NGU HENG HWA @ JIMMY NGU & 6 ORS vs SURIX HOLDINGS SDN BHD (MJLR 2009a10), David Wong,3/12/209,SS
[K22-24-2007-I]
1
Jurisdiction: MALAYSIA
IN THE HIGH COURT IN SABAH & SARAWAK
AT KOTA KINABALU
Parties:
Plaintiffs : NGU HENG HWA @ JIMMY NGU & 6 others
19th Defendant : SURIX HOLDINGS SDN BHD
File Number:
K22-24 OF 2007
Issues:
Whether the 19th defendant’s cause of action in its counterclaim is sustainable?
If the answer to the 1st issue is in the affirmative, what damage can the 19th defendant claim?
Hearing Dates:
14.10.2009
Date of Decision:
3.12.2009
Judge:
HONOURABLE JUSTICE DAVID WONG DAK WAH
Representation:
For Plaintiffs : Mr. Thomas Ting Messrs. Ng & Ting Kota Kinabalu, Sabah
For 19th Defendant: Serena Liew with Sophia Lo Messrs. Vincent Wong & Co Kota Kinabalu, Sabah
[K22-24-2007-I]
2
JUDGMENT
3
Proceeding:
This is the counterclaim of the 19th defendant, the beneficial owner of unit HCGO1A, against the plaintiffs for damages arising from the alleged
6
wrongful closure of a unit at Wakiki Condominium at Tanjung Aru in Kota Kinabalu. The plaintiffs deny any liability on the ground that the closure was lawful as it was pursuant to a court order.
9
Background Facts:
DBKK by an application to the Magistrate Court in the case of DBKK v Leisure Avenue (the 2nd defendant in this case) applied for closure of various
12
units at the Wakiki Condominium on the ground that these units were being used as service apartments without any valid license. DBKK’s application was made after a complaint was made by the plaintiffs as to the activities of
15
the defendants at the Wakiki Condominium. One of these units is HCGO1A which was leased out to Leisure Avenue. The magistrate on 10.11.2006 granted the closure order against the various units named in DBKK
18
application. That order however was stayed until the disposal of the appeal
[K22-24-2007-I]
3
to the High Court which upheld the Magistrate Court decision on 5.1.2009. The closure order was then executed and lifted on 6.10.2009. The plaintiffs took out this suit on 25.1.2007 at which 3 time unit HCGO1A was rented out to Leisure Avenue pursuant to a Tenancy Agreement for a period of 2 years commencing 15.10.2005. The plaintiffs also took out an
6
application for injunction against the defendants but when the same came up for hearing the application was struck out as at that time there was not any illegal activities taking place as the High Court had affirmed the decision of
9
the magistrate court. Further the learned judge held that the plaintiff had obtained its relief with the closure order rendering the injunction unnecessary. On the 28.9.2009, the plaintiff withdrew its action against all the defendants which leaves the 19th
12
defendant’s counterclaim to adjudicate only.
Counterclaim:
15
This is set out in the pleadings as follows:
5.1 The 19th Defendant has in their Counterclaim pleaded that:-
i. Paragraph 1 of the 19th 18 Defendant’s Defence and Counterclaim -
The Plaintiffs’ action against the 19th Defendant is misconceived.
[K22-24-2007-I]
4
ii. Paragraph 2 – By virtue of the Plaintiffs’ admission in paragraph 14(ii)(b) of the Statement of Claim that Unit HC G1A of which the 19th Defendant is the beneficial owner, is used as an office of the 2nd Defendant,
3
the relief sought by the Plaintiffs to restrain the 19th Defendant from using its said Unit as a hotel and/or lodging house and/or as a service apartment is
6
frivolous and/or vexatious.
iii. Paragraph 10 – The 19th Defendant shall admit to paragraph 8 of the Statement of Claim but shall state that the usage of the said Condominium
9
envisages the carrying out of certain commercial activities such as operation of restaurant and shops.
iv. Paragraph 15 – In respect of paragraph 15 of the Statement of Claim the 19th
12
Defendant shall deny that it had breached any express condition in the title deed of the said Land or the terms and conditions of the Sale and Purchase Agreement and Mutual Covenants in the manner set out in sub15 paragraphs (a)-(b) thereto and that it has no knowledge of the other matters therein stated.
v. Paragraph 21 – On or about March 2007 the 2nd Defendant terminated
18
the Tenancy Agreement upon service of the Writ of Summons in this action against the 2nd Defendant.
