Ekovest Capital Sdn. Bhd. (Dahulu Dikenali Sebagai Prompt Capital Sdn. Bhd.) v Choo Teik Shiong (WA-12BNCvC-30-02/2024)

1.

2.

3.

4.

5.

YAP CHEE WEE ... RESPONDENTS 25/02/2026 15:19:38 WA-12BNCvC-30-02/2024 Kand. 43 S/N dfeBnUokz06yhm/GInFnJw IN THE SESSIONS COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR WRIT OF SUMMONS NO.: WA-B52NCvC-115-03/2021

1.

2.

3.

4.

5.

YAP CHEE WEE … PLAINTIFFS AND EKOVEST CAPITAL SDN BHD (COMPANY NO: 486071-X) [previously known as Prompt Capital Sdn Bhd] … DEFENDANT GROUNDS OF JUDGMENT S/N dfeBnUokz06yhm/GInFnJw

This was an appeal by the Appellant against the decision of the learned Sessions Court Judge (‘SCJ’) made on 31.1.2024 in allowing the Plaintiffs’ claim whereby the Defendant was ordered to pay the following to the Plaintiffs:

RM93,001.02 to the First Plaintiff (‘P1’);

RM62,330.28 to the Second Plaintiff (‘P2’);

RM96,425.08 to the Third Plaintiff (‘P3’);

RM82,110.30 to the Fourth until Sixth Plaintiffs (‘P4-P6’);

interest at the rate of 10% per annum on the amounts as stated in paragraphs (a) to (d) above, respectively, calculated from 17.5.2019 until the date of full settlement;

costs for this action in the sum of RM10,000.00; and

interest at the rate of 5% per annum on the sum of RM10,000.00 from the date of judgment until the date of full settlement pursuant to O. 59, r. 4 of the Rules of Court 2012 (‘RC 2012’).

After having considered the Record of Appeal and submissions by the parties, I had allowed the appeal and the Order made by S/N dfeBnUokz06yhm/GInFnJw the SCJ was varied such that the Appellant was to pay to the Respondents, as follows:

RM21,279.90 to the 1st Respondent;

RM1,340.44 to the 2nd Respondent;

RM2,073.66 to the 3rd Respondent; and

RM15,986.08 to the 4th, 5th and 6th Respondents.

The Appellants’ solicitors wrote to the Court on 10.7.2025 to inform that they will be filing a Notice of Motion for leave to appeal to the Court of Appeal.

These are my full grounds for the decision.

Henceforth, the parties shall be referred to as they were in the Sessions Court.

The Defendant is a company incorporated under the Companies Act 1965 with its registered address at Tingkat Bawah, Wisma Ekovest, No. 118, Jalan Gombak, 5300 Kuala Lumpur. S/N dfeBnUokz06yhm/GInFnJw

The Plaintiffs had, vide the following Sale and Purchase Agreements (‘SPA’), purchased their respective residential units at the project developed by the Defendant known as “EkoCheras” (‘Project’): Plaintiff Date of SPA Unit No. Purchase Price P1 10.4.2014 E-12-08 RM599,318.00 P2 31.12.2013 J-12-09 RM509,645.00 P3 31.12.2013 J-07-17 RM788,422.00 P4 – P6 25.4.2014 J-26-18

Prior to the execution of the SPA, Plaintiffs paid Booking Fees for the residential units as follows: Plaintiff Date of Booking Fee Amount Paid (RM) P1 24.12.2013 10,000.00 P2 24.12.2013 40,964.00 P3 24.12.2013 68,842.00 P4-P6 28.01.2014 6,576.47 S/N dfeBnUokz06yhm/GInFnJw

Before undertaking the construction works, the Defendant had applied to the Ministry of Housing and Local Government (‘KPKT’) for an extension of time (‘EoT’) to complete the Project within 48 months instead of 36 months.

On 18.10.2013, KPKT approved the Defendant’s application and therefore the Defendant reflected the timeline for delivery of vacant possession as 48 months in Clauses 25 and 27 of the

Upon completion of the Project, the Defendant issued the Notice of Vacant Possession dated 2.5.2019 to the Plaintiffs. Hence, pursuant to Clause 26(3) of SPA, the Plaintiffs are deemed to have taken possession of the units on 16.5.2019.

On 20.12.2018, the Architect issued the certification of completion of the Common Facilities on 18.12.2018.

