Austin Heights Sdn. Bhd v Tiung Soo Hui (JA-12ANCVC-55-04/2019)

There is an appeal against the decision of the Learned Sessions Court Judge who dismissed the Appellant‟s striking out Application with cost. There are 47 cases filed in the Sessions Court, and the Appellant applied to strike out in all 47 cases.

There are four categories of the cases as follow a) Category 1- Cases where the Respondent has obtained an Award from the Homebuyers Tribunal prior to the filing of this action, and all the cases under this category raised the following issues: i. Whether the Respondent has locus standi to file the lawsuit; ii. Whether the Respondent is the correct party to file this action; and iii. Whether the Respondent‟s action is barred by the principle of Res Judicata b) Category 2 - Cases where the Respondent did not commence the action before the Homebuyers Tribunal prior to the filing of this action and had obtained loan from financer in the purchase of the property which raised the following issues: October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 3 i. whether the Respondent has locus standi to file this action; and ii. whether the Respondent is the correct party to file this action; c) Category 3- Cases where the Respondent has not obtained an Award from the HomebuyersTribunal prior to the filing of this action and purchased the property with cash. All the cases under this category raised the only one issue that is whether the Respondent is the correct party to file the lawsuit. d) Category 4 – Cases where the Respondent has obtained a loan to purchase the property,and ultimately the Respondent has fully settled the loan and obtained a deed of receipt and reassignment.

Upon completion of the Project, the Appellant has delivered the vacant possession of the Property to the Respondent, relying on the letter of completion issued on 5/3/2016.

The Respondent, upon taking the vacant possession of the Property, found out that there is no supply of electricity to their respective unit.

The electricity supply was ready and connected only on 16/9/2016. October 22, 2019

It is the Respondent‟s position that the vacant possession is not delivered on the 5/3/2016 but the 16/9/2016 when the electricity supply was ready and connected to the respective unit.

The Respondent also found that one of the standard facilities, the „Roof Top Garden‟ mentioned in the Sale and Purchase Agreement, does not exist and has not had been built at all.

One of the Purchaser Mr. Lim Wei Xian has previously filed an action against the Appellant in Johor Bahru Sessions Court under the reference number :Civil Suit No. JA-A52NCVC-98-06/2017. The suit went for full trial before the former Johor Bahru the Learned Sessions Court Judge, Madam Elisabet Paya Wan, who made the findings after full trial and found that the Appellant has no intention to build the Roof Top Garden as it is never part of the approved building plans for the Project.

The Appellant in that suit has filed an appeal to High Court where His Lordship Justice Dato‟ Ahmad Kamal affirmed the findings of the Sessions Court and dismissed the Appeal.

The Appellant dissatisfied with the dismissal of the Appeal has filed a motion for leave to appeal to Court of Appeal vide Civil Appeal no. J-08-13-01/2019, which was subsequently dismissed by the Court of Appeal on 30/5/2019.

Upon knowing the fact that the Roof Top Garden was not part of the approved building plans, the Respondent felt that the Appellant has cheated the Respondent as the Roof Top Garden is a October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 5 significant figure which induced the Respondent to purchase the Property.

The Learned Counsel for the Respondent submits that this suit is filed based on the following grounds: a) The vacant possession is given on 16/9/2016 and not 5/3/2016 which the Respondent is entitled to late delivery interest. b) The Appellant has cheated the Respondent as the Roof Top Garden is never part of the approved building plan and hence the Appellant has breached the Sale and Purchase Agreement, which included the Roof Top Garden as one of the Common Facilities.

In this Category, the Respondent‟s claim before the Sessions Court are as follows: i. 20% of the Purchase Price or damages to be assessed by the Sessions Court based on the market value as damages due to the cheating and / or Breach of the Sale and Purchase Agreement; ii. Late delivery interest in the sum of RM16,296-78 (amount for each Appeal varies according to the purchase price); iii. Interest at the rate of 5% per annum on the total amount awarded by the Court from the date of issuance of the Writ Summon till the date of full and final settlement; October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 6 iv. The Appellant to pay the Respondent cost on solicitor-client basis; v. General damages of RM50,000.00; vi. Exemplary Damages of RM50,000.00; and vii. Any other relief deems fit by the Honourable Court.

