BA-22NCvC-292-07/2022

LAWRENCE LIM CHENG POH

HO LAI YEE

CHAN KAI ER

CHAN WENG FOO

CHU LIN

FRANCIS CHANG KOK KIN

IVAN BONG CHEE MENG

LEAN EAN PHENG

LEE CHEE HOU

LEE CHOY LAN

YOON CHAI FONG

LIEW VOON KEE (IDENTITY CARD NO. : 780324-10-5213) 2

LIM BEE KEE

LIM CHIN CHUAN

LIM KIEN THONG

LOW MOOI HOON

NG KENG SENG

CHIA FOONG SIN

NG MEI JIH

NG MEI YING

ONG KOCK SOON

PANG HAO CHEN

PONG KEEN SIN (IDENTITY CARD NO. : 840612-14-5131) (For Unit B32-11)

CHONG PUEH HOONG

TEE CHIEW YAN

TEE CHIEW FANG (IDENTITY CARD NO. : 850114-01-5624) 3

WANG YOU YING

WANG DING YING

WONG JIAN FEI

WONG JHIA YI

WONG WAI LEONG (IDENTITY CARD NO. : 880524-08-5569) (For Unit A27-09)

WONG WAI LEONG (IDENTITY CARD NO. : 880524-08-5569) (For Unit A33-09)

YAU TEN WEI

YU YUN HOW

ZENG ZI-HAO

LIM PEI YEN

AU LAI KIT

CHENG YU LING

CHANG WAI CHOW

CHEONG SAU WAN (IDENTITY CARD NO. : 770614-5548) 4

NG KOK SENG

CHEW PERG ZHEN

NG MEI JEE

CHUI YEEN FUNN

DARYL NG WEI SHUN

NG CHONG BENG

GAN SIN CHEE

FOONG CHENG FEI

GOH BEE SUM

HAH XIANG HENG

HAH CHIN PEN

KOO KAA MAY

WONG KIN YIK

LAU SUM YI (IDENTITY CARD NO. : 891005-14-5308) 5

LEE JIN KIT

LING SHIAN FONG

MOHD HANIFF HELMI BIN ZOLKIFLI

NG MEI THENG

NG SEE KIM

FOO LEE FONG

PHANG JIN SHEE

TAN HUI HUA

WANG KAI SHIN

WANG KHAI SHEAN

YIP KONG HONG

CHEE YOONG CHUAN

CHEONG YOON KIT

CHONG SEOW GIVE (IDENTITY CARD NO. : 900917-07-5674) 6

GOH GEOK CHUAN

KOK WEI YIK

LIM CHEUN CHE

TAN SHING YEE

LIM KWEE LAN

TEH CHEN HO

CHONG TECK BU

FREDERICK ANTOINE A/L ANTHONY BERNARD

RASHVENI DEVI A/P RAJAKUMAR

WANG TEE SUAN

GAN HUEI TING

HON KAH PENG (IDENTITY CARD NO. : 741111-14-5623) (For Unit A08-05)

WONG PEI CHAN

WONG SIAW KIEN (IDENTITY CARD NO. : 830809-05-5034) (For Unit A08-05) 7

HON KAH PENG

WONG PEI CHAN (IDENTITY CARD NO. : 760413-05-5256) (For Unit A08-06)

WONG SIAW KIEN (IDENTITY CARD NO. : 830809-05-5034) (For Unit A08-06)

JASON ONG WHAI KEONG

LUI SZE MUN

SEAH TING YAN

YAP SHEN WEI

LAI LILY

CHAING SOOK YIN

HO CHEE KUON

WONG HUNG YIN

CHIN SEN VUN

PONG KEEN MON

PONG KEEN SIN 8 (IDENTITY CARD NO. : 840612-14-5131) (For Unit B30-12)

