Koh Hong Ngee & 9 Lagi v Sky Park Properties Sdn Bhd (WA-22NCvC-192-03/2021)

POW SEI YUEN (NO. K/P: 831103-06-5518) DAN SKY PARK PROPERTIES SDN BHD DEFENDAN (NO. SYARIKAT: 893877-V) GROUNDS OF JUDGMENT

This is the Defendant's application pursuant to Order 14A and/or Order 33 Rule 2 and 5 of the Rules of Court 2012 ("ROC 2012") for the determination of questions of law and consequential dismissal of the Plaintiffs' claims.

The Plaintiffs are 10 purchasers of residential units in Tower 1 of a mixed development project known as "SKYPARK @ CYBERJAYA" ("the Project"). The Defendant is the developer.

The following facts are undisputed based on the documentary evidence:

The Defendant is the developer of the Project comprising a basement car park, commercial complex podium, service apartments (Tower 1), 4 office towers, and a hotel tower (Tower 4);

The Plaintiffs purchased service apartment units in Tower 1 and executed their respective Sale and Purchase Agreements ("SPAs") around 2013;

Tower 1 was completed around 8/6/2018 and the Project Architect issued a Partial Certificate of Completion and Compliance in Form F1 on that date;

Vacant Possession of the Parcels was delivered to the Plaintiffs via Notices of Vacant Possession following the Partial CCC;

The Plaintiffs no longer dispute the delivery of Vacant Possession in their amended claim;

The commercial complex podium and hotel block (Tower 4) was completed around 7/7/2025 and a Partial CCC (Form F1) dated 7/7/2025 was issued;

As the entire Project has now been completed, the Certificate of Completion and Compliance in Form F ("Full CCC") was issued on or around 7/7/2025 for the entire Project; and

Following the Full CCC, the Defendant, through its appointed consultant, applied for a Certificate of Proposed Strata Plan ("CPSP") to JUPEM on or about 3/10/2025, within 3 months of the Full CCC. C. SUBSEQUENT DEVELOPMENT

The Plaintiffs commenced this action on 13/3/2021 when the remaining phases of the Project (commercial complex podium and Tower 4) had yet to be completed.

The Plaintiffs' original Statement of Claim included claims for Liquidated Ascertained Damages ("LAD") and complaints relating to delivery of vacant possession and CCC issues.

The Defendant's earlier striking-out application was allowed by the High Court (reported as Chin Kok Woo & Ors v Sky Park Properties Sdn Bhd & Ors [2022] 4 CLJ 716 HC).

The Plaintiffs appealed to the Court of Appeal. On 17/4/2025, the Court of Appeal set aside the striking-out order and granted parties liberty to amend their respective pleadings.

Following the Court of Appeal's Order, the Plaintiffs substantially amended their Writ and Statement of Claim on or around 28/8/2025. In doing so, they abandoned significant portions of their earlier pleaded claim, including the entire LAD claim, the challenge to delivery of vacant possession, and other reliefs premised on CCC and related issues.

The Plaintiffs' Amended SOC now confines the reliefs to three heads in paragraphs 34(a)-(c), namely:

Specific performance compelling the Defendant to "ensure full completion" of the entire Project within 3 months from judgment, failing which damages to be assessed;

A declaration that the Defendant and/or its agents take all necessary steps to obtain strata titles and execute valid and registrable Memorandum of Transfer within 3 months from judgment; and

Damages for alleged diminution in value of the Plaintiffs' parcels due to alleged delay and/or failure in issuance of strata titles. The previous reliefs were forgone including their claims for LAD, VP and CCC, unlawful interference and negligence on Form F and/or CCC and Retention Monies. The said paragraphs 34(a)- (c) amendments are re-produced below for comparison with the earlier unamended ones:

WHEREFORE, the Plaintiffs claim: a. Specific Performance of the Sale and Purchase Agreement (SPA) against the First Defendant to ensure full completion of the project within three (3) months from the date of this Honourable Court's Judgment and if failed then damages in lieu to be assessed; b. ~~Judgment against the First Defendant for settlement of Liquidated Ascertained Damages (LAD) as per Appendix A within two (2) weeks from the date of Judgment to the Plaintiffs' Solicitors;~ c. ~~A Declaration that the alleged vacant possession (VP) delivered by the First Defendant without a valid 'Form F' and/or Certificate of Completion and Compliance (CCC) be ordered as null and void and of no legal effect.~= d. ~~A Declaration that the Plaintiffs who have executed the LAD waiver letters are not estopped and/or barred from their legitimate rights to further LAD payment.~~ e. ~~That the 3rd Defendant be held liable for Unlawful Interference and/or Negligence for having failed to perform their professional duties in issuing 'Form F' and/or CCC;~~ f. A declaration that the ~~First~~ Defendant and/or its agents and/or officers and/or representatives take the necessary steps to obtain Strata Title for the Plaintiffs' parcels and the valid and registered execution of the Memorandum of Transfer of parcel titles to the respective Plaintiffs within three (3) months from the date of this Honourable Court's Judgment; g. That compensation be assessed by this Honourable Court and paid by the ~=First~= Defendant for loss in diminution in value and/or the respective Plaintiffs' parcels caused by inordinate delay and/or failure in the issuance of strata title; h. ~~That an Injunction be granted to restrain the 4th Defendant, Agents or other persons under their control from releasing the second Moiety 2.5% Retention Monies until the disposal of this suit.~ i. Interest at the rate of 5% from the date of Judgment until full settlement; j. Costs; k. Other relief deemed just and proper by this Honourable Court. ~Dated this 13th day of March 2021.~ ~Messrs Hakem Arabi & Associates~ ~Solicitors for the Plaintiffs~ Dated this 28th day of August 2025. Messrs Hakem Arabi & Associates Solicitors for the Plaintiffs

