Berlinda Lee Seng Ling (Sebagai Wasi Dan Waris Tunggal Kepada Harta Pusaka Lee Cheow Kheam [470303-07-5007]) v 1. ) LOH TINA (PA-22NCvC-233-11/2019)

LOH TINA (No. K/P: 800819-07-5736)

CHAN LOOI TEEN (No. K/P: 720521-07-5012)

TAN LAY SEE (No. K/P: 880512-07-5208)

CHONG BEE KHEM (No. K/P: 670211-07-5208)

LEE SWEE LIM (No. K/P: 570324-07-5653)

FOONG WEI XENG (No. K/P: 840720-07-5273) ….. DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN [1] The plaintiff vide Enclosure 27 applied to dispose Enclosure 22 on point of law under Order 14A and/or Order 33 rule 2 and/or rule 5 of the Rules of Court 2012 (“RC 2012”). Having heard the submissions, I dismissed the application with costs. Facts [2] The background facts are as follows. The deceased was the proprietor of a piece of land held under Geran No. 79140, Lot No. 4803, Seksyen 5, Bandar Georgetown, Daerah Timur Laut, Pulau Pinang (“Lot 4803”). On 24.12.2014 he entered into a Joint Venture Agreement on 24.12.2014 (“JVA”) with the 1st defendant where the 1st defendant agreed to apply for subdivision and thereafter to construct the infrastructures and landscaping. The deceased was subsequently substituted by the plaintiff after his demise. 18/09/2022 21:49:53 PA-22NCvC-233-11/2019 Kand. 126 [3] Under the JVA once the land is subdivided into 7 lots, the plaintiff agreed to transfer 3 ½ subdivided lots to the 1st defendant and/or her nominees where 3 subdivided lots to be transferred wholly to the 1st defendant and/or her nominees and ½ subdivided lot to be jointly held by the 1st defendant and/or her nominees and the deceased and/or his nominees in equal share. Another 3 ½ subdivided lots will be transferred wholly to the deceased and /or his nominees. [4] It is further provided that both parties to appoint 4 nominees each as transferees of the subdivided lots. The transfers to be carried out by way of sale and purchase agreements (“SPA”) to be entered between the deceased and all the 8 nominees and the sale and purchase agreements are to be entered simultaneously with the signing of the JVA. The 1st defendant paid a sum of RM1,000,000.00 as consideration for purchase of the said lots. It is also provided under the JVA that upon approval of the subdivision the 1st defendant shall give a loan of RM1,000,000.00 to the deceased and the separate titles, once issued and registered in the names of the nominees, are to be surrendered to the deceased’s solicitors. [5] Consequent to the subdivision, vide a memorandum of transfer dated 16.3.2015 the defendants became the registered owners of the land as per the SPA. The 1st defendant however failed to provide the RM1,000,000.00 loan to the deceased which resulted in the termination of the JVA by the deceased and the RM1,000,000.00 paid earlier was forfeited. The 1st defendant also failed to deliver the seven titles to the deceased which prompted the deceased to file a suit against the 1st defendant. The High Court decided in favour of the deceased. The 1st defendant appealed against the said decision and filed a stay. The Court of Appeal on 22.2.2019 refused the stay and ordered the titles to be surrendered to the deceased’s solicitors. However, the Court of Appeal having heard the appeal proper reversed the decision of the High Court and remitted the matter to the High Court to determine (a) the validity of the termination of the JVA, (b) whether the RM1,000,000.00 paid by the 1st defendant was a deposit under the JVA or the purchase price pursuant to the SPA and (c) whether the 1st defendant was entitled to hold the said titles on lien. The 3 titles are presently being held by the plaintiff’s solicitors while another 4 titles are with the defendants ’solicitors (see Enclosure 56). [8] The plaintiff in her amended statement of claim raised the issue pertaining to the position of the order of the Court of Appeal dated 22.2.2019 as there was no specific pronouncement made pertaining to the return of the titles when the Court of Appeal allowed the 1st defendant’s appeal. [9] In the current action the plaintiff seeks for –

(a) a declaration that the JVA was validly terminated;

(b) a declaration that the RM1,000,000.00 deposit was rightfully forfeited;

(c) a declaration that the 2nd, 3rd and 4th defendants are mere nominees of the 1st defendant;

(d) an order against the defendants to surrender all seven titles to the plaintiff’s solicitors; and

