Perbadanan Pengurusan Bay Avenue v Leong Wooi Kit (PA-22NCvC-174-10/2021)

LEONG WOOI KIT (No. KP:530203-07-5431)

LIM CHIN LENG (No.KP:760131-07-5283)

PO CHUN LAM (JONATHAN) (No.KP:741115-07-5431) …DEFENDAN-DEFENDAN (melalui tindakan asal) DAN ANTARA 1. LEONG WOOI KIT (No.KP:530203-07-5431)

LIM CHIN LENG (No.KP:760131-07-5283)

PO CHUN LAM (JONATHAN) (No.KP:741115-07-5431) ...PLAINTIF-PLAINTIF 12/02/2025 14:28:55 PA-22NCvC-174-10/2021 Kand. 209

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CHE SEOW FOON@ CHOW SEOW FOON

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DAVID OH SENG EE RCC PROPERTY MANAGEMENT SDN BHD ...DEFENDAN-DEFENDAN (melalui tuntutan balas) GROUNDS OF JUDGMENT [ENCLOSURE 194] INTRODUCTION [1] This is the Plaintiffs' (counter-claim) application for judgment for admission (Enclosure 194) filed on 1.11.2024 in accordance with Order 24 rule 3 of the Rules of Court 2012 (ROC 2012). [2] This application was allowed on January 21, 2025. The First, Second, Third, Fourth, Fifth, Sixth, Eight and Nine Defendants (D1-D6 and D8-D9) expressed their dissatisfaction with this ruling and subsequently filed an appeal to the Court of Appeal on 5.02.2025. The parties are referred to as they were in the High Court. CAUSE PAPERS Enclosure 1 [3] The Plaintiffs in the counterclaim [Enclosure 1] are seeking for the, inter alia the following prayers:

Satu Deklarasi yang mengesahkan bahawa Mesyuarat Agung Luar Biasa yang dijalankan pada 14.10.2021 (“EGM tersebut”) dan pelantikan Defendan Ke-2 sehingga Defendan ke-11 (melalui tuntutan balas) sebagai ahli jawatankuasa pengurusan pada EGM tersebut adalah tidak sah dan terbatal (‘null and void’);

Satu Deklarasi bahawa kesemua resolusi-resolusi yang diputuskan dalam EGM yang dijalankan pada 14.10.2021 tersebut adalah tidak sah dan terbatal (‘null and void’);

Satu Deklarasi bahawa kesemua resolusi-resolusi yang diputuskan dalam AGM bertarikh 3.09.2023 yang berkenaan dengan kesahan EGM bertarikh 14.10.2021, AGM bertarikh 19.05.2022 dan pelantikan Plaintif-Plaintif dalam Tuntutan Balas adalah tidak sah dan terbatal.

Satu Deklarasi bahawa Plaintif-Plaintif (melalui tuntutan balas) adalah ahli-ahli jawatankuasa pengurusan yang sah kepada Perbadanan Pengurusan Bay Avenue pada tempoh 14.10.2021 hingga 22.11.2022,

Satu injunksi terhadap Defendan Pertama dalam Tuntutan Balas dilarang menuntut kos-kos yuran guaman dan/atau perbelanjaan berkaitan dengan tindakan sivil Defendan Pertama dalam Tuntutan Balas. Enclosure 194 [4] In the interim, the Plaintiffs have filed Enclosure 194 for this Court to determine under Order 27 of the ROC 2012, while the previous Enclosure remains pending. The pertinent cause paper for Enclosure 194 are:

Notice of Application dated 1.11.2024 (Enclosure 194)

Affidavit in Support affirmed by Lim Chin Leng on 1.11.2024 (Enclosure 195)

Affidavit in Reply of 1st — 6th Defendant, 8th and 9th Defendant affirmed by Dato’ Che Seow Foon @ Chow Seow Foon on 22.11.2024 (Enclosure 197); and

Affidavit in Reply affirmed by Lim Chin Leng on 6.12.2024 (Enclosure 198) [5] The prayers made by the Plaintiffs in Enclosure 194 are as follows.

