Cheah Ting Feng v Lumayan Indah Sdn Bhd (WA-22NCvC-483-08/2023)

1 PAVILION PROPERTY CONSULTANCY SDN. BHD. (Company No. 201101000369 [928503-A]) ...DEFENDANTS GROUNDS OF JUDGMENT

This is an action arising from the purchase of fifty-one (51) residential units at the development known as Banyan Tree Signatures Pavilion Kuala Lumpur ("BTKL") located in the heart of the city. The Plaintiff, Cheah Ting Feng, a Chinese national, purchased the 51 units from the 1st Defendant, Lumayan Indah Sdn Bhd, a property developer, pursuant to 51 Sale and Purchase Agreements ("SPAs") all dated 18th April 2019, at a total consideration of RM110,000,040.00. The 2nd Defendant, 1 Pavilion Property Consultancy Sdn Bhd, is a sales and marketing company involved in the marketing of properties under the Pavilion brand.

The Plaintiff commenced these proceedings in August 2023, claiming that he was induced into purchasing the 51 units by fraudulent and/or negligent misrepresentations made by the Defendants to the effect that the units could be used for short-term rental or hotel-style operations. The Plaintiff also claims that the 51 units were constructed in material deviation from the building plans approved by Dewan Bandaraya Kuala Lumpur ("DBKL"), thereby rendering the SPAs void for illegality. The Plaintiff further alleges breach of contract arising from the same non-compliance. The reliefs claimed by the Plaintiff via their Statement of Claim is as follows:- a)A declaration that all the 51 Sale and Purchase Agreements between the Plaintiff and the 1st Defendant all dated 18.4.2019 has been validly rescinded and/or void;Alternativelyb)Rescission of the 51 Sale and Purchase Agreements between the Plaintiff and the 1st Defendant all dated 18.4.2019;c)Repayment of the purchase price in the sum of RM110,000,040.00;d)General Damages;e)Aggravated and/or Exemplary Damages;f)An order for a declaration that the Defendants are jointly and severally liable to make payments of any sums that are due to be payable to the Plaintiff;

The Defendants deny all three claims. They contend that no representations of the nature alleged were ever made. They also contend that the units are now fully compliant with the latest DBKL approved plans as at 18th March 2026 and that any regulatory deviation does not render the SPAs void. They finally contend that in any event, the Plaintiff affirmed the SPAs by his conduct after the purported rescission.

The matter proceeded for full trial on $ 1 0^{th} $ October 2025, $ 1 7^{th} $ November 2025, $ 1^{st} $ December 2025 and $ 3 0^{th} $ March 2026 whereby the following six (6) witnesses testified: DateWitnessWitness Statement/Affidavit10.10.2025Dato' Cheah Ting FengPW1WS-PW1Ms. Chenesc(Eng Shiong Cheng)DW1WS-DW117.11.2025Dato' Lee Whay HoongDW2WS-DW201.12.2025Mr. Zamizi bin ZakariaPW2Dato' Lee Whay HoongDW2WS-DW2Ms. Low Ai LingPW3P2Mr. Steven TangDW3D430.03.2026Mr. Zamizi bin ZakariaPW2Dato' Lee Whay HoongDW2WS-DW2

I will proceed to herein below set out the background facts, the applicable law, the issues that require determination, the evidence adduced at trial, the rival contentions as per the written submissions and my analysis of the same with a view of deciding if the Plaintiff should succeed in his claim.

The 1 $ ^{st} $ Defendant is a company engaged in property development. It is the developer of BTKL, a mixed development comprising residential units (the "Residences") and a hotel managed under a strategic collaboration with the globally recognised hospitality brand, Banyan Tree. The 2 $ ^{nd} $ Defendant is a separate legal entity engaged in property sales and marketing activities in relation to the Pavilion brand, and was engaged by the 1 $ ^{st} $ Defendant as a sales and marketing contractor for the BTKL development.

The Plaintiff is a Chinese national with extensive business experience. His evidence was that in or around November or December 2018, he visited the property gallery of BTKL and met with a representative of the $ 2 ^{n d} $ Defendant by the name of Eng Shiong Cheng (DW1). He claims that DW1 made various oral representations to him to induce him to purchase properties in the development. The Plaintiff avers that these representations included assurances that he could immediately operate a short-term rental or hotel-style business upon completion of his purchase.

It is not disputed that on 18th April 2019, the Plaintiff entered into the 51 SPAs with the 1 $ ^{st} $ Defendant for the purchase of the 51 units at the total consideration of RM110,000,040.00. Contemporaneously with the execution of the SPAs, the Plaintiff also executed Deeds of Mutual Covenants ("DMCs") in respect of each of the 51 units. The DMCs expressly stipulate, at Schedule E Clause 1.1(a), that the parcel "shall only be used for residential purposes and for no other purpose". The SPAs themselves contain an entirety of agreement clause at Clause 32, providing that the SPAs and DMCs supersede all prior proposals, negotiations and understandings between the parties whether written or oral.

The Plaintiff paid the full purchase price. Vacant possession of the 51 units was delivered by the $ ^{1st} $ Defendant between July 2019 and August 2020. Following delivery of vacant possession, the Plaintiff proceeded to operate a short-term rental business from the 51 units.

By letter dated $ 5^{\mathrm{th}} $ January 2023, the building management of BTKL informed the Plaintiff to cease short-term rental operations, on the basis that the parcels are for residential purposes only. The $ 1^{\mathrm{st}} $ Defendant similarly issued a letter dated $ 17^{\mathrm{th}} $ January 2023 demanding that the Plaintiff immediately cease short-term rental activities.

The Plaintiff and the Defendants then exchanged correspondence. On 21st August 2023, the Plaintiff's solicitors wrote to the Defendants alleging misrepresentation and, for the first time, raised the issue of purported illegality arising from an alleged deviation between the units as built and the plans approved by DBKL on 21st February 2018. The Plaintiff purported to rescind the 51 SPAs and demanded a refund of the full purchase price of RM110,000,040.00.

Notwithstanding the Plaintiff's purported rescission, the Plaintiff has at all material times continued to possess and utilised the 51 units for his short-term rental business. The Plaintiff expressly admitted this under cross-examination and admits that he continues to do so until this day as a manner of mitigation. Further, it is not disputed that between 2024 and 2025, the Plaintiff's solicitors took active steps to perfect the transfer of title to 33 of the 51 units into his name, including writing to the $ ^{1st} $ Defendant's solicitors in September 2024, December 2024 and January 2025 for the purpose of completing the title transfers.

The Plaintiff commenced the present Suit on 28th August 2023. After the initial completion of trial on the 1st December 2025, the Plaintiff applied to reopen his case on the basis of new evidence, to wit, evidence of penal notices by DBKL posted on all his 51 units that he discovered only on 2nd December 2025. This Court granted the application as the issue of those notices could possibly have a bearing on the issue of illegality. The further trial date to accommodate the reopening was held on 30th March

Relevantly, at such trial date of $ 3 0^{th} $ March 2026, it was revealed that the $ 1^{st} $ Defendant had on $ 1 8^{th} $ March 2026 obtained approval from DBKL for a new set of amended building plans (the "Latest Approved Plans") in relation to the 51 units, which DBKL confirmed regularised the approvals for the 51 units. As such, as at the date of the conclusion of trial, the Plaintiff's 51 units complied with the amended building plans/latest approved plans.

Subsequent to filing this proceedings, the Plaintiff has also commenced separate legal proceedings against the Management Corporation in the High Court seeking inter alia a declaration that he be permitted to continue with short term rentals of the 51 units. That case is currently pending in a different Court.

It is clear that the Plaintiff's case is confined to three causes of action: i. misrepresentation (whether fraudulent, or in the alternative negligent); ii. illegality arising from alleged non-compliance with the approved building plans; and iii. breach of contract.

