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2025 MarsdenLR 3593
HIGH COURT MALAYA KUALA LUMPUR
GEK SOK LAN @ GOAY SOOK LAN – Appellant
Versus
VENUS ASSETS SDN BHD (ENCLS 74 & 76) – Respondent
[Civil Suit No: WA-22NCvC-555-08/2021]
Claims arising from a Sale and Purchase Agreement accrue at the time of execution, and amendments that change the character of the original claim or are made in bad faith are impermissible.
Headnote:(A) Housing Development (Control and Licensing) Act 1966 - Housing Development (Control and Licensing) Regulations 1989 - Limitation Act 1953 - Application to strike out parts of Statement of Claim and to amend Writ of Summons - Plaintiff claims damages for late delivery of property purchased from defendant - Court found plaintiff's claim time-barred as cause of action accrued on execution of Sale and Purchase Agreement on 22 July 2013 - Application to amend dismissed due to inordinate delay and lack of bona fide intent, with potential to radically change the character of the suit. (Paras 28, 39, 66)
(B) Striking out pleadings - Court may strike out claims that disclose no reasonable cause of action or are frivolous or vexatious - Application should only be made in plain and obvious cases. (Paras 24, 25)
(C) Amendment of pleadings - Amendments should not substantially change the character of the original claim or be made as a tactical maneuver to circumvent prior court decisions. (Paras 61, 62)
Facts of the case:
The plaintiff entered a Sale and Purchase Agreement with the defendant for a property, claiming damages for late delivery and alleging breaches of statutory obligations. The defendant claimed the action was time-barred due to an exemption obtained from the Minister.
Findings of Court:
The plaintiff's claims were found to be time-barred, and the application to amend was dismissed due to inordinate delay and lack of merit.
Issues: Whether the plaintiff's claims were time-barred and if the amendments sought were permissible.
Ratio Decidendi: The court ruled that the cause of action accrued at the time of the agreement, and amendments that change the nature of the claim or are made in bad faith should not be allowed.
Result: Application to strike out allowed; application to amend dismissed.
(Enclosures 74 and 76)
Preliminary
[1] There are two (2) applications before me. They are as follows:
(a) The first is encl 74, in which the defendant moves this court pursuant to O 18 r 19(1)(a), (b) and/or (d) of the Rules of court 2012 ("RC 2012") to strike out paras 8, 9, 10, 11, 12 and relief no 1 of the Statement of Claim dated 14 August 2021; and
(b) Secondly, there is encl 76, which is the plaintiff's application to amend its Writ of Summons and Statement of Claim dated 14 August 2021.
[2] The two applications are heard together.
[3] Meanwhile, in the main claim, the plaintiff seeks damages for the late delivery of a property purchased from the defendant. In this regard, the plaintiff is claiming the following relief:
(a) Damages for late delivery amounting to RM1,188,451.72 in the event this court deems that the vacant possession of the property should be given 36 months from the date of the Sales and Purchase Agreement, that is on or before 22 July 2016;
(b) In the alternative, the plaintiffs claim is for damages for late delivery amounting to RM374,910.58 calculated from the vacant possession period of 54 month in accordance with the terms of the Sale and Purchase Agreement;
(c) Loss of rental amounting to RM85,000.00 for the period from March 2019 till July 2019;
(d) Interest on all the above; and
(e) A declaration that the exemption obtained by the defendant in respect of the Schedule H of the Housing Development (Control and Licensing) Regulations for the private residences is void.
[4] The plaintiff filed this action on 14 August 2021. Nevertheless, on 9 September 2022, this court stayed the action for the purpose of awaiting the disposal of a Judicial Review Application No WA-25- 401-12/2020 ("Judicial Review Application"). It was the defendant who filed the stay application in this court.
[5] In the Judicial Review Application, two purchasers sought for a declaration that the decision of the Minister of Housing and Local Government was void, illegal and contrary to the Housing Development (Control and Licensing) Act 1966 and the Housing Development (Control and Licensing) Regulations 1989, as well as a declaration that the Sale and Purchase Agreement executed was illegal and contrary to these provisions.
[6] This case has been set for trial from 28 July 2025 to 31 July 2025. I gave the trial dates much earlier during a Case Management Session on 23 February 2023 in order to ensure that all positions of law had been resolved by then.
[7] As a result of a Case Management Session with the parties on 13 March 2023, I learnt that the Special Powers Division of the High court had dismissed the Judicial Review application. There was also a request by the parties to defer the trial of this case in anticipation of the outcome of the Federal court case of Obata- Ambak Holdings Sdn Bhd v. Prema Bonanza Sdn Bhd & Other Appeals.
[8] During a Case Management Session on 23 August 2024, I was informed by the parties that the Federal court had handed down its decision on 26 July 2024. This case has now been reported as Obata-Ambak Holdings Sdn Bhd v. Prema Bonanza Sdn Bhd & Other Appeals ; [2024] 5 MLJ 897; [2024] 8 CLJ 519; [2024] 6 AMR 813.
[9] Then, suddenly, came encl 74 on 11 November 2024 and encl 76 on 18 November 2024.
An Overview Of The Facts Of The Case
[10] The plaintiff and the developer, namely the defendant, entered into a Sale and Purchase Agreement dated 22 July 2013, whereby the plaintiff agreed to purchase a private residential unit ("the property") within the "Defendant's Four Seasons Private Residences Kuala Lumpur" development for RM5,408,800.00.
[11] It was the defendant who drafted the SPA.
[12] According to Recital D of the SPA, the defendant obtained an exemption from the Ministry of Housing and Local Government from the requirement to adopt the form prescribed in Schedule H of the Housing Development (Control and Licensing) Regulations 1989 and Housing Development (Control and Lic
