JCW

[Setting aside a consent order – whether a fresh suit required] Justin and Christina Chin was counsel for the Appellant. The Appellant applied to strike out the Suit at the High Court on the basis that the Suit was an attempt to enforce a Consent Order the previous Suit and ought to have been filed in the previous Suit. The High Court dismissed the application. The Court of Appeal dismissed the appeal based on inter -alia the ground that as the terms of the consent order are not entirely identical to the reliefs sought in the initial action, the consent order went beyond the scope of the action and therefore a fresh and independent action (Originating Summons in this case) was necessary.

[Disciplinary Board proceedings – Appeal against finding by DB] Justin and Pang Kwong Hang were the counsel for the Appellant. The Appellant , was found guilty of misconduct by the Disciplinary Board and amongst others also ordered to pay a fine and restitute RM398,000 to the Respondent. The Appellant appealed to the High Court which dismissed the appeal followed by this appeal to the Court of Appeal The said Court of Appeal Grounds of Judgment is important for 2 aspects : (i) It is not the function of the DC or the DB under the law to revisit any matters, issues or disputes which has been ventilated and determined in Court (paragraph 38 of the Grounds). The Court inter-alia held that ".. we agree with the learned counsel for the Appellant that the whole purpose of the Complaint was to impeach the relevant court orders, which the First Respondent had attempted to do in Suit 318, but failed".(paragraph 30 of the Grounds) (ii) This COA case may be the first case law in respect of the application of Section 103C(2) of the Legal Profession Act 1976 that the DB may make an order for restitution if it is established that such monies are held by the Appellant in his professional capacity and the First Respondent is entitled to the return of the such monies thereof.  The COA held that "It is imperative to note that the sum of RM398,000.00 ordered to be restituted by the DB was part of a total RM645,566.00 judgment sum in the 25/11/2011 Order. The judgment sum was assessed and awarded by the court to the Appellant as damages for trespass committed by the First Respondent against him. The money was purported to be received by the Appellant in his personal capacity as a private litigant. As such, we are of the view that the issue of restitution to the First Respondent does not arise at all based on the facts in the present case" ( paragraphs 52 and 53 of the Grounds) 

[Housing Developers, LAD and CCC issue] Justin, Alvin and Pei Sin were counsel for the 1st and 2nd Defendants in t this case In this case the plaintiffs were buyers of residential units in a housing project that was developed by the first defendant on land owned by the second defendant and in which project the third defendant was the architect. All the plaintiffs had complained, inter alia, that vacant possession of their units had not been delivered to them in accordance with the terms of their respective sale and purchase agreements and the architect had been negligent in not issuing a full certificate of completion and compliance (‘CCC’) in Form F to enable the delivery of vacant possession to take place but had only issued a partial CCC in Form F1 and that his actions had thereby interfered with the due performance of the SPAs. Some of the plaintiffs had their claims resolved before the Housing Tribunal and therefore dropped their claims in the instant suit, while the remaining plaintiffs entered into settlement agreements with the first defendant as to payment of liquidated and ascertained damages (‘LAD’) after vacant possession was delivered to them/ The High Court in this case struck out the plaintiffs' claim based on Order 18 rule 19 of the Rules of Court 2012 and provided extensive Grounds of Judgment for the same. The Court held amongst others as follows, CCC Issue (i) Although the title of the Form was "Form F1", the Architect has certified that Menara Tower 1 was built in accordance with the requirements of Sections 25 to 28 of YYBKS 1986 ( Selangor Uniform By Laws), He has certified that the building is fit and ready for occupation (paragraph 69 of GOJ) (ii) Based on Clause 25(3) of the SPA ( which provides that any cause of action for LAD shall accrue on the date the Purchaser takes vacant possession), the right of the plaintiffs to institute their claim only arise when vacant possession has been given to them. As they themselves are attempting to  re-open the issue of late delivery, they have surely admitted that vacant possession of the units had been given. They cannot blow hot and cold at the same time ( paragraphs 73 and 74 of the GOJ). (iii) Vacant possession had also been given as the Joint Management Body was set up vide Section 17 of the Strata Management Act (paragraph 71 of the GOJ) Housing Tribunal Issue (iv) Having started proceedings before the Housing Tribunal and finalizing the claims in those proceedings, the plaintiffs cannot pursue any further claims and re-open the disputes as the law in PJD/Ang Ming Lee ought not to apply retrospectively (paragraphs 22, 23 and 24 of the GOJ) Settlement Agreement (v) The Learned Judge held that the decision in Pinpoint Consortium [2020] 5 CLJ 281 and Obata Ombak [201] 10 CLJ 596 ought to be preferred to Leong Keng Chiang [2021] MLJU 714 on this point and the Settlement Agreement is binding on the plaintiffs and therefore bars the plaintiffs from making further claims for LAD ( paragraph 58 of the GOJ).  (vi) The PJD case issue of booking fee and Ang Ming Lee case issue of an extension by the controller is overtaken by the settlement agreement (vii) The Court is aware that HDA is a social legislation but this does not mean the Court can disregard any settlement agreement and "the sword of Justice" cuts both ways (paragraphs 76 and 777of the GOJ). Ang Ming Lee distinguished (vi) As the Controller had granted the amendment to the SPA before the contract is concluded , the decision of Ang Ming Lee do not apply to the facts here ( paragraph 50 of the GOJ)

