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DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN)

RAYUAN SIVIL NO.W-02(NCVC)(W)-2690-11/2012

ANTARA

1. ABDUL RAOUF BIN AB RAHMAN 2. WAFAA BT A. KADIR 3. AHMAD BIN BACHOK 4. AMEER BIN NOORDIN 5. BADRUL HISHAM BIN KAMAL ARIFFIN 6. SITI NURBAYAH BINTI KADDIM 7. RAMLI BIN KARIM (DATO DR) 8. HAJAH FATIMAH BINTI SALLEH 9. HAMZAH BIN IBRAHIM 10. HAZIZAN BIN DARUS 11. PAUZIAH BINTI ISMAIL 12. IRIZNA SDN BHD (NO. SYARIKAT: 219667-9) 13. MAZLIPAH @ MAZLIFAH BINTI MOHD 14. MODIN @ MAIDEEN BIN ALI 15. UNGKU RAHILAH BINTI UNGKU MAHMOOD 16. MOHAMAD ILLIAYAS BIN SEYED IBRAHIM 17. MOHAMED MOKHTAR BIN AHMAD 18. MOHAMED SETH BIN ABU BAKAR 19. NORAIDAH BINTI MOHD SHARIFF 20. RAGAYAH BINTI MAT ZIN 21. RAHAYAH BINTI YAHYA 22. RAJA BEE BT MD YUSOFF 23. RAZIYAH BINTI YAHYA

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24. ROZIYAH BINTI YAHYA 25. SHAZLINA BINTI SHAHRIMAN 26. SITI SARAH BINTI OTHMAN 27. SITI ZEENATH BT SHAIK IBRAHIM 28. TAJALLUDIN BIN MD. RASHID 29. ZAHRIDAH BINTI ISMAIL 30. MOHAMAD BIN SHEIK MANA 31. AZIZAH BINTI KATAN 32. HALIBULLAH BIN ABDUL MAJID 33. SARA BEE BINTI MOHD SULTAN 34. JAMILAH @ NORMAH BTE ISMAIL 35. MOHAMMAD SHARIFF BIN MD ESA 36. ROSHAYATI BINTI SHAFIE 37. NIK AHMAD KAMAL ARIFF BIN N. OMAR … PERAYU- 38. SYANIZA BINTI HISHAM PERAYU

DAN

1. PETPLUS (M) SDN BHD (No.Syarikat:221200-T)

2. PINGGIR KIARA SDN BHD (Dalam Likuidasi) (No.Syarikat:150156-M) (digulungkan melalui Petisyen Penggulungan No. D1-28-888-2002

3. INTAN PERMATA PROPERTIES SDN BHD (No. Syarikat:338979-P)

4. AHMAD RIZAL BIN UMAR 5. A.H.M.S.HOLDINGS SDN BHD

(No.Syarikat:338979-P) 6. AWANG AFDZAL ADENI 7. FARRAH MAISYARA NUR’AIN JIMMY 8. AZIZI BIN OMAR

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9. ZAINAB BINTI YATIM 10. FARAHNAZ IREENA BINTI AMER HAMZAH 11. FAZLYNN NADIRA BINTI MOHD AZRUL RAJ 12. HABIL AKRAM BIN ROSLAND 13. KAMARUL AMIR BIN MOHD KASIM 14. MOHAMMAD NAZRIN RAHIM MAHMOOD 15. HANIFAH @ AINON BINTI JAAFAR 16. RAJA NOREZAH BINTI RAJA BAHARUDDIN 17. RAPID-AGE MARKETING SDN BHD (No.Syarikat: 563402-D) 18. SHAHRIZ IMRAN BIN ABOO SAMAH 19. SHALYA MORIFF BINTI MOHD SHARIFF 20. SITI NOR AMALINA BINTI SARIFF 21. SYED MOHD SALEHUDDIN WAFA BIN

SYED MOHD MUMTAZ WAFA 22. WAN NOOR AINI BINTI HJ ABU 23. ALIA BINTI MUHAMMAD ALI 24. AFFIN BANK BERHAD … RESPONDEN- 25. AFFIN ISLAMIC BANK BERHAD RESPONDEN

(Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur Dalam Wilayah Persekutuan, Malaysia

(Bahagian Sivil) Guaman No:22NCVC-193-2011

Antara

1. Abdul Raouf Bin Ab Rahman 2. Wafaa Bt A. Kadir 3. Ahmad Bin Bachok 4. Ameer Bin Noordin 5. Badrul Hisham Bin Kamal Ariffin 6. Siti Nurbayah Binti Kassim

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7. Ramli Bin Karim (Dato’Dr) 8. Hajah Fatimah Binti Sallah 9. Hamzah Bin Ibrahim 10.Hazizah Bin Darus 11.Pauziah Binti Ismail 12.Irizna Sdn Bhd (No. Syarikat:219777-9) 13.Mazlipah @ Mazlifah Binti Mohd 14.Modin @ Maideen Bin Ali 15.Ungku Rahilah Binti Ungku Mahmood 16.Mohamad Illiayas Bin Seyed Ibrahim 18.Mohamed Mokhtar Bin Ahmad 19.Noridah Binti Mohd Shariff 20.Raqayah Binti Mat Zin 21.Rahayah Binti Yahya 22.Raja Bee Bt Md Yusoff 23.Raziyah Binti Yahya 24.Roziyah Binti Yahya 25.Shazlina Binti Shahriman 26.Siti Sarah Binti Othman 27.Siti Zeenath Bt Shaik Ibrahim 28.Tajalludin Bin Md Rashid 29.Zahridah Binti Ismail 30.Mohamad Bin Sheik Mana 31.Azizah Bin Katan 32.Halibullah Bin Abdul Majid 32.Sara Bee Binti Mohd Sultan 33.Jamilah @ Normah Bte Ismail 35.Mohammad Shariff Bin Md Esa 36.Roshayati Binti Shafie 37.Nik Ahmad Kamal Ariff Bin N.Omar … Plaintif- 38.Syaniza Binti Hisham Plaintif

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Dan

1. Petplus (M) Sdn Bhd (No. Syarikat:221200-4)

2. Pinggir Kiara Sdn Bhd (Dalam Likuidasi) (No. Syarikat: 1505156-M) (digulungkan melalui Petisyen Penggulungan No. D1-28-888-2002)

3. Intan Permata Properties Sdn Bhd (No. Syarikat: 637828-T)

4. Ahmad Rizal Bin Umar 5. A.H.M.S. Holdings Sdn Bhd

(No. Syarikat: 338979-P) 6. Awang Afdzal Adeni 7. Farrah Maisyara Nur’ain Jimmy 8. Azizi Bin Omar 9. Zainab Binti Yatim

10.Farahnaz Ireena Binti Amer Hamzah 11.Fazlynn Nadira Binti Mohd Azrul Raj 12.Habil Akram Bin Rosland 13.Kamarul Amir Bin Mohd Kasim 14.Mohammad Nazrin Rahim Mahmood 15.Hanifah @ Ainon Binti Jaafar 16.Raja Norezah Binti Raja Baharuddin 17.Rapid-Age Markekting Sdn Bhd (No.Syarikat: 563402-D) 18.Shahriz Imran Bin Aboo Samah 19.Shalya Moriff Binti Mohd Shariff 20.Siti Nor Amalina Binti Sariff 21.Syed Mohd Salehuddin Wafa Bin Syed Mohd Mumtaz Wafa 22.Wan Noor Aini Binti Hj Abu 23.Alia Binti Muhammad Ali 24.Affin Bank Berhad 25.Affin Islamic Bank Berhad … Defendan-Defendan

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CORAM

CLEMENT SKINNER, JCA LINTON ALBERT, JCA

LIM YEE LAN, JCA

GROUNDS OF JUDGMENT

Brief Facts [1] The Appellants are a group of purchasers who had bought units in

a housing development known as Mas Kiara Condominium (“the

Project”) built on 4 parcels of land owned by Petplus (M) Sdn Bhd the

(“1st Respondent”). The developer of the Project was Pinggir Kiara Sdn

Bhd (“the 2nd Respondent”). The 1st and 2nd Respondents had entered

into a Joint Venture Agreement (“JVA”) dated 2.9.1993 under which the

2nd Respondent was appointed to develop the Project in accordance

with the terms thereof.

