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2011 MarsdenLR 4811
HIGH COURT KUALA LUMPUR
SHENCOURT SDN BHD – Appellant
Versus
PRIMA AMPANG SDN BHD & ORS – Respondent
[Suit No: S-22Ncvc-231-2011]
Plaintiff lacks locus standi to pursue misrepresentation claims due to prior divestment of rights, rendering the action against the Defendants an abuse of process.
Headnote:(A) Companies Act - Misrepresentation - Housing Development (Control and Licensing) Regulation 1989 - Applications to strike out the Plaintiff's Writ and Statement of Claim allowed due to misnomer of Defendants and lack of contractual nexus; Plaintiff lacked locus standi to pursue claims of misrepresentation against the Defendants who were not involved in the alleged actions. (Paras 6, 22, 64)
(B) Injunction - Requirement of cause of action - No pre-existing cause of action found; application for interim injunction dismissed as reliant on the striking out of the Plaintiff's claims. (Paras 65-66)
Facts of the case:
The Plaintiff alleged misrepresentation by Defendants regarding a property development; claimed ownership and sought removal of advertisements and damages, failing to establish a legal right or nexus. The court found the Plaintiff divested rights to a third party and lacked standing.
Findings of Court:
Plaintiff had no rights to sue; claims against the Defendants struck out due to improper citation and absence of a legal relationship.
Issues: Main issues included whether the Plaintiff had standing to sue and the validity of claims for misrepresentation and reliefs sought.
Ratio Decidendi: The court ruled that since the Plaintiff had transferred rights to another entity, they could not maintain this action and any claims of misrepresentation must be brought by the affected parties, not the Plaintiff.
Result: Striking out applications allowed with costs; Plaintiff's application for injunction dismissed.
Enclosure 11 is the 1st Defendant's application to strike out the Plaintiff's Writ and Statement of Claim under O. 18 r. (19)(a), (b) and (d) Rules of the High 1980 .
Enclosure 6 is the application by the 3rd Defendant to strike out the Plaintiff's Writ and Statement of Claim under O. 18 r. (19)(a), (b) and (d) Rules of the High 1980 .
Enclosure 4 is the Plaintiff's application for an injunction against the Defendants.
Background:
Gleaning from the Statement Of Claim the following facts are pleaded:
The 1st Defendant is a limited company incorporated under the Companies Act .
The 2nd Defendant was a former director of the 1st Defendant.
The 3rd Defendant is an Architect by profession operating under the name of L.L. Architect and is also a former director of the 1st Defendant.
The 4th Defendant is a lawyer by profession operating under the name of K.S. Lim & Ong, which is the 5th Defendant. At all times the 4th Defendant was acting in his capacity as a lawyer representing Vistana Pancaran Sdn Bhd and also as a former director of the 1st Defendant.
The Plaintiff claims to be the beneficial owner of land title held under HS (D) 121280, PT No. 12054, Mukim &ang, District Ulu Langat, Selangor (under the Master Title "HS(D) 28688, No. PT 15752, Mukim &ang, District of Ulu Langat, State of Selangor") (hereinafter referred to as "the land"), wherein a 9 storey Shopping Complex and car park called Galaxy Shopping Complex.
The Plaintiff alleged that the 1st Defendant has proceeded to apply for its developer's license and advertising permit. However till the issuance of this Writ and Statement of Claim and the Statement Of Claim the 1st Defendant has yet to obtain its developer's license and advertising permit.
It was further alleged that, despite not having obtained the developer's license and the Advertising permit, the 1st Defendant together with the 2nd to 5th Defendants have advertised vis-a-vis websites known ashttp:www.facebook.com, http://laprimaampang.com and several other websites and facebooks (hereinafter referred to as "the websites").`
Subsequently, on 28.11.2010, at a signing ceremony at Renaissance Hotel the Defendants (collectively) purportedly held a signing ceremony with several partners known as Green Strategic Partners, Marketing Partners and represented themselves as the vendors of Phase 2.
It was alleged that, at this signing ceremony, the Defendants unveiled the model of the Plaintiff and according to this model the facade of the podium of the Building of the Plaintiff has been manifestly altered without the permission of the Plaintiff.
The Plaintiff alleged that this projection of the Plaintiff's podium by the Defendants is totally contrary to the existing podium and or to the plans of the Plaintiff in refurbishing the said complex.
The Plaintiff had repeatedly informed the Defendants to remove the said websites but the Defendants have failed or ignored to do so. According to the Plaintiff one of the directors of the 1st Defendant said that these advertisements were "a sort of announcement".
The Plaintiff alleged that these advertisements were intended by the Defendants for the purpose of enticing the public at large specifically to encourage and or to cause the public at large to register and to book the said units. It was noted that in the North Tower alone, 80 units have been sold. In the South Tower, 37 units have been booked.
In para 14 of the Statement Of Claim, the Plaintiff avers that the Defendants may have begun to collect a booking fee of RM5,000 to be held in the Solicitors-client account of the 5th Defendant.
The Plaintiff alleged that the Defendants through their actions have continued and are still soliciting the sales of these units.
The Plaintiff alleged that there was misrepresentation by the Defendants when there was a divergence and alteration from the existing model of the podium.
The Plaintiff alleged that the Defendants have no authority to advertise the alterations and to solicit the reg
