SINERJUTA SDN BHD v 1. ) WYMAN KANG ENG KIA 2. ) THANARAJ LETCHUMANAN

Case Significance

Confirms that in a representative misrepresentation claim each claimant must adduce evidence of the representation made to them; a single plaintiff's testimony cannot support judgment for co-purchasers who gave no evidence.

This High Court decision at Kuala Lumpur concerns a representative action in misrepresentation brought by condominium purchasers against a developer, and the evidential requirements for such a claim. In the Sessions Court, two named plaintiffs had sued the appellant developer, Sinerjuta Sdn Bhd, on a cause of action in misrepresentation, suing on behalf of themselves and 148 other purchasers of units in a development known as The Havre Condominium in Bukit Jalil. The Sessions Court found misrepresentation established and entered judgment in favour of the plaintiffs and the 148 other persons. The central question on appeal was whether the named plaintiffs could recover on behalf of the other purchasers where only one plaintiff had given evidence and no evidence of misrepresentation had been adduced by the remaining 149 purchasers. The court held that misrepresentation must be proved by each and every plaintiff, and that the failure of the other purchasers to adduce evidence of the representations made to them was fatal to their claims. It reasoned that deceit lies in making a representation with full knowledge that it would be impossible to fulfil, and that only the first plaintiff, who had testified to prove the misrepresentation made to him, was entitled to judgment. Noting the court's power under section 37 of the Specific Relief Act 1950 to order both rescission and damages to be assessed and paid, the court allowed the appeal in part, set aside the Sessions Court judgment in favour of the plaintiffs and the 148 others, and directed that only the first respondent enter judgment against the developer for general damages to be assessed. It made no finding on the claims of the other purchasers, who were left at liberty to file fresh proceedings, subject to the developer's right to plead limitation, and ordered each party to bear its own costs. The judgment is a useful reminder that in a representative misrepresentation claim each claimant must prove the representation made to them.