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1 IN THE COURT OF APPEAL AT PUTRAJAYA, MALAYSIA (CIVIL APPELLATE DIVISION) CIVIL APPEAL NO : . BETWEEN BANDAR AKADEMIA SDN BHD (NO. SYARIKAT : 8295-X) …APPELLANT
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WA-22NCVC-632-11/2017 (Lamp. 21)
High Court of Malaysia18 Apr 2018
The written judgment as the court issued it, with the coram, case number, and source links. Every paragraph has its own anchor.
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1 IN THE COURT OF APPEAL AT PUTRAJAYA, MALAYSIA (CIVIL APPELLATE DIVISION) CIVIL APPEAL NO : . BETWEEN BANDAR AKADEMIA SDN BHD (NO. SYARIKAT : 8295-X) …APPELLANT
1
NATRAH BINTI ABD RAZAK
2
AHMAD AZID TAHAR BIN AHMAD LITIFFI
3
SUKINAH BINTI MAT DARUS
4
AMIRI @ MOHD AMIRI BIN MUSTAFFA
5
RAHIMAH BINTI PILOS
6
LOW YOON PIN
7
LOW KENG YUEN
8
HAN POH IN (NO. K/P : 600614-01-5100) 2
9
HUNG HENG HONG
10
MAHFUZAH BINTI MOHAMMED ZABIDI
11
MIMI BAIZURA BINTI ZULKAFLI
12
MOHAMAD AZAHAR BIN SHAUKANI
13
ABD RAZAK BIN MOHD ZAILAN
14
RADZIAH BINTI IBRAHIM
15
MOHD ARIF BIN ABDULLAH
16
SITI MUNIRA BINTI ISHAK
17
LOW HUAT CHUAN
18
ONG SOO CHIN
19
SITI ROHAIDA BINTI HARUN
20
SITI NOOR ZAHARAH BINTI ZAN
21
MUSTAFA BIN MOHAMED ALI (NO. K/P : 820802-08-6699) 3
22
MUHAMMAD IBRAHIM BIN JANI
23
MOHD TARMIZI BIN CHE HASSAN
24
ANIZA BINTI MOHAMED NOR
25
MUAZAM BIN MUNAJAR @ MUNAJAT
26
NORZANALILA BINTI MOHD FADZIL
27
ABDUL RAHIM BIN NOORDIN
28
AZMA BINTI SALLEH
29
SALME BINTI ISHAK
30
ZAINUL ASRI BIN MAMAT
31
AIDA BINTI MOHAMAD
32
KASMAN BIN NASIR
33
RUSLAN BIN RIFFIN
34
KAMARIAH BINTI MD DIAH (NO. K/P : 690709-04-5240) 4
35
NORFAIZAH BINTI ISMAIL
36
ILLIAS BIN AZMI
37
NORHAIDAWATI BINTI MOHD NOOR
38
ZAIMAH BINTI TASIR
39
MUHAINI BINTI AHMAD
40
NUR HELISA BINTI ROSLI
41
MOHD DHIYAUDDIN BIN MD IDRIS
42
HAIRULNIZAM BIN YUSOFF
43
AILEEN BINTI AHMAD
44
AZMA SAZWEEN BINTI KAMARUDIN
45
MOHD SYAHRUL BIN ADAM
46
ZABIDAH BINTI CHE HUSIN
47
NOR’ AINI BINTI JALALUDIN (NO. K/P : 630419-01-5460) 5
48
CHIN CHOOI WAH
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WONG FOOT TAI
50
CHONG KWEE YIN (NO. K/P : 540728-05-5002) …RESPONDENTS IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORIES, MALAYSIA CIVIL DIVISION CIVIL SUIT NO.: WA-22NCVC-632-11/2017
1
NATRAH BINTI ABD RAZAK
2
AHMAD AZID TAHAR BIN AHMAD LITIFFI
3
SUKINAH BINTI MAT DARUS
4
AMIRI @ MOHD AMIRI BIN MUSTAFFA
5
RAHIMAH BINTI PILOS
6
LOW YOON PIN
7
LOW KENG YUEN (NO. K/P : 871006-14-5651) 6
8
HAN POH IN
9
HUNG HENG HONG
10
MAHFUZAH BINTI MOHAMMED ZABIDI
11
MIMI BAIZURA BINTI ZULKAFLI
12
MOHAMAD AZAHAR BIN SHAUKANI
13
ABD RAZAK BIN MOHD ZAILAN
14
RADZIAH BINTI IBRAHIM
15
MOHD ARIF BIN ABDULLAH
16
SITI MUNIRA BINTI ISHAK
17
LOW HUAT CHUAN
18
ONG SOO CHIN
19
SITI ROHAIDA BINTI HARUN
20
SITI NOOR ZAHARAH BINTI ZAN (NO. K/P : 850319-08-6450) 7
21
MUSTAFA BIN MOHAMED ALI
22
MUHAMMAD IBRAHIM BIN JANI
23
MOHD TARMIZI BIN CHE HASSAN
24
ANIZA BINTI MOHAMED NOR
25
MUAZAM BIN MUNAJAR @ MUNAJAT
26
NORZANALILA BINTI MOHD FADZIL
27
ABDUL RAHIM BIN NOORDIN
28
AZMA BINTI SALLEH
29
SALME BINTI ISHAK
30
ZAINUL ASRI BIN MAMAT
31
AIDA BINTI MOHAMAD
32
KASMAN BIN NASIR
33
RUSLAN BIN RIFFIN (NO. K/P : 680106-04-5023) 8
34
KAMARIAH BINTI MD DIAH
35
NORFAIZAH BINTI ISMAIL
36
ILLIAS BIN AZMI
37
NORHAIDAWATI BINTI MOHD NOOR
38
ZAIMAH BINTI TASIR
39
MUHAINI BINTI AHMAD
40
NUR HELISA BINTI ROSLI
41
MOHD DHIYAUDDIN BIN MD IDRIS
42
HAIRULNIZAM BIN YUSOFF
43
AILEEN BINTI AHMAD
44
AZMA SAZWEEN BINTI KAMARUDIN
45
MOHD SYAHRUL BIN ADAM
46
ZABIDAH BINTI CHE HUSIN (NO. K/P : 860307-29-5772) 9
47
NOR’ AINI BINTI JALALUDIN
48
CHIN CHOOI WAH
49
WONG FOOT TAI
50
CHONG KW EE YIN (NO. K/P : 540728-05-5002)
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CHOW MENG CHOO (the 3rd, 4th and 5th Defendants are doing business and Practicing as Partners in a Law Firm with the name of C.S. Tang & Co.) …DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION (ENCLOSURE 21 – STRIKING OUT APPLICATION BY THE SECOND DEFENDANT) [1] This is an application by the SECOND DEFENDANT pursuant to Order 18 Rule 19 (1)(a),(b),(c) and/or (d) of the Rules of Court 10 2012 (“ROC 2012”) to strike out the Plaintiffs’ Writ of Summons dated 17.11.2017 and Statement of Claim dated 2.1.2018 against the Second Defendant and the costs shall be borne by the Plaintiffs. [2] The grounds for this application are as follows:- a) The Second Defendant is not a party/privy to the contracts/agreements between the First Defendant