Injecmax Sdn Bhd v Chin Tian Soong (BA-22NCvC-397-09/2023)

CHIN TIAN SOONG (NRIC No. 610503-10-5807)

YAP ENG HONG (NRIC No. 781217-10-5810)

YAP LAI MENG (NRIC No. 580402-02-5395)

NG SEAN MUN (NRIC No. 740914-10-5049) … DEFENDANTS GROUNDS OF JUDGMENT 23/12/2024 09:45:47 BA-22NCvC-397-09/2023 Kand. 37

The Plaintiff, Injecmax Sdn Bhd, filed this suit against the Defendants, alleging causes of action in misrepresentation, fraud, and conspiracy to defraud. The claims relate to four key issues: a. The alleged defective or missing fittings at the property; b. The legality of the common entrance area shared with neighbouring land; c. The alleged defective construction of a new access road; and d. A dispute concerning the road name issue.

The Defendants filed Enclosure 10 under Order 33 rules 2 and 5 and/or Order 92 rule 4 of the Rules of Court 2012 (ROC 2012), seeking the determination of Preliminary Issues to dispose of the Plaintiff’s suit entirely.

The Preliminary Issues, as framed by the Defendants, concern whether the Plaintiff is estopped from maintaining its claims, particularly in light of the express terms of the Sale and Purchase Agreement (SPA) and the doctrine of estoppel.

Having reviewed the parties’ submissions and the evidence, I allowed the Defendants’ application for the reasons set out below.

The dispute arises from a SPA entered into between the Plaintiff, and the First to Third Defendants for the purchase of a leasehold property located at Lot 8021, Jalan 4D, Kampung Baru Subang, Shah Alam, Selangor (the Property). The agreed purchase price for the Property was RM4.1 million, and the transaction was governed by the terms of the SPA executed on 26 May 2022. The Fourth Defendant, a co-proprietor of the neighbouring Lot 8022, was involved in granting shared access to the common entrance area, which the Plaintiff and other property owners used to access Lot

The Fourth Defendant was also involved in issuing a Consent Letter granting access rights to this shared entrance area.

Prior to entering into the SPA, the Plaintiff conducted a site inspection of the Property on 1 March 2022, accompanied by their agent, Adrian Wong. After the inspection, the Plaintiff raised several concerns regarding the Property’s condition, legal documentation, and access. These concerns centred around three main issues: a. The legality of the common entrance area, which was shared with Lot 8022 and appeared to encroach on Lot 3768, a neighbouring property. b. The road access to the Property, as there was a discrepancy between the official documents listing the road as “Jalan 2D” and the Defendants stating that access was via “Jalan 4D”. c. The condition of certain fittings within the Property, including air conditioners, an access door system, and a sliding auto gate, which the Plaintiff claimed were either missing or defective.

The Plaintiff was concerned about the legal status of the common entrance area shared with Lot 8022 and its apparent encroachment onto Lot 3768, which was outside the Defendants’ ownership. The Plaintiff’s agent, Adrian Wong, raised these concerns with the Defendants’ agent, Woo Han Hau, who explained that the shared entrance area served several properties, including Lot 8021, Lot 8022, and Lot 3768 belonged to a Third Party.

The Defendants assured the Plaintiff that any issues related to the access road would be addressed. They agreed to construct a new access road to bypass the encroachment onto Lot 3768 and provide a clear and legal route to the Property. The Defendants undertook to construct this road at their own expense and to secure the necessary legal approvals to ensure the Plaintiff’s access.

Additionally, the Defendants obtained a Consent Letter from the owners of Lot 8022, granting the Plaintiff the right to use the common entrance area without interference or additional charges. The Consent Letter, issued on 5 April 2022, confirmed that the Plaintiff would have unhindered access to the entrance area controlled by Lot 8022, resolving any immediate concerns over shared use. The Defendants provided this letter to the Plaintiff before the execution of the SPA, and it was included as part of the documents for the transaction.

The road name issue arose on 19 April 2022 when the Plaintiff’s agent informed the First to Third Defendants’ agent that the assessment bill listed the Property’s road name as “Jalan 2D”, contrary to the offer letter, which referred to it as “Jalan 4D”. Initially, the Defendants’ agent advised the Plaintiff’s agent to follow the assessment bill and adopt Jalan 2D as the road name. However, after consulting with the Third Defendant, who referred to ‘Kelulusan Merancang’ (KM) Documents where the road name was recorded as Jalan 4D, the Defendants’ agent informed the Plaintiff that Jalan 4D ought to be the correct road name. During this period, the Plaintiff also urged the Defendants to expedite preparations for a tenancy agreement, as the Plaintiff planned to move machinery into the Property in July 2022.