[2] The Appellants entered into Sale & Purchase Agreements with the

1st and 2nd Respondents to purchase their respective units within the

Project.

[3] The Project was abandoned by the 2nd Respondent in 2001.

Thereafter the 2nd Respondent was wound-up on 17.2.2003.

[4] Consequently the 1st Respondent terminated the JVA between it

and the 2nd Respondent on 30.4.2003.

[5] Later on steps were taken to restart and complete the Project.

Subsequently the 1st Respondent entered into a Master Agreement with

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Intan Permata Properties Sdn Bhd (“the 3rd Respondent”) whereunder

the 3rd Respondent was appointed as developer and turnkey contractor.

[6] The salient terms of the Master Agreement were:

(a) that certain units which had already been sold by the 1st and

2nd Respondents (“sold units”) could not be sold by the 3rd

Respondent;

(b) Units reserved for the 1st Respondent (the Petplus Units)

could not be sold by 3rd Respondent;

(c) the balance of the units including penthouse and commercial

units, were available for sale by 3rd Respondent.

[7] The purchasers of the units in the Project formed the Mas Kiara

Condominium Purchasers’ Committee (“the Purchasers’ Committee”).

The Ministry of Housing arranged for meetings between the Purchasers’

Committee, the 1st Respondent, the Liquidators of the 2nd Respondent

and the 3rd Respondent.

[8] At a meeting on 7.11.2007 which was attended by the 2nd

Respondent’s Liquidator, the 3rd Respondent, the Purchasers’

Committee and their Solicitor Encik Firuz, it was confirmed that the

Purchasers’ Committee was agreeable to the terms of a Tripartite

Agreement to be executed between the 1st Respondent, the 3rd

Respondent and the respective purchasers who had previously

executed sale and purchase agreements with the 1st and 2nd

Respondents.

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[9] It is not in dispute that many other purchasers did sign the

Tripartite Agreement. However the 1st to 30th Appellants did not sign the

Tripartite Agreement, whilst the 31st to 38th Appellants did sign the

Tripartite Agreement but later on the 3rd Respondent terminated their

said agreements as they were alleged to have breached the same.

[10] The 1st to 30th Appellants claimed that they did not sign the

Tripartite Agreement as the 3rd Respondent had unilaterally imposed

unreasonable conditions in the Tripartite Agreement. They complained

that they were required to produce the original of the sale and purchase

agreement entered into with the 2nd Respondent and the original

documents evidencing payment to the 2nd Respondent of the purchase

price of their units.

[11] The 31st to 38th Appellants claimed their Tripartite Agreements

were wrongfully terminated by the 3rd Respondent when they allegedly

did not pay the purchase price in accordance with the agreement. They

say the 3rd Respondent should have charged interest on the outstanding

amount instead of terminating their agreements.

[12] The Appellants filed this suit against the 1st, 2nd and 3rd

Respondents, naming them as the original defendants alleging that the

3rd Respondent had refused to recognize their rights to the units they

had purchased and that the 3rd Respondent was attempting to sell their

units to third parties.

[13] After initiating the suit, the Appellants discovered that their

respective units had been sold to the 4th to 23rd Respondents (“New

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Purchasers”). These New Purchasers were accordingly joined as

defendants to the action.

[14] The relief claimed by the Appellants are as follows:

1. As against 1st and 3rd Respondents

(a) a declaration that the Appellants had acquired a legal and

beneficial right in their respective units in the Mas Kiara

Condominium;

(b) in addition or alternatively a declaration that the 1st and 3rd

Respondents are constructive trustees for the Appellants for

their respective units;

(c) an injunction to restrain the 1st and 3rd Respondents from

disposing of their respective units;

(d) a mandatory injunction ordering the 1st and 3rd Respondents

to allow them to sign the Tripartite Agreement;

(e) a mandatory injunction ordering the 1st and 3rd Respondents

to reinstate the terminated Tripartite Agreement in respect of

the 35th to 38th Appellants;

(f) in addition or alternatively, general aggravated and

exemplary damages in addition to or in lieu of an injunction,

but at the trial, the Appellants withdrew their claim for

damages.

