Jasnih Bin Vesar & Others v Lembaga Pembangunan Labuan, 28-05-2008

CourtHigh Court (Malaysia)
JudgeJustice Datuk Ian H. C. Chin
Judgment Date28 May 2008
Record Number23-08-2001

Notes of proceedings – Preliminaries



MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK

AT FEDERAL TERRITORY OF LABUAN

CIVIL SUIT L 22-23-2001

&

CIVIL SUIT L 23-08-2001


JASNIH BIN VESAR & OTHERS - PLAINTIFF

V

1.LEMBAGA PEMBANGUNAN LABUAN

2.SYARIKAT USAHASAMA KAM-LDAH SDN BHD - DEFENDANTS




NOTES OF PROCEEDINGS

IN OPEN COURT

20 MAY 2008

AT 10:07 A.M.


Coram: Justice Datuk Ian H. C. Chin

For Plaintiff: Ansari Abdullah & Mohd Shariff Abdullah

For 1st Defendants: Colin Lau

For 2nd Defendant: Absent and unrepresented

For 3rd Defendant: Absent and unrepresented



Ansari: Both 2nd and 3rd Defendants have failed to file their defence and have failed to appear. Their lawyer Angela Ubu & Associates failed to get a discharge, had been informed of the hearing but is absent. Move for judgment to be entered for damages to be assessed by the registrar.


Court: We cannot have another trial since the damages will be gone into in the trial involving the 1st Defendant


Ansari: Order that the 2nd and 3rd Defendant be bound by the award of damages at the end of the trial.


Court: In that case judgment cannot as yet be entered against the 2nd and 3rd Defendant till after the conclusion of the trial since only then would the damages, if any, be known, for which judgment is to be entered. Counsel can at the end of the end of the trial move for judgment.


Ansari: Agreed on the facts and issues


Lau: Confirm.


Court: Both documents reproduced below.








Justice Datuk Ian H.C. Chin.



[The following space is left blank deliberately.]



































































Ansari: Have submitted a written opening speech (reproduced below)_ but would add that that the dates for agreement of 8th 11th and 19th Plaintiff should be 28 October 1995, for 13th Plaintiff it should be 20 November 1995, 21st Plaintiff, 9 November 1995. Agreed facts are between Plaintiffs and 1st Defendant only.













Court: Are you calling every Plaintiff or just one and by agreement of counsel the finding to bind all the other Plaintiffs.


Lau: Deceit allegation said to be practiced on seventeen plaintiffs, they have to be called to prove their allegation.


Ansari: There are altogether 5 bundles, 3 from Plaintiff (marked P1, P2 and P3) and 2 from 1st Defendant (marked D1 and D2). As for Plaintiffs documents, the following are disputed as to both existence and contents:


  1. P1 items 8-14, 16-17, 19, 21-23, 28-29, 32-38;

  2. P2 items 49, 56 and 57;

  3. P3 item 61, 63-66.


As for the 1st Defendant’s bundles, dispute only the following with regards to both existence and contents:


  1. D1, item 2, 4 and 6


Lau: I do not have items 55 onwards for P2.


Ansari: Giving him our copy containing those pages.


Lau: P1, item 3 also disputed. As for other documents, only agreed as to existence


Court: Plaintiff counsel to take note. The documents admitted as evidence (subject to reservation expressed) are:


  1. P1(1-4, 6-30, 38-138, 141, 143, 148-210 & 213-250)

  2. P2 (258-422, 424-558);

  3. P3 (563-598, 601-602);

  4. D1 (1-6, 17-20, 47);and

  5. D2 (50-55)


Ansari: I will call my first witness

PW1: JASNIH BIN BESAR

Affirmed in Malay


Examination-in-chief: Age 49, residing at M59-2003 Taman Mutiara, Kg Sungai Dedaun, Labuan, supervisor working for Petronas Methenol Labuan First came to know of Taman Mutiara housing project through radio RML and friends, in 1995. Developer was 2nd Defendant. First I filled up the form and then I went to 2nd Defendant’s office and submitted the form D2(54-55). I got the form from my friend. The contents stated by me are true. I returned form to a representative of the 2nd Defendant. I did not attend any interview to qualify. I just submit the form. I did not receive letter of offer from the 1st Defendant and I did not received any letter similar to P1(27). I knew of earth breaking ceremony on 21 April 1995, a friend whose name I cannot remember informed me. After that ceremony I went to 2nd Defendant office and paid deposit of 10% of the purchase price and signed P1(151-180) in the office of the 2nd Defendant, cannot remember their office. It was in Taman Wong Wo Lu.