On 21 April 2022, the Plaintiff’s SPA Solicitors sent a draft SPA to the Defendants’ SPA Solicitors, highlighting the road name issue and requesting that the assessment bill reflect Jalan 4D to ensure smooth loan disbursement by the Plaintiff’s financier. In response, the Defendants’ SPA Solicitors revised the draft SPA, proposing to adopt Jalan 2D as stated in the assessment bill.

On 22 April 2022, the Defendants’ agent sent an e-mail to both the Plaintiff’s and the Defendants’ legal teams, suggesting that Jalan 4D should be the correct road name based on Google Maps. The Plaintiff’s representative, Lim Ooi Cheng, disagreed, insisting that the road name must align with government documents. The Third Defendant confirmed that KM Documents from MBSA supported the use of Jalan 4D and noted that the Defendants had consistently used Jalan 4D as the postal address. Meanwhile, the Defendants’ agent met with an MBSA officer to resolve the issue. On the same day, the Plaintiff’s SPA Solicitors rejected the Defendants’ proposal to use Jalan 2D and requested that the Defendants amend the assessment bill through MBSA.

By 24 April 2022, Lim expressed frustration at the delays, describing the situation as “sluggish and irritating.” In response, the Defendants’ SPA Solicitors assured Lim that they were liaising with MBSA to resolve the issue. The following day, 25 April 2022, the Defendants’ SPA Solicitors formally wrote to MBSA, requesting an amendment to the road name in the assessment bill from Jalan 2D to Jalan 4D for consistency with the offer letter and the financier’s approval letter. Supporting documents, including a previous SPA (dated 19 May 2015) and the existing assessment bill, were submitted for review.

On 26 April 2022, the Defendants’ agent followed up with the officer at MBSA, who eventually agreed that Jalan 4D was the correct road name. MBSA updated the Property’s address in the assessment bill to Jalan 4D, and the updated assessment bill was promptly provided to the Plaintiff’s agent. This resolved the road name issue, ensuring that the address in the official documents aligned with the Plaintiff’s financier’s requirements and the offer letter.

The Plaintiff raised concerns regarding certain fittings within the Property, including air conditioners, an access door system, and a sliding auto gate. The Plaintiff alleged that these fittings had been represented as part of the sale during the inspection and negotiation process. However, when the Plaintiff took possession of the Property on 1 July 2022, under an early vacant possession agreement, the fittings were found to be either missing or defective.

The Defendants explained that the fittings in question were owned by the previous tenant, BTC Market Trading Sdn Bhd, and had been removed by the tenant before the Plaintiff possessed the Property. The Defendants had informed the Plaintiff of this during negotiations. The SPA included an “as is where is” clause (clause 2.1), which precluded any claims regarding the condition of the Property, including the fittings, after the sale. The Defendants argued that the Plaintiff was fully aware of the removal of the fittings before executing the SPA.

The Defendants provided evidence of their communication with the Plaintiff’s agent prior to the execution of the SPA. WhatsApp messages between the Plaintiff’s agent and the Defendants' agent dated 2 March 2022, confirming that the Plaintiff was aware that the fittings would be removed by the previous tenant. Despite this, the Plaintiff did not raise objections during the inspection or negotiation process.

The Defendants maintained that there was no misrepresentation regarding the fittings, as the Plaintiff was made aware of their removal well before the SPA was executed. The “as is where is” clause further protected the Defendants from any claims regarding the condition of the Property post-sale. The Defendants argued that the Plaintiff’s claim of missing or defective fittings lacks merit and is barred by the terms of the SPA.

After taking possession of the Property on 1 July 2022, the Plaintiff raised further complaints about the access road, the road name discrepancy, and the condition of the Property. The Plaintiff alleged the following: a. Insufficient Consent Letter: The Plaintiff claimed that the Consent Letter provided by the Defendants was inadequate, as it did not address the portion of the common entrance area encroaching on Lot 3768. In April 2023, the Plaintiff discovered that the access road was, in fact, owned by Lot 3768, a third-party landowner, rather than Lot 8022. b. Market Value Impact: The Plaintiff engaged a licensed land surveyor and a registered property valuer to assess the situation. The surveyor confirmed that the road providing access to the Property was owned by Lot 3768, while the valuer’s report indicated that the Property’s market value had decreased significantly due to the uncertainty regarding access. The report suggested that if access via Jalan 4D was unavailable, the Property’s value would drop to approximately RM1,050,000, far below the agreed purchase price. c. Defective Access Road: The Plaintiff alleged that the newly constructed access road lacked proper drainage, rendering it defective and unsuitable for use. d. Missing or Defective Fittings: The Plaintiff reiterated their claim regarding the fittings, asserting that these were either missing or in poor condition, contrary to what was represented during the negotiations.

