REINIER JACOBUS BERNARDUS BOUWMEESTER & 89 OTHERS v MRCB SEPUTEH LAND SDN BHD (dahului dikenali sebagai Gapurna Land Sdn Bhd) (WA-22NCvC-481-08/2022)

Reinier Jacobus Bernardus Bouwmeester

Chi Mee Lan

Kenichi Nakamura

Devanandan A/L S Subramaniam

Paul Chin Khiun Kuek

Chong Pek Lin @ Chong Phek Lin

Kumaravel A/L P Sithamparam

Wong Kar Jee

Loh Chew San

Tai Kim Chin

Tai Teng Kooi

Lim Cheak Sern

Lim Horng Cherng

Yeo Yean Khun

Loh Yen Ni

Ung Ee Jin

Low Eng Joo

Ho Yew Hou

Ng Meng Chin

Mohammad Jawaid

Naheed Saba

Chong Sook Voon

Chong Sook Feng

Chia Yong Seng

Sharon Chong Foh Ai

Ravindren A/L Krishnan

Nirmala A/P A Madaven

Kuan Kong Eng

Pua Leong Chai

Tai Pih Yih 18/09/2025 09:17:08

Lim Khong Leng

Prethipkumar A/L Watalingam

S.Aghasthiya Jothy A/P Suppiah

Johnathan Ti Teng Yao

Jessie Ken Tzu Hsien

Ho Kok Meng

Boo Mook Lan

Lim Siang Yee

Sugantha A/P Muthukrishnan

Prema Muthukrishnan Dr C Prema

Hii Poh Tiong

Chai Siew Kiaw

Hii Chin Loung

Zheng Tingting

Premraj A/L P Mahendra

Cheong Yian Hun

Lim San Peen

Ong Siok Lian

Lee Jun Hui

Wu Pom Yoke

Teh Nina @ Teh Siew Yee

Soo Hoo Siew Kheng

Oh Chen Hoong

Cheong Mei Kuen

Lai Hau Mooi

Lian Jia Hong

Low Sai Mon

Manjeet Kaur A/P Jeswant Singh

Zaimi Bin Salleh

Noormalah Binti Abdullah

Kuganesh A/L S Govindamohan

Soo Hui Hui

Vignesh Krisnan

Kim Sun Kyung

Sehu Kok Chee

Reagan Kua Chon Hon

Fong Chee Hung

Ooi Pek Guan

Kim Byung Hee

Tay Kay Luan

Linden Leong Siew Chun

Andrew Chan Yew Ming

Teh Kak Tong

Chin Kim Mee

Thitirat Maleeratwatana

Yong Chee Keong

Lydian Saw Lee Teng

Chin Gee Hoo

Subhashini Ganapavarapu

Leela Krishna Ganapavarapu

Looi Rui Qin

Teoh Ewe Yang

Adrian Heong Peng Wei

Heong Kwong Meng

Liew Chee Ho

Law Mei Ling

Fu Yueh Yee

Lai Ming Hwee

Remeggious Krishnan

Anne Anshumathi Raj …Plaintif-Plaintif DAN MRCB Seputeh Land Sdn. Bhd. (dahului dikenali sebagai Gapurna Land Sdn Bhd) [No. Syarikat : 200701029218 (787242-M)] …Defendan GROUNDS OF JUDGMENT (After Full Trial) INTRODUCTION [1] The Plaintiffs filed this Suit against the Defendant alleging negligence and/or fraudulent misrepresentation to induce the Plaintiffs to purchase condominium units developed by the Defendant. The misrepresentation was pertaining to a monorail station that would be built with a covered link bridge connected to a development project known as “Vivo Residences, 9 Seputeh” (Project). [2] The Plaintiffs sought for the following reliefs against the Defendant-i. a declaration that the Defendant had negligently and/or fraudulently misrepresented to the Plaintiffs that the monorail station shall be built together with the covered link bridge connected to the Project; ii. an order that the Defendant shall be required to pay to the Plaintiffs for the loss in value of their Property for the Defendant’s negligent and/or fraudulent misrepresentation for the amount stated; iii. in the alternative, the Defendant shall pay to the Plaintiffs such amount as deem fair and reasonable; iv. costs of this action; and v. such other orders, relief and/or damages as deem fair and reasonable. [3]

The trial took place on 4.12.2023, 5.12.2023, 6.12.2023, 7.12.2023,

6.2024, 14.6.2024, 25.10.2024, 8.11.2024, 11.11.2024, 12.11.2024,

15.11.2024. [4] There was a total of sixty-two (62) witnesses who were called to testify at trial. Sixty (60) witnesses for the Plaintiffs and two (2) witnesses for the Defendant. [5] At the end of trial, this Court dismissed the Plaintiffs claim with costs. The reasons are as deliberated. BRIEF FACTS [6] The Plaintiffs are house buyers of the Project. The Defendant is the Developer for the Project. [7] Between 2014 to 2017, the Plaintiffs and the Defendant entered into the respective Sale and Purchase Agreements (SPAs) for the purchase of the condominium units in the Project. [8] The Plaintiffs contended, that the Defendant had negligently and/or fraudulently misrepresented the Plaintiffs that a monorail station shall be built with a covered link bridge connected to the Project and upon delivery of vacant possession, the monorail station would be easily accessible by the Plaintiffs via the covered link bridge. Thus, the Plaintiffs contended that the main selling point of the Project is the “accessibility” of the monorail transport. [9] Prior to the purchase of the Property, the Defendant had made representations in the brochures, and You Tube video that a monorail station (to be built) along a monorail line (to be built) with a covered link bridge (to be built) connecting the monorail station to the Project. [10] Accordingly, the Plaintiffs contended that the representations were in the following promotional materials prepared by the Defendant-

a brochure known as “Meet Redefined Living” (First Brochure);

a brochure known as “Nine Seputeh – Residential. Commercial.

