Chang Yih Chong v Modular Construction Technology Sdn. Bhd. (BA-12BNCvC-10-03/2022)

CHOW YE AN [IDENTITY CARD NO. : 890203-08-5428]

CHEAH KHAI LIN [IDENTITY CARD NO. : 920513-07-5502]

KHOR WAI YANG [IDENTITY CARD NO. : 901010-08-6935]

LOO MEI KEE [IDENTITY CARD NO. : 861220-56-5754)

IZHAR HADAFI BIN ABDUL HALIM [IDENTITY CARD NO. : 780628-02-5183)

LEE HAW JING [IDENTITY CARD NO. : 830322-05-5323)

TAN SOKE CHIUN [IDENTITY CARD NO. : 840607-05-5764)

YAP WEN KWONG [IDENTITY CARD NO. : 961008-14-5857)

CHOO CHUN LIM [IDENTITY CARD NO. : 870814-56-5123)

CHOO CHIN YEE [IDENTITY CARD NO. : 920701-14-5352) 2

TEH YUH ZHEN [IDENTITY CARD NO. : 730514-01-5002)

CHIEW SAI WENG [IDENTITY CARD NO. : 700501-01-5743)

SONG CHEE POH [IDENTITY CARD NO. : 861122-59-5407)

ONG LOO SEE [IDENTITY CARD NO. : 910601-10-6058)

LIEW WEE HOUNG [IDENTITY CARD NO. : 811116-14-5367)

SIEW YIN LING [IDENTITY CARD NO. : 861229-56-5550)

LIM BEE CHENG [IDENTITY CARD NO. : 880715-08-6548)

LOH KIT WEI [IDENTITY CARD NO. : 890917-14-6683)

WONG CHUN FEI [IDENTITY CARD NO. : 940405-14-6041)

WONG PEI SAN [IDENTITY CARD NO. : 860806-56-5650)

ALEX KHOW PIN FONG [IDENTITY CARD NO. : 850530-14-5559)

NG SU YEE [IDENTITY CARD NO. : 871014-56-5154) ..... PLAINTIFFS [Plaintif-Plaintif memulakan dan membawa tindakan perwakilan ini, menyaman dalam kapasiti peribadi dan sebagai seorang wakil kepada kesemua dua puluh (22) Plaintif-plaintif / Pembeli-pembeli hartanah 3 dalam projek pembangunan perumahan yang dikenali sebagai “Damai Vista” menurut peruntukan undang-undang yang ditetapkan di bawah Aturan 15 Kaedah 12 Kaedah-Kaedah Mahkamah 2012] AND EUROLAND & DEVELOPMENT SDN BHD (COMPANY NO. : 936529-K) ….. DEFENDANT AND ALL WAYS BUILDER SDN BHD [COMPANY NO. : 201601041757 (1212699-X)] ….. THIRD PARTY GROUNDS OF JUDGMENT (Pre-Trial Case Management Session)

This Court has not made any decision or ruling which, in the mind of this Court, could be perceived as capable of becoming a competent subject-matter of an immediate appeal.

The subject-matter complained of in the Appellant/Defendant’s Notice of Appeal dated 26.10.2022 here is the notes of proceedings on a case management session on 26.9.2022.

During the case management session, the Plaintiffs’ counsel posed a query whether or not it is mandatory or necessary for him to call each and every plaintiff as a witness to testify on each and every issue at the full trial. In response to such query, this Court stated that it was not aware of any law which makes it mandatory or necessary for him to call each and every plaintiff as a witness to testify on each and every issue at the full trial, though a fact which is only within the personal knowledge of a particular plaintiff (and not within the personal knowledge of another person) and which is an essential ingredient to his cause of action and his claims for damages or quantum thereof ought to be testified by that particular plaintiff as a witness. 4

After that, the Plaintiffs’ counsel informed this Court that he would be calling three (3) of the Plaintiffs as witnesses on liability issues and all the twenty-two (22) Plaintiffs as witnesses on their respective damages and quantum thereof. On the part of the Defendant’s counsel, he informed this Court that he would be calling two (2) witnesses for the Defendant on liability and quantum issues in the present case.