The Defendants maintained that: a. All issues raised by the Plaintiff were disclosed before the execution of the SPA, and adequate steps were taken to address these concerns. b. The Plaintiff’s claims of misrepresentation and fraud are without merit, as the terms of the SPA were clear and binding, particularly the entire agreement clause, which precludes reliance on representations not included in the SPA. c. The Consent Letter, the construction of the new access road, and the correction of the road name discrepancy adequately addressed the concerns raised by the Plaintiff prior to the sale. d. The Plaintiff’s knowledge of the “as is where is” clause barred any claims regarding the condition of the Property or the fittings .

The Defendants argued that any post-sale issues raised by the Plaintiff are either inconsistent with the terms of the SPA or were addressed in good faith. They contended that the Plaintiff is estopped from pursuing these claims and that the Plaintiff’s allegations of misrepresentation, fraud, and conspiracy to defraud lack basis in fact or law.

Therefore, the Defendants framed four (4) issues for the determination of this Court pursuant to Order 33 rule 2 of the ROC 2012: “Whether the Plaintiff is estopped from commencing and/or maintaining this action concerning the following issues:

the Alleged Defective/Missing Fittings (i.e. the 1st Issue);

the Common Entrance Area (i.e. the 2nd

the Alleged Defective New Access Road (i.e. the 3rd Issue); and

the Road Name Issue (i.e. the 4th Issue). (collectively, the “Preliminary Issues”)” FINDINGS OF THE COURT

Order 33 rule 2 of the ROC 2012 grants the Court the discretion to direct the trial of any question or issue arising in a cause or matter, whether of fact or law, and whether raised by the pleadings or otherwise, to be tried separately before, at, or after the trial of the cause. This provision is designed to allow for the efficient resolution of disputes where the resolution of certain issues can dispose of the entire case or save significant time and costs in litigation. The Court may exercise its discretion to order the trial of preliminary issues if such issues are clear, undisputed, and determinative of the overall case.

The Defendants, in their submissions, cited Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8, where the Court of Appeal emphasised that even complex cases can be dealt with under Order 33 rule 2 of the ROC 2012 if the issues are primarily legal in nature and resolvable based on documentary evidence rather than witness testimony. The Court encouraged the use of Order 33 rule 2 of the ROC 2012 to avoid unnecessary trials when the preliminary issues are straightforward, capable of expeditious resolution and determinative of the matter.

In this case, the Defendants argued that the Preliminary Issues can be resolved without the need for a full trial, as they primarily involve the interpretation of the SPA, which is a legal document, along with other contemporaneous documents. These documents are undisputed, and their interpretation falls squarely within the Court’s jurisdiction. This approach aligns with the principles outlined in Petroleum Nasional Bhd, where the resolution of preliminary legal issues was found to dispose of the matter and avoid unnecessary litigation costs effectively.

The Defendants further emphasised that the issues in this case involve the interpretation of the SPA and its terms, which is a question of law. In NVJ Menon v The Great Eastern Life Assurance Co Ltd [2004] 3 MLJ 38 (NVJ Menon), the Court of Appeal held that the construction of a contract is a legal question to be determined by the Court. The Court clarified that the interpretation of a contract does not require witness testimony but should instead be resolved based on the language of the contract and the intentions of the parties as reflected in the document itself.

The Defendants contended that the Plaintiff’s claims, particularly regarding the common entrance area and the road name issue, hinge on the interpretation of the SPA and related documents. The SPA clearly states that the sale was made on an “as is where is” basis, and the entire agreement clause in clause 22 expressly provides that the SPA supersedes all prior representations, agreements, or negotiations. According to the Defendants, these terms are clear and unambiguous. The Plaintiff’s attempt to raise claims based on alleged pre-contractual representations or assurances is therefore barred by the SPA.