5.2 Wherefore the 19th
21
Defendant has suffered losses and claims the Plaintiffs:-
a. Legal fees for defending Suit K22-24-2007 (Exh ATS-1 and ATS-2) RM52,500.00
24
Legal fees for defending Plaintiffs’ injunction RM20,000.00 Application (Exh. ATS-3)
Legal fees for defending Civil Appeal S-02-285-2009
27
(Exh, ATS-4) RM10,500.00
Legal fees for striking out Suit K22-24 of 2007 RM5,000.00 (Exh. ATS-5)
30
Legal fees for counterclaim in Suit K22-24 of 2007 RM30,000.00
(Exh ATX-6)
[K22-24-2007-I]
5
Disbursements RM2,000.00
Airfare/transportation expenses of Consultants Datu Dr. Ang Thain Soo’s (Sin/3 KK/Sin) trip from 13/09/06 to 27/09/09 (21 trips @ RM600) RM12,600.00
Loss of rental on closure of shop unit no. HC G01A
6
From 10/11/2006 to 06/10/09, the date when the Magistrates Court was removed from the door of shop unit no. HC G01A 36 months @ RM1,500.00 per month RM54,000.00
9
TOTAL RM186,600.00 ==========
12
I had, during the clarification of submissions hearing, asked counsel for the 19th defendant what cause of action does the 19th defendant come to court for relief. Is it ‘contractual’ or ‘tortious’? Initially she replied it is ‘contractual’ relying on the ground that its tenancy with the 2nd 15 defendant had been terminated. But when pointed out to her that the plaintiff is not a party to that tenancy agreement she changed her reply to ‘tortious’. With respect and 18 after hearing the evidence, the cause of action is, in plain English, premised on the allegation that the plaintiff was responsible for the closure of the 19th defendant’s premises as it had complained to the DBKK about the activities of the 2nd 21 defendant and that complaint was without basis. This complainant also led to the termination of the tenancy agreement between the 19th defendant and 2nd defendant on March 2007.
[K22-24-2007-I]
6
Two witnesses are called to testify on behalf of the 19th defendant. The first witness is the director of legal affairs of DBKK whose evidence is a clear admission that the closure order should not have 3 been included unit HCGO1A as there was no evidence that it was involved in illegal activity.
The 2nd witness is the consultant of the 19th defendant and central to his
6
evidence is this:
Q: What happened to your unit now?
A: The unit has been vacant since November 2006.
9
Q: I refer to paragraph 9 of your witness statement (counsel reads) – is the unit not rented out as at to date?
A: We were advised by our former lawyer that we cannot lease the unit out
12
until the suit is settled and the court order set aside.
Q: How much is the total costs of your damages?
A: RM54,000.00
15
Q: How did you quantify that amount?
A: Rental of RM1,500.00 per month
Based on those evidences the 19th
18
defendant claims that the plaintiffs were responsible for the wrongful closure of unit HCGO1A. The issue which I now face with is whether that is the case. The plaintiffs one can say took a
21
two pronged approach in this matter. The first one was to lodge a complaint to DBKK and the second is to take out this suit.
[K22-24-2007-I]
7
In respect of the DBKK’s complaint, the plaintiffs were merely exercising their legal right in lodging the complaint. Once the complaint was lodged, DBKK had a statutory duty to investigate and bring 3 the matter to the magistrate if it finds that there is prima facie evidence.