The agreed issues to be tried, as set out in the Issues to Be Tried marked as [D] are as follows:-

Whether the $ 2^{n d} $ Defendant is the agent of the $ 1^{s t} $ Defendant for the marketing and sale of the development known as Banyan Tree Signatures Pavilion Kuala Lumpur (said development)?

Whether the Defendants had represented to the Plaintiff that the 51 units in the said development can be used for short term rental business purposes?

If such representative are found to have been made, whether based on the representations given by the Defendants, the Plaintiff was induced into purchasing the 51 units?

If such representations are found to have been made, whether the provisions of the Sale and Purchase Agreements and Deeds of Mutual Covenants signed by the Plaintiff in any event supersede such representations?

If such representations are found to have been made, whether they are false and made fraudulently or negligently?

Whether they is a material difference between the floor and layout plans found in the 51 Sales and Purchase Agreements (SPA) dated 10.4.2019 and in the approved building plans submitted to DBKL?

Whether the difference between the floor and layout plans in the 51 SPAs and in the approved building plans submitted to DBKL amounts to a material breach of contract?

Whether the 51 units as reflected in the layout plans of the SPAs were conducted in a manner not in accordance with the approved building plans?

If the 51 units are found to have been constructed not in accordance with the approved building plans, whether the SPAs are stricken with illegality and are therefore void?

Whether the knowledge, conduct, and/or acquiescence of the Plaintiff is such as to deny the Plaintiff from the relief sought?

In my considered view, the above issues can be distilled into two principal themes: a) the Plaintiff's allegations of misrepresentation (Issues 1 to 5); and b) the Plaintiff's allegations of non-compliance with approved plans and illegality, together with the Plaintiff's knowledge and conduct (Issues 6 to 10).

1 I will address each theme in turn.

However, before I do so, considering the various causes of action, it may be apt to at the outset set out the applicable law in relation to the issues at hand.

The law on misrepresentation in Malaysia is governed by Sections 17 and 18 of the Contracts Act 1950, read together and considered with common law principles. A claim for fraudulent misrepresentation under Section 17 requires that a party to a contract commits, with intent to deceive, an act listed under that provision. A claim under Section 18 encompasses the positive assertion of that which is not true (though believed to be true), any breach of duty that gives an advantage by misleading another, or causing a party to make a mistake as to the substance of the agreement.

At common law, the elements of actionable misrepresentation are well established. As held by the Court of Appeal in Sim Thong Realty Sdn Bhd v Teh Kim Dar [2003] 3 MLJ 460, there must be: a) an unambiguous false statement of fact (and not mere opinion or sales puff); b) the statement was addressed to the party alleging misrepresentation; and c) the statement materially induced that party to enter into the contract.

It is equally trite that a party alleging misrepresentation must plead and prove, with utmost particularity and specificity, the "who, what, when, where and how" of the representation. (see the case of Pasir Bogak Indah Sdn Bhd v Ong Chin Wei & Ors [2022] MLJU 2831]) Bare assertions, unsupported by clear and cogent evidence, are insufficient. The burden of proof lies on the Plaintiff throughout, in accordance with Sections 101 and 102 of the Evidence Act 1950.

A further principle of significance is that, pursuant to Section 19(1) of the Contracts Act 1950, a contract induced by misrepresentation is voidable, not void ab initio. The right to rescind is subject to the established principles governing affirmation and election.

The starting point for the Plaintiff's illegality claim is Sections 24 and 25 of the Contracts Act 1950. Section 24 provides that the consideration or object of an agreement is unlawful only in limited circumstances, namely where it is forbidden by law, defeats any law, is fraudulent, involves injury to person or property, or is regarded as immoral or opposed to public policy. Only in such cases is the agreement void. Section 25 provides that an agreement is void only where the consideration or object (or any part thereof) is unlawful.

The Federal Court in Liputan Simfoni Sdn Bhd v Pembangunan Orkid Desa Sdn Bhd [2019] 4 MLJ 141 emphasised that courts should be slow to strike down commercial contracts for illegality. There must be a sufficient nexus between the alleged statutory breach and the contract in question before the issue of illegality can arise. This was authoritatively followed in Maple Amalgamated Sdn Bhd v Bank Pertanian Malaysia Bhd [2021] 6 MLJ 348, where the Federal Court stated that where Parliament intended contracts to be rendered void as a result of any illegality, Parliament would have been expected to have done so clearly.

Importantly, it is well established that not every breach of statute taints a contract with illegality. Where the statute merely regulates conduct and imposes penalties for non-compliance without prohibiting the contract itself, such breach does not render the agreement illegal or void. In the case of Astinas Construction & Development Sdn Bhd v Ginmit Trading Sdn Bhd [2024] CLJU 755, it was held as follows :- "[41] Our Courts have been consistent in holding that not all actions by a party to contract that violated the law would result in illegality of the said contract. Suffice to cite Beca (M) Sdn Bhd v Tan Choong Kuang & Another [1986] 1 MLJ 390 as an authority for that proposition of law, it was held by the Supereme Court then that - "...Not every breach of a statutory prohibition would render an agreement illegal or void though such breach may attract criminal penalty. The fundamental question is whether the Enactment means to prohibit the agreement. It is important that the courts should be slow to imply the statutory prohibition of agreement, and should do so only when the implication is clear. Whether an agreement is implicitly forbidden depends upon the construction of the statute, and for this purpose no one test is decisive. Persons who deliberately set out to break the law cannot expect to be aided in a court of justice. It would be a different matter when the law is unwittingly broken. (...)" [42] Although it was not the Plaintiff's case here that the SPA ought to be declared as illegal, but the legal effect the Plaintiff was trying to impose towards the Defendant's so-called illegal action is somewhat similar, in that the Defendant cannot be allowed to benefit from its own wrong. The question then is, what wrong have the Defendant committed against the Plaintiff by commencing the construction works without first obtaining approval from MBJB? [43] Based on the facts and circumstances of the instant matter, my 'straight answer to that question is 'nothing'. I am even prepared to hold further that even if such action by the Defendant may attract criminal penalty under TCPA or SDBA, there is still no sufficient nexus between the Defendant's criminal penalty and the Defendant's breach of contractual obligations in the SPA."

The focus must therefore be on whether the object or consideration of the contract itself falls within Section 24, not merely on whether there has been some regulatory noncompliance in the surrounding circumstances.

Further, where an alleged non-compliance is capable of being remedied within the applicable statutory framework, such non-compliance is curable and does not render the contract illegal (see the Court of Appeal decision in Redha Resources Sdn Bhd v Majlis Agama Islam Selangor & Ors [2020] 6 MLJ 541). Hence, once the requisite regulatory approval is obtained, any issue of non-compliance ceases to be a live issue.

Rescission is an equitable remedy and a party seeking it must come with clean hands. Any conduct inconsistent with rescission constitutes affirmation of the contract, and once a contract is affirmed, the right to rescind is irrevocably lost. Under Section 40 of the Contracts Act 1950, a party entitled to terminate a contract for breach loses that right if they signify, by words or conduct, their acquiescence in the contract's continuance.

The Court of Appeal in Johan Properties Sdn Bhd v Lee Yin Chuan & Ors [2012] 6 CLJ 14 emphasised that election is final and irrevocable and that a party cannot approbate and reprobate i.e it cannot treat a contract as subsisting and later change its mind to rescind it. This was applied in the case Lim Fang Joon v MDSA Vedro Development Sdn Bhd [2023] MLJU 376, where the High Court found that a purchaser who took vacant possession and continued to derive rental income had, by such conduct, elected to affirm the SPA, thereby extinguishing any right to rescind.

Having set out above, I will now proceed to consider the specific issues before the Court. Issue 1- Whether the $ 2^{n d} $ Defendant is an agent of the $ 1^{s t} $ Defendant?

