FABER UNION SDN BHD V. YONG AH NGA & ANOR CASE

LAND LAW: Vacant possession of building - Date for delivery of vacant possession - Whether time started to run from the date the deposit was paid or from the date the sale and purchase agreement was signed.
 

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

(BAHAGIAN SIVIL)

GUAMAN NO: S2-22-492-1996

ANTARA

FABER UNION SDN BHD ...................................................... PLAINTIF

DAN

YONG AH NGA ..................................................................... DEFENDAN

GUAMAN NO: S2-22-497-1996

ANTARA

FABER UNION SDN BHD ................................................................. PLAINTIF

DAN

CHEAH WAI LAN ............................................................................ DEFENDAN

JUDGMENT

PRELUDE

These are 2 of 6 suits brought by the plaintiffs against 6 different defendants on the ground that the defendants had breached a common settlement agreement and also for a claim for defamation against each of the defendants. By consent both these suits were to be taken before me. In each of the 2 suits the respective defendants had taken an application each to strike out the plaintiff's claim pursuant to O 18 r 19(a), (b), (c) and (d). The learned Deputy Registrar dismissed the said applications. Both the defendants herein have appealed against the Deputy Registrar's decision and by consent have decided to submit on Suit 22-492-96. The parties in Suit 22-497-96 have agreed to be bound by this decision.

FACTS

The plaintiffs are developers of a condominium unit. The defendant herein together with the other 5 are residents of an adjacent condominium. The settlement agreement referred to was as a result of the 6 defendants jointly challenging the Datuk Bandar for having given the planning approval to the plaintiffs to develop their land. The defendants brought certiorari proceedings against the Datuk Bandar. The plaintiffs applied to intervene and were joined as parties. A settlement agreement was then reached between the plaintiffs and the defendants whereby the defendants withdrew their certiorari applications with no liberty to file afresh. In return the plaintiffs undertook to do certain remedial works on the defendants' properties and further they also guaranteed that the construction and development of their property would not affect the structural safety of the defendants' condominium and/or the safety of the residents and their respective properties. There was a consent order in respect of the certiorari.

Subsequently there was piling and earthworks done by the plaintiffs and this caused structural damage to the defendants' condominiums. The plaintiffs have maintained that these were merely hair-line minor cracks. When the cracks appeared the defendants complained to the Datuk Bandar. The plaintiffs then stopped work voluntarily after which the Datuk Bandar issued a stop work order. After the Datuk Bandar had issued the stop work order, there were discussions between the Datuk Bandar and the defendants and the defendants were indeed given the impression that they would be consulted before the plaintiffs were allowed to proceed. However, the Datuk Bandar partially lifted the stop work order without consulting the defendants.

The defendants then took out another application for certiorari before Kadir Sulaiman J against the Datuk Bandar's partial lifting of the stop work order. The learned Judge then gave leave to apply to issue a writ of certiorari and also granted a stay pending hearing of the writ of certiorari. In the meantime, the plaintiffs applied to intervene and also to set aside the order for stay. They succeeded in their applications.

However, in those applications the plaintiffs did not state that the defendants had breached the settlement agreement by filing the application. In fact the issue of the settlement agreement whereby the defendants agreed not to issue any further certiorari was not raised before Kadir Sulaiman J.

The plaintiffs had however filed 6 suits against each of the 6 defendants asking for damages of RM22 million each for the breach of the settlement agreement and for alleged defamation. Subsequently the Datuk Bandar fully lifted the stop work order after Kadir Sulaiman J revoked the stay order.

When this happened the defendants then filed a third application for certiorari against the order of the Datuk Bandar in fully lifting the stop work order. This time Azmel J heard the application for leave and for a stay. When the inter partes application came up for hearing the plaintiffs took the objection that the defendants had no locus standi to intervene into matters between the Datuk Bandar and the developers. These same arguments were also canvassed before Kadir Sulaiman J.

Azmel J held that there was merit in the defendants' application per se provided the defendants could show locus standi. However, he held that the defendants had failed to show locus standi. Incidentally Kadir Sulaiman J held that the defendants had locus standi.

The Court of Appeal heard the defendants' appeal against Azmel J's decision. Even here the plaintiffs did not raise the issue of the breach of the settlement agreement. It was the decision of the Court of Appeal that rather than taking a public law remedy of certiorari which is a discretionary remedy the defendants ought to sue in tort or in contract. The Court of Appeal was of the view that the defendants ought to have asked for an injunction and the Court could have been in a better position to supervise the safety of the defendants and their properties. The defendants' appeal was dismissed but not on the ground that they had breached the settlement agreement. It must be noted that the settlement agreement gave parties liberty to apply. In the present proceedings, the action is based on the breach of the settlement agreement.

COURT'S FINDINGS

On the issue of the cause of action resting on defamation, the defendant herein contended that the word "defamation" itself does not appear in the suit.

To my mind an application to strike out a writ and claim will only be allowed in plain and obvious cases (see Ban Guan Sdn Bhd vUnited Malaysian Steel Mills Bhd [1977] 2 MLJ 52). Here the plaintiffs contend that in spite of the order of the Court that there was "no liberty to file afresh", the defendants had, in breach of the settlement agreement, proceeded to do so. As to whether there was indeed such a breach is a question that has to be decided at the full trial and the plaintiffs cannot be summarily shut out without being heard.

As to the argument of the defendant that by filing 6 different suits against the 6 defendants when all 6 could have been joined in one suit, I hold that it is the prerogative of the plaintiffs to do so. The defendants could, of course, apply to consolidate and at the trial move to sanction the plaintiffs by depriving them of 6 sets of costs. All these arguments are open to the defendants.

As for the cause of action in defamation, clearly the plaintiffs have failed to comply with Order 78 rules 2 and 3(1) of the Rules of the High Court 1980 which states:

rule 2:

"Before a writ in an action for libel is issued it must be indorsed with a statement giving sufficient particulars of the publications in respect of which the action is brought to enable them to be identified."

rule 3(1):

"(1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in respect of such sense."

From a reading of the statement of claim it would seem that the cause of action in defamation is based on libel. However, no particulars of the alleged libel have been stated. A general plea that statements made were defamatory, is insufficient to launch an action in defamation. I therefore order that the paragraphs relating to a cause of action in defamation should be struck out. Since the appeal is only partially allowed there will be no order as to costs.

Dated the 18th day of February 1998.

DATO' KAMALANATHAN RATNAM

JUDGE

HIGH COURT

KUALA LUMPUR

[Appeal partially allowed]