In this case that is what happened. DBKK was able to obtain a closure order on 10.11.2006
6
from the magistrate court. That order was stayed pending an appeal to the High Court which heard it on 5.1.2009 and affirmed the closure order. From that sequence of event, unit HCGO1A was never affected by the closure order until 5.1.2009. What that means is that the 19th
9
defendant had full and unlimited access to its unit as the stay of the closure order in plain English meant that there was no closure order. It is the period from 5.1.2009 to 6.10.2009 that the 19th
12
defendant could not have access to the unit. Who is responsible for that? Is it the plaintiffs or DBKK? In my view it can only be the plaintiffs if they had lodged the report to DBKK with malicious intention
15
and without any factual basis. No such evidence is before the court, in fact the evidence points to the contrary. The courts at both levels had upheld the DBKK’s investigation of the complaint. The fact that DBKK now admits
18
there is a mistake does not make the complaint malicious.
What puzzles the court now is that why this mistake was not exposed earlier on bearing in mind that the 19th defendant had two occasions in court to do so.
[K22-24-2007-I]
8
Accordingly I find that it is DBKK who is directly responsible for the closure order. That said but I express no opinion on whether DBKK’s admission of the mistake gives rise to a cause of action by the 19th 3 defendant against DBKK. The court will leave that question to another day.
Further it should be noted that the plaintiffs never got an injunction in this
6
case as the learned judge had rightly held that the plaintiff had an closure order which equated to the injunction asked for. Simply put the plaintiffs in this suit never closed unit HCGO1A, hence no damage can be given even if
9
the court finds that the injunction had been granted. Even if I am wrong in my conclusion, the 19th defendant cannot claim for loss of rental for the period from 10.11.2006 to 5.1.2009.
As for the period
12
from 5.1.2009 to 6.10.2009, there is no evidence in court as to whether the unit HCGO1A can be readily leased and at what price. It is trite law that damage must be proved and what that means is that evidence must be called
15
to prove what I have stated. In respect of the other damage listed in the statement of claim, the claim of legal fees with respect is misconceived as they relate to costs to be awarded by the court. The same applies to the claim
18
for disbursement and travel costs.
[K22-24-2007-I]
9
Accordingly I dismiss the counterclaim with costs to be taxed unless agreed to the plaintiffs. As for the costs of withdrawal of the plaintiffs’ suit against the 19th defendant which I had reserved for ruling, I give costs to the 19th
3
defendant an amount equivalent to the taxed costs awarded to the plaintiffs for the counterclaim.
6
(DATUK DAVID WONG DAK WAH)
9
Judge
12
15
18
21
24
27
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision.
1
Jurisdiction: MALAYSIA
IN THE HIGH COURT IN SABAH & SARAWAK
AT KOTA KINABALU
Parties:
Plaintiffs : NGU HENG HWA @ JIMMY NGU & 6 others
19th Defendant : SURIX HOLDINGS SDN BHD
File Number:
K22-24 OF 2007
Issues:
Whether the 19th defendant’s cause of action in its counterclaim is sustainable?
If the answer to the 1st issue is in the affirmative, what damage can the 19th defendant claim?
Hearing Dates:
14.10.2009
Date of Decision:
3.12.2009
Judge:
HONOURABLE JUSTICE DAVID WONG DAK WAH
Representation:
For Plaintiffs : Mr. Thomas Ting Messrs. Ng & Ting Kota Kinabalu, Sabah
For 19th Defendant: Serena Liew with Sophia Lo Messrs. Vincent Wong & Co Kota Kinabalu, Sabah
[K22-24-2007-I]
2
JUDGMENT
3
Proceeding:
This is the counterclaim of the 19th defendant, the beneficial owner of unit HCGO1A, against the plaintiffs for damages arising from the alleged
6
wrongful closure of a unit at Wakiki Condominium at Tanjung Aru in Kota Kinabalu. The plaintiffs deny any liability on the ground that the closure was lawful as it was pursuant to a court order.