The Defendant seeks a determination of the following questions of law:

Whether, on a proper construction of the SPAs, the Defendant is under any contractual obligation to ensure the full completion of the entire Project within any specified period of time?

If the answer to Question (a) is in the negative, whether the Plaintiffs have any locus standi or right to claim for completion of the entire Project within any specified period of time?

Because the entire Project has been completed and a Full CCC has been issued on or about 7/7/2025, whether the Plaintiffs' claim in paragraph 34(a) of the Amended SOC is wrong and/or has become academic?

Whether the Defendant can only obtain/procure the issuance of the Strata Titles after the Full CCC for the whole Project has been issued?

If the answer to Question (d) is "Yes", and in view of the Full CCC dated 7/7/2025 and the Defendant having already taken steps to apply for subdivision of the building for the purpose of obtaining Strata Titles thereafter, whether the Plaintiffs' claims for reliefs in paragraphs 34(b) and (c) of the Amended SOC are wrong and/or have become academic? E. THE LAW ON ORDER 14A AND ORDER 33 ROC 2012

Order 14A Rule 1 ROC 2012 provides that the Court may, upon application or on its own motion, determine any question of law or construction at any stage where the question is suitable for determination without a full trial and such determination will finally determine the entire cause or matter or any claim or issue therein.

Order 33 Rules 2 and 5 ROC 2012 further provide that the Court may order any question or issue of fact, law or mixed law and fact to be tried before, at or after the trial, and where the decision of that question or issue substantially disposes of the cause or renders a full trial unnecessary, the Court may dismiss the cause or make such other order or give such judgment as may be just.

The applicable principles are well-established:

In Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8 CA, as affirmed by the Federal Court in Kerajaan Negeri Kelantan v Petroliam Nasional Bhd and other appeals [2014] 6 MLJ 31 FC, even if a case "appears to be or is complicated", the court must not shun away from considering Order 14A and Order 33 ROC 2012 so long as the questions of law posed are clear and definite, and a real and serious attempt is made to identify the material facts that are obviously undisputed.

In Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2008] 2 MLJ 812 CA, where the construction of a document will finally determine an issue that is a dominant feature of the case, the High Court ought to proceed to determine that issue under Order 14A ROC 2012.

In Director of Forests, Sarawak & Anor v Racha ak Urud @ Peter Racha Urud & Ors and other appeals [2017] 4 MLJ 42 FC, the Federal Court approved the commentary in Malaysian Court Practice that a question is "suitable" under Order 14A ROC 2012 where all necessary and material facts have been proved or admitted, so that there is no real factual dispute remaining.

In Bato Bagi & Ors v Kerajaan Negeri Sarawak & Another Appeal [2011] 8 CLJ 766 FC, the Federal Court emphasised that under Order 14A ROC 2012, the entire cause or matter need not be finally determined; it is sufficient if substantial matters or the most significant issue can be disposed of.

In Theow Say Kow @ Teoh Kiang Seng, Henry v Teoh Kiang Hong [2014] 9 MLJ 32 CA, it is held that it is not necessary that the entire suit be concluded under Order 14A ROC 2012 but suffice if substantial matters or a dominant feature of the case can be determined. F. SUITABILITY FOR DETERMINATION UNDER ORDER 14A OR ORDER 33 ROC 2012

I am satisfied that this is a suitable case for determination under Order 14A and/or Order 33 ROC 2012 for the following reasons:

The material facts are documentary and undisputed. The relevant facts regarding the SPAs between the parties, the delivery of vacant possession, the completion of the Project (Partial CCCs and Full CCC), and the timing of the CPSP application are all documentary and undisputed.

The real controversy is purely on the law. These are questions of the contractual/statutory construction, and not questions of fact or credibility. The remaining controversy is confined to what the SPAs mean, i.e., whether they confer on the Plaintiffs any right to: Insist on completion of the entire Project within any particular timeframe; Compel issuance of strata titles and execution of Memorandum of Transfers (MOTs) within 3 months of judgment; or > Claim "diminution in value" damages on the facts pleaded.