(Summary Judgment) Justin added for the Defendant in this case. The Defendant applied for summary judgment on the counterclaim which was dismissed by the Sessions Court. The High Court allowed the appeal by the defendant on the basis amongst others that -The jurat by in the plaintiff’s affidavit is defective and did not comply with Order 41 rule 1(8) of the rules of court -The plaintiffs did not plead that the advance payments made by the defendant were on a gratuitous basis

[Summary Judgment – claim for specific sum- compromise arrangement] Justin was the counsel for the Defendant. The Court dismissed the Summary Judgment application and amongst others held that the claim before this court can be distinguished from normal straighforward cases simply with the existence of the compromise set off arrangement which was discussed at the August 2018 meeting. And the Court found that the defendants have sufficiently raised the following triable issues: (a)the lack of clarity of the claimed sum; and (b)the compromise arrangement between the plaintiff and the first defendant, which was discussed at the August 2018 meeting.

[Amendment application – delay] Justin acted as counsel for the Appellant. The High Court dismissed the appeal against the refusal by the sessions court to allow an application to amend the defence on the basis that there was a delay where amongst others the Court held that delay must be looked contextually and not in isolation. [Note : ON appeal, the Court of Appeal vide Civil Appeal No. J-04(IM)(NCVC)-494-12/2020 had allowed the appeal and the amendment]

[Amendment of an Order to reduce the sum awarded] Justin was counsel for the Plaintiff. The 1st Defendant applied vide notice of application dated 14/11/2018 for leave to amongst others amend the Court Order dated 25/11/2011 to reduce the sum awarded from RM645.566 to RM75,566. The High Court allowed the 1st Defendant’s application although the Plaintiff raised that an amendment application is not proper and it is in reality an attempt to set aside the Court Order which was already raised in a previous separate Suit 318 and the matter was res judicata. The Court held amongst others that it had the inherent powers to do so. [Note : The Court of Appeal in Civil Appeal No. W-03(IM)(NVCV)-50-08/2020 has overturned the High Court decision on 17/12/2021]

[Claim for specific performance in respect of a single sale & purchase agreement where not all joint purchasers are before the Court – striking out] Justin & Christina Chin was the counsel for the Defendant. The Plaintiffs and 2 others jointly purchased a piece of land Lot 4562 and another land Lot vide 2 respective sale and purchase agreements. The Defendant raised amongst others that the Plaintiffs has no locus standi to proceed for specific performance without the other 2 co-purchasers The Defendant applied to strike out the case which was allowed by the Court and the Court amongst others held that an undivided/joint owner of the land does not have locus standi to sue without joining other joint owners and hence, the Plaintiffs who have “equal share” in both lands have no locus standi here without including the other joint purchasers.