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2021 MarsdenLR 432
HIGH COURT MALAYA JOHOR BAHRU
SIA KIE WON & ANOR – Appellant
Versus
SGI CORPORATE SERVICES SDN BHD (ENCL 1) – Respondent
[Originating Summons No: JA-24NCVC-168-03/2020]
The court reaffirmed that ownership transfers result in license termination, and assignments to banks do not negate the owner's legal standing to seek possession.
Headnote:(A) Rules of 2012 – O 89 r 1 and O 92 r 4 – Application for possession of property – Plaintiffs, owners of the Unit, seek eviction of Defendant without consent after discovering unauthorized occupation – Summary proceedings established for expedited eviction of trespassers. (Paras 1-6)
(B) Burden of proof in summary proceedings – Defendant argued occupation was with Vendor's consent, but the Court confirmed termination of any license upon sale completion. (Paras 7-8)
(C) Legal standing of Plaintiffs – Court reaffirms assignment of property as charge, not absolute transfer, allowing Plaintiffs to maintain the claim despite assigning rights for financing. (Paras 12-12.2)
(D) Defendant’s claims rejected – Absence of evidence supporting the Defendant's allegations and credibility issues led to dismissal of claims. (Paras 13-15) (E)
Result: Application allowed with costs awarded to Plaintiffs. (Para 17)
JUDGMENT
[Enclosure 1]
Introduction
[1] This is an application by the Plaintiffs under O 89 r 1 and O 92 r 4 of the Rules of 2012 ("ROC") to recover possession of property identified as Unit 23-G, Jalan Tun Abdul Razak Susur 4, 80000 Johor Bahru ("the Unit") from the Defendant.
Background Facts
[2] The Plaintiffs are the owners of the Unit. They purchased the Unit from M1 Enterprise Sdn Bhd ("the Vendor") and obtained financing from Malayan Banking Berhad. As security for the loan, the Unit was assigned to Malayan Banking Berhad. The Plaintiffs claim that the Defendant is occupying the Unit without the Plaintiffs' consent or knowledge.
[3] The Plaintiffs obtained vacant possession from the Vendor on 1 August 2012 and thereafter, rented out the Unit to Asia Jaya Enterprise Sdn Bhd ("the Tenant"). The tenancy was for a term of three (3) years expiring on 31 July 2015.
[4] The Tenant vacated the Unit sometime in April 2015, about three months before the expiry of the tenancy. Thereafter, the Unit was not rented out to any entity.
[5] Sometime in November/December 2019, the Plaintiffs discovered that the Unit was being occupied by a company not known to the Plaintiffs. The Plaintiffs then issued a letter through their solicitors to the occupier to vacate the Unit. The Plaintiffs only knew the identity of the Defendant as the occupier through a stamp placed on the acknowledgement receipt of the copy of the solicitor's letter. (Exhibit SKW-4 - Plaintiffs' Affidavit in Support.)
[6] When the Defendant did not respond to the Plaintiffs' solicitors' letter to vacate the Unit, the Plaintiffs filed this Originating Summons.
Summary Possession Under Order 89 ROC
[7] The law on summary proceedings for possession of land is well settled.
[I] In the case of Bohari Taib & Ors v. Pengarah Tanah & Galian Selangor, , the Supreme Court held that an application for summary procedure for possession of land is to enable registered owners or proprietors to quickly evict trespassers or squatters. It is similar to the procedure in a summary judgment application, whereby the burden lies on the Defendant to prove that the procedure is unsuitable by demonstrating triable issues.
[II] The High Court in Toh Kheng Heng & Anor v. Ahmad Fauzi bin Mohd Taufek, , in dealing with similar facts to this case - where it was alleged by the Defendant that consent or licence was given by the previous owner - in an O 89 application, held that:
"Having considered the law and applied it to the facts of the present case, I was of the view that the Defendant had no basis or claim whatsoever upon which he could resist the application by the Plaintiffs for vacant possession of the land. Right from the inception of his so- called claim in connection with the land through his parents in 1966 up to the present, there had not been any dealing whatsoever between his parents and himself, on the one hand, and the landowners, past or present, on the other. Upon the termination of the licence by a valid notice to quit, his tenuous link with the land, which was dependent upon the landowners' consent, came to an effective end. In my view, this was a clear case where O 89 was applicable..."
[III] The Supreme Court in the case of Hotel Ambassador (M) Sdn Bhd v. Seapower (M) Sdn Bhd, upheld the decision that where the occupiers are bare licencees, service of the notice to quit terminated the licence and made the occupiers trespassers.
Defendant's Submission
[8] [i] The Defendant submits that it occupied the Unit with the consent of M1 Enterprise ie the Vendor who sold the Unit to the Plaintiffs.
[ii] This Court finds that even if the Defendant occupied the Unit with the consent of the Plaintiffs' Vendors, such licence is automatically terminated upon completion of the sale of the Unit to the Purchaser. The Defendant alleges that the Plaintiffs were aware of the Defendant's occupation of the Unit by quoting paras 24 and 25 of the Sales and Purchase Agreement ("SPA') between the Vend