Upon such notification by the Plaintiff’s counsel, this Court recorded on 26.9.2022 during the pre-trial case management that (a) the Plaintiffs would call three (3) Plaintiffs as witnesses on liability issues and all the Plaintiffs as witnesses on their respective damages and quantum thereof; (b) the Defendant would call two (2) witnesses; and (c) a specific date was fixed for filing and exchange of Witness Statements on liability issues.

Dissatisfied with the said recorded notes items of the pre-trial case management, the Plaintiff has appealed against the same.

No draft Order was prepared or extracted regarding the items in the said case management session as this Court has not made any judgment, order, decision or ruling at the said case management session.

O.34 r.2(2) of the Rules of Court 2012 provides as follows: “(2) At a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including—

………;

the period within which the parties have to exchange and file their list of witnesses; 5

the period within which the parties have to exchange and file witness statements of all witnesses who may give evidence at the trial;

whether the number of witnesses shall be limited and whether the evidence-in-chief of the witnesses specified be each limited to a single witness statement;

the mode in which the evidence-in-chief shall be given by any witness from whom a party is unable on sufficient cause being shown to obtain a witness statement and the manner in which such evidence shall be disclosed to the other parties prior to the trial;

whether an order should be made limiting the number of expert witnesses;

whether the evidence-in-chief of each expert witness should be set out in a single witness statement; …..

the period within which objections to the contents of the witness statement or other evidence of a witness shall be taken; and

an estimate of the length of the trial and the date for trial”

O.34 r.1 confers much power upon the Court to issue pe-trial case management directions “to secure the just, expeditious and economical disposal of the action or proceedings”: O. 34 r.2(2). The powers listed in items (a) to (t) of O.34 r.2(2) are the express powers conferred upon the Court to case manage in order to the just, expeditious and economical disposal of the action or proceedings. The word “including” in the opening part of O.34 r.2(2) implies that the expressly-listed powers are non-exhaustive examples of such powers.

The importance of case management directions for facilitating the attainment of the main policy and objective of ROC 2012 of securing just, expeditious and economical disposal of the action or proceedings is further underpinned by the disciplinary and punitive powers conferred by O.34 r.2(3) which provides that “The Court, having given directions under rule 2(2) or rule 3 may either on its 6 own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit”.

Even in the situation where the causes of action are between the plaintiffs and the defendant, a separate trial of the causes of action may be ordered by the Court. This is expressly stipulated in O.15 r.5 of the ROC 2012 regarding joinder of causes of action which provides as follows: “Court may order separate trials (O. 15, r. 5)

(1) If claims in respect of two or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if two or more plaintiffs or defendants are parties to the same action, and it appears to the Court that the joinder of causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient.

If it appears on the application of any party against whom a counterclaim is made that the subject matter of the counterclaim ought for any reason to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient.” Application of the legal principles to our present case

In view of the fact that this Court did not make any judgment, order, decision or ruling at the said case management session, it is not necessary to conclude whether this Court has made a judgment, order, decision or ruling at the said case management session which are permitted by or justified by the abovementioned court rules.

As the Defendant has raised this matter by way of its Notice of Appeal, this Court should also discuss the hypothetical situation where a court has, during the case management session, made a ruling regarding the number of witnesses, and the legal consequences thereof. 7 Observation on hypothetical situation of any ruling made as to the number of witnesses Features of the present case

In the present case, there are twenty-two (22) Plaintiffs who were purchasers of 16 units of residential properties in the same development project carried out by the Defendant-developer.

All the Plaintiffs have the similar cause of action and similar reliefs and heads of claims against the same Defendant-developer in respect of the same type of residential development project involving the Schedule H Sale and Purchase Agreements. The amounts of the Plaintiffs’ quantum of damages are, however, different.

