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2011 MarsdenLR 890
HIGH COURT MALAYA IPOH
BURHANUDIN ZAINAL AZMAN – Appellant
Versus
SUNRISE PALACE SDN BHD – Respondent
[Civil Suit No: 22NCVC-16-2011]
Misrepresentation requires substantiation; reliance solely on promotional materials without clear statements of fact does not support claims of misrepresentation.
Headnote:(A) Contracts Act, 1950 - Section 19(1) - Misrepresentation - Plaintiff alleged misrepresentation for purchase of property without gated security system as advertised - Court found no representation about a gated community was made; only a patrolling service was provided - Defendant's application for fencing after sale not an admission of earlier representation. (Paras 10, 11, 14, 16, 20)
(B) Proof of Misrepresentation - Burden on plaintiff to prove reliance on alleged representations - Court held reliance on brochure not substantiated by evidence of representation made - Claims dismissed due to insufficient grounds for misrepresentation. (Paras 16, 20)
Facts of the case:
Plaintiff purchased property from defendant based on representations of gated security which were not provided. Incidents of crime led to complaints.
Findings of Court:
Allegations of misrepresentation and reliance on brochure unsubstantiated. Court found no misrepresentation as none was included in promotional materials.
Issues: Determining whether representations made about property were accurate and whether they induced the purchase.
Ratio Decidendi: The court elucidated that reliance on incorrect representations must be substantiated and that brochures alone do not confirm misrepresentations without supporting evidence.
Result: Plaintiff's claim dismissed with costs.
| Table of Content |
|---|
| 1. factual background of home purchase and alleged representations. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. defendant's response and denial of representations. (Para 7 , 8 , 9) |
| 3. court's analysis of misrepresentation law. (Para 10 , 11) |
[1] The defendant was the housing developer of a project known as Taman Klebang Damai at Chemor, Perak. The plaintiff purchased a double-storey terrace house from the defendant for the price of RM169,936 with the sale and purchase agreement signed on 9 January 2007. He moved into the house on 3 June 2009 after receiving vacant possession on 21 January 2009.
[2] It was the pleaded case for the plaintiff vide paras. (3) and (4) of the statement of claim that the defendant's agents through their advertisement, catalogue and miniature replica (of the housing project) represented to the plaintiff that the said project would be provided with a gated and 24 hours' security guard control system B ("sistem kawasan berpagar"; "sistem kawalan keselamatan pengawal 24 jam"). The plaintiff (witness SP1) testified in the same manner vide his witness statement ("PSP1"). In his answer to question 5, he said:
J5: Semasa saya melihat-lihat tawaran promosi projek perumahan di tapak rumah contoh defendan, saya telah didatangi oleh ejen- ejen defendan, bernama Ina dan Karen dan telah ditunjukkan oleh mereka iklan, katalog berserta mempamerkan replika miniatur bahawa projek Taman Klebang Damai akan dilengkapi dengan sistem kawasan perumahan dengan kawalan keselamatan pengawal D 24 jam kepada sesiapa yang membeli hartanah di Taman Klebang Damai tersebut.
[3] SP1 referred to and relied on the brochure ("the brochure") on pp. 1 and 2 of the agreed bundle of documents ("bundle A") which was published by the defendant to promote the said project. He said this was what induced him to buy the house although the purchase price was rather high. He felt that the inclusion and provision of the gated and security guard services was worth the price. SP1 went on to state that these two systems were however not provided for after he had moved into his new home. There were incidents of house-breaking, robbery and loss of property as a result. Affected house-buyers like SP2 (Norfazli bin Mohd Noor) and SP3 (Faridatul Hanim bt Hamzah) lodged police reports (P1 and P2) pertaining to such incidents.
[4] SP1 nevertheless admitted that the defendant did provide two security guards; his grouse was that their service was not efficient and sufficient for a housing area of 164 houses. Consequently due to the spate of crime, SP1 together with four other house-owners met the director of the defendant by the name of Ronnie (ie, SD1, Lee Kong Choong) with regard to their purported promise of the gated system. SP1 alleged that the defendant subsequently wrote a letter (on p. 30 of bundle A) to Majlis Bandaraya Ipoh ("MBI") to this effect:
Tarikh: 25 Ogos 2009
Jabatan Perancang Bandar
MAJLIS BANDARAYA IPOH
Jalan Sultan Abdul Jalil
Greentown
30450 Ipoh
Perak
Tuan/Puan,
Per: Permohonan Kebenaran Untuk Memagar Kawasan Perumahan Di Taman Klebang Damai, 31200 Chemor, Perak
Kami merujuk kepada perkara tersebut di atas.
Kami di sini ingin memohon kebenaran untuk memagar kawasan perumahan kami yang terletak di Taman Klebang Damai, 31200 Chemor, Perak.
Tindakan segera pihak tuan dalam urusan tersebut di atas amatlah kami hargai.
Sila akui penerimaannya dengan menandatangani dan mengembalikan kepada kami salinan pendua surat ini.
Sekian, terima kasih.
Yang benar,
Sunrise Palace Sdn Bhd
t.t.
Lee Kong Choong
Pengarah
[5] The defendant responded to their complaint by applying for MBI's approval to fence the housing area of Taman Klebang G Damai through this letter. However the fencing was never constructed and a notice of demand (on p. 31 of bundle A) was sent to the defendant. In addition, SP1 lodged a complaint through the press about the matter (see newspaper cutting on p. 34 of bundle A).
[6] SP2, SP3 and SP5 (Abdullah bin Muhammed @ Ahmad) in corroborating SP1 testified that
