Chang, Jen-Chih v Twin Pavilion Development Sdn Bhd (WA-22NCvC-644-11/2023)

This was an application by the Plaintiff for summary judgment pursuant to O. 81 of the Rules of Court 2012 (‘RC 2012’) for the following orders: “1. An Order for Specific Performance of the Plaintiff’s Put Option against the Defendant pursuant to the Letter of Confirmation – Buy 12/08/2025 10:54:27 WA-22NCvC-644-11/2023 Kand. 66 Back dated 05.06.2015 to purchase the unit known as Lot No E-16-02, Block No. E, Parcel No: 2, Storey No: 16, Type B3, Bangsar Trade Centre measuring 1012 square foot (“The Said Property”) from the Plaintiff at the agreed purchase price of RM1,269,066-40 within fourteen (14) days from the date of this Order;

Further or in the alternative to paragraph 1 above, damages in the sum of RM1,269,066-40 to be paid by the Defendant to the Plaintiff within fourteen (14) days from the date of this Order;

Upon compliance of paragraphs 1 and / or 2 above, Plaintiff is to surrender the Original Sale and Purchase Agreement and Original Deed of Mutual Convenants [sic] both dated 30.03.2016 to the Defendant for revocation thereof;

Further or in the alternative to paragraphs 1 or 2 above, damages in breach of the Letter of Confirmation – Buy Back dated 05.06.2015 by the Defendant to be assessed by this

Interests on the damages in paragraphs 1, 2 and 4 above at the rate of 5% per annum from 26.07.2023 until date of full settlement;

Plaintiff be given liberty to apply; and

Costs.”.

On 5.5.2025, I allowed the Plaintiff’s application in encl. 6 and in particular –

prayer 1 is to be complied with within 30 days from the date of the Order;

prayer 3 is to be complied with within 14 days from the date of payment by the Defendant;

prayer 5 on interest at the rate of 5% per annum from the date of decision until full settlement (the date 26.7.2023 in the prayer is the date when the buy-back was supposed to be exercised); and

prayer 6 was allowed following the Plaintiff’s counsel explanation that liberty to allow is required because the Order involves property.

Unsurprisingly, the Defendant is dissatisfied with the decision and is pursuing its right of appeal.

These are my full grounds of judgment.

The cause papers are as follows:

Notice of Application dated 21.12.2023 (encl. 6);

the Plaintiff’s Affidavit In Support (‘AIS’) affirmed on 3.1.2024 (encl. 8);

the Plaintiff’s Corrective Affidavit affirmed on 3.1.2024 (encl. 9);

the Defendant’s Affidavit In Reply (‘AIR’) affirmed by its Director, Richard Ong Tak Kin on 24.1.2024 (encl. 11);

the Plaintiff’s AIR affirmed on 1.2.2024 (encl. 13); and

the Defendant’s Notice of Intention to Use Affidavit dated 7.3.2025 (encl. 42); and

the Defendant’s AIR affirmed by the same deponent on 27.3.2024 (encl. 17)

The Plaintiff is a citizen of the Republic of China (Taiwan) with an address at 11F, No. 486, Chongyang Rd, Nangan District, Taipei City, 115 Taiwan (ROC).

The Defendant is a private limited company incorporated in Malaysia with its registered address at Suite E-1-1, Tower E, Plaza Pantai, Off Jalan Pantai Baru, 59200 Kuala Lumpur and business address at Lot A1.48 (Ground Floor), Tower A, Plaza Pantai, Jalan Pantai Baru, 59200 Kuala Lumpur.

The Defendant is the developer of the integrated commercial project known as Bangsar Trade Centre (‘BTC’) in Kuala Lumpur (‘Project’).

By a booking form dated 20.10.2014, the Defendant had, through its agent in Taiwan, Yongye International Investment Co. Ltd (‘Yongye’) offered to sell to the Plaintiff a unit in the Project, known as 12F, Type 3, Tower F, BTC (‘Tower F Unit’) at the total purchase price of RM1,510,30.00, subject to certain conditions.

The Plaintiff agreed to purchase the Tower F Unit and paid the sum of RM125,986.88 (‘Deposit’) to the Defendant through Yongye as deposit or part payment. Four official receipts dated

20.10.2014, 11.11.2014, 26.11.2014 and 4.12.2014 were issued for the payment of the Deposit.

At the end of 2014, the Defendant informed the Plaintiff that construction of Tower F could not be completed within the scheduled time. The Plaintiff then demanded for the refund of the Deposit.

