A perpetual injunction may be granted to prevent the breach of an obligation existing in favor of the applicant, particularly when contractual obligations restrict property use to residential purposes.

JUDGMENT

Lim Hock Leng J:

Application For Final Injunctive Relief

[1] The 1st and 2nd Plaintiffs took out an Originating Summons ("OS") for a prohibitory injunction to restrain the Defendant from using or continuing to use his condominium unit No C-13-B2, Block C, Level 13, Type B2, at the Jesselton Residences in Kota Kinabalu, to carry out rental to tourists, vacationers, holiday-makers, lodgers, and others for commercial purposes.

[2] The 1st Plaintiff is the developer of the Jesselton Residences which comprises a shopping mall and 3 towers of residential units. It is the registered owner of the parcel of land on which the development is situate.

[3] The 2nd Plaintiff is in the property-related business, and it was appointed by the 1st Plaintiff to manage the retail and residential aspects of Jesselton Residences. It is registered with the Board of Valuers, Appraisers and Estate Agents and is licensed to undertake property valuation/consultancy, estate agency business, and property management.

[4] By a sale and purchase agreement dated 25 May 2017 ("the SPA"), the Defendant acquired the said condominium unit ("the unit") for RM1.6 million from the 1st Plaintiff, after the occupation certificate had been issued. He also executed the Deed of Mutual Covenants ("DMC") on the same day. These documents executed on the same day are to be read together, for they are part of one transaction. See the decision of the Court of Appeal in Prestaharta Sdn Bhd v. Ahmad Kamal Md Alif & Ors; [2016] 4 MLJ 39.

[5] The Defendant raised various arguments to counter the Plaintiffs' OS.

The Defendant's Preliminary Objection

[6] The Defendant referred to the inclusion of O 29 r 1, Rules of 2012 in the intitulement of the OS, and raised a preliminary objection. He pointed out that O 29 r 1, could only be invoked for interlocutory injunctions, not a perpetual injunction which the Plaintiff sought.

[7] The preliminary objection is unmeritorious. The Plaintiffs are entitled to include O 29 r 1, to cater for the possibility of applying for an interlocutory injunction in the event they are not able to secure an early hearing date for the OS.

[8] Further, the relevant provisions of the Specific Relief Act 1950 including s 52, and the Courts of Judicature Act 1964 are cited in the intitulement. Section 52 provides that "a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant."

[9] Furthermore, the Defendant suffered no prejudice for he could not be said to have been led astray. A perusal of his affidavits and submissions show that he was well aware of the perpetual injunction that the Plaintiffs sought.

[10] Order 1A of the Rules of 2012 makes clear the paramount duty of the Court . It provides: "In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules."

[11] In Pacific & Orient Insurance Co Berhad v. Mohamed Azmirullah Mohd Azan & Anor, an appeal was dismissed by the Deputy Registrar when it was called up for case management as the solicitors for the appellant were absent. The appellant then filed encl 4 to restore the appeal, and cited O 3 r 5, which is for the extension of time, instead of O 55 r 10(3) of the Rules of 2012 which governs applications for the re-hearing of an appeal where it has been dismissed on account of an absent party. It is clear that the facts of that case are quite different from those in the present case.

[12] Moreover, in Jyothy Laboratories Limited v. Perusahaan Bumi Tulin Sdn Bhd, Wong Kian Kheong JC (as he then was) - referring to O 2 r 1 — held that unless any non-compliance of the Rules of 2012 has caused a substantial miscarriage of justice or prejudice that cannot be cured by an amendment or an order of costs, the Court shall treat the non-compliance as a mere irregularity.

Whether There Was Any Misrepresentation And Whether A Trial Is Required

[13] Next, the D