Helen Lee v 1. ) Must Ehsan Development Sdn Bhd (BA-22NCvC-343-09/2020)

AHMAD FERUZ BIN IZHARUDDIN (NO. K/P: 671213-06-5367) ...DEFENDAN-DEFENDAN

The full trial of this action took place over a period of 8 days wherein 3 witnesses were called by the Plaintiff and 4 witnesses by the $ 1^{\mathrm{st}} $ Defendant.

25.04.2024 Re-examinationHelen Lee (Plaintiff)SP154-73Examination in Chief Cross examinationKevin Teh Chin ChaiSP274-9813.08.2025 Continued cross examination Re-examinationKevin Teh Chin ChaiSP298-110Examination in Chief Cross examination Re-examinationDr. Ling Shih GangSP3110-13114.08.2025 Examination in Chief Cross examinationAr. Leow Sooi ChoonSD1132-17415.08.2025 Examination in Chief Cross examination Re-examinationAzizul Hakim bin Tajul Mulok.SD2175-205

13.10.2025 Examination in Chief Cross examination Re-examinationKent Thew Phang Chun.SD3206-24315.10.2025 Examination in Chief Cross examinationKong Fook ManSD4244-29316.10.2025 Re-examinationKong Fook ManSD4293-299

The Plaintiff's action against all the remaining defendants have been struck out. Hence, the $ 1^{\mathrm{st}} $ Defendant herein will be referred to interchangeably as "the Defendant".

The Plaintiff purchased a Penthouse unit lot in the 1 $ ^{st} $ Defendant's commercial development project known as Garden Office @ Encorp Strand ("the said development") within the mixed development known as Encorp Strand, Pusat Perdagangan Kota Damansara located at Off Persiaran Surian, Kota Damansara, 47810 Petaling Jaya, Selangor Darul Ehsan (hereafter referred to as "the Penthouse"). The 1 $ ^{st} $ Defendant is the developer of the said development.

By a written Sale and Purchase Agreement between the Plaintiff, the 1st Defendant and the State Development Corporation of Selangor dated 07.03.2011 ("the SPA"), the Plaintiff agreed to purchase from the 1st Defendant and the 1st Defendant agreed to sell to the Plaintiff for the total sum of RM 1,735,650.00 being the full purchase price of the Penthouse.

Subsequently, upon completion of the said development, the vacant possession of the Penthouse was delivered in 2013 to the Plaintiff. The Plaintiff then submitted a Defect Report Form to the 1 $ ^{st} $ Defendant and further on the Plaintiff then filed an action against the Defendants named in this suit on 25.09.2020, after about more than 7 years. Plaintiff's claim

The Plaintiff's claim against the $ 1^{\mathrm{st}} $ Defendant, according to paragraph 45 of the Statement of Claim filed are as follows: a. A declaration and/or declaratory order that the Sale and Purchase Agreement ("the SPA") or the Contract dated 07.03.2011 between the parties is null and void ab initio on the ground of fraud and/or fraudulent misrepresentation. b. A declaration and/or declaratory order that the Plaintiff has legally and validly annulled and/or rescinded the SPA or the Contract dated 07.03.2011 between the parties accordingly. c. A declaration and/or declaratory order that there is rescission of the SPA or the Contract dated 07.03.2011 between the parties and that all the Defendants shall therefore make full restitution to the Plaintiff accordingly. d. A declaration and/or declaratory order that all and/or any maintenance fees and/or service charges, quit rent, assessments, rates and other outgoings payable in respect of the Penthouse forthwith do not have to be paid by the Plaintiff at all whatsoever to the $ ^{3 rd} $ Defendant or to any one else whomsoever in relation to the Penthouse. e. The $ 1^{\mathrm{st}} $ Defendant shall, by way of full restitution, fully refund, pay and/or return in full the sum of RM1,735,650.00 as per the SPA or the Contract to the Plaintiff immediately being the full purchase price of the Penthouse after taking into account the discount paid by the Plaintiff. f. The $ 1^{\mathrm{st}} $ Defendant shall be liable to pay and do pay to the Plaintiff the sum of RM6,227.32 being all the fees, costs, charges and expenses suffered, incurred and spent by the Plaintiff to date in relation to the Penthouse. g. General Damages for breach of contract. h. Further and/or in the alternative, damages for fraudulent misrepresentation. i. Exemplary damages and/or Aggravated damages.

However, during the trial, the Plaintiff has abandoned some of the claims against the $ 1^{\mathrm{st}} $ Defendant, which are as follows: i) Paragraph 14.5 of Statement of Claim: Alleged fraudulent misrepresentation on sky walkway were shown to be a direct walkway with no staircases required. PDSo do you agree to abandon your claim about this grievance pertaining this sky bridge steps?ASteps, yesPDDo you agree to abandon the whole claim on this lahAYesPDin respect of walkway? Do you agree to abandon it?AYes” Page 22, Notes of Proceedings, Encl. ii) The Plaintiff also confirmed that her grievances on the unit is limited to only the bridge (pedestrian walkway), bubble lift and water tank. "Mah: She is venting her frustration, you want to do that go to Biro Pengaduan Awam. This is where you follow the law. The law says you want to complaint, you complaint within the first 6 years. Unless there is other reasons. All these things that I see, floor crack lah, kotor lah, could have been done earlier right A Yeah, ok, The three major things only, the bridge, (inaudible), water tank." Page 36, Notes of Proceedings, Encl.

