Shridhaya Holdings Sdn Bhd (dalam Likuidasi) v National Land Finance Co-Operative Society Limited (WA-22NCvC-809-11/2019)

the Defendant’s Affidavit in Support (‘AIS’) affirmed by its Managing Director on 7.5.2024 (encl. 197);

the Plaintiff’s Affidavit in Reply (‘AIR’) affirmed by its liquidator, Augustine a/l T.K. James on 17.5.2024 (encl. 198); and

the Defendant’s AIR affirmed by the same deponent on 6.6.2024 (encl. 199). S/N maqW2KfiZE2etHzhzWp2mw Brief Facts [3] The Plaintiff is a company incorporated in Malaysia with its registered address at L11-2, Tingkat 11, Menara Sentral Vista, Jalan Sultan Abdul Samad, Brickfields, 50470 Kuala Lumpur and business address at No. 68B, Jalan Tun Perak, 50050 Kuala Lumpur. [4] The Plaintiff was in the property development business before it was wound up via the Order made by the Shah Alam High Court dated 5.9.2018 (‘Winding Up Order’) under Winding Up Petition No: BA- 28NCC-630-12/2017 filed by Unijaya Holdings Sdn Bhd (‘Unijaya’). [5] The Defendant is a cooperative with the address at Tingkat 10, Wisma Tun Sambanthan, Jalan Sulaiman, 50000 Kuala Lumpur. [6] The Plaintiff was the registered owner of 416 parcels of land at Mukim Pasir Panjang, Daerah Port Dickson, Negeri Sembilan (‘Land’). The Land forms part of an abandoned housing project undertaken by Eurodec Development & Cosntruction Sdn Bhd known as Taman Green View on Lot Utama 470 (Master Ttile), Km 12, Jalan Port Dickson - Pasir Panjang, Port Dickson, Negeri Sembilan. [7]

By the Sale And Purchase Agreement dated 11.5.2011 (‘SPA

5.2011’), the Plaintiff agreed to sell and the Defendant agreed to buy the Land on an as is where is basis for the purchase price of RM17,000,000.00. S/N maqW2KfiZE2etHzhzWp2mw [8] At the time the SPA 11.5.2011 was entered into between parties, the Plaintiff was in the process of constructing 130 houses of which 97 houses (which are not part of the Land) had been previously sold to third parties whilst 33 houses were unsold (which are part of the Land) known as Phase

[9] A Corporate Guarantee & Indemnity was executed on the same date whereby the Plaintiff irrevocable covenants and guarantees to the Defendant and its successors and assigns, among others, the full performance, observance and compliance of each and every of the terms and conditions to be performed by the Plaintiff as contained in the SPA 11.5.2011. [10] Subsequently, the Plaintiff and the Defendant executed the Option Agreement on 26.5.2011 whereby –

Recitals A and B therein state that, pursuant to the terms and conditions in the SPA 11.5.2011, the Defendant is the registered and beneficial owner of the “Option Properties” as defined in the Option Agreement and the Defendant has offered the Plaintiff an option to purchase the “Option Properties”; and

Clause 2.1 provides that, in consideration of the Option Fee in the sum of RM100.00, the Defendant unconditionally and irrevocably grants to the Plaintiff an option to purchase the “Option Properties” at the “Option Price” at, or on, the date of the “Option Period”. In essence, the Plaintiff could repurchase the Land within 30 months of 26.5.2011 at a price of S/N maqW2KfiZE2etHzhzWp2mw RM21,250,000.00 or choose to do so on a piecemeal basis before the expiry of 29 months at a sale consideration of RM24,180,000.00. [11] The Plaintiff appointed Unijaya as its main contractor to carry out all construction work. [12] The Plaintiff claimed that March 2016, it had completed 33 houses (six of which were sold), 19 shop/ office units, a water tank, TNB electrical towers, infrastructure and others as described in the Amended Statement of Claim dated 1.11.2019. The Certificate of Practical Completion and Certificate of Fitness of Occupation were duly issued. [13] Unijaya constructed 19 shop office units, a water tank, one TNB electrical tower and infrastructure and it had submitted its claim to the Plaintiff. However, the Plaintiff was unable to pay the claimed amount and this resulted in a legal suit which culminated in a Consent Judgment followed by the Winding Up Order. [14] In the present suit, the Plaintiff, acting by the Liquidator, is claiming for declaratory orders and the sum of RM18,905,857.60 being –

costs of 27 units of houses which have not been sold in the sum of RM6,149,250.00;

