Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd & 3 Ors (WA-21C-3-05/2016)

The Plaintiff is the owner and developer of a few Lots of Land namely Lots 38026, 38028, 38029, 38031, 38032, 38033 and 38034 in the Mukim of Petaling, Daerah Kuala Lumpur (collectively, the “Land”). They claimed that the First Defendant (“D1”), Mass Rapid Transit Corporation Sdn Bhd (“MRT”) had represented to them that a railway line linking Sungei Buloh to Putrajaya (“SSP Line”) would pass through and that a station would be built on part of their Land.

MRT is a body corporate wholly-owned by the Minister of Finance Incorporated which is in turn wholly-owned by the Ministry of Finance. The Plaintiff contended that an oral contract had come into being with respect to a station being built on part of their Land with respect to the SSP Line and that the Plaintiff had agreed not to challenge the compulsory acquisition of portion of its Land by D1 for the Sungai Buloh-Kajang Line (“SBK Line”). Problem [3] Under the oral contract the Plaintiff said that they had inter alia agreed to withdraw their appeal to the Court of Appeal against a judicial review application on the portion of the Land compulsorily acquired where the High Court has dismissed their leave application to quash the compulsory acquisition order. There was further a land swap with Dewan Bandaraya Kuala Lumpur (“DBKL”) and an agreement that the Plaintiff, 3 of 94 MRT and Mayland Century Sdn. Bhd. would bear the costs in equal shares of the construction of a slip road that would connect the proposed Multi Storey Park & Ride facility for SBK Line on the said Land to a plot of land that was adjacent to it.

However it was later discovered that the SSP Line would not be passing through their Land and neither would a Station be built on their Land and that the SSP Line would pass through Bandar Malaysia, Kuala Lumpur instead. Pleadings [5] The Plaintiff sued D1 for damages for misrepresentation, breach of contract and negligence. D1’s Defence is that there was no such oral contract as pleaded by the Plaintiff with respect to the SSP Line and that the agreement was with respect to the SBK Line. Alternatively even if there was such an oral contract as pleaded between the Plaintiff and D1 with respect to the SSP Line, that has to be conditional upon the approval by the Second Defendant (“D2”) who is the Suruhanjaya Pengangkutan Awam Darat (“SPAD”) and the consent of the Third Defendant (“D3”) Dato’ Sri Haji Mohammad Najib bin Tun Haji Abdul Razak (“the Minister”) as the Minister designated under the Land Public Transport Act 2010 (“LPTA”) and the Land Public Transport Commission Act 2010 (“LPTCA”) more popularly known as the SPAD Act.

The Plaintiff also sued D2, D3 and the Fourth Defendant (“D4”), MMC Gamuda KVMRT (PDP) Sdn Bhd (“MMC Gamuda”) for damages for inducement for breach of contract. 4 of 94 [7] D2 and D3 denied that they were liable for inducing the breach of contract and pleaded in their Defences filed that they were performing their statutory duties under the LPTA and LPTCA and further that it has not been alleged that there had been mala fide in their discharge of their statutory duties. D3 further stated that the proper recourse for the Plaintiff’s grievance, if indeed there was one, should be by way of judicial review.

D4 took the stand that as a Project Delivery Partner and Advisor to D1, they were in reality, as pleaded by the Plaintiff, an agent for D1 and as such cannot be in any way liable under the tort of inducement for breach of contract or for misrepresentation or negligence. Prayers [9] All the Defendants have applied to strike out the Plaintiff’s claim against them.

D1, D2, D3 and D4 applied under Enclosures 11, 13, 16 and 14 respectively to strike out the Plaintiff’s Writ and Statement of Claim pursuant to Order 18 rule 19(1)(a), (b) or (d) of the Rules of Court 2012 (“ROC”).

D1 is also applying in Enclosure 25 to strike out paragraphs 5.15, 6 and 6.1 to 6.4 of the Plaintiff’s Amended Reply to D1’s Defence pursuant to Order 18 rule 19(1)(b) or (d) ROC. D4 also has a similar application in Enclosure 31 to strike out the various paragraphs of the Plaintiff’s Amended Reply to D4’s Defence. 5 of 94 [12] The Plaintiff’s position in resisting the applications of the Defendants is that the causes of action and the material facts have been sufficiently pleaded and that in any event D2 and D3 are necessary parties to the Suit. With respect to the various paragraphs of the Amended Reply of the Plaintiff to D1’s Defence and D4’s Defence, which are sought to be struck out by D1 and D4 respectively, the Plaintiff contended that these are not inconsistent with the matters pleaded in the Plaintiff’s Statement of Claim. Principles [13] The Plaintiff, through their learned counsel Mr J L Foo, in rigorously opposing the Defendants’ applications to strike out its Writ and Statement of Claim, relied on these broad principles which is distilled as follows:

Generally, the remedy of striking out a pleading is viewed by the Court as one which gives rise to drastic consequences; and as such, this power to strike out ought to be exercised sparingly and with utmost caution;

Unless the defect complained of in the pleadings is such that it cannot be saved by an amendment, the Court tends to exercise its discretion to direct that pleadings be amended instead and

Where the complaint is that a pleading does not contain sufficient particulars, an application for further and better particulars ought to be made instead of seeking to strike out the pleadings. [14] This Court does not doubt the above as a fair proposition of the approach to be taken when confronted with such an application to strike out the whole of one’s Claim as exemplified in the Federal Court case of Lee 6 of 94 Nyan Choi v Voon Noon [1979] 2 MLJ 28 at 29, the Court of Appeal case of See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235 at 245 to 246 and the more recent Federal Court case of Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 at 18. [15] The above principles no doubt, have to be balanced with the other principles of law with regard to a striking out, in that if the pleadings are vague and are obviously unsustainable and a complete non-starter then the Court would not allow its process to be abused. See the Supreme Court case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7. [16] Likewise if a Claim is frivolous and vexatious and lacking in material particulars and more so when the main plank of the Plaintiff’s claim is founded upon a breach of an oral contract resulting in a claim of more than RM300 million, the Court would be impelled to investigate if there are contemporaneous documents that would lend support to the Plaintiff’s oral contract. [17] Otherwise, each time a Plaintiff claims under a breach of an oral contract and a massive sum as damages, a Defendant would have no choice but to endure the process and protraction of a full trial for its vindication. That would bring the Court’s process into disrepute. Whilst accepting that the Court’s summary powers to strike out a Claim is a drastic one, the Court would at the same time discern if there is a reasonable claim 7 of 94 that ought to proceed to trial, though it may be weak such that even a bruised reed will not be broken nor a smoldering wick snuffed out. D1’s APPLICATION TO STRIKE OUT THE PLAINTIFF’S CLAIM (ENCLOSURE 11) Whether there are contemporaneous documents supporting a claim of an oral contract with respect to the SSP Line between the Plaintiff and D1 [18] What is clear from the narration of events was that there was a Form D issued under the Land Acquisition Act (“LAA”) and gazetted in October 2011 that part of the Plaintiff’s Land would be acquired for the SBK Line. The Plaintiff was duly informed of this compulsory acquisition on 6.1.2012 when it received Forms E and F under the LAA. Under the gazette notification certain portions of the Land would be acquired by D1 under the direction and recommendation of D2. [19] The Plaintiff said that by then it had substantially sold units and had already commenced the construction of Phase 1 of its development and that site clearing works had begun and earthworks were already at the stage of being awarded. [20] It is understandable for the Plaintiff to be anxious and indeed alarmed as to the repercussions of this compulsory acquisition. It would cause a disruption and delay to the Plaintiff’s development of their Land. It sought a meeting with D1 and D4. It was alleged by the Plaintiff that at the meeting on 3.5.2012, one David Loo who was the Company Secretary of D1 had informed the Plaintiff that the acquisition of a portion of the Plaintiff’s Land 8 of 94 was to protect a future line, the SSP Line. It was further alleged that this statement was later repeated by the then Chief Executive Officer (“CEO”) of D1, Dato’ Azhar Abdul Hamid at a meeting on 30.1.2013. [21] Further at another meeting on 9.5.2012, attended by representatives of the Plaintiff and D4, the Plaintiff said that they were shown a site plan for the first time which confirmed that the compulsorily acquired portion of the Land was actually for the SSP Line. [22] The Plaintiff also alleged that there was a discussion during the meeting on 9.5.2012 that D4 would revert on the revised alignment of the acquisition boundary assuming the set-back requirement for the MRT line was to be on the Plaintiff’s portion of the Land after the acquisition. [23] The Plaintiff admits that up until this stage D4 had not even been incorporated yet. It was only on 18.11.2014, that D1 announced that D4 is the Project Delivery Partner of the SSP Line. It is natural for the Plaintiff to harbour high hopes for the Second Line, the SSP Line to pass through their Land and better still for a station to be built on their Land. [24] Everyone would know that in major project development of this nature where a railway line is concerned, there are various stages of notification to the public, followed by feedback from the public and a final determination by D2 and D3 with respect to where the railway should be passing through and where the stations are to be built. Whilst D1, D2 and D3 have no obligations to anyone to ensure that a proposed railway line would pass through a particular piece of land belonging to someone else or that a 9 of 94 station would be built on someone’s land, it would of course be a boon to landowners whose lands are in close proximity to a station along the railway line as it would promote easier accessibility to places served by the railway line and more so, if one were a developer, it would enhance the value of the development served by a station and would be a strong selling point. [25] A railway line and its stations have to be on somebody’s land and in a case of a developer, it would be a kind of windfall if it is so destined that a railway line would be near its development and more so the stations serving the line. Others might be upset and indeed aggrieved if the line were to cut through their land such that it would cause a disruption to what it had planned to develop and for them the remedy would be for compensation under the LAA, taking into account the loss that would arise from developments already approved by DBKL in the form of Development Orders in this instance for example and considering the value of Works already undertaken for the development project. [26] It would not be unnatural and indeed to be expected that a developer whose land might be acquired for a railway line would try to persuade the relevant parties that a station should be built on the portion of land to be acquired so as to allow them to tap into the potential that comes with such proximity of the station to its development. [27] A developer/land owner is at liberty to challenge the validity of the land acquisition by way of a judicial review action and this the Plaintiff did with respect to the declaration made under section 8 LAA that the said lots 10 of 94 were to be acquired for the proposed construction of the MRT SBK Line (“the First Line”). However the High Court on 24.7.2012 dismissed the Plaintiff’s application for leave to commence the judicial review. Against that decision the Plaintiff had appealed to the Court of Appeal. The Plaintiff had earlier in its letter dated 24.3.2014 to MRT, admitted the lack of proof that the acquisition of the subject matter land was for the Second Line as follows: “As you are aware that apart from the spirit of cooperation achieved on 30.1.2013, the other reason ALSB withdrew their Judicial Review application in Court was because it lack proof to show that the said acquisition of the above mentioned (2) lots was for the Sungai Buloh – Putrajaya Line which you have made a statement in the press recently.” (emphasis added) [28] The Plaintiff has elevated to the character of an oral Contract what they said is germane in the letter dated 20.10.2014 where the D1 wrote to the Director of Lands and Mines Wilayah Persekutuan and copied to the Plaintiff and DBKL, putting on record the terms that parties had agreed. However the said letter does not mention anything about the SSP Line. The SSP Line was not featured at all in the said letter, let alone the focus of what the parties had discussed. [29] The said letter of 20.10.2014 mentioned that the Plaintiff would agree to the compulsory acquisition of part of the Land i.e. Lots 38031 and 38029 and to proceed to claim for compensation through the Land Reference proceedings. The Plaintiff would further exchange a piece of land owned by 11 of 94 the Plaintiff in the vicinity of the lots acquired with DBKL and that D1, the Plaintiff and Mayland Century Sdn. Bhd. would bear the costs in equal shares of the construction of a slip road that would connect the proposed Multi Storey Park & Ride facility for the First Line on the said lots to a plot of land that was adjacent to the said lots. [30] Nothing was mentioned of the Second Line, the MRT SSP Line and nothing and no one can stop the Plaintiff from hoping that a proposed Second Line would also have a station built on their Land and the SSP Line passing through or close to the Plaintiff’s Land. [31] The Plaintiff said that had it not been for the representation that the SSP Line would pass through their Lands, they would not have withdrawn their appeal to the Court of Appeal on the appeal from the decision of the High Court dismissing their leave for judicial review; which action to challenge the acquisition is with respect to the First Line, the MRT SBK Line. [32] I must say that in matters of this nature where so much is at stake, one must not shy away from stating in writing what one has bargained for. Thus if what has been bargained for is the contractual commitment of D1 that the SSP Line would pass through the Plaintiff’s Land with a station built thereon, then it surely must have been reduced into writing at the time when the appeal to the Court of Appeal was withdrawn or at least there would be some contemporaneous settlement agreement to that effect. 12 of 94 [33] The Plaintiff was at all material times represented by solicitors in the judicial review action and no solicitors would have agreed to withdraw the appeal without ensuring that the client’s right is preserved or protected with respect to the SBK Line and if for some reasons there is to be a contract that the Second Line in the SSP Line is to pass through the Plaintiff’s Land as part of the settlement reached and consideration for withdrawing the appeal, then surely they would have advised that the agreement and contract be reduced into writing. Better still that the consideration for the withdrawal of the appeal be stated in the order for withdrawal itself or be annexed to the terms of the withdrawal. [34] The fact that there is no documents tending to show or lend support to that is very telling. It cries out for an explanation and the only explanation is that consistent with the fact that there was no oral contract that the SSP Line was to pass through the Plaintiff’s Land. [35] I cannot believe that a developer like the Plaintiff would leave such an agreement to be an oral one and live with that, when in reality the stakes are so high to the tune of RM300 million. If a developer’s exposure and risk is that massive, surely they would have insisted on some written terms no matter how sketchy or superficial and it would be naive to settle for a so-called oral contract and misrepresentation. [36] There is no suggestion that the bargain with respect to the SBK Line was not carried through but what is now being contended by the Plaintiff is that the bargain stretched further to cover the SSP Line as well and D1 had failed to keep to the bargain arrived at. More than that D1 had 13 of 94 misrepresented this fact of the SSP Line passing through the Plaintiff’s Land. In other words Plaintiff is alleging an oral contract founded on misrepresentation by D1. [37] The fact that D1 did recommend for the SSP Line to pass through the Plaintiff’s Land and a conditional approval for the SSP Line was granted pursuant to section 84(1) of the LPTA is no indication that that must be a step in fulfilling the terms of the oral contract between the Plaintiff and D1. As it transpired, on 12.5.2015, conditional approval was granted under section 84(1) of the LPTA for the realignment of the SSP Line to go through Bandar Malaysia, Kuala Lumpur. Ultimately the proposed realignment of the Second Line, the SSP Line was given final approval under section 84 of the LPTA on 7.10.2015. [38] There is no evidence suggesting that D1 has control over the decision making process of D2 and D3. D2 and D3 must be free to exercise their statutory duties taking into account all relevant factors arising from feedback under the LPTA and in this case from the Economic Planning Unit under the Prime Minister’s Department. [39] It is easy to allege an oral contract which is why authorities are a plenty to affirm the principle that there must be shown some contemporaneous documents to support and substantiate the so-called oral contract in the context in which the parties found themselves. Absent that the Court would be skeptical as to the seriousness of the Plaintiff’s Claim and would be constrained to strike it out as being frivolous and vexatious and an abuse of the Court’s process. 14 of 94 [40] It is now accepted and for good reason that a party is required to tender adequate contemporaneous documents to establish the existence of an oral contract as can be seen in the Court of Appeal’s case of Sang Lee Co. Sdn. Bhd. v Subramaniam a/l Mayawan & Ors [2011] 5 MLJ 374. [41] I agree with learned counsel for D1, Mr Steven Thiru, that courts have summarily struck out claims based on alleged oral contracts on the grounds that its existence had not been established from the documents disclosed at the interlocutory stage. In the High Court case of Tan Sri Halim Saad v Tan Sri Nor Mohamed Yakcop & Ors [2014] 11 MLJ 379, the Court struck out a claim premised on an oral contract on the grounds that the contemporaneous documents that was tendered rendered it highly improbable that the alleged oral contract did exist. See pp. 395 – 398, paras. 59 to 70 where it was held as follows: “[59] Against these allegation, learned counsel for the third defendant submitted, which I accepted, that this alleged 2003 Agreement must be rejected as inherently incredible and/or inconsistent with the contemporaneous documents for the following reasons... ... [68] Further, it was submitted for the plaintiff that the RM165m was merely to repay and compensate him for the amount he paid to UEM pursuant to the put option. With respect, I agree with the submission of learned counsel for the third defendant that this 15 of 94 explanation is inconsistent with the contemporaneous documents based on the following grounds: ... [70] In the circumstances of this case, there is no reason why the matter should go for trial. It seems to me that the plaintiff's allegations are inconsistent with the contemporaneous documents and inherently improbable ...” (emphasis added) [42] Likewise in Elegant Adisory Sdn. Bhd. v. Ishak Abd Rahman [2009] 1 LNS 1537 the High Court struck out a claim for breach of an alleged oral contract as the documents tendered to prove the existence of the alleged contract were held to be inadequate. At pp. 8 – 9 it was held as follows: “In other words, the Plaintiff when required to provide particulars of the oral agreement to prove privity of contract was unable to do so ... When pressed to provide evidence of privity of contract with the Defendant, during oral submissions, Counsel for the Plaintiff submitted that the invoices pleaded in paragraph 11 of the statement of the claim are a sufficient plea of the existence of privity. With respect, as invoices are invariably issued subsequent to the conclusion of the contract, I cannot accept that the two invoices represent the terms of the alleged contract. In any event, neither invoice was produced to the Court. In my judgment, if the Plaintiff is unable to furnish the terms of the oral contract in the statement of claim or by way of Affidavit evidence, I have no reason to believe that the Plaintiff will be able to do so in a trial 16 of 94 of the action. Accordingly, I see no purpose in allowing this monstrous claim for RM218 million to hang over the head of the Defendant, when all that the Plaintiff has been able to produce by way of relevant documentary evidence are four delivery orders of inconsequential value ... I am conscious that this Court should only strike out a claim under any of the four limbs of O. 18 r. 19 (1) RHC 1980 when the Court is satisfied that the claim is on the face of it obviously unsustainable. However, I am not persuaded after a through examination of the statement of claim and the affidavits affirmed for and against Enc. 29, that the Plaintiff has raised any question or issue which merits a trial of the same. Indeed, in my judgment, the Plaintiff's claim is frivolous and vexatious. Accordingly, I allow prayers (a) and (b) of Enc.29 with costs and strike out the Plaintiff's writ and statement of claim.” (emphasis added) [43] Learned counsel for D1 also referred to the case of Dato Sri Celestine Ujang anak Jilan v Sunrise Cultivations Sdn. Bhd. [2008] 7 MLJ 739, where the High Court allowed a summary judgment application after determining the defendant’s claim that there existed an oral agreement between him and the plaintiff to be highly improbable. It is not unlike a case where the Plaintiff applies for the Defendant’s Defence to be struck out and judgment to be entered for the Plaintiff. At pp. 752 – 753, para. 45 and 46, the High Court remarked as follows: “[45] Therefore, applying the test laid down by the Supreme Court in the Bank Negara case, I find the assertion made by the first 17 of 94 defendant through Mr Hii that there was a separate oral agreement between the plaintiff and Mr Hii that the proceeds from the sale of the plaintiff's shares in the company would be used to repay the loan taken by the plaintiff from Mr Hii through a set-off or contra effected by the first defendant, not only inherently improbable in itself, but it is also inconsistent with undisputed contemporary documents written by Mr Hii himself. I accordingly find this assertion is not made bona fide and it does not give rise to any bona fide triable issue. [46] Since the first defendant's other defences like estoppel, fraud, cheating and mistake are all founded upon the allegation than there was a separate oral agreement between the plaintiff and Mr Hii which constituted a condition precedent to the execution of the said sale agreement which allegation I have rejected as incapable of giving rise to any triable issue, it must follow that these other defences of the first defendant are also unsustainable.” (emphasis added) [44] I agree with D1’s submission that the Plaintiff has failed to tender sufficient contemporaneous documents to prove the existence of the alleged oral contract and/or the terms of this alleged oral contract through the affidavit evidence tendered in Enclosure 11. It would be fair to say that all the documents that have been disclosed show that the discussions between the Plaintiff and MRT as D1 were only with respect to the First Line i.e. SBK Line at all material times. The documents further showed that the Second Line i.e. SSP Line was not the subject of the discussions or any agreements between the Plaintiff and MRT. 18 of 94 [45] I agree with learned counsel for D1 that this is critical because the alleged representations relating to the SSP Line is what provides the basis of the pleaded claim for breach of contract by the Plaintiff against D1. The Plaintiff has not produced any documents that lends support to a probable oral contract that the Second Line was to run through the said Land and that an MRT station for the Second Line would be constructed on the said Land. [46] There was also no evidence that D1 would induce and/or procure DBKL’s agreement for the transfer of a plot of land owned by DBKL in the vicinity of the land to the Plaintiff. [47] Further there were no documents to show that there would be a link connecting an MRT station for the Second Line to the Plaintiff’s proposed development on the said Land. [48] I would find that the existence of such an oral contract as alleged by the Plaintiff against D1 to be highly improbable and indeed inherently incredible as to be obviously unsustainable and should be struck out. Whether the claim for misrepresentation is vague in that it is lacking in material particulars and not curable by an Amended Reply to D1’s Defence [49] D1’s grounds to strike out the Plaintiff’s claim in misrepresentation are twofold: 19 of 94