2. As against the 2nd Respondent

(a) a declaration that the Appellants have acquired a legal and

beneficial right in their respective units.

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3. As against the 4th to 23rd Respondents

(a) an Order declaring that these New Purchasers obtained their

interest subject to the pre-existing legal/beneficial and

equitable right/interest of the Appellants in the said units;

(b) a declaration that the 4th to 23rd Respondents are not bona

fide purchasers since they have express or implied notice of

the pre-existing legal/beneficial and equitable rights/interest

of the Appellants in the units which is superior and first in

time from the rights of the said New Purchasers.

The High Court decision [16] After 18 days of trial, in a 345 page Judgment the learned High

Court Judge dismissed the Appellants’ claim for all the reliefs claimed.

[17] It is unnecessary to repeat the findings of the High Court here.

This Appeal [18] At the commencement of the hearing we were informed by learned

Counsel for the Appellants that the 7th, 17th, 18th, 19th, 25th, 26th and 28th

Appellants have withdrawn their appeals. Therefore the expression “the

Appellants” will exclude any reference to them. The Appellants raised

several grounds in their Memorandum and Supplementary

Memorandum of Appeal. We will now consider these grounds.

Grounds 1 and 4 (and grounds 2 and 6 of the Supplementary

Memorandum of Appeal)

[19] The Appellants complained that the learned Judge had erred when

she held that the Appellants had caused the failure of the rehabilitated

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project through their own inequitable behavior and that although the 3rd

Respondent had tried to get the Appellants to accept the offer of the

rehabilitated scheme it was the Appellants who had refused to furnish

the documents requested by the 3rd Respondent. It was contended by

the Appellants that the learned Judge was wrong to say that they had

caused the rehabilitation to fail when she failed to realize that the said

Project had in fact been rehabilitated and a number of their units wrongly

sold off to third parties. The Appellants further complained that the

learned Judge had wrongly stated that the Appellants were trying to

enforce their claims under the original sale and purchase agreements

whereas the Appellants’ claim in this suit was only for a declaration that

they had acquired legal and beneficial rights to their units.

[20] We do not agree with the Appellants contention. Whether the

Appellants had behaved inequitably or unreasonably are questions of

pure fact upon which the learned trial Judge was fully entitled to arrive at

a finding. Put in another way the matters complained of by the

Appellants relate to findings of fact made by the learned trial Judge

based on the evidence adduced at the trial. We find no basis for the

Appellants’ complaint that the 3rd Respondent had unreasonably

introduced onerous conditions such as by asking for production of

original receipts before the Appellants could sign the Tripartite

Agreement. The evidence shows that by a letter dated 22.6.2007 (at

page 8233, Vol 42 Record of Appeal Part C) the 2nd Respondent’s

Liquidator wrote to the Purchasers’ Committee referring them to a

meeting at the Ministry held on 6.6.2007, and enclosing a copy of the

draft Tripartite Agreement for the Purchasers’ Committee’s comment. In

this draft Clause K requires the production of, inter alia, original

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documentary proof of payment to the satisfaction of the 3rd Respondent

that the payments mentioned therein had been paid to the 2nd

Respondent in respect of the original purchase price.

[21] It is to be noted that on the 4.2.2008 the Purchasers’ Committee

wrote to the Appellants advising them not to sign the Tripartite

Agreement or pay any monies yet until further advice from the

Committee.

[22] But the evidence clearly shows that some two months later on

25.4.2008 the Purchasers’ Committee wrote to the Appellants that they

could now proceed to execute the Tripartite Agreement. A copy of the

Tripartite Agreement that was signed by some of the Appellants is found

at page 164 of Appellants’ Core Bundle Vol 1. It shows that the

requirement to produce the original documentary proof of payment to the

satisfaction of the 3rd Respondent, remains as a term of the Tripartite

Agreement. Therefore in our view, there is no basis for the Appellants’

complaint that the 3rd Respondent had unreasonably introduced onerous

terms before they could sign the Tripartite Agreement.