The first issue is whether the $ 2^{n d} $ Defendant is an agent of the $ 1^{s t} $ Defendant for the marketing and sale of the BTKL development. The Plaintiff's case is that the $ 2^{n d} $ Defendant acted as the exclusive agent of the $ 1^{s t} $ Defendant, and that any representations made by the $ 2^{n d} $ Defendant's employees are binding on the $ 1^{s t} $ Defendant.

Having considered the evidence adduced in totality, I find that no agency relationship has been established between the $ 1^{\mathrm{st}} $ and the $ 2^{\mathrm{nd}} $ Defendant. The applicable legal principles are well settled. Whether or not an agency relationship exists is ultimately a question of fact, to be determined from the nature of the relationship between the parties. A relevant consideration is the degree of control exercised by one person over another, and whether the services provided form an integral part of the principal's business. (see the cases of Goodwill Division Sdn Bhd v Low Peir Yin & Anor [2019] 9 MLJ 286 and Ismail bin Hashim v Inno Concrete Technologies Sdn Bhd & Anor [2022] 7 MLJ 200).

On the evidence before me, the 2 $ ^{nd} $ Defendant was at all material times engaged by the 1 $ ^{st} $ Defendant merely as a contractor and specifically, as a sales and marketing service provider. This was not in dispute and was expressly an agreed fact between the parties before trial. In my view, the sales and marketing services of the 2 $ ^{nd} $ Defendant are not an integral part of the 1 $ ^{st} $ Defendant's core business, which is property development. There is no evidence that the 1 $ ^{st} $ Defendant exercised detailed control over the manner in which the 2 $ ^{nd} $ Defendant carried out its sales and marketing activities. The evidence of DW1 established that the 2 $ ^{nd} $ Defendant promoted and sold numerous other properties under the Pavilion Group, not merely BTKL which is inconsistent with an agency relationship.

In addition, the Plaintiff himself admitted under cross-examination that there is no document to show or that fortifies that the 2 $ ^{nd} $ Defendant is an agent of the 1 $ ^{st} $ Defendant. When pressed to identify any document evidencing such agency, the Plaintiff was unable to do so.

On the issue of ostensible or apparent authority, as raised by the Plaintiff relying on the case Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd & Ors [1993] 3 MLJ 352, I find that the facts do not support such a finding. There is no evidence that the 1 $ ^{st} $ Defendant held out the 2 $ ^{nd} $ Defendant as having authority to make representations of the nature alleged, let alone representations as to the permissibility of short-term rental operations. The letter from the 1 $ ^{st} $ Defendant dated 23 $ ^{rd} $ March 2019 regarding the special rebate was issued by the $ 1^{\mathrm{st}} $ Defendant directly through Dato' Tracey Lai, not by the $ 2^{\mathrm{nd}} $ Defendant, and does not evidence any holding out of the $ 2^{\mathrm{nd}} $ Defendant as agent.

The Plaintiff relies on Section 109 of the Evidence Act 1950 and the decision in KGN Jaya Sdn Bhd v Pan Reliance Sdn Bhd [1996] 2 CLJ 611 to contend that: i. the burden of proving the absence of an agency relationship lay upon the Defendants; and ii. an agency appointment may be implied from the conduct of the parties.

1 I have considered these submissions but find them unavailing on the facts of this case. Section 109 of the Evidence Act 1950 shifts the burden of disproving a relationship of principal and agent only where it has first been "shown" that the parties have been "acting as such".

2 In this case, no such threshold showing has been made. The Plaintiff's own admission that there is no document to establish agency is fatal to the Plaintiff's attempt to invoke Section 109. As for the implied agency argument, the Defendants did produce their own witnesses i.e DW1 and DW2, who testified directly to the nature of the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Defendants' relationship. Their evidence, which I accept, is that the $ 2^{\mathrm{nd}} $ Defendant was an independent sales and marketing contractor, not an agent. The Plaintiff's submission that the Defendants ought to have produced the contract between the 1 $ ^{st} $ and 2 $ ^{nd} $ Defendants finds no favor with me as the failure to produce a contract between two separate Defendants does not, without more, establish an agency relationship or attract any adverse inference. As held in the case of Munusamy v Public Prosecutor [1987] 1 MLJ 492, an adverse inference under Section 114(g) of the Evidence Act 1950 requires active suppression or withholding of material evidence, not a mere failure to tender a document. No such suppression has been established here. The circumstances in which Dato' Tracey Lai signed the March 2019 rebate letter on the 1 $ ^{st} $ Defendant's letterhead is fully explained by the evidence of DW2 i.e the letter was prepared on the 1 $ ^{st} $ Defendant's behalf and Dato' Tracey Lai was given authority by the 1 $ ^{st} $ Defendant specifically for the purpose of issuing that letter in the context of the commercial negotiations. It does not evidence a general holding out of the 2 $ ^{nd} $ Defendant as agent of the 1 $ ^{st} $ Defendant, nor does it clothe the 2 $ ^{nd} $ Defendant's employees with authority to make representations of the nature alleged.

The first issue is thus answered in the negative. Issue 2- Whether the Alleged Representations Were Made?

Even if the $ 2^{\mathrm{nd}} $ Defendant were the agent of the $ 1^{\mathrm{st}} $ Defendant (which I have found not to be the case), the Plaintiff has in my view failed to establish on a balance of probabilities that the alleged representations were ever made in the first place.

In this regard, the alleged representations as pleaded at paragraph 10 of the Statement of Claim are as follows: - a) that the Pavilion Group is a top three high-end branded developer in Malaysia; b) that the development would be the world's first Banyan Tree Signatures project in Kuala Lumpur with tied services; c) that the Plaintiff would be guaranteed high rental returns; d) that with the purchase of only ten units, the Plaintiff could operate his units like a hotel; e) that all units would be fully furnished according to Banyan Tree hotel room specifications; and f) that upon completion, the Plaintiff could immediately commence hotel or short-term stay operations. (hereinafter collectively referred to as the "Alleged Representations").

At the outset, I must state that the fundamental difficulty with the Plaintiff's case on the Alleged Representations is the complete and total absence of any contemporaneous documentary evidence to support or as corroboration. There is not a single email, WhatsApp message, WeChat exchange, letter, brochure or promotional material before this Court that records, reflects or supports the making of any of the alleged representations. The Plaintiff admitted this unequivocally under cross-examination, agreeing that there was nothing in any brochure or promotional material to support any of the six (6) Alleged Representations he claims were made. He further agreed that there was "nothing recorded to show that you will be guaranteed high rental returns" and that there was "nothing actually to show that the Defendants have promised you that you can use your units as a hotel like Banyan Tree".

The significance of this evidential vacuum cannot be overstated. This was not any normal transaction but one of an extraordinary scale i.e a purchase by an individual of 51 units for a total price exceeding RM110 million which was negotiated over a period of approximately five (5) months from the Plaintiff's initial visit to the property gallery in November/December 2018 to the execution of the SPAs in April 2019. Several correspondences were exchanged between the parties, including a term sheet issued by the 1st Defendant and accepted by the Plaintiff. In the Court's view, if the ability to use the 51 units for short-term rental or hotel-style operations was truly fundamental to the Plaintiff's investment decision as he claims, at a cost of no less then RM110 million, it defies commercial reality and common sense that no written record whatsoever would exist to evidence such a representation or promise.

The Plaintiff's case is one of alleged oral representations and in this regard, as observed by the High Court in the case of Muhamad Ridhwaan bin Mohamed Rafik v Regatta Maritime Sdn Bhd & Ors [2022] MLJU 2442, Malaysian Courts generally expect oral contracts to be supported by corroborative evidence such as consistent conduct of parties and documentary evidence. The total absence of such corroboration here leads to an inference that the Alleged Representations were never made.

