Solid Invention Sdn Bhd v 1. Lai Kim Fong (22NCVC-437-08/2016)

LAI KIM FONG

LAI KIM LING

LAI KIM LOONG

LIM KUAN SEK 20 (NO KP: 340515-05-5096) (Sebagai Wasi dan Pemegang Amanah

LI MAH LEE (No KP: 590424-10-6638)

LAI SIEW KIEN (No KP: 610529-10-6568) ... DEFENDAN JUDGMENT 30 The Parties [1] The Defendants are related to one another, with:

the 1st to 3rd Defendants being siblings;

the 4th Defendant being: 2

an aunt to the 1st to 3rd Defendants; and

(ii) the mother of the 5th and 6th Defendants. [2] The Plaintiff, a private limited company is unrelated to the Defendants. Co-ownership of subject land [3] The 1st to 3rd Defendants are co-proprietors of a half share of the land 5 known as Lot 1379, Mukim Semenyih, Daerah Ulu Langat, Negeri Selangor, held under Geran No. 27629 (“Property”). The other half share of the Property is registered in the name of Lai Pin Jam @ Lai Yam, deceased, (“Deceased”) who is the father of the 5th and 6th Defendants, and the late husband of the 4th Defendant. 10 Testamentary bequeath [4] The Deceased, by his Last Will and Testament dated 5.12.2003, had:

appointed the 4th Defendant as executrix and trustee of his estate; and

gave, devised and bequeathed his half share of the Property to 5th and 6th Defendants in equal shares. 15 3 [5] Lai Pin Jam @ Lai Yam, deceased, passed away on 29.5.2007, and on 30.9.2009 Probate was granted on the Will in favour of the 4th Defendant as the executrix and trustee of the estate. Sale of the Property [6] Sometime in 2012, the 1st to 3rd Defendants, and the 4th Defendant as 5 executrix and trustee of the estate of Lai Pin Jam @ Lai Yam, agreed to sell their respective half ownership of the Property to the Plaintiff at the price of RM6,515,739.42. At all times, during negotiations and settling the terms of the Sale and Purchase Agreement (“SPA”), the Plaintiff as purchaser, and the 1st to 4th Defendants as vendors, were represented by solicitors. 10 [7] The SPA provided inter alia:

that the 1st to 3rd Defendants are named as the “First Vendors” and the 4th Defendant is named as the “Second Vendor”;

at Clause 1.1 that the 1st to 4th Defendants agree to sell the Property to the Plaintiff in consideration of:

payment of the sum of RM130,314.78 as earnest deposit by the Plaintiff to the 1st to 3rd Defendants’ solicitors, Messrs C.C. Choo, Hazila & Teong (“Messrs CHT”); 4

(ii) payment of the sum of RM390,944.38 as balance of the deposit sum in equal shares by the Plaintiff to Messrs CHT as solicitors for the 1st to 3rd Defendants and to Messrs Lim May & Associates (“Messrs LMA”) as solicitors for the 4th Defendant;

(iii) payment of the sum of RM130,314.78 towards the Real Property 5 Gains Tax (“RPGT”) to be retained by the Plaintiff’s solicitors Messrs Kamarudin, Wee & Co (“Messrs KWC”) as stakeholders;

