KOTA KINABALU: The Federal Court yesterday unanimously held that the High Court and the Court of Appeal were correct in their decision which ordered the developer to dismantle the illegal structures at the Sabindo open spaces.
Federal Court judges, Justices Tan Sri Dato’ Seri Raus Sharif, Tan Sri Dato’ Seri Zulkefli Ahmad Makinudin, Tan Sri Datuk Seri Panglima Richard Malanjum, Tan Sri Abdul Hamid Embong and Dato’ Jeffrey Tan Kok Wha dismissed with cost the appeal by Aggasf Contsruction Sdn Bhd and Jeramas Sdn Bhd against the judgment of High Court Judicial Commissioner Puan Yew Jen Kie and the Court of Appeal.
During the trial on June 10, 12, 15, 16, 17, 18 and 19, 2009 before Judicial Commissioner Yew Jen Kie, in her ruling on October 23, 2009, she adjudged the Joint Venture (JV) Agreement between the first defendants, Aggast Construction Sdn Bhd and Jeramas Sdn Bhd and second defendant, Tawau Municipal Council dated December 13 and 16 1996 are invalid, illegal and unenforceable being ultra vires the Local Government Ordinance 1961 and the Tawau Municipal Council Instrument 1983.
The judgment delivered compels the first defendants to dismantle, remove and clear all plants, equipment and materials laden on Block D within six months and 50 percent of costs to the plaintiffs.
The upholding of the decision of the High Court means the developer must remove the illegal uncompleted structures as there is a clear vindication of the rulling that the JV agreement were also bad in the first place and that any development pursuant to the JV is also unlawful.
The plaintiffs, Chong Sui Jin, Yong Sie King, Lee Kok Ming, Pang Koh Len, Wong Chew See, Chin Kon Tai, Chen Yuh Bih, Lim Kon Hock, Yong Yu Min and Rev. James Wong Chong Leong were represented by counsel Datuk Simon Shim.
Photo/Court-KK
The plaintiffs and supporters with their counsel Datuk Simon Shim (third right) outside the court yesterday.
CHRONOLOGY OF EVENTS
(a) On 14.12.2005, the plaintiffs filed the Writ of Summons and Statement of Claim as well as an application for interim injunctive relief;
(b) On 01.03.2006, Justice Datuk Nurchaya Hj Arsah dismissed the plaintiffs’ application for interim injunctive relief on the preliminary ground that the plaintiffs had no locus stand;
(c) On 06.03.2006, the plaintiffs filed a Notice of Appeal to the Court of Appeal against the decision of the High Court and filed the Record of Appeal on 02.05.2006;
(d) On 02.06.2006, the first defendant filed the first application to strike out the Writ of Summons and Statement of Claim dated 14.12.2005 [hereinafter referred to as ‘First Defendant’s First Striking Out Application’];
(e) On 25.06.2007, the Court of Appeal allowed the plaintiffs’ appeal against the decision of the High Court in dismissing the plaintiffs’ application for interim injunctive relief. The Court of Appeal ruled that the plaintiffs had locus standi to institute proceedings and remitted the plaintiffs’ application for interim injunctive relief back to the High Court to be determined on the merits;
(f) On 03.09.2007, the first defendant filed an application to stay all proceedings pending the determination of the first defendant’s application for leave to appeal to the Federal Court against the decision of the Court of Appeal handed down on 25.06.2007;
(g) On 27.09.2007, the High Court heard the plaintiffs’ application for interim injunctive relief;
(h) On 05.11.2007, the High Court allowed the plaintiffs’ application for interim injunctive relief. The first defendant subsequently filed a Notice of Appeal to the Court of Appeal on 29.11.2007. No date has yet been fixed;
(i) On 26.11.2007, the High Court heard the first defendant’s application for a stay of proceedings and the First Defendant’s First Striking Out Application;
(j) On 05.12.2007, the High Court dismissed both the first defendant’s application for a stay of proceedings and the First Defendant’s First Striking Out Application;
(k) On 07.12.2007, the first defendant filed Notice of Appeal in respect of the first defendant’s application for a stay of proceedings and the First Defendant’s Striking Out Application. No date has yet been fixed;
(l) On 10.12.2007, the first defendant filed this application to stay all proceedings pending the full and final disposal of the first defendant’s appeals to the Court of Appeal and/or until and after the conclusion and disposal of the first defendant’s application for leave to appeal to the Federal Court vide Civil Application No. 08-146-2007(S) and Civil Application No. 08-147-2007(S).
(m) On 19.12.2007, the High Court entered consent judgment against the second defendant whereby they conceded and agreed to the prayers of the Statement of Claim except for damages. Further, the second defendant undertook not to contest the plaintiff’s claim for injunctions.
(n) On 25.02.2008, the first defendants’ stay application was dismissed in Court of Appeal with no order as to costs.
(o) On 29.02.2008, trial adjourned to 21.4.2008 because of Judges Conference in Kuala Lumpur.
(p) On 26.03.2008, first mediation session before Datuk Clement Skinner.
(q) On 07.04.2008, second mediation session before Datuk Clement Skinner.
(r) On 21.04.2008, third mediation session before Datuk Clement Skinner. Trial was adjourned.
(s) On 10.06.2008, mention fixed before Judicial Commissioner Puan Yew Jen Kie, trial fixed on 7.10.2008.
(t) On 25.08.2008, first defendants’ application for leave to appeal to the Federal Court dismissed with costs.
(u) On 07.10.2008, counsels for the first and second defendants informed the court that the defendants had mutually agreed for the Development Plans and the Joint Venture Agreements to be terminated, therefore the subject matter has disappeared. Court fixed next mention on 14.10.2008 for the plaintiffss counsel to seek instruction as to the next course of action.
(v) On 14.10.2008, the court granted the plaintiffs an adjournment to enable them to consult experts as to whether the structures can be demolished.
(w) On 05.01.2009, the plaintiffss counsel informed court that the structures must be demolished, if not, the trial must proceed. The first and second defendants indicated possibility of filing application to strike out the plaintiffs’ claim. Counsel for the first defendants insisted that the matter has nothing to do with them anymore as the subject matter of the case has disappeared, i.e. the Joint Venture Agreement and the Development Plan have been terminated.
(x) On 11.02.2009, next mention date fixed on 20.03.2009 as the Federal Attorney General Chambers is looking into the matter. Counsels for the first and second defendants repeated their contention that the subject matter has disappeared. The plaintiffs insisted that outstanding issues such as the prayers for prohibitory and mandatory injunction can only be dealt with at trial.
(y) On 20.03.2009, trial date fixed on 15.06.2009 and the first defendants filed the second striking out application and application to set aside consent judgment entered between the plaintiffs and second defendant on 19.12.2007.