BIJAK UTAMA SDN BHD V. ADWIN SDN BHD

BIJAK UTAMA SDN BHD V. ADWIN SDN BHD

The floor plans annexed to the sale agreements show the entrance lobbies are not within the parcels and therefore form common property; affixing metal gates on that common property breached clauses 3(i) and 9(8) of the Deed of Mutual Covenants; no substantive defence remained on those facts so an Order 14 summary declaratory judgment and mandatory injunction were properly granted; the Deed was valid with consideration in the mutual covenants.

Citation
BIJAK UTAMA SDN BHD V. ADWIN SDN BHD
Parties
Plaintiff/developer: Bijak Utama Sdn Bhd; Defendant/purchaser: Adwin Sdn Bhd
Court
Malaysian court
Jurisdiction
Malaysia
Judgment Date
1997
Procedural Posture
Civil – Contract / Property (deed of Mutual Covenants) / Chambers Application for Summary Judgment Under Order 14 (declaratory Relief and Mandatory Injunction)
Outcome
Application allowed.
Legal Topics
Restrictive Covenants, Common Property, Deed of Mutual Covenants, Declaration, Mandatory Injunction, Summary Judgment, Strata Plan Interpretation
Source Language
en
Contract Property (strata/condominium) Civil Procedure Equity/restrictive Covenants Restrictive Covenants Common Property Deed of Mutual Covenants Declaration +3 more

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Parties

Bijak Utama Sdn Bhd

Plaintiff/developer

Adwin Sdn Bhd

Defendant/purchaser

Procedural Posture

Civil – Contract / Property (deed of Mutual Covenants) / Chambers Application for Summary Judgment Under Order 14 (declaratory Relief and Mandatory Injunction)

Legal Issues

  1. 1 Whether the entrance lobbies are common property or part of the defendant's parcels
  2. 2 Whether affixing metal gates breached restrictive covenants in the Deed (clauses 3(i) and 9(8))
  3. 3 Whether summary judgment under Order 14 is appropriate for declaratory relief and mandatory injunction

Ratio Decidendi

The floor plans annexed to the sale agreements show the entrance lobbies are not within the parcels and therefore form common property; affixing metal gates on that common property breached clauses 3(i) and 9(8) of the Deed of Mutual Covenants; no substantive defence remained on those facts so an Order 14 summary declaratory judgment and mandatory injunction were properly granted; the Deed was valid with consideration in the mutual covenants.

Court Disposition

Application allowed.

Orders

  • Declaration that defendant breached clauses 3(i) and 9(8) of the Deed by affixing metal gates on common property
  • Mandatory injunction ordering removal of the metal gates