In support of this position, the Defendants relied on NVJ Menon, arguing that the Court should interpret the SPA strictly based on its written terms without relying on extrinsic evidence or oral testimony regarding the Plaintiff’s alleged understanding of the agreement.

The Defendants further contended that the Plaintiff’s complaints, as encapsulated in the 1st to 4th Issues, are fundamentally unsustainable given the entire agreement clause in clause 22 of the SPA. Clause 22 unequivocally stipulates that the SPA represents the entire agreement and understanding between the parties, superseding all prior agreements, negotiations, and communications. This clause precludes the Plaintiff from relying on any pre-contractual statements or representations to substantiate their claims.

The Defendants contended that this principle is well-established under Malaysian law, relying on Puteh Aman Power Sdn Bhd v Bittersweet Estates (Sabah) Sdn Bhd [2012] MLJU 835 (Bittersweet), where Justice Zabariah (as she then was) upheld the effect of an entire agreement clause. In Bittersweet, the plaintiff alleged that the defendant had misrepresented facts during negotiations. The Court rejected the plaintiff's claim, holding that the entire agreement clause prevented reliance on extraneous evidence such as letters, negotiations, or pre-contract discussions. The Court cited the decision in Master Strike Sdn Bhd v Sterling Heights Sdn Bhd [2005] 2 CLJ 596, which reinforced that such clauses protect the written contract from being undermined by collateral warranties or oral assurances. Justice Zabariah adopted the reasoning of Lightman J in The Inntrepreneur Pub Company v East Crown Limited [2000] 3 EGLR 31, where it was held that: “The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth and finding in the course of negotiations some (chance) remark or statement (often long forgotten or difficult to recall or explain) on which to found a claim such as the present to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need which may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that accordingly any promises or assurances made in the course of the negotiations (which in the absence of such a clause might have effect as a collateral warranty) shall have no contractual force, save insofar as they are reflected and given effect in that document.”

The Defendants submitted that the entire agreement clause at clause 22 of the SPA operates to bar the Plaintiff from introducing prior communications or negotiations as evidence to support the 1st-4th Issues. The intention of the parties must be derived solely from the SPA itself, and the Plaintiff cannot now seek to rely on pre-contractual representations or assumptions to undermine the final and binding terms of the agreement.

The Defendants further relied on the doctrine of estoppel as established by the Federal Court in Boustead Trading (1985) Sdn. Bhd. v Arab-Malaysian Merchant Bank Bhd. [1995] 3 MLJ 331 (Boustead Trading), where it was held that estoppel is a flexible doctrine that operates to achieve justice in varying circumstances. The Court in Boustead Trading emphasized that: “... the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless. ... When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.” [Emphasis added]

In this case, the underlying assumption was that the Plaintiff purchased the Property based on the clear terms of the SPA, including the “as is where is” clause and the entire agreement clause. The Plaintiff accepted and relied on these terms by proceeding to execute the SPA, taking delivery of the Property, and remaining silent for a prolonged period after the transaction. It is, therefore, inequitable for the Plaintiff to now go back on that assumption by raising issues that were either addressed or expressly excluded in the SPA.

The Defendants highlighted that the Plaintiff’s actions—taking more than 14 months after delivery of early vacant possession and over 11 months after completion of the SPA—demonstrate a clear afterthought. The Plaintiff’s delay undermines the credibility of their claims and shows that they are seeking to reopen settled issues to extract further concessions from the Defendants. The doctrine of estoppel applies to prevent the Plaintiff from taking such an inconsistent and inequitable position.

The Defendants further contended that the Plaintiff’s conduct in commencing this action amounts to an abuse of the Court’s process. By relying on issues that were already encapsulated, addressed, and superseded by the SPA, the Plaintiff’s action is not only unfounded but also mala fide and unconscionable.

The Defendants pointed to the Plaintiff’s delay of more than a year following early vacant possession and completion of the SPA as evidence that the claims are baseless and malicious in nature. The Plaintiff had ample opportunity to raise these issues during negotiations and prior to executing the SPA. By remaining silent for such an extended period, the Plaintiff effectively accepted the terms of the agreement and waived any objections.

The Defendants argued that allowing the Plaintiff to proceed with such claims would undermine the integrity of the SPA and the purpose of the entire agreement clause, which is to bring finality to the contractual terms. Moreover, it would open the door to frivolous and vexatious claims based on pre-contractual communications, defeating the principle of certainty in commercial agreements.