The alleged representor, DW1, who was the Head of Sales and Marketing of the 2 $ ^{nd} $ Defendant, categorically and unequivocally denied ever making the Alleged Representations. She testified that: - a) she never guaranteed or represented that the Plaintiff would receive high rental returns on his investment; b) she never represented that the purchase of the units would entitle him to operate a hotel or any similar business; and c) she never represented that the Plaintiff could immediately start operating a hotel or short-term stay business upon completion.

1 Her testimony under vigorous cross-examination was consistent. She maintained her denials throughout. Indeed, counsel for the Plaintiff at one point during cross-examination acknowledged that DW1 had been "answering very candidly". I found DW1 to be a credible and reliable witness and I had no reason whatsoever to disbelieve her testimony.

The Plaintiff relied on the case of Choong Shin Cheong v Suruhanjaya Syarikat Malaysia & Anor [2020] 5 MLJ 523 for the proposition that credibility is not assessed solely on whether testimony was unshaken, and that the Court must weigh contemporaneous documents alongside witness evidence. I accept this proposition as an accurate statement of law. However, and with respect, its application in this case operates to the Plaintiff's disadvantage, not his benefit. When DW1's testimony denying all alleged representations is tested against the contemporaneous documents (the SPAs, the DMCs, and the March 2019 rebate letter), I find that it is DW1's version that is consistent with and corroborated by those documents. The contemporaneous record contains not a single document i.e whether a brochure, promotional material, email, WhatsApp message, or term sheet that mentions or reflects any of the alleged representations. It is the Plaintiff's testimony, not DW1's, that stands alone and unsupported. As affirmed in the case of Public Bank Bhd & Anor v Fung Shaw Yiew @ Jellfer & Ors [2024] 2 MLJ 21, where direct evidence is available before the Court, it should be preferred over mere circumstantial inference. The direct evidence here i.e the contractual documents and DW1's testimony, in my view, overwhelmingly points to the nonexistence of the Alleged Representations.

The Plaintiff's evidence, on the other hand, was internally inconsistent. For example, his own testimony contradicted his pleaded case in the Statement of Claim, where he alleged that the Alleged Representations were made "on or around early 2019". Under cross-examination however, it emerged that his initial encounter with the Defendants' representatives was in fact in or around November/December 2018 i.e earlier than what was pleaded. This inconsistency, though perhaps not fatal on its own, casts doubt on the reliability of the Plaintiff's recollection.

The Plaintiff sought to rely on certain surrounding circumstances as corroborating or supporting a conclusion that the alleged representations were made. These included the dual-key split-unit layout of the 51 units, the marketing of units as "Suite 1" and "Suite 2", the discussions about a reception lounge, and the almost RM1,000,000.00 rebate given by the $ ^{1 s t} $ Defendant. I have carefully considered each of these, and find that none of them, individually or collectively, constitute corroboration of the alleged representations.

The reception lounge is a particular focus of the Plaintiff's case. In this regard, the Plaintiff claims that the 2nd Defendant promised him that a reception lounge would be built to facilitate his shortterm rental business, and that the RM1 million rebate was compensation for the 1st Defendant's failure to deliver on that promise. Having examined the contemporaneous documents and the evidence, I do not accept this characterization of promise and compensation. The letter from the 1st Defendant dated 23rd March 2019 clearly states that the rebate was offered "in view that we are unable to accommodate your request to build a reception lounge at Level 9". The language of this letter, read plainly, records a response to a request made by the Plaintiff and not the non-delivery of a contractual promise. DW2 testified that it was the Plaintiff who had requested an office or concierge facility, and that the 1 $ ^{st} $ Defendant's response was that DBKL approval would need to be obtained. There is no document before this Court evidencing any such application ever being made.

Further, I note that the dual-key layout and the design of the units, as the Plaintiff himself acknowledged, are consistent with the SPA layout plans that the Plaintiff saw, inspected and agreed to purchase. The Plaintiff accepted under cross-examination that before signing the SPAs, he had seen all three types of units (C3, D4 and D5) and accepted the layouts thereunder. The layout of the units is not, in and of itself, evidence that the Defendants represented to the Plaintiff that short-term rental operations would be permitted.

In the Plaintiff's Written Submissions in Reply, the Plaintiff advanced a further argument that short-term rental operations constitute "residential" use within the meaning of Schedule E of the DMCs, relying on the Federal Court decision in Innab Salai & 3 Ors v Verve Suites Mont' Kiara Management Corporation [2020] 7 AMR 861.With respect, I find no merit in this contention. The Federal Court in Innab Salai was concerned with a fundamentally different question of whether the management corporation of commercial service suites could lawfully enact house rules to prohibit short-term rentals by the owners of those units. The Federal Court in that case was dealing with commercial service suites on land with a commercial express condition, and the primary issue was whether short-term rentals amount to "dealings" within the meaning of Section 70(5) of the Strata Management Act 2013. The Court there held that the arrangements between the owners and the short-term renters were mere licences (not tenancies), and that the house rule against short-term rentals was valid. Innab Salai in my considered view does not stand for the proposition that short-term commercial rental operations of a hotel-like nature satisfy the requirements of a residential-use restriction in a Deed of Mutual Covenant. To the contrary, the Federal Court in Innab Salai itself observed that common sense suggests the relevant platforms "were only intended to be vehicles for the singular activity of short-term rentals for profit", which is precisely the commercial activity that the DMC residential-use restriction is designed to prohibit. The Plaintiff is therefore incorrect in my view to characterise his short-term rental business as a form of "residential" use. The distinction between residential use and commercial short-term letting for profit is clear and unambiguous on the face of the DMC. The residential-use restriction in Schedule E of the DMCs directly forecloses the Plaintiff's intended use of the 51 units.

For all these reasons, I find that the alleged representations were not made, and as a result, Issue 2 is answered in the negative. Representations?

Having found that the alleged representations were never made, I agree with the Defendant's submission that the question of inducement does not arise. (see the case of Yap Peng Yat v Tan Seng Choo & Ors [2020] MLJU 620.) In any event, even if the alleged representations had been made, I would not have found that the Plaintiff was in fact induced by them.

The test for proving inducement was articulated by the Court of Appeal in the case of Balakrishnan a/l Devaraj & Anor v Admiral Cove Development Sdn Bhd [2010] MLJU 576 where it was held that in order to trigger an inducement, the representee must in fact rely on the representor's statement and that the representor must at the time of entering the contract have intended, or at least realised, that the statement would probably be relied upon.

On the facts before me, I find that the surrounding circumstances negate any such reliance. Such circumstances are these. The Plaintiff is, by his own evidence, a seasoned businessman who had made significant property investments before this. He negotiated this transaction over five months. The SPAs that he signed, together with the DMCs, expressly restricted the use of the units to residential purposes. A sophisticated businessman of his standing would necessarily have read, or had his advisors read the contracts he signed before committing the purchase sum of RM110 million. The notion that he would have invested this enormous sum based solely on oral representations, while simultaneously signing multiple written documents that directly contradict those representations, strains all credibility.

On this issue, the Plaintiff relies on the case of Golden Bond Sdn Bhd v Sabtra Sdn Bhd & Anor [2004] 7 MLJ 493 for the proposition that in cases of fraudulent misrepresentation, a Defendant cannot be absolved of liability simply because the Plaintiff is a seasoned businessman. I accept that proposition as a general legal principle. However, it has no application here because:

I have found that the alleged representations were never made in the first place;

even if they had been made, the question of fraudulent misrepresentation does not arise given the complete absence of any false statement; and

the Plaintiff's sophistication and commercial standing remain highly relevant not to whether fraud is excusable, but to the objective assessment of credibility and whether a person in his position could reasonably claim to have been induced to sign residential-use agreements while believing he had been orally promised the exact opposite. The sophistication of the Plaintiff does not displace these considerations, but rather, it reinforces them.

I agree with the submission of the Defendants that it is commercially inconceivable that a seasoned businessman would have been induced to invest the substantial sum of RM110 million based solely on oral representations, while signing multiple documents that contradict the alleged representations.

