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2021 MarsdenLR 1510
HIGH COURT MALAYA SHAH ALAM
CEKAP MESRA DEVELOPMENT SDN BHD – Appellant
Versus
CHE SEMAN ABDULLAH – Respondent
[Civil Appeal No: BA-12ANCVC-91-05-2021]
The court reaffirmed that actions for breach of contract or negligence must be filed within the statutory limitation period, otherwise they are time-barred.
Headnote:(A) Limitation Act 1953 – Section 6 – Sale and Purchase Agreement – Rectification of defects – Plaintiff filed claim against the defendant, developer, for defects in a property purchased under a sale and purchase agreement, but the court found that the claim was time-barred due to statutory limitation – Defects were reported after the defect liability period ended on 7 December 2003, with the action filed in January 2021, exceeding the 6-year limitation. (Paras 12-22)
(B) Civil Procedure – Striking out applications – The court held that an action can be struck out for being out of time, frivolous, scandalous and vexatious, thus allowing the defendant's appeal. (Paras 28-31)
Facts of the case: The plaintiff alleged recurring defects in a property purchased from the defendant, engaged an engineer, and sought resolution for over 10 years before filing a suit in 2021. (Paras 4-6)
Findings of Court: The plaintiff's claim was barred by the Limitation Act as it was filed long after the defect liability period. (Paras 23-32)
Issues: The main issue was whether the plaintiff had timely brought the action against the defendant regarding the defect liability period and the limitation of actions. (Paras 7-31)
Ratio Decidendi: The court determined that an undisputed timeline established the claims' untimeliness, and the plaintiff's action was deemed frivolous and an abuse of court process. (Paras 23-28)
Result: Appeal allowed, the plaintiff's action struck out.
JUDGMENT
Introduction
[1] This is an appeal filed by the defendant (at the court below) against the decision of the Sessions court Judge (hereafter 'SCJ') dismissing its application (Enclosure 7 at the court below) to strike out the plaintiff's claim pursuant to O 18 r 19(a) or (b) and/or (d) and/or O 92 of the Rules of (hereafter 'ROC').
[2] On 15 September 2021, this court, after having heard the oral submissions and having read the written submissions of the respective counsels, allowed the defendant's appeal. The reasons for the decision are set out below. The parties shall hereafter be referred to according to their positions as they were at the court below.
Brief Facts
[3] The plaintiff and the defendant entered into a sale and purchase agreement dated 6 March 2000 (hereafter 'the SPA'). The plaintiff agreed to purchase and the defendant (as developer) agreed to sell a double storey house (Cluster Bungalow) known as Lot 159 in the housing development known as "Danau Putra" having a postal address as No 8, Jalan Putra Perdana 8/9, Taman Putra Perdana, 47100 Puchong, Selangor Darul Ehsan (hereafter 'the said property') for a purchase price of RM152,400.00. The said property was completed in 2002 and vacant possession of the said property was delivered to the plaintiff on 7 June 2002.
[4] After the said property was delivered to the plaintiff, the plaintiff found many defects in the said property. The plaintiff complained to the defendant about the defects found in the said property. The defendant rectified those defects. However, the plaintiff averred the defects continued to reoccur after the defendant had rectified the defects. The plaintiff continued raising his dissatisfaction of the defendant's rectification works for several years.
[5] In 2009, the plaintiff engaged a professional engineer to investigate what could have caused the recurrence of the defects. On 15 April 2009, the plaintiff was informed by the professional engineer that the recurrence of the defects was due to the failure of structural support for the dead and live loads of the said property. The plaintiff then made complaints to the Ministry of Housing and several local authorities about those findings concerning the ill-constructed structural support of the said property which was built by the defendant, but to no avail. The plaintiff was not satisfied with authorities' responses and the manner they had attended to his complaints.
[6] The plaintiff spent approximately 10 years seeking the authorities to intervene and resolve his grievances after he had discovered the cause of the defects in 2009. The plaintiff also complained that as a result of the recurrence of the defects on the said property he, therefore, could not let out the said property and had to continue to pay his housing loan. Finally, in January 2021, the plaintiff took out an action against the defendant at the court below.
The Findings Of This court
[7] This court allowed the defendant's appeal for the reasons as set out below.
[8] First, the plaintiff failed to clearly plead in the statement of claim what the plaintiff's cause of action against the defendant was. This court is perplexed whether the plaintiff's claim was premised on a breach of contract or tort of negligence or some other cause of action. The plaintiff's statement of claim (see Rekod Rayuan Jilid 1 Bahagian A, pp 16-24) did not state what is/are the clause(s) in the SPA that the defendant had breached. There was no statement or particularization of the defendant's breach of the SPA. However, in the plaintiff's counsel's submission (Hujahan Balasan Responden - Enclosure 16 [at the High court]), particularly para 7, the plaintiff submitted as follows:
"Responden kini menyatakan bahawa Tuntutan Utama Responden/Plaintif didalam Tindakan sivil ini adalah untuk menuntut gantirugi dan/atau pampasan akibat daripada kecuaian dan/atau kegagalan Perayu dalam membaikpulihkan unit rumah tersebut mangikut spesifikasi yang telah
