Tan Tuan Sing v 1. ) Syarikat Perumahan Negara Berhad (JA-22NCvC-150-10/2024)

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1 IN THE HIGH COURT OF MALAYA IN JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM, MALAYSIA CIVIL SUIT NO. JA-22NCVC-150-10/2024 SYARIKAT PERUMAHAN NEGARA BERHAD (Company No:199701028706 / 444205-M) …APPELLANT TAN TUAN SING (No. K/P: 470413-10-5385) …RESPONDENT IN THE HIGH COURT OF MALAYA IN JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM, MALAYSIA CIVIL SUIT NO. JA-22NCVC-150-10/2024 (ORIGINAL CLAIM) TAN TUAN SING (No. K/P: 470413-10-5385) …PLAINTIFF

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Schedule B or alternatively, the Appellant and the D2 to jointly and severally pay the Respondent damages of RM560,000.00 and/or general damages to be assessed by this Court. 2. The Appellant has filed a counterclaim against the Respondent and D2, inter alia, seeking the following: (a) a declaration that the agreement entered between the Respondent and the Appellant for unit A-07-14 and/or unit A- 07-16 is invalid and void; and (b) a declaration that the Respondent has defaulted and/or failed to fulfill the obligations under the Sale and Purchase Agreement between the Respondent and the Appellant (“SPA”) and the Appellant is entitled to terminate the said agreement for unit A-07-14 and/or unit A-07-16; and (c) alternatively, in the event the Court finds that the SPA is valid, to order D2 to pay the damages of RM560,000.00 and/or other damages to the Appellant or the Respondent. 3. On 16.07.2025 during the case management, I allowed the Respondent’s claim as follows due to failure of the Appellant to comply with the Pre-Trial directions given by the Deputy Registrar: (a) the Appellant pay the damages of RM560,000.00; (b) the Appellant pay the general damages to be assessed by this Court; (c) the Appellant pay the exemplary and additional damages to be assessed by this Court; (d) costs of RM10,000.00 to be paid to the Respondent by the Appellant within fourteen (14) days; and (e) interest of 8% per annum on the sum of RM560,000.00 calculated from 16.03.2018. 4. Below are the grounds of my decision. BACKGROUND 5. The background facts in this application are gathered from the cause papers filed by the parties in chronological order. 6. The Respondent has purchased two (2) parcels, A-07-14 and A-07- 16 with vacant possession under the Project Taman Seri Molek Perdana (the “said Project”) via two (2) SPA for the sum of RM280,000.00 for each parcel. The said parcels are held under the Master Title GM 3779 Lot 189189, GM 3780 Lot 189190 dan GM 3781 Lot 189191 di Mukim Plentong, Johor Bahru, Johor. 7. The Appellant has via Power of Attorney dated 02.10.2011 appointed D2 as an agent and / or representative to take necessary action for the purpose of implementing and completing the said Project, including but not limited to— (a) sell, execute the sale and purchase agreements, transfers or any such instrument giving effect to the same relating to the transfer of a separate document of tittle deed in respect of properties; (b) decide the rental and sale price of the properties of the unit apartment or shoplot; (c) manage the proceed of sale arising from the sale of the said properties; and (d) recover and receive from all any every person, body corporate, company or firm and to give good receipts and discharges for all sums of money. 8. Based on the representation made by D2 via the said Power of Attorney that D2 is an agent or representative of the Appellant and also the agent or representative of owner of the land, Haluan Menang Sdn. Bhd. via the Power of Attorney dated 25.07.2011, the Respondent has executed SPA with D2 and paid the sale price of RM280,000.00 for A-07-14 and A-07-16 respectively. 9. The Respondent pleaded that he is the Beneficiary of the said two (2) units and the Appellant and D2 are holding the said units on trust for the Respondent prior to transfer the said units to the Respondent. 10. Based on clause 25(1) of SPA, the Appellant has to deliver vacant possession within thirty six (36) months from the date of SPA, namely on 15.03.2018. However, the Appellant and D2 have failed to deliver vacant possession of the said two (2) units within thirty six (36) months from the date of SPA. Hence, the Respondent is entitled to claim liquidated damages of 10% of the purchase price from the Appellant. 11. The Appellant via its defence denied that they have knowledge on the payment made by the Respondent as there was no record to prove that and in the event the payment is made, it contravened