9
Background Facts:
DBKK by an application to the Magistrate Court in the case of DBKK v Leisure Avenue (the 2nd defendant in this case) applied for closure of various
12
units at the Wakiki Condominium on the ground that these units were being used as service apartments without any valid license. DBKK’s application was made after a complaint was made by the plaintiffs as to the activities of
15
the defendants at the Wakiki Condominium. One of these units is HCGO1A which was leased out to Leisure Avenue. The magistrate on 10.11.2006 granted the closure order against the various units named in DBKK
18
application. That order however was stayed until the disposal of the appeal
[K22-24-2007-I]
3
to the High Court which upheld the Magistrate Court decision on 5.1.2009. The closure order was then executed and lifted on 6.10.2009. The plaintiffs took out this suit on 25.1.2007 at which 3 time unit HCGO1A was rented out to Leisure Avenue pursuant to a Tenancy Agreement for a period of 2 years commencing 15.10.2005. The plaintiffs also took out an
6
application for injunction against the defendants but when the same came up for hearing the application was struck out as at that time there was not any illegal activities taking place as the High Court had affirmed the decision of
9
the magistrate court. Further the learned judge held that the plaintiff had obtained its relief with the closure order rendering the injunction unnecessary. On the 28.9.2009, the plaintiff withdrew its action against all the defendants which leaves the 19th
12
defendant’s counterclaim to adjudicate only.
Counterclaim:
15
This is set out in the pleadings as follows:
5.1 The 19th Defendant has in their Counterclaim pleaded that:-
i. Paragraph 1 of the 19th 18 Defendant’s Defence and Counterclaim -
The Plaintiffs’ action against the 19th Defendant is misconceived.
[K22-24-2007-I]
4
ii. Paragraph 2 – By virtue of the Plaintiffs’ admission in paragraph 14(ii)(b) of the Statement of Claim that Unit HC G1A of which the 19th Defendant is the beneficial owner, is used as an office of the 2nd Defendant,
3
the relief sought by the Plaintiffs to restrain the 19th Defendant from using its said Unit as a hotel and/or lodging house and/or as a service apartment is
6
frivolous and/or vexatious.
iii. Paragraph 10 – The 19th Defendant shall admit to paragraph 8 of the Statement of Claim but shall state that the usage of the said Condominium
9
envisages the carrying out of certain commercial activities such as operation of restaurant and shops.
iv. Paragraph 15 – In respect of paragraph 15 of the Statement of Claim the 19th
12
Defendant shall deny that it had breached any express condition in the title deed of the said Land or the terms and conditions of the Sale and Purchase Agreement and Mutual Covenants in the manner set out in sub15 paragraphs (a)-(b) thereto and that it has no knowledge of the other matters therein stated.
v. Paragraph 21 – On or about March 2007 the 2nd Defendant terminated
18
the Tenancy Agreement upon service of the Writ of Summons in this action against the 2nd Defendant.
5.2 Wherefore the 19th
21
Defendant has suffered losses and claims the Plaintiffs:-
a. Legal fees for defending Suit K22-24-2007 (Exh ATS-1 and ATS-2) RM52,500.00
24
Legal fees for defending Plaintiffs’ injunction RM20,000.00 Application (Exh. ATS-3)
Legal fees for defending Civil Appeal S-02-285-2009
27
(Exh, ATS-4) RM10,500.00
Legal fees for striking out Suit K22-24 of 2007 RM5,000.00 (Exh. ATS-5)
30
Legal fees for counterclaim in Suit K22-24 of 2007 RM30,000.00
(Exh ATX-6)
[K22-24-2007-I]
5
Disbursements RM2,000.00
Airfare/transportation expenses of Consultants Datu Dr. Ang Thain Soo’s (Sin/3 KK/Sin) trip from 13/09/06 to 27/09/09 (21 trips @ RM600) RM12,600.00
Loss of rental on closure of shop unit no. HC G01A
6
From 10/11/2006 to 06/10/09, the date when the Magistrates Court was removed from the door of shop unit no. HC G01A 36 months @ RM1,500.00 per month RM54,000.00
9
TOTAL RM186,600.00 ==========
12
I had, during the clarification of submissions hearing, asked counsel for the 19th defendant what cause of action does the 19th defendant come to court for relief. Is it ‘contractual’ or ‘tortious’? Initially she replied it is ‘contractual’ relying on the ground that its tenancy with the 2nd 15 defendant had been terminated. But when pointed out to her that the plaintiff is not a party to that tenancy agreement she changed her reply to ‘tortious’. With respect and 18 after hearing the evidence, the cause of action is, in plain English, premised on the allegation that the plaintiff was responsible for the closure of the 19th defendant’s premises as it had complained to the DBKK about the activities of the 2nd 21 defendant and that complaint was without basis. This complainant also led to the termination of the tenancy agreement between the 19th defendant and 2nd defendant on March 2007.
