Glenn William Oneill v Chang AI Nee (WA-24NCvC-3302-09/2024)

TEMPAT LETAK KERETA YANG DIBEZAKAN SEBAGAI B2-623, B2-624, B2-625 & B2-626 DALAM TINGKAT NO. ARAS BAWAH TANAH 2 DAN DUA (2) LEDGES PENGHAWA DINGIN AKSESORI NO. A1806 & A1807 DALAM PEMBANGUNAN PERUMAHAN YANG DIKENALI SEBAGAI "RESIDENSI DUTA KIARA"; DALAM PERKARA SURAT KUASA BERTARIKH 18.6.2024 YANG DIDAFTARKAN DI MAHKAMAH TINGGI KUALA LUMPUR PADA 28/04/2025 16:16:23 WA-24NCvC-3302-09/2024 Kand. 31

28.6.2024 DI BAWAH WA-SKW- 13790-06/2024 DALAM PERKARA KAVEAT PERSENDIRIAN YANG DIDAFTARKAN OLEH CHANG AI NEE; DALAM PERKARA ATURAN 28 DAN ATURAN 92, KAEDAH 4, KAEDAH-KAEDAH MAHKAMAH 2012; DALAM PERKARA AKTA UNDANG-UNDANG SIVIL 1956; ANTARA GLENN WILLIAM O’NEILL (NO. PASPOT: RA6286359) ...PLAINTIF CHANG AI NEE (NO. KP: 710422-10-5248) ...DEFENDAN

The Plaintiff is seeking a Declaration from court validating the termination of a Sale and Purchase Agreement (SPA) with the Defendant dated 28/9/2021 (SPA) and a supplementary agreement dated 14/10/2022 and ancillary orders for relief arising from the termination. Brief facts

The Plaintiff is a beneficial owner together with his wife of a property at a housing project developed by Agile PJD Development Sdn Bhd bearing a description as parcel No. A-02-01, Tingkat 2, Bangunan Menara A with 4 parking lots at Residensi Duta Kiara (‘the property”).

The property was charged to HSBC Bank for a loan taken by the Plaintiff for the purchase of the property. The Plaintiff and his wife subsequently divorced and the Plaintiff was given the right by the family court Singapore to sell the property by way of Power of Attorney from his wife.

On 28/9/2021 Plaintiff entered into the SPA to sell the property to the Defendant and the completion of sale would be finalized upon the payment of full purchase price. Awaiting the payment of the full purchase price the Defendant was given possession of the property on the monthly rental of RM9,000. The Defendant was also given a right to make renovations to the property during the tenancy.

The Defendant had applied and had been approved by his financier to pay part of the purchase price from a loan taken from a Bank leaving a balance of RM 1,112,900 the payment of which was the subject of the supplementary agreement dated 14/10/2022.

The supplementary agreement required the Defendant to pay an additional consideration of RM250,000 which he has paid. The Plaintiff also agreed to give the Defendant an extension of 90 days to complete the sale under the supplementary agreement.

The Defendant failed to complete the sale within the 90 days extension. However subsequently the balance price was paid outside the extended date incurring the Defendant the late payment charges with interest.

However, the Defendant failed to pay the late payment charges and interest within the period agreed by which time the deadline of redemption of the property of the Plaintiff had expired. The Defendant requested for extension of time to make the balance payment.

Upon the payment of the balance sum the redemption period was extended by the Plaintiff from 10/6/2023 to 25/7/2023. The statement of the new redemption sum was also issued. This period of redemption was subsequently extended a number of times.

The Defendant’s financier had subsequently refused to release the redemption sum to the Plaintiff’s financier as the Defendant had been issued a bankruptcy notice.

As a result of being unable to complete the sale the Defendant was issued a notice of termination. There was a negotiation between the parties resulting in the Plaintiff agreement to extend the completion date of the SPA for 3 months between 31/8/2023 to 30/11/2023.

