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COURT DECISIONS

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Cases - 2005
 

Tan Chin Swee & Anor V. Seri Ampangan Realty Sdn Bhd
24 JANUARY 2005
 HIGH COURT MALAYA, KUALA LUMPUR
[ORIGINATING SUMMONS NO: S4-24-1986-2003]

CONTRACT: Specific performance - Sale and purchase agreement - Consent of contracting parties not given freely for the same purpose - Plaintiffs agreed to purchase corner unit property while defendant intended to sell end lot unit - Mutual mistake - Whether agreement rendered void - Contracts Act 1950, ss. 10(1), 13, 14, 21 - Corner unit already sold to a bona fide third party purchaser - Whether plaintiffs entitled to specific performance

CONTRACT: Mistake - Mutual mistake - Sale and purchase agreement - Parties at cross purposes as to subject matter of contract - Plaintiffs agreed to purchase corner unit property while defendant intended to sell end lot unit - Whether agreement rendered void - Contracts Act 1950, ss. 10(1), 13, 14, 21 - Order of specific performance

Lim Chong Beng V. Pulau Kembar Sdn Bhd
08 MARCH 2005
HIGH COURT MALAYA, MELAKA
[SUIT NO: 1-22-11-2004]

CIVIL PROCEDURE: Summary judgment - Application for - Matters to be considered - Whether plaintiff's claim plain and obvious - Whether there were triable issues - Rules of the High Court 1980, O. 81
CONTRACT: Breach - Time of the essence - Whether constituted a fundamental breach of Agreement - Whether defendant repudiated Agreement - Whether plaintiff entitled to rescind Agreement - Contracts Act 1950, ss. 40
CIVIL PROCEDURE: Appearance - Unconditional appearance - Effect of - Whether defendant waived any irregularity in proceedings

Thomas Iruthayam & Anor v. LSSC Development Sdn Bhd
10 MARCH 2005
HIGH COURT MALAYA, SHAH ALAM
[ORIGINATING SUMMONS NO: MT(2) 1-24-942-1998]

CONTRACT: Building Contract - Breach - Failure by defendant to deliver vacant possession of Property to purchasers - Whether time of essence of Agreement - Whether plaintiffs had right of rescission - Whether plaintiffs entitled to refund and Damages - Contracts Act 1950, ss. 56 - Specific Relief Act 1950, s. 34
LAND LAW: Housing developers - Sale and purchase Agreement - Non-delivery of vacant possession - Whether time of essence of Agreement - Whether plaintiffs had right of rescission - Whether plaintiffs entitled to refund and Damages - Contracts Act 1950, ss. 56 - Specific Relief Act 1950, s. 34
(See also - LSSC DEVELOPMENT SDN BHD V. THOMAS IRUTHAYAM & ANOR (14 MARCH 2007) COURT OF APPEAL, PUTRAJAYA[CIVIL APPEAL NO: B-02-407-2005] )

HO SIEW CHOONG & ORS V. EVERWORTH SDN BHD
21 MARCH 2005
HIGH COURT MALAYA, KUANTAN
[CIVIL APPEAL NO: 28-3-2003]
Background:
The respondent, Everworth Sdn. Bhd., was incorporated on 18 January 1989 under the Companies Act 1965 ('the Act'), with its registered office at Tenaga Koperat D/A Corporatehouse Ser, S/B Tingkat 4, Bangunan HSBC Bank (HBMB Building), No. 1 Jalan Mahkota, Kuantan, Pahang. The object of the respondent were, inter alia, to develop a recreation resort project known as Desa Riang (Sunny Beach Resort) ('the project'). The petitioners and the respondent has a long and protracted litigation history since 1999. The petitioners and the parties in support of the petition are owners of the Condominium units in the said project undertaken by the respondent. The petitioners petitioned for the winding-up of the company on the ground of the company's failure to pay its debt to them.The company entered into a separate sale and purchase agreements with each of the petitioners for the respective unit apartments. By tenancy agreements with each of the petitioners the company in turn rented those units from the petitioners.

