Jarry D Culaz v Zakaria Bin Sulaiman (BA-22NCVC- 397-07/2017)

This is an application by the Defendant under Order 18 Rule 19 (1)(a) and / or (b) and/ or (d) of the Rules of Court 2012 (“ROC 2012”) dated 27 October 2017 (enclosure 9) to strike out the Plaintiff’s Writ of Summon and Statement of Claim.

The Defendant’s claimed that the Plaintiff’s claim is frivolous and vexatious that amounts to an abuse of Court’s process; 2

The cause papers for this application are as follows:

The Notis Permohonan filed by the Defendant pursuant to Order 18 rule 19 dated 27 October 2017 (“the Application”);

The Affidavit in Support affirmed by the Defendant dated 27 October 2017;

Affidavit in Reply affirmed by the Plaintiff on 22

Affidavit in Reply affirmed by the Defendant on 13 February 2018.

To simplify the above affidavits, the Defendant’s claim’s that the Writ dated 10 July 2017 and the Statement of Claim dated 7 July 2017 is timed barred by virtue of the Limitation Act 1953. The Defendant’s claimed that the Plaintiff’s claim is frivolous and vexatious that amounts to an abuse of Court’s process. The Plaintiff, on the other hand, claimed that there are serious issues to be tried namely whether there is issue of limitation, whether the Defendant had all material time acknowledged the rights and interest of the Plaintiff in the land and whether the Plaintiff has fully paid for the purchase price of the said land.

Having gone through the pleadings and affidavits filed by the respective parties, I have concluded the facts below : 3

The Plaintiff and the Defendant had entered into the Sale and Purchase Agreement dated 08 November 2000 in which the Plaintiff had purchased a piece of land held under HS (M) 7860 (previously known as HS (M) 06289), PT 1464 Mukim Hulu Semenyih, Daerah Hulu Langat, Selangor Darul Ehsan for the sum of RM40,000-00;

On 13 October 2000, the Plaintiff through his solicitors’ letter dated 13 October 2000 to the Defendant had made payment via cheque,

Thereafter, the Defendant’s solicitors furnished via letter dated 1 November 2000, inter alia, the Original Issue of Document of Title and irrevocable Power of Attorney dated 10 June 2000 to the Plaintiff’s solicitor;

The Defendant also signed the Borang Permohonan Kebenaran Untuk Memindahmilek (an old format) and furnished the same to the Plaintiff’s solicitors through his solicitors; 4

In order to protect his rights, the Plaintiff entered a caveat on 23 October 2000;

The Plaintiff attempted to seek leave to transfer the land but was rejected due to the Form being an old format;

The Plaintiff’s solicitors had send letters dated 16 May 2010 and 8 August 2014 asking the Defendant to execute the new Borang Permohonan Pindahmilek have been futile;

The Defendant solicitors letters dated 15 September 2014 and 27 November 2014 informed that the Defendant had not attended to their office to sign the form;

On 27 August 2015, the Plaintiff entered the Private Caveat to protect his interest;

In October 2016, the Plaintiff was informed by the Defendant’s new Solicitors that the Defendant had applied and obtained a Geran Gantian for the Land purportedly because the original was lost. In fact, the Plaintiff had 5 retained the Original Grant, and continues to do so;

On 28 October 2016, there was a meeting held between the Plaintiff, the Plaintiff’s solicitors and the Defendant’s solicitors at the office of the Defendant’s solicitors where the rights and interest of the Plaintiff was discussed. Subsequently, via letter dated 4 November 2016, the Defendant’s solicitor had informed that the Defendant has confirmed the rights to the Plaintiff in respect of the land and that the Defendant was advised not to deal with the land;

By way of letter dated 8 November 2016, the Plaintiff’s solicitors had furnished the Borang Permohonan Kebenaran Untuk Pindahmilek to be signed by the Defendant requested that the Defendant furnish the new titles. The Defendant’s solicitors forwarded the original title to the Plaintiff’s solicitors;

The Plaintiff then filed an extension of the caveat in the Shah Alam High Court Originating Summons No. BA-24-409- 6 04/2017. An Order was granted to extend the caveat until 4 December 2017; and

Subsequently, on 10 January 2018, this Honourable Court granted a further Order to extend the caveat until the disposal of this action. THE LAW OF STRIKING OUT

The principles governing a striking out application are automatically set out in Bandar Builder Sdn. Bhd. & 2 Ors. v. United Malayan

1 MLRA 611 (FC). It is only in plain and obvious cases where it is clear that the claim is unsustainable is the power to summarily strike out a case exercised. Mohamed Dzaiddin SCJ delivering the judgment of the Federal Court as follows: “….the principles upon which the Court acts in exercising its power under any of the four limbs of O.18 r.19….are well settled. It is only in plan and obvious cases that recourse should be had to the summary process under this rule………and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it “obviously unsustainable” …….The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defence raised are not arguable……..” 7

The above case and principles was also followed in the Court of Appeal judgment in Enersafe Sdn. Bhd. v. Megarina Sdn. Bhd.

