Icon City Development Sdn Bhd v Andrea Wu Huey Shyen (W-04(IM)(NCvC)-491-10/2022)

1.LEE KEAN HWA2.OOI LAY PING3.SHUKRA SHASTHI4.LEE CHENG FOOK5.LIM JAN NIE6.LEE KAH YEOW7.LOH FOCK SEONG8.LOH CHEONG CHUN9.WONG POH YI10.LEONG HAO ZHI11.TEE KENG TUAN12.CHIT TZI HWEE13.YONG CHAU SHYAN14.YONG SOON SHYAN15.HO FOO THIAM16.HO CHUN YUEN17.CHUA MENG SOON18.CHEAH CHOR SOOI19.CHUA MENG KEAN20.YAP SOON KIM21.LAI SAU KENG22.LAI MING KONG23.KHOO BOO SINE @ KHOO BOO HONG24.GIAM BOON EE25.CHOW SHIE FONG26.CHEW THIAN KAY

TAI KIN KONG RESPONDENTS [In the High Court of Malaya in Kuala Lumpur Civil Suit No.: WA-22NCVC-152-03/2022

Lee Kean Hwa

Ooi Lay Ping

Shukra Shasthi

Lee Cheng Fook

Lim Jan Nie

Lee Kah Yeow

Loh Fock Seong

Loh Cheong Chun

Wong Poh Yi

Leong Hao Zhi

Tee Keng Tuan

Chit Tzi Hwee

Yong Chau Shyan

Yong Soon Shyan

Ho Chun Yuen

Ho Foo Thiam

Chua Meng Soon

Cheah Chor Sooi

Chua Meng Kean

Yap Soon Kim

Lai Sau Keng

Lai Ming Kong

Khoo Boo Sine @ Khoo Boo Hong

Giam Boon Ee

Chow Shie Fong

Chew Thian Kay

Yap Siew Yuen

Chin Wai Mun

Ko Weng Fatt

Krishnamoorthy A/LAR Pakirisamy

Girija Devi Krishnamoorthy

Yong Jo Shung

Ho Chee Heung

Kong Kim Lian

Kong Kim Foong

Wong Bun Hee

Wong Bun Hin

Wong Bun Seng

Lau Nian Choon

Soo Jon Teng

Quek Lian Kim

Lim Suat Yong

Lee Pik Szee

Lim Chong Cheng

Ching Swee Choo

Hoo Foong Ling

Tan Chee Wee

Alice Chong Yee Fui

Lim Sing Chek

Tan Giap Seng

Lim Tin Hong

Lim Cheong Theng

Teh Eng Gee

Ng Teat Lim

Chin Kuen Cheng

Ang Yong Hau

Lim Han Beng

Kuan Yat Leong

Wong Sim Kuan

Tai Kin Kong

Choy Weng Hoe

Khoo Sock Hooi Plaintiffs Icon City Development Sdn. Bhd. (Co. No. 731177-K) (Formerly Known as Sierra Peninsular Development Sdn. Bhd.) ... Defendant] (HEARD TOGETHER WITH) CIVIL APPEAL NO.: B-04(NCvC)(W)-420-08/2022 ICON CITY DEVELOPMENT SDN. BHD. (CO. NO. 731177-K) (FORMERLY KNOWN AS SIERRA PENINSULAR DEVELOPMENT SDN. BHD.) ...

ISVINDER KAUR A/P PARAMJIT SINGH ... RESPONDENTS 5

Lim Cheng Nguan

Ong Sze Lin

Tan Pei Wan

Lim Wen Hwee

Lee Wai Leong

Lau Kok Kee

Ho Choon Foong

Marilyn Lau Mei Kwan

Tan Lye Seng

Beh Tien Fong

Ng Yaw Long

Beh Tienn Ling

Chou Choon Guan

Kong Peoy Siew

Joshua Chou Kean Ming

Ong Mei Huey

Jakais Kaur a/p Sucha Singh

Isvinder Kaur a/p Paramjit Singh ... Plaintiffs And Icon City Development Sdn. Bhd. (Co. No. 731177-K) (Formerly Known as Sierra Peninsular Development Sdn. Bhd.) ... Defendant] (HEARD TOGETHER WITH) CIVIL APPEAL NO.: W-04(IM)(NCvC)-491-10/2022 ICON CITY DEVELOPMENT SDN. BHD. (CO. NO. 731177-K) (FORMERLY KNOWN AS SIERRA PENINSULAR DEVELOPMENT SDN. BHD.) ... APPELLANT ANDREA WU HUEY SHYEN RESPONDENT [In the High Court of Malaya in Kuala Lumpur Civil Suit No.: WA-11ANCVC-146-11/2021 Between Andrea Wu Huey Shyen ... Plaintiff And Icon City Development Sdn. Bhd. (Co. No. 731177-K) (Formerly Known as Sierra Peninsular Development Sdn. Bhd.) Defendant] CORAM: SEE MEE CHUN, JCA WONG KIAN KHEONG, JCA AZHAHARI KAMAL BIN RAMLI, JCA

This judgment concerns the following three appeals (3 Appeals):

Civil Appeal no. W-02(IM)(NCvC)-2319-12/2022 $ (1^{st}$ Appeal) had been filed by the appellant company (Appellant) against a decision of the High Court [High Court $ (1^{st}$ Appeal)] given on 14.11.2022 [High Court's Decision $ (1^{st}$ Appeal)] in favour of 62 respondents [Respondents $ (1^{st}$ Appeal)];

the Appellant had lodged Civil Appeal no. B-04(NCvC)(W)-420 08/2022 $ (2^{nd}$ Appeal) against 18 respondents [Respondents $ (2^{nd}$ Appeal)] with regard to a decision dated 29.7.2022 [High Court's Decision $ (2^{nd}$ Appeal)] by the High Court [High Court $ (2^{nd}$ Appeal)]; and

Civil Appeal no. W-04(IM)(NCvC)-491-10/2022 $ (3^{rd}$ Appeal) was filed by the Appellant in respect of a decision of the High Court [High Court $ (3^{rd}$ Appeal)] given on 27.4.2022 [High Court's Decision $ (3^{rd}$ Appeal)] in favour of one respondent [Respondent $ (3^{rd}$ Appeal)]. B. Background

The Appellant was the developer of a mixed development project known as "Icon City" (Development Area).

