Sinerjuta Sdn Bhd v Wyman Kang Eng Kia (WA-12BNCvC-151-12/2024)

WYMAN KANG ENG KIAN

THANARAJ A/L LETCHUMANAN (NO. K/P: 830203-01-6807) (Memulakan dan membawa tindakan ini bagi pihak diri mereka sendiri dan sebagai wakil bagi pihak 150 pembeli unit kondominium lain di projek pembangunan yang dikenali sebagai The Havre Condominium, Lebuhraya Bukit Jalil, 57000 Bukit Jalil, Kuala Lumpur) ...RESPONDEN-RESPONDEN (Di Mahkamah Sesyen Kuala Lumpur Dalam Wilayah Persekutuan Kuala Lumpur, Malaysia Guaman Sivil No.: WA-B52NCvC-471-10/2022 Antara 1. Wyman Kang Eng Kian (No. K/P: 910303-14-5075) 17/12/2025 00:09:18 WA-12BNCvC-151-12/2024 Kand. 33

Thanaraj A/L Letchumanan (No. K/P: 830203-01-6807) (Memulakan Dan Membawa Tindakan Ini Bagi Pihak Diri Mereka Sendiri Dan Sebagai Wakil Bagi Pihak 150 Pembeli Unit Kondominium Lain Di Projek Pembangunan Yang Dikenali Sebagai The Havre Condominium, Lebuhraya Bukit Jalil, 57000 Bukit Jalil, Kuala Lumpur) ...Plaintif-Plaintif Dan Sinerjuta Sdn Bhd (No. Sykt: 201201028921 (1013408-T)) …Defendan) GROUNDS OF JUDGMENT Introduction [1] In this appeal from the Sessions Court, there are two main issues for determination. First, whether the two named plaintiffs, namely, Wyman Kang Eng Kian and Thanaraj A/L Letchumanan may sue the Appellant/Defendant – based on a cause of action of misrepresentation – on behalf of themselves and 148 purchasers of condominiums developed by the Defendant developer without evidence being adduced by 149 purchasers to prove misrepresentation. As the learned Sessions Court judge had made a finding of misrepresentation after trial, the second issue is whether the Respondents/Plaintiffs (or some of them) are entitled to judgment as prayed by them. [2] After hearing lengthy submissions by both sides, I found that the learned Sessions Court judge had erred in granting a wide judgment in favour of all 150 purchasers when only the 1st Respondent/Plaintiff had testified as to the misrepresentation that had induced him to purchase his condominium from the Appellant/Defendant. Thus, I decided that this Court ought to allow the Appellant/Defendant’s appeal in part, in that the judgment of the learned Sessions Court judge to be set aside and be substituted with a judgment in favour of only the 1st Respondent/Plaintiff, for General Damages to be assessed. My reasons are as explained below. Background Facts [3] Both Plaintiffs and the 148 other purchasers whom they claim to represent in the representative action filed at the Sessions Court are purportedly purchasers of condominium units in a development project known as The Havre Condominium, Bukit Jalil Highway, 57000 Bukit Jalil, Kuala Lumpur (“the Condominium”). [4] The Appellant/Defendant is the developer of the Condominium. Around September 2016, approval had been obtained for the Appellant/Defendant to proceed to construct the Condominium. Its servants and agents began marketing, advertising and promoting the sale of units in the Condominium. [5] It was undisputed, during the trial at the Sessions Court, that the Appellant/Defendant did make representations, both orally and in writing (in their brochures) to the 1st Respondent/Plaintiff that a covered pedestrian walkway would be constructed linking the Condominium to the nearest LRT station, i.e. the Muhibbah LRT Station. [6] The Respondents/Plaintiffs (and 148 other purchasers whose names are mentioned in the annexure to the Statement of Claim filed at the Sessions Court) had purportedly entered into Sale and Purchase Agreements (‘the SPAs”) to purchase condominium units in the Condominium from the Appellant/Defendant based on the following representation that was allegedly made to them by the Appellant/Defendant: No. Representation 1. “Ideally situated on the fringe of the city, THE HAVRE at Bukit Jalil is where exclusivity and accessibility meet. Journey great distances to and from home without worry and trouble, as THE HAVRE is located within a gentle arm’s reach from the Bukit Jalil Highway and Shah Alam Highway, and is just a light 600m away from the Muhibbah LRT station.”