Satu deklarasi yang mengesahkan bahawa Mesyuarat Agung Luar Biasa yang dijalankan pada 14.10.2021 ("EGM tersebut") dan pelantikan Defendan Ke-2 sehingga Defendan ke- 11 (melalui tuntutan balas) sebagai ahli jawatankuasa pengurusan pada EGM tersebut adalah tidak sah dan terbatal ('null and void');

Satu deklarasi bahawa kesemua resolusi-resolusi yang diputuskan dalam EGM yang dijalankan pada 14.10.2021 tersebut adalah tidak sah dan terbatal ('null and void');

Satu deklarasi bahawa kesemua resolusi-resolusi yang diputuskan dalarn AGM bertarikh 3.09.2023 yang berkenaan dengan kesahan EGM bertarikh 14.10.2021, AGM bertarikh 19.05.2022 dan pelantikan Plaintif-Plaintif dalam Tuntutan Balas adalah tidak sah dan terbatal.

Satu deklarasi bahawa Plaintif-Plaintif (rnelalui tuntutan balas) adalah ahli-ahli jawatankuasa pengurusan yang sah kepada Perbadanan Pengurusan Bay Avenue pada tempoh 14.10.2021 hingga 22.11.2022;

Satu injunksi terhadap Defendan Pertama dalam Tuntutan Balas dilarang menuntut kos-kos yuran guaman dan/atau perbelanjaan berkaitan dengan tindakan sivil Defendan Pertama dalam Tuntutan Balas;

Satu perintah bahawa Defendan Ke-2 sehingga Defendan Ke-12 dalam Tuntutan Balas rnemberi akaun terperinci untuk kesemua amaun bayaran yang dibuat dan wang yang dikeluar dari kesemua akaun bank Perbadanan Pengurusan Bay Avenue dari 9.11.2021 sehingga tarikh perintah ini dan pemberian akaun hendaklah diberi kepada Plaintif-Plaintif dalam Tuntutan Balas dalam tempoh 7 hari dari tarikh perintah ini;

Satu perintah bahawa Defendan Ke-2 sehingga Defendan Ke-12 dalam Tuntutan Balas mernberi akaun terperinci untuk:

(I) kesemua wang yang dikutip dari mana-mana pemilik-pemilik parsel di Bay Avenue;

kesemua wang yang diterima dari mana-mana pemilik-pemilik parsel di Bay Avenue ataupun mana-mana pihak atau individu untuk Perbadanan Pengurusan Bay Avenue termasuk wang tunai atau cek atau nilaian wang dalam apa-apa bentuk lain, dari tempoh 14.10.2021 sehingga tarikh perintah ini dan pemberian akaun hendaklah diberi kepada Plaintif-Plaintif dalam Tuntutan Balas dalam tempoh 7 hari dari tarikh perintah ini;

Gantimgi am;

Gantirugi teladan;

Gantirugi teruk;

Faedah dalam kadar 5% setahun terhadap gantirugi am, gantirugi teruk dan gantirugi teladan dikira dari tarikh penghakiman sehingga tarikh penyelesaian penuh;

Kos; dan

Faedah dalam kadar 5% setahun terhadap kos dikira dari tarikh penghakiman sehingga tarikh penyelesaian penuh. BACKGROUND FACTS [6] The Plaintiffs' application for the disposal of the case on a legal point, in accordance with O14A of the ROC 2012 (Enclosure 172), was dismissed by this Court on September 5, 2024. [7] Following the dismissal of Enclosure 172, CP Landmark Sdn Bhd has filed an Originating Summons PA-24NCVC-1067-08/2024 (the OS) against the individuals listed below: -

Dato’ Che Seow Foon @ Chow Seow Foon (2nd Defendant of the current suit)

Tan See Wie (3rd Defendant of the current suit)

Lee Kheng Seong

Ng Boon Thiam (6th Defendant of the current suit)

Teng Bee Kim

Lim Poh Lee

Oh Soong Tin [8] The aforementioned Defendants in the referenced OS serve as committee members of D1 in the present case, namely Perbadanan Pengurusan Bay Avenue, during the relevant period. [9] D2 submitted the following Affidavits in the aforementioned OS to challenge the said OS:

Afidavit Jawapan Defendan Pertama, Defendan Kedua dan Defendan Keenam (untuk menentang Saman Pemula Plaintif dan menjawap Afidavit Sokongan Plaintif) on 13.09.2024 (“the 1st Affidavit”).