a video of the monorail station posted on YouTube (Youtube Video). [11] Subsequently, by letters dated 13.05.2019 and 15.04.2019, the Defendant had issued a notice to the Plaintiffs for delivery of vacant possession of the Property. Parties’ Contentions [12] The Plaintiffs contended that reliance of the said representations, that the Plaintiffs purchased the Property from the Defendant. [13] The Plaintiffs contended that the representations made in the First Brochure, Second Brochure and Youtube Video (Representations) were not true and/or false and that the monorail station and the covered link bridge will not be built. Neither are there any signs of construction works. [14] According to the Plaintiffs, the purchase price of the Property was paid to the Defendant based on the value of the Property taking into consideration of the proximity and accessibility of the monorail station and the covered link bridge. [15] Given that the monorail station and covered link bridge will not be built at the location as represented by the Defendant, the Plaintiffs claims they had made an overpayment on the purchase price of the Property to the Defendant. The Plaintiffs further contended that by reason of the negligent and/or fraudulent misrepresentation committed by the Defendant, the Plaintiffs had incurred losses and/or damages. [16] Until the date this Suit is filed, the construction of the monorail station and the covered link bridge has yet to commence. [17] On the other hand, the Defendant denies having made any negligent and/or fraudulent misrepresentations to the Plaintiffs to induce the Plaintiffs to enter into the SPAs. [18] According to the Defendant, at the time the Defendant’s brochures and promotional materials were issued, there was a proposed project for the construction of a monorail line and monorail station in the vicinity of Vivo, which was to be constructed by a 3rd party. [19] As the construction of the proposed monorail line and station was merely a proposal and was not within the control of the Defendant, the Defendant has stated in its brochures and promotional material that the monorail station and the covered link bridge were merely “proposed”. [20] The Defendant contended that it is stated in some of its promotional material that the information contained therein “may be changed or deleted or altered at any time without prior notice and/or subject to amendment as may be required by the developer”, “shall not be construed or deemed to be representation by the developer” and “cannot form part of an offer or contract” as all renderings and drawings are “merely artist’s impressions only”. [21] According to the Defendant, the reference to “public rail transport” in the Defendant’s brochures and promotional material is a reference to public rail transport as a whole, including nearby rail transport such as KL Sentral, Mid Valley KTM Station, Seputeh KTM Station and Angkasapuri KTM Station. [22] The Defendant also contended that the statements contained in the Defendant’s brochures and promotional materials are not statements of fact, but are instead vague statements, visionary statements and mere sales talk which are not legally binding on the Defendant, are not contained in the SPAs, and could not reasonably have been relied on by the Plaintiffs when entering into the SPAs. [23] The Defendant further contended that the Plaintiffs knew or ought to have known that the construction of the proposed monorail line and station was not definite and was not within the Defendant’s control and that the pricing of the parcels in Vivo was not based on the proposed monorail station and the covered link bridge, but was instead based on a multitude of factors. The factors include that Vivo is a mixed development located at a prime location, is readily accessible (even in the absence of monorail transport), the units are functionable and unique as the style of Vivo concentrates on modern architecture, and Vivo has luxurious facilities to be used by purchasers. [24] The Defendant further contended that the Plaintiffs’ claim was time-barred pursuant to Section 6 of the Limitation Act 1953, since the Plaintiffs' claim is founded on the tort of misrepresentation, therefore, the limitation period for filing the claim is six (6) years under s.6(1)(a) of the Limitation Act 1953, as it was the contention of the Plaintiffs’ case that, relying on the prior Representations, they entered into their respective SPAs between 2014 and

As such, some Plaintiffs’ claims are time-barred. This is because the cause of action accrued from when these Plaintiffs entered into the SPAs, as the Plaintiffs’ claim is premised on them being induced by the Representations to enter into the SPAs. ISSUES [25] This Court finds that the main issue is whether there is a negligent or fraudulent misrepresentation on the part of the Defendant. The Plaintiff contended that the monorail creation is the selling point, while the Defendant’s contention is that it was just a proposal. Summarily, the important issues are-

whether the Representations made in the brochures and You Tube video were true or false?

whether the Defendant had made the Representations knowingly or recklessly without caring whether it was true or false and thus, induced the Plaintiffs to enter into the SPAs?

whether the Plaintiffs had suffered any loss and/or damage, if there was negligent/fraudulent misrepresentation by the Defendant? ANALYSIS AND FINDINGS [26] It is trite law that the onus lies on the Plaintiff to prove his claim in order to succeed against the Defendant pursuant to sections 101 and 102 of the Evidence Act 1950. (See Datuk Mohd Ali bin Hj Abdul Majid & Anor v. Public Bank Berhad [2014] 4 MLRA 397; [2014] 4 MLJ 465; [2014] 6 CLJ 269; [2014] 4 AMR 301 and Tenaga Nasional Berhad (Formerly Lembaga Letrik Negara Tanah Melayu) v. Perwaja Steel Sdn Bhd (Formerly Perwaja Terengganu Sdn Bhd) [1995] 3 MLRH 196; [1995] 4 MLJ 673; [1995] 4 CLJ 670). [27] The Plaintiffs claim for negligent or fraudulent misrepresentation against the Defendant. In this regard, the word “misrepresentation” has been defined in Section 18 of the Contracts Act 1950 as- “Misrepresentation” includes—

the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

any breach of duty which, without an intent to deceive, gives an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; and

causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.” [28] While the word “fraud” is defined in Section 17 of the Contracts Act 1950 as- “Fraud” includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:

the suggestion, as to a fact, of that which is not true by one who does not believe it to be true;

the active concealment of a fact by one having knowledge or belief of the fact;

a promise made without any intention of performing it;

