Sandground Sdn Bhd v 1. ) Era Bina Sdn Bhd (BA-22NCvC-135-03/2024)

ERA BINA SDN BHD (Company No.: 199101011896 (222208-V))

MOHAMED FU’AD BIN ZAINAL ABIDIN (NRIC No.: 701223-10-6219)

‘UZAIR BIN FAUZIDDIN (NRIC No.: 860530-02-5441) (The 2nd and 3rd Defendants are partners practising under the name and style of

THE ROOF REALTY SDN BHD (Company No.: 201501022481 (1147810-W) …DEFENDANTS GROUNDS OF JUDGMENT 09/10/2025 16:48:07

Enclosure 80 is the Plaintiff application pursuant to Order 24 Rule 16(1) Rules of Court 2012 (ROC) for the 2nd Defendant (D2), Mohamed Fu’ad bin Zainal Abidin and the 3rd Defendant (D3), ‘Uzair bin Fauziddin defence dated 4.6.2024 be struck out and judgment entered as prayed for.

After hearing both parties, I have allowed the application, and both Defendants’ defences were struck out and judgment entered as follows:

Damages to be assessed by the Court and paid by D2 and D3, jointly and/or severally, to the Plaintiff for the loss of value of Land 26807 and Land 26808 and all costs and expenses, including legal fees, incurred in recovering

(ii) Punitive and/or exemplary damages to be paid by the D2 and D3, jointly and/or severally, to the Plaintiff in an amount to be determined by the Court;

(iii) Interest accrued on the damages awarded at the rate of 5% per annum, commencing from the date of judgment and continuing until the date of full settlement.

Both D2 and D3 are now appealing to the Court of Appeal, and the following are my reasons.

This matter is still ongoing before this Court and has been fixed for a full trial on 5–15 January 2026. Prior to this, an interlocutory injunction was granted to restrain the 1st Defendant (D1) from disposing of, transferring, encumbering or otherwise dealing with the land in question. A grounds of judgement was prepared and published at Sandground Sdn Bhd v Era Bina Sdn Bhd & Ors [2024] CLJU 2474. I re-produced the relevant portion of the brief facts as narrated, then for the purpose of this judgment. “Brief Facts [3] Extracted from the cause papers, Plaintiff is the registered and beneficial owner of two (2) pieces of land held under:

Geran 26807, LOT 6859, Mukim Kapar, Daerah Klang, Negeri Selangor (Land 26807) measuring an area of 0.9051 hectares (2.2366 acres); and

Geran 26808, LOT 6860, Mukim Kapar, Daerah Klang, Negeri Selangor (Land 26808), measuring an area of 0.901 hectares (2.2264 acres). [4] The title deeds for both lands are currently in the possession of the Plaintiff. [5] Plaintiff had no knowledge of D1 until 11.02.2024 when Plaintiff attempted to make an online payment for the 2024 quit rent for Land 26807. It was then made known to the Plaintiff that the quit rent document identified D1 as the new owner of Land 26807. [6] On 13.02.2024, Plaintiff did an online land search for Land 26807 through the Portal Awam e-Tanah Negeri Selangor. The search revealed that the ownership of Land 26807 had been transferred to D1 on 19.01.2024. [7] Two days later, on 15.2.2024, Plaintiff wrote to D1 through his solicitors advising that land 26807 had been unlawfully transferred to D1 on 19.1.2024, with no Sale and Purchase Agreement or transfer document having been approved by the Plaintiff and no consideration having been received. The Plaintiff then also discovered that D1 had lodged a caveat on the said lands. [8] Plaintiff explicitly demanded that D1 cease all dealings regarding the lands without their written consent. Despite being notified, D1 did not respond to the letter. [9] On 21.2.2024, Plaintiff sent another letter addressed to Messrs Fu’ad Hawari Uzair & Partners (the firm), where Mohamed Fuad Bin Zainal Abidin (D2) and ‘Uzair bin Fauziddin (D3) were the partners, stating the same concerned and demanded the firm to cease all dealings related to both lands immediately. However, the firm, too, had not responded to the Plaintiff’s demand. [10] Despite the Plaintiff’s two attempts to halt any dealings on the lands, D1 went ahead with the transfer and registration of land 26808 in its name on 21.2.2024. Plaintiff wrote again to D1 and the firm on 28.2.2024 to rectify the situation, but to no avail. As a precautionary measure, Plaintiff applied for a Registrar Caveat to be registered on both lands on 8.3.2024. [11] Subsequently, on 7.3.2024, the firm responded to the Plaintiff’s letter but allegedly failed to address the Plaintiff’s assertions. [12] On 25.3.2024, Plaintiff demanded from D1, D2 and D3 the production of documents concerning the alleged sale of both lands, but D1 failed to comply, and D2 and D3 remained unresponsive. [13] Plaintiff submitted that such passive behaviour could only be construed as an indirect admission that the lands were transferred through forgery or by using insufficient or void instrument. [14] It was alleged that The Roof Realty Sdn. Bhd. (D4) acted as the agent for the sale of both lands on behalf of the Plaintiff, but this was denied. The same letter of demand was sent to them on 11.3.2024, and D4, through its solicitor, responded but again allegedly failed to address the Plaintiff’s assertions. [15] Base on the foregoing, Plaintiff’s claim against D1 is to cancel the registration of the transfer of both lands in question from Plaintiff’s name to D1.”