Issue 3 is therefore also answered in the negative. Issue 4 - Whether the SPAs Supersede the Alleged Representations?

In the event I am wrong on Issues 2 and 3, I turn now to Issue 4 and to consider the issue of whether the SPAs and DMCs in any event supersede any Alleged Representations.

The answer to this is plainly yes. The entire agreement clause in Clause 32 of the SPAs expressly provides that the SPAs and DMCs "supersede all previous proposals, negotiations and understandings whether written or oral between the Parties hereto with respect to the subject matter hereof". This clause is clear, unambiguous and comprehensive.

Further, the DMCs which the Plaintiff signed contemporaneously with the SPAs expressly stipulate at Schedule E Clause 1.1(a) that the parcel "shall only be used for residential purposes and for no other purpose". This clause directly and unambiguously contradicts the Alleged Representations. Operating a short-term rental or hotel business is plainly not a residential purpose. No reasonable person would equate commercial short-term rental operations with residential use.

This is consistent with the analogous facts in the case of Palikota Sdn Bhd & Anor v Valentino Koh Jiunn Kiat [2024] MLJU 2920, where the High Court there similarly found it incredulous that a purchaser would have executed documents limiting use to residential purposes if he had indeed been orally assured that short-term commercial rentals were permitted.

Further, by virtue of the parol evidence rule enshrined in Sections 91 and 92 of the Evidence Act 1950, no oral evidence may be admitted to contradict, vary or add to the express terms of the written contracts. As held in the case Macronet Sdn Bhd v RHB Bank Sdn Bhd [2002] 3 MLJ 11, by agreeing to the entire agreement clause, the parties intended to exclude any attempt to vary the agreement by oral agreement or statement. The Court there held as follows "My opinion is simply this. The entire agreement clause was an agreement between the plaintiffs and the defendants. In agreeing to the clause, the parties must be presumed to have known of the existence of s 92 and of the exceptions in it and to have intended what the clause intended, that is to exclude any attempt to vary the agreement by an oral agreement or statement, which attempt can only be made through the exceptions in s 92. By agreeing therefore, to the entire agreement clause, the plaintiffs agreed not to resort to any of the exceptions in s 92. They cannot, therefore, be allowed to prove the second precontractual representation or the Oral agreement and to rely on them."

Issue 4 is accordingly answered in the affirmative. Issue 5 - Whether the Alleged Representations Were False?

Since I have found that the Alleged Representations were never made in the first place, the question of whether they are false and whether they were made fraudulently or negligently simply does not arise. As such, issue 5 must be answered in the negative.

In the upshot, I find and conclude that the Plaintiff's case of misrepresentation has not been established. I now then proceed to analyse the issue of alleged non-compliance, illegality and breach. ISSUES OF NON-COMPLIANCE, ILLEGALITY AND BREACH (ISSUES 6-9) Issues 6 & 8 - The Alleged Building Plan Deviations and Differences Between the Layout Plans in the SPAs and the Approved Building Plans Submitted to DBKL

I turn now to consider and analyse the second principal theme i.e the Plaintiff's case/contention that the 51 units were constructed in material non-compliance with the building plans approved by DBKL, and that this renders the SPAs void for illegality.

The factual foundation of the Plaintiff's case is the alleged deviation between: a) the approved building plans submitted to and approved by DBKL (initially on $ 2 1^{st} $ February 2018 and subsequently amended on $ 2 1^{st} $ August 2018, hereinafter referred to as " the 2018 Amended Plans"); and b) the layout plans in the SPAs and the as-built units. In particular, the Plaintiff's case is that the 2018 amended plans showed single units, while the SPAs and as-built units reflect split dual-key units with two kitchens, two separate entrances, and with no internal access between the split units.

However, the Plaintiff's case on this issue has been fundamentally overtaken by subsequent events. The evidence adduced at the last trial date on 30th March 2026 revealed that on 18th March 2026, the 1st Defendant obtained approval from DBKL for the Latest Approved Plans, which regularise the approvals for the 51 units. This was confirmed by PW2 i.e, the DBKL officer who was subpoenaed by the Plaintiff himself. PW2 confirmed in no uncertain terms that the 51 units are now compliant with the Latest Approved Plans. PW3, the Plaintiff's own expert witness, also accepted that the latest approved plans always take precedence over earlier approved plans, and that once a new set of plans is approved, the earlier plans would have been void and is not applicable anymore.

In these circumstances, in my considered view, Issues 6 and 8 are no longer live issues. It is not disputed that there is now no material difference between the SPA layout plans, the as-built construction and the Latest Approved Plans. This Court therefore declines to make any determination on an issue that has been rendered academic. This approach finds support in the decision of the Court of Appeal in Redha Resources Sdn Bhd v Majlis Agama Islam Selangor (supra), where the Court of Appeal held that where the necessary approval had been obtained, the matter ceased to be a live issue before the Court. Issue 7 - Whether Such Difference Amounts to a Material Breach of Contract ?

I next consider whether, even if there were differences between the SPA layout plans and the 2018 Amended Plans (which I have found to be academic in light of the Latest Approved Plans), such differences would amount to a material breach of contract.

For a breach to be material, in the sense of entitling the innocent party to terminate or rescind the contract, the term breached must be a fundamental term going to the root of the contract, such that a breach would make further commercial performance of the contract impossible or frustrate the whole contract (see the case of Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1996] 2 MLRA 69).

I find that compliance with the approved building plans is not a fundamental or material term of the SPAs, for the following reasons.

Firstly, compliance with the approved building plans is not even an express term of the SPAs. The entire agreement clause in Clause 32 forecloses any argument that such a term is to be implied.

Secondly, the alleged differences, at their highest, being the addition of a kitchen at point B, the absence of an opening at point C and a door at point A are minor layout features which do not affect the utility, safety or essential character of the 51 units. They do not go to the root of the bargain and do not alter the fundamental character of the units the Plaintiff chose to purchase.

Thirdly, the root of the SPAs is the purchase of the 51 units and not the construction of the 51 units in strict accordance with previously approved building plans. In the Court's view, the Plaintiff herein received exactly what he had inspected and bargained for i.e the very units with the very layouts that he agreed to purchase on an "as is where is" basis as recorded in Clause 18 of the SPAs. The Plaintiff confirmed under cross-examination that he had seen all three types of units before signing the SPAs and had accepted those layouts and agreed to purchase them on that basis.

Fourthly, and most tellingly, compliance with the approved building plans was never important to the Plaintiff in any event. As the Plaintiff himself admitted during cross-examination, he suffered no detriment whatsoever from the alleged noncompliance. The units were built, delivered and used by the Plaintiff exactly as he had seen, inspected and agreed to purchase them. The illegality complaint is, as the Plaintiff's own evidence reveals, entirely derivative of his inability to operate his short-term rental business and not of any genuine loss caused by deviations from building plans. I cannot but reach the inescapable conclusion that the alleged non-compliance issue was manufactured as a convenient excuse to terminate the SPAs, rather than as a genuine grievance arising from any actual loss.

Issue 7 is accordingly answered in the negative. Issue 9 - Whether the SPAs Are Void for Illegality?

I will proceed to now consider the Plaintiff's fundamental contention that the deviation from the 2018 Amended Plans constitutes a breach of Section 70 of the Street, Drainage and Building Act 1974 ("SDBA"), and that this renders the SPAs stricken with illegality and void under Section 24 of the Contracts Act 1950.

For the reasons that follow, I find this contention to be wholly untenable.