any other act fitted to deceive; and

any such act or omission as the law specially declares to be fraudulent. [29] In ALW Car Workshop Sdn Bhd v. AXA Affin General Insurance Bhd [2019] 4 MLJ 561; [2019] 7 CLJ 667, the Federal Court held- “On this point, we agree with the Court of Appeal in its findings, as stated in para 33 of its judgment, that: Whether any particular claim is tainted with fraudulent intent is a question of fact to be inferred from the surrounding circumstances. Making a false statement in the belief that it is true constitutes misrepresentation. However, making a false statement with the knowledge that it is false or not believing it to be true and the intention to deceive amounts to fraudulent misrepresentation. The test of fraudulent misrepresentation as enunciated by the Privy Council in Baron Akerheilm v Rolf De Marc [1959] AC 789 PC is as follows: The question was not whether the defendant in any given case honestly believed the representation to be true in the sense assigned to it by the court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense which he understood it albeit erroneously, when it was made.” [30] Further, in Sim Thong Realty Sdn Bhd v Teh Kim Dar [2003] 3 CLJ 227 (CA), the Court of Appeal held- “[23] Now, it is trite that the expression "misrepresentation" is merely descriptive of a false pre-contractual statement that induces a contract or other transaction. But it does not reflect the state of mind of the representor at the relevant time. The state of mind of the representor at the time he made the representation to the representee varies according to the circumstances of each case. It may be fraudulent. It may be negligent. Or it may be entirely innocent, that is to say, the product of a mind that is free of deceit and inadvertence. See, Abdul Razak bin Datuk Abu Samah v. Shah Alam Properties Sdn Bhd. Put another way, a misrepresentation is innocent "where the representor believes his assertion to be true and consequently has no intention of deceiving the representee." (Cheshire & Fifoot, Law of Contract, 6th edn) It is the particular state of mind of the representor that determines the nature of the remedy available to the representee. So, if the misrepresentation is made fraudulently, then the representee is entitled to rescission and all damages directly flowing from the fraudulent inducement.”. [31] Also, in Victor Cham & Anor v. Loh Bee Tuan [2006] 5 MLJ 359; [2006] 3 CLJ 770, the Court of Appeal explained the elements of fraudulent misrepresentation to be- “Fraudulent misrepresentation comes under the tort of deceit. To succeed in his claim, the respondent in this case need to establish that he had acted in reliance on the fraudulent misrepresentation and that the representation was false. He further needs to establish that the first appellant had made those statements knowingly or recklessly without caring whether it was true or false. And that as a result of reliance on such representation, the respondent had suffered damage.” [32] Therefore, the Plaintiffs must satisfy the following elements regarding a claim for fraudulent misrepresentation-

There must be a specific allegation of fraud.

The Representations must be unambiguous false statements of fact.

The Representations must be addressed to the Plaintiffs.

The Representations must be a material inducement to enter into the SPAs.

The Representations must be made with the knowledge that they are false, i.e., they must be wilfully false or at least made in the absence of any genuine belief that they are true or recklessly.

