Chew Yew Yek v 1. Ambank (M) Berhad (BA-24-687-07/2016)

1.

PENGARAH TANAH DAN GALIAN SELANGOR …DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 63 – Notice of Appeal to Judge in Chambers) A. INTRODUCTION 4 [1] Enclosure 63 is the Plaintiff’s Notice of Appeal to the Judge in Chambers appealing against the decision of the Senior Assistant Registrar (SAR) given on 9.5.2017. B. BACKGROUND FACTS [2] The underlying facts triggering the Plaintiff in filing Enclosure 63 are as follows:

2.1 The Plaintiff (Chew Yew Yek) was a successful bidder of a piece of land held under PN 89881 Lot 72916, Bandar Baru Selayang, Daerah Gombak, Negeri Selangor (formerly known as H.S. (D) 20034, No. PT 26549, Mukim Batu, Daerah Gombak, Negeri Selangor) (“the said land") which was put for sale in a public auction conducted by Ambank (M) Berhad (1st Defendant) being the chargee to the said land.

2.2 The registered owner of the said land was a company known as SAP Holdings Berhad ("SAP"). In 1992, SAP had entered 5 into a Joint Venture Agreement (“JVA”) to develop the said land with a company by the name of Cergas Tegas Sdn Bhd (“Cergas Tegas”). The 1st Defendant had extended a bridging loan facility to Cergas Tegas to which the said land had been put as security to the said bridging loan. A charge was thereafter executed over the said land in favour of the 1st Defendant.

2.3 Cergas Tegas had however defaulted payment of the said loan. The failure of Cergas Tegas in servicing the said loan had prompted the 1st Defendant to exercise its statutory rights under the charge to initiate foreclosure proceedings to sell the said land by way of public auction. An order for sale of the land was granted to the 1st Defendant on 20.12.2010.

2.4 In the public auction conducted on 22.3.2016, the Plaintiff had successfully bid to purchase the said land at the price of RM190 million

2.5 It was set out in the Memorandum of Sale that the Plaintiff is to pay the balance of the 10% deposit amounting to RM11,860,000.00 within 7 working day and this 7 working days would lapse on 31.3.2016. Meanwhile, the balance of the purchase of RM 171,000,000.00 is to be paid by the Plaintiff within 120 days from the date of Memorandum of Sale was executed. The 120 days would lapse on 20.7.2016. The Plaintiff had duly paid the full 10% deposit of RM19 million on 30.3.2016.

2.6 Approximately three months after the Plaintiff had successfully bid for the purchase of the said land, the Plaintiff claimed that he had on 6.6.2016 conducted an official search on the said 7 land’s title at the Pejabat Tanah Gombak. Upon such search, the Plaintiff claimed that he had discovered that the Land Administrator had issued Form 7A Notice (Notice to Remedy a Breach of Condition) against the said land. According to the Plaintiff, from the endorsement appearing in the document of title, the Form 7A was registered against the said land on 6.4.2016.

2.7 In view of the Form 7A’s existence on the said land, the Plaintiff had filed Enclosure 2 (Originating Summons) seeking various reliefs which also includes extension of time to pay the balance purchase price of the said land.

2.8 Pending the disposal of Enclosure 2, the Plaintiff had also filed an application in Enclosure 5 on 20.7.2016 applying for an ex-parte injunction to restrain the 1st Defendant from terminating the Memorandum of Sale dated 22.3.2016 as well as restraining the 1st Defendant from dealing with the said land. 8 With his Enclosure 5, the Plaintiff had also filed a certificate of urgency requesting for Enclosure 5 be heard on an urgent basis. This Court had directed that Enclosure 5 be heard inter-parte and fixed it for hearing on 15.8.2016. The Plaintiff was also directed to serve Enclosure 5 on the Defendants.

2.9 On 15.8.2016, pending the decision of Enclosure 5, this Court had granted the Plaintiff an ad interim injunction against the 1st Defendant with undertaking of damages.

2.10 On 28.10.2016, when Enclosure 5 was called up for decision, the counsel for the Plaintiff had informed this Court that in view of Notice 7A being withdrawn, the matter is rendered academic, thus the Plaintiff is withdrawing prayer (3) and (4) with no order as to costs to the 1st Defendant.