Fraudulent misrepresentation which is the core of the Plaintiff's claim here has been elaborated by the court in the following case which this Court finds guidance: University Teknikal Malaysia Melaka (UTEM) Iwn. Mars Telecommunication Sdn Bhd & Kes Lain [2013] 1 LNS 865 "14. Dalam kes Lee Cheong Fah v. Soo Man Yoh @ Saw Man Yew [1996] 2 BLJ, YA Hakim Abdul Malik bin Ishak (ketika itu) telah menjelaskan tentang dua jenis salah nyata seperti yang berikut: a) innocent misrepresentation and (b) fraudulent misrepresentation. An innocent misrepresentation is false but made by the representor with reasonable ground for believing it to be true at the time when it was made and at the time when the contract was entered into. The usual remedy for an innocent representation would be rescission of contract. On the other hand, fraudulent misrepresentation is said to be false representation made knowingly or without believing its truth, or recklessly, carelessly whether it is true or false. The fraud element that creeps in is certainly actionable in tort for deceit, whilst the contract element allows for repudiation (where the contract is executed) or for damages (where the contract is said to be executed)..."

YA Hakim Gopal Sri Ram (ketika itu) dalam Sim Thong Realty Bhd v. The Kim Dar [2003] 3 CLJ 227 menjelaskan: "Now the elements of actionable misrepresentation are well settled. They are set out as follows in Professor's Mckendrik's Contract Law, 3rd Edition, a leading work on the subject: A misrepresentation may be defined as an unambiguous, false statement of fact which is addressed to the party misled and which materially induces the contract. This definition may be broken down into three distinct elements. The first is that the representation must be unambiguous false statement of fact, the second is that it must be addressed to a party misled and third is that it must be material inducement to entry into the contract. At p.238: Now, it is trite that the expression "misrepresentation" is merely descriptive of a false pre-contractual statement that induces a contract or other transaction. But it does not reflect the state of mind of the representor at the relevant time. The state of mind of the representor at the time he made the representation to the representee varies according to the circumstances of each case. It may be fraudulent. It may be negligent. Or it may be entirely innocent, that is to say, the product of the mind that is free from deceit and inadvertence... Put another way, a misrepresentation is innocent where the representor believes the assertion to be true and consequently has no intention of deceiving the representee". (Chershire & Fifoot, Law of Contract, 6th Edition) It is in particular of state of mind of the representor that determines the nature of the remedy available to the representees." Tidak dapat disangkal lagi, dan ini merupakan undang-undang yang mantap, bahawa beban pembuktian untuk salah nyata secara penipuan/frod ialah tanpa keraguan yang munasabah - Saminathan v. Pappa [1980] 1 LNS 174; [1981] 1 MLJ 121; Chu Choon Moi v. Ngan Sew Tin [1985] 1 LNS 134; Yong Tim v. Hoo Kok Chong & Anor [2005] 3 CLJ 229; dan, Chong Song v. Uma Devi V Kandiah [2011] 3 CLJ 1. Manakala bagi salah nyata selainnya ialah atas imbangan kebarangkalian dan beban itu terletak kepada mereka yang membuat penegasan tersebut selaras dengan peruntukan s. 101 Akta Keterangan 1950." 1st Defendant's Defence

The $ 1^{\mathrm{st}} $ Defendant's defence, in essence are as follows: - a. The action by Plaintiff is time barred; b. The promotional material does not form a valid contract; c. The development was built according to the Sales and Purchase Agreement (SPA) signed between the parties, and according to the laws and regulations by the local authorities. Any amendments were made within the Defendant's allowed scope and it does not change or dismiss the value of the property; d. The grievances do not pertain the Plaintiff's unit where it amounts to a total failure of consideration; and e. There was no fraud or fraudulent misrepresentation by the Defendant. f. There was no total failure of consideration to allow for rescission of the SPA by the Plaintiff. Deliberations of the Court Time Bar issue

The Plaintiff's alleged grievances on the non-functioning bubble lift and the existence of water tank were visible upon collection of keys of the penthouse; sufficient to pursue the action against the Defendant. This was confirmed by the Plaintiff herself during the cross-examination: PD My questions is a very simple questions. 6 items you have issue about. And all this 6 items I say that when you took your key you already know that this are 6 problems? Agree? Page 12 Notes of Proceedings, Encl 198 Mah The questions is you saw all this not there and you had all this questions in your mind? A Yes, that's right. PD The period in which you saw and realized all this issue is when you take the key in August 2013 correct? PD And you filed this legal suit only in September 2020 correct? Page 13 Notes of Proceedings, Encl 198 PD When did you discovered the bubble lift not in operation? A That day I pick up the keys. When I go visited the place. PD Which is 2013 correct? PD Which is more than 7 years before you filed the claim? PD So, when you find out this in your words very un sightly, ugly water tank. So, when you find out this water tank erected over there? When you find out? A On the day that I collect keys. That I was shocked PD This is in 2013? A Yes, I notice said that is a lot of changes made but I not certain who is default. At fault at that time. PD Yes find you are not certain but who is at fault but you notice that the water tank in 2013 already? Page 34 Notes of Proceedings, Encl 198

The Plaintiff's position in this regard was that she admitted to having been aware of the matters complained of but did not commence any action because she did not know who was at fault.

The Plaintiff in actual fact raised the matter before various authorities, demonstrating that she was aware of the allegations she now pursues against the Defendant. The Plaintiff's own discovery application in Enclosure X further underscores that she was fully capable of taking procedural steps, thereby raising the question why pre-action discovery was not pursued at the outset. Such inaction is material, as the claim could have been brought within the limitation period had the Plaintiff acted promptly.

