SOUTHERN REALTY (MALAYA) SDN BHD v 1. ) Pentadbir Tanah Pejabat Tanah dan Daerah Sepang (BA-24-43-10/2020)

PENTADBIR TANAH DAERAH DAN PEJABAT TANAH

KERAJAAN NEGERI SELANGOR … DEFENDANT GROUNDS OF JUDGMENT [1] The present Originating Summons (“OS”) before me is the Plaintiff’s application pursuant to Order 73 Rule 12 of the Rules of Court 2012 (“RC 2012”) and/or Section 33 of the Government Proceedings Act 1956 (“GPA”) and/or the inherent jurisdiction of this Honorable Court. [2] The following are the orders sought by the Plaintiff: S/N 4tvCzsfP0KrYkzsse6b7w Ma2 1) a Certificate (hereinafter ‘Certificate-1’) under Section 33 of Government Proceedings Act 1956 be issued against the Defendant and each of them for the payment to the Plaintiff of :- a. the sum of Ringgit Malaysia Four Hundred and Seventy-Six Thousand five hundred and twenty-nine and ninety-five cents only (RM 476,539.95) being the sum due to the Plaintiff up until 30.09.2020; i. or such other sum as this Honorable Court deems fit and proper as being pursuant to the Consent Order dated 25.11.2014; and b. late payment charges at the rate of 8.0% per annum on the outstanding amount from 01.10.2020 until the date of full settlement; or i. the sum of RM 104.23 being the late payment charges per day on the outstanding balance S/N 4tvCzsfP0KrYkzsse6b7w Ma3 judgment sum from 01 October 2020 until the date of full settlement; or ii. such other sum as this Honorable Court deems fit and proper pursuant to the Consent Order dated 25.11.2014 until the date of full and final settlement of all sums due from the Defendants; 2) and the costs of this application; and an Additional Certificate be issued to the Plaintiff against the Defendants and each of them in this action under the proviso to Section 33 (1) of the Government Proceedings Act 1956 for the payment of such costs to the Plaintiff as attached in Annexure B to the Application (‘Certificate 2’). 3) Any other relief deemed fit and necessary by this Honorable Court. S/N 4tvCzsfP0KrYkzsse6b7w Ma4 [3] On 27.06.2022, this Court allowed the Plaintiff’s application in the following terms: a) A Certificate-1 under Section 33 of Government Proceedings Act 1956 be issued against the Defendant and each of them for the payment of the Plaintiff of the sum of RM 151,836.80; b) Costs of RM 15,000.00; and c) Interest on cost at the rate of 5.0% per annum from the date of this award. [4] The following are the grounds of judgment for the aforesaid decision. Background of the Applicant’s application [5] On 25.11.2014, a Consent Order between the Plaintiff and the First Respondent was recorded before the High Court in Shah Alam (Originating Summons No: 24-1484-2011) in which that: - S/N 4tvCzsfP0KrYkzsse6b7w Ma5 a. the First Defendant shall deposit RM 737,000.00 together with all interest accruing amounting to RM 757,595.62 in court; and b. payment to the Plaintiff or the Plaintiff’s solicitor, Messrs Lovelace & Hastings, with no order as to costs. [6] On 13.10.2012, the First Defendant paid a sum of RM 737,000.00 as deposit in the Court. [7] On 17.02.2015, the First Defendant paid a further sum of RM 281,065,67 being part payment of the interest sum, leaving the balance of RM 476,529.95 as at 25.11.2014. [8] Although partial payments have been made, these are wholly inadequate to satisfy what is legally due to the Plaintiff. [9] Despite the payment of these sums, that the Defendants are still indebted to the Plaintiff in the sum of RM 669,164.74 as at 30.09.2020 A breakdown of the indebted sum which is RM 669,164.74 is as follows: - S/N 4tvCzsfP0KrYkzsse6b7w Ma6

