Yeoh Eng Kong v 1. ) Bungsar Hill Holdings Sdn Bhd (WA-22NCvC-781-12/2024)

BUNGSAR HILL HOLDINGS SDN BHD

SYARIKAT PERUMAHAN PEGAWAI KERAJAAN SDN BHD

PENDAFTAR HAKMILIK WILAYAH PERSEKUTUAN KUALA

TETUAN TOMMY THOMAS [DISAMAN SEBAGAI SEBUAH FIRMA GUAMAN]

TETUAN THANGARAJ & ASSOCIATES [DISAMAN SEBAGAI SEBUAH FIRMA GUAMAN] …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction 1. The Plaintiff in this case is an advocate and solicitor. He had mounted an earlier civil suit against the 1st and 2nd Defendants on the same subject matter but failed to show merits. On appeal to the Court of Appeal, his appeal was dismissed. Undeterred, he commenced this civil suit naming the Registrar of Land Titles of the 30/10/2025 00:00:24 WA-22NCvC-781-12/2024 Kand. 299 Federal Territory of Kuala Lumpur as the 3rd Defendant and two law firms as the 4th and 5th Defendants respectively.

In his Amended Statement of Claim, the Plaintiff pleaded unsubstantiated allegations as well as repeated allegations which had been rejected by the trial judge in the earlier civil suit. Unsurprisingly, the 1st, 4th and 5th Defendants respectively filed striking-out applications pursuant to Order 18 rule 19 Rules of Court 2012, citing several grounds, inter alia, res judicata and abuse of process.

After reading the pleadings and the affidavits, I formed the view that the Plaintiff’s claims are indeed frivolous and vexatious, and an abuse of process of court, and therefore those striking-out applications ought to be allowed with costs.

4.

The 1st Defendant, Bungsar Hill Holdings Sdn Bhd (“BHSB”) is the registered proprietor of PT1499 and HS (D) 31990, Lot PT 764 (“PT 764”), both located in the Mukim of Kuala Lumpur, Kuala Lumpur.

The 2nd Defendant, Syarikat Perumahan Pegawai Kerajaan Sdn Bhd (“SPPK”), was the developer for houses in the Bukit Damansara area, inter alia, 2 houses known as No.43 and No.45, Jalan Setiabakti, Bukit Damansara, 50490 Kuala Lumpur (“House No. 43 and House No. 45” respectively).

At the material time, the Plaintiff was the registered owner of House No.43 while one Mr. Shantakumar Santhalingam owned House No.45.

House No. 43 and House No. 45 share a common reinforced concrete wall (“the Wall”) which stands at the rear end of the boundary.

The 2nd Defendant SPPK constructed a monsoon drain on PT 1499 sometime in the 1970’s and the vacant strip of the land which forms part of PT 1499 between the Wall and the existing monsoon drain was held by BHSB in trust for SPPK at the material time.

In or around April 2006, part of the Wall suffered damage. This led to Shantakumar (the owner of House No.45) filing a civil suit at the High Court at Kuala Lumpur against, inter alia, the Plaintiff and SPPK, for damage caused to House No. 45 as a result of the Wall collapsing. The said suit was registered as Civil Suit No. S4-22-215- 2007 (“Suit 215”).

In Suit 215, the Plaintiff filed a counterclaim against, inter alia, Shantakumar, SPPK and BHSB, for purported negligence on the part of SPPK and BHSB for failing to maintain the vacant strip of land located between the Wall and the existing monsoon drain constructed on PT 1499.

Suit 215 proceeded to be set down for trial but midway through the trial, the Plaintiff’s counsel proposed to settle the dispute between the Plaintiff, SPPK and BHSB by transferring the vacant strip of land located between the Wall and the existing monsoon drain, to the Plaintiff.

A settlement agreement was then drafted based on the Plaintiff’s aforesaid proposal, and on Boxing Day in 2012 (26th December 2012), the Plaintiff, SPPK and BHSB signed it (“the Settlement Agreement”).

15.

