Kasi A/L Kl Palaniappan v 1. Cyberview Sdn Bhd (BA-24NCVC-76-01/2018)

CYBERVIEW SDN BHD

PENDAFTAR HAKMILIK NEGERI SELANGOR …DEFENDANTS 3 GROUNDS OF JUDGMENT (Enclosure 1) A. INTRODUCTION [1] Enclosure 1 is the Plaintiff’s application for an extension of a private caveat pursuant to sections 322 and 326 of the National Land Code 1965. [2] In support of the Plaintiff’s application, the Plaintiff has filed the following affidavits:

Afidavit Sokongan affirmed on 22.01.2018 (“The Afidavit

Afidavit Jawapan Plaintif (to reply the Afidavit Jawapan affirmed by the 1st Defendant) affirmed on 8.2.2018 (Enclosure 14); and 4

Afidavit Tambahan Plaintif affirmed on 14.2.2018 (Enclosure 18). [3] The 1st Defendant strongly opposed the Plaintiff’s application and had filed an affidavit in opposition affirmed by Li Wai Chee, the Chief Operating Officer of SHSB on 5.2.2018 (Enclosure 10). B. BACKGROUND FACTS [4] The background facts which have led the Plaintiff to file Enclosure 1 are as follows:

4.1 Cyberview Sdn Bhd (the 1st Defendant) is the proprietor of a land, sized approximately 2800 hectares, located at Mukim Dengkil, Daerah Sepang, Negeri Selangor (“the said Land”).

4.2 The 1st Defendant was desirous of developing the said land into a dedicated intelligent city comprised of commercial, enterprise and residential development. 5

4.3 A developer company, Setia Haruman Sdn Bhd (SHSB), was engaged by the 1st Defendant to develop a residential project known as the Perdana Lakeview West.

4.4 The 1st Defendant had vested all its rights and powers to SHSB pursuant to a Power of Attorney executed on 30.3.1999.

4.5

4.6 Lot No.10 covers an area of 40,255 sq. ft. and is currently held under the Hakmilik H.S. (D) 22664, PT 38034 (currently known as Geran 232694, Lot 44592), Mukim Dengkil, Daerah Sepang, Negeri Selangor. 6

4.7 The salient terms of the SPA are as follows: i. Conditions Precedent (Clause 3.1)

3.1 CONDITIONS PRECEDENT “The completion of the sale and purchase of the Bungalow Lot shall be subjected to and conditional upon the procurement and/or satisfaction of the following matters (“Condition

The Vendor shall procure the registration of the Proprietor as the registered owner of the Bungalow Lot and extending a copy of the Bungalow Lot Title with the Proprietor registered as proprietor to the Purchaser’s solicitors within twelve (12) months from the date of receipt of the Bungalow Lot Title by the Vendor from the Appropriate Authority. All costs and expenses incurred in the procurement of the Bungalow Lot Title in the Proprietor’s name shall be home absolutely by the

Subject to Clause 3.5 below, the Vendor secures the approval of the relevant Appropriate Authority to transfer the Bungalow Lot to the Purchaser within three

months from the date of the receipt by the Purchaser’ 7 solicitors of a copy of the Bungalow Lot Title in the Proprietor’s name. For the purposes of this Agreement, the approval by the Appropriate Authority herein shall be referred to as the “Appropriate Authority Approval”. The Vendor shall deliver or cause to be delivered a copy of the Appropriate Authority’s Approval to the Purchaser’s Solicitors within seven (7) days from the date of receipt of the Appropriate Authority’ Approval by the Vendor. ii. Unconditional Date (Clause 3.3) Subject to Clause 3.5 herein, this Agreement shall become unconditional upon the date the last of the Conditions Precedent is satisfied (“Unconditional Date”). iii. Payment Of Purchase Price (Clause 5)

5.

PAYMENT OF PURCHASE PRICE 1 The Purchase Price shall be paid by the Purchaser to the Vendor at the time and in the manner as stated hereunder. 8

a sum of Ringgit Malaysia Five Hundred Eleven Thousand Two Hundred Thirty Eight and Sen Fifty (RM511,238-50) only which is equivalent to Ten (10%) percent of the Purchase Price immediately upon the execution of this Agreement (hereinafter referred to as “the Deposit”); and

(ii) a sum of Ringgit Malaysia Four Million Six Hundred and One Thousand One Hundred Forty Six and Sen Fifty (RM4,601,146-50) only which is equivalent to Ninety (90%) percent of the Purchase Price (hereinafter referred to as “the Balance Purchase Price”) shall be paid within Three (3) months from the Unconditional Date (hereinafter reffered to as “the Completion Date”)

4.8 The Plaintiff had duly paid the 10 % deposit amounting to

4.9 It is important to note that the SPA has specifically spelt out that the balance of the purchase price of RM4,256,060.50 (“Balance Purchase Price”) is to be paid 9 by the Plaintiff within 3 months from the date the last of the Condition Precedent being satisfied and it is not in dispute that the condition precedent for the sale of the said Land is the Consent to Transfer.

4.10 By virtue of an email dated 13.5.2008 (Exhibit L-2, Enclosure 10), the legal department of SHSB had informed one Mr Wilson, the Plaintiff’s solicitor that SHSB had received the Original Title for Lot 10 and it is in the process of obtaining the (Consent To Transfer) from the State Authority (Pejabat Daerah/Tanah Sepang). Vide this email, SHSB had also forwarded to the Plaintiff’s solicitors a copy of document of title of the said land and the application form for the Consent to Transfer for the Plaintiff’s execution.