and 1st to 41st and 45th to 50th Plaintiffs; b) The 1st to 41st and 45th to 50th Plaintiffs does not have locus standi against the Second Defendant; and c) Despite having this knowledge, the Plaintiffs have in their SOC deliberately included the Second Defendant into the same Suit where it clearly shows that the Second Defendant will be made jointly and severally liable for the purported acts that have been committed by the First Defendant which has nothing to do with the Second Defendant. BRIEF FACTS OF THE CASE The Plaintiffs’ claim [3] The Plaintiffs claim for special damages as stated in Enclosure A and general damages for the late delivery of vacant possession of the 11 respective plots of bungalow as well as the damages to be assessed by the Court. Cause of Action [4] Breach of Sale and Purchase Agreement by the First and Second Defendant and breach of professional duty of care by the Third, Fourth and Fifth Defendants as the solicitors for the Plaintiffs. Brief Facts of the Case [5] The First to 41st, 45th, 46th, 47th, 48th, 49th and 50th Plaintiffs have respectively signed the Sale and Purchase Agreement with the First Defendant to buy plot of land to build bungalow on the land whereby the 42nd 43th and 44th Plaintiffs have respectively signed the Sale and Purchase Agreement with the Second Defendant to buy plot of land to build bungalow on the land. The First and Second Defendants are developers for the development of a project known as Bandar Akademia on the said Land (“the said Project”). [6] The First to 41st Plaintiffs also signed Construction Agreement (Perjanjian Pembinaan) with Syarikat Selayang Alunan Sdn Bhd and the 42nd to 50th Plaintiffs signed Construction Agreement with Syarikat Merchant Synergy Sdn Bhd, where both of the companies 12 were appointed by the First and Second Defendants to construct bungalows on the respective plots of land (“the Contractor”). [7] The Plaintiffs also signed Deed of Mutual Covenant with Syarikat Selayang Alunan Sdn Bhd to appoint them as the management company for the said Project. [8] The Third, Fourth and Fifth Defendants were the solicitors preparing the agreements for the said Project. [9]
Preamble
Pursuant to Clauses 4 and 10 of the Sale and Purchase Agreement with the First Defendant, and Clauses 6 and 10 of the Sale and Purchase Agreement with the Second Defendant, the First and Second Defendants agree to provide the ‘Basic Infrastructure’ necessary and required by the relevant authorities to facilitate the provision of water and electricity and telephone services for the Project. [10] However, the Plaintiffs were informed by the Contractor that the ‘Basic Infrastructure’ for the Project is not ready and therefore, the vacant possession cannot be delivered within the time stipulated in Sale and Purchase Agreement. [11] Thus, it is the Plaintiffs’ case that the First and Second Defendants have breached the Sale and Purchase Agreement because they have 13 failed to deliver vacant possession as agreed under the Sale and Purchase Agreement. It is the Plaintiffs’ contention that the First and Second Defendants have misrepresented the Plaintiffs by stating in the Sale and Purchase Agreement that the ‘Basic Infrastructure for the Project Land has been completed by the Vendor (the First and Second Defendants) as at the date of the Sale and Purchase Agreement.’. [12] In this case, the Plaintiffs also claim against their solicitors, the Third, Fourth and Fifth Defendants, for breach of their professional duty of care to the Plaintiffs. DECISION OF THE COURT [13] Having perused the application filed by the Second Defendant in Enclosure 21, and after considering the submissions by all the parties, the Court finds that, this is not a suitable case to be decided summarily by way of interlocutory application as it discloses issues to be tried by the Court. Therefore, the Second Defendant’s application is dismissed with costs in the cause. THE LAW [14] Order 18 Rule 19(1) of the ROC 2012 provides: “19. Striking out pleadings and endorsements (O. 18 r. 19) 14
1
The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-
a
it discloses no reasonable cause of action or defence, as the case may be;
b
it is scandalous, frivolous or vexatious;
c
it may prejudice, embarrass or delay the fair trial of the action; or
d
it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
2
No evidence shall be admissible on an application under subparagraph (1)(a).