The Defendant persuaded the Plaintiff to purchase another unit in Tower E of the Project (‘Tower E Unit’). The Plaintiff alleged that the Defendant made the following representations:

the Defendant agrees to give the Plaintiff a discount of 8% of the total purchase price of RM1,169,000.00;

the Defendant shall guarantee the Plaintiff a rental return of 6% per annum of the purchase price of RM1,169,000.00 for five years; and

the Defendant shall buy back the Tower E Unit from the Plaintiff at a price equivalent to 118% of the purchase price after five years.

It was further alleged that, in reliance of the representations made by the Defendant, the Plaintiff agreed to purchase the Tower E Unit and in consideration thereof, the Plaintiff agreed to utilise the Deposit to be applied towards the deposit or part payment for the purchase of the Tower E Unit.

The Tower E Unit is known as Lot No. E-16-02, Block No: E, Parcel No. 2, Storey No. 16, Type B3, BTC measuring 1,021 square feet.

The parties had executed, among others, the following documents:

the Sale and Purchase Agreement (‘SPA’) and Deed of Mutual Covenants (‘DMC’) both dated 30.3.2015;

the Supplementary Agreement through the Sales Form dated 26.5.2015 and the Defendant’s e-mail dated 1.6.2015 (‘SA’); and

the Letter of Confirmation – Buy Back dated 5.6.2015 (‘LC’) wherein it was stated as follows: “… We hereby confirm that:- The Vendor shall grant the Purchaser a non-transferrable put option (“the Put Option”) after five (5) years from the date of delivery of vacant possession (“Put Option Period”) to sell the Property at a selling price of RM 1,269,066.40 (“Agreed Sale Price”) and the Vendor shall purchase the Property from the Purchaser at such price upon the Purchaser exercising the put option. In return, the Purchaser shall grant the Vendor a call option after the expiration of the Put Option Period to buy back the Property at a purchase price equivalent to the Agreed Sale Price and the Purchaser shall sell the Property to the Vendor upon the Vendor exercising the call option. In the event that either the Vendor or the Purchaser shall fail to purchase or sell when the put option or call option is exercised, where applicable, the aggrieved party shall be entitled to specific performance UNTIL OR UNLESS both parties mutually agree not to exercise the put/call option granted herein. The put option and call option granted herein shall be exercised by the relevant party by service of notice in writing within the time frames stipulated hereinabove.”.

By the letter dated 1.6.2018, the Defendant informed the Plaintiff that the Certificate of Fitness for Occupation dated 14.5.2018 has been issued by the local authority and the Tower E Unit was ready for delivery to the Plaintiff (‘VP Notice’).

According to the terms of the SPA, vacant possession of the Tower E Unit was within 36 months from the date of the SPA and vacant possession was deemed to be delivered within 14 days from the date of the notice of delivery of vacant possession to the Plaintiff. Hence, to the Plaintiff, vacant possession of the Tower E Unit was deemed to be delivered, and in fact delivered, to the Plaintiff on 14.6.2018.

To date, the strata title of the Tower E Unit has not been issued. The Defendant has yet to inform the Plaintiff of the same.

By a notice dated 26.7.2023 to the Defendant (‘Put Option Notice’), the Plaintiff exercised the put option to sell the Tower E Unit at the agreed purchase price of RM1,269,066.40.

The Plaintiff alleged that the Defendant has failed, refused or neglected to purchase the Tower E Unit and has thereby breached the SA and/ or the LC.

This led to the filing of the suit where the reliefs sought are akin to the orders sought vide encl. 6 as outlined in paragraph 1 above.

For present purposes, the relevant rules under O. 81 of the RC 2012 are as follows: “ORDER 81 ACTIONS FOR SPECIFIC PERFORMANCE, SUMMARY JUDGMENT Application by plaintiff for summary judgment (O. 81, r. 1)

1.

In an action begun by writ endorsed with a claim –

for specific performance of an agreement (whether in writing or not) for the sale, purchase or exchange of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages; … the plaintiff may, on the ground that the defendant has no defence to the action, apply to the Court for judgment.

… Manner in which application under rule 1 shall be made (O. 81, r. 2)

2.

An application under rule 1 shall be made by notice of application supported by an affidavit made by some person who can swear positively to the facts verifying the cause of action and stating that in his belief there is no defence to the action.

The notice of application shall set out or have attached thereto minutes of the judgment sought by the plaintiff.