Vide letters to the Plaintiffs dated 16.5.2019 and 27.6.2019 to the Plaintiffs (‘Settlement Letters’), the Defendant paid liquidated damages (‘LAD’) to the Plaintiffs for late delivery of vacant possession of their units and of the Common Facilities, respectively. The Plaintiffs signified their unconditional acceptance of the LAD on the terms and conditions as set out in the Settlement Letters.

The Plaintiffs alleged that, after obtaining legal advice, they discovered that the period of 48 months as stated in the SPA is S/N dfeBnUokz06yhm/GInFnJw contrary to Schedule H of the Housing Development (Control and Licensing) Regulations 1989 whereby the period of vacant possession should be for 36 months only and the calculation of that period shall start from the date of payment of the Booking Fees or of the SPA, whichever is earlier.

This led to the filing of the suit by the Plaintiffs against the Defendant on 18.3.2021 to claim for the reliefs as pleaded in paragraph 24 of the Statement of Claim (‘SoC’) i.e. akin to the amounts as ordered by the SCJ and set out in paragraph 1 above.

The Defendant contended, among others, that it had given a loan incentive in the sum of RM41,952.26 to P1 and RM38,678.43 to P4 to P6. The Defendant counterclaimed that P1 and P4 to P6 are required to refund the said loan incentives from any judgment sum that may be ordered.

All appeals to the High Court shall be by way of re-hearing (see O. 55, r. 2 of the RC 2012 and s 29 of the Courts of Judicature Act 1964 (Revised 1972) [Act 91]).

In Muhammad Shahir Bin Khalid And 2 Ors. v Ko Kang Min & Anor [2025] AMEJ 1247, this Court set out the law on appellate interference in these words: S/N dfeBnUokz06yhm/GInFnJw “[31] In Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd [2017] 5 CLJ 58, the Court of Appeal illuminated on the occasions when appellate interference is warranted in the following passage from the judgment: “[20] … these occasions have been well set out in numerous cases. Some of these occasions are:

where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations (see Director of Forestry, Sabah & Anor v. Mau Kam Tong & Ors And Another Appeal [2010] 3 CLJ 377; [2010] 3 MLJ 509);

where there was no proper evaluation of the evidence by the trial judge (see Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009] 6 CLJ 626; [2009] 6 MLJ 1);

where the decision arrived at by the trial court was without judicial appreciation of the evidence (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1); S/N dfeBnUokz06yhm/GInFnJw

where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra Sdn Bhd [2008] 2 CLJ 284; [2008] 2 MLJ 87);

where the trial judge was plainly wrong in arriving at his decision (see Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97);

where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him (see First Count Sdn Bhd v. Wang Yew Logging & Plantation Sdn Bhd [2013] 1 LNS 625; [2013] 4 MLJ 693 which followed the Privy Council case of Choo Kok Beng v. Choo Kok Hoe & Ors [1984] 1 LNS 40; [1984] 2 MLJ 165); and

where the judgment is based upon a wrong premise of fact or of law (see S/N dfeBnUokz06yhm/GInFnJw Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; [2012] 4 MLJ 149).”. [32] In Zone Nine Sdn Bhd (previously known as GBH Ceramics Sdn Bhd) v Kien Wai Plumbing Construction [2024] MLJU 2399, I had referred to two judgments of the apex court which had enlightened on the legal principles of appellate intervention as follows: “[24] The learned counsel for the Defendant, Mr. Jeffry Wong cited the decision of the Federal Court in Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 for the central feature of appellate intervention, which is to determine whether the trial court had arrived at its finding correctly on the basis of the relevant law and established evidence. A decision by the trial court which was arrived at without judicial appreciation of the evidence may be set aside on appeal. In determining whether the trial judge’s appreciation of the evidence is sufficient or otherwise, the process of evaluation of the evidence by the trial judge i.e. the assessment of the evidence, the weight that was given to the evidence and the S/N dfeBnUokz06yhm/GInFnJw reasons for accepting or rejecting the whole or any part of the evidence, must be examined. … [26] Gan Yook Chin’s case was among the many case authorities discussed in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC). It is settled law that an appellate court will not intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. If, in arriving at the decision, it could not reasonably be explained or justified and the decision of the trial court is one which no reasonable judge could have reached, the decision is susceptible to appellate intervention. The plainly wrong test is not intended to be used by the appellate court as a means to substitute its own decision for that of the trial court on the facts [see pp 81 - 96 of the law report, especially paragraphs 62 - 78; see too, among others, Azman bin Mahmood & Anor v SJ Securities Sdn S/N dfeBnUokz06yhm/GInFnJw Bhd [2012] 6 MLJ 1 (FC, at paragraphs 24 and 25, p 12), Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (FC, at paragraph 60, p 464) and MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 (CA, at paragraph 17, p 437)].”.