at Clause 2.1 that: “(t)he parties hereby agree that the sale and purchase of (the Property) shall be subjected to and conditional upon the (4th Defendant) at (her) own cost 10 and expenses, obtaining the necessary court order for the sale of (the Property) in favour of (the Plaintiff) in lieu of the transfer of (the Property) to the beneficiaries of the estate of the deceased (hereinafter referred to as “the Order for Sale”) within Six (6) months from the date of (the SPA) (hereinafter referred to as “the Conditional Period”) or such extended period 15 as may be granted by the (Plaintiff).” 4th Defendant’s refusal to execute the concluded SPA [8] The 4th Defendant’s solicitors Messrs LMA vide an undated letter confirmed to the Plaintiff’s solicitors Messrs KWC that the 4th Defendant “agrees with the terms of the draft Sale and Purchase Agreement (dated 20 6/12/2012” and asked Messrs KWC to proceed with the fairing and execution of the SPA by all parties. 5 [9] The Plaintiff as purchaser executed the SPA, and in fulfilment of its obligations under clause 1.1, made all necessary payments to the relevant parties. However, on or about 24.12.2012, Messrs LMA, the solicitors for the 4th Defendant, informed Messrs KWC, the Plaintiff’s solicitors, that after “much consideration and discussion with the (5th and 6th Defendants)” the 4th 5 Defendant was “unable to proceed with the sale” and returned the SPAs without executing the same. [10] The Plaintiff vide its solicitor’s letter dated 26.12.2012 asserted that the position taken by the 4th Defendant was untenable in law as the terms of the SPA have been agreed by all parties and for all intent and purposes the sale 10 contract has been concluded, and that the execution of the SPA was a mere formality. The Plaintiff demanded that the 4th Defendant execute the SPA and gave notice to the 4th Defendant that failure to execute and/or perform the terms of the SPA would be a repudiation of sale contract. The 4th Defendant did not accede to that demand. 15 [11] The 1st to 3rd Defendants at first took the position that there was a concluded sale contract between the parties and informed the Plaintiff’s solicitors that they were ready, able and willing to execute the SPA and perform its terms. However, separately, on or about 7.5.2013, the 1st to 3rd Defendants attempted to repudiate/terminate the sale by returning to the 20 6 Plaintiff the payment of the earnest deposit and the 1st to 3rd Defendants’ half share of the balance deposit that the Plaintiff had paid earlier. [10] The Plaintiff then instituted a civil action in the High Court at Shah Alam vide Civil Suit No. NCVC-536-08/2013 (“Suit 536”) against the 1st to 4th Defendants in respect of their refusal to complete the sale of the Property and 5 sought inter alia an order of specific performance of the SPA. [11] The 4th Defendant’s defence in Suit 536 was that she was unable to proceed with sale of the Property as the 5th and 6th Defendants, as beneficiaries, refused consent to the sale of the Property. As such the 4th Defendant took the position that it would be impossible for the SPA to be 10 performed, as the sale is subject to an order for sale for which the consent of the 5th and 6th Defendants is required. Consent Judgment [12] Notwithstanding the above stand of the 4th Defendant, on or about 2.9.2015, the Plaintiff and the 1st to 4th Defendants entered into and recorded 15 a consent judgment in respect of Suit 536 (“Consent Judgment”), pursuant to which:

all parties to Suit 536 must sign and perform the SPA and all relevant documents on or before 11.9.2015; 7

all parties to Suit 536 will proceed to perform their respective duties under the terms of the SPA; and

the Plaintiff shall make an ex gratia payment of RM250,000.00 to the 1st, 2nd, and 3rd Defendants, and a sum of RM50,000.00 to the 4th Defendant, which payment shall be made to Messrs KWC as stakeholders pending completion of 5 the SPA. [13] Thereafter, on or about 10.9.2015, the Plaintiff, and the 1st, 2nd, 3rd and 4th Defendants, executed the SPA. The Plaintiff once again fulfilled all its obligations under the Consent Judgment and made payment of the ex-gratia sums. 10 [14] On or about 8.10.2015, the 4th Defendant made an ex-parte application to the High Court for an order to validate/sanction the SPA. In this connection:

at the hearing on 20.10.2015, the High Court directed the 4th Defendant to file a letter or affidavit evidencing the 5th and 6th Defendants’ consent to the sale of the Property;

at the hearing on 24.11.2015, Messrs LMA had, on behalf of the 4th Defendant, requested the Court to dispense with the 5th and 6th Defendants’ consent on the premise that the 4th Defendant is disposing 8 the Property pursuant to a Grant of Probate, which request was however not acceded to;

on or about 30.11.2015, Messrs LMA informed Messrs KWC that the 5th and 6th Defendants are not agreeable to the sale of the Property. And following that, on 28.1.2016 the application for Court’s sanction was 5 withdrawn with liberty to file afresh. [15] The Plaintiff, however, took a contrary stand and contended that there was no requirement in law for the Court’s consent to the sale of the Property as:

the disposal/sale of the Property by the 4th Defendant is pursuant to a 10

there are no restrictions prescribed for the disposal/sale of the Property in the Will and/or the Grant of Probate thereof; and

accordingly, pursuant to the Probate and Administration Act 1959, the 4th Defendant can dispose/sell the Property without seeking an order or 15 sanction of the Court. [16] Thereafter, a series of correspondence ensued between solicitors for the parties and the long and short of it was that the 1st to 4th Defendants evinced 9 an intention not to proceed with the SPA. The Plaintiff construed this refusal to be a breach of the Consent Judgment and also repudiation of the SPA by the 1st to 4th Defendants. Accordingly, the Plaintiff, whilst reserving its rights, gave notice of repudiation to the solicitors of the 1st to 3rd Defendants and to the solicitors of the 4th Defendant, and then proceeded to file the present action. 5 The present action [17] The Plaintiff’s action is for breach of contract and seeks inter alia an order for specific performance of the SPA in accordance to the terms of the SPA and the Consent Judgment. [18] The crux of the 1st to 6th Defendants’ pleaded defence is that the 4th 10 Defendant required the consent of both the 5th and 6th Defendants, as beneficiaries to the Will, before the Property could be sold. The Defendant’s allege that as this consent was not procured and/or forthcoming, the SPA cannot be completed as the condition precedent set out in Clause 2.1 of the SPA could not be satisfied. 15 The position of the Defendants prior to trial [19] However, just prior to commencement of trial, the 4th and 5th Defendants entered into another Consent Judgment with the Plaintiff, where the 4th and 5th Defendants in essence agreed to abide by the SPA and previous 10 Consent Judgment, and thus, effectively consented to the sale of the Property to the Plaintiff. [20] On the first day of trial, Ms Jane Pragasam, counsel for the 1st to 3rd Defendants, clarified that her clients were always ready and willing to proceed with SPA, and that the issue of consent and Clause 2.1 is contractually a matter 5 only between the Plaintiff and 4th to 6th Defendants, and does not concern her clients. [21] Hence, in essence only the 6th Defendant held out against the Plaintiff’s claim. The 6th Defendant chose not to compromise her pleaded defence and wished to proceed with trial. 10 The issues [21] Given the above, I agree with submissions of counsel for the Plaintiff, that there were essentially only two life issues for determination, which are:

Whether Clause 2.1 of the SPA is legally necessary and required for the completion of the sale and transfer of the Property to the Plaintiff?

If so, whether the 6th Defendant had expressly or impliedly consented to the sale of the Property and/or whether she is estopped from denying or from refusing her consent to the sale of the Property? 11 The 1st Issue – Whether the 6th Defendant’s consent is required? [22] A good starting point would be section 60(3) and 60(4) of the Probate and Administration Act 1959 (“PAA”) which reads:

A personal representative may charge, mortgage or otherwise dispose of all or any property vested in him, as he may think proper, subject to any restriction which 5 may be imposed in this behalf by the will of the deceased, and subject to this section: Provided that an executor may dispose of any property notwithstanding any restriction so imposed, if he does so in accordance with an order of the Court.

An administrator may not, without the previous permission of the Court -

mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property situate in any State and for the time being vested in him; or

