is for LAD for the period between 13.05.2011 i.e. the date VP was delivered to 28.07.2011 i.e. the date the rectification of defects was completed.

P72’s contention is that although VP was delivered but the property was not ready and safe to be occupied, as such, P72 can only consider VP delivered when the property was ready i.e. when repairs were completed.

It cannot be denied that like all deliveries of VP, DLP will commence as soon as VP is delivered. Similarly, in this case, DLP also had commenced. However, the images produced in court clearly show more than defects, P72’s property had many unfinished works in the property.

As such, it is my considered view that P72 is entitled for LAD for the period between 13.05.2011 till 28.07.2011 as claimed with interest at 5% per annum calculated from the date of this Judgment till the full settlement of the same. ii. Whether P72 is entitled for compensation for electricity supply cut.

As the installation of electricity meter does not come within the purview of D1, P72’s claim for compensation is dismissed for lack of evidence that D1 was responsible for P72’s issues with TNB. 40 | P a g e iii. Whether P72 is entitled for rectification costs for dislocated floor titles.

It is D1’s argument that the dislocation of tiles on the floor in P72’s property happened out of the DLP and that this defect is patent defect and not latent defect after a joint inspection was carried out. Since this is a patent defect, P72 will be barred to claim from D1 as DLP has expired since 01.01.2013. As such, since after a joint inspection was done by D1 and P72 this defect was categorized as patent defect which was out of DLP period, P72’s claim is dismissed. iv. Whether P72 is entitled for D1 to rectify the gravel stone flooring.

Since this is a defect which was already made known to D1 since end of 2011 i.e. during DLP, it is the responsibility of D1 to rectify the same. As this defect is still not rectified, this claim is allowed and I order that D1 takes immediate steps to rectify this defect within six (6) months from the date of this judgment.

Based on the foregoing, i. I dismiss the Plaintiffs’ claims against D1; ii. I allow 2 of the 4 specific claims made by P72 against D1: a. LAD from 14.05.2011 to 28.07.2011; and 41 | P a g e - With Interest at 5% pa imposed from the date of this judgment till full settlement. b. D1 to rectify gravel stone floor within six (6) months from the date of this judgment. Claims against D2

The duties and powers of D2 being the JMB is well provided for under the legislation, as such, the prayers in relation to D2 is nothing more than what it has to already do.

There is also no cause of action against D2, therefore, this action against D2 is dismissed with costs. D. COSTS Costs In relation to D1 The extend of work required of D1

In summary, it has been highlighted to this court that from the filing of this suit in 2015 to its conclusion in May 2026, this litigation lasted for approximately 11 years. During that period, there were altogether 87 Case Management sessions conducted. During this time, there were four (4) Court-ordered site visits carried out in the sheer hope of understanding the issues raised in this suit and to venture the possibility to resolve the matters once and for all or to the very least to narrow down the issues left to be litigated. 42 | P a g e

In addition to the site visits, the court facilitated seven (7) separate mediation sessions in order for parties to reach an amicable settlement. However, nothing materialised, instead the trial went on for a total number of 39 days involving 19 witnesses which was heard before three (3) different judges since its commencement in 2018 till its conclusion.

This lawsuit was not on a limited scale in terms of allegations, evidences and claims. The Plaintiffs raised distinct legal and factual claims spanning over the 40 issues raised in this suit. In order to establish their claims, the Plaintiffs called multi-disciplinary technical witnesses which was countered by D1 by calling its technical witnesses.

Due to the many allegations made by the Plaintiffs and the string of technical witnesses called by the Plaintiffs, this suit gave rise to complexity of exceptional breadth and intensity and of great length.

Although I had found that due to technicalities, some of the 40 issues raised had to be dismissed i.e. due to lack of locus standi, there were still other evidences which were considered and deliberated to arrive to my decision in total. Both documentary and viva voce evidences were referred to and the lengthy submissions by all parties had assisted me in arriving to my decision.

At this juncture, it must be mentioned that even to prepare the submissions, the parties had to ensure that all evidences given by 43 | P a g e the witnesses were compiled and arranged well considering the length of the trial.