In light of the entire agreement clause, the doctrine of estoppel, and the Plaintiff’s conduct, the Defendants contended that the Plaintiff’s claims are not only meritless but also an abuse of the Court’s process. The Court should reject the Plaintiff’s attempt to reopen settled matters and dismiss the action accordingly.

Therefore, the Defendants maintained that the key issues in this case, particularly the interpretation of the SPA and related documents, can be resolved without the need for oral testimony.

The Plaintiff alleged that certain fittings, specifically air conditioners, an access door system, and a sliding auto gate, were either missing or defective. The Plaintiff contended that these fittings were represented as part of the Property during negotiations, and therefore, their absence or poor condition constitutes a breach of the SPA.

The Plaintiff also referred to the “without prejudice” letter from the First to Third Defendants' solicitors, dated 16 February 2023, where the Defendants offered to pay damages for these issues. The Plaintiff argued that the offer to compensate for the missing or defective fittings implies that the Defendants acknowledged the issue and were prepared to rectify it.

According to the Plaintiff, the “without prejudice” letter demonstrates that the fittings should have been part of the sale and that their absence represents a material breach of contract. The Plaintiff contended that this letter implicitly acknowledges that the fittings were meant to be included in the Property, reinforcing the Plaintiff's claim that the Defendants failed to meet their contractual obligations.

The Defendants argued that the SPA clearly states that the Property was sold on an “as is where is” basis without any fixtures and fittings (Recital I and Clause 2.1). This clause explicitly excluded any claims regarding the condition of the Property, including the fittings, which were never part of the sale. The Defendants emphasised that the fittings in question were removed by the previous tenant, BTC Market Trading Sdn Bhd, prior to the Plaintiff taking possession of the Property.

The Defendants argued that the Plaintiff was fully aware of the condition of the Property, including the removal of the fittings, at the time of the inspection on 1 March 2022. The Plaintiff and its agent, Adrian Wong, were informed by the Defendants’ agent that the fittings belonged to the previous tenant and would be removed before the Plaintiff possessed the Property. Despite this information, the Plaintiff did not raise any objections at the time of the inspection or upon signing the SPA.

The Defendants also highlighted WhatsApp exchanges between the Plaintiff’s agent and the Defendants’ agent, which demonstrates the Plaintiff’s awareness that the fittings were removed and were never part of the sale. These communications further substantiate the Defendants’ argument that the Plaintiff had full knowledge of the situation prior to executing the SPA.

The Defendants argued that the Plaintiff’s failure to object to the removal of the fittings during the inspection and the significant delay in raising the issue after taking possession of the Property further undermine the Plaintiff's claims. The Plaintiff’s long silence on the issue, after being aware of the fittings' removal, indicates a lack of genuine concern, making it unreasonable for the Plaintiff to raise this as a basis for a breach of contract.

The Defendants provided the following evidence: a. SPA Clauses Excluding Fittings The SPA (exhibit CTS-25, pp. 463-487) clearly includes an “as is where is” clause (Recital I and Clause 2.1) that expressly excludes any representations about the condition of the Property, including the fittings. The Plaintiff signed this agreement knowing that the fittings were not part of the sale and acknowledging that they had inspected the Property. b. WhatsApp Exchanges In WhatsApp messages dated 2 March 2022 between the Plaintiff’s agent and the Defendants’ agent, the Plaintiff’s agent acknowledged that the fittings were owned by the previous tenant and would be removed before the Plaintiff’s possession of the Property (exhibit CTS-34, pp. 533-541). These messages confirmed the Plaintiff’s awareness of the missing fittings, further supporting the Defendants' position that the Plaintiff could not claim they were misrepresented or omitted. c. “Without Prejudice” Letter The “without prejudice” letter dated 16 February 2023 (exhibit LOC-7, pp. 45-46) is offered by the Defendants as a settlement proposal and does not constitute an admission of liability. The Defendants argued that such letters are inadmissible in Court because they are intended to facilitate settlement negotiations and cannot be used to infer liability. This is supported by the case of Teoh Kok Seng v Heesland Sdn Bhd & Anor [2023] 5 MLJ 475 (Teoh Kok Seng), where the Court ruled that communications made in the course of settlement negotiations are inadmissible to establish liability.

This Court agrees that the Plaintiff’s claim regarding the defective or missing fittings is barred by the terms of the SPA, specifically the “as is where is” clause (Recital I and Clause 2.1). The said clause explicitly limits the Plaintiff’s ability to make claims regarding the Property’s condition and is a standard clause used to prevent disputes regarding the condition of the property after the sale.