lease any such property for a term exceeding five years. Section 60(3) of the PAA very clearly stipulates that except where the Will 15 imposes restriction, the executor is at liberty to deal with the estate property, including to sell or dispose them, at his discretion. However, if there is any restrictions imposed in the Will, then the executor may circumvent that restriction by a court order in that regard. Section 60(4) of the PAA on the other hand imposes a legal requirement in all circumstances for the 20 administrator of an intestate estate to obtain a court order if he wishes to sell or dispose any estate property. 12 [23] In Ong Thye Peng v Loo Choo Teng & Ors [2008] 4 MLJ 31 the Federal Court had to answer the following question: Whether the beneficiaries of an estate of a person who dies testate should, in law, be entitled to the same measure of protection as that afforded to beneficiaries under the provisions of the Probate and Administration Act 1959 and judicial 5 pronouncements thereof. Augustine Paul FCJ in speaking for the Federal Court made the following general observation on the working of sections 60(3) and (4) of the PAA: [28] In our opinion the language employed in s 60 of the 1959 Act is clear. It is concerned with the manner of disposal of the property of a deceased person by his 10 personal representative. Section 60(3) of the 1959 Act deals with the disposal of the property of a person who dies testate while s 60(4) of the 1959 Act deals with the property of a person who dies intestate. Under s 60(4)(a) of the 1959 Act the immovable property of a person who dies intestate may not be disposed of without the previous permission of the court. Under s 60(3) of the 1959 Act the property of a 15 person who dies testate may be disposed of in any manner the executor may think proper subject to the imposition of any restriction by the will of the deceased. In that event the executor may still do so in accordance with an order of the court. What requires deliberation is the difference in law, if any, in the manner of disposal of the property of a person who dies testate and a person who dies intestate. 20 ... ... [33] A question that may warrant consideration is whether this conclusion is affected by the different language employed in s 60(3) and (4) of the 1959 Act. While s 60(4) refers to the obtaining of the 'permission' of the court to approve the sale s 60(3) refers to a mere 'order of the court' for the disposal of any property. It must be 25 observed that under s 60(3) of the 1959 Act the order of court that is required for the disposal of property is one that is given in substitution of a restriction that has 13 been imposed in the will for such disposal. In making the order the court will undoubtedly consider whether the restriction imposed by the will ought to be substituted with the proposed disposal. This will bring to the forefront a consideration of the interests of the estate in making the order. This in turn places the order of court that is sought under s 60(4) and (3) of the 1959 Act in the same 5 position. Thus the different language employed in both the subsections require the application of the same tests. Hence, the Federal Court had made it clear that in cases where there is no restriction imposed in the Will, the executor was, unlike an administrator of an intestate estate, at liberty to deal with the estate property, including its 10 disposal, without the need for any court sanction or order. However, the executor, as trustee, had a duty in law to procure the best possible price and the best possible terms for the sale or disposal of any estate property. In short, the executor must act in the best interest of the estate. [24] The rationale for the regime in section 60 of the PAA, and the distinction 15 in the roles and functions of executors and administrators, was clearly explained by Vincent Ng J (as he then was) in Re: Estate of Teoh Cheow Choon; Ex parte: Khor Hong Luang [1994] 4 CLJ 575, in the following terms: An administrator is a person who obtains his authority solely from the grant of Letters of Administration and to whom representation of the deceased is committed 20 by the Court in default of an executor. His office resembles that of an executor but, since he has not been selected by the deceased, he is, in general, obliged to give a bond with sureties for the due performance of his duties which (in regard to immovable property) he could perform only with the sanction of the Court, by way 14 of an application for leave to distribute or transfer. As he derives his authority and powers only from the Court, s. 60 (4) of the Probate and Administration Act 1959, provides that he cannot without previous permission of the Court:

mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property situated in any Stated and for the time being vested in 5 him; or

lease any such property for a term exceeding five years. An executor is the person appointed by the testator to execute the Will. And as such, he is not required to give a bond or to provide sureties for the due performance of his duties. "To appoint an executor," says Swinburne, "is to place one in the stead of 10 the testator, who may enter to the testator's goods and chattels, and who hath action against the testator's debtors, and who may dispose of the same goods and chattels, towards payment of the testators debts, and performance of his will". See Swinb, Pt. 4, s. 2, pl. 2; Brownrigg v. Pike [1882] 7 PD 61-64 and Re Wells[1968] WLR