[23] The written judgment of the learned Judge shows that she had

considered the case of each appellant and had given her reasons why

she found their behavior inequitable or unreasonable. The learned

Judge was entitled to make such an evaluation and conclusion and it

has not been demonstrated to us where she went wrong. What we have

just said applies with equal force to the complaints of the individual

appellants, raised in grounds 41 to 96 of the Supplementary Record of

Appeal.

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Grounds 2 & 3 (and grounds 3 and 5 of the Supplementary

Memorandum of Appeal)

[24] The Appellants complained that the learned Judge erred in finding

that whatever equitable rights that the Appellants were claiming had

been superseded by the new arrangement for rehabilitation and

therefore the Appellants cannot insist on specific performance, when the

Appellants did not even pray for specific performance as a relief.

[25] We find no merit in the Appellants’ contention. The evidence

shows that when the 3rd Respondent initiated moves to rehabilitate the

Project the Purchasers’ Committee who represented all the purchasers

including the Appellants, agreed that the Tripartite Agreement would be

executed by all the purchasers. In this regard the learned Judge made a

specific finding that it is the Appellants’ pleaded case that a new

agreement titled “the Tripartite Agreement” was concluded between the

parties. At page 1347 of Vol 6 of the Supplementary Record of Appeal

the learned Judge said in her judgment that: “Paragraphs 28-30 of the Plaintiffs Amended Statement of Claim acknowledged that the Purchasers’ Committee was at all material time representing them to deal with all parties, including D, D2 and D3 as to the purchase. In cross-examination of all the Plaintiffs herein, they have agreed that the Plaintiffs are a part of the Purchasers’ Committee and the Plaintiffs are agreeable to the stand or decision taken by the Purchasers’ Committee.”

[26] Even though it is true that the Appellants did not pray for specific

performance, it is our view that the declaratory orders and the

injunctions sought by the Appellants, if granted, had the effect of

ordering the Respondents to specifically perform the original sale and

purchase agreements that had been substituted by novation and

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therefore the original contract need not be performed, particularly so

after the Appellants abandoned their prayer for damages. In our view

once the Appellants had agreed to the substitution and once the

Purchasers’ Committee confirmed the Tripartite Agreement and wrote to

them, requesting them to proceed to execute the Tripartite Agreement, it

was then the duty of the Appellants as parties to the agreement to

execute it. The fact that some of the Appellants refused to do so does

not assist the Appellants. In Ayer Hitam Tin Dredging Malaysia Berhad

v YC Chin Enterprise Sdn Bhd [1994] 2 MLJ 754 at 765 the Supreme

Court held: “True that merely because the parties contemplate the preparation of a formal contract, that by itself will not prevent a binding contract from coming into existence before the formal contract is signed. It is not difficult to cite an anthology of cases for this proposition but we need no more than then refer to Von Hatzfeldt-Wildenburg v Alexander at pp 288, 289 … .”

[27] In our view the learned Judge’s decision is warranted in law based

on the facts she found. Section 63 of the Contracts Act 1950 provides

as follows: “If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.”

Ground 5 (and grounds 10 and 11 of the Supplementary Memorandum

of Appeal)

[28] The Appellants complained that the learned Judge erred when she

held that the Appellants have no contractual claim against the 1st and 3rd

Respondents since the contractual obligation to deliver the units is with

the 2nd Respondent.

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[29] We find no merit in this ground. The original Sale and Purchase

Agreements entered into with the Appellants must be properly read to

ascertain the true obligation of 1st and 2nd Respondents respectively.

The Agreements clearly make reference in their preamble to the fact that

the party who was selling the unit to the Appellants was the 2nd

Respondent and not the 1st Respondent. Further the purchase price

was to be paid to the 2nd Respondent and it was the 2nd Respondent

who was to deliver the completed units to the Appellants. The 3rd

Respondent was not a party to the original Sale and Purchase

Agreements.

[30] The learned Judge was therefore correct in her finding that the

contractual obligation to deliver the units was that of 2nd Respondent.

