Peng Bee Sdn Bhd v Teoh Liang Teh & Ors

[2001] 1 MLJ (Shaik Daud JCA) 1

A Peng Bee Sdn Bhd v Teoh Liang Teh & Ors

COURT OF APPEAL (KUALA LUMPUR) — CIVIL APPEAL NO P–02–568
OF 1995
SHAIK DAUD, SITI NORMA YAAKOB AND HAIDAR JJCA
17 OCTOBER 2000
B
Limitation — Contract — Action for breach of contract for transfer of land — Failure to
deliver vacant possession — Whether claim statute barred due to limitation — Limitation
Act 1953 s 9
By a sale and purchase agreement in 1980, the appellant and one
Teoh Tiang Ming (deceased) agreed to purchase land from the third
C
and fourth respondent. The appellant paid the deposit and part
payment of the purchase price. The land was subsequently sold by the
first to fourth respondents to the fifth, sixth and seventh respondents
but the sale did not go through as the first to fourth respondents could
not deliver vacant possession. It was contended by the first to fourth
D respondents that by a letter dated 7 June 1982, the deceased had
proposed to sell the property without vacant possession at a lower
price but the appellant had refused the offer. Notice was then sent
informing the appellant that the first to fourth respondents were
unable to give vacant possession of the land as stipulated in the terms
of the sale and purchase agreement. This resulted in breach of the
E agreement. On 13 January 1995, the appellant filed a writ claiming for
specific performance of the sale and purchase agreement. The first to
fourth respondents applied to strike out the action on the ground that
the claim was statute barred and the action was vexatious and an
abuse of court process. It was contended by the first to fourth
respondents that the appellant’s claim was commenced more than six
F years after the cause of action arose and was therefore caught by
limitation.

Held, striking out the action, dismissing the appeal and ordering the
deposit to go to account of costs:
G For the purpose of limitation, time begins to run from the date of any
infringement or threat of infringement of the appellant’s right under a
sale and purchase agreement (see p 4E); Nasri v Mesah [1971] 1 MLJ
32 followed. In the present appeal, time began to run following the
inability of the first to fourth respondents to give vacant possession.
H The present action was filed more than 12 years after the cause of
action arose and was, pursuant to s 9 of the Limitation Act 1953,
statute barred (see p 4F).

[Bahasa Malaysia summary

I Melalui satu perjanjian jualbeli pada tahun 1980, perayu serta seorang
Teoh Tiang Ming (simati) bersepakat membeli tanah daripada
responden ketiga dan keempat. Perayu membayar wang deposit dan
2 Malayan Law Journal [2001] 1 MLJ

pembayaran sebahagian harga belian. Tanah tersebut kemudiannya A

dijual oleh responden pertama hingga keempat kepada responden
kelima, keenam dan ketujuh tetapi urusan jualan tersebut tidak
berjaya kerana responden pertama hingga keempat tidak dapat
menyampaikan milikan kosong. Ditegaskan oleh responden pertama
hingga keempat bahawa melalui surat yang bertarikh 7 Jun 1982,
simati telah bercadang menjual hartanah tersebut tanpa milikan B
kosong pada harga yang lebih rendah tetapi perayu telah menolak
tawaran tersebut. Notis kemudiannya disampaikan memberitahu
perayu bahawa responden pertama hingga keempat tidak dapat
menyampaikan milikan kosong tanah tersebut seperti mana yang
ditetapkan dalam terma perjanjian jualbeli tersebut. Ini
C
mengakibatkan kemungkiran perjanjian tersebut. Pada 13 Januari
1995, perayu memfailkan writ menuntut pelaksanaan khusus
perjanjian jualbeli tersebut. Responden pertama hingga keempat
memohon ingin membatalkan tindakan tersebut atas alasan tuntutan
itu dihalang statut dan tindakan itu menyusahkan dan merupakan
penyalahgunaan proses mahkamah. Ditegaskan oleh responden D
pertama hingga keempat bahawa tuntutan perayu dimulakan lebih
dari enam tahun selepas alasan tindakan itu muncul, dan oleh itu
dihalang oleh pembatasan had masa.

Diputuskan, membatalkan tindakan tersebut dan mengarahkan

deposit dimasukkan ke dalam akaun kos: E
Bagi tujuan pembatasan, masa mulai diambilkira dari tarikh mana-
mana pelanggaran atau ugutan pelanggaran hak perayu di bawah
perjanjian jualbeli (lihat ms 4E); Nasri v Mesah [1971] 1 MLJ 32
diikut. Dalam rayuan ini, masa mulai diambilkira berikutan kegagalan
responden pertama hingga keempat menyampaikan milikan kosong.
F
Tindakan semasa ini telah difailkan lebih dari 12 tahun selepas alasan
tindakan timbul dan menurut s 9 Akta Pembatasan 1953, adalah
dihalang statut (lihat ms 4F).]

Notes G
For a case on action for breach of contract for transfer of land, see
9 Mallal’s Digest (4th Ed, 1995 Reissue) para 1812.