Further in this regard, the Plaintiff, through its re-examination, defended herself by saying that the cause of action only accrued in 2016 after the alleged phone call with Architect Leow (DW-3). A So I see there the bridge is not there and the water tank is there, it not supposed to be there. So, I do make a lot of complaint until in 2016 this architect Leow told me that it changes made is to save cost and in another year 2020 I received a letter from Lembaga Arkitek Malaysia this architect Leow himself admitted that the pedestrian walkway is not in the original drawing plan at all, So, I a bit disappointed and upset so I consulted a lawyer they say that there is a case that I can sued against the developer for fraud. From there I would take immediate actions in 2 years time in 2020 September because I got the letter from Lembaga is July so just short while I take action sue against the developer. PP I bring you to the next questions there was asked of you and the period in which you saw and realized all this issue is when you took the key in August 2013 correct? You answered yes. Then you filed this legal suit on September 2020, correct? Yes. Then you said can I explain why? Can you explain now? A Because the time when I see it there is no bridge and I then... let me gather my thought first can you repeat the questions again? PP It was put you and the period in which you saw and realized all this issue is when you took the keys in August 2013, correct? And then you answered yes. Then it was asked to you again in connection with this you filed this legal suit only in September 2020 correct? Yes, can I explain why? Basically the issue is 7 years. Can you explain this 7 years the different? A I don't agree with this 7 years because I made a lot of complaint only Liaw told me that in 2016 February that there's a lot of changes made. So, I presume must be developer doing something and the confirmation only come in 2020 that they not intent to build the bridge at all for the very beginning. Its reply from Liaw to Lembaga Arkitek Malaysia. Pages 58-59 Notes of Proceedings Encl 198 14 However, it should be noted that the alleged phone call between the Plaintiff and Architect Leow in 2016, if any, only explains the delay of the Plaintiff's knowledge regarding the pedestrian walkway between Encorp Strand Mall and the Penthouse. It does not justify the Plaintiff's delay in making complaints regarding the presence of water tank and the non-functioning bubble lift.

During the trial, the Plaintiff maintained that her grievances as regards the bubble lift and water tank were only brought up via this suit because the Plaintiff alleged she did not know that other grievances could be stated in the Defect Report Form. The Plaintiff further alleged that there was a representative from the Defendant, by the name of Nizam, who has mentioned so. This allegation by the Plaintiff, was however without any evidence to support the same.

In this respect, this Court considers that it is an afterthought as the Plaintiff wrote down in one entry in the said Defect Report Form as in the first entry below, which goes to show that the Plaintiff was aware that she could have used the chance to inform to the Defendant her grievances about the said water tank, bubble lift and sky walkway or other parts outside of the Penthouse unit: Defect ListLocationDescriptionFollow up byDate / RemarkOutside entrance.Floor crack - need to rectify.Residence close need to clean.EnterW.C. dirty.Main areaPaint stain (floor) to be clean-up. Page 76, B1, Encl 156

Furthermore, the Plaintiff's failure to call the Defendant's alleged representative, Nizam, as a witness warrants the invocation of an adverse inference pursuant to Section 114(g) of the Evidence Act 1950 [TAB F-DBA]. Nizam's evidence was clearly material and vital to the Plaintiff's case, particularly given that it could determine the issue of whether the Plaintiff's action is time-barred or not. His evidence would reflect whether the plaintiff was prohibited from venting her grievances from the earliest stage or whether the plaintiff has slept on her rights.

The same applies for the Plaintiff's complaint concerning the non-building of the covered pedestrian walkway. Given its scale, the proposed structure's absence was a patent defect readily discoverable by simple observation upon the Plaintiff taking possession of the property. Following the site visit(s) made by the Court it is clear that the lack of this substantial amenity was open and visible. Therefore, the Plaintiff must be deemed to have had constructive knowledge of its nonexistence from that date. Had this alleged omission truly diminished the property's value or formed a crucial element of the transaction, the Plaintiff's delay in seeking redress or initiating pre-action discovery is inexcusable and strongly suggests that the issue is merely an afterthought.

The Plaintiff claims that the delay was caused by the unanswered phone calls or request for explanation (which is not backed by any evidence) from the Defendant. Even accepting this bare allegation at its highest, the Plaintiff's account of the Defendant's alleged silence provided the clearest possible indication that the dispute had fully crystallised and required formal resolution. Far from justifying the Plaintiff's subsequent delay, the alleged lack of response should have served as the strongest catalyst for prompt legal action. The Plaintiff has provided no evidence whatsoever to explain what impediment prevented her from immediately commencing a formal legal action or sending a statutory letter of demand when, by her own account, she realized the Defendant was unresponsive. Her failure to protect her interests by seeking judicial recourse at that crucial juncture renders her current delay in pursuing this matter entirely inexcusable

Having failed to bring up the matters complained of earlier and within time limit, the Plaintiff's action herein is barred by Section 6(1)(a) of the Limitation Act 1953. Section 6(1)(a) of the Limitation Act 1953 provides as follows: ACTIONS OF CONTRACT AND TORT AND CERTAIN OTHER ACTIONS Limitation of actions of contract and tort and certain other actions

(1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued,that is to say—

actions founded on a contract or on tort

The Plaintiff must have had reasonable suspicion of the averred fraudulent activity by the Defendant after having made complaints to many other authoritative bodies by January 2016. In fact, considering that the installation of water tank is secured by a fence, any reasonable men would have been able to conclude that the presence of water tank is a permanent one, thereby calling for the Plaintiff to be deemed to have had constructive knowledge, as the physical presence of the fenced water tank was a patent matter discoverable upon simple observation. Whether the sales brochure form, promo video and material form part of the SPA dated 7.3.2011.

The Plaintiff claims that she was induced to sign the SPA after being convinced by verbal representation of one Miles and one Cynthia allegedly the Defendant's representative. However, the said Miles and Cynthia were not called as witnesses by the Plaintiff. The Plaintiff could not remember what the verbal representation(s) was given by the said Miles and Cynthia as demonstrated during the trial: And further on in the questions and the answer you say that also during the material point of time I was given impression and also representation and assurances by the first defendant authorized representative and or sale representative. Can you remember who this personal part? People attend to me at that time is Miles Chan and then the other one is a sale marketing manager Cynthia Wei. And he is the one who sign when I purchase the property, he is the one who sign and welcome me to the project. PDSo, you give me 2 names now Miles and Cynthia.AYes.PDDid either of this person Miles and Cynthia tell you that that would be no water tank outside? Did they tell you that they won't be a water tank? Did they tell you that?ANo, they don't tell me anything.PDAnd your other complaint right for example bubble lift. Did they tell you that or show you that the bubble lift will be in operation?ANo. Pages 8-9 Notes of Proceedings, Encl 198

When further asked by the Plaintiff's own solicitors during reexamination as to the reason for not calling the said Miles and Cynthia as witnesses, the Plaintiff gave her opinion: The next question I want to ask you is with regards to the point where Mr.Joshua had asked you last Friday he said regarding whether you are going to call Miles or Cynthia as witnesses later, yes or no? And then you say no. I don't think they want to help me. Can you please explain what do you mean by that? A Because both of them are the ex-employer and they left already. I don't think they want to get themselves in trouble and to 21 say anything about their employer. There something that is not good. I don't think they want to review.

