Paragrene Land Sdn Bhd v 1. ) Dr. Looi Mun Choon (BA-22NCvC-136-05/2020)

DR. LOOI MUN CHOON

SEAH SIEW FUN

CHAN SU SU

TO SEAK MOI

WONG VON KET

FONG VOON HON

TAN KIANG LING (NO.KP: 850130-10-5857) 15/11/2022 11:45:09 BA-22NCvC-136-05/2020 Kand. 46 2 | BA-22NCVC-136-05/2020

NG CHIEW GEOK

KHONG KHEI CHOONG

CHONG PEI MOON

VOON SIEW WUN

HEONG MUN CHOONG

LEE CHAI YUN

LEE POH LIAN

EU KONG LEONG

CHUA JIN CHONG

CHIANG LAI FATT

LEONG HON KEONG (NO.KP: 850713-14-5729) 3 | BA-22NCVC-136-05/2020

CHONG WEI YOONG

YUEN CHUN HAO

CHONG PIT CHOON

MOK CHEE HOU

KONG SIEW MING

TAN CHIEW YAN

SIM YING

BENJAMIN LAU CHI MENG

LEONG SUT LENG IRENE

WONG WEI MIN

TAN YEONG KOK (NO.KP: 871023-01-5365) 4 | BA-22NCVC-136-05/2020

KENNY VOON GAH LEONG

GALVIN MUN QUANG LIANG

YEE CHUN YEN

LIM SENG TARK

LOW TOO CHEW

WONG CHEE FOONG

EE MEI SHING

CHANG MUN CHOON

SO LING FONG

LOO SOR YIP

KENG LEE TENG (NO.KP: 880805-07-5500) 5 | BA-22NCVC-136-05/2020

PANG SIEW YUAN

YONG SIEW CHOO

GAN EIK MEI

LEE LIN WEI

GOH JENN HSEN

TERANCE WONG WAI HONG

SHARON TAN SOCK LING (NO.KP: 831028-01-5210) …DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] This matter involves Plaintiff’s claim premised on the tort of abuse of process or malicious prosecution against Defendants. It concerns a previously filed civil suit regarding a housing development project Paragon 3 Condominium (“Paragon 3”) in which the Plaintiff and the Defendants are involved respectively as the developer and house buyers. Defendants 6 | BA-22NCVC-136-05/2020 alleged that Plaintiff has failed to do the project according to the specifications as advertised to the buyers. The Defendants then took legal action against Plaintiff for its failure. However, the suit was later withdrawn. Notwithstanding the withdrawal, Plaintiff alleged Defendants’ action in filing the previous suit has caused them a loss of a joint venture project (JVP) with a company called KL Northgate which resulted in Plaintiff suffering severe losses and damages. [2] After a full trial, on the balance of probabilities, I have dismissed Plaintiff’s claim on the basis that it fails to prove its claim against the Defendants. [3] Plaintiff is not satisfied with the decision and hence this appeal against the dismissal of its claims. Below are the grounds for my decision. Background Facts [4] The Plaintiff is a private limited company with a business address at No.9.07, Level 9, Amcorp Tower B, Amcorp Trade Center, No. 18, Persiaran Barat, 46050 Petaling Jaya, Selangor Darul Ehsan. [5] The Defendants (47 individuals) are part of a group of owners of condominium units known as Paragon 3. 7 | BA-22NCVC-136-05/2020 [6] The Defendants entered into their respective sale and purchase agreements (SPA) for the purchase of condominium units in Paragon 3 with a company called Paragon Promenade Sdn Bhd (Paragon Promenade), developed by Plaintiff. The Defendants relied on the representations provided by Plaintiff through the SPA, the brochures, and advertisements. [7] After receiving vacant possession of the condominium units, Defendants found that the facilities delivered were not in accordance with the plans and specifications provided by Paragon Promenade. [8] On 05.03.2019, the First Defendant filed a private claim and represented a class action in the interests of the owners of the Paragon 3 apartment units in Suit No. BA-22NCvC-20-01/2019 (“Suit 20”) against the Plaintiff and a company called Paragon Promenade for the defective development of Paragon 3. Defendants alleged that Plaintiff was the owner/developer of Paragon 3. In turn, Plaintiff filed a striking out application in Suit 20. However, before the striking out application was heard, Defendants withdrew Suit 20. 8 | BA-22NCVC-136-05/2020 [9] As a result of the filing of Suit 20 against Plaintiff by the Defendants, Plaintiff claims it suffers severe losses and damages. Hence, Plaintiff filed this action claiming that Defendants have maliciously prosecuted Plaintiff and/or abuse of process vide Suit 20 that caused Plaintiff to suffer losses, including loss of profit and/or loss of Company’s reputation and good name. Plaintiff’s case [10] Plaintiff filed an action in this Court against all the Defendants on the premise of alleged malicious intent on the part of Defendants for filing Suit 20 against Plaintiff previously. The plaintiff averred in its Affidavit in Support to strike out the Defendants’ claim that Plaintiff has nothing to do with Paragon 3. The Advertising Permit and the Developer’s Licence were in the name of Paragon Promenade and not the Plaintiff. Parties to the SPA were Defendants and Paragon Promenade and hence, there was no privity of contract between Plaintiff and Defendants. [11] It is also claimed that the filing of Suit 20 had caused Plaintiff to lose an anticipated profit of RM80,000,000.00. Plaintiff stated that their ‘Joint Venture Agreement’ (JVA) was cancelled by KL Northgate Sdn Bhd when they became aware of the existence of Suit 20. Therefore, Plaintiff has a reasonable cause of action which is sustainable against the Defendants. 