4.11 In the meantime, on 11.2.2011 the Plaintiff had lodged a private caveat (1st caveat) on the said land. In the Form 19B, the Plaintiff’s grounds for lodging the caveat are as follows: 10 “2. Alasan-alasan tuntutan saya atas *tanah/kepentingan itu ialah – Saya telah memasuki satu Perjanjian Jual Beli yang bertarikh 25-06-2007 dengan tuanpunya tanah iaitu CYBERVIEW SDN BHD [405553-T] dan Penjual iaitu SETIA HARUMAN SDN BHD [425145-U] dan menurut perjanjian tersebut sejumlah RM511,238.50 telah dibayar kepada Penjual sebagai pembayaran sebahagian harga belian tanah tersebut.”.

4.12 When there was no response from the Plaintiff’s solicitor, SHSB, by an email dated 3.6.2008, had requested from the Plaintiff’s solicitors to forward the Memorandum of Transfer and the completed application form for Consent to Transfer to them to enable SHSB to proceed the process of obtaining consent from the State Authority.

4.13 Despite numerous requests and reminders, the documents requested were not forthcoming. 11

4.14 Finally on 5.12.2013 (after six (6) years has lapsed), the Plaintiff’s solicitor delivered the required documents to

4.15 It is pertinent to note that the Plaintiff did not provide any reason for the delay.

4.16 By a letter dated 31.12.2013 the Pejabat Daerah/Tanah Sepang had informed SHSB that the application for Consent to Transfer of the said Land (Kebenaran Pindahmilk Tanah) has been granted on 27.12.2013 with a validity for a period of three (3) years from the date the letter was issued.

4.17 Thereafter, by a letter dated 6.3.2014, SHSB had informed the Plaintiff that the Consent To Tansfer Authority has been obtained. (The Pejabat Daerah Sepang’s letter dated 31.12.2013 was also enclosed in the SHSB’s letter). 12

4.18 In the same letter, SHSB had also reminded the Plaintiff of Clause 5.1(ii) of the SPA by stating as follows:

that the SPA has become unconditional; and

the time to settle the Balance Purchase Price is to be made by 31.3.2014 failing which an interest at 8% per annum shall be imposed on the Plaintiff in accordance with the terms of the SPA. (A copy of the letter dated 6.3.2014 was also sent to the Plaintiff’s solicitor).

4.19 Neither the Plaintiff nor his solicitors responded to the said letter nor did the Plaintiff settled the Balance Purchase Price. This had prompted SHSB to send two letters of reminder to the Plaintiff, dated 12.5.2014 and 12.11.2015 respectively. 13

4.20 After a period of more than a year has lapsed, the Plaintiff, through his solicitor’s letter dated 9.12.2015, wrote to SHSB requesting for an extension of time to settle the outstanding sum. The Plaintiff requested time until 30.6.2016 to enable him to secure a bank loan.

4.21 SHSB had acceded to the Plaintif’s request. However, despite the extension of time, the payment was still not forthcoming from the Plaintiff despite the extended due date of 30.6.2016 has lapsed.

4.22 SHSB again issued a letter of reminder to the Plaintiff, dated 2.3.2017, demanding him to pay the total oustanding sum of RM5,239,985.88. SHSB had also informed the Plaintiff that the Consent to Transfer has since expired on 31.12.2016. Further, SHSB had demanded the full outstanding sum to be settled within fourteen (14) days from the date of the letter and failing which SHSB reserves its right to take necessary action under the SPA. 14

4.23 By a letter dated 15.3.2017, the Plaintiff’s solicitor again wrote to SHSB seeking for another extension of time until 20.9.2017 on the ground he is still awaiting for the approval of his loan facility application.

4.24 On a without prejudice basis as to its rights stipulated under the SPA, SHSB vide a letter dated 6.4.2017 granted the Plaintiff a final extension date until 20.9.2017, subject to the terms stated in paragraph (a) of the letter. The letter dated 6.4.2017 is reproduced below: “Kindly be informed that without prejudice to our rights as stipulated in the SPA, our management has no objection to grant your client a FINAL extension of time to pay the total outstanding balance of the Purchase Price together with payment of late interest charges as stipulated under the SPA on or before 20 September 2017 subject to the following terms and conditions:- a) Our receipt of a fresh application form for consent to transfer duly executed by the Purchaser together with the original letter of consent to transfer dated 31 December 2013 within fourteen (14) days from the date of this letter 15 (For your information, application for extension of the validity for the consent to transfer is not allowed by Pejabat Daerah/ Tanah Sepang). Please take note that in the event we do not receive the duly executed form within the aforesaid period, we shall deem that your client is no longer interested to purchase the property and henceforth the SPA shall be forthwith terminated”.

4.25 The Plaintiff’s solicitors vide letter dated 11.4.2017 had accepted the condition imposed by SHSB.

4.26 SHSB applied for a fresh Consent to Transfer vide a letter dated 8.5.2017.

4.27 The Consent to Transfer was duly obtained on 30.5.2016. In its letter dated 1.6.2017 the Pejabat Daerah/Tanah Sepang granted the Consent to Transfer (No. 2) of the said Land (Kebenaran Pindahmilk Tanah) to the Plaintiff . The consent to transfer was valid for a period of three (3) years. 16

4.28 SHSB had duly notified the Plaintiff and his solictors the granting of Consent to Transfer by the Pejabat Daerah/Tanah Sepang vide a letter dated 1.6.2017.

