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LIM HUI KOK & ORS. V. ANTARA REALTY SDN.
BHD. & ANOR.
HIGH COURT MALAYA, ALOR SETAR
TUAN MOHD HISHAMUDIN BIN MOHD YUNUS JC
[CIVIL SUIT NO. 25-38-1986]
3 JULY 1994
PRACTICE & PROCEDURE:
Order 15 r. 12 RHC - Application for proceedings to be continued by
representative action - Whether prerequisites satisfied.
[Application granted].
JUDGMENT
Mohd Hishamudin bin Mohd Yunus JC:
This is an application by the plaintiffs for an order that this
proceeding be continued by way of representative action pursuant to O. 15 r.
12 of the Rules of the High Court. Originally, the 86 plaintiffs filed the
writ on 30 January 1986 and the statement of claim was filed on 2 December
1986. The plaintiffs, in their statement of claim, claimed that they are the
purchasers of houses in a housing scheme; that the defendants were
housing developers licensed under the
Housing Developers (Control and Licensing) Act
1966, and were the developers of the housing scheme in question; that the
plaintiffs had severally entered into sale and purchase agreements with the
defendants in respect of the houses purchased and that the defendants had
collected money from the plaintiffs. It is alleged that the defendants had
breached the sale and purchase agreements by failing to complete the
construction of the houses that the plaintiffs had bought. It is averred
that the land on which the housing scheme is situated has now been
subdivided and individual titles have been issued to the defendants (or
their agents) by the Land Administrator, Kangar, Perlis; and that, in breach
of the sale and purchase agreements, the defendants had failed to execute
registrable transfers in favour of the plaintiffs. It is also alleged that
the defendants had committed a breach of statutory duty by failing to give
each of the plaintiffs a copy of the sale and purchase agreement.
The plaintiffs therefore claim, inter alia, the following:
(a)An order requiring the first and second defendants, their servants or
agents to forthwith render to the plaintiffs or their solicitors a stamped
copy of the sale and purchase agreement executed between the plaintiffs as
purchasers and the first and second defendants as
housing developers. (b)An order requiring the first and second
defendants, their servants or agents to forthwith execute valid and
registrable transfers of the said land and sub-divided portions thereof in
favour of the plaintiffs with vacant possession and free from all
encumberances. (c)An injunction to forthwith restrain the first and second
defendants, their servants or agents, from transferring, charging, leasing
or, in any manner whatsoever, dealing with the said piece of land and
subdivided portions thereof until final disposal of this suit.
The second defendant did not enter appearance and judgment in default of
appearance had been obtained by the plaintiff against it in April 1987
The first defendant filed its statement of defence in June 1987. In its
statement of defence, it denies all the allegations of the plaintiffs but
admits that it was a licensed developer. It states that it is the registered
and beneficial owner of the land in question, and admits that the land has
been subdivided and that individual titles for the respective lots have been
issued to it.
In the supporting affidavits to this application it is stated that three
of the plaintiffs, namely:
(1)Lee Kim Huah (plaintiff no. 35); (2)Lau Ah Bah (plaintiff no.
59); and (3)Chong Chow Hoe (plaintiff no. 82),
have agreed to represent all the plaintiffs in the representative action
in the belief that such a course of action would be convenient to both
parties as well as would save time and costs.
Encik George John, learned Counsel for the plaintiffs, submitted that
this Court ought to grant this application since the plaintiffs have
satisfied all the three conditions necessary for the purpose of
representative action, namely:
(a)that all the plaintiffs have a common interest in the action; (b)that
all the plaintiffs belong to the same class; and (c)that the relief sought
would benefit all the plaintiffs.
He referred this Court to Voon Keng & Ors. v. Syarikat Muzwina
Development Sdn. Bhd. [1990] 3 MLJ p. 61 and Jok Jau Evong & Ors. V.
Marabong Lumber Sdn. Bhd. & Ors [1990] 2 CLJ 169 (Rep).
Now, Order 15 r. 12 provides:
Representative proceedings.
[Ord. 15] 12 (1). Where numerous persons have the same interest in any
proceedings, not being such proceedings as are mentioned in rule 13, the
proceedings may be begun, and, unless the Court otherwise orders continued
by or against any one or more of them as representing all or as representing
all except one or more of them.