The Plaintiffs must have sustained damage by relying on the Representations. [33] It is the Plaintiffs’ position that the Representations were falsely made, and that the Defendant had made those statements knowingly or recklessly without caring whether it was true or false and as a result of the reliance on the Representations, the Plaintiffs suffered loss and damage. However, it has been the Defendant’s contention that the word “proposed” was used in the First Brochure, Second Brochure and the YouTube Video and the word “proposed” clearly suggests that the construction of the monorail station and line, was not definite. Hence, there was no false representation made to the Plaintiffs. Furthermore, it is also the Defendant’s contention that there is still a possibility that the monorail station would be built in the near future. This was the evidence given by the Developer’s witness DW1. “KLW Yes. So, basically is it would be correct to say that your evidence now is that this monorail extension line and the monorail station is not going to happen? I don’t know. Because it’s shelved indefinitely. KLW It’s shelved – Yes. KLW It’s shelved indefinitely means it’s not going to happen now. For now, yes. For now immediate term I don’t think so. But it depends. Well, if the government has a budget and they’ve reviewed all the rail transport they require they might put it back then. Like how now they considering putting a MRT station around that right. So, it depends on the government. Because this like I said these are all government projects and government initiative.” [34] In this regard, this Court finds that the definition of ‘proposal’ as submitted by the Defendant in its literal meaning is valid, by referring to the New Oxford Dictionary of English (Oxford University Press) that defines a “proposal” as a “a plan or suggestion, especially a formal or written one, put forward for consideration by others: a set of proposals for a major new high-speed rail link”. Therefore, the Representations were just a suggestion, and not a definitive commitment by the Defendant. [35] The Defendant contended that the Representations pleaded by the Plaintiffs are not statements of fact- Paragraph number in the Statement of Claim Representation Response 65(a) A picture of the location of the covered link bridge connected to the Project and to the proposed monorail station. There is no representation of fact as the brochure referred to the monorail station using the word “proposed”. In any event, this is mere puff. 65(b) “Experience a lifestyle underpinned by the commercial and retail hubs of Bangsar, KL Sentral and Mid Valley, and supported by a network of highways and public rail transport.” Reference to “public rail transport” refers to public rail transport as a whole, including rail transport such as KL Sentral, Mid Valley KTM Station, Seputeh KTM Station and Angkasapuri KTM Station. This representation is accurate. 65(c) “And to further enhance your connectivity, a dedicated link bridge to the NPE is to be built, as well as a dedicated covered link bridge to the proposed monorail station” There is no representation of fact as the brochure referred to a “proposed” monorail station. 65(d) A diagram of a monorail station which was referred to as “9 Seputeh” station. This is mere puff. 65(e) A map showing the location of the monorail station. The pleaded representation is incorrect as the map refers to a “proposed” monorail station. 66 A diagram that there will be a monorail station built opposite the Project which the Plaintiffs will have access to via a covered link bridge connected to the monorail station upon delivery of vacant possession. The pleaded representation is incorrect as the diagram refers to a “proposed” monorail station. 16 67 The video illustrates that the Plaintiffs will enjoy the easy accessibility of the monorail transportation and be able to walk to the monorail station using the covered link bridge from the Project. The pleaded representation is incorrect as the video shows a “proposed” monorail station. This is mere puff. [36] Accordingly, this Court finds that the Defendant did not represent that it would be responsible for the construction of the proposed monorail station, nor did it specify a completion date for the proposed project. The proposed monorail station forms part of a broader extension of the existing Kuala Lumpur monorail line, a national infrastructure project which is beyond the Defendant’s control. [37] This Court further finds that the Defendant did not make the Representations knowingly and fraudulently as the Representations merely pertained to a proposal. See IJM Construction Sdn Bhd v Lingkaran Luar Butterworth (Penang) Sdn Bhd & Anor [2024] 4 MLJ 340 (CA). [38] Thus, the Representations do not fit into the statutory definition of “misrepresentation” pursuant to section18(a) of the Contracts Act 1950, that “the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true” as the monorail station was always preceded by the word “proposed”, and the Defendant believed that there would be a “proposed monorail station”. In any case, as there is no indication or certainty regarding the start or completion date for the construction of the proposed monorail station, thus, the Plaintiffs’ claim that the Representations are false is premature. [39] Consequently, it was undisputed that there is no monorail station with the covered link bridge being built even until now and the question remains, as to whether it would be built in the future. The Plaintiffs contended that whether the monorail station with the covered link bridge has been shelved and may be built in the future, can only be answered by a witness from the government agencies, not by the Defendant’s witness. The Defendant, on the other hand contended that the Plaintiffs were the one that need to prove their case and to call any witnesses from the government agencies to testify as to the status of the monorail station and line. [40] The Plaintiffs had given their testimonies during the trial that the monorail station with the covered link bridge connected to the Project was the main reason as to why they had purchased the Property. However, at trial, some of the Plaintiffs made the following admissions which show that the Defendant did not make the Representations to them-The 1st Plaintiff (PW3): “DB I’m going to suggest to you that the Defendant did not induce you into purchasing your unit. Do you agree or disagree? RJBB