Q At the time of signing to your mid what was the role of the 1st Defendant

A I was confident that the project would be carried out by the 1st Defendant because the 1st Defendant distributed all the pamphlets to all the purchasers


Q What else did the 1st Defendant do

A I cannot remember





Q Was the house that you bought completed within the stipulated time

A No, supposed to be in 1998 but only handed to me after CF issued in July 2004


Q When the house was not completed in time what did you do

A I appointed a lawyer to sue the three defendants


P1(181-202) show my employer financing my purchase. Not informed by Petronas as to the payment they made to the 2nd Defendant. P1(36) notice of payment from Petronas to developer. Amount was paid by Petronas. Document said vacant possession was handed over but it is not correct.


Q What was the progress of work as at 5 November 2000

A I think only piling


Q What did you do when discovered that

A Appoint lawyer to sue


Q Start servicing loan

A Not so clear. Starting repaying loan after got vacant possession in year 2004.


Q During the period before you got vacant possession where were you staying

A Rendered SEC housing at Rancha Rancha, at RM530 per month.





Q Salary deducted for housing loan

A Yes, RM434 per month from 1995, cannot remember the month.


Q P1(37)

A Received from Paisal. P1(31) was given to me by Ahmad Ishak of the 2nd Defendant, he was one of director


Court: Wish to have the documents admitted P1(35-37)

Lau: No objection to P1(37) but to the rest because these are documents to which he is privy to and maker not called.

Ansari: Document in possession of party hostile to Plaintiff but copies were given to him. Section 65 and 73A Evidence Act allow the admission of such documents

Lau: No objection to P1(36). Also no objection to P1(35) if witness confirmed it was attached.

Witness: It was attached.

Court: Admitted as P1(35-37)


11.24 a.m.


[The following space is left blank deliberately.]

Cross-examination of PW1:

Q P1(27) – receive similar one from 2nd Defendant – do you have a copy

A Yes



Q Agreement P1(151-180) – in that agreement the 2nd Defendant signed as the developer

A Yes, based on agreement



Court: The document speaks for itself, do not ask question whether it says this or that.



Put: Nothing in the agreement to state that the 1st Defendant would be carrying out the project

A I do not agree



Put Confidence that the 1st Defendant would carry out project was misplaced

A I do not agree

11.45 a.m.



Re-examination of PW1: None

PW2: SIM FON FOH @ SIM KON FATT

Affirmed in English


Examination-in-chief: Age 55, residing at M109 SGI Housing Kg Durian Tunjung 87000 Labuan, supervisor working for Petronas. End of 1994 heard about the housing project, developer I believed was the 1st Defendant. P1(5) is my application for apartment, my handwriting is there


Lau: Object to its admission, incomplete

Court: That cannot be a ground, witness said he wrote on that document

Court; Admitted as P1(5)


I received P1(27). I attended earth breaking ceremony, I was at a bit of a distance. I received P1(1-4). The logo of the 1st Defendant was used at that ceremony. Cannot remember logo of 2nd Defendant was used. After receipt of letter of offer I signed agreement P2(424-445)


Court: Could we not accept and take it that every document not disputed would have been referred to by the relevant witness called to the stand so gthat I need have to take down questions and answers relating to whether the witness had signed this or that document.


Lau: Agree


Court: Mr Ansari, take note


Q Who was the developer to your mind at time of signing agreement

A The 1st Defendant because all documents I have seen originated from the 1st Defendant including ground breaking ceremony and also offer letter

First deduction from my salary was made 36 months from date of agreement, somewhere in 1998. Not able to occupy the house at that time. I was staying with relative. I have to pay something as subsidy, RM450.00. Only able to enter house in December 2004.


12.11 p.m.


[The following space is left blank deliberately.]

Cross-examination of PW2:


Q P1(5) – there is a second page to this document

A Yes


Q Where is it

A My original has the second copy


Q When did you submit that

A Early part of 1995


Q Early 1995 was before the earth breaking ceremony

A Before


Q P1(5) only requests for your information for the purpose of registering your interest to purchase low cost or medium low cost housing

A When I filled this form it was for that particular project


Q Before earth breaking in 1995...

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