Muhd Azfar Bin Muhammad Rafie v Sinerjuta Sdn. Bhd (WA-12ANCvC-207-11/2024)

This appeal arises from the decision of the learned Sessions Court Judge delivered on 12 November 2024 allowing the Respondent’s application under Order 18 rule 19(1)(a), (b), (c) and/or (d) of the Rules of Court 2012 (“ROC 2012”), thereby striking out the Appellant’s Writ and Statement of Claim on the 14/10/2025 12:00:59 WA-12ANCvC-207-11/2024 Kand. 20 S/N pcreynaCdkyTZ4rSISLliQ ground that the action amounted to an abuse of the process of court and ought instead to have been brought by way of judicial review pursuant to Order 53 ROC 2012.

The Appellant appeals to this Court contending that the Sessions Court erred both in fact and law by mischaracterising the nature of his claim, which was essentially contractual and private in nature, and by summarily striking out an action that disclosed a reasonable and arguable cause of action fit for adjudication at trial.

The Appellant purchased a housing unit from the Respondent developer under a Sale and Purchase Agreement (“SPA”) executed pursuant to the Housing Development (Control and Licensing) Act 1966 (“HDA 1966”) and the Housing Development Regulations 1989. Clause 27 of the SPA governs delivery of vacant possession, stipulating conditions precedent to be satisfied before possession may lawfully be deemed delivered.

On the date when keys were handed over, the contractual prerequisites under Clause 27 had not been met. The Appellant nevertheless took occupation of the premises, but contends that such physical occupation did not constitute valid delivery of vacant possession in law. S/N pcreynaCdkyTZ4rSISLliQ

Subsequently, the Respondent obtained from the Deputy Controller of Housing a letter dated 22 March 2018 granting an extension of time of 12 months from the issuance of the Certificate of Completion and Compliance (CCC) to deliver vacant possession (“the Extension Letter”). That letter imposed several conditions. The Appellant alleges that those conditions were not fulfilled, rendering the extension inoperative and reviving the original contractual delivery timeline.

Accordingly, the Appellant filed a writ action seeking, inter alia, a declaration that the Extension Letter had no effect because its conditions were unfulfilled, and that the Respondent remained bound by the original SPA completion period.

The Respondent applied to strike out the writ, asserting that the claim amounted to a challenge to the administrative decision of a public authority and therefore must be pursued by judicial review.

The key issues before this Court are:

Whether the Appellant’s claim, commenced by writ, constitutes a private-law contractual dispute or a public-law challenge requiring judicial review under Order 53 of ROC 2012; and S/N pcreynaCdkyTZ4rSISLliQ

Whether the Sessions Court correctly exercised its discretion in striking out the claim under Order 18 Rule 19 of ROC 2012. D. FINDINGS AND ANALYSIS

Approach to Striking Out

The law is settled that striking-out jurisdiction must be exercised sparingly and only in plain and obvious cases. If a pleading discloses any arguable question of law or fact warranting determination at trial, the action should be permitted to proceed. (See Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36; Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192; Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retnam [2011] 6 MLJ 70)

The rationale is that a statement of claim discloses a reasonable cause of action if, assuming the pleaded facts are true, the plaintiff would be entitled to some relief. Complex contractual or factual issues should not be summarily disposed of.

Nature Of The Appellant’s Claim

Upon careful examination of the pleadings, this Court finds that the Appellant does not impugn the power or legality of the Deputy Controller of Housing in issuing the Extension Letter. S/N pcreynaCdkyTZ4rSISLliQ

The Appellant expressly accepts that the Controller had authority to issue such letters under the HDA 1966. What is disputed is whether, as between the contracting parties, the Respondent may rely on that letter when its own conditions were allegedly unfulfilled.

The substance of the dispute therefore concerns the interpretation and effect of contractual obligations under the SPA, a private-law relationship, and not the legality or validity of an administrative act. Therefore, I believe that the case falls squarely within the civil jurisdiction of the court in contract, not within the supervisory jurisdiction governing public-law decisions.

As observed in Ahmad Jefri bin Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor [2010] 3 MLJ 145, where in this case there is no challenge made to the vires or legality of a public authority’s decision, but merely to the contractual consequences arising therefrom, hence a writ action is proper.

Further, the Court finds that the Appellant’s claim is not frivolous. It raises triable questions concerning:

Whether the conditions in the Extension Letter were fulfilled;

If not, whether the original contractual period for delivery revived; and S/N pcreynaCdkyTZ4rSISLliQ

Whether the Respondent thereby incurred liability for late delivery of vacant possession.

These are mixed questions of law and fact which require viva voce evidence and should not have been resolved at the interlocutory stage. The Court therefore finds that the learned Sessions Court Judge erred in law in concluding otherwise.

Interpretation of the Housing Legislation

The HDA 1966 and its regulations are social legislation enacted to protect homebuyers, supposed to be a weaker class of persons, against developers who are in a stronger bargaining position. This principle was restated emphatically by the Federal Court in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2021] 2 CLJ 441 and followed in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd [2024] 8 CLJ

519.

Accordingly, I believe that courts must interpret statutory contracts under the HDA in a manner that affords maximum protection to purchasers.

In this context, striking out the Appellant’s claim, which seeks to vindicate his contractual rights under the statutory SPA, runs contrary to that protective legislative intent. The proper forum for S/N pcreynaCdkyTZ4rSISLliQ testing such claims is through a full hearing on the merits, not summary dismissal.

Public-Law Versus Private-Law Demarcation

The Respondent contends that the Appellant’s claim amounts to a challenge against the decision of the Deputy Controller of Housing, and therefore ought to have been pursued by way of judicial review. This contention, in my opinion, is misconceived.

The cases relied upon by the Respondent, YKK (M) Sdn Bhd v Pengarah Tanah dan Galian Johor [2021] 6 MLJ 496, concern situations where the plaintiffs directly challenged the decisions of statutory authorities. Those cases turn on public-law review of administrative discretion.

The present matter is distinguishable. The Appellant does not seek to quash or invalidate the Deputy Controller’s extension-of-time letter. Rather, he asserts that, as between himself and the Respondent, the contractual benefit of that letter could not be invoked because the Respondent failed to fulfill the conditions attached to it. The dispute thus lies firmly within the sphere of private contractual enforcement, not public-law supervision.

Accordingly, this Court finds that the Sessions Court misdirected itself in law by treating a private-law dispute as an administrative challenge and by invoking Order 53 ROC 2012 as the exclusive mode of relief. S/N pcreynaCdkyTZ4rSISLliQ

The Respondent’s reliance on the above public-law authorities is misplaced, as they do not govern disputes founded upon the contractual obligations of parties under a statutory sale and purchase agreement.

For all the foregoing reasons, the Court holds that:

The Appellant’s action discloses a reasonable and arguable cause of action grounded in contract;

The claim involves triable issues unsuitable for summary determination; and

The action is properly commenced by writ and not by judicial review.

Accordingly, the appeal is allowed. The order of the Sessions Court dated 12 November 2024 striking out the Appellant’s Writ and Statement of Claim is set aside.

The Appellant’s writ action shall proceed to trial on the merits before the Sessions Court. Costs of this appeal are awarded to the Appellant at RM 3,000 to be paid by the Respondent. S/N pcreynaCdkyTZ4rSISLliQ Dated : 13th October 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR For The Appellant : Sharifah Imamah Huwairi binti Syed Roslem & Badrina Ibtisam Messrs. Rodney & Co Advocates & Solicitors For The Respondent : Loh Suk Hwe Messrs. Joshua Aaron Keet Advocates & Solicitors S/N pcreynaCdkyTZ4rSISLliQ