The first plaintiff was a joint management body (`JMB') of Permai Lake View Apartments (`the apartments') while the second and third defendants were the purchasers of one unit of the apartments. The first defendant, who was also a bankrupt, was the spouse of one of the purchasers. Pursuant to s. 5 of the Deed of Mutual Covenant (`DMC'), all the purchasers were required to pay a maintenance fee of RM50 per month. However, the plaintiffs alleged that the first defendant incited all the purchasers not to pay the said maintenance fee. As a result, as at 31 March 2008, there was no payment for maintenance. The plaintiffs claimed against the defendants for damages for breach of contract and special damages for the sum of RM93,377.03 being the amount of unpaid maintenance fees. To prove their claims, the plaintiffs relied on the details laid out in their statement of claim where an umpteen number of names were mentioned. In denying the allegations levelled against them, the defendants contended, inter alia, that (i) they were never given any opportunity to read the DMC; (ii) the first plaintiff did not have any authority to increase the fees; and (iii) the purported JMB was not properly established and had no locus standi to initiate the present action against the defendants. A preliminary issue was raised on the first defendant's position as a bankrupt and whether the leave of the bankruptcy court was required.

Held (dismissing claim with costs):

(1) Section 8(1) of the Bankruptcy Act 1967 (`the Act') states that on the making of the receiving order, the creditor to whom the debtor is indebted in respect of any debt provable whether against a property or person, shall not commence or proceed with any action or other legal proceedings unless with the leave of the court. Although the plaintiffs failed to show that they had obtained any pre-requisite consent from the bankruptcy court, the instant case was not based on any contract or agreement, but one of tort. Therefore, there was no need for the plaintiff to apply for leave of the bankruptcy court. (paras 7 & 9)

(2) The plaintiffs need to prove that there was interference for inducement to breach the contract. Section 101 of the Evidence Act 1950 states that whoever desires any court to give judgment as to any legal rights or liability, dependent on the existence of facts which he asserts, must prove those facts exists. The burden of proof fell squarely on the plaintiff. If there was no evidence at all given, the claim would fail. (paras 15 & 16)

(3) The plaintiffs only produced three witnesses while all the other names mentioned in the statement of claim were not called to testify against the defendants. There was no explanation given on why they could not secure the attendance of the other witnesses. None of the names mentioned could fit into the situations in s. 118 of the Evidence Act 1950. Hence, there was no evidence at all to support the plaintiffs' case against the defendants. (paras 13, 14 & 20)

Case(s) referred to:

Greig v. Insole [1978] 1 WLR 302 (refd)

IZA Construction Co Sdn Bhd v. Law Fatt Choon [2011] 1 LNS 1726 CA (refd)

Kelang Pembena Kereta2 Sdn Bhd v. Mok Tai Dwan [2000] 2 CLJ 132 CA (refd)

Loh Holdings Sdn Bhd v. Peglin Development Sdn Bhd & Anor [1984] 2 CLJ 88; [1984] 1 CLJ (Rep) 211 FC (refd)

Tanavanus Sdn Bhd v. Simon Jingking Pingguan [1996] 2 CLJ 534 HC (refd)

Torquay Hotel Co Ltd v. Cousins [1969] 2 Ch 106 (refd)

Legislation referred to:

Bankruptcy Act 1967, ss. 8(1), 40(1)

Evidence Act 1950, ss. 32, 101, 102, 118

Counsel:

For the plaintiffs - JS Chandra

For the defendants - MS Raman

Reported by Najib Tamby