1. ) LOH TINA 2. ) TAN KOK CHIEW 3. ) ANG YEW SHIANG 4. ) PEH CHYUAN CHYUAN 5. ) PEH YAM TENG 6. ) LIM GIM LENG 7. ) TAN LEONG PING 1. ) KEMUNING SETIA SDN. BHD 2. ) TAN SWEE LEONG 3. ) K-ASIA HOLDINGS SDN. BHD. 4. ) KOH CHONG POH 5. ) KOH

1. ) LOH TINA 2. ) TAN KOK CHIEW 3. ) ANG YEW SHIANG 4. ) PEH CHYUAN CHYUAN 5. ) PEH YAM TENG 6. ) LIM GIM LENG 7. ) TAN LEONG PING 1. ) KEMUNING SETIA SDN. BHD 2. ) TAN SWEE LEONG 3. ) K-ASIA HOLDINGS SDN. BHD. 4. ) KOH CHONG POH 5. ) KOH

The Court held that the developer and proprietor could not convert a mandatory Schedule G sale into a private 99+99 year lease without a valid statutory written certificate; unauthorised modifications to Schedule G are ineffective as to those provisions, and purchasers are entitled to specific performance compelling transfer of the freehold subdivided titles as prescribed by Schedule G. The developer's counterclaim re RM350,000 was dismissed as the credit note was a rebate/discount.

Citation
P-02(NCVC)(W)-540-03/2019 (Mahkamah Rayuan)
Parties
Appellant Purchaser: Loh Tina; Appellant Purchaser: Tan Kok Chiew; Appellant Purchaser: Ang Yew Shiang; Appellant Purchaser: Peh Chyuan Chyuan; Appellant Purchaser: Peh Yam Teng; Appellant Purchaser: Lim Gim Leng; Appellant Purchaser: Tan Leong Ping; Respondent/appellant Developer: Kemuning Setia Sdn. Bhd.; Respondent Director of Developer: Tan Swee Leong; Respondent Proprietor: K-Asia Holdings Sdn. Bhd.; Respondent Director/shareholder: Koh Chong Poh; Respondent Director/shareholder: Koh Chong Jin; Respondent Director/shareholder: Koh Chong Lin; Solicitor for 5th Respondent: Cheng Theng Keat
Court
NCVC
Jurisdiction
Malaysia
Judgment Date
5 December 2019
Case Number
P-02(NCVC)(W)-540-03/2019 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (housing Development Dispute) / Court of Appeal Judgment on Appeals From High Court Decisions
Outcome
Appeal allowed in part for the purchasers; High Court order set aside only as to the 1st and 3rd defendants; developer's related appeal (counterclaim) dismissed.
Legal Topics
Housing Development (control and Licensing) Act 1966, Schedule G Standard Form SPA, Controller of Housing Powers and Ultra Vires Issue, Joint Venture Agreements, Specific Performance, Unauthorised Contract Modifications
Source Language
Malay/English
Housing Law Property Law Contract Law Administrative Law Civil Remedies Housing Development (control and Licensing) Act 1966 Schedule G Standard Form SPA Controller of Housing Powers and Ultra Vires Issue +3 more

Case Brief

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Parties

Loh Tina

Appellant Purchaser

Tan Kok Chiew

Appellant Purchaser

Ang Yew Shiang

Appellant Purchaser

Peh Chyuan Chyuan

Appellant Purchaser

Peh Yam Teng

Appellant Purchaser

Lim Gim Leng

Appellant Purchaser

Tan Leong Ping

Appellant Purchaser

Kemuning Setia Sdn. Bhd.

Respondent/appellant Developer

Tan Swee Leong

Respondent Director of Developer

K-Asia Holdings Sdn. Bhd.

Respondent Proprietor

Koh Chong Poh

Respondent Director/shareholder

Koh Chong Jin

Respondent Director/shareholder

Koh Chong Lin

Respondent Director/shareholder

Cheng Theng Keat

Solicitor for 5th Respondent

Procedural Posture

Civil Appeal (housing Development Dispute) / Court of Appeal Judgment on Appeals From High Court Decisions

Legal Issues

  1. 1 Whether a developer and proprietor can convert an obligatory Schedule G sale into a 99+99 year lease without statutory written approval
  2. 2 Whether the prescribed Schedule G contract is mandatory and immune to private modification
  3. 3 Whether the Controller of Housing had power to grant written waivers or modifications under Regulation 11(3)

Ratio Decidendi

The Court held that the developer and proprietor could not convert a mandatory Schedule G sale into a private 99+99 year lease without a valid statutory written certificate; unauthorised modifications to Schedule G are ineffective as to those provisions, and purchasers are entitled to specific performance compelling transfer of the freehold subdivided titles as prescribed by Schedule G. The developer's counterclaim re RM350,000 was dismissed as the credit note was a rebate/discount.

Court Disposition

Appeal allowed in part for the purchasers; High Court order set aside only as to the 1st and 3rd defendants; developer's related appeal (counterclaim) dismissed.

Orders

  • Declaration that the SPA ought to conform with Schedule G of the Regulations
  • Order that the 1st defendant do transfer and the 3rd defendant do cause the 1st defendant to transfer the freehold of the respective plaintiffs' lots to the plaintiffs