Low Jee Keong v Next Fortune Sdn. Bhd. (BA-22NCvC-145-04/2024)

This is an application by the Plaintiff in Enclosure 7 seeking Summary Judgment against the Defendant pursuant to Order 14 of the Rules of Court 2012.

The parties are in agreement as to the applicable legal principles in summary judgment applications. 27/01/2025 10:33:32 BA-22NCvC-145-04/2024 Kand. 31

The determinant issue is whether there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of this claim within the meaning of Order 14 rule 3(1) of the Rules of Court 2012.

It was contended by the Plaintiff that the answer to the above question is in the negative but the Defendant asserted otherwise.

The Plaintiff is an individual.

The Defendant is a company incorporated in Malaysia. It is duly licensed under the Housing Development (Control and Licensing) Act

The Defendant is the registered and beneficial owner of all that piece of 99 years leasehold land held under Master Title H.S.(D) 62402, P.T. No. 33976, Mukim Rawang, Daerah Gombak, Negeri Selangor, Malaysia. The Defendant has developed the Land into a guarded residential development known as “The Regency Parc” with a club house and facilities consisting inter alia of twenty-two (22) units of three storey semi-detached bungalows (“the Project”). [7] The pertinent facts leading to the present application by the Plaintiff in Enclosure 7 can be gleaned from the pleadings and submissions of the respective parties. [8] The parties have entered into three agreements. The First Agreement was the principal agreement entered by the Plaintiff and Defendant in 2015 to state and regulate their business relationship and the Second (set of) Agreements were merely sale and purchase agreements signed by the parties pursuant to the terms stated in the First Agreement. [9] According to the terms in the First Agreement, the Defendant has agreed to sell and the Plaintiff has agreed to purchase eleven (11) units of the three storey semi-detached bungalows in the Project in the course of being constructed on the Land and more particularly set out in Appendix A therein upon the terms and conditions set out in this First Agreement. [10] Following the execution of the First Agreement, the Plaintiff and the Defendant had also entered into eleven (11) Sale and Purchase Agreements in the form of Schedule G of the Housing Development (Control and Licensing) Regulations 1989 [Sub-regulation 11(1)], all dated 31 March 2015 (“the Schedule G SPAs”) for the sale and purchase of the 11 Properties. [11] Pursuant to the above First Agreement and the Schedule G SPAs, the Plaintiff has paid to the Defendant a total sum of RM7,284,764.69 for the 11 Properties (Unit No. 210, 211, 212, 213, 213A, 215, 216, 217, 218, 219 and 220) in the Project. [12] Under Clause 7(1) of the First Agreement, the Defendant was to have disposed of the 11 Properties on behalf of the Plaintiff within twenty-four (24) months from the date of the Schedule G SPAs but the Defendant failed to comply with the term set out under this clause. [13] In accordance with Clause 10 of the First Agreement, the Defendant has granted to the Plaintiff, an option ("the Buy Back Option”) for the Plaintiff to require the Defendant to buy back the 11 Properties which shall not have been sold at the expiry of twenty four (24) months from the date of the Schedule G SPAs at the purchase price of RM1,300,000.00 ("the Buy Back Price”) for each of the 11 Properties in the manner provided in Clause 10 of the First Agreement. [14] By a written notice dated 21 February, 2018 duly served by the Plaintiff to the Defendant, the Plaintiff exercised the Buy Back Option. By virtue of the exercise of this Buy Back Option, the Defendant was to have completed the buy back and pay the full Buy Back Price for the 11 Properties to the Plaintiff within three (3) months from the date of the notice of exercise of the Buy Back Option. [15] However, the Defendant did not complete the buy back and pay the Buy Back Price for the 11 Properties pursuant to the written notice of 21 February 2018. [16] In consideration of the Plaintiff agreeing to give time to the Defendant to complete the buy back, the Plaintiff and Defendant had thereafter entered into a Buy Back Settlement Agreement dated 25 October, 2018 to incorporate the various terms and conditions pertaining to the said buy