9 | BA-22NCVC-136-05/2020 Defendants’ case [12] The filing of Suit 20 by the Defendants was not tantamount to the tort of malicious prosecution and/or tort of abuse of process of Court. It was not made in bad faith against Plaintiff. It is the Defendants’ contention that the alleged Joint Venture Project (JVP) between Plaintiff and KL Northgate did not exist. Even if it exists, the Defendants are not responsible for the Plaintiff’s alleged loss of anticipated profit of RM80,000,000.00 from the termination of the alleged JVP. Furthermore, Plaintiff failed to prove the computation for the loss of profit of RM80,000,000.00 from the termination of the alleged JVP. On that basis, Plaintiff’s claim of malicious prosecution could not stand and should be struck out. Issues to be tried [13] There are four (4) main issues in this case as follows: a) Whether the filing of previous “Suit 20” by the Defendants was made with bad faith/intention against the Plaintiff; b) Whether the alleged joint-venture project between the Plaintiff and KL Northgate did exist; 10 | BA-22NCVC-136-05/2020 c) Whether the Defendants are responsible for the Plaintiff’s alleged loss of anticipated profit of RM 80,000,000.00 from the termination of the alleged joint venture project; and d) Whether Plaintiff is able to prove the computation for the loss of anticipated profit of RM80,000,000.00 from the termination of the alleged joint-venture project. Analysis and Finding of this Court Whether the filing of previous “Suit 20” by the Defendants was made with bad faith/intention against the Plaintiff [14] To determine the intention of Defendants, this Court has examined the chronology of events leading to the filing of Suit 20. This Court noted that Defendants entered into their respective SPA with a company called Paragon Promenade Sdn Bhd (“Paragon Promenade”) for the purchase of condominium units in Paragon 3. Defendants then alleged that after receiving the vacant possession, they discovered the facilities were not in accordance with the plans and specifications given by Paragon Promenade. Alleging that Plaintiff was the owner/developer of Paragon 3, Defendants filed Suit 20 (BA-22NCvC-20-01/2019) against Plaintiff for being liable for the defective development of Paragon 3. Subsequently, Plaintiff filed a striking out application of Suit 20. However, before the striking out application was heard, Defendants withdrew Suit 20. 11 | BA-22NCVC-136-05/2020 [15] The Plaintiff argued that the act of the Defendants filing Suit 20 was done maliciously and it is an abuse of the Court’s process. Plaintiff contended that this was due to the fact that the Defendants intentionally filed the Suit 20 without any “basis or foundation for believing that they will ultimately succeed when filing the Suit 20.” Plaintiff contends that for the Defendants to claim they relied on advertisements before signing their respective SPA is wholly misconceived as the advertisements were non-existence at the time Defendants entered into their respective SPAs for the purchase of Paragon 3 units. The publication of the advertisements was done by third party websites and not by Plaintiff. Furthermore, Plaintiff was not even the developer for Paragon 3 units. Hence, for Defendants to file an action (Suit 20) without verification of the facts shows that it was made in bad faith and with malice. [16] The Defendants, in defence, strongly believed that the Plaintiff as one of the developers for Paragon 3 has committed misrepresentation in advertising Paragon 3, and had breached the SPA (paragraph 13) by making some fundamental departures from the agreed plan of Paragon 3 without informing and obtaining the written permission from the owners of Paragon 3 units, and also has shown notable "poor workmanship" to final product of the Paragon 3. 12 | BA-22NCVC-136-05/2020 [17] The Defendants disagreed with Plaintiff’s contentions. The Defendants submit that to invoke a claim pertaining to the tort of malicious prosecution and/or tort of abuse of process, there are essential elements that the Plaintiff needs to establish to prove their case and it must be proven separately. [18] For the threshold of the tort of malicious prosecution, the relevant elements have been rightly enunciated in the High Court case of Syarikat Steelcon Sdn Bhd v Kee Cheng Teck [2015] 9 MLJ 740 that had laid down the elements that ought to be proved by the Plaintiff in paragraph 5 as follows: [5] … (b) The plaintiff sought to prove all the necessary elements of the tort of malicious prosecution, which can be branched out into four elements which are:

First element - The plaintiff was successful in the earlier proceedings brought by the defendant.

(ii) Second element - The defendant had instituted the earlier proceedings (the two petitions) without any reasonable and/or probable cause. 13 | BA-22NCVC-136-05/2020

(iii) Third element - The defendant had conducted himself in malice in the sense that there was some indirect or improper motive in him taking or continuing with the two petitions.

(iv) Fourth element - The plaintiff had suffered losses from the malicious prosecution. [19] Based on the threshold mentioned above, it is for this Court to decide whether the act of the Plaintiff to invoke the tort of malicious prosecution against the Defendants would fall through due to their failure to fulfil the said vital elements. [20] In light of this, it is this Court’s view that the 1st, 2nd, and 3rd element cannot be fulfilled as the Suit 20 (case number: BA-22NCVC-20- 01/2019) which had been re-filed under the New Suit (case number: BA- 22NCVC-55-02/2021) is still ongoing. The merits of this case have yet to be heard by the High Court Judge of Shah Alam. Meanwhile, the Plaintiff (2nd Defendant in the New Suit) has filed an appeal to the decision of the Striking Out Application which was dismissed by the High Court Judge. [21] The statements above were supported by both DW1 and DW2 during their Cross-Examination session. They have consistently mentioned that the Suit is still active and soon to be heard by the Court. 14 | BA-22NCVC-136-05/2020 DW2’s Cross-Examination Q: Now, this Suit 20, what happened to Suit 20? A: I think Suit 20 is still being heard, on trial. Q: Would you agree with me that Suit 20 in fact had been withdrawn in Court? A: Yes, it was withdrawn. Q: And the new suit which has been filed by you and the other purchasers comes under a different suit number, not Suit 20. Am I correct? A: Yes, correct. Q: Ok. So, in regards to Suit 20, basically, it is finished lah? There is nothing, nothing has transpired on Suit 20 itself. The matter has been withdrawn, that’s it. A: The matter has been withdrawn but with the liberty to re-file. DW2’s Cross-Examination Q: No, answer my question. You don’t tell me how to ask questions. I’m trying to get it very clear here. A: I’m trying to get it very clear because this is going to be, sorry Your Honour, this is going to be documented very clearly. I don’t want it to be on the record that I am saying the Plaintiff is 15 | BA-22NCVC-136-05/2020 not the developer of the project. I want it to be clear that I’m only agreeing that these documents do not show the Plaintiff’s direct involvement. However, I still maintain strongly that Plaintiff is a developer of the project. If he asks me based on these documents, do I agree that it does not show a direct connection, yes. But if he is asking me based on these documents it proves that the Plaintiff is not a developer, my answer is strongly no because that is not what we are contesting today and we don’t have to prove that today. YA: Ok. Q: Dr Looi, what we are contesting or not that is a point of law. [22] The Defendants' decision to withdraw Suit 20 earlier was not a deliberate action but due to the Defendants not having sufficient time to prepare for the full hearing to be held on 03/09/2019. It cannot be said that Defendants could not honestly have believed in the charge they made when instituting the proceedings. [23] The