4.29 Upon receipt of the SHSB’s letter dated 1.6.2017, the Plaintiff had responded by writing another letter to SHSB. In this letter the Plaintiff requested for a waiver on the interest charges imposed on the delay of the Balance Purchase price payment.

4.30 Vide letter dated 12.9.2017, SHSB sent another reminder to the Plaintiff to pay the outstanding sum amounting to RM5,432,149.92 before 20.9.2017. In the letter, SHSB had also notified the Plaintiff that 20.9.2017 would be the FINAL date for the Plaintiff to settle the outstanding payment.

4.31 However, despite the final date set by SHSB, the Plaintiff’s solicitors vide letter dated 15.9.2017 appealed to the SHSB for an extension of time of another 6 months 17 from 20.9.2017. In the letter, the Plaintiff also stated that if extension of time is allowed, he is prepared to pay an additional 5% of the Purchase Price.

4.32 In its reply to the Plaintiff’s letter dated 15.9.2017, SHSB vide letter dated 2.10.2017 had stated: “We refer to your letters both dated 15 September 2017 regarding Property (1) and Property (2). Please be advised that our management is not agreeable to your client’s request for another extension of time of 6 months from 20 September 2017 for the settlement of the total outstanding payment. As such, we would appreciate it if you could kindly advise your client to settle the total outstanding payment as stated in our letter dated 12 September 2017 on or before 20 September 2017.”(Emphasis given).

4.33 The Plaintiff’s failure to comply to the demand of payment had triggered SHSB to issue a Notice of Termination of 18 the SPA dated 27.10.2017 to the Plaintiff pursuant to Clause 18 of the SPA.

4.34 In response to the Notice of Termination, by a letter dated 10.11.2017 the Plaintiff disputed the termination and contended that the termination was contrary to Clause 18 of the SPA and therefore it was null and void.

4.35 Since the 1st caveat had lapsed, the Plaintiff had then lodged a new private caveat on the said land on 25.10.2017 (2017’s caveat).

4.36 Being aggrieved by the existence of the Plaintiff 2017’s caveat, the 1st Defendant lodged Form 19C applying for the removal of the same on 7.12.2017.

4.37 Having been served with the Form 19C, in this Enclosure 1, the Plaintiff sought the following reliefs: 19

Kaveat Persendirian yang dimasukkan oleh Plaintif ke atas tanah Lot No. 10, Perdana Lakeview West, Cyberjaya, Selangor yang dipegang di bawah Hakmilik H.S.(D) 22664, PT 38034 (kini dikenali sebagai Geran 232694, Lot 44592), Mukim Dengkil, Daerah Sepang, Negeri Selangor (selepas ini dirujuk sebagai “Tanah Lot 10”) dan didaftarkan pada 26.10.2017 melalui Perserahan No. 49888/2017 dikekalkan dan dilanjutkan tempohnya sehingga pelupusan penuh dan muktamad tindakan litigasi antara Plaintif dengan Defendan Pertama dan Pemaju bernama Setia Harumah Sdn Bhd (No. Syarikat: 425145-U) (Selepas ini dirujuk sebagai “Pemaju”) di atas

Defendan Kedua diarahkan supaya melanjutkan dan mengekalkan Kaveat Persendirian di bawah Perserahan No. 49888/2017 yang didaftarkan pada 26.10.2017 sehingga pelupusan penuh dan muktamad tindakan litigasi antara Plaintif dengan Defendan Pertama dan Pemaju di atas Tanah Lot 10. C. THE LAW AND PRINCIPLE RELATING TO AN EXTENSION OF CAVEAT 20 [5] Before this Court proceeds to determine the merits of the Plaintiff’s application, it is only apt for this Court to briefly set out the law and the legal principles relating to an extension of a caveat. [6] In an application for the extension of a private caveat under section 326(2) of the National Land Code (NLC) the caveator bears a similar burden as that borne by a caveator in application for its removal by a person or body aggrieved under section 327 of the NLC. [7] The caveator has to fulfil the same test to be qualified to enter the caveat under section 323 (1) of the NLC. In Rakyat Corporation Sdn. Bhd. v. Abd. Naeeim Tarmiji [2008] 10 CLJ 455, the Court held: "The burden on the caveator (in an application under s. 327 of the NLC) is the same burden as imposed in an application for the extension of caveat under s. 326 of the NLC.". 21 [8] Thus, the principles enunciated in leading authorities on the removal of caveats are equally applicable to the Plaintiff"s application for the caveats to be extended under section 326(2) of the NLC which provides that: "The Court may, on the application of any person or body on whom such a notice has been served under subsection

