1

IN THE SESSIONS COURT AT LABUAN

IN THE FEDERAL TERRITORY OF LABUAN
Suit No: 22NCvC-01-435 of 2015
Between
Jernih Equity Sdn Bhd
(No. Syarikat: 593242-A)

Plaintiff
and

Tiara Labuan Hotel Sdn Bhd

(No. Syarikat: 238435-X)

.. Defendant

STATEMENT OF CLAIM
1. The plaintiff is a private company incorporated in Malaysia and having
its registered address at Brumby Centre, Lot 41, Jalan Muhibbah, 87000
Labuan Federal Territory, Malaysia.
2. Defendant is a company incorporated in Malaysia and having its
registered address at No. 1, Tiara Labuan, Jalan Tanjung Batu, 87007
Labuan Federal Territory, Malaysia. The defendants core business is to
provide hotel and accommodation facilities.
3. On 25 November 2011, both parties had signed the Sale and Purchase
Agreement (Agreement) to purchase the defendants hotel at the
price of RM5,004,000.
4. The terms and conditions of the Agreement are, among others, as
follows:
(i)
The parties had agreed, inter alia, that 10% of the Purchase Price
amounting to RM 500,400 shall be paid by the Purchaser upon
the execution of this Agreement as deposit. The balance of the

Purchase Price shall then be paid within three months from the
(ii)

date of this Agreement.

In the event that the Purchaser fails to pay the balance of
Purchase Price in full on or before the completion date, the
Vendor shall grant extension of time upon request by the

(iii)

Purchaser.
The parties further agreed that upon default of the Purchaser,
the Vendor shall be entitled to terminate the Agreement by
giving written notice and to forfeit only the deposit, not with

(iv)

regard to other monies paid.

The parties also agreed that if the Vendor wants to terminate the
Agreement, the Vendor shall refund all the monies paid by the
Purchaser other than the deposit within 14 days from the said
notice, only then the Purchasers solicitors shall return the
Memorandum of Transfer (MOT) to the Vendor and any private
caveat lodged by the Purchaser shall be withdrawn immediately

and redeliver vacant possession of the Property to the Vendor.

5. Pursuant to this Agreement, the Plaintiff paid an initial deposit of 10%
on 25 November 2011. The Plaintiff paid further sum amounting to
RM876,000 inclusive of interest on 23 January 2012. Following to these
payments, the Plaintiff shall therefore has acquired an equitable
interest in the said subject property.
6. On 30 March 2013, the Plaintiff wrote letter to the Defendant,
requesting the extension of the completion time to pay the balance of
Purchase Price.
7. On 1 April 2013, the Defendant by its letter granted the Plaintiffs
request for extension to pay the balance of the Purchase Price together
with interest in the sum of RM4,122,913.16 (said sum) by 21 April
2013.
8. The Defendant also stated in the said letter that the Defendant would
terminate the Agreement and forfeit the deposit and all the monies
paid by the Plaintiff upon the failure of the Plaintiff to pay the balance
Purchase Price within stipulated time.

9. The Plaintiff hereby avers that by way of the letter dated 1 April 2013,
it is clearly shows that the Defendant had agreed to extend the period
for the balance of Purchase Price payment, and thereby shall has no
right to terminate the Agreement and forfeit all moneys, including
monies other than 10% deposit paid by the Plaintiff upon the failure to
pay it within the stipulated time. Such conditions are contrary to the
Agreement which clearly stated that the Defendant shall grant the
extension of time upon the Plaintiffs request in the event whereby the
Plaintiff fails to pay in full on or before the completion date, and thus
have infringed the Plaintiffs rights therein.
10.
On 21 April 2013, the Defendant further wrote to the Plaintiffs
solicitor to terminate the Agreement and calling for the return of
Memorandum of Transfer together with issue document of title upon
the failure of Plaintiff to pay the balance of Purchase Price within the
stipulated time. The Defendant also forfeited all sums paid by the
Plaintiff pursuant to its letter of 21 April 2013.
11.
Pursuant to the said letter, the Plaintiff

avers

that the

Defendants acts in terminating the Agreement and calling for the

return of Memorandum of Transfer together with issue document of
titles from the Plaintiff are contrary to the express term of the
Agreement which clearly stated that in the event whereby the
Defendant wants to terminate the Agreement, the Defendant shall
refund all the monies other than the deposit to the Plaintiff first before
the return of Memorandum of Transfer and issue document of title to
the Defendant could be made.
12.
The Defendant is therefore has breached the Agreement when:
i)
The Defendant failed to specifically perform the Agreement
dated 25 November 2011, to sell the Defendants hotel to
ii)

Plaintiff.
Denying the rights of the Plaintiff in the Agreement by
terminating it and forfeiting all the monies, including further

sums amounting to RM876, 000 paid by the Plaintiff pursuant to

iii)

the Defendants letter dated 21 April 2013.

Failing to comply with the terms of the Agreement which clearly
stated that the Defendant shall refund first all monies other than
10% deposit paid by Plaintiff within 14 days from the date of
written notice to terminate the Agreement before claiming for
the return of the Memorandum of Transfer and withdrawal of
private caveat lodged by Plaintiff against the subject property

13.

and to return possession of the property to Defendant.

On 17 January 2015, the Plaintiff through his solicitor has issued

letter of demand requiring the Defendant, inter alia, to specifically

perform the Agreement as duly agreed.
14.
However the Defendant failed, refused and/ or neglected to
specifically perform the Agreement.
15.
As a result of the Defendants inaction, the Plaintiff suffered loss
and damage.
16.
Therefore, the Plaintiff claims against the Defendant as the
following:
(i)
Specific performance of the Sale and Purchase Agreement dated
25 November 2011, to sell the subject property by the defendant
(ii)

in favour of the Plaintiff.

Alternatively, relief from forfeiture of the further paid sum
monies to the Defendant amounting to RM 876,000 as agreed

(iii)

under the Agreement upon its termination.

Such or other reliefs as this Honourable Court may deem fit and just.

Dated this 31th of January 2015

.
Messrs.
Associates

Nurul,

Aqilah

&

Solicitors for the

Plaintiff

This Statement of Claim is filed by Messrs. Nurul, Aqilah & Associates,

Solicitors for the above named Plaintiff with an address for service at U0087, BA, Jalan
Okk Awang Besar, Labuan Federal Territory, Malaysia.
Ref

: NAA/0001(H)/Convey/01-2015/Jernih Equity

Tel No : 06-9522745
Fax No : 06-9555745