The notice of application, a copy of the affidavit in support and of any exhibit referred to therein shall be served on the defendant within fourteen days from the date of issue of the notice of application. Affidavits (O. 81, r. 2A)

Order 32, rule 13(2) shall apply mutatis mutandis to all affidavits in respect of an application under this Order. Judgment for plaintiff (O. 81, r. 3)

Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the action, the Court may give judgment for the plaintiff in the action. Leave to defend (O. 81, r. 4)

4.

A defendant may show cause against an application under rule 1 by affidavit or otherwise to the satisfaction of the Court.

The Court may give a defendant against whom such an application is made leave to defend the action either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit. Directions (O. 81, r. 5)

Where the Court orders that a defendant have leave to defend the action, the Court shall give directions as to the further conduct of action. …”.

Order 81 has the same procedural objective as O. 14 of the RC 2012 in that it provides for a speedy mechanism for obtaining summary judgment without proceeding for a trial. The remedy for specific performance is enshrined in the Specific Relief Act 1950 [Act 137] and is entirely discretionary (see M Ratnavale V S Lourdenadinm Mahadevan v S Lourdenadin [1988] 2 MLJ 371). An order for summary judgment under O. 81 should only be made in a plain case and where there is no necessity for a trial (see Mawar Awal (M) Sdn Bhd v Kepong Management Sdn Bhd & Anor [2005] 6 MLJ 132).

In Woolley Development Sdn Bhd v Mikien Sdn Bhd [2008] 1 MLJ 585, the Court of Appeal held that the principles applicable for an O. 14 summary judgment are applicable under O. 81 (for the major procedural differences between O. 81 and O. 14, see Malaysian Civil Procedure 2024, Sweet & Maxwell, 2024 at p 1287).

The Defendant cited the following passage from the decision by the Supreme Court in Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400: “Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. Unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application.”.

In the instant application, no procedural issues were raised by the Defendant, rather the Plaintiff took the position that he has established a prima facie case against the Defendant whilst the Defendant retorted that this is not a fit and proper case for summary disposal as there are triable issues.

In addition, the Defendant argued that it is not equitable for the Plaintiff to seek specific performance against the Defendant as the Plaintiff has breached the SPA. The Defendant further averred that its assertions are unequivocal, precise, consistent with undisputed documents and inherently probable to warrant a trial. 1st Issue: Whether there is a triable issue in relation to the date of delivery of vacant possession of the Tower E Unit

The parties took diametrically opposed positions on this issue:

The Plaintiff asserted that the date of delivery of vacant possession of the Tower E Unit is 14.6.2018 (‘Plaintiff’s Date of VP’) on the following grounds (the supporting documents are as exhibited in the AIS): In persuading the Plaintiff to utilise the Deposit to purchase the Tower E Unit, the Defendant, through Yongye, had made the representations as set out in paragraph 12 above. These representations were later confirmed vide the Defendant’s Sales Form, Receipt No. 0338 dated 26.5.2015 signed by Ms. Roy Yang and the e-mail sent by the Defendant’s Assistant Manager, Sales & Marketing to the Plaintiff on 1.6.2015 as follows: “Unit tower F changed to tower E package remain the same like tower F as follow:- E-16-02 - RM 1,169,000.00 - 8% (remain D & E rebate) – Please confirm, - GRR is 6% only base on net price, - Tenure is fixed 5 years, no renewal, - Confirm sell back to developer at 118% on NET PRICE as we assure 3.6% capital gain per year. - No GST Please advise.”. Clause 25.3 in the SPA provides that: “Upon the expiry of fourteen (14) days from the date of a notice from the Vendor requesting the Purchaser to take possession of the said Parcel, whether or not the Purchaser has actually entered into possession or occupation of the said Parcel, the Purchaser shall be deemed to have taken delivery of vacant possession.”. In the VP Notice, the Defendant said, among others, that: “… BANGSAR TRADE CENTRE DELIVERY OF VACANT POSSESSION … We are pleased to advice that the Certificate of Fitness for Occupation (“CFO”) for your unit has been approved by Dewan Bandaraya Kuala Lumpur (“DBKL”) on 14 May 2018. … In this regard, Vacant Possession is deemed issued in 17 November 2017 when the said building is completed and ready for authorities’ inspection. Notwithstanding the above, as a gesture of goodwill for the purpose of reimbursement of your Developer Interest Bearing Scheme (“DIBS”) and commencement of the tenancy of your property, calculation of your DIBS reimbursement shall only cease on 14 May, 2018 and the rental shall commence on 14 June 2018 ie after the one month rent free renovation period. …”. The VP Notice clearly states that the rental of the Tower E Unit shall commence on 14.6.2018, after one month rent free renovation period. In line with the SA, after delivering vacant possession of the Tower E Unit to the Plaintiff, the Plaintiff as the landlord, and BW Bangsar Sdn Bhd (‘BWB’) as the tenant, had entered into a Tenancy Agreement on 14.6.2018 for the period of five years commencing from 14.6.2018 with the permitted use of the demised premises as a hotel. The monthly rental is RM5,377.40. In the letter dated 23.8.2018 (‘23.8.2018 Letter’) to the Plaintiff to address the delay in handing over the Tower E Unit to the Plaintiff, the Defendant’s Director referred to the VP Notice and stated, among others, that: “… According to our original tenancy arrangement with you, payment of rental shall commence on 14th June 2018 i.e. one month from the date of vacant possession. Meanwhile, based on the terms of the SPA, you are entitled to Liquidated Ascertained Damages (“LAD”) of RM48,028.28, computation calculated/ estimated here on a without prejudice basis, for the delay in completion of the project. The above proposals in relation to your Property is shown in the table below: Total RM 6 months rental (June 18 - Dec 18) 34,953.10 Compromised LAD 21,961.26 Balance Payable 56,914.36 …”. From the above letter, it can be seen that the Defendant itself has taken the position that payment of rental began in June 2018. Subsequently, in an e-mail dated 19.11.2018 (‘19.11.2018 E-Mail’) to the Plaintiff, the Defendant’s representative attached the statement, invoice and other documents and conveyed the Director’s proposal for payment which included the suggestion that the Guaranteed Return Rental (‘GRR’) in the sum of RM5,377.40 per month beginning from 14.6.2018 for a period of six months to be offset from the outstanding billings. On 24.1.2019, the Plaintiff had paid the sum of RM440,899.92 to the Defendant for which the Defendant issued an official receipt as payment for Progressive Billings 2 on 24.1.2019. The Plaintiff contended that the Defendant accepted this sum as the balance of the purchase price without any protest and the imposition of late payment interest. Finally, the Plaintiff issued the Put Option Notice exercising his Put Option five years after the date of delivery of vacant possession of the Tower E Unit as per the Confirmation to Buy Back dated 5.6.2015.

The Defendant insisted that the date of delivery of vacant possession is 24.1.2019 (‘Defendant’s Date of VP’) due to the following reasons: The Plaintiff’s obligation to pay the purchase price is set out in Clause 4.2 of the SPA which reads: “The Purchase Price shall be paid by the Purchaser to the Vendor by installments and at the times and in the manner as prescribed in the THIRD SCHEDULE hereto. The Vendor is not bound to commence or complete the works in the order referred to in the THIRD SCHEDULE hereto and the Purchaser shall pay the installments according to the stage of works commenced or completed as the case may be by the Vendor.”. The stipulation as to the payment of the purchase price is a fundamental term (see Ching Yik Development Sdn. Bhd. v. Setapak Heights Development Sdn. Bhd. [1997] 1 CLJ 287). The Plaintiff did not pay the purchase price in full as at the Plaintiff’s Date of VP; it was only paid on 24.1.2019. Referring to the case of Anthony @ Alexander Anak Banyan v Borneo Development Corp (Sarawak) Sdn Bhd & Ors [2011] MLJU 1354, payment of the purchase price must come first before the delivery of vacant possession. By not making full payment of the purchase price, the Plaintiff has breached a fundamental term of the SPA. The Plaintiff cannot be allowed to take advantage from his own breach against the Defendant (see Poh Geok Sing v Hb Enterprise Sdn Bhd [2006] 1 MLJ 617). The Plaintiff has not come to court with clean hands and hence, no equitable relief should be granted. The Defendant’s acceptance of the sum of RM440,899.92 is the outcome of the negotiation for global settlement between the Plaintiff and the Defendant. In the 23.8.2018 Letter and 19.11.2018 E-Mail, the Defendant explained the delay in the delivery of vacant possession. These show the Defendant’s effort in attempting an amicable settlement of all issues arising from the Tower E Unit. Both correspondence do not expressly state that the Plaintiff is entitled to take vacant possession on 14.6.2018. The 23.8.2018 Letter is marked “ON A STRICTLY WITHOUT PREJUDICE”. Moreover, in the 19.11.2018 E-Mail, the Defendant informed the Plaintiff that as a result of the Plaintiff’s failure to pay the balance of the purchase price, the Plaintiff is not entitled to liquidated ascertained damages, a claim which would have arisen in the event of late delivery of vacant possession. The Put Option can only be exercised at any time after 24.1.2024. The issuance of the Put Option Notice before that date is premature and defective. The Plaintiff is not entitled to seek an order for specific performance as the Defendant is under no legal obligation to repurchase the Tower E Unit at the agreed sale price as demanded in the Put Option Notice. The Defendant’s failure to reply to the Put Option Notice does not amount to an admission. In any event, the issue on whether it is the Plaintiff’s Date of VP or the Defendant’s Date of VP is a triable issue.