Court at that time not only allowed for Suit 20 to be refiled but also with no cost given to the Plaintiff (the Second Defendant in Suit 20), the Defendants (the Plaintiff in Suit 20) then filed a new suit at Shah Alam High Court. Thus, this Court concludes that there was no malice on the 16 | BA-22NCVC-136-05/2020 part of Defendants when instituting Suit 20. The fact that they refiled through a new Suit shows that they truly believe that they have a sustainable cause of action. [24] Further, even if Plaintiff did involve in the development of Paragon 3, Plaintiff submits that Defendants have no locus standi to initiate action against Plaintiff as the right party should be the Joint Management Body (JMB) of Paragon 3 or someone who has been authorised by the JMB in accordance with section 143 of the Strata Management Act 2013. Since Defendants have no such authority, Defendants’ action should be struck out (see Alan Goh Keng Chian & Ors v KL Landmark Sdn Bhd & Ors [2020] 1 LNS 2394). [25] This Court is of the view that Defendants’ action against Plaintiff is to claim their rights as the buyers of Paragon 3 units which was developed by Plaintiff and another company, Paragon Promenade. The fact that the two companies share the same address and are represented by the same firm of solicitors supports the contentions of Defendants that they genuinely believed Plaintiff is the right party to be sued and made responsible for the defective work that has been delivered to the Defendants and Defendants as a matter of right is in a position to sue Plaintiff without going through the JMB. Further, Defendants at that 17 | BA-22NCVC-136-05/2020 particular time, were not aware of any JVP between Plaintiff and another company, if it ever existed. Whether the alleged joint-venture project between the Plaintiff and KL Northgate did exist [26] This Court noted that the dispute revolves around the question of whether the JVP did actually exist between Plaintiff and KL Northgate Sdn Bhd. As pointed out by Defendants, this Court finds that Plaintiff did not make available the JVA with KL Northgate and also failed to state the terms contained in the JVA to the Court. The claim that Plaintiff has signed the JVA and made payment of RM1,980,000.00 was also unsubstantiated and not pleaded in its pleading. Hence, this Court is of the view that it could merely be a bare assertion. [27] Furthermore, as submitted by the Defendants, Plaintiff has failed to prove that there is a nexus between Suit 20 and the JVA between Plaintiff and KL Northgate Sdn Bhd, and Plaintiff has also failed to discharge the burden of proof to the Defendants as they did not provide adequate evidence to support their claims that the alleged project does exist in the first place. 18 | BA-22NCVC-136-05/2020 [28] The burden of proof lies upon the Plaintiff to prove its case and claims as provided by Section 3 (Interpretations) of the Evidence Act 1950 as follows:- "proved": a fact is said to be "proved" when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists; "disproved": a fact is said to be "disproved" when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist; "not proved": a fact is said to be "not proved" when it is neither proved nor disproved; [29] Sections 101 and 102 of the Evidence Act 1950 stipulate that it is the duty of the Plaintiff to prove and put forward the evidence for their case:

(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. 19 | BA-22NCVC-136-05/2020

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. [30] In the landmark case of International Times & Ors v. Leong Ho Yuen [1980] 2 MLJ 86 decided by the Federal Court, YAA Saleh Abas FJ in delivering his judgments stated that: “The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to sections 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail.” [31] In another Federal Court case, Chief Justice Arifin Zakaria in Hong Yik Trading v Liziz Plantation Sdn Bhd [2017] 5 MLJ 398 gave his judgments regarding the burden of proof in para 12 as follows: 20 | BA-22NCVC-136-05/2020 “It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (s 101 of the Evidence Act 1950). Where a party on whom the burden of proof lies has discharged that burden, then the evidential burden shifts to the other party. However, if the party on whom the burden of proof lies fails to discharge it, the other party need not call any evidence.” [32] Since Plaintiff failed to prove the existence of the JVP with Northgate KL, this Court opines that adverse inference could be presumed against Plaintiff under section 114(g) of the Evidence Act 1950. Failure of Plaintiff to adduce the material evidence which could be and is not produced, be unfavourable to Plaintiff who held it. Plaintiff was only able to produce a 3-page letter, which its witness PW 2 alleged to be the JVA. This Court is inclined to agree with the submission of Defendants that a lot of discrepancies were found on the letter such as there are no full terms and conditions regarding the project, lacking specific details of the cost for the project, stakeholders involved as well as matters regarding remedies for any default or misconduct. As such to claim that it is the basis for a contractual relationship between Northgate and Plaintiff for a multi-million project is not acceptable by this Court. Further, it is also noted that the alleged JVA has two different dates of signing by the parties. Besides, the letter which was claimed to be the contract was not substantiated by any 21 | BA-22NCVC-136-05/2020 supporting evidence such as the Development Order and the payment of earnest money. Even PW 3 himself, the manager of Plaintiff, gave contradictory and inconsistent answers during cross-examination regarding the JVA making his testimonies unreliable and do not carry any weight. Whether the Defendants responsible for Plaintiff’s alleged loss of anticipated profit of RM 80,000,000.00 from the termination of the alleged joint venture project [33] Even if the JVP did exist, the issue is whether Defendants should be faulted for the cease of the JVP and hence, responsible for the purported loss of the anticipated profits. In order to determine whether Defendants are responsible for Plaintiff’s loss, this Court looked into the relationship between the two parties. [34] Defendants submit that although Plaintiff was not a party to the Sale and Purchase Agreement (SPA) in Suit 20, Defendants had bought the condominium units based on representations made by Plaintiff and this makes Plaintiff privy to the Defendants’ SPA. Moreover, it was Plaintiff’s advertisement that stated the units are the Second Defendant’s project, in Suit 20. Defendants relied on the case of Siti Shamsiah Ab Karim & Ors 22 | BA-22NCVC-136-05/2020 v Melombong & Perumahan Sdn Bhd & Anor [2013] 10 MLJ 303 that held as follows:-

Walaupun bukan merupakan pihak kontrak kepada PJB, defendan kedua melalui beberapa iklan projek tersebut, secara konsisten menyatakan dan memberi representasi kepada plaintif-plaintif bahawa projek kondominium merupakan projek mereka dan sekali gus memberi representasi bahawa projek tersebut akan diuruskan oleh defendan kedua. Oleh itu, walaupun diketahui bahawa satu pihak yang bukan merupakan pihak kepada kontrak tidak mempunyai hak untuk menyaman di dalam kontrak dan walaupun plaintif-plaintif memeterai PJB dengan subsidiari defendan kedua, defendan kedua merupakan privi dan dengan ini, merupakan pihak sepatutnya kepada kausa tindakan plaintif-plaintif (lihat perenggan 17).