(and acting, if the circumstances so require, ex parte), from time to time extend the said period of two months; and the Registrar; on being duly served with an order of the Court under this subsection, shall make an endorsement on the register document of title of the date of service on him of the order and of the period of the extension, and shall sign and seal the endorsement.". 22 [9] Thus, it is trite principle of law that when dealing with an application for removal of a caveat, the questions to be determined by this Court are as follows: i. whether the caveator has a caveatable interest over the said property; ii. whether the contended caveatable interest so referred to discloses any serious issues/questions to be tried; iii. whether the balance of convenience is in favour of allowing the caveat to remain; iv. whether there are any special circumstances on the part of the Plaintiff that would warrant the status quo to be disturbed. [10] The principle of law in relating to removal of caveat was laid down by the Privy Council in the celebrated 23 case of Eng Mee Yong & Ors v V Letchumanan [1979] 2 MLJ 212 . The Privy Council has held inter alia that:- “This is the nature of the onus that lies upon the caveator in an application by the caveatee under section 327 for removal of a caveat; he must first satisfy the court that on the evidence presented to it his claim to an interest in the property does raise a serious question to be tried; and having done so he must go on to show that on the balance of convenience it would be better to maintain the status quo until the trial of the action, by preventing the caveatee from disposing of his land to some third party”. [11] In the case of Kho Ah Soon v Duniaga Sdn Bhd [1996] 2 MLJ 181, the Federal Court’s has restated the settled law. Peh Swee Chin, FCJ, delivering the judgment for the Federal Court at page 184 had said this: 24 “It is settled that in a matter of removal of a caveat as between a caveator and caveatee, as in the instant appeal, the onus is on the caveator to satisfy the Court that his evidence does raise a serious question to be tried as regards his claim to an interest in the land in question, and having done so he must show that, on a balance of convenience, it would be better to maintain the status quo until the trial of the action by preventing the caveatee from disposing of his land, as laid down by Lord Diplock in Eng Mee Yong & Ors v V Letchumanan [1979] 2 MLJ 212, and by analogy indirectly to American Cyanamid Co v Ethicon [1975] AC 396 as indicated by Lord Diplock, the serious question for trial referred to above could mean a question not being vexatious or frivolous”. [12] The legal principle with regards to application to remove caveat was further encapsulated by the Court of Appeal in the case of Luggage Distributors (M) Sdn Bhd v Tan Hor Teng and Anor [1995] 1 MLJ 719. In Luggage Distributors (M) Sdn Bhd, the Court of Appeal has established the “three tier test”. 25 This “three tier test” basically requires the Court to investigate three questions in considering whether a private caveat ought to be removed or ought to remain. The questions are as follows:

whether the Defendant has a caveatable interest;

(ii) whether the Defendant has raised serious issues to be tried; and

(iii) whether, on a balance of convenience, it would be better for the caveat to remain. D. ISSUES FOR DETERMINATION WHETHER THE PLAINTIFF HAS CAVEATABLE INTEREST ON THE SAID LAND [13] It is trite law that the onus of proof to satisfy the three (3) stage test lies with the Plaintiff. The Plaintiff in the present case must 26 adduce sufficient evidence to support his claim to a caveatable interest in the said land within section 323 of the NLC. [14] The first stage requires this Court to ascertain the grounds put forth by the Plaintiff in his Form 19B. The law is trite that the as the caveator, the Plaintiff is bound by the grounds he had stated in the caveat form i.e. Form 19B filed under s.323 of the NLC. [15] The law is also trite that the grounds relied on by the Plaintiff must be minutely scrutinized by this Court to see whether it amounts to a caveatable interest. (See: Kumpulan Sua Betong Sdn. Bhd [1992] 1 MLJ 263, Luggage Distributors, supra, Mok Yong Kong & Anor V. Mok Yong Chuan [2002] 2 MLJ 718) [16] In Wong Kuan Tan v. Gambut Development Sdn. Bhd. [1984] 1 CLJ Rep 441, the Court held that: “The caveator must first satisfy the Court that he had a "caveatable interest" in the land. The onus is upon the 27 caveator to satisfy the Court that on the evidence presented, his claim to an interest in the land raises a serious question to be tried, and having done so, he must go on to show that on the balance of convenience it would be better to maintain the status quo until the trial of the main action. The Court's power under s. 327 of the Code is discretionary.” The Plaintiff’s caveat [17] The ground for lodging the 2017’s caveat stated in the Plaintiff Form 19B was primarily the same ground as in the 1st caveat wherein the Plaintiff had relied on the SPA executed on 25-6- 2007 between him, the 1st Defendant and SHSB whereby he had paid a deposit of RM511,238.50. However, in the Form 19B dated 25.10.2017, the Plaintiff had also stated that besides the SPA, additional grounds for lodging the 2017’s caveat are contained in his statutory declaration accompanying the Form 19B. 28 [18] The Plaintiff’s Form 19B reads as follows: “2. Alasan-alasan tuntutan saya atas *tanah/kepentingan itu ialah— Saya telah memasuki satu Perjanjian Jual Beli yang bertarikh 25-06- 2007 dengan tuanpunya tanah iaitu CYBERVIEW SDN BHD [405553-T] DAN PENJUAL IAITU SETIA HARUMAN SDN BHD [425145-U] dan menurut perjanjian tersebut sejumlah RM511,238.50 telah dibayar kepada Penjual sebagai pembayaran sebahagian harga belian tanah tersebut. Alasan-alasan tambahan adalah seperti yang dinyatakan dalam akuan berkanun saya sendiri.” [19] While, in the statutory declaration accompanying the Form 19B, the Plaintiff has affirmed and declared the following: “1. Bahawa saya telah memasuki satu perjanjian jualbeli yang bertarikh 25/6/2007 (selepas ini dirujuk sebagai “Perjanjian Tersebut”) dengan CYBERVIEW SDN BHD (405553-T) sebuah syarikat yang ditubuhkan Malaysia yang beralamat di F-01 & F-02, 1st Floor, 2300 Century Square, Jalan Usahawan, 63000 Cyberjaya, Selangor Darul Ehsan (selepas ini dirujuk sebagai “Tuanpunya Tanah”) dan SETIA HARUMAN SDN BHD (425145-U) sebuah syarikat yang ditubuhkan di Malaysia yang beralamat di The Lodge, 63000 Cyberjaya, Selangor Darul Ehsan (selepas ini dirujuk sebagai “Penjual”) untuk membeli satu lot banglo yang terletak di bawah hakmilik Individu Geran 232694, Lot No. 44592 29 (dahulunya dikenali sebagai HS(D) 2264, PT No. 38034), Mukim Dengkil, Daerah Sepang, Negeri Selangor (selepas ini dirujuk sebagai “Harta tersebut”) untuk balasan wang sebanyak RM5,112,385.00 dan tertakluk kepada terma-terma yang tercatit di Perjanjian tersebut.”

