1. ) Yew Tuck Choon v 1. ) Bitara Angkasa Sdn. Bhd. (WA-22NCvC-419-07/2024)

ANTARA YEW TUCK CHOON

SRI AMAN BAKTI SDN. BHD. (NO. SYARIKAT: 200301029556(631976-M)) …PLAINTIF-PLAINTIF

DAN BITARA ANGKASA SDN. BHD.

BINA HARTA HOMES SDN. BHD. (dahulunya dikenali sebagai Bitara Land Sdn. Bhd.)

LEE LUN TEONG (NO. K/P: 820310-06-5111) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] This case illustrates why a consent judgment is almost always a better mode of settlement than a settlement agreement. The Plaintiffs in this case are learning this lesson the hard way because the Defendants reneged on a settlement agreement within 6 weeks of signing it. [2] The Plaintiffs in this civil suit had filed a civil suit, which was registered as WA-22NCvC-462-08/2022 (“Suit No.462”), against the Defendants in year 2022. On 18th April 2024, just weeks before the trial 09/06/2025 14:38:44 WA-22NCvC-419-07/2024 Kand. 54 S/N lyaltfCguUS49DBwEak4gw dates, the Plaintiffs entered into a Settlement Agreement (“the said Settlement Agreement”) with the Defendants, wherein the Defendants promised to pay the Plaintiffs RM2,000,000 on or before 30th May 2024. Instead of entering into a consent judgment with a default clause, the Plaintiffs filed a Notice of Discontinuance to discontinue Suit No.462, and which was agreed by the parties to be with liberty to file afresh. [3] Following the Defendants’ default in failing to pay RM2,000,000 on or before 30th May 2024, the Plaintiffs filed this civil suit to enforce the said Settlement Agreement and followed up with an application for summary judgment under Order 14 Rules of Court 2012. After hearing submissions, I decided that there is obviously no triable issue in respect of the sum of RM2,000,000 which is part of the Plaintiffs’ claim. Pursuant to Order 14 rule 3 – which specifically empowers this Court to grant summary judgment for part of a claim – summary judgment was entered against the Defendants to pay the Plaintiffs a sum of RM2,000,000, i.e. for a part of the Plaintiffs’ claim. The remaining parts of the Plaintiffs’ claim are to be set down for trial. My reasons are as set out below. Background Facts [4] The 1st Plaintiff is a director of the 2nd Plaintiff company. [5] The 2nd Plaintiff is a private limited company incorporated in Malaysia. [6] The 1st Defendant is a private limited company incorporated in Malaysia. S/N lyaltfCguUS49DBwEak4gw [7] The 2nd Defendant is a private limited company incorporated in Malaysia. [8] The 3rd Defendant is the sole director of both the 1st Defendant company and the 2nd Defendant company. [9] The Defendants admitted signing the said Settlement Agreement with the Plaintiffs in April 2024. The Plaintiffs’ Claim is based on the said Settlement Agreement [10] In the said Settlement Agreement, Clause 4.1 states that in the event of default by the Defendants to pay the sum of RM2,000,000 on or before 30th May 2024, the Plaintiffs shall be entitled to pursue various remedies. Clause 4.1 which contains the rights that accrue to the Plaintiffs, in sub-para (i) to (ix), begins with the following words: [11] The Plaintiffs’ claim in this civil suit is an action based on the said Settlement Agreement which has spelled out the rights and liabilities of the respective parties. [12] Essentially, the Plaintiffs aver that the terms of the said Settlement Agreement are clear and unequivocal in allowing the Plaintiffs to claim liquidated agreed damages against the Defendants, and that there is not even a single triable issue to justify a trial. The Plaintiffs’ learned counsel S/N lyaltfCguUS49DBwEak4gw submitted that summary judgment ought to be given for the whole of the Plaintiffs’ claim based on the said Settlement Agreement. The Defendants’ points to resist the summary judgment application [13] The 3rd Defendant affirmed an affidavit to resist the Plaintiffs’ application for summary judgment. As a director of both the 1st Defendant and 2nd Defendant, his affidavit is intended to state the position of all three defendants, including his. [14] The Defendants’ affidavit contains bare denials but did raise issues on the application of s.74 and s.75 of the Contracts Act 1950 as to whether the Plaintiffs are required to prove their losses in respect of those items stated to be payable in the event of a breach of the said Settlement Agreement. [15] Reliance was placed by the Defendants on a Court of Appeal judgment in Macvilla Sdn Bhd v Mervyn Peter Guan Yin Hui [2019] MLJU 693 as their main authority to resist the Plaintiffs’ application. Analysis of the Facts and Law [16] The Defendants have admitted signing the said Settlement Agreement with the Plaintiffs on 18th April 2024. No issue was raised about the authenticity of the said Agreement. Be that as it may, it is still open to the Defendants to challenge the enforceability of some of the clauses thereof. [17] In my view, even though liability was not stated as having been admitted in the said Settlement Agreement, it is undisputed that in Clause 2.1.1, the Defendants had unconditionally promised to pay a sum of S/N lyaltfCguUS49DBwEak4gw RM2,000,000 to the Plaintiffs to settle the Plaintiffs’ claim in Suit No.462. The Plaintiffs had performed their part by duly filing a Notice of Discontinuance. This is incontrovertible evidence of valuable consideration having been given by the Plaintiffs – whose claim in Suit No.462 was for much more than RM2,000,000. Thus, it is my view that there is obviously no triable issue in respect of a sum of RM2,000,000. [18] Macvilla Sdn Bhd v Mervyn Peter Guan Yin Hui (supra) cited by the Defendants is one of the authorities on s.75 of the Contracts Act