The closest to recalling of the verbal representation by the said Miles and Cynthia was from the Plaintiff's husband, PW-3 who summarized the said verbal representations as follows: I then refer to your Q and A no.11. You mentioned that you were approached by Miles Chan. And in the last 3 sentences of your answers you mentioned all the verbal representations, promises and assurances made by the sales representative I believed it Miles Chan. What were the verbal representations mentioned at that time? Essentially Miles Chan clarified to us what was shown in the promotional material namely the video, the brochure as well as the mock up model. Furthermore, he confirmed that there is a pedestrian walkway in the project and confirmed that the penthouse area would be a spaces and elite area without any encumbrance. Page 113 Notes of Proceedings, Encl 198

Nevertheless, the Plaintiff did not provide any evidence that the said Miles and Cynthia are the employees of Defendant nor called them to the witness stand. This Honourable Court is left with no option but to take the Plaintiff and PW-3's word entirely to determine this issue hence lacks evidence to prove the alleged verbal representation.

Before signing the SPA, the Plaintiff has perused the sales brochure, watched the promotional video, and have seen the mock-up model at the sales gallery at the material time. PD Now, I go on to Q and A 17. So, you answered that after you met with Nicole then you visited the sales gallery on 3 different occasion. Whereby my husband and I finally agreed to make finally agreed. So, you went there on 3 different occasion. How long did you spent each of those visit roughly? A About an hour or sometime can be 45 minutes because you need to consult the sales representative what is it is all about and then is it is to show me the mock up model is right in the office there and then the promo video is playing all the times so we watching the video over and over and then they also show us the sales brochure and then they told us that where is block A, where is B, where is C and then what are the features that they have, and we didn't decide right away so we go back and my husband was very impress of it because he was he think through many time he said this is could be one of the kind in Malaysia because he was attended by 3 component. PD Then it sufficient for us. We will come to those future that you mentioning later and I will be asking you some questions. But for now I am focusing on the 3 occasion and I ask you roughly the duration, you have confirmed to me it's about 45 minutes to 1 hour per visit? PD And you are also confirm that it wasn't so easy to make the decision and you go home and ponder over it? Page 10 of Notes of Proceeding, Encl 198

The evidence above showed that the decision to purchase the Penthouse was made by the Plaintiff after cautious consideration of the information in the promotional materials. Given the Plaintiff's prior experience in property purchase she would have constructive knowledge that promotional brochures and videos function as general marketing representations rather than precise commitments as to the final form of the property. Pages 5 - 6, Notes of Proceedings Encl 198

The Plaintiff insisted that the pedestrian walkway seen in the video should be provided by the Defendant, solely because there was a narration accompanying the promotional video. Hence does that mean the Plaintiff is also entitled to the landscaping, furniture, accessories and other items featured in the promotional video? When put to the Plaintiff's witness, this was the answer: PD Would you agree with me if I would to suggest that if you are relying, if the plaintiff and you are both relying on the promotional videos the mock up properties and also the brochures as what you expect to have at the end of the day would you agree with me that you are also expecting all the trees and all the people there and also all the interior of the photos that was shown in the brochures? We would expect the what were to be built to correspond in all way. I means all those trees as well as people we also understand this are merely artistic impressions. But the existence of the pedestrian walkway and the existence of tanks as big as almost 4 Alphard's cannot be an artist impression because an artist cannot just draw all this out of thin air without the express approval from the 1 $ ^{st} $ defendant. Page 120 Notes of Proceedings, Encl 198

This indicates the Plaintiff is selectively advancing only those matters deemed favourable to herself in pursuing this action.

This is also the case with the entire SPA where the Plaintiff, having complied and performed some parts of the SPA such as collecting vacant possession and making complaints within time stipulated in the SPA as stipulated in clause 17 of the SPA (page 87, Encl 156), should not now be allowed to repudiate the same.

Further, the terms of the SPA clearly stated that all previous agreements, representations, warranties expressed or implied, oral or in writing or by conduct between the parties hereto are hereby superseded and are of no further effect. It is trite law that parties are bound by the terms agreed, regardless of whether the parties actually agreed or not, as held in the case of Polygram Records Sdn Bhd v. Hillary Ang & Ors (Collectively Known As "The Search") & Anor where it was held that it is the general principle of law, that when a party signs the agreement he is bound by the terms contained therein even if he has not read the contents of the agreement. Furthermore, it is also the common principles which govern the law of contract, where the person who contracts by a written document, whether or not he understands the language in which it is written, is bound, in the absence of fraud or misrepresentation, by the terms of that contract, as to which proposition no objection was authoritatively sustained.

If the accessories depicted in the promotional video are to be treated as forming part of the SPA, thereby imposing an obligation on the Defendant to provide them, such a position would effectively amount to a re-writing of the SPA, something which, with respect, falls outside the Court's powers. It would also undermine the parties' contractual autonomy at the time the SPA was executed in 2011.

