Kcsb Konsortium Sdn Bhd v Menteri Pertahanan (WA-21NCvC-25-05/2025)

KERAJAAN MALAYSIA ...DEFENDANTS GROUNDS OF JUDGMENT (Order 14A Application – Enclosure 11)

This is the Court’s Grounds of Judgment in respect of the Plaintiff’s application in Enclosure 11 brought pursuant to Order 14A rule 1 of the Rules of Court 2012 (“ROC 2012”). 06/03/2026 16:16:20 WA-21NCvC-25-05/2025 Kand. 38

By this application, the Plaintiff sought the determination of certain questions of law relating to the Defendants’ alleged entitlement to remain in occupation of the land in dispute and whether such occupation could continue without payment.

The Plaintiff contended that the questions raised were pure questions of law capable of determination without the necessity of a full trial.

After considering the pleadings, affidavits, written submissions and the authorities relied upon by the parties, this Court dismissed the application. These are the Grounds of Judgment.

The Plaintiff’s claim arises from a Tripartite Privatisation Agreement for the Design and Construction of the Skudai Army Camp entered into between the Plaintiff, the 3rd Defendant, and another party.

The Plaintiff alleges that pursuant to the arrangement, it became entitled to certain parcels of land through a land swap mechanism.

The Plaintiff further contends that the Defendants have continued to occupy the land in question despite the termination of the privatisation arrangement and subsequent legal proceedings between the parties.

In the present action, the Plaintiff seeks, among others:

(a) A declaration that the Defendants are required to deliver vacant possession of the Occupied Land to the Plaintiff as the lawful proprietor of the Plaintiff’s Land.

(b) A declaration that the Plaintiff is entitled to impose and recover rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land from the year 1999 until the present and continuing, OR IN THE ALTERNATIVE, from the year 1999 until vacant possession of the Occupied Land is delivered by the Defendants to the Plaintiff.

(c) The sum of RM484,600,549.30, being rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land from September 1999 until 10 May 2011, OR IN THE ALTERNATIVE, rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land based on market value to be assessed by the Senior Assistant Registrar of this Honourable Court from 1999 until 10 May 2011.

(d) The sum of RM312,323,351.68, being rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land from 11 May 2011 until 21 November 2018, OR IN THE ALTERNATIVE, rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land based on market value to be assessed by the Senior Assistant Registrar of this Honourable Court from 11 May 2011 until 21 November 2018.

(e) The sum of RM18,623,932.80, being rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land from 22 November 2018 until 30 April 2019, OR IN THE ALTERNATIVE, rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land based on market value to be assessed by the Senior Assistant Registrar of this Honourable Court from 22 November 2018 until 30 April 2019.

(f) The sum of RM127,573,939.68, being rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land from 1 May 2019 until 30 April 2022, OR IN THE ALTERNATIVE, rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land based on market value to be assessed by the Senior Assistant Registrar of this Honourable Court from 1 May 2019 until 30 April 2022.

(g) The sum of RM140,331,324.88, being rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land from 1 May 2022 until 30 April 2025, OR IN THE ALTERNATIVE, rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land based on market value to be assessed by the Senior Assistant Registrar of this Honourable Court from 1 May 2022 until 30 April 2025.

(h) The sum of RM3,894,535.81 per month, being rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land from 1 May 2025 until vacant possession of the Occupied Land is delivered by the Defendants to the Plaintiff, OR IN THE ALTERNATIVE, rental and/or compensation and/or payment for the Defendants’ use and/or occupation of the Occupied Land based on market value to be assessed by the Senior Assistant Registrar of this Honourable Court from 1 May 2025 until vacant possession is delivered to the Plaintiff.

(i) Interest at the rate of five percent (5%) per annum on the above judgment sums from the date of filing of this action until full settlement.

(j) General damages, to be assessed by the Senior Assistant Registrar.

(k) Exemplary damages, to be assessed by the Senior Assistant Registrar.

In Enclosure 11, the Plaintiff applied under Order 14A ROC 2012 for the Court to determine certain questions relating to:

(a) Whether the Defendants have the right to continue with their occupation on the Occupied Land based on what has occurred and/or transpired between the parties in this action since the termination of the Privatisation Agreement and the obtaining of the 2nd Civil Suit Judgment?

