Newlake Development Sdn. Bhd. v Majlis Bandaraya Petaling Jaya (21NCVC-71-10/2017)

of the Rules of Court, 2012 (‘ROC’).

The Plaintiff does not have any cause of action to put forward reliefs

till (e) in the Writ against the Defendant. The Defendant does not owe any liability to the Plaintiff. The Plaintiff has not stated clearly his cause of action against the Defendant.

The Plaintiff’s Writ and the Statement of Claim are res judicata and/or without merits whereas the issues raised by the Plaintiff in the claim had been heard and determined in the previous proceedings;

The facts and the subject matter in the previous proceedings are all identical with the action in the Plaintiff’s Writ and the Statement of Claim;

The Writ and the Statement of Claim is a back door attempt in relation to the Judicial Review proceeding in Suit No: 25-56-12/2014 Page 3 of 21 in the High Court of Shah Alam which had been previously filed by the Plaintiff. Prayer (a) in the Writ and the Statement of Claim is identical to the certiorari relief in the Judicial Review proceedings and prayer (b) is identical to the mandamus relief in the Judicial Review proceedings;

The Defendant, being the local authority, has the freedom to make decisions pursuant to Street, Drainage and Building Act, 1974 (“Act 133”) and Local Government Act 1976 (“Act 171”);

The action brought by the Plaintiff involves a question of law and, therefore, any decision-making by the Defendant as the local authority should be challenged by way of Judicial Review and not in this proceedings. However, pursuant to Order 53 Rules of Court, 2012, the Judicial Review must be filed within three (3) months from the date of the Defendant’s decision made in its Mesyuarat Jawatankuasa Pusat Setempat Bilangan 19 Tahun 2014 (Penggal 2014/2015) on 2.10.2014;

The Plaintiff does not have the locus to file this action as it is not the registered owner of Lot 13849. The current owner is the Management Corporation since 11.10.2012; Page 4 of 21

The Plaintiff is not the directly affected party as to the decision of the Defendant in its Mesyuarat Jawatankuasa Pusat Setempat Bilangan 19 Tahun 2014 (Penggal 2014/2015) on 2.10.2014 and approved by the Defendant in its Mesyuarat Penuh Majlis (“Mesyuarat OSC dan Mesyuarat Penuh Majlis”);

The Plaintiff is not a party to the Consent Order dated 4.11.2014 which had been recorded between the Defendant and Seacera in the Judicial Review proceedings, Suit No: 25-63-10/2013 and Suit No.25- 64-10/2013 and that the Plaintiff has only the right to be heard as the intervener and not as the Respondent. Thus, the Plaintiff has no right to restrict both parties i.e., Seacera and the Defendant, to be bound by the agreement/terms vide the sealed Consent Order. Plaintiff’s Case [2] The background facts relied upon by MBPJ in support of its case are these: “In 1999, Defendant approved a Development project under the scheme ‘Cadangan Pembangunan Penempatan Semula Setinggan Page 5 of 21 di atas Tanah Kerajaan Lot Penempatan Sementara CP-51554, Keg Sungai Ara, Mukim Sungai Buloh, Daerah Petaling, Selangor which consists of Lot 13850, 13849, 13848, 13851 and 13852. At that material time, Antara Vista Sdn. Bhd. (‘AVSB’) was the owner of the mentioned lots. An access road situated in Lot 13850. On 8.4.2004, AVSB entered into a Sale and Purchase Agreement (‘SPA’) with Yom Ahmad bin Ngah Ahmad for the sale and purchase of Lot 13849. On 7.11.2007, Yom Ahmad bin Ngah Ahmad entered into SPA with Plaintiff for Lot 13849. On 27.4.2010, AVSB entered into SPA with Seacera Development for the sale of Lot 13850. When the Plaintiff intended to develop Lot 13849, the said Public Access was included in the amended plans and the same were approved by the Defendant. The Plaintiff then developed Lot 13849 and built what is known as the 10, Boulevard Damansara Project and had constructed the said Public Access Road on 3.7.2009. Page 6 of 21 The construction of the said Public Access Road was in compliance with the requirements issued by the Defendant on or about 17.11.2009. The Plaintiff had no knowledge of the discussions between the Defendant and Seacera Development and the Defendant had acted in breach of its statutory duties and its general duty to act fairly and independently in holding the discussions without the Plaintiff’s knowledge. On 4.11.2014, the Plaintiff’s solicitor objected to the recording of consent orders in Judicial Review Nos. JR63 and JR 64 on the ground that the Plaintiff’s interest pertaining to the Public Access Road will be affected. The recording of the Consent Orders would effectively mean that the access road need not be surrendered and it would amount to a private road belonging to Seacera Development. The Plaintiff claims for:

A declaration that the Defendant’s decision dated 2.10.2014 which was approved by the Defendant on 31.10.2004 is invalid and not binding.

