Kong (right) with his lawyer Chung Jiun Dau at the Kota Kinabalu High Court after the landmark ruling by Justice Haji Alwi on May 13.
KOTA KINABALU: The 14-year-long legal tussle over the controversial Tawau Sabindo ‘Open Space’ development between 10 ratepayers and the developers has finally ended following the recent Tawau High Court to dismiss the ratepayers’ leave for an order of committal proceedings against the developers.
In the landmark verdict, High Court judge Justice Haji Alwi Bin Haji Abdul Wahab held that the ratepayers’ amended High Court judgment and amended High Court order had never been served personally on the developers and its managing director, Dato’ Sri Alex Kong Hoi Chieng.
Furthermore the amended High Court judgment and amended High Court order have never been sealed in the High Court.
It is a basic principle that personal service of the sealed judgment/order is necessary before committal proceedings can be commenced according to Order 45 rule 7(2) of the RHC 1980.
Justice Alwi also ordered the 10 ratepayers (applicants), 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 to pay RM2,000 cost to the developers (respondents) Jeramas Sdn Bhd and managing director, Dato’ Sri Alex Kong Hoi Chieng.
The developers (respondents) were represented by lawyer Chung Jiun Dau of Messrs. Chung & Associates, and Counsel, Mark Rosaidey Bin Mohd. Amin Jaafar acted for the ratepayers.
To recap, on 25 August 2015, Judicial Commissioner Azhahari Kamal Bin Ramli made a ruling that the court order dated 23 October 2009 mentioned about the developers’ obligation to dismantle, remove and clear all plants, equipment and materials laden on ‘Block D’ i.e. the said piece of land involved in the joint venture between the Tawau Municiapl Council (TMC) and Jeramas Sdn Bhd.
It however did not talk about the developers’ obligation to dismantle, remove and clear the existing uncompleted structure on ‘Block D’.
Azhahari further stated that the ratepayers (applicants) are not allowed to amplify the court order by reading the grounds of decision into the court order dated 23 October 2009.
Based on the aforesaid, Azhahari dismissed the ratepayers’ application for leave for committal proceedings against the developers with cost of RM15,000 to the developers.
Not satisfied with the decision made by the High Court, the ratepayers on 14 December 2015 filed a Notice of Application for leave to amend the High Court order and judgment dated 23 October 2009, after a lapse of six years.
On 10 June, 2016, the High Court judge, Yew Jen Kie granted the leave to the ratepayers to amend the High Court order and High Court judgment dated 23 October 2009, compelling the developers to dismantle, remove and clear the existing uncompleted structure on Block D within six months from 23 October 2009.
However, after the court has granted the leave to the ratepayers to amend the High Court order and High Court judgment, the ratepayers’ solicitors did not serve the amended High Court order and the amended High Court judgment on the developers personally.
Furthermore, the ratepayers’ solicitor did not file the amended High Court order and the amended High Court judgment for sealing in the High Court.
Subsequently, on 9 August 2018, the ratepayers’ new solicitors, Messrs. Amin Jaafar & Co, applied for an order of committal against the developers and its director, Kong Hoi Chieng with the intention of committing the latter to prison for contempt of court, that is, for disobeying the amended court judgment and amended court order dated 23 October 2009.
On 7 January 2019, the developers’ solicitors, Messrs. Chung & Associates, filed a submission to set aside the said leave on the grounds that the amended order and amended judgment, which were not sealed, have not been served on the developers personally.
Based on the aforesaid, the High Court judge, Justice Haji Alwi, on 13 May 2019 set aside the ratepayers’ leave with cost of RM2,000 to the developers.