Defendan kedua dengan jelas dan tanpa disangkal, merupakan sebuah pemaju perumahan yang mempunyai reputasi dan pemain utama dalam industri pembangunan perumahan negara. Iklan-iklan defendan seperti yang direpresentasikan kepada plaintif-plaintif ialah bahawa defendan kedua, sebuah syarikat awam yang berada di Papan Utama BSKL, merupakan pihak yang bertanggungjawab untuk pembangunan dan pengurusan projek defendan pertama. Sebagai subsidiari kepada defendan kedua, defendan pertama secara jelasnya diuruskan dan dikawal oleh defendan kedua dan bahawa defendan kedua sebagai syarikat induk defendan pertama secara aktif terbabit dalam aktiviti-aktiviti perniagaan defendan pertama. Oleh itu, meskipun defendan kedua wujud berasingan daripada subsidiari mereka, defendan pertama, defendan kedua bertanggungan untuk representasi-representasi yang dibuat oleh 23 | BA-22NCVC-136-05/2020 ejen defendan kedua, defendan pertama, yang menyebabkan plaintif-plaintif memeterai PJB”. [35] Based on the principle laid down in Siti Shamsiah (supra), this Court is inclined to agree with the Defendants’ contentions that the filing of Suit 20 was in order and without any malice. Any decision on the claims in Suit 20 is subject to a full trial by the Court. Whether the Plaintiff is able to prove the computation for the loss of anticipated profit of RM80,000,000.00 from the termination of alleged JVP. [36] The finding of this anticipated loss of profit was not backed up with specific data and detailed calculations that were aligned with the alleged project. Not to mention, Plaintiff also failed to put forward to this Court any official report from either Plaintiff’s company, or KL Northgate Sdn. Bhd. to corroborate this claim that was brought up to the Court. [37] The Plaintiff in this case had only relied upon an Internal Memo from their company that was prepared by PW3 to their Managing Director dated 10th of May 2019, which stated that - “… our minimum achievable net profit margin for such a Project especially on the preliminary part would have been approximately 30% of the estimated feasibility study carried out. 24 | BA-22NCVC-136-05/2020 The 30% figure is based on our experience in such development and on the market study risk factors, 30% comes to around RM80,000,000.00 which would have been the minimum achievable net profit margin for this Project.” [38] Based on this statement, the findings were made only based on the experience of the Plaintiff’s staff but it was never illustrated in these findings the exact calculations for the anticipated profit. During the Cross-Examination process, PW3 himself had agreed that the finding was made verbally and there were no specific findings for the calculated anticipated profit of RM80,000,000.00. [39] In light of this, this Court is of the view that not only that the Plaintiff did not manage to satisfy this Court concerning the existence of the alleged JVP, but also the Plaintiff had plainly failed to demonstrate to the Court any substantial evidence to corroborate their calculation of RM80,000,000.00 that was allegedly claimed to be the anticipated profit from the alleged project. Hence this Court will not entertain such claim. [40] The Federal Court case of Tan Sri Khoo Teck Puat & Anor V Plenitude Holdings Sdn Bhd [1994] 3 MLJ 777 had properly laid down this principle of the importance of adducing credible and substantial 25 | BA-22NCVC-136-05/2020 evidence to prove the assessment of damages that was claimed by a party as follows: “Tan Sri Khoo and the vendor shall pay to the purchaser damages to be assessed for breaches of the undertakings, even though affirmed on appeal, can in no way relieve the purchaser of satisfying the fundamental requirement of having to prove its loss (if any) arising from those breaches. To hold otherwise would amount to dispensing with proof of quantum altogether, and that cannot be the law. In so saying, we are reminded of the words of Lord Goddard in Bonham-Carter v Hyde Park Hotel Ltd 64 TLR 177 at p 178: … plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, so