By way of Sale and Purchase Agreements (SPA), the Appellant sold units of "Small Office Versatile Office" (SOVO) in the Development Area to purchasers (Purchasers), including the Respondents ( $ 1^{\mathrm{st}} $ Appeal), Respondents ( $ 2^{\mathrm{nd}} $ Appeal) and Respondent ( $ 3^{\mathrm{rd}} $ Appeal) (collectively referred to in this judgment as the "Respondents").

The following events (in chronological order) are pertinent: DATEEVENT17.1.2012The Appellant obtained approval from the local authority (LA) for the conversion of the use of the land (upon which the Development Area is built) to commercial use.2.8.2012The LA's first approval of the Appellant's building plans for the Development Area (Building Plans).17.11.2015The LA's last approval for amendments to the Building Plans for "Tower 3" in the Development Area (Tower 3).20.11.2015The last approval for amendments to the Building Plans for "Tower 3A" in the Development Area (Tower 3A).15.9.2016The Appellant delivered vacant possession of SOHO units in Tower 3 to Purchasers.5.10.2016Vacant possession of SOHO units in Tower 3A was delivered by the Appellant to Purchasers.

All the SPAs had the same substantive provisions. The following provisions in the SPA are relevant in these 3 Appeals:

in paragraph 6 of the Recital to the SPA [Paragraph 6 (Recital)]-

the Purchaser acknowledged that at the time of signing the SPA, the Purchaser was "fully aware of the possibility of changes" to the Building Plans [Amendments (Building Plans)];

the Purchaser accepted the Amendments (Building Plans); and

the Amendments (Building Plans) -

"shall not entitle" the Purchaser to "annul" the SPA; and

(ii) shall not be the "subject of any claim for damages or compensation" by the Purchaser;

clause 1.1 (Clause 1.1) provided that in the SPA, where the context so admits, the following expressions "shall have the following meanings" -

"Agreed Rate" means the rate of interest stated in Section 7 of Schedule A to the SPA [Section 7 (Schedule A)]. According to Section 7 (Schedule A), the Agreed Rate is 10% per annum on daily rest basis;

"Building Plans" "shall include any and all such amendments, alterations and modifications" to the Building Plans;

"Conversion Approval" means the approval from the Appropriate Authorities for the conversion of the "said Project, Phase 2 and/or the said Land" for commercial use;

"Extended Approval Period" means a further extension of six months after the expiry of the "Period of Approval"; and

"Period of Approval" means 12 months from the date of the SPA to obtain the Conversion Approval and the approval of the Building Plans from the Appropriate Authorities [Approval (Building Plans)];

according to clause 12.5 (Clause 12.5) - "The Purchaser hereby acknowledges and agrees that the [Appellant] shall be entitled from time to time to make such amendments, variations or substitutions thereto as may be required by the Appropriate Authority from time to time or as the [Appellant's] architect shall consider expedient and/or necessary to the said [SOVO unit] and/or the Building Plans without incurring any liability of any kind whatsoever to the Purchaser in respect thereof, and the Purchaser is not entitled to annul this [SPA] nor be entitled to any reduction of the Purchase Price or any damages in respect thereof PROVIDED ALWAYS THAT any such alteration or substituted material shall be of approximately the same quality and standard of workmanship as that set out in the plans, details and specifications contained in this [SPA]." (emphasis added);

clause 13.1.1 (Clause 13.1.1) stipulated as follows - "The [Appellant] shall complete and deliver vacant possession of the said [SOHO unit] in accordance with the terms and conditions of [the SPA] within the time period stated in Section 10 of Schedule A hereto [Section 10 (Schedule A)] PROVIDED THAT if in the opinion of the [Appellant's] architect completion or delivery of vacant possession of the said [SOHO unit] is delayed by reason of exceptionally inclement weather, civil commotion, strikes, lockout, war, fire, flood or for any other cause beyond the [Appellant's] control or by reason of the Purchaser requiring the execution of any addition, works or alterations to the said [SOHO unit], then in any such cases, the [Appellant's] architect shall make a fair and reasonable extension of time for completion of the said [SOHO unit] and delivery of vacant possession hereunder." (emphasis added). According to Section 10 (Schedule A), the "Time for delivery of vacant possession" was 42 "calendar months from the date of the Period of Approval or the Extended Approval Period" (42 Months' Time Period);

clause 13.1.2 (Clause 13.1.2) stated as follows - "In the event the [Appellant] shall fail to complete and deliver vacant possession of the said [SOHO unit] to the Purchaser within the aforesaid period or within such extended time as may be allowed by the [Appellant's] architect under Clause 13.1.1, the [Appellant] shall pay to the Purchaser liquidated damages [LD] to be calculated from day to day at the Agreed Rate on such part of the Purchase Price that has been paid by the Purchaser to the [Appellant] and such sums shall be calculated from the date of expiry of the period stated in [Section 10 (Schedule A)] or the extended date, as the case may be, to the actual date of delivery of vacant possession of the said [SOHO unit] to the Purchaser." (emphasis added);