On liability issues, all the Plaintiffs pleaded and relied upon the same facts to justify their case of rescission of their respective Sale and Purchase Agreements.

When the Plaintiff’s counsel at the pre-trial case management session on 26.9.2022 raised a query as to whether or not it is mandatory or necessary for him to call each and every plaintiff as a witness to testify on each and every issue at the full trial. In response to such query, this Court stated that it was unaware of any law which makes it mandatory or necessary for him to call each and every plaintiff as a witness to testify on each and every issue at the full trial, though a fact which is only within the personal knowledge of a particular plaintiff (and not within the personal knowledge of another person) and which is an essential ingredient to his cause of action and his claims for damages or quantum thereof ought to be testified by that particular witness.

After that, the Plaintiffs’ counsel informed this Court that he would be calling three (3) Plaintiffs as witnesses on liability issues and all the Plaintiffs as witnesses on their respective damages and quantum thereof. On the Part of the Defendant’s counsel, he informed this Court that he would be calling two (2) witnesses for the Defendant on liability and quantum issues in the present case.

Upon such notification by the Plaintiff’s counsel, this Court recorded on 26.9.2022 during the pre-trial case management that (a) the Plaintiffs would call three (3) Plaintiffs as witnesses on liability issues 8 and all the Plaintiffs as witnesses on their respective damages and quantum thereof; (b) the Defendant would call two (2) witnesses; and(c) fix the date for filing and exchange of Witness Statements on liability issues.

At the pre-trial case management session, this Court did not exercise any of its powers under O.34 r.2(2) to limit any party’s number of witnesses to be called. What this Court recorded was merely what the parties informed this Court as to the number of witnesses they wanted to call on liability issues and on quantum issues in the present case. Case management powers under O.34 r.2(2)

Even if this Court had issued a case management direction to limit or specify the number of witnesses to be called on the common issues on liability, it would still be within the ambit of O.34 r.2(2)(n) of ROC 2012.

In the absence of a specific direction of the court to limit the number of witnesses to be called pursuant to O.34 r.2(2) of ROC 2012, a litigant has no right to dictate or demand that the other party must call certain number of witnesses or which persons should be called by the plaintiffs as their witnesses to testify at the full trial.

Neither can a defendant compel or demand that every plaintiff in a suit with multiple plaintiffs must be called at the full trial to testify on every issue including issues common to the plaintiffs.

Likewise, it is not for the plaintiff to dictate or demand that every defendant must testify as a witness or which persons should be called by the defendant as witnesses at the full trial.

The number and identities of witnesses which the respective parties want to call as witnesses at the full trial are left to the parties themselves, subject to the Court’s discretion under O.34 r.2(2) as to the number of witnesses in order to secure just, expeditious and economical disposal of civil suits. After having been served with the List of Witnesses, if the opposite party desires to call a particular person (including a co-plaintiff left out from the Plaintiffs’ List of Witnesses) as a witness, then the opposite party may issue subpoena to compel the attendance of such person. In a situation where a party or a particular person is not called as a witness, the 9 legal consequence (if any) of the absence of such a party or person as witness can be addressed by the parties at the closing submissions after the close of the respective parties’ cases subsequent to the close of the oral evidence at the full trial. Representative action

Limited number of plaintiffs giving evidence at the full trial should not be objectionable in a representative action.

In our present case, the representative action and capacity of the Plaintiffs and each of them are expressly stated in the title to the action in the writ and the statement of clam here.

Order 15 Rule 12(1) ROC permits a representative action to be brought as long as the plaintiffs are a class of persons with common interest and common grievances. It provides as follows: "(1) Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in r. 13, the proceedings may be begun and, unless the Court otherwise orders, continued by or against any one or more of them as representing all or representing all except one or more of them."