[31] In our view the requirement for the 1st Respondent to sign the

strata titles when ready, in favour of the respective purchasers was only

necessary as the 1st Respondent was the registered owner of the land

being developed by the 2nd Respondent.

Ground 6 (and grounds 12, 13 and 14 of the Supplementary

Memorandum of Appeal)

[32] The Appellants complained that the learned Judge erred in

deciding that there was no privity of contract between the former

purchasers/appellants and the 3rd Respondent, ignoring section 26(b) of

the Specific Relief Act. In this regard, learned Counsel for the

Appellants referred us to the Master Agreement dated 27.5.2004

entered into between the 1st and 3rd Respondents (see pg 67 to 83 of the

Appellants Core Bundle CB 1) and in particular to preamble ‘I’ and to

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Clause 2, Clause 2.1, Clause 2.1.1, Clause 2.1.4 and Clause 2.1.5

thereof. Learned Counsel submitted that there was a direct adoption of

the previous agreements by the 1st and 3rd Respondents. Accordingly

learned Counsel submitted that since the 2nd Respondent who was the

1st Respondent’s agent had failed to deliver the units to the Appellants,

the 3rd Respondent as the new agent of the 1st Respondent must do so

since the 1st Respondent was now in a position to fulfill its obligation

after having entered into the Master Agreement. Counsel further

contended that since the Appellants had pleaded s 26 of the Specific

Relief Act, therefore they did not need to plead specific performance.

[33] We do not agree with the above contentions. In the first place,

there was in fact no privity of contract between the Appellants and the

3rd Respondent. Secondly the 1st Respondent’s obligation under the

Sale and Purchase Agreement did not include an obligation to deliver

vacant possession. That was an obligation of the 2nd Respondent as

“Vendor”. Therefore even after the 3rd Respondent took over as the new

developer and allegedly became the “new agent” of the 1st Respondent,

there was still no obligation on the part of the 1st Respondent to deliver

vacant possession of the units – the original position of the 1st

Respondent had not changed, contrary to what the Appellants contend

now. Thirdly, the preamble and Clause 2 of the Master Agreement

cannot be read in a disjointed manner. Even though the 1st Respondent

and 3rd Respondent had made reference to the position of the

Appellants in those clauses of the Master Agreement earlier identified by

the Appellants, Clause 2.1.7 expressly states that: “All the purchasers and purchasers financiers, shall execute the Supplementary Agreement and /or novation agreement (i.e. the Tripartite Agreement) relating to their acquisition of the properties.”

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[34] Therefore, those Appellants who did not sign the Tripartite

Agreement, cannot rely on Clauses 2, 2.1, 2.1.1, 2.1.4 and 2.1.5 to seek

to enforce their alleged rights. As regards those Appellants who did sign

the Tripartite Agreement, the success of their claim depended on

whether there was a wrongful termination of their agreements, which the

learned Judge found there had been no wrongful termination of their

agreements. We agree with the reasons given by the learned Judge for

so finding.

Ground 7 and 8 (and grounds 15 and 16 of the Supplementary

Memorandum of Appeal)

[35] The Appellants complained that the learned Judge erred when she

held that the claims of the Appellants who rely on the original Sale and

Purchase Agreements for declaration of ownership of their respective

units are time barred pursuant to section 9 of the Limitation Act, whereas

the Appellants rely on equity for their claims.

[36] We do not agree with the above contention. The Appellants claim

here are clearly contractual in nature and even though they seek

declaratory relief, the right to such relief are founded on the Sale and

Purchase Agreements they had entered into. Clearly their claim to

whatever rights they wish to have declared accrued from the date of

breach of the agreements they entered into i.e. on the expiry of the 36

months to deliver vacant possession of the units, and not from the date

on which the Appellants discovered the sale of their units by the 3rd

Respondent, who was not a party to the original Sale and Purchase

Agreements.

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Ground 9 (and 20 of the Supplementary Memorandum of Appeal)

[37] The Appellants complained that the learned Judge was wrong to

say that the 3rd Respondent had not unjustly benefited even though the

Appellants were required to pay another RM39,500.00 more to continue

with the units in the rehabilitated scheme and the new selling price for

the units had increased by 3 fold.

