MDS VENTURES SDN BHD MAJLIS BANDARAYA PETALING JAYA

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SEMAKAN KEHAKIMAN: BA-25-15-02/2019 ANTARA MDS VENTURES SDN BHD (No. Syarikat: 230687-T) …PEMOHON DAN MAJLIS BANDARAYA PETALING JAYA …RESPONDEN Introduction [1] The High Court on 24.10.2019 had allowed the Applicant’s application for judicial review and ordered the Respondent to approve the planning permission for the Applicant to construct four units of two and a half storey of semi-detached homes on two pieces of land held under H.S.D. 4324 and 4325, Lot P.T. 577 and 578 Mukim Bandar Petaling Jaya, Daerah Petaling, Negeri Selangor respectively (“land”). Damages were also awarded. The assessment of damages was heard by this Court and having heard the evidence, I dismissed the Application with costs. 1 Background facts [2] The Applicant took a term loan in November 2011 to purchase the said land from Hong Leong Bank in the sum of RM4,384,000.00. Thereafter the Applicant applied for planning permission to construct four units of two and a half storey of semi-detached homes on 2.1.2014. While awaiting approval the Applicant requested to defer the commencement of repayment of the principal loan sum from 1.2.2014 to 1.8.2015. However, the Applicant had to begin servicing the interest from March 2014 and thereafter made full settlement of the said loan on 3.3.2016. [3] The application for the planning permission was rejected on 15.6.2016 as the Applicant failed to fulfill some conditions. Being dissatisfied with this decision the Applicant appealed to the Appeal Board. Meanwhile the Applicant agreed to fulfill the conditions and resubmitted an amended plan. The Appeal Board on 14.6.2017 took note of the development and ordered the Respondent to process and approve the application within 3 months from the date of the said order. The Respondent however, vide a letter dated 29.9.2017 wrote to the Applicant requesting the latter to submit a fresh application and to obtain the Environmental Impact Assessment Report (EIA). [4] The Applicant, aggrieved by this decision filed a judicial review for an order of certiorari to quash the said decision, an order of mandamus to compel the Respondent to approve the planning permission and damages. The High Court on 24.10.2019 allowed the said application where the decision conveyed via the letter dated 29.9.2017 was set aside and to approve the planning permission. The learned judge also ordered 2 damages to be assessed. The planning permission was eventually granted on 2.12.2019. The Application [5] In this Application the Applicant sought damages as follows: (a) RM713,850.17 as the extra interest paid to Hong Leong Bank; (b) RM526,176.08 as interest which the Applicant would have earned from its reserved fund that was utilised to make full settlement of the loan; and (c) exemplary damages. The Applicant relied on the following: 5.1 the Respondent took more than 2 years to decide on the Applicant’s application for the planning permission; 5.2 It had serviced the interest since March 2014; 5.3 It was compelled to utilise its reserved funds to make full settlement of the loan to avoid paying interest; and 5.4 the Respondent failed to comply with the order of the Appeal Board. 3 Submissions The Applicant [6] The learned counsel for the Applicant submitted that the length of time taken to consider the application for planning permission was unreasonable. At most it should be about 2 months since the necessary approvals had been obtained from the various authorities. He referred subsection 22(1) of the Town and Country Planning Act 1976 (“TCPA”) which provides that the decision shall be made as soon as possible. The case of Mohd Naazri bin Ishak @ Bahari v. Timbalan Menteri Dalam Negeri, Malaysia & Anor [2018] MLJU 1480 and subsection 54(2) of the Interpretation Acts 1948 and 1967 were cited in support of the contention that the Respondent should process the said application with convenient speed. [7] It was further submitted that the Respondent should have been aware of the fact that the land was charged to the bank and that it was common for developers to use the proceeds of the sales to pay off the loan, therefore the Respondent should not have delayed in processing the application. The delay had caused the Applicant to service the loan interest longer than necessary. Therefore the Applicant is entitled to claim for RM713,850.17 being the total sum of interest paid from March 2014 to March 2016. [8] The learned counsel for the Applicant further pointed out that to avoid further payment on interest the Applicant had to use its reserved funds to make full settlement of the said loan. Therefore, the Applicant had been deprived of any income that could be generated from the 4 reserved funds. Reference was made to Jaks Island Circle Sdn Bhd v. Star Media Group Bhd & Anor for another appeal [2019] MLJU 1085. Thus it was submitted that the Applicant was entitled to claim the loss of interest which could be earned from March 2016 to December 2019. [9] As regards exemplary damages the learned counsel for the Applicant submitted the Applicant was entitled to it owing to the unreasonable delay and defiance of the order of the Appeal Board on the part of the Respondent. References were made to Sambaga Valli a/p KR Ponnusamy v. Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784 and Cheong Fatt Tze Mansion Sdn Bhd v. Hotel Continental Sdn Bhd (Hong Hing Thai Enterprise Sdn Bhd, third party) [2011] 4 MLJ 354. The Respondent [10] The learned counsel for the Respondent argued that the Applicant has failed to prove any losses as there was no unnecessary delay by the Respondent in processing the Applicant’s application. The area where the land is situated was prone to landslides and soil erosion. There were such incidents happened in 2008, 2012 and 2013 which prompted the Respondent to freeze all hillslopes development while studies as well as terrain mapping were conducted and guidelines were issued. There was also a requirement for an EIA report which was not submitted by the Applicant. References were made to section 95 of the Street Drainage and Building Act 1975 and Majlis Perbandaran Ampang Jaya v. Steven Phoa Cheng Loon [2006] 2 MLJ 389. 5 [11] As regards the claim for the interest, the learned counsel submitted that since the Applicant took a loan to finance the purchase, it had to pay interest in any event. In addition it was submitted that the Appeal Board did not find any fault with the Respondent in rejecting the Applicant’s application on 15.6.2016. [12] The learned counsel further contended that the Applicant has failed to prove any losses and that a statement of account by itself was insufficient to establish a claim for damages and cited the case of PB Malaysia Sdn Bhd v. Samudra (M) Sdn Bhd [2009] 7 MLJ 681. [13] With respect to using the Applicant’s reserved funds to settle the loan causing loss of income which could be derived therefrom, the learned counsel for the Respondent submitted that there was no evidence to support this e.g. proof of fixed deposit account, whether it was its reserved funds or shareholders’ funds as earlier claimed. Reference was made to Sony Electronics (M) Sdn Bhd v. Direct Interest Sdn Bhd [2007] 2 MLJ 229. Decision [14] It is trite that the burden in proving losses and entitlement to damages is on the Applicant. In Popular Industries Ltd v. The Eastern Garment Manufacturing Co. Sdn Bhd [1990] 2 CLJ (Rep) 635 at p.648 Edgar Joseph Jr J (as he then was) referred to the dictum of Lord Goddard in Bonham-Carter v Hyde Park Hotel [1948] WN 89 which was approved by Thomson HB (as he then was) in Lee Sau Kong v Leow Cheng Chiang [1961] MLJ 17, stated as follows: 6 “Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and so to speak, throw them at the head of the court, saying, 'This is what I have lost, I ask you to gives me these damages'. They have to prove it.”. Although the High Court had ordered for assessment of damages, the Applicant still has to prove whether it is entitled to any damages. In other words it has to show that it has suffered losses. [15] The Applicant claimed that at most the Respondent should take 2 months to decide on the application for the planning permission as all relevant technical departments had given their approvals and recommendations. The Respondent in response contended that the land was classified as Very High Hazard and Very High Risk and in 2013 and therefore development was frozen. It must be noted that these were the issues raised by both parties before the hearing of the Appeal Board. It was not disputed that both parties ‘settled’ these issues by what the Applicant described as a consent order endorsed by the Appeal Board. In the said order the Appeal Board made a clear finding that the Respondent was not at fault for any delay in deciding on the said application. It was also noted the Applicant agreed to fulfill the four conditions imposed and submitted the amended plan and that the Respondent shall make its decision within 3 months from the date of the said order. Therefore, it is my view that I should not take these issues into account and further I fail to see any basis to agree with the Applicant that the decision to approve the planning permission should take 2 months. 