Furthermore, the entire agreement clause-clause 22 in the SPA also precludes the Plaintiff from relying on any representations made during negotiations or outside the contract. The SPA clearly outlines that it is the final and binding agreement between the parties, and the Plaintiff cannot now claim that the fittings were part of the sale when this is not reflected in the written contract.

Moreover, the WhatsApp messages (exhibit CTS-34) confirmed that the Plaintiff was fully aware of the situation with the fittings before executing the SPA. The Plaintiff’s failure to raise any objections during the inspection on 1 March 2022 or in the months that followed further demonstrates that the Plaintiff did not consider the fittings to be an issue at that time. The delay in raising the issue in December 2022, long after possession had been taken, further weakens the Plaintiff's claim.

Additionally, the “without prejudice” letter from the Defendants’ solicitors cannot be considered as evidence of liability in this matter. The case of Teoh Kok Seng clearly states that such communications are inadmissible in Court and cannot be used to infer any acknowledgement of responsibility for the missing fittings.

Therefore, the claim regarding the missing or defective fittings is unfounded.

The Plaintiff argued that the common entrance area is legally problematic because it encroaches onto Lot 3768, a third-party property. The Plaintiff claimed they were misled by the Defendants, who represented that the common entrance area was legally valid for use by the Plaintiff, relying on the Consent Letter issued by the Second and Fourth Defendants, the owners of Lot 8022. The Plaintiff argued that this Consent Letter was insufficient to validate the use of the common entrance area because the Defendants did not own the land over which the Plaintiff was granted access rights.

Furthermore, the Plaintiff asserted that the WhatsApp messages and other correspondence from 3 March 2022 show that the Defendants assured them that the common entrance area would be legalised through the construction of a new access road. The Plaintiff maintained that this assurance implied that the Defendants would secure all necessary legal rights and approvals, ensuring that the access route would be fully legal.

The Plaintiff’s case hinges on the argument that the Defendants failed to disclose the legal uncertainties surrounding the common entrance area and misrepresented the nature of the access rights that would be granted to the Plaintiff.

The Defendants argued that the Plaintiff was fully aware of the encroachment issue before executing the SPA. The KM drawings and title documents clearly indicated that the common entrance area encroached and overlapped onto Lot 3768, which the Plaintiff acknowledged in their communications. Furthermore, the Plaintiff was provided with these documents well in advance of signing the SPA. The title documents for both Lot 8021 (the Property) and Lot 3768 made it clear that the common entrance area was not entirely within Lot 8021's boundaries.

The Defendants provided the KM drawings to show the exact demarcation of the common entrance area and the encroachment onto Lot 3768.

The title documents further clarify the ownership of the common entrance area and confirm the encroachment onto Lot 3768.

The Defendants argued that the Consent Letter (exhibit CTS-27, pp. 497-498), signed by the Second and Fourth Defendants, clearly outlines the Plaintiff’s access rights to the shared entrance area. The letter specifically refers to the portion of the entrance area under the control of Lot 8022, confirming access but not ownership. The Defendants emphasised that the Consent Letter was never intended to address ownership of Lot 3768—a portion outside their control— but was limited to granting access to the portion of the common entrance area owned by Lot 8022. The Defendants contended that the Consent Letter was properly understood by the Plaintiff as granting access to Lot 8022’s shared entrance area only, and not the entirety of the route, particularly where it encroached onto Lot 3768.

The Defendants argued that the Plaintiff’s requests for a new access road were part of the negotiation process. The Plaintiff requested a new road to resolve the issue of the common entrance area, which was partially encroaching onto Lot 3768. The Defendants agreed to construct a new access road and secure the necessary approvals to ensure the Plaintiff had a proper legal access route.

The WhatsApp messages between the Plaintiff’s agent and the Defendants’ agent on 3 March 2022 show that the Plaintiff was fully aware of the encroachment and expressed concern regarding the legal access. The messages also show the Plaintiff’s request for a new access road to resolve the issue. The Defendants agreed to this request and began constructing the new access road.

Further email correspondence and internal communication between the Plaintiff’s solicitor and the Defendants confirm that both parties agreed on the construction of a new road and that the Plaintiff understood this was being undertaken to resolve the legal issue regarding the common entrance area.