2 CLJ 1021 (CA), Zulkefli Makinuddin JCA (as he then was) had said this: “….(12) We find it is most appropriate here to state the well established principle in that the power of striking out pleadings under O.18 r.19…..as invoked by the appellant in this case is too well known that it can only be exercised when the respondent’s claim on the face of it is obviously bound to fail……”

Similarly, in another Court of Appeal decision of Sivakumar a/l Varatharaju Naidu v. Ganesan a/l Retanam (2011) 6 MLJ 70, Abdul Malik Ishak JCA held that: “…….the summary procedure under Order 18 Rule 19 should only be resorted to when it is conspicuously clear that the Plaintiff’s claim, on the face of it, is obviously unsustainable. The court will always strike out a claim in plain and obvious cases and where the claim in obviously unsustainable. The power to strike out must be exercised by the court sparingly. It is a rule of thumb that if it can be shown that the pleadings do disclose some cause of action or that it has raised some question fit to be decided, then the case should be set down for argument notwithstanding that the chances of success are minimal. The pleadings must be entirely hopeless, baseless or 8 without foundation in law or in equity before they can be struck out…….”

This court is always reminded by plethora of cases that the power to strike out summarily without a trial is a drastic power which should be exercised with utmost caution and should only be exercised in plain and obvious cases (see Tractors Malaysia Berhad v. Too Chee Hing (1975) 2 MLJ 1, Bandar Builders Sdn. Bhd. v. United Malayan Banking Corporation Bhd. (1993) 3 MLJ 36).

Having scrutinized the above, I shall now consider the rival contentions of the parties on only one issue. ISSUE Whether this suit was filed out of time and were statutory barred since the Defendant believe that the Sale and Purchase Agreement are void and/or cancelled ?? In the Plaintiff’s solicitors letter dated 10 June 2009 (marked as J5), as reflected in the Plaintiff Affidavit, the Permohonan Kebenaran Pindahmilek was only made and received by the Land Office on 10 June 2010. The Plaintiff took a year to send a letter to the Land Office. Referring to exhibit J-6, a letter from Culaz and Associates dated 16 May 2010 was sent to Elida Emran and Partners informing 9 that a new application form for Consent to Transfer was applied and this letter was only received by Elida Emran and Partners on 18 June

Referring to exhibit J-6, a letter from Culaz & Associates dated 08 August 2014 was sent to Elida Emran and Partners requesting the Defendant to execute a fresh application form for Consent to Transfer. This letter was only received by Elida Emran & Partners on 12 August 2014. Having enlighten this, the question that comes to my mind is why does the Plaintiff choose not to file an action through the Court to acquire or to complete the transfer of the said land by Specific Performance or other means necessary within than the limitation time period? To my mind, the Defendant has yet to take action in order to recover the land after the expiry of twelve years from the date of the Sale and Purchase Agreement on 08 November 2000.

Limitation of actions to recover land.

No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person. ”

Having considered the time frame taken by the Plaintiff’s, it is best to relay the step taken by the Plaintiff as follows : 10

08 November 2000 - Plaintiff and Defendant entered into

(ii) 10 June 2010 - A letter from Culaz and Associates sent to Land Office for Consent to Transfer that was later rejected because the form presented was an old format;

(iii) 18 June 2010 - A letter from Culaz and Associates sent letter to Messrs Elida Imran & Partners stating there's a new Consent Form for Consent to Transfer to be executed by the Defendant;

(iv) 08 November 2012 - Limitation time set in. Plaintiff failed to complete and/or perfect the Sale and Purchase Agreement to register the Land on his name;

08 August 2014 - A letter from Culaz and Associates sent to Messrs Elida Imran and Partners via fax which the letter was only sent on 12 August 2014, stating there’s a fresh Consent Form for Consent to Transfer to be executed by the Defendant;