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Schedule H of the Housing Development (Control and Licensing) Regulations 1989 and section 4 of the SPA as the payment should be paid by way of installment in accordance to the time and manner as provided in Schedule 3 of the SPA. The full payment is supposed to be made upon the vacant possession given to the Respondent. 12. The Appellant further pleaded D2 has violated the said Power of Attorney and the Respondent cannot rely on the same to claim damages against the Appellant. The Appellant also pleaded the action of the Respondent is time barred based on the Limitation Act 1953 [Act 254]. 13. ISSUE TO BE DETERMINED The only issue to be determined by the Court is whether the Court can allow the Respondent’s claim due to the failure of the Appellant to comply with directives including filing pre-trial documents by deadline. COURT ANALYSIS AND FINDINGS Whether the Court can allow the Respondent’s claim due to the failure of the Appellant to comply with directives including filing pre-trial documents by deadline 14. Order 34 of the Rule of Court (“ROC”) 2012 provides as follows: “(3) The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit. (4) Any judgment or order made under rule 2(3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just.”. [Emphasis added] 15. In this regard, I refer to the Court of Appeal decision in Faisal @ Ibrahim Siraj & Anor v. Pentadbiran Tanah Daerah Hulu Langat & Ors [2024] 2 MLRA 146 which has ruled that Order 34 Rule 2(4) is applicable by way of a setting aside application and not appeal and held that— “[16] On 17 December 2019, the High Court had struck out the Plaintiffs’ claims on the reason that the Plaintiffs had failed to comply with the Court’s instructions to file the cause papers required for trial, i.e. the Bundle of Agreed Documents, the Agreed Facts and Issues to be tried. Dissatisfied, the Plaintiffs moved an appeal to the Court of Appeal in Civil Appeal No: B- 01(IM)(NCvC)- 35-01/2020. The appeal was struck out on 6 July 2020 with an award for cost of RM3,000.00 in favour of D7 in which the Court of Appeal had allowed the Respondents to strike out the appeal based on the reason that the Plaintiffs had wrongfully appealed against such order. The Plaintiffs should first apply to the High Court in accordance to O 34 r 2(4) of the Rules of Court 2012.” [Emphasis added] 16. Applying the principles of the case above, the Appellant should have apply to the Court to set aside the Order made on 16.07.2025 under Order 34 rule 2(4) ROC 2012 instead of filing an appeal to the Court of Appeal. 17. In the present case, The Deputy Registrar has during the case management via e-Review on 03.02.2025, instructed the parties to file the following PTCM documents: (a) Bundle of Pleadings; (b) Bundle of Documents in Part A, B and C; (c) Brief Facts of the Plaintiff; (d) Brief Facts of the Defendants; (e) Agreed Facts; (f) Issues To Be Tried; and (g) Witness Statement, on or before 14.05.2025 (the “PTCM Direction”). The case is fixed for case management on 14.05.2025 and later adjourned to 15.07.2025. 18. On 15.07.2025 during the case management, the Appellant’s solicitor failed to attend the Court on 15.07.2025 with the excuse that they have overlooked the date and they could not attend the Court today as they are from Kuala Lumpur. The Respondent’s solicitor informed that they have sent the draft PTCM documents to the Appellant’s solicitor on 21.04.2025 and received no response from the Appellant’s solicitor despite reminder has been sent. The Appellant’s solicitor did not file any PTCM documents for their counter-claims as well. The Respondent’s solicitor informed that D2 has been adjudged bankrupt sometime in April 2025 and they are seeking leave from the Director General of Insolvency to proceed the case against D2. 19. I have then ordered the Appellant’s solicitor to attend the Court on 16.07.2025 to explain the failure to respond to the draft PTCM documents sent by the Respondent’s solicitor and failure to file the PTCM documents for their counterclaims by 16.07.2025. I have also made an unless order that if the Appellant’s solicitor fail to attend the Court on 16.07.2025 to explain the non-compliance of the PTCM Direction, I will allow the Respondent to enter judgment against the Appellant. I have instructed the Respondent’s solicitor to inform the Appellant’s solicitor the Court’s direction. 20. Despite being ordered, the Appellant’s solicitor did not turn up on 16.07.2025, instead they have requested a solicitor to mention on their behalf. The said solicitor was not able to explain the Appellant’s failure to comply with the PTCM directions given. The said solicitor informed that he was instructed to take another date since D2 has been adjudged bankrupt. 21. Notwithstanding the unless order made by the Court pursuant to Order 34 rule 2(3) of ROC 2012, the Appellant’s solicitor has blatantly disregarded the Court’s direction to attend Court on 16.07.2025 and did not take any action to comply with the PTCM Directions. Hence, I allowed the Respondent to enter the judgment against the Appellant pursuant to Order 34 rule 2(4) ROC 2012. 