[38] We find no merit in the Appellants’ contention. The increase in

value of the units is a matter dictated by market forces and the persons

who would feel the effect of such increase were the new purchasers

which should not be a concern of the Appellants. The Appellants were

only required to pay RM39,500.00 to continue with the purchase of their

units. We find nothing wrong in what the learned Judge said.

Ground 10 (and 21 of the Supplementary Memorandum of Appeal)

[39] The Appellants complained that the learned judge was wrong

when she did not consider the plea of estoppel raised by the Appellants

on the ground that it was not pleaded.

[40] We do not agree with this submission. As a general proposition,

while it is correct that estoppel need not be pleaded if sufficient facts

have been proved to allow the plea of estoppel to be raised, in this case

the learned Judge had made an express finding of fact that the 3rd

Respondent had not made any clear and unequivocal representation to

the Appellants so as to allow a plea of estoppel to be raised.

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[41] In view of the finding of fact made by the learned Judge, it is our

view that she was correct in not considering the plea of estoppel.

Ground 11 (and 22 of the Supplementary Memorandum of Appeal)

[42] The Appellants complained that the learned Judge erred when she

held that the cause of action against the 2nd Respondent is time barred

after 6 years, whereas the Appellants say their limitation period is 12

years.

[43] In our judgment the Appellants’ claim against the 2nd Respondent

is a contractual claim, the cause of action of which accrues from the

date of breach of the Sale and Purchase Agreement. It is our view that

the breach occurred at the expiry of the 36 months period when delivery

of vacant possession should have occurred. We therefore find the

learned Judge was correct in her decision.

[44] Even if it can be argued that the Appellants’ claims are for

recovery of land and therefore, the limitation period is 12 years under

section 9 of the Limitation Act, their cause of action would still be time

barred as found by the learned Judge. We agree with her findings.

Ground 12 (and 32 of the Supplementary Memorandum of Appeal)

[45] The Appellants complained that the learned Judge erred in

deciding that the 3rd Respondent had approval to sell the respective

units to new purchasers under the authority given to the 3rd Respondent

by the Ministry of Housing even though there was no power under the

Housing Development (Control and Licensing) Act 1966 which allows

the Ministry of Housing to grant such approval to resell.

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[46] We do not agree. In our view even if the Ministry of Housing has

no such power, we do not see on what basis the agreements entered

into between the 3rd Respondent and the new purchasers are rendered

invalid. There is no provision of law that states that if the 3rd

Respondent enters into a sale and purchase agreement with new

purchasers in respect of the units already sold to the Appellants, without

the approval of the Ministry of Housing, such agreements are invalid in

law.

[47] We agree with the learned Judge that if the 3rd Respondent had

breached any of the conditions in the permit issued to the 3rd

Respondent by the Ministry of Housing, then that would be a matter of

enforcement by the Ministry which does not affect the validity of the

contracts entered into between the new purchasers and the 3rd

Respondent.

Ground 13

[48] The Appellants complained that the learned Judge erred when she

held the Appellants were guilty of undue delay in pursuing their claim,

whereas the evidence shows that the Appellants had not delayed as

they were trying to get the Ministry of Housing to intervene.

[49] We find no merit in this ground. This is another finding of fact

made by the learned Judge which she was entitled to make on the

evidence before her. We find no reason to interfere with such finding of

the learned Judge.

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Ground 14

[50] The Appellants complained that the learned Judge was wrong to

award costs on a joint and several basis against them, when the basis of

the Appellants claim was based on their individual units.

[51] We find merit in this contention of the Appellants. Although each

of the Appellants commenced this action as co-plaintiffs and in their

concluding prayers had sought relief on a joint and several basis, it is

our view that the trial court had a discretion when awarding costs in the

suit. It was quite clear to us that each of the Appellants, as plaintiff, was

only interested in obtaining relief in respect of his or her own unit and if

successful, would have been granted relief by the Court on an individual

basis. In the circumstances the learned Judge should not have ordered

costs to be paid by the Appellants on a joint and several basis. We

accordingly allow this ground of appeal and order that the amount of

costs awarded by the learned Judge be divided equally by the number of

remaining Appellants and each Appellant is to pay only his share of such

costs.