In determining all the grounds of appeal, I was guided by the above-mentioned legal principles.

The Memorandum of Appeal (‘MoA’) and Supplemental MoA listed 14 grounds of appeal. In the Written Submissions by the Defendant (encl. 8), the main grounds of appeal were stated as follows:

the Plaintiffs’ claim is now time-barred under s 6 of the Limitation Act 1953 [Act 254] (‘LA 1953’) following the Court of Appeal decision in Obata Ambak Holdings Sdn Bhd v. Prema Bonanza Sdn Bhd & Another Appeal [2022] MLRAU 55;

the principles as enunciated in Ang Ming Lee & Ors v Mentari Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other Appeal [2019] 6 MLRA 494 are distinguishable from the present facts; S/N dfeBnUokz06yhm/GInFnJw

the Plaintiffs have failed to challenge the EoT vide judicial review;

the Plaintiffs are estopped from claiming additional LAD from the Defendant as this would amount to an unjust enrichment on the part of the Plaintiffs; and

the Plaintiffs have failed to satisfy the parole evidence rule pursuant to s 91 of the Evidence Act 1950 [Act 56] (‘EA 1950’).

At the outset, it must be made clear that, in the determination of this appeal, I have mainly considered the submissions of the parties after the decision by the Federal Court in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd and other appeals [2024] 5 MLJ 897 because the law post-Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Orther Appeal [2020] 1 CLJ 162 has been made clear in Obata Ambak.

In the course of determining the striking out application by the 2nd defendant against the plaintiffs in Marcus Lee Wyy Keat & 79 Ors v Wawasan Rajawali Sdn Bhd & Anor [2025] CLJU 374, the High Court had referred to the landmark cases of Ang Ming Lee and Obata-Ambak in the following excerpts from the judgment: S/N dfeBnUokz06yhm/GInFnJw “[30] The Plaintiffs rely on the decision in Ang Ming Lee v. Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan [2020] 1 MLJ 281, where the Federal Court held that the Controller of Housing has no power to waive or modify the statutory sale and purchase agreement. [31] However, in Obata-Ambak (supra), the Federal Court clarified Ang Ming Lee (supra), holding that where the EOT was granted before the execution of the SPA and incorporated into the contract, the parties are bound by the contract terms. The Federal Court illuminated that Ang Ming Lee (supra) does not apply retrospectively. It only applies prospectively, meaning that purchasers cannot rely on it to invalidate previously granted extensions of time (EOTs) before the decision was made. Here, the Plaintiffs had voluntarily signed the SPAs with full knowledge of the 48-month timeline. Thus, their claim for LAD based on a 36-month delivery period is unsustainable. The Plaintiffs have not pleaded any viable ground to challenge the validity of Clause 25(1) in their SPAs, nor have they shown how their claim is maintainable. [32] The Federal Court upheld the Second Actor Theory in its Obata-Ambak (supra) decision, which states that even if an initial administrative act (such as the EOT granted by the Controller) is later declared invalid, a subsequent act that relied on it S/N dfeBnUokz06yhm/GInFnJw (such as a contract signed in reliance on that EOT) remains valid. Bound by the decision, this Court rules that given the EOT was granted years before the Ang Ming Lee (supra) decision was meted, the parties are bound by the EOT which was expressly incorporated in the SPA. Consequentially the Plaintiffs claim for LAD is untenable. … [33] The Federal Court cautioned against allowing purchasers to retrospectively claim LAD, emphasizing that doing so would amount to an unjust enrichment at the expense of the developers. It also ruled that claims filed many years after the SPA execution are time-barred, and that the cause of action accrues from the date of the SPA, not from the date of the delivery of vacant possession of the property.”.

On the first date of hearing of the appeal, I directed the learned counsels appearing for the parties to file further submissions on the implications of the decision by the apex court in Obata-Ambak. The Defendant’s Executive Summary is in encl. while the Plaintiffs’ Executive Summary is in encl. 20.