according to clause 35.5 (Clause 35.5), among others-

the Purchaser had notice of and acknowledged that the said SOVO unit formed part of the overall development which might be altered from time to time during such development; and

the Purchaser agreed that the Amendments (Building Plans) within twelve (12) months from the date of this [SPA] [hereinafter referred to as "the Period of Approval"] and

shall not annul the SPA; and

(ii) shall not be the subject of any claim for damages or compensation by the Purchaser;

clause 35A.1 (Clause 35A.1) provided as follows - "The [Appellant] shall at its own costs and expense obtain the following:-

the Conversion Approval from the Appropriate Authority; and

the approval of the Building Plans subject to a further extension of six (6) months from the expiry of the Approval Period [hereinafter referred to as "the Extended Approval Period"]." (emphasis added); and

clause 38.16 (Clause 38.16) stipulated as follows - "Time wherever mentioned shall be of the essence of the contract in relation to all provisions of this [SPA]." (emphasis added). C. Court proceedings with regard to the $ 1^{\mathrm{st}} $ Appeal

The following proceedings led to the $ 1^{\mathrm{st}} $ Appeal:

the first to the thirty fifth Respondents $ (1^{\mathrm{st}} $ Appeal) filed a suit in the Sessions Court against the Appellant with regard to 20 SPAs $ [1^{\mathrm{st}} $ Sessions Court's Suit $ (1^{\mathrm{st}} $ Appeal)];

a second suit was instituted in the Sessions Court against the Appellant by the thirty sixth to sixty second Respondents $ (1^{\mathrm{st}} $ Appeal) in respect of 15 SPAs $ [2^{\mathrm{nd}} $ Sessions Court's Suit $ (1^{\mathrm{st}} $ Appeal)];

in the $ 1^{\mathrm{st}} $ Sessions Court's Suit ( $ 1^{\mathrm{st}} $ Appeal) and $ 2^{\mathrm{nd}} $ Sessions Court's Suit ( $ 1^{\mathrm{st}} $ Appeal) [referred together in this judgment as "2 Sessions Court's Suits ( $ 1^{\mathrm{st}} $ Appeal)"]-

the Respondents $ (1^{\mathrm{st}} $ Appeal) claimed LD from the Appellant pursuant to Clauses 13.1.1 and 13.1.2 due to the Appellant's delay in delivering vacant possession of the SOHO units to the Respondents ( $ 1^{\mathrm{st}} $ Appeal) (Cause of Action);

the Cause of Action is premised on the ground that the 42 Months' Time Period commenced on 2.8.2012, the LA's first approval of the Building Plans [LA's 1 $ ^{st} $ Approval (Building Plans)] and expired on 1.2.2016; and

the Appellant resisted the 2 Sessions Court's Suits $ (1^{\mathrm{st}} $ Appeal) on the basis that the 42 Months' Time Period only begun on the date of the LA's last approval for the amendments to the Building Plans [LA's Last Approval (Building Plans)]. The LA's Last Approval (Building Plans) was 17.11.2015 (for Tower 3) and 20.11.2015 (for Tower 3A). Hence, the Appellant could only be liable for LD after the expiry of the 42 Months' Time Period from the LA's Last Approval (Building Plans);

the 2 Sessions Court's Suits $ (1^{\mathrm{st}} $ Appeal) were -

transferred to the Magistrate's Court;

consolidated; and

tried together [Magistrate Court's Trial (1 $ ^{st} $ Appeal)];

after the Magistrate Court's Trial ( $ 1^{\mathrm{st}} $ Appeal), the learned Magistrate allowed with costs the Cause of Action and adjudged, among others, payment of LD by the Appellant to the Respondents ( $ 1^{\mathrm{st}} $ Appeal) [Magistrate Court's Decision ( $ 1^{\mathrm{st}} $ Appeal)];

the Appellant appealed to the High Court [High Court (Magistrate Court's Decision)] against the Magistrate Court's Decision ( $1^{\mathrm{st}}$ Appeal) [Appeal (Magistrate Court's Decision)]. The High Court (Magistrate Court's Decision) dismissed with costs the Appeal (Magistrate Court's Decision) [High Court's Decision (Magistrate Court)];

the Appellant's appeal to the Court of Appeal against the High Court's Decision (Magistrate Court) was successful [Court of Appeal's Decision (Magistrate Court)]. Surprisingly, no order of the Court of Appeal's Decision (Magistrate Court) was drawn up and perfected. Reproduced below is an email dated 29.12.2021 from the learned Deputy Registrar of the Court of Appeal to the solicitors for all parties regarding the Court of Appeal's Decision (Magistrate Court) [Court of Appeal's Email (29.12.2021)]- "It is our unanimous view that we are in the [sic] agreement with the submission of the Learned counsel of the Appellant that there is an appealable error on the part of the High Court and also the trial court, the Magistrate Court in granting the award or the judgment against the Appellant on the sole issue of jurisdiction. For that reason, we have no alternative but to allow this appeal of the Appellant. So, we allow the appeal of the Appellant and we set aside the order of the High Court. For costs of this appeal, we made no order as to costs for this appeal." (emphasis added); and

the Respondents $ (1^{\mathrm{st}} $ Appeal) filed a new suit against the Appellant in the High Court $ (1^{\mathrm{st}} $ Appeal) based on the same Cause of Action [High Court's Suit $ (1^{\mathrm{st}} $ Appeal)]. In the High Court's Suit $ (1^{\mathrm{st}} $ Appeal) -

