Future Lub Sdn Bhd v Tan Wen Chen @ Lau Wen Chen (JA-22NCvC-205-11/2019)

TAN WEN CHEN @ LAU WEN CHEN …DEFENDAN (No. K/P Singapura : S2000529G)

NG GEAK INN (No. K/P Singapura : S2075613F) GROUNDS OF JUDGEMENT (Enclosure 109)

This is an appeal arising from a decision pertaining to an application by the Plaintiff under O92 r.4 Rules of the High Court 2012 for a declaration to treat the Defendants in breach of the Specific Performance Order of the Sale and Purchase Agreement (“SPA”) 25/09/2025 10:45:29 JA-22NCvC-205-11/2019 Kand. 132 dated 4.5.2012 between the Plaintiff and Defendants. The property (lot with building) in question is owned by a developer company known as Pan Vista Sdn. Bhd, not a party to this suit.

This Court allowed the said declaration and for payment of a deposit sum RM125,000.00 be refunded, it being the deposit sum paid by the Plaintiff. The ‘agreed liquidated damages’ agreed in the SPA to be RM125,000.00 was also allowed. Other reliefs sought by the Plaintiff in enclosure 109 for the Specific Performance Order allowed by the Court of Appeal by way of an order dated 11.1.2024 ‘be discharged’ (‘dibatalkan’), was dismissed by this Court.

The relief for the Defendants to pay the costs for special damages being losses incurred by the Plaintiff such as alteration, repair work, construction and labor spent towards the property, amounting to RM314,676.00 was equally dismissed by this Court. The short reason for dismissing these reliefs is because although the said property was yet to be registered under the Plaintiff’s name, the Plaintiff was given possession of the said property, rendering payment of rental by the Plaintiff, coming into effect.

The said relief for specific performance arose by virtue of a Court of Appeal Order dated 11.1.2024. The COA in allowing the appeal, had set aside the High Court decision that agreed with the counter-claim by the Defendant which found the Plaintiff was holding over the land and the claim filed by the Plaintiff was time-barred. The Defendants filed leave to appeal to the Federal Court but was dismissed.

The Court of Appeal Order, in allowing the appellant@ Plaintiff’s appeal permitted the reliefs below:

A declaration that the SPA existed to be enforced;

Specific performance of the said SPA within 14 days from the date of the decision; and

An order that if the Defendants failed, neglected and/or refused (“gagal, abai atau enggan”) to sign the transfer form and/or related forms and documents within 14 days from the date of order, the Deputy Registrar or Senior Assistant Registrar is authorized to sign the transfer form and/or related forms and documents to transfer the property (land lot and building) known as “Geran No. 130636 Lot 78754, Mukim of Pulai, Daerah Johor Bahru” Johor to the Plaintiff.

The said property was originally owned by a developer company known as Pan Vista Sdn. Bhd. The Defendants had purchased the said property from the developer on 25.9.1992 (refers to as “1st purchase”). Before the registration of transfer took place, a new SPA for the purchase of the said property between the Plaintiff and the Defendants was executed on 4.5.2012 (refers to as ‘2nd purchase”).

The terms of the SPA in the 2nd purchase carry with it a clause on ‘Special Conditions’. This is to address the status of ownership of the property by Pan Vista whilst the Defendants never were the registered proprietor. To facilitate the sale to the Plaintiff, the SPA contains this ‘Special Conditions’ clauses which provide as follows: “1. The Purchaser shall be deemed to have taken vacant possession of the said Property from the date hereof on the basis that the Purchasers shall pay a monthly rent of RM3,000.00 with effect from 1.6.2012 and that all outgoings in respect of the said property shall be apportioned as at the date of vacant possession as aforesaid.

The Vendor, being the beneficial owner, shall at his own costs and expense cause M/S Pan Vista Sdn Bhd (“the Developer”) to effect the due transfer of the said Property in his favour so as to enable the said Property be registered in his name as the registered owner (hereinafter referred to as “the Registration of 1st Transfer”) and that any further sum (which shall include any interest, levy, fee, line or other charges) as imposed by the Developer and/or any relevant authority relating to or arising from the Registration of 1st Transfer shall be solely borne by the Vendor.

In the event the Registration of 1st Transfer cannot be effected within seven (7) months from the date hereof (“the Perfection Date”), the Purchaser shall, after the Perfection Date unless it has been extended by mutual consent in writing, be at liberty to duly terminate this Agreement and in such an event the following terms shall apply:

Unless otherwise agreed by the parties hereof, the Deposit (RM125,000.00) shall be forthwith refunded to the Purchaser free of interest and thereafter the parties shall have no claim whatsoever against each other.

The Purchaser shall be entitled to utilize the Deposit or part thereof (if the same has not been refunded) for payment of the monthly rents and/or any sum payable by him as the tenant.