This Court refers to the following case and wish to adopt the principle of law applied Bruce Elwyn Davey & Anor v. Bandar Raya Development Berhad [2021] CLJU 2582: [39] This also applies to the allegation that there would have been an alleged green area or landscaping area or track as part and parcel of the said Project or property. I do not find that this forms part and parcel of the said Sale and Purchase Agreement. Schedule 4 of the said Agreement and the terms therein do not mention that there was to be built or constructed either within or external of the Project any form of landscaping area or green area as alleged by the Plaintiffs. [40] The Plaintiffs attempted to explain that this is due to the standard form utilized in the Sale and Purchase Agreement and that Form H of the Housing Development Act was utilized in this case. I note the evidence presented by the First Plaintiff during crossexamination on this issue. However, I do not believe that this provides justification for incorporation of such term or that the Plaintiffs were induced by these alleged representations. If indeed that these were material surely an attempt would have been made by the Plaintiffs to have these terms incorporated into Schedule 4 at the very least. [41] I am also of the opinion that the Plaintiffs are attempting to add new terms and conditions that do not appear in the written instrument. Clause 13 of the Sale and Purchase Agreement states that the said property and the materials provided in its construction shall be in accordance with the items laid down in the Fourth Schedule. The alleged representations do not appear in the Fourth Schedule. If I were to agree with the Plaintiffs' contention, then this Court will be rewriting the terms of the agreement to include items that were never agreed upon or included in the said Sale and Purchase Agreement. [42] It is trite law that it is not for this Court to rewrite the terms of the bargain as contained in the written instrument. I refer to the decision of the Court of Appeal in Bank Islam Malaysia Bhd v. Lim Kok Hoe & Anor and other appeals [2009] 6 CLJ 22 where Raus Sharif JCA (as he then was) stated: - "It is trite law that the Court should not rewrite the terms of the contract between the parties that it deems to be fair or equitable. This principle has been clearly expressed in numerous cases. (See SHELL MALAYSIA TRADING SDN BHD v. LIM YEE TECK ORS [1982] 1 LNS 11; WONG PA HOCK v. AMERICAN INTERNATIONAL ASSURANCE CO LTD & ANOR [2002] 2 CLJ 267; M. PAKIAM v. YP DEVATHANJAM [1952] 1 LNS 60; [1952] MLJ 58; and CHARTER REINSURANCE CO. LTD v. FAGAI [1996] 2, All ER 46." I also refer to Sections 91 and 92 Evidence Act 1950."

The failure of the Defendant to build the covered walkway, at best (if any), amounts to a breach of warranty which does not go to the root of the contract, as stated in the case of Zaini Ibrahim V. Ace Credit (M) Sdn Bhd [2024] CLJU 2960 as follows: - [48] I refer to the judgment of Salleh Abas FJ in Tan Chong & Sons Motor Co Sdn Bhd v. Alan McKnight [1983] CLJ Rep 394:- "The word "warranty" in the law of Contract tends to be confusing as it may relate to a term of a contract, or to a separate enforceable promise which is collateral to a contract. (See Anson's 24th Edn., pp. 125-129). Insofar as the word is used to denote a term of a contract, its employment is purely for the purpose of distinguishing the most important terms (known as conditions) from the less important ones (known as warranty), the breaches of which lead to different results and give different remedies to the innocent party. If the term breached is a condition, the innocent party has the right to repudiate the contract and consider himself discharged therefrom and claim damages for the breach. If on the other hand the term broken is only a warranty the innocent party cannot repudiate the contract and his remedy is confined to the claim for damages only. In the case of a breach of a condition it is of course open to the innocent party to treat the matter as breach of warranty and sue for the damages only without having to repudiate the contract. The other context in which the word warranty is used in the law of Contract is a separate precontract statement on the basis of which parties subsequently entered into a contract. Such precontract statements are binding and enforceable as a collateral warranty. It is referred to as collateral because it is external and subsidiary to the main contract. Erskine v. Adeane[1978] 8 Ch 754, De Lessalle v. Guildford [1901] 2 KB 215."

This is because the main purpose of the SPA was for the Penthouse, which the Plaintiff has already received vacant possession of but refused to make good of the said Penthouse. This can be seen when the Plaintiff has taken vacant possession of the Penthouse within the stipulated date, but later during the course of this proceeding, complained of its unsatisfactory condition.

The said unsatisfactory condition was in that manner could be attributed to the Penthouse being left unmanaged resulting in the natural wear and tear due to weather conditions. The said unsatisfying conditions as depicted in the photos put forth by the Plaintiff has already been complained of in the Defect Report Form, yet the Plaintiff repeated the same grievances herein, among others.

The Plaintiff also repeatedly mentioned that the Penthouse was purchased because of the lively atmosphere, which is a relative term, something impossible for the Defendant to control and according to any reasonable man, is not a contract term. In essence, the Plaintiff is claiming damages because the investments it had took a chance on has failed, by pinning the liability to the Defendant, when the development and other units are doing well, with occupancy rate of 70%. PD ... What is the current occupancy of the whole Encorp Strand Garden? A Estimate will be around 70%. PD And how about the current occupancy rate of the Encorp Strand Garden office pent house? A For pent house I will say around 60%. Page 211,Notes of Proceedings, Encl 198

During the course of the trial, the Plaintiff harped on the fact that the area was very quiet contradicting the alleged promise in the promotional material of a lively and happening atmosphere. However this Court feels that it was out of the Defendant's control that the purchasers of this development obtained the unit to be made as office spaces where the office area is generally quiet, especially during the office hours which was said to be commonly from 9am to 6pm or 7pm according to the Defendant's witness: PDYou mentioned that it is taken in during office hours?AYes, I mean during office hour before 6 I think there are activities over there. There are people over there.PDSo, what time is the office hours?A9.00 to 6.00 or maybe up to 7.00 pm. Page 242 Notes of Proceedings, Encl 198 Whether the development was in accordance to the SPA and laws and regulations of the local authority and whether amendments are within the allowed scope

The Plaintiff's complaint regarding the water tank includes that of it has been changed from that of an allegedly circular ones to a big unsightly water tank which allegedly amounts to a fraudulent misrepresentation by the Defendant. The Plaintiff then proffered evidence to state that the Defendant has allegedly committed fraudulent misrepresentation against the Plaintiff because the building, before the water tank was placed, had already been built in such that it can cater for the load of the alleged big unsightly water tank, compared to the initial circular ones the Plaintiff choose to perceive based on the SPA.

