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
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
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.
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.
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").
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;
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
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