The Issues in this appeal are as follows: a) Whether the Respondent has the locus standi to file the action b) Whether the Respondent needs to serve the statutory notice to the financer c) Whether the Respondent is the correct party to file the action a) Whether the Respondent has the locus standi to file the action

The position of the Appellant is that the Respondent is a beneficial owner of said parcel and hence lacks the locus standi to initiate. Legal proceedings include the claim for failure to have a Roof Garden Top. Clause 3.1 of The Deed of Assignment states: “Pursuant to the Letter(s) of Offer and/or the Facilities Agreement and in consideration of the Bank at the request of the Borrower and/or the Assignor agreeing to grant or make available and/or continuing to grant or make available or hereafter may be agreed to be granted or made available to the Borrower the Facilities and October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 7 such advanced or further advance or credit facilities to be granted by the Bank at its absolute discretion upon the terms and conditions stipulated in Facilities Agreement, the Assignor as the beneficial owner to the said Property hereby irrevocably and unconditionally ASSIGNS ABSOLUTELY to the Bank all the Assignor’s present and future rights, title, interests and the full and entire benefit in and to the said Property vested in the Assignor by, under or pursuant to the Principal Sale and Purchase Agreement and the Related Documents together with the right of enforcement thereof thereunder, as security for the Facilities which the Bank hereby accepts and PROVIDED ALWAYS and notwithstanding this Assignment the Assignor shall at all times hereafter save harmless and keep the Bank indemnified against all actions, proceedings, damages, penalties, claims, demands, costs and expenses which may be brought or made against or incurred by the Bank by reason or on account of the non-observance of all or any of terms and condition of the Principal Sale and Purchase Agreement and the Related Documents on the part of the Assignor, and on the part of the Borrower as contained in the Facilities Agreement.

The basic of the contentions is the phrase “ The Assignor as the beneficial owner to the said property hereby irrevocably and unconditionally Assigns absolutely to the Bank all the Assignor present and future right, title interest and the full and entire benefit in and to the said Property vested in the Assignor. DAMAI FREIGHT (M) SDN BHD v. AFFIN BANK BHD 2015 4 CLJ was cited in support. October 22, 2019

Section 22C Housing Development (Control & Licensing) Act 1966 requires the Respondent to serve statutory notice to the financer Section 22C had reproduced for ease of reference. 22C Right to initiate and maintain actions Notwithstanding anything contained in any written law or any rule of law, agreement, assignment or charge lawfully entered into between a homebuyer as defined in section 16A and his financier, a homebuyer shall be entitled on his own volition and in his own name to initiate, commence, institute and maintain in any court or tribunal any action, suit or proceeding against a housing developer or any other person in respect of any matter arising out of the sale and purchase agreement entered into between the homebuyer and the housing developer provided the homebuyer's financier under a deed of absolute assignment is notified in writing either before or within fourteen days after the action, suit or proceeding against the housing developer has been filed before any court or tribunal.

I have no issue with the said Authority, but the point here is whether Section 22C Housing Development (Control & Licensing) Act 1966 and the authorities cited intended to interprete the law as submitted by the Learned Counsel for the Appellant.

Long Title and the preamble of Act 118, reads as follows: “An Act to provide for the Control and Licensing of the business of Housing Development in Peninsular Malaysia, the protection of the interest of purchaser and for matters connected therewith”

It is an obvious form of plain reading that the Act provided for: October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 9 a. Control of Housing Development Business in Peninsular Malaysia b. Licensing of the same (and hence conditions may be attached to the license). c. Protection of the interest of purchaser d. Any matter incidental to or in consequence of the same

I am of the view that the authorities cited have been taken out of the context. One cannot but give life to the decisions or provisions of the law to achieve its purpose. The ratio decidendi of the authorities must be given their actual and full effect if the authorities are to be used.