CHEN KAH WAI

MAH CHIN ENG (IDENTITY CARD NO. : 820210-14-5499) ….. PLAINTIFFS AND WEALH PLATEAU SDN. BHD. [COMPANY NO. : 200701042065 (800097-A)] ….. DEFENDANT GROUNDS OF JUDGMENT (Defendant’s Request for Postponement due to its filing of Enclosure 30) Introduction [1] The Plaintiffs, a group of 98 purchasers of 71 units of residential properties in a housing development project, filed this suit against the Defendant-developer for liquidated damages for late delivery of vacant possession of the residential units and also liquidated damages for late completion of the common facilities. [2] By Enclosure 8 the Plaintiffs applied for summary judgment on the liquidated damages. [3] After the Enclosure 8 application for summary judgment has been fixed for hearing and decision and after the parties had filed and exchanged written submissions on Enclosure 8, the Defendant filed an application in Enclosure 30 for leave to add the Ministry of Housing and Local Government and the Government of Malaysia as 2nd and 3rd Defendants in the present suit and for an order to compel the Plaintiffs-purchasers to amend the Writ of Summons and Statement of Claim by adding the Ministry of Housing and Local Government and the Government of Malaysia as 2nd and 3rd Defendants in the present suit. This Enclosure 30 was filed four (4) days before the date set for hearing and decision of Enclosure 8 application for summary judgment. 9 [4] Three (3) days before the date for decision of Enclosure 8 application for summary judgment, the Defendant by letter requested for postponement of the hearing and decision on the Plaintiff’s summary judgment in Enclosure 8 until after the disposal of the Enclosure 30 application. [5] The Defendant’s request for postponement was rejected by this Court. [6] After hearing counsel and considering the submissions of the respective parties, this Court on 14 November 2022 awarded in favour of the Plaintiffs RM7,415,763.38 as the total combined amount of liquidated damages for late delivery of vacant possession of 71 residential units, and the amount of liquidated damages for late completion of common facilities, interests and costs. [7] The Defendant-developer has appealed against this Court’s decision dated 14 November 2022 on the summary judgment. The reasons for the decision on the summary judgment has been written in a separate Grounds of Judgment of even date. [8] After this Court granted summary judgment in respect of the Plaintiffs-purchasers’ claims pursuant to Enclosure 8 application, all the Plaintiffs’ pleaded claims and the Defendant’s pleaded defences were fully disposed of, and there was no longer any lis pendens for this Court to consider whether or not this Court should grant leave for addition of some other third persons as additional co-defendants in the action. [9] Accordingly, this Court in the decision dated 14 November 2022 did not make any order, decision or direction regarding Enclosure 30. [10] Nevertheless, the Defendant-developer by another Notice of Appeal purported to appeal against an alleged “decision” on Enclosure 30 application for addition of co-defendants. Brief facts of the Case [11] The facts and issues in the present case have been set out in the other Grounds of Judgment which relates to the summary judgment 10 (Enclosure 8). As such, it is unnecessary for this Court to repeat the same here. [12] This Court will therefore deal with the procedural issues relating to the Defendant’s request for postponement of Enclosure 8 (Plaintiffs’ application for summary judgment) on ground of filing of Enclosure 30 (the Defendant’s application for leave to add co-defendants and to compel the Plaintiffs’ to amend their pleadings). Defendant-developer’s request for the Plaintiff’s action to be postponed ending the Defendant-developer’s application to join the Ministry of Housing and Local Government and the Government of Malaysia as co-defendants in the present case [13] By Enclosure 30 filed on 10 November 2022 (i.e. 4 days before the date for decision on the Plaintiffs’ application for summary judgment in Enclosure 8), the Defendant-developer applied for leave to add the Ministry of Housing and Local Government and the Government of Malaysia as 2nd and 3rd Defendants in the present suit and for an order to compel the Plaintiffs-purchasers to amend the Writ of Summons and Statement of Claim by adding the Ministry of Housing and Local Government and the Government of Malaysia as 2nd and 3rd Defendants in the present suit. [14] Subsequent thereto, the Defendant-developer by letter dated 11 November 2022 (Enclosure 32) requested this Court to postpone the hearing and decision on the Plaintiff’s summary judgment in Enclosure 8 until after the disposal of the Enclosure 30 application. [15] By the time the Enclosure 30 application and the Enclosure 32 request was made, the parties had already completed their filing and exchange of Written Submissions and Submissions-in-Reply in connection with the Enclosure 8 application for summary judgment. [16] In their letter dated 11 November 2022 (Enclosure 33) the Plaintiffs-purchasers’ solicitor promptly and strenuously objected to the Defendant’s request for postponement. First reason for rejecting the request for postponement [17] In the ordinary course of events, the Court should not delay or postpone the progress of O.14 application in the main action merely 11 to accommodate the Defendant’s request to apply for leave to issue third party notice against other legal entities as third parties or to apply for leave to add additional parties as co-defendants. Except where exceptional