Valencia Development Sdn. Bhd. v 1. Goh Ching Chee (BA-24-518-05/2016)

Bandar Sungal Buloh, Daerah Gombak,Negeri Selangor Darul Ehsan. Dan Dalam perkara mengenai Kaveat Persendirian No. Perserahan: 5953/2011, 5954/2011, 5955/2011, dan 5914/2011. 2 Dan Dalam perkara Kaveat Persendirian No.:1466/2016, 1467/2016, 1469/2016 dan 1465/2016 kesemuanya dimasukkan pada 25.2.2016 dan Kaveat Persendirian No. Perserahan: 3626/2016 dimasukkan pada19.4.2016. Dan Dalam perkara mengenai Seksyen-Seksyen 327, 329 dan 417 Kanun Tanah Negara, 1965. Dan Dalam Perkara mengenai Aturan 7 Kaedah-Kaedah Mahkamah, 2012. BETWEEN VALENCIA DEVELOPMENT SDN. BHD. (No. Syarikat: 474040-U) … PLAINTIFF 3

AND GOH CHING CHEE

HO CHAI YOONG

GO LEE BIN

LILY NEO

LEE KONG FOO (NO. K/P: 620216-10-6689) … DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 1) A. BACKGROUND FACTS [1] The present case is a simple Application by the Plaintiff Developer for the removal of caveats which were lodged onto the Plaintiff’s lands by the Defendants. [2] It is pertinent to note at this early juncture that the issue as to whether or not the Defendants have caveatable interest is already moot considering that the Defendants have duly removed their 4 caveats in due course of this Court’s proceedings following the final determination by the Federal Court regarding the Defendants’ appeals against the decisions of this High Court, as well as the Court of Appeal (in affirming this High Court’s earlier decision). The only remainder issue for determination is the appropriate damages to compensate the Plaintiff. [3] Valencia Development Sdn Bhd (“Plaintiff”) is the landowner and developer of lands held under the following titles (“Properties”). i. The parcel held under PN 75480/L5, Bangunan/ Tingkat/ Petak L5, Lot No: 67078, Bandar Sungai Buloh, District of Gombak, State of Selangor Darul Ehsan (“Parcel L5”); ii. the parcel held under PN 75480/L15, Bangunan/ Tingkat/ Petak L15, Lot No: 67078, Bandar Sungai Buloh, District f Gombak, State of Selangor Darul Ehsan (“Parcel L15”); iii. the parcel held under PN 75480/L18, Bangunan/ Tingkat/ Petak L18, Lot No: 67078, Bandar Sungai Buloh, District of Gombak, State of Selangor Darul Ehsan (“Parcel L18”); 5 iv. the parcel held under PN 75480/L7, Bangunan/ Tingkat/ Petak L7, Lot No.: 67078, Bandar Sungai Buloh, District of Gombak, State of Selangor Darul Ehsan (“Parcel L7”); and v. the parcel held under PN 75480/L23, Bangunan/ Tingkat/ Petak L23, Lot No.: 67078, Bandar Sungai Buloh, District of Gombak, State of Selangor Darul Ehsan (“Parcel L23”). [4] Goh Ching Chee and the four other Defendants (“Defendants”) are allegedly purchasers under a Sale and Purchase Agreement in which the Plaintiff allegedly agreed to develop and sell the Properties while the Defendants agreed to purchase the Properties from the Plaintiff. In view of preserving the Defendants’ alleged rights on the Properties, the Defendants have lodged a series of caveats unto the Properties in the year 2011, and another series of caveats in 2016. [5] Prior to the present Application to remove the caveats, the Defendants have initially filed an action in the High Court in 2009 (“2009 suit”) to specifically enforce the alleged sale and purchase agreement. This High Court has earlier decided on 26.5.2015 that there are no binding sale and purchase agreements between the 6 Plaintiff and the Defendants and that the Plaintiff is not compelled to sell the Properties to the Defendant. This decision has later been affirmed by the Court of Appeal in Civil Appeal No: B-02-(W)- 1194-07/2015. Accordingly, the Plaintiff filed the present Application (“Enclosure 1”) to remove all of the caveats lodged by the Defendants unto the Properties. [6] Pending the determination of the 2009 suit, the Defendants have lodged a series of caveats in 2011 (“2011 caveats”). However even after full determination of the 2009 case and the Court of Appeal’s decision affirming the High Court’s decision, the Defendants remained delinquent and instead of removing the caveats, have filed a another series of caveats in 2016 (“2016 caveats”). [7] Together with the lodgement of the 2016 caveats, the Defendants filed for leave to appeal against the Court of Appeal’s decision at the Federal Court, which the Federal Court, rightfully so, has also dismissed. Following the Federal Court’s decision, in the midst of the proceedings of the present Enclosure 1, the Defendants have effectively removed all caveats, both 2011 and 2016 caveats. 