Jki Development Sdn Bhd v Chandra Vathan A/L Krishman (WA-12BNCvC-84-06/2023)

CHANDRA VATHAN A/L KRISHMAN (NRIC No: 820128-06-5633)

VERONICA A/P GUNASEKARAN (NRIC No: 871012-14-5594) … RESPONDENTS GROUNDS OF JUDGMENT [1] This Court affirmed the paramount importance of true representation in the fabric of contractual dealings. It is a fundamental principle of justice that any individual who, through the artifice of misrepresentation, lures another into a contract, must unequivocally be held accountable for their 16/01/2024 16:45:12 WA-12BNCvC-84-06/2023 Kand. 31 actions. This accountability is not merely a punitive measure, but a cornerstone of maintaining the integrity and trust essential to the sanctity of contractual agreements. In this case where the Respondents had purchased an abode, unit 39-07 Residensi Amani, Taman Puchong Hartamas on the representation that it was located on the right side of the building, this Court had affirmed the Session Court’s decision that the Appellant must make good its representation. The delivered unit was located on the opposite side of the building and the Session Court had ordered the Appellant to buy back the said unit at its purchase price of RM543,322.00. The Session Court additionally awarded general damages of RM5,000.00 to the Respondents, as well as costs of RM20,000.00. [2] On 11.12.2023 this Court dismissed the Appellant’s appeal against the Session Court’s decision that allowed the Respondents’ claim. It was found that the Respondents had proven their case on a balance of probabilities. There were also no errors by the Session Court in its finding. Costs of RM5,000.00 was awarded to the Respondents. [3] Furthermore, this Court allowed the Respondents’ cross-appeal for the rebate of RM23,731.39 which was allowed as per the Session Court’s written judgment at paras 86 to 93 but not pronounced, to be included in the order and enforced against the Appellant. The correction to the decision of the Session Court was allowed but the Respondents’ cross appeal to add the expenses and costs incurred in addition to the payment of purchasing back Unit 39-07, and that general damages be assessed instead of the nominal sum awarded, were dismissed. Regarding the award of rebate of RM23,731.39 which was to be paid by the Appellant to the Respondent, interest of 5% was ordered to be paid on that sum from the date of this Court’s order on 11.12.2023 until the date of full and final settlement. [4] As at the hearing of the arguments for the appeal, this Court noted that the Appellant had yet to file the Session Court Order dated 31.5.2023. The Appellant had also failed to file the Amended Notice of Appeal as allowed by this Court on 30.10.2023. As the Appeal Records were not in order, the Respondents argued that the Appeal Records were defective in accordance with Order 55 Rule 4(1)(e) and (2) Rules of Court 2012 (RoC). The Respondents had complained too of the Appellant’s disregard for courts’ directions and procedures when it pointed out that at the Session Court, the Appellant had failed to file Issues to be Tried as directed. Nevertheless, in the interests of justice, this Court had decided to proceed to hear the appeal by the Appellant. This Court however noted the Appellant’s conduct that bordered contempt and blatant disregard to Court’s directions and procedures. [5] At the Session Court, the Appellant had failed to file Issues to be Tried as directed. The evidence [6] On 28.11.2020 at the showroom office of the Appellant, the Respondents were shown a miniature model of the Appellant’s project – Residensi Amani, Taman Puchong Hartamas DW1, the Appellant’s sales executive had answered all the Respondents’ queries. Based on the representations and also the miniature model used by the Appellant in its sales, the Respondents expressed interest for a unit on the right of the North Condominium that had a view of Jalan Puteri 3, shaded from the sunlight and most importantly, not facing the graveyard, water tank and temple on the left. [7] On the same day, DW1 communicated via Whatsapp application that showed a unit plan of Unit 39-07 that fulfilled the requirements specified by the Respondents. They were also persuaded to purchase the said unit which was available for sale. [8] Premised on the explanations and representations by DW1 and also the project model, the unit plan and the advertisement that Unit 39-07 was located on the right of the building that was on the north and faced Bandar Puteri, the Respondents chose to purchase Unit 39-07. RM1,000.00 was deposited and a Sale and Purchase Agreement dated 26.4.2021 (S&P) was executed between the Appellant and the Respondents. [9] On 10.3.20222 when receiving the vacant possession of the said Unit 39-07, DW2 accompanied the Respondents to the right-hand side of the building. They were shocked to discover that Unit 39-07 was not located on the right-hand side of the building as represented and promised. They then found that Unit 39-07 was located on the left side of the building. As they had relied on the representations by the Appellant that Unit 39-07 was located on the right side of the building, the Respondents rejected and refused to take vacant possession of the said unit. The keys and access cards were returned to the Appellant on 14.3.2022. They terminated the S&P and filed the suit in the Session Court. [10] The Appeal Records showed that the Respondents were careful and prudent. They had even inquired from Messrs. Ting & Ting (the lawyers in charge of the S&P) on the discrepancies between the location of the unit in the Site Plan and the Layout Plan. The Respondents were not informed that the actual location of Unit 39-07 was on the left side. There were arguments that the person in charge for Messrs. Ting & Ting that day was a pupil in chambers. To this Court’s mind, it did not matter as the Appellant had represented and not corrected its representation that Unit 39-07 was located on the right-side of the building. There was also evidence that in its representation, the Appellant had wrongly shaded Unit 39-07 (shaded in square 07 when it should have been square 12). Thus, the location stated in the S&P was wrong. Evidence showed that the Appellant had known at all material times Units 39-07 were on the left side of the building and not on the right-hand side located in the north. [11] During arguments, the Respondents had presented the map of the Kuala Lumpur High Court to demonstrate that courts shaded in squares on the right of the map were located on the right, in their submissions that the Appellant had misrepresented the location of Unit 39-07 to them. There was no actual need for that. This Court considered the evidence that the Appellant (through DW3) had admitted its mistake and sought to see whether there were any more units on the right side of the building available to be sold to the Respondents. They were offered Units 38-10 or 37-09 to replace Unit 39-07. The Respondents refused the offer to resolve the misrepresentation on the part of the Appellant. This Court found on a balance of probabilities, there were some misrepresentations by the Appellant. The misrepresentations were relied on by the Respondents for the execution of the S&P. They were material that formed the basis of the Respondents’ decision to purchase Unit 39-07. Refer to Balakrishnan Devaraj & Anor v Admiral Cove Development Sdn Bhd [2010] 7 CLJ 152, Abdul Razak Dato Abu Samah v Shah Alam Properties Sdn Bhd [1999] 3 CLJ 231, s19 Contract Act 1950. [12] This Court referred to Sim Thong Realty Sdn Bhd v Teh Kim Dar @ Tee Kim [2003] 3 MLJ 460; [2003] 3 CLJ 227 where it was the Court of Appeal held at p465: “Now the elements of an actionable misrepresentation are well settled. They are set out as follows in Professor McKendrick's Contract Law (3rd Ed), a leading work on the subject: A misrepresentation may be defined as an unambiguous, false statement of fact which is addressed to the party misled and which materially induces the contract. This definition may be broken down into three distinct elements. The first is that the representation must be an unambiguous false statement of fact, the second is that it must be addressed to the party misled and the third is that it must be a material inducement to entry into the contract. Section 18 of our Contracts Act 1950, defines 'misrepresentation' as follows: 'Misrepresentation' includes —

