[2021] 6 MLRA 582

Federal Court, Putrajaya
Vernon Ong, Abdul Rahman Sebli, Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Rhodzariah Bujang FCJJ
[Civil Appeal Nos: 02(f)-135-11-2017(W) & 02(f)-136-11-2017(W)]
30 September 2021


Rhodzariah Bujang FCJ:

[1] These two appeals pertain to a tenancy agreement ("the agreement") in respect of a block of 23 storey office building in Ampang named Plaza Palas, entered into by its owner, Bellajade Sdn Bhd ("Bellajade") and CME Group Berhad ("CME"), its tenant. CME's performance of the agreement was guaranteed by Tan Sri Dato' Lim Cheng Pow ("Tan Sri Lim"). The agreement was for a fixed period of three years commencing from the date of completion, that is, 20 February 2013, of a sale and purchase agreement dated 25 March 2012 between Bellajade and the previous owner of Plaza Palas, Orion Choice Sdn Bhd ("Orion Choice"), who still retained ownership of another block of building comprising service apartments built on the same nine parcels of land at Plaza Palas. Orion Choice obtained ownership of the said lands from one Kris Angsana Sdn Bhd ("Kris Angsana"). This fact is mentioned in Recital A of the agreement and the date of that sale and purchase agreement was 11 June 2011. Given that Kris Angsana was then a company in liquidation, Orion Choice was cited in the agreement as the beneficial owner of the land. At that material time, as well as at the time when the dispute between the parties herein was filed in court, the category of use for the said lands stated on the land titles was "Building" with "Residential" as their express condition.

[2] About six months after the sale and purchase agreement with Orion Choice, that is, on 1 December 2011, Kris Angsana applied to the Land Administrator for surrender, re-alienation and change of the said condition from "Residential" to "Commercial" and "Mixed Development". This was followed by an application dated 2 March 2012 by Orion Choice to Kuala Lumpur City Council ("the Council") for approval, which approval was granted, to amend the building plans for Plaza Palas, to use it for a commercial purpose. The said application to the Land Administrator was granted on 8 May 2012 but subject to payment of RM1,550,172.00 which is inclusive of a premium in the sum of RM1,531,179.00. It is expressly stated in the said letter of approval that the land use is "Bangunan" and the express condition is "...pembangunan bercampur bagi tujuan pangsapuri dan pejabat sahaja". Bellajade subsequently applied and was granted a Certificate for Occupation ("CFO") for Plaza Palas by the Council on 27 November 2012 to use it for the purpose as stipulated on the building plan, that is commercial. The said approval incorporates the use of the other block consisting the service apartments mentioned earlier. Pursuant to a full payment of the premium on 14 February 2013, a certificate dated 18 February 2013 was issued by the Department of Land and Mines, Kuala Lumpur, acknowledging the payment and stating that Kris Angsana's application "yang dikemukakan di bawah s 204D Kanun Tanah Negara" has been approved. That certificate is titled "Sijil Pengesahan Kelulusan Permohonan Di Bawah s 124, 124A, 137, 142, 148, 197, 200 atau 204D Kanun Tanah Negara 1965". As seen from the narration of the facts above, the agreement was entered on 21 February 2013, seven days after the said payment was made, which is a day after Bellajade paid Orion Choice the balance of the purchase price amounting to RM139,250,000.00.

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