Pending the refund of the Deposit as aforesaid, the Purchaser shall be at liberty to remain in possession of the said Property free of any monthly rent.

The balance of the purchase price shall be fully settled within three (3) months from the date of receipt by the Purchaser of a solicitor’s certified true copy of the title deed with the endorsement of the Registration of 1st Transfer failing which the Purchaser shall be granted a further extension of time to pay the balance of the purchase price as stated in section 7 of the schedule together with interest thereon at the rate as stated therein.

In the event of the said Property for any unforeseeable circumstances not owing to the fault of either party hereof rendered not transferable due to any encumbrance or statutory prohibition not existing at the date of signing of this Agreement, the Purchaser may at his option withdraw from the purchase herein and the Vendor shall upon request by the Purchaser immediately refund the purchaser all sums paid by the Purchaser herein and this Agreement shall henceforth and for all purposes be deemed to be cancelled.

..…”

The material facts extracted from the pleadings and the minutes of the reasoning by the Court of Appeal are summarized here. Firstly, both parties have agreed to extend the date of transfer from the developer to the Defendants@ Respondents, on or before 3.7.2013. Secondly, the transfer unfortunately, did not materialize. Thirdly, no other extension date was agreed upon by parties. Fourthly, the Defendants@ Respondents were moved to rescind the contract on 26.11.2013.

The Court of Appeal, in allowing the Plaintiff’s appeal pronounced the findings arrived at by the panel (see: page 42 exhibit “T-2” enclosure 111 Defendant’s Affidavit-In-Reply) and may appropriately be summarized by this Court to be as follows:

Cause of action on the part of the Plaintiff to sue the Defendant founded on contract, would have arisen on 4.7.2013, a day after the extension of the date of transfer agreed by both parties to be on or before 3.7.2013, hence the 6 years limitation would have set in on 4.7.2019;

The 1st transfer did not happen after the extended date 3.7.2013 agreed by both parties. There was no further mutual extension since and neither did the Plaintiff agree to the rescission by the Defendants;

However, as the Defendants@ Respondents had rescinded the contract on 26.11.2013 when there is no clause authorizing so, the actual date where cause of action arose would be 26.11.2013 making the 6 years limitation to be on or before 26.11.2019. This makes the Plaintiff’s claim still within time;

As the right to terminate only accorded to the Plaintiff which the Plaintiff did not exercise, the time for the extended Perfection Date would be enlarged;

The Plaintiff’s action was based on the breach of the SPA and not on the recovery of land as the property was never in the name of the appellant@ Plaintiff nor in the names of the Respondents@ Defendants.

Arising from this 11.1.2024 Order and the long span of time for it to materialize, the Plaintiff filed this application enclosure 109 and deposed to the following facts in its affidavit-in-support enclosure 110 (see: para A.4 heading “Kronologi Peristiwa”):

The Defendants had purchased the said property from the developer on 25.9.1992;

Via a SPA dated 4.5.2012 between the Plaintiff and the Defendants, the Defendants had agreed to sell and the Plaintiff had agreed to purchase the said property at sale price of RM1,250,000.00 subject to the following terms and conditions:-

A deposit sum of RM125,000.00 be paid by the Plaintiff to the Defendants;

(ii) Defendants at their own cost and expenses, will cause the Developer to transfer the said property to the Defendants within 7 months from the date of the SPA;

(iii) On the performance of the SPA, Plaintiff is presumed to have obtained the title of the said land and Plaintiff will pay a monthly rental of RM3,000.00 a month beginning from 1.6.2012;

(iv) The balance of the purchase price will be paid by the Plaintiff within 3 months from the date of receipt of title deed endorsed with the registration of the 1st transfer;

Should the Defendants fail, refuse and/or neglect (‘abai’) to complete the sale of the said land, Plaintiff is entitled to a refund of all expenses paid to the Defendants and a sum of RM125,000.00 as agreed liquidated damages or to claim for specific performance of the SPA and/or damages;

Based on the SPA, Plaintiff had obtained possession of the said land and had paid the deposit and monthly rental to the

The Plaintiff arising from the Defendants consent and assurance, had carried out extensive renovations on the said land;

Yet, the 1st transfer and registration from the developer to the Defendants is still due to materialize;

The extension of the 1st transfer was then mutually agreed by both Plaintiff and Defendants from 4.12.2012 till 4.7.2013 (refers to as “Tarikh Akhir Lanjutan Untuk Pindahan”);

After the expiry of this extension, the Defendants still attempted (“Defendan-defendan masih berusaha”) to fulfill their obligations to complete the 1st transfer.

