Ho Kam Wah @ Ho Kim Wah v Began Land Sdn. Bhd. (BA-22NCVC-627-11/2015)

By Notice of Application dated 21 March 2018, the Plaintiff (Mr. Ho Kam Wah @ Ho Kim Wah) seeks for an Order (Enclosure 97) to stay the execution of the Consent Order dated 28 June 2016 and the Order dated 5 March 2018 in Enclosure No. 55 pending the disposal of the Appeals No. 1, 2 and 3.

Appeal No. 1 – in respect of the Plaintiff’s appeal against the Court’s decision on the 30 January 2018 in dismissing the Plaintiff’s 2 Originating Summons to set aside the

Appeal No. 2 – in respect of the Plaintiff’s appeal against the Court’s decision in allowing the Defendant’s application for a

Appeal No. 3 – in respect of the Plaintiff’s appeal against the Court’s decision in dismissing the Plaintiff’s application for a stay of proceedings in Enclosure No. 71.

The cause papers for this application are as follows :

The Plaintiff’s Notice of Application dated 21

The Plaintiff’s Affidavit in Support affirmed by Ho Kam Wah @ Ho Kim Wah dated 20 March 2018 (Ho’s Fifth Affidavit); and

The Defendant’s Affidavit in Reply affirmed by Yeo Wee Meng on 29 March 2018 (Yeo’s Fourth Affidavit). FACT OF CASE

On 25 November 2015, the Plaintiff had commenced this suit against the Defendant. Nevertheless on 28 June 2016, the Plaintiff 3 and the Defendant had entered into a Consent Order, in the terms as set out in the Consent Order amongst others are as follows: “….(ii) bahawa Defendan akan memajukan dua (2) unit rumah kediaman jenis rumah bandar (“town houses”) di atas lot tanah individu yang sama berkeluasan tanah sebanyak satu ribu lapan ratus (1,800) kaki persegi iaitu dua puluh empat (24) kaki kali tujuh puluh lima (75) kaki dengan kawasan dibina (“built up”) seluas kira-kira satu ribu (1,000) kaki persegi setiap satu berdasarkan pelan-pelan pembinaan yang telah diluluskan (“approved building plans”) oleh Pihak Berkuasa berhubung pembangunan di atas Hartanah tersebut dalam tempoh tiga puluh enam (36) bulan dari tarikh perintah ini;…………. …(iii) berdasarkan pelan-pelan pembinaan yang telah diluluskan ("approved layout plans") oleh Pihak Berkuasa berhubung pembangunan di atas Hartanah tersebut, Defendan adalah dibenarkan untuk membina tujuh puluh

unit rumah kediaman berkembar (3) tingkat di atas hartanah tersebut. Sehubungan dengan perkara ini selepas Defendan menjual tiga puluh lima (35) daripada tujuh puluh

rumah kediaman berkembar tiga (3) tingkat yang dibina tersebut, Defendan akan memberi notis kepada Plaintif untuk memilih tujuh (7) unit rumah kediaman berkembar tiga

tingkat yang dirujuk dalam perenggan (i) di atas dan dua

unit rumah berupa rumah bandar (“town houses”) yang dirujuk dalam perenggan (ii) di atas dan Plaintif adalah dikehendaki untuk memilih tujuh (7) unit rumah kediaman berkembar tiga (3) tingkat tersebut dari baki tiga puluh lima