(vi) 27 August 2015 - Private Caveat was entered on the said land. Bear in mind that there was pure delay on the part of the Plaintiff; 11

(vii) 10 April 2017 - Plaintiff filed Originating Summon (Case No. BA-24-409- 04/2017) to maintain the status quo of the Private Caveat;

(viii) 02 June 2017 - Court had maintained the status quo of the Private Caveat for (6) six months until 04 December 2017; and

(ix) 10 July 2017 - This suit was filed seeking for a declaration that Plaintiff is the rightful owner of the said land. In the case of Nasri v Mesah (1971) 1 MLJ 32 (FC) in relation to the limitation period of action for specific performance of contract of sale of land, Gill FCJ held that : ”………lt follows, therefore, that whether the action is for specific performance of an agreement for the sale of land or for declaration of title to land, it is essentially an action to recover land, so that the period of limitation would be 12 years in either case…………….." The Plaintiff and Defendant had signed the said Sale and Purchase Agreement on 13 October 2000. The Plaintiff hadonly sent letters to Defendant’s previous solicitor on 16 May 2010 and 08 August 2014 which is after 10 years and 14 years from the date of Sale and Purchase Agreement. To my mind, the Plaintiff had failed to explain to Court on why they took 10 and 14 years for them to 12 contact Defendant’s solicitor on the transfer form. Besides, the Plaintiffs action by filing caveat after 15 years from the date of Sale and Purchase Agreement is also mala fide in nature. Having taken action to recover the said land for more than twelve years from the date of Sale and Purchase Agreement, it is my considered view that the Plaintiff is estopped from taking such action as it is time barred by the Limitation Act 1953. In the case of Low Tin Yong @ Low Yong Lian v. Low Yong Thuan (2016) 5 CLJ 217 (CA), Nallini Pathmanathan JCA delivering the judgment of the Court : “……….[63] The trial judge failed to consider that there was an inordinate delay under the doctrine of laches in the institution of this claim. Given the delay of 50 years during which the respondent and the siblings did nothing to assert their alleged interest in the land, this was a fit and proper case for the trial judge to conclude that laches defeated the respondent's claim…... [64] No cogent explanation has been put forward to explain this delay... [65] ………….. [66] Given the untenable delay of 50 years in the instant case, during which the respondent and the siblings did nothing to assert their alleged interest in the said land, this was a fit and proper case for the learned judge to conclude that laches defeated the respondent’s claim. In our view the learned trial judge, with respect, was clearly wrong in failing to so conclude……..” Similarly, in the case of Chong Yoon Seng v. Low Fong Moy & 2 Ors. (2017) 1 LNS 694, Hassan Abdul Ghani JC quoted as : 13 “………….[32] Berasaskan kepada s. 9 dan s. 23 Akta Had Masa 1958, adalah nyata bahawa tindakan Plaintif yang hanya memulakan tuntutan selepas 26 tahun adalah di luar masa dan dihalang oleh had masa, justeru Plaintif adalah diestop daripada meneruskan tindakan tersebut dan Mahkamah boleh membatalkan tuntutan Plaintif. Di dalam kes Vista Specialist Eye Centre Sdn Bhd v. Dato’ Lee Son Yong & Anor. Appeal [2016] 5 MLJ 832 mahkamah memutuskan seperti yang berikut: “………[11] The Federal Court as well as this court has consistently struck out claims when it is clear that the statute of limitations would be relied on or raised (see Alias bin Ismail v. Hairuddin bin Mohamad & Anor [1997] 3 MLJ 724 and Haji Hussin bin Haji Ali & Ors v. Datuk Haji Mohamed bin Yaacob & Ors and connected cases [1983] 2 MLJ 227…….. [33] Oleh yang demikian mahkamah bersetuju dengan penghujahan peguam Defendan-Defendan bahawa tindakan Plaintif telah dihalang atau telah dibataskan oleh Had Masa. [34] Mahkamah juga berpendapat Plaintif telah melakukan kelewatan yang tidak terhingga “laches” tanpa ada alasan-alasan yang kukuh untuk meneruskan tindakan tersebut. Plaintif telah melakukan kelewatan 26 tahun dengan tidak mengambil sebarang tindakan untuk melindungi hak dan kepentingannya tanpa memberikan sebarang alasan yang kukuh. Tempoh 26 tahun bukanlah suatu kelewatan biasa....”

