MALAYSIA

WRIT OF SUMMONS
IN THE MAGISTRATES COURT OF SABAH AND SARAWAK
AT KOTA KINABALU
SUIT NO. [case_no]

BETWEEN

CENDANA
PLAINTIFF
[COMPANY NO. 1136958-A]

AND
HANIZAH BINTI HASSAN @ OSMAN
DEFENDANT
[NRIC NO. 850520-12-5896]

THE HONOURABLE MR JUSTICE YANG AMAT ARIF TAN SERI DATUK

SERI PANGLIMA RICHARD MALANJUM, P.S.M., S.P.S.K., S.S.A.P.,
S.I.M.P., S.P.D.K., P.G.D.K., CHIEF JUDGE OF THE HIGH COURT IN
SABAH AND SARAWAK IN THE NAME AND ON BEHALF OF SERI
PADUKA BAGINDA YANG DI-PERTUAN AGONG
To:

HANIZAH BINTI HASSAN @ OSMAN

(NRIC NO. 850520-12-5896)
Klinik Kesihatan Penampang
WDT 29, Jalan Tambunan
Penampang
Sabah
And
HANIZAH BINTI HASSAN @ OSMAN
(NRIC NO. 850520-12-5896)
Kg. Tengah
Bongawan, 89700
Sabah

WE COMMAND you that within fourteen days after service of this writ on
you, inclusive of the day of such service, you do cause an appearance to
be entered for you in a cause at the suit of CENDANA (COMPANY NO.)
and take notice that, in default of your so doing the Plaintiffs may proceed
therein to judgment and execution.

WITNESS, REGISTRAR OF THE HIGH COURT IN KOTA KINABALU, the

[filing_date].

[advocate_sign]

[court_sign]

..
..
MESSRS ADNAN PUTEH & SALEH
ADVOCATES FOR THE PLAINTIFFS
COURT

REGISTRAR
MAGISTRATES
KOTA KINABALU

MEMORANDUM TO BE SUBSCRIBED ON THE SUMMONS

This Writ may not be served more than six calendar months after the
above date unless renewed by order of court.
The Defendant (or Defendants) may appear hereto by entering an
appearance (or appearances) either personally or by an advocate at the
Registry of the Court.
A

Defendant appearing personally

may,

if he desires,

enter

his

appearance by post, and the appropriate forms may be obtained by

sending a Postal Order for RM8.00 with an address envelope to the
Registrar, Magistrates Court at Kota Kinabalu.

STATEMENT OF CLAIM
1.

The Plaintiffs is a private company incorporated in Malaysia whose

address is at Lot 2.50, Second Floor, Kompleks Karamunsing, Jalan
Tunku Abdul Rahman, 88000, Kota Kinabalu, Sabah.

2.

The Defendant is a Malaysian citizen whose registered address is at

Klinik Kesihatan Penampang, WDT 29, Jalan Tambunan, Penampang,
Sabah.

3.

On the 2nd of October 2012, a Sale and Purchase Agreement dated

2nd

of

October

2012

was

entered

into

between

Lembaga

Pembangunan Perumahan dan Bandar (the Developer), the

Defendant and the Plaintiffs for the purchase of a property described
as Lot 281, Double Storey Terrace House, La Gloxinia Garden, Phase
IIA (the Property) for a purchase price of RM 248,800.000 only (the
Sale and Purchase Agreement).
4.

Pursuant to Clause 17 of the Sale and Purchase Agreement, the

Property shall be completed and ready for delivery of vacant
possession to the Plaintiffs within twenty-four (24) months from the
date of this Sale and Purchase Agreement, wherein the Defendant
was supposed to deliver vacant possession to the Plaintiffs on or
before the 1st of October 2014.

The Plaintiffs will refer to the full terms and provisions of the Sale
and Purchase Agreement during the full trial and any interlocutory
application of this matter.
5.

However, the Defendant has failed to deliver vacant possession of

the Property to the Plaintiffs within the stipulated time provided
under Clause 17 of the Sale and Purchase Agreement. Instead, the
Defendant only delivered the vacant possession of the Property to
the Plaintiffs on the 25th of June 2015.

7.

The Plaintiffs had previously enquired the Defendant on the reasons

for the delay of the delivery of vacant possession and was informed
by the Defendant that the delay was caused Majlis Daerah Papar
who delayed in issuing the Occupation Certificate (the O.C.) to the
Defendant.

8.

Therefore, the Defendant had breached the term in the Sale and
Purchase Agreement by failing to deliver vacant possession of the
Property for 266 days commencing from the 2nd of October 2014
until 25th of June 2015.

9.

The Defendant had on 25th of June 2015 offered to make payment

for the delay to the Plaintiffs, calculated from the 2 nd of October
2014 until the date of the Certificate Practical Completion (the
CPC) was obtained. However, such offer was rejected by the
Plaintiffs as the Defendant had only calculated until the date the
CPC was obtained and not until the date of the delivery of vacant
possession of the Property as agreed under Clause 17 of the Sale
and Purchase Agreement.

10.