In the Settlement Agreement the Plaintiff Yeoh Eng Kong was referred to by his initials “YEK”. The salient terms of the Settlement Agreement are as follows:- “Clause 1.1: Vacant Land Means the portion of the strip of land west of the monsoon drain which forms part of the piece of land held under HS(D) 31777, Lot PT 1499, Mukim Kuala Lumpur, District of Kuala Lumpur; and has not been subdivided and the exact size and area have not been specifically determined. The location of land is generally identified by the area marked in red in the Detail and Spot Level Survey of Lot PT 1499 prepared by Jurukur Generasi annexed in the 1st Schedule hereto. Clause 1.2.3: The Schedules in this Agreement shall be taken, read or construed as essential parts of this Agreement. Clause 3.1.3: YEK acknowledges that the registered proprietorship of the Vacant Land is to be transferred to him on an “as is where is” basis and that the actual area and size of the Vacant Land has not been determined. Clause 3.1.5: YEK shall submit the Vacant Land for subdivision within six (6) months from the date of this Agreement and YEK acknowledges that neither Bungsar Hill nor SPPK shall be liable if the Vacant Land cannot be subdivided for any reason whatsoever which reason is not attributed to the fault of Bungsar Hill and SPPK. Clause 3.1.7: Either simultaneously or immediately after the Vacant Land has been subdivided YEK shall apply for the registered proprietorship of the Vacant Land to be transferred to him within one (1) year from the date of this Agreement. Clause 6.1 In the event any Party commits a breach of any of the terms of this Agreement (hereinafter referred to as the “Defaulting Party”) the other party (hereinafter referred to as the “Aggrieved Party”) shall give the Defaulting Party a one (1) week written notice remedy the breach and upon failure to remedy the breach the Aggrieved Party shall be entitled to the remedy of specific performance and other reliefs in which event the Defaulting Party shall bear all damages and costs arising from such action. Clause 8.1: Time wherever mentioned shall be of the essence of this Agreement, both as regards to the dates and periods specifically mentioned and as to any dates and periods which may be agreed in writing between the parties be substituted for them. Clause 8.4: No Amendments of, or addition to, the provisions of this Agreement shall be binding or effective unless it is in writing and signed by all Parties thereto.”

The 1st Schedule to the Settlement Agreement is a plan prepared by Jurukur Generasi which shows the Vacant Land marked in red and the existing monsoon drain marked in blue. GUAMAN NO: WA-22NCvC-781-12/2024 18. Based on Rectial C of the Settlement Agreement, SPPK had taken the position that it has no interest either legal or beneficial in the Vacant Land.

Even though the terms of the Settlement Agreement are clear, the Plaintiff’s solicitors, Messrs AJ Ariffin, Yeo & Harpal, had, by way of a letter dated 21st May 2013 written to SPPK and BHSB and contended as follows:

based on the Plaintiff’s surveyor’s preliminary assessment, as shown in the Detail and Spot Level Survey, the monsoon drain was intended to be situated at the outer boundary of PT 1499 and not at its current position, and this was confirmed by the plan annexed to the issue document of Title of PT 1499; and

(ii) the Plaintiff was not able to subdivide PT 1499 unless SPPK and BHSB can show sufficient proof that the location of the monsoon drain on PT 1499 is lawful and if sufficient proof is not shown, to forthwith relocate the monsoon drain to the outer boundary of PT 1499.

On 17th June 2013, 5th Defendant, acting as the solicitors for and on behalf of BHSB, had, by way of a letter of the same date replied to the Plaintiff, as follows:-

the parties are bound by the terms of the Settlement Agreement, and the Plaintiff was fully aware of the monsoon drain’s location at the time of execution of the Settlement Agreement. The “Vacant Land” has been clearly defined in the Settlement Agreement as the strip of land west of the existing monsoon drain, with its location indicated in the survey plan prepared by Jurukur Generasi, annexed to the Settlement Agreement as the 1st Schedule;

(ii) notwithstanding the above, it was the Plaintiff who was desirous to enter into the Settlement Agreement;

(iii)

(iv) BHSB was not agreeable to the Plaintiff’s request and required the Plaintiff to strictly comply with the terms of the Settlement Agreement.

On 9th July 2013, the 5th Defendant, acting as the solicitors for BHSB, wrote and informed the Plaintiff’s solicitors, inter alia, that the Plaintiff had failed to submit the application for subdivision of the Vacant Land in accordance with the terms of the Settlement Agreement, which had lapsed on 25th June 2013, i.e. six months from the date of the Settlement Agreement.

No action was taken by the Plaintiff for approximately six years after the execution of the Settlement Agreement. On Christmas Eve (24th December 2018), the Plaintiff filed a civil suit at the High Court at Kuala Lumpur High Court which was registered as Suit No.: WA- 22NCvC-851-12/2018 (“Suit 851”) against SPPK and BHSB seeking, inter alia, rectification of the Settlement Agreement, purportedly on the ground of mutual mistake.

