Hazli Bin Ibrahim v Saujana Triangle Sendirian Berhad (BA-B52NCVC-411-11/201)

These are two applications brought by the plaintiff here. The first application is to enter summary judgment (Enclosure 4) against the defendant and the second application is to strike out the Statement of Defence and Counterclaim of the defendant (Enclosure 8). 30 2

The background facts of the plaintiff’s action against the defendant 5 are these: The defendant was a housing developer and the plaintiff as purchaser entered into a sale and purchase agreement dated 20.2.2006 (“the SPA”) for the sale and purchase of one unit condominium known as Parcel No. B-2-B02A, Tingkat No.2, Block B, Accessory Parcel No.Lg6- 90/Lg6-90a, with common facilities at a purchase price of RM664,578.00 10 (clause 3 of the SPA) in a project known as ‘Bandar Damansara Perdana, Armanee Terrace (Precinct 1)’(“the Property”).

The SPA (Exhibit “HI-2” of the Supporting Affidavit) was in the form prescribed in Schedule H to the Housing Development (Control & 15 Licensing) Regulations 1989 (“the 1989 Regulations”). Clauses 26(1) and 28(1) of the SPA provided that vacant possession of the Property together with the common facilities shall be handed over to the plaintiff within 36 months from the date of the SPA, i.e. on or before 19.2.2009. Clause 8 of the SPA further stipulates that time shall be of the essence of the contract 20 in relation to all provisions of the SPA.

The defendant failed to deliver vacant possession of the Property within the specified time. It is a term of the said agreement (clause 26(2) of the SPA) that the defendant should pay liquidated damages at the rate of 25 10% per annum on the purchase price for any delay in the completion of the Property up to the date of the plaintiff take vacant possession of the said parcel. Pursuant to clause 28(2) of the SPA, the defendant further agreed that if the common facilities are not completed in time, the defendant shall pay immediately to the plaintiff liquidated damages at the 30 3 rate of 10% per annum of the last twenty per centum (20%) of the purchase 5 price until completion. The Writ (Enclosure 1) [5] On 1.11.2016, the plaintiff commenced an action claiming liquidated 10 ascertained damages (“LAD”) for late delivery of vacant possession of the Property amounting to RM489, 966.95 with interest of 5% on the said amount and RM97, 993.40 for late completion of the common facilities calculated until full settlement together with interest and costs. [6] It is the plaintiff’s case that the vacant possession of the Property was 15 delivered to the plaintiff only on 4.7.2016, a delay of 2691 days, and that the common facilities was completed only on 4.7.2016, a delay of 2691 days. The LAD based on the formula specified in clauses 26(2) and 28(2) of the SPA as follows:

a sum of RM489,966.95 as LAD for late delivery of vacant 20 possessions of the Property (for 2691 days);

(ii) a sum of RM97,993.40 as LAD for late completion of the common facilities (for 2691 days) [7] The defendant entered appearance on 21.11.2016 and later filed his Statement of Defence and Counterclaim dated 2.12.2016. In the 25 Counterclaim, the defendant is claiming for the following Order: 4

A declaration that there was force majeure event during the 5 construction;

A declaration that the force majeure event to be implied into the SPA;

A declaration that the purchase price paid for the Property is RM578, 182.86 10 [8] The plaintiff thereafter on 1.12.2016 filed an application under Order 14 rule 1 of the Rules of Court 2012 (ROC) to seek a summary judgment against the defendant vide Enclosure 4. Subsequently on 22.12.2016, the plaintiff filed an application under Order 18 rule 19 (1)

(b), (c) and/or (d) of the Rules of Court 2012 (vide Enclosure 8) for:

The Statement of defence and Counterclaim by defendant against the plaintiff dated 2.12.2016 be struck out;

(ii) Costs. [9] The parties were directed to submit on the issues in all the enclosures above. The issues will be dealt with accordingly throughout 20 this judgment. Application under Order 14 Rule 1 the Rules of Court 2012 (Enclosure 4) The Law 25 [10] O. 14 r. 1(1) and O. 14 r. 3(1) of the ROC provide as follows: 5 “Application by plaintiff for summary judgment (O. 14, r. 1)

(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof 10 except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.";

“Judgment for plaintiff (O. 14, r. 3)

