Zuraidah Binti Mohd Taufek v Norashidah Binti Mohd Taufek (BA-24NCvC-2071-09/2025)

This is an appeal by the Plaintiffs/Appellants against my decision dated 18.12.2025 whereby the Plaintiffs’ Originating Summons was dismissed. The appeal challenges my findings that the relief sought could not be granted in proceedings brought by way of Originating Summons, in particular where the valuation relied upon was disputed on the basis that it included unauthorised structures, and where no clear and undisputed right was shown to justify the final relief sought. These Grounds of Judgment set out the reasons for my decision.

The Plaintiffs and the Defendants are siblings. The property known as No. 22, Jalan Balau 3/8, Seksyen 3, 40000 Shah Alam, Selangor Darul Ehsan (“the Property”) was built by their late father and has for many years been used as the family home. It is not disputed that members of the family, including the Defendants, continue to occupy the Property.

Following the demise of the father, the Plaintiffs became the registered proprietors of the Property. Disputes later arose among the siblings concerning the future of the Property. Those disputes culminated in a Settlement Agreement dated 23 June 2024.

It is common ground that under the Settlement Agreement, the Defendants were to be accorded the first opportunity to purchase the Property should the Plaintiffs decide to dispose of it.

In December 2024, the Plaintiffs informed the Defendants of their intention to dispose of the Property and made an offer to sell it pursuant to the Settlement Agreement. The Defendants indicated their willingness to purchase. The parties were, however, unable to agree on the purchase price.

Three valuation reports were thereafter obtained. The Plaintiffs’ valuer assessed the Property at RM1,300,000.00. The Defendants’ valuer assessed it at RM1,000,000.00. A jointly appointed valuer, PA International Property Consultants (KL) Sdn Bhd, assessed the Property at RM1,250,000.00.

Relying solely on the joint valuation, the Plaintiffs commenced this Originating Summons seeking an order which would, in effect, compel the Defendants to purchase the Property at the price of RM1,250,000.00.

The issues that arise for determination are:

Whether the valuation relied upon by the Plaintiffs is free from dispute and capable of supporting final relief;

(ii) Whether the Plaintiffs have established a clear and enforceable right to compel the Defendants to complete the purchase at the valuation price;

(iii) Whether the relief sought, although described as a mandatory injunction, is in substance final relief; and

(iv) Whether the matter is suitable for determination by Originating Summons. OBSERVATIONS AND FINDINGS Nature of the relief sought

Although the Plaintiffs have framed their application as one for a mandatory injunction, the Court must look to the substance of the order sought. The order would require the Defendants to complete the purchase of the Property at a fixed price, leaving nothing further to be determined between the parties.

In substance, the relief sought is final in nature and closely resembles specific performance. This has a direct bearing on both the threshold that must be met and the suitability of the Originating Summons procedure. Valuation and objection based on illegal structures

The Plaintiffs’ claim rests entirely on the valuation of RM1,250,000.00 prepared by the jointly appointed valuer. That valuation fixes the price at which the Defendants are said to be obliged to purchase the Property.

The Defendants dispute the valuation on the basis that it includes an unauthorised swimming pool and other structures erected without the approval of the local authority. In support, the Defendants rely on a warning notice issued by the local authority.

This objection must be considered against the statutory framework governing building control. The Street, Drainage and Building Act 1974 [henceforth, Act 133] regulates the carrying out of building works in the interests of safety, health and orderly development. Section 70 of Act 133 prohibits the erection of buildings or the carrying out of building works without prior approval, and empowers the local authority to require the alteration or removal of unauthorised structures.

The Uniform Building By-Laws 1984[henceforth, UBBL], made pursuant to the Act, reinforce this regime. They require building plans to be submitted and approved before construction may lawfully commence and impose continuing obligations to ensure compliance with approved plans and prescribed standards.

Structures erected without the requisite approval are unlawful as a matter of statute. They remain exposed to enforcement action and cannot be treated as lawful improvements simply because they exist.

This statutory context is directly relevant to the valuation exercise. Market value cannot be assessed on the assumption that unlawful structures form part of the property as of right, when the statutory scheme treats those structures as liable to removal or alteration.

The inclusion of unauthorised structures in a valuation therefore, raises a genuine and substantive issue as to whether the valuation reflects the lawful value of the Property. This is not a technical objection, but one grounded in statute.

The existence of three materially different valuation figures underscores the reality of this dispute. The divergence arises from differing assumptions as to whether the unauthorised structures should be included or excluded.

At this stage, the Court is not required to determine which valuation is correct, nor whether the unauthorised structures may ultimately be regularised. What matters is that the valuation relied upon by the Plaintiffs is genuinely disputed on a material ground.

In these circumstances, the valuation cannot be treated as undisputed or conclusive for the purpose of granting final relief.

