Miniso Winky (M) Sdn Bhd v Redland Usj Summit Properties Sdn Bhd (WA-22NCvC-614-09/2024)

The Plaintiff has applied for an injunction to refrain the Defendant or his representatives in dealing in any manner with the property identified as the Ground Floor (Excluding Hotel Lobby Area) and 20/11/2024 11:59:31 WA-22NCvC-614-09/2024 Kand. 27 entire 1st Floor of Yayasan Selangor Building (“the Building”) at 99 Jalan Bukit Bintang, Mukim Kuala Lumpur, Wilayah Persekutuan.

The provisions of law relied upon by the Plaintiff are Order 29 (1) and (2) Rules of Court 2012 (“the Rules”), section 50 and 51 Specifics Relief Act, paragraph 6 of the schedule of the Court of Judicature Act 1964 and finally the inherent discretion of Court under Order 92 (4) of the Rules.

For ease of reference all the provisions of law relied upon are reproduced here: Order 29 (1) and (2) of the Rules 1. Application for injunction (O. 29 r. 1)

An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's originating process, counterclaim or third party notice, as the case may be.

Such application may be made by a notice of application supported by an affidavit and where the case is one of urgency, may be made ex parte. Sections 50 and 51 of the Specific Relief Act 1950 Section 50 Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual. Section 51 1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court. They may be granted at any period of a suit, and are regulated by the law relating to civil procedure.

A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. Schedule of Court of Judicature Act 1964 6. Preservation of property Power to provide for the interim preservation of property the subject-matter of any cause or matter by sale or by injunction or the appointment of a receiver or the registration of a caveat or a lis pendens or in any other manner whatsoever. Order 92(4) of the Rules 4. Inherent powers of the Court (O. 92 r. 4) For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. Brief Facts 4. The dispute between the Plaintiff stems from a sub tenancy Final agreement between the Plaintiff and the Defendant which was subject to a formal Tenancy Agreement and delivery of vacant possession of the Building.

In pursuance of the Final agreement, agreement the Plaintiff has already paid the agreed deposit of RM300,000 for the purposes of entering possession and carrying out the necessary renovations.

Despite having paid the agreed deposit the Defendant have not responded in finalising the formal Tenancy Agreement or delivering the vacant possession of the Building prompting the Plaintiff to file this suit seeking various Declaration from Court for the enforcement of the Final agreement between the parties. Grounds in support of the Plaintiff’s application 7. The Plaintiff contends that the Court has the authority to grant the ad interim injunction to preserve the property so as to prevent irreparable damage and to maintain the status quo until the dispute between the Plaintiff and the Defendant is resolved. Defendant’s ground of objection 8. Basically the Defendant asserts that the parties are still in negotiations and no finality for the tenancy has been reached. More ever the deposit paid by the Plaintiff has been returned to the Plaintiff. The Court’s decision 9. The material issue to be determined is whether the Final agreement was an enforceable contract or a conditional contract subject to the entering of a formal Tenancy Agreement.

In the event the Court decides that the Final agreement is an enforceable contract between the Plaintiff and the Defendant then the Defendant must fulfil the promises under the Final agreement which includes handing over vacant possession.

However, if the Plaintiff’s application for an injunction is not allowed the Defendant will be able to deal with the Building in any manner to the detriment of the Plaintiff’s rights under the Final agreement. The Plaintiff’s right to tenancy will be denied and at most the Plaintiff can only claim for any losses suffered from the breach of the Final agreement.

In this case therefore the balance of convenience is in allowing the Plaintiff’s application as it is necessary to preserve status quo of the Building and to prevent an irreparable damage to the Plaintiff, until the dispute is determined by the Court. There are plethora of case on both preserving a property and preventing irreparable damage which the Court deemed it not necessary to delve in here. Conclusion 13. In the upshot the Court allowed the Plaintiff’s application with a cost of RM3,000. Dated: 20.11.2024 Sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Dato' Arthur Wang; Wong Hui Hong; Ezryl Azlyzan Level 11 & 12, Menara Dungun 46, Jalan Dungun Taman Damansara Endah 50490 Kuala Lumpur For the Defendant: Nama Peguamcara: Ahmad Fadli Salleh Tetuan Fadzil & Eddin, 53-1, Jalan Mahkota Residence 1, Bandar Mahkota Cheras, 43200 Cheras, Selangor Darul Ehsan.