Hs Hoe Seng Trading Sdn Bhd v Era Universe Development Sdn Bhd (JA-22NCvC-54-04/2025)

This is Plaintiff’s application for summary judgment against the Defendant for – 12/12/2025 08:44:12 JA-22NCvC-54-04/2025 Kand. 33 S/N 1dQ95JfeO0GvnjMDw3/t9g

a declaration that the SPA dated 9 May 2016 has been lawfully terminated;

refund of the purchase price amounting to RM 141,800.00 and legal fees and stamp duty of RM 35,657.30;

General damages, exemplary damages and/or aggravated damages; and

Interest and costs.

Parties filed their written submissions and bundle of authorities and orally submitted on 13 October 2025. The Court adjourned the decision to today.

The Plaintiff, entered into a Sale and Purchase Agreement (SPA) dated 9 May 2016 with the Defendant, for the purchase of a parcel of property within a development project known as Lot Semantara No. J1-05 (now HS(D) 586939, PTD 231315, Mukim Plentong, Johor Bahru).

Under the SPA, the Plaintiff agreed to pay the purchase price progressively in accordance with the prescribed payment schedule. The Plaintiff contends that the Defendant failed to complete S/N 1dQ95JfeO0GvnjMDw3/t9g construction and deliver vacant possession within the stipulated 36 months from the date of the SPA, thereby entitling the Plaintiff to terminate the agreement.

The Defendant, in its Statement of Defence, raises several preliminary and substantive responses. It maintains that the SPA was conditional, being subject to an Overriding Agreement of even date and a Supplemental Agreement with the Johor State Government dated 16 November 2017, under which the property was designated as a Bumiputera Lot.

The Defendant asserts that the effective commencement date of the 36-month completion period was therefore 16 November 2017, not 9 May 2016. It further relies on extensions granted under the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 Act 2020 (COVID-19 Act), claiming statutory exclusion of 289 days between 18 March 2020 and 31 December 2020.

Additionally, the Defendant pleads that any delay was attributable to the Plaintiff’s own failure to make progressive payments as required under the SPA. It contends that the Plaintiff’s unilateral termination via a Notice of Termination dated 20 June 2023 was invalid, and that the claim ought to be dismissed as frivolous and an abuse of process.

In its Reply to the Defence, the Plaintiff denies that the SPA was conditional or that it was ever bound by the Overriding Agreement or Supplemental Agreement, as it was not a party to either. The Plaintiff maintains that the SPA is a standalone and binding contract, effective from 9 May 2016. It argues that even if the Defendant’s version is S/N 1dQ95JfeO0GvnjMDw3/t9g accepted, the Defendant has still failed to deliver vacant possession within three years from 16 November 2017, that is, by 16 November

The Plaintiff further rejects the Defendant’s reliance on COVID-19 extensions and contends that any such governmental relief cannot override contractual obligations owed to private purchasers.

The Plaintiff emphasises that the Defendant’s internal corporate restructuring in 2022 and the emergence of a “new management” do not affect the Defendant’s legal liability under the SPA, as the company remains the same legal entity.

Based on the submissions, Counsel for the Plaintiff argued that the Defendant had failed to complete and deliver vacant possession within the contractual period, and that the Plaintiff was therefore entitled to terminate the SPA and seek a refund of all purchase monies and legal fees. It was emphasised that any governmental extensions for completion of housing projects did not apply to the Defendant’s project, which remained incomplete as of 2023.

Counsel for the Defendant raised two main contentions:

that the Plaintiff had proceeded under the wrong procedural provision, arguing that the application ought to have been brought under Order 81 Rules of Court 2012 (“ROC 2012”) S/N 1dQ95JfeO0GvnjMDw3/t9g (specific performance or rescission of contract) rather than Order 14 ROC 2012 (summary judgment); and

that the Plaintiff had failed to make the required progressive payments under the SPA, which allegedly affected the Defendant’s ability to complete the project.

In reply, counsel for the Plaintiff contended that Order 81 ROC 2012 was inapplicable since the Plaintiff was not seeking to enforce or rescind the SPA but merely to confirm its termination and to recover sums already paid. It was further argued that the allegation of non-payment was baseless because the Defendant had never issued any progressive payment claims under the SPA.

The Defendant, in rejoinder, maintained that Order 81 ROC 2012 applied because the relief sought effectively amounted to rescission of the SPA, and repeated that the Plaintiff had not demonstrated proof of full payment in its pleadings.

Accordingly, this Court will determine the matter on the following issues –

Procedural Issue: Whether the Plaintiff’s application for summary judgment under Order 14 rule 1 of the Rules of Court 2012 is procedurally proper, or whether the matter ought to have been brought under Order 81. S/N 1dQ95JfeO0GvnjMDw3/t9g

Substantive Issue: Whether, on the undisputed facts, the Defendant has raised any triable issue sufficient to warrant a full trial.

Procedural Issue - Whether the application is properly brought under Order 14 ROC 2012

The Defendant contends that this application has been wrongly brought under Order 14 ROC 2012 and should instead have been filed under Order 81 ROC 2012, which governs proceedings for specific performance or rescission of contracts. Learned counsel for the Defendant submits that the Plaintiff’s claim, which seeks a declaration that the SPA has been lawfully terminated, is in substance a claim for rescission and therefore falls squarely within the ambit of Order 81 ROC 2012.