The Defendant failed to abide by this extended deadline and counter proposed that the old SPA be terminated and a new SPA be entered into. The negotiation for the termination of the old SPA and entering of a new SPA failed prompting the Plaintiff to issue the notice of termination and surrender of property dated 21/6/2024.

The Defendant’s main contention in his affidavit opposing the OS, barring certain dispute of facts, is that the termination by the Plaintiff is premature as the parties are still in negotiation for a new SPA. The fact that there are dispute of facts the Defendant had applied to convert the OS into a Writ, which the Court disallowed. The mode of commencement

The manner of commencement of a proceeding whether by Writ or OS is clearly stipulated under Order 5 Rule 4 of the Rules of Court 2012(“the Rules”) as follows:

Proceedings which may be begun by writ or originating summons (O. 5 r. 4)

Proceedings-

in which the sole or principal question at issue is or is likely to be one of the construction of any written law or of any instrument made under any written law, or of any deed, will, contract or other document, or any other question of law; or

in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 81 or for any other reason considers the proceedings are more appropriate to be begun by writ.

The issue at hand is the construction of the SPA and there no being substantial dispute of facts, the Court ruled that OS is the appropriate mode of commencement of the proceeding in this case.

In order to determine the validity of the termination by the Plaintiff it is best to look at the clauses of payment and completion date as well as the clause on termination in the SPA.

Clause 2 of the SPA specifies the payment and completion period. For ease of reference Clause 2 is reproduced here:

Payment of the Total Purchase Price/Completion

2.1 The Total Purchase Price for the Said Property shall be payable by the Purchaser in the manner stated in the Second Schedule hereto.

2.2 Subject to Clause 2.3 hereof, in the event that the Purchaser shall fail to pay the balance of the Total Purchase Price stipulated in Part VII (2) of the First Schedule hereto (hereinafter referred to as "the Balance Purchase Price") within the period stipulated in Part VIII of the First Schedule hereto (hereinafter referred to as "the Completion Period"), the Vendor hereby agrees to grant the Purchaser an automatic extension of time of the period stipulated in Part IX of the First Schedule hereto (hereinafter referred to as "the Extended Completion Period") for the Purchase to make payment of the Balance Purchase Price or such outstanding part thereof subject to the Purchaser paying to the Vendor late interest charges at the rate stated in Part IX of the First Schedule hereto on the Balance Purchase Price or such outstanding part thereof calculated on a daily basis commencing on the day following next after the expiry of the Completion Period until the date prior to the full payment of the Balance Purchase Price to the Vendor's Solicitors as stakeholder (hereinafter referred to as "the Interest"). The date of actual receipt of the Balance Purchase Price and the interest (if any) by the Vendor's Solicitors shall hereinafter be referred to as "the Completion Date".

2.3 The Vendor hereby agrees that the Completion Period or the Extended Completion Period, as the case may be, shall be extended accordingly and no Interest shall be payable by the Purchaser to the Vendor in the following events: -

in the event the Vendor has not fulfilled all or any of the Vendor's obligations stipulated in this Agreement within the time period(s) stated herein, such period(s) commencing from the expiry of the time period(s) stipulated for compliance hereof until the date when the Vendor duly complies with their obligations stated hereof; and/or

the Vendor and/or the Vendor's Solicitors and/or the Vendor's Financier and/or the Developer shall unduly delay in the compliance and/or performance of any of their other obligations as stated in this Agreement (where no time frame is stipulated herein for the compliance or performance of such obligation, the Vendor hereby agrees that a reasonable period for compliance and performance of such obligation shall be a period of Seven

Business Days, such period commencing from the next day upon expiry of the Seventh (7th) Business Days until the date of compliance by the respective parties stated herein.

