Havona Hotel Sdn Bhd v 1. ) Oxbridge Height Sdn Bhd (JA-22NCvC-27-03/2024)

T in this Writ action moved this Court to enter summary judgment against vide Notice of Application (Enclosure 17) which this court allowed on 09.12.2024. 13/11/2025 10:25:59

D1 has since filed an appeal to the Court of Appeal against the decision of this Court.

D1, a company, at all material times is the developer for a project on a property held under master title GRN 362479, Lot 103267,

The said property was initially assigned to Am Bank (M) Berhad pursuant to certain facilities agreements entered into between the borrowers and/ or beneficial owners which includes D2 and D3.

On 05.09.2023, the said property was sold via a public auction with P being the successful bidder.

The property was sold to P at the reserve price of RM 15.7 Million. On the same date P had paid RM 1.57 Million as advance payment for the property before executing the memorandum of sale dated

Some of the salient terms of the MOS will be discussed next in order to obtain a proper understanding of the factual matrix underlying the present case.

Firstly, pursuant to Clause 7.5 MOS, the balance purchase price was to be made by P within 90 days from the auction date.

Secondly, pursuant to Clause 15 MOS, P as the successful bidder agrees and undertakes to obtain the necessary consent and permission from the relevant bodies with all costs to be borne by P.

Thirdly, following clause 17.1 MOS, in the event that the sale could not be concluded, P would be entitled to the return of the advance payment made previously.

P subsequently through their previous solicitors issued various letters dated 29.09.2023, 19.10.2024 and 26.02.2024 requested and/ or demanded from D1 as the developer of the said project where the said property is located to provide the necessary information, confirmation and undertakings.

The said information, confirmation and undertakings sought by P would be necessary to enable P to complete the purchase of the said property and for purposes of obtaining title to the said property.

As no satisfactory replies were forthcoming, P subsequently instituted the present suit against all the Defendants.

A perusal of the Statement of Claim principal claim is for specific performance against D1 in respect of the information, confirmation, undertakings and consent in relation to the property which is contained in paragraph 12 SOC which this court would not wish to repeat here.

At the same time, P is also seeking for an order requiring D1 to complete payments of any outstanding concerning the said property prior to completing the surrender of the said property to P apart from supplying P with documents (if any) to ensure proper handing over of the said property to P apart from D1 being required to do all things necessary to complete the surrender of the said property to P.

Finally, P is also seeking for exemplary damages against all the Defendants.

P had then filed Enclosure 17 seeking for summary judgment to be Legal position under Order 81 ROC 2012

O.81, r.1 ROC 2012 in brief allows for P to apply for summary judgment on the within the ambit and purview of sub-rule (1)(a)-(c), which reads as follows:-

Application by plaintiff for summary judgment (O. 81 r. 1)

In an action begun by writ endorsed with a claim-

for specific performance of an agreement (whether in writing or not) for the sale, purchase or exchange of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages;

for rescission of such an agreement; or

for the forfeiture or return of any deposit made under such an agreement, the plaintiff may, on the ground that the defendant has no defence to the action, apply to the Court for judgment.

It is trite law that summary judgment would be entered against a defendant if the defendant fails to satisfy the court that the defence has raised an issue or question in dispute which ought to be tried, or for some other reason a trial would be required. In other words, a triable issue would have the effect of defeating any summary judgment application.

To put it in another angle, once P satisfies this court that Enclosure 17 has been correctly and properly filed, the burden then shifts to D1 to raise a defence, which shows a triable issue or for some other reasons can only be considered and disposed of through a proper trial. This is consonant with O.81, r.3 ROC 2012 which provides as follows:-

Judgment for plaintiff (O. 81 r. 3) Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the action, the Court may give judgment for the plaintiff in the action.

In light of the above, it is clear that the principles distilled or applicable to summary judgment applications under Order 14 ROC 2012 would also be applicable to Order 81 ROC 2012.