The Plaintiffs have failed to identify any genuine factual dispute. Despite the Plaintiffs' submissions, they have not articulated what specific material facts are said to be in dispute. The Plaintiffs' assertion that a full trial is "necessary" is a bare assertion unsupported by any identification of conflicting evidence relevant to the Questions of Law. G. FINDINGS ON THE QUESTIONS OF LAW

The SPAs explicitly provide that each Plaintiff is only purchasing a "parcel" and the Defendant is only selling that parcel. The Preamble states: "AND WHEREAS the Vendor has agreed to sell and the Purchaser has agreed to purchase a parcel with vacant possession distinguished with the particulars as stated in Section 3 of the Sixth Schedule hereto..."

The definition of "parcel" under Clause 35 of Interpretation in the SPA means parcel as defined under the Strata Titles Act 1985 ("STA 1985"). Under s 4 STA 1985, a subdivided building means one of the individual units comprised therein that is held under a separate title. It does not mean "accessory parcel" because the Plaintiffs did not buy a parcel which is used or intended to be used in conjunction with a parcel. The SPAs carefully delineate the boundaries of the Plaintiffs' contractual rights. Each Plaintiff is purchasing only one specified parcel, and there is no term in the SPAs suggesting that the Plaintiffs acquire legal rights or interests in the entire Project.

The purchase prices paid by the Plaintiffs are only for their respective Parcels and not for the whole Project (Clause 3 of the SPAs and Section 4 of the Sixth Schedule).

Clause 25 of the SPAs deals with delivery of vacant possession and refers only to "the said Parcel": "(1) Vacant possession of the said Parcel shall be delivered to the Purchaser in the manner stipulated in clause 26 within fifty four (54) calendar months from the date of this Agreement.

If the Vendor fails to deliver vacant possession of the said Parcel in the manner stipulated in clause 26..."

Throughout the SPAs, the Defendant's obligations are to build, deliver vacant possession, and later transfer the strata title in relation to "the said Parcel". There is no clause which requires the Defendant to complete the entire Project within any stipulated period. Similarly, there is no clause that entitles the Plaintiffs to claim completion of the whole Project within 3 months of any judgment (or any other timeframe).

It is trite that the construction of a contract is a question of law for the Court to decide. In Mulpha Pacific Sdn Bhd v Paramount Corporation Bhd [2003] 4 MLJ 357 CA, citing The Royal Selangor Golf Club v Anglo-Oriental (Malaya) Sdn Bhd [1990] 1 CLJ 995 HC, Lim Beng Choon J (as he then was) held that construction of contract is a question of law where the contract is in writing, the intention of the parties must be found within the four walls of the contractual documents, and a contract must be construed as at the date it was made.

The construction of a written contract is exclusively a matter of law for the Court, and not for witnesses through their oral evidence (see: NVJ Menon v The Great Eastern Life Assurance Company Ltd [2004] 3 CLJ 96 CA). Even where contractual language is plain and unambiguous, the Court must give effect to the plain meaning of the words, even if the result is unattractive (see: Syarikat Binaan Utara Jaya (A Firm) v Koperasi Serbaguna Sungei Glugor Berhad [2009] 1 CLJ 786 CA).

The Federal Court in Catajaya Sdn Bhd v Shoppoint Sdn Bhd & Ors [2021] 2 MLJ 374 FC established that termination clauses in a contract must be construed strictly, and contractual provisions cannot be read in isolation but must be interpreted harmoniously as a whole. In emphasising heavily on SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 FC, where in holding that termination was wrongful, there must be both a valid reason to terminate and proper communication of that reason to the other party. Critically, specific procedural requirements in a termination clause, such as notice and an opportunity to remedy, must be given full effect, failing which the termination is defective. The Court cannot allow one party to circumvent protective procedures by invoking a different termination mechanism.

On the broader principles of contractual construction, Catajaya relied on Lord Hoffmann's principles in Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10, which hold that a court's task is to ascertain the objective meaning the instrument would convey to a reasonable person with all reasonably available background knowledge. The Court has no power to improve or rewrite a contract but only to discover what it means. Implication of terms is not adding to the contract but spelling out what the instrument, read as a whole against the relevant background, would reasonably be understood to mean.

In Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601, Lord Pearson reinforced that the court will not improve terms the parties have made for themselves; where express terms are clear and unambiguous, they must be applied as they stand. An unexpressed term may only be implied if the Court finds the parties must have intended it to form part of the contract.