Section 17A Interpretation Act 48/67 clearly states that regard to be had to the purpose of a statutory law and we reproduced for ease of reference. INTERPRETATION ACTS 1948 AND 1967 (CONSOLIDATED AND REVISED 1989) 17A Regard to be had to the purpose of Act In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. I would like to say that the developer is duty-bound to do the following : October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 10 a) deliver as promised in Sales and Purchase or any other agreements incidental to or in consequence of the Sale and Purchase Agreement of the property b) Cannot hide behind the façade or veil of a literal interpretation of any provision of the HOUSING DEVELOPMENT (CONTROL AND LICENSING) ACT 1966 (Act 118) if it does not promote the purpose(s) of the Act as enumerated earlier. The Developer is bound by law and good conscience to come to Court with clean hands if they wish to seek the assistance of the law and equity.

Keeping in mind, Equity is very much a part of Malaysian Law as per Article 160 Federal Court ( KERAJAAN MALAYSIA v. MAT SHUHAIMI SHAFIEE [2018] 3 CLJ 1.

Coming back to the clause 3.1 Sale and Purchase Agreement “the absolute assignment” is for the following purpose: To facilitate loans or other financial facility(s) towards the funding of the housing project development to allow easy transfer of titles or caveats or whatever that is required in (I). As a means for the recovery of debts in cases of default of loans. to allow flexibility to the developer and to encourage the industry to blossom in the Country. October 22, 2019

Regrettably, this absolute assignment is taken to put the purchaser in a semi totally depressed state if he finds the developer in clear breach of the law or the contract merely because of the term “absolute assignment.”

The Developer may only rely on absolute assignment in the manner, and for the purpose I have enumerated above.

The Developer who seeks to the aid of the equity must first come with clean hand.

D&C BUILDER LTD v. REES [1965] EWCA CIVIL 3./1966 2QB 617 LOAD DENNING ruled that the party seeking equity.must come with clean hands.

I find solace in BERJAYA TIMES SQUARE SDN BHD v. M-CONCEPT SDN BHD 2019 MLRA 1. “Section 22C. The right to initiate and maintain actions. Notwithstanding anything contained in any written law or any rule or law, agreement, assignment or charge lawfully entered into between a homebuyer as defined in section 16A and his financier, a homebuyer shall be entitled on his own volition and in his own name to initiate, commence, institute and maintain in any court or tribunal any action, suit or proceeding against a housing developer or any other person in respect of any matter arising out of the sale and purchase agreement entered into between the homebuyer and the housing developer provided the homebuyer’s financier under a deed of absolute assignment is notified in October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 12 writing either before or within fourteen days after the action, suit or proceeding against the housing developer has been filed before any court or tribunal.”

The Learned Counsel for the Respondent submits that the Respondent was given the right to initiate the current action against the Appellant.

On the second issue, the Learned Counsel for the Respondent submits that the 14 days notice under Section 22C of the Act is not required as the assignment is conditional in nature and not absolute.

The Learned Counsel for the Respondent submits that the substantive issue derived from the above is whether the deed of assignment is absolute or conditional in nature. It is the Respondent‟s submission that the assignment is conditional in nature.

The Learned Counsel for the Respondent refers to the Federal Court‟s decision in BERJAYA TIMES SQUARE SDN BHD v. M-CONCEPT SDN BHD [2009] MLRA 1 at 16 where his Lordship has laid down the principles in interpreting a document as follows: “Here it is important to bear in mind that a contract is to be interpreted in accordance with the following guidelines. First, a court interpreting a private contract is not confined to the four corners of the document. It is entitled to look at the factual matrix forming the background of the transaction. Second, the factual matrix forming the background of the transaction includes all material October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 13 that was reasonably available to the parties. Third, the interpreting court must disregard any part of the background that is declaratory of subjective intent only. Lastly, the court should adopt an objective approach when interpreting a private contract”

The Learned Counsel for the Respondent submits that the above-quoted passage of the judgment has effectively overruled the principle laid down by Federal Court in NOUVAU MONT DOR