Afidavit Jawapan Defendan Pertama, Defendan Kedua dan Defendan Keenam (untuk menentang Permohonan Plaintif untuk Injunksi Interim — Lampiran 3 dan menjawab Afidavit Sokongan Plaintif bertarikh 30.08.2024-Lampiran 4) on 13.09.2024 (“the 2nd Affidavit”). (The Affidavits previously mentioned shall be referred to as "the aforementioned Affidavits.") [10] In this application, the Plaintiffs highlighted that both Affidavits presented in the previously mentioned OS were affirmed by D2 on 13.11.

This indicates that the admissions found within these Affidavits were made after the dismissal of Enclosure 172 in this matter. [11] The Plaintiffs requested that this court review the Affidavits submitted by D2 on behalf of D1 in this matter, specifically Perbadanan Pengurusan Bay Avenue. In paragraph 1 of the Affidavits, D2 asserted that: “Saya merupakan Defendan Pertama (“D1”) yang dinamakan di atas. Saya juga adalah Pengurusi dan Ahli Jawankuasa Pengurusan (“AJK”) dalam Perbadanan Pengurusan Bay Avenues Bay Avenue Management Corporation (“BAMC”) yang telah diberi kuasa oleh semua Defendan untuk mengikrarkan Afidavit in bagi diri sendiri Defendan Kedua (“D2”), Defendan Keenam (“D6”) dan BAMC.” [12] The Plaintiffs stated that the claims made by D2 in the previously mentioned Affidavits were similarly expressed and sworn on behalf of D1 (Perbadanan Pengurusan Bay Avenue). The Defendants did not dispute the assertion made by the Plaintiffs in paragraph 7 of the Affidavit in Support (Enclosure 195), which claims that the Affidavit was filed on behalf of D1-D6, D8 and D9. The Plaintiffs cited the specific paragraph, namely: Paragraph 7 of the Enclosure 195 “Saya sesungguhnya menyatakan bahawa Defendan Ke-2 (melalui tuntutan balas) secara khususnya menyatakan bahawa Afidavit-Afidavit tersebut adalah dibuat bagi pihak Defendan Pertama (melalui tuntutan balas). [13] The Plaintiffs further asserted that the acknowledgment made by D2, representing both D2 and D6, is evident in the post on Facebook, was published by D2 in his role as the Chairman of the D (Perbadanan Pengurusan) in the current lawsuit. [14] The post on Facebook was published on 1.08.2024 in the group titled "We Love Bay Avenue," in which they stated that: “There are even some people even say that lam an illegal chairman. Come on. I was elected as Chairman of Bay Avenue during the EGM on 22 November 2022. The law clearly states that I can be Chairman for two years, which means I will be a Chairman in November 2024, but until now I am still the lawful Chairman.” ANALYSIS AND DECISION [15] It is appropriate for this Court to refer to Order 27 Order rule 3(1) of the ROC 2012 prior to proceeding with the discussion concerning this application, as it constitutes the fundamental basis of Enclosure 194 application. [16] Order 27 rule 3(1) of the ROC 2012 permits the Court to render a judgment it deems appropriate when a party acknowledges a fact. This acknowledgment is not limited to the pleadings but may also be obtained from additional sources. Order 27 rule 3(1) of the ROC 2012 states as follows: “ Where admissions of fact are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may give such judgment, or make such order, on the application as it thinks just.” [17] The aforementioned Order allows a party involved in the lawsuit to request a final judgment concerning a part of the relief or order requested in the statement of claim. There are established rulings regarding this matter, made by the Appellate Court. [18] The Court of Appeal has clearly articulated the governing principles in the case of Kawan Lama Builders Sdn Bhd & Anor v. Syarikat Lumut Quarry Sdn Bhd [2021] 1 CLJ 313 ("Kawan Lama Builders") as follows: “(i) the purpose of the rule is to enable a party to obtain speedy judgment where the other party has made a plain admission entitling the former to succeed in his claim and undisputed facts that provide an evidentiary basis for the court to conclude that there are no triable issues for trial;