Having read the Affidavits that was filed by both parties, to my mind, there were delays from Plaintiff to complete the transfer of the said land which was from the date of Sale and Purchase 14 Agreement which dated 08 November 2000 up until the filing of this suit on 10 April 2017. There was no explanation given by the Plaintiff with regards of this delay and thus the Plaintiff is barred to pursue further on this suit. ORDER 18 RULES 19 OF RULES OF COURT 2012

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that -

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. Having quoted Order 18 Rules 19 Rules of Court 2012, in the case of Subli bin Amin & 5 Ors. v. Tai Yuen Plantation (2017) 1 LNS 121 (CA), Zaleha Yusof JCA delivering the judgment of the Court : 15 ………….“[20] We also took into account the delay taken by the appellants to file this action against the respondent The court’s intervention was sought to protect their purported rights in the land. And yet they failed to explain satisfactorily and reasonably the reason of the delay. In Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1996] 1MLJ 223 it was held by the Court of Appeal inter alia: “It is a cardinal principle of law, that when a litigant seeks the intervention of the court in a matter that affects his rights, he must do so timeously. The maxim vigilantibus, non dormientibus, jurasubveniunt, though having its origins in the Court of Chancery, is of universal application. Even in cases where a right is exercisable ex debitojustiriae, a court may refuse relief to an indolent litigant. In all cases in which delay in approaching the court is in issue, the burden is upon the litigant who has delayed to render a satisfactory explanation for it. Whether the explanation in a given case is satisfactory or reasonable depends upon the facts and circumstances of each case. And in a matter which involves the exercise of discretion, it is for the judge in whom the law primarily vests the discretion………… …………. [21] In the premises, we were in full agreement with the learned High Court judge as we must, that there was no reasonable cause of action disclosed in the statement of claim against the respondent and that the action brought by the appellants against the respondent was obviously unmeritorious and an abuse of the process of the court………… ” To conclude the above scenario, to my mind the Plaintiff’s failure to explain such delay and by filing caveat after 15 years from the date of Sale and Purchase Agreement, the doctrine of laches is applicable in this matter. I had fully agree with the doctrine of laches submitted by 16 the learned Defendant’s counsel in which it has been succinctly described by the Judicial Committee of the Privy Council in Lindsay Petroleum Co v. Hurd (1874) LR 5 PC 221, page 239-240as follows: “…………The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, through perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. …..But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. …Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking one course or the other, so far as relates to the remedy…………..” In furtherance, in the case of Tan Kok Chuan v. Liew Nam Foong

5 CLJ 533, Abdul Malik Ishak J (as he then was) held as follow :- 17 “………..The doctrine of laches has developed over the years. The court will be reluctant to grant relief to stale claims: vigil antibus et non dormientibuslexsuccurrit. The party who has been dilatory in the prosecution of his claim and has acquiesced in the wrong done to him is said to be guilty of laches and is accordingly barred from obtaining relief although his claim may not be curtailed by the statute of limitation. It pays to be diligent and it also pays to prosecute one's claim with promptitude………….”

Finally, it has been agreed between parties that time is an essence as stated in under Clause 18 of the Sale and Purchase Agreement dated 08 November 2000 it has been agreed between parties that time is an essence. As such, parties must complete respective transaction on time. In the case of: Sim Chio Huat v. Wong Ted Fui

1 CLJ 178(FC) Salleh Abas FCJ held : “…………However, the rules contained in section 56 of the Contracts Act are not different from the position arrived at in common law. Yeow Kim Pong Realty Ltd, v. Net Kim Pong [1961] 1 LNS 157;[1962] MLJ 118, 126. The position is this: If in a contract in which time is of the essence, a party fails to perform it by the stipulated time, the innocent party has the right either to rescind the contract, or to treat it as still subsisting. If he treats it either expressly or by conduct as still continuing, the contract exists but time ceases to be of the essence and becomes at large. Consequently, he cannot claim the liquidated damages under the contract unless there is a provision as to the extension of time. However, this cessation can be revived and so 18 time can be restored to be of the essence by the innocent party serving a notice to the party in default giving a new date of completion……………..” CONCLUSION

In the light of the foregoing and in the upshot, after hearing the submission by both parties, I hold that the Defendant’s application for striking out under Order 18 Rule 19(1)(a), (b) or (d) and is hereby allowed with cost of RM 5000.00. Dated 21 May 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan Counsel For the Plaintiff: David Soosay (Messrs. David Soosay & Co.) For the Defendant: Noor Amirul Nazreen Anas with Ammar Ghalip (Messrs. Amin Tan & Co.)