A declaration that the Defendant’s decision dated 5.7.2013 is valid and binding.

An order that the Defendant to pay the Plaintiff the sums of RM3,3513944.46.

Interest on the above sum from 30.3.2017 until full realization.” Brief Facts [3] It would useful to look at the brief history of the events that led to the present dispute as follows:

The Plaintiff is the developer of one commercial project on a plot of land known as Lot 13849 consisting of 4 Blocks of Shop-Office Units, known as 10 Boulevard Damansara (hereinafter referred as to ‘the 10 Boulevard Development’) which the Plaintiff also constructed.

The Defendant (MBPJ) is the local authority of Petaling Jaya City.

In the year 1999, the Defendant approved a development project resettlement under a scheme on several plots of land including Lot 13849. Page 8 of 21

At that material time, Antara Vista Sdn. Bhd. (‘AVSB’) was the owner of those plots of land. Lot 13850 and Lot 13849 are situated next to each other and as early as 1999, the access road situated on Lot 13850 had been categorized as a public access road for all five plots of land (hereinafter referred to as ‘the said Public Access Road’) as reflected in the affidavit of MBPJ in the Trespass Suit commenced by Seacera Development Sdn. Bhd. against the Plaintiff.

On or about 8.4.2004, AVSB entered into a sale and purchase agreement (‘SPA’) with Yom Ahmad bin Ngah Ahmad (‘Yom Ahmad’) for the sale and purchase of Lot 13849. Yom Ahmad entered into a SPA for the same lot on 7.11.2007 with the Plaintiff.

On or about 27.4.2005, AVSB entered into a sale and purchase agreement with one Seacera Development Sdn. Bhd. (‘Seacera Development’) for the sale of Lot 13850, in which the 1999 Planning Permission was included.

At all material times, the said Public Access Road had been categorized as a public road. As such, when the Plaintiff intended to develop Lot 13849, the said Public Access Road was included in Page 9 of 21 the amended plans as the same were approved by the Defendant pursuant to the application for amendments of the Planning Permission.

The Plaintiff thereafter developed Lot 13849, known as the 10, Boulevard Damansara Project and had constructed the said Public Access Road on or about 3.7.2009 in compliance with all Planning Permission requirements given that the certificate of fitness was issued by the Defendant on or about 17.11.2009.

However, sometime in 10.8.2011, Seacera Development commenced an action against the Plaintiff vide Shah Alam High Court Suit No. 22NCVC-927-2011 alleging that the said Public Access Road is part of Lot 13850 owned by them and that, the Plaintiff trespassed on Lot 13850 (hereinafter referred to as the ‘Trespass Suit’).

One of the defences relied on by the Plaintiff in the Trespass Suit was that the said Public Access Road had been categorized as public road by the Defendant supported by the deponent of the Defendant’s Affidavit in the Trespass Suit. Page 10 of 21

On 5.7.2013, the Defendant declared the said Public Access Road as a public road pursuant to Section 13 of the Street, Drainage and Building Act, 1974 consistent with the said 1999 Planning Permission and directed Seacera Development to surrender the said Public Access Road to the Defendant and granted Seacera Development an alternative road pending the outcome of the Trespass Suit (hereafter referred to as ‘the Defendant’s Decision dated 5.7.2013’).

Aggrieved by the Defendant’s Decision dated 5.7.2013, Seacera Development (‘Seacera’) filed two judicial review (‘JR’) applications vide Shah Alam High Court Judicial Review Application No. 25.63- 10/2013 (‘SAHC JR No. 63’) and Shah Alam High Court Judicial Review Application No. 25-64-10/2013 (‘SAHC JR No. 64’).

On 25.2.2014 the Plaintiff made an application for leave to intervene in both the SAHC JR No. 63 and SAHC JR No. 64 which the Shah Alam High Court on 28.5.2014 granted.

After the Plaintiff’s application for leave to intervene in both the SAHC JR No. 63 and SAHC JR No. 64 was allowed, directions were given by the Shah Alam High Court for the Plaintiff to file its Page 11 of 21 affidavits in reply in both the SAHC JR No. 63 and SAHC JR No. 64. During this time, both Seacera Development and the Defendant entered into discussions to settle the matter with certain representations being made by Seacera Development to the Defendant with regard to converting the alternative temporary access road into a permanent road. These discussions were made without the knowledge and/or the presence of the Plaintiff.

Despite objections made by the Plaintiff in both the JR applications the Defendant nevertheless proceeded with their discussion for settlement with the details of which were never made known to the Plaintiff.