Subsequent to the probate and estate duty formalities he has the task of 15 distributing the estate as directed by the Will. He does this in his other capacity as trustee. As he takes his powers from the testator himself, s. 60(3) of the Act provides that he may, without leave of the Court, charge, mortgage or otherwise dispose of all or any property of the deceased as he may think proper, subject to any restriction in the Will of the deceased; and if there is such restriction he may only do so with 20 leave of the Court. [25] And similar observation was made by Ariffin Zakaria J (as he then was) in Lee Ah Ngan & 1 lagi lwn Lee Kow [1995] 2 CLJ 51 as follows: Peguam pemohon di dalam penghujahannya bergantung sebahagian besarnya kepada peruntukan s. 60 (3) Akta Probate dan Pentadbiran 1959 dan menyatakan 25 bahawa pemohon di sini sebagai wasi estet simati adalah berhak untuk melupuskan mana-mana harta yang terletakhak kepadanya, tertakluk kepada apa-apa sekatan yang dikenakan di dalam wasiat itu. Peguam pemohon menghujahkan bahawa tidak 15 ada apa-apa sekatan di dalam wasiat maka pemohon berkuasa melupuskan tanah itu mengikut budibicara mereka. Untuk tujuan itu, mereka tidak perlu mendapat kebenaran Mahkamah atau persetujuan benefisiari. Seksyen 60 (3) Akta Probate dan Pentadbiran 1959 memperuntukkan: 60 (3) A personal representative may charge, mortgage or otherwise dispose 5 of all or any property vested in him, as he may think proper, subject to any restriction which may be imposed in this behalf by the will of the deceased, and subject to this section: Provided that an executor may dispose of any property notwithstanding any restriction so imposed, if he does so in accordance with an order of the 10 Court. Dari fahaman saya, seksyen tersebut sepertimana yang dihujahkan oleh Peguam pemohon memberi kuasa yang mutlak kepada pemohon untuk melupuskan tanah tersebut mengikut budibicara mereka. Sebagaimana dikatakan oleh penulis buku The Law of Succession Testate and Intestate Sixth Edition di muka surat 255: 15 The Court ought not, in the exercise of its general equitable jurisdiction, to interfere with the discretion of trustees or personal representatives in the absence of mala fides or some other special circumstances showing grave misdirection of themselves by the trustees or personal representatives. Saya tidak nampak sebarang sebab kenapa Mahkamah harus campur tangan di 20 dalam kuasa budibicara wasi-wasi di dalam keadaan kes ini. Pihak responden di dalam afidavitnya tidak pernah mencadangkan bahawa terdapat niat buruk (mala fides) pemohon atau apa-apa sebab lain yang memerlukan campur tangan Mahkamah. Thus, the common thread running through these case authorities is that an 25 executor of a Will may sell or dispose any estate property without the requirement of court’s sanction, if there is no such requirement stipulated in 16 the Will. Further, in the absence of mala fides and/or some special circumstances showing grave misdirection, the exercise of power by an executor pursuant to the terms of a Will ought not be interfered with by the court, as for all intents and purpose the executor steps into the shoes of the testator under the terms of the Will. 5 [26] In the present case, we are dealing with a Will for which Grant of Probate has been issued. The operative part of the Will in relation to properties and the power of disposal given to the executrix of the Will, the 4th Defendant, reads: “3. I GIVE, DEVISE AND BEQUEATH the following properties:- 10 A) my one third (1/3) share of my double storey terrace house held under individual title Nos. Hakmilik 330 and Hakmilik 388, Lot 35501 and 35561, both in the Mukim and District of Kuala Lumpur, State of Wilayah Persekutuan bearing address No. 47, Jalan Telok Pulai, Bukit Seputeh, 58000 Kuala Lumpur to my wife LIM KUAN SEK (f); 15 B) in the event that my wife predeceases me, then my share in item (A) above shall be given to my youngest daughter, LAI SIEW LEE; and C) my half share of the land held under Geran No. 27629, Lot 1379, Mukim of Semenyih, District of Ulu Langat, State of Selangor Darul Ehsan to my two daughters, LAI MAH LEE and LAI SIEW KIEN in equal 20 quarter (1/4) shares.