The Plaintiffs’ claim is anchored on the Settlement Agreement dated 23 June 2024. It is therefore necessary to consider what that agreement, on the evidence before the Court, is said to provide. For ease of reference the Agreement reads as follows: “1.0 FIRST OPTION TO PURCHASE THE HOUSE

1.1 The Parties hereby agree that the First and Second Party may at any time transfer or assign or dispose the House to any third party PROVIDED THAT the Third Party and Fourth Party shall have the first option to purchase the House at the agreed price between the Parties not exceeding the market value by valuers or at the market value as determined by valuers (hereinafter referred to as "the First Option to Purchase" whichever is applicable.

1.2 The Third Party and/or Fourth Party shall confirm the intention to purchase the House within one (1) month from the date of the offer made in writing by the First Party and Second Party (hereinafter referred to as "Agreed Period").

1.3 The market value of the House shall be determined based upon the Parties engaging their own independent valuers, with the expenses to be borne by each party individually. For the avoidance of doubt the discretion to select which market value that the House will be transferred or assigned or disposed rests with the First Party and Second Party, with the guidance of an independent valuer mutually agreed by the Parties.

1.4 After the Third Party and/or Fourth Party confirm the intention to purchase the House within the Agreed Period in writing to the First Party and Second Party, the Parties have a period of fourteen (14) days from receipt of the said confirmation of intention to purchase in writing to agree upon the final purchase price for the sale of the House to the Third Party and/or Fourth Party.

It is common ground that the Settlement Agreement preserves the Defendants’ entitlement to be offered the Property first should the Plaintiffs decide to dispose of it. The Plaintiffs rely on this provision as the basis for invoking the valuation mechanism and seeking to compel completion at the valuation price.

Beyond the existence of a first opportunity to purchase, the Settlement Agreement is not relied upon as containing an express and unequivocal obligation on the Defendants to complete a purchase at a price unilaterally fixed by valuation, irrespective of dispute.

The present dispute does not turn on the general enforceability of the Settlement Agreement, but on whether it gives rise to a clear and undisputed right to compel completion at the valuation relied upon. That question cannot be answered in the affirmative where the valuation itself is challenged on the basis that it includes illegal structures.

In these circumstances, the Settlement Agreement, as relied upon in the Originating Summons, does not assist the Plaintiffs in overcoming the disputed factual foundation of their claim. At the very least, the parties’ competing positions as to its effect reinforce that the relief sought is unsuitable for determination by Originating Summons.

It is well established that proceedings by Originating Summons are appropriate only where there is no serious dispute of fact. This principle was explained in National Land Finance Corporation Society Ltd v Sharidal Sdn Bhd [1983] 2 MLJ

211.

Where the right asserted depends on contested factual premises, particularly those involving valuation and legality, the Originating Summons procedure is inappropriate.

Although the Plaintiffs rely on the principle that a valuation agreed to be final and binding cannot be challenged save on limited grounds, as stated in S & M Shopping Arcade Sdn Bhd v Fui Lian-Kwong Sdn Bhd [2003] 5 MLJ 109, the Defendants’ objection here is not a mere disagreement with the figure.

The objection goes to whether the valuation is founded on matters which the law treats as unlawful. In SSN Medical Products Sdn Bhd v Chin Hin Helmet Sdn Bhd [2021] 7 CLJ 51, the Court of Appeal made clear that rights cannot be founded on illegality as the respondent should not be allowed to claim for the market rental for the entire Subject Premises as part of it contained an illegal structure under Act 133 and the

Against that backdrop, the Defendants’ challenge cannot be dismissed as contrived. It raises issues which cannot properly be resolved on affidavit evidence alone. Discretion and alternative avenues

The dispute concerns a long-standing family home and a settlement reached between siblings. Even where legal arguments are arguable, the grant of final and coercive relief remains discretionary.

The Court is not persuaded that it would be just to compel the Defendants to purchase the Property at a price derived from a valuation said to be affected by unlawful structures, particularly in proceedings that do not permit the disputed issues to be fully tested.

The dismissal of this Originating Summons does not leave the Plaintiffs without recourse. If the Plaintiffs contend that the Defendants are in breach of the Settlement Agreement, they remain free to pursue enforcement by other appropriate procedural avenues in proceedings where disputed facts may be properly examined.

The Plaintiffs’ claim is founded on a valuation which is disputed on the ground that it includes illegal structures erected in contravention of statutory requirements.

In the absence of an undisputed valuation, the Plaintiffs have not established a clear right to compel the Defendants to complete the purchase of the Property at the asserted price.

The matter is unsuitable for determination by Originating Summons. The application is dismissed, without prejudice to any other remedies that may be available to the Plaintiffs.

The Originating Summons dated 5 September 2025 is dismissed.

No order as to cost. Dated: 27 February 2026 -sgd-DATO’ ANITA BINTI HARUN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiffs : Muhamad ‘Aizat Adli Bin Zalil (Messrs Zalil Mohd & Partners) For the Defendants : Lee Ee San (Messrs Chew & Co.)