This was brought to the Plaintiff’s knowledge for the first time only on 31.10.2014. Upon perusal of the draft consent orders dated 31.1.2014, it then came to the Plaintiff’s knowledge that the settlement between the Defendant and Seacera was reached by way of another decision made by the Defendant in its Mesyuarat Jawatankuasa Pusat Setempat Bilangan 19 Tahun 2014 (penggal 2014/2015) dated 2.10.2014, approved by the Defendant in its Mesyuarat Majlis Penuh dated 30.10.2014. The minutes of the said Page 12 of 21 meetings were never provided by the Defendant during the case management, neither was a copy extended to the Plaintiff.

The Plaintiff’s solicitors had raised their objections on 31.10.2014 for the recording of the consent orders given that the Plaintiff was never once consulted in regard to the settlement reached. This is despite the fact that the Plaintiff is a party in both the JR cases.

On 4.11.2014, next date, the Plaintiff’s solicitors objected to the recording of both the consent orders, premised on the following grounds:

The Plaintiff’s interest pertaining to the Public Access Road, which is subject matter of the Trespass Suit will be affected. The recording of the consent orders would effectively mean that the access road need not be surrendered and it would amount to a private road belonging to Seacera.

The settlement discussion between the Seacera Development and the Defendant took place without the knowledge of the Plaintiff.

Once the Plaintiff became aware of the settlement between the Defendant and Seacera Development was reached by way of another decision made by the Defendant as alluded to the Plaintiff vide its solicitors took steps to obtain the same which the Defendant forwarded on 27.11.2014.

The Defendant by entering into the consent order dated 4.11.2014 has effectively cancelled its decision made on 5.7.2013 for Seacera to surrender the said Public Access Road to the Defendant.