(e) an order for 3 ½ lots currently registered under the names of the defendants be vested in the plaintiff being the sole beneficiary of the deceased’s estate. Submissions [10] The first issue is whether JVA has terminated. The learned counsel submitted that in the defendants amended statement of defence they have admitted that the JVA had been terminated therefore this Court should decide that JVA had been terminated. He pointed out that the defendants did not say that the JVA was unlawfully terminated therefore the termination was lawful. He further contended that the Court should look into the background and not to confine to the four corners of the contract. As regards the second issue the learned counsel argued that both the JVA and SPA should be read together as they were executed on the same day and the RM1,000,000.00 paid to the plaintiff should be construed as the deposit under the JVA and since there was a breach the said deposit was rightly forfeited. As for the third issue the learned counsel contended that the defence and counterclaim was purely monetary and not the land therefore they were not entitled to hold the titles. [11] The learned counsel for the defendants contended that the Court of Appeal converted the originating summons filed the defendant/plaintiff to writ when the matter came up on appeal hence, this alone was sufficient for the Court to dismiss this application. It was further argued that since the plaintiff herself invited the Court to examine the facts leading to the making of the contract therefore there were issues to be tried. The learned counsel argued that whether the deposit paid was under the JVA or as purchase price pursuant to the SPA was itself an issue to be tried. As regards the counterclaim, the defendants had incurred expenses for the subdivision therefore they were entitled to claim for the same. Findings [12] The Federal Court in Thein Hong Teck & Ors v. Mohd. Afrizan bin Husain & Anor [2012] 2 MLJ 299; Bato Bagi & Ors v. Kerajaan Negeri Sarawak & Another Appeal [2011] 8 CLJ 766 and Lembaga Pembangunan Industri Pembinaan Malaysia v. Konsortium JGC Corporation [2015] 6 MLJ 612 have provided clear guidance for matters which may be dealt with under Order 14A and/or Order 33. From the authorities it is clear that the court can proceed under Order 14A only when it involves question of law or construction of document which may dispose of either part or the whole suit and there should not be any dispute as to the substantial or material facts. And Order 33 rule 2 of RC 2012 will be triggered when there is a question of law or fact or mixed law and fact. [13] This matter was begun by an originating summons. The High Court ruled in favour of the deceased/plaintiff however the decision was reversed by the Court of Appeal and the matter was converted into a writ and remitted the same to be tried. To me, it means nothing else but the matter should go for a full trial. The Court of Appeal apparently had found that there were issues to be tried in fact had identified the said issues. The defendants in their defence merely stated that the JVA was terminated by the plaintiff and their counterclaim was not confined to monetary alone. They seek the return of the titles and maintain that they are the proprietors of the 3 ½ lots. The defendants had expended their own money for the subdivision and other matters as required under the JVA which is the subject matter of the counterclaim. [14] The JVA provides that a deposit of RM1,000,000.00 to be paid by the 1st defendant to the plaintiff and a further sum of RM1,000,000.00 to be given by the 1st defendant as a loan to the plaintiff. The SPA provides that the defendants to pay RM1,000,000.00 as the purchase price. Thus far the 1st defendant had paid RM1,000,000.00 to the plaintiff. Both the instruments were entered on the same day hence, it was uncertain whether the said RM1,000,000.00 was the purchase price under the SPA or the deposit under the JVA. [15] The plaintiff cannot turn around and insists that the purchase price was more than a million when the SPA clearly spelt out RM1,000,000.00 as the purchase price. This was the price agreed by both parties notwithstanding evidence showing the land commands higher value. [16] Based on the aforesaid reasons I do not think that the main action can be disposed of as proposed by the plaintiff. Enclosure 27 is therefore dismissed with costs. (TUN ABD MAJID BIN TUN HAMZAH) Hakim Mahkamah Tinggi Malaya, Pulau Pinang Tarikh: 18 September 2022 Peguamcara-Peguamcara:- Peguamcara Pihak Plaintif TETUAN M. KANESAN & ASSOCIATE Peguambela dan Peguamcara No. 2-C, Solok Tavoy 10050 PULAU PINANG Tel : 04-2277484 Faks : 04-2277254 Peguamcara Pihak Defendan Pertama hingga Defendan Keempat TETUAN WONG & LOH Peguambela dan Peguamcara No. 22, Jalan Servis Off Jalan Burmah 10050 PULAU PINANG Tel : 04-2286989 Faks : 04-2287989 Peguamcara Pihak Defendan Kelima dan Defendan Keenam TETUAN KHOO KEAT SIEW & CO. Peguambela dan Peguamcara Kim Mansion Level 4, 332-C Chulia Street 10200 PULAU PINANG Tel : 04-2620941 Faks : 04-2629595