the Plaintiff has failed to plead the essential facts to substantiate a claim for any of the three types of misrepresentation known to law; and

the Plaintiff has failed to state the type of misrepresentation that it alleges against MRT and, therefore, the Court is not able to award the appropriate remedy to the Plaintiff in respect of this claim. [50] On the first ground, learned counsel for the D1 submitted that there are three types of misrepresentation known to law, namely; fraudulent, negligent and innocent misrepresentation (see Sim Thong Realty Sdn. Bhd. v Teh Kimg Dar @ Tee Kim [2003] 3 MLJ 460 – p. 468). [51] Secondly, the Plaintiff has not pleaded the necessary facts to advance a claim in innocent misrepresentation against MRT. In this regard, D1 submitted that an innocent misrepresentation is actionable “’where the representor believes his assertion to be true and consequently has no intention of deceiving the representee’” (see Sim Thong Realty Sdn. Bhd. v Teh Kim Dar @ Tee Kim [2003] 3 MLJ 460 at p. 468. [52] Learned counsel for D1 argued that this omission is fatal to the Plaintiff’s claim for damages. This is because there are distinct forms of relief that are available for each class of misrepresentation. In this regard:

for fraudulent misrepresentation – damages in contract;

for negligent misrepresentation – damages in tort; and

for innocent misrepresentation – rescission and restitution. (see Sim Thong Realty Sdn. Bhd. v. Teh Kim Dar @ Tee Kim [2003] 3 MLJ 460 at pp. 468 to 471) 20 of 94 [53] I agree that the Plaintiff’s omission to plead the type of misrepresentation has tied the hands of this Court in awarding the appropriate form of relief for the claim in misrepresentation against D1, MRT. Indeed in Sim Thong Realty (supra) it was held that if no specific type of misrepresentation is pleaded then a plaintiff is deemed to be proceeding under innocent misrepresentation with the relief in rescission and restitution and not damages. Here the only relief sought is a claim for damages against D1 to the tune of over RM300 million. [54] However, in paragraph 5.15 of the Plaintiff’s Amended Reply, the Plaintiff pleaded “fraudulent” and “negligent” misrepresentation against MRT as follows: “5.15 From the Plaintiff’s pleaded case, the 1st and/or 4th Defendants’ representations are fraudulent. In the alternative, the said representations are negligent.” [55] The Plaintiff’s pleaded case in the Statement of Claim was not a plea of fraudulent or negligent misrepresentation. These causes of action are raised for the first time in the Plaintiff’s Amended Reply. [56] It is settled that a claim of fraudulent misrepresentation or a case that is premised on fraudulent conduct necessitates that a specific plea of “fraud” be alleged. Learned counsel for D1 cited a host of cases that provided guidance on this point: 21 of 94

the Supreme Court in Ting Ling Kiew & Anor v. Tang Eng Iron Works Co Ltd [1992] 2 MLJ 217 (see p. 227): “... In such a case as the present where fraud or intention to defraud is the central issue we agree that the particulars of fraud must be specifically pleaded and it is obvious that the particulars of the fraud are absent in the affidavit of the manager of the respondent company.” (emphasis added)

the Court of Appeal in Tan Ah Tong v Parveen Kaur [2011] 5 MLJ 428 (see p. 435, para [19]);

the High Court in Rokiah bt Suhaili v Emly Batu ak Bagang & Ors [2014] 7 MLJ 452 held a claim in fraudulent misrepresentation to be unsustainable for an inadequate plea of fraud in the following terms (see pp. 462 – 463, paras. [10] to [13]): “[10] Counsel for Serira Sdn Bhd submitted that the plaintiff failed to provide particulars of fraud and misrepresentation as required by the rules of pleadings. In support he cited a passage from Bullen Leake and Jacob's Precedents of Pleadings which in part reads as follows: Full Particulars of any misrepresentation relied on must be given in the pleading ... Any charge of fraud or misrepresentation must be pleaded with the utmost particularity ... 22 of 94 [11] Counsel for the plaintiff did not address this point in her submission. I find that there is merit in the argument of the counsel for Serira Sdn Bhd. Order 18 r 12(2) provides that particulars of fraud or misrepresentation must be given in the pleading. In my view, the three paragraphs directed against the third and fourth defendant are general averments only which are singularly lacking in particulars. The rationale for particulars where fraud is alleged was given in the case of John Wallingford v The Directors of the Mutual Society (1880) 5 AC 685 (folld) where Lord Blackburn said as follows in this passage (cited with approval by Zakaria Yatim J in Malaysian French Bank Bhd v Abdullah bin Mohd Yusof & Ors [1991] 2 MLJ 475)... [12] The above passage also found its way into Mallal's Supreme Court Practice, where it is stated (at pp 204–205 of the 4th Ed) that: Particulars of fraud must be pleaded. A general allegation of fraud, however strong the words used, where there is no statement of circumstances relied on as constituting the alleged fraud, is insufficient even to amount to an averment of fraud of which any court ought to take notice: John Wallingford v The Directors of the Mutual Society and the Official Liquidator thereof (1879-80) 5 App Cas 685 at pp 697, 701 and 709. [13] In para 11, the plaintiff has made an allegation that Serira Sdn Bhd and Rose ak Enteri would have known that the purpose of the 23 of 94 power of attorney granted to Emily Batu was for the development of the land into residential and commercial units. In paras 12–13, the plaintiff has only made a very general allegation that the sale of the land to Serira Sdn Bhd was tainted by fraud. No particulars in respect of the involvement of Serira Sdn Bhd and Rose ak Enteri in the fraudulent misrepresentation made by Emily Batu and Augustine Ling to the plaintiff were given. On this ground alone, my view is that the claim against Serira Sdn Bhd and Rose ak Enteri should be dismissed. However, assuming I am wrong in this holding and that paras 11–13 of the statement of claim are sufficient to give notice of the alleged fraud or fraudulent misrepresentation committed by Serira Sdn Bhd and Rose ak Enteri, I shall now proceed to consider the evidence tendered during trial.” (emphasis added)

the High Court in Wee Kok Bin v Aseambankers Malaysia Bhd. [2012] 5 MLJ 778 (see p. 796, para. [32]): “... After carefully considering the pleaded case of the plaintiff, it can only be concluded that the allegations of conspiracy (in the context of an alleged acting in concert to depress the share price of Liqua, which is essentially a case grounded on fraudulent conduct in the context of the securities laws) have not been properly taken in the plaintiff's pleadings. No full particulars have been given in the statement of claim such as to run counter to the express provisions of O 18 r 8(1) and (2) of the Rules of the High Court