The promotional material does not form part of the contract/SPA, the water tank does not encroach the Plaintiff's unit, the SPA provides for the Defendant to vary the building plan where necessary and any marking in the SPA was merely indicative. The same points pertaining to the promo material are again relevant on this issue.

The Plaintiff also has purchased other properties previously where this purchase was not her first. The location of water tank on the highest point of the unit is a common, expected structural feature of the building, aligned with the industrial practice. The Plaintiff also has had the chance to consider the purchase cautiously over multiple visits to the sales gallery, it is only prudent and reasonable for the Plaintiff to confirm what the four circular diagrams in the SPA are, instead of assuming that it was some landscaping, (which was however not done) as affirmed by the Plaintiff's witness during the re-examination: I now bring you to the next questions posed in your cross examination specifically to your Q and A no.36 in your witness statement. It was put to you Dr.Ling by defendant counsel that landscaping was merely assumption made by you and you said I disagree and I will comment. Please do so now? So, essentially that how it is. The circular structures in the SPA plans were inconspicuous. We always image the place to be something like what was shown in the brochure as well as the promotion material. That the area there is supposed to be spacious and airy. So, we never actually look at the SPA plans to in great detail. If we had look in greater details also we would have expected the SPA plans to correspond to what was shown in the promo materials. Therefore if you were to look at the circular structures there we will assumed them to be some kind of landscaping or structure. It supposed it was our impression that time because we expect what was in the SPA plan to correspond to the brochure and promotional material. So, because of that we never suspected that this circular structures we water tanks. In fact even when we took vacant possession we also didn't think, we didn't know that the circular structure were actually water tanks because a tank that we saw at that time were taking vacant possession was a cuboidal huge tank which was totally different from a circular structures. We only knew that this circular structures were impact water tanks after the discovery order in 2023 where architect Kevin informed us that this circular structures were actually water tanks. Architect Kevin also told us that the plans in the SPA were incomplete and reduced plans and therefore he would need to look at the original plans to confirm that the circular structures were actually water tanks. And these circular structures were actually means to conceal the plans of the developer that they intended to build the large cuboidal tank. Pages 127 - 128, Notes of Proceedings, Encl 198

The Plaintiff's witness answer above, further confirmed that the Plaintiff did not peruse the SPA before signing and now is seeking remedy from this Honourable Court after neglecting to exercise due diligence, in addition to the following answer during cross-examination. PD Clause 34, can you explain to me why you said clause 34 you are not bound? Because I relies, I signed this contract and mutual this purchasers because of what you presented to me. What you shown to me that is to the promo material said that is a connection bridge upon the Encord more that side to my garden office right in front. But at the end you did not built. And not intend to built because it is not shown in the original plans. You know that in the very beginning before I sign this contract you know that you going to built it. But you tell nice you showed me in the promo video to induce me to go and sign this contract. For

The alleged unsightly water tank did not encroach the Plaintiff's unit and was located at the common area, thus not owned by the Plaintiff. This was confirmed by the Plaintiff herself: PD So, do you agree that the water tank is built on common property? Page 60, Notes of Proceedings, Encl 1

Since the water tank is located at the common area and does not encroach the Plaintiff's property, the Plaintiff does not have any right to dictate as to how it was built. A layman purchaser would have been able to identify that the fours circles are located outside of the property, upon reference to pages 97,98 and 99 of the Bundle of Documents. The lack of attention of the Plaintiff to peruse the terms of the SPA before signing as evidenced above, should not be permitted to form a basis for a claim against the Defendant, nor warrant intervention by this Honourable Court to cure the Plaintiff's self-imposed neglect.

Considering the Penthouse are equipped with a Joint Management Body (JMB) (which was named as one of the Defendants), the right to litigate any issue regarding the common property (if any) against the $ 1^{\mathrm{st}} $ Defendant which is the developer lies on the said JMB instead of the Plaintiff, especially after 7 years of obtaining vacant possession of the Penthouse. This is also in line with clause 15 of the SPA where the Plaintiff as a purchaser is prohibited from varying or cause to vary the building plans.

Additionally, the entire basis of the evidence by the Plaintiff's $ 2^{\mathrm{nd}} $ witness (PW-2) lies on the building plans obtained. From the building plan, the said witness then has measured and provided this Honourable Court with its opinion that the Defendant and/or its architect has had knowledge that the water tank to be built will be at a certain volume. PW-2's evidence also include imputing the Defendant's architect as incompetent and irresponsible. Having complained to the Board of Architects Malaysia (Lembaga Arkitek Malaysia (LAM)) at page 193 Common Bundle of Documents, (B1) Encl. 156, the Defendant's architect has provided a detailed response to LAM (page 208-215 Common Bundle of Documents, (B1) Encl. 156, where LAM did not find any actionable conduct on the part of the architect in respect of the complaints by the Plaintiff, including the erection of the alleged unsightly water tank (page 26, B5, Encl. 173).

Despite allegedly not being satisfied with the finding of LAM during the trial, the Plaintiff did not take it on further with LAM (page 216 Common Bundle of Documents, (B1) Encl. 156): PD I put it to you that by virtue of this letter the LAM have investigated, the LAM has found that those complaint you raised there is no kesalahan, there is no wrong doing on the part of architect? A No, I disagree. Page 42,Notes of Proceedings, Encl 198

Vide the SPA, the Plaintiff also has expressly accepted the building plan and the Defendant's entitlement to amend the construction where expedient and necessary, as mentioned at Schedule 2 of the SPA at page 96, B1, Encl 156. The amendments by the Defendant to the building plan as can be seen in the amended building plans were due to the requirements by the authority, according to the Defendant's $ 1^{\mathrm{st}} $ Witness (DW-1), Ar. Leow Sooi Choon, in Q&A No. 8 of his Witness Statement Encl. 199:

Q: Why would you say so? A: The 1st Defendant won't be able to amend the building plan unilaterally. It must be borne in mind that any alteration that adds on to or changes the existing building plan must be submitted to the local authority for approval and all the amendments shall comply with the Uniform Building By-Law applicable to the locality. Only after the approval is granted by the local authority, the 1st Defendant may carry out the building works based on the approved building plans. I, as the project architect will then supervise the building works to ensure that they are being carried out in conformity with the layout and specifications of the approved building plans.