7 Thus, the only issue left for this Court’s determination is the assessment of damages. B. WHETHER THE DEFENDANTS ARE LIABLE TO PAY COMPENSATION TO THE PLAINTIFF [8] There is no reason for this Court to go at extreme lengths to determine this issue. It is clear from the proceedings as well as submissions filed that the issue to be determined is to what extent was the Defendants liable under Section 329 of the National Land Code 1965 (“NLC”) for wrongful entry or failure to withdraw the caveats. [9] It must be minded that there are two series of caveats lodged, at two different periods of time. The 2011 caveats (“the first series”) were lodged before the determination of the 2009 suit which had found that the Defendants have no interests over the Properties. [10] Meanwhile, the 2016 caveats (“the second series”) were lodged after the determination of the 2009 suit and also after the Court of Appeal had affirmed the decision of this High Court in the 2009 suit. 8 [11] The Plaintiff contends that the liability to pay under Section 329 of the NLC should run from the date of the High Court’s decision of the 2009 suit in the year 2015 until the date that all of the caveats are removed. [12] It must be noted that an entire year has already passed after the High Court’s decision before the present Application is filed (“Silent Period”). In fact the present Application was only filed after the Defendants have lodged the 2016 caveats. [13] The Plaintiff claims that this Court should account for the Defendant’s failure to remove both the 2011 and 2016 caveats in assessing the damages payable to compensate the Plaintiff. The Plaintiff essentially refers to numerous precedents that had held that the liability to compensate is automatic upon proving wrongful entry or failure to remove caveat. The Plaintiff mainly refers to the decision in the case of Sayang Plantation Bhd v Koh Siak Poo [2006] 1 MLJ 230: “I would agree with the learned counsel for the appellant that ss 329(1) and ss 331(4) are significantly different in that the liability in the former is automatic whereas the latter is 9 subject to preconditions being met. The words ‘shall be liable to pay compensation’ in s. 329(1) are self-explanatory in that liability attaches at the moment the wrongful entry or failure to withdraw a private caveat is proven.” [14] There is no flaw in this principle and this Court does not intend to contra the same. However, as much as it is this Court’s duty to uphold the same principle, it is equally as much as this Court’s duty to not allow a litigant to profit from his delays to act on his rights. Proving liability is one matter, and sitting on that proven liability to garner profits is altogether an entirely different matter. [15] The Plaintiff claims damages on the basis that it was unable to deal with the land for the entire duration of time the caveat is lodged onto the Properties (inclusive of the Silent Period). However, it is far too convenient for the Plaintiff to keep silent and sleep on its rights to apply the present Application for the entirety of the Silent Period and simply claim for damages under Section 329 of the NLC without any real effort to pursue such claims. 10 [16] As much as it is wrong for the Defendant to not withdraw the 2011 caveats during the Silent Period, it is equally wrong for the Plaintiff to sit idly by and hope that this Court would grant damages the Plaintiff otherwise has to put in effort to gain. [17] It was well within the Plaintiff’s option to pursue the enforcement of the High Court’s judgment of the 2009 suit soon after the judgment was issued but the Plaintiff instead chose to sit on the same right to enforcement. This Court is not excusing the Defendant’s failure to withdraw the 2011 caveats, but rather disallowing the Plaintiff from manipulating the judicial process to rake in profits which the Plaintiff could all too conveniently gain from merely sitting idle. [18] If indeed the sale or the dealing of the Properties is utterly urgent and that the Plaintiff indeed stands to lose profits during the Silent Period, then the Plaintiff should have immediately spring into action to enforce the judgment and have the 2011 caveats removed. Instead, further highlighting the non-urgency of the matter, the Plaintiff waited for an entire year before filing the present Application to have the caveats removed. 11 [19] Clearly here that it is more probable than not that the Plaintiff did not stand to lose any profits or suffer any damages during the Silent Period. Therefore, any damages granted for the failure to remove the 2011 caveats during the 1 year Silent Period, would be easy profits for the Plaintiff, which this Court shall not allow. Simply put, although the liability to compensate is automatic under Section 329 of the NLC, the same provision is not exempted from other trite principle of law. Particularly so, the Plaintiff is not exempt from the rule that no litigant shall be allowed to unduly profit from its litigation, more so from a litigant’s delay in its litigation. [20] This Court’s finding is not without basis or precedent. This Court draws valuable guidance from the Court of Appeal’s decision in the case of Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396 at p. 401 where the Court of Appeal had stated the following: “It is a cardinal principle of law, that when a litigant seeks the intervention of the Court in a matter that affects his rights, he must do so timeously. The maxim vigilantibus non dormientibusjurasubveniunt, though having its origins in the Court of Chancery, is of universal application. Even in cases 12 where a right is exercisable ex debitiojustitiae, a Court may refuse relief to an indolent litigant…” [21] The Plaintiff’s delay in applying for the removal of the 2011 caveats sits right on the nose of the same trite principle above. Although the Plaintiff’s right for compensation is automatic upon proving the failure to withdraw under Section 329 of the NLC, it remains this Court’s discretion to refuse damages owing to the Plaintiff’s delays.