back. Amongst the terms and conditions are as follows: • The buy-back shall be for only 7 units of the 11 Properties, being Unit No. 211, 212, 213, 213A, 215, 216 and 217 in the Project (the "Adjusted Buy Back Units") instead of all the 11 Properties. • The total Buy Back Price for the Adjusted Buy Back Units shall be RM9,156,695.32 ("Total Adjusted Buy Back Price") arrived at as follows: Phase Unit No. Net Purchase Price (RM) Buy Back Price as per Agreement Dated 31/3/15 (RM) PH3 211 1,000,000.00 1,300,000.00 PH3 212 1,000,000.00 1,300,000.00 PH3 213 1,000,000.00 1,300,000.00 PH3 213A 1,000,000.00 1,300,000.00 PH3 215 1,000,000.00 1,300,000.00 PH3 216 1,028,347.66 1,328,347.66 PH3 217 1,028,347.66 1,328,347.66 Total PH3 7,056,695.32 9,156,695.32 • The Defendant shall pay to the Plaintiff the Total Adjusted Buy Back Price as a debt due to Plaintiff as at the date hereof in full on or before 31 December 2018 ("Final Buy Back Date"). [17] The parties also agreed on the interest on delayed payment of the total adjusted Buy Back Price together with an item under the heading of Over Payment of the Purchase Price. [18] Of the balance four (4) units of the 11 Properties, namely Unit No. 210, 218, 219 and 220, it was agreed that one (1) unit, namely Unit 220 ("Unit 220"), shall accrue to the Plaintiff as the owner/proprietor with its discounted purchase price of RM1,103,162.74 deemed to be fully paid as security for the payment of the Interest and the Over Payment Sum and the rest of the three (3) units, namely Unit No. 210, 218 and 219 ("Deemed Withdrawn Units"), reverted back to the Defendant upon a deemed withdrawal of the purchase of these three (3) units by the Plaintiff by agreement of the parties. [19] The parties also agree that Unit 220 and all its ownership rights, title and interests shall accrue to the Plaintiff as the owner/proprietor with its discounted purchase price of RM1,103,162.74 deemed to be fully paid arising from the Interest and Over Payment Sum that are due and owing and a debt due by the Defendant to the Plaintiff as security for the payment of the Interest and the Over Payment Sum by the Defendant to the Plaintiff. [20] Finally, upon full payment of the Interest and Over Payment Sum, the aforesaid Unit 220 shall revert to the Defendant. [21] In short, under the terms of the said Final Settlement Agreement, the Defendant is obliged to fulfil among others the following: i. to pay the Plaintiff the total buy back price of RM9,156,695.32 by 31.12.2018; ii. to pay the Plaintiff interest of RM1,041,574.09 by 31.12.2018; iii. to pay the Plaintiff overpayment of the purchase price of RM228,069.37 by 31.12.2018; iv. in the event the Defendant fails to pay the abovementioned 3 sums totalling RM10,426,338.80 (RM9,156,695.32 + RM1,041,574.09 + RM228,069.37) by 31.12.2018, the Defendant is liable to pay the Plaintiff 6.5% per annum interest calculated on a day-to-day basis on the said total sum of RM10,426,338.80 from 31.12.2018 until full payment of the same. The Decision of this Court [22] The issue of whether there is an issue or question in dispute which ought to be tried will depend on the factual matrix of each case. In this regard, it is incumbent on this Court to examine the agreements entered into between the parties, where the rights and obligations of the parties are outlined. [23] Having perused the pertinent agreements, and the terms and conditions as set out therein, this Court is of the considered view that the liability of the Defendant has been established. [24] This Court does not find any merit in the Defendant’s argument that the Plaintiff’s involvement in the said project was merely as an investor and not a purchaser of the said properties and that this question of whether the Plaintiff was indeed an investor or a purchaser of the said properties amounts to a triable issue. [25] Regardless of whether the Plaintiff was an investor or a purchaser, the terms in the final settlement agreement has been expressly stated and there was a breach of the said terms by the Defendant. In addition, the agreements have referred the Plaintiff as the Purchaser and the Defendant as the Vendor. [26] To be clear, the Defendant on the one hand conceded that: “The contract is explicit in its terms; however, there are underlying intentions in this matter that remain unclear and are not explicitly