(COMMERCIAL DIVISION)
SUIT NO: D22NCC-2105-2010
GROUNDS OF JUDGMENT
A declaration that the 2nd Defendant was and is the legal and
beneficial owner of the properties set down below:
1.1.
1.2.
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
(the Properties)
(2)
2.1
2.2
2.3
2.4
necessary
for
the
formal
transfer
or
assignment.
(3)
declaration
that
any
deed
of
absolute
assignment,
(4)
4.4
(5)
(6)
(7)
7.2
7.3
7.4
7.6
7.7
8.
9.
10. Such other orders or reliefs this Honourable Court deems fit and
necessary.
Background
Sometime in 2007, the Plaintiffs were invited to participate in property
investment schemes created and/or organized by the 1st, 2nd and 3rd
Defendants. The 2nd and 3rd Defendant introduced themselves as
directors of the 1st Defendant. The investment scheme involved
the 1st Defendant sourcing for suitable properties (apartments in
or around the Klang Valley) for purchase by participants and
subsequently for resale at higher prices. The 2nd and 3rd Defendants
on behalf of the 1st Defendant represented and promised inter alia
that:
(a)
(b)
(c)
(d)
(e)
(b)
10
ABC Scheme
The salient features of the 1.8.2008 ABC Agreement are as follows:
(a)
(b)
auctioneers,
nominated
legal
firms,
utility
(d)
(e)
to
total
maximum
investment
of
Option
Payment
(% of Purchase
Price)
10
90
Manner of payment
Or
2
(h)
100
(i)
(j)
NO
DETAILS OF PROPERTY
VENDOR &
DOCUMENTS
13
PURCHASE
PRICE &
PAYMENT
RM59,049.00
(Paid in full to
4th Defendants
Firm on
5.12.2008)
RM54,000.00
(Paid in full to
4th Defendants
Firm on
16.9.2008)
TOTAL
RM47,250.00
(Paid in full to
4th Defendants
Firm on
16.9.2008)
160,299.00
Despite having paid the full purchase price and legal fees for the ABC
properties, the Plaintiffs were never informed by the 1st, 2nd, 3rd or 4th
Defendants of the date they would be given the vacant possession of
the ABC properties. The Plaintiffs never received any profits or
returns.
Following the purchases of the ABC properties, the 1st Defendant
then purported to arrange for the resale of the F-1-1 Unit, Alpi 02-07
Unit and Kasih 01-24 for the Plaintiffs through its nominated real
estate agent, M/S Marriot Properties. The Plaintiffs then sold the ABC
properties to various purchases for profits between 30% - 40% or
more of the original purchase price. The arrangements by the 1st
14
PURCHASER &
DOCUMENTS
RESALE
PRICE (RM)
PROFIT
(%)
82,000.00
39
F-1-1 Unit
Alpi
Unit
75,600.00
40
67,560.00
43
TOTAL
225,160.00
Notwithstanding the delay and/or default to pay the resale price, the
Plaintiffs renewed their membership in the ABC scheme by paying to
the 1st Defendant the requisite administrative fee of RM12,600.00 on
31.7.2009.
FBC Scheme
Investors in the FBC scheme would invest in and purchase shares
or portions in FBC properties. As represented by the 1st, 2nd and/or
3rd Defendants, once all the shares or portions in each FBC property
has been taken up, the 1st Defendant would make the necessary
arrangements for the purchase and subsequent resale of the FBC
property. The 1st, 2nd and/or 3rd Defendants represented that the profit
and/or rate of return on the Plaintiffs investment in the FBC scheme
would be announced and paid within 6 months after each FBC
investment. The 1st Defendant offered the FBC properties for
investment on the 1st Defendants website. The Plaintiffs were invited
through the 1st Defendants website to select the FBC property to
invest in and specify the share or portion in ringgit value of each FBC
investment.
The Plaintiffs were represented by solicitors nominated by the 1st
Defendant for each investment in the FBC scheme. The investments
in the FBC properties were paid to either the 5th Defendants Firm
or 5th Defendants Previous Firm. The Plaintiffs also paid legal fees
for every transaction under the FBC scheme to either the 5th
Defendants Firm or 5th Defendants Previous Firm.
16
The 1st Defendant duly declared the profits for the investments in the
FBC scheme for the months of April, May and June 2009. However,
the 1st Defendant has to date, failed, omitted and/or refused to pay
the declared profits and to return the investment to the Plaintiffs for
this period. In respect of the Plaintiffs investment between August
2009 to March 2010, the 1st Defendant has to date, failed, omitted
and/or refused to declare or pay any profits for the investment in the
FBC scheme for this period.
Liquidated damages:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
18
(j)
2.
(b)
(c)
(ii)
(iii)
(d)
(e)
(f)
(g)
20
1st Plaintiff:
NO JUDGMENT/ORDER
1.
Judgment in Default
ITEM(S)
AMOUNT (RM)
Judgment Sum
477,065.92
27,918.16
2.
Fixed Costs
25,000.00
Fixed Costs
10,000.00
539,984.08
2nd Plaintiff:
NO JUDGMENT/ORDER
1.
Judgment in Default
ITEM(S)
AMOUNT (RM)
Judgment Sum
211,100.00
12,353.68
2.
Fixed Costs
25,000.00
Fixed Costs
10,000.00
258,453.68
21
NO
PROPERTY(S)
PROPERTY
TYPE
INSTRUMENT OF
TRANSFER/TITL
E
ESTIMATED
VALUE
(RM)
No.
48F,
Jalan
Hulubalang 29, Taman
Sentosa, 41200 Klang,
Selangor held under
Geran 93238, Lot No.