Unless on the hearing on the hearing of an application under rule 1 15 either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates 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 that claim or part, the Court may give such judgment for the plaintiff against that 20 defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed.". [11] In an application for summary judgment, this Court is guided by the principles laid down in Doshi v. Yeoh Tiong Lay [1975] 1 MLJ 85. In this case, the Federal Court held as follows: 25 “The purpose of O. 14 of the Rules of Supreme Court 1975 is to enable the Plaintiff to obtain summary judgment without trial if he can prove his case clearly, and if the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried, final judgment should be allowed”. (emphasis added). 30 6 [12] This Court also guided by the principles laid down in National 5 Company for Foreign Trade v. Kayu Raya Sdn Bhd [1984] 2 CLJ 220, where it was stated by the Federal Court as follows: “... We think it appropriate to remind ourselves once again that in every application under O. 14, the first considerations are (a) whether the case 10 comes within the order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under O. 14. For the purposes of an application under O. 14, the preliminary requirements:-

the statement of claim must have been served on the Defendant;

(ii) the defendant must have entered an appearance;

(iii) the affidavit in support of the application must comply with the requirements of r. 2 of the O. ... If the Plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the 20 plaintiff will have established a prima facie case and he becomes entitled to judgment. This burden then shifts to the defendant to satisfy the court why judgment should not be given against him...” [13] In the present case, the plaintiff had satisfied the preliminary requirements as laid down in the case of National Company for Foreign 25 Trade v. Kayu Raya Sdn Bhd (supra) that is:

the Statement of Claim have been served on been served on the defendant;

(ii) the defendant entered appearance; and

(iii) the Affidavit in Support is in compliance with O. 14 r. 2 ROC 2012. 30 7 [14] In Bank Negara Malaysia v. Mohd Ismail [1992] 1 CLJ 627 the 5 Supreme Court held that the duty of a Judge does not end as soon as the fact is asserted by one party, or denied or disputed by the other on affidavit. The Judge has a duty to reject such assertion or denial if such assertion or denial is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or is inherently improbable. The Court will have 10 to identify the issues of fact or law and to determine whether they are triable. “.....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 on affidavit. Where such assertion, denial or dispute is equivocal or lacking in 15 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 as not triable. In our opinion, unless this principle is adhered to, a Judge is in no position to exercise his discretion judicially 20 under an O. 14 application. Thus, apart from identifying the issues of fact or law, the Court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue. 25 Where the issue raised is solely a question of law without reference to any facts or where the facts are clear and undisputed, the Court should exercise its duty under O. 14. If the legal point is understood and the Court is satisfied that it is unarguable, the Court is not prevented from granting a summary judgment, merely because “the question of law is at first blush of 30 some complexity and therefore takes a little longer to understand”.” 8 [15] Having considered the affidavits and the submission of the parties, 5 this Court is of the considered view that the plaintiff has established a prima facie case as it is not in dispute that the defendant had delayed in delivering vacant possession. As regard to the completion of common facilities, this Court opined that the plaintiff has established a prima facie case that the defendant had delayed in completing the common facilities of 10 Block B. [16] Therefore, the burden lies with the defendant to raise triable issues, which would require the case to proceed with trial. The defendant raised the following main points in its written submission:

The late delivery of vacant possession was caused by force 15 majeure;

The computation of liquidated damages (LAD) should be based on the Discounted Price;

(iii) The Common property had been completed. The Findings of the Court 20 [17] Having considered the submissions advanced by both parties, this Court shall consider each of the issues advanced by the defendant separately.