2.4 Notwithstanding anything stated herein, it is hereby agreed between the parties that in the event the total number of days delay stated in Clause 23 herein above takes up to sixty (60) days, then the Purchaser shall be entitled to terminate this Agreement whereupon: -

if the delay is caused by the Vendor and/or the Vendor's Solicitors, then same delay shall constitute default by Vendor pursuant to Clause 15.1 hereof and the post-termination consequences specified in Clause 15.1 hereof shall apply mutatis mutandis; and/or

if the delay is caused by the Vendor's Financier and/or the Developer (subject that there is no fault/omission on the Vendor's and/or Vendor's Solicitors' part), then the post-termination consequences specified in Clause 7.1 hereof shall apply mutatis mutandis Provided That the Vendor shall indemnify the Purchaser. all cost/damages incurred pursuant to the said delay stated herein. PROVIDED ALWAYS THAT the Purchaser and/or the Purchaser's Solicitors and/or the Financier and/or the solicitors for the Financier has duly comply with the obligations stipulated in this Agreement within the time period(s) stated herein.

If this Clause is scrutinised carefully any extension of time can only be given if the Plaintiff as a Vendor, fails to fulfil any obligations under the SPA. The Purchaser on the other hand is directed to fulfil all the obligations under the SPA in relation to payment and completion period, as highlighted above.

The facts in this case shows various extension for the completion of payment was given by the Plaintiff on the failure of the Defendant as a purchaser making full payment to complete the sale. Although extension of time by the Plaintiff for the non-payment by the Defendant is not expressly stated in the SPA, such an extension can be given under Section 64 of the Contracts Act 1950 which stipulates as as follows: Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit.

A promises to paint a picture for B. B afterwards forbids him to do so. A is no longer bound to perform the promise.

A owes B RM5,000. A pays to B, and B accepts, in satisfaction of the whole debt, RM2,000 paid at the time and place at which the RM5,000 were payable. The whole debt is discharged.

A owes B RM5,000. C pays to B RM1,000 and B accepts them, in satisfaction of his claim on A. This payment is a discharge of the whole claim.

A owes B under a contract, a sum of money, the amount of which has not been ascertained. A, without ascertaining the amount, gives to B, and B, in satisfaction thereof, accepts the sum of RM2,000. This is a discharge of the whole debt, whatever may be its amount.

A owes B RM2,000, and is also indebted to other creditors. A makes an arrangement with his creditors, including B, to pay them a composition of fifty cents in the dollar upon their respective demands. Payment to B of RM1,000 is a discharge of B's demand.

It is clear from the provision above that the Plaintiff as the promisee has the absolute discretion to give extensions. The Defendant as the promisor cannot compel the Plaintiff to give the extension or impose conditions on the extension given.

The dispensation of the time for payment by the Plaintiff does not amount to a variation of contract or requires new terms of contract. The Defendants’ argument that new terms of a contract were being negotiated and therefore the Plaintiff is estopped from terminating the SPA is misconceived.

It is also clear that the Defendants failure to make payment as agreed under the SPA renders the contract voidable at the option of the Plaintiff. This is clear from section 56(1) of the Contracts Act 1950 which stipulates as follows:

When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.

In the Court’s view that the non-adherence to the terms of payment in the SPA by the Defendants triggers the termination clause in the SPA and can be relied upon by the Plaintiff to terminate the SPA and get the relief mentioned in the SPA.

The termination clause is reproduced here for ease of reference and is as follows:

Default by The Purchaser

14.1 In the event: -

the Purchaser shall fail for any reason' whatsoever to pay to the Vendor and/or the Vendor's Solicitors as stakeholder the Total Purchase Price (or any part hereof) and accrued Interest thereon (if any) and/or any other monies covenanted to be payable by the Purchaser within the Completion Period and/or the Extended Completion Period, as the case maybe (unless the same is due to the default of the Vendor); and/or

the Purchaser shall breach or be in default of any term covenant and/or obligation covenanted to be observed and/or performed by the Purchaser under this Agreement (other than a failure to pay which shall be* governed by sub-Clause (a) hereinabove) and the same is not capable of remedy or which being capable of remedy is not remedied within fourteen (14) days from the date of receipt by the Purchaser or the Purchaser's Solicitors of the written notice from the Vendor or the Vendor's Solicitors setting out the particulars of the breach and requesting action to remedy the same; the Vendor shall be entitled at any time thereafter to terminate this Agreement by notice in writing to the Purchaser and/or the Purchaser's Solicitors and upon such termination: -

the Deposit shall be forthwith forfeited to the Vendor;