Cases referred to
Nasri v Mesah [1971] 1 MLJ 32 (folld) H

Legislation referred to
Limitation Act 1953 ss 6(1)(a), 9
Rules of the High Court 1980 O 18 rr 19(1)(a), (b), (c)
I
Appeal from: Civil Suit No 22–6 of 1995 (High Court, Pulau
Pinang)
Peng Bee Sdn Bhd v Teoh Liang Teh & Ors
[2001] 1 MLJ (Shaik Daud JCA) 3

A Teja Singh Penesar (Teja Singh Penesar & Co) for the appellant.
Mahinder Singh Dulku (Bernard Kok with him) (Ban Eng Anual & Foong)
for the first, second, third and fourth respondents.
Chua Leng Poh (Khor Anuar & Khong) for the fifth, sixth and seventh
respondents.
B Shaik Daud JCA. (delivering judgment of the court): This appeal is from
the decision of the Penang High Court which had confirmed the order of
the learned senior assistant registrar in allowing an application by the
respondents to strike out the writ and statement of claim filed by the
appellant under O 18 r 19(1)(a)(b) and/or (c) of the Rules of the High
Court 1980.
C
Briefly, the facts are that on 11 August 1980, by a sale and purchase
agreement made between the appellant of the one part and one Teoh Tiang
Ming (deceased) together with the third and fourth respondents of the other
part, the appellant agreed to purchase three pieces of land known as
Holdings No 81, 82 & 83, s 1 Town of Butterworth, Province Wellesley
D North, for a consideration of RM422,525. Pursuant to the said agreement,
the appellant paid a sum of RM42,252.50 as deposit and part payment of
the purchase price. The balance of the purchase price was to be paid in three
instalments, the last of such instalments was to be made within 12 months
of the date of the execution of the sale and purchase agreement, or within
one month from the receipt of a written notice from the first to fourth
E respondents confirming that vacant possession of the said properties could
be delivered to the appellant, whichever was the later.
The first to fourth respondents subsequently sold the said properties to
the fifth, sixth and seventh respondents on 11 April 1994, who soon
thereafter lodged a caveat over the properties.
F The sale did not go through because the first to fourth respondents
could not deliver vacant possession. The appellant filed a writ and
statement of claim on 13 January 1995 for specific performance and other
ancillary orders. The first to fourth respondents filed an application for the
action to be struck out under O 18 r 19(1)(a)(b) and (c) and a similar
application was filed thereafter by the fifth to seventh respondents. The first
G to fourth respondents’ reasons for striking out were that the claim was
statute barred and the action was vexatious and an abuse of the court
process.
The first to fourth respondents contend that the cause of action arose
around 1982 when the deceased, Teoh Tiang Ming, conveyed to the
H appellant’s representative that he was unable to sell the land with vacant
possession, in accordance with the sale and purchase agreement. Pursuant
to this, a letter dated 7 June 1982 was sent to the appellant’s solicitors,
proposing to sell the said properties without vacant possession but at a lower
price. The appellant did not accept this offer. Therefore, it is contended that
the breach of the 1980 agreement occurred in 1982 when the first to fourth
I respondents failed to persuade the appellant to purchase the properties
without vacant possession but at a lower price. It is further contended that
this offer was to make substantive variations to the sale and purchase
4 Malayan Law Journal [2001] 1 MLJ

agreement. Since the first to fourth respondents could not perform the A
agreement, a breach had thereby occurred. The cause of action had then
arisen to enable the appellant to sue the first to fourth respondents. As this
was a claim for specific performance of a sale and purchase agreement,
which essentially is a claim based on contract, s 6(1)(a) of the Limitation
Act 1953 applies, and the action having been commenced more than six
years after the cause of action arose, is caught by limitation. The statement B
of defence fled by the first to fourth respondents centered mainly on
limitation but the appellant failed to reply.
The issue, therefore, is when did the period of limitation begin to run
in this case. It is contended by the learned counsel for the first to fourth
respondents that it ran from 1982 when notice was sent to the appellant that C
the first to fourth respondents were unable to give vacant possession
pursuant to the terms of the sale and purchase agreement. In Nasri v Mesah
[1971] 1 MLJ 32, the appellant claimed specific performance of a sale and
purchase agreement dated 5 June 1947, for the sale of land by the
respondent to him. The appellant had paid the agreed price for the land but
no document of transfer was executed because of a moratorium then in D
force over the land. After the expiration of the moratorium on 30 September
1949, the appellant approached the respondent on several occasions and
requested her to execute the transfer of the land but she failed to do so.
Eventually the appellant commenced the action on 3 March 1967. The
action was dismissed in the High Court on the ground of limitation.
E
On appeal, the Federal Court in allowing the appeal held that time
begins to run, for the purpose of limitation, from the date of any
infringement or threat of infringement of the appellant’s right under the
agreement.
In the present appeal we agree with the learned counsel for the first to
fourth respondents that time began to run from the notice dated 7 June F
1982 following the inability of the first to fourth respondents to give vacant
possession. The present action filed on 13 January 1995 — more than
12 years after the cause of action arose, is, we say, statute barred pursuant
to s 9 of the Limitation Act 1953 (see Nasri v Mesah). The action is
unmaintainable and is rightly struck out. As for the fifth and seventh
respondents, they are subsequent purchasers and they ought not to be made G
parties to the action as there is no cause of action against them. We had
therefore, dismissed the appeal with costs, and ordered the deposit to go to
account of costs.
Action struck out and appeal dismissed.
H
Reported by Anitha MI Raman