Whether the late delivery of vacant possession and the late completion of the common facilities were caused by force 25 majeure. 9 [18] The defendant contended that the delay was due to dispute with its 5 main contractor, the escalation of cost of raw materials, the escalation of finance charges and the rectification works by previous contractors. The defendant submitted that the above problems are not within its control and therefore they constitute force majeure. Because of this, the defendant contended that the completion time must be extended so that the 10 defendant can avoid paying the LAD. The defendant further submitted that the force majeure is an implied term of the SPA. The defendant, in trying to convince the Court that the delay was caused by force majeure, adduced an affidavit affirmed by the Senior Manager (Credit Control) himself, Mr Syed Mahadi Al Jafree bin Syed Mustafa (see ‘Afidavit Jawapan 15 Defendan’). The defendant, in support of the position that its take, also relies on Malaysia Land Properties Sdn Bhd v Tan Peng Foo [2013] 3 CLJ 663 , Liau Fung Kiong & Ors v Tinagat Properties Sdn Bhd [2010] MLJU 1480 and the case of Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong [1998] 3 MLJ 151. 20 [19] With respect, this Court is unable to accept the defendant’s argument. Instead, this Court is in agreement with the plaintiff that the force majeure clause only applicable if the clause is provided for in the SPA. When a party refers to force majeure it essentially refers to the contractual terms that the parties have agreed upon to deal with situations that might 25 arise, over which the parties have little or no control, that might impede or obstruct performance of the contract. See Magenta Resources (S) Pte Ltd v China Resources (S) Pte Ltd [1996] 3 SLR 62 where Justice Rajendran opined: 10 “What is referred to as force majeure in our law (as opposed to French law 5 from which that term originates) is really no more that a convenient way of referring to contractual terms that the parties have agreed upon to deal with situations that might arise, over which the parties have little or no control, that might impede or obstruct performance of the contract. There can therefore be no general rule as to what constitutes a situation of force 10 majeure. Whether such a (force majeure) situation arises, and, where it does arise, the rights and obligations that follow, would all depend on what the parties, in their contract, have provided for.” [20] The relevant statutory provision regulating and controlling the activity of the defendant is regulation 11(1) of the Housing Developers (Control and 15 Licensing) Regulations 1989 enacted pursuant to the Minister’s powers under s 24 of the Housing Developers (Control and Licensing) Act 1966. For ease of reference, regulation 11(1) is reproduced below: “Every contract of sale for the sale and purchase of a housing accommodation together with the subdivisional portion of land appurtenant 20 thereto shall be in the form prescribed in Schedule G and where the contract of sale is for the sale and purchase of a housing accommodation in a subdivided building, in the form of a parcel of a building or land intended for subdivision into parcels, as the case may be, it shall be in the form prescribed in Schedule H.” 25 [21] It is pertinent to observe that the SPA is a Schedule H agreement provided pursuant to Regulation 11(1) of the Housing Development (Control and Licensing) Regulations 1989. The Housing Development (Control and Licensing) Act 1966 makes it mandatory for the defendant to use the same without addition or modification. The decision in Encony 30 Development Sdn Bhd v Robert Geoffrey Gooch & Anor [2016] 1 CLJ 893 serves as a good guide here. In that case, the Court of Appeal held: 11 “The SPA between the respondents and the appellant, who is a housing 5 developer, is governed by a statutory form of contract as prescribed in sch. H of the Housing Development (Control and Licensing) Regulations 1989 [PU(A) 58/1989] (‘the regulations’). As such, the provisions in the SPA are not merely contractual, but are in effect statutory provisions, as they are actually provision of sch. H of the Regulations. Which have been imposed 10 by law upon the parties. …. The SPA, which has statutory force, cannot, in other words, be effectively amended of varied by inferring the existence of a collateral contract subsisting alongside it.” [22] In the case of Sea Housing Corporation Sdn Bhd V Lee Poh Choo 15 [1982] 2 MLJ 31, the Federal Court had the occasion to decide whether the developer can add the force majeure clause. The Federal Court held: “As to the rules which govern the transaction between the parties, rule 12 is relevant. That rule provides that every contract of sale - such as the one here - shall be in writing and shall contain within its terms and conditions provisions to 20 the effect set out in the various paragraphs of that rule. Paragraph (o) is relevant; that says that the agreement must specify: "the date of delivery of the vacant possession of the housing accommodation to the purchaser which date shall not be later than 18 months after the signing of the contract of sale." 25 That, as we have seen, was done. Then there is paragraph (r) which provides that the agreement must contain: "provisions binding on the licensed housing developer that he shall indemnify the purchaser for any delay in the delivery of the vacant possession of the housing accommodation. The amount of indemnity 30 shall be calculated from day to day at the rate of not less than eight per cent per annum of the purchase price commencing immediately 12 after the date of delivery of vacant possession as specified in the 5 contract of sale." That too was done, as we have seen. But then the developer says, as we have seen, that it is excused from liability by clause 32 of the agreement which reads: "The vendor shall not be liable to purchaser for any failure to fulfil 10 any terms of this Agreement if such fulfilment is delayed, hindered or prevented by force majeure including but not limited to acts of God strikes lockouts riots civil commotion acts of war or the disability of contractors and subcontractors employed by the vendor either commencing, carrying on or completing their work or failure to obtain 15 any necessary sanction or approval of any local authority or any other circumstances of whatsoever nature beyond the control of the vendor." It is said here that owing to the then building boom and resultant shortage of building materials and labour which was beyond the control of the developer it 20 is not liable because of this clause 32. With great respect to Mr. Chelliah for the developer we do not agree that it is open to the developer to escape liability by inserting clause 32 in the agreement. 25 It is common knowledge that in recent years, especially when government started giving housing loans making it possible for public servants to borrow money at 4% interest per annum to buy homes, there was an upsurge in demand for housing, and that to protect home buyers, most of whom are people of modest means, from rich and powerful developers, Parliament found 30 it necessary to regulate the sale of houses and protect buyers by enacting the Act. That was why rule 12 was enacted and in particular paragraphs (o) and (r) thereof. With respect we do not agree with Mr. Chelliah that it was open to a 13 developer to get round these paragraphs by the inclusion of such a clause as 5 clause 32 in this agreement. In Daiman Development Sdn Bhd v Mathew Lui Chin Teck [1978] 2 MLJ 239 we said at page 243 that developers are bound by the rules and if an agreement of sale is subject to contract, "only details may be inserted into the further agreement." 10 Mr. Chelliah argued that clause 32 is such a detail. With respect we do not agree. In our judgment such details as are inserted into a written agreement must be details consistent, not inconsistent with the Act and rules. Clause 32 is inconsistent with paragraph (r) of rule 12(1). When Daiman went to the [1981] 1 MLJ 56 their Lordships observed at page 15 60, second column: "... it seems to their Lordships that upon the proper construction of the proforma [used in that case] the solicitors [for the developer there] would not be able to include in the contract of sale any term or condition which was not appropriate to effectuate the sale which had 20 been made, including for that purpose, of course, provisions to comply with the requirements of the rules." Thus it is clear that only terms and conditions designed to comply with the requirements of the rules that may be inserted in a contract of sale of land that is governed by the Act and rules, and that on the contrary terms and conditions 25 which purport to get round the Act and rules so as to remove the protection of home buyers may not be so inserted. With respect, the provisions in question here are similar to those in Johnson v Moreton [1978] 3 All ER 37, a House of Lords decision, where at page 49 Lord Hailsham said: 30 "The policy of the law has been repeatedly used to protect the weaker of two parties who do not contract from bargaining positions of equal strength. (line a). 14 The truth is that it can no longer be treated as axiomatic that, in the 5 absence of explicit language, the courts will permit contracting out of the provisions of an Act of Parliament -- as was attempted here -- where that Act, though silent as to the possibility of contracting out, nevertheless is manifestly passed for the protection of a class of persons who do not negotiate from a position of equal strength, but 10 in whose well-being there is a public as well as a private interest." (lined onwards). It would appear that only "contracting out" in favour of the weaker party -- i.e. the purchaser -- might be countenanced by the courts. The construction we place on the rules is not as harsh as it seems to a 15 developer -- for he has a safeguard in subrule (2) of rule 12 which provides: "Notwithstanding the provisions of paragraph (1) of this Rule, where the Controller [of Housing] is satisfied that owing to special circumstances the compliance with any provisions of this Rule is impracticable or unnecessary he may by a certificate in writing waive 20 or modify such provisions in respect of any contract of sale." Thus in the circumstances of this case it would have been open to the developer to try and persuade the Controller to modify the rigours of paragraphs (o) and (r) of rule 12(1). If it had succeeded it would have escaped liability. But it made no attempt to do so. 25 But Mr. Chelliah says that under the terms of rule 12(2) the developer could have done so only before a contract of sale had been finalized and not after. With respect we do not agree; in our judgment it is open to a developer to take advantage of this provision after as well as before such a contract has been finalized. 30 For the reasons given above, we are of the opinion that clause 32, being inconsistent with rule 12 and not designed to comply with the requirements of the rules and in the absence of waiver or modification by the Controller of 15 Housing under rule 12(2), is void, and that therefore the developer is liable in 5 damages for the delay in completion.” [23] Applying the proposition of law as explained above, this Court opined that the defendant could not use those incidents to escape from its obligation under the SPA. This Court will not imply terms that contradict any express terms of the SPA. Therefore, the issue of force majeure cannot be 10 a triable issue in this present case.