2.11 This Court had then dismissed the Plaintiff’s Enclosure 5 in respect of prayers (1) and (2) with costs. This Court had also 9 ordered that any damages suffered by the 1st Defendant arising from the granting of the ad interim injunction be assessed by the Senior Assistant Registrar. This Court had further ordered that the Plaintiff’s relief in prayers (3) and (4) of Enclosure 5 be struck out with no order as to costs. The parties had also agreed that costs in respect of Enclosure 5 with regards to prayers (1) and (2) to be RM20,000.00.

2.12 Thereafter, on 24.11.2016, the 1st Defendant proceeded to file the Notice for Directions for assessment of damages (Notice for Directions - Enclosure 35). Pursuant to Enclosure 35, the Senior Assistant Registrar (SAR) gave the necessary directions regarding the conduct of hearing of the assessment of damages (Enclosure 53) and fixed the hearing date on 10.3.2017.

2.13 In the meantime, this Court had fixed Enclosure 2 for hearing on 13.2.2017. The Plaintiff later on 18.1.2017 had also filed 10 another application namely; Enclosure 41 basically applying for leave to discontinue Enclosure 2 pursuant to Order 21 rule 3 of the ROC 2012. Both Enclosures 2 and 41 were fixed for hearing on 13.2.2017.

2.14 When this case was called for hearing on 13.2.2017, the Plaintiff had informed this Court that the Plaintiff is withdrawing Enclosure 2. The parties had also informed this Court that they wish to record consent judgment as per the following terms: “By consent the Originating Summons in Enclosure 2 is withdrawn without prejudice to the parties right to address the effect of this Order in the Kuala Lumpur Writ Action, including but not limited to the right of both parties to argue whether the KL Writ Action constitutes a fresh action. The agreed costs of RM20,000 is to be paid by the Plaintiff to the 1st Defendant and no order as to costs in respect of the 2nd Defendant.” 11

2.15 This Court had accordingly recorded the consent judgment and hence Enclosure 2 was struck out with no liberty to file afresh.

2.16 When the assessment of damages was called for hearing before the SAR, the Plaintiff had objected the proceedings from being continued and raised a preliminary objection (PO) on the following ground: “In the light of the Order dated 13.2.2017 (Enclosure 54) where the main suit (Originating Summons) had been discontinued by consent of parties and further struck out by the Judge, the 1st Defendant cannot proceed with the hearing of the assessment of damages under this very same action. Once an action has been discontinued and struck out, there is nothing else to proceed further. The whole case 12 comes to an end and if there is any proceedings to be commenced a fresh action must be filed.

2.17 On 9.5.2017, the SAR dismissed the preliminary objection with costs of RM3000.00 to the 1st Defendant.

2.18 Dissatisfied with the SAR’s decision, the Plaintiff filed Enclosure 63. At the same time, the Plaintiff had also filed Enclosure 64 for stay of proceedings of the assessment of damages. C. ENLOSURE 63 THE PLAINTIFF’S CONTENTION [3] The counsel for the Plaintiff in raising the PO before the SAR had contended that in light of the Order dated 13.2.2017 (Enclosure 54) (wherein the parties had consented that the Originating Summons be discontinued and accordingly been struck out by this Court), the 1st Defendant cannot proceed with the hearing of the assessment of 13 damages under this very same action. It was also one of the Plaintiff’s counsel’s contentions that once an action has been discontinued and struck out, there is nothing else to proceed further. It is an end to the whole matter. [4] In support of her contentions, the Plaintiff’s counsel had placed heavy reliance on the decision by Suryadi J (as he then was) in the case of Solid Gold Publishers Sdn Bhd v. Chan Wee Ho & Ors [1998] 5 CLJ 748. [5] Apart from the above contentions before this Court, the Plaintiff’s counsel had also argued on a different contention that the assessment cannot proceed in toto as it was not “preserved” in the Consent Judgment which was recorded on 13.2.2017. THE 1st DEFENDANT ’S CONTENTION [6] At the outset, the 1st Defendant had objected to the Plaintiff’s Enclosure 63 and raised a preliminary objection that no appeal can 14 be filed to a judge in chambers in respect of a preliminary objection raised before a Registrar. On this contention, the counsel for the Defendant had referred this Court to Mohd Hishamudin Yunus J (as he then was) decision in the case of OCBC BANK (MALAYSIA) BHD V. STEPHEN HANSFORD SALES (M) SDN BHD & ORS [2004] 1 CLJ 51. [7] The counsel for the 1st Defendant further submitted that the Plaintiff’s contention that a fresh action has to be filed in order to assess damages suffered by the 1st Defendant as the result of the ad interim injunction is totally without merit as the application for directions for assessment was made before the Plaintiff discontinued the action. According to the counsel for the 1st Defendant, the assessment of damages proceedings initiated by the 1st Defendant is still subject to a valid and subsisting order that has yet to be satisfied. [8] It was also submitted by the counsel for the 1st Defendant that if one were to accept the Plaintiff’s logic, even an order for cost will have to 15 be enforced through a separate action. D. ANALYSIS AND THE COURT’S DECISION [9] Before this Court proceeds to determine the merits of the Plaintiff’s appeal, this Court shall first refer to the Order dated 13.2.2017 in granting leave for the Plaintiff to discontinue the action which was consented by the 1st Defendant. The Order reads as follows: “MAKA ADALAH PADA HARI INI DIPERINTAHKAN SECARA PERSETUJUAN bahawa:

Kebenaran diberikan kepada Plaintif untuk memberhentikan tindakan di sini tanpa kebebasan untuk memfailkan suatu tindakan baru dan tanpa prejudis kepada hak pihak-pihak untuk menangani kesan Perintah ini dalam Mahkamah Tinggi Kuala Lumpur, Guaman Sivil No. WA-22NCVC-835-12/2016 (“Tindakan Writ”), 16 termasuk tetapi tidak terhad kepada hak kedua-dua pihak untuk berhujah sama ada Tindakan Writ merupakan suatu tindakan baru;

Saman Pemula (Lampiran 2) dibatalkan;

Kos sebanyak RM20,000.00 dibayar oleh Plaintif kepada Defendan Pertama; dan

Tiada perintah mengenai kos antara Plaintif dan Defendan Kedua. [10] Firstly, this Court must acknowledge that the Notice for direction for assessment of damages (Enclosure 35) was filed by the 1st Defendant very much earlier before the parties entered into consent order. Similarly the directions (on the manner how the inquiry to assess damages suffered by the 1st Defendant arising from the ad interim injunction to be conducted) was given by the Registrar prior to 17 the discontinuance of the suit. [11] Hence, it is not in dispute that the assessment proceeding had already been initiated by the 1st Defendant long prior to the recording of the consent order. Then it cannot be right to say that the agreement to discontinue Enclosure 2 would have the same effect on the assessment proceedings, after all there was no order for stay or discontinuance of the same. [12] Now, this Court must also emphasize that the assessment of damages inquiry initiated by the 1st Defendant is premised on an undertaking given by the Plaintiff to this Court in allowing the Plaintiff’s application for an ad interim injunction pending the Court’s decision in Enclosure 5. This Court must reiterate that in his Enclosure 5, the Plaintiff sought for the following orders:

Satu perintah terhadap Defendan Pertama agar tarikh pembayaran baki harga yang dikehendaki di bawah lelongan 18 bertarikh 22.O3.2016 untuk Hartanah yang dipegang melalui hakmilik ON 89881, Lot 72916, Bandar Selayang, Daerah Gombak, SeIangor ('Hartanah tersebut') melalui Prosiding Perlaksanaan No. 38-976-10/2015 Mahkamah Shah Alam digantung sehinga penyelesaian tindakan ini;

Satu perintah untuk menghalang Defendan Pertama, kakitangan, agen dan/atau penamanya daripada membatalkan Perjanjian Lelong Awam bertarikh 22.03.2016 atau melupuskan Hartanah tersebut atau mengambil apa-apa tindakan atau gagal bertindak dalam cara yang memprejudis hak-hak Plaintif atau melakukan apa-apa - atau gagal melakukan apa-apa yang mempunyai akibat mengecewakan, melengahkan atau menghalang niat perenggan (a) di atas;

Satu perintah untuk menghalang Defendan Kedua, kakitangan, agen dan/atau penamanya daripada membatalkan Perjanjian Lelong Awam bertarikh 22.03.2016 19 atau melupuskan Hartanah tersebut atau mengambil apa-apa tindakan atau gagal bertindak dalam cara yang memprejudis hak-hak Plaintif atau melakukan apa-apa - atau gagal melakukan apa-apa yang mempunyai akibat mengecewakan, melengahkan atau menghalang niat perenggan (a) di atas;