Reference on that can be made to National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 where it was held by the Federal Court as follows:- "We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under Order

For the purposes of an application under Order 14 the preliminary requirements are:

the defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and

(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14. ... If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him." Analysis and decision

Upon perusals of the cause papers and the affidavits filed by the parties, this C Rule 1 (1) ROC 2012 in particular paragraph (a) as P is seeking for specific performance with regards to concerning the said property.

In this regard, it is trite that the MOS would constitute a valid and binding agreement in so far as the said property is concerned.

On specific performance, reference may be made to Section 21 - 1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant any such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

The following are cases in which the court may properly exercise a discretion not to decree specific performance-

where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part; and

where the performance of a contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff.

A case in which the court may properly exercise a discretion to decree specific performance is where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

That the discretion to grant specific performance is within the jurisdiction of this Court has been stated in Tan Ah Tong v Parveen Kaur [2011] 5 MLJ 428 where it was held by the Court of Appeal as follows:- It is not in dispute that the subject matter of the present case is the two SPAs in respect of landed property. Section 11 of the Specific Relief Act 1950 (Act 137) provides that the specific performance of any contract is a discretion of the court.

Section 11 SRA 1950 on the other hand states that:-

Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced -

when the act agreed to be done is in the performance, wholly or partly, of a trust;

when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done;

when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; or

when it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done.

Unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved.

this Court refers to Bayangan Sepadu Sdn Bhd v Jabatan Pengairan Dan Saliran Negeri Selangor [2022] 2 CLJ 1 where the Federal Court had this to say:- "[31]...a successful bidder at a public auction conducted under the NLC obtains an indefeasible title to the subject property and the unregistered interest is not protected under the NLC. Every dealing or transaction of a land by a party whose interest is unregistered in the registered in the register of document cannot defeat the title of the registered proprietor."

Returning to the present case, it is undisputed that the said property is still under a Master Title. D1 as a developer is under an obligation to P (as the successful bidder and subsequent owner once the surrender of the property is done) to provide information relevant to the property upon request made by P. The information of course could only be accessed and confirmed by D1.

As a matter of illustration, reference may be made Section 20 (1) and (2) Strata Title Act 1985 which states:- 1) The proprietor of provisional strata title shall, within the period specified in subsections (2) and (3), apply in accordance with subsections 20A(1) and 20B(1) for the subdivision of the building or land capable of being issued with strata titles, if at any time he has sold or agreed to sell any parcel in such building or land to any person.

The period within which the requirement of subsection (1) shall be complied with is as follows:

in the case where the sale of, or agreement to sell, any parcel of the building or the first of such sales or agreement takes place and the document that certifies the super structure stage is issued after the commencement of this Act, the period is three months from the date of the issuance of the document that certifies the super structure stage;

in the case where the building is completed after the commencement of this Act and the sale of, or agreement to sell, any parcel of the building or the first of such sales or agreement took place before the commencement of this Act, the period is three months from the date of the issuance of the certificate of completion and compliance;

in the case where the building was completed and the sale of, or agreement to sell, any parcel of the building or the first of such sales or agreement took place before the commencement of this Act, the period is three months from the date of the commencement of this Act;

in the case where the building was completed before the commencement of this Act and the sales of, or agreement to sell, any parcel of the building or the first of such sales or agreement takes place after the commencement of this Act, the period is three months from the date the sales of, or agreement to sell, any parcel of the building or the first of such sales or agreement takes place.