(M) SDN BHD v. FABER DEVELOPMENT SDN. BHD [1984] 2 MLJ 268 which held that the nature of an assignment is to be gathered only from the four corners of the instrument itself. [35] The Learned Counsel for the Respondent submits it was declared by the Federal Court in BERJAYA TIMES SQUARE SDN BHD v. M-CONCEPT SDN BHD that NOUVAU MONT DOR (M) SDN BHD is not followed. It was also submitted that the Federal Court‟s decision in BERJAYA TIMES SQUARE SDN BHD was not addressed by the Federal Court in DAMAI FREIGHT (M) SDN BHD. [36] The Learned Counsel for the Respondent further refers to the Federal Court‟s decision in SAMUEL NAIK SIANG TING v. PUBLIC BANK BHD [2015] 8 CLJ 944, which was decided right after DAMAI FREIGHT (M) SDN BHD (supra) which has determined otherwise. [37] These were also agreed by the Federal Court in SAMUEL NAIK SIANG TING v. PUBLIC BANK BHD [2015] 8 CLJ 944 October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 14 [38] Hence, in the view of this Court, Section 22C of the Act must be interpreted as a procedural matter which serves the purpose of informing the financer of the following: a) It invites the financer to initiate, commence, institute and maintain in any court or tribunal any action, suit or proceeding against a housing developer or any other person in respect of any matter arising out of the sale and purchase agreement entered into between the homebuyer and the housing developer ( if the financer so wishes ) b) It allows the homebuyer to initiate, commence, institute and maintain in any court or tribunal any action, suit or proceeding against a housing developer or any other person in respect of any matter arising out of the sale and purchase agreement entered into between the homebuyer and the housing developer on its own volition and invite the financier to do likewise ( if the financer so wishes ) c) The financer is given notice of the complaint because the complaint may affect the value of the property in question, in so much that the financer may seek remedy to protects its interest which primarily the value of the property vis-à-vis the loan facility or any other financial facilities granted October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 15 [39] I beg to differ (with the greatest respect, to the views that Section 22C impeded complaints of purchaser and that the purchaser by virtue of the absolute assignment pursuant to section 22C of the Act as well as terms and conditions of the contract (the Sale and Purchase & others relevant agreements) and puts the purchaser in a straight jacket and allowed him to be beaten black and blue. These views, of such impediments, runs contrary to the purpose of the Housing and Development Act 1966. Such views offends the idea that the law must give a societal responsibility in the business where the purchaser is at the receiving end. To say otherwise is contrary to the whole purpose of the Act. Reverting to the preamble of HOUSING DEVELOPMENT (CONTROL AND LICENSING) ACT 1966, it must be noted that the purpose of HOUSING DEVELOPMENT (CONTROL AND LICENSING) ACT 1966 are as follows (but not limited to them) ;

Recognising Housing Development as an integral part of human lives as shelter is a requirement in life.

The Housing Development Industry needed encouragement to blossom so as to cater for human needs.

There is a need to license and regulate the players of Industry to ensure minimal standards compliance, fair trade, and standard practices.

The control of the housing development industry to prevent economic bubble bursts or other problems. October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin

The protection of purchasers and their interests and any other matters incidental to or in consequence of ;