costs for one electrical tower, sewerage treatment plant, road and drains in the sum of RM3,085,552.00; S/N maqW2KfiZE2etHzhzWp2mw

construction costs for 19 shop/ office units, water tank tower, suction tank, one electrical tower, road and drains in the sum of RM9,671,055.58 as allowed in the Winding Up Order; and

damages to be assessed by the court. [15] The Plaintiff contends that the Defendant is unjustly enriched by reason of the increase in value of the Land that is attributed by the works carried out on the Land. Basically, the claim is for restitution premised on s 71 of the Contracts Act 1950 [Act 136] and/ or in unjust enrichment. [16] In its Amended Defence dated 13.3.2020, the Defendant relied on Clause 4.5 of the Option Agreement in contending that it is not obliged to contribute, pay or compensate the Plaintiff with regard to the building works carried over or completed on the “Option Properties” after the date of the Option Agreement. [17] On 17.9.2020, the High Court allowed the Defendant’s application to strike out the Plaintiff's suit. The Plaintiff’s appeal was allowed by the Court of Appeal on 23.8.2022 whereby the Court held – “1. We find merits in the appeal. The parties have entered into a JV of some kind in the SPA and the Option Agreement read together. Generally, it is the P developer being entitled to 80% of the purchase price in the tripartite SPA signed with purchasers and the D to 20% which is the agreed land costs. S/N maqW2KfiZE2etHzhzWp2mw

Therefore, when the Option is terminated, Clause 4.5 has to be read in the context of the whole Clause 4 where parties would have to sort out their respective obligations and rights.

At this stage we cannot say that the D is entitled to take the whole of the completed 27 units of houses and 19 shop lots and a TNB station and related infrastructure without making any payments to the P which payment the P is claiming.

The case is not a plain and obvious one for striking out at this stage.

Even if the P’s claim be weak, it is not to be struck if the pleadings can be amended.

We would therefore allow the appeal and remit the matter for trial at the High Court and a CM is fixed 6.9.2022 by way of e-review.

Costs in the cause.”. S/N maqW2KfiZE2etHzhzWp2mw The Legal Principles [18] The Applicant relied on the case authorities of Wong Sin Chong & Anor v Bhagwan Singh & Anor [1993] 4 CLJ 345 and Dea Ai Eng (P) v Dr Wong Seak Shoon & Anor [2007] 2 MLJ 357 in submitting that the legal principles with regards to the issuance and setting aside of a subpoena are well established and these were summarised as follows:

a subpoena may be issued by a party without the leave of the court. A subpoena is an order to produce a document to the court;

the court has the discretion to exercise control over the privilege of a party issuing a subpoena to prevent it from being oppressively used;

the documents must be specifically identified;

a subpoena may not be used as an instrument to obtain discovery;

a subpoena must not be of a “fishing or speculative” nature;

production of the document must be necessary for the fair disposal of the action or to save costs; S/N maqW2KfiZE2etHzhzWp2mw

where no useful result would be obtained by the attendance of a witness, the subpoena should be set aside; and

the onus is on the party issuing the subpoena to show the materiality of the witness for the just decision of the case, in that it outweighs any oppression that may be caused to the party objecting. [19] The Plaintiff did not make any submission to the contrary as regards the legal principles as summarised above. The Grounds for the Application [20] In paragraphs 6 to 11 of the AIS, the Applicant averred that “… Surat PR1MA tersebut adalah sebahagian daripada dokumen dalam Ikatan Dokumen Bersama (“Lampiran 151”) keesahan yang mana tidak dipertikaikan. … Surat PR1MA tersebut dikeluarkan oleh PR1MA Corporation Malaysia kepada Plaintif. Saya hanya mengaku terima Surat PR1MA tersebut bagi pihak Defendan. … perlaksanaan Surat PR1MA tersebut seperti yang diplidkan dalam Pernyataan Tuntutan Terpinda, tidak dipertikaikan oleh Defendan. S/N maqW2KfiZE2etHzhzWp2mw … salinan beberapa perjanjian jual beli antara pembeli, Plaintif dan Defendan adalah sebahagian daripada dokumen dalam Ikatan Dokumen Bersama (“Lampiran 151”) keesehan yang mana tidak dipertikaikan. Salinan-salinan Perjanjian Jual Beli bertarikh 12-12-2013 antara pembeli Yogeswari a/p Rathnam dan Plaintif, Perjanjian Jual Beli bertarikh 11-12-2013 antara pembeli Pubala Raj a/l Gopal Krishnan dan Plaintif dan Perjanjian Jual Beli bertarikh 11-04-2014 antara pembeli Norizan Bin Yusof dan Rosliza Binti An dan Plaintif dengan Defendan kesemuanya dilampirkan disini dan ditandakan secara kolektif sebagai “Eksibit-3”. … Perjanjian-perjanjian Jual Beli tersebut adalah perjanjian 'tripartite' antara pembeli, Plaintif dan Defendan. Perjanjian-perjanjian Jual Beli tersebut bukan dokumen yang disediakan oleh saya. … isu mengenai pelaksanaan perjanjian jual beli antara pembeli, Plaintif dan Defendan seperti yang diplidkan dalam Pernyataan Tuntutan Terpinda, tidak dipertikaikan oleh Defendan.”. [21] The Applicant further affirmed in paragraph 12 of the AIS that –