unit rumah kediaman berkembar tiga (3) tingkat serta dua (2) unit rumah berupa rumah bandar (“town houses”) tersebut dalam tempoh tujuh (7) hari dari tarikh penerimaan 4 notis Defendan. Sekiranya Plaintif gagal untuk membuat pilihan tujuh (7) unit rumah kediaman berkembar tiga (3) tingkat tersebut serta dua (2) unit rumah berupa rumah bandar (“town houses”) tersebut dalam masa sepuluh (10) hari dari tarikh penerimaan notis tersebut, Defendan (7) unit rumah kediaman berkembar tiga (3) tingkat tersebut serta dua (2) unit rumah berupa rumah bandar (“town houses”) tersebut bagi pihak Plaintif. Bagi maksud klausa ini, notis kepada Plaintif hendaklah dihantar kepada alamat No. 1, Jalan Baru, Desa Ros, 43000 Kajang, Selangor melalui surat pos berdaftar……. ….(ix) bahawa Peguamcara Defendan adalah diberikuasa yang tidak terbatal (“irrevocably authorized‟) untuk menyerahkan (“deliver”) Borang-Borang Pindah Milik (Borang 14A Kanun Tanah Negara 1965) memihak plaintiff, suratan-suratan ikatan hakmilek (“original documents of title”), suratan ikatan hakmilik strata (“original strata document of title") dan kunci-kunci berhubung unit-unit rumah kediaman berkembar dan rumah kediaman jenis rumah bandar (“town houses") yang dirujuk dalam perenggan (i) dan (ii) di atas apabila Certificate of Practical Completion untuk bangunan unit-unit rumah kediaman yang dirujuk di perenggan (i) dan (ii) di atas dikeluarkan oleh Akitek atau pada satu masa yang lebih awal yang dipersetujui di antara Plaintif dan Defendan berserta wang sebanyak Satu Juta (RM1,000,000.00) yang dirujuk dalam perenggan (vi) di atas kepada peguamcara Plaintif sebagai Pemegang Amanah (“Stakeholders") untuk dimajukan kepada Plaintif dalam masa Dua Puluh Satu (21) hari dan tarikh Borang Pindahmilik Hartanah Lot 2889 diadjudikasikan dan dikemukakan kepada Pejabat Tanah berkenaan untuk didaftarkan di atas nama Defendan atau 5 nomineenya dengan kos dan perbelanjaan berkaitan dibiayai oleh Defendan;……………..”

On 8 May 2017, the Plaintiff had commenced a suit in Shah Alam High Court Originating Summons No. BA-24-523-05/2017 to set aside the Consent Order. Nevertheless, on 30 January 2018, the Court had dismissed the Originating Summons;

The Defendant had sought for a Consequential Order in Enclosure 55 to enforce and / or to give effect to the Consent Order dated 28 June 2016. At the same time the Plaintiff had apply for a stay of proceeding in Enclosure 71. Both the matter was heard before this court;

On 5 March 2018, this court had dismissed the Plaintiff’s application in Enclosure 71 and had allowed the Defendant’s application in Enclosure 55 with cost;

On 5 April 2018, during the clarification of the Court Order for Enclosure 55, this Honourable Court ruled that : “Permohonan Defendan untuk menguatkuasa Perintah Persetujuan dikekalkan tanpa apa-apa perintah sampingan”

Hence, dissatisfied with the decision, the Plaintiff is now seeking to stay the execution (Enclosure 97) of the Consent Order dated 28 June 2016 and the Order in in Enclosure 55 that was granted by this court on 5 March 2018. 6 PARTIES’ARGUEMENTS

The Plaintiff’s counsel submitted that the execution of the Consent Order dated 28 June 2016 and the Order dated 5 March 2018 in Enclosure 55 should be stayed pending disposal of the Appeals 1, 2 and 3 in order to determine the validity of the Consent Order in the Appeal. If the execution of the Consent Order dated 28 June 2016 and the Order dated 5 March 2018 in Enclosure 55 were not stayed and Appeals 1, 2 and 3 were allowed by the Court of Appeal, there exists a real risk that the Appeals 1, 2 and 3 will be rendered nugatory;

Further, the counsel had submitted that the stay of execution of both the Consent Order dated 28 June 2016 and the Order dated 5 March 2018 in Enclosure 55 is necessary in order to preserve the integrity of the Appeals 1, 2 and 3, to prevent further injustice to the parties involved and as per all other grounds that were stated in the affidavits as affirmed by Ho Kam Wah @ Ho Kim Wah;

On the other hand, the Defendant strongly opposed Enclosure 97, which is an abuse of process and another attempt to stay the proceedings here after a similar application for stay in Enclosure 71 has been dismissed by this Court on 5 March 2018. Therefore, the learned counsel had submitted that this second application for a stay herein is a “second bite of the cherry” and ought to be dismissed in limine. PRINCIPLES ON STAY OF EXECUTION