Satu perintah terhadap Defendan Kedua bagi menghalang Defendan Kedua, kakitangan, agen dan/atau penama Defendan Kedua daripada meneruskan prosiding di bawah Notis 7A bertarikh 17.03.2016 sehingga pelupusan tindakan ini;

Kos, dan

Apa-apa relif selanjutnya yang difikirkan suaimanfaat oleh Mahkamah ini. [13] While in his Enclosure 2 (the Main Suit), the Plaintiff had applied for the following reliefs: 20 “(a) Satu perintah bahawa penyelesaian Perjanjian Lelong Awam digantung sehingga Hartanah tersebut boleh dipindahmilik kepada Plaintif bebas daripada bebanan dan risiko perampasan;

Satu perintah bahawa pembayaran baki harga belian di bawah Perjanjian Lelong Awam bertarikh 22.03.2016 digantung sehingga penyelesaian guaman ini;

Satu perintah untuk menghalang Defendan Pertama, kakitangan, agen dan/atau penamanya daripada membatalkan Perjanjian Lelong Awam bertarikh 22.03.2016 atau melupuskan Hartanah tersebut atau mengambil apa-apa tindakan atau gagal bertindak dalam cara yang memprejudis hak-hak Plaintif atau melakukan apa-apa - atau gagal melakukan apa-apa - yang mempunyai akibat mengecewakan, melengahkan atau menghalang niat perenggan (a) dan (b) di atas; dan, 21