point and agrees with Sri Muda Corner Holdings (M) Sdn Bhd v IRDK Land Sdn Bhd & Anor [2021] 9 CLJ 157 (High Court) referred by P during the course of their submissions. In Sri Muda, the Plaintiff was the successful bidder of a property having paid the deposit and executed a memorandum of sale with the Bank. The Plaintiff was however unsuccessful in attempting to complete the transfer and purchase of the property. According to the High Court:- [33] Upon the issuance of the document of title, the first defendant was obliged to execute the Form 14A to the second defendant but that was not done. The first defendant had given an undertaking to this effect. Now that the property has been bought by the plaintiff at the LACA auction, it cannot now take advantage of the situation by contending that it has no nexus with the plaintiff and the latter cannot compel it to execute the Form 14A in its favour. [34] The first defendant also cannot refuse to transfer on the ground that there is a caveat on the land. The existence of the caveat is not a legal impediment to order the first defendant to execute the Form 14A. The caveat merely prohibits the registration of the transfer and other dealings. The removal of the caveat is now the subject of litigation in another court. Nonetheless, the caveat cannot prohibit the grant of an order that the first defendant is to execute the Form 14A, even if the enforcement of it would depend on the successful outcome of the removal of the caveat. [35] Contrary to the contention of the first defendant, an order for the first defendant to execute the Form 14A would not conflict with the earlier undertaking it had given to the second defendant to execute in favour of the second defendant. This undertaking would now be superseded by the order of this court to execute the Form 14A in favour of the plaintiff. [36] The first defendant is the registered proprietor of the said property. It is the proper party to execute the Form 14A. There is no basis for it to refuse to do so. A direct transfer would be the most expedient way to complete the purchase of the said property by the plaintiff.

Further, this Court also finds that P as the successful bidder is entitled to demand from D1 for documents in order to enable P to ence is made to Hong Leong Bank Bhd (Which Has Taken Over All Assets And Liabilities Of Hong Leong Finance Bhd) v Sum Projects (Bros) Sdn Bhd [2010] 7 MLJ 39 where it was held by the High Court as follows- [21] The prohibition against assignment in the SPA without the defendant's consent creates a right in favour of the defendant vis a vis an obligation on the part of the Purchasers to obtain the defendant's consent. The requirement to obtain the defendant's consent is an obligation under cl. 9 of the SPA. The defendant consented to the assignment of the rights title and interest from the purchasers to the plaintiff. Equally pertinent is the fact that the defendant also consented to the obligations and liabilities under the SPA not being assigned to the plaintiff and for the purchasers to continue to perform those obligations and liabilities. Going by the plain words of the deed of assignment which states that the plaintiff shall have no obligation or liability under the SPA, it follows that the obligation to obtain the defendant's consent was never assigned to the plaintiff. [22] Section 7:01 of the deed of assignment clearly rules out the possibility of any obligation being assumed by the plaintiff. The purchasers continue to be responsible and liable for the obligations under the SPA. Clause 9 of the SPA is an obligation in that it restricts the rights of the purchasers (the original purchasers) to assign their rights title and interest without the defendant's consent. The defendant has expressly confirmed and agreed to its ouster in the letter of consent and undertaking to the deed of assignment. For the foregoing reasons the court takes the view that the defendant's consent is not required for the plaintiff to assign to the successful bidder all rights title and interest in the SPA and to the property. The question is therefore answered in the negative.

It is quite clear from the above that P is entitled to obtain specific performance as prayed for. Furthermore, P has also ably demonstrated their continuous readiness and willingness to complete the transaction as far as the said property is concerned. Reference is made to Ganam d/o Rajamany v Somooo s/o Sinniah [1984] 2 MLJ 290 where the Federal Court held that:- "Now, in a suit for specific performance, a party treated and was required by the court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit [see the dictum of Lord Blanesburgh in Mama v. Sassoon (18)]

The burden now thus shifts to D1 to satisfy this court whether there are triable issues to warrant a proper trial.

On the issue of exemplary damages, this court finds that D1 had through their actions or omissions barred P from completing the surrender of the said property subsequent to the auction.

As a result of this, P had to obtain an extension of time from the assignee apart from incurring additional costs and late penalties to obtain the confirmation, undertakings, information and necessary consent when this could have easily been supplied by D1.

D1 had also profited at the expense of P as they are not the one being required to render any late charges in the event that the surrender of the property to P could not be perfected.

