The court ruled that the Plaintiffs' action for recovery of land was time-barred as the cause of action accrued upon the Defendant's failure to deliver vacant possession, despite claims of fraudulent breach of trust.

Hashim Hamzah JCA:

Introduction

[1] For ease of reference, parties in the present appeal shall be referred as they were before the High Court .

[2] This is the Defendant's appeal against the decision of the learned Judicial Commissioner ("JC"), who allowed the Plaintiffs' claim after a full trial.

Background Facts

[3] The Defendant is the registered owner of the eight plots of land situated in the Mukim Ayer Panas, Daerah Jasin, Malacca ("the said Land"). The Defendant had obtained a loan from Malaysian Building Society Berhad ("MBSB") in 1997 to purchase the said Land. In return, the said Land was charged to MBSB as security for the loan granted to the Defendant.

[4] Sometime in 1999, the Defendant had publicised its intention to develop the said Land into a luxurious golf resort known as Bandar Golden Valley Golf Resort ("the said Project") through the issuance of flyers, brochures and advertisements in newspapers. The said Project was supposed to be jointly developed with MBSB Development Sdn Bhd ("MBSBD").

[5] The Plaintiffs entered into their respective Sale and Purchase Agreements ("SPAs") with the Defendant to buy the respective bungalow plots in the said Project. These SPAs were executed between 20 April 1999 and 20 April 2000, respectively.

[6] It is pertinent to note that the SPAs were executed between the parties for the sale and purchase of certain land plots and not for the purpose of housing development. Therefore, the SPAs were not contracts made in the prescribed statutory form under the Housing Development (Control and Licensing) Act 1966 and the Housing Development (Control and Licensing) Regulations 1989.

[7] Through the execution of the SPAs, the Plaintiffs and the Defendant had agreed, among others, that:

(a) the date for the delivery of vacant possession of the bungalow plots to the respective Plaintiffs shall be upon the completion of the Basic Infrastructure Works (cls 1(b) and 13), in which case shall not be later than 36 months from the date of the SPAs (Clause 16);

(b) the Defendant shall, at its own cost and expense, use its best efforts to obtain as expeditiously as possible the issue of the separate qualified document of title of the bungalow plots (Clause 11); and

(c) the bungalow plots would be free of encumbrances upon the transfer of the titles of the said plots to the respective Plaintiffs (Clause 3).

[8] The date for the delivery of vacant possession had lapsed between 20 April 202 to 29 April 2003, respectively. Regardless, the Plaintiffs had continued with their monthly instalment payments to the Defendant for their respective bungalow plots according to each of their SPAs. Some had paid in full, and some had not, but neither party had terminated the SPAs.

[9] After continuous demands, queries and complaints, there was still no delivery of vacant possession of the bungalow plots to the Plaintiffs nor the surrender of the titles to the bungalow plots to the Plaintiffs up to date.

[10] On 5 August 2020, the Plaintiffs filed this action at the High Court against the Defendant. The Plaintiffs claimed that:

(a) there was a continuous breach of contract as vacant possession had yet to be delivered;

(b) there was fraud on the part of the Defendant, who never intended to fulfil its obligations under the respective SPAs;

(c) there was unjust enrichment by the Defendant, who had planted oil palm trees and benefitted from there instead of developing the land as per the SPAs.

[11] The Defendant, on the other hand, relied heavily on its pleaded defence that the Plaintiffs' claims were statutorily barred.

[12] The case went for a full trial. 22 witnesses testified for the Plaintiffs, and one witness, ie, the Defendant's director, testified for the Defendant. At the close of the case, the learned JC found that the Plaintiffs had proven their case against the Defendant on the balance of probabilities and ordered as follows:

(a) a declaration that the 1st to the 11th Plaintiffs have a beneficial interest over their