TAN TIEN SENG AND ORS V. GROBINA RESORTS
SDN BHD
HIGH COURT [MELAKA]
SAMAN PEMULA NO. 24-537 TAHUN 2000
LOW HOP BING, J
14 AUGUST 2002
DALAM MAHKAMAH TINGGI MALAYA DI MELAKA
SAMAN PEMULA NO. 24-537 TAHUN 2000
ANTARA
Dalam Perkara Perjanjian Jual Beli bertarikh 3 Januari 1995 berhubung dengan
harta yang dikenali sebagai Parcel No. 16- 01 of No. 01-Pent 7, Tanjung
Samudera Kondominium Beach Resort
Dan
Dalam perkara Seksyen-seksyen 65, 66 dan 76 Akta Kontrak, 1950 1. TAN TIEN SENG
2. CHUA AH HOOI
... PLAINTIF-PLAINTIF
DAN
GROBINA RESORTS SDN BHD
... DEFENDAN
JUDGMENT
[ENCLOSURES (1) AND (7)]
I. APPLICATIONS.
There are two enclosures for hearing and determination here, viz
enclosures (1) and (7).
Enclosure (1) is the plaintiffs application by way of originating summons
for :
(1) (a) a declaration that the defendant is in breach of the
sale and purchase agreement dated 3 January 1995 executed between the
plaintiffs and the defendant ("the agreement") in respect of property
known as parcel No. 16-01 of No. 01-Pent 7, Tanjung Samudera Kondominium
Beach Resort ("the property); or alternatively
(b) a declaration that the agreement is void for
misrepresentation;
2. A declaration that the plaintiffs have effectively rescinded the
agreement ab initio;
3. An order for repayment by the defendant of the sums :
(a) RM844,443.00 being the purchase price of the property;
(b) RM8,800.62 being the sum of all deposits, charges and
property tax paid by the plaintiff in respect of the property;
(c) S$650.00 (= RM 1,423.80 on the date of filing) being the
cost of legal fees paid by the plaintiffs in respect of the agreement
for the property;
4. General damages;
5. Interest on all sums payable by the defendant at the rate of 8% from
7 March 2000 until repayment or, alternatively, for such period and at
such rate as the Court shall think just; and
6. Costs.
Enclosure (7) is the defendant's application by way of summons in
chambers for an order that the plaintiffs' originating summons be set
aside with costs.
II. ENCLOSURE 7.
I shall deal with enclosure (7) first. The grounds of the defendant's
application are contained in the affidavit in support, enclosure (8)
affirmed by one Cho Tian Han, a director of the defendant. However, upon a
proper perusal of enclosure (8), I discover that it does not disclose
anything substantive but instead I find that it is fraught with
technicalities e.g. the ground that the affidavit in support was affirmed by
one Azmi bin Hassan who allegedly did not possess any personal knowledge in
relation to the content of the said affidavit. The defendant did not deny
and indeed admitted that the first plaintiff did affirm an affidavit giving
an account of the factual background of the contractual transactions between
the plaintiffs and the defendant.
PU(A) 197/2002, which came into force on 16 May 2002, provides for the
latest amendment to the Rules of the High Court 1980. O.1A states that in
administering any of the rules herein, the court or a judge shall have
regard to the justice of the particular case and not only to the technical
non-compliance with any of the rules herein, while
O.2 r.3 expressly says that a court or judge shall not allow any
preliminary objection by any party to any cause or matter or proceedings
only on the ground of non-compliance with any of these Rules unless the
court or judge is of the opinion that such non-compliance has occasioned a
substantial miscarriage of justice.
In my view, the technicalities raised for the defendant are strictly in
relation to non-compliance and disregarding them would occasion no
miscarriage of justice. The answer to the defendant's application is
therefore short and simple : there is no merit in enclosure
(7) which is hereby dismissed.
III. ENCLOSURE 1.
The plaintiffs relied on the defendant's breach of agreement, failure of
consideration and misrepresentation. Pursuant to the agreement, the
plaintiffs agreed to purchase and the defendant agreed to sell the property
for RM844,443.00 ("purchase price"). According to the storey plan of the
condominium, the property is located on the highest storey of the building.
The defendant notified the plaintiffs vide letter dated 17 January 1998
that vacant possession of the property was ready to be delivered to the
plaintiffs.
In or about March 1998, the plaintiffs inspected the property and
discovered that there were deviations to the building design made by the
defendant without plaintiffs' written consent, as the property was not the
highest storey of the condominium, as there is yet another storey above the
property. The plaintiffs alleged that the defendant has breached the
agreement and refused to take vacant possession thereof, claiming that they
have suffered damages in the sum of the purchase price.
The plaintiffs also alleged that the consideration for the sum of
RM854,667.12 paid by the plaintiffs to the defendant for the purchase
transaction has wholly failed and by notice dated 2 May 2000, from the
plaintiffs' solicitors to the defendant, the plaintiffs terminated the
agreement and asked for the refund of RM853,893.62.