the Respondents ( $ 1^{\mathrm{st}} $ Appeal) applied for summary judgment against the Appellant [O 14 Application （ $ 1^{\mathrm{st}} $ Appeal)] under O 14 of the Rules of Court 2012 (RC);

on the eve of the hearing date of the O 14 Application $ (1^{\mathrm{st}} $ Appeal), the Appellant filed an application to strike out the High Court's Suit $ (1^{\mathrm{st}} $ Appeal) {Appellant's Striking Out Application [High Court's Suit $ (1^{\mathrm{st}} $ Appeal)]};

the Appellant's Striking Out Application [High Court's Suit (1 $ ^{st} $ Appeal)] was dismissed with costs by the High Court [High Court's Decision (Appellant's Striking Out Application)]. The Appellant did not appeal to the Court of Appeal against the High Court's Decision (Appellant's Striking Out Application); and

the O 14 Application $ (1^{\mathrm{st}} $ Appeal) was allowed with costs by the High Court $ (1^{\mathrm{st}} $ Appeal) and this constituted the High Court's Decision $ (1^{\mathrm{st}} $ Appeal), the subject matter of the $ 1^{\mathrm{st}} $ Appeal.

In the written judgment of the learned Judicial Commissioner (as she then was), the following grounds were given for the High Court's Decision $ (1^{\mathrm{st}} $ Appeal):

the SPA had provided in "no uncertain terms" that the 42 Months' Time Period commenced on the date of the LA's $ 1^{\mathrm{st}} $ Approval (Building Plans);

the SPA did not state that the 42 Months' Time Period would begin on the LA's Last Approval (Building Plans); and

the O14 Application $ (1^{\mathrm{st}} $ Appeal) was allowed because there was no triable issue raised regarding the interpretation of the SPA regarding the commencement date of the 42 Months' Time Period. D. Court proceedings in respect of the $ 2^{n d} $ and $ 3^{r d} $ Appeals

The genesis of the $ 2^{\mathrm{n d}} $ Appeal was as follows:

the Respondents ( $ 2^{\mathrm{nd}} $ Appeal) filed a suit in the Sessions Court [Sessions Court's Suit ( $ 2^{\mathrm{nd}} $ Appeal)] against the Appellant based on the Cause of Action;

after a trial, the learned Sessions Court Judge allowed the Sessions Court's Suit $ (2^{n d} $ Appeal) with costs [Sessions Court's Decision $ (2^{n d} $ Appeal)]; and

the Appellant's appeal to the High Court $ (2^{\mathrm{nd}} $ Appeal) against the Sessions Court's Decision $ (2^{\mathrm{nd}} $ Appeal) was dismissed with costs. This was the High Court's Decision $ (2^{\mathrm{nd}} $ Appeal), the subject matter of the $ 2^{\mathrm{nd}} $ Appeal.

The $ 3^{\mathrm{rd}} $ Appeal was filed as a result of the following proceedings:

premised on the Cause of Action, the Respondent $ (3^{rd} $ Appeal) filed an action in the Magistrate's Court against the Appellant [Magistrate Court's Suit $ (3^{rd} $ Appeal)];

after a trial, the Magistrate Court's Suit $ (3^{rd} $ Appeal) was allowed with costs [Magistrate Court's Decision $ (3^{rd} $ Appeal)]; and

the Appellant's appeal to the High Court $ (3^{rd} $ Appeal) against the Magistrate Court's Decision $ (3^{rd} $ Appeal) was dismissed with costs. This was the High Court's Decision $ (3^{rd} $ Appeal). Hence, the $ 3^{rd} $ Appeal. E. Issues

With regard to the 3 Appeals, the sole question of law concerns an interpretation of the SPA, namely, whether the 42 Months' Time Period commenced on the date of the LA's $ 1^{\mathrm{st}} $ Approval (Building Plans) or the LA's Last Approval (Building Plans).

In respect of the $ 1^{\mathrm{st}} $ Appeal, the following issues arise:

in view of the Court of Appeal's Decision (Magistrate Court), were the Respondents $ (1^{\mathrm{st}} $ Appeal) barred by the doctrine of res judicata (cause of action estoppel and/or issue estoppel principle) from filing the High Court's Suit $ (1^{\mathrm{st}} $ Appeal)?;

whether the Court of Appeal's Decision (Magistrate Court) constituted-

an issue to be tried by the court within the meaning of O14 r 3(1) RC; or

"some other reason to be a trial" as understood in O 14 r 3(1) RC - so as to defeat the O14 Application ( $ 1^{\mathrm{st}} $ Appeal); and

could the Respondents ( $ 1^{\mathrm{st}} $ Appeal) use in the High Court's Suit $ (1^{\mathrm{st}} $ Appeal), evidence adduced at the Magistrate Court's Trial $ (1^{\mathrm{st}} $ Appeal) [Evidence (Magistrate Court's Trial)]? F. When did the 42 Months' Time Period start to run?

Firstly, we accept the submission by the Appellant's learned counsel that the SPAs in these 3 Appeals should not be construed as if the SPAs were the subject matter of a "social legislation" in the form of the Housing Development (Control and Licensing) Act 1966 (HDA). This is due to the following reasons:

the SPAs in these 3 Appeals concerned SOHO and not "housing accommodation" as defined in s 3 HDA as follows- "housing accommodation" includes any building, tenement or messuage which is wholly or principally constructed, adapted or intended for human habitation or partly for human habitation and partly for business premises and such other type of accommodation as may be prescribed by the Minister from time to time to be a housing accommodation pursuant to section 3A;" (emphasis added); and

regs. 11(1) and (1A) of the Housing Development (Control and Licensing) Regulations 1989 (HDR) provide that every contract for the sale of a "housing accommodation" shall be in a form as prescribed in Schedules G, H, I or J to the HDR (Statutory Contracts). As the SPAs in these 3 Appeals did not involve "housing accommodation", these SPAs were not in the form of the Statutory Contracts.