[22] Thereto, it is this Court’s decision that the assessment of damages owing to the failure to remove the caveats shall not take into account the Defendant’s failure to withdraw the 2011 caveats as the Plaintiff has slept on its rights to enforce the judgment to have the same caveats removed in the Plaintiff’s own indolence during the Silent Period. [23] Nonetheless, it is this Court’s decision that the assessment of damages shall take into account of the Defendant’s wrongful entry of the 2016 caveats as well as the Defendant’s failure to withdraw 13 the 2016 caveats from the date that the 2016 caveats were lodged until the 2016 caveats were effectively withdrawn. [24] This Court takes a retrospective approach to the Defendants’ liability to the wrongful 2016 caveats simply because it was already proven since the High Court Judgment of the 2009 suit in the year 2015 that the Defendants have no interest at all in the Properties. [25] Furthermore, it was also decided in a separate Application by the Plaintiff to remove caveats lodged by the Defendants in 2014 (vide Shah Alam High Court Originating Summons No: 24-1383- 11/2015) that the Defendants have no caveatable interest over the Properties. In the Plaintiff’s Originating Summons No: 24-1383- 11/2015 (filed on 20.11.2015), Akhtar Tahir J had on 22.2.2016 allowed the Plaintiff’s application to remove all the caveats lodged by the Defendants in 2014 unto the properties on 12.12.2014 (Private caveats Presentation nos. 13020/2014, 13019/2014, 13022/2014, 13021/2014 dan 13016/2014). [26] Thus, the Defendants have lodged the 2016 caveats notwithstanding having full knowledge that the Court has decided 14 that the Defendants have no caveatable interest. The Defendants’ blatant disregard to these decisions is thoroughly inexcusable. [27] The amount of damages above shall be assessed before the Senior Assistant Registrar. On the issue of costs [28] This Court finally orders that the Defendants do pay the Plaintiff the sum of RM5000.00 as costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) High Court Judge High Court Shah Alam Selangor Darul Ehsan Dated the 9th December 2016 For the Plaintiff - Messrs Khaw & Partners Ms JC Yong For the Defendants - Messrs William Leong & Co Mr Abd Halim Bin Abdul Karim