Firstly, and at the outset, in my view, the issue of illegality is no longer a live one. As I have discussed above, the 1 $ ^{st} $ Defendant obtained the Latest Approved Plans from DBKL on 18 $ ^{th} $ March 2026, which regularise the approvals for the 51 units. Even PW2, the DBKL officer called by the Plaintiff, confirmed during the further trial that the units are now compliant. Once regulatory approval has been obtained, any question of non-compliance ceases to be a live issue, following the decision of Redha Resources (supra) where it was held as follows:- "[93] Fortuously for D1 the CCC was obtained on the last day of the trial and hence this matter was no longer a live issue before the court. [...] [110] Moreover the issue here in the issuance of the CCC was the issue that sustained the life of the suit. Once it is admitted and accepted as evidence, there is no more live issue for the court to pronounce further save for antecedent breaches and the proof of damages. [111] As was observed in Ho Min Choo & Anor v Jutamo Sdn Bhd [2016] MLRHU 1294: [23] When the plaintiffs decided to file a civil suit against the defendant it was ion the 29 October 2015 (approximately 9 years from the date of the delivery of vacant possession was to have taken place, ie May 2006), no explanation of any kind has been offered in this regard by the plaintiffs. By the time this case was heard before the High Court on the 5th and 6th September, 2016, the PSP (SP1), the Supervising Architect at the time had already issued the required CCC dated the 28 December 2015 based on the second approved building plan by the local authorities in 2015 which had to be submitted for approval before resumption of construction works in rehabilitating and reviving the abandoned project could recommence by the said white knight. [37] I agree with the learned counsel for the defendant that in circumstances of the case, the 'living issue' principle applies. There arises no necessity for the declarations sought when those matters are already not in dispute. There are no issues for determination since those issues had been superseded by the issuance and delivery of the CCC and CF respectively to the plaintiffs, as well as the attempted delivery of vacant possession by the defendant which would have happened but for the plaintiffs unreasonable refusal to accept the keys to the said house in which case in the circumstances the defendant could not be faulted. (Emphasis added)."

Secondly, and more fundamentally, even if the 51 units were at some point constructed otherwise than in strict accordance with the 2018 Amended Plans, this in itself would not render the SPAs void for illegality under Section 24 of the Contracts Act 1950.

The applicable principles are those as laid down by the Federal Court in the cases of Maple Amalgamated (supra) and Liputan Simfoni (supra). The relevant inquiry under Section 24 of the Contracts Act 1950 is whether the object or consideration of the contract and not whether the surrounding regulatory context falls within the prescribed categories of unlawfulness. The object of the SPAs is the sale and purchase of residential units. That is not forbidden by law, does not defeat any law, is not fraudulent, does not involve injury to any person or property, and is not immoral or opposed to public policy. The SPAs fall entirely outside Section 24 of the Contracts Act 1950.

In the Courts view, the Plaintiff's complaint, at its highest, is one of regulatory non-compliance in the construction of the 51 units. Such non-compliance, which is entirely separate from the object of the SPAs themselves, does not ipso facto taint the SPAs with illegality. This has been repeatedly confirmed by the Malaysian Courts. In the case of Shen Yong Engineering Works Sdn Bhd v Damai Residence Sdn Bhd & Anor [2023] MLJU 104, the High Court there expressly held, on facts substantially more serious than those before this Court (where construction had proceeded entirely without building approval), that the absence of building approvals merely attracted statutory penalties and did not render the contract void. The Court there also further noted that there is no provision in the SDBA which invalidates any sale and purchase agreement if there is no building approval for the construction work in question. Justice Wong Khian Kheong J (as his Lordship then was) held as follows: "G. Can 1 $ ^{st} $ Defendant rely on Defence (Illegality)? [41] Section 24 CA (1950) provides as follows: "24 What considerations and objects are lawful, and what not That consideration or object of an agreement is lawful, unless-

it is forbidden by a law

it is of such a nature that, if permitted, it would defeat any law

it is fraudulent

it involves or implies injury to the person or property of another or

the court regards it as immoral, or opposed to public policy. In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void." [42] I am of the view that the Defendant cannot rely on Defence (Illegality). My reasons are as follows: [...]

there is no provision in SDBA which invalidates any construction contract if there is no Building Approval for the construction work in question;

the failure of a contracting party to obtain Building Approval pursuant to SDBA for the construction work, does not ipso facto mean that the contract falls within any one of the paragraphs (a) to (e) of s 24 CA (1950) and (4) the Relevant Approvals were obtained. Hence, the Defence (Illegality) is no longer available to the $ 1^{st} $ Defendant."

The above is reinforced by the decisions in the cases of Astinas Construction (supra) and Tetap Tiara Sdn Bhd v Hatching Education Group Sdn Bhd [2024] 9 MLJ 380, which held that regulatory non-compliances capable of regularisation do not render a contract illegal or void. The legislative scheme of the SDBA does not contemplate the invalidation of private sale and purchase agreements as a consequence of non-compliance but rather, it contemplates only criminal and administrative penalties as between the developer and the local authority.

Thirdly, the Plaintiff also argues that because the SPAs contain layout plans in their appendices, the SPAs themselves are the vehicle through which the alleged illegality is perpetuated, thereby creating a sufficient nexus between the statutory noncompliance and the contracts. With respect, I reject this argument. The nexus required is between the statutory requirement and the contract, not merely between a document appended to the contract and the statutory requirement. The SDBA regulates the relationship between developers and local authorities with respect to building approvals. It does not regulate the contractual relationship between developers and purchasers in the manner that would render their sale and purchase agreements void for non-compliance.

Fourthly, the Plaintiff relies on the decision of the Federal Court in Detik Ria Sdn Bhd v Prudential Corporation Holdings Ltd & Anor [2025] 3 MLRA 544, as applied in the case of Kenny Sim Chun Wei v Kuan Chen-Fui [2026] MLJU 433, for the proposition that where a property transaction is tainted by illegality arising from non-compliance with approved building plans, the innocent party is entitled to restitution under Section 66 of the Contracts Act 1950. I note and accept the principle that Section 66 can provide a restitutionary remedy where a contract is discovered to be void. However, the threshold question which the Plaintiff must first satisfy is that the contract is indeed void. For the reasons set out above, I find that the SPAs are not void. Further and in any event, the Plaintiff was fully aware of the as-built condition of the units as he had personally inspected them before purchasing and accepted them on an "as is where is" basis. The illegality argument was deployed only after the Plaintiff found himself unable to operate his short-term rental business. He cannot now seek to invoke the protective umbrella of the innocent party.

In their Written Submissions in Reply, the Plaintiff advanced a further argument that the Defendants' conduct in procuring the 2017 CCC from their architect constituted a deliberate deception of DBKL as a public authority, and that this brings the SPAs within Section 24(b) of the Contracts Act 1950 as agreements whose object or performance would defeat any law, or within Section 24(e) as agreements opposed to public policy. The Plaintiff relied on the cases of Malayan Banking Bhd v Neway Development Sdn Bhd & Ors [2017] 5 MLJ 180 and Apex Pharmacy Holdings Sdn Bhd v Chee Chin [1984] 2 MLJ 287. I again find no favour with such submissions for the following reasons.

First, the Plaintiff's public policy argument is not pleaded. The Statement of Claim advances illegality solely on the basis of nonconformity with the 2018 Amended Plans under Section 70 of the SDBA. The public policy/circumvention argument now raised in reply is an entirely new legal basis that was not part of the pleaded case. While I am mindful of the decision in Lim Kar Beev Duofortis Properties (M) Sdn Bhd [1992] 2 MLJ 281, which recognised that Courts may take judicial notice of illegality that clearly emerges from the evidence in the course of trial, that principle applies only where facts not pleaded emerge in evidence showing clear illegality. No such facts have emerged here to support a finding that the primary object of the SPAs was to deceive DBKL. The object of the SPAs is the sale and purchase of residential units, which is a perfectly lawful object.