circumstances exist, any such delay or postponement would be contrary to the O.34 policy of just, expeditious and economical disposal of civil suits. Second reason for rejecting the request for postponement [18] It has been held by appellate courts that the enactment of the statutory Schedule H sale and purchase agreement for residential housing units is a social legislation which is intended to protect the purchasers of residential properties. [19] It would be contrary to the social objective of the Housing Development (Control and Licensing) Act if the purchasers’ applications for summary judgment were, as a general rule, to be delayed or postponed pending the developer’s application or late application for leave to issue third party notice or for leave to add co-defendants. Exceptional circumstances must be shown by the developer before the Court can grant such request to delay or postpone the disposal of the purchasers’ application for summary judgment. [20] In our present case, the Defendant-developer has not shown any exceptional circumstance to delay or postpone the Plaintiffs-purchasers’ application for summary judgment. [21] Moreover, the proposed additional co-defendants which the Defendant-developer seeks to obtain leave to be included are the Ministry of Housing and Local Government and the Government of Malaysia, and there is no reason whatsoever that if the Defendant-developer were to obtain judgment against them in a separate and subsequent proceeding, there would be any risk of them dissipating their assets or any risk of inability by them to pay the judgment sum. After the Plaintiffs-purchasers’ application for summary judgment has been decided and disposed of, the Defendant-developer can, if it so wishes, still pursue against the Ministry of Housing and Local Government and the Government of Malaysia. In the circumstances there is no risk of any irreparable injustice to the Defendant-developer if the request for postponement here is rejected. 12 Third reason for rejecting the request for postponement [22] Apart from the abovementioned two (2) reasons, there is also a third reason for rejecting the request for postponement. In the context of a developer’s intention to claim against the Ministry of Housing and Local Government and the Government of Malaysia as third parties in a case where the anticipated subject-matter of the third party notice is the public authority’s decision more than 3 years ago to grant extension of the statutory period 36 months to 48 months for the developer’s completion and delivery of vacant possession of residential properties, it is even a stronger case for the Court to refuse the request for postponement of or delay to the disposal the Plaintiffs’ application for summary judgment. This is because any suit against the Ministry of Housing and Local Government and the Government of Malaysia would most probably be barred by the Public Authorities Protection Act due to the expiry of 3 years from the date of the public authority’s decision. Here, by the Defendant’s own document and affidavit evidence, the Jabatan Perumahan Negara’s decision to grant extension of time was made on or about 26.4.2017, more than 5 years from to-date. Fourth reason for rejecting the request for postponement [23] The Federal Court’s judgment in Ang Min Lee’s case was reported in 2021 and the Plaintiffs-purchasers’ suit was filed in July 2022, with the summary judgment application filed on 2 September 2022. In the Defendant-developer’s Defence filed on 5 September 2022 (Enclosure 18) there is no indication of its intention to join the Ministry of Housing and Local Government and the Government of Malaysia and there is no pleading that the Ministry of Housing and Local Government and the Government of Malaysia are allegedly necessary co-defendants to the Plaintiffs-purchasers’ suit. Summing-up on rejection of request for postponement [24] In the circumstances, this Court does not see any valid or sufficient reason for delaying or postponing the hearing and disposal of the Plaintiffs-purchasers’ application for summary judgment in Enclosure 8 here. 13 [25] In the circumstances, the Defendant-developer’s request for postponement of the hearing and decision on Enclosure 8 summary judgment application was rejected by this Court. Conclusion [26] After this Court granted summary judgment in respect of the Plaintiffs-purchasers’ claims pursuant to Enclosure 8 application, all the Plaintiffs’ pleaded claims and the Defendant’s pleaded defences were fully disposed of, and there was no longer any lis pendens for this Court to consider whether or not this Court should grant leave for addition of some other third persons as additional co-defendants in the action [27] Accordingly, this Court in the decision dated 14 November 2022 did not make any order, decision or direction regarding Enclosure 30. [28] In short, what this Court decided on 14 November 2022 were only

rejection of the Defendant-developer’s request to delay or postpone the hearing and decision on the Plaintiffs-purchasers’ Enclosure 8 application; and (b) allowing the Plaintiffs-purchasers’ Enclosure 8 application for summary judgment and thereby granted the summary judgment in favour of the Plaintiffs-purchasers. Dated this 16th December 2022. Signed ….............................................................. TEE GEOK HOCK JUDICIAL COMMISSIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) 14 To the parties’ solicitors:

For the Plaintiffs : Wong Poh Yee Messrs KY Soo (Kuala Lumpur)

For the Defendant : Mohamad Amir Ardzhar bin Fahimuddin Messrs Nik Saghir & Ismail (Shah Alam)