Pursuant to Clause 17 of the Sale and Purchase Agreement, in the

event where the vacant possession is not delivered to the Plaintiffs
within

the

period

stipulated

under

the

Sale

and

Purchase

Agreement, the Defendant shall pay to the Plaintiffs the agreed

liquidated damages calculated from day to day at the rate of eight
per centum (8%) per annum on the purchase price of the Property in
the sum of RM248,800.00 for the delay of 266 days commencing
from the 2nd of October 2014 until the 25th of June 2015.
11.

On the 20th of October 2015, the Plaintiffs had through her

Advocates, Messrs Adnan Puteh & Saleh issued a Notice of Demand
to the Defendant demanding them to pay the agreed liquidated
damages in the total sum of RM 14,505.38 to the Plaintiffs.

12.

On the 3rd of November 2015, the Defendant had through their

Advocates, Messrs. Poh & Victor Chong replied on the delay to
deliver vacant possession of the Property as follows:
(a) The said property was completed and/or deemed to have been
completed by our client on 1 st of August 2014 whereupon the
application for the O.C. was duly made on 10 th of November
2014;
(b)Pursuant to the relevant Papar District Council (Building) By-Laws
1977, the O.C. shall be granted to our client within twenty (21)
days thereof unless our client is notified of its refusal by the
relevant authority;
(c) The relevant authority only granted the O.C. in respect of the said
Property on 16th of June 2015, which was beyond the control of
our client; and
(d)Your client pursuant to Clause 20 of the above Sale and Purchase
Agreement had unequivocally agreed not to hold our client liable
for any loss and damage that was caused by any of the events as
stated therein including any circumstance whatever nature which
are beyond the control of our client.

12.

Clause 20 of the Sale and Purchase Agreement is a provision on

force majeure whereas the procurement of the O.C. is in fact within
the control of the Defendant.
The Plaintiffs will refer to the full terms and provisions of the Sale
and Purchase Agreement during the full trial and any interlocutory
application of this matter.

13.

Despite several reminders including the Notice of Demand dated

20th of October 2015, the Defendant refused to make any payment
to the Plaintiffs.

14.

The Plaintiffs claims the agreed and liquidated damages pursuant to

Clause 17 of the said Sale and Purchase Agreement dated 2 nd of
October 2012, as follows:

Date of Sale
Date of
and Purchase Delivery of
Agreement
Vacant
Possession
02.10.2012

01.10.2014

Date of the
Actual
Delivery of
Vacant
Possession
25.06.2015

No. of days
delay

266

Agreed
Liquidated
Damages
(RM)
14,505.38

And the Plaintiffs claim against the Defendant:a Agreed liquidated damages for 266 days starting from 2.10.2014
until 25.06.2015 amounting to RM14,505.38;
b Interest thereon at the rate of 5% per annum on the Judgment Sum
calculated from date of Judgment until full payment;
c Costs on Solicitors and Clients basis; and
d Such further or other relief as this Honourable Court may deem fit
and proper to grant.

Dated this [filing_date]

[advocate_sign]

MESSRS ADNAN PUTEH & SALEH

Advocates for the Plaintiffs

And of RM

plus interest (or such sum as may be allowed on

taxation) for costs, and also, if the Plaintiffs obtains an Order for
substituted service, the further sum of RM_____________ (or such sum as
may be allowed on taxation). If the amount claimed and costs be paid to
the Plaintiffs or his advocates within 8 days after service hereof, (inclusive
of the day of service) further proceedings will be stayed but if appears
from the endorsement on the writ that the Plaintiffs is resident outside the
schedule territories as defined in the Exhange Control Act, 1953 or is
acting and costs is paid into Court within the said time and notice of such
payment in is given to the Plaintiffs, or his advocates.

INDORSEMENT AS TO SOLICITORS AND ADDRESS

THIS WRIT issued by Messrs Adnan Puteh & Saleh, Advocates &
Solicitors, whose address for service is at Block K, Lot 98, Lorong Plaza

Permai 2, Alamesra, Sulaman Coastal Highway, 88400 Kota Kinabalu,

Sabah. Tel:- 088-485948 / 86997 / 467886 , Fax:- 088-485949.

____________________________________________
ADVOCATES FOR THE
PLAINTIFFS

THIS WRIT was served by _______________________________________ by way

of personal service or by ________________________________________________
on the Defendant ( who is known to me ) ( or who was pointed out to me
by _____________________ ) ( or who was admitted to me that he was
______________ ) at __________________________________________________
_________________________ on the day of

20____.

(Signed)
_________________________
(Address)

MALAYSIA
WRIT OF SUMMONS
IN THE MAGISTRATES COURT OF SABAH AND SARAWAK
AT KOTA KINABALU
SUIT NO. [case_no]

BETWEEN

CENDANA
PLAINTIFF
[COMPANY NO. ]

AND

HANIZAH BINTI HASSAN @ OSMAN

DEFENDANT
[NRIC NO. 850520-12-5896]

___________________________________________________________________________
__________________________

WRIT OF SUMMONS
THIS WRIT issued by Messrs. Adnan Puteh & Saleh, Advocates &
Solicitors, whose address for service is at Block K, Lot 98, Lorong Plaza
Permai 2,
Alamesra Coastal Highway, 88400 Kota Kinabalu, Sabah.
Tel:- 088-485948 / 486997 / 467886 Fax:- 088-485949