“Luxuriate to your heart’s content without the plague of distant travel, as THE HAVRE is fitted with a covered walkway, dedicated to residents of THE HAVRE, that connects to a megamall as well as an LRT station.”

“Amenities: 600m to LRT Station” [7] It is also undisputed that the maps shown in the Appellant/Defendant’s brochures and website showed a covered pedestrian walkway from the Condominium to the Muhibbah LRT Station. [8] Around April 2019, when the Appellant began handing over vacant possession of units in the Condominium to purchasers who had paid in full, the Plaintiffs discovered that there was no covered walkway linking the Condominium to the nearest LRT station, i.e. the Muhibbah LRT Station. They alleged misrepresentation, ultimately leading to their filing of the civil suit as a ‘class’ in a representative action against the Appellant/Defendant. [9] The order containing the judgment dated 5th December 2024 issued by the Sessions Court reads as follows: Analysis of the Undisputed Facts [10] As it transpired during the trial at the Sessions Court, no evidence was adduced by the other 149 purchasers, not even by the 2nd Respondent/Plaintiff. The 1st Respondent/Plaintiff had attended the trial as the sole witness for the Plaintiffs. [11] Since misrepresentation is pleaded as the cause of action, evidence must be adduced to show that a false representation was made to each and every one of the 150 purchasers, including both Plaintiffs, which induced him/her to purchase a unit in the Condominium from the Appellant/Defendant. This is not a case which stands or falls based on the interpretation of the same contractual terms which are binding on all the purchasers. As this is a case pleading misrepresentation, it is no doubt necessary for each and every purchaser who wishes to convince the Sessions Court to issue a judgment in his/her favour to adduce evidence to prove that the false representation was made to him/her. [12] It is trite that all the members of the class in a representative action, brought pursuant to Order 15 rule 12 of the Rules of Court 2012, must have a common interest and be able to prove that they have a common grievance to be seeking a similar relief (see Jok Jau Evong & Ors v Marabong Lumber Sdn Bhd & Ors [1990] 3 MLJ 427). The 2nd Respondent/Plaintiff and 148 others have failed to do in this case because no evidence was adduced by them. The learned Sessions judge could only have made a finding of misrepresentation in respect of the 1st Respondent/Plaintiff because he admitted that he did not even know whether the other 149 persons signed a Sale and Purchase Agreement to purchase a unit in the Condominium from the Appellant/Defendant. This could be seen from the Notes of Evidence, as follows: [13] In the circumstances, I am constrained to find the learned Sessions Court judge was plainly wrong in her issuing judgment in favour of the Plaintiffs and 148 other persons without evidence being adduced to prove that the aforesaid representation was made to the other 149 persons besides to the 1st Respondent/Plaintiff. As highlighted above, the 1st Respondent/Plaintiff admitted he had no knowledge about them. Therefore, appellate intervention is justified (see judgment of the Federal Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2005] 2 MLJ 1). The judgment of the Sessions Court dated 5th December 2024 must be set aside. Whether judgment ought to be granted in favour of the 1st Respondent/Plaintiff [14] In her Grounds of Judgment, the learned Sessions Court judge made findings of facts in favour of the 1st Respondent/Plaintiff who testified that he decided to purchase a unit in the Condominium from the Appellant/Defendant based on the aforesaid representation made to him by the Appellant/Defendant. [15] Learned counsel for the Appellant had relied heavily on the judgment of the Federal Court in Admiral Cove Development Sdn Bhd v. Balakrishnan a/l Devaraj [2011] 5 MLJ 309. With respect, I find that its facts are distinguishable. [16] In Admiral Cove Development Sdn Bhd v. Balakrishnan a/l Devaraj (supra), the High Court had found that there was no assertive representation by the defendant on “directly accessible to the sandy beach and the sea”. The learned judicial commissioner made a further finding of fact that the plaintiffs failed to prove that they relied on the misrepresentation. Thus, the Federal Court