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2022 MarsdenLR 2773
HIGH COURT MALAYA KUALA LUMPUR
ZABARIRIYAH ALI & ORS – Appellant
Versus
DATUK BANDAR KUALA LUMPUR – Respondent
[Originating Summons No: WA-24NCvC-2181-11/2021]
Application for specific performance of an agreement requires evidence of a clear commitment and legitimate expectation; delays must be accounted for within the context of unforeseen circumstances like the pandemic but do not justify failure to perform.
Headnote:(A) Specific Relief Act 1950 – Sections 44 and 45 – Application for specific performance against the Defendant to complete the Project and deliver vacant possession – Plaintiffs were stall operators at the Pusat Penjaja. An agreement was reached for works to commence, which was to be completed by 15 September 2020 but remained unfinished as of November 2021 – Court established that an agreement existed based on provided communications and the principle of legitimate expectation – Defendant's contention regarding delays attributed to the Covid-19 pandemic was acknowledged but not accepted as an absolute excuse for failure to perform within the agreed timeframe – Damages assessed in fairness from 1 November 2021 onward. (Paras 9-19).
(B)
Judicial review – Application for specific performance does not require it as it does not challenge a decision but seeks enforcement of an agreement. (Paras 7-8).
(C)
Locus Standi – Plaintiffs’ ability to bring claim was intact despite expired licenses, as the Defendant’s actions hindered their renewal. (Paras 10-10).
(D)
Doctrine of Legitimate Expectation – The representation made by the Defendant created a legitimate expectation for the Plaintiffs. (Paras 13-15).
JUDGMENT
Introduction
[1] This was the Plaintiffs' application ("this Application") for an order of specific performance against the Defendant to complete the Menaiktaraf Pusat Penjaja Statik Lorong Ara Kiri 3, Lucky Garden, Bangsar ("the Project"), to deliver vacant possession to the Plaintiffs; and to pay special damages for loss of income on the part of the Plaintiffs as a result of the delay by the Defendant in completing the Project.
The Factual Background
[2] In February 2020, the Defendant, the Datuk Bandar Kuala Lumpur, visited the Pusat Penjaja Statik Lorong Ara Kiri 3, Lucky Garden, Bangsar ("the Pusat Penjaja") and suggested that the Pusat Penjaja be renovated and upgraded to enhance its image.
[3] A meeting was held by the Defendant on 15 May 2020 at his office, and an agreement was reached between the Defendant, and the Plaintiffs, who were stall operators at the Pusat Penjaja, for the Project to commence.
[4] The works commenced on 15 June 2020, and were to be completed on or before 15 September 2020. The Plaintiffs ceased business operations and surrendered vacant possession of the site to the Defendant on 20 June 2020.
[5] The Defendant had failed to complete the Project by the prescribed date of 15 September 2020, and despite an extension of time, the project was still uncompleted in November 2021. As a result thereof, the Plaintiffs filed this Application on 2 November 2021.
[6] This Application was allowed for the following reasons.
Contentions, Evaluation, And Findings
[7] At the outset, the Defendant contended that the Plaintiffs had used the wrong mode of commencement of proceedings, and that this Application should have been made by way of judicial review, pursuant to O 53 of the Rules of 2012 ("Rules of ").
[8] In my view, this argument was untenable since an application for judicial review is made by a person who is adversely affected by the decision, action or omission in relation to the exercise of a public duty or function.
[9] In the present case, the Plaintiffs had no intention of having the Court review any decision made by the Defendant. What they sought was specific performance of the agreement reached on 15 May 2020 between the Plaintiffs and the Defendant, pursuant to ss 44 and 45 of the Specific Relief Act 1950 , both of which read:
Section 44 - Power to order public servants and others to do certain specific acts
(1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any Court subordinate to the High Court:
Provided that:
(a) an application for such an order be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing, as the case may be, of the said specific act;
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Section 45 - Application how made and procedure
Every application under s 44 must be founded on an affidavit of the person injured, stating his right in the matter in question, his demand of justice, and the denial thereof; and a Judge may, in his discretion, make the order applied for absolute in the first instance, or refuse it, or grant a rule to show cause why the order applied for should not be made. If, in the last case, the person, Court, or corporation complained of shows no sufficient cause, the Judge may first make an order in the alternative, either to do or forbear the act mentioned in the order, or to signify some reason to the contrary and make an answer thereto by such day as the Judge fixes in this behalf.
[10] The Defendant had also raised the issue of the Plaintiffs' locus, or lack thereof, in that, their licences as stall operators had expired by the time they had commenced this action. In my view, this averment was an unfair one as the Plaintiffs, who were in possession of valid licences during the material time in May 2020, were unable to renew their licences due to the fact that the Project had not been complete