The Federal Court in Lucy Wong Nyuk King v Hwang Mee Hiong [2016] 3 MLJ 689 FC reiterated that a contract must be construed as a whole to ascertain the true meaning of its several clauses, and each clause should be interpreted harmoniously with the others. Similarly, in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 MLJ 597 FC, Gopal Sri Ram FCJ set out that the court is not confined to the four corners of the document but may consider the factual matrix, while disregarding evidence of subjective intent and adopting an objective approach. While in Charles Grenier Sdn Bhd v Lau Wing Hong [1996] 3 MLJ 327 and Hillas & Co Ltd v Arcos Ltd [1932] All ER Rep 494 further underscored that commercial contracts should be construed fairly and broadly, without being too astute in finding defects, but equally without making a contract the parties did not make. Lord Hodge in Wood v Capita Insurance Services Ltd [2017] UKSC 24 summarised that ascertaining objective meaning is not a literalist exercise, whereby the court must consider the contract as a whole and weigh elements of the wider context, depending on the nature and quality of the drafting.

Applying these authorities to the present SPAs, the conclusion is plain whereby the Plaintiffs purchased the respective Parcels and have no right to demand completion of the entire mixed development Project; and that this court cannot rewrite the bargain by implying a term that the Defendant must complete the whole Project within 3 months of judgment or at any particular date.

Hence, the answer to Question (a) is-No. On a proper construction of the SPAs, there is no obligation on the Defendant to complete the entire Project within any stipulated period. Question (b): No Locus Standi to Claim Completion of Entire Project

It follows from the answer to Question (a) that the Plaintiffs have no locus standi or right to claim completion of the entire Project within any specified period. Their contractual rights and interests are limited to their respective Parcels, as described in the Preamble, Floor Plan, and Sixth Schedule.

As such, the answer to Question (b) is also - No. The Plaintiffs have no locus standi to claim for completion of the whole Project within any timeframe. Question (c): Relief in Paragraph 34(a) is Academic

Paragraph 34(a) of the Amended SOC seeks specific performance compelling the Defendant to "ensure full completion" of the entire Project within 3 months from the date of Judgment, failing which damages are to be assessed.

The Plaintiffs have bereft me of all reasons as to why they did not amend, but to maintain their prayer for the Defendant to complete the entire Project after the Judgment is given for this case. It is undisputed that the entire Project has been completed, and that the Full CCC (Form F) for the whole Project was issued by the Architect on or about 7/7/2025.

I am quite certain that they did not pursue a further appeal against my decision because the claim has become academic due to their oversight. Even if the Plaintiffs had any right to claim for completion (which they do not), that relief is now wholly academic and redundant, as the Project has already been completed before any Judgment of this Court.

It is trite law that Courts will not entertain matters which are academic and will only determine matters which are actually in dispute and will affect the parties' rights. In Sun Life Assurance Co of Canada v Jervis [1944] 1 All ER 469 at pp. 470-471, Viscount Simon LC held that it would not be a proper exercise of the authority which the House possesses to hear appeals if it occupied time in deciding an academic question, the answer to which cannot affect the respondent in any way. The test in Sun Life, where his Lordship held that it would not be a proper exercise of appellate authority to occupy time deciding "an academic question, the answer to which cannot affect the respondent in any way." He emphasised that an appellate court should not merely express its view on "a legal conundrum" that one party hopes to have decided in its favour without in any way affecting the position between the parties. Rather, he stated it is "an essential quality of an appeal fit to be disposed of" that there should exist between the parties "a matter in actual controversy which the House undertakes to decide as a living issue."

This principle is accepted in Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113 FC. His Lordship Augustine Paul FCJ (as he then was) held that the test for whether an appeal is academic is whether there is a matter in actual controversy between the parties that will affect them, regardless of whether the specific order under challenge has been set aside or dissolved. If so, the appeal is not academic. Accordingly, it was the appeal itself that would determine whether the orders ought not to have been granted, thereby enabling the applicant to pursue the undertaking for damages. The dissolution of the orders did not extinguish this live consequence. The preliminary objection was accordingly rejected as devoid of merit.

This test had been consistently adopted and applied in a substantial line of authorities including Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors v Karpal Singh [1992] 1 MLJ 147 SC where the principle was applied in the context of proceedings involving the Minister of Home Affairs; Datuk Syed Kechik bin Syed Mohamed & Anor v Board of Trustees of the Sabah Foundation & Ors [1997] 1 MLJ 257 CA where the Court of Appeal similarly assessed whether a live controversy remained between the parties; Raphael Pura v Insas Bhd & Anor [2003] 1 MLJ 513 FC which reaffirmed the same test in a corporate dispute context.

The significance of the test in Metramac was that the mere dissolution of the orders of 25/10/2005 did not, by itself, eliminate the actual controversy. So long as the outcome of the appeal could still produce real, tangible consequences for the parties, particularly in relation to the undertaking as to damages, the controversy remained alive, and the appeal was not academic.

In Husli @ Husly bin Mok (suing as administrator of the estate of Mok bin Tuan, deceased) v Superintendent of Lands and Surveys & Anor [2014] 6 MLJ 766 FC, the Federal Court held that the Court will not act in vain and grant declarations on matters which are academic.