decided to allow the appeal and reinstated the judgment of the trial court, i.e. the High Court. The following passage from the judgment of the Federal Court is amply clear on this point: [17] Whilst in Admiral Cove Development Sdn Bhd v. Balakrishnan a/l Devaraj (supra) there was a finding of fact by the trial judge that there was no misrepresentation made by the developer, in the present case, the learned Sessions Court judge (trial judge) had made a positive finding that the Appellant had emphasised accessibility to the Stesen LRT Muhibbah – as stated in the Appellant’s marketing brochures – to the Respondents. This was expressed in the judgment of the learned Sessions Court judge, as follows: [18] Further, the learned Sessions Court judge was unequivocal in her finding that the Appellant made a representation with full knowledge that it would be impossible to fulfil the representation because the Appellant/Defendant knew that the Development Order dated 22nd September 2026 did not allow a covered pedestrian walkway to be built from the Condominium to the Muhibbah LRT Station located 600 meters away. This was a sound finding of fact based on the Development Order that was in the hands of the Appellant. Yet, the Appellant had persisted then with its misrepresentation that there would – obviously with the intention of enhancing the salability of the Condominium. The 1st Respondent/Plaintiff’s testimony left the learned Sessions Court judge with no doubt that the following representation was made to him: “Luxuriate to your heart’s content without the plague of distant travel, as THE HAVRE is fitted with a covered walkway, dedicated to residents of THE HAVRE, that connects to a megamall as well as an LRT station.” And it was also emphasised that the Muhibbah LRT Station is only 600 meters away. [19] The following words in the judgment of the learned Sessions Court judge explained her finding of facts against the Appellant/Defendant: [20] The finding of the learned Sessions Court judge was in effect a finding of fraudulent misrepresentation. By making a representation which the Appellant/Defendant knew would be impossible to fulfill, it was definitely neither an innocent nor a negligent misrepresentation. It was a deliberate act of deceit. Since specific performance of the representation is impossible and rescission of contract is not sought by the 1st Plaintiff, it is noted that s.37 of the Specific Relief Act 1950 empowers the court to order both rescission and damages to be assessed and paid. Thus, there is no doubt that in this case, the learned Sessions Court judge was right in ruling that General Damages ought to be paid by the Appellant even though she had erred in ordering Special Damages to be paid by the Appellant/Defendant to the Plaintiff as well as to the 148 persons mentioned in Annexure 1 to the Statement of Claim. Conclusion [21] In conclusion, I decided that the Appellant’s appeal ought to be allowed in part; to set aside the judgment of the Sessions Court dated 5th December 2024 which was in favour of the Plaintiffs and 148 other persons, and for only the 1st Respondent/Plaintiff to enter judgment against the Appellant/Defendant for General Damages to be assessed. Since the appeal is allowed only in part, each party is to bear own costs. [22] For the avoidance of doubt, no finding is made regarding the claim by the other purchasers, including the 2nd Respondent/Plaintiff. They are at liberty to file fresh proceedings against the Appellant/Defendant, without prejudice to the Appellant/Defendant’s rights to plead limitation. Date of Decision: 22nd September 2025 ………………………… Gan Techiong Judicial Commissioner High Court of Malaya at Kuala Lumpur (NCvC9) Counsel for the Appellant: Tina Francis SOLICITORS FOR THE APPELLANT: MESSRS MATHEWS HUN LACHIMANAN Advocates & Solicitors 10-3, 3rd Mile Square, 151, 3rd Mile, Jalan Klang Lama, 58100 KUALA LUMPUR. Counsel for the Respondents: A. Kevindran SOLICITORS FOR THE RESPONDENTS: MESSRS KEVINDRAN & CO. 33-01, 33rd Floor, Menara Keck Seng, 203, Jalan Bukit Bintang, 50470 KUALA LUMPUR.

Jok Jau Evong & Ors v Marabong Lumber Sdn Bhd & Ors [1990] 3

Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2005] 2 MLJ 1.

Admiral Cove Development Sdn Bhd v. Balakrishnan a/l Devaraj [2011] 5 MLJ 309.

Order 15 rule 12 of the Rules of Court 2012.

Section 37 of the Specific Relief Act 1950.