Additionally, there was an impeachment proceeding against the Plaintiffs’ 5th expert witness (PW5) which was held during the course of the trial and had to be decided at the end of the trial. D1’s claim for Certificate for Two Counsel

D1 seeks for Certificate for Two Counsel in accordance with Order 59 Rule 14 of the Rules of Court 2012. It contends that the complexity of the case, the skill and specialized knowledge required, the volume of documents, the length of the trial, the necessity of addressing the 40 issues raised by the Plaintiffs and the requirement to cross-examine the numerous expert witnesses called by the Plaintiffs and the preparation needed to produce expert witnesses of its own warrant the involvement of two counsel.

I am satisfied that the dynamics of this case necessitate a Certificate for Two Counsel. Consequently, I grant D1 the Certificate for Two Counsel.

On the other hand, the Plaintiffs argue that the Housing Development (Control and Licensing) Act 1966 (HDA) is a social legislation that was enacted to protect the weaker party, and as such, the costs should be RM10,000.00 or less. I am unable to embrace the rationale behind their reliance on the HDA alone, 44 | P a g e given the substantial damages claimed and the numerous issues raised.

This court has made its findings and have deliberated and delivered its reasoned decision on all the issues raised by the Plaintiffs. The fact remains that the Plaintiffs have failed to establish their claims on balance of probabilities and therefore, have failed to place any liability on D1, except for two (2) out of four

issues relating to P72’s claims.

As costs follow the event requires the losing party in a lawsuit to pay the winning party costs, the Plaintiffs in this case having themselves made a claim for a total of RM39,971,896.00 for their own personal interest, having lost this action cannot now insist that the costs which is appropriate for the D1 is nothing more than mere

As such, it is my view that pursuant to Order 59 Rule 16 of the Rules of Court 2012, costs of RM1,858,000.00 as claimed by D1 subject to allocatur fee is to be paid by the Plaintiffs jointly and severally to D1. I also see fit to grant interests of 5% per annum to be imposed on the costs from the date of this order till the full settlement of the same. Costs in relation to D2

Following the decision of this court on 05.05.2026 after full trial, where the Plaintiffs’ claims against D2 was dismissed with costs, I 45 | P a g e awarded fixed costs of RM100,000.00 to D2. However, D2 requested for this court to reconsider the fixed costs awarded as D2 had previously made an Offer to Settle pursuant to Order 22B of the Rules of Court 2012 to the Plaintiffs who rejected the same. Since this issue was highlighted to this court on 05.05.2026, I had instructed D2 to submit on costs and the same with D1 and the Plaintiffs.

In its submission, D2 request for the costs to be apportioned to two

parts i.e. pre offer to settle i.e. from 28.04.2021 till 21.02.2022 and post the offer to settle i.e. from 21.02.2022 till 2026.

It is D2’s submission that being the JMB for Ara Hill, D2 representing the interests of the community of Ara Hill, ought not to have been embroiled in what was essentially a dispute between certain residents and D1. It is D2’s stand that even if D2’s involvement was necessary, D2 ought properly to have been aligned as a Plaintiff for the benefit of the community, rather than being named as a Defendant.

As such, D2 had made an offer to settle by wanting to enter into a Consent Judgment by agreeing to carry out all that was claimed against it by the Plaintiffs, however, the Plaintiffs had refused to accept D2’s offer and as such, D2 had to be part of the lawsuit till the end.

Although the Plaintiffs have the discretion to accept or decline the offer to settle proposed by D2, Order 22B Rules of Court 2012 46 | P a g e establishes a mechanism to promote the amicable resolution of disputes on a without prejudice basis, with the exception of costs. In addition to this objective, the court is explicitly obligated to consider any Offer to Settle when exercising its discretion regarding costs.

