Ismail Bin Othman v 1. ) Duta Skyline Sdn. Bhd. (BA-24NCC-122-08/2019)

DUTA SKYLINE SDN BHD … DEFENDANTS [COMPANY NO.: 338152-U]

AMAZING SYMPHONY SDN BHD [COMPANY NO.: 1274546-D] GROUNDS OF JUDGMENT Introduction 1. Both the 1st and the 2nd defendants submitted their respective applications, Enclosure 99 and Enclosure 101, for the assessment of damages claimed to have been incurred due to the plaintiff’s injunction, which the Court of Appeal subsequently overturned on 22-5-2023.

Their application was dismissed with costs; consequently, the appeal was lodged.

The 1st and 2nd defendants entered into a joint venture agreement, whereby the 2nd defendant was to develop a parcel of land held under GRN 23940, Lot 613, Mukim Ulu Semenyih, Daerah Ulu Langat, Selangor Darul Ehsan. It was a mixed development comprising, among others, landed residential and commercial shop units, as well as high-rise strata developments.

The plaintiff obtained ad interim injunction orders dated 11-9-2019, 30-9-2019, and 14-10-2019, prohibiting the 1st and 2nd defendants from taking any actions related to the joint venture agreement or engaging in transactions involving the specified parcel of land. Ultimately, the plaintiff succeeded in its application for an injunction on 27-5-2022.

On 22-5-2023, the Court of Appeal allowed the applications from the 1st and the 2nd defendants to set aside the interlocutory injunction order. Additionally, the Court granted both defendants the liberty to apply for assessment of damages. Issues to be Tried 6. Whether the 1st defendant’s claim for damages arising from the assertion by the 1st defendant that the monies payable by the 2nd defendant to the 1st defendant were not paid due to the ad interim injunction order and the interlocutory injunction order obtained by the plaintiff between 11-9-2019 and 21-5-2023 is maintainable.

Whether the 2nd defendant is entitled to claim loss of development profit. Decision of this Court 8. The 1st defendant states that in accordance with clause 3A.1(a) of the joint venture agreement, the 2nd defendant was required to make a definite amount of payments. Clause 3A.1 (a) reads as follows: “The Landowner and the Developer hereby mutually covenant and agree with one another that the consideration for the Landowner entering into a Joint Venture with the Developer to develop and complete for sale the Development on the Project Land (pursuant to the terms and conditions of this Agreement) shall be twenty two percent (22%) of the GDV for all low rise landed development and Eighteen percent (18%) of the GDV for all high rise strata development (collectively, the Landowner’s Entitlement) which shall be paid by the Developer to the Landowner in the following manner:

total cash sum of Ringgit Malaysia Ten Million (RM10,000,000.00) only (Cash Consideration) of which a sum of Ringgit One Million (RM1,000,000.00) only shall be payable by the Developer to the Landowner upon execution of this Agreement (Earnest Deposit), and a further sum of Ringgit Malaysia Two Million (RM2,000,000.00) only (Balance Deposit and the Earnest Deposit and the Balance Deposit shall collectively be referred to as the Initial Deposit) to be paid within three (3) months from the date of this Agreement and the balance sum of Ringgit Malaysia Seven Million (RM7,000,000.00) only to be paid over seven (7) annual payments of Ringgit Malaysia One Million (RM1,000,000.00) only each on every anniversary date of this Agreement.”

It is the 1st defendant’s position that the Earnest Deposit and the Balance Deposit of RM3,000,000.00 have been duly paid, and there is no dispute regarding this matter between the 1st and 2nd defendants.

However, due to the ad interim orders and interlocutory injunction order, the 2nd defendant did not make any payments to the 1st defendant in accordance with clause 3A.1(a) of the joint venture agreement from 11-9-2019 to 22-5-2023.

Clause 19.11 of the joint venture agreement entitles the 1st defendant to interest at a rate of 10% per annum, calculated on a daily basis, from the 2nd defendant during the period from 11-9-2019 to 22-5-2023, for the sum of RM4,000,000.00, which amounts to

The submission presented by the 1st defendant contends that the plaintiff is obligated to compensate the first defendant for the loss of RM4,000,000.00, which the 1st defendant was entitled to receive from the 2nd defendant but was unable to do so owing to the ad interim orders and interlocutory injunction order.

The 1st defendant's claim totals RM633,972.60, as calculated under Clause 19.11 of the joint venture agreement.

The 1st defendant also argued that the plaintiff’s assertion that the joint venture agreement has been terminated is mistaken. There was a restructuring exercise involving Seacera Group Berhad (SGB), the 1st defendant, and three other companies. Consequently, the RM3,000,000.00 was being recovered by the 2nd defendant, as the creditor, and this does not imply that the joint venture agreement has been terminated.

During the course of proceedings in Enclosure 131, page 24, DWI confirmed the fact that there was no documentary evidence to prove that the 2nd defendant made payment as per Clause 3A.1 (a), to the 1st defendant.