In Suit 851, the Plaintiff’s Amended Statement of Claim, he prayed then for the following reliefs against SPPK and BHSB:- …“(a) rectification of the definition of the Vacant Land in Clause 1.1 of the Settlement Agreement to read as follows: “Means the portion of the strip of land west of the monsoon drain which is to be constructed at the reserved location for a Monsoon Drain set out in the Title of HS(D) 31777, Lot PT 1499 Mukim Kuala Lumpur. District of Kuala Lumpur (“PT 1499”) and which forms part of the piece of land held under HS(D) 31777, Lot PT 1499, Mukim Kuala Lumpur, District of Kuala Lumpur PT 1499; and has not been subdivided and the exact size and area have not been specifically determined. The location of land is generally identified by the area marked in red in the Detail and Spot Level Survey on Lot 1499 prepared by Jurukur Generasi annexed in the 1st Schedule hereto”.

an Order that the 1st and/or 2nd Defendant do take all necessary steps to construct, at their own cost and expense, a Monsoon Drain at the reserved location identified in the Title of HS(D) 31777, Lot PT 1499, Mukim Kuala Lumpur, District of Kuala Lumpur (“Reserved Location”) within a reasonable time from the date of this

an Order that the 1st and/or 2nd Defendant do take all necessary steps to divert, at their own cost and expense, the Rainwater Channel/Drain to the Monsoon Drain at the Reserved Location within a reasonable time from the date of this

an Order that the Plaintiff be notified periodically by the 1st and/or 2nd Defendant of the progress made by the 1st and/or 2nd Defendant in complying with the Order in paragraphs (b) and (c);…”

The Plaintiff’s prayers in Suit 851 could be summed up as follows:-

to amend the definition of “Vacant Land” in Clause 1.1 of the Settlement Agreement from the strip of land west of the existing monsoon drain, as identified by the area marked in red in the 1st Schedule to the Settlement Agreement to “the portion of the strip of land west of the monsoon drain which is to be constructed at the reserved location for a Monsoon Drain set out in the Title of HS(D) 31777, Lot PT 1499 Mukim Kuala Lumpur. District of Kuala Lumpur (“PT 1499”) and which forms part of the piece of land held under PT1499; and has not been subdivided and the exact size and area have not been specifically determined”; and

(ii) to compel SPPK and/or BHSB to:- take all necessary steps to construct, at their own costs and expenses, a monsoon drain at the reserved location; take all necessary steps to divert, at their own costs and expenses, the existing monsoon drain to the reserved location outside PT 1499; and update the Plaintiff periodically of the progress made by the SPPK and BHSB on the relocation of the monsoon drain.

The full Trial of Suit 851 took 4 days in 2021. On 27th January 2022, the High Court dismissed the Plaintiff’s claims against SPPK and BHSB, and held, inter alia, as follows:-

the facts leading to the execution of the Settlement Agreement clearly demonstrated that all parties recognized and understood the meaning of the Vacant Land and the monsoon drain refers to the existing drain and not the drain reserve;

(ii) there was never any mutual mistake on the part of the parties and to now interpret otherwise would be a drastic departure from the intention of the parties as evidenced from the natural language used, the marking in blue in the 1st Schedule and the factual matrix leading to the execution of the Settlement Agreement;

(iii) the validity of the Settlement Agreement was neither pleaded nor challenged by the Plaintiff in his Statement of Claim. As a result, the Plaintiff was estopped from disputing the validity and enforceability of the Settlement Agreement;

(iv) in light of the “as is where is basis” clause (i.e. Clause 3.1.3 of the Settlement Agreement), the status and condition of PT 1499 with the existing drain was accepted by parties to the Settlement Agreement. Consequently, the Court did not have the authority to add, vary or insert terms not agreed upon by the parties in the first place; and

the Plaintiff had failed to adduce any evidence to prove any element of fraud or undue influence or inducement. Therefore, the allegation of unconscionable conduct on the part of SPPK and BHSB was baseless.

The Plaintiff appealed against the said decision to the Court of Appeal but his appeal was dismissed by the Court of Appeal on 21st June 2024. The Plaintiff’s Claim 27. The Plaintiff has pleaded in his Amended Statement of Claim various allegations against the Defendants.

As against the 1st and 2nd Defendants, the Plaintiff included some pleas that had been rejected by the learned trial judge who heard and dismissed his claim in Suit 851.

As against the 3rd Defendant, the Plaintiff blames the 3rd Defendant for an error in the registration of the title for PT 1499.

