Ka Yin Development Sdn Bhd v 1. ) Yap Sui Hing @ Sik Yin Chi (BA-22NCvC-427-10/2023)

YAP SUI HING @ SIK YIN CHI

YOONG MAY LIN

CHEN SIEW YOONG (NO. K/P: 700208-10-5504) (kesemuanya didakwa sebagai Ahli-Ahli Jawatankuasa “Persatuan Penganut Buddha Suci Ci Hang (2) KL/Selangor – No. Pertubuhan: PPM- 010-10-28112013”) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff’s claim was premised on an alleged breach of a Joint Venture Agreement dated 16-5-1996 (“JVA”) for the development of a piece of land originally held under title CT 25017, Lot No. 2869, Mukim Cheras, Daerah Hulu Langat, Selangor (“Land”). 16/10/2024 10:21:49 BA-22NCvC-427-10/2023 Kand. 27 S/N 3fUoOeiwgEdUWxm5VTtSg [2] The Plaintiff sought specific performance of the JVA, the transfer of title to the Land to itself for work under the JVA to complete, an injunction to restrain the Defendants from negotiating with any other party on the development of the Land or alternatively, for damages. [3] The Defendants applied to strike out the Plaintiff’s claim under Order 18 Rule 19(1)(b), (c) and/or (d) of the Rules of Court 2012. The Defendants relied on 4 grounds: a) Plaintiff has no locus standi in this action b) Plaintiff has no power to file this action in its own name c) Plaintiff’s action is barred by limitation d) The issues raised by Plaintiff in the action are res judicata [4] I allowed the application to strike out the suit. These are my grounds. Background Facts [5] The JVA was entered into between 3 trustees of “Persatuan Suci Ci Hang Buddha, Petaling Jaya” (“Former Society”) (including the first Defendant here), and a developer company known as Bahagia Indah Properties Sdn Bhd (“Developer”). [6] The JVA related to the development of a piece of the Land as a housing project (“Project”). [7] On 14-11-2007, the Former Society was deregistered and its assets were vested in the Department of Insolvency. S/N 3fUoOeiwgEdUWxm5VTtSg [8] In 2011, the Developer filed Originating Summons No. D-24-2698- 2011 against the Insolvency Department (“OS 2011”) to seek: a) A declaration that the 3 trustees of the Former Society are parties to the JVA; b) A declaration that the Developer had expended costs of RM8,923,117.10 to comply with the JVA; c) An Order that the Department of Insolvency take all necessary steps to settle the affairs of the Former Society; and d) An Order that the Department of Insolvency settle the amount of costs expended by the Developer by transferring the Land to the Developer. [9] The High Court initially allowed OS 2011 and granted Orders which were different from those sought by the Developer. However, the Defendants intervened in those proceedings, and the High Court’s order was subsequently set aside. [10] The reasons for the setting aside are not clear because there is insufficient material before this Court. OS 2011 went through the appeals process and on 29-6-2016, the Federal Court upheld the setting aside of the High Court Order. [11] Meanwhile, by Order of another High Court in different proceedings on 17-10-2013, the assets and liabilities of the Former Society which had been vested in the Department of Insolvency were transferred to a new society called “Persatuan Penganut Buddha Suci Ci Hang (2) KL/Selangor” (“New Society”). S/N 3fUoOeiwgEdUWxm5VTtSg [12] On 25-2-2014, the Developer was wound up. [13] Only 1 block of the envisaged Taman Bahagia Indah was built (in 2005) but even that was not completed. In 2016, the relevant Ministry declared Taman Bahagia Indah an abandoned project. Analysis [14] I have reviewed the papers and found it sufficient to decide the striking out application on the time bar argument alone. Based on the pleadings, it was clear that the Plaintiff was seeking remedies for alleged breaches of contract that took place more than 6 years before the initiation of this suit. [15] As pleaded, the alleged breach was of clause 22 of the JVA which spelled out the Defendants’ obligation to create a charge over the Land for purposes of securing bridging finance for the Project. This took place shortly after the JVA was signed in 1996. Thus, this cause of action clearly crystallized more than 6 years ago. [16] The Plaintiff attempted to argue that apart from clause 22, the JVA is still afoot and therefore, there is a continuing breach by the Defendants because the Project is still incomplete to date. However, the Defendants submitted that there were no obligations under the JVA that they were due to perform. The Plaintiff was unable to point to any fresh act of breach by the Defendants. S/N 3fUoOeiwgEdUWxm5VTtSg [17] I have reviewed the Statement of Claim and it is clear that the gist of the Plaintiff’s complaint is that the Defendants had repudiated the JVA and this is based on the following material facts pleaded: a) On 14-11-2007, the Former Society was deregistered and its assets were vested in the Department of Insolvency; and b) On 30-10-2012, the Defendants denied the Developer the right to continue with the Project when they intervened to set aside the High Court Order in OS 2011. In fact, the Plaintiff pleaded in paragraph 24 of the statement of Claim that: “… semata-mata disebabkan keenggannan dan/atau keingkaran [the Former Society] untuk mematuhi segala obigasi bekas Persatuan tersebut dalam [JVA] tersebut, maka kerja-kerja pembinaan projek perumahan tersebut adalah kini terbengkalai sejak 2014.” [18] All of the above transpired more than 6 years prior to the initiation of this action. For this reason alone, the Plaintiff’s action was unsustainable and this was a plain and obvious case for striking out. [19] I had also considered the other grounds for striking out argued. In light of my decision on the time bar issue, there is no need for me to set them out here. S/N 3fUoOeiwgEdUWxm5VTtSg Conclusion [20] The Defendants’ application is allowed and the action is struck out with costs of RM8,000. Bertarikh : 19 September 2024 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif: Shaaleni A/P Ravendran, Messrs K. Kumara & Co. Untuk Defendan-Defendan: Sherie Aneesa With Sarah Yee, Messrs Esther Ong, Tengku Saiful & Sree S/N 3fUoOeiwgEdUWxm5VTtSg