The Defendant tabulated an overview of the facts in the instant case as compared to the facts in Obata’s case which is re-produced below: S/N dfeBnUokz06yhm/GInFnJw

The Defendant then essentially submitted that –

the Plaintiffs’ claim is barred by the LA 1953 because the SPA was entered around 2014 – 2015 whereas the suit was initiated only on 18.3.2021. The limitation period starts to run from the execution date of the SPA. Once the limitation issue is raised, the burden shifts to the Plaintiffs to prove why the limitation should not apply; Obata’s case Present case The parties entered into the SPA with 36 months period for delivery of vacant possession. The parties entered into the SPA with 48 months period for delivery of vacant possession. The EoT was obtained after entering into the SPA. The EoT was obtained before entering into the SPA. The aggrieved party did not challenge the EoT by way of judicial review since the date of signing of the SPA. The aggrieved party did not challenge the EoT by way of judicial review since the date of signing of the SPA. The plaintiffs have accepted a settlement sum by signing the settlement letters. The Plaintiffs have accepted a settlement sum by signing the Settlement Letters. The Plaintiffs were not given any loan incentive by the defendant. P1 and P4 – P6 were given loan incentives by the Defendant. Issue on limitation was raised. Issue on limitation was raised. S/N dfeBnUokz06yhm/GInFnJw

the SPA was signed by the Plaintiffs after the EoT was granted by KPKT and the period of 48 months for vacant possession to be delivered is expressly provided for in the SPA. Therefore, the Plaintiffs are bound by the terms of the SPA. According to ss 91 and 92 of the EA 1950, evidence cannot be introduced to modify the written agreement unless there are claims of fraud or misrepresentation, neither of which the Plaintiffs have alleged in this case;

the Plaintiffs should have challenged KPKT’s decision to grant the EoT by way of a judicial review application instead of filing the instant suit, especially after signing the Settlement Letters accepting compensation. Housing developers and buyers are free to enter into settlement agreements, as supported by the Housing Development (Control And Licensing) Act 1966 [Act 118] (‘HDA 1966’). According to s 64 of the Contracts Act 1950 [Act 136], the Plaintiffs have waived their rights to further claims by accepting the settlement, which included clauses indicating that all claims related to the property and the SPA were fully resolved. The Plaintiffs did not contest the validity of the Settlement Letters during trial;

allowing the Plaintiffs to claim additional LAD would result in unjust enrichment, as they already agreed to a completion period of 48 months and accepted the settlement sums; and S/N dfeBnUokz06yhm/GInFnJw

the Plaintiffs have not provided any extrinsic evidence to support an amendment to the SPA. The Plaintiffs’ claim for LAD falls outside the provisions of the SPA and should be dismissed by the court.

On the part of the Plaintiffs, they contended that –

there is still a claimable portion of LAD in this case, and the claimable LAD granted by the SCJ should only be varied by this Court on the authority of the Federal Court case of PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor And Other Appeals [2021] 2 MLJ 60 as follows: “[25] Accordingly, upon a wholesome and coherent reading of the two judgments of the Supreme Court in Hoo See Sen and Faber Union, the point of law at issue in these appeals remains very much decided. Where a developer fails to deliver vacant possession according to the time stipulated in the statutory sale and purchase agreement, the calculation of the LAD begins from the date of payment of the booking fee and not from the date of that statutory agreement. [26] In any event, we are of the view that the above point of law is further clarified and cemented by the nature of the HDA 1966 and HDR 1989 being social legislation. Thus, S/N dfeBnUokz06yhm/GInFnJw leaving aside the quarrel over the correctness of the two said Supreme Court decisions, we find that subsequent judicial decisions and legislative changes do not support the developers.”. Thus, any LAD payable by the Defendant for late delivery of vacant possession or late completion of common facilities shall be calculated at the point in time when the Plaintiffs had paid the booking fees, as the contract between parties had already come into existence by then whilst the signing of the SPA is merely a formality. This portion of LAD had always been part of the Plaintiffs pleaded case as envisaged in paragraphs 13 and 19 of the SoC;