It was established before this Court that the 2nd defendant had claimed back RM3,000,000.00, which was paid to SGB as the joint venture deposit and as a creditor for the said amount pursuant to a restructuring exercise in 2020 of the SGB Group of Companies, including the 1st defendant (refer to Enc 105, Enc 131, pages 29- 35). Although there was no agreement before this Court to terminate the joint venture agreement, this Court is satisfied that the 2nd defendant's claim for RM3,000,000.00 as a creditor shows that the joint venture agreement has ended. DW2 confirmed in his evidence that the joint venture agreement had ended. (refer to Enc 131, page 89). He further confirmed that the 2nd defendant paid no interest to the 1st defendant.

The 1st defendant also failed to produce any evidence before this Court to prove that both the 1st defendant and the 2nd defendant took any steps to implement the joint venture agreement, such as applying for approvals, development orders, or other relevant permissions. It must be noted that the Court of Appeal decided in 2023, but to date, there is no evidence regarding the matters mentioned above.

It is evident from the testimony of DW2 that the joint venture agreement had terminated due to the claim by the 2nd defendant, acting as a creditor, for the refund of RM3,000,000.00 from SGB Group. In such a circumstance, it is unreasonable to assume that the 2nd defendant would have invested an additional RM4,000,000.00 in a non-existent joint venture agreement.

Furthermore, there is no evidence before this Court to demonstrate that, following the lifting of the injunctions in 2023, the 2nd defendant made any payments of RM1,000,000.00 annually to the 1st defendant. The only inference that can be drawn is that the 2nd defendant made no payments to the 1st defendant, as the joint venture agreement has concluded.

I also agree with the submission made by the plaintiff that the 1st defendant’s witness, DW1, was unable to clarify the discrepancy and the incorrect calculation, which does not align with Clause 19.11 of the joint venture agreement.

Moreover, the failure of the 2nd defendant to pay the RM7,000,000.00 annual obligation to the 1st defendant, despite the removal of the injunctions in 2023, shows that the joint venture agreement between the 1st and 2nd defendants has effectively come to an end.

In conclusion, this Court finds that the 1st defendant has not shown that actual damages were incurred on the balance of probabilities.

The 2nd defendant’s claim concerns RM126,026,380.36, which reflects the total development profit lost based on the gross development value. The 2nd defendant maintains that this loss is due to the ad interim orders and the interlocutory injunction obtained by the plaintiff.

The 2nd defendant further argued that the overall development profit relative to the Gross Development Value (GDV) across the three phases has substantially decreased in 2023 compared to 2019, attributable to heightened construction costs resulting from increases in labour, fuel, and material prices.

The Development Feasibility Study by Perunding Kos Bersatu Sdn Bhd is deemed reasonable and warrants court acceptance. The 2nd defendant contended that, in the absence of an expert report from the plaintiff, the Court should rely on DW3’s expert evidence. DW3 reviewed and analysed the Development Feasibility Study prepared by Ooi Huat Chai to provide his professional opinion.

It is an undisputed fact that Ooi Huat Chai, who prepared the report on the loss of profit, was not called to testify before this Court.

The gist of DW3’s testimony is as follows:

Ooi Huat Chai actually prepared the report that he was relying on;

(ii) the report was not dated;

(iii) DW3 did not contact Ooi Huat Chai;

(iv) DW3 was unaware of the source of Ooi Huat Chai’s information in the report.

The report was not officially endorsed as an expert report. (refer to Enc131, pages 89-114)

Taking into consideration the above, this Court determines that DW3's testimony in court lacks veracity, accuracy, and correctness.

DW3 further testified in Court that he was not giving his opinion independently but was providing an opinion on another document, the truthfulness of which he cannot verify.

DW3 testimony as to the loss of profit is as follows: “DW3: Ya, Kedudukan kami sebagai Perunding QS memberi pendapat opinion tentang kos yang disediakan oleh Perunding Kos Bersatu. Dalam opinion kami, kami menyertakan sedemikian bahawa kos itu telah meningkat daripada 2019 kepada

Itu sahaja skop kepakaran skop engagement kami dalam ini. Jadi kami tidak ada memberi opinion tentang profit umpamanya. REN: So you bersetuju dengan saya En. Nazri that your testimony En. Nazri adalah speculative sahaja, bukan yang dialami oleh Pihak-pihak dalam JVA ini? It’s speculation because you are just comparing cost. DW3: Ya, in a way, that’s betul. Setuju.” (refer to Enc 131, page 117)

The foregoing demonstrates that DW3's proposed sum is speculative and does not accurately represent the alleged loss of the 2nd defendant. Consequently, this Court is not in a position to award damages based on speculative figures that lack actual engagement and personal knowledge.

Conclusion In conclusion, this Court finds that the 1st and 2nd defendants have failed to establish their claim on the balance of probabilities concerning the damages they seek to recover from the plaintiff. Therefore, both the defendants' application for assessment of damages was dismissed with costs. Dated: 17th November 2025 (INDRA NEHRU SAVANDIAH) Judge High Court of Malaya Shah Alam Selangor Date of Decision: 30th September 2025 Counsels: For the Plaintiff : Renu Zechariah & Cheryl Kwan Chui Yi Messrs Rosley Zechariah For the Defendants :