the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

any breach of duty which, without an intent to deceive, gives an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; and

causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement. This section is ipsissima verba s 18 of the Indian Contract Act 1872. It is to be noted at once that the definition in that section is inclusive or open-ended and not exclusive. Hence, the circumstances set out under each of its three paragraphs are not the only instances of misrepresentation to which the section is confined. In our judgment, it is the duty of a court to find the facts and then determine whether those facts fall within one or more of the three paragraphs under s

If they do, then the statement complained of is an actionable misrepresentation. This is the approach adopted in one of the leading cases on the section.” [13] The doctrine of caveat emptor had no applicability in this instance as the central matter at hand was the representation of the Appellant that it knew was the material consideration of the Respondents. The Appellant had failed to show this Court that the Session Court was plainly wrong and thus appellant intervention was not warranted – see Ng Hoo Kui & Anor v Wendy Tan Lee Peng, Administrator of the Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1; [2020] 12 MLJ 67, Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1, UEM Group Bhd (previously known as United Engineers (M) Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2018] supp MLJ 363; [2010] 9 CLJ 785. Cross-Appeal [14] This Court had applied the same ‘plainly wrong test’ when it assessed the Respondents’ cross-appeal. The Respondents on their part had failed to satisfy this Court the errors allegedly committed by the Session Court in not awarding costs and expenses and to order damages to be assessed. However as to the amount of rebate of RM22,731.29 the Session Court had allowed it as authored in paras 86 to 93 of its grounds of judgment. The matter was pleaded and this Court was satisfied that evidence was proven on a balance of probabilities in the favour of the Respondents. The amount was paid but yet to be refunded by the Appellant to the Respondents. [15] However, the Session Court did not pronounce its decision. This Court, to administer justice, had allowed this part of the cross-appeal by the Respondents and ordered for the said amount to be paid by the Appellant to the Respondents. DATED 11 JANUARY 2024 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA KUALA LUMPUR Counsel for the Appellant : Tetuan Arnold Andrew & Co Counsel for the Respondents : Tetuan Pani Normala & Co