Meijatina Sari Johanna v Encorp Iskandar Development Sdn Bhd (BA-22NCvC-129-03/2022)

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TAN TIAM POH 29/04/2026 09:47:13

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ANGELA MANOLI HEENATIMULLA (MRS ANGELA

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TAN SIO MUI (CHEN XIAOMEI)

PB TRUSTEE SERVICES BERHAD (NO. SYARIKAT.: 196801000374 (7968-T))

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BABU S/O RAMASAMY KOH SOCK KOON …PLAINTIFFS DAN ENCORP ISKANDAR DEVELOPMENT SDN BHD (NO. SYARIKAT: 890165-W) …DEFENDANT

This is the Defendant’s application under Order 14A of the Rules of Court 2012 vide Enclosure 59.

Having considered the affidavits filed by the parties, the written and oral submissions, I allowed the Defendant’s application in part.

In consequence, the Amended Statement of Claim of all Plaintiffs was dismissed, save for Plaintiffs No. 135 and 136. The claim of Plaintiffs No. 135 and 136 was allowed in the sum of RM299,977.39 together with interest at the rate of 5% per annum from the date of filing of the action until full payment. I further ordered costs of RM5,000.00 to the Defendant, to be paid by all Plaintiffs except Plaintiffs No. 135 and 136.

The Defendant and Plaintiffs No. 135 and 136 now appeal to the Court of Appeal. These are my grounds.

The Plaintiffs are purchasers of residential units developed by the Defendant. The Defendant is the developer of the housing project known as “Encorp Marina Puteri Harbour” on the land held under hakmilik No. H.S.(D) 458136, P.T. No. PTD 166961, Mukim of Pulai, District of Johor Bahru, State of Johor (the project).

Each of the Plaintiffs entered into a sale and purchase agreement (the SPAs) with the Defendant. It is not disputed that the agreements are in substantially similar form including the timeline for delivery of vacant possession and the entitlement to liquidated ascertained damages (LAD) in the event of delay.

The Plaintiffs’ claim is for LAD for the alleged late delivery of vacant possession. The Plaintiffs contend that the Defendant failed to deliver vacant possession within the time stipulated under the agreements and that they are therefore entitled to

The Defendant does not dispute that the SPAs were executed or that vacant possession was eventually delivered. However, the Defendant disputes the Plaintiffs’ entitlement to LAD on the grounds raised in the present application.

It is common ground from the parties’ submissions that the dates of execution of the SPAs, the relevant contractual provisions on delivery of vacant possession, and the dates of delivery or deemed delivery of vacant possession are matters evidenced by documents and are not in dispute.

The Defendant contends that the majority of the Plaintiffs executed settlement letters and received payments described as full and final settlement of their LAD claims. However, the Plaintiffs do not accept that such settlement bars their present claims, and dispute the validity and effect of those settlements.

On the other hand, the Plaintiffs No. 135 and 136 stand on a different footing. They did not execute any settlement letters with the Defendant, and this was not disputed. It is also accepted that their cause of action accrued on 8.2.2018.

The present action was commenced on 28.3.2022.

By Enclosure 59, the Defendant applies under Order 14A of the Rules of Court 2012 and/or Order 33 and/or the inherent jurisdiction of the Court for the determination of certain questions of law without a full trial.

The Defendant seeks, in particular, for the following questions of law to be determined: a. Sama ada tuntutan Plaintif-Plaintif bagi ganti rugi jumlah tertentu (liquidated ascertained damages) (“LAD”) di bawah Perjanjian-Perjanjian Jual Beli antara Plaintif-Plaintif dan Defendan (“SPA-SPA tersebut”) adalah terhalang di bawah Seksyen 6 Akta Had Masa 1953?; b. Sama ada Plaintif-Plaintif adalah terikat kepada terma-terma SPA-SPA tersebut yang ditandatangani?; c. Sama ada Plaintif-Plaintif telah mengenepikan (dispense with) hak dan/atau diestop daripada menuntut LAD selepas menandatangi surat penyelesaian dan menerima bayaran penuh dan muktamad daripada Defendan?; dan d. Sama ada Plaintif-Plaintif akan memperolehi pengkayaan secara tidak adil dan/atau tidak wajar ke atas Defendan sebagai pemaju perumahan sekiranya tuntutan LAD terhadap Defendan dibenarkan?

The Defendant further seeks that in the event the above questions, or any of them, are answered in the affirmative in favour of the Defendant, consequential orders be made to dismiss the Plaintiffs’ claims with costs.

The Plaintiffs oppose the application and contend that the matter is not suitable for determination under Order 14A.