This Court finds that the Plaintiff’s claims regarding the legality of the common entrance area are unsubstantiated. The Plaintiff was aware of the encroachment onto Lot 3768 before executing the SPA, as evidenced by the KM drawings and the title documents. It is undisputed that the Defendants provided the Plaintiff with all relevant information regarding the shared nature of the common entrance area and the encroachment onto Lot 3768.

The Plaintiff’s claims regarding the insufficiency of the Consent Letter are also without merit. It is clear that the Consent Letter was never intended to provide the Plaintiff with access to Lot 3768 but merely granted access to the portion of the common entrance area controlled by Lot 8022. The Defendants did not misrepresent the status of the common entrance area, and the Consent Letter was a reasonable measure to secure access to the part of the entrance area under the control of the Second and Fourth Defendants.

Additionally, the Plaintiff’s request for a new access road was fully addressed by the Defendants, who agreed to construct the road and take the necessary steps to ensure the Plaintiff had legal access. The Plaintiff’s own communications and requests demonstrate that they were fully aware of the situation and took steps to address it through negotiation, with the Defendants complying by constructing the new road.

There is no evidence to suggest that the Defendants misrepresented the legal status of the common entrance area. The Plaintiff’s knowledge of the encroachment and the scope of the Consent Letter precludes any claims of misrepresentation. The Plaintiff’s argument that the entire common entrance area would be legalised is a misreading of the Defendants' assurances regarding the construction of the new road.

Based on the evidence provided and the legal principles discussed, the Plaintiff’s claim regarding the legality of the common entrance area is found to be unsubstantiated. The Defendants provided clear evidence that the Plaintiff was fully informed of the encroachment issue and the limitations of the Consent Letter before executing the SPA. Furthermore, the Plaintiff’s own requests for a new access road and the Defendants’ agreement to fulfil this request further mitigate any claims of misrepresentation or failure to secure proper access.

Thus, the Plaintiff’s claim on this issue is without merit.

The Plaintiff argued that the newly constructed access road is defective due to the absence of proper drainage, claiming that the road fails to meet the standards agreed upon in the SPA. The Plaintiff contended that the lack of drainage could lead to flooding or other problems, rendering the road unsuitable and significantly reducing its usability and the overall value of the Property. According to the Plaintiff, the Defendants were obligated to construct the road in a manner that met all necessary specifications, including drainage, and the failure to do so constituted a material breach of the SPA.

In response, the Defendants maintained that the access road was constructed in full compliance with the agreed specifications and the terms of the SPA. The Defendants emphasised that the Plaintiff’s solicitors had confirmed the road specifications via email on 15 August 2022, and these specifications did not include drainage. At no point during the review or approval process did the Plaintiff’s solicitors raise any objections regarding the absence of drainage.

The Defendants further argued that the SPA did not mandate the inclusion of drainage as part of the road construction. Specifically, clause 30.2.1(a) of the SPA only required the construction of a new access road to provide access to the Property, with no provision obligating the inclusion of drainage. The road was, therefore, constructed in accordance with the agreed scope and specifications.

To reinforce their position, the Defendants referred to email correspondence from 15 August 2022, where the Plaintiff’s solicitors confirmed the specifications without any mention of drainage. The Defendants pointed out that the Plaintiff accepted these specifications and raised no objections at the time. Accordingly, the omission of drainage cannot be considered a breach of the SPA.

The Defendants argued that the road was built as agreed under the terms of the SPA, and the Plaintiff’s claims regarding drainage are baseless and unfounded, as they contradict both the confirmed specifications and the clear terms of the SPA.

This Court finds that the Plaintiff’s claim that the access road is defective due to the lack of drainage is not supported by the SPA or the agreed specifications. The SPA did not include drainage as part of the required road construction, and this was confirmed by the Plaintiff’s solicitors on 15 August 2022, as shown in the email correspondence - exhibit CTS-29. The Plaintiff’s solicitors did not raise any objections to the specifications at the time, further confirming that the lack of drainage was accepted by both parties.

This Court agrees with the Defendants' contention that the SPA specifies the construction of the road, but it does not impose a requirement for drainage. The Plaintiff’s failure to raise concerns regarding drainage during the negotiation or construction process further undermines their current claim. The Defendants fulfilled their obligations by constructing the access road as per the specifications agreed with the Plaintiff, and no further obligations related to drainage were specified in the SPA.

There is no evidence to suggest that the Defendants acted in breach of the contract. The Plaintiff’s assertion that the road is defective due to the lack of drainage is unfounded and does not meet the terms of the agreement.