62809, Mukim of Klang,
District of Klang, State
of Selangor;
Strata
Deed of
Assignment/Title
Not Issued
30,000.00
Plaintiffs solicitors
letter dated 28.2.2011
& M/s Ablelink
Properties (M) Sdn
Bhds letter dated
1.3.2011 and Land
search dated 11.8.2011
(Developers
confirmation).
No.
39F,
Jalan
Hulubalang 26, Taman
Sentosa, 41200 Klang,
Selangor held under
Geran 93189, Lot No.
62766, Mukim of Klang,
District of Klang, State
of Selangor;
Strata
Deed of
Assignment/Title
Not Issued
32,000.00
Plaintiffs solicitors
letter dated 28.2.2011
& M/s Ablelink
Properties (M) Sdn
Bhds letter dated
1.3.2011 and Land
search dated 11.8.2011
(Developers
confirmation).
No.
41F,
Jalan
Hulubalang 26, Taman
Sentosa, 41200 Klang,
Selangor held under
Geran 93188, Lot No.
62765, Mukim of Klang,
District of Klang, State
of Selangor;
Strata
Deed of
Assignment/Title
Not Issued
37,000.00
Plaintiffs solicitors
letter dated 28.2.2011
& M/s Ablelink
Properties (M) Sdn
Bhds letter dated
1.3.2011 and Land
search dated 11.8.2011
(Developers
confirmation).
Strata
Deed of
Assignment/Title
Not Issued
39,500.00
Plaintiffs solicitors
letter dated 28.2.2011
& M/s Fajar Marketing
& Development Sdn
Bhds letter dated
24.3.2011 and Land
search dated 6.6.2011
(Developers
confirmation).
Strata
Deed of
Assignment/Title
Not Issued
30,000.00
Plaintiffs solicitors
letter dated 28.2.2011
& M/s Fajar Marketing
& Development Sdn
Bhds letter dated
24.3.2011 and Land
search dated 6.6.2011
(Developers
confirmation).
22
CONFIRMATION OF
OWNERSHIP
Strata
Deed of
Assignment/Title
Not Issued
45,000.00
Plaintiffs solicitors
letter dated 28.2.2011
& M/s Fajar Marketing
& Development Sdn
Bhds letter dated
24.3.2011 and Land
search dated 6.6.2011
(Developers
confirmation).
Unit
No.
B-G13,
Ground Floor, Block B,
Plaza Suria, Jalan PJU
10/4A,
Damansara
Damai, 47300 Sungai
Buloh, Selangor held
under PN 22332, Lot
70243,
Mukim
of
Sungai Buloh, District
of Petaling, State of
Selangor;
Strata
Deed of
Assignment/Title
Not Issued
190,350.00
Plaintiffs solicitors
letter dated 11.4.2011
& M/s Medam Prestasi
Sdn Bhds letter dated
18.5.2011 and Land
search dated 13.6.2011
(Developers
confirmation).
Strata
Deed of
Assignment/Title
Not Issued
79,380.00
Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant),
undated and
unstamped and Land
search dated 9.8.2011.
Strata
Deed of
Assignment/Title
Not Issued
47,500.00
Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant),
dated 30.4.2010,
unstamped and Land
search dated 9.8.2011.
10
Strata
Deed of
Assignment/Title
Not Issued
43,200.00
Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant),
undated and
unstamped.
23
11
Deed of
Assignment/Title
Not Issued
117,500.00
Plaintiffs solicitors
letter dated 31.5.2011
& M/s Nashill & Cos
letter dated 1.6.2011
and Land search dated
8.8.2011 (Assignors
solicitors confirmation).
Strata
12
Strata
Deed of
Assignment/Title
Not Issued
46,000.00
Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant),
undated and
unstamped and Land
search dated
11.8.2011.
13
Strata
Deed of
Assignment/Title
Not Issued
48,000.00
Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant),
undated and
unstamped.
14
Strata
Memorandum of
Transfer
91,900.00
Plaintiffs solicitors
letter dated 15.3.2011
& M/s Palm Grove
Housing Sdn Bhds
letter dated 21.3.2011
and Land search
conducted on 8.8.2011
(Developers
confirmation). .
15
Strata
Memorandum of
Transfer
54,000.00
Plaintiffs solicitors
letter dated 27.4.2011
& M/s Suria Capital
Holdings Bhds letter
dated 28.4.2011 and
Land search conducted
on 9.8.2011
(Developers
confirmation).
Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant)
undated and
unstamped.
24
61
th
Strata
Memorandum of
Transfer
31,500.00
Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant)
undated and
unstamped.
(the Properties)
For
However, since
(ii)
and
availability
of
the
2nd
Defendants
The Learned Counsel submitted that the 2nd Defendant will not be
prejudiced by the orders sought herein since any and all excess sums
26
Decision
In the instant case the Plaintiffs sought an order from this Court to
declare that the 2nd Defendant was and is the legal and beneficial
owner of the properties set down below:
1.1.
1.2.
1.3
1.4
1.5
1.6
1.7
1.8
1.9
28
1.10
1.11
1.12
1.13
1.14
1.15
29
1.16
30
The scope of this Order on the inherent jurisdiction of the court is very
wide but as stated by Edgar Joseph Jr. in Pacific Centre Sdn. Bhd. v.
2)
31
t.t.
( HASNAH BINTI DATO MOHAMMED HASHIM )
Judicial Commissioner
High Court of Malaya
Kuala Lumpur.
30th January 2012
Counsels:
For the Plaintiff/ Appellant:
Messrs. Mah Weng Kwai & Associates
Jeremy Yong
32
33