Secondly, the construction of a contract is a question of law to be decided by the court and not by factual and expert witnesses through their oral evidence - please refer to the Court of Appeal's judgment delivered by Gopal Sri Ram JCA (as he then was) in NVJ Menon v The Great Eastern Life Assurance Company Ltd [2004] 3 CLJ 96, at 103 to 104.

Thirdly, in these 3 Appeals, the SPA was a commercial agreement and should be construed by the court in a manner which makes business common sense [Business Common Sense Interpretation (Commercial Contract)]. The application of the Business Common Sense Interpretation (Commercial Contract) has been applied in the following judgment of the Federal Court delivered by Zainun Ali FCJ in SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464, at [78]: [78] Thus the nub of this appeal is, when one has to choose between two competing interpretations, the one which makes more commercial sense should be preferred if the natural meaning of the words is unclear. It is noteworthy that the same approach was taken by Lord Hodge (in the majority decision of Arnold v Britton), where His Lordship accepted the unitary process of construction in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 para 21 that: '... if there are two possible constructions, the Court is entitled to prefer the construction which is consistent with business common sense and to reject the other." (emphasis added).

The Appellant's learned counsel in these 3 Appeals contended that the 42 Months' Time Period would commence on the LA's Last Approval (Building Plans) based on the following reasons:

Clause 12.5 allowed the Appellant to amend the Building Plans. Hence, the 42 Months' Time Period should run from the LA's Last Approval (Building Plans);

pursuant to Clause 35A.1, the Appellant was required to obtain the Conversion Approval and Approval (Building Plans) during the "Period of Approval". If the Appellant failed to obtain the Conversion Approval and Approval (Building Plans) during the "Period of Approval", the Appellant would be entitled to an extension of six months, ie., the "Extended Approval Period";

according to Clause 13.1.1 read with Section 10 (Schedule A), vacant possession of SOHO units shall be delivered to the Respondents within 42 months from the date of the "Period of Approval" or "Extended Approval Period"; and

reading together all the above provisions in the SPA,the 42 Months' Time Period commenced on the LA's Last Approval (Building Plans).

With respect, I am not able to accept the submission of the Appellant's learned counsel as stated in the above paragraph 15.1 am of the view that a Business Common Sense Interpretation (Commercial Contract) of the relevant provisions in the SPA disclosed the intention of the Appellant and Respondents for the 42 Months' Time Period to begin on the LA's 1 $ ^{1st} $ Approval (Building Plans) and not on the LA's Last Approval (Building Plans). My reasons are as follows:

Clause 13.1.1 had clearly stated that the Appellant "shall deliver vacant possession of the SOHO units "within the time period" stated in Section 10 (Schedule A) (emphasis added). Section 10 (Schedule A) had unambiguously provided for the 42 Months' Time Period to commence "from the date of the Period of Approval or the Extended Approval Period" (emphasis added). According to Clause 1.1, the "Period of Approval" meant 12 months from the "date" of the SPA for the Appellant to obtain the Conversion Approval and Approval (Building Plans) (emphasis added). "Extended Approval Period" in Clause 1.1 meant a further extension of six months after the expiry of the "Period of Approval". Clause 35A.1 had expressly required the Appellant to obtain the Conversion Approval and Approval (Building Plans) "within 12 months from the date" of the SPA ("Period of Approval") and "subject to a further extension" of 6 months from the expiry of the "Period of Approval" (Extended Approval Period) (emphasis added). Premised on a Business Common Sense Interpretation (Commercial Contract), the Approval (Building Plans) in Clause 1.1 (definition of "Period of Approval") and Clause 35A.1, could only mean the LA's $ 1^{\mathrm{st}} $ Approval (Building Plans) and not the LA's Last Approval (Building Plans). This was because once the Appellant had "obtained" the LA's $ 1^{\mathrm{st}} $ Approval (Building Plans), the Appellant could immediately start the construction of the Development Area (Construction Works). If the Approval (Building Plans) in Clause 1.1 (definition of "Period of Approval") and Clause 35A.1 had referred to the LA's Last Approval (Building Plans), this would not have made any business common sense as the Appellant would not be contractually obliged to commence immediately Construction Works after the Appellant had obtained the LA's $ 1^{\mathrm{st}} $ Approval (Building Plans);

the above interpretation of Clause 1.1 (definition of "Period of Approval"), Clause 35A.1 and Section 10 (Schedule A), is supported by Clause 38.16 which had expressly provided that time "shall be of the essence of the contract in relation to all provisions of this [SPA]", including Clause 1.1 (definition of "Period of Approval"), Clause 35A.1 and Section 10 (Schedule A). If we had accepted the above contention of the Appellant's learned counsel in these 3 Appeals, this would have rendered nugatory Clause 38.16;

a harmonious construction of Clause 1.1 (definition of "Period of Approval"), Clause 35A.1, Clause 38.16 and Section 10 (Schedule A) supports the above interpretation; and

Section 10 (Schedule A) did not provide for the 42 Months' Time Period to start from the "expiry of the Period of Approval or the Extended Approval Period" (emphasis added). The construction of Section 10 (Schedule A) by the Appellant's learned counsel, could only be accepted if Section 10 (Schedule A) had provided for the 42 Months' Time Period to run from the "expiry of the Period of Approval or the Extended Approval Period".