The conduct of the Defendant in cancelling its decision dated 5.7.2013 effectively weakened the Plaintiff’s defence in the Trespass Suit. On 30.3.2017, the Shah Alam High Court allowed Seacera’s claim in the Trespass Suit against the Plaintiff. Vide the Order dated 30.3.2017, the Shah Alam High Court ordered the Plaintiff to pay certain sums to Seacera Development as General, Special and Exemplary Damages, costs and interest. Page 14 of 21 The Law on Striking Out of Pleadings [4] The Defendant’s application to strike out the Writ of Summons and Statement of Claim is pursuant to Order 18 Rule 19(a), (b) and (d) of Rules of Court 2012. [5] The law is settled on this matter, the leading case being Bandar Builder Sdn. Bhd. & Ors. v United Malayan Banking Corporation Bhd.v [1993] 4 CLJ 7 (Tab A) where the Supreme Court through Mohamed Dzaiddin bin Hj Abdullah, SCJ stated the basic principles to be the following: “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.” [6] In the case of New Straits Times (Malaysia) Bhd. v Kumpulan Kertas Niaga Sdn. Bhd & Anor [1985] 1 MLJ 226, the Federal Court through Mohamed Azmi FJ (Tab B) pronounced that: Page 15 of 21 “It is therefore clear law that in an application to strike out pleadings under order 18 rule 19(1) (a), no evidence shall be admissible, and the court must consider only the pleadings for the purpose of determining whether the Statement of Claim disclosed no reasonable cause of action or the Statement of Defence disclosed no defence. The test to be applied is whether on the face of the pleading, the court is prepared to say that the cause of action or the defence is obviously unsustainable” Analysis and Finding [7] Primarily, in support of this striking out application, MBPJ contended that the Plaintiff’s claim is barred by the principles relating to the doctrine of res judicata. This proposition is premised on the contention that the grounds in support of the present claim are the same as the issues already decided by the Shah Alam High Court (‘SAHC’) in 2 judicial review proceedings – JR No. 63 and JR No. 64. In respect of both the proceedings the appeals brought by the Plaintiff were struck out by the Court of Appeal without the merits being heard. Page 16 of 21 [8] In my view, the Plaintiff was correct in pointing out that the decision by the Courts in the judicial review proceedings and the appeals which were struck out do not have any bearing on the current claim filed by the Plaintiff for damages against the Defendant. The decision in judicial review proceedings is not a bar to a civil claim. This question of law has been decided by the Federal Court in Akitek Tenggara Sdn. Bhd. v Mid Valley City Sdn. Bhd. [2007] 5 MLJ 697 wherein at paragraph 25 to 28, the Federal Court held as follows: “[25] It is thus clear that res judicata applies only in respect of a matter over which the court has pronounced a judgment. [26] In this case the LAM decision was upheld by the Supreme Court pursuant to a proceeding for judicial review. It is settled law that judicial review is concerned with the process of decision making and not with the decision itself (see Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155). In Tanjong Jaga Sdn Bhd v Minister of Labour and Manpower & Anor [1987] 1 MLJ 124 Abdoolcader SCJ said at p 127: It is of considerable significance to bear in mind that judicial review is of the hearing and not of the decision. Page 17 of 21 [27] MP Jain in his book entitled Administrative Law of Malaysia and Singapore (3rd Ed) says at pp 625 – 626: A review court does not substitute its own decision for that of the original decision making body. A review court can only grant one or more of the specific remedies, eg an order quashing the decision of the decision-making body. Many a time, therefore, judicial review is superficial and marginal and does not attack the heart of the problem, viz whether the administrative decision is right or wrong in the circumstances of the case. [28] As a judicial review proceeding is concerned with the decision-making process and not with the decision itself the decision cannot constitute res judicata of the court upholding the decision making process. Thus in R v Secretary of State for the Environment; ex parte Hackney LBC & Anor [1983] 3 All ER 358 May LJ in adopting a statement from Wade on Administrative Law (5th Ed) said at p 367: … in these procedures the Court 'is not finally determining the validity of the tribunal's order as between the parties Page 18 of 21 themselves' but 'is merely deciding whether there has been a plain excess of jurisdiction or not'. They are a special class of remedies designed to maintain due order in the legal system, nominally at the suit of the Crown, and they may well fall outside the ambit of the ordinary doctrine of res judicata. [9] In Dr. Tan Ah Ba v Wong Foot Meow [2012] 7 MLJ 467, the Federal Court applied Akitek Tenggara (supra) and held that it was established principle that res judicata applies only in respect of a matter over which the Court has pronounced judgment. [10] It is trite principle that ‘The fact that the plaintiff had previously commenced the judicial review application ought not operate to prevent it from now pursuing damages in the writ action, for the reason that the plaintiff did not previously claim for damages in the judicial review application.’ [See Asia Pacific Higher Learning Sdn. Bhd. v Majlis Perubatan Malaysia & Ors. and Another Suit [2017] MLJU 1038] [11] Premised on settled law, it is noteworthy that JR proceedings are essentially to challenge the decision making process of certain authorities or bodies whereas this claim herein is against the decision itself of the Page 19 of 21 Defendant, together with a claim for damages which cannot be pursued in JR proceedings. [12] It has also to be taken into account that the issues and/or merits of this claim have not been adjudicated in either the JR proceedings or the trespass suit to trigger the principle of res judicata coming into operation in this instance. [13] Another important issue arising for consideration is the locus standi of the Plaintiff to institute this action which was challenged by the Defendant. However, the undisputed facts pointed convincingly to the Plaintiff having the requisite locus to bring this action against the Defendant. Inter alia, the title search showed that the Plaintiff was the registered owner of Lot 13849. Secondly, in the JR proceedings commenced by Seacera where the Plaintiff applied to intervene a similar contention was advanced by the Defendant but it was rejected by the Court which allowed the Plaintiff to intervene in the proceedings. Thirdly, the Plaintiff’s cause of action. In that suit, the Plaintiff was the Defendant and not the Management Corporation. Hence, the Plaintiff is obviously and directly affected by the decision of the Defendant to change its position which was plainly prejudicial to the Plaintiff in regard to the Trespass Suit. Page 20 of 21 [14] To conclude, having considered the present claim as pleaded, the reliefs sought, the chronology of events and the history of the dispute between the 2 parties relating to the 2 lots of land owned by the Plaintiff and one Seacera Development Sdn. Bhd. (‘Seacera’), I am of the view that the doctrine of res judicata cannot be invoked to bar this claim against the Defendant. Inter alia, in view of the allegations made against D and the issues and disputes of fact arising therefrom, the fact that the decisions of the Courts in the judicial review (‘JR’) applications and the appeals thereafter can be distinguished from the nature of the present application and the scope of the principle of RJ, this claim cannot be considered obviously unsustainable, hopeless and/or devoid of any prospect of success. Further, as the Plaintiff is an aggrieved party following the decision in question by D, the Plaintiff too cannot be regarded as not having the required locus standi to commence this action. This is clearly not a plain and obvious case for the claim to be struck out summarily under O. 18, r. 19, ROC.2012 without a trial. [15] I, therefore, hold that Enclosure 8 is without merits or basis in law and on the disputed affidavit evidence before the Court. Accordingly, Enclosure 8 is dismissed with costs in the cause. Page 21 of 21 Dated : 29 October 2018 (GUNALAN A/L MUNIANDY) Judge High Court of Malaya Shah Alam COUNSEL: For the Plaintiff : Mr. Sanjay Mohan together with Mr. K. Gobinath Messrs Mohanadass Partnership Kuala Lumpur For the Defendant : Dato’ Kamaruzaman Arif together with Puan Sofiah Omar Messrs Kamaruzaman Arif Amran & Chong Shah Alam, Selangor