The defendant must specifically plead fraud and a 24 of 94 general allegation is insufficient; full particulars must be pleaded.” (emphasis added) [57] I would agree with D1 that the required express plea of “fraud” is absent in the Statement of Claim. [58] The conclusion arrived at is inescapable: the purported claim (as pleaded in the Statement of Claim) against MRT is not one of fraudulent misrepresentation. The cause of action of fraudulent misrepresentation has been raised for the first time in the Plaintiff’s Amended Reply. [59] Learned counsel for D1 further argued that a claim of negligent misrepresentation must be supported by a plea of the existence of a special relationship in the Hedley Byrne sense. The Court of Appeal in Sim Thong Realty Sdn. Bhd. v Teh Kim Dar @ Tee Kim [2003] 3 MLJ 460 stated this on this principle (see pp. 469 to 470): “If the misrepresentation was made negligently, the remedy of the representee lies in damages in the tort of negligence under the assumption of responsibility and reliance doctrine laid down in Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465. In such a case, the representee must plead and prove a special relationship giving rise to a duty of care as well as the other elements that go to constitute the tort of negligence. So far as the relevance of the tort in relation to pre-contractual and contractual statements is concerned, we would quote with 25 of 94 approval the following passage from Sinnadurai on the Law of Contract (3rd Ed) at p 243: Under English Law, until the decision of the House of Lords decision in Hedley Byrne & Co Ltd v Heller and Partners Ltd, innocent misrepresentation included negligent misrepresentation. However since Hedley Byrne and the coming into force of the Misrepresentation Act 1967, there appears now to be a distinction between negligent misrepresentation and innocent misrepresentation. Negligent misrepresentation is generally confined to cases where a duty is imposed to take care in making statements. Such a duty may arise under a contract, where the parties stand in a fiduciary relationship: Nocton v Ashburton [1914] AC 932 or out of a 'special relationship': Hedley Byrne. Where a special relationship exists, a negligent misstatement may not only be a breach of contractual warranty, but also an actionable tort as a breach of the duty which exists throughout pre-contractual negotiations until making of the final contract. In Selangor United Rubber Estates Ltd v Cradock & Ors [1965] 1 Ch 896 the court held that where a plaintiff alleged a breach of duty arising from any given relationship, he has to specify with precision the relationship under which the duty arose; in this case it was not clear whether the plaintiff was alleging the ordinary relationship of banker and customer or some other special relationship.” (emphasis added) 26 of 94 [60] See also the Federal Court in Kluang Wood Products Sdn. Bhd. & Anor v Hong Leong Finance Bhd & Anor. [1999] 1 MLJ 193 at pp. 224 to 226). It would appear that, notwithstanding the above, the Plaintiff’s pleadings are devoid of the required statements alleging a Hedley Byrne relationship in connection with its misrepresentation claim. [61] Uncomfortable as it is, the Plaintiff’s purported claim against D1 (as pleaded in the Statement of Claim) is not one of negligent misrepresentation. The cause of action in negligent misrepresentation has been raised for the first time in the Plaintiff’s Amended Reply. [62] I cannot but agree with D1 that the Plaintiff’s introduction of the new causes of action in “fraudulent” and “negligent” misrepresentation in the Amended Reply is a patent departure from the pleaded case in the Statement of Claim and is liable to be struck out. Whether, even if there was an oral contract, the preconditions were not met and hence no action may be founded on such an oral contract [63] I find merit in D1’s argument that even if there was an oral contract, which is denied, such a contract is a “contingent contract” within the meaning of section 33 read with section 32 of the Contracts Act 1950. Sections 32 and 33 read as follows: “32. "Contingent contract” A "contingent contract" is a contract to do or not to do something, if some event, collateral to the contract, does or does not happen.

Enforcement of contracts contingent on an event happening 27 of 94

Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened.

If the event becomes impossible, such contracts become void.” [64] The Plaintiff was fully conscious and cognizant if not conversant with the fact that any contract on the SSP Line passing through the Plaintiff’s Land would have to include a critical condition precedent that there must be a final approval for the SSP Line under the LPTA. The Plaintiff’s frame of mind that gave way to a Freudian slip was its letter dated 29.5.2012 to D1 where it expressed its high hopes as follows: “Our client also wish to reiterate that if the land acquisition were to be executed in a proper manner i.e., when the Putrajaya MRT line is approved, then our client would benefit in the same manner listed above.” (emphasis added) [65] The requirement of final approval for the line is stipulated in s. 84(6) as follows: “The Minister may, after considering the plans and sections and book of reference and any objections thereto and having due regard to the recommendations of the Commission—

give final approval to or reject the railway scheme; or

where he considers that the plans and sections should be amended, direct the applicant to reconsider such plans and sections and report to the Commission within such period as the Commission may require.” 28 of 94 [66] It cannot be gainsaid that the requirement of final approval was therefore a condition precedent by operation of law. I agree with D1 that here, the condition precedent is embodied in a mandatory statutory requirement, the compliance with which could not be waived by either party. Accordingly, the non-fulfillment of the condition precedent would cause the contract (if there is one) to be rendered void in law and therefore unenforceable. [67] Learned counsel for D1 cites in support of this proposition the Federal Court’s case of Chase Perdana Bhd v Md Afendi bin Hamdan [2009] 6 MLJ 783 at pp. 790 – 792, paras. 16 – 22 where it held a contract to be void in law for the non-fulfillment of a condition precedent which required the parties to obtain a set of statutorily required approvals: “[16] Among the terms spelled out in the letter of undertaking and the agreement were the conditions that FIC and MOF's approval must be obtained. It is not denied that these two approvals were not obtained. The appellant rightly submitted that as long as either of the conditions was not complied with, the letter of undertaking cannot be enforced unless, as held by the Court of Appeal, these requirements can be waived. [17] Counsel for the appellant submitted that the Court of Appeal had erred in the above conclusion. It is his submission that parties to an agreement cannot waive statutory requirements. The MOF's approval is required under the Securities Industries Act 1983 (then in force) and the 1987 Regulations whilst the FIC's condition is 29 of 94 only a policy of the government and not backed by any written law. I find that this is the correct statement of the law. [18] The law on this is quite established. Once it is enacted by legislation that parties are required to comply with any provision, parties must comply with such provision. It is not for any person to waive legislative requirements by an agreement unless the legislation allows it to be done... [19] The leading Malaysian authority regarding the fulfillment of conditions in a contract is the decision of Lord Jenkins in Aberfoyle Plantations Ltd v Khaw Bian Cheng [1960] MLJ 47 where it was held by the Privy Council that parties must fulfill the conditions stipulated in the agreement. It was thus made plain beyond argument that the fulfillment of a condition precedent in a contract of sale is binding upon the parties... [21] ... It does not matter whose duty it was to obtain the approval. The fact remains that statutory approval has not been secured. It would have been otherwise, perhaps, if the condition precedent is not one that is required by law. [22] The MOF's approval in regard to licencing of securities companies is required under s 12 of the then Securities Industry Act 1983. In actual fact, this appeal can be disposed of by only looking into the MOF's requirement issue. In so far as the requirement of the MOF is concerned, since the approval of the MOF is required by legislation and such approval was not obtained, the answer to the first question must be in the negative.” (emphasis added) 30 of 94 [68] It cannot be over-stated that the prerequisite of final approval under s. 84(6) prior to the construction of the Second Line, the SSP link, on the Plaintiff’s Land was a statutory requirement that could not be waived. It is also a fact that the proposed construction of the Second Line through the subject matter Land did not receive the final approval under the LPTA. [69] I agree with D1 that it necessarily follows that any alleged contract between the Plaintiff and D1 is void in law due to the non-fulfillment of a critical condition precedent, the compliance with which was mandated by statute. [70] In the result, the Plaintiff must be held not to have a sustainable claim for breach of contract against D1. Whether, even if there was an oral contract, such a contract is void under section 24(a), (b) and (d) of the Contracts Act 1950 [71] Assuming for a moment that there was such an oral contract, which is denied by D1, it would be a contract that would fall foul of section 24 of the Contracts Act 1950. D1 is not in a position, and indeed the law would not allow them, to guarantee the construction of an MRT Line and station on the Plaintiff’s Land. [72] Such a Contract, assuming for a moment that there is one, would disregard and/or override the requirement of final approval from the Prime Minister for the construction of the line under s. 84(6) of the LPTA as the Minister designated under the LPTA. It is effectively and in reality asserting 31 of 94 and acknowledging that compliance with section 84(6) of the LPTA can be waived. [73] Section 24 of the Contracts Act 1950 provides as follows:

“What considerations and objects are lawful, and what not The consideration or object of an agreement is lawful, unless—

it is forbidden by a law;

it is of such a nature that, if permitted, it would defeat any law;

it is fraudulent;

it involves or implies injury to the person or property of another, or

the court regards it as immoral, or opposed to public policy. In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” (emphasis added) [74] The Plaintiff is deemed to have known the law with respect to the requirement of section 84(6) of the LPTA and more so when they were at all material times represented by solicitors. They would have known that any contract that requires the waiver of a statutory requirement is unenforceable. [75] For completeness and to assist in a better comprehension of the process of getting the relevant approval of a railway line, the whole of sections 83 and 84 are set out below: 32 of 94

“Railway scheme

No railway shall be constructed without the approval of the Minister, acting on the recommendation of the commission.

Any person intending to construct a railway shall submit a written application to and deposit with the commission a railway scheme, which shall contain the following information:

the type and system of the proposed railway, including the proposed type or types and quantity of rolling-stock to be used on the railway, the proposed fare collection system and whether the railway will be used for the carriage of passengers or goods or both;

the proposed routes and terminal points of the proposed railway system;

the proposed location of terminals, associated buildings, workshops, depots and yards;

the safety aspects of the proposed railway system, including the signalling systems and communications systems;

the proposed structure for rates as may be applicable and other proposed conditions of carriage;

the proposed integration with other existing or proposed railways;

the scheduled completion and proposed date of opening of the railway;

the proposed licensed operator of the railway to be constructed, if different from the person intending to construct the railway; 33 of 94

the description of proposed related, peripheral or ancillary activities to be undertaken in connection with the provision of railway services;

the proposed universal accessibility in all relevant parts of the railway to cater to the needs of disabled persons; and

such other matters as may be prescribed that will enable the Minister to evaluate the railway scheme.

Every railway scheme deposited under subsection (2) shall be accompanied with a map showing the proposed routes for the railway.

The commission may require the applicant to submit such further or additional information as the commission deems necessary with reference to any information contained in the railway scheme, and such further or additional information shall be submitted within such period and in such manner as the commission may require.

The commission shall, within any such period as set out in rules made by the commission under paragraph 253(1)(nn), submit a written recommendation to the Minister on the application.

The written recommendation of the commission shall specify

the reasons for its recommendation; and

any conditions which the applicant should be subject to if the commission recommends to the Minister to grant the approval. 34 of 94

A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both. Approval of railway scheme and deposit of plans, sections, etc.

(1) The Minister may, after having due regard to the recommendation of the commission under section 83, reject or grant conditional approval to a railway scheme.

where the Minister grants conditional approval to the railway scheme under subsection (1), the applicant shall deposit in the office of the commission for public inspection—

plans and sections on a scale as specified by the commission or as set out in rules made by the commission under paragraph 253(1)(oo) showing the lines and levels of the proposed railway and also

(i)any intended alteration in the water level of any canal or in the level or rate of inclination of any road or railway which will be crossed by the proposed railway;

(ii) any intended diversion, widening or narrowing of any road, navigable river, canal or railway;

(iii) any intended laying of any part of the proposed railway along any road; and 35 of 94

(iv) any intended crossing of the tracks of the proposed railway over any road, navigable river, canal or railway; and

a book of reference containing the names of the proprietors and lessees of the lands which may be required for the purposes of the proposed railway.

The commission may require the applicant to submit such further or additional information as the commission deems necessary in respect of the plans and sections and book of reference referred to in subsection (2).

The applicant shall give notice of the deposit of such plans and sections and book of reference by advertisement in at least three successive issues of at least two national newspapers, one of which shall be in the national language, calling on all persons having any objection to the plans and sections and book of reference to send in a statement of their objections in writing to the commission within three months from the date of the last notice in the newspapers.

At the expiration of the period of three months, the commission shall present the plans and sections and book of reference referred to in subsection (2) together with any objections thereto and its recommendations to the Minister for final approval.

The Minister may, after considering the plans and sections and book of reference and any objections 36 of 94 thereto and having due regard to the recommendations of the commission—.

give final approval to or reject the railway scheme; or

where he considers that the plans and sections should be amended, direct the applicant to reconsider such plans and sections and report to the commission within such period as the commission may require.

in the case where paragraph (6)(b) applies, the Minister may, after considering the amendments made to the plans and sections and having due regard to the objections made under subsection (4) and the recommendations of the commission, give final approval to or reject the railway scheme.

The plans and sections, if approved by the Minister, whether under paragraph (6)(a) or subsection (7), shall be deemed to be deposited plans referred to in this Act.

The Minister may, in approving any railway scheme, impose any requirement or condition as it considers appropriate, having due regard to the recommendations of the commission.