The Plaintiffs also raise an additional question, namely, whether estoppel may operate against statutory provisions in the context of their claim for LAD.

The following issues arise for determination:

Whether the questions posed by the Defendant under Enclosure 59 are suitable for determination under Order 14A of the Rules of Court 2012;

Whether the Plaintiffs’ claim for liquidated ascertained damages is barred under section 6 of the Limitation Act 1953;

Whether the Plaintiffs are bound by the terms of the sale and purchase agreements executed between the parties;

Whether the Plaintiffs have waived their rights or are estopped from claiming liquidated ascertained damages by reason of the settlement letters and payments received;

Whether estoppel may operate against statutory provisions in the context of the Plaintiffs’ claim; and

Whether the claim of Plaintiffs No. 135 and 136 stands on a different footing from the other Plaintiffs.

Order 14A of the Rules of Court 2012 provides that the Court may determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings without a full trial, where it appears to the Court that such question is suitable for determination and that such determination will finally determine the entire cause or matter or any claim or issue therein.

It is well established that the jurisdiction under Order 14A is to enable the Court to dispose of a matter expeditiously where the issue turns on a pure question of law or the construction of undisputed documents, thereby avoiding the delay and expense of a full trial. In Datuk Kim Koh Khun @ Kim Koh Khen v Tan Ah Tong [2014] 6 MLJ 747, the Court of Appeal recognised that Order 14A serves the purpose of early disposal where appropriate.

The principles governing the exercise of this jurisdiction are settled. The question of law or construction must be clearly identifiable from the pleadings and must be capable of determination without the need for a full trial. Where there are conflicting allegations of fact which affect the determination of the question, or where the facts in issue are interwoven with the legal issues raised, the procedure under Order 14A is generally not appropriate. This was emphasised by the Federal Court in Thein Hong Teck & Ors v Mohd Afrizan bin Husain & Anor [2012] 2 MLJ 299 and reaffirmed in Kerajaan Negeri Kelantan v Petroliam Nasional Bhd [2014] 6 MLJ 31.

However, the mere existence of some factual disputes does not automatically preclude the Court from proceeding under Order 14A. The Court may consider whether the undisputed or agreed facts are sufficient to enable the determination of the question of law. In Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8, the Court of Appeal held that the Court must identify the material facts which are not in dispute and determine whether the question of law is a dominant issue capable of disposing of the matter.

It is also settled that the Court should not determine questions of law under Order 14A on assumed or hypothetical facts. All material facts necessary for the determination must be established or not in dispute. Where the issues of fact are closely intertwined with the legal issues, the Court should not split the inquiry and give a ruling in vacuo. This principle is reflected in cases such as Low Chee & Sons Sdn Bhd v Extreme System Sdn Bhd [2013] 1 MLJ 650 and CAS v MPPL & Anor [2019] 4 MLJ 243.

Even where the requirements are satisfied, the Court retains a discretion whether to entertain the application. The Court must consider whether it is appropriate in the circumstances to determine the matter without a full trial. This discretion was emphasised in Bato Bagi & Ors v Kerajaan Negeri Sarawak [2011] 6 MLJ 297.

Upon determining the question of law, the Court has wide powers to make such order or judgment as it thinks just, including dismissing the action or entering judgment accordingly. Analysis and Findings Suitability under Order 14A

The first issue is whether the questions posed by the Defendant are suitable for determination under Order 14A.

The Plaintiffs contend that the issues raised are not pure questions of law and are intertwined with disputed facts which require a full trial. The Defendant, on the other hand, submits that the questions concern the construction of the SPAs and the legal effect of undisputed documents, and are therefore suitable for determination at this stage.

In considering this issue, I am guided by the Federal Court decision in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd & Ors [2024] 6 MLRA 1 (FC), which emphasises that the Court must examine the substance of the dispute and not merely how the questions are framed by the parties. Where the dispute turns on the legal effect of documents which are not in dispute, the Court should not defer the matter to trial merely because the parties assert that there are factual disputes.

In the present case, the material facts relevant to the questions posed are not in dispute. The execution of the settlement letters by the majority of the Plaintiffs are matters evidenced by documents. While the Plaintiffs dispute their validity and effect, their existence is not seriously challenged.

The issues raised by the Defendant concern when the cause of action for LAD accrues, whether the Plaintiffs are bound by the SPAs executed, the legal effect of the settlement letters, and the consequences flowing from these findings.

In substance, these are issues of construction of the SPAs and the settlement letters, and the application of the Limitation Act

They do not require the Court to make findings on disputed primary facts or to assess credibility of witnesses.