no useful purpose would be served in calling him to give evidence in court; S/N maqW2KfiZE2etHzhzWp2mw

the documents that are sought to be produced are not relevant to the proceedings; and

the filing of the Subpoena is a fishing expedition, an attempt at discovery, an abuse of process and made in bad faith. [22] Based on the above said averments, the learned counsel for the Applicant argued that the Subpoena is an abuse of process as no useful result would be obtained by the Applicant’s attendance in court for the following reasons:

In respect of the Letter, that –

the Applicant is not the author or maker of the same;

(ii) it is at pp 172 - 176, Vol. 1 (encl. 151), Part B of the Common Bundle of Documents (‘CBoD’); and

(iii) it is not relevant to the Plaintiff's pleaded claim.

In respect of the SPAs, that –

the execution of the agreements as pleaded are not disputed and three of the Sale and Purchase Agreements are at pp 105 - 151, encl. 151, namely with Yogeswari a/p Ratnam, Pubala Raj a/l Gopal Krishnan, and Norinzan Bin Yusof and Rosliza Binti An as the purchasers; S/N maqW2KfiZE2etHzhzWp2mw

(ii) the Plaintiff has admitted to being a party to the SPAs;

(iii) the Plaintiff is using the Subpoena as an instrument to obtain discovery; and

(iv) the order sought to produce the SPAs is a fishing expedition as the Plaintiff failed to identify the precise document; Decision of the Court [23] I have considered the cause papers and submissions of the parties, and I am inclined to dismiss the application in encl. 196 for the following reasons:

The Letter The parties have agreed to place the Letter, which is a Letter of Intent issued by PR1MA Corporation Malaysia (‘PR1MA’) to the Plaintiff on 9.9.2016, in Part B – documents where the authenticity is not disputed but the contents are disputed (see O. 34, r. 2(2)(c)(i) RC 2012). The general rule is that such documents are subject to cross-examination. One of the justifications in the Plaintiff’s AIR for the issuance of the Subpoena [see subparagraph 6(a)] is that the Letter in the CBoD is unclear. However, in my view, this is not a cogent S/N maqW2KfiZE2etHzhzWp2mw reason as the court can easily ask for a clearer copy to be produced during the trial. The Applicant contended that the best witness to testify as to the contents and effects of the Letter is Dato' Abdul Mutalib Alias, the Chief Executive Officer of PR1MA. However, the Plaintiff’s intention in calling the Applicant as a witness is to testify, not about the fact that PR1MA intended to purchase 484 units of PR1MA Homes comprising of double storey terrace and 19 retail units with all the necessary amenities, utilities, facilities and infrastructure from the Plaintiff as the developer and the defendant as the proprietor, but rather regarding the “Acknowledgement” part of the Letter where the Defendant acknowledged receipt of the Letter of Intent and more importantly, accepted the terms conditions in the Letter of Intent. The Applicant represented the Defendant in signing the “Acknowledgement” on 23.9.2016. It is the Defendant’s case that, pursuant to Clause 4.5 of the Option Agreement, the Defendant has no legal obligation to pay the Plaintiff for the costs of the construction and development on the Land and that the option period in the Option Agreement “telah ditamatkan pada 31.12.2015”. The acknowledgement of the Letter was signed by the Applicant for and on behalf of the Defendant on 23.9.2016, which is after 31.12.2015. S/N maqW2KfiZE2etHzhzWp2mw The Plaintiff’s position is that, even after 31.12.2015, the Defendant as the proprietor of the Land continued to recognise the Plaintiff as the developer for the works carried out on the Land. This evidence can be best elicited from the Applicant as he had executed the Sale and Purchase Agreement dated 11.5.2011 (see p 12, encl. 150) and the Option Agreement dated 26.5.2011 (see p 52, encl. 150) in the capacity as the Defendant’s Secretary, and he had signed the “Acknowledgement” part of the Letter on behalf of the Defendant. The Applicant’s evidence as to the intention of the parties when the Letter was issued by PR1MA is relevant to the Plaintiff’s pleaded case. I agree with the submission of the Plaintiff that the Applicant is a relevant and material witness for the just decision of the case to testify as to contents and effects of the Letter in establishing the conduct of the parties after 31.12.2015.