the decision in Obata Ambak did not override or overrule PJD Regency. This is supported by the recent decision of the Court of Appeal in Anna Chin Kui Len (f) v RJ Realty Sdn Bhd & Anor and other appeals [2024] 5 MLJ 417, which was decided on 22.8.2024, post-Obata Ambak. The Court ordered the developer to pay LAD sums to the purchasers calculated from the date they had paid their booking fees: “[50] Having regard to the decisions of the Supreme Court in Hoo See Sen & Anor v Public Bank Berhad [1988] 2 MLJ 170 and Faber Union Sdn Bhd v Chew Nyat Shong & Anor [1995] 2 MLJ 597, the Federal Court in PJD S/N dfeBnUokz06yhm/GInFnJw Regency has already authoritatively answered this in the context of the HDA 1966 and the HDR 1989 — in respect of provisions similar to the ones in question in these appeals — in that given the status of the statute as a social legislation and the need to protect house buyers being the weaker parties in the transaction, any LAD for the failure of the developer to deliver vacant possession of the home units or parcels in adherence to the contractually stipulated time period should be calculated from the earlier point in time when payment is made by the house buyers of any booking fees. [51] Her Ladyship Tengku Maimun (Chief Justice) answered the question of law in the leave application referred to the Federal Court in PJD Regency in the following terms: [89] We agree fully with the views expressed above and as such we answer all related leave questions on the common issue to the effect as follows: Where there is a delay in the delivery of vacant possession by a developer to the purchaser in respect of Scheduled Contracts under reg 11(1) of the Housing Development (Control and Licensing) Regulations 1989 S/N dfeBnUokz06yhm/GInFnJw (Regulation 1989) enacted pursuant to s 24 of the Housing Development (Control and Licensing) Act 1966, the date for calculation of liquidated agreed damages (‘LAD’) begins from the date of payment of deposit/booking fee/initial fee/expression by the purchaser of his written intention to purchase and not from the date of the sale and purchase agreement literally. [95] As such, the practice of dating the SPA not on the booking date like in respect of the SPAs for the three appellant house buyers before us does absolutely nothing to remedy the mischief of dating the SPA to a later date. This thus prejudices the house buyers’ claim for late delivery and instead affording the developers the opportunity to arbitrarily put whichever date they wish with a view to extending the date to deliver vacant possession, as observed in PJD Regency.”; and

the current claimable LAD amount premised on the principles laid down in PJD Regency for both late delivery of the Plaintiffs’ respective parcels and common properties calculated from the date of booking fee until the date of the SPA (‘PJD Delay’) are as follows: S/N dfeBnUokz06yhm/GInFnJw Purchase Price Booking Fee Date SPA Date PJD Delay (days) LAD amount for parcel LAD amount for common properties Total amount for PJD Delay P1 599,318.00 24.12.2013 10.4.2014 108 17,733.25 3,546.65 21,279.90 P2 509,645.00 24.12.2013 31.12.2013 8 1,117.03 223.41 1,340.44 P3 788,422.00 24.12.2013 31.12.2013 8 1,728.05 345.61 2,073.66 P4- P6 552,549.00 28.1.2014 25.4.2014 88 13,321.73 2,664.35 15,986.08 TOTAL 40,680.07 Hence, this Court ought to dismiss the Defendant’s appeal and to subsequently vary the order of the Sessions Court as per the prayers in the SoC with variation to the principal sums as shown under “Total amount for PJD Delay”.

Before delivering my decision, I invited Ms. Dashprit Kaur, who appeared for the Appellant, to submit with regards to the Respondent’s submission that the Order by the SCJ should be varied as per the “Total Amount for PJD Delay”. This is in view of the fact that encl. 20 was filed after encl. 18.

Ms. Dashprit Kaur merely said that the Appellant “takes note that in PJD's case, it says that it should be from the date of the booking fee”. Mr. KH Lim retorted that the Appellant concedes to the Respondent’s submission as set out in subparagraph 26(c) above.

As I was inclined to the view that the Respondent’s submission in encl. 20 reflects the correct legal position post-Obata Ambak, S/N dfeBnUokz06yhm/GInFnJw and there being no submission to the contrary by the Appellant’s counsel, I allowed the Appellant’s appeal and the Order made by the SCJ was varied in the manner as stated in paragraph 2 above. No order was made on costs. Dated: 13 August 2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA (NCvC2) KUALA LUMPUR Solicitors for the Appellant : Dato’ Shamesh Jeevaratnam Messrs. Jeeva Partnership Solicitors for the Respondents: Lim Kien Huat Messrs. Lee & Lim S/N dfeBnUokz06yhm/GInFnJw