TAN TIEN SENG AND ORS V. GROBINA RESORTS SDN BHD

DALAM MAHKAMAH TINGGI MALAYA DI MELAKA

SAMAN PEMULA NO. 24-537 TAHUN 2000

ANTARA

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 A declaration that the plaintiffs have effectively rescinded the agreement ab initio;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.