LIM Chiew Ming v LIM Chin Eng (JA-24NCvC-1160-09/2024)

By way of this Originating Summons, the Applicant sought, inter alia, the termination of co-proprietorship pursuant to sections 145 and 417 of the National Land Code [Act 828] and Orders 7 and 31 of the Rules of Court 2012 (“ROC 2012”), and consequential orders relating to the disposal of the property known as No. 6L, Jalan Tun Abdul Razak, 14/01/2026 14:44:05 JA-24NCvC-1160-09/2024 Kand. 40 S/N Gs6w4JzlvEKbs32sC8avow Susur 3, 80250 Johor held under the title HS(D) 23629 PTB 8641 Bandar Johor Bahru, Daerah Johor Bahru (the “Property”).

Upon consideration of the affidavits and written submissions filed by both parties, I have ordered the termination of the co-proprietorship and further directed a buy-out mechanism whereby the Respondent was to purchase the Applicant’s 50% interest at RM700,000.00 within six (6) months, failing which the Property was to be sold on the open market at the prevailing market value.

Below are my grounds of the decision.

The background facts in this case are gathered from the cause papers filed by the parties.

It is common ground that the Applicant and the Respondent are siblings and registered co-proprietors in equal shares of the Property.

However, despite of the clear joint ownership of the Property, the Applicant is dissatisfied with how the Property is dealt with by the Respondent which resulted an unequal enjoyment of the Property. It is only the Respondent who is enjoying the use and the benefit of the Property.

On 05.04.2024, the Applicant, through its solicitors, issued a letter to the Respondent to notify the Applicant’s intention to sell her half shares to the Respondent at RM700,000.00 as consideration, or alternatively sell the Property in open market at a price not less than RM1,400,000.00 with the proceeds of sale be shared equally between the Applicant and the Respondent.

The Respondent had no objections with the Applicant’s intention to sell her half shares and counter-proposed for a one (1) year period to find a potential buyer.

The Applicant rejected the Respondent’s counter-proposal and insisted for the immediate sale of the Property at open market.

During a meeting held on 18.04.2024, both parties reached an agreement to sell the Property at open market. It has been agreed during the meeting that the Respondent is only responsible to provide for a set of keys for the Applicant on or before 03.05.2024 to facilitate with the Property viewing arrangement for any potential buyers.

However, the Respondent failed to deliver and/or provide for the set copy of keys which caused further delay in the sale of the Property.

In such circumstances, the Applicant thus filed this present application as a resort to seek a practical way to have the matter resolved expeditiously.

During the hearing of the Enclosure 1, the Respondent informed that the Respondent agreed to buy the 50% of the Applicant’s interest in the Property and is seeking a deduction of half of the renovation costs amounting RM92,078,50 from the selling price.

ISSUES TO BE DETERMINED From the facts adduced through the Affidavits, it is not disputed that both Parties agreed to terminate the co-proprietorship and to sell the Property either to the Respondent or a third party in the open market.

During the hearing of Enclosure 1, the Respondent informed the Court that the Respondent agreed to buy the 50% of the Applicant’s S/N Gs6w4JzlvEKbs32sC8avow interest in the Property and seek the deduction of renovation costs from the proceed of the sales.

However, the Respondent later agreed that he would not claim the half of the renovation costs from the Applicant.

The only issues to be determined as follows:

whether the Property be sold immediately or within one (1) year period at a price not less than RM1,400,000.00 as expressly prayed by the Applicant; and

whether this Court can direct the Applicant to sell her 50% interest in the Property to the Respondent at a fixed price of RM700,000.00 or sell it at the open market at a price not less than RM1,400,000.00. ANALYSIS AND FINDINGS OF THE COURT

whether the Property be sold immediately or within one (1) year period on the open market at a price not less than RM1,400,000.00 as expressly prayed by the Applicant

Section 145 of Act 828 provides that— “(1) Where, in the case of any land vested in co-proprietors—

any of the co-proprietors will neither join in, nor consent to the making of, an application for partition under this Chapter; or

by reason of the operation of paragraph 136(1)(f) (as applied by section 141), partition of the land between all of the co-proprietors is incapable of being approved under this Chapter, the Court, subject to and in accordance with the provisions of any S/N Gs6w4JzlvEKbs32sC8avow law for the time being in force relating to civil procedure, may, on the application of any of the co-proprietors, make such order as it may think just for the purpose of enabling the co-proprietorship to be terminated.”. [Emphasis added]

Section 145 of Act 828 empowers the Court to terminate the co-proprietorship and decide the manner to sell off the property.