Whether the computation of liquidated damages (LAD) should be based on the Discounted Price. [24] The defendant contended that since a discount is given, the damages must be computed based on the discounted sum, RM578, 182.86 and not 15 the purchase price stated in the SPA. The defendant further submitted that otherwise the plaintiff would be unjustly enriched. [25] However, this Court is of the considered opinion that the parties are bound by the purchase price stated in the SPA. Clause 3 defines what purchase price is: 20 “The purchase price of the said Parcel is Ringgit Malaysia Six Hundred Sixty Four Thousand Five Hundred Seventy Eight Only (RM664, 578.00) and shall be payable in the manner hereinafter provided.” Clause 26(2) and 28(2) stipulated that the LAD must be computed based on the purchased price as defined under clause 3. Therefore, in the present 25 case, the LAD should be calculated based on the purchase price stipulated in clause 3 of the SPA. 16 [26] The defendant submitted that the plaintiff’s claim herein, if allowed, 5 would lead to an unjust enrichment of the plaintiff at the defendant’s expense. With respect, this Court unable to accept the defendant’s argument. As explained above, the parties are not permitted to alter or amend the terms and condition of the SPA. Thus, the parties are bound by the purchase price stated in the SPA when computing the LAD payable by 10 the defendant to the plaintiff under clauses 26(2) and 28(2) of the SPA. The issue of unjust enrichment does not arise in the present case. [27] In the case of View Esteem Sdn Bhd v. Vitalmont Development Sdn Bhd [2014] 1 LNS 1402, the Learned Sessions Court Judge found 15 that the plaintiff had proven their claim on a balance of probabilities and allowed the plaintiff's claim. On appeal, the defendant submitted that the learned Sessions Court Judge had erred when decided that the plaintiff is entitled to calculate the LADs based on the purchase price as stated in the SPA amounting to RM658, 300.00, instead of RM592, 470.00, because this 20 would amount to unjust enrichment at the expense of the defendant since the Plaintiff had received a 10% bonus/discount from the Appellant. The High Court held: “The Purchase price of the Apartment is RM658, 000.00 as stipulated in clause 3 of the SPA. On the issue of unjust enrichment, it is the submission 25 of the Appellant (defendant) that a 10% discount was given to the Respondent (Plaintiff) as a promotional price. Therefore on that basis the LAD must be calculated based on the purchase price less 10%. Since clause 3 stipulates that the purchase price is RM658,000.00 any calculation of LAD must be based on that amount as agreed. The Appellant 30 17 did not adduce any evidence to the contrary. The salient terms of the SPA 5 must therefore be applicable.”