As such, the answer to Question (c) is-Yes, where the relief claimed in paragraph 34(a) of the Amended SOC is wrong and has become academic. Question (d): Strata Titles Can Only Be Procured After Full CCC

The Plaintiffs themselves have expressly pleaded in paragraphs 9(d) and 10 of the Amended Reply to Defence that: "9(d) Hak Milik Strata hanya boleh dikeluarkan setelah keseluruhan projek dihabiskan dan Sijil Sijil Perakuan Penyiapan dan Pematuhan ("CCC") yang penuh dengan "Borang F" dikeluarkan" "10. Plaintif-Plaintif mengatakan bahawa tidak boleh adap penyiapan seksional ('sectional completion') bagi keseluruhan projek, kerana hanya terdapat satu permohonan Hakmilik Strata."

It is trite law that the Plaintiffs are bound by their pleadings. In Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 6 MLJ 449 FC, the Federal Court held that a plaintiff is bound by its own pleadings and is not permitted to improve its pleading in any other manner other than by way of an application to amend.

The Plaintiffs' pleaded acknowledgement strengthens the Defendant's position that the Defendant's duty to procure strata titles could not have arisen until Full CCC is obtained.

Under Clause 11 of the SPAs: "11(1) The Proprietor/Vendor shall, at its own cost and expense and as expeditiously as possible, apply for subdivision of the said Building or Land intended for subdivision into parcels, as the case may be, so as to obtain the issue of a separate strata title to the said Parcel under the Strata Titles Act 1985,

Upon the issuance of the strata title to the said Parcel and subject to the payment of the purchase price by the Purchaser... the Vendor shall, within twenty-one (21) days, execute or cause the Proprietor to execute a valid and registrable Memorandum of Transfer..."

The Defendant's obligation is to apply for subdivision of the building after the issuance of the CCC so as to obtain separate strata titles, and upon issuance of the strata titles, to execute a valid and registrable MOT within 21 days. Since the authority has not issued the strata titles, the obligation to execute an MOT does not arise.

Marzukhi et al. (2021), in their article "The Development Control Process for Residential and Serviced Apartments in Shah Alam, Selangor", examined the development control process for serviced apartments in Malaysia and drew several distinctions that are instructive to the present case.

They highlight that serviced apartments situated within the commercial land use zone are frequently developed as a component of a mixed development, wherein the serviced apartment tower is built above or alongside a commercial podium, retail complex, or office blocks. This is precisely the nature of the Project herein, which comprises a basement car park, a commercial complex podium, service apartments (in Tower 1), four office towers, and a hotel tower (in Tower 4). They say that the serviced apartment component cannot be viewed in isolation from the development as a whole for regulatory and titling purposes.

They also note that both residential apartments and serviced apartments are forms of stratified development because they are "shared" properties, and that the issuance of strata title is governed by the STA 1985 and the Strata Management Act 2013 ("SMA 2013"). The article expressly states that following amendments to the Housing Development (Control and Licensing) Act 1966 in July 2015, the process of obtaining strata titles is closely linked to the issuance of the CCC.

This academic observation accords with and lends support to the Plaintiffs' own pleaded acknowledgement in paragraphs 9(d) and 10 of their Amended Reply to Defence that strata titles can only be issued after the entire project is completed and a full Form F CCC is issued, and that there can be no sectional completion for the purpose of a single strata title application.

It also highlights the role of the relevant local authority and statutory bodies, including the OSC (One Stop Centre), the Department of Town and Country Planning, and the Building Department, in the approval and completion process. The oversight and decisions of these bodies lie entirely outside the contractual relationship between a developer and a purchaser.

This reinforces the Court's finding that the processing, scrutiny, and approval of the Certificate of Proposed Strata Plan ("CPSP") by JUPEM and the Land Office, following the Defendant's application on or about 3/10/2025 that are entirely within the purview of the relevant authorities who are not parties to this suit, and cannot be the subject of a court order against the Defendant alone.

Taken together, the STA 1985 and the SPAs make it plain that it is the Defendant's obligation to apply for subdivision of the building to obtain strata titles, which could not have arisen until the Full CCC for the entire Project was issued. This further confirms that the mixed-development nature of a project such as SKYPARK @ CYBERJAYA necessarily means that strata titling is contingent upon the completion of the entire development, not merely one tower within it.

Therefore, in answering Question (d), it is-Yes. Strata titles can only be procured after the Full CCC for the whole Project has been issued. Question (e): Reliefs in Paragraphs 34(b) and (c) are Academic

Given my finding on Question (d), and in view of the undisputed facts that the Full CCC dated 7/7/2025 has been issued, that the Defendant has already taken steps to apply for CPSP/subdivision within 3 months of the Full CCC (i.e., on 3/10/2025); and that the further processing, scrutiny and approval are entirely in the hands of the relevant authorities (JUPEM and Land Office) who are not parties to this suit, I find that there is no delay or breach of any statutory and/or contractual obligations by the Defendant.