Hence, having not being able to establish any liability against D2, the Plaintiffs are ordered to pay D2 costs. D2 referred to the case of Takako Sakao (f) v Ng Pek Yuen (f) & Anor (No 2) [2010] 2 MLJ 181, where the Federal Court affirmed that the discretion to award costs on an indemnity basis is wide and unfettered, and that litigants who irrationally or unreasonably cause costs to be incurred out of proportion to what is at stake may properly be ordered to pay indemnity costs if unsuccessful: - “Some of the guidelines for an award of indemnity costs were discussed by Millett J (later Lord Millett) in Macmillan Inc v Bishopsgate Investment Trust plc and others (No 3) [1995] 3 All ER 747: The power to order taxation on an indemnity basis is not confined to cases which have been brought with an ulterior motive or for an improper purpose. Litigants who conduct their cases in bad faith, or as a personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion as to what is at stake, may also expect to be ordered to pay costs on an indemnity basis if they lose, and have part of their costs disallowed if they win. Nor are these necessarily the only situations where the jurisdiction may be exercised; the discretion is not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be ‘appropriate’. 47 | P a g e What appears clear is that the discretion to award costs on an indemnity basis is unfettered. All that is required is that it must be an appropriate case warranting an award on that basis…” (Emphasis added)

According to D2’s calculation on costs, it claims that the pre offer to settle costs should be calculated at 16.09% of its estimated fixed costs of RM200,000 which amounts to RM32,000.00 and costs for the period post offer to settle is calculated on an indemnity basis amounting to RM306,342.82 i.e. being the costs incurred by it in arising from it being included and maintained in the lawsuit as the 2nd Defendant by the Plaintiffs. D2 as such, claims a cost of RM338,342.82 from the Plaintiffs.

In calculating the costs for the period prior to the offer to settle, D2 calculated using a fixed cost of RM200,000.00, however, I had intended to award against the Plaintiffs for the entire period of this lawsuit costs of RM100,000.00 only. Hence, the 16.09% should be calculated against RM100,00.00 making it, RM16,090.00 only.

As for the post offer to settle period, the costs claimed is on an indemnity basis and since, I was not able to allow the Plaintiffs’ claims against D2, it is my considered view that D2 is entitled to be awarded pursuant to Order 22B Rules of Court 2012. As such, I award a total cost of RM322,432.82 (RM306,342.82 + RM16,090.00) subject to allocatur fee to be paid to D2 by the Plaintiffs jointly and severally. Interest of 5% per annum is imposed 48 | P a g e on the costs from the date of this costs order till full settlement of the same. Costs in relation to P72

The counsel for the Plaintiff argued that since P72 was successful in two (2) out of his four (4) separate claims, costs of RM10,000.00 should be awarded to him. Since costs follow the event, as for all the winning parties in this suit have been awarded with costs, I am inclined to agree with P72. However, the sum of RM10,000.00 proposed by P72 is not proportionate to the sum ordered to him for his claims. As such, I order RM5,000.00 as nominal costs to him. This cost is subject to allocatur fee and to be paid by D1 to P72. Interest of 5% per annum shall be imposed on the costs from the date of this order till full settlement. E.

Upon considering and deliberating based on the pleadings, documentary evidences, viva voce evidences, parties’ submissions and all the authorities relied on by them to support their respective argument, I concluded as follows: i. I dismiss the Plaintiffs’ claims against D1; ii. I allow 2 of the 4 specific claims made by P72 against D1: a. LAD from 14.05.2011 to 28.07.2011; and 49 | P a g e - With Interest at 5% pa imposed from the date of this judgment till full settlement. b. D1 to rectify gravel stone floor within six (6) months from the date of this judgment. iii. Claims against D2 dismissed. iv. Costs ordered in relation to this suit are as follows: a. RM1,858,0002.00 subject to allocatur fee to be paid by the Plaintiffs jointly and severally to D1. b. RM322,432.82 subject to allocatur fee to be paid by the Plaintiffs jointly and severally to D2. c. RM5,000.00 subject to allocatur fee to be paid by D1 to P72. v. All costs ordered are subject to interest of 5% per annum from the date of this order till full settlement of the same. DATED: 27th JULY 2026 Signed ……………………………… (SUMATHI A/P MURUGIAH) Judge High Court of Malaya Kuala Lumpur 50 | P a g e Counsel: For the Plantiffs – Mr. Harneshpal Singh, Ms. Viola Lettice Decruz and Ms. Claudia Lynette Silva; Messrs. V. L. Decruz & Co. For the 1st Defendant – Ms. Crystal Wong Wai Chin with Ms. Lim Jia Yun, Ruth; Messrs. Lee Hishammuddin Allen & Gledhill. For the 2nd Defendant: Ms. Cyndi Chow Li Kian with Ms. Ho Yong Yi; Messrs. Josephine, L K Chow & Co.