to speak, throw them at the head of the court, saying: 'This is what I have lost, I ask you to give me these damages'. They have to prove it.” [41] It is also noted by this Court that the Plaintiff never commenced any action against KL Northgate Bhd. For termination of their agreement for the alleged JVP. Further, it has been admitted that they never tried to meet KL Northgate to renegotiate or to appeal the termination of the alleged multi-million project. PW3 ‘s Cross Examination: 26 | BA-22NCVC-136-05/2020 Q: Yes. You do know, right? When, KL Northgate terminated their agreement, did you as a manager of the company go and appeal or had negotiations with KL Northgate? A: I didn’t personally go but yes, there was. Q: You didn’t go but there was? A: Yes. Q: Who did, went to KL Northgate? Q: Not sure. [42] It is trite law that in any striking out application, a claim should not be struck out unless the case is obviously unsustainable. This is the principle enunciated in the case of Bandar Builder Sdn Bhd & 2 Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7. The Supreme Court held as follows:- “The principle 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 are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule. (per Lindley M.R. in Hubback v Wilkinson [1899] 1 QB 86, p.91), and this summary procedure can only be adopted when it can be clearly seen that claim or answer is on the face of it “obviously unsustainable”. 27 | BA-22NCVC-136-05/2020 [43] The same principle applies to the present case in that although it is not an application under Order 18 of the Rules of Court 2012, it involves a full trial. Plaintiff’s claim should be struck out as it is proven by documentary and oral evidence of witnesses that the claim made is without merit. Conclusion [44] Based on the foregoing, this Court is of the view that the Plaintiff is unable to prove its case to sustain the claims and Defendants have established that they have a a genuine cause of action without any ill-intention in Suit 20 that had been re-filed which will be heard and have yet to be determined by the Shah Alam High Court Judge. Therefore, Defendants have the locus standi to file an action against the Plaintiff in regard to the contractual obligations between the purchasers and a developer without the obligation to lodge matters to the JMB. [45] The Plaintiff had failed to prove the existence of the alleged JVP by failing to adduce credible evidence as well as material witnesses to corroborate their contentions. The Plaintiff had also failed to justify the discrepancies in proving the computation of the alleged loss of anticipated profit of RM80,000,0000.00 with substantial evidence to show that they had indeed suffered the said damages. 28 | BA-22NCVC-136-05/2020 [46] Hence, this Court finds that Plaintiff’s claims have no basis and therefore, should be struck out. Date: 11th November 2022 signed (ROHANA ABD MALEK) Pesuruhjaya Kehakiman Mahkamah Tinggi NCVC 2 Shah Alam 29 | BA-22NCVC-136-05/2020 Counsels: Solicitor for the Prayer/Plaitif Tetuan Nandrajog 3-9-9, Tower 3, UOA Business Park, No. 1, Jalan Pengaturcara U1/51A, Section U1, 40150 Shah Alam Selangor Tel: 03-55697882 Email: nandrajog.co@gmail.com Solicitor for the Defendent: Tetuan Puvarasan & Associates LK1-01-03, Blok LK1 Laman Komersial Areca Putra Nilai 71800 Nilai Negeri Sembilan Tel: 012-4417119 Email: puvarasanbalaiyah@gmail.com 30 | BA-22NCVC-136-05/2020 Legislation referred: Evidence Act 1950, s.3, 101,102,114 Strata Management Act 2013, s.143 Rules of Court 2012 Cases referred:

Syarikat Steelcon Sdn Bhd v Kee Cheng Teck [2015] 9 MLJ 740

Alan Goh Keng Chian & Ors v KL Landmark Sdn Bhd & Ors [2020] 1

International Times & Ors v. Leong Ho Yuen [1980] 2 MLJ 86

Hong Yik Trading v Liziz Plantation Sdn Bhd [2017] 5 MLJ 398

Siti Shamsiah Ab Karim & Ors v Melombong & Perumahan Sdn Bhd &

Anor [2013] 10 MLJ 303 Tan Sri Khoo Teck Puat & Anor V Plenitude Holdings Sdn Bhd [1994]

Bandar Builder Sdn Bhd & 2 Ors v United Malayan Banking