WA-22NCVC-120-02/2020

The Plaintiff applied for the claim against the Defendant be disposed under Order 14A and/or Order 33 (3) and/or (5) of the Rule of Court 2012 (“the Rules”).

Order14A(1) provides as follows:

Determination of questions of law or construction (O. 14A r. 1)

(a) such question is suitable for determination without the full trial of the action; and

(b) such determination will finally determine the entire cause or matter or any claim or issue therein.

Order 33 (3) and (5) states as follows:

Determining mode of trial (O. 33 r. 3)

Dismissal of action after decision of preliminary issue (O. 33 r. 5) If it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just. The Brief Facts

The Plaintiff and had entered into a sale and purchase agreement dated 30/5/2013 with the Defendant to purchase a unit of apartment in a project developed by the Defendant called the Four Seasons (”the project”).

The Plaintiff contends that under the law the Defendant has to complete the project within a period of 36 months. However the Plaintiff was given vacant possession of the apartment only 30/11/2017 which is a delay of 868 days. The Plaintiff is therefore claiming a penalty as stipulated under the sale and purchase agreement for the late delivery.

The Defendant contends that the period of completion is 54 months as the Defendant had obtained approval from the authorities to extend the period of completion to 54 months. The Issue

The only issue to be determined for an application either under Order 14 A or Order 33 of the Rules is whether the Court can exercise its discretion in resolving the dispute without the necessity for a full trial. 4 The Discretion of Court

It is to be noticed that the Court is moving towards a judicial system emphasising on an expeditious and economical disposal of cases. To this end Order 34 of the Rules was enacted giving the full powers of management of proceedings to the Court. The relevant provision of Order 34 of the Rules is as follows:

Orders and directions for just, expeditious and economical disposal of proceedings (O. 34 r. 1)

(a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and

(b) such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.

This powers under Order 34 of the Rules are given in addition to the prevailing provisions as stated in Order 14A and Order 33 of the Rules.

Applying the above provision to the facts to the present case it can be noted the only issue in dispute is the completion date of the project. The sale and purchase agreement is not in dispute and neither is the date of handing over the vacant possession in dispute. 5

In the face of this undisputed facts the Court can determine the issue at hand based on arguments on the law as there are no disputed facts to be tried. This is therefore a fit case to be disposed based on legal arguments with no necessity to go on with a full trial. Conclusion

In the upshot the Court allowed the Plaintiff’s application with an order of cost in the cause. Dated: 19.8.2022 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Tetuan S F Chan & Co. 4-3A-3A Kompleks Kantonmen Prima 698 Jalan Sultan Azlan Shah 512000 Kuala Lumpur For the Defendant: Tetuan Azman Davidson & Co. Suite 13.03, Tingkat 13 Menara Tan & Tan 207 Jalan Tunb Razak 50400 Kuala Lumpur