Tang Kam Thai & 133 Ors V. Langkah Cergas Sdn Bhd & 4 Ors
29 APRIL 2005
HIGH COURT [KUALA LUMPUR]
GUAMAN SIVIL NO. S1-22-1351-2002

CIVIL PROCEDURE: Interim payment - Application for - Breach of sale and purchase Agreement - Delay in delivering vacant possession - Whether liquidated Damages to be paid - Rules of the High Court 1980, O. 22A r. 3(1)(a),(e)

RIVIERA BAY RESORT & CONDO MANAGEMENT SDN BHD V. SRI RIMBA MENTARI DEVELOPMENT SDN BHD
17 MAY 2005
HIGH COURT MALAYA, MELAKA
[CIVIL APPEAL NO: 1-12-43-2004]
This is an appeal by the appellant-defendant ("Riviera") against the decision of the learned sessions court judge who had on 6 July 2004 dismissed with costs Riviera's application in encl. (22) to re-amend Riviera's summons and claim ("encl. (22)") against the respondent-plaintiff ("Sri Rimba"). The terms sought in encl. (22) are:. 1. The amount claimed be amended from RM26,624.86 as at 1 August 2001 to RM26,344.86; and.2. Arrears to accrue and continue from 1 August 2001 to be assessed at the trial.Vide an order of this court granted on 10 June 2003 pursuant to originating summons No. 24-416-2002, the respective claims of Sri Rimba against Riviera andvice versa are to be heard together, whereby Riviera is to be designated as the defendant, while Riviera's claim is to be dealt with as a counterclaim.
WEE YEE YING & ANOR V. EMIN SADI
17 JUNE 2005
HIGH COURT SABAH & SARAWAK, KOTA KINABALU
[CIVIL SUIT NO: K22-153-1995]
JUDGMENT
Ian HC Chin J:
Introduction
The plaintiffs, Wee Yee Ying and Wee Yee Liang, were the children of a person known variously as Tan Swee Kim, Chin Swee Kim and Swee Kim Bte Chin Ah See (their mother) and they were by her will, made on 20 December 1986, bequeathed a parcel of land held under Native Title No. 1705 and situated at Kg Mambawang, Inanam ("the property"). The plaintiffs are also the executrix/executor of the estate of their mother. The mother was at all relevant times registered owner of the property. Sometime in December 1991, it was discovered that somehow the 1st defendant had become the registered owner of the property. Hence, this action commenced on 30 December 1995, to have the transfer and its registration expunged on the ground that there was fraud and the instrument resulting in the transfer was a forgery. The 2nd defendant, the Assistant Collector of Land Revenue was also sued but Senior State Counsel, Athmat Hassan, had indicated that the 2nd defendant will take no part in the proceedings but will abide by the decision of the court.

Tan Tien Seng & Ors v. Grobina Resorts Sdn Bhd
14 JULY 2005
HIGH COURT MALAYA, MELAKA
ORIGINATING SUMMONS NO: 24-537-2000

CONTRACT: Breach - Variation of Contract - Failure to build according to original design - Whether changes and deviations made required by 'appropriate authority' - Failure to call witnesses from 'appropriate authority' - Whether s. 114(g) Evidence Act 1950 applicable - Whether there was a breach going to the root of the Contract - Whether constituted a fundamental breach - Contracts Act 1950, s. 40 - Whether applicable
( See also - Tan Tien Seng v. Grobina Resorts Sdn Bhd (23 JUNE 2006 - HIGH COURT MALAYA, MELAKA ) ; Tan Tien Seng & Anor v. Grobina Resorts Sdn Bhd (18 AUGUST 2006 - HIGH COURT MALAYA, MELAKA )