Paragraph 34(b) of the Amended Statement of Claim seeks a declaration that the Defendant take steps to obtain strata titles and execute the MOT within 3 months from judgment. This appears inconsistent with the SPAs, which require the Defendant to execute the MOT only within 21 days of strata titles being issued (not within 3 months of judgment). It is also unworkable in practice, because the authorities are not parties to this suit and cannot be bound by any such period; and more importantly, it has become academic, given that the Defendant has already taken all necessary steps for subdivision after the issuance of Full CCC.

Paragraph 34(c) of the Amended Statement of Claim seeks damages for "diminution in value" allegedly arising from delay/failure in the issuance of strata titles. However, the Plaintiffs have not proved any actual loss or reduction in the market value of their Parcels resulting from the alleged "inordinate delay" or failure. Also, the Plaintiffs have enjoyed vacant possession and the full benefit of their Parcels since 2018. There is no cogent evidence of any loss quantified or causally linked to the Defendant's conduct. There is also no contractual breach or delay attributable to the Defendant, given that strata titles can only be procured after Full CCC, and the Defendant has acted within the statutory timeline.

Therefore, in answering Question (e), it is a Yes. The reliefs in paragraphs 34(b) and (c) of the Amended SOC are wrong and/or have become academic.

The Plaintiffs contend that this matter must proceed to full trial because the Court of Appeal had ordered the matter to proceed for full trial on the issue of strata titles. The Notes of Proceedings of the Court of Appeal are reproduced: "Unanimous decision. Before us the issue is whether the claim by the Appellant is plain and obvious cannot be sustained. On the fact, we find that the issue of the issuance of F1 certificate is a matter of which viva voce testimony ought to be produced. Based on that, we find merit in the appeal by the Appellant. We allow the Appeal. We order costs in the cause of RM10,000.00 subject to allocator. The parties are open to apply to amend their pleadings."

The Court of Appeal Order dated 17/4/2025 merely set aside the High Court's striking-out order where the issue of the issuance of the F1 certificate is to be tried in a trial, and granted parties liberty to amend their respective pleadings.

Following the Court of Appeal's Order, the Plaintiffs exercised the liberty granted and substantially amended their Statement of Claim on or around 28/8/2025. They have deleted paragraphs 87(c) and 87(e) related to the issuance of the F1 certificate. What remains as prayers are the issues of the LAD and the issuance of the Strata Titles. There is no finding or specific order in the Court of Appeal Order requiring or even suggesting that there must be a trial in relation to the issue of Strata Titles. If the Plaintiffs had not deleted those paragraphs, then it would be a different matter altogether, whereby this Court must then adhere to the Court of Appeal's decision to direct this case for trial, which is not the case here in this instant.

The Court of Appeal Order also contains no prohibition against the Defendant filing an Order 14A or Order 33 ROC 2012 application. After all, the appeal before the Court of Appeal concerns only the striking-out application made under Order 18 Rule 19 ROC 2012. The Court of Appeal certainly did not determine, expressly or impliedly, that an Order 14A ROC 2012 application on the questions of law now arising is barred.

I would like to refer to the minority judgment of the Rt Hon. CJSS in 3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square [2026] CLJU 1464 FC. The Rt Hon. CJSS held that the statutory text of s 68(1)(f) of the Courts of Judicature Act 1964 ("CJA 1964") bars appeals "where a High Court dismissed any application to strike out any writ or pleading." This language maps directly and exclusively onto Order 18 Rule 19 ROC 2012. It does not say "any application for summary disposal" or "any interlocutory application seeking to defeat a claim without full trial." I wholly agree with the rationale given whereby, to extend them to encompass Order 14A or Order 33 ROC 2012 is to read words into the statute that are not there (see: Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd [2019] 8 CLJ 433 FC).

Order 18 Rule 19 ROC 2012 is a summary screening tool that asks whether a claim is "plainly and obviously unsustainable" on the face of the pleadings. Order 14A ROC 2012 enables the substantive determination of actual questions of law on their merits, capable of finally resolving the dispute. Order 33 ROC 2012 goes further, contemplating a trial of preliminary issues, potentially with viva voce evidence. These are fundamentally different procedural architectures. That all three may ultimately result in a claim being dismissed does not make them the same procedure.

Characterising the use of Order 14A ROC 2012 as "legal acrobatics" and procedural circumvention presupposes the very conclusion at issue that Order 14A ROC 2012 falls within the statutory bars. If it does not, invoking Order 14A is simply the legitimate exercise of a procedural option.

This position made by the Rt Hon. CJSS aligns with the unanimous decision of the Federal Court in MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd [2025] 6 MLJ 471 FC, which held that s 68(1)(f) CJA 1964 does not operate as a blanket bar and that appeals remain competent where the application raises preliminary points of law capable of finally determining the parties' rights. In MT Ventures, it was held that the appellant's Order 14A ROC 2012 application raised precisely such issues of res judicata and limitation under s 6A of the Limitation Act 1953 ("LA 1953"). The majority acknowledged this authority but did not overrule or distinguish MT Ventures.