The SPAs Judging from the form of the Subpoena, it is obviously pursuant to O. 38, r. 14(1) of the RC 2012 and Form No. 65 which provides for “Subpoena To Testify And Produce Documents”. It is undisputed that only three out of six SPAs are in the CBoD. Based on the three SPAs in the CBoD, these SPAs were signed on 11 and 12 December 2013 and 11.4.2014 with the Plaintiff as the vendor, the Defendant as the proprietor and the purchasers S/N maqW2KfiZE2etHzhzWp2mw concerned. The Recital in the three SPAs refers to the Option Agreement. In addition, the Recital in the three SPAs state that, pursuant to the Option Agreement, the Plaintiff and the Defendant warrant and declare that the amount due to Defendant from the purchase consideration of the property in exchange for a valid transfer of the property in favour of the purchaser is RM30,000.00 for two of the SPAs and RM50,000.00 for one of the SPAs, which the Plaintiff contends co-relate to the sums specified in the Option Agreement. The balance of the purchase consideration is said to be the absolute entitlement of the Plaintiff. In my considered view, the Subpoena to produce all the SPAs is not a fishing expedition and neither is the Applicant misled in any way as he had signed the SPAs in his capacity as the Defendant’s Secretary. The SPAs are relevant to show how the parties had conducted themselves in respect of the individual lots i.e. the purchasers as house buyers, the Plaintiff as the developer and the Defendant as the proprietor/ owner of the Land and whether the Plaintiff is entitled to the full sale price of the properties sold less the sums as stated in the Recital of the SPAs. [24] As regards the case authorities relied upon by the Applicant, I am persuaded by the Plaintiff’s submission that these cases can be distinguished on the following grounds: S/N maqW2KfiZE2etHzhzWp2mw

In Dea Ai Eng (P) v Dr Wong Seak Shoon & Anor [2007] 2 MLJ 357, the document sought to be produced by the subpoenaed witness i.e. an expert witness was a medical report. This is a privileged document and therefore, the court held that the party is not obliged to disclose them.

Maju Holdings Sdn Bhd v Kamala Devi A/P Ramadass & Anor And Another Appeal [2003] 2 MLJ 36 involves the Banking And Financial Institutions Act 1989 [Act 372] which contains a restriction against any disclosure of information pertaining to the affairs or account of the bank’s customers. The Court of Appeal held that the issuance of the Writ of Subpoena was an abuse of the process of the court under provisions of Act 372 and sub-s 130(3) of the Evidence Act 1950 [Act 56] which stipulates that “No bank shall be compelled to produce its books in any legal proceeding to which it is not a party, except as provided by the law of evidence relating to banker’s books.”. Hence, bankers could not be made to divulge any of their books.

The application to set aside the subpoena was allowed in Wong Sin Chong & Anor v Bhagwan Singh & anor [1993] 4 CLJ 345, for, inter alia, the failure of the subpoena to identify the documents to be produced. [25] In the upshot, this is not a case where no useful result would be obtained by the attendance of the Applicant. The Plaintiff has shown the materiality of the Applicant as the Defendant’s Secretary at the material time whose signature can be found in the Letter and the SPAs. S/N maqW2KfiZE2etHzhzWp2mw On the other hand, the Applicant has not established that there is oppression that may be caused to him or an abuse of the process of the court. [26] Based on the aforesaid reasons, the Applicant’s application in encl. 196 is dismissed with costs of RM5,000.00, subject to allocator. Dated: 13 September 2024 (ALIZA SULAIMAN) Judge High Court in Malaya (NCvC2) Kuala Lumpur Counsels/ Solicitors: For the Plaintiff: David Charles (C. Kumaresun with him) Messrs. Nur Ashikin Alex & Rakan Rakan Advocates & Solicitors No. 43-A (Tingkat 1), Jalan 52/18 46200 Petaling Jaya Selangor S/N maqW2KfiZE2etHzhzWp2mw For the Defendant: Prakash Lachimanan Messrs. Jayasuria & Partners Advocates & Solicitors Unit 613, 6th Floor Block A, Damansara Intan No. 1, Jalan SS 20/27 47400 Petaling Jaya Selangor S/N maqW2KfiZE2etHzhzWp2mw