YAP YEW CHEONG & ANOR V. DIRGA NIAGA (SELANGOR) SDN BHD
12 AUGUST 2005
HIGH COURT MALAYA, KUALA LUMPUR
[CIVIL SUIT NO: S6-22-533-2004]
This is an appeal by the defendant in encl. 13 against the learned senior assistant registrar's ("SAR") decision in favour of the plaintiffs' summary application pursuant to O. 14 of the Rules of the High Court 1980 ("RHC"). Factually speaking, the appeal centred on three agreements entered into between the plaintiffs and the defendant. These agreements are not the standard sale and purchase agreements under the Housing Developers (Control and Licensing) Regulations 1989 made under the Housing Developers (Control and Licensing) Act 1966. In fact, these three agreements are "set-off" agreements entered into for purposes of setting-off all the debts due from Europlus Corporation Sdn Bhd to WCT Engineering Bhd. The defendant is an associated or a subsidiary to Europlus Corporation Sdn Bhd while the plaintiffs are the directors of WCT Engineering Bhd. These three agreements are drafted by the plaintiffs' solicitors and they are, incidentally, the solicitors representing the plaintiffs in this action. It was a term in these agreements that the defendant shall within six (6) months from 23 January 1998 (the date of the sale and purchase agreements) redeem the said parcels (which will be referred to shortly) and deliver to the plaintiffs a letter of disclaimer failing which the defendant shall pay to the plaintiffs as purchasers 12% interest on daily rests on the purchase price from the expiry of the six (6) months to the date of actual redemption (hereinafter referred to as the "LAD").

BANK BUMIPUTRA MALAYSIA BHD V. SAL ENTERPRISE SDN BHD & ORS
19 AUGUST 2005 - COURT OF APPEAL, PUTRAJAYA
[CIVIL SUIT NO: W02-324-1999]

Syarikat Kemajuan Perumahan Negara Sdn Bhd V. Lee  Cheng & Anor
08 SEPTEMBER 2005
COURT OF APPEAL, PUTRAJAYA
[CIVIL APPEAL NO: C-04-28-1999]

CONTRACT: Building Contract - Delivery of vacant possession - Whether developer obliged to energize supply of water and electricity into Building before handing over vacant possession of Building - Housing Developers (Control and Licensing) Regulations 1989.

CONTRACT: Housing development - Sale and purchase Agreement - Sale and purchase Agreement subject to the Housing Developers (Control and Licensing) Regulations 1989 - Vacant possession - Whether vacant possession under the Housing Developers (Control and Licensing) Regulations 1989 presupposes the developer's responsibility to energize the supply of water and electricity into the Building.

WALTER PATHROSE GOMEZ & ORS V. SENTUL RAYA SDN BHD
10 SEPTEMBER 2005
HIGH COURT MALAYA, KUALA LUMPUR
[ORIGINATING SUMMONS NO: S6-24-2072-2003]
By way of a summons in chambers in encl. 9, the defendant sought for the following orders: (1) pursuant to s. 73 of the Courts of Judicature Act 1964 and/or the inherent jurisdiction of this Honourable Court that the order of this court dated 4 January 2005 and the execution thereof be stayed:(a) pending the final disposal of the defendant's appeal to the Court of Appeal against the whole of the said order of this court;

*(See also, WALTER PATHROSE GOMEZ & ORS V. SENTUL RAYA SDN BHD
( 26 FEBRUARY 2007 ) HIGH COURT MALAYA, KUALA LUMPUR)