Sum deposited in Court

RM 737,000.00 Late payment charges RM 281,065.67

Balance owing to the Plaintiff RM 476,529.95 4. Interest of 8% on late payment charges as at 30.09.2020 (Note: the 8% is applicable as the award was made prior to amendment lowering the interest rate to 5%) RM 669,164.74 [10] By letters dated 14.05.2018, 23.01.2020, 13.02.2020 and 21.05.2020 respectively, the Plaintiff’s solicitors demanded the First Defendant to pay the balance of the judgment sums to the Plaintiff or the Plaintiff’s solicitor. [11] However, the First Defendant has so far failed, refused and or neglected to payment the said balance of the judgment sums or any part thereof to the Plaintiff or the Plaintiff’s solicitor. S/N 4tvCzsfP0KrYkzsse6b7w Ma7 [12] For these reasons, the Plaintiff desires the satisfaction of the sums prayed for certification to be first, certified and second, upon certification, be paid to the Plaintiff or its solicitors. The Defendant’s opposition to the Plaintiff’s application (Enc.1) [13] The Defendant’s oppose Enc. 1 on three (3) grounds:

(a) Whether the Plaintiff should have filed this application under OS No. 24-1494-2011 in order to avoid confusion;

(b) Whether Section 32 and 43 of the Land Acquisition Act 1960 (LAA) is applicable for purposes of claiming late payment charges of 8% in view of the fact account that the compensation sum was already deposited into Court; S/N 4tvCzsfP0KrYkzsse6b7w Ma8

(c) Whether the Plaintiff’s application for a certificate under Section 33 of the GPA claiming interest on late payment charges and not compensation is appropriate. Hence, the Plaintiff’s application is unreasonable, merits no consideration and should be dismissed. Summary of the Defendants’ Submission: [14] In summary, the Defendants contend as follows:

(i) the Plaintiff should have made this application under the Originating Summons’ case number 24-1484-2011 since the Plaintiff wanted to apply for payment to be made in accordance with the consent order in the case. Instead, the Plaintiff filed a new originating summons under a new case number for the purpose of requesting payment for the Consent Order dated 25.11.2014;

(v) The First Defendant had made payment of both sums wherein the particulars of payment are as follows: a. On 21.06.2012: A sum of RM 737,000-00 was deposited into Court (the Plaintiff received payment of the compensation on 14.07.2015); b. On 04.02.2016: A sum of RM 281,065.67 was paid by the Defendants into the Plaintiff’s bank account (this sum is part of the late payment charges of RM 757,595.62); c. On 14.04.2021: A sum of RM 476,529.65 being the balance of the late payment charges under the Consent Order dated 25.11.2014. This payment was made after the Defendants received the Plaintiff’s present OS in which the Plaintiff is claiming for a sum of RM 699,164.74. S/N 4tvCzsfP0KrYkzsse6b7w Ma11

(i) Whether the Plaintiff was wrong in relying on the provisions of section 32 and section 43 of the Government Proceedings Act 1956 when making this application? This is in view of the fact that when the First Defendant made the calculation of late payment charges for the delay in compensation, the amount of RM 737,000.00 was deposited to Court. According to the Defendants, whilst Section 32(1) of the Land Acquisition Act 1960 applies to this case, there is no late payment charges as the calculation date will stop when the compensation has been deposited in Court.

(a) an order has been made by the Court in favor of the applicant, which in this case was the plaintiff;