The Plaintiff disputes this characterisation. Learned counsel for the Plaintiff submits that the relief sought does not involve enforcement or rescission of the SPA but merely confirmation of a termination already effected, together with recovery of monies paid. The Plaintiff’s position is that Order 14 ROC 2012 is appropriate because there is no triable issue. The Defendant’s breach and failure to deliver vacant possession are undisputed and the Plaintiff’s claim is for a liquidated sum arising from that breach. S/N 1dQ95JfeO0GvnjMDw3/t9g

Upon consideration, this Court finds merit in the Plaintiff’s submission. The distinction between proceedings under Order 14 ROC 2012 and Order 81 ROC 2012 lies in the nature of the relief sought. Order 81 applies where a party seeks to compel performance or to obtain judicial rescission of a subsisting contract. In contrast, Order 14 ROC 2012 may be invoked where the Plaintiff asserts that the contract has already been lawfully terminated and seeks payment of sums due in consequence.

In the present case, the Plaintiff’s claim is not for rescission in the technical sense but for a declaration confirming the validity of termination that had already taken place by notice dated 20 June

The monetary relief sought flows from that termination. Hence, the application falls within the scope of Order 14 ROC 2012, and not Order 81 ROC 2012.

The Court therefore holds that the Plaintiff’s application under Order 14 ROC 2012 is procedurally proper. The Defendant’s preliminary objection is accordingly dismissed.

Substantive Issue - Whether the Defendant has raised any triable issue

The principles governing summary judgment are settled. Under Order 14 rule 3 ROC 2012, the Defendant must demonstrate a bona fide triable issue or disclose facts which would entitle it to defend the claim at trial. The burden lies on the Defendant to show that there is S/N 1dQ95JfeO0GvnjMDw3/t9g a real, not fanciful, question to be tried. (See: Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400).

In this case, the Plaintiff’s claim rests upon the Defendant’s admitted failure to complete construction and deliver vacant possession within the contractual period. The Defendant does not deny that the project remains incomplete as of 2023. Instead, it relies on –

the Overriding Agreement dated 9 May 2016;

the Supplemental Agreement with the Johor State Government dated 16 November 2017; and

the COVID-19 Act 2020 as grounds for extension of time.

On the Overriding Agreement, the Court notes that the Plaintiff was not a party to that agreement. By the doctrine of privity of contract, contractual obligations cannot be imposed upon a non-party. There is no evidence that the SPA was expressly made conditional upon the Overriding Agreement or that the Plaintiff had agreed to defer the commencement date. Accordingly, the Defendant’s reliance on that document does not raise a triable issue.

As to the Supplemental Agreement of 16 November 2017, the Defendant asserts that the lot purchased was designated as a Bumiputera Lot and that completion should therefore be calculated from that date. However, the Defendant has not adduced evidence showing that the Plaintiff had knowledge of or consented to such re-designation. Even if the Court were to accept the Defendant’s S/N 1dQ95JfeO0GvnjMDw3/t9g computation, the extended completion date would have been 16 November 2020, well before the Defendant’s admitted failure to complete the project. The contention therefore does not disclose any genuine defence.

Regarding the COVID-19 Act 2020, the Defendant relies on the statutory exclusion of 289 days (18 March 2020 - 31 December 2020). The Court accepts that the Act afforded temporary relief to developers affected by the pandemic. However, that relief merely suspended enforcement of contractual obligations during the relevant period; it did not extinguish the underlying obligation to complete the project. The Defendant has not produced evidence that any work resumed thereafter or that the project was ever completed. Hence, the COVID-19 argument is immaterial to the present claim.

The Defendant’s further allegation that the Plaintiff failed to make progressive payments is similarly unsupported. The SPA required progressive payments to be made upon written claim by the developer. The Defendant has not exhibited any such claims or notices. In their absence, the Plaintiff cannot be faulted for non-payment. This defence is therefore devoid of factual basis.

Finally, the Defendant’s reference to its corporate restructuring and new management is irrelevant. The Defendant remains the same legal entity incorporated under the Companies Act 2016 and changes in management do not absolve it of contractual liability. (See: Salomon v A Salomon & Co Ltd [1897] AC 22). S/N 1dQ95JfeO0GvnjMDw3/t9g

In view of the above, the Court finds that the Defendant has failed to raise any bona fide triable issue either in law or on fact. The defences advanced are speculative, unsupported by documentary proof and do not warrant the matter being set down for trial.

I also reject the Defendant’s contention that this suit is frivolous or an abuse of the Court’s process.

The Plaintiff’s application for summary judgment under Order 14 ROC 2012 is therefore allowed. The Court allows the following –

a declaration that the SPA dated 9 May 2016 between the parties has been lawfully terminated;

refund of the purchase monies amounting to RM141,800.00 and legal fees and stamp duty of RM35,657.30;

interest at 5% per annum from the date of the Writ until full settlement;

The Plaintiff’s claim for general, exemplary and/or aggravated damages is dismissed; and

costs of this application are fixed at RM8,000.00 subject to the allocator. S/N 1dQ95JfeO0GvnjMDw3/t9g

The Defendant’s preliminary objection and all other prayers inconsistent with the above are dismissed. Dated : 29 October 2025 Dr. Noradura Binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Plaintiff : Jeyakumar A/L C Sundralingam Messrs. Alias, Kang, Ungku Mas & Associates Solicitor for the Defendant : Shobana Mala A/P Krishnan Messrs. Shobana M & Associates S/N 1dQ95JfeO0GvnjMDw3/t9g