Claim against the 4th to 23rd Respondents (Ground 34 of the Supplementary Record of Appeal) [52] As regards the Appellants’ claim against the 4th to 23rd

Respondents, i.e. the new purchasers, the learned Judge refused to

grant the Appellants the reliefs they sought against them as the learned

Judge found that the new purchasers were bona fide purchasers for

value without notice in that they have paid valuable consideration for

their respective units and had no prior knowledge actual or implied about

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22

the Appellants. At page 1574 of her judgment in the Supplementary

Record of Appeal Vol. 6 the learned Judge said: “From the evidence that have been tendered at the trial, the following has been established … … … . Although the new purchasers knew that the project was an abandoned one, however when they had gone to the site and visited the offices of the 3rd Respondents, they were assured by Jonathan Ng that there were units available for sale and for some, they were assured that the units had no buyers. It is also a fact that Jonathan Ng never told any of the new purchasers that their respective units were previously sold to the Plaintiffs. Jonathan Ng confirmed this fact during his testimony ….”

[53] The learned Judge then went on to find that the new purchasers

had relied on the assurances given by the 3rd Respondent and were not

expected to know the internal workings of the 3rd Respondent, prior to

their entering into their agreements to purchase their respective units.

Accordingly the learned Judge found that the Appellants had acquired

no superior rights to that of the new purchasers in respect of the units

the Appellants are now seeking declaratory rights in respect of, for the

reason that the new purchasers were bona fide purchasers for value

without notice of the claims of the Appellants to their units. The learned

Judge further held that even though the Appellants may have been first

in time in entering into the Sale and Purchase Agreements in respect of

the units they now claimed, the Appellants had failed to satisfy those

conditions that would entitle them to claim superior rights to that of the

new purchasers in that:

(a) they had not fully paid the purchase price of the respective units;

(b) Appellant 1 to 33 have not executed the Tripartite Agreement;

(c) the Appellants have not taken possession of their units;

(d) there had been considerable delay by the Appellants in pursuing

their claim against the new purchasers; by the time the Appellants

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filed their claims against the new purchasers, vacant possession

had been granted to the majority of the new purchasers;

(e) the Appellants had delayed in enforcing their alleged rights against

the 1st and 3rd Respondents although the Appellants were aware

that their units were about to be sold to new purchasers from

2008/2009.

[54] We agree with these findings of the learned Judge. They are

supported by the facts as found by the learned Judge who has applied

the law correctly to those facts.

[55] In the result we dismiss the appeal of the Appellants with costs,

save and except their appeal against their liability to pay costs on a joint

and several basis, which we have allowed. In respect of this appeal we

award costs of RM10,000.00 each to the 1st, 2nd and 3rd Respondents.

We also award costs of RM10,000.00 to the 4th to 23rd Respondents

(excluding the 6th and 7th Respondents who were not represented). The

costs awarded against the Appellants for this appeal is to be divided

equally by the number of remaining Appellants and borne by them

severally.

sgd

DATUK CLEMENT SKINNER Judge

Court of Appeal Malaysia

Dated: 14th November 2013

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PARTIES: For Appellants: Haji Sulaiman Abdullah

together with Krishna Dallumah, Ramesh Gopal, Rajes P, Manjula P

Messrs Rajes Hisham Rahim & Gopal Kuala Lumpur For 1st & 3rd Respondents: Lua Ai Siew together with

Lim Choon Khim, Razinah Shaheed Ali, Elyazura Md Shaarani Messrs Soo Thien Ming & Nashrah Kuala Lumpur

For 2nd Respondent: Paul Kwong together with Toh Chia Hua, Lai Wern Chin Messrs Azman, Davidson & Co Kuala Lumpur For 4th to 23rd Respondents: Ahmad Moosdeen together with Goh Keng Tat, Farah Mohd Afzal,

Yeoh Koay Thing Messrs Abraham Ooi & Partners Kuala Lumpur