To sustain a class action, it is not necessary that all the plaintiffs’ reliefs and damages be the same. This principle was laid down by the Federal Court in Eh Riyid v. Eh Tek [1976] 1 LNS 25; [1976] 1 MLJ 262b in the following words: "In a representative action the plaintiff is the self-elected representative of himself and others. He does not have to obtain the consent of the other persons whom he purports to represent, and they are not liable for costs, though by estoppel and res judicata they will be bound by the result of the case - see Markt & Co Limited v. Knight Steamship Company Limited [1910] 2 KB

The requisite of a representative action is that the persons who are to be represented must have the same or common interests as the plaintiff in one and the same cause or matter, although it may result in the case of each of them in different measure of relief - (see Markt & Co Limited v. Knight Steamship Company Limited ), or relief common to all of them - (see Beeching v. Lloyd 3 Drew 227)." 10

An illustrative example can be seen from the facts of Maju Puncak Bumi Sdn Bhd v. Chng Han Keong [2019] 8 AMR 625. In that case, the defendant sold service apartments to the plaintiffs and thereafter rented the units from the owners. A representative action was brought by the plaintiff and 137 others who were the owners of the serviced apartments to recover arrears of rental from the defendant. The plaintiff then applied for summary judgment. One of the issues raised by the defendant to oppose the application was whether the action could be proceeded with as a representative action as the plaintiffs had separate agreements with the defendant. The trial judge held that this did not constitute a triable issue. In affirming the decision of the trial court, Justice Badariah Sahamid JCA in the Court of Appeal held: "[38] There are similar authorities where a representative action by purchasers has been held to be suitable where the claims are in respect of common interests. In Cheong Kok Khuen and Ors v. Kolektra Recreation Sdn Bhd [2010] 4 MLRH 913, the representative action was filed by the Plaintiff and 135 purchasers against the developer for a breach of a term in the Deed of Mutual Covenants entered into between the Developer and the 136 purchasers. In the case of Voon Keng & Ors v. Sykt Muzwina Development Sdn Bhd [1990] 3 CLJ (Rep) 329; [1990] 2 MLRH 358; [1990] 3 MLJ 61, the Plaintiff had filed a representative action on behalf of the purchasers including himself against the Developer to claim for agreed liquidated damages in respect of sales and purchase agreements with different dates and where the claims are for different amounts due. The High Court held as follows: "In the circumstances of the present case, the plaintiffs were members of the same class, had a common grievance and that the relief sought was in its nature beneficial to all whom the plaintiffs represented and thus the representative action could continue although the amounts due to each of them may well be different in view of the different dates of the sale and purchase agreements."

In another similar case of Lim Pei Pei & 54 Others v. Maju Puncak Bumi Sdn Bhd [2019] 1 LNS 52 the plaintiffs called only 3 witnesses at the full trial although there were 55 plaintiffs, and after the full trial the High Court awarded judgment in favour of the 55 plaintiffs collectively. 11

The ROC 2012 provisions thus allow numerous persons with common interest to be included as plaintiffs in a representative action. In Maju Puncak Bumi Sdn Bhd v. Chng Han Keong there were 138 plaintiffs in the representative action. It is unimaginable that the law would make it mandatory or compulsory that each and every one of the numerous plaintiffs in a representative action must testify as a witness at the full trial or must affidavit an affidavit-in-support of his/her application for summary judgment. Summing up

In the premises this Court holds that there is nothing irregular or improper for this Court to record the pre-trial case management proceeding as per what have been recorded on 26.9.2022. Dated this : 15th November 2022. Signed ….............................................................. TEE GEOK HOCK JUDICIAL COMMISSIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors:

For the Plaintiffs : Shelbie Diana Anak Jotem Messrs Lui & Bhullar (Kuala Lumpur)

For the Defendant : Johan Taing Chee Fae Tetuan Shu Yin, Teh & Taing (Subang Jaya)

For the Third Party : Lee Jing Yao Messrs Kevin & Co. (Kuala Lumpur)