(b) the order is against the government or against an officer of the government. [17] Under section 2(1) GPA, the word “Order” is defined as “a judgment, decree, rule, award or declaration. [18] In the present case before me, the Plaintiff has shown that: a. that there is a perfected consent judgment between the Plaintiff and the First Defendant; S/N 4tvCzsfP0KrYkzsse6b7w Ma14 b. the Orders were made against the First Defendant who is an officer of government and was executing the official duties at all material times; and c. There have been recent part payments reflecting the Defendants’ acknowledgement that further amounts are due and payable towards the judgment sum. [19] At the time the Plaintiff filed the OS, the Defendants had only paid part of the late payment charges of RM 757,595-62. As the Defendants had only paid a sum of RM 281,065.67, there was still a balance of RM 476,529-65 owing to the Plaintiff. Taking into account, the late payment interest which had set in, the total amount outstanding became RM 699,164.74. [20] On 21.06.2021, the Defendants paid the balance of RM476,529-65 (being the remaining balance of the late payment interest) and considered the Consent Order satisfied and that the Plaintiffs cannot S/N 4tvCzsfP0KrYkzsse6b7w Ma15 claim any further sum as doing so would be contrary to the terms of the Consent Order. [21] Regrettably, I cannot agree with the Defendants’ contention that the Plaintiff cannot claim late payment charges once the compensation sum is deposited in Court and that the terms of the Consent Order prevents the Plaintiff from doing so. [22] My reading of section 32 LAA finds that the Plaintiff’s entitlement to late of payment charges is as of right and immediate for any compensation. In this regard, the case of Ismail Bakar & Ors Director of Lands and Mines, Kedah Darul Aman [2010] 9 CLJ 810 (“Ismail Bakar”) is directly on point. [23] There, the respondent advised the appellant to make claims for late payment charges under section 29A LAA. The Court of Appeal stated as the following: - “[33] It is further argued by the respondent that the long delay does not invalidate the acquisition of the lands as the appellants S/N 4tvCzsfP0KrYkzsse6b7w Ma16 would be entitled to interests for the late payments under s.32 of the Act. With respect, we are also unable to accept this argument. There is not merit in it. In our view, where the delay in making payment is grossly unreasonable, as has happened in the present case, where there has been a delay of nine years, it is no answer that the landowner is entitled to interests for the delay: what is of paramount importance to the landowner, who have been deprived of the use and enjoyment of his land, and what justice requires, is the right to compensation within a reasonable time. Furthermore, s.32 ought not to be interpreted as conferring on the respondent (or the Land Administrator) a ‘license’ to flout the stipulation of s.29 with impunity. [35] …it is clear that under s.32 there is an automatic right to be paid late payment charges as long as there has been a delay in making compensation payment by the Land Administrator. Under s.32 there is no necessity for the appellants to make a claim for late payment charges. The entitlement to late payment charges is as of right and is immediate. Therefore, it is wrong for the State Director, in his letters to the appellants, to advise the S/N 4tvCzsfP0KrYkzsse6b7w Ma17 appellants to ‘make a claim’ for late payment charges. As a matter of law the appellants need not have to make a claim in order to be paid the late payment charges. They should be paid forthwith the late payment charges together with the compensation sums. Of course, now the appellants are no longer interested in the compensation and interest: they just want their lands back.” [24] The case of Ismail Bakar (supra) was followed in Arena Tegar Sdn Bhd v. Pentadbir Tanah Daerah Johor Bahru & Anor [2017] 9 CLJ 77 wherein the court held that the plaintiff was automatically entitled to late payment charges at the rate of 8% per annum from the due date until the date payment was made. The ratio was as follows: - “[23] The chief words in the aforementioned provision lie within the sentence "... the Land Administrator shall pay the amount awarded with late payment charges..." The word "shall" connote a statutory and obligatory duty. In other words, the provision imposes on the Land Administrator a statutory duty to pay not just the amount awarded, but also S/N 4tvCzsfP0KrYkzsse6b7w Ma18 to pay the late payment charges in the event either one of the two scenarios is applicable. [24] The first scenario is when the Land Administrator fails to pay the compensation award to the entitled person on or before the due date. The second scenario is when the Land Administrator fails to deposit the compensation award with the court on or before the due date. [25] The meaning of 'due date' is explained in s. 32(1C) of the Act which states as follows:

(i) An amendment of a previous order to reflect the original intention of the court which is evident from the previous and original order, or the body of the judgment of the original order;

For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [36] Given the fact that the Defendants had dragged their feet in making payments which the Plaintiffs are entitled to pursuant to the terms of the Consent Order, based on the authorities cited above, it is my considered view that this Court has inherent jurisdiction to make ancillary order as prayed for by the Plaintiffs. S/N 4tvCzsfP0KrYkzsse6b7w Ma26 Date 27th September 2022, ……………………..…………. (MOHD FIRUZ BIN JAFFRIL) JUDGE HIGH COURT OF MALAYA AT SHAH ALAM Solicitors for the Plaintiff: Messrs. Lovelace & Hastings, Unit 5-2, 5th Floor, Wisma Bandar, No 18, Jalan Tunku Abdul Rahman, 50100 Kuala Lumpur. [Ref: SSM/KLG/M/3/2002(A)] Solicitors for Defendant: Kamar Penasihat Undang-Undang, Negeri Selangor Darul Ehsan, Tingkat 4, Podium Utara, Bangunan Sultan Salahuddin Abdul Aziz Shah, 40512 Shah Alam, Selangor. [Ref: PU.SEL.PEL.0159/20 (Rayuan)] S/N 4tvCzsfP0KrYkzsse6b7w Ma27 S/N 4tvCzsfP0KrYkzsse6b7w