Yes, they did not induce me, yes. True, that’s my decision to buy.” The 26th Plaintiff (PW4): “DB I’m suggesting to you that you did not rely on any purported misrepresentation made by the Defendant at the time that you purchased your unit. Agree or disagree? RK I agree. Again I would like to give my explanation. DB Alright. I’m gonna suggest you that the Defendant did not induce you into purchasing your unit. Agree or disagree? RK I agree, but again with my explanation.” The 39th Plaintiff (PW5): “DB And I am going to suggest to you that the Defendant did not induce you into purchasing your unit. Agree or disagree? SM Disagree. Sorry, agree and I wish to explain.” The 69th Plaintiff (PW50): “DB Sure. The Defendant never represented to you that the proposed monorail line station and link bridge would definitely be built. The Defendant never represented. Do you agree or disagree? KBH Never represented. DB Do you agree or disagree with that? KBH Yes. I agree that the developer never represent to me.” 17th Plaintiff (PW52): “DB And lastly, I will just suggest this to you that that I'm suggesting to you that the Defendant did not represent to you that the proposed monorail line and station and link bridge would definitely be built. You agree for this? LEJ I agree.” [41] Further, the 12th Plaintiff (PW11) admitted that he was not even given one of the two Brochures on which he was relying on. [42] In Norliana bt Ramli & Ors v Kueen Lai Properties Sdn Bhd [2022] MLJU 3009; [2022] CLJU 2776, the plaintiffs relied on promotional materials stating that Block C would be a commercial centre. At the time of the sale, this was accurate, and the development was approved as such. However, after the sale, the defendant struggled to attract tenants and later obtained an approval to repurpose Block C into an educational institution. Choo Kah Sing J (as he then was) held that there was no misrepresentation, as the defendant’s original plans were truthful. The change in use occurred after the sale, and the plaintiffs’ unmet expectations were due to unforeseen circumstances, not false statements by the defendant- “[20] The plaintiffs had relied on the sale brochures and advertisements depicting that Block C as a commercial centre with the amenities, such as retail shops, bank and hotel. The question is whether those representations in the sale brochures and advertisements are untrue statements. [21] This Court observes that the sale brochures represented that the concept of the development is that of “a mix-development comprises contemporary SOHO towers, hotel, convention hall and lifestyle retail shop”... … [23] A misrepresentation has to be a positive assertion which is not true. The plaintiffs had to be induced to enter into the Sale and Purchase Agreements believing in and relying on an untrue statement. The plaintiffs failed to prove that there was in fact any “untrue statement” made by the defendant at the material time to the plaintiffs. … [25] It was the unforeseen circumstances that led to the defendant to change its business plan. The defendant made an application to the Majlis Perbandaran Kajang for the approval to change the purpose of Block C from a commercial centre to a private education institution, and the approval was obtained on 28.2.2020. … [27] This Court, after having examined the evidence before the Court and the testimonies of the defendants’ witnesses, is satisfied that there was no misrepresentation, let alone any fraudulent misrepresentation, made by the defendant to the plaintiffs before the plaintiffs signed the Sale and Purchase Agreements. [28] The change of purpose from a commercial centre to an education institution in Block C occurred only after the completion of Block C and sometime after the signing of the Sale and Purchase Agreements between the plaintiffs and the defendant. What was related to the plaintiffs about the commercial centre at that material time was true and that was the defendant’s plan. Unfortunately, the defendant’s plan did not turn out as planned. [29] When a person relies on another person’s representation to form an expectation, and that expectation turns out not as expected, that does not mean the other person has made a misrepresentation. A misrepresentation has to be an untrue statement of existing fact. On the present facts, there was no untrue representation made to the plaintiffs. The plaintiffs’ expectation did not turn out as expected not because of any untrue representation.” (Emphasis added) [43] Therefore, in the absence of any evidence that the Defendant had knowledge that the Representations were false, the Plaintiffs’ claim for fraudulent misrepresentation must fail. Disclaimers [44] The Defendant contended that the construction of the monorail line and the monorail stations was a proposal suggested by the authorities at that juncture, and was not within the control of the Defendant. As such, the Defendant made it clear in the Brochures and Promotional Video that the monorail station and the covered link bridge were merely “proposed”. Therefore, the Defendant cannot be held liable for the information provided therein. Further, the Brochures and Promotional Video contained disclaimers as follows- “The information contained herein is subject to change and cannot form part of an offer or contract. All renderings are artist’s impression only. While every reasonable care has been taken in preparing this material, the developer cannot be held responsible for any inaccuracies. All items are subject to variation, modification and substitutions as may be required by the Authorities or recommended by the Architect or Engineer.”