(ii) such admission may be made in the pleadings before the court or in a letter or other documents or agreements (Vithal Kumar Jayaraman v. Azman Md Nor [2010] 3 CLJ 332);

(iii) judgment will not be entered where there is a serious question of law and fact to be argued or where there is a defence to the action (Affin Bank Bhd v. Successcom Enterprise Sdn Bhd [2009] 4 CLJ 764).” [19] In the case of Lim Quee Lin & Ors v Ng Jit Thye & Ors [2022] CLJU 1101, the Court held that: “ [11] As to what is an admission upon which the court will be prepared to act on an application under O. 27 r. 3(1) has been stated in a number of cases including Kawan Lama Builders. These cases agreed with VC George J who in Perwira Habib Bank (M) Bhd v. Hj Abdullah Hj & Anor [1985] 2 CLJ 489 stated the following:

Whether the letter was written before or after the statement defence was filed is not the point. The question is whether what is stated is an admission of fact and if so whether that admission entitles the applying party to a judgment or order.

The admission must amount to an unequivocal admission before the judgment by the summary procedure provided by O. 27 r. 3(1) can be granted.

The admission may be implied from all the circumstances. [20] The Learned Counsel for the Plaintiffs assert that it is essential to recognize that Order 27 rule 3(1) of the ROC 2012 pertains to admissions of fact. It is irrelevant whether such an admission was made in a pleading or through other means. This argument is supported by the case of Vithal Kumar a/l Jayaraman v Azman Md Nor[2010] 3 CLJ 332), in which the Court of Appeal indicated that the phrase "or otherwise" is applicable. The Court held that: “The words ’or otherwise in the said rule are of general application and justify the making of an order or judgment where an admission is made by letter or other relevant documents or agreements which clearly show that the defendant has no defence to the plaintiff's claim. They are not confined to admission contained in the pleadings alone. [21] There must be an admission by the parties involved in this case. The admission may be either express or implied, provided that it is unequivocal and unambiguous. Such an admission would be adequate to substantiate the claim or a part of the claim against the Defendant. In this instance, the admissions were documented in the Affidavit and also admitted by D2. [22] The issue before this Court is to determine if there exist admissions that meet the criteria outlined in Order 27 rule 3(1) of the ROC 2012 within the pleadings or other sources, which would entitle the Plaintiff to an order. In our case, the admissions were made in the said Affidavits filed in the said OS (both affirmed on 13.09.2024) and a Facebook Post posted on 1.08.2024. [23] According to the Affidavits presented, D2 acknowledged in the aforementioned Affidavit that D1 (Perbadanan Pengurusan) maintains that both the 2nd and 3rd Defendants are qualified to retain their positions until

22.11. 2024, as they were elected during the extra-ordinary General Meeting (EGM) held on 22 November 2022. [24] The Court is now presenting the pertinent Affidavits as enumerated below.

Paragraph 17 of the 1st Affidavit Oleh itu, BMC berpendapat bahawa D1 dan D2 layak memegang jawatan mereka sehingga 22.11.2024 (kerana mereka dilantik semasa EGM bertarikh 22.11.2022). Pada 2.08.2024, BAMC telah memfailkan satu tuntutan di Tribunal Pengurusan Strata (“Tribunal” dengan No. Tuntutan

(ii) Paragraph 19 of the 2nd Affidavit “Oleh itu, BAMC berpendapat bahawa D1 dan D2 layak memegang jawatan mereka sehingga 22.11.2024 (kerana mereka dilantik semasa EGM bertarikh 22.11.2022). Pada 2.08.2024, BAMC telah memfailkan satu tuntutan di Tribunal Pengurusan Strata (“Tribunal” dengan No. Tuntutan TPSZU/P-0742-8/2024(“Tuntutan 0742”)”