I, GIVE, DEVISE AND BEQUEATH all my real and personal estate whatsoever and wheresoever situate and not hereby or by any codicil hereto otherwise 17 disposed off unto my Trustee upon trust to retain, sell, call in or convert the same into money with power to postpone such sale, calling in or conversion without being liable for any loss occasioned thereby and out of the proceeds thereof and any ready monies comprised in my estate to pay my just debts, funeral and testamentary expenses and to stand possessed of the residue of 5 such monies and of any property comprised in my estate for the time being remaining unconverted [hereinafter called “my residue estate”] to my wife, LIM KUAN SEK absolutely. [27] A proper scrutiny of the Will shows that the testator has not imposed any restrictions on the power of the 4th Defendant, as executrix, to sell or 10 dispose the estate properties. In fact there is an express general power to dispose or sell given in clause 4 of the Will, which is in respect of the residual property. Thus, in the circumstance, I find that on the facts and the law, the 4th Defendant as executrix of the Will does not have to procure the consent of the 5th and 6th Defendants, i.e. the beneficiaries of Property under the Will, in 15 order to enter into the SPA and to sell the Property. There is no requirement in the Will for the executrix to obtain such consent. [28] By virtue of the Will, and the Grant of Probate, the executrix steps into the shoes of the testator, and is free to deal with it as the Deceased would have been able to in his lifetime. In this regard, the provisions of section 60(3) 20 of the PAA is relevant and applicable. Counsel for the 6th Defendants contends that before an executor can deal with any estate property under section 60 of the PAA, the property must first be “vested” in the executor pursuant to 18 section 346 of the National Land Code. I am unable to accept this contention as by operation of law all properties of the testator vests in the executor upon the death of the testator, and there is no specific need for an order of court for the vesting happen. Thus, upon the death of the deceased on 29.5.2007, the Property is vested in the 4th Defendant, as executrix and trustee, who in turn is 5 at liberty to deal with it in accordance to the terms of the Will. Hence, the executrix may dispose of any property vested in her as she may think proper, subject only to any restriction imposed by the testator in the Will, and subject further to her common law duty to act in the best interest of the estate. I find that there are no such restrictions in the Will that would curb her powers of 10 disposal. And therefore, under section 60(3) of the PAA there is no need to procure an order of court to sanction the sale. [29] In coming to this conclusion I have adopted the views expressed by Vincent Ng J in Re: Estate of Teoh Cheow Choon; Ex parte: Khor Hong Luang [1994] 4 CLJ 575; and am guided by the pronouncement of the Federal Court in 15 Ong Thye Peng v Loo Choo Teng & Ors [2008] 4 MLJ 31. The views expressed by the High Court in Lee Ah Ngan & 1 lagi lwn Lee Kow [1995] 2 CLJ 51 is also instructive of the proper position of law in respect of the court’s supervisory role in matters concerning testacy. 19 [30] Hence, the stipulation in the SPA that the 4th Defendant shall obtain the “necessary court order for the sale of the property” is superfluous and unnecessary. Thus, I find Clause 2.1 of the SPA that requires a court order for the sale transaction in the SPA is unnecessary and/or inoperable, and declare it to be so. 5 Waiver by the Plaintiff [31] In any event, a condition such as in Clause 2.1, which was inserted for the benefit of the Plaintiff/purchaser, in an abundance of caution, may be waived by the Plaintiff/purchaser, and the facts show that the Plaintiff/purchaser did waive that condition. See Balbosa v Ayoub Ali [1990] 37 10 WIR 447 where the Privy Council held that any contractual term or condition inserted for the benefit of one party may be waived by that party to the contract. 5th and 6th Defendant’s implied consent by conduct and estoppel [32] Even if requirement of the court order as in Clause 2.1 were to be 15 construed as a legally necessary requirement, I also find that the 4th Defendant, as executrix, had authority to enter into the Consent Judgment dated 2.9.2015 in the Suit No. 536 for the specific performance of the SPA (which was entered in the notable presence of the 5th Defendant), and that the 20 said Consent Judgment is binding on the 5th and 6th Defendants, as both them had knowingly left it to the 4th Defendant to deal with their solicitors and to instruct the solicitors. Hence, the 5th and 6th Defendants would be bound by the instructions given by the 4th Defendant to their solicitor, which includes the instructions to enter into the Consent Judgment. See: T Siva Tharamalingam v 5 Public Bank Berhad [2018] 6 CLJ 1 FC. I agree with the Plaintiff that the clear effect and/or implication of the 4th Defendant entering into the Consent Judgment is that the 5th and 6th Defendants no longer object to the SPA but had instead consented to the sale of the Property to the Plaintiff upon the terms in the SPA and the added terms in the Consent Judgment. Hence, both 10 the 5th and 6th Defendants would be estopped from denying that they had consented to the sale of the Property. The subsequent conduct of the 4th and 5th Defendants in entering into the second Consent Judgment on 17.8.2018, just a few days before trial, is evidence of this fact. 6th Defendant’s knowledge and agreement by conduct 15 [33] However, the 6th Defendant continued to hold out, and asserted that she did not consent to the sale of the Property. But, when the facts are analysed, it points to the irresistible conclusion that the 6th Defendant had knowledge of the sale transaction and had by her conduct agreed to the sale. Firstly, the 6th Defendant had at all material times knowledge of and was well aware of the 20 21 sale of the Property to the Plaintiff, both through the SPA and the then ongoing Suit 536. This is evidenced from the ‘Statutory Declaration’ dated 10.11.2014 which affirmed to jointly enter a private caveat on the Property. The 6th Defendant had lodged the private caveat through the law firm of Messrs Jamie Wong, who were also the solicitors for the 4th Defendant in Suit 5