The Defendant also would not have any chance to compromise with any requirements, as confirmed by the Defendant's Witness whose expertise involved submission of getting up of development project and building plans to the authority: PD You were asked by the plaintiff counsel that you were involved in submission to authority to which you have answered not for this project? A Correct. PD So, could you please explain to this court how is the procedure in general of a submission to authority? A Well like I say I joined Encorp back in 2011 as a Senior Executive of Business Development unit but prior to confirmation after my probation I was transferred to a department called projects department. So, during which time I was involved in the project in Johor Bharu and also Batu Ferringhi to procure the development order approval building plans and also coordinate with consultant for the approval submission. So, those were the project that I got myself involved with submitting this plans to obtain up to approval stage and handing over to the implementation unit. And in July 2023 is when I got transferred back to business development unit. PD After the submission to the authority can developers then makes some changes? A Its all up to the technical department from the local authority side. Even though at development order stage they have procure the approval, coming to the $ 2^{nd} $ stage of getting the building plans approval if there are other technical departments have comment they will need to amend whatever that they submitted until they get full approval. PD Can the developer company compromise on what the authorities have asked to amend? A No, they cannot. PD And in that situation what can the developer do? A They have to comply whatever the authorities had produced the instruction for them for them to comply. Pages 202 - 203, Notes of Proceedings, Encl 198

Therefore, the construction and execution of the Development by the Defendant were performed in strict compliance with the relevant statutory provisions, building codes and requisite approvals from the authorities. The Plaintiff is precluded from dictating or challenging the details of the approved structural plans merely to match personal preference, particularly where those details are required for the functional necessity of the building. Whether there was fraudulent misrepresentation by the defendant

The Plaintiff's core argument is such that it has been fraudulently misrepresented by the Defendant for including visuals of covered walkway in its promotional materials but ended up did not building the said walkway. Yes, they can make but the thing is the changes said they make is fraudulence already. So, its fraudulence so if they cannot make changes like that because what in the beginning they told me that there is a bridge. There is a connection bridge. But they in the drawing plan they didn't have it. So, its like these are not changes. This are lie. This are fraudulence. You are making a fault already. You are telling lies already. So, what changes is that its not changes, its lied, fraudulence. I cannot agree with this that you can make changes. Page 17, Notes of Proceedings, Encl 198

The Plaintiff also claimed that regardless of the terms of the SPA signed, reliance has been placed on the visuals in making decision to purchase the Penthouse and thus commenced this claim against the Defendant.

This Court however, is of the opinion that the promotional materials did not form part of the SPA signed and were for advertisement purposes which should be treated as an invitation to treat, rather than a contract, as decided in the case of Bounty Dynamics Sdn Bhd v Chow Tat Ming & Ors [2015] 9 CLJ 422: "(4) As for the legal bindingness of the representation in the advertisement brochure as a pre-contractual document, it was common ground that there existed an exemption clause. As such, the representations made should be read as mere 'puffs' and not binding promises. At most, these were in the nature of an invitation to treat. The other representations made in the post-contractual newsletters also should remain as representations without contractual effect made to the tenants of the said complex at large. There was no evidence of deceit or fraudulent misrepresentation in these circumstances. In this connection, the JC had failed to evaluate this exemption clause leading to an error of law."

The visual representations in the promotional materials are nonbinding and subject to the express disclaimer clause, which made known the Plaintiff that such content was for illustrative purpose only. The promotional materials are legally insufficient to displace or vary the terms and conditions set forth in the duly signed SPA which even the Plaintiff has observed and complied in part (as to the collection of vacant possession).

Reliance is placed on the case of Yeohata Machineries Sdn Bhd & Anor v. Coil Master Sdn Bhd & Ors [2016] 2 CLJ 414 to guide us on the elements of fraudulent misrepresentation needed to be fulfilled by the Plaintiff: "[23] In order to sustain an action for fraudulent misrepresentation, the plaintiffs must establish five essential facts. First, there must be a representation of fact by words or by conduct and mere silence is not enough. Second, the representation must be made with the knowledge that it is false, ie it must be willfully false or at least made in the absence of any genuine belief that it is true or recklessly (ie without caring whether his representation is true or false (Derry v. Peek (1889) 14 App Cas 337). Third, the representation must be made with the intention that it should be acted upon by the claimant, or by a class of persons which will include the claimant, in the manner which resulted in damage to him. Fourth, it must be proved that the claimant acted upon the false statements. Lastly, it must be proved that the claimant has sustained damage by so doing (see Bradford Third Equitable Benefit Building Society v. Borders [1941] 2 All ER 205 at p 211, per Viscount Maugham)."

The visuals in the promotional video and brochure, which show neither a large nor a small water tank, do not constitute any representation of fact by the Defendant. The silence is further confirmed by the Plaintiff herself during cross-examination: PD Did either of this person Miles and Cynthia tell you that that would be no water tank outside? Did they tell you that they won't be a water tank? Did they tell you that? A No, they don't tell me anything. Page 9, Notes of Proceedings, Encl 198 PD So, are you able to show me based on the S&P entered into by you and the developer Are you able to show me where it is promised that there will be no water tank in the S&P? Are you able to show me? Yes or no. A No. There's no promise that they didn't say that there won't be any water tank. It is not mentioned here. Page 29, Notes of Proceedings, Encl 198

Likewise, there was nowhere in the brochure that stated that there will be a pedestrian walkway connecting the Penthouse to Encorp Strand Mall. The Plaintiff's case rests almost entirely on a brief segment of the promotional video, which depicts the walkway for no more than a few seconds. Despite this, the Plaintiff elected not to address the disclaimer contained in the same promotional material.