Section 73 of the Courts of Judicature Act 1964 provides as follows : 7 An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court below or the Court of Appeal so orders and no intermediate act or proceedings shall be invalidated except so far as the Courts of Appeal may direct Rule 13 of the Rules of the Court of Appeal 1994 states: An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the High Court or the Court so orders and no intermediate act or proceedings shall be invalidated except so far as the Court may direct. As provided in the two statutory provisions, whether a court grants a stay of execution or stay of proceedings is an exercise of judicial discretion dependant on the particular facts adduced in that court. Accordingly, judgments on these matters are purely illustrative and have no binding effect. The Court of Appeal held in Structural Concrete Sdn. Bhd. v. Wing Tiek Holdings Bhd. &Ors. (1977) 1 MLJ 581, (1997) 1 CLJ 300: “…..Exercises of judicial discretion are not judicial precedent because they are only authority for the facts of the particular case…”. It is trite law that the burden and onus is on the Plaintiff in this case to prove special circumstances and this must be explained and / or shown in the Affidavit. Kosma Palm Oil Mill Sdn. Bhd. & Ors v. Koperasi Serbausaha Makmur Bhd (2004) 1 MLJ 257, 8 269 (FC), Augustine Paul JCA (as he then was) delivering judgment of the court : "……….[1] There are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one; it is an example of special circumstances. As nugatoriness is a species of special circumstances, a mere reference to it is sufficient to convey the correct legal impression, and any attempt to restrict the grant of stay to nugatoriness, quite apart from its impropriety, will severely restrict the grounds upon which an applicant may rely. Therefore, the applicants were wrong in submitting that the nugatory approach was not a matter for consideration in this case that only the special circumstances approach was relevant They would have been correct if they had said that they were not relying on nugatoriness but on some other species of special circumstances……….The onus is on the applicants to demonstrate the existence of special circumstances to justify the grant of a stay of execution. The reasons must relate to the enforcement of the judgment. They must be deposed in the affidavit filed in support of the application (see Syarikat Berpakat v Lim Kai Kok (1983) 1 MLJ 406). Where it is alleged that there is a danger of the unsuccessful party not being repaid if its appeal is successful for any reason like, for instance, the insolvency of the other party, this must be shown in the affidavit (see The Annot Lyle

11 PD 114)…………….”

In the case of Leong Chee Kong & Anor v Tan Lena Kee (No.2)

5 CLJ 408, the Court considered the special circumstances approach and the nugatory approach and came to the conclusion 9 that the nugatory principle is in itself a special circumstance and the correct legal position is the special circumstance test. Similarly in the case : Ming Ann Holdings Sdn. Bhd. v. Danaharta Urus Sdn Bhd (2002) 5 CLJ 380 (CA), Abdul Hamid Mohammed JCA in the Court of Appeal held as follows: "……..[2].... The most important factor for consideration is granting a stay appears to be whether the appeal if successful is rendered nugatory. It does not matter whether the nugatory factor is considered under the head of "special circumstances" so long as it is considered………….”

In deciding whether proceedings can be stayed pending the disposal of an appeal, the following should be considered :

Whether the applicant can show special circumstances – Jagdis Singh a/l Banta Singh v. Outlet Rank (M) Sdn. Bhd. (2013) 4 MLJ 213, (2013) 3 CLJ 47. An applicant can demonstrate special circumstances when his or her appeal to the Court of Appeal will be rendered redundant if proceedings in the High Court are not stayed;

In Chinese Chamber Realty Pte Ltd. and others v. Samsung Corp (No. 2)(2003) 4 SLR 313, at para 3, the Singapore High Court considered the balance of convenience (now popularly known as balance of justice), namely a comparison of the existence, nature 10 and extent of prejudice which may be suffered by the parties if proceedings are stayed or otherwise;

If an application to stay proceedings constitutes an abuse of court process, such application should be refused – Jagdis’s case (supra);

Whether there is an unexplained delay in applying for a stay of proceedings – MCAT Gen Sdn. Bhd. v. Celcom (Malaysia) Bhd. (No. 2) (2007) 8 MLJ 107 FIRST ISSUE Should this court “re-open” the decision once this court has pronounced the decision on the same issue??

It is to be noted that on 5 March 2018, this court has already dismissed the application for a stay of proceedings in Enclosure 71 on the grounds as follows :

There are no special circumstances for a stay;

The Plaintiff can still choose the units tentatively under the Consent Judgment and there is no issue of “nugatoriness”; 11

On the other hand, the Defendant will be prejudiced in a manner which cannot be adequately compensated by costs if the Plaintiff do not choose the units causing the Project to be delayed; and