The decision of the Minister to grant or not to grant the approval under this section shall be communicated to the applicant by the commission by written notice as soon as practicable.

The written notice by the commission under subsection (10) shall specify— 37 of 94

in the case where the approval is granted, the fact of such grant and the requirements or conditions imposed under subsection (9); and

in the case of a refusal to grant the approval, the fact of such refusal and the reasons for the refusal.

A person who contravenes any requirement or condition imposed under subsection (9) commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.” (emphasis added) [76] I agree with learned counsel for D4 that what arise from the Act are as follows:

the Act was enacted to provide the necessary safeguards to protect the public interest in the implementation of any railway construction in the country;

the construction of a railway is subject to the Act;

penal consequences may arise in respect of any party or parties who contravene these sections. [77] One can surmise that the object of the LPTA is to ensure that proper safeguards are in place when an applicant seeks to construct a railway and that the final approval rests with the Minister. These proper safeguards are for the protection of the public. The Minister is of course answerable to Parliament and the people and the resources of the State should be channeled to benefit the maximum number of people especially the lower 38 of 94 income group who would be in more dire need of an efficient and reliable public transport. The process cannot be short circuited or hijacked just because some parties are lobbying for it. [78] Whilst there is no obligation for a railway line to be near anybody’s land or development, there is nevertheless tremendous benefits if it so passes by one’s development. It is not unexpected that there would be some lobbying by interested parties for a railway line to be near one’s development. [79] The LPTA also implies that any transactions which may involve the construction of a railway outside its ambit and without the approval of the Minister would be rendered illegal or unlawful. This so-called oral contract, if there is one, would be caught by the prohibition under the LPTA. [80] The prohibition is serious enough to be followed by a penalty in section 83(7) and 84(12) of the LPTA, both of fine or imprisonment or both. Learned counsel for D4 had summarized succinctly the requirements of section 83 LPTA as follows:

no railway can be constructed without the approval of the Minister acting on the recommendation of the commission;

any person intending to construct a railway must comply with the provisions under section 83;

any person who contravenes section 83 is subject to penal consequences; 39 of 94

upon the recommendation of the commission under section 83, the Minister may reject or grant conditional approval to the railway scheme;

where such conditional approval is granted, the applicant has to carry out various steps intended to provide notice to the public, amongst others, allowing for public inspection;

it is only after the public is given a full opportunity to view the alignment and raise objections within a specified time, can the Minister give his final approval;

the Minister may take into consideration, all matters presented during this period and may make amendments when giving his final approval;

any person who contravenes section 83(7) as above is subject to penal consequences. [81] I agree with D1 that the alleged oral contract between the Plaintiff and D1, in essence requires D1 to guarantee the construction of an MRT Line and station on the Plaintiff’s Land and that would be unenforceable under section 24 of the Contracts Act 1950. In reality such an oral contract would have to disregard and override the requirement of final approval from the Prime Minister for the construction of the line under section 84(6) of the LPTA. In effect it would be to say that the requirement of section 84(6) of the LPTA can be waived. [82] The Federal Court in Tan Chee Hoe & Sons Sdn. Bhd. v Code Focus Sdn. Bhd. [2014] 3 CLJ 141 held that a contract for the sale of land in consideration for the transfer of shares without the required shareholder 40 of 94 approval under s. 132C of the Companies Act 1965 was unenforceable by virtue of s. 24 of the Contracts Act. [83] The Federal Court held as follows in refusing to enforce the contracts which required the unlawful waiver of the statutory requirement for shareholder approval under the Companies Act: “[31] The authorities on this matter are clear. Section 24 of the Contracts Act 1950 stipulates in effect that the consideration or object of an agreement is unlawful if it is forbidden by law or if it is such a nature that if permitted, would defeat any law. Every agreement of which the object or consideration is unlawful is void; and a void contract cannot be enforceable by law. ... [33] To knowingly and consciously waive the mandatory statutory requirement of s. 132C of the Companies Act 1965 is unlawful. The court of law will not entertain such unlawful act by allowing claim based on the void agreement. The same principle was adopted by Coulson J in K/S Lincoln v CB Richard Ellis Hotels Ltd [2009] EWHC 2344 where it was held that "it seems clear that the underlying principle or policy is one of deterrence; that the courts will not encourage illegal acts by allowing claim based upon them." ... [35] The interest of the shareholders of the defendant company, must be protected. That is the intention of s. 132C of the Companies Act 1965; particularly as in the present case there 41 of 94 were a number of shareholders of the defendant company at the material time. The shareholders then were Tan Eng Teong, Tan Tack Lin, Tan Eng How, the Estate of Tan Chee Hoe and Tan Eng Sin (Tan Eng Teong, Tan Teck Lin and Datin Chan Woi Choo as trustees). [36] Based on the above considerations, it is clear that the SPA in question was not merely voidable at the option of the plaintiff as found by the Court of Appeal but invalid and void. The plaintiff cannot make any claim based on the terms of the said void agreement. The SPA, although lawful on its face according to its own terms, was unlawful as it was to be performed in a manner which the law or statute prohibits. (see: Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] 139 CLR 410). The plaintiff had knowingly participated in the contravention of the statutory requirement under s. 132C; and therefore not entitled to the protection under the exception in sub-s. (3).” (emphasis added) [84] The stark reality is that, in the present case the oral contract, if there is one, would guarantee the construction of the MRT line and station on the Plaintiff’s Land by side-stepping the statutory requirement of section 84(6) of the LPTA and suspending its operation altogether! 42 of 94 [85] The said alleged oral guarantee would amount to both an object that is “forbidden by a law” or “would defeat any law” (s. 24(a),(b)) and an object that is “opposed to public policy” (s. 24(e)), as governmental approval is necessarily required for the construction of a railway line in Malaysia. [86] Accordingly, the contract alleged by the Plaintiff is void in law in view of section 24 of the Contracts Act. As a consequence of the alleged contract being void pursuant to section 24, the Plaintiff is precluded from deriving any compensation for alleged loss founded on the purported agreement (see Mustafa bin Osman v Lee Chua & Anor [1996] 2 MLJ 141). Whether, even if there was an oral contract, the said contract was a contingent contract [87] Learned counsel for D1 MRT submitted that even if there was an oral contract between the Plaintiff and MRT, which is denied, the said contract was a contingent contract within the meaning of section 32 read with section 33 of the Contracts Act 1950. The sections read as follows:

"Contingent contract" A "contingent contract" is a contract to do or not to do something, if some event, collateral to the contract, does or does not happen.

Enforcement of contracts contingent on an event happening

Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened. 43 of 94

If the event becomes impossible, such contracts become void.” [88] I agree with the following proposition of the law argued by learned counsel for D1:

A contingent contract’ is unenforceable in law if the “uncertain future event” does not occur (see the Federal Court in National Land Finance Co-operative Society Ltd. v Shahridal Sdn. Bhd. [1983] 2 MLJ 211 at pp. 218 – 220.

The “uncertain future event” (as contemplated under s. 33) could include a condition precedent in a contract (see the Court of Appeal in Bekalan Sains P & C Sdn. Bhd. v Bank Bumiputra Malaysia Bhd. [2011] 5 MLJ 1 at p. 58, para. 153.

Our courts have recognized conditions precedent that form or exist within oral contracts (see Karuppannan a/l Ramasamy & Anor v Elizabeth Jeevamalar Ponnampalam & Ors [2010] 1 MLJ 156 and Thiagrajen a/l Veluchamy v Suraish Naidu a/l RE Naidu & Anor [2009] 9 MLJ 68. [89] In the present it cannot be gainsaid that at the time of the discussion of where the line would pass through, it was still not certain whether such a line would be finally approved by the Minister under the LPTA, much less which stations the line would connect and to where. The Plaintiff was well aware of this requirement and this is borne out in their solicitors’ letter dated 29.5.2012 to MRT which reads: “Our client also wish to reiterate that if the land acquisition were to be executed in a proper manner i.e., when the Putrajaya MRT line is 44 of 94 approved, then our client would benefit in the same manner listed above.” (emphasis added) [90] No one can overlook, let alone overrule the requirement of final approval for the line as statutorily stipulated under section 84(6) LPTA as follows where the Minister would make the final decision having regard to the recommendation of the Land Public Transport Commission (“SPAD”) and the objections that may have been received as follows: “The Minister may, after considering the plans and sections and book of reference and any objections thereto and having due regard to the recommendations of the Commission—

give final approval to or reject the railway scheme; or

where he considers that the plans and sections should be amended, direct the applicant to reconsider such plans and sections and report to the Commission within such period as the Commission may require.” (emphasis added) [91] I agree with D1 that the conditional precedent embodies a mandatory statutory requirement, the compliance with which could not be waived by either party. The result is that the non-fulfillment of the condition precedent would cause the alleged contract to be rendered void in law and therefore unenforceable. [92] Support for the above proposition can be found in the Federal Court’s decision in Chase Perdana Bhd v Md Afendi bin Hamdan [2009] 6 MLJ 783 at pp. 790 – 792, paras. 16 – 22, where it was held that a contract is 45 of 94 void in law for the non-fulfillment of a condition precedent which required the parties to obtain a set of statutorily required approvals. [93] In the present case the statutory requirement of section 84(6) LPTA cannot be waived and the final approval from the Minister in D3 was that the SSP Line would pass through Bandar Malaysia. The oral contract, even if there was one, had become void and unenforceable for non-compliance of the contingent condition in the form of a condition precedent mandated by the LPTA. [94] The result is that the Plaintiff’s claim is unsustainable and ought to be struck out. Whether the Plaintiff has a sustainable claim in negligence against D1 [95] The Plaintiff, in their Statement of Claim, has pleaded a set of bare allegations of negligence against D1 MRT and D4 as follows:

““F. NEGLIGENCE Further and/or in the alternative, a duty of care is owed by the 1st Defendant (as the Project Proponent) and the 4th Defendant (as the Project Delivery Partner, agent and/or advisor) to the Plaintiff.

F/1. PARTICULARS OF NEGLIGENCE This duty of care was breached by the 1st and 4th

44.1 failing and/or omitting to ensure that the Contract was entered into with the necessary authority and approval; and 46 of 94 44.2 failing and/or omitting to ensure that the Contract was carried out as agreed between the parties.

The Plaintiff suffered loss and damage as a result of the aforesaid breach. Particulars of loss and damage are set out in Section H below.” [96] We are here not dealing with a run-by-mill claim for negligence as in a running-down case or a professional negligence case where the law has accepted that there is a duty of care owed. Absent that the law requires the basis on which the tortious duty of care arose to be pleaded and the content of the said duty. [97] The requirement to plead the basis of which the duty of care arose was exemplified in Selangor United Rubber Estates Ltd v Cradock & Ors [1964] 3 All ER 709 at p. 712 as follows: “... It seems to me that, where a plaintiff alleges the breach of a duty arising from any given relation, it must be incumbent on the plaintiff to specify, and specify with precision, what is the relation from which the duty arises. By “relation” I mean, for example, to take a different case from the present, the relation of principal and agent with or without some special provisions. Once the relation is specified, no doubt the duties arising out of it are, in great part at least, matters of law, but the relation itself must, it seems to me, be specified with precision. Then should the plaintiff in this case specify that relation with precision before the delivery of defence? There is no general rule to be laid down in these matters, 47 of 94 but at first sight one would think that, where a plaintiff alleges that the defendant is in breach of duty, he ought to specify at the very start the relation under which the duty arises in order that the defendant may set his course accordingly; and at any rate in very many cases it must be embarrassing to the defendant to plead to an allegation of breach of duty without having the relation under which the duty arises precisely specified. In the present case that seems to me to be so...” (emphasis added) [98]

(18th Edn.) at p. 677 it was observed as follows: “It is not sufficient to assert that a duty of care is owed. The basis for the existence of a duty of care must be pleaded (eg. the existence of a retainer or facts showing an assumption of responsibility towards the claimant)...” (emphasis added) [99] My attention was also drawn by learned counsel for D1 to the case of Yong Sze Hong v Pan Ka General Agencies Sdn. Bhd. [1994] 1 CLJ 555 at p. 558 as follows: “... Furthermore, if Counsel had solely relied on the tort of negligence, I would also have grave doubt if the action as pleaded could be sustained. It is elementary that the essential elements of actionable negligence are:

the existence of a duty to take care owing to the plaintiff by the defendant; 2. failure to attain that standard of care prescribed by the 48 of 94 law; and 3. damage suffered by the plaintiff, which is causally connected with the breach of duty to take care. The statement of claim should state the facts, upon which the supposed duty is founded, the duty to the plaintiff and the breach of such duty with which the defendant is charged. See Gautret v. Egerton [1867] LR 2 CP 371 approved by Lord Alverstone CJ in West Rand Central Gold Mining Co. v. R. [1905] 2 KB 391 @ 400... None of the above features appears in the statement of claim in the present action.” (emphasis added) [100] It would be fair to say that this is a case where the Plaintiff’s claim for negligence is so deficient of details and particulars as to make it defective. One cannot help getting the impression that the Plaintiff was scrapping the barrel to found some cause of action should its claim in contract fails and this simply would not do. [101] It does not help either for the Plaintiff to attempt to remedy this defect in the Statement of Claim by pleading, in paragraphs 6 and 6.1 to 6.4 of the Plaintiff’s Amended Reply, the basis of the alleged duty of care owed and the content of the alleged tortious duty. [102] I agree with D1 that the Plaintiff is not permitted to pursue such a course. [103] It follows from the cardinal principle that a plaintiff is not allowed to supplement its statement of claim by including in its reply, matters that should have been pleaded in the statement of claim. The Singapore High 49 of 94 Court case of Nirumalan K Pillay & Ors v A Balakrishan [1997] 1 SLR 322 stated as follows this principle at p. 326, para. [10]: “....Further, because the function of a reply is to answer matters raised in the defence, its contents must relate to matters raised in the defence. What is the same thing, the plaintiffs may not supplement his statement of claim by including in his reply matters which ought to have been included in the statement of claim. In this respect, a reply is analogous to re-examination of a witness which should be confined to matters touched on in cross-examination. Fresh evidence adding to or re-affirming evidence-in-chief is not permitted in re examination.” (emphasis added) [104] Accordingly, if an order has to be made on Enclosure 25 then paragraphs 6 and 6.1 to 6.4 of the Plaintiff’s Amended Reply should be struck out. [105] The Plaintiff had also argued that the D1 should apply for further and better particulars if they are prejudiced in replying to its statement of claim and that this Court should not exercise its summary powers to strike out the statement of claim if it could be saved by amendments. [106] However I would be constrained to conserve such a power of the court from being exercised where the party concerned has indicated that it no longer stands by its pleadings and has indicated that an amendment to the same is required. However the Plaintiff had not stated this as its stand not unlike the situation in Kim Hok Yung & Ors v Cooperatieve Centrale 50 of 94 Raiffeisen-Boerenleenbank BA [2000] 4 SLR 508 where the claim was struck out as follows (see p. 515, para. 18): “[18] ... It seems to me that the plaintiffs' case is so intrinsically weak that it must be condemned as a hopeless case. The following description by Nathan J in Connell v NCSC 15 ACLR 75, aptly applies to the instant case: 'The forlorn nature of the plaintiff's claim is apparent on the documents. Nothing could breathe life into it'. Mr Woo referred me to the case of Ching Mun Fong (executrix of the estate of Tan Geok Tee, deceased) v Liu Cho Chit [2000] 1 SLR 517 for the proposition that a court should not strike out a case if the defect or deficiency in pleading could be cured by way of amendment. This proposition has no relevance here as the plaintiffs stand by their pleadings and counsel have not indicated that any amendment is required. For these reasons, I am of the view that the plaintiffs' case must be struck out as frivolous and vexatious.” (emphasis added) [107] I would agree with learned counsel for D1 that the Plaintiff has done the exact opposite by forgoing its opportunity to amend its Statement of Claim and has instead elected to cure the defects in its pleadings through its Reply. [108] I am further guided by the principle laid down by the Court of Appeal in AIC DotCom Sdn. Bhd. v MTEX Corp Sdn. Bhd. [2011] 3 MLJ 476 at p. 479 and 480, para. 6 where the court’s power to amend a set of 51 of 94 pleadings is only exercisable if the pleadings are capable of being saved by way of an amendment: “[6] It is now well settled that a court which is moved to strike out a pleading has a separate and independent jurisdiction to direct an amendment to save the pleading in lieu of it being struck out (see Shahidan Shafie v Atlan Holdings Bhd & Anor & other appeals [2005] MLJU 279; [2005] 3 CLJ 793). But the power may only be exercised if the pleading is capable of being saved by an amendment. On the facts that form common ground between the litigants before us, no amendment can possibly save the appellant's pleading because this is not a case in which the appellant is in a position to contend that the alleged wrongdoers are in control of the subject company. It is therefore purely an academic exercise to see whether the amending power ought to have been resorted to by the learned judge whose order is now under appeal.” (emphasis added) [109] Whilst an action in tort may exist independent of a contractual relationship, here is a case where bereft of a contractual relationship, the Plaintiff needs to show its relation to D1 and D4 to found a cause of action in negligence to enable the Court to explore if the categories of negligence could be extended to cover the situation at hand. It would be fair to say that this is a case where, if the Plaintiff cannot succeed in contract, then it is unlikely for it to succeed in their claim under the tort of negligence. Likewise if it could succeed in contract then it would be entitled to all its remedies 52 of 94 and reliefs that it could prove and a claim for negligence would be redundant and unnecessary. [110] As for the Plaintiff’s argument that further and better particulars could be applied for, I agree with D1 that it is not mandatory that a party should apply for further and better particulars where the opposing party’s pleadings are wanting in particulars. Order 18 rule 19(1) in itself provides the scope for a party’s application to strike out a set of pleadings that are lacking in particulars. An application for further particulars is ordinarily only be made in cases where the pleadings are defective on account of its dearth of particulars and which prejudice may be cured by the furnish of the further and better particulars. Here the thrust of D1’s Defence is that there is no contract to begin with and even if there is one, it is void for illegality or otherwise void because the condition precedent has not been fulfilled. Even the Plaintiff’s claim for misrepresentation is defective as they have not pleaded what kind of misrepresentation they relied on as in negligent, innocent or fraudulent misrepresentation. [111] I would therefore allow D1’s application to strike out the Plaintiff’s claim for the reasons above stated. With that the application of the D1 to strike out the various paragraphs of the Plaintiff’s Amended Reply to the Defence in Enclosure 23 has become academic and so is struck out. 53 of 94 D2’s APPLICATION TO STRIKE OUT THE PLAINTIFF’S CLAIM (ENCLOSURE 13) [112] D2 has applied to strike out the Plaintiff’s claim under Order 18 Rule 19(1) (a) or (b) or (d) of the ROC that the Writ of Summons and Statement of Claim dated 27.05.2016 be struck out on grounds that it discloses no reasonable cause of action; or that it is scandalous, frivolous or vexatious; or that it is an abuse of process of the Court. [113] The Plaintiff’s primary action against D2 is the tort of unlawful interference or inducement of breach of contract on the part of D1. Having held that there was no contract to begin with between the Plaintiff and D1 and that even if there is one, it is void for illegality or otherwise for non-fulfillment of a condition precedent, it follows that the Plaintiff’s action against D2 has no legs to stand on and has to be struck out as well. However for completeness I shall deal with the arguments raised by learned counsel for D2. [114] By way of background context, any application for the railway scheme in respect of a railway line has to be made to D2. D1 made the necessary application and revised application and duly deposited documents with the D2 for inspection of the public from 15.05.2015 to 17.08.2015 in accordance with Section 84 of the LPTA. A memorandum was prepared by D2 and submitted to D3 for final approval of the Revised Application on 23.09.2015. D2’s primary arguments are as follows: 54 of 94 - -vis, the alleged contract between the Plaintiff and D1 and/or D4;

The Plaintiff has failed and/or neglected to particularise and/or plead in the Statement of Claim any conduct on part of D2 in seeking to persuade or entice D1 and/or D4 to breach the terms and conditions of the alleged contract between the Plaintiff and D1 and/or D4;

The Plaintiff has failed and/or neglected to particularise and/or plead in the Statement of Claim any conduct of D2 reflecting its intent to interfere in the alleged contract; and

The Plaintiff has failed and/or neglected to provide a cogent basis for the loss and/or damage alleged to have been suffered. [115] The Plaintiff had not pleaded if the alleged interference by D2 was by way of unlawful means. I agree with D2 that the facts in support of the Plaintiff’s pleaded causes of action are few and far between, but can perhaps be garnered from the following paragraphs in the Statement of

Paragraphs 12, 17, 25, 26, 31 and 33 of the Statement of Claim; and

Paragraphs 4.1 to 4.6 of the Reply to Defence. [116] The particulars alleged against D2 by way of the paragraphs above are as follows: - -vis the SSP Line was within the agreement and/or within the knowledge of D2 [See paragraph 17 of the Statement of Claim and paragraph 4.6 of the Reply to Defence]; 55 of 94 - -vis the SSP Line were within the tacit agreement of D2 [See paragraph 17 of the Statement of Claim and paragraph 4.6 of the

that by virtue of the alleged agreement and/or knowledge and/or tacit agreement of D2 on the above, D2 was therefore deemed to have known of the existence of the alleged Contract between the Plaintiff and D1 [See paragraph 26 of the Statement of Claim and paragraph 4.6 of the Reply to

that D2 ought to have known the purpose of the acquisition of the Plaintiff’s land being the supervising agency for the SSP Line [See paragraphs 4.1, 4.2 and 4.3 of the Reply to Defence]; and

that by recommending the realignment of the SSP Line, D2 had induced the breach of the Contract [See paragraph 4.4 of the Reply to Defence]. Whether the material facts in support of the elements of the cause of action relied on by the Plaintiff against D2 have been pleaded [117] Learned counsel for D2, Miss Idza Hajar, has clearly set out the law in relation to the elements of an inducement to breach a contract as laid down in the following cases:

(a)OBG Limited & Ors v Allan & Ors [2007] UKHL 21;

(b)Loh Holdings Sdn Bhd v Peglin Development Sdn Bhd & Anor [1984] 2 MLJ 105 at pages 108-111; and

(c)Kelang Pembena Kereta-Kereta Sdn Bhd v Mok Tai Dwan [2000] 1 MLJ 673 at page 683 where it was held as follows: “The law regarding the tort of inducement to breach of contract is summarised in Greig v Insole [1978] 3 All ER 449 at pp 484– 56 of 94 485 thus At common law, it constitutes a tort for a third person deliberately to interfere in the execution of a valid contract which has been concluded between two or more other parties, if five conditions are fulfilled: First, there must be either (a) 'direct' interference; or (b) 'indirect' interference coupled with the use of unlawful means: see per Lord Denning MR in Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 at p138... ......Secondly, the defendant must be shown to have knowledge of the relevant contract. Thirdly, he must be shown to have had the intent to interfere with it. Fourthly, in bringing an action, other than a quia timet action, the plaintiff must show that he has suffered special damage, that is, more than nominal damage: see Rookes v Barnard [1964] AC 1129, at p 1212, per Lord Devlin. In any quia timet action, the plaintiff must show the likelihood of damage to him resulting if the act of interference is successful: see Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 at p 703, per Diplock LJ. Fifthly, so far as is necessary, the plaintiff must successfully rebut any defence based on justification which the defendant may put forward. Slade J went on further to emphasize one point on the same page thus: If these five conditions are fulfilled and the defendant is shown to have had that intention to interfere with the relevant contract which is necessary to constitute the tort, it is quite irrelevant that he may have acted 57 of 94 in good faith and without malice or under a mistaken understanding as to his legal rights; good faith, as such, provides no defence whatever to a claim based on this tort: see, for example South Wales Miners' Federation v Glamorgan Coal Co Ltd [1905] AC 239 per Lord Macnaghten. The summary laid down in Greig's case was considered by the Federal Court in Loh Holdings Sdn Bhd v Peglin Development Sdn Bhd & Anor [1984] 2 MLJ 105 at p 108.”;

(d)SV Beverages Holdings Sdn Bhd & Ors v Kickapoo (M) Sdn Bhd [2008] 4 MLJ 187 at pages 202-205; and

JAKS-KDEB Consortium Sdn Bhd v Perbadanan Urus Air Selangor Bhd & Ors [2012] 3 MLJ 324 at pages 340-342. [118] I agree with D2 that the elements that must be established by the Plaintiff to succeed in its claim for an inducement to breach/interference of a contract are as follows:

There must be ‘direct interference’ OR ‘indirect interference coupled with the use of unlawful means’;

The D2 must be shown to have knowledge of the contract which was allegedly breached;

D2 must be shown to have an intent to interfere with the contract; (d) The Plaintiff must show it has suffered special damage as a direct result of the interference which must be more than nominal damage; and

The Plaintiff must successfully rebut any defence based on justification which D2 may put forward. 58 of 94 [119] In order for the Plaintiff to establish the elements of both causes of action pleaded above, it must be firstly pleaded with sufficient clarity and with particulars specifying the facts in support of the elements. It would be plain to see from reading of the Statement of Claim and Reply to Defence that both elements of either the tort of inducement to breach a contract and/or unlawful interference and the material facts in support of the same have not been pleaded as:

The Plaintiff failed to plead the particulars of the ‘direct interference’ committed by D2;

The Plaintiff failed to plead the particulars of the ‘indirect interference coupled with unlawful means’ committed by D2;

The Plaintiff has not pleaded that D2 intended to injure the Plaintiff;

No particulars were pleaded by the Plaintiff in respect of D2’s knowledge of the Contract. In fact a plain reading of the Statement of Claim would show that alleged meetings between the Plaintiff and D1 and/or D4 which the Plaintiff claims are at the heart of the formation of the Contract [see paragraphs 16, 18 to 24 of the Statement of Claim] did not involve D2. Not a single mention of D2 was made in the above paragraphs indicating any knowledge of D2 of the alleged Contract;

No particulars indicating D2’s actions in support of D’s intention to interfere with the Contract was pleaded. In fact save from mentioning the word ‘intended to interfere’ in paragraph 46 of the Statement of Claim, no further particulars were provided by the Plaintiff; and