Menurut Perjanjian Tersebut, saya telah membayar sejumlah wang sebanyak RM511,238.50 kepada Penjual sebagai wang cagaran dan juga pembayaran sebahagian harga beli Harta tersebut.

Bahawa saya telah memperolehi satu pinjaman bank daripada United Overseas Bank Malaysia Berhad (selepas ini dirujuk sebagai “UOB”) untuk membantu saya menyempurnakan Perjanjian Jual Beli dan menyelesaikan pembayaran harga jualan kepada Penjual.

Bahawa kebenaran untuk memindahmilik Harta tersebut telah diperolehi daripada Pejabat Daerah/Tanah Sepang pada 30.5.2017 dan Penjual telah memberitahu peguam saya berkenaan kebenaran tersebut yang diperolehi melalui satu surat bertarikh 1.6.2017 daripada Pejabat Daerah/Tanah Sepang yang dialamatkan kepada Penjual. Kelulusan/kebenaran yang telah diberi adalah sah untuk tempoh 3 tahun daripada tarikh surat tersebut dikeluarkan iaitu sehingga 29.5.2020. (sesalinan surat bertarikh 1.6.2017 daripada Pejabat Daerah/Tanah Sepang yang dialamatkan kepada Penjual dilampirkan sebagai “Eksibit K-1”)

Bahawa melalui surat peguam saya yang bertarikh 15.9.2017 saya telah memohon kepada Penjual supaya lanjutan masa diberi kepada saya untuk menjelaskan baki harga jualan kepada penjual. 30 Melalui surat balasan Penjual bertarikh 18.9.2017 kepada peguam saya, Penjual telah memberitahu bahawa baki harga jualan harus dibayar dengan sepenuhnya pada atau sebelum 20.9.2017. (sesalinan surat peguam saya bertarikh 15.9.2017 kepada penjual dilampirkan sebagai “Eksibit K-2” dan sesalinan surat Penjual kepada Peguam saya bertarikh 18.9.2017 dilampirkan sebagai “Eksibit K-3”)

Bahawa melalui surat peguam saya yang bertarikh 28.9.2017 kepada Penjual dan memohon Penjual supaya mempertimbangkan permohonan saya untuk lanjutan masa untuk membayar baki harga jualan. (Sesalinan surat-surat peguam saya bertarikh 28.9.2017 kepada penjual dilampirkan sebagai “Eksibit K-4”)

Bahawa Penjual telah melalui suratnya bertarikh 2.10.2017 kepada saya menolak permohonan saya untuk lanjutan masa untuk menjelaskan baki harga jualan dan membuat ugutan untuk menamatkan Perjanjian tersebut. (Sesalinan surat Penjual bertarikh 2.10.2017 kepada saya dilampirkan sebagai “Eksibit K-5”)

Bahawa peguam saya telah melalui suratnya bertarikh 6.10.2017 kepada Penjual mempertikaikan kandungan-kandungan surat Penjual bertarikh 2.10.2017. Peguam saya juga telah melalui suratnya bertarikh 6.10.2017, antara yang lain, memberitahu Penjual bahawa saya sedia dan rela menyempurnakan Perjanjian tersebut memandangkan pinjaman bank telah diperolehi daripada UOB dan memberi notis kepada Penjual bahawa jika Penjual tidak membantu menyempurnakan Perjanjian tersebut, saya akan 31 melaksanakan semua remedy yang tersedia kepada saya. (Sesalinan surat peguam saya bertarikh 6.10.2017 kepada penjual dilampirkan sebagai “Eksibit K-6”)

Bahawa Borang 14A untuk pindahmilik Harta tersebut (selepas ini dirujuk sebagai “Borang 14A tersebut”) telah diserah kepada Penjual pada 11.10.2017 untuk disempurnakan dan dipulangkan kepada peguam saya untuk tindakan lanjut peguam saya. Akan tetapi sehingga hari ini, Penjual masih tidak memulangkan borang 14A tersebut kepada peguam saya. (Sesalinan surat peguam saya bertarikh 10.10.2017 kepada Penjual dilampirkan sebagai “Eksibit K-7”)