Secondly, the cases relied upon by the Plaintiff are plainly distinguishable. In the Malayan Banking case, the transaction itself was structured for the express purpose of circumventing the prohibition on non-natives holding native land under the Sarawak Land Code and the illegal purpose was the very object of the transaction from the outset. In Apex Pharmacy, the Respondent was not a person qualified to grant a lease and the very object of the agreement was to deceive a public authority. In both cases, the unlawful purpose was integral to, and inseparable from, the contract itself. In the present case, the object of the SPAs is the sale and purchase of residential units which was an entirely lawful purpose. The Plaintiff's allegation that the $ ^{1st} $ Defendant may have procured the CCC through an irregularity concerns a matter in the relationship between the developer and the PSP or the local authority, not the contractual relationship between developer and purchaser under the SPAs. There is no evidence that the SPAs were entered into for the purpose of deceiving any public authority. As the Federal Court confirmed in Detik Ria Sdn Bhd v Prudential Corporation Holdings Ltd (supra), the first principle that a contract entered into with the object of committing an illegal act is unenforceable depends on proof of the intent, at the time the contract was made i.e to break the law. No such intent is established on the evidence before this Court in respect of the SPAs.

Thirdly, the Plaintiff's reliance on the decision of Kenny Sim Chun Wei v Kuan Chen-Fui [2026] MLJU 433 is with respect, misplaced. As correctly highlighted in the Defendants' Submissions in Reply, Kenny Sim concerned a revenue-sharing agreement between an unregistered real estate negotiator and a registered agency i.e a contract whose very object (the sharing of professional profits with an unregistered person) was expressly prohibited by statute and could never be performed lawfully. The illegality in Kenny Sim was inherent in, and inseparable from, the very object of the contract. That is a fundamentally different situation from the present case, where the object of the SPAs for the sale of residential units is perfectly lawful, and any alleged non-compliance with building plans is peripheral to, and curable within, the applicable statutory framework. The facts in the case of Kenny Sim is therefore distinguishable and does not assist the Plaintiff.

Fourthly, the Plaintiff also invoked Section 66 of the Contracts Act 1950 and relies on the cases of Yeep Mooi v Chu Chin Chua & Ors [1981] 1 MLJ 14 and Ahmad bin Udoh & Anor v Ng Aik Chong [1970] 1 MLJ 82, and contends that as an innocent party who was unaware of the illegality at the time of contracting, the Plaintiff is entitled to restitution. Again, in my considered view, this argument fails at the threshold in that Section 66 applies only where an agreement has been "discovered to be void". I have found that the SPAs are not void. There is therefore no occasion nor reason for Section 66 to operate. Further, even if Section 66 were potentially applicable, the Plaintiff cannot in my opinion be characterised as an innocent party in the full sense as he had personally inspected and accepted the as-built units before purchase and had operated a commercial short-term rental business from the units for over three years in breach of the DMC's residential-use restriction with such illegality argument being deployed only after he was stopped from continuing that business. These circumstances would, in equity, disentitle the Plaintiff to any restitutionary remedy even if one were otherwise available. Furthermore, the HDA's own statutory scheme, which treats deviation from approved building plans as a "defect" within the defect liability regime capable of rectification, demonstrates that the legislature did not intend such deviations to result in the invalidation of the underlying sale and purchase agreement and the unwinding of all transactions.

Lastly, in relation to the allegation/contention of suppression of evidence, the Plaintiff argues and complains that the Defendants suppressed the 2017 building plans, the 2018 CCC and the existence of a new PSP (AR Lim Seng Chuan), and urged this Court to draw adverse inferences under Section 114(g) of the Evidence Act 1950. I decline to do so. The governing principle, as stated in Munusamy v Public Prosecutor (supra) and affirmed in HYT Food Industries Sdn Bhd v Elken Sdn Bhd [2011] 6 CLJ 295, is clear in that an adverse inference under Section 114(g) requires active and deliberate withholding or suppression of material evidence. Mere failure to call a witness or produce a document is insufficient.

1 In this regard, on the evidence before me:

the 2017 building plans were not in the 1st Defendant's possession as DW2 explained that the 1st Defendant was unable to locate them and sought to obtain them from DBKL, who also initially could not locate them;

(ii) Exhibit D3, the 1st Defendant's own file copy of the 2018 CCC, was produced on the very same day that PW2 tendered PW2's copy in evidence. This is entirely consistent with transparency, not suppression;

(iii) the submission of the Latest Approved Plans to DBKL during the course of proceedings was a proactive step of regularization and such conduct benefits the Plaintiff by addressing the very complaint he raised; and

(iv) the non-production of AR Ng Wai Keong was adequately explained by DW-2 in that he had completed his role as PSP years ago upon completion of the hotel development, and the Plaintiff, who bore the burden of proof, could have, but chose not to subpoena him.

2 Having considered all matters and the sequence in which this trial was conducted, I am satisfied that there was no deliberate suppression of evidence by the Defendants, and that no adverse inferences should therefore be drawn.

In conclusion, I would answer issue 9 in the negative. ISSUE OF THE PLAINTIFF'S KNOWLEDGE, CONDUCT AND ACQUIESCENCE (Issue 10)

I turn finally to consider Issue 10 which is whether the Plaintiff's knowledge, conduct and/or acquiescence is such as to deny the Plaintiff the relief sought.

Having found in favour of the Defendants on Issues 1 through 9, the Plaintiff's claim fails in its entirety. However, I address Issue 10 to provide a further, independent basis for refusing the relief sought, namely, that the Plaintiff has by his conduct affirmed the SPAs and is estopped from pursuing rescission.

It is not disputed that the Plaintiff purported to rescind the SPAs by letter dated $ 2 1^{s t} $ August 2023. However, having purportedly rescinded, the Plaintiff thereafter did the following:-

he continued to possess and utilise all 51 units for his short term rental business, which he admitted he was still operating as at the date of trial;

in September 2024, his solicitors wrote to the 1st Defendant seeking documents for the purpose of perfecting the transfer of title to units S-27-5 and S-27-6 into the Plaintiff's name;

in December 2024, his solicitors wrote to the Management Corporation's solicitors for the same purpose;

the $ 1^{\mathrm{st}} $ Defendant deposited the original strata titles and duly executed Memorandums of Transfer for 33 of the Plaintiff's units with the Plaintiff's solicitors pursuant to a letter dated $ 23^{\mathrm{rd}} $ January 2025; and

the Plaintiff has commenced separate legal proceedings against the Management Corporation seeking a declaration that he be permitted to continue with short-term rentals of the 51 units.

Each of these acts are in my view inconsistent with a genuine intention to rescind the SPAs. In particular, the active pursuit of title perfection in respect of which the Plaintiff's solicitors took positive steps on multiple occasions, well after the filing of this suit is an unequivocal affirmation of the SPAs as subsisting contracts. One does not perfect title transfers in furtherance of contracts one claims to have rescinded. With respect, the Plaintiff cannot seek to rescind the SPAs and at the same time perfect his ownership of the units under those very same agreements.

The Plaintiff sought to explain his continued occupation and operation of the units as mere mitigation of his losses pending repayment of the purchase price by the Defendants. He relies on the case of RHB Bank Bhd v Travelsight (M) Sdn Bhd & Ors [2016] 1 MLJ 175, where the Federal Court recognised that mutual restitution must accompany rescission, and that a vendor's refusal to return the purchase price cannot simply require a purchaser to surrender the property without repayment. I accept that proposition as a general principle. However, the Plaintiff's case and conduct goes far beyond mere occupation pending repayment. His active steps to perfect title transfers and his separate suit seeking to legitimise his ongoing short-term rental operations are inconsistent with any election to rescind. The former is a positive assertion of ownership under the SPAs and that the SPAs remain valid which the Plaintiff is lawfully entitled to use the units thereunder.