The Plaintiff in its Reply to Defence was not able to respond or rebut D2’s averments of it being an entity who was acting in accordance to and was discharging its duties under the LPTA and LPTCA. 59 of 94 [120] I agree that the Plaintiff has failed to plead the requisite facts and/or particulars in respect of the elements required in respect of the tort of inducement to breach a contract and/or unlawful interference and there is therefore a fundamental flaw or defect in the pleadings. Without pleading the necessary particulars and/or facts in respect of the elements, the Plaintiff have not, on the Statement of Claim and/or the Reply to Defence made out a sustainable cause of action against D2. [121] Likewise it is not enough for the Plaintiff to found a cause of action on unlawful interference of D2 or inducement of D2 to cause D1 to breach its contract with the Plaintiff on the mere assumption that D2 must have knowledge of the contract or tacit agreement to the contract between the Plaintiff and D2. Whether the Plaintiff’s pleaded case against D2 would require D2 to breach its statutory duties under the LPTA and the LPTCA [122] If the Plaintiff were to succeed in its claim against D2, that would literally require D2 to act contrary to statutory obligations under the LPTA and the LPTCA under which D2 was incorporated. D2 cannot act in contravention of its statutory powers and neither should it allow itself to be influenced by any extraneous factors like ensuring that a railway must of necessity pass through the Plaintiff’s Land. [123] Indeed it must act free from any pressure that would be brought to bear on it by any landowners. Neither can it promise landowners anything other than that its valid objections will be heard and noted under the LPTA 60 of 94 and the LPTCA. The Plaintiff had pleaded in paragraph 4.4 of the Reply to Defence that: “4.4. By recommending the realignment of the MRT Sg Buloh – Putrajaya Line (which effectively bypasses the Plaintiff’s land and was approved by the 3rd Defendant), the Plaintiff will contend that the 2nd Defendant had induced the breach of the Contract” (emphasis added) It was further pleaded in paragraph 4.5 of the Reply to Defence as follows: “Further and/or in the alternative, the Plaintiff will contend that the Realignment was on the instruction of the 2nd Defendant...’ (emphasis added) [124] I agree with learned counsel for D2 that D2 is governed by the provisions of the LPTA and the LPTCA, specifically Section 15 of the LPTCA and Sections 83 and 84 of the LPTA in respect of the construction of a railway such as the SSP Line. D2 is duty bound to carry out its statutory duties under the LPTA and that the process is clearly outlined in the relevant provisions of the LPTA and they are as follows:

any applicant who intends to construct a railway shall submit a written application and deposit with D2 a railway scheme, which shall contain the information stipulated in section 83(2) of the LPTA and the said written application and railway scheme shall be accompanied with a map showing the proposed routes for the railway as required under Section 83(2) of the LPTA ;

D2 shall thereafter submit a written recommendation to D3 on the application in accordance to Section 83(5) and 83(6) of the LPTA; 61 of 94

D3, after considering the recommendation made by D2, may reject or grant conditional approval to the application for a railway scheme in accordance to the provisions of Section 84(1) of the LPTA;

the applicant shall thereafter deposit documents at D2’s office for inspection by the public for a period of 3 months in accordance to the provisions of Section 84(2), (3) and (4) of the LPTA;

under Section 84(2)(b) of the LPTA, only the names of the proprietors and lessees of the lands which may be required for the purposes of the proposed railway are submitted to D2 by the applicant. D2 is not and will not be involved and/or be a party to any negotiations between the applicant and the proprietors and/or lessees of the identified; and

it is only after the above mentioned process is completed, would D2 present its final recommendations to D3 for final approval under Section 84(5) of the LPTA. [125] It is plain that the recommendation made by D2 to D3 as pleaded by the Plaintiff in paragraph 4.4 of the Reply to Defence is a statutory duty of the D2 as stipulated under the LPTA once an application is made by D1. The allegation that this very statutory duty of D2 form the basis of the inducement of the breach of the contract is totally without basis or merit. D2 had further submitted that the Plaintiff’s allegation in paragraph 4.5 of the Reply to Defence is factually incorrect as:

the reasoning for the realignment of the SSP Line is made clear in D1’s letter to D2 dated 23.03.2015 where D1 informed D2 that the decision of the re-alignment of the SSP Line was made by the Economic Planning Council on 09.02.2015 [See Exhibit YD-3 of D2’s 1st Affidavit in Support]; 62 of 94

D1 submitted the Revised Application to D2 on the basis of the decision of the Economic Council above; and

D2 acting under the provisions of the LPTA and the LPTCA proceeded to make the recommendations in respect of the Revised Application to D3. There is nothing pleaded to suggest that the actions of D2 was not other than merely carrying out and/or exercising its functions and duties under the LPTA and the LPTCA in respect of the SSP Line in good faith for the good and benefit of the public. [126] Learned counsel for D2 drew my attention to section 40 of the LPTCA which clearly bars any party from bringing, instituting or maintaining a suit in any court against D2 in respect of any act, neglect or default done or committed by D2 in good faith. [127] D2 must act for the common good of the people and not pander to any preferences of landowners or developers where projects involving the public purse is concerned. [128] Moreover section 258 of the LPTA further stipulates that D2 shall not be liable to be sued in any court for losses or damages for or on account of, or in respect of, any act or matter done or ordered to be done or omitted be done by D2 in good faith and in the intended exercise of any power or discharge of any duty conferred on it under the LPTA. [129] In reality the Plaintiff is seeking for D2 to be jointly and severally liable for alleged damages to the tune of over RM300 million for carrying out its duties under the LPTA and the LPTCA. 63 of 94 [130] I cannot agree more with learned counsel for D2 that such conduct on the part of the Plaintiff clearly amounts to bad faith and are in direct contravention of the Section 40 of the LPTCA and Section 258 of the LPTA and is therefore scandalous and a clear abuse of process of the Court. The Plaintiff’s conduct above in formulating a cause of action for inducement to breach a contract against D2 without providing even the bare particulars and/or facts in support of the same only serves to confirm that such a claim is plainly and obviously unsustainable. [131] The dicta of Justice Low Hop Bing JCA in Indah Desa Saujana Corp Sdn Bhd & Ors v James Foong Cheng Yuen, Judge, High Court Malaya & Anor [2008] 2 MLJ 11 resonates with this Court in considering the factual matrix in this present case: “[25] In filing and serving the writ containing the above averments in para 12 of the statement of claim, plaintiffs' counsel may have been actuated by a strong desire to act in the best interest of his clients. However, it is a source of extreme regret that the plaintiffs have resorted to these averments against the first defendant. These averments consist of bare accusations and allegations which do not condescend upon particulars. There was no averment whatsoever that the first defendant had received any gratification, consideration, monetary or other favours, or had any personal interest or benefit in the matter complained of. Nothing turned on the plaintiffs' allegations of corruption or corrupt practice against the first defendant in any specific particular. At most, these are unfounded and unwarranted criticisms and vilifications. No 64 of 94 reasonable man can be expected to act on figments of imagination.” (emphasis added) [132] I would agree with D2 that the Plaintiff’s pleadings considered in totality shows that Statement of Claim falls within the limbs (a) or (b) or (d) of Order 18 rule 19(1) of the ROC and I have no hesitation in striking it out. D3’s APPLICATION TO STRIKE OUT THE PLAINTIFF’S CLAIM (ENCLOSURE 16) [133] D3 had applied to strike out the Plaintiff’s Statement of Claim pursuant to Order 18 Rule 19(1)(a) or (b) or (d) of the ROC and/or under inherent jurisdiction of this Court. [134] The nub of the Plaintiff’s complaint as alleged is that at all material times, D3 was fully involved in and had knowledge of the contract between the Plaintiff and D1 that the SSP Line would pass through the Plaintiff’s Land. It was further alleged that D3 interfered directly or indirectly with the contract between the Plaintiff and D1. [135] Further, D3 has induced D1 to breach the contract by proposing, procuring, approving and/or publicly announcing that the alignment of the SSP Line will be changed to bypass the Plaintiff’s Land and will be rerouted through the Bandar Malaysia township instead. [136] Just as with D2, the position with D3 is that the Plaintiff’s Claim has to be struck out as this Court had found that there is no contract between the Plaintiff and D1 or that even if there is one, it is void and unenforceable 65 of 94 for breach of the relevant provisions of the LPTA and the LPTCA and further that the contract, if there is one between the Plaintiff and D1 is a contingent contract and the condition precedent not having been fulfilled, the contract had become void. [137] The cause of action pleaded against D3 is the tort of inducement of breach of contract and the pleaded facts are in paragraph 46 and 47 of the Statement of Claim. [138] Learned Senior Federal Counsel (“SFC”) Miss Habibah Haron, cited the case of Loh Holdings Sdn Bhd v Peglin Development Sdn Bhd & Anor [1984] 1 CLJ (Rep) 211 where the Federal Court explained the elements of the tort as follows: “(c) At common law it constitutes a tort for third persons deliberately to interfere in the execution of a valid contract which has been concluded between two or more other parties, if five conditions are fulfilled: There must be (a) direct interference or (b) ‘indirect’ interference. Secondly, the defendant must be shown to have knowledge of the relevant contract; Thirdly, he must be shown to have had intent to interfere with it. Fourthly, in bringing an action, other than quia timet action the plaintiff must show that he has suffered special damage, that is more than nominal damage; 66 of 94 Fifthly, so far as it is the plaintiff must successfully rebut any defence based on justification which the defendant may put forward.” [139] The elements of the tort was followed in Q2 Engineering Sdn Bhd v PJI-LFGC (Vietnam) Ltd & 2 Ors [2013] 1 LNS 104. Learned SFC for D3 submitted that based on the elements stated in the above cases, it is clear that as a matter of law the Plaintiff’s cause action against D3 as pleaded in the Statement of Claim is obviously unsustainable and fails to disclose any reasonable cause of action against D3 on the following grounds:

D3 acted under powers conferred upon him by the LPTA in making the decision of the realignment. The decision of D3, being a public authority’s decision, can only be challenged by way of judicial review under O. 53 of ROC;

The Plaintiff has failed to particularise in the Statement of Claim any interference and inducement either direct or indirect on the part of D3 in the alleged contract between the Plaintiff and D1;

D3’s decision for the realignment is in accordance with the provisions of sections 83 and 86 of the LPTA. There is nothing pleaded to show that D3 had not, at all material times, exercised its functions and duties under the LPTA and the LPTCA in respect of the SSP Line other than for the benefit of the public. 67 of 94 Whether the proper challenge to D3’s action as that of a public authority should be by way of Judicial Review under O. 53 ROC. [140] The Plaintiff in the Statement of Claim at paragraph 4 states that D3 is the Prime Minister of Malaysia and is sued as the Minister named and designated under the LPTA and the LPTCA to decide on and/or approve inter alia:

all matters relating to policy and planning with respect to land public transport; and

policies and plans, including schemes and programmes in relation to or affecting land public transport. [141] I agree with the SFC that in making the decision of the realignment, it cannot be denied that the whole case against D3 is based on the decision made by D3 in his capacity as the Minister responsible for the land public transport pursuant to the LPTA. Therefore the commencement of this action by writ is an attempt at circumventing the requirement of the O 53 of the ROC and that would amount to an abuse of the process of the court. The Federal Court in Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865 held at page 897 as follows: “[62] We observed that a challenge on the use of appropriate procedure is very much fact based. Thus, it is necessary for a judge when deciding on such matter to first ascertain whether there is a public law element in the dispute. If the claim for infringement is based solely on substantive principles of public law then the appropriate process should be by way of O. 53 RHC. If it is a 68 of 94 mixture of public and private law then the court must ascertain which of the two is more predominant. If it has substantial public law element then the procedure under O. 53 RHC must be adopted. Otherwise, it may be set aside on the ground that it abuses the court’s process. But if the matter is under private law though concerning a public authority, the mode to commence such action under O. 53 RHC is not suitable. Aside from this, there could be other circumstances like the kind in YAB Dato’ Dr. Zambry. Much depends on the facts of the case. But generally the court should be circumspect in allowing a matter which should be by way of O. 53 RHC to proceed in another form. To say that it is open to an applicant seeking judicial review to elect any mode he prefers, as implied in Kuching Waterfront, would, in our considered opinion, be rendering O. RHC redundant. This is certainly not the intention of the drafters of this rule who had a purpose in mind. When the purpose of this rule is in the interest of good administration, then this rule must be adhered to, except in the limited and exceptional circumstances discussed.” (emphasis added) [142] Here the public law element looms large in the overall scheme of things and indeed the brunt of the Plaintiff’s action is that D3 had acted in bad faith. Such being the pith and substance of the Plaintiff’s complaint, the procedure for Judicial Review should have been followed rather than a writ action for the tort of inducement for breach of contract. 69 of 94 [143] I agree with the learned SFC that the source and the nature of the decision made by D3 under a governing statute clearly indicates that the Plaintiff’s matter falls under the public law realm. This has been enunciated in Ahmad Jefri’s case as follows: “[22] It is widely accepted that not every decision made by an authoritative body is suitable for judicial review. To qualify there must be a sufficient public law element in the decision made. For this, it is necessary to examine both the source of the power and the nature of the decision made; whether the decision was made under a statutory power (see para 61 Halsbury Laws of England, 4th edn, 2001 Reissue, vol. 1(1)). To illustrate this, we will refer to a number of authorities involving dismissal from service by a public authority or a purported public authority.” (emphasis added) [144] In Dato’ Seri Anwar Ibrahim v Perdana Menteri Malaysia [2007] 3 CLJ 377, in discerning and distinguishing what is a public duty, the Court of Appeal held at page 398: “[38] This suit raises public law issues as it is a decision and action taken by the Prime Minister in pursuance of the provisions of the Federal Constitution that is being impugned. As such a decision taken by the Prime Minister with regard to a Minister as a member of the administration in his public duties is one which has implications for the public as a whole and it is in consequence of this that the public law is concerned with the decision making process. The legal sources of the powers that 70 of 94 are being impugned are in the public domain. As such to institute the proceedings by ordinary summons, though seemingly appearing to be simple in procedure, will deprive the public authority in this case the Federal Government and in the circumstances of the present case, of the protection of the law that it is entitled to by the processes available under O. 53.” (emphasis added) [145] More so when the statute itself provides for time frame and procedure to raise one’s objection to the decision made by a public authority as in this case under section 84(4) of the LPTA which states that any person having any objection to the plan and sections and book of reference is to send in a statement of their objections in writing to the commission within three months from the date of the last notice in the newspapers. The Minister having due regard to the objections made under subsection (4) and the recommendation of the Commission, gives final approval to or reject the railway scheme. [146] The explicit and elaborate procedure has been provided under the LPTA and the Plaintiff has a duty to adhere to such procedure. In this case the Plaintiff has failed to follow the procedure and Plaintiff’s claim could be liable to be struck out due to abuse process of the court as enunciated in Ahmad Jefri at page 884 (supra): “[37] ...Though this decision involves the dismissal of an employee by an employer, much like a master dismissing his servant, which is a private law matter, the fact that there are statutory conditions and restrictions imposed by the 71 of 94 Regulations on the conduct and dismissal of the appellant underpins the public law element in this case. This is not a case of a public authority being delegated with authority to hire and fire like what has occurred in Regina v East Birkshire Health Authority, Ex-parte Walsh and Wendal Swann v Attorney General of the Turks and Caicos Islands. Here, a special statutory provision bears directly upon the right of a public authority to dismiss the appellant. This injects the element of public law necessary in this context to attract the remedies of administrative law making it amenable for judicial review.” (emphasis added) [147] The Plaintiff in the Statement of Claim is asking for damages of the tortious act done by D3 instead of seeking to quash the decision of D3 and declare it null and void. The Court must first declare that the decision made by D3 is null and void before the Plaintiff may be awarded with damages for the tortious act done by D3. Such a claim is primarily and predominantly that of a judicial review action within the ambit of O.53 ROC. Whether there has been sufficient particularisation of the Plaintiff’s claim against D3 to found a cause of action in the tort of inducement of breach of contract [148] All that the Plaintiff had pleaded in the Statement of Claim is that D3 was involved in and had knowledge of the agreement between the Plaintiff and D1 with respect to the SSP Line passing through the Plaintiff’s Land. The Plaintiff must give particulars of the interference and inducement as required under to O 18 r 12 of the ROC as follows: 72 of 94 “Particulars or pleading (O. 18 r. 12)

Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words –

particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies; and

where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies ...” [149] I cannot agree more with the learned SFC in her submission that by reading the Statement of Claim at paragraph 46 and 47, it is sorely lacking in particulars to support the facts that D3 interfered and induced D1 to breach the alleged agreement. One would expect such a serious allegation to be supported and substantiated with some material facts pleaded. That is singularly missing and hence strongly suggesting that such a claim is sketchy and superficial and certainly fitting for it to be struck out for being scandalous, frivolous and vexatious or otherwise an abuse of the court’s process. [150] The observations in Bank Islam Malaysia Berhad v Tyco Film Industries Sdn Bhd & 5 Ors [2012] 1 LNS 23 at page 13 would apply most appropriately to the present case: 73 of 94 “[22] Reverting to the case at hand, I found that no particulars of inducement and misrepresentation were given by the Defendants. For me, it was a bare allegation. The contention that they were not explained on the terms of the Agreement could not be accepted because it was their obligation to seek independent legal advice before executing the same.” I would allow D3 to strike out the Plaintiff’s Claim. D4’s APPLICATION TO STRIKE OUT THE PLAINTIFF’S CLAIM (ENCLOSURE 14) [151] D4 is proceeding under Order 18 rule 19 (1)(a) of the ROC to strike out the Plaintiff’s Claim on ground that it does not disclose a reasonable cause of action in addition to Order 18 rule 19(1)(b) and (d) of the ROC. It is trite that in such an application under O.18 r19(1)(a), the following has to be adhered to:

the statement of claim is tested on its own without reference to any other pleadings;

no evidence is admissible and the Court should ignore all affidavits filed. [152] The test as enunciated in See Thong & Anor v. Saw Beng Chong [2013] 3 MLJ 235 for an Order 18 Rule 19 (1)(a) application is “whether on the face of the statement of claim, the court is prepared to conclude that the cause of action is obviously unsustainable”. 74 of 94 [153] As this Court had held that there is no contract between the Plaintiff and D1 with respect to the SSP Line passing through the Plaintiff’s Land and that even if there is one it is void and unenforceable as being in breach of the relevant provisions of the LPTA and the LPTCA and that at any rate the said contract, if there is one, is a contingent contract and since the condition precedent had not been fulfilled, the said contract is void and unenforceable, it follows that the Plaintiff’s claim against D4 has to fall as well. [154] However there are certain pleadings of the Plaintiff against D4 that merits further attention and as the parties have submitted on it rather strenuously and substantially, this Court is constrained to set out in summary the stand taken by D4 from D4’s perspective with respect to its striking out the Plaintiff’s Claim. [155] There are three (3) causes of action in tort pleaded against the 4th

misrepresentation;

negligence; and

inducement of breach of contract. Whether there is a cause of action for misrepresentation by the Plaintiff against D4 [156] The Plaintiff had pleaded misrepresentation on the part of D1 and D4 with a single stroke at para 40 of their Statement of Claim as follows: 75 of 94 “Further and/or in the alternative, the 1st and/or 4th Defendants’ representation as stated in paragraph 16 above was made by the 1st and/or 4th Defendant...” [157] The misrepresentation is confined to matters pleaded in paragraph 16 of the Statement of Claim. Paragraph 16 refers to a specific meeting on 30.1.2013 held and attended by the Plaintiff, D1, D4 and DBKL. It is the Plaintiff’s pleaded case that all alleged representation inducing it to enter into the alleged “Contract” with the Plaintiff (as set out in paragraph 20 of the Statement of Claim) were made at this meeting. The operative words of the misrepresentation as alleged is as follows: “16. ...During this meeting, the 1st Defendant on the advice and in consultation with the 4th Defendant (as the Project Delivery Partner, advisor and/or agent), inter alia represented to the Plaintiff that the MRT station and the line for the Sungai Buloh-Putrajaya line will be built...” (emphasis added) [158] I agree with learned counsel for D4, Mr P Gananathan, that by the Plaintiff’s own pleading, it is stated that any such alleged misrepresentation was made by D1 and not D4. All that D4 is alleged done is merely to advise and consult D1 in the latter making the alleged misrepresentation. It is not the Plaintiff’s pleaded case that D4 made a separate and distinct alleged misrepresentation to the Plaintiff, inducing the Plaintiff to enter into the alleged “Contract”. 76 of 94 [159] There is merits in D4’s argument that there is no confusion or alternative interpretation of the words pleaded in paragraph 16 of the Statement of Claim as aforesaid. A comparison of the same phraseology depicting the manner of pleading can be found at various parts of the Statement of Claim: “20.2. The 1st Defendant on the advice and in consultation with the 4th Defendant (as the Project Delivery Partner, advisor and/or agent) agreed with the Plaintiff to...build the MRT station...” “36. In the meantime, the 1st Defendant on the advice and in consultation with the 4th Defendant (as its Project Delivery Partner, advisor and/or agent) proceeded to complete its exercise for the realignment...” [160] I can appreciate D4’s submission that by referring to D4 as the “Project Delivery Partner, advisor and/or agent” to D1 in paragraph 16 of the Statement of Claim, the Plaintiff reiterated the fact that D4 did not make any alleged separate misrepresentation to the Plaintiff. The elements of an actionable misrepresentation were explained by the Court of Appeal in Sim Thong Realty Sdn Bhd v. Teh Kim Dar [2003] 3 MLJ 460 at 465: “Now the elements of an actionable misrepresentation are well settled. They are set out as follows in Professor McKendrick’s Contract Law (3rd Ed), a leading work on the subject: A misrepresentation may be defined as an unambiguous, false statement of fact which is addressed to the party misled and 77 of 94 which materially induces the contract. This definition may be broken down into three distinct elements. The first is that the representation must be an unambiguous false statement of fact, the second is that it must be address to the party misled and the third is that it must be a material inducement to entry into the contract.” [161] Learned counsel for D4 submitted that on the pleaded case, it is apparent that D4 made no such representation to the Plaintiff for there to be an actionable cause. I am persuaded that on this ground alone, the Statement of Claim on the alleged cause of action of misrepresentation ought to be struck out against D4. Whether the Plaintiff’s plea of misrepresentation is so devoid of particulars as to make it defective [162] D4 relied on O. 18 r 12 of ROC, which imposes upon the Plaintiff a duty to provide the necessary particulars of claim in cases involving misrepresentation and fraud. [163] The Statement of Claim must show the nature and extent of each allegation, by whom and to whom the representation was made and whether orally or in writing, and if in writing, identifying the relevant documents relied on by the Plaintiff. Secondly, the necessary particulars of the fraudulent intention relied on must also be contained in the pleading, in that it must be shown how D4 was actuated by a fraudulent representation. None of these has been shown. 78 of 94 [164] Refer: Bullen & Leake & Jacob’s – Precedents of Pleadings (13th ed.) by Sir Jack I. H. Jacob and Iain S. Goldrein at page 428. One cannot escape the conclusion after a scrutiny of the Statement of Claim, scanty and skimpy considering the seriousness of the misrepresentation, that all that was pleaded is a bare and general allegation of misrepresentation. The non-particularization of a misrepresentation, whether fraudulent or negligent is fatal to the Plaintiff’s case. Shaikh Daud J (as he then was) in Ng Ah Ba & Others v Ramanda Sdn Bhd [1996] 1 MLJ 62 at pages 70-71 spoke of the strictures to be observed where fraud is concerned: “...What the defendant sought to do was merely make sweeping and general allegations of the alleged conspiracy without alluding to any particulars. The authorities are clear on general allegations of fraud, and they are equally applicable to each allegations of conspiracy. In Connock Chasse District Council v Kelly [1978] 1 All ER 152; [1978] 1 WLR 1, in considering an allegation of bad faith on the part of a local authority by a tenant of its house who had been given a notice to quit, the Court of Appeal held that [1978] 1 WLR 1 at p 6: If a charge of bad faith is made against a local authority, they are entitled ... to have it properly particularized. If it has not been pleaded, it may not be asserted at the hearing. If it has been pleaded but not properly particularized, the pleading may be struck out. 79 of 94 This principle should apply with greater force in cases of allegations of a conspiracy or fraud. In See Hua Daily News Bhd v Tan Thien Chin & Ors [1986] 2 MLJ 107, the Supreme Court in considering allegations of fraud, held that ‘the failure of the appellants to condescend upon particulars of the fraud in their affidavits is fatal’. It seems clear that on the authorities, a mere general allegation of fraud is not sufficient, and the party making the allegation is required to condescend to particulars...” [165] The arguments of D1 on the fact that the type of misrepresentation was also not pleaded would apply equally to D4. The Plaintiff must be taken as asserting a case of innocent misrepresentation. In Sim Thong Realty Sdn Bhd v. Teh Kim Dar [2003] 3 MLJ 460 at pages 468-471, Gopal Sri Ram JCA (later FCJ) set out in detail the types of misrepresentation and concluded that on the fact of that case, the defendant neither alleged fraud or negligence and had only pleaded misrepresentation in respect of the access to the land. In such a case, the Court of Appeal concluded that the defendant must be taken to having asserted a case of innocent misrepresentation. [166] I am inclined to follow the natural consequence of such a plea as argued by learned counsel for D4 in that the Plaintiff must also be taken as having at best, pleaded a case for innocent misrepresentation. The law is trite in that the only remedy available in innocent misrepresentation is the remedy for rescission and consequent restitution. The plaintiff in such cases is not entitled to recover damages. 80 of 94 [167] The Plaintiff’s claim in the present case is for damages and nothing else and as such on the fact that a claim in damages does not lie for innocent misrepresentation, there is no claim or relief against D4! Stark and startling as it may be the Statement of Claim has to be struck out where the Plaintiff’s cause of action in misrepresentation is concerned. Whether assuming that D4 did make such a misrepresentation, it was made by one under the employment of D1, such that the principle of vicarious liability would apply [168] If all such a representation was made by D4, it was made in the course of its employment with D1. The words used of D4 in paragraph 16 of the Statement of Claim refers to D4 as “Project Delivery Partner, advisor and/or agent”. Learned counsel for D4 argued that in all three instances on the face of the pleading, without more, the expression would demonstrate that D4, when making the alleged representation, did so in the course of its employment with D1. The Plaintiff also relies on the words “on the advice and in consultation with” as pleaded in paragraph 16 of the Statement of Claim. [169] I would agree with D4 that in such a premise, even if the case for actionable representation is established, D1 would be vicariously liable for any losses suffered by the Plaintiff. D4 cannot be held under such circumstances to be liable separately for the loss. D4 relied on the decision of the House of Lords decision in Armagas Ltd v Mundogas S.A. [1986] AC 717, which held that an employer is liable for any loss caused by fraudulent representation made by his employee or servant. 81 of 94 [170] The Plaintiff’s pleaded case does not demonstrate that any alleged representation made by D4 to the Plaintiff was made in its capacity other than as the “Project Delivery Partner, advisor and/or agent” of D1. Whether the alleged misrepresentation of D3 had merged into the alleged contract between the Plaintiff and D1 [171] The alleged misrepresentation being pre-contractual had been merged into the alleged Contract. This is apparent in paragraph 20 of the Statement of Claim, which mirrors what is alleged to be the pre-contractual misrepresentation in paragraph 16 of the Statement of Claim. The effect of the merger into the alleged Contract is that the terms of the alleged Contract are operative between the Plaintiff and D1. In the present case, D4 made no representation as per the Plaintiff’s pleaded case. [172] Alternatively, any alleged representation was made by D4 under its employment with D1. As such, by the merger of the alleged representation as terms of the alleged Contract, the actionable cause is between the alleged contracting parties, i.e. between the Plaintiff and D1. [173] The cases of Pennsylvania Shipping Co. v. Compagnie Nationale de Navigation [1936] 2 All ER 1167 at 1171 and Low Keang Guan v. Sin Heap Lee-Marubeni Sdn Bhd [2005] 7 MLJ 216 at 224 – 225 were cited in support of the merger principle. In Low Keang Guan (supra) the merger principle was explained as follows at pages 224-225: “I pause here for a moment. I must take stock of the situation at hand. I have this to say. A term of the contract and representation are two different things. They are poles apart. Both cannot co-exist. 82 of 94 At the trial, the plaintiff did not elect as to which was the cause of action: whether it was a breach of the term or misrepresentation. The cumulative plea of a breach of a term and misrepresentation is mutually inconsistent and both must, in law, fail for want of certainty. Once a representation becomes a term of a contract, the representation ceases and has become part of the contract. But where the representation was not included as a term of the contract, that representation would continue its independent existence. And where the representation is included as a term of the contract then that representation is 'merged' into the contract and incorporated into the contract. When that happens the remedy will lie for breach of contract. A classic example would be the case of Pennslyvania Shipping Co v Compagnie Nationale De Navigation