This approach is consistent with Chu Jin Hau & Ors v Sime Darby Brunsfield Holding Sdn Bhd & Ors [2025] MLJU 1256 HC, where the argument was rejected that an Order 14A ROC 2012 application was a "second bite of the cherry" after an earlier unsuccessful striking-out application. The Court held that the principles applicable in determining an Order 18 ROC 2012 application are quite different from those of an application under Order 14A ROC 2012.

Similarly, in Sigur Sinar Sdn Bhd v Bank Muamalat Malaysia Berhad [2017] MLJU 62 HC, Nora Hayati Ismayatim v Amanah Raya Bhd [2012] 10 CLJ 634 HC, and TR Madel Anak Kandou & Ors v BBC Estate Sdn Bhd & Ors [2011] MLJU 520 HC, the Courts held that res judicata does not bar a subsequent interlocutory application where new facts or grounds have arisen after the earlier application was dismissed.

Here, the completion of the Project, the issuance of Full CCC, and the CPSP application are new developments in this action that justify a determination on the clear Questions of Law.

For completeness, the Plaintiffs have not pleaded any breach of statutory duty under the STA 1985 or under any other written law by the Defendant. Their pleaded case is couched purely on alleged breach of contract.

In Badan Pengurusan Bersama Kristal Heights 2 & Anor v Syarikat Sri Malawati Sdn Bhd & Anor [2019] 11 MLJ 22 HC, Vazeer Alam J (as he then was) held that where a plaintiff has failed to plead the relevant statute or provision where the specific duty is owed, and the breach or breaches thereof that form the basis of the claim, such pleadings incorporating the particulars of breach are important for the court to determine whether the plaintiff is included in the category of persons protected by the relevant statute and/or provision of the law. The failure to do so is fatal to the plaintiff's claim.

It is a cardinal rule of civil procedure that parties are strictly bound by their pleadings and are not permitted to adduce facts or advance submissions on matters they have not pleaded. Cases must be decided on the issues placed on the record, and any party wishing to raise new issues must do so by way of amendment to the pleadings (see: Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697 FC).

Instantcolor reaffirmed this principle with reference to State Government of Perak v Muniandy [1986] 1 MLJ 490 SC, Anuar bin Mat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313 HC and Blay v Pollard and Morris [1930] 1 KB 628. In Instacolor, the issues of constructive trust, fraud, fraudulent breach of trust, dishonesty, and the application of s 22 LA 1953 were never pleaded in the plaintiff's amended statement of claim, nor were they raised in the High Court or the Court of Appeal.

General or vague averments are insufficient. Instantcolor followed the House of Lords in Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210, which held that a statement of claim must contain precise and full allegations of facts and circumstances leading to a reasonable inference of fraud, excluding other possible causes, failing which the court may dismiss the action as an abuse of process. The case of Gibbs v Guild (1881) 8 QBD 296 and How v Earl Winterton [1896] 2 Ch 626 were also referred.

Ramli Ali FCJ rules that, to invoke the statutory exception under s 22 LA 1953, the plaintiff must have specifically pleaded the material factual elements, namely: the existence of a trust, the trust property, the fiduciary relationship giving rise to the trust, the nature of the fraud, and the fraudulent breach of trust. A bare allegation of breach of fiduciary duty is too vague and general to satisfy these requirements (quoting: Renofac Builder (M) Sdn Bhd v Chase Perdana Berhad [2000] MLJU 752 HC, which held that failure to plead even one material fact is fatal).

Applying its own decision in Dato' Hamzah bin Abdul Majid v Omega Securities Sdn Bhd [2015] 6 MLJ 725 FC, Instacolor held that any radical departure from the pleaded case as opposed to a mere variation, modification, or development of what has been alleged must be specifically pleaded. Any unpleaded matter ought to be disregarded by the court. The issues of constructive trust, fraud, fraudulent breach of trust, dishonesty, and s 22 of the Act were found to constitute a radical departure from the plaintiff's pleaded case as it appeared in the amended statement of claim. These issues fundamentally re-characterised the nature of the plaintiff's claim from one grounded in contract and tort to one grounded in trust and fraud, which is a shift that could not be permitted without proper pleading.

Upon scrutiny of the pleadings, I find that even if the Plaintiffs were to attempt to rely on the STA 1985, their pleadings are fatally insufficient and disclose no reasonable cause of action for breach of statutory duty.

For the reasons stated above, I am satisfied that the material facts relevant to the Questions of Law are undisputed; that the determination is purely one of contractual and statutory construction; the determination will dispose of the Plaintiffs' entire amended claim in paragraphs 34(a)-(c) of the Amended SOC; and this is a suitable case for the exercise of the Court's powers under Order 14A and/or Order 33 ROC 2012.