Accordingly, this court agrees that there is a basis for a claim for exemplary damages to be allowed as P has proven intangible injury s to enable them to complete the transaction of the sale of the said In this regard, reference is made to Sambaga Valli A/P KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and anor appeal [2017] CLJU 500 where it was held by the Court of Appeal as follows:- "[32] Now, aggravated damages are classified as a species of compensatory damages, which are awarded as additional compensation where there has been intangible injury to the interest of personality of the plaintiff, and where this injury has been caused or exacerbated by the exceptional conduct of the defendant. "[33] The exemplary damages or punitive damages the two terms now regarded as interchangeable are additional damages awarded with reference to the conduct of the defendant, to signify disapproval, condemnation or denunciation of the defendant's tortious act, and to punish the defendant. Exemplary damages may be awarded where the defendant has acted with vindictiveness or malice, or where he has acted with a "contumelious disregard" for the right to the plaintiff. The primary purpose of an award of exemplary damages may be deterrent, or punitive and retributory, and the award may also have an important function in vindicating the rights of the plaintiff. (See Rookes v. Berhard [1964] 1 All ER 347; AB v. Southwest Water Services [1993] All ER 609 Broome v. Cassell & Co [1971] 2 QB 354, Laksamana Realty Sdn. Bhd. v. Goh Eng Hwa and Another

Based on Sambaga Valli, within the categories underlined by the Court of Appeal. P had also pleaded clearly their claim for exemplary damages in this regard.

As such, exemplary damages as claimed would be allowed subject to assessment at a later date.

D1 submitted that they have not letters in particular the letters dated 29.09.2023 and 19.10.2023. This court is not satisfied that the non-receipt of these letters would constitute a triable issue as required by law.

Whether there are letters issued or not, the fact remains that P as the successful bidder is entitled to the information, confirmation and consent sought as the successful bidder of the said property in order to perfect the title and/ or obtain possession and/ or have the said property surrendered to them.

Even if it is proven that the said letters were not received by D1 or they were not properly issued for that matter, it still does not defeat the said property.

At the same time, this court finds that the letters dated 29.09.2023 and 19.10.2023 were properly served on D1 as could be seen in Exhibit HH-4 of Enclosure 18 (Affidavit of support for Enclosure 17). To provide context, the letter dated 29.09.2023 was duly served at acknowledged it and the said representative has also inserted his or her signature too.

This court finds that it is this same representative who had also received the cause papers to the present case upon perusing Exhibit NAS-1 which is contained in the affidavit of service (Enclosure 5).

Furthermore, P had also attached proof of service in the forms of the A.R who was present when the letters were served.

That being the case, the non-receipt of the above letters are devoid of merit, and I so hold. The duty upon the Court to investigate assertions or denials in an affidavit by comparing it with contemporaneous evidence is indeed trite law as held by the Supreme Court in Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 as follows:- Under an O. 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. Unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O. 14 application.

contention that their company secretary had failed to inform them of the letters is also without basis and is of no concern to P. had wrongfully inserted his or her signature acknowledging receipt of the letters. Based on the internal management rule better known on persons duly authorized by D1 without inquiring further whether been regular. Reference is made to the locus classicus case of Royal British Bank v Turquand [1856] 119 ER 474 where it was held by the English Court that:- "persons contracting with a company and dealing in good faith may assume that acts within its constitution and powers have been properly and duly performed, and are not bound to inquire whether acts of internal management have been regular'.

On our local shore, reference is made to Pekan Nanas Industries Sdn Bhd v Chang Ching Chuen & Ors [1998] 1 CLJ 793 where the Federal Court held that:- that effect of the Turquand's Rule is that it reduces the enquiries which outsiders having dealings with a company must take. Such outsiders have no right to insist on proof by the company's directors that the provisions of its Memorandum & Articles have been complied with, and they cannot therefore be deemed to have constructive notice of some failure to comply which they have no means of discovering." Whether D1 is to render payments of any outstanding

D1 had also submitted that whether D1 is liable to render payments of any outstanding constitutes a triable issue. To this, the court finds that D1 should have approached P to resolve this issue to begin with. P is also not in a position to reply t documentary evidence or detailed bills of any kind were given to P to enable them to reply accordingly to D1.

Clause 13 of the MOS also in this regard provides that any outstanding payment that needs to be made is subject to the receipt of a detailed bill by P from D1 which was not done here. This is very clearly stipulated and thus the words use in Clause 13 should be given its natural and ordinary meaning. In this regard, reference is made to Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896 where the House of Lords at page 913 emphasized that:- "(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax (see Mannai Investments Co Ltd v. Eagle Star Life Assurance Co Ltd [1997| 2 WLR 945).