The promotional materials contained explicit disclaimers stating that the visuals were for illustrative purposes only and were subject to change. The presence of these disclaimers is wholly inconsistent with an intention to deceive, and demonstrates that the Defendant neither knew any such representation to be false nor made it recklessly. The promotional materials at all times used descriptions which are subjective and non-verifiable and at best forms exaggerated opinion amounting to puffery. The fact that the promotional materials uses relative terms was acknowledged by PW-3 when cross-examined: PD I then refer to Q and A no.14 of your witness statement. I put it to you that, in your words Garden Office @ Encorp Strand is a commercial property development that has been planned to deliver outstanding is investment value. I put it to you that outstanding investment value is eventually a subjective and relative terms would you agree with me? A Yes I agree PD Now would you agree with me if I were to suggest that the air of exclusivity is also a relative and subjective terms? This was represented to us in the brochure and this was what was said in the brochure and this actually prompted us and therefore these are all what was has been represented to us by the developer in the brochure, video as well as the mock up model. Page 114, Notes of Proceedings, Encl 198

As to whether the walkway would be approved or not would depend on the local authority and the space for the alleged proposed walkway as seen by the Plaintiff in the video or as formulated by the Plaintiff's expert witness in the course of the trial were located on the land surrendered by the Defendant to the local authority.

As the SPA clearly provided for earlier representations to be superseded, the Plaintiff is barred from now raising the argument that the walkway should form part of the contract or that there is any misrepresentation by the Defendant.

PREVIOUS AGREEMENTS AND REPRESENTATIONS SUPERSEDED All previous agreements, representations, warranties expressed or implied, oral or in writing or by conduct between the parties hereto are hereby superseded and are of no further effect. Findings of this Court i) Pertaining to the pedestrian walkway, the duration of the promo video was about 18 minutes long yet the pedestrian walkway only appeared for a mere 8 seconds and the brochure did not at all feature the said walkway. ii) The promo materials being the video and sales brochure both contain disclaimers with the SPA containing clause 34 (which forms part of the SPA agreed upon by the plaintiff) stating that all previous agreements, representations, warranties expressed or implied, oral or in writing or by conduct between the parties are superseded and of no further effect. iii) The plaintiff has bought other properties and cannot be deemed to be someone who is naive or ignorant and easily swayed into buying properties. iv) Case precedents, amongst others being the decision of Gopal Sri Ram JCA in Eckhardt Marine GMBH v Sheriff Mahkamah Tinggi Malaya & Ors (2001) 3 CLJ 864 has held that the information contained in the brochure could not be said to have been incorporated as a term of the SPA since as a general rule, an advertisement is considered by the Courts to be not an offer but a mere invitation to treat. v) The SPA entered into willingly by the plaintiff never promised the pedestrian walkway and every facet as promised in the SPA was delivered to the plaintiff. vi) The fact that the plaintiff filled the defect form and sent emails multiple times to several parties regarding her dissatisfactions pertaining to the penthouse demonstrates high resourcefulness on the part of the plaintiff thus this contradicts the notion that the plaintiff was a mere layperson/homemaker hence cannot feign ignorance of the law in pursuing this action only in 2020 though vacant possession was delivered 7 years previously, ie in 2013. vii) This Court is of the finding that the plaintiff was already aware of any shortcomings in 2013 hence the plaintiff is disentitled from claiming protection under section 29 of the Limitation Act. viii) As regards the alleged incompetency of the defendant's architect, the investigation by the Lembaga Arkitek Malaysia has not supported the plaintiff's position and the plaintiff did not further challenge such an outcome/finding. ix) Pertaining to the water tank, with the plaintiff arguing that no image of water tanks being shown in the brochure, it is further noted that the brochure has a disclaimer clause. Its presence is a necessary service for the entire block with it being situated on common property and not encroaching into the perimeter of the plaintiff's property. Furthermore, its presence is shown diagrammatically as 4 circles in the SPA plan. The $ 2 ^{n d} $ SCH of the SPA entered into by the plaintiff allows the vendor to make changes from time to time to the building plan, storey plan and site plan. Clause 14 of the SPA again allows the vendor to make changes or deviations without resulting in the annulling of the sale and purchase or exposing the vendor to a claim by the purchaser. x) The plaintiff's own expert witness agreed during trial that the diagrammatical symbol of 4 circles is likely to be a water tank and further agreed that it would not be unreasonable to expect the water tank to be on the top floor. xi) It is also observed that amongst the 28 penthouses across 14 blocks in the development, no other suit has been filed by the purchasers (including those from the lower floors). xii) A claim for restitution is only available when there is a total failure of consideration which is not the situation herein, in that the penthouse unit as per the SPA has been delivered and taken up by the plaintiff. [61] Based on those considerations, this Court is the considered opinion that the plaintiff has failed to prove fraudulent misrepresentation on the part of the $ 1^{\mathrm{st}} $ defendant on a balance of probabilities. The suit is hereby dismissed with costs. Dated 17th May 2026 HIGH COURT OF MALAYA AT SHAH ALAM SELANGOR DARUL EHSAN PARTIES Plaintiff: Ronnie Yoon Kok Seng M/s Scully. Yoon Advocates & Solicitors Suite C3-5-5, Level U5, Block C3, Solaris Dutamas, No.1, Jalan Dutamas 1, Hartamas Heights, 50480 Kuala Lumpur. 1 $ ^{1 \mathrm{st}} $ Defendant: Chuah Jo-Shua M/s Zaid Ibrahim & Co Advocates & Solicitors 51-22 B &C, Menara BHL, Jalan Sultan Ahmad Shah, 10050 Penang.