2 KBD 1167 and there Branson J laid down the law in these fine words (see p 1171 of the report): It is there pointed out that at common law if an innocent misrepresentation did not afterwards become part of the contract its untruth was immaterial. In such a case equity might intervene to avoid or rescind the contract. But where the representation has been embodied in the contract, there the courts of common law could deal with it according to whether it was a condition entitling the injured party to repudiate the contract or a warranty giving rise only to an action ex contractu for damages. The representation thus becomes merged in the higher contractual right, and there 83 of 94 was no need to resort to equity for rescission. The fusion of law and equity does not affect this result, as Anson correctly states at p 183: It is perhaps well to add that the Judicature Act has not of course affected the common law rules regarding an innocent representation which has become a term of the contract, but the further discussion of this matter falls under the subject of breach of contract. The equitable remedy of rescission merely supplements these rules, as it can provide for the case, to which they did not apply, of an innocent misrepresentation which is not a term in the contract. The plaintiffs cannot get rescission of the contract on the ground of misrepresentation inducing it. 16 Thus, the distinction is between 'pre-contractual' statements and 'contractual' statements. The latter are referred to, in law, as 'terms of the contract'. Gopal Sri Ram JCA puts it nicely in Abdul Razak bin Datuk Abu Samah v Shah Alam Properties Sdn Bhd and another appeal [1999] 2 MLJ 500, at pp 505 and 506: Having regard to the relevant provisions of the Contracts Act 1950 and the authorities upon the subject, we consider the following propositions to be settled and beyond argument. Since the consequences for a statement made by a party to a contract depends upon the stage at which the statement is 84 of 94 made, the law recognises a division between contractual and pre-contractual statements. Pre-contractual statements are called 'representations'. However, contractual statements are obligations actually undertaken by the party making them. They are referred to by lawyers as 'the terms of a contract'. Whether a particular statement made in the course of negotiations leading to the making of a contract is a representation or a term depends upon the intention of the parties and is to be deduced from the totality of the evidence. While decided cases suggest differing approaches, it is clear that no single criterion is conclusive. See, for example, Oscar Chess Ltd v Williams [1957] 1 WLR 370; Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd [1965] 1 WLR 623. The traditional method of classifying the terms of a contract is according to the degree of their importance. Stipulations that are essential are called 'conditions', while those of a secondary nature are referred to as 'warranties'. The breach of a condition entitles the innocent party to repudiate the contract, that is, to treat it as at an end as to future obligations, and to sue for damages. On the other hand, the breach of a warranty sounds only in damages. Whether a particular term is a condition or a warranty is a matter of judicial impression, ie it is a question of law. See Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1996] 3 MLJ 675. 85 of 94 17 An example of a case where the representation became a term of the contract would be the case of Lim Sew Lan v Pembangunan Hysham Sdn Bhd & Anor [1999] 5 MLJ 670. In that case, the contents of a sales brochure were incorporated into the recitals of the agreement. 18 I must categorically state that the cause of action and the remedies for misrepresentation and the breach of a contract are entirely different. The cause of action, in the case of non-compliance with a term, is that of a breach of contract and the remedy is for damages. But where the representation remains a representation then the contract is said to be voidable in that it remains valid until and unless rescinded by the innocent party (see the decision of the Court of Appeal in the case of Segar Oil Palm Estate Sdn Bhd v Tay Tho Bok & Anor [1997] 3 MLJ 211).” (emphasis added) [174] I would agree with the above proposition of the merger principle as applied to the pleaded case of the Plaintiff against D4. Whether the Plaintiff’s claim for negligence against D4 should be struck out [175] The plea of duty of care is set out in paragraph 43 of the Statement of Claim as follows: “43. Further and/or in the alternative, a duty of care is owed by the 1st Defendant (as the Project Proponent) and the 4th Defendant 86 of 94 (as the Project Delivery Partner, agent and/or advisor) to the Plaintiff.” [176] Learned counsel for D4 raised 2 objections in respect of this plea:

D4’s duty of care as pleaded is that of D1 in that D4 is again, described as “the Project Delivery Partner, agent and/or advisor” of D1;

no relationship arises on the plea giving rise to the duty of care owed by D4 to the Plaintiff. [177] I would agree with D4’s submission that any duty of care as pleaded would be confined to a duty owed by D1 vicariously for any acts of D4 with the consequence that there can be no duty of care owed by D4 to the Plaintiff. [178] Even if there was a separate duty of care owed by D4, the pleading bereft of any particulars whatsoever describing the relationship between D4 and the Plaintiff. D4 is entitled to rely on O. 18 r 12 of ROC and that the plea of negligence against D4 is defective and entirely lacking in elements of the tort to be pleaded and lacking in particulars. [179] I accept the proposition of law as contended by D4 that the Plaintiff is required to plead the relationship giving rise to a duty of care with particularity and must identify how the relationship arose. In the circumstances, the elements of tort of negligence have not been set out, rendering it fatal to the Plaintiff’s claim. 87 of 94 [180] See Malaysian Civil Procedure 2013 – Particulars of Pleadings (O 18 r 12) at paragraph 18/12/2, page 229 and the case of Selangor United Rubber Estates Ltd v Cradock and Others [1965] 1 Ch. D 896 at 896 – 897. [181] I am constrained to strike out the Plaintiff’s claim for negligence against D4. Whether the facts as pleaded would give rise to an action in inducement for breach of contract against D4 [182] The relevant paragraphs of the Plaintiff’s Statement of Claim are paragraphs 36 and 37 reproduced below: “36. In the meantime, the 1st Defendant on the advice and in consultation with the 4th Defendant (as its Project Delivery Partner, advisor and/or agent) proceeded to complete its exercise for the realignment of the Sungai Buloh – Putrajaya MRT line to completely bypass the Plaintiff’s development and the Land. This in breach of the Contract. This had a devastating effect on the Plaintiff and caused the Plaintiff to suffer substantial loss.

At all material times, the 4th Defendant was the agent of the 1st Defendant, and/or had induced the 1st Defendant to breach the Agreement. The 4th Defendant was fully aware of the 1st Defendant’s agreement and commitments under the Contract with the Plaintiff.” 88 of 94 [183] The plea of inducing the alleged breach by D4 is set out in paragraph 37 of the Statement of Claim. [184] The fact that there are no facts pleaded is conspicuous by its absence, let alone particulars of how D4 induced D1 to breach the alleged Contract. Without such facts / particulars, the plea is a bare allegation and ought to be struck out. O. 18 r 12 (1) of the ROC mandates it. A mere “say so” would not suffice and at the initial pleading stage the Plaintiff must condescend to particulars for otherwise a lot of time and energy would be dissipated in a defendant having to defend a claim that may we’ll prove to be scurrilous and scandalous. [185] Particularization is pivotal for otherwise a plaintiff may literally shoot in the dark and praying that a bullet might hit its target! That is not how litigation as we know it is conducted under the ROC. [186 ] The case of Wong Yew Kwan v Wong Yu Ke & Anor [2010] 2 CLJ 703 at 712 captures the admonition of the Court with respect to non-particularization of pleadings especially in the context of fraud and unlawful conduct in these words: “[4] ...But, as correctly pointed out by the learned judge, mere allegations of fraud are insufficient to constitute a pleaded case of fraud. As Lord Hatherly said in Wallingford v. Mutual Society [1880] 5 App Cas 685: 89 of 94 “There is the question of fraud upon which I said I should touch in one moment. Now I take it to be as settled as anything well can be repeated decisions, that the mere averment of fraud, in general terms, is not sufficient for any practical purpose in the defence of a suit. Fraud may be alleged in the largest and most sweeping terms imaginable. What you have to do is, if it be matter of account, to point out a specific error, and bring evidence of that error, and establish it by that evidence. Nobody can be expected to meet a case, and still less to dispose of a case, summarily upon mere allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest.” (emphasis added) [187] It goes without saying the more serious the allegation of fraud and unlawful conduct as in unlawful interference designed to cause D1 to breach its contract with the Plaintiff, the stricter would be the requirement of stating the facts upon which the Plaintiff rely on the prove its multimillion claim to the tune of no less than RM300 million! [188] As there are no facts pleaded, let alone particulars of how D4 had induced D1 to breach the alleged Contract, the plea is a bare allegation and ought to be struck out. [189] More than that, even substantively, the principle in Said v Butt. [1920] 3 KB 497 at p 506 applies in the present case as D4 is again, imputed with capacity as the Project Delivery Partner, advisor and/or agent 90 of 94 in respect of allegedly procuring the alleged breach of the Contract as pleaded in paragraph 36. In Said v Butt. and Imperial Oil Ltd v C&G Holdings Ltd [1990] 62 DLR (4th) 261 at pp 264-266, the courts rejected the plea of inducement to breach in the context of a servant inducing the principal to breach a contract with a third party. I had occasion to consider these cases and followed them in Q2 Engineering v PGI-LFGC (Vietnam) Ltd & Ors [2013] 8 MLJ 157 at pp 191-194. Whether D4 should be allowed to strike out the various paragraphs of the Plaintiff’s Amended Reply to D4’s Defence [190] D 4 is applying by way of Enclosure 31 to strike out various paragraphs of the Plaintiff’s Amended Reply to D4’s Defence. The law is trite that a plaintiff is not allowed to set up in his reply a new claim which is inconsistent or which contradicts with the cause of action pleaded in the statement of claim. The same is provided in Order 18 Rule 10 (1) of the ROC, which is reproduced as follows: “10. Departure (O. 18 r. 10)

A party shall not in any pleading make an allegation of fact or raise any new ground or claim inconsistent with a previous pleading of his.” See the case of Mat Bin Lim & Anor v Ho Yut Kam & Anor [1967] 1 MLJ 13 and Williamson v London and North Western Railway Company [1879] 12 Ch D 787 at 793. 91 of 94 [191] Learned counsel for D4 submitted respectfully that the Plaintiff is taking advantage of the function of a Reply, which is limited to answering matters raised in the defence as an avenue to slip in new and inconsistent facts and fresh causes of action not raised in the Statement of Claim. The following cases were cited in support of the above proposition: Romar Positioning Equiment Pte Ltd v Merriwa Nominees Pty Ltd [2004] 4 SLR 574 at 584 (paragraphs 39 – 40) and Nirumalan K Pillay & others v A Balakrishnan & ors [1997] 1 SLR 322 at 326 (paragraphs 9 – 10). At paragraph 16 of the Statement of Claim, the allegation made is that the D1 at one meeting held on 30.1.2013, “on the advice and in consultation with the 4th Defendant (as the Project Delivery that the SSP Line would be built on the portion of the Plaintiff’s Land that was acquired. [192] However, at paragraph 4.4 of the Amended Reply, the Plaintiff now alleges that the 4th Defendant:

attended more than one discussion and meeting;

advised and participated in the decision-making process of D1;

got involved in most, if not all negotiations which culminated in the alleged Contract with the Plaintiff. [193] See Statement of Claim at paragraphs 16 and compare with Amended Reply at paragraph 4.4. What is apparent from the Amended Reply is that having previously suggested that the alleged Contract culminated upon the representation 92 of 94 made by D1 (not D4) at the meeting on 30.1.2013, the alleged Contract is now to have culminated:

From various meetings and discussions in which D4 was involved;

D4 is alleged to have made representation on its own, independent of

D4 is alleged to have played a larger role from what was previously pleaded. [194] I would agree with D4 that the Plaintiff is seeking to supplement and improve on its claim by introducing facts and grounds not previously raised in the Statement of Claim, which in any event are inconsistent with the Statement of Claim; [195] Indeed none of the new allegations raised the Amended Reply was in fact raised in response to the matters stated in D4’s Defence. In this respect, the suggestion by the Plaintiff is that it is responding to D4’s Defence that D4 is a separate entity and not the Project Delivery Partner for the SSP Line. In actual fact, these allegations are improvements to the Statement of Claim, which ought to have been pleaded in the first place. For the reasons above stated and earlier stated with respect to the plea of fraudulent and negligent misrepresentation on the part of D4 raised only in the Amended Reply to D4’s Defence, I would be minded to strike out the various paragraphs of the Plaintiff’s Amended Reply raised by D4 in Enclosure 31. 93 of 94 [196] However as I had already decided to strike out the whole of the Plaintiff’s Claim against D4 in Enclosure 14, this application in Enclosure 31 has now become academic and so the application is struck out. Pronouncement [197] In the upshot I had allowed, for the reasons given above, D1, D2, D3 and D4’s applications in Enclosures 11, 13, 16 and 14 respectively, for the whole of the Plaintiff’s Writ and Statement of Claim to be struck out against each of the Defendants. [198] After hearing parties on costs, I had allowed costs of RM15,000.00 to D1 and RM10,000.00 each to D2, D3 and D4. Dated: 24 November 2017. - signed - Y.A. LEE SWEE SENG Judge Construction Court Kuala Lumpur 94 of 94 For the Plaintiff : JL Foo and Ca-ryn Lye (Messrs Gan Partnership) For the 1st Defendant : Steven Thiru and Gregory Dass (Messrs Shook Lin & Bok) For the 2nd Defendant : Idza Hajar and Shahriz Rezal Nordin (Messrs Zul Rafique & Partners) For the 3rd Defendant : Habibah binti Haron (Senior Federal Counsel, Attorney-General’s Chambers) For the 4th Defendant : P Gananathan, Olivia Loh, Ng Yee Chien and Alicia Ng (Messrs Gananathan Loh) Date of Decision: 20 April 2017.