Although the Plaintiffs assert that there are disputes of fact, I am not persuaded that such disputes are material to the determination of the questions posed. The Plaintiffs’ objections, in essence, raise legal arguments on the validity and effect of the contractual terms and the settlement arrangements, rather than disputes requiring oral evidence. Those matters do not affect the construction of the settlement letters or the legal consequences flowing from their terms, which are the issues before the Court.

In these circumstances, I am satisfied that the questions posed are suitable for determination under Order 14A. The determination of these questions will substantially dispose of the Plaintiffs’ claims.

I therefore proceed to determine the questions of law posed by the Defendant.

The next issue is whether the Plaintiffs’ claim for LAD is barred under section 6 of the Limitation Act 1953.

The Plaintiffs submit that the cause of action for LAD accrues only upon delivery or deemed delivery of vacant possession under the SPAs. The Defendant submits that the cause of action accrued earlier, either from the date of execution of the SPAs or from the point when the alleged breach was apparent from the contractual terms.

It is trite that a cause of action accrues when there exists a complete set of facts which entitles a plaintiff to bring an action. In Limitation Act jurisprudence, the Court looks at when the Plaintiffs first has the right to sue. This principle is well established in cases such as Nasri v Mesah [1971] 1 MLJ 32 and AmBank (M) Bhd v Abdul Aziz Hassan & Ors [2010] 3

In the context of a claim for LAD for late delivery of vacant possession, the entitlement to such damages arises upon the failure of the developer to deliver vacant possession within the time stipulated under the agreement. The Federal Court in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2021] 2 MLJ 60 recognised that LAD is a contractual entitlement tied to the developer’s obligation to deliver vacant possession within the prescribed period.

On the materials before me, I accept the Defendant’s submission that, in respect of the majority of the Plaintiffs, the claim is time-barred. The SPAs executed by these Plaintiffs expressly provided for the relevant contractual timeline. The alleged breach, as framed by the Plaintiffs, arises from the Defendant’s failure to comply with what they contend to be the lawful period for delivery.

In this regard, I am guided by the approach taken in Obata-Ambak Holdings where the Federal Court emphasised that the Court must look at the substance of the contractual terms and the legal effect of the documents in determining when the cause of action arises. Where the relevant dates and contractual provisions are not in dispute, the question of accrual may be determined as a matter of law.

Further, the majority of the Plaintiffs had executed settlement letters and accepted payments described as full and final settlement of their claims for LAD. While I will address the legal effect of those settlement letters separately under the issue of waiver and estoppel, they reinforce the Defendant’s position that the claims, as framed, cannot now be maintained.

The position is different for Plaintiffs No. 135 and 136. It is not disputed that they both did not execute any settlement letters with the Defendant. It is also accepted that the cause of action in their case accrued on 8.2.2018.

On that basis, applying section 6 of the Limitation Act 1953, the limitation period runs from that date. The present action was commenced on 28.3.2022, which is within the prescribed six-year period.

I therefore find that the claim of Plaintiffs No. 135 and 136 is not time-barred.

Accordingly, the defence of limitation succeeds against all Plaintiffs except Plaintiffs No. 135 and 136, whose claims are within time.

The next issue is whether the Plaintiffs are bound by the terms of the SPAs executed between the parties.

The Plaintiffs submit that the SPAs are statutory contracts governed by Schedule H of the Housing Development (Control and Licensing) Regulations 1989 and that any deviation from the prescribed form, in particular the extension of time for delivery of vacant possession, is invalid and unenforceable. The Defendant submits that the SPAs were executed by the Plaintiffs with full knowledge of their terms, including the extended period, and that the Plaintiffs are bound by those terms.

It is not disputed that the Plaintiffs executed the SPAs. As a general principle, parties are bound by the terms of the contract they have freely entered into. This principle was affirmed by the Federal Court in PJD Regency Sdn Bhd, where it was held that the rights and obligations of the parties are governed by the terms of the statutory contract.

However, it is equally settled that the SPAs in housing development are statutory in nature. The terms prescribed under Schedule H are mandatory and cannot be varied by agreement unless permitted by law. In PJD Regency Sdn Bhd, the Federal Court emphasised that the statutory form is intended to protect purchasers and cannot be undermined by contractual variations which are inconsistent with the prescribed terms.

In this regard, the Plaintiffs contend that the extension of time for delivery of vacant possession beyond the statutory period is invalid. The Defendant, on the other hand, relies on the approval obtained from the relevant authority prior to the execution of the SPAs.

The effect of such approval must be considered in light of the subsequent development of the law. In Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor [2020] 1 MLJ 281, the Federal Court held that the Controller has no power to grant extensions of time beyond the prescribed Schedule H period.