(b) Assuming that the Defendants have the right to continue to occupy the Occupied Land after the termination of the Privatisation Agreement and the obtaining of the 2nd Civil Suit Judgment, whether such occupation is for free, not for free, or contrary to the principles of unjust enrichment? C. The Law on Order 14A

Order 14A rule 1 ROC 2012 provides that the Court may determine any question of law or construction of documents arising in a cause or matter where such determination will finally determine the entire cause or a substantial part of it.

The rule is intended to promote the efficient disposal of litigation where a case may properly be decided on a point of law without the necessity of a full trial. However, the jurisdiction under Order 14A must be exercised cautiously.

It is well established that the rule applies only where the question raised is a pure question of law capable of determination without resolving disputed facts.

In Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8, the Court of Appeal emphasised that Order 14A may be invoked where the questions posed are purely legal in nature and their determination would substantially dispose of the litigation.

Similarly, in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2008] 2 MLJ 812, the Court of Appeal reiterated that Order 14A should not be invoked where the issues raised are intertwined with factual disputes.

The Federal Court in SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 46 also cautioned that summary procedures should not be used where the determination of the issues requires the Court to examine contested facts or evaluate evidence.

These authorities make clear that the Court must be satisfied that the proposed question is strictly a legal one before invoking Order 14A. D. Whether the Questions Raised are Pure Questions of Law

The Plaintiff submitted that the issues raised concern the legal consequences of prior events and therefore constitute questions of law.

However, upon careful consideration of the pleadings and affidavits filed by both parties, this Court found that the issues raised cannot be determined without resolving substantial disputes of fact.

Among the matters disputed between the parties are:

(a) the legal and practical effect of the Privatisation Agreement;

(b) the consequences of earlier legal proceedings between the parties;

(c) the status of the land following compulsory acquisition; and

(d) the circumstances and basis upon which the Defendants continued to occupy the land.

The Court believes that these issues form part of the factual matrix underlying the dispute. Hence, the Court cannot determine the legal consequences arising from those matters without first establishing the relevant facts.

In these circumstances, the issues raised cannot properly be characterised as pure questions of law. E. Whether Order 14A May Apply Partially

This Court also considered whether any discrete or severable question of law could nevertheless be determined under Order 14A.

While Order 14A permits the determination of questions of law relating to the whole or part of an action, the issue identified must still be a self-contained legal question capable of determination without resolving contested facts.

In the present case, the issues raised by the Plaintiff are inextricably intertwined with disputed factual matters.

The Court found that the parties dispute, among others:

(a) the effect of the Privatisation Agreement;

(b) the consequences of the earlier civil proceedings;

(c) the status of the land following compulsory acquisition; and

(d) the circumstances under which the Defendants continued in occupation.

In the circumstances, any attempt to determine the questions proposed by the Plaintiff would necessarily require the Court to evaluate these disputed factual matters.

Order 14A is not intended to permit the Court to determine issues in abstraction separated from their factual context. Where the legal consequences depend upon contested facts, the matter is not suitable for summary determination even in part.

Furthermore, the Court believes that a piecemeal determination at this stage risks fragmenting the proceedings and may complicate rather than advance the efficient disposal of the action.

In the circumstances, this Court was not satisfied that any severable and purely legal question had been identified that could properly be determined under Order 14A. It must also be emphasised that an application under Order 14A ultimately involves the exercise of judicial discretion.

Having considered the pleadings, affidavits and submissions of the parties, this Court was not satisfied that the issues raised could be fairly and properly determined without the benefit of a full trial.

In the circumstances, the Court considered it more appropriate that the disputed factual matters be ventilated at trial, where the evidence may be tested through the usual processes of examination and cross-examination.

For the reasons stated above, this Court found that the issues raised by the Plaintiff are not pure questions of law capable of determination without resolving disputed factual matters. The matters raised are more appropriately determined at a full trial where the evidence can be properly tested.

Accordingly, the Plaintiff’s application in Enclosure 11 pursuant to Order 14A ROC 2012 was dismissed.

Costs were ordered to be costs in the cause. Dated: 6th March 2026 ………..…………………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel for The Plaintiff : Lim Kien Huat & Bryan Ching Tze Yeow Messrs. Lee & Lim (Petaling Jaya) Advocates & Solicitors Counsel for The Defendants : Pn Siti Aisyah binti Ramlan & Anis Najwa Jabatan Peguam Negara, Putrajaya