Star Effort Sdn. Bhd. v Thong Meng Yoong (WA-12ANCvC-141-11/2025)

TEO LI LI

TEO CHUN CHEN

TEO LI LIAN (NO. K/P: 791021-04-5384) …RESPONDEN-RESPONDEN S/N 7m7tkUFp40aDtuGza1XYw GROUNDS OF JUDGMENT

These are three separate appeals filed by the Defendant in the Sessions Court (now the Appellant before this Court), arising from three separate suits commenced by the respective Plaintiffs (now the Respondents).

Notwithstanding that the appeals arise from three different suits, they were heard together both at the Sessions Court and before this Court, as they concern the same development project, involve substantially similar facts, and raise identical legal issues.

The Appellant, appeals against the decision of the learned Sessions Court Judge dated 28.10.2025 allowing the Respondents’ applications for summary judgment under Order 14 of the Rules of Court 2012 (“ROC 2012”).

The learned Sessions Court Judge entered judgment in favour of the Respondents for liquidated ascertained damages (“LAD”), interest and costs, albeit in different sums for each respective Respondent. S/N 7m7tkUFp40aDtuGza1XYw

The Respondents are purchasers of residential units in a development known as Residensi Opus, Kuala Lumpur, developed by the Appellant.

Prior to the execution of the Sale and Purchase Agreements (“SPAs”), each Respondent had executed documents described as “Application Forms to Purchase” or “Offer to Purchase” and paid a sum of RM15,000.00 to the Appellant.

The SPAs were subsequently executed in 2015. Under the terms of the SPAs, the Appellant was required to deliver vacant possession within 48 months from the date of the respective SPAs.

The Certificate of Completion and Compliance (“CCC”) was issued on 13.06.2019. Notices of vacant possession were issued on 28.06.2019, and vacant possession was deemed taken 14 days thereafter.

The Respondents contended that there was delay in delivery and claimed LAD. The Respondents thereafter applied for summary judgment under Order 14 ROC 2012.

The learned Sessions Court Judge, having considered the affidavits and submissions, allowed the applications and entered judgment accordingly. S/N 7m7tkUFp40aDtuGza1XYw

The central issue before this Court is whether the learned Sessions Court Judge erred in allowing summary judgment under Order 14 ROC 2012.

In that context, the determinative question is whether the Appellant had raised any bona fide triable issue sufficient to warrant a full trial.

The issue in turn hinges on the following sub-issues, as follows:

The true nature of the RM15,000.00 paid by the

The applicable commencement date for the computation of LAD; and

Whether the Appellant’s defence is merely a bare denial or a genuine dispute requiring trial. D. APPLICABLE LEGAL PRINCIPLES

Principles governing Order 14 ROC 2012

The law on summary judgment is well established. The burden lies on the defendant to demonstrate that there exists a bona fide triable issue.

It is insufficient for a defendant to merely deny liability. The defence must be real, not illusory, and must disclose a genuine dispute of fact or law requiring investigation at trial. S/N 7m7tkUFp40aDtuGza1XYw

Where the purported defence is plainly unsustainable, shadowy or contrived, summary judgment ought to be entered.

Principles governing LAD in housing development cases

The Respondents’ claims arise within the statutory framework governing housing development.

The Federal Court in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2021] 1 MLRA 506 has authoritatively held that the calculation of LAD is to be determined in accordance with the statutory scheme, and that payments collected prior to the SPA in contravention of the Regulations cannot be used to defeat purchasers’ rights.

The principle emerging from the Federal Court is that the Court must look at the substance of the transaction, and not merely the label attached to the payment.

Statutory framework under the Housing Development Regulations

The statutory regime governing housing development must also be considered. The Housing Development (Control and Licensing) Regulations 1989 (“HDR 1989”) prescribes the permissible payments that may be collected by a developer. S/N 7m7tkUFp40aDtuGza1XYw

Subregulation 11(2) of the HDR 1989 provides as follows: “No person including parties acting as stakeholders shall collect any payment by whatever name called except as prescribed by the contract of sale.”

Further, subregulation 13(1) of the HDR 1989 provides that: “Any person who contravenes any of the provisions of these Regulations shall be guilty of an offence…”

The effect of these provisions is clear. Any payment collected prior to the execution of the prescribed contract of sale, regardless of how it is described, is not only impermissible but constitutes a contravention of the statutory scheme.

In this regard, the Federal Court in PJD Regency has expressly recognised that the collection of booking fees by developers runs afoul of subregulation 11(2) of the HDR 1989, and that the Court must not permit such conduct to undermine the statutory protections afforded to purchasers.

The statutory framework under the Housing Development regime is not merely regulatory in nature, but is enacted with a clear consumer protection objective. Purchasers of residential properties are regarded as a class requiring statutory protection, and the Regulations are designed to prevent developers from S/N 7m7tkUFp40aDtuGza1XYw imposing financial obligations outside the prescribed contractual framework.

In particular, subregulation 11(2) of the HDR 1989 reflects a deliberate legislative intent to prohibit the collection of any form of pre-contract payment, “by whatever name called”, so as to ensure that the rights and liabilities of parties are governed strictly by the prescribed SPA.

To permit developers to characterise such payments as “refundable deposits” or otherwise would defeat the very purpose of the Regulations and render the statutory safeguards illusory.

The Court must therefore adopt a strict and purposive approach in enforcing compliance with the statutory scheme. The Court must be astute not to allow what is expressly prohibited by statute to be achieved indirectly through semantic re-labelling.