reflected in the contract in which a trial is needed to explain on the intention and discrepancies”. [27] This Court is not persuaded by the above line of argument/reasoning. In view of the explicit and express terms in the agreements, there is no necessity for a trial. [28] This Court has also considered the argument advanced by the Defendant that the Plaintiff had purportedly represented to the Defendant that he would not enforce his rights under the said final settlement agreement and any payment to the Plaintiff must come from the successful sale of the said 7 properties, and this question of such a purported representation amounts to a triable issue. [29] As the Defendant has not adduced any credible evidence evincing or to support its contention that there was such an “implied term or understanding”, the argument of the existence of a triable issue is unmeritorious. [30] The assertation that “the Defendant relied on the Plaintiff's assurance and representation that the Plaintiff would not enforce the agreements to compel the Defendant to make payments before the properties were successfully sold to new buyers” is nothing more than a baseless claim unsupported by any credible evidence or documentation. [31] On the case of Capasia Solar One Ltd v Sun Energy Ventures Holdings (Labuan) Ltd & Ors [2021] AMEJ 08-3; [2021] CLJU 817; [2021] 12 MLJ 296; [2021] 5 MLRH 365 (“Capasia Solar”), relied by the Defendant, while the court in that case was entitled to its findings that the defendants had succeeded to achieve the relatively low threshold to resist summary judgment as they need only raise one triable issue to be given leave to defend, the same cannot be said of the present case. [32] Capasia Solar also held that it was a proper case for a trial of the action on the ground of the existence of “some other reason to be a trial of the claim”. In the present claim, this Court is not convinced of the existence of this alternative ground for the granting of leave to defend the action. In the present case, there is nothing further to be “investigated”, at least as far as the question of liability is concerned. [33] This Court reiterates the undisputed fact that, in the words of the Defendant, “the Defendant was supposed to sell the properties within two years but failed to do so.” The Defendant then sought to justify this breach by attributing it “to some extent … due to the COVID-19 pandemic that began in 2019.” Consequently, the Defendant claimed that it “had no alternative but to wait until the real estate market improved to sell the properties.” Replacing a definitive time period with one that is indefinite is, at best, unreasonable and, at worst, unjust to the Plaintiff. [34] During the hearing of this Summary Judgment application, the Defendant has argued that this Court should not award the Plaintiff the amount of RM13,915,172.05 sought by the Plaintiff in Enclosure 7 but should instead order that an assessment of damages to be made to determine the losses suffered by the Plaintiff. This gave rise to two additional issues for determination, namely: • Whether the orders or reliefs sought are in the nature of a specific performance order; and • Whether the interest of 6.5% per annum should be granted on the quantum awarded. [35] Once again, this Court is required to examine the terms in the agreements entered into between the parties, in particular the Settlement Agreement. Clause 4 of the Settlement Agreement provides that: “The Buy Back Purchaser shall pay to the Buy Back Vendor the Total Adjusted Buy Back Price as a debt due to Buy Back Vendor as at the date hereof in full on or before 31 December 2018 (“Final Buy Back Date”)”. [36] A reading of the above Clause 4, together with Clauses 5, 6. 10, 12 and 14 lead to the conclusion that the parties had agreed to treat the sums that have been calculated as debt owing to the Plaintiff which must be paid on or before 31st December 2018. [37] In view of the above findings, the Plaintiff is entitled to prayers (a) and (b) in Enclosure 7. [38] The Defendant is to pay costs of RM20,000 to the Plaintiff. Dated: 25 January, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Goik Kenzy with Jacinta Tan Szu Minn for the Plaintiff (Messrs. Jacinta Kenzy) Ganesh a/l Magenthiran with Alissa binti Mohd Sabri for the Defendant (Messrs. Ganesh Azhar & Associates)