D2 and D3 are partners practising under the name and style of Messrs. Fu’ad Hawari Uzair & Partners, and the Plaintiff’s claims against them are summarised as follows:

Messrs. Fu’ad Hawari Uzair & Partners owed the Plaintiff a duty of care, which they breached by undertaking to act as the Plaintiff’s solicitors in the sale of Land 26807 and Land 26808 without the Plaintiff’s knowledge, consent, or authorization. Additionally, they failed to exercise due diligence in verifying their authority to act in this capacity;

Messrs. Fu’ad Hawari Uzair & Partners further breached their duty of care by neglecting to properly ascertain the authority of the individuals with whom they conducted business, failing to ensure these individuals were duly authorized to act on behalf of the Plaintiff in the sale of Land 26807 and Land 26808;

Messrs. Fu’ad Hawari Uzair & Partners also breached their duty of care by failing to take necessary actions to prevent the transfer and registration of Land 26807 and/or Land 26808 in D1’s name, despite the Plaintiff’s issuance of notice and demand on 15.02.2024 and 21.02.2024, instructing them to cease all dealings with the Land 26807 and Land 26808;

Messrs. Fu’ad Hawari Uzair & Partners further breached their duty of care by facilitating the sale of Land 26807 and Land 26808 without proper authorization from the Plaintiff.

Despite the Plaintiff’s repeated demands, the Defendants refused or failed to transfer Land 26807 and Land 26808 back to the Plaintiff.

As a result of the foregoing, the Plaintiff has suffered the loss of Land 26807 and Land 26808, and has incurred other losses and damages, the extent of which the Plaintiff requests this Honourable Court to assess.

On 10.12.2024, the Plaintiff filed a Notice of Application dated 10.12.2024 (Enclosure 71), seeking an order in the following terms: “1. That the 2nd and 3rd Defendant within 7 days of this Court Order produce to the Plaintiff the original documents listed below (collectively referred to as “Impugned Documents”) to enable the Plaintiff to submit them to a qualified handwriting and document examiner. This examination is to determine the authenticity of the signatures in these documents whether they belong to the Plaintiff’s directors’ and/or shareholders:

Warrant to Act dated 05.10.2023;

(ii) Appointment of Proxy dated 17.10.2023;

(iii) Letter of Instruction from Sandground Sdn. Bhd. dated 17.10.2023;

(iv) Letter of Instruction from Sandground Sdn. Bhd. dated 17.01.2024;

Letter of Instruction from Sandground Sdn. Bhd. dated 30.01.2024;

(vi) Letter of Instruction from Sandground Sdn. Bhd. dated 13.02.2024;

(vii) Letter of Instruction from Sandground Sdn. Bhd. dated 23.02.2024

If the 2nd and 3rd Defendant fails to produce to the Plaintiff any of the Impugned Documents, the 2nd and 3rd Defendants’ Defence be struck out and judgment be entered against the 2nd and 3rd Defendant’s accordingly;

The costs of this application be borne by the 2nd and 3rd Defendants;

Such further or other relief as this Honourable Court deems just and proper.”

The Plaintiff filed the application above to seek production of those documents, which D2 and D3 confirmed they had possession of, to facilitate their submission to a handwriting and document examiner for authenticity verification.

D2 and D3 had not objected to enclosure 71 and on 16.1.2025, this Court orders that D2 and D3 shall, within seven (7) days to produce to the Plaintiff the requested documents for submission to a qualified handwriting and document examiner to determine the authenticity of the signatures therein and in the event D2 and D3 fails to produce any of the documents, their defence shall be struck out, and judgment shall be entered against them accordingly and no order as to costs.

On 23.1.2025, the final day for compliance, D2 and D3 submitted the alleged original documents to the Plaintiff’s solicitors as ordered.

Plaintiff managed to get all the documents examined by a document examiner, and a forensic report of the same was served on D2 and D3.

As the document examiner’s findings were in the Plaintiff’s favour, to save time and expense, they had requested confirmation from D2 and D3 as to whether they would consent to the judgment being recorded as stated in the Statement of Claim.

D2 and D3 failed to respond, hence this application by the Plaintiff.

The grounds in support of this application are summarised as follows:

That D2 and D3 have failed to comply with the Court Order by refusing to produce the original copies of;

Appointment of Proxy dated 17.10.2023.