Upon careful consideration of the affidavit evidence and submissions of the parties, I was of the view that the Plaintiff has shown a prima facie case under O. 81 of the RC 2012. The correspondence from the Defendant to the Plaintiff as narrated earlier and the Defendant’s conduct tend to support the Plaintiff’s contention that vacant possession of the Tower E Unit was on the Plaintiff’s Date of VP rather than the Defendant’s Date of VP.

The 23.8.2018 Letter and 19.11.2018 E-Mail do not dispute, negate or vary the date of delivery of vacant possession of the Tower E Unit as being anything other than the Plaintiff’s Date of

Prior to the hearing of encl. 6, the Defendant had made an application in encl. 14 to expunge subparagraphs 9.3 and 9.4 of the Plaintiff’s AIR (encl. 13) wherein the 23.8.2018 Letter was marked as exhibit “CJC-10”. The Defendant argued that the 23.8.2018 Letter is a “without prejudice” communication. I had dismissed the Defendant’s application on 21.2.2025 and there was no appeal against my decision.

Moving on, I am unable to accept the Defendant’s contention that, in the 19.11.2018 E-Mail, it had informed the Plaintiff that delivery of vacant possession of the Tower E Unit is conditional upon the Plaintiff paying the outstanding purchase price of RM440,899.92. A scrutiny of the 19.11.2018 E-Mail reveals that there no such statement was made by the Defendant.

Furthermore, the Defendant acknowledged receipt of the letter from the Plaintiff’s solicitors dated 26.7.2023 enclosing the Put Option Notice, however, it did not respond to it or dispute that the Put Option Notice is premature. The defence of premature service of the Put Option Notice was not raised by the Defendant at any time before the filing of its Defence. This lends support to the conclusion that this defence is nothing more than an afterthought.

The Plaintiff’s counsel rightly submitted that the Defendant’s Date of VP is inconsistent with the undisputed contemporaneous documents. It is inherently improbable for the Defendant to rent out the Tower E Unit to BWB on behalf of the Plaintiff when the Tower E Unit has not been delivered to the Plaintiff and for the Defendant to reimburse GRR to the Plaintiff with effect from 14.6.2018 if the Tower E Unit has not been delivered to the Plaintiff on that date.

The Defendant contended that the VP Notice, 23.8.2018 Letter and 19.11.2018 E-Mail merely provides for the commencement of rental payment, which is under BWB’s obligation, and it is up to BWB to deal with the Plaintiff in the manner that BWB deems fit as it is a separate legal entity. While this may be so, the Plaintiff had averred in his AIS and AIR that, in line with the SA, the Defendant caused its related company, BWB to enter into the Tenancy Agreement and that the Defendant was responsible to rent the Tower E Unit to BWB on the Plaintiff’s behalf.

In the upshot, and based on the abovesaid reasoning and justification, the 1st Issue is answered in the negative. 2nd Issue: Whether the Defendant has waived Clause 25.1(c) of the SPA

In subparagraph 10.2 of the Plaintiff’s AIR, he averred that: “After I voiced my concern of the likelihood of the inability of the Defendant to complete the Project after a long delay, Yongye International, the Defendant's Agent, represented to me that the Defendant allowed me to settle the balance purchase price (roughly 50%) after the Said Property was completed and delivered to me. On 24.01.2019, I paid the balance purchase price of the sum of RM440,899-92 as per the computation in the Said E-mail. In compliance of the said representation, the Defendant accepted my payment without imposing any overdue interest on me. Instead the Defendant reimbursed the rent (the GRR) to me from 14.06.2018 onwards; …”.