The SPA was prepared by Messrs Lee, Ong & Partners, the solicitors for the Appellant. Even if there was an ambiguity regarding the meaning of the Approval (Building Plans) in Clause 1.1 (definition of "Period of Approval") and Clause 35A.1 (Ambiguity), namely whether the Approval (Building Plans) referred to the LA's 1st Approval (Building Plans) or the LA's Last Approval (Building Plans), in accordance with the "contra proferentem" rule of interpretation, the Ambiguity should be resolved in favour of Respondents against the Appellant (who had drafted the SPA) - please refer to the judgment of the Court of Appeal in Abdul Rahman bin Soltan & Ors v FELDA Land Development Authority & Anor and 2 other appeals [2023] 4 MLJ 318, at [52]. Accordingly, the invocation of "contra proferentem" rule of construction in this case, means that the Approval (Building Plans) in Clause 1.1 (definition of "Period of Approval") and Clause 35A.1, could only refer to the LA's 1st Approval (Building Plans).

I have not overlooked the submission by the Appellant's learned counsel that Paragraph 6 (Recital) and Clause 12.5 allowed the Appellant to apply for and obtain the Amendments (Building Plans). Paragraph 6 (Recital) and Clause 12.5, in my view, had no bearing in this case because -

Paragraph 6 (Recital) and Clause 12.5 did not concern, let alone allude to, the Appellant's obligation and time period under the SPA to deliver vacant possession of the SOHO units to the Respondents;

if I have applied Paragraph 6 (Recital) and Clause 12.5 in the meaning of the Approval (Building Plans) in Clause 1.1 (definition of "Period of Approval") and Clause 35A.1, this would be contrary to Clause 38.16 which had explicitly stated that time "shall be of the essence" of the SPA; and

if there is a conflict between -

Paragraph 6 (Recital) and Clause 12.5; and

Clause 1.1 (definition of "Period of Approval"), Clause 35A.1 and Section 10 (Schedule A) - by virtue of the maxim of interpretation, generalia specialibus non derogant, the specific provisions of Clause 1.1 (definition of "Period of Approval"), Clause 35A.1 and Section 10 (Schedule A) regarding the meaning of Approval (Building Plans), should prevail over the general provisions of Paragraph 6 (Recital) and Clause 12.5. In Qatar Islamic Bank v Asian Finance Bank Bhd & Ors [2015] 7 MLJ 445, at [42(b)(iii), the High Court had applied the canon of construction, generalia specialibus non derogant, as follows - "[42(b)(iii)] there is a canon of construction, "generalia specialibus non derogant", which provides that if there is a conflict between 2 provisions in the same document, the specific provision should prevail over the general provision. This maxim has been applied in statutory interpretation but according to Bowen LJ in the English Court of Appeal case of Curtis v Stovin (1889) LR 22 QBD 513, at 517, rules for construing statutes also apply to construe documents. In Grundt, at 28, Cohen LJ (as his Lordship then was) favoured a specific provision in the AA [Articles of Association of a company] vis-a-vis a general provision in the AA. In applying the maxim "generalia specialibus non derogant", I have no hesitation to give effect to the specific provisions of Art. 70(e) and (g) in preference to the general Closing Words." (emphasis added).

In view of the reasons expressed in the above paragraphs 16 and 17, no error of law regarding the interpretation of Clause 1.1 (definition of "Period of Approval"), Clause 13.1.1, Clause 13.1.2, Clause 35A.1, Clause 38.16 and Section 10 (Schedule A) had been committed with regard to the High Court's Decision ( $ 1^{\mathrm{st}} $ Appeal), High Court's Decision ( $ 2^{\mathrm{nd}} $ Appeal) and High Court's Decision ( $ 3^{\mathrm{rd}} $ Appeal). On this ground alone, the 3 Appeals are dismissed with costs. G. Whether by reason of the Court of Appeal's Decision (Magistrate's Court), the Respondents ( $ 1^{\mathrm{st}} $ Appeal) were barred by res judicata doctrine from filing the High Court's Suit ( $ 1^{\mathrm{st}} $ Appeal)

According to the Appellant's learned counsel -

the Court of Appeal's Decision (Magistrate Court) did not grant the Respondents $ (1^{\mathrm{st}} $ Appeal) liberty to file the High Court's Suit $ (1^{\mathrm{st}} $ Appeal); and

the Court of Appeal's Decision (Magistrate Court) attracted the application of the doctrine of res judicata, both cause of action estoppel and issue estoppel principle, which would bar the Respondents $ (1^{\mathrm{st}} $ Appeal) from filing the High Court's Suit $ (1^{\mathrm{st}} $ Appeal).

When a court has finally decided a case (1 $ ^{1 s t} $ Case), the decision in the $ 1^{s t} $ Case may affect subsequent cases by way of an application of the doctrine of res judicata. In the Supreme Court case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, at 197 to 198, 198 and 199 to 200, Peh Swee Chin FCJ has explained that the res judicata doctrine consists of two limbs as follows:

the principle of cause of action estoppel applies to bar a party (X) in the $ 1^{\mathrm{st}} $ Case and/or X's "privy" from filing any action after the $ 1^{\mathrm{st}} $ Case (Subsequent Case) based on a cause of action which has been decided in the $ 1^{\mathrm{st}} $ Case $ [1^{\mathrm{st}} $ Limb (Cause of Action Estoppel)]; and

the issue estoppel principle operates to prevent X and/or X's privy from raising any issue in the Subsequent Case which-

has been raised in the $ 1^{\mathrm{st}} $ Case; or

can be raised with reasonable diligence in the $ 1^{\mathrm{st}} $ Case [2 $ ^{n d} $ Limb (Issue Estoppel)].