7 [16] In considering a period of time to be reasonable or otherwise, there must be evidence to show that all necessary requirements are satisfied and there is no inordinate delay in the decision making process. In Timbalan Menteri Hal Ehwal Dalam Negeri & Ors v. Liau Nyun Fui [1991] 1 MLJ 350 Abdul Hamid Omar LP at p.353 held: “The correct test to be applied therefore is not on the basis of unreasonable delay but convenient speed. The learned judicial commissioner determined the question before him on the basis of unreasonable delay. This was not a proper approach. The question that was before him was whether the timbalan menteri in the particular circumstances of that case had acted with all convenient speed in making the restriction order. Strictly it was for the respondent to show that the timbalan menteri had not so acted and not for the timbalan menteri to provide an explanation acceptable to the court.”. So too here the Applicant has to show that the Respondent had failed to process the application with convenient speed particularly so when the Applicant did not dispute that the four conditions were not met. [17] Based on these reasons too I hold that the Applicant is not entitled to the interest amounting to RM713,850.17 as well as the RM526,176.08 as interest which the Applicant would have earned from its reserved fund that was utilised to make full settlement of the loan. I do not see how the Applicant could ask the Court to penalise the Respondent for the interest it had to pay on the loan to finance the purchase of the land. This was its choice to take a loan to purchase a private land. And it was its choice to service just the interest alone without the principal sum. 8 [18] The loan was fully paid on 7.3.2016 and the planning permission was eventually approved on 2.12.2019. The Applicant derived the sum of RM526,176.08 by the following calculation: 1369 days (7.3.2016 – 2.12.2019) ___________________________ x 4,384,000.00 x 3.2% p.a. 365 days = RM526,176.08 [19] There are two issues here namely, whether the monies kept in a current account attract interest and the rate of interest. Here again it was the choice of the Applicant to utilise the reserved funds to redeem the said land. There is no evidence to support the rate of interest suggested by the Applicant and the reason is obvious because monies in current account earn no interest. I do not think the Court can accept the averment of the Applicant’s director that the 3.2% was based on the average interest rate for fixed deposit when the monies were held in the current account. [20] As regards exemplary damages though not pleaded, the Court may make an award if the facts and evidence justify it. It may be awarded in the circumstances described by Zawawi Salleh JCA (as he then was) in Sambaga Valli (supra) where at p.797 His Lordship said: “Now, aggravated damages are classified as a species of compensatory damages, which are awarded as additional compensation where there has been intangible injury to the interest of personality of the plaintiff, and where 9 this injury has been caused or exacerbated by the exceptional conduct of the defendant. The exemplary damages or punitive damages — the two terms now regarded as interchangeable — are additional damages awarded with reference to the conduct of the defendant, to signify disapproval, condemnation or denunciation of the defendant’s tortious act, and to punish the defendant. Exemplary damages may be awarded where the defendant has acted with vindictiveness or malice, or where he has acted with a ‘contumelious disregard’ for the right to the plaintiff. The primary purpose of an award of exemplary damages may be deterrent, or punitive and retributory, and the award may also have an important function in vindicating the rights of the plaintiff (see Rookes v Barnard [1964] 1 All ER 367; AB and others v South West Water Services Ltd [1993] 1 All ER 609; Broome v Cassell & Co Ltd [1971] 2 QB 354, Laksmana Realty Sdn Bhd v Goh Eng Hwa and another appeal [2006] 1 MLJ 675).”. [21] The fact that the application for judicial review which resulted in the impugned decision being quashed does not to my mind automatically entitle the Applicant to exemplary damages. I find that the Applicant has failed to show that the Respondent had acted in any manner described in Sambaga Valli. [22] Based on the reasons aforementioned, there is no award of damages to the Applicant. t.t (TUN ABD MAJID BIN DATO’ HAJI TUN HAMZAH) Hakim Mahkamah Tinggi Malaya, Shah Alam Tarikh: 28 Disember 2020 10 Peguamcara-Peguamcara:- Peguamcara Pihak Perayu Jonas Lee Fook Khong TETUAN KANESALINGAM & CO Advocates & Solicitors Unit 3.3, Tingkat 3, Wisma Bandar, 18 Jalan Tunku Abdul Rahman, 50100 Kuala Lumpur. Tel : 03 – 2698 9199 Fax : 03 – 2698 9799 Peguamcara Pihak Responden Leela Jeyamani Jesuthasan TETUAN CHAMBERS OF LEELA J. Advocates & Solicitors Suite 1710, Tingkat 17 Plaza Permata, No. 6, Jalan Kampar, 50400 Kuala Lumpur Tel : 03 – 4041 6568 Faks : 03 – 4041 6566 11