The Plaintiff submitted that the Defendant has waived Clause 25.1(c) of the SPA and payment of the sum of RM440,899.92 on 24.1.2019 was as a result of waiver of the said Clause pursuant to the agreement between the parties as demonstrated by their conduct and correspondence as set out in subparagraph 28(a) above.

In the course of the hearing, I had posed the question to the learned counsels regarding the Defendant’s argument that Clause 31.1 of the DMC must be read as an integral part of the SPA and thus, the Defendant cannot be said to have waived Clause 25(1)(c) of the SPA. Clause 31.1 of the DMC reads as follows: “No failure or delay on the part of the Vendor in exercising nor any omission to exercise any right, power, privilege, or remedy, accruing to the Vendor hereunder upon any default, breach or omission on the part of the Purchaser shall impair any right, power, privilege or remedy or be construed as a waiver thereof or an acquiescence in such default breach or omission, nor shall any action by the Vendor in respect of any default, breach or omission or any acquiescence in any such default, breach or omission affect or impair any right, power, privilege, or remedy of the Vendor in respect of any other or subsequent default breach or omission.”.

Both counsels prepared supplemental submissions (encls. and 51). The gist of the Plaintiff’s submission and the Defendant’s response and my findings are as follows:

The Defendant did not plead Clause 31.1 of the DMC in the Defence and nor was it pleaded in the Defendant’s AIR (encl. 11). This matter was raised for the first time in the Defendant’s Submissions in Reply (encl. 46) as a defence against the argument on the Defendant’s waiver of Clause 25.1(c) of the SPA. The Defendant countered that the issue of no waiver is encapsulated in paragraph 15, encl. 11 read together with paragraphs 12, 13, 15, 16 and 17 of the Defence. These paragraphs have consistently addressed the focal point that vacant possession is conditional upon the Plaintiff’s full payment of the purchase price, in accordance with Clause 25.1(c) of the SPA. As such, the issue of non-waiver has always been a life issue. I find that Clause 31.1 of the DMC was not raised in the Defence and the Defendant’s AIR (encl. 11) at all.

The Plaintiff submitted that the nature of the DMC is reflected in Recital (H) of the SPA as follows: “(H) In order to provide for the management and maintenance by the Vendor of the Common Property (hereinafter defined) and the applicable portion of the Project (excluding the Parcel) and the peaceful enjoyment of the Common Property and occupation of the Parcel by the Purchaser pursuant to the terms and conditions of this Agreement, the Vendor and the Purchaser hereby agree to mutually be bound by the terms and conditions of the Deed of Mutual Covenants (“the Deed”) attached in the FIFTH SCHEDULE.” (see too, the Preamble to the DMC). According to the Plaintiff, under the Strata Title Management Act 2013, the DMC is basically the “House Rules” which bind all the residents for the better and efficient management and maintenance of the building. Moreover, by the time when the DMC is operational, Clause 25.1 of the SPA has been fully performed. On the other hand, the Defendant argued that Recital (H) of the SPA states that the DMC was entered into “pursuant to the terms and conditions of this Agreement”, namely, the SPA. The DMC in the Fifth Schedule to the SPA is “(To be taken read and construed as an integral part of this Agreement)”. Hence, the DMC is not a free-standing or independent document. Instead, it is contractually tied to the SPA and forms an integral part of the contractual framework agreed between the parties. This is further reinforced by Clause 35.1 of the SPA which provides that “The First, Second, Third, Fourth, Fifth and Sixth Schedules shall form part of this Agreement and shall be read, take and construed as an essential part of this Agreement.”. In my opinion, the word “hereunder” in Clause 31.1 of the DMC refers to the DMC. Hence, the Defendant cannot rely on Clause 31.1 of the DMC in advancing the argument that the Defendant has not waived its rights, powers etc. under the SPA.

It follows from the above analysis that the 2nd Issue is answered in the affirmative.

Based on the foregoing considerations, I held the view that the Plaintiff has established a prima facie case against the Defendant and this is a fit and proper case for summary disposal as there are no triable issues.

Therefore, the Plaintiff’s application was allowed with costs of RM7,000.00, subject to allocatur. Dated: 11 August 2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA (NCvC2) KUALA LUMPUR Solicitors or the Plaintiff: Cheong Su Yin (Tan Geng with her) Messrs. Tan Chap & Associates Solicitors for the Defendant: S. Kanaga Sundran (Nicole Ng Peng Ying with him)