I am not able to accede to the above submission by the Appellant's learned counsel due to the following reasons:

it was clear from the Court of Appeal's Email that both the Magistrate Court's Decision $ (1^{\mathrm{st}} $ Appeal) and High Court's Decision (Magistrate's Court) were set aside on the sole ground that the Magistrate's Court had no jurisdiction to decide on the claim by Respondents $ (1^{\mathrm{st}} $ Appeal) against the Appellant. When a court (Court A) has no jurisdiction to adjudicate on a matter-

the decision of Court (A) [Decision (Court A)] is a nullity; and

even if Court A had delivered a written judgment, in view of Court A's lack of jurisdiction, Court A could not have lawfully decided on the merits of the case in question. Hence-

the Decision (Court A) could not trigger an application of the res judicata doctrine, be it the $ 1^{\mathrm{st}} $ Limb (Cause of Action Estoppel) or the $ 2^{\mathrm{nd}} $ Limb (Issue Estoppel); and

(ii) the Decision (Court A) cannot bar any party in the $ 1^{\mathrm{st}} $ Case and/or the party's privy from- (iiia) filing any Subsequent Case; and/or (iiib) raising any issue which had been raised in the $ 1^{\mathrm{st}} $ Case and/or which could have been raised with reasonable diligence in the $ 1^{\mathrm{st}} $ Case. I rely on the following judgment of the Federal Court delivered by Alizatul Khair Osman FCJ in Syarikat Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor [2019] 3 CLJ 157, at [34] - [34] Firstly, on the issue of res judicata, it is necessary to reiterate the elements which constitute res judicata. For this purpose, we find the book Spencer Bower and Turner, Res Judicata, 3rd edn. (1996) particularly useful. There the learned authors set out at p.10, para 19 what is involved in the burden of showing res judicata which consist of six matters:

the decision was judicial in the relevant sense;

(ii) it was in fact pronounced;

(iii) the tribunal had jurisdiction over the parties and the subject matter;

(iv) the decision was -

final, and

on the merits;

it determined the same questions as that raised in the later question; and

(vi) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem." (emphasis added);

in the High Court's Suit ( $ 1^{\mathrm{st}} $ Appeal), the High Court clearly had jurisdiction pursuant to s 23(1)(a) to (c) of the Courts of Judicature Act 1964 (CJA). Reproduced below is s 23(1) CJA- "s 23. Civil jurisdiction-general

Subject to the limitations contained in Article 128 of the Constitution, the High Court shall have jurisdiction to try all civil proceedings where-

the cause of action arose;

the defendant or one of several defendants resides or has his place of business;

the facts on which the proceedings are based exist or are alleged to have occurred; or

land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court." (emphasis added). It is to be noted that s 3 CJA has defined widely "local jurisdiction" of the High Court of Malaya to mean the territory comprised in West Malaysia;

the Appellant's Striking Out Application [High Court's Suit $ (1^{\mathrm{st}} $ Appeal)] had been filed but was dismissed with costs by the High Court. The Appellant did not appeal to the Court of Appeal against the High Court's Decision (Appellant's Striking Out Application). Accordingly, the Appellant could not now contend that the High Court $ (1^{\mathrm{st}} $ Appeal) had no jurisdiction under s 23(1)(a) to (c) CJA to hear the High Court's Suit $ (1^{\mathrm{st}} $ Appeal); and

the res judicata doctrine is an equitable concept based on case law and should not be applied indiscriminately so as to cause an injustice or inequity - please refer to the judgment of Gopal Sri Ram JCA (as he then was) in the Court of Appeal case of Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346, at 356, 357 and 358. If I had applied the res judicata doctrine in the $ ^{1st} $ Appeal, this would occasion a grave injustice to the Respondents ( $ ^{1st} $ Appeal) because-

the Respondents $ (1^{\mathrm{st}} $ Appeal) would be deprived of their fundamental access to justice under Article 5(1) of the Federal Constitution [to file the High Court's Suit $ (1^{\mathrm{st}} $ Appeal)] - please refer to the Federal Court's judgment delivered by Gopal Sri Ram FCJ in Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 CLJ 507, at [4]; and

the Respondents $ (1^{\mathrm{st}} $ Appeal) could not claim for LD from the Appellant pursuant to Clauses 13.1.1 and 13.1.2. H. Did the Appellant raise any triable issue with regard to the O 14 Application (1 $ ^{st} $ Appeal)?

I reproduce below the relevant parts of O 14 rr 1 to 3 RC: "Application by plaintiff for summary judgment O14r1(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant. r 2(1) An application under rule 1 must be supported by an affidavit in Form 13 verifying the facts on which the claim, or the part of a claim, to which the application relates is based and stating that in the deponent's belief there is no defence to that claim or part, as the case may be, or no defence except as to the amount of damages claimed. r 3(1) Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed." (emphasis added).

In the $ 1^{\mathrm{st}} $ Appeal, the Respondents ( $ 1^{\mathrm{st}} $ Appeal) had fulfilled the following three conditions required by O 14 rr 1(1) and 2(1) RC [3 Conditions (O 14 Application)]:

the Statement of Claim (SOC) had been served by the Respondents $ (1^{\mathrm{st}} $ Appeal) on the Appellant;

the Appellant had entered appearance in the High Court's Suit $ (1^{\mathrm{st}} $ Appeal); and

a deponent for the Respondents ( $ 1^{\mathrm{st}} $ Appeal) (Deponent) had affirmed an affidavit which -

verified the facts on which SOC was based; and

stated the belief of the Deponent that there was no defence by the Appellant to the SOC.