. “The information contained in these materials may be changed or deleted or altered at any time without prior notice and/or subject to amendment as may be required by the developer, the authorities & the developer’s consultants from time to time. This material shall not be construed or deemed to be representation by the developer in any way whatsoever. Purchasers are advised to refer to the actual information, specifications or plans as inserted in the stamped Sale & Purchase Agreement entered into between the developer & the purchaser. All drawings are merely artist’s impressions only.” [45] This disclaimer makes it clear that any reference to the Representations, is subject to change; cannot form part of an offer or contract; is an artist’s impression only; the developer cannot be held responsible for any inaccuracies; is subject to variation, modification and substitution; may be changed or deleted or altered at any time without prior notice and is subject to amendment; cannot be construed or deemed to be representations in any way whatsoever; and the purchasers are advised to refer to the actual information, specifications and plans in the SPAs. [46] In Admiral Cove Development Sdn Bhd v Balakrishnan a/l Devaraj & Anor [2011] 5 MLJ 309 (FC), where the respondents who bought a unit in a condominium sought to rescind the agreement for misrepresentation, claiming that they were told they would be able to swim directly from the property. However, the Federal Court ruled that such statements made by the sales staff did not amount to misrepresentation. These were seen as general representations or statements that were not promises and were outside the scope of the contract. [47] Further, in Admiral Cove Development (supra), the respondents entered into an agreement for the purchase of some property that was developed by the appellant in 1995. Vacant possession of the property was delivered to the respondents in 1998. About four years later, the respondents gave notice to rescind the agreement for misrepresentation. The respondents averred, inter alia, that during the launching of the project, the appellants agent represented to them some sandy beach fronts, easy chairs, sail boats and that they will be able to swim directly upon exiting the said property. It was the respondents’ averment that they discovered that the aforesaid representations were false sometime in August 2002 when they visited the property for the first time. The respondents contended that as a consequence of the above, they suffered loss and expense and prayed for, inter alia, a declaration that the agreement was properly rescinded, the return of a sum of RM505,313.27 and damages for misrepresentation. The said sum of RM505,313.27 was the total expenditure incurred by the respondents including, inter alia, the purchase price of the property, interest paid towards a bank loan, payments for utilities, covered car-park charges, legal fees, an Admiral Marina Club membership and several miscellaneous items. [48] Similarly, the facts of this instant case where the Plaintiffs brought this action against the Defendant for negligent/fraudulent misrepresentation as the monorail station together with the covered link bridge connected to the Project was not built and therefore claiming for ‘the loss in value of their Property’. [49] A misrepresentation must be a false statement of existing fact. The representations in the Brochures and the Promotional Video were in the nature of future intentions and not misrepresentations of fact. In IJM Construction Sdn Bhd v Lingkaran Luar Butterworth (Penang) Sdn Bhd & Anor [2024] 4 MLJ 340, where the respondents claimed they were misled into agreeing to a consent judgment based on the appellant's promises regarding future actions, such as purchasing shares and setting off a redemption sum, the Court of Appeal in rejecting the respondents’ claim, held that these were statements of future intention, not statements of existing facts. Further, a promise about future actions, even if unfulfilled, cannot constitute misrepresentation unless made without the intent to perform- “[51] We find support in the following passage from the judgment of Sir Mellish LJ in Beattie v. Lord Ebury (1872) LR 7 Ch App 777 at 804 which is instructive as is self-explanatory: [T]here is a clear difference between a misrepresentation in point of fact, a representation that something exists at that moment which does not exist, and a representation that something will be done in the future. Of course, a representation that something will be done in the future cannot either be true or false at the moment it is made, and although you may call it a representation, if it is anything, it is a contract or promise. … [53] It may therefore be stated that a promise made in good faith but not fulfilled contractually does not give rise to any cause of action. Nevertheless, Clydesdale Bank Ltd v Paton [1896] AC 381 and Wales v Wadham [1977] 2 All ER 125 are authorities for the proposition that if the promise is made sans the intention to perform, it is a misrepresentation in respect of the then existing of mind of the promisor, which is a misrepresentation of present fact, giving rise to an action for damages. It is not therefore an accurate proposition in law to say, as suggested by the High Court in the instant case, that a promise of future action is without more a statement of fact such that the non-fulfilment of which may constitute an action for misrepresentation. [54] Thirdly, and most importantly in this context, it is instructive to appreciate that in respect of the status of statements of future intention, in the case of Chia Tien Foh & Ors v Lo Man Heng & Ors [2015] MLJU 2238; [2015] 1 LNS 1219, this court held as follows: [35] It is settled law that a claim premised on misrepresentation must be a representation of fact relating to an existing state or situation. It is not a promise to do something in the future. The principles governing an actionable misrepresentation have been spelled out by the Court of Appeal in Sim Thong Realty Sdn Bhd v Teh Kim Dar @ Tee Kim [2003] 3 MLJ 460; [2003] 3 CLJ 227 (CA) at 234… … [36] In the circumstances of this case, the alleged misrepresentation is not one of fact; instead, it relates to a promise by the first plaintiff to apply the RM19m to pay off the tax liabilities. This misrepresentation, even if proved, is not a statement of fact which is untrue at the time of the representation. Accordingly, such a promise cannot sustain a claim in misrepresentation. We therefore agree with the findings of the learned judge on this issue. … [56] As such in our judgment, the respondents, as the plaintiffs in this present action did not even, in the first place, show that the promise made by the appellant is a representation of fact relating to an existing state or situation. Such a promise cannot sustain a claim in misrepresentation. It thus fails the first test in Sim Thong Realty that the representation must be an unambiguous false statement of fact. For this reason alone, the claim of the respondents to set aside the consent judgment ought to have been dismissed.”. [50] This Court finds that the Plaintiffs have failed to prove that the Representations were a material inducement to enter into the SPAs for the following reasons-