However, the Federal Court in Obata-Ambak Holdings Sdn Bhd clarified that the decision in Ang Ming Lee operates prospectively. The court recognised that extensions of time granted and incorporated into SPAs prior to that decision remain valid and binding, having regard to the need for certainty and the settled expectations of the parties.

The Federal Court further made clear that parties who entered into SPAs based on approvals granted by the relevant authority prior to the change in law should not be retrospectively affected.

Applying that principle, the extensions of time incorporated into the SPAs in the present case, having been approved prior to Ang Ming Lee, remain valid and binding on the Plaintiffs.

On the materials before me, the existence of such approval is not disputed. The question therefore is the legal effect of such approval on the contractual terms agreed between the parties.

I accept the Defendant’s submission that where the variation to the prescribed terms has been approved by the relevant authority prior to the execution of the SPAs, and such terms are expressly incorporated into the agreements signed by the Plaintiffs, the Plaintiffs are bound by those terms.

In Obata-Ambak Holdings, the Federal Court emphasised that the Court must give effect to the contractual terms agreed between the parties where the documents are clear and unambiguous, and that the Court should not rewrite the bargain between the parties.

Again, applying that principle, I am satisfied that the SPAs executed by the Plaintiffs govern the parties’ relationship, including the agreed timeline for delivery of vacant possession.

The Plaintiffs’ argument that the terms are invalid by reason of their statutory nature does not, in the circumstances of this case, displace the binding effect of the SPAs as executed.

Accordingly, I find that the Plaintiffs are bound by the terms of the SPAs they have signed.

The next issue is whether the Plaintiffs have waived their rights or are estopped from pursuing their claims for LAD by reason of the settlement letters and the payments received.

The Defendant relies on settlement letters said to have been executed by the majority of the Plaintiffs, pursuant to which payments were made and described as full and final settlement of their LAD claims. The Plaintiffs do not accept that such settlement bars their present claims. They contend that the sums paid were inadequate and that the circumstances surrounding the settlement require examination at trial.

On the material before me, the existence of settlement letters and the fact that payments were made pursuant to those letters are not seriously disputed as to their existence, although their validity and effect are challenged. The dispute centres on the legal effect of those settlements.

As a general principle, where a party accepts payment expressly stated to be in full and final settlement, that party is bound by the terms of the settlement. The law recognises that a clear representation, reliance, and resulting detriment may give rise to estoppel (refer to Kerajaan Malaysia v Yap Peng [1987] 2 MLJ 311 and Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331, where the courts held that a clear representation, reliance, and detriment may give rise to estoppel).

In the present case, the settlement letters relied upon by the Defendant expressly describe the payments as full and final settlement of the Plaintiffs’ claims for LAD. The Plaintiffs who accepted such payments did so on the terms stated in those letters.

In these circumstances, I am satisfied that the elements of estoppel are made out in respect of those Plaintiffs who entered into the settlement arrangements and accepted payment on that basis. It would be inequitable to permit those Plaintiffs to retain the benefit of the payments received while at the same time pursuing further claims for LAD.

The Plaintiffs further contend that estoppel cannot operate because the claim arises from a statutory regime. I address that legal issue separately below.

For the reasons above, I find that the Defendant has established waiver and estoppel against those Plaintiffs who executed the settlement letters and accepted payment in full and final settlement.

The next issue is whether allowing the Plaintiffs’ claim for LAD would result in unjust enrichment.

The Defendant submits that, in light of the settlement payments already made to the majority of the Plaintiffs on a full and final basis, any further recovery would amount to unjust enrichment. The Plaintiffs dispute this and maintain that their claim is a contractual and statutory entitlement.

In my view, this issue is consequential to the earlier findings.

As to the majority of the Plaintiffs, I have found that they are bound by the settlement letters and estopped from pursuing further LAD claims. In those circumstances, any additional recovery beyond what has been accepted as a full and final settlement would be inconsistent with the parties’ agreed position and would operate to the Defendant’s prejudice. It would amount to a double recovery.

The principle against unjust enrichment operates to prevent such outcome. As recognised in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441, the law does not permit a party to retain a benefit in circumstances where it would be unjust to do so.

In respect of Plaintiffs No. 135 and 136, the position is different. As they did not execute any settlement letters and did not receive any payment in full and final settlement, there is no question of double recovery. Their entitlement, if established, arises from the SPAs and the applicable legal framework.

Accordingly, the issue of unjust enrichment does not arise in relation to Plaintiffs No. 135 and 136.

For clarity, Plaintiffs No. 135 and 136 stand differs from the other Plaintiffs, though at the risk of repetition, their position must be considered separately.