3
This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.” [15] In the case of Bandar Builder Sdn Bhd & 2 Others v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 the Supreme Court held: 15 “The principles upon which the Court acts in exercising its power under any of the four limbs of O.18 r. 19(1) Rules of the High Court 1980 are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule. This summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable.” His Lordship Mohamed Dzaiddin bin Hj. Abdullah went on to say: “It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v Mooney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.)… After considering the counterclaim and the defence to the counterclaim, we are satisfied that both the pleadings have raised some issues which require serious discussion… This Court as well the Court below are not concerned at this stage with the respective merits of the claims. But what we have to consider is whether the counterclaim discloses some cause of action and, likewise, whether the defence to counterclaim raises a reasonable defence. It has been said that so long as the pleadings disclose some cause of action or raise some question fit to be decided by the Judge, 16 the mere fact that the case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out (Moore v Lawson) [1915] 31 TLR 418 CA); (Wenlock v Moloney) (supra). Bearing in mind the established principles stated above, we say that this is not a plain and obviously case for striking out the pleadings as disclosing no reasonable cause of action and defence. Nor can we say that they are frivolous, vexatious or may prejudice embarrass or delay the fair trial of the action or that these pleading are otherwise and abuse of the process of the Court. Accordingly, we dismiss both appeals with costs.” [16] Going through the Plaintiffs’ SOC in this case, the Court is of the opinion that the Plaintiffs’ claim discloses a reasonable cause action and that it raises some question fit to be decided by the Court. The Plaintiffs have pleaded in their Amended Statement of Claim, not just about the Second Defendant’s wrongdoing but also the First Defendant’s wrongdoing which resulted in losses suffered by the Plaintiffs. [17] Therefore, it is clear from the SOC that this case is definitely not a plain and obvious case for striking out the pleadings. The Court is satisfied that the pleadings have raised issues for determination by 17 the Court. From the SOC itself, it can be seen that there are reasons why the 42nd to 44th Plaintiffs bring this action together with other Plaintiffs in this Suit. Amongst the reasons are as follows: a) it involves the same cause of action; b) the same Third, Fourth and Fifth Defendants; c) the same Housing Project; d) the same breach of contract i.e failure to provide ‘Basic Infrastructure’; and e) it will save costs and Court’s time as well as the parties. [18] At this stage, it is not the merits of the claim that the Court is concerned, but what has to be considered by the Court is whether the claim discloses any cause of action. Therefore, the allegation by the Second Defendant that the Plaintiff have in their SOC deliberately included the Second Defendant into the same Suit and the Second Defendant will be made jointly and severally liable for the purported acts that have been committed by the First Defendant, in the opinion of the Court goes into the merits of the claim. And, that is not what the Court has to consider at this stage vide this application. [19] Hence, for the reasons stated above, the Court finds that this is not a plain and obvious case to strike out the Plaintiffs’ Writ and SOC. The 18 Court is of the opinion that the pleadings are not frivolous, vexatious or may prejudice, embarrass or delay the fair trial of the action or that it is an abuse of the process of the Court since the Plaintiffs’ claim have raised issues fit to be tried by the Court as there is a reasonable cause of action discloses in the pleadings. Accordingly, the Second Defendant’s application is dismiss with costs in the cause. Dated 18th April 2018. ……………………………………. (ROHANI BINTI ISMAIL) JUDICIAL COMMISSIONER CIVIL HIGH COURT (NCVC 8) KUAL LUMPUR. Ms. V. Bhavani & Ms. R. Tamisha (Counsels for the Plaintiffs / Respondents) Messrs Hakem Arabi & Associates Mr. Keong Ming Wai (Counsel for the 2nd Defendant / Appellant) Messrs Cheang & Ariff
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