(ii) within fourteen (14) days of such termination: -

the Purchaser shall its own cost and expense withdraw and/or cause the withdrawal of private caveat and all other caveats or encumbrances attributable to the Purchaser and/or the Financier and cause a copy of the statement of presentation of the notice of withdrawal of the Private Caveat to be forwarded to the Vendor's Solicitors and return or cause to be returned the Vendor's documents including but not limited to the original Strata Title to the said Property and all other documents with the Vendor's interest intact and unaffected to the Vendor Provided That the Purchaser's Solicitors shall have received the written confirmation that the Vendor has deposited such moneys purported for refund with the Vendor's Solicitors;

(if applicable) the Purchaser shall re-deliver vacant possession of the Said Property in the same state and condition that the Said Property was delivered to the Purchaser, if it has already been delivered to the Purchaser (fair wear and tear excepted);

the Purchaser shall return or cause' the return of the Transfer and the documents referred to in the Third Schedule hereto which had been delivered to the Purchaser, the Purchaser's Solicitors, the Financier and/or solicitors for the Financier with the title and interest of the Vendor in the Said Property intact;

the Vendor shall refund or cause to be refunded to the Purchaser all sums paid by the Purchaser and/or the Purchaser's Financier to the Vendor and/or the Vendor's Solicitors towards the Total Purchase Price, free of interest, after deducting the Deposit in accordance to Clause 19.2 hereof; and

thereafter, this Agreement shall be deemed null and void and be of no further effect and neither party hereto shall have any claim against the other hereunder. The Vendor shall be at liberty to dispose of and/or otherwise deal with the Said Property in whatever manner the Vendor shall think fit without further reference to the Purchaser.

14.2 Upon termination of this Agreement under this Clause, the Vendor shall be free to deal with the Said Property in such manner as the Vendor deems fit and upon the complete satisfaction and fulfilment of the above, neither party hereto shall have any further claims action or proceedings against the other in respect of or arising out of this Agreement.

14.3 The parties hereto agree that the Purchaser shall be entitled to retain the Transfer for purposes of refund of the ad valorem stamp duty paid thereon subject that the Purchaser shall forthwith cause the return of the Transfer to the Vendor after return of the Transfer by the Stamp Office to the Purchaser's Solicitors following refund of the said ad valorem stamp duty.

14.4 For avoidance of doubt, the Vendor hereby acknowledges and agrees that: -

any delay solely caused by the Collector of Stamp Duty for more than thirty (30) days from the date of adjudication of the Transfer to the date of receipt of the stamp duty notice by the Purchaser's Solicitors; or

any delay solely caused by the relevant land registry from the date of presentation of the Memorandum of Transfer in favour of the Purchaser at the relevant land registry for registration to the date of receipt of the presentation statement/receipt and land search report in respect of the Said Property by the Purchaser's Financier's Solicitors; shall be excluded from the computation of Completion Period and no late payment interest shall be imposed on such delay Provided That Purchaser shall have done all reasonable acts to follow up with the land registry or Collector of Stamp Duty and the Vendor's Solicitors being notify of the same with all the evidence proof of delays shall not be regarded as default by the Purchaser for purposes of this Clause.

In the upshot the Court allowed the Plaintiff’s OS and allowed all the reliefs claimed except the claim for general damages, as such general damages were not proven, with a cost of RM10,000. Dated: 24.4.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Elton Ti Chun Ze Tetuan M Scully Suite B-8-13, Gateway Corporate Suites Gateway Kiaramas, No. 1, Jalan Desa Kiara 50480 Mont Kiara Kuala Lumpur. For the Defendant: Nama Peguamcara: Deyvinah Ganesalingam Tetuan Peter Ling & Van Geyzel, B-19-4, Tower B Northpoint Office Suites, Mid Valley City No. 1, Medan Syed Putra 59200 Kuala Lumpur Wilayah Persekutuan Kuala Lumpur.