Upon the satisfaction of the 3 Conditions (O 14 Application) by the Respondents (1 $ ^{st} $ Appeal), the evidential burden shifted from the Respondents (1 $ ^{st} $ Appeal) to the Appellant to resist the O 14 Application (1 $ ^{st} $ Appeal) by satisfying the court under O 14 rr 3(1) and 4(1) RC that there was at least one issue to be tried regarding the SOC. This is clear from the following two Federal Court cases:

the judgment of George Edward Seah FJ (as he then was) in National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 1 CLJ (Rep) 283, at 285; and

the decision of Steve Shim CJ (Sabah & Sarawak) in Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 3 CLJ 544, at 551 to 552. If the Appellant could not raise any triable issue with regard to the SOC, the court might still dismiss the O 14 Application (1 $ ^{1st} $ Appeal) under O 14 r 3(1) RC if "there ought for some other reason to be a trial", namely there were circumstances in this case that ought to be investigated by the court - please refer to the Federal Court's judgment delivered by Mohd. Dzaiddin FCJ (as he then was) in United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 1 MLJ 657, at 666 to 668.

According to the Appellant's learned counsel, the $ 1^{\mathrm{st}} $ Appeal should be allowed solely on the ground that there was a triable issue regarding the commencement date of the 42 Months' Time Period. Regrettably, as explained in the above paragraphs 16 and 17, premised on a Business Common Sense Interpretation (Commercial Contract) of Clause 1.1 (definition of "Period of Approval") , Clause 35A.1, Clause 38.16 and Section 10 (Schedule A), the 42 Months' Time Period began to run from the date of the LA's $ 1^{\mathrm{st}} $ Approval (Building Plans) [not the LA's Last Approval (Building Plans)]. Consequently-

the Appellant could not discharge the evidential burden to raise any triable issue so as to oppose successfully the O 14 Application $ (1^{\mathrm{st}} $ Appeal); and

there was no "other reason" for a trial of the SOC within the meaning of O 14 r 3(1) RC because -

the $ 1^{\mathrm{st}} $ Appeal merely concerned an ordinary SPA between the Appellant and Respondents ( $ 1^{\mathrm{st}} $ Appeal); and

there were no circumstances in this case that ought to be investigated by the court.

The Appellant's learned counsel had advanced the following contentions in support of the $ 1^{\mathrm{st}} $ Appeal:

the Court of Appeal's Decision (Magistrate Court) did not allow the Respondents $ (1^{\mathrm{st}} $ Appeal) to use the Evidence (Magistrate Court's Trial) in the High Court's Suit $ (1^{\mathrm{st}} $ Appeal);

by virtue of s 33 of the Evidence Act 1950, the Respondents $ (1^{\mathrm{st}} $ Appeal) could not admit the Evidence (Magistrate Court's Trial) in the High Court's Suit $ (1^{\mathrm{st}} $ Appeal); and

the Respondents ( $ 1^{\mathrm{st}} $ Appeal) could not approbate and reprobate, namely, the Respondents ( $ 1^{\mathrm{st}} $ Appeal) could not rely on the Evidence (Magistrate Court's Trial) but subsequently filed the O 14 Application ( $ 1^{\mathrm{st}} $ Appeal). With respect, I am not able to accept the above submission by the Appellant's learned counsel. The construction of Clause 1.1 (definition of "Period of Approval") , Clause 35A.1, Clause 38.16 and Section 10 (Schedule A) with regard to the commencement date of the 42 Months' Time Period -

is a question of law;

is not a question of fact; and

is not a mixed question of law and fact - please refer to the above paragraph 13. Accordingly, the Evidence (Magistrate Court's Trial) is irrelevant to the O 14 Application ( $ 1^{\mathrm{st}} $ Appeal). I. Conclusion

Premised on the above reasons -

the 3 Appeals are dismissed;

the High Court's Decision （ $ 1^{\mathrm{st}} $ Appeal), High Court's Decision （ $ 2^{\mathrm{nd}} $ Appeal) and High Court's Decision （ $ 3^{\mathrm{rd}} $ Appeal) are affirmed; and

the Appellant shall pay costs of the 3 Appeals to the Respondents (subject to allocatur fee).

At the time of the preparation of the draft of this judgment (Draft), the learned Chairperson of this panel, See Mee Chun JCA, had retired. I had forwarded the Draft to my learned brother, Azahari Kamal bin Ramli JCA, who had expressed his concurrence with the Draft. DATE:} JULY 2025 WONG KIAN KHEONG Judge Court of Appeal 37 The 1st Appeal For the appellant: Mr. Justin Voon Tiam Yu & Ms. Iris Lim Xin Yi (Messrs Justin Voon Chooi & Wing) For the respondents: Dato' Andy Wong Kok Leong, Mr. Chan Kim Weng & Ms. Kuan Jia Yin (Messrs Ching, Tan & Associates) The 2 $ ^{n d} $ Appeal For the appellant: Mr. Lai Chee Hoe, Ms. Angeline Ang Mei Fong & Ms. Deyvinah Ganesalingam (Messrs Chee Hoe & Associates) For the respondents: Dato' Low Joo Hean, Mr. Chan Kim Weng & Ms. Kuan Jia Yin (Messrs Ching, Tan & Associates) The 3rd Appeal For the appellant: Mr. Naveen Sri Kantha & Ms. Lim Suat Yee (Messrs Tuang, Chu & Co.) For the respondent: Dato' Low Joo Hean, Mr. Chan Kim Weng & Ms. Kuan Jia Yin (Messrs Ching, Tan & Associates)