As against the 4th Defendant, the Plaintiff alleges that the 4th Defendant acted to his detriment in a civil suit in the High Court at Ipoh – even though the 4th Defendant had no nexus whatsoever with the Plaintiff. It was also alleged that the 4th Defendant had conspired with the other defendants to defraud him.

As against the 5th Defendant, the Plaintiff also alleges that the 5th Defendant had conspired with the other defendants to defraud him.

Learned counsel for the 5th Defendant reiterates that the terms of the Settlement Agreement were proposed by the Plaintiff himself – who is an advocate and solicitor – who should therefore assume the obligation and expressly covenanted, undertook, warranted and represented to SPPK and BHSB that he would submit the application for subdivision within six months and after subdivision to transfer the Vacant Land within one year from the date of the Settlement Agreement. The Plaintiff also acknowledged that neither SPPK nor BHSB would be liable if the Vacant Land could not be subdivided for any reason whatsoever pursuant to Clause 3.1.5 of the Settlement Agreement.

It was further submitted that as the Plaintiff had then taken the position that compliance with the terms of the Settlement Agreement was impossible, the Settlement Agreement had lapsed and is no longer enforceable or binding on the parties.

The 1st Defendant avers that at all material times, the Plaintiff did not have any beneficial interest in PT 1499 as he did not comply with the terms of the Settlement Agreement by applying to subdivide PT 1499 and he had taken the position that he was not able to comply with the terms of the Settlement Agreement. GUAMAN NO: WA-22NCvC-781-12/2024 35. It was also submitted that, in the alternative, the Plaintiff no longer has any beneficial interest in PT 1499 from 25th June 2013, i.e. six months after the date of the Settlement Agreement as the Settlement Agreement had lapsed and is no longer enforceable or binding on the parties. Analysis of the Facts and Law 36. As mentioned at the outset, the subject matter of this civil suit and the earlier civil suits is a stretch of land that is part of a plot of land held under HS(D) 31777 PT 1499 (“PT 1499”) Mukim Kuala Lumpur, District of Kuala Lumpur. I describe it as “a stretch of land” because it is a narrow plot of land located behind the Plaintiff’s house. A monsoon drain runs along the middle part of PT 1499 separating it into 2 parts.

Even though the Plaintiff has pleaded various allegations against the Defendants, his whole case is actually based on the Settlement Agreement which recorded his terms of settlement with the 1st and 2nd Defendants.

38.

Upon subdivision, “Vacant Land”, which would be the subdivided lot located on the west of the monsoon drain behind the Plaintiff’s house, was to be transferred to the Plaintiff. GUAMAN NO: WA-22NCvC-781-12/2024 40. There was no prior transaction involving the Plaintiff which could give him any right to claim beneficial interest in PT 1499. In other words, the Plaintiff is limited to the terms and conditions of the Settlement Agreement in making any claim against the 1st and 2nd Defendants.

The Settlement Agreement did not give the Plaintiff any beneficial interest in PT 1499 or make him a co-proprietor of any part thereof. It is clearly stated in the Settlement Agreement that the Vacant Land is to be transferred to the Plaintiff, and not part of Lot 1499. It was incumbent upon the Plaintiff to perform the Settlement Agreement by engaging a land surveyor to apply for subdivision and to transfer “the Vacant Land” of himself – which would be possible if and only if the subdivision had been done with 2 new titles issued.

This Court finds that the Plaintiff failed to perform his part of the Settlement Agreement to subdivide the Vacant Land.

It is also in evidence that the Plaintiff had taken the stand that it is impossible to subdivide PT 1499 as envisaged by the parties earlier. This triggered the application of S.33 of the Contracts Act 1950 because the Settlement Agreement was contingent upon the subdivision being performed. Pursuant to the Settlement Agreement, the land east of the monsoon drain in PT 1499 is to remain under the name of the 1st Defendant.

The Plaintiff’s claim for the whole of PT 1499 had been dismissed by Justice Johan Lee in Suit 851 on 27th January 2022. There is no doubt that Justice Johan Lee made a ruling that the Plaintiff was not entitled to claim to be the beneficial owner of PT 1499. As mentioned above, the Plaintiff’s appeal was dismissed by the Court of Appeal and therefore the Plaintiff may not re-open that issue in this Court.