First, on limitation.

It is not disputed that Plaintiffs No. 135 and 136 did not execute any settlement letters. The parties also accept that the cause of action in their case accrued on 8.2.2018.

Applying section 6 of the Limitation Act 1953, time begins to run from the date the cause of action accrues, that is, when the Plaintiffs first had the right to sue. On the accepted facts, the present action filed on 28.3.2022 is within the six-year limitation period.

Accordingly, their claim is not time-barred.

Second, on waiver and estoppel.

Unlike the majority of the Plaintiffs, Plaintiffs No. 135 and 136 did not sign any settlement letters and did not accept any payment described as a full and final settlement. There is therefore no factual basis to support any representation, reliance or conduct giving rise to waiver or estoppel.

The Defendant’s reliance on settlement and estoppel does not apply to them.

Third, on the binding effect of the SPAs.

Plaintiffs No. 135 and 136 are bound by the SPAs they have executed. Their entitlement to LAD therefore arises from and must be assessed in accordance with the terms of the SPAs, read together with the applicable legal principles governing such agreements.

There is no basis, on the material before me, to disregard the contractual framework governing their entitlement.

Fourth, on entitlement to LAD.

In the absence of any bar arising from limitation, waiver or estoppel, Plaintiffs No. 135 and 136 are entitled to pursue their claim for LAD.

The amount of RM299,977.39 represents the LAD computed based on the contractual terms and the period of delay as accepted on the materials before the Court. The Defendant did not specifically challenge this computation on any separate legal ground applicable to these Plaintiffs and no alternative computation was put forward on the materials before the Court.

In the circumstances, I am satisfied that Plaintiffs No. 135 and 136 are entitled to judgment in the said sum together with interest. Whether Estoppel May Operate Against Statutory Provisions 91. The Plaintiffs’ rights to LAD arise from a statutory form of contract. However, the present issue concerns not the validity of the SPAs at the point of formation, but the legal effect of settlement entered into after the cause of action has arisen. In that context, the question is whether such accrued rights may be compromised.

The Plaintiffs contend that estoppel cannot operate against statutory rights, in particular in relation to claims for LAD arising under the statutory form of the SPAs.

There is no absolute rule that estoppel cannot apply in relation to statutory rights. In Boustead Trading, the Supreme Court recognised that estoppel may operate notwithstanding statutory provisions, unless the statute expressly or by necessary implication prohibits such operation.

The correct approach is therefore to examine the statutory framework to determine whether it precludes waiver or settlement of the rights in question.

The SPAs in this case are prescribed under Schedule H of the Regulations. While the statutory form is mandatory and intended to protect purchasers, there is no provision which renders a settlement of a claim for LAD, entered into after the cause of action has accrued, void or unenforceable. In the absence of such prohibition, parties remain at liberty to compromise their disputes. A clear and voluntary settlement, once entered into, must be given effect according to its terms.

In the present case, the settlement letters relied upon by the Defendant represent agreements reached after the cause of action had arisen. There is nothing in the statutory framework which prevents such settlement or renders it ineffective.

Accordingly, the Plaintiffs’ contention that estoppel cannot operate in this context is not sustainable.

For the reasons set out above, the questions of law posed are answered as follows. 1) The Plaintiffs’ claim for liquidated ascertained damages is barred under section 6 of the Limitation Act 1953 in respect of all Plaintiffs except Plaintiffs No. 135 and 136. 2) The Plaintiffs are bound by the terms of the sale and purchase agreements executed between the parties. 3) The majority of the Plaintiffs, having executed the settlement letters and accepted payments in full and final settlement, have waived their rights and are estopped from pursuing further claims for liquidated ascertained damages. 4) The Plaintiffs’ contention that estoppel cannot operate against statutory provisions is rejected.

In light of the above findings, the Defendant’s application is allowed.

Accordingly:

The Writ Terpinda and Pernyataan Tuntutan Terpinda are dismissed in respect of all Plaintiffs except Plaintiffs No. 135 and 136;

Judgment is entered in favour of Plaintiffs No. 135 and 136 against the Defendant in the sum of RM299,977.39;

Interest at the rate of 5% per annum is awarded on the said sum from the date of filing of the action until full payment;

Costs of RM5,000.00 are awarded to the Defendant to be paid by all Plaintiffs except Plaintiffs No. 135 and 136, subject to allocator. Dated this: 22nd April 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Representative: For the Plaintiffs : Wong Renn Xin Messrs K. L. Wong For the Defendant: Muhammad Asyraf bin Abd Aziz together with Kavyaasrini a/p S. Mahendran