In conclusion, based on the evidence provided, including the email confirmation from the Plaintiff’s solicitors and the SPA terms, the Plaintiff’s claim regarding the new access road’s defectiveness is without merit. The road was constructed as per the agreed specifications, which did not include drainage. The Plaintiff's failure to object to these specifications before or during the construction of the road further strengthens the Defendants' position. The Plaintiff's claim for damages due to the lack of drainage lacks merit, as it is not supported by the terms of the SPA or the specifications agreed upon by both parties.

The Plaintiff contended that the Defendants misrepresented the Property’s address as “Jalan 4D”, whereas official documents, including the assessment bill, referred to it as “Jalan 2D”. The Plaintiff argued that this discrepancy caused significant confusion and concern. The Plaintiff further alleged that the Defendants’ subsequent steps to amend the road name constituted fraudulent misrepresentation, claiming that the Defendants intentionally misled them about the actual road name to facilitate the sale. The Plaintiff asserted that the discrepancy was material and could have impacted their decision to proceed with the purchase, or at the very least, should have been disclosed prior to the execution of the SPA.

The Defendants, however, argued that the Plaintiff was fully aware of the road name discrepancy prior to signing the SPA. The Plaintiff had noticed the use of “Jalan 2D” in some official documents during the initial inspection and review. The Defendants clarified at the time that “Jalan 4D” was the correct road name for the Property and that the inconsistency arose due to administrative errors in government records, which were easily rectifiable.

The Defendants emphasised that they acted promptly and in good faith to correct the discrepancy as soon as it was raised by the Plaintiff. Email correspondence between the parties, particularly on 5 March 2022, demonstrated that the Defendants liaised with local authorities to amend the assessment bill and ensure that the correct address - “Jalan 4D” - was reflected in official documents. This correction was purely administrative and not intended to mislead or deceive the Plaintiff.

The SPA itself, as seen in exhibit “CTS-25”, p. 477, clearly listed the Property’s address as “Jalan 4D”, which was consistent with the Defendants’ representations. The Plaintiff proceeded to execute the SPA after confirming the road name, raising no objections at the time.

The Defendants reiterated that the amendment of the road name was a standard administrative correction and did not affect the sale or legal status of the Property. The amended assessment bill, provided after the issue was resolved, confirmed the address as “Jalan 4D”. The Defendants maintained that at no point did they intentionally misrepresent the road name and that the Plaintiff’s allegations of fraudulent misrepresentation were unfounded.

In conclusion, the Defendants argued that the road name discrepancy was a clerical error that was promptly addressed once identified. The Plaintiff’s claim of being misled into purchasing the Property is unsupported, as the SPA clearly stipulated the address as “Jalan 4D”, and the Plaintiff accepted and signed the agreement without raising further objections.

Based on the evidence provided, this Court finds that the Plaintiff’s claim regarding the road name issue is unfounded. The discrepancy in the road name was an administrative error that was corrected promptly by the Defendants. The Plaintiff was fully aware of the issue before executing the SPA and did not raise any objections regarding the road name at the time. The Plaintiff’s argument that the road name discrepancy caused them confusion or constitutes fraudulent misrepresentation is not supported by the evidence. Moreover, the Defendants took the necessary steps to amend the official documents to reflect the correct road name and there is no evidence to suggest any intention to deceive the Plaintiff.

Furthermore, there is no evidence to suggest that the Defendants misrepresented the road name to induce the Plaintiff into purchasing the Property.

Based on the evidence and reasons stated above, I agree with the Defendants’ argument that the Plaintiff is estopped from raising the 1st-4th Issues, as they contradict the terms of the SPA and the assumptions on which both parties acted during the transaction.

Furthermore, the Plaintiff’s delay and inconsistent conduct amount to mala fide action and constitute an abuse of the Court’s process. The Plaintiff’s claims are unsustainable, inequitable and contrary to established legal principles.

Based on the foregoing, I find that the Preliminary Issues raised by the Defendants are suitable for determination under Order 33 rule 2 of the ROC 2012. Accordingly, the answer to the question posed in Enclosure 10 is in the affirmative.

As such, I allowed the Defendants’ application in Enclosure 10, with costs awarded to the Defendants in the sum of RM15,000.00. Dated: 23 December 2024 -sgd-JAMHIRAH ALI JUDGE High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Plaintiff : Jennifer Ang (Messrs John Wong Associates) For the 1st-4th Defendants : Simon Hong & Tan Wei Jie (Messrs Simon Hong)