The plaintiffs also alleged misrepresentation by the defendant as the
First Schedule to the agreement described the property as being located on
the highest floor of the condominium, for which the agreement was executed
and the plaintiffs had paid a total sum of RM854,667.12, but the defendant
purportedly delivered vacant possession of a unit in the storey below the
highest storey of the condominium.
The defendant's affidavit in reply i.e. enclosure (9) affirmed by the
aforesaid director denied any breach of contract and that the defendant had
fulfilled and performed its obligations contained in the agreement.
It was the contention of the defendant that, inter alia, :
(1) at the time of the plaintiffs' evincing their interests in the
property the brochure of the property shown to the plaintiffs contained an
express provision that all plans and descriptions contained in the
brochure were only artist impression and were subject to change
subsequently by the appropriate authority or the project architect and
such fact is within the express knowledge of the plaintiffs and is in fact
incorporated in clause 12 of the agreement;
(2) the addition of an extra floor/storey to the condominium is a
structural necessity;
(3) the letter of the project architect, Messrs Architect AAP, which
stated that an extra storey had been added, is incomplete
and wrong;
(4) the conduct and actions of the plaintiffs at all material times
amounted to acquiescence and acceptance of the terms and variations to the
building, more so after the delivery of vacant possession of the property;
(5) the plaintiffs' cause of action is wrong;
(6) the issue of total failure of consideration does not exist in that
the plaintiffs had obtained the property as per the approved plans, and
vacant possession of the property had been delivered to the plaintiffs;
(7) there is no misrepresentation on the part of the defendant;
(8) the issues of breach of contract, restitution and misrepresentation
raised by the plaintiffs are intended to withdraw themselves from a
legally valid sale and purchase transaction.
It was alleged that the plaintiffs had on numerous occasions visited the
site of the condominium and viewed the property during the middle and final
stages of the implementation of the construction including a party organized
by the defendant sometime in early 1998.
It was also stated that the plaintiffs had not, during the early stages
of the addition of an extra storey to the condominium, made any complaint or
expressed any intention to rescind the agreement on the
ground of alleged misrepresentation, but had, on 22 November 1998, signified
their intention to accept delivery of vacant possession of the property.
In addition to the above, upon careful consideration of all the
affidavits of both the parties herein, I am of the view that they have
raised numerous controversies of fact, which are too lengthy to enumerate in
every detail here, but it suffices for me to say that they constitute
plaintiffs' cause of action, and defendant's defences.
Respective submissions by learned counsel Encik Leong Wai Hong and Cik
Claudia Cheah for the plaintiffs, and Encik Hillary D'Cruz and En. Yap Bell
Pung for the defendant, follow closely the allegations of fact and
contention contained in the various affidavits filed herein on behalf of the
plaintiffs and the defendant respectively.
In my judgment, it is to be observed that it is impossible to come to any
definitive or specific finding of facts on these affidavits. On the basis of
the conflicting allegations of fact and contentions contained therein, some
of which have been alluded to above, the question that calls for immediate
determination is whether the instant originating summons is the appropriate
mode of commencing the plaintiffs' action.
O.7 r.1 of the Rules of the High Court 1980 contains provisions
governing the commencement of proceedings by way of an originating summons
in the following words :
"1. Application (O 7 r 1)
The provisions of this Order apply to all originating summonses
subject, in the case of originating summonses of any particular class, to
any special provisions relating to originating summonses of that class
made by these rules or by or under any written law."
Originating summons may be required e.g. :
(a) by virtue of the rules, such as :
(i) O.5 r.3, for proceedings by which an application is to
be made to the High Court or a judge thereof under any written rule,
except where by these rules or under any written law, the application
in question is expressly required or authorized to be made by some
other means; or
(ii) O.5 r.4(2), which concerns the construction of any
written law, instrument, deed, will, contract or other document, or
some other question of law; or in which there is unlikely to be any
substantial dispute of fact.
Substantial or serious disputes of fact in any action would render the
originating summons procedure eminently unsuitable :
O.5 r.4(2)(b), and the proper mode is by way of a writ of summons under
O.5, r.2.
O.28 r.8(1) provides the procedure for the purpose of enabling the court
to order the proceedings which are commenced by way of an originating
summons to continue as if the case or matter had been so begun by writ. I
therefore hold that the originating summons procedure herein shall continue
as if it has been begun by way of a writ and further order that the parties
do deliver their pleadings in accordance with
O.18 of the Rules of the High Court 1980 as has been done by the Supreme
Court in
Ting Ling Kiew & Anor v Pang Eng Iron Works Co. Ltd [1992] 1 CLJ 331
(Rep) [1992] 3 CLJ 1685; [1992] 2 MLJ 217. Hence, enclosure (1) is
hereby dismissed.
IV. COSTS.
In the light of the results of the aforesaid two application in which the
parties were respectively unsuccessful and so the scoreboard is seen to be
set in equilibrium, I am of the view that a fair and reasonable order in
respect of costs is that both parties are to bear the costs of their
respective application, which I hereby order.
(DATO' LOW HOP BING)
Judge,
High Court Malaya,
Melaka.
14th August 2002.
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