Bahawa Penjual telah melalui suratnya bertarikh 11.10.2017 kepada peguam saya sekali lagi menolak permohonan saya untuk lanjutan masa untuk menjelaskan baki harga jualan dan menyatakan bahawa baki harga jualan harus dibayar pada atau sebelum 16.10.2017. (Sesalinan surat Penjual bertarikh 11.10.2017 kepada peguam saya dilampirkan sebagai “Eksibit K-8”)

Bahawa kebenaran untuk menggadai Harta tersebut kepada UOB juga telah diperolehi daripada Pejabat Daerah/Tanah Sepang pada 20.10.2017 melalui satu surat bertarikh 20.10.2017 daripada pejabat Pejabat Daerah/Tanah Sepang. Kelulusan/kebenaran yang telah diberi adalah sah dalam tempoh 3 tahun daripada tarikh surat tersebut dikeluarkan iaitu sehingga 19.10.2020 (Sesalinan surat bertarikh 20.10.2017 daripada Pejabat Daerah/Tanah Sepang dilampirkan sebagai “Eksibit K-9”) 32

Bahawa melalui surat peguam saya bertarikh 12.10.2017 kepada Penjual, antara yang lain, saya telah memberi notis kepada Penjual bahawa jika Penjual masih berkeras untuk menamatkan perjanjian tersebut, saya akan menggunakan hak-hak dan remedi tersedia kepada saya termasuk mengambil tindakan undangan termasuk perlaksanaan spesifik terhadap Penjual. (Sesalinan surat peguam saya bertarikh 12.10.2017 kepada Penjual dilampirkan sebagai “Eksibit K-10”)

Peguam saya selanjutnya telah menulis surat bertarikh 24.10.2017 kepada Penjual meminta supaya Borang 14A tersebut yang dihantar kepada 11.10.2017 dipulangkan kepada peguam saya tetapi Penjual sehingga hari ini gagal membuat demikian. (Sesalinan surat peguam saya bertarikh 24.10.2017 kepada Penjual dilampirkan sebagai “Eksibit K-11”)

Oleh yang demikian, kemasukkan satu kaveat persendirian amat diperlukan untuk memelihara kepentingan saya sehingga pindahmilik Harta tersebut dapat diserah dan didaftarkan dan sementara menunggu penyelesaian pertikaian di antara saya dan Penjual secara damai atau melalui tindakan mahkamah. [20] Upon close examination on the the Plaintiff’s Form 19B and his statutory declaration, the grounds for the lodging of the 2017’s caveat by the Plaintiff can be briefly summarized as follows: 33

There was an SPA entered between the Plaintiff, the 1st Defendant and SHSB on 25.6.2007 in the respect of the said land.

Pursuant to the SPA, the Plaintiff had paid a deposit of RM511,238.50.

The Plaintiff had obtained a loan from the United Overseas Bank Malaysia Berhad (UOB) to pay the balance purchase price to the SHSB.

The Plaintiff had appealed for an extension of time to settle the payment of the outstanding sum but was refused by the 1st Defendant.

By the Plaintiff’s solicitor letter dated 6.10.2017, the Plaintiff strongly disputed SHSB’s letter dated 2.10.2017.

The Plaintiff had received a letter of offer from the United Overseas Bank (Malaysia) Bhd (“UOB”) who had agreed to 34 finance the purchase of the said land and the loan can be disbursed once the dispute between the Plaintiff, 1st Defendant and SHSB is settled.

On 20.10.2017, the Pejabat Daerah / Tanah Sepang had given its consent to the Plaintiff to charge the said land in favour of UOB and the consent is valid for a period of three years until 19.10.2020. [21] Relying on the grounds above, it was contended on behalf of the Plaintiff that the Plaintiff has proven that he has caveatable interest in the said land. [22] It was further contended by the Plaintiff that SHSB was in no position to terminate the SPA under Clause 18. According to the Plaintiff, upon requests by the Plaintiff, SHSB had in many occassions granted the Plaintiff extension of time to pay the balance of purchase price. It was submitted on behalf of the Plaintiff the granting of these extensions of time by SHSB had resulted in the extension of the Completion Date of the SPA. The Plaintiff further contended that the completion date of the 35 SPA was on 20.9.2017 and thus, pursuant to Clause 5.2 of the SPA, the Plaintiff is entitled to a further extended Completion Date which was on 19.10.2017. [23] It was also contended by the Plaintiff that the issuance of the Notice of Termination by SHSB pursuant to Clause 18, was a deprivation of the Plaintiff’s entitlement to a 14 days period (from 19.10.2017) to remedy the breach before a notice to terminate the SPA can be issued by SHSB. [24] In addition, the Plaintiff had also claimed that the service of the Notice of Termination issued by SHSB was not in compliance of the SPA as it was personally handed / sent (by hand) to the Plaintiff instead of by a registered post as required under Clause 18. [25] Hence, it was the Plaintiff’s contention that the Notice of Termination issued by SHSB was bad, not valid and pre mature. The Plaintiff also contended the Notice of Termination was issued mala fide by SHSB. 36 [26] The Plaintiff had contended he had filed a civil action (BA- 22NCVC-51-02/2018) against the 1st Defendant and SHSB