The 6th Defendant’s solicitors knew very well the position taken by the 4th and 5th Defendants in compromising Suit 536 by entering into the Consent Judgment. The law is trite in that the knowledge of the solicitor can be imputed to the client. See: T Siva Tharamalingam v Public Bank Berhad [2018] 6 CLJ 1 FC. Hence, the 6th Defendant is in law deemed to have full knowledge 10 of the SPA, Suit 536 and the Consent Judgment by virtue of her solicitor having such knowledge. [34] Secondly, the 6th Defendant testified that at the material time, she never informed the Plaintiff directly that she did not want to sell the Property. In fact, the 6th Defendant was content to let the 4th and 5th Defendant to advance 15 her position vis-à-vis the sale transaction of the Property to the Plaintiff, and had indeed authorized them to do so. Hence, it would now be too late in the day for the 6th Defendant to resile from this position and contend otherwise. See Tradium Sdn Bhd v Zain Azahari bin Zainal Abidin [1995] 1 MLJ 669. 22 [35] Thirdly, the evidence shows that the 6th Defendant was agreeable to the terms of the Consent Judgment. The 4th Defendant in entering the Consent Judgment had represented to the Plaintiff that the 6th Defendant’s consent to the SPA had been obtained or will be forthcoming. If the 6th Defendant was not agreeable to the sale of the Property in accordance to the SPA and/or the 5 Consent Judgment, then she should have taken some action to stop the transaction or make known her objection. However, there is no contemporaneous evidence or documents to show that the 6th Defendant had ever raised any protest and/or objection and/or challenge to the Consent Judgment until these very proceedings. Hence, the 6th Defendant will in law be 10 estopped from denying that she had consented to the sale of the Property and/or from refusing her consent to the sale. See: Alfred Templeton & Ors Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202. The 6th Defendant’s Defence and demeanor [36] Thus, when the overall evidence is considered, the 6th Defendant’s 15 defence rings hollow. The 6th Defendant’s defence is based wholly upon her oral testimony. However, I find the 6th Defendant lacks credibility in her testimony. She was prone to prevarication, and quick to disavow facts when confronted or caught out in cross examination. In fact during cross examination, when faced with difficult questions or questions where the 20 23 answers would not be favourable to her case, she sought to divert from answering these questions. In fact, in doing so she even disavowed the contents of her Witness Statement, despite her having examined and signing it at the start of her testimony. She did this by alleging that the Witness Statement was incorrect and/or was not the one she prepared with her 5 solicitor. That was a very grave allegation against her own solicitor. However, after a break in proceedings, during re-examination she changed tack and reconfirmed the contents of the Witness Statement as her own. Obviously this was a ploy by the 6th Defendant to escape the vigorous and pointed cross-examination of her by counsel for the Plaintiff. Further, any witness who does 10 this is not worthy of credit. Plaintiff ready, able and willing to complete the SPA [37] The Plaintiff has demonstrated that it is ready, able and willing to conclude the SPA and had in fact made all the necessary payments as they came due. Given the position of the 1st to 5th Defendants’ position to now 15 complete the sale, only the 6th Defendant was holding out and it is only the 6th Defendant’s defence that I have to consider. And for the various reasons discussed earlier, I find that the 6th Defendant does not have a valid case to advance her position to oppose the sale of the Property to the Plaintiff. 24 Judgment for the Plaintiff [38] Wherefore, judgment was entered for the Plaintiff against the 1st, 2nd, 3rd and 6th Defendants and order in terms of prayers (1), (2), (3), (4), (5), (6), (9),