The completion of common facilities. [28] The defendant submitted that the development area is phase development, which consists of Block A and Block B buildings. As such, the common facilities which serve the said development area, are to be shared by the residence of both buildings. Block A of the said development area was completed on 8.12.2005 whilst residence from Block B could enjoy the common facilities at the Block A area. The defendant further contended that the claim for LAD in respect of the common facilities is totally flawed and amounted to a triable issue. [29] However, this Court is of the considered opinion that Schedule 2 of the SPA stipulates and defines the common facilities for Block B, which the defendant undertook to build. Clause 28(1) states that the common facilities must be completed within 36 months from the date of the SPA. In the present case, the defendant has not provided any evidence that the common facilities for Block B are completed within 36 months of completion period. [30] This Court is of the opinion that the defendant has failed to raise any bona fide triable issue which warrants the dismissal of the plaintiff’s application, and which must go for full trial for witnesses to be called and be cross-examined. In the circumstances, This Court is satisfied that the plaintiff has proven his case and summary judgment ought to be entered as prayed. 18 Application under Order 18 Rule 19 (1) the Rules of Court 2012 (Enclosure 8) The Law [31] The plaintiff filed the application under Order 18 rule 19 (1) (b), (c) and/or (d) of the Rules of Court 2012 (Enclosure 8) for the Statement of Defence and Counterclaim be struck out. [32] Order 18 rule 19(1) of the ROC provides that:- “(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that:-