There is nothing “irreparable” for the Plaintiff and the Plaintiffs’ interests are commercial in “dollars and cents”. Even if (which is denied) there is any shortening of “town houses”, this can be compensated by damages. Having read the relevant affidavits that was filed pursuant to Enclosure 97, to my mind the same ruling would equally apply. Enclosure 97 is an application for a stay of proceedings herein which awaiting for the Appeal to the Court of Appeal against Yang Arif Datuk Azimah Binti Omar decision in Suit 523 and also the Appeals to the Court of Appeal against the decision of this court on Enclosure 55 and 71. The question that comes to my mind is : what is the difference between a stay of Enclosure 55 pending the Appeal against the decision in Suit 523 applied for in Enclosure 71 and a stay of the Order given for Enclosure 55 pending the same Appeal against the decision in Suit 523 and also Appeals against the Order for Enclosure 55? In essence, the Plaintiff just disputes the choosing of any units in accordance with the Consent Order in which I have already canvassed and decided on this issue. On this issue, it is best to quote the case of : Hartecon JV Sdn. Bhd. v. Hartela Contractors Ltd. (1996) 2 MLJ 57, 66-67, 12 “………….We cannot over emphasize the proposition that once a judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened willy-nilly. One may then ask : how is this approach to be reconciled with the decision in Harrison? The answer to that question lies in recognizing that the principle for which that case is authority applies only where it is demonstrated that the court plainly lacked jurisdiction to make the order complained of : provided, of course, that the order in question has not been drawn up and perfected. To extend the scope of that principle would be to effectively demolish the requirements of certainty and finality which are the two pillars on which the judicial process rests……….”

It is also trite law that a decision during one stage of proceedings will bind the next stage i.e. Res Judicata will apply in respect of subsequent applications in the same Court. In the case of: Government of Malaysia v. Dato’ Chong Kok Lim (1973) 2 MLJ 74,76 : “……………….if a decision has been given with respect to a matter or part of a matter in controversy between the parties by a court of competent jurisdiction it remains binding in the subsequent stages of the same proceedings in the same court and cannot be re-opened in that court. In my view an erroneous decision irrespective of whether it is on a question of law or fact operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision seems to have no bearing upon the question whether it operates as res judicata or not. Until that decision 13 is reversed or set aside on appeal its finality and binding force remain operative on the parties…….. ” Similarly, in the case of: Tenaqa Nasional Bhd. v. Prorak Sdn. Bhd. (2000) 1 MLJ 479, 490-491: “…………….The rule in Henderson v Henderson applies not only to separate proceedings but also to subsequent stages of the same proceeding. In Government of Malaysia v. Dato Chong Kok Lim [1973] 2 MLJ 74 the defendant applied to strike out the plaintiffs statement of claim on certain grounds. That application was dismissed by Chang Min Tat J (as he then was). Later, the defendant took out another application to strike out the action based on grounds different from those relied upon in his earlier summons. It was held that the defendant's second application was barred by the doctrine of res judicata. Sharma J, when dismissing the second summons said (at p 76): A decision given by a court at one stage on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit. (See Peareth v Marriott (1883) 22 Ch D 182, Hook v Administrator-General of Bengal and Others 48 I A 187 and In the matter of the Trusts of the Will of Tan Tye (Deceased) Yap Liang Neo v Tan Yew Ghee and Another f1936i MLJ 141 at DP 147-151). Parties cannot raise a second time in the same suit an issue that has already been determined either expressly or by necessary implication. (See Louis Dreyfus v Aruna Chalaayya (1931) 58IA 381). 14 In a later passage in the same judgment, the learned judge is reported as saying at p 76 : The rule is that a matter which might and ought to have been made a ground of attack or defence becomes a matter which was constructively in issue. A matter which might and ought to have been made a ground of attack or defence in the former application but which was not alleged as such a ground of attack or defence is for the purposes of the plea of res judicata deemed to have been a matter directly and substantially in issue in the former application, that is to say, though it may not have been actually directly and substantially in issue it is still regarded as, having been constructively, directly and substantially in issue. There can be no distinction between a claim that was actually made and a claim which might and ought to have been made. The plea of res judicata applies, except in special cases, not only to points on which the court was actually required by the parties to form an opinion and to pronounce its judgment thereupon but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time. It is only where the plea which is sought to be raised in the subsequent proceedings was not available to the party at the time of the previous proceedings that the decision cannot be constructively res judicata. The rule of constructive res judicata is really a rule of estoppel. The question now raised has 15 already been heard and finally decided. It constitutes but a part of the prayer in the former application, it was not collaterally or incidentally but directly and substantially in issue when end 9 was heard and decided. The answer to the matter is simple. The defendant's only remedy was by way of an appeal against the decision of Mr Justice Chang Min Tat. The matter was heard on merits and finally decided. It is not capable of re-adjudication by the same court in the same suit. The defendant could certainly reagitate the matter before the Federal Court if the plaintiff finally succeeds in obtaining judgment and an appeal is filed against that judgment. The law, as I understand it, is that the defendant is precluded from filing a second application in respect of a matter which was directly and substantially in issue in the earlier application (end 9) in this very court. If a decision has been given with respect to a matter or part of a matter in controversy between the parties by a court of competent jurisdiction it remains binding in the subsequent stages of the same proceedings in the same court and cannot be reopened in that court. In my view an erroneous decision irrespective of whether it is on a question of law or fact operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision seems to have no bearing upon the question whether it operates as res judicata or not. Until that decision is reversed orset aside on appeal 16 its finality and binding force remain operative on the parties…………….”