Application of the law is only in Peninsular Malaysia [40] For the reason above, I find that the Respondent has locus standi to initiate this action. The financer's right to the notice is procedural in value and not substantive. Failure to give notice does not impede this action. [41] However, I also order that the financer be given notice of this action so it can choose the next course of action to protect its rights. d) Whether the Respondent is the correct party to the ACT [42] One of the complaints is that the Respondent claimed that the Appellant failed to complete a “Roof Top Garden” as listed under Common Property Schedule II of Sale and Purchase Agreement and being a Common Property, then the Joint Management Body in the building has control over the Common Properties pursuant to Section 148 Strata Management Act 2013 read as follows: “On the coming into operation of this Act, in a local authority area or part of a local authority area or in any other area, the provisions of any written law, contracts and deeds relating to the maintenance and management of building and common October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 17 property in so far as they are contrary to the provisions of this Act shall cease to have effect within the local authority area or that other area” [43] The Learned Counsel for the Appellant submits that Act 757 was gazetted on 1/6/2015 through PU(B) 231/2015, and where there is a dispute, Act 757 applies over other laws. [44] Further, the Learned Counsel submitted that since the Joint Management Body (JMB) was established, terms of said Sales and Purchase Agreement for completion of Common Property cannot be enforced, Section 143 STRATA MANAGEMENT ACT 2013 2013 applies to defects in Common Property. SELESA HILL HOMES V JMB [2017] 1 LNS 1117 had cited in support. [45] Further, Section 143(2) of the same Act was cited. [46] Now, after careful perusal of the long title of the Strata Management Act 2013, I find that the purpose of the Act is: Proper Maintenance of buildings common property Property Management of the property Matters that are incidental to or as a consequence of the proper maintenance and management of the common property [47] I found S.148 STRATA MANAGEMENT ACT 2013 does not oust other laws such as the Contracts Act or Local Council By-laws but serves only to streamline the various laws in matters of Management and Maintenance of buildings or joint property. October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 18 [48] There are conditions-precedent for this to take effect. They are a. There must be buildings and common area b. There is a need for manage and maintain them c. S.148 empowers JMB to this task ( as it would be too onerous to expect the Local Government to handle everything). [49] I find nothing in the words of S.148 STRATA MANAGEMENT ACT 2013 to deny the rights of purchasers. [50] I have been reminded that : a. the Sale and Purchase Agreement is between the Appellant and Respondent b. Joint Management Body is not a party to this suit c. Contracts Act 1950 has not been deprived explicitly of effect. Generalia Specialibus Non-Derogant and other maxims do NOT apply. [51] BOUSTEAD NAVAL SHIPYARD SDN. BHD V. CORPORATION SDN BHD. V DYNETOR CORPORATION SDN BHD [2014] 5 CLJ 533 (para 63 & 64) clearly states non-parties may not interfere in legal action unless sanctioned by law. [52] Coming to S. 143(2) STRATA MANAGEMENT ACT 2013 Act 2013 I find the following as the correct interpretation of the law: October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 19 Where it concerns all or some of the parcel owners or proprietors, which effectively exclude a single parcel owner or proprietor. the parcel owners (in the plural) may jointly choose to take part in the proceedings for building common area or intiate the actions In respect of common areas, the parcel owners may take action against anyone who has the locus standi or liable for proceedings against them by those with the locus standi For limited common area (being exclusive to the few who are bestowed rights) may be taken: a) by or against Joint Management Body / Management Company (for common area) b) by or against subsidiary management (for limited common area) [53] The word “may” is not a mandatory provision, nor does it excludes others. In the context of this case, “may” here is what in law is known as an enabling / empowering clause. [54] It gives power (which otherwise) does not exist. It does not prevent anyone else from exercising any rights / power provided by law. [55] Hence, in interpreting S. 143(2) STRATA MANAGEMENT ACT 2013, Section 148 of the same Act is of no assistance. October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 20 [56] SELESA HILLHOMES (supra) is a Sessions Court decision, and the grounds of judgment do not (with respect) binds this Court. I am invited to follow it, and I must respectfully decline, more so when I beg to differ from the ratio decidendi of the case. I am of the view that the said judgment is in error, in the interpretation and application of the law. [57] Coming back to the Roof Top Garden, it is NOT in dispute that a) it has not been build by the Appellant b) it listed in the 2nd schedule Sales and Purchase Agreement. [58] Now the presence or otherwise of the common property listed in the Schedule, Sale