The SPAs did not include the proposed monorail station.

No complaints by the Plaintiff until the filing of this suit.

At the time of the SPAs, the Defendant did not have the intention or realise that the Representations will be relied on by the Plaintiffs. [51] In Lim Fang Joon v MDSA Vedro Development Sdn Bhd (formerly known as Fuyuu Group Sdn Bhd) [2023] MLJU 376 (HC), the Court held that the modern glass façade as shown in promotional materials were not included in the sale and purchase agreement, and the plaintiff could not claim that his purchase of the units was conditional on the façade design- “[22] It must also be emphasized that the design of the VEDRO Development, in particular the modern glass facade, was not incorporated into the SPAs…By signing the SPAs without inclusion of the facade designs as a term, the purchase of the Units by the Plaintiff cannot be said to be conditional upon the inclusion of the facade designs in the Development.”. [52] Based on the above, the Plaintiffs’ claim for fraudulent misrepresentation must fail as there are no specific allegations of fraud. The Representations are not unambiguous false statements of fact. The Plaintiffs have failed to demonstrate that the Representations were addressed to them. The Plaintiffs have failed to demonstrate that the Representations materially induced them to enter into the SPAs. The Plaintiffs have failed to prove that the Representations were false, or made in the absence of any genuine belief that they were true. [53] Additionally, this Court observed that the conduct of the Plaintiffs that willingly accepting the vacant possession and did not complaint that there is no construction of the “proposed monorail station”, is a clear admission. In fact, the Plaintiffs had only filed this suit on 31st August 2022, approximately three (3) years after obtaining vacant possession. There is indeed no dispute that the SPAs did not mention the Representations. [54] In Admiral Cove Development (supra), the Federal Court held that the respondents' significant delay in raising the issue of misrepresentation (4 years after accepting vacant possession and paying various charges) “that such conduct of the respondents … established on their part an election to affirm the agreement. The long lapse of time without complaint showed an intention to affirm the contract and is a strong indication that they were not really persuaded by whatever was said by the appellants servant or agent as alleged and hence did not amount to misrepresentation inducing the contract.”- “[28] The facts showed that after accepting the keys to the property, the respondents commenced paying the necessary charges payable when one purchases a unit in a condominium, eg, covered car-park charges, fire insurance premium, basic furnishing package, service charges and sinking fund deposit, payments due to Indah Water and assessment due to the Majlis Perbandaran Port Dickson. They even paid for the Admiral Marina Club membership amounting to RM14,000 and the ancillary charges payable thereto. These payments totalled RM505,313.27 which was the sum that they claimed from the appellant including the club membership as loss and expense as "the said unit cannot be used and lost its purpose for which the plaintiffs purchased the same". [29] We are of the view that such conduct of the respondents discussed above established on their part an election to affirm the agreement. The long lapse of time without complaint showed an intention to affirm the contract and is a strong indication that they were not really persuaded by whatever was said by the appellant's servant or agent as alleged and hence did not amount to misrepresentation inducing the contract.”. [55] Thus, based on the Plaintiffs’ conduct, it was indicated as an intention to affirm the contract and also suggested that they were not truly misled by the Defendant’s representations. Thus, they are estopped from claiming that they were induced into entering the SPAs. The Plaintiffs clearly accepted their respective units in Vivo as it is. [56] Moreover, since the Plaintiffs are alleging that there was fraudulent misrepresentation, it must be pleaded specifically with the utmost particularity as provided under O.18 r.12(1)(a) of the Rules of Court 2012, including the nature and extent of each alleged representation and who made the Representations and to whom the Representation were made. [57] This Court is inclined to the Defendant’s submission that the Plaintiffs’ claim ought to be dismissed for this reason alone and cited the case of Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2014] 2 CLJ 445 at 461, where the Federal Court held- “[24]... In relation to pleadings in general, the rules of court require a pleading of fraud to contain particulars of the fraud on which the party pleading relies (see O. 18 r. 12(1)(a) of the Rules of the High Court 1980, now Rules of Court 2012 ). 'When fraud is alleged it must be specifically pleaded. The mere allegation of fraud without showing facts to support it is not a matter to which the court will pay serious attention (Wallingford v. Mutual Society and Official Liquidator (1880) 5 App Cas 685 at p 697. The party need not use the word 'fraud' if he pleads, in unambiguous language, acts which amount in law to fraud (Myddleton v. Lord Kenyon (1794)2 Ves 391 at p 412). Whenever fraud or misrepresentation is alleged in a pleading, or any affidavit, full particulars of the alleged fraud or misrepresentation must be given' (Spenser Bower, Turner and Handley, Actionable Misrepresentation, (4th Ed), at pp. 384- 385).”. Invitation To Treat [58] It is quite obvious that the Representations are contained in the Defendant’s promotional material. This Court finds that the Brochures and the Promotional Video, amounts to an invitation to treat as deliberated in Bounty Dynamics Sdn Bhd v Chow Tat Ming & Ors [2015] 9 CLJ 422 (CA), where the Court of Appeal, in rejecting a misrepresentation claim, found that the representations in a brochure about the features of commercial properties in a complex, including an amusement park and a food court, were merely puff and did not form part of the binding contract. “[42] As for the legal bindingness of the representation in the advertisement brochure as a pre-contractual document, it was common ground that there existed an exemption clause, no doubt in the customary small print. As such the representations made should be read as mere ‘puffs’ and not binding promises. At most, these were in the nature of an invitation to treat (Eckhardt Marine GMBH v Sheriff, High Court of Malaya, Seremban & Ors)…” [59] Accordingly, the offer, acceptance and intention to create legal relationships under the Contracts Act 1950, concerning the purchase of the respective units in Vivo are embodied in the SPAs between the parties. [60] In Musrin Bin Ma'arof and 48 others v Country Garden Danga Bay Sdn Bhd [2020] CLJU 1168 (HC), the Court held that the brochures and advertisements of a housing project stating that the project offered five-star living, were mere invitations to treat, as the actual terms of the contract were finalized in the sale and purchase agreements- “[99] Essentially, Brochures and advertisements are commendations which at its highest, is an invitation to treat. The actual offer and acceptance and the intention to create a legal relationship are all culminated in the Sale and Purchase Agreement. Parties are duly bound to scrutinise the terms (small prints included) and do due diligence (if necessary). [100] If brochures are binding, then a contract to the world is valid." [61] It is indisputable that the Representations, even if considered to have been made, were superseded by the terms of the SPAs, which make no reference to the proposed monorail station or the covered link bridge. Accordingly, the Representations were not part of the binding contract between the parties. [62] In the context of buying and selling of a property, a legal relationship only culminates through the execution of the SPA. Therefore, this Court agrees with the case cited by the Defendant of Bernadette Jeanne De Souza v Lau Tiang Hua [2024] MLJU 2463 (HC), where Justice Azizan Md Arshad dismissed the plaintiffs’ misrepresentation claim based on the defendant’s brochures and posters which showed a sea view from the plaintiffs’ unit, and held as follows- “[45] The claim of misrepresentation is premised on the alleged absence of a sea view from the side of the Unit. The Plaintiffs have claimed that they were misrepresented by the Defendant’s agents who made statements during the preview. They claimed that it was their belief that their unit would face the sea and would not be protected from sea view. … [51] The representations that the Plaintiffs rely upon to found this claim of misrepresentation were contained in the brochure and posters of the Development. Both the Plaintiffs conceded in cross-examination that they were purportedly induced to enter into the SPA premised on terms that were not contained in the said SPA. [52] On top of that, there is also a disclaimer notice included. In any event, the brochures and all the relevant representation, if any, have been superseded or overtaken by the SPA. In the case of Musrin Bin Ma’arof and 48 others v Country Garden Danga Bay Sdn Bhd [2020] MLJU 853, held that: “[99] Essentially, Brochures and advertisements are commendations which at its highest, is an invitation to treat. The actual offer and acceptance and the intention to create a legal relationship are all culminated in the Sale and Purchase Agreement. Parties are duly bound to scrutinise the terms (small prints included) and do due diligence (if necessary). [100] If brochures are binding, then a contract to the world is valid.” … [55] The Defendant alleges that the Plaintiffs in fact gave the following evidence that indicated that the representations the Preview had been over taken or superseded by the terms of the Sale and Purchase