Having considered this application, to my mind the whole Appeals against Enclosure 55 and 71 is based on the same issue i.e. whether the choosing of units should be done now or to await the Appeal against Yang Arif Datuk Azimah Binti Omar. Based on the above authority, it is my considered view that Enclosure 97 is barned by Res Judicata and issue Estoppel. It is purely a duplicity and an abuse of process.On this ground alone, Enclosure 97 should be dismissed in limine. SECOND ISSUE Is Enclosure 97 an academic in nature?

In “exhibit B” of Yeo’s Fourth Affidavit had referred to the fact that the Plaintiff had already on substance tentatively made the choice of units vide the Plaintiff’s solicitors letter dated 19 March 2018 in accordance with the Consent Order and also the Consequential Order dated 5 March 2018 (Enclosure 55). There is only a small issue of the manner of choosing of the 2 townhouses, but the Plaintiff had already elected to made the tentative choice of units (7 units of 3 storey semi detached houses and 2 townhouses). On 5 April 2018, during the case management, the Plaintiff’s counsel had informed the Learned Registrar that they will not be filing any Affidavit in Reply to Yeo’s Fourth Affidavit. By failing to file any Affidavit in Reply to oppose Yeo’s Fourth Affidavit, therefore, the fact that Enclosure 97 is academic is not disputed by the 17 Plaintiff and deemed accepted. In the case of : Ng Hee Thong & Anor. v. Public Bank Bhd. (1995) 1 MLJ 281, 286: “……………Now, it is a well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted: Alloy Automotive Sdn. Bhd.v. Perusahaan Ironfield Sdn. Bhd. (1986) 1 MLJ 382; Overseas Investment Pte Ltd v Anthony William O Brien & Anor (1988) 3 MLJ 332. ” Similarly, in the case of: Yap Kiam @ Yap Sin Tian v. Poh Chin Chuan (2016) 6 MLJ 685, 696: “…………….[32] It is trite that where there is no longer „living issue‟ between the parties, there is no „appeal‟ that this court has any discretion or power to deal with. Once there is no longer any dispute or lies between the parties, it must logically follow that nothing remains for this court to adjudicate upon or determine. [33] The court will not intervene and assist the parties if the decision no longer would be of practical relevance in the case. These appeals were overtaken by events when the Extraordinary General Meeting of Dong Zong was convened on 23 August 2015 in which the 29th CC was dissolved and the 30th CC and CEC members were elected. The appellant is no longer the Chairman of Dong Zong. The matter ought to have ended there……………… ” 18 CONCLUSION

In conclusion to the above, it is my finding as below :

Once a court has pronounced a decision, the same court should not simply re-open the decision;

A decision during one stage of proceedings will bind the next stage i.e. Res Judicata will apply in respect of subsequent applications in the same court;

The court will not decide a matter which is already academic;

There is in any event, no special circumstances warranting a stay as even if the Plaintiff succeeds in the appeal it would not be rendered nugatory;

The balance of convenience tilts in favour of the Defendant. It is the Defendant who will suffer irreparable damage in the event that this Honourable Court grants a stay of execution; and

The general rule is that the court will not deprive a successful party of the fruits of its litigation until an appeal is determined. To allow the Plaintiff’s application for a stay of execution would be blatantly unfair to the Defendant. This Honourable Court ought to bear in mind that the Defendant has already suffered considerable loss due to the Plaintiff’s actions. 19

After hearing the submission by both the learned counsel, in the premise, I have no hesitation to conclude that the Plaintiff’s application for Stay of Execution (Enclosure 97) of the Consent Order dated 28 June 2016 and the Order dated 5 March 2018 in Enclosure 55 pending the disposal of the Appeal 1, 2 and 3 is hereby dismissed with cost of RM5,000. Dated 25 May 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan Counsel For the Plaintiff : Vanessa Wong (Messrs. Wong Chambers) For the Defendant : Justin Woon (Messrs. K.S. Ong & Co.)