and Purchase Agreement. [59] Now the presence or otherwise of the common property listed in the Schedule, Sale and Purchase Agreement affect the value of the property. [60] Subject to other factors, the presence of common property (such as a Roof Top Garden) may enhance the value of the property and vice versa. [61] The consideration of why a purchaser chooses one property over the other is a point to consider. If a purchaser decides to buy a property on the side of the building with the Roof Top Garden and after completion of the said Property, he finds that there is none, there may be some issues of misrepresentation that had been October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 21 made to the purchaser who may now suffer from unlawful loss or the developer in unlawful gain. In such a case, perhaps some (or all) elements of S.420 PC read together with S. 24 & 23 of the same may very well, be in place. [62] I reproduced the provisions for easy reference : Section 420 Penal Code 420 Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived, whether or not the deception practiced was the sole or main inducement, to deliver any property to any person, or to make, alter, or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment for a term which shall not be less than one year and not more than ten years and with whipping, and shall also be liable to fine. Section 24 Penal Code 24 "Dishonestly" Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, irrespective of whether the act causes actual wrongful loss or gain, is said to do that thing "dishonestly". Explanation - In relation to the offence of criminal misappropriation or criminal breach of trust it is immaterial October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 22 whether there was an intention to defraud or to deceive any person. Section 23 Penal Code 23 "Wrongful gain" and "wrongful loss" "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled. "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property. Section 107 STRATA MANAGEMENT ACT 2013 provides for the parties that may act as parties against Appellant in the Housing Tribunal. 107 Persons entitled to file a claim No person other than the following persons shall be entitled to file a claim to the Tribunal: a) a developer; b) a purchaser; c) a proprietor, including an original proprietor; d) a joint management body; e) a management corporation; f) a subsidiary management corporation; g) a managing agent; and October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 23 h) any other interested person, with the leave of the Tribunal. [63] The General Principle of Law that if the law provides for a mode, failure to use the method of action is fatal to the action. STEPHEN KALONG NINGKAN v. TUN ABANG HAJI OPENG & TAWI SLI (NO 2) [1966] 1 LNS 185 where his Lordship, Chief Justice (Borneo) Pike has this to say, inter alia, Where a statute prescribes a particular mode of procedure that mode of procedure must be followed. See Bull v. Attorney-General, for New South Wales [1916] AC 564 and East Midland Gas Board v. Doncaster Corp [1953] 1 All ER 54. [64] That speaks of the mode of claims in the procedural aspects. [65] It does not oust the substantive rights of purchasers to pursue the matter in the Court of Law. The Courts being the Interpreter of Law and the Fountain of Justice cannot be excluded because the Courts are a creation of the Constitution and it is indeed a basic structure of the Westminster System of Government. SEMENYIH JAYA SDN BHD v PENTADBIR TANAH HULU LANGAT [2017] MLJ [66] This Court is not prepared to be excluded by some erratic interpretation of some provisions of the law. This is because the Court is vested with judicial powers either before or after the amendments to Article 121 (1) Federal Constitution October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 24 [67] Section 107 STRATA MANAGEMENT ACT 2013 merely states that the Tribunal has the power to hear complaints, and the parties enumerated under the said provision, the locus standi to complain. Section 107 never say it has oust the powers or functions of the Courts. In any event, section 107 can never override Article 121 Federal Constitution by operation of Article 4(1) of the same. [68] As such, the Respondent is the right party to sue or be sued. [69] This Court notes BANDAR BUILDERS SDN BHD 7& 2 ORS v. UNITED MALAYAN BANKING [1993] MLRA and finds that this is NOT an “obviously insatiable. ” case for which Order 18, Rule 19 may be applied. [70] For these reasons, dismissed this appeal with cost and direct the matter be remitted to the Session Court for final determination. [71] Dated at Johor Bahru, in the State of Johore, this day the 22nd October 2019. t.t AWG ARMADAJAYA BIN AWG MAHMUD Judicial Commissioner High Court of Malaya Johor Bahru Johor Darul Ta‟zim Curia Advisari Vult Counsels : October 22, 2019 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 25 For The Appellant : Shymala d/o Armugam Chettiar For The Respondent : NG Vinod & CH Wong Solicitors : For the Appellant Messrs A Rahim & Co No. 98-100, Jalan Setia Tropika 1/7 Taman Setia Tropika 81200 Johor Bahru. For the Respondent Messrs Rodziah and Company No. 23-01, Jalan Austin Height 8/3 Taman Mount Austin 81100 Johor Bahru. Hearing Date : 19th September 2019. Decision Date : 22nd October 2019.