The Plaintiff’s further averment in sub-para (g) above acts as proof to show that the Defendants cannot be faulted as the Defendants continued with the attempt to realize their obligation under the SPA and this is added further by the offer to pay back the deposit to the Plaintiff but was rejected. However, it cannot be disputed that the end result of this attempt is still a failure.

It must not be overlooked that the Plaintiff in cross-examination by counsel for the Defendant, agreed that he took risk to do renovation work to the property. It was suggested that the SPA was silent on such right. Although the Plaintiff disagreed, he was unable to show the specific clause that permits such work be carried out and instead said he did not understand the agreement.

In addition to this, the delay in the completion of the transfer from the developer to the Defendants arose not due to the Defendants’ fault but caused by the developer company being wound up. Hence, this cannot be termed as arising from the Defendants’ act in refusing or neglect to complete the sale. As deduced earlier, the Defendants cannot run away from disputing there is a failure to perfect the transfer, even though the Defendant opted subsequently to terminate the SPA by notifying their intention on 26.11.2013. This, after more than a year the SPA was signed on 4.5.2012.

For all these reasons and with the trial fully concluded but the Plaintiff’s claim dismissed for breaching the limitation period, this Court was of the view that the only order that this Court can allow is only to permit the subsequent follow-up and follow-through of the decision of the Court of Appeal by way of a variation. This is done, not by restricting the order of the Court of Appeal dated 11.1.2024 but this Court is guided by the pronouncement allowing a declaration that the SPA existed to be enforced by way of specific performance action within 14 days.

Certainly, this could not be met that resulted with the move by the Plaintiff to file enclosure 109 on 5.9.2024. Reverting further to the order of the Court of Appeal that the cause of action by the Plaintiff is for breach of contract and this would be attributed to, for want of performance or perfection of the 1st transfer. Hence, this would have triggered clause 3(a) “Special Conditions” of the SPA that permits the Plaintiff to exercise its option to treat the agreement as terminated. On termination, the SPA provides for the deposit of RM125,000.00 be forthwith refunded.

This necessitate this Court to exercise its discretion under O.92 r.4 Rules of Court 2012, to accord the Plaintiff with that remedy for the refund of the deposit sum of RM125,000.00 and the “ALD” as contained in clause 8 as follows: “If the Vendor @Defendants shall (with no fault of the Purchaser@ Plaintiff) fail, refuse and/or neglect to complete the sale of the said Property or to transfer the said Property to the Purchaser (or his nominees) as required herein, the Purchaser may elect either to require the Vendor to refund all monies paid and to pay to the Purchaser a further sum as stated in Section 5 (iii) of the Schedule hereto being agreed liquidated damages; or to affirm this Agreement and seek specific performance and/or damages”.

Section 5(iii) states as follows:

Purchase Price : RM :1,250,000.00 Ringgit Malaysia : ONE MILLION TWO

Deposit : RM :125,000.00 Ringgit Malaysia : ONE HUNDRED AND TWENTY FIVE THOUSAND ONLY

(ii) Balance : RM : 1,125,000.00 Ringgit Malaysia : ONE MILLION ONE HUNDRED AND TWENTY-FIVE THOUSAND ONLY

(iii) Agreed Liquidated Damages for Non-Performance : RM : 125,000-00 Ringgit Malaysia : ONE HUNDRED AND TWENTY-FIVE THOUSAND ONLY

O.92 r.4 equips this Court with the following inherent power: Inherent powers of the Court (O. 92, r. 4)

For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.

The above reliefs are still within the confinement of the clauses in the SPA. Other claims for renovation, labor was dismissed by this Court as they are not governed by any other clauses in the SPA. Guided by the minutes consisting of the findings of the Court of Appeal and the Order itself for issuance of Specific Performance, this Court concluded that the variation did not amount to issuing a fresh Order not contemplated by the Court of Appeal but still within the scope of the declaration that the SPA existed to be enforced by Specific Performance of the SPA.

In exercising this inherent power, this Court is guided by the following authorities to the effect that this Court’s power is exercised in the interest of justice to prevent a miscarriage of one, and definitely not as a review of the Court of Appeal decision. In doing so, it may be said that this Court had in fact acted within the parameters of the Court of Appeal Order by clarifying it and giving effect to it.