In that regard, the Court cannot lend its imprimatur to arrangements which, in substance, circumvent the Housing Development Regulations. Any such attempt must be firmly rejected to preserve the integrity of the statutory protection afforded to purchasers. S/N 7m7tkUFp40aDtuGza1XYw

Whether there is any dispute of material fact

Upon examining the affidavits filed, this Court finds that the material facts are largely undisputed. There is no dispute as to:

The execution of the SPAs;

The contractual completion period;

The date of issuance of the CCC; and

The date vacant possession was deemed delivered.

The dispute between the parties is therefore not one of primary fact, but rather one of characterisation and legal consequence.

Nature of the RM15,000.00 payment

The Appellant contends that the RM15,000.00 paid by the Respondents was merely a refundable sum, contingent upon the approval of bank financing, and should not be treated as a booking fee.

This Court is unable to accept that contention.

The contemporaneous documents show that the payment was made in connection with, and as part of, the process of securing the purchase of the units, and pursuant to documents executed for that purpose. S/N 7m7tkUFp40aDtuGza1XYw

The fact that the sum may be described as “refundable” or conditional does not alter its true character. The Appellant’s reliance on the label “refundable” does not cure the statutory prohibition. To hold otherwise would permit a clear circumvention of the Regulations.

In substance, the payment was made to secure the units pending execution of the SPAs. Such payment bears all the hallmarks of a booking fee.

In light of subregulation 11(2) of the HDRR 1989, the Court is unable to accept any attempt to re-characterise the RM15,000.00 payment as a permissible or neutral sum. The Regulation expressly prohibits the collection of any payment “by whatever name called” unless prescribed by the contract of sale.

The Appellant’s contention that the sum was merely “refundable” or conditional does not cure the statutory prohibition. To hold otherwise would allow developers to circumvent the Regulations through mere labelling, which subregulation 11(2) of the HDR 1989 is precisely designed to prevent.

Such a contravention, as contemplated under subregulation 13(1) of the HDR 1989, further underscores the need for the Court to adopt a substance-over-form approach in assessing the nature of the payment. S/N 7m7tkUFp40aDtuGza1XYw

The Court must look at the reality of the transaction. To accept the Appellant’s argument would be to elevate form over substance.

Attempt to distinguish PJD Regency’s case

The Appellant seeks to distinguish the Federal Court decision in PJD Regency by relying on the High Court decision in Toh Ai Shi v Talent Team Sdn Bhd. [2022] 8 CLJ 508

However, Toh Ai Shi is clearly distinguishable on its facts. That reliance is misplaced. Toh Ai Shi turned on its own facts, in particular the absence of a booking fee paid to the developer.

In that case, there was no evidence of a booking form or payment made directly to the developer as a booking fee.

The present appeals are factually distinguishable. Here, the payments were made pursuant to documents executed in connection with the purchase and cannot be regarded as neutral stakeholder sums. The present appeals involve clear documentary evidence of payments made pursuant to forms executed in connection with the purchase.

More importantly, this Court is bound by the Federal Court in PJD Regency, and any attempt to circumvent its effect by re-labelling the payment cannot be sustained. S/N 7m7tkUFp40aDtuGza1XYw

In any event, even if the characterisation of the RM15,000.00 payment is to be viewed as involving a question of mixed fact and law, this Court finds that the documentary evidence before the Court is sufficiently clear to permit a determination without the need for oral evidence.

The relevant documents are contemporaneous and undisputed, and no issue of credibility arises. In those circumstances, this is not a case where the Court is required to resolve conflicting factual narratives, but rather to draw the proper legal conclusion from established facts.

Whether the defence raises a triable issue

The Appellant’s defence ultimately rests on the contention that the RM15,000.00 payment should not trigger the commencement of LAD.

This is not a dispute of fact, but a legal argument already settled by the apex court. The Appellant has not identified any factual dispute requiring oral evidence or cross-examination.

The defence advanced is, in essence, an attempt to avoid the legal consequences of a payment which is prohibited by statute. The defence, in substance, a bare denial dressed as a legal argument. S/N 7m7tkUFp40aDtuGza1XYw

It is therefore not a genuine triable issue but a legal argument already settled by binding authority. Such a defence does not meet the threshold required to resist summary judgment under Order 14 of the ROC 2012. F.

This being an appeal from the Sessions Court, this Court is mindful that it should not lightly interfere with the decision of the learned Sessions Court Judge unless there is a clear error in law or principle.

Having carefully reviewed the grounds and the materials before the Court, I find no such error. The learned Sessions Court Judge correctly appreciated the law and properly applied the principles governing summary judgment.

The decision to allow summary judgment was, in my view, entirely justified on the facts and the law.

In the premises, this Court finds that the Appellant has failed to raise any bona fide triable issue.

The appeals are therefore devoid of merit. S/N 7m7tkUFp40aDtuGza1XYw

Accordingly:

All three appeals are dismissed;

The orders of the Sessions Court dated 28.10.2025 are affirmed; and

Costs of RM3,000 are awarded to each of the Respondents, subject to allocatur. H. CONCLUSION

For completeness, it must be emphasised that nothing in this judgment turns on any contested factual determination. The decision rests on the proper application of settled legal principles to largely undisputed facts.

In such circumstances, summary judgment was not only appropriate but necessary to prevent a plainly unmeritorious defence from proceeding to trial. Dated: 15th July 2026 …………………………………………….. (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR S/N 7m7tkUFp40aDtuGza1XYw Counsel for The Appellant : Julian Lee Chun Hon Messrs. Ramesh K. Supramaniam (Klang) Advocates & Solicitors Counsel for The Respondent : Siau Suen Miin Messrs. Siau Suen Miin & Tan (Kulim) Advocates & Solicitors S/N 7m7tkUFp40aDtuGza1XYw