Clause 3.1.5 of the SA states that neither the 1st Defendant nor the 2nd Defendant shall be liable if the Vacant Land cannot be subdivided. A screenshot is shown below:

As mentioned above, the Plaintiff’s whole case is based solely on the Settlement Agreement which recorded his terms of settlement with the 1st and 2nd Defendants. It is not a case of the Plaintiff’s forefathers having paid for the Vacant Land and acquiring beneficial interest thereof. Having failed to perform his part of the Settlement Agreement and also having failed in Suit 851, his claim against the 1st and 2nd Defendants are barred by the doctrine of res judicata.

As for his claim agains the 5th Defendant, it is, with respect an abuse of process of court to be suing an opponent’s solicitors. All that the 5th Defendant had done was to do their best in acting for the 1st Defendant – in advising the 1st Defendant and protecting the 1st Defendant’s rights. There is also absolutely no basis to allege any conspiracy in this case when the facts of the case show that it was the Plaintiff who failed to perform his part of the Settlement Agreement. The Plaintiff well knew that he was to receive the transfer of the Vacant Land only and not the whole of PT 1499, provided that he could get PT1499 subdivided into two lots. He failed to do so. Instead of mounting this new civil suit naming his opponent’s solcitors, the Plaintiff should just accept the judgment of Justice Johan Lee in Suit 851 as final – which had been upheld by the Court of Appeal.

Lastly, the Plaintiff has no caveatable or registrable interest in PT1499 because he had exhausted all legal avenues to gain beneficial interest in any part of the said land. It is trite that without caveatable or registrable interest, his caveat must be removed. In making this ruling, I am guided by the judgment of the Federal Court in Score Options Sdn Bhd v Mexaland Development Sdn Bhd [2012] 6 MLJ 475, wherein the Federal Court made it crystal clear that only those who have a claim to a registrable interest in the land title or a claim to any right to such title or registrable interest, may enter a private caveat. The following passages (at page 487) are instructive: “It is our considered view, therefore, that based on the provisions of the NLC and the authorities cited above, the only parties who are authorised to lodge a private caveat are those who may effect dealings in the particular interests in the land. Those parties may either have a claim to the title to the land or a claim to a registrable interest in the land or a claim to any right to such title or registrable interest. Emphasis should be given to the words ‘registrable interest’ in s 323(1)(a) of the NLC. To be caveatable, the interest must be an interest in the land and that interest must be capable of registration. Counsel for the Plaintiff: Sharuni a/p Tarmaraja SOLICITORS FOR THE PLAINTIFF: MESSRS PATRICK YEOH & COMPANY Advocates & Solicitors A2-3-2 Solaris Dutamas, No. 1 Jalan Dutamas 1, 50480 KUALA LUMPUR. Counsel for the 1st Defendant: Thangaraj Balasundram (Nalani A/P Murugiah with him) SOLICITORS FOR THE 1ST DEFENDANT: MESSRS THANGARAJ & ASSOCIATES. Advocates & Solicitors D1-3A-13, Solaris Dutamas, No. 1, Jalan Dutamas 1, 50480 KUALA LUMPUR. Counsel for the 2nd Defendant: Angeline Chin SOLICITORS FOR THE 2ND DEFENDANT: MESSRS AMIN KARLOS Advocates & Solicitors 31-3A, Jalan SS23/15, Taman SEA, 47400 PETALING JAYA, SELANGOR. Counsel for the 3rd Defendant: Puan Nurul Atikah binti Asharaf Ali, FC SOLICITORS FOR THE 3RD DEFENDANT: JABATAN PEGUAM NEGARA Cawangan Wilayah Persekutuan Kuala Lumpur, Tingkat 5, Wisma Chase Perdana, Off Jalan Semantan, Damansara Heights, 50512 KUALA LUMPUR. Counsel for the 4th Defendant: Tommy Thomas (Merryn Lai Wei Shiung & Wong Ying Ying with him) SOLICITORS FOR THE 4TH DEFENDANT: MESSRS TOMMY THOMAS Advocates & Solicitors 101 Chambers, Suite 3.2, Tingkat 3, Block B, The Five @ KPD, Jalan Dungun, Damansara Heights 50490 KUALA LUMPUR. Counsel for the 5th Defendant: Sudharsanan S/O Thillainathan (Lee Jing Long with him) SOLICITORS FOR THE 5TH DEFENDANT: MESSRS ADNAN SUNDRA & LOW Advocates & Solicitors Level 25, Menara Etiqa, No. 3, Jalan Bangsar Utama 1, 59000 KUALA LUMPUR.

Score Options Sdn Bhd v Mexaland Development Sdn Bhd [2012] 6 MLJ 475

S.33 of the Contracts Act 1950