(iii) Facebook group “We Love Bay Avenue” “There are even some people even say that lam an illegal chairman. Come on. I was elected as Chairman of Bay Avenue during the EGM on 22 November 2022. The law clearly states that I can be Chairman for two years, which means I will not be Chairman in November 2024, but unfit now I am still the lawful Chairman.” (The reason D2 in the said Affidavits and the Facebook Post stressed that the appointment will only be ended on 22.11.2024 (admitted in the said Affidavit) or November 2024 (admitted in the Facebook Post) because of the according to paragraph 2(5) of the 2nd Schedule of the Strata Management Act 2013, an officer bearer cannot hold office for more than two consecutive years.) [25] The essence of the admissions made by the Defendants is that the Defendants only appointed as the committee member and office bearer of D1 (Perbadanan Pengurusan) on EGM convened on 22.11.2022 and not EGM convened on 14.10.2021. Further, the Defendants are eligible to be appointed as the officer bearer until November 2024 due to paragraph 2(5) of the 2nd Schedule of Strata Management Act 2013. [26] One of the issues argued and presented by the Plaintiffs in our case pertains to the validity of the Defendants' appointment as committee members during the EGM held on 14.10. 2021. Given that the Defendants have acknowledged their election date as November 22, 2022, it follows that they have implicitly conceded that their election at the EGM on 14.10. 2021, was invalid. [27] D2 consistently emphasized during the admission that her term as an officer bearer will conclude in November 2024, specifically on 22.11. 2024, as they were elected on 22.11. 2022. The Defendants are precluded from contending that their appointment commenced on 14.10.2021. [28] The relief requested by the Plaintiffs is precise, specifically a declaration affirming that the Plaintiffs served as valid committee members from 14.10. 2021, to 22.11. 2022. The remaining requests for relief are contingent upon the declaration sought by the Plaintiffs. If the Defendants were appointed solely during the EGM held on 22.11. 2022, it follows that the Plaintiffs were the valid committee members during the period from 14.10. 2021, to 22.11. 2022. [29] According to the Affidavit, the Defendants acknowledged that their appointment as committee members occurred solely on 22.11.2022. Furthermore, the Defendants conceded that their appointment as committee members during the EGM held on 14.10. 2021, is invalid and without effect. The fact that the Defendants admitted that the committee members were only elected on 22.11.2022 also admitted that the EGM convened on 14.10.2021 is invalid because if the 2021 EGM is valid then the appointment of the Defendants would start from 14.10.2021 and not 22.11.2022. [30] The crux of the Plaintiffs' claims against the Defendants revolving on the issue as to who are the valid committee member of the 1st Defendant, i.e. Perbadanan Pengurusan Bay Avenue for the period between 14.10.2021 until 22.11.2022 and the validity of the appointment of the Defendants as the committee member during the EGM convened on 14.10.2021.The Plaintiffs assert that it is evident from the admission made by the D2 in the referenced Affidavit that the statement pertains to the appointment as a committee member rather than the legitimacy of the 2022 EGM. [31] Therefore, the essence of the admission is that D2 relates specifically to the validity of their appointment as committee members during the 2022 EGM, and not to the validity of the EGM itself. Consequently, this Court finds it difficult to disagree with the Plaintiffs on this matter. (refer to Paragraph 13 of Enclosure 197: “Oleh itu, pernyataan-pernyataan dalam afidavit saya adalah mengenai kesahan EGM bertarikh 22.11.2022 sahaja. Malah, afldavit saya tidak sekalipun merujuk kepada EGM bertarikh 14.10.2022.”) [32] In the case of Pewira Habib Bank(M) Bhd v Hj Abdullah Hj Sulaiman & Anor [1985] 2 CLJ 489, VC George J (as he then was) held as follows: “It was pointed out that in the instant case the letter on which the plaintiffs depend on was written after the statement of defence was filed. In my view whether the letter was written before or after the statement of defence was filed is not the point. The question is whether what is stated is ‹in admission of fact rind If so whether that admission entitles the applying party to a judgment or order. The admission may be implied from all the circumstances but the Court must be satisfied that it amounts to an unequivocal admission for it to pronounce judgment by the summary procedure provided by O. 27 r. 3.” [33] The Defendants have also invoked the principle of res judicata, asserting that the matter concerning the appointment and the legitimacy of the meeting has already been adjudicated by this Court in Enclosure 172 via application O14A ROC 2012. [34] In reply to the Plaintiffs’ Submissions, the Learned Counsel for Defendants submit that the Plaintiff has taken it out of context. In the Enclosure 172, the Plaintiffs claimed that the Defendants’ appointments during the EGM on 22.11.2022 and the EGM on 22.11.2022 were invalid, and the Defendants replied to the Plaintiff by the Affidavits. There was no challenge to the Defendants’ appointment during the EGM dated 14.10.2021 nor the validity of the EGM dated 14.10.2021. On 21.11.2024, the High Court struck out the Enclosure 172. The Defendants submit that the facts and/or cause papers of the matter in the Enclosure 172 have been dealt with. [35] The Court, however, does not concur with this assertion, as the application resolved under Order 14A and Order 27 of the ROC 2012 pertains to distinct issues. [36] In the case of Kerajaan Malaysia v Mat Suhaimi Shafiei [2018] 2 MLJ 133, The Federal Court held that the said doctrines are founded on the consideration of public policy that is in the public interest to have finality in litigation as no one should be vexed twice for the same subject matter or complaint. The Court held that: “[19] The Latin term “res judicata “literally translated means ‘matter adjudged’. The full maxim is res judicata pro veritate accipitur which means ‘a matter adjudged is taken as truth’. In explaining what is res judicata, in Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783; [1995] 3 MLJ 189, the Supreme Court said: What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation - interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action - nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. Since a res judicata creates an estoppel per rem judicatum, the doctrine of res judicata is really the doctrine of estoppel per rem judicatum, the latter being described sometimes in a rather archaic way as estoppel by record. Since the two doctrine are the same, it is no longer of any practical importance to say the res judicata is a rule of procedure and that an estoppel per rem judicatum is that of evidence. Such dichotomy is apt to give rise to confusion....” [37] The criteria for each application varied. Due to the distinct legal considerations associated with each application and based on the cases of Kerajaan Malaysia v Mat Suhaimi Shafiei (supra) and Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783; [1995] 3 MLJ 189, the matter was not res judicata, as it was not based on the same issues that the court addressed in Enclosure 172. [38] In the case of Joseph bin Paulus Lantip & Ors v Unilever Plc [2018] supp MLJ 151, The Federal Court in dismissing the appeal with costs, held that:

The application under O 18 r 19(1) of the RHC involves a different exercise from that of O 11 of the RHC. In the latter case, the court merely considers whether it could exercise jurisdiction over the respondent. Whereas, in the O 18 r 19(1) of the RHC application, the court had to consider whether, on the merits, the appellants’ claim was sustainable, vexatious or otherwise an abuse of the process of court. In the present case, when the High Court heard the respondent’s application under O 12 r 7 of the RHC, it had examined and adjudicated on the issue of whether the appellants’ claim, assuming it to be true, would attach liability against the respondent and that liability was within the territorial jurisdiction of the court. At that stage, the court did not examine and adjudicate on the merits of the claim (see para 48).

There was nothing before the present court to show that the issues raised in the striking out application were relied upon by the respondent in support of its application under O 12 r 7 of the RHC. Therefore, in the circumstances, the court held that the respondent could not be barred, on the ground of res judicata, from raising these issues in the striking out application (see para 50).

The appellants had not established or shown that both the applications under O 18 r 19 and O 11 (should actually read O 12 r 7) of the RHC were premised on similar grounds. Therefore, the question should rightly be read without reference to the words ‘on similar grounds. In the circumstances, the answer to the said question should be in the negative (see para 51). [39] Conversely, the application under Order 27 of the ROC 2012 clearly indicates that if an admission is present, it must be addressed unless there are significant matters that require examination. The factual disputes associated with, if any, do not warrant judgment to be entered under Order 27 rule 3 of the ROC 2012. [40] In the Case of Affin Bank v Successcom Enterprise Sdn Bhd [2009] 4 CLJ 764, the Court of Appeal held that: “In an application for judgment based on admission it is a principle of law that the court has power to enter judgment against a defendant based on an admission of facts made on pleadings or otherwise under O. 27 r. 3 of the RHC 1980. However, it is not a matter of right that a plaintiff can obtain judgment based on an admission of facts under O. 27 r. 3 of the RHC