In layman’s terms, the point is whether a plaintiff claiming damages is required to prove the losses that he has suffered and to justify the quantum stated as “liquidated agreed damages” or “liquidated ascertained damages”. [19] In the said Settlement Agreement, the Plaintiffs are referred to as “the First Parties” while the Defendants are referred to as “the Second Parties”. It is appropriate at this juncture for me to set out the items rendered payable by the Defendants under Clause 4.1 in the event of their breach to pay the Plaintiffs RM2,000,000 by 30th May 2024. Screenshots of items (i) to (ix) of Clause 4.1 are pasted below: S/N lyaltfCguUS49DBwEak4gw [20] Since the amount for settlement stated in Clause 2.1.1 is RM2,000,000 while the sum stated in Clause 4.1(ii) as payable in the event of default (to pay RM2,000,000 by 30th May 2024) is RM3,300,000, the Plaintiffs ought to be required to prove their losses for the additional amount of RM1,300,000. This is in line with the principles expounded in the authorities on s.75 of the Contracts Act 1950. [21] Besides Macvilla Sdn Bhd v Mervyn Peter Guan Yin Hui (supra), there are more recent authorities on s.75 of the Contracts Act 1950 but for the purpose of the Plaintiffs’ application for summary judgment, there S/N lyaltfCguUS49DBwEak4gw is no need for me to discuss them at length. This is because I find that there are triable issues in respect of the Plaintiffs’ claim for those items stated in Clause 4.1 (iii) to (ix), and also for the additional amount of RM1,300,000 claimed in item (ii) over and above the amount of RM2,000,000 stated in Clause 2.1.1. Even though the Defendants had expressly agreed to pay the Plaintiffs items (iii) to (ix) of Clause 4.1, there are triable issues in respect of the quantum stated in those items. Conclusion [22] As pointed out above, the Plaintiffs had given good consideration for the said Settlement Agreement by keeping their part of the bargain by filing a Notice of Discontinuance in consideration of the Defendants’ promises contained in the said Settlement Agreement. [23] The sum of RM2,000,000 was unconditionally agreed in Clause 2.1.1 to be payable by 30th May 2024 but the Defendants had reneged without giving any cogent reason. There is no doubt the Defendants had breached the said Settlement Agreement and must be held liable to pay the Plaintiffs the sum of RM2,000,000 in any event. I reiterate my finding that there is no triable issue about this sum of RM2,000,000 – which the Defendants did not dispute should have been paid by them by 30th May

Therefore, I find that the Defendants are able to raise triable issues only regarding the quantum stated in Clause 4.1(iii) to (ix) of the said Settlement Agreement besides the issue of the additional RM1,300,000 because Clause 4.1(ii) has stated RM3,300,000, i.e. RM 1,300,000 more than the indisputable sum of RM2,000,000. [24] The draftsmen who drafted Order 14 Rules of Court 2012 had the wisdom to foresee situations such as the present case – when a part of a S/N lyaltfCguUS49DBwEak4gw S/N lyaltfCguUS49DBwEak4gw Counsel for the Plaintiffs: Malini R Manikam SOLICITORS FOR THE PLAINTIFFS: MESSRS CHAMBERS OF MALINI MANIKAM Advocates & Solicitors 25-2A, Jalan Anggerik Vanilla BF31/BF, Business Park 3, Kota Kemuning, 40460 SHAH ALAM SELANGOR. Counsel for the Defendants: Eng Yi Wang (Ong Swee Long with him) SOLICITORS FOR THE DEFENDANTS: MESSRS ARMIY RAIS Advocates & Solicitors No. 1-2B, 1st Floor, Jalan PJU 8/3A, Damansara Perdana, 47820 PETALING JAYA, SELANGOR. S/N lyaltfCguUS49DBwEak4gw

Macvilla Sdn Bhd v Mervyn Peter Guan Yin Hui [2019] MLJU 693.

Section 75 Contracts Act 1950.

Order 14 r.3 Rules of Court 2012. S/N lyaltfCguUS49DBwEak4gw