(ii) Letter of Instruction from Sandground Sdn. Bhd. dated 17.10.2023.

(iii) Letter of Instruction from Sandground Sdn. Bhd. dated 30.01.2024.

D2 and D3’s non-compliance is inexcusable, intentional, and demonstrates a contumelious disregard for the Court's authority. There are no extraneous circumstances preventing D2 and D3 from complying with the discovery and the unless order. Their blatant defiance of the Court’s directive has severely prejudiced the Plaintiff’s case.

This Court has the inherent jurisdiction to enforce compliance with its orders and prevent abuse of process. D2 and D3’s deliberate and contumelious non-compliance warrants the striking out of their defence and the entry of judgment against them.

D2 filed an affidavit in enclosure 85 in reply to the Plaintiff’s application and asserted as follows:

D2 and D3 admitted that they have the original copy of the requested documents in their possession, which was given to the Plaintiff’s solicitor on 23.1.2025.

The solicitor for the Plaintiff accepted the document but later informed D2 and D3 that the copy was not consistent with or similar to the photocopied version.

D2 and D3 asserted that the document produced was the only document in their possession given by the “Plaintiff” during the sale and purchase transaction.

D2 and D3 admitted that, upon reviewing the documents, it doesn’t appear to be the same document and had been unintentionally produced incorrectly.

D2 and D3 placed the blame on the Plaintiff’s solicitor for not checking or inspecting the received document, but proceeded to send the document to the examiner.

There is a possibility of complicit fraud by the Plaintiff themselves against D2 and D3.

This application to enter judgment against D2 and D3 is premature, as the matter has not yet been decided by the Court.

Plaintiff had extended their objection on the filing of the affidavit of D2 in enclosure 85 as it was not officially served on them according to Order 62 Rule 6(1)(cc) of the ROC and submitted that service of document via email does not constitute proper and valid service (see Rosli bin Almanzur v Mohamad Ridzwan bin Kithur Mohamed (sebagai wakil diri Kithur Mohamed bin Mohd Idris) (2024) MLJU 282).

Plaintiff further contended that the affidavit (enclosure 85) is defective and should not be admitted and considered as it was not served within the time prescribed under Order 31 Rule 13 of the ROC, and it was not stated that the averment by the deponent was authorized to affirm on behalf of D3.

I will now refer to the relevant order of the ROC, which was the basis for this application by the Plaintiff, that is Order 24 Rule 16(1), which provides: “(1) If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rule 11(1), the Court may make such order as it thinks just, including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.” - Emphasis added

It was clearly stipulated that failure to comply with the direction of Order 24 as above-mentioned, the Court had the power and discretion to dismiss the action or order the defence to be struck out and judgment entered into against the party who failed to comply (see Michael Ang Aek Hang & Ors v Wee Yong Huang [2025] MLJU 594).

Notably, this Court had also ordered an “unless order” that, in the event of failure to comply, judgment shall be entered against D2 and D3 accordingly.

Upon considering D2 and D3’s explanation, via affidavit or their oral submissions, as experienced legal practitioners, I am of the view that they should fully understand the consequences of such an order against them.

Before that, on the Plaintiff’s objection to the service of the affidavit in enclosure 85, though I would agree that parties should adhere to the requirement to comply within time, as the matter is already before the Court for disposal, I will accept the filing of enclosure 85 and its assertion in order to decide on the application fairly.

D2 had not explained much, nor indicated that it was also made on behalf of D3. I find his statement to be a mere excuse and a deliberate refusal and failure to produce the required documents to the Plaintiff in accordance with an agreed Court order. D2 and D3 do not seem to take this proceeding seriously and simply blame the Plaintiff for not checking instead.

D2 and D3’s intentional defiance of the Court order had caused prejudice to the Plaintiff and an obvious act of non-compliance with a peremptory order of the Court, which would attract the penalty prescribed in the order (refer to Dato’ Ting Check Sii v Galaxy Grip Sdn Bhd & Ors [2011] 1 MLJ 646).

Therefore, I find it justifiable for me to enforce and invoke the unless order due to D2 and D3’s failure to adhere to the directions. In exercising my discretion, upon viewing the demeanour of D2 whilst submitting, I find that he doesn’t seem to take heed of the Plaintiff’s request, which constitutes a wilful and direct breach of the Court order. Hence, I am of the view that justice is better served by striking out D2 and D3’s defence and judgment be entered against them.

Enclosure 80 is hereby allowed with a cost of RM5000, subject to the allocator. Dated this: 9th October 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsels: For the Plaintiff : Yee Teck Fah together with Yee Mi Kenn Messrs Yee Tech Fah & Co. For the 1st Defendant : Lahvanya Chanelera Messrs H. Y. Lee & Co. For the 2nd & 3rd Defendants : Kaharuddin bin Harun Messrs Kamaruzaman Arif, Amran & Chong For the 4th Defendant :