Satu perintah untuk menghalang Defendan Kedua, kakitangan, agen dan/atau penamanya daripada membatalkan Perjanjian Lelong Awam bertarikh 22.03.2016 atau melupuskan Hartanah tersebut atau mengambil apa-apa tindakan atau gagal bertindak dalam cara yang memprejudis hak-hak Plaintif atau melakukan apa-apa - atau gagal melakukan apa-apa - yang mempunyai akibat mengecewakan, melengahkan atau menghalang niat perenggan (a) dan (b) di atas;”. [14] As the Main Suit (Enclosure 2) had been withdrawn by the Plaintiff with the consent of the 1st Defendant, the Plaintiff’s counsel had urged this Court to read a further term into the Consent Order that the parties had also consented to discharging the undertaking by the Plaintiff with regard to the issuance of the ad interim injunction order by this Court. 22 [15] This Court must say this; it cannot be a correct proposition that just because the Plaintiff had discontinued its Main Suit and the 1st Defendant had consented to the discontinuation of the Main Suit by the Plaintiff, the undertaking of damages given earlier for the granting of an ad interim injunction by the Court becomes ineffective and is no longer valid and subsisting for an assessment of damages inquiry to be carried out. [16] In this instance, this Court must also point out and emphasize that what has been discontinued and struck out was the Plaintiff’s Main Suit in Enclosure 2. In so far as to the undertaking of damages given by the Plaintiff is concerned (warranting the issuance of an ad interim injunction to restrain the 1st Defendant to deal with Memorandum of sale and restraining the 1st Defendant from dealing with the said land) the ad interim injunction order together with the undertaking of damages by the Plaintiff is still intact and subsisting. It is trite law that unless an order is set aside or stayed, it remains valid and enforceable. 23 [17] It is also trite that a Consent Judgment is in effect an “agreement” between the parties as recorded by the Court. In the case of Lee Lim Huat v Yusuf Khan bin Ghows Khan [1997] 2 MLJ 472, the Court of Appeal has held inter alia that a consent judgment is in truth an agreement reached between the parties to an action which the court records as an order. As in the case of any other agreement, the primary function of a court is to ascertain the true intention of the parties. Thus, a consent judgment shall be interpreted like any other agreement or contract. It is canon of the law of interpretation that the terms cannot be imported into any agreement which have not been agreed to specifically by the parties nor are absolutely necessary to give effect to the agreement. [18] In the present case, there is absolutely no term in the “agreement” between the Plaintiff and the 1st Defendant that stipulates that the 1st Defendant would not pursue the inquiry into damages as ordered by the Court. 24 [19] The Plaintiff in the present case contended that if in case the Plaintiff withdraws or discontinues the main action in Enclosure 2 with the consent and agreement of the Defendant, thus the same discontinuance would relinquish the Plaintiff’s undertaking for damages. On this ground, the Plaintiff argues that the Defendant cannot proceed with its assessment of damages proceedings. [20] It is this Court’s finding that the Plaintiff’s contention here cannot at all be accepted as such reading of the consent judgment would cause grave injustice against the Defendant as the Plaintiff himself discontinued his main action. Nevertheless, notwithstanding the discontinuance of the main action, the Plaintiff himself has indeed out of his own will and volition has undertaken to compensate the Defendant of losses and damages incurred against the Defendant resulting from the issuance of the said ad interim injunction. [21] To that, this Court must refer to Lim Beng Choon J (as he then was)’s decision in the case of HANHYO SDN BHD v MARPLAN SDN BHD 25 & ORS [1992] 1 MLJ 51 where the Court held that a plaintiff cannot be compelled to continue his action against a defendant if he does not want to but the discontinuation must not cause injustice to the defendant. Held: “(1) The court would not compel a plaintiff to continue his action against a defendant if he does not want to do so provided no injustice is caused to the defendant. Injustice would be caused to the defendant if: (a) the discontinuance was made with ulterior motive to obtain a collateral advantage; (b) the discontinuance was not made bone fide by the plaintiff but was made in order to obtain an advantage which he has no right to retain since he has ceased to be dominis litis as the defendant has a perfectly good defence; or (c) by the discontinuance of the action the defendant would be deprived of an advantage which he has already gained in the litigation. 26 [22] In the case of COVELL MATTHEWS & PARTNERS V FRENCH WOOLS LTD [1977] 2 All ER 591 it was held that: “(i) A plaintiff should be allowed to discontinue litigation if he wished to, provided that the defendant would not suffer injustice by being deprived of some advantage he had already gained in the litigation and was granted adequate protection to ensure that any advantage he had gained was preserved. [23] In the case of NEWCOMEN V COULSON (1878) 7 CH D 764, Malins V.C had expressly stated that: “I cannot accede to Mr. Higgins's argument, that a Plaintiff can deprive a Defendant of his right to damages under the Plaintiff's undertaking by discontinuing his action. If this suit had come to a hearing I should have considered that the proper time for the Defendants to claim damages under the Plaintiff's undertaking, 27 and if they had not done so, I should have considered their right waived. But it was otherwise decided in Newly v. Harrison. Here the Plaintiff has deprived the Defendants of their proper opportunity to ask for damages, but it would be a most dangerous doctrine to hold that he can thus evade his liability. [24] This Court must also emphasize that in the written submission filed by the counsel for the Plaintiff, nowhere was it submitted that the 1st Defendant is not entitled to have its damages assessed. On the contrary, the counsel (in not denying such entitlement for damages being assessed) was merely contending that the Notice for direction for assessment of damages should have been brought in a new action and not in the present action. [25] This Court is of the view by raising the PO, the Plaintiff is attempting to evade his liability to pay damages as what he has undertaken earlier by denying the 1st Defendant’s right for damages which has been ordered to be assessed. 28 [26] This Court also finds that the Plaintiff’s objection against the assessment of damages proceedings under the same suit totally and utterly unjustifiable. The discontinuance of the main suit does not negate the undertaking for damages. It is utterly preposterous that mere discontinuance or withdrawal of action would tantamount to a relinquishment of liability to pay damages. There is no law or precedent to that effect. [27] The fact remains that the 1st Defendant’s right for an inquiry to be carried out to assess its damages (suffered from the Plaintiff’s ad interim injunction) ought to be maintained considering the Plaintiff’s unequivocal and clear undertaking of damages which was then translated into this Court’s order dated 15.8.2016. E. DECISION OF THE COURT [28] Based on the above mentioned reasons, the Plaintiff's Enclosure 63 is therefore dismissed with a cost of RM5,000.00. 29 ………………………………………….. (DATUK AZIMAH BINTI OMAR) Judge High Court Shah Alam Selangor Darul Ehsan Dated 29th January 2018 For the Plaintiff - Tetuan GK Ganesan Miss Fiona Bodipalar Mr Simon Hong For the Defendant -