JCW

Justin was the counsel for the appellant/defendant. Dissatisfied with the High Court’s decision, the Appellant appealed to the Court of Appeal and the High Court’s decision was overturned by the Court of Appeal. In this case, there was a Sale and Purchase Agreement of the development land and a Supplementary Agreement to deal with part of the purchase price of RM4 million to be paid in kind by contra of 2 units of property. The Supplementary Agreement provides that should the Purchaser (Appellant) fail to deliver the condominium units to the vendor (Respondent) within 36 months, the Appellant is liable to pay interest to the Respondent. The Appellant did not deliver the units to the Respondent within 36 months and the Respondent rescinded the agreement and demanded for payment of RM4 million. In this case, the Court of Appeal held that the respondent was only entitled to demand for the payment of interest for late delivery of condominium units, but not entitled to rescind the supplementary agreement purely because the appellant was not able to meet the deadline. A mere failure to meet the deadline of 36 month cannot in law amount to “total failure of consideration”. The appeal was decided in favour of the appellant/defendant.

Chooi Peng was the counsel for the appellant/judgment. In this landmark Court of Appeal’s decision, the Court set aside the service of the Bankruptcy Notice and Creditor’s Petition on the ground that the application for substituted service of the Bankruptcy Notice and Creditor’s Petition is invalid and ought to be dismissed; and consequently, the Order for substituted service of the Bankruptcy Notice and Creditor’s Petition are null and void. The Court of Appeal held that for bankruptcy proceedings, the mandatory provision under rule 18(1) of the Bankruptcy Rules 1969 is for an application to be made by way of summons in chambers and not via a “notice of application”. The judgment creditor’s filing of a notice of application as opposed to a summons in chambers is a clear breach of the mandatory provision and the breach is not a mere irregularity or formal defect which is capable of being cured under Section 131 of the Bankruptcy Act 1967.

Justin was the counsel for the Appellant in this Appeal before the Court of Appeal. This appeal involved a complicated building contract claim where the findings of the High Court were overturned by the Court of Appeal. The Court of Appeal allowed the Appeal and amongst other, held that :- (i) The Respondent/ Plaintiff’s complaint on the failure by the Appellant to produce a “Method Statement” is not pleaded and the High Court Judge ought not to have considered this ground at all; (ii) Further, a careful examination of Clause 15 of the Instruction to Tenderers will reveal that it is not the Appellant’s responsibility to produce the “Method Statement” but instead the responsibility of the Respondent; (iii) By various contemporaneous correspondences, the Appellant had made known to the Respondent of the delay of work and the only response was to request for an extension of time; (iv) The Respondent did not comply with the relevant clauses in the contract for extension of time; and (v) The complaint by the Respondent on the purchase of building materials is devoid of merits as the Respondent had agreed pursuant to Tender Questionnaire that all major building materials has to be purchased from the Appellant. The Court of Appeal allowed the Appeal and after evaluating the evidence, were constrained to rule that this is a fit and proper case for Appellate intervention.

Justin was the counsel for Syarikat Asal Construction (the Defendant). The Plaintiff contended that in order for the Defendant to maintain its bumiputra status, the Defendant had purportedly re-appointed the Plaintiff after his retirement as a Director without his consent and knowledge and the Defendant had been forging the Plaintiff’s signature. The Plaintiff therefore claimed that he was entitled to 37% from the profit earned from the relevant projects. After a full trial, the Court dismissed the Plaintiff’s claim and inter-alia held that the Plaintiff failed to prove forgery without any handwriting expert evidence and further, since the Plaintiff disclaimed and disagree he was a shareholder, he could not claim for any profits in the form of dividends. The case involved the Plaintiff claiming for damages as well as profits and claimed the Defendant forged his signature to re-elect him as director of the company. The High Court after a Full Trial found in favour of the Defendant, dismissing the Plaintiff’s claim due to the lack of evidence on the side of the Plaintiff.

Justin was the counsel for the first and second Respondent in the case. This case involved an application by the respondents to remove a liquidator appointed by the Courts upon the winding up of the company on the basis of inter-alia conflict of interest. In this unusual case, the liquidator had allowed 2 persons to attend the committee of inspection meeting. The Court ordered the removal of the Liquidator under s232(1) of the Companies Act 1965. Further, an issue was raised as to the altering of the Form 75 of the Companies Act 1965.

Justin was the counsel for the Plaintiff in this contempt application filed at the High Court. The Court found that the contempt was proven beyond reasonable doubt and the Defendants committed and still continued to commit acts of contempt of Court when they failed and/or continued to fail to comply with the Judgment and the Order, in respect of inter-alia the mandatory injunctive orders therein.

Alvin was the counsel for the Third Party, Antara Vista Sdn Bhd. This is a case on application by the Third Party to strike out the 1st Defendant’s claim vide a Third Party Notice against the Third Party. The Court held that there cannot be any misrepresentation when there is no underlying contract between the 1st Defendant and the Third Party for the sale of the land. This is because misrepresentation must be made either by the other contracting parties or by an agent acting within the scope of his authority. The Court also further held that the particulars of misrepresentation ought to be pleaded in detail in the pleadings and any defect on the pleadings cannot be made good by affidavit of evidence. The Third Party’s application to strike out the 1st Defendant third party action was successful because the 1st Defendant has no cause of action against the Third Party. Note : The 1st Defendant appealed to the Court of Appeal, but their appeal was not successful.

Justin was the counsel for the Defendants in this High Court matter. This is a novel and/ or landmark decision after a Trial involving, amongst others, the following findings/ issues :- (i) The legality of a sale of additional accessory carparks by the developer of units of condominium which comes up to 8-15 carparks each which are more than necessarily required for each condominium where the extra carparks are intended to be used for commercial rental to occupants of the residential condominium project for profit; (ii) The interpretation of Sections 34(2) and 69 of the Strata Titles Act 1985 and whether the word "dealt" in Sections 34(2) and 69 of the said Act include the act of "renting out" or "tenanting out", which was also answered in the affirmative; (iii) The interpretation of the phrase "used" or "intended to be used in conjunction with" in the definition of an "accessory parcel" in Section 4 of the Strata Titles Act will prohibit such acts of renting out not intended to be used with the main condominium unit; (iv) That the said sale of carparks contravened the Town and Country Planning Act 1976 by reason of breach of conditions of the Development Order; (v) There was no lawful consideration given under Section 24 of the Contracts Act 1950 for the sale of the said carparks; (vi) The issue of defeasibility of titles of the accessory parks where Section 5(1) of the Strata Titles Act 1985 read together with Section 340 of the National Land Code, where the Court held that by reason of the unlawful transfer of the accessory carparks, the registration of 394 accessory carparks in the name of the Plaintiff is unlawful and offended the Strata Titles Act, the Town and Country Planning Act and Sections 24 (a), (b) & (c) of the Contracts Act; and (vii) There was insufficient visitors' carparks for the Project and that some of these accessory carparks should be "Common Property" for the benefit of the Palm Spring Condominiums. We believe that this is the first time that a case of this nature involving use of accessory carparks in a condominium for a commercial purpose and the legality of transfer of titles of a big number of carparks attached to a single unit of condominium, is decided in Malaysia. The High Court decided in favour of the Defendants where in essence the Plaintiff’s claim was dismissed and the 1st Defendant’s Counterclaim was allowed. Note: This High Court decision has been set aside by the Court of Appeal due to the issue of validity of the JMB and the case has been refiled by the Management Corporation.