22. In this regard, I refer to the case of Lim Goh Eng Holdings Sdn Bhd v Off-Shore-CPI Supply Sdn Bhd [2020] MLJU 275, where the High Court held that— “[8] An unless order is an order of the Court which requires a person to do something within a fixed time and states the consequences of transgression. There is abundant authority to the effect that an unless order being a pre-emptory order of the Court, must be adhered to and its non compliance would automatically attract the penalty prescribed in the order. Failure to comply may therefore result in the dismissal of an action or the striking out of the defence. See How Hock Sing @ Low Kim Peng [2015] MLJU 712 and Reiss v Woolf [1952] 2 All ER 112. … [16] It bears mention that unless there are good reasons for non-compliance, disobedience of a peremptory order will be considered contumelious conduct justifying a striking out….”. [Emphasis added] 23. Further, in the case of Koh Heng Jin v. Gan Kooi Ann [2015] CLJU 1244, where the Court of Appeal held that – “[40] In our view even though the learned judge did not issue an “unless order”, O. 34 r. 2(2) of the ROC (not O. 34 r. 1 as cited by counsel) clearly contemplates that orders and directions issued by the court during pre-trial case management are peremptory in nature as O. 34 r. (3) of the ROC confers on the court the power to, inter alia, strike out a party’s claim either on its own motion or upon the application of any party, in the event that such party defaults in complying with any order and/or directive issued by the court under the said O. 34 r. 2(2).”. [Emphasis added] 24. Obviously, the Appellant has not provide any cogent explanation as to why they failed to respond to the draft PTCM documents sent by the Respondent’s solicitor on 21.04.2025 and failure to comply with the PTCM Directions till 16.07.2025. The reason that D2 has been adjudged bankrupt is not an excuse for the Appellant not to comply with the PTCM Directions as the Respondent can proceed the case against the Appellant and likewise, the Appellant can still pursue their counterclaims against the Respondent. 25. The arrogant attitude of the Appellant’s solicitor for not appearing in Court on 15.07.2025 despite being ordered to do so has behaved disgracefully toward the Court for not appearing on 16.07.2025. The conduct of the Appellant’s solicitor is unprofessional and has no respect to this Court. The Appellant’s solicitor has clearly violated Rule 15 Legal Profession (Etiquette and Conduct) Rules 1978 which provides that— “Respect to court. An advocate and solicitor shall maintain a respectful attitude towards the Court.”. [Emphasis added] 26. Further, the Appellant’s solicitor should not have accept this case if they are not able to appear in Johor Bahru High Court when they gave excuses that they are from Kuala Lumpur. They knew that the suit is filed in Johor Bahru High Court when they accepted the brief. The conduct of the Appellant’s solicitor has contravened Rule 6 and Rule 24 of the Legal Profession (Etiquette and Conduct) Rules 1978 which provides that— “Rule 6. An advocate and solicitor not to accept brief if unable to appear (a) An advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day. (b) An advocate and solicitor shall not ordinarily withdraw from an engagement once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Rule 24. Advocate and solicitor to be ready for the day fixed for trial (a) An advocate and solicitor shall make every effort to be ready for trial on the day fixed. (b) An advocate and solicitor may apply for postponement of a case fixed for hearing for good and cogent reasons only. (c) Except in an emergency, it is improper for an advocate and solicitor to apply for a postponement in the absence of counsel or the other side unless he has given the counsel concerned at least forty eight hours notice of his intention to make the application.”. [Emphasis added] 27. CONCLUSION Based on the reasons above, I allowed the Respondent’s claim as follows: (a) the Appellant pay the damages of RM560,000.00; (b) the Appellant pay the general damages to be assessed by this Court; (c) the Appellant pay the exemplary and additional damages to be assessed by this Court; (d) costs of RM10,000.00 to be paid to the Respondent by the Appellant within fourteen (14) days; and (e) interest of 8% per annum on the sum of RM560,000.00 calculated from 16.03.2018. Dated 7 October 2025. Signed by: ……………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the Appellant: Ms. Marina Tiwol Messrs. Azmi & Associates Counsel/Solicitor For the First Respondent: Mr. K.S. Lim Messrs S.K. Song