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COURT OF APPEAL PUTRAJAYA
LIM MEOW KHEAN & ORS – Appellant
Versus
PAKATAN MAWAR (M) SDN BHD & ORS – Respondent
Key Points: - The SPAs remain subsisting and enforceable despite the developer's liquidation; purchasers may have beneficial ownership and rights to restitution or enforcement against unjust enrichment. (!) (!) - Locus standi to sue the developer and/or master chargee, and the enforceability of undertakings to exclude purchasers from foreclosure, are central issues; whether end financiers can enforce or be joined as co-defendants is addressed. (!) (!) (!) - Whether the plaintiffs are beneficial owners or merely contractual creditors, and whether a constructive trust or restitutionary remedy arises against D1 and D2 in light of undertakings and subsequent disposal of Master Titles. (!) (!) (!)
[1] The appeal once again reveals the conundrum faced by many a purchaser who had signed a sale and purchase agreement ("SPA") for a building or house being built on a piece of land held under a master title which has not been subdivided yet and which is still charged to a master chargee by the developer/registered owner for a bridging loan.
[2] The Developer as the first defendant (D1) here then went into liquidation before completion of the factory units ("Properties") and years later the Liquidators appointed sold the whole of the Project Lands held under the various Master Titles to a third party with the consent of the chargee bank, the second defendant (D2) here, who said it took a haircut in agreeing to the purchase price for the sale in return for executing a discharge of charge over the Master Titles.
[3] The whole of the Project Lands were disposed of by the Liquidators in total disregard of the interest of the Plaintiffs/Purchasers here, who were not informed of the sale and had become aware of it only after the third party had become the new registered owner.
[4] The Plaintiffs argued that there was also no creditors' meeting called by D1 and as s
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