The court has a discretion as to whether judgment should and such discretion is exercised depending on the circumstances of the case. (See the case of In Re Wright Kirke v. North [1895] 2 Ch. 747). The court will only allow judgment to be entered under O. 27 r. 3 of the RHC 1980 if there is an unequivocal admission of fact which entitles the plaintiff to enter judgment against the defendant. If liability turns on a question of law or mixed fact and law, judgment cannot be obtained. (See the case of Perwira Habib Bank (M) Bhd v. Hj. Abdullah Hj. Sulaiman & Anor. [1985] 2 CLJ 489; [1985] CLJ (Rep) 639). As such, if a plaintiff cannot show that all the components of his cause of action have been admitted, the plaintiff is not entitled to judgment under O. 27 r. 3 of the RHC

The court will not exercise its discretion to allow judgment to be entered under O. 27 r. 3 of the RHC 1980 if there are issues to be tried or there is a defence to the action.” [41] A part from the above admissions which are sufficient to establish that Defendants conceded that their appointment as committee members during the EGM held on 14.10.2021, is invalid and without effect. [42] The Defendants did not provide any response or assertion regarding the admission made by D2 in the Facebook The Plaintiffs have submitted this application in accordance with Order 27 of the ROC 2012, relying on the purported admission and acknowledgment of facts. [43] Order 27 rule 3(1) of the ROC 2012 establishes a summary procedure that allows the court to issue a judgment at its discretion when there is an unequivocal admission of fact that substantiates the Plaintiff's right to a judgment against the defendant, as noted by Azhar Ma’ah JCA in the case of Hasrat Usaha Sdn Bhd v Pati Sdn Bhd [2011] 3 MLJ 343. CONCLUSION [44] Before reaching a conclusion, it is important to officially note that in this instance, D12 has expressed its support for the Plaintiffs' claims against the Defendants revolving on the issue as to who are the valid committee member of D1, i.e. Perbadanan Pengurusan Bay Avenue for the period between 14.10.2021 until 22.11.2022 and also the validity of the appointment of the Defendants as the committee member during the EGM convened on 14.10.2021. [45] For the above reasons this is a fit and proper case to enter judgment on the prayers sought by the Plaintiffs under Order 27 rule 3(1) of the ROC

Accordingly, this Court:

allowed prayers (a), (b) (c) (d), (e), (f), (g), of Enclosure 194;

(ii) dismissed prayers (h) (i) (j) and (m); and

(iii) costs of RM10,000 to be paid by the Defendants (except D12) to the Plaintiff (in counter-claims) and subject to allocator. …………sgd…………… AZIZAN MD ARSHAD Judge High Court (3) George Town Pulau Pinang Dated: 07 February 2025 Counsel for the Plaintiff: Nikki Cheng Tetuan Chan De Vries & Co 51, Jalan Westlands, 10400 George Town, Pulau Pinang Counsel for the Defendant: Lee Huai Tetuan Ong & Manecksha 200, Victoria St, Georgetown, 10300 George Town, Penang Cases referred: Legislations referred to:

Order 24 rule 3 of the Rules of Court 2012 (ROC 2012)

Order 27 of the ROC 2012

O14A of the ROC 2012

Order 27 Order rule 3(1) of the ROC 2012 Cases referred to:

Kawan Lama Builders Sdn Bhd & Anor v. Syarikat Lumut Quarry

Lim Quee Lin & Ors v Ng Jit Thye & Ors [2022] CLJU 1101

Vithal Kumar a/l Jayaraman v Azman Md Nor [2010] 3 CLJ 332

Pewira Habib Bank(M) Bhd v Hj Abdullah Hj Sulaiman & Anor [1985] 2 CLJ 489

Kerajaan Malaysia v Mat Suhaimi Shafiei [2018] 2 MLJ 133

Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783; [1995] 3 MLJ 189

Joseph bin Paulus Lantip & Ors v Unilever Plc [2018] supp MLJ 151

Affin Bank v Successcom Enterprise Sdn Bhd [2009] 4 CLJ 764

Hasrat Usaha Sdn Bhd v Pati Sdn Bhd [2011] 3 MLJ 343