The 'rule' that words should be given their "natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in The Antaios Compania Neviera SA v. Salen Redevierna AB (1985) 1 AC 191, 201: ... detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense." (emphasis added)

to render payments for the outstanding sums.

MOS as a triable issue must fail. Reference is made to Esso Standard Malaysia Bhd v Southern Cross Airways (Malaysia) Bhd [1972] 1 MLJ 168 where it was held by the High Court that:- "It is I think right that an order under R.S.C. Order 14 should be made only if the court thinks it is a plain case and ought not to go to trial. If one simply has a short matter of construction with a few documents, the court on summary application should decide what in its judgment is the true construction. There should be no reason to go formally to trial where no further facts could emerge which would throw any light upon the letters that have to be construed. I am satisfied that there are no triable issues. This is simply a case of construction of the letters passed between the parties and I decided that in favour of the plaintiffs. I therefore allowed the application with costs." Other issues raised by D1

D1 had also submitted that P had delayed in obtaining title and/ or possession of the said property. This is without any basis as it is D1 who had delayed the entire process by refusing to continuously accede to the various requests made by P in order to have the property surrendered to them. It wou delay as there is a real risk of forfeiture of the advance payments made should the sale not be completed within the stipulated time.

D1 had also requested for proof from P that they would be able to complete the sale within ninety (90) days as provided under the MOS. This is a non-starter as P owes no such obligation towards D1 under any law for that matter. This Court too cannot see any relev requests. Further on the facts, D1 had never indicated the same request for proof at any material time to P.

As a whole, this court finds that the issues raised by D1 does not merit any further investigation to determine the truth of the matter. In this regard, it is instructive to refer to Eng Mee Yong & Ors v Letchumanan [1979] 1 LNS 18 where the Privy Council held that:- Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. In making such order on the application as he "may think just" the judge is vested with a discretion which he must exercise judicially. It is for him to determine in the first instance whether statements contained in affidavits that are relied upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit further investigation as to their truth. Since this is a matter upon which the opinions of individual judges may reasonably differ, an appellate court ought not to interfere with the judge's exercise of his discretion under section 327 of the National Land Code unless the way in which he exercised it is shown to have been manifestly wrong.

From the totality of available evidence before this Court, it is this us nor crafty that would warrant this there ought for . This Court is guided by Miles v Bull [1968] 3 ALL ER (Court of Appeal) page 637-638:- "...If the defendant cannot point to a specific issue which ought to be tried, but nevertheless satisfies the court that there are circumstances that ought to be investigated, then I think those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff... ... I think it is. In my judgment 'there ought for some other reason to be a trial'; and the reason is that of justice. By carrying through a transaction at unusual speed the defendant's husband is seeking to enable the plaintiff to do what he himself cannot do, namely, evict the defendant from her home. The husband has whatever rights the law gives him, and so has the plaintiff; but in the circumstances of the case I do not think it would be just if the plaintiff were able to enforce the rights that he claims without being put to strict proof that they do enable him to evict the defendant. I was told that in granting leave to defend Master Jacob said that the case was 'too near the bone for O. 14. That, if I may say so, seems to me to summarise admirably what I have tried to express in greater detail. RSC Ord 14, is for the plain and straight-forward, not for the devious and crafty. There is here a case for investigation, and so not for summary decision." (emphasis added)

Based on the reasons as adumbrated above, this court allows Enclosure 7 paragraph (a), (b) and (f) with costs of RM 4,000.00, subject to allocator fee. Dated 11th November 2025 (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru For the Plaintiff : Tetuan Mira Sham, Yong & Connie Ng UG1-27, Komersial Radia, Persiaran Arked, Seksyen U8, Bukit Jelutong 40150, Shah Alam, Selangor Darul Ehsan For the Defendants: Tetuan Rohamat & Ling No 61A, Jalan Molek 2/4, Taman Molek 81100, Johor Bharu,