2.2.2018 seeking several declaratory reliefs pertaining to the SPA. [27] Finally, it was also submitted on behalf of the Plaintiff that based on the factual scenario of the case against the terms of the SPA there are triables issues in the present case, and hence the Plaintiff’s caveat must be extended and remained until the disposal of the litigation between him, 1st Defendant and SHSB. E. THE 1ST DEFENDANT’ OBJECTIONS [28] The Plaintiff’s application was strongly opposed by the 1st Defendant. [29] The 1st Defendant had raised a preliminary objection by contending that the Plaintiff here had filed this originating 37 summons (OS) seeking for an order to extend his private caveat lodged in the said land until the disposal of the litigation between him, the 1st Defendant and SHSB. [30] Whereas and in fact as at the date of filing the OS, there was no such litigation between the parties. In this instance, it was contended by the 1st Defendant, the Plaintiff is seeking for an order from this Court on a contrived notion of a litigation between the parties. Hence, according to the 1st Defendant, the orders sought by the Plaintiff are misconceived and at the very least lack of certainty in law and fact. The Plaintiff’s application is therefore, an abuse of the court procees and should be struck out in limine. [31] On this contention, the 1st Defendant had relied on the decision in the case of Hew Sook Ying v. Hiw Tin Hee [1992] 1 CLJ Rep 120; [1992] 2 MLJ 189. [32] It was argued by the 1st Defendant that the Plaintiff’s primary ground for the entry of his caveat by the Plaintiff was the 38 rejection of the 1st Defendant to his last appeal for extension dated 20.09.2017 to pay the total outstanding sum of the sale and the termination. [33] It was contended by the 1st Defendant, the rejection of the appeal for further extension by the 1st Defendant was entirely the discretion of the 1st Defendant. The rejection was made having weighed the Plaintiff’s deliberate and irresponsible conduct of default and the abuse of the magnanimity and benevolence granted to him by the 1st Defendant. [34] The 1st Defendant had contended that the exercised of its discretion to terminate the SPA was made after due consideration of the Plaintiff’s following conducts: i. The Plaintiff took almost 6 years to execute and return the application for Consent To Transfer without offering any valid reason. Such conduct led to the non-fulfilment of the “Condition Precedent” which would have triggered the 3 months period to pay the balance purchase price. 39 ii. The Plaintiff was to pay the balance purchase price by 31.3.2014 but the 1st Defendant allowed the Plaintiff more than a year and a half to settle it with interest of 8%; iii. When the 1st Defendant sent a reminder for the balance purchase price and interest due on 12.11.2015 the Plaintiff vide his solicitor’s letter dated 9.12.2015 sought and was granted and extension of the agreement that the total balance purchase price shall be settled by 30.6.2016. iv. The Plaintiff failed to settle the total balance purchase price by 30.6.2016 and instead sought a further extension until 20.09.2017 vide his solicitors letter dated 15.3.2017. By this time the Consent To Transfer had expired on 31.12.2016. v. The 1st Defendant again granted the extension provided the Plaintiff settles the total outstanding sum due 40 (including interest) and forwards the duly executed application for Consent To Transfer. vi. The Plaintiff did forward the Consent To Transfer but again failed to settle the total outstanding sum due by 20.09.2017. The 1st Defendant only agreed to make the second Consent To Transfer on the undertaking and/or agreement of the Plaintiff to settle the total outstanding sum due by 20.09.2017. [35] It was the contention of the 1st Defendant that from the Plaintiff’s conducts outlined above, it is crystal clear that the Plaintiff has no intension to settle the total balance purchase price and has taken the 1st Defendant to the proverbial "for a ride”. [36] According to the 1st Defendant, if the Plaintiff was sincere in his intentions to settle the outstanding sum due he would have done it by 20.09.2017. Instead he had the audacity to seek a further extension for another 6 months i.e until 20.3.2018. 41 [37] It was further contended by the 1st Defendant that the termination of the SPA by the SHSB is a fair and justiciable termination. [38] The 1st Defendant had also contended that when the SPA had been duly terminated, therefore the Plaintiff has ceased to have any caveatable interest in the said land since 16.10.2017. F. THE COURT’S ANALYSIS AND DECISION [39] This Court acknowledges that the Plaintiff had entered into a sale and purchase agreement with the 1st Defendant and SHSB of the said land in 2007 and had duly paid the 10% deposit of RM511,238.50. [40] The condition precedent of the SPA was clearly spelt in its Clause 3.1 which stipulates that the completion of the sale and purchase of Lot 10 is subject to Consent To Transfer is obtained from the approval authority. 42 [41] When the Consent To Transfer is obtained, Clause 3.1(b) requires SHSB to deliver a copy of the Consent To Transfer to the Plaintiff’s solicitors within seven (7) days of its receipt. [42] Under Clause 3.5 of the SPA provides that the SPA shall become unconditional upon the date the last of condition precedent is satisfied. [43] Clause 5 of the SPA clearly stipulates that the Plaintiff is required to pay the balance purchase price within three months from the date the last condition being satisfied. [44] Now, it is not in dispute that the first Consent To Transfer was duly obtained on 29.3.2013. It was also not in dispute that a copy of the Consent To Transfer was duly delivered to the Plaintiff and his solicitors. [45] Having obtained the Consent To Transfer, the condition precedent to the SPA had been fully satisfied by SHSB / 1st 43 Defendant. With the Consent To Transfer had been obtained, thus it is now the Plaintiff’s obligation to comply with Clause 5 of