(10), (11), (12) and (13) of paragraph 43 of the Amended Statement of Claim was granted with an order for cost as follows;

the sum of RM25,000.00 to the P to be borne and paid by the D1 to D3;

the sum of RM35,000.00 to the P to be borne and paid by the D6. I further ordered that the cost awarded are to be deducted from the balance purchase price payable by the Plaintiff to the respective Defendants. Defendant’s claim for indemnity and Contribution 10 [39] As for the 1st to 3rd Defendants’ claim for indemnity and contribution against 4th to 6th Defendants, I find that there is no basis in law or fact for such an order to be made. The 1st to 3rd Defendants, whilst stating that they were ready and able to complete the sale of the property, had nevertheless in the course of proceeding and submissions taken a position that the Plaintiff does 15 not have any cause of action against the them, and that the claim ought to be dismissed. In so doing they were taking a rider on the defence filed by the other Defendants, and in particular the 6th Defendant. In submissions the 1st to 25 3rd Defendants strongly supported the 6th Defendant’s position vis-à-vis the validity of Clause 2.1 of the SPA and the requirement for a court order to validate the sale. This, in my opinion, was a back door attempt by the 1st to 3rd Defendants to escape from performing the SPA as the price of the Property had appreciated considerably and they were looking for a way out. As for the 5 6th Defendant’s claim for indemnity and contribution against the 1st to 3rd Defendants, I also find that there is no basis in law or in fact for such an order to be made. The 6th Defendant is the architect of her own misfortune. The 1st to 3rd Defendants have not in any way caused any loss or damage to her. The present action had to proceed to trial only because the 6th Defendant was 10 holding out against the rest. Hence, I dismissed both Notices for indemnity and Contribution without any order for cost. Orders accordingly. Dated this 9th day of July 2019. 15 Vazeer Alam Mydin Meera Judge High Court in Malaya Shah Alam 20 26 Counsel for Plaintiff Mr Conrad Young Tetuan Sreenavasan Young J-3A-13, Solaris Mont Kiara No. 2, Jalan Solaris 5 50480 Kuala Lumpur Tel : 03 6209 1968 Fax : 03 6209 1978 Ref : SY.1077.17 10 Counsel for 1st to 3rd Defendant Ms Nurul Faridza Bt Hamdan Tetuan Ho-Noecker & Pragasam Advocates & Solicitors Level 2, 104A 15 Jalan SS21/39 Damansara utama 47400 Petaling Jaya Tel : 03 7728 0855 Fax : 03 7728 3855 20 Ref : JP.161367.Lit Counsel for 4th Defendant Ms Ng Yee Chien Messrs Jamie Wong 25 Advocates & Solicitors D2-U3A-8, Solaris Dutamas No. 1, Jalan Dutamas 1, Hartamas Heights 50480 Kuala Lumpur Ref : JW.Lit.2104.029 30 35 27 Counsel for 5th Defendant Mr William Ch’ng for D5. Messrs Terrance & Randy Advocates & Solicitors Suite D1-U6-16, Solaris Dutamas 5 No. 1, Jalan Dutamas 1, Hartamas Heights 50480 Kuala Lumpur Ref : L00036/17/TL/RC Mr Lua Kok Hiyong for D6. 10 Tetuan Lua & Mansor Advocates & Solicitors No.11-1, Jalan PJS 11/28 Bandar Sunway,46150 Petaling Jaya