The Respondent has stated in paragraph 13.1 of its Affidavit in Reply (Enclosure 4) that he agreed to purchase the Applicant’s 50% interest in the Property which can be seen as follows: “13.1 Saya telahpun memaklumkan kepada Pemohon bahawa saya bersetuju dengan Harga Jualan RM1,400,000.00 sekiranya saya diberikan tempoh sehingga tahun 2026 untuk selesaikan semua urusan Hartanah tersebut oleh sebab Harga Jualan yang diminta oleh Pemohon melebihi harga pasaran semasa.”. [Emphasis added]

However, the Applicant argues that this Court ought to have ordered an immediate sale of the Property on the open market at a minimum price of RM1,400,000.00.

I refer to the case of Ong Chin Hai & Anor v Ong Hoo See & Ors [2022] 5 MLJ 690 where the facts of the case are identical to the present case. The Court of Appeal decided in page 702 that— “[37] Secondly, the learned counsel for the third and fourth defendants submitted that the plaintiffs failed to show that it appears necessary or expedient that the property should be sold. [38] On this issue, the learned JC found: S/N Gs6w4JzlvEKbs32sC8avow [33] In this matter, the plaintiffs and the defendants have equal shares in the said property. However, it is only the third defendant who is enjoying the use and benefit of said property. Aside from paying the utility bills in respect of the said property, the third defendant is not paying any rental for the use and enjoyment of the said property which is jointly owned in equal shares by all the plaintiffs and defendants. [34] Yet in all the affidavits filed by the third and fourth defendants, they have failed to show any legally acceptable justification for the third defendants to remain on the said property and continue to enjoy the benefits of the same without having to pay rent, much to the detriment of the plaintiffs and the first and second defendants. [35] Hence, due to the third and fourth defendants’ stance, there is a stalemate between the parties who are siblings and children of the deceased, as to how the said property is to be dealt with. [36] Consequently, from the averment of the parties in the affidavits filed therein, I am satisfied that the sale of the said property has become necessary and expedient to resolve the deadlock. As held by Abdul Malik Ishak J in Yong Hin Zeong, ‘the practical way and the only way to resolve the impasse between the plaintiffs and the defendants was to sell the property by way of a court order and that the sale be effected by public auction’. (Emphasis added) … [40] We see no reason to disturb the findings of the learned JC.”. [Emphasis added]

In the instant case, from the averment of both parties in the Affidavits, it is not disputed that the Parties have agreed to terminate the co-proprietorship and the Respondent agreed to buy 50% interest of the Applicant at the price of RM700,000.00. The disagreement between the Parties is the time to proceed with the sale.

I find the buy-out mechanism is a more appropriate manner of resolving the dispute between the Parties and the Respondent is given six (6) months’ time to purchase the Applicant’s 50% interest in the Property. I then directed a buy-out mechanism whereby the Respondent was to purchase the Applicant’s 50% interest at RM700,000.00 within six (6) months, failing which the Property was to be sold on the open market at the prevailing market value.

whether this Court can direct the Applicant to sell her 50% interest in the Property to the Respondent at a fixed price of RM700,000.00 or sell it at the open market at a price not less than RM1,400,000.00.

Through the notice of appeal, the Applicant contends that the direction compelling a buy-out at RM700,000.00 was erroneous and that an outright sale on the open market ought to have been ordered. The Applicant also contend that the Court should direct the valuation report to be prepared before the order was made.