The First Plaintiff agreed that the Plaintiffs signed the SPA after their discussions on the purchase of the Unit at the

(ii) The Second Plaintiff also agreed that the SPA was signed after the Preview discussions. … [68] Overall this Court found that there was no misrepresentation…” [63] Likewise, in Ameer Ali Mohd Yusoff & Anor v Sunrise Berhad [2008] CLJU 578 the Court held that promotional materials of a project did not provide grounds for the plaintiffs’ misrepresentation claim as they contained disclaimers. Further, the plaintiffs should have verified the accuracy of the representations before acting on them, especially given the qualifications in the promotional materials: “24. In other words, the representations in the promotional materials were seriously qualified and do not provide, on their own, any foundation for an action based upon the promotional materials themselves since the Defendant reserved sole and absolute right to change any building materials or specifications mentioned, and in addition all items mentioned are subject to variations, modifications and substitutions as recommended by the Company's Architect and/or Engineer or the relevant Approving Authorities.

These words, in the course of a promotion if not the fact of a promotions itself, ought to put any invitee to the promotion to be on caution not only to confirm but also to take measures to incorporate language that the above mentioned qualifications do not apply to those specifications and aspects important to him.” (emphasis added) The Relief Sought by The Plaintiffs [64] The Plaintiffs sought for the return of 30% of the purchase price paid by the Plaintiffs for their units. In the alternative, an amount which this Court deems fair and reasonable. The Defendant contended that the claim for the return of 30% of the purchase price is not a proper remedy for misrepresentation. The Plaintiffs have failed to show that they overpaid for their respective units. Section 19 of the Contracts Act 1950 states that when consent to an agreement is caused by misrepresentation, the contract is voidable at the option of the representee. The representee may, if he wishes, insist that the contract be performed and that he be put in the position he would have been in if the representation had been true (see Aster Bina Sdn Bhd & Ors v Lebar Daun Development Sdn Bhd & Another Appeal [2024] 5 CLJ 942 (CoA). [65] In the instant case, the Plaintiffs have elected to affirm the SPAs and seek damages instead. Their claim for 30% of the purchase price of their units is based on the alleged misrepresentation regarding monorail connectivity. In support, the Plaintiffs have adduced a report prepared by their Expert, which evaluates the loss in property value attributable to the absence of the monorail connection. [66] This Court finds that the Plaintiffs’ claim for the damages is without basis. If the Defendant did misrepresent the monorail connectivity, the real loss would not be the diminution in property value, but rather the loss of enjoyment of the use of the proposed monorail station. In Toh Shu Hua & Ors v Wawasan Rajawali Sdn Bhd & Anor [2023] 2 CLJ 310 (HC), the plaintiffs sought compensation for the loss of enjoyment due to the misrepresented amenities in the apartments they purchased. Instead of rescinding the contract, they requested compensation for the loss of value of the property. Akhtar Tahir J held that the real loss was the loss of enjoyment of the property, not the loss of property value- “[25] In this case, the plaintiffs are not seeking to rescind the contract but asking the contract to be performed and that they be put in a position to benefit if the representation were true. The plaintiffs in this claim seeks to be compensated for the loss of the value of the property which would have otherwise been valued in the event the representation were true. [26] For this purpose, the plaintiffs had adduced the evidence of a valuer who has prepared a report of the value of the property in the event all the amenities were provided by the defendants as promised against the present value in its present state. [27] In the court's view, this is not a proper remedy as this loss of value of the property will only be suffered if the plaintiffs had intention to sell their apartments which none of the plaintiffs have indicated in this case. In the converse the plaintiffs are asking for the defects to be rectified. This indicates that the plaintiffs are intending to stay at the apartments. [28] The real loss for the plaintiffs is the loss of enjoyment of the use of the apartments in a manner promised to them. The enjoyment of working, playing recreating all in one place cannot be enjoyed at the moment and even into the future.”. [67] Accordingly, the Defendant’s Expert, SR Previndran Sathurgasinghe (DW-2) (Defendant’s Expert), testified that there are various factors which impact the value of property or the pricing of property- “PS There are various factors actually that impact the value of the property or the pricing of the property. If I may use an analogy, just by comparing, let's say, the Mont Kiara and KL metropolis location and compare that to just 500 meters by the crow flies say, Segambut, right? Each has, it’s a different economic and a different property market condition that impacts the prices of the property. There are other variables that need to be considered and is in interplay together with, in this case, the proximity to a station or lack of.”. [68] Also, the Defendant’s Expert testified that there are other factors which determine the price of a property- “PS Again, proximity is, you know, just one condition. And I think, one who needs to look at the bigger picture in terms of that particular locale itself. And again, you know, if I can just draw a comparison, Pandan Indah and Ampang Hilir, very close to each other, right? But what are the amenities, the road connectivity, the actual economic condition and demand of the properties there, actually determine the prices of those properties.” . [69] Further, the Defendant’s Expert confirmed that proximity to a station is just one factor to be taken into account- “PS Sure. My Lady, generally proximity has an impact, but it is not the only impact. I think that there are other various issues that one has to consider. In, you know, from the type of property, from the quality of the property, from the micro location economy of the property itself, some might have amenities just outside or within, and just maybe 500 or 600 metres or even a kilometre away, a property could be isolated yet within close proximity. So all this impact the various or has an impact on the pricing of those properties. … PS Yes. Proximity to stations are, is just one of the myriad of factors, one has to consider in assessing value or prices of these properties.”. [70] As can be seen that the Plaintiffs have not produced any evidence showing that they had overpaid for their respective units. Instead, the Plaintiffs rely on a percentage of 30%, but have not demonstrated how they have arrived at this figure. Even the Plaintiffs’ Expert arrived at a lower percentage of 23%. The Plaintiffs have also failed to show that there has been a decrease in value in Vivo due to there not being a monorail station. Without showing that there has been a decrease in value, the Plaintiffs cannot take the position that they had overpaid for their respective units. [71] It was noted that the Plaintiffs’ Expert’s concluded that there would be on average a 23% increase in price for a property that is located nearer to a transit station, which cannot be attributed to Vivo for the following reasons-

This figure was an estimate that was reached by taking the average of the results the Plaintiffs’ Expert obtained from his inspection. As demonstrated earlier, the Plaintiffs’ Expert’s inspection was flawed, as he did not take into consideration certain important factors.

As stated earlier, the figure of 23% cannot be attributed to Vivo, as no assessment was even done on the prices of properties in Old Klang Road, the price paid by the Plaintiffs, the current market value as a result of there being no proposed monorail station and whether there is in actuality a 23% drop in value in comparison to both the purchase price paid and other similar condominiums. [72] Hence, this Court is inclined with the Defendant’s submission that the Plaintiffs cannot rely on their own Expert’s conclusion that there would be a 23% increase in price for a property that is located nearer to the transit station in order to claim a return of 23% of their respective purchase prices for the following reasons which this Court is persuaded-

The Plaintiffs’ Expert did not conclude that Vivo is valued at 23% less than the purchase price.

The Plaintiffs did not produce evidence showing the price of properties in Old Klang Road to assess whether Vivo was overpriced.

The Plaintiffs’ Expert did not assess the actual value of Vivo. [73] Consequently, the Defendant is not found liable for negligent/fraudulent misrepresentation, and so the Plaintiffs did not suffer any loss or damage. Further, the Plaintiffs' claim for damages based on the diminution in property value is speculative and baseless. There is no evidence that the Plaintiffs intend to sell their units, nor have they provided any market comparison to substantiate their claim of overpayment. [74] Moreover, the 30% figure has not been properly quantified or supported by expert evidence. Even the Plaintiffs’ Expert calculated a much lower percentage of 23%. Whereas, the Defendant’s Expert concluded that the average aggregate percentage disparity in value between properties in close proximity to transit stations and those at a distance is approximately 4.4%. CONCLUSION [75] Based on the above deliberations, the Plaintiffs have failed to prove that the Defendant had negligently/fradulently misrepresented the Plaintiffs that there would be a proposed monorail station and covered link bridge built. In fact, those Representations were not even in the SPAs. [76] As such, this Court finds that on the evidence adduced, there was no assertive representation by the Defendant. In any case, it did not induce the Plaintiffs to enter into the SPAs. Therefore, on a balance of probabilities the Plaintiffs have failed to prove their claim against the Defendant and hence this Court dismissed the Plaintiffs claim with costs. DATED: 17 SEPTEMBER 2025 -SGD- (Y.A DR. SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of the High Court NCVC 1 Kuala Lumpur COUNSELS For The Plaintiffs : Wong Ren Xin Messrs. K L Wong For the Defendant : Dinesh Bhaskaran, Serena Azizuddin & Won Jia Jing Messrs. Shearn Delamore & Co.