the SPA i.e to pay the balance price amounting to RM 4,256,060.50 by 31.12.2014 withtn three months from the last date of condition precedent is satisfied. [46] However, the payment was not forthcoming, the Plaintiff had instead made several requests for extension of time to which the SHSB had kindly acceded to such requests. [47] This Court has no reason not to agree with counsel for the 1st Defendant that the Plaintiff in this case had be given plenty of opportunity and more than ample time to complete all the remaining balance purchase price, however the Plaintiff with a capricious, irresponsible and reckless attitude had deliberately failed to pay the balance purchase price. [48] This Court opines that the Plaintiff’s irresponsible conduct of default and the ungrateful conduct of the Plaintiff despite the 44 kind and benevolence granted to him by SHSB was glaringly obvious and indisputable. [49] The Consent To Tranfer was obtained in 2013 and would lapse on 31.12.2016. It must be boted that until 31.12.2016 the Plaintiff had still not settled the payment. Despite the fact that the Plaintiff did not settled the outstanding payment, SHSB had gone extra length to accommodate the Plaintiff further by applying for a fresh Consent To Transfer. But alas, even when the fresh Consent To Transfer had been obtained, the Plaintiff was still plying tactics to delay the transaction. Again the Plaintiff requested for further extensions of time and this time round his excuse was, he is in the process of obtaining loan and so forth. [50] Considering the conducts of the Plaintiff from the date the SPA was signed 25.6.2007 until the letter dated 18.9.2017 issued by SHSB (a period of ten (10) years), this Court is in total agreement with the counsel for the 1st Defendant that SHSB 45 had reasonably exercised its discretion in rejecting the Plaintiff’s the appeal of further extension of time. [51] It is this Court’s judgment that such rejection was made after considering the Plaintiff had failed to pay SHSB despite being given numerous extensions of time and opportunites to pay the outstanding payment and not to mention the extraordinary length of time to complete all the remaining Balance Purchase Price. [52] This Court must emphasise here that despite the delay tactics exhibited by the Plaintiff in prolonging the matter, this present case is simply a case wherein a sale and purchase agreement (SPA) was entered between a purchaser (the Plaintiff), 1st Defendant (the vendor) and SHSB (a developer who has been vested rights under a power of attorney). When the condition precedent of the SPA was fully met by the vendor/ developer, thereafter it was the purchaser’s (the Plaintiff) turn to fulfil his obligation to pay the balance purchase price pursuant to the terms of the Sale and Purchase Agreement. The Plaintiff in the 46 present case failed to fulfil his obligation despite being given time to do so. The vendor (1st Defendant/ SHSB) had enough of this delay tactics, and gave the Plaintiff a notice of one FINAL opportunity to pay within the time stipulated in the notice, failing which the right to terminate the agreement under the SPA is rightly and justly exercised. [53] In such circumtances, this Court finds no difficulty to hold that the SPA on which the Plaintiff had relied to support his claim of caveatable interest can no longer be relied by the Plaintiff. The Plaintiff has no caveatable interest or whatsoever in the said land. [54] In the present case there is another matter for this Court’s consideration. The Plaintiff had disputed the Notice of Termination issued by SHSB. By the notice of termination the SPA had been terminated on 17.10.2017. However, the Plaintiff did not commence any action against the 1st Defendant / SHSB until 2.2.2018. 47 [55] In fact, the counsel for the 1st Defendant had contended that as at the date of filing this originating summons there was no litigation between the parties as no action was filed by the Plaintiff against the 1st Defendant / SHSB. Thus, from the date of termination of the SPA until the filing of the originating summons 22.1.2018, four months has lapsed. [56] In this instance this Court must refer to the authority of BCB Bank Bhd v Salim bin Abdullah [2013] 8 MLJ 704, where the High Court referred to the judgment of Plimmer Bros v St Maur (1906) 26 NZLR 294:- “…In Plimmer Bros’ case, nothing was done for nearly 16 months and then a caveat was lodged. More than a month had lapsed since then, and still no action has been commenced. On this, the learned Stout CJ then said: ‘In my opinion an action for specific performance under such circumstances would be hopeless, and a caveat under such circumstances must be deemed vexatious’. The learned Chief Justice was also of the opinion that it is 48 inequitable to prevent a man dealing with his property after such a long delay and the court will not lend its assistance to such a proceeding…” [57] It is also verily preposterous that the Plaintiff would have the audacity to contend that under clause 5 of the SPA he is entitled for an additional time of 14 days from 20.12.2017 to settle the outstanding sum despite the fact for the last four years has been enjoying the benevolence of the 1st Defendant / SHSB in giving him extension after extension. [58] Based on the above mentioned reasons, clearly there is no triable issue in this case. [59] In the circumtances of the case it is obvious that the balance of convenience lies with the 1st Defendant. [60] Based on the aforementioned reasons, the Plaintiff’s Enclosure 1 is hereby dismissed with costs. This Court also 49 orders that the Plaintiff do pay the sum of RM9,000.00 to the 1st Defendant as costs. …………………………………………. (DATUK AZIMAH BINTI OMAR) Judge High Court Shah Alam Selangor Darul Ehsan Dated 15th of February 2018 For the Plaintiff - Messrs Wilson Wong Tan Mr S.C. Ho For the First Defendant - Messrs Abd Halim Ushah & Associates & Solicitors Mr Eric Clement For the Second Defendant - Kamar Penasihat Undang-Undang Negeri Selangor