Abdul Malik Ishak J (as he then was) in Tan Guek Tian & Anor v. Tan Kim Kiat @ Chua Kim Kiat (Part 2) [2007] 9 CLJ 215; [2007] 6 MLJ 260, elaborated on this when the Court in discussing the inherent power of the Court in relation to the doctrine of ‘functus officio’, a prohibition against its exercise of inherent power said as follows: "[26] I wonder whether the doctrine of functus officio has outlived its usefulness. The rationale for having the doctrine is two folds. Firstly, it will prevent the adjudicators be it arbitrators or judges from exercising a fresh judgment on the case and altering their award or decision. Secondly, it prevents re-examination of an issue by the adjudicators be it arbitrators or judges when they have decided on them. I must say that this doctrine of functus officio is so well-known that it has achieved notoriety of a sort and it is often repeated in many judgments but rarely analysed. The inherent power of a judge would enable the judge to deal with any error once it is pointed out to him. The justice of the case demands it. In my considered view, the doctrine of functus officio did not and could not abrogate the judges' inherent powers. These are certainly words of encouragement. Surely a judge can review his own decision when the judge has overlooked a crucial point or dealt with that crucial point in an incomplete fashion or simply made an error. Here, in filing enclosure 10, the plaintiffs are asking this court to invoke its inherent powers to vary, alter, substitute and/or amend the ex parte order of this court dated 10 January 2007 in order to reflect the corresponding sections of the Mental Disorders Ordinance 1952 as opposed to the said Act 615. Surely, I am entitled to do so. The parties have acted accordingly pursuant to the ex parte order dated 10 January 2007 that was made under the said Act 615. Enclosure 10 seeks, inter alia, for the reliefs granted in the ex parte order dated 10 January 2007 to be re-affirmed accordingly in accordance with the provisions of the Mental Disorders Ordinance 1952. It is rather obvious that encl 10 was filed in order to prevent a miscarriage of justice. I cannot ruefully sit back knowing, after being appraised, of the fact that the said Act 615 has not been in force when I adjudicated encl one (1). I must be permitted to correct errors given the unusual circumstances that presented itself. But a note of warning though. This judgment should not be read carte blanche as allowing alteration of decisions previously rendered. [27] On the facts of this case, I am entitled to call in aid and invoke O. 92 r. 4 of Rules of the High Court 1980 ('RHC') which reads as follows: It is salutary to mention that O. 92 4 of the RHC brings into sharp focus the inherent jurisdiction of the High Court. Terrel Acting CJ in the famous case of The Motor Emporium v. Arumugam [1933] CLJU 106; [1933] 1 LNS 106; [1933] MLJ 276, p 278 explained lucidly the meaning to the phrase 'inherent jurisdiction'. His Lordship said that the court: Has the widest possible jurisdiction in all suits, matters and questions of a civil nature, and although the legislature has given no indication on what principles such jurisdiction should be exercised, every Court must have inherent jurisdiction to do justice between the parties and apply such principles as are necessary or desirable for attaining such object and for giving decisions which are in conformity with the requirements of the social conditions of the community where the law is administered. [28] What is the true nature of the inherent jurisdiction of the court? It is difficult to advance a simple answer. There are a number of features that can readily be identified. It is a correct assertion to make when we say that the inherent jurisdiction of the court is exercisable as part and parcel of the process of the administration of justice. It is procedural in nature and it is applicable to both civil and criminal cases (Connelly v. DPP [1964] AC 1254; and R v. Jefferies [1963] 3 WLR 830; [1968] 3 All ER 238). It is not part of the substantive law and it is usually invoked when the parties are in the midst of litigation. What is of importance is this. That the glaring and distinctive feature of the inherent jurisdiction of the court is that it can be exercised in a summary process-at any time. It is part and parcel of the machinery of justice. It is an armament that can be used in any fact situation. It may be invoked not only in relation to the parties in pending proceedings but also in relation to anyone, whether a party or not, and in respect of matters that are not raised as issues in the litigation between the parties. Thus, it can be said that the inherent jurisdiction of the court may be invoked in an inexhaustible variety of circumstances and may be exercised in different ways and manners. It has the capacity to diversify. It is very viable. The ongoing viability of the inherent jurisdiction of the court can never be doubted."

This Court treated as necessary to allow the reliefs sought by the Plaintiff but limited to only the return of the deposit and ALD. Otherwise the Plaintiff would be without remedy as although armed with a Court of Appeal order in the Plaintiff’s favor, the Plaintiff is still at loss without any restitution. Enclosure 109 allowed only to the extent as stated in the above paragraph. Bertarikh : 12 September 2025 (Nurulhuda Nur’Aini Binti Mohamad Nor) Hakim Mahkamah Tinggi Malaya Johor Bahru Johor Darul Ta’zim Peguamcara Plaintif : Tok Jun Wee Tetuan Tok & Co. No. 8A (1st Floor) Jalan Suria 19 Taman Putera 81100 Johor Bahru Johor 07-3322832 toknco@gmail.com Peguamcara Defendan : Chang Tau Sian Tetuan Henry Soong & Chang Unit 12.13A, Level 12 Menara TJB No. 9 Jalan Syed Mohd Mufti 80000 Johor Bahru Johor 07-2769316 changtausian@gmail.com