MAWAR AWAL (M) SDN BHD V. KEPONG MANAGEMENT SDN BHD & ANOR
15 SEPTEMBER 2005
HIGH COURT MALAYA, KUALA LUMPUR
[SUIT NO: S6-22-2014-2003]
CONTRACT: Specific performance - Sale and purchase Agreement - Breach of terms of Agreement - Failure to grant power of attorney to plaintiff - Whether a mandatory obligation - Whether sale and purchase Agreement extinguished by Deed of assignment and another Agreement of a later date - Allegation of novation - Whether improbable - Whether just and equitable for court to grant specific performance
CONTRACT: Sale and purchase Agreement - Specific performance, application for - Breach of terms of Agreement - Failure to grant power of attorney - Whether a mandatory obligation - Whether sale and purchase Agreement extinguished by Deed of assignment and another Agreement of a later date - Allegation of novation - Whether improbable - Whether just and equitable for court to grant specific performance
CONTRACT: Remedies - Specific performance, application for - Breach of terms of Agreement - Failure to grant power of attorney to plaintiff - Whether a mandatory obligation - Whether just and equitable for court to grant specific performance
GALLANT HEIGHTS DEVELOPMENT SDN BHD V. ROGER RAZMAN SMITH ABDULLAH & ORS
20 SEPTEMBER 2005
HIGH COURT MALAYA, KUALA LUMPUR
[CIVIL SUIT NO: S3-24-2147-04]
[1] This originating summons is an application by the plaintiff to evict the defendants from the premises of the management office of an apartment known as Sri Bangsar Apartment, pursuant to the summary process as provided for under O. 89 of the Rules of the High Court, 1980.
LIM TECK KONG V. DR ABDUL HAMID ABDUL RASHID & ANOR
28 SEPTEMBER 2005
COURT OF APPEAL, PUTRAJAYA
[CIVIL APPEAL NO: B-02-757-98]
TORT: Negligence - Professional Negligence - Engineers - Failure of engineer to do thorough testing of soil - Whether engineer owes duty to ensure whether safe to build on particular site
TORT: Damages - Negligence - Whether Damages may be awarded for pure economic loss
EVIDENCE: Expert evidence - Court to assess weight of evidence - Whether more weight to be given to based on investigation carried out closer to time of incident taking place
MAXISEGAR SDN BHD & ANOR V. INDERA MANAGEMENT SERVICES SDN BHD
5 OCTOBER 2005
HIGH COURT [KUALA LUMPUR]
CIVIL SUIT NO: D3 - 22 - 2129 - 1998

Beauford Baru Sdn Bhd V. Gopala Krishnan v K Gopalan
12 OCTOBER 2005
 HIGH COURT [MELAKA]
GUAMAN SIBIL NO. 11-19-20O2 & GUAMAN SIBIL NO. 11-6-2002

The defendant is a licensed housing developer for the project known as Taman Pantai Mas. The plaintiff had on 27 March 1990 entered into a sale and purchase agreement ("SPA") for the purchase of a corner lot, Lot 260 in the approved layout plan, for the type of houses known as "Pulau Undan" in the project. For brevity and convenience, a reference hereinafter to a clause and a schedule is a reference to the clause in and the schedule to the SPA. The First Schedule contains the approved layout plan for intermediate lots on which were to be erected houses without any side porch, while the house erected for the corner lot is with a side porch.

PALMERSTON HOLDINGS SDN BHD V. SULASTRI MOHD HOESSEIN ENAS
30 NOVEMBER 2005
HIGH COURT MALAYA, MELAKA
[SUIT NO: 22-168 TAHUN 2002]
CONTRACT: Specific Performance - Sale and purchase agreement - Criteria for specific performance to be granted - Issue of laches as a defence/triable issue - Section 20(1)(a) of the Specific Relief Act 1950 -Relief of specific performance not provided contractually
INTERCARTEL SDN BHD V. LEMBAH BERINGIN SDN BHD
27 DISEMBER 2005
HIGH COURT [KUALA LUMPUR]
SAMAN PEMULA NO: S5-24-2290-2003
Ada jelas Defendan tidak pernah menerima apa-apa rungutan atau pengaduan dari Plaintif mengenai penyerahan milikan kosong yang sepatut dilakukan dalam masa yang ditetapkan.
Plaintif hanya membangkitkan isu penyerahan milikan kosong menerusi surat peguamcaranya yang bertarikh 8.10.2003 (ekshibit "K-3" di Afidavit Pertama Plaintif).
Terdapat kelewatan selama lebih kurang 4 tahun dari tarikh sepatutnya milikan kosong diberikan iaitu pada 21.11.1999 hingga 8.10.2003. Saya berpendapat ianya adalah satu kelewatan yang melampau. Di samping itu Plaintif tidak memberi notis kepada Defendan untuk menetapkan satu tarikh penyerahan milikan kosong yang baru untuk menjadi masa intipati sekali lagi kepada Perjanjian tersebut

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