This rule is designed to avoid multiplicity of proceedings where numerous
persons have the same interest. A judgment or order made in a representative
action binds all persons whom the parties to the action represent. In Duke
of Bedford v. Ellis [1901] AC 1 at page 8, Lord MacNaughten stated that a
representative action can only be brought where there is a common interest,
a common grievance, and relief sought which is in its nature beneficial to
all those whom the plaintiff proposes to represent. This principle was cited
with approval by our Federal Court in Eh Riyid V. Eh Tek [1976] 1 LNS 25
where Raja Azlan Shah FJ (as he then was) said (at page 26):
In a representative action the plaintiff is self elected representative
of himself and others. He does not have to obtain the consent of the other
persons whom he purports to represent, and they are not liable for costs
though by estoppel and res judicata they will be bound by the result of the
case - see Markt & Co. Limited v. Knight Steamship Company Limited [1910] AC
2 KB 1021. The requisite of a representative action is that the persons who
are to be represented must have the same or common interests as the
plaintiff in one and the same cause or matter, although it may result in the
case of each of them in different measure of relief - (see Markt & Co.
Limited v. Knight Steamship Company Limited) or relief common to all of them
- (see Beeching v. Lloyd [3 Drew 227]). O. 16 r. 9 is to be interpreted as
declaratory of the old Court of Chancery practice with regard to
representative action. The most authoritative statement on O. 16 r. 9 is
that stated by Lord MacNaughten in the case of The Duke of Bedford v. Ellis
and Ors:
Under the old practice the Court required the presence of all parties
interested in the matter or suit, in order that a final end might be made of
the controversy. But when the parties were so numerous that you never could
'come at justice', to use an expression in one of the older cases, if
everybody interested was made a party, the rule was not allowed to stand in
the way. It was originally a rule of convenience: for the sake of
convenience it was relaxed.
Given a common interest and a common grievance, a representative suit
was in order if the relief sought was in its nature beneficial to all whom
the plaintiff proposed to represent.
The principle was discussed by Zakaria Yatim J. in Palmco Holding Bhd. v.
Sakapp Commodities (M) Sdn. Bhd. & Ors. [1988] 2 MLJ 624, at p. 627:
The question that arises here is what are the requirements to be
satisfied by the plaintiff in order to succeed in a representative action?
In Duke of Bedford v. Ellis, Lord MacNaughten said. "given a common interest
and a common grievance, a representative suit was in order if the relief
sought was in its nature beneficial to all whom the plaintiff proposed to
represent" In Smith & Ors. v. Cardiff Corporation [1954] 1 QB 210, the Court
of Appeal held that to bring a representative action it must be shown:
first, that all the members of the class had a common interest; secondly,
that they all had a common grievance: and thirdly, that the relief was in
its nature beneficial to them all.
It is clear from Duke of Bedford's case that the plaintiff
has to satisfy three requirements in order to succeed in a representative
action. Firstly, the plaintiff and those represented by it are members of
a class and that these members have a common interest. Secondly, the
plaintiff and those it represents have a common grievance. Thirdly, the
relief sought is in nature beneficial to them all.
In Voon Keng, the suit was, like the present case, by the
purchasers of houses against the developers who built the houses. There,
the plaintiffs had filed a claim for RM498,733.20 against the defendants
the details and particulars of which were in the statement of claim.
Unlike the present case, where it is alleged by the plaintiffs that the
construction of the houses were not completed by the defendants, the
claims of the plaintiffs in that case were for agreed statutory damages
for late delivery of vacant possession and refunds of interest paid due to
premature release of moneys at the request of the defendants' architect.
The first plaintiff, proceeding under O. 15r. 12(1) , had filed the claim
on behalf of all the plaintiffs and therefore they were entitled to
proceed by way of a representative action.
In the case before me, based on what is stated in the
statement of claim and the relief sought, I am satisfied that the proposed
three representatives and the rest of the plaintiffs are members of a
class who have a common interest; that they have a common grievance and
that the relief sought would be beneficial to all the plaintiffs.
Accordingly, I granted the application.
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