The Plaintiff's characterisation of his continued occupation as mitigation is further contradicted by the decision in Chan Yew Mun & Anor v Faber Union Sdn Bhd [2015] MLJU 274, where the High Court there held that purchasers who engaged an architect and carried out renovation works upon discovering an alleged breach had, by that conduct, affirmed the contract and were no longer entitled to rescind. In the present case, the Plaintiff's conduct goes considerably further in that he did not merely continue to occupy the units, but actively pursued the transfer of strata title to 33 units into his own name. A party who genuinely regards a contract as rescinded does not take positive steps to perfect title under that very contract. These acts i.e perfecting title and commencing separate proceedings to legitimise his STR operations are the exercise of proprietary rights which are only explicable on the footing that the Plaintiff regarded the SPAs as valid and subsisting. The law, as stated in Lim Lay Sooi & Anor v Merah Rubber Estates (1931) Ltd [1951] 1 MLJ 246, looks to what a party did objectively, not what he later asserts he intended. The Plaintiff cannot blow hot and cold.

By virtue of these acts, the Plaintiff has elected to affirm the SPAs. An election, once made, is final and irrevocable. The Plaintiff cannot approbate and reprobate by simultaneously retaining the benefits of the SPAs while seeking to disavow them. He is estopped from pursuing rescission.

Issue 10 is accordingly answered in the affirmative.

To summarise, on the issue of misrepresentation, the Plaintiff has failed to establish that the alleged representations were ever made. There is a complete absence of any contemporaneous documentary evidence to support the alleged oral representations, and the alleged representor, DW1, credibly and consistently denied making them. The Plaintiff's own conduct in signing the SPAs and DMCs which expressly restrict the units to residential use and supersede all prior representations is fundamentally inconsistent with his claim.

On the issue of illegality, the SPAs are not rendered void by any alleged regulatory non-compliance in the construction of the 51 units. The object and consideration of the SPAs which is the sale and purchase of residential units, are lawful. Regulatory non-compliance under the SDBA does not, as a matter of law, invalidate a private sale and purchase agreement. In any event, the alleged non-compliance has been cured by the Latest Approved Plans obtained in March 2026, and the question of illegality is no longer a live issue.

On the issue of breach of contract, there is no material breach. The Plaintiff received exactly what he inspected and bargained for. Compliance with approved building plans is not a fundamental term of the SPAs. The alleged deviation is minor and does not go to the root of the bargain. The Plaintiff has suffered no detriment from the alleged non-compliance.

In any event, the Plaintiff has by his conduct after the purported rescission affirmed the SPAs, and is estopped from pursuing any right of rescission.

For the foregoing reasons, the Plaintiff's claim based on misrepresentation, illegality and breach of contract fails on all grounds. 106 For completeness, I address the Plaintiff's prayer for aggravated and/or exemplary damages as pleaded at paragraph 44 of the Statement of Claim. The Plaintiff submits that the Defendants' conduct was malicious, high-handed and oppressive, warranting an award of such damages in the light of case authorities such as Lakshmanan Lakshmanan dan lain-lain Iwn Kumarasooria a/l Thillainayagam [2025] MLJU 3644 and Dr Chandran a/l Gnanappah v Gan See Joe [2025] 5 MLJ 216. I dismiss this prayer.

Aggravated and exemplary damages are exceptional remedies awarded only upon a finding of liability. Having dismissed the Plaintiff's primary claim in its entirety, there is no basis upon which such additional damages could be awarded. Even if liability had been established, there is no evidence before me of malicious, oppressive or unconscionable conduct on the part of the Defendants of the kind that would justify such an award. The Plaintiff's grievance, at its core, was that he was prevented from operating a short-term rental business from units that he himself had signed contracts restricting to residential use. That is not the sort of conduct that attracts exemplary or aggravated damages against the Defendants.

The Plaintiff's claim is accordingly dismissed.

As for costs, both counsel informed that neither would push for costs in light of the facts and circumstances of this case. This Court will therefore make no order as to costs.

I end this judgment with my gratitude to both counsel for their professional conduct throughout this matter and for their extensive submissions which assisted the Court. Dated : 10th July 2026 Anand Ponnudurai Judge High Court Kuala Lumpur Counsel (s): Ramesh K. Supramaniam and Lorelle Nathan (Messrs Ramesh K. Supramaniam) for the Plaintiff Joshua Teoh Beni Chris, Gooi Yang Shuh and Valerie Chung (Messrs Skrine) for the Defendants. Case (s) referred to : Sim Thong Realty Sdn Bhd v Teh Kim Dar [2003] 3 MLJ 460 Pasir Bogak Indah Sdn Bhd v Ong Chin Wei & Ors [2022] MLJU 2831 Liputan Simfoni Sdn Bhd v Pembangunan Orkid Desa Sdn Bhd [2019] 4 MLJ 141 Maple Amalgamated Sdn Bhd v Bank Pertanian Bhd [2021] 6 MLJ 348 Astinas Construction & Development Sdn Bhd v Ginmit Trading Sdn Bhd [2024] CLU 755 Redha Resources Sdn Bhd v Majlis Agama Islam Selangor & Ors [2020] 6 MLJ 541 Johan Properties Sdn Bhd v Lee Yin Chuan & Ors [2012] 6 CLJ 14 Lim Fang Joon v MDSA Vedro Development Sdn Bhd [2023] MLJU 376 Goodwill Division Sdn Bhd v Low Peir Yin & Anor [2019] 9 MLJ 286 Ismail bin Hashim v Inno Concrete Technologies Sdn Bhd & Anor [2022] 7 MLJ 200 Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd & Ors [1993] 3 MLJ 352 KGN Jaya Sdn Bhd v Pan Reliance Sdn Bhd [1996] 2 CLJ 611 Munusamy v Public Prosecutor [1987] 1 MLJ 492 Muhamad Ridhwaan bin Mohamed Rafik v Regatta Maritime Sdn Bhd & Ors [2022] MLJU 2442 Choong Shin Cheong v Suruhanjaya Syarikat Malaysia & Anor [2020] 5 MLJ 523 Public Bank Bhd & Anor v Fung Shaw View @ Jellfer & Ors [2024] 2 MLJ 21 Innab Salai & 3 Ors v Verve Suites Mont' Kiara Management Corporation [2020] 7 AMR 861 Yap Peng Yat v Tan Seng Choo & Ors [2020] MLJU 620 Balakrishnan a/I Devaraj & Anor v Admiral Cove Development Sdn Bhd [2010] MLJU 576 Golden Bond Sdn Bhd v Sabtra Sdn Bhd & Anor [2004] 7 MLJ 493 Palikota Sdn Bhd & Anor v Valentino Koh Jiunn Kiat [2024] MLJU 2920 Macronet Sdn Bhd v RHB Bank Sdn Bhd [2002] 3 MLJ 11 Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1996] 2 MLRA 69 Shen Yong Engineering Works Sdn Bhd v Damai Residence Sdn Bhd & Anor [2023] MLJU 104 Tetap Tiara Sdn Bhd v Hatching Education Group Sdn Bhd [2024] 9 MLJ 380 Detik Ria Sdn Bhd v Prudential Corporation Holdings Ltd & Anor [2025] 3 MLRA 544 Kenny Sim Chun Wei v Kuan Chen-Fui [2026] MLJU 433 Malayan Banking Bhd v Neway Development Sdn Bhd & Ors [2017] 5 MLJ 180 Apex Pharmacy Holdings Sd n Bhd v Chee Chin [1984] 2 MLJ 287 Lim Kar Bee v Duofortis Properties (M) Sdn Bhd [1992] 2 MLJ 281 Yeep Mooi v Chu Chin Chua & Ors [1981] 1 MLJ 14 Ahmad bin Udoh & Anor v Ng Aik Chong [1970] 1 MLJ 82 HYT Food Industries Sdn Bhd v Elken Sdn Bhd [2011] 6 CLJ 295 RHB Bank Bhd v Travelsight (M) Sdn Bhd & Ors [2016] 1 MLJ 175 Chan Yew Mun & Anor v Faber Union Sdn Bhd [2015] MLJU 274 Lim Lay Sooi & Anor v Merah Rubber Estates (1931) Ltd [1951] 1 MLJ 246