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” [33] The law on striking out pursuant to Order 18 Rule 19 of the ROC is settled. In the Supreme Court case of Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, the application of O. 18 r. 19 of the Rules of High Court (in pari materia with O. 18 r. 19 of the Rules of Court 2012) has been held as follows: “The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted 19 when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in para materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” [34] Anantham Kasinather JCA held as follows in the court of appeal case of Khairy Jamaluddin v. Dato' Seri Anwar Bin Ibrahim [2013] 6 CLJ 849 : “[13] The Court of Appeal in England in the case of European Asian Bank AG v. Punjab and Sind Bank (No 2) [1983] 2 All ER 508 opined that, in an appropriate case, a* 21 court of law should decide a point of law in O. proceedings even: 'if the question of law is at first blush of some complexity and therefore takes 'a little longer to understand'. Our Supreme Court in the case of Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 CLJ Rep 14; [1992] 1 MLJ 400 accepted this proposition of law as good law through the judgment of Mohamed Azmi FCJ (as he then was) when His Lordship said: Where the issue raised is solely a question of law without reference to any facts or where the facts are clear and undisputed, the court should exercise its duty under O. 14. If the legal point is understood and the court is satisfied that it is unarguable, the court is not prevented from granting a summary judgment merely because 'the question of law is at first blush of some complexity and therefore takes a little longer to understand (see Cow v. Casey and European Asian Bank AG v. Punjab & Sind Bank at p 516). [14] In our judgment, the aforesaid principle of law pronounced by our Supreme Court in Bank Negara Malaysia v. Mohd Ismail & Ors is not 20 limited in its application to O. 14 proceedings but extends to applications under O. 18 r. 19. We opine to this effect because both applications are summary in nature..." [35] In the present case, the defendant (in the Counterclaim), is claiming for the following declarations:

A declaration that there was force majeure event during the construction;

A declaration that the force majeure event to be implied into the SPA;

A declaration that the purchase price paid for the Property is RM578, 182.00 [36] It is pertinent to note that the issues requiring determination in the main suit and the Counterclaim are identical, namely: a) Whether force majeure event had taken place; b) if yes, whether force majeure must be implied into the SPA; and c) Whether the actual price of the said Property is RM578, 182.86 [37] In allowing the application under order 14 of the ROC (Enclosure 4), this Court determined the issues under contention as follows: a) The incidents complained by the defendant do not constitute force majeure; b) Even if the incidents constitute force majeure, such clause cannot be implied into a statutory contract; and c) The Purchase price of the Property is RM664, 578.00 as stipulated in clause 3 of the SPA. 21 [38] The Counterclaim of the defendant is inextricably connected to the defendant's defence to the plaintiff's claim and in effect the converse of the plaintiff's claim. The relevant issues requiring determination have been answered and discussed at length earlier in this judgment. Consequently, this Court is satisfied that the defendant's Counterclaim ought to be struck out as prayed. Conclusion [39] In a nutshell, after going through all relevant evidence and hearing all submissions by both parties, it is hereby ordered as follows: a. Enclosure 4 is allowed with costs of RM3000.00; b. The Counterclaim by the defendant against the plaintiff dated 2.12.2016 be struck out with costs of RM2000.00 (Enclosure 8). (IZRALIZAM BIN SANUSI) Sessions Court Judge Shah Alam Dated: 21.3.2017 22 Counsel for the plaintiff: Encik Robin F S Lim Messrs Azri, Lee Swee Seng & Co Advocates & solicitors Unit 210, Level 2, Block A Pusat Dagangan Phileo Damansara 2 Jalan 16/11 off Jalan Damansara 46350 Petaling Jaya, Selangor. Counsel for the defendant: Cik Zaitul Naziah binti Mohd soib Messrs Andrew Davis & Co Advocates & Solicitors P-3-13, No.60 Plaza Sri Hartamas 1 (1/70A) Sri Hartamas 50480 Kuala Lumpur.