JCW

[Stay of proceedings pending appeal in another suit to set aside consent judgment] Justin was the counsel for the Defendant. This is a case involving an application by the Plaintiff to stay the execution of a consent order pending an appeal in another suit to set aside the said consent judgment (“setting aside suit”). In dismissing the Plaintiff’s application, the Court finds that since the Plaintiff failed to apply for a stay of the order in the setting aside suit, the order of the setting aside suit takes full effect and the Plaintiff is estopped from raising it in the present application to stay the execution of the consent order. The Court further held that the execution of order will not cause nugatoriness towards the appeal of the setting aside suit and it can be compensation by damages. Consequently, there are no special circumstances justifying a stay of the said consent judgment.

[Contempt of Court – Breach of order of court] Justin was the counsel for the Plaintiff, Ting Chuen Peng. This is a case involving an application to contempt against the Defendant for breaching an ex-parte order of court which was extended to an ad-interim order for a quia timet injunction, amongst others, restraining the Defendant from commencing any action to stop and/or frustrate an EGM of Dong Zong (“Injunction Order”). Despite the said order, the Court finds that one of the alleged contemnor filed a suit in Shah Alam High Court in breach of the said order and acted as the agent of the Defendant in doing so. In this case, the Court finds that not all cases prosecuted in court whether by way of criminal prosecution or civil proceedings requires direct evidence to be mandatory and took the view that circumstantial evidence can be used for the purpose of proving contempt. The Court held that the Defendant and another contemnor are guilty of contempt and sentenced the defendant for a term of imprisonment for 30 days and fined the other alleged contemnor.

[Sale and Purchase Agreement – Vendor exercised right to vitiate an agreement entered without free consent and undue influence – Vendor liable to refund monies received under a voidable contract] Justin and Chooi Peng were the counsel for the Appellant. This is a case involving an appeal against the High Court decision in dismissing the Appellant’s claim for specific performance of a sale and purchase agreement and an alternative claim for the return of monies paid pursuant to the said agreement. The Court of Appeal allowed the Appellant’s alternative claim. In this appeal, the Court of Appeal allows part of the appeal and one of the issue was whether the Respondent can absolve her responsibility by blaming a third party where the third party was given blanket authority in respect of the bank account.

[Disqualifying solicitors from representing in winding up proceedings due to conflict of interest] Justin was the counsel for the Petitioner and was assisted by Chooi Peng. This is a case involving an application to disqualify a firm of solicitors from representing a party in a winding up proceedings due to conflict of interest. The Court held there was an absence of particulars of the meeting which took place between the Petitioner and the solicitors and the Court was not satisfied that the Petitioner showed a strong case to disqualify the solicitors

[Summary Judgment – Tenancy Agreement – Specific Performance to reinstate the premises to original state and condition when handing over vacant possession] Justin was the counsel for the Plaintiffs, the owner of the premises. In this case, the Plaintiffs rented 2 adjoining unit of premises to the Defendant and the Defendant removed the partition wall between the 2 premises. A tenancy agreement was entered into with specific terms that the Defendant is to reinstate the premises and give vacant possession to the Plaintiffs upon expiration of the tenancy agreement. The tenancy agreement was subsequently terminated and the Defendant returned the keys of the premises without reinstating the premises in its original state. The Plaintiffs filed an application for summary judgment against the Defendant to reinstate the premises to original state and subsequently to give vacant possession of the premises after the reinstatement. The Plaintiffs’ application for summary judgment was allowed by the Court and the Court held that there are no triable issues.

[Building Contract – Whether the construction works is not in accordance with construction drawings prepared by engineer] Justin was the counsel for Stronpac Contruction Sdn Bhd, the Appellant (Defendant). In this case, the Plaintiff alleged that the Defendant constructed 61 units of houses with discrepancy of 2 sq.ft. per unit (38 sq.ft. instead of 40 sq.ft.) causing the Plaintiff to suffer losses as sale price of the houses was reduced. As such, the Plaintiff claimed that the Defendant failed to carry out the construction works in accordance with the construction drawings prepared by the engineer and consequently breached three (3) construction contracts. The claim was allowed by the High Court and was subsequently overturned by the Court of Appeal. In this case, the Court of Appeal allowed the appeal and held that there was no clause in the contract specifically provides that the houses built must be 40 sq.ft. and that the Defendant had constructed the houses based on the construction drawings given to them which was specified that the length of houses to be built was 38 feet. The Court also finds that the Plaintiff failed to produce any of the plans which they had relied on and throughout the construction period and there was no evidence of non-compliance and delay by the Defendant.

[striking out – purchaser sued developer based on an allegation that his unit had been “substituted” with another unit] Justin and Alvin acted for the defendant in this case and successfully struck out the plaintiff’s claim. The High Court held that the plaintiff’s claim ought to be struck out under Order 18 rule 19 (1) of the Rules of Court 2012. The plaintiff submitted that the defendant had unilaterally and without the plaintiff’s knowledge unlawfully changed and/or substituted the parcel with a different unit ie LG-29. The plaintiff insisted for LG-30 not LG-29 for reasons that the notice of delivery of vacant possession dated 8 October 2009 was issued to the plaintiff in respect of LG-30 and the plaintiff took possession of LG-30 only. The certificate of fitness was also duly issued to the plaintiff for LG-30 and not any other units. On the other hand the defendant explained that the parcel described as LG-30 in the SPA had been relocated and re-designated as LG-29 due to the amendment to the building plan on 4 August 2009 and was approved by MPSJ. Based on the amended building plan, the original location of the LG-30 had been replaced by ‘Switch & Meter Room’ and the staircase. The location of LG-29 on the amended building plan is the nearest and next to the original location with the similar size of the parcel was allocated to the plaintiff. The Court is of the view that such amendment and substitution of LG-30 by the defendant was meant for an expedient and necessary purpose since the building plan had been approved by MPSJ and the original LG-30 is no longer in existence since it had already been replaced by ‘Switch & Meter Room’ and staircase and cannot be used anymore for the parcel. Therefore based on cl 10.1 the building plan is subject to any amendments, variations, modifications and adjustment the position of LG-30 would include changing of its position and permits the defendant to substitute the plaintiff’s unit to another unit. Therefore, such amendment and substitution was meant for ‘expedient or necessary’ purpose and does not amounts to an unjust enrichment by the defendant or otherwise to benefit the defendant by giving ownership of LG-30 to the defendant. Based on the above clear terms, the defendant has a right to amend, vary, substitute, reconstruct and/or in any manner deal with the parcel unit without the need to seek consent from the plaintiff. On the same footing the plaintiff shall accept any changes, variation, modification and any adjustment of the parcel as the position and description of the parcel are not guaranteed to be correct. It is settled law that parties are bound by the terms of the contract that they have entered into. In the present case, the Court held that defendant has fulfilled its contractual obligation under the contract by giving LG-29 with almost similar size to the plaintiff after the building plan has been amended subsequent to the signing of the SPA.

[Derivative Action – leave to commence derivative action on behalf of the company] Alvin was the counsel for the Defendant, Mutual Life Sdn Bhd. This is a case involving an application filed under Section 181A, 181B, 181C, 181D and 181E of the Companies Act 1965 by the Plaintiffs, the shareholders of the Defendant, seeking leave to commence derivative action for and on behalf of the Defendant against the other directors of the Defendant. The Plaintiffs alleged that the Defendants, either individually or in concert, have unjustly enriched themselves and to the detriment of the Defendant. The Court dismissed the Plaintiffs’ leave application and inter-alia held that the proposed action was for the collateral purpose to achieve the personal gains and were merely using the company for the same