[K22-24-2007-I]
6
Two witnesses are called to testify on behalf of the 19th defendant. The first witness is the director of legal affairs of DBKK whose evidence is a clear admission that the closure order should not have 3 been included unit HCGO1A as there was no evidence that it was involved in illegal activity.
The 2nd witness is the consultant of the 19th defendant and central to his
6
evidence is this:
Q: What happened to your unit now?
A: The unit has been vacant since November 2006.
9
Q: I refer to paragraph 9 of your witness statement (counsel reads) – is the unit not rented out as at to date?
A: We were advised by our former lawyer that we cannot lease the unit out
12
until the suit is settled and the court order set aside.
Q: How much is the total costs of your damages?
A: RM54,000.00
15
Q: How did you quantify that amount?
A: Rental of RM1,500.00 per month
Based on those evidences the 19th
18
defendant claims that the plaintiffs were responsible for the wrongful closure of unit HCGO1A. The issue which I now face with is whether that is the case. The plaintiffs one can say took a
21
two pronged approach in this matter. The first one was to lodge a complaint to DBKK and the second is to take out this suit.
[K22-24-2007-I]
7
In respect of the DBKK’s complaint, the plaintiffs were merely exercising their legal right in lodging the complaint. Once the complaint was lodged, DBKK had a statutory duty to investigate and bring 3 the matter to the magistrate if it finds that there is prima facie evidence.
In this case that is what happened. DBKK was able to obtain a closure order on 10.11.2006
6
from the magistrate court. That order was stayed pending an appeal to the High Court which heard it on 5.1.2009 and affirmed the closure order. From that sequence of event, unit HCGO1A was never affected by the closure order until 5.1.2009. What that means is that the 19th
9
defendant had full and unlimited access to its unit as the stay of the closure order in plain English meant that there was no closure order. It is the period from 5.1.2009 to 6.10.2009 that the 19th
12
defendant could not have access to the unit. Who is responsible for that? Is it the plaintiffs or DBKK? In my view it can only be the plaintiffs if they had lodged the report to DBKK with malicious intention
15
and without any factual basis. No such evidence is before the court, in fact the evidence points to the contrary. The courts at both levels had upheld the DBKK’s investigation of the complaint. The fact that DBKK now admits
18
there is a mistake does not make the complaint malicious.
What puzzles the court now is that why this mistake was not exposed earlier on bearing in mind that the 19th defendant had two occasions in court to do so.
[K22-24-2007-I]
8
Accordingly I find that it is DBKK who is directly responsible for the closure order. That said but I express no opinion on whether DBKK’s admission of the mistake gives rise to a cause of action by the 19th 3 defendant against DBKK. The court will leave that question to another day.
Further it should be noted that the plaintiffs never got an injunction in this
6
case as the learned judge had rightly held that the plaintiff had an closure order which equated to the injunction asked for. Simply put the plaintiffs in this suit never closed unit HCGO1A, hence no damage can be given even if
9
the court finds that the injunction had been granted. Even if I am wrong in my conclusion, the 19th defendant cannot claim for loss of rental for the period from 10.11.2006 to 5.1.2009.
As for the period
12
from 5.1.2009 to 6.10.2009, there is no evidence in court as to whether the unit HCGO1A can be readily leased and at what price. It is trite law that damage must be proved and what that means is that evidence must be called
15
to prove what I have stated. In respect of the other damage listed in the statement of claim, the claim of legal fees with respect is misconceived as they relate to costs to be awarded by the court. The same applies to the claim
18
for disbursement and travel costs.
[K22-24-2007-I]
9
Accordingly I dismiss the counterclaim with costs to be taxed unless agreed to the plaintiffs. As for the costs of withdrawal of the plaintiffs’ suit against the 19th defendant which I had reserved for ruling, I give costs to the 19th
3
defendant an amount equivalent to the taxed costs awarded to the plaintiffs for the counterclaim.
6
(DATUK DAVID WONG DAK WAH)
9
Judge
12
15
18
21
24
27
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision.