Paragraph 4 of the Enclosure 1, the Applicant prays that the Property to be sold in the open market with the price not less than RM1,400,000.00. There is no valuation report submitted by the Applicant vide her Affidavit (Enclosure 2) and no explanation on how the Applicant determined the selling price of the Property is not less than RM1,400,000.00. The Respondent in paragraph 13.1 of Enclosure 4 stated that the selling price suggested by the Applicant is higher than the current market value. Despite that, the Respondent has agreed to purchase the Applicant’s 50% interest in the Property.

I find that the Applicant has misconceived the role of the Court. The duty to prepare the valuation report of the Property is on the Applicant S/N Gs6w4JzlvEKbs32sC8avow and not the Court. The valuation report should have been done by the Applicant before she suggested the selling price of the Property in the Enclosure 1. The selling price of RM1,400,000.00 asserted by the Applicant was agreed by the Respondent. Hence, there is no necessity to order the valuation report to be prepared.

Section 145 of Act 828 vested the Court with a broad and equitable discretion to facilitate the termination of co-proprietorship in a manner that is just, practical and proportionate. It does not confer an automatic right upon any co-proprietor to insist on an immediate open market sale.

In the present case, the material fact justifying the invocation of section 145 of Act 828 namely, that the co-proprietorship had become untenable and was not in dispute. The real disagreement concerned the appropriate mode of termination.

The buy-out mechanism ordered by this Court was neither arbitrary nor imposed unilaterally. It was consistent with the Applicant’s own pre-action position, wherein she had indicated her willingness to dispose of her 50% interest at RM700,000.00, being half of the RM1,400,000.00 valuation asserted by her, to the Respondent.

This can be seen in paragraph 2 of her solicitor’s letter dated 05.04.2024 (see exhibit LCM-4 of Enclosure 2) offered to sell her 50% interest in the Property to the Respondent. The Respondent has via letter dated 15.04.2024 (see exhibit LCM-5 of Enclosure 2) agreed to the Applicant’s proposal and suggested one (1) year period to find a potential buyer. However, the Respondent has subsequently agreed to purchase the Applicant’s 50% interest at RM700,000.00.

Hence, the order of the Court was accompanied by a clear safeguard in favor of the Applicant, namely that in the event of non-compliance within six (6) months, the Property would be sold on the open market. This ensured that the Applicant’s proprietary interest was adequately protected.

While an open market sale is one of the recognized methods of terminating co-proprietorship, it is not a remedy granted as of right. The Court is duty-bound to consider the interests of all co-proprietors and to avoid an outcome that would operate oppressively or inequitably against any party.

In the present case, an immediate forced sale at a minimum price dictated solely by the Applicant would have unduly prejudiced the Respondent’s proprietary interest and it is not consistent with the agreement of the Parties. The staged approach adopted by the Court was intended to strike a fair balance while ensuring finality.

I therefore find that the refusal to order an immediate open market sale was a reasoned and principled exercise of discretion, and not a failure to consider the Applicant’s prayer.

CONCLUSION Premise on the reasons stated above, I find that—

that the co-proprietorship had become untenable and should be terminated pursuant to section 145 of Act 828; and

the direction for a buy-out of the Applicant’s 50% interest at RM700,000.00 within six (6) months, subject to an open market sale upon default, was lawful, equitable and well within the discretion conferred by section 145 of Act 828.

Therefore, I allowed the Enclosure 1 for prayers 1, 3, 6 and 8. I further ordered the termination of the co-proprietorship and further directed a buy-out mechanism whereby the Respondent was to purchase the Applicant’s 50% interest at RM700,000.00 within six (6) months, failing which the Property was to be sold on the open market at the prevailing market value. Each party bear its own costs. Dated 6 January 2026. Signed by: SGD ……………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the Applicant: Ms. WC Yong and Ms. Syahira Nadia Messrs Yong Law Office Counsel/Solicitor For the Respondent: Datuk Khutubul Zaman