As the Questions of Law are all answered in favour of the Defendant, the Plaintiffs' claims in paragraphs 34(a), (b) and (c) of the Amended Statement of Claim are hereby dismissed with costs. Dated: 8 June 2026 Arziah binti Mohamed Apandi Judge Kuala Lumpur High Court NCvC 8 Wilayah Persekutuan Kuala Lumpur Plaintiff's Counsel : Mr. Ranjan N. Chandran (together with him Mr. Joshua Nathaneal Mogan Messrs Hakem Arabi & Associates Kuala Lumpur Tel. No.: 03-2282 2339 Email: info@hakemarabi.com.my / Ranjan.chandran@yahoo.com Defendant's Counsel : Mr. Justin Voon Tiam Yu (together with him Mr. Alvin Lai Kok Wing & Ms. Cheryl Leong Kit Yee) Messrs Justin Voon Chooi & Wing Kuala Lumpur Tel. No.: 03-2785 1015 Email: jcw@jcw.com.my / jcwefiling@gmail.com Cases referred: Chin Kok Woo & Ors v Sky Park Properties Sdn Bhd & Ors [2022] 4 CLJ 716 HC Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8 CA Kerajaan Negeri Kelantan v Petroliam Nasional Bhd and other appeals [2014] 6 MLJ 31 FC Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2008] 2 MLJ 812 CA Director of Forests, Sarawak & Anor v Racha ak Urud @ Peter Racha Urud & Ors and other appeals [2017] 4 MLJ 42 FC Bato Bagi & Ors v Kerajaan Negeri Sarawak & Another Appeal [2011] 8 CLJ 766,799 FC Theow Say Kow @ Teoh Kiang Seng, Henry v Teoh Kiang Hong [2014] 9 MLJ 32 CA Mulpha Pacific Sdn Bhd v Paramount Corporation Bhd [2003] 4 CLJ 294 CA The Royal Selangor Golf Club v Anglo-Oriental (Malaya) Sdn Bhd [1990] 1 CLJ 995 HC NVJ Menon v The Great Eastern Life Assurance Company Ltd [2004] 3 CLJ 96 CA Syarikat Binaan Utara Jaya (A Firm) v Koperasi Serbaguna Sungei Glugor Berhad [2009] 1 CLJ 786 CA Sun Life Assurance Co of Canada v Jervis [1944] 1 All ER 469 Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113 at 120 FC Bar Council Malaysia v Tun Dato' Seri Arifin Zakaria & Ors And Another Reference; Persatuan Peguam-Peguam Muslim Malaysia [2018] 10 CLJ 129 FC Husli @ Husly bin Mok (suing as administrator of the estate of Mok bin Tuan, deceased) v Superintendent of Lands and Surveys & Anor [2014] 6 MLJ 766 FC Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 6 MLJ 449 FC Chu Jin Hau & Ors v Sime Darby Brunsfield Holding Sdn Bhd & Ors [2025] MLJU 1256 HC Sigur Sinar Sdn Bhd v Bank Muamalat Malaysia Berhad [2017] MLJU 62 HC Nora Hayati Ismayatim v Amanah Raya Bhd [2012] 10 CLJ 634 HC TR Madel Anak Kandou & Ors v BBC Estate Sdn Bhd & Ors [2011] MLJU 520 HC Badan Pengurusan Bersama Kristal Heights 2 & Anor v Syarikat Sri Malawati Sdn Bhd & Anor [2019] 11 MLJ 22 HC Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697 FC State Government of Perak v Muniandy [1986] 1 MLJ 490 SC Anuar bin Mat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313 Blay v Pollard and Morris [1930] 1 KB 628 3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square [2026] CLJU 1464 FC Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd [2019] 8 CLJ 433 FC MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd [2025] 6 MLJ 471 FC Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210 Dato' Hamzah bin Abdul Majid v Omega Securities Sdn Bhd [2015] 6 MLJ 725 FC Renofac Builder (M) Sdn Bhd v Chase Perdana Berhad [2000] MLJU 752 HC Acts/Law referred: Order 14A 5 of the Rules of Court 2012 Order 33 Rule 2 of the Rules of Court 2012 Section 4 of the Strata Titles Act 1985 Section 68(1)(f) of the Courts of Judicature Act 1964 Section 6A of the Limitation Act 1953 Section 22 of the Limitation Act 1953 Articles referred: Marzukhi, M. A., Leh, O. L. H., Abdullah, Y. A., Khalid, N. S., Nasrudin, N., Zainol, H., & Abdul Apet, R. A. (2021). The development control process for residential and serviced apartments in Shah Alam, Selangor. Engineering Journal, 25(1), 199-209. https://doi.org/10.4186/ej.2021.25.1.199 Aminuddin, F. A., Ab Halim, N. A. H., Wai Lai, C., Mohd Said, N. A., & Md Azmi, F. A. (2026). Addressing the Systemic Quandaries in the Partial Certificate of Completion and Compliance in Mixed-Development Property: Key Stakeholders Perspective. Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 18(3), 04526014.