Back
2025 MarsdenLR 914
HIGH COURT MALAYA SHAH ALAM
ICON CITY DEVELOPMENT SDN BHD – Appellant
Versus
ROS AZLIN SABAWI – Respondent
[Civil Appeal No: BA-11BNCvC-21-07/2022]
The 42-month period for delivering vacant possession under the Sale and Purchase Agreement commences from the date of the first building plan approval, not from subsequent amendments or expiry of the approval period.
Headnote:(A) Sale and Purchase Agreement - Clause 35A and Section 10 of Schedule A - Liquidated Ascertained Damages (LAD) for late delivery of vacant possession - The calculation of 42 months for delivery of vacant possession starts from the date of the first building plan approval on 2 August 2012, not from the last amendment or expiry of the approval period - The Defendant is liable for LAD due to a delay of 226 days in delivering vacant possession. (Paras 7, 15, 21, 31, 50)
(B) Appellate Intervention - An appellate court should be slow to disturb findings of fact made by the trial court unless there are substantial reasons for doing so. (Paras 18, 19)
Facts of the case:
The Plaintiff purchased a SOVO unit and claimed LAD for late delivery of vacant possession, which was delivered on 2 September 2016, after the approvals were obtained on 17 January 2012 and 2 August 2012. Disputes arose regarding the calculation of the 42-month period for delivery of vacant possession.
Findings of Court:
The Magistrate found that the calculation of 42 months commenced from the first building plan approval date, leading to a delay of 226 days for which the Defendant is liable to pay LAD.
Issues: The main issues were the commencement date for the 42-month period for delivery of vacant possession and the Plaintiff's entitlement to claim LAD.
Ratio Decidendi: The court ruled that the plain meaning of the contractual clauses dictates the commencement of the 42-month period from the first building plan approval, emphasizing that the court should not read into the contract what is not expressly stated.
Result: Appeal dismissed with costs.
Introduction
[1] This is an appeal by the Appellant/Defendant against the decision of the learned Magistrate, after a full trial, who had allowed the Respondent/Plaintiff's claim for Liquidated Ascertained Damages (LAD) for late delivery of vacant possession with cost of RM5,000.00.
[2] Having heard both parties, perused the Appeal Record and read the submissions filed, I dismissed the appeal on the grounds, inter alia, that this Court is bound by the decision of the Court of Appeal on the current position of law in dispute.
[3] The Appellant has now appealed to the Court of Appeal, and my reasons are below.
[4] For ease of reference, parties are referred to as they were at the Magistrate Court.
The Parties
[5] Plaintiff purchased a "Small Office Versatile Office" (SOVO) unit in a project development known as "Icon City" (the project).
[6] Defendant is the developer of the project, a stratified mixed commercial and residential development comprising SOVO, jewel shops, boutique offices, shop lots, and service residences.
Brief Facts
[7] Plaintiff entered into a Sale and Purchase Agreement with Defendant to purchase a SOVO unit (the SPA).
[8] Clause 35A of the SPA provides that Defendant is to obtain the land conversion and building plan approval within twelve (12) months from the SPA date, subject to a six (6) month extension.
[9] According to s 10 Schedule A of the SPA, vacant possession (VP) shall be delivered to the Plaintiff within forty-two (42) calendar months from the date of the Period of Approval or Extended Approval Period.
[10] Undisputedly, the approval for the land conversion was obtained on 17 January 2012, while the approval for the 1st building plan was obtained on 2 August 2012 (the approvals).
[11] VP has been delivered to the Plaintiff by a notice dated 2 September 2016. Plaintiff now claims against Defendant for LAD due to late delivery of VP of the unit.
[12] However, disputes arose due to the fact that the building plan was numerously amended, and the last amendment was obtained on 17 November 2015 (about 3 years after the 1st approval). At that material time (17 November 2015), the construction of the building was almost 90% completed.
[13] Plaintiff contends that the 42 months should start from the date when the approvals were obtained, ie 2 August 2012. It should, therefore, follow that the 42 months begin to commence from 2 August 2012.
[14] Defendant argued at the trial that the 42 months should commence from the date of the last amendment to the building plans on 17 November 2015 or after the date of extensions granted, calculated from the date of the SPA.
Findings Of The Magistrate
[15] The learned Magistrate identified four (4) issues in her grounds of judgment, that is:
i. Whether the period of 42 months for delivery of vacant possession of the said property is to be calculated from 2 August 2012 (date of the first Approval of the Building Plan) or the expiry date of the Period of Approval or the expiry of the Extended Approval Period.
ii. Whether Defendant has delivered vacant possession to Plaintiff on the date of VP Notice or on the expiry of 14 days from the date of VP Notice.
iii. Whether there is any LAD to be paid by the Defendant to the Plaintiff.
iv. Whether there has been any delay in delivering vacant possession to the Plaintiff.
[16] The findings of the learned Magistrate are as follows:
1. Undisputedly, approval for land conversion was obtained on 17.1.2012, and approval for the first building plan was obtained on 2 August 2012. The last amendment to the Building Plan was approved on 17 November 2015.
2. Based on cl 35A and s 10 Schedule A of the SPA, the calculation of 42 months started from 2 August 2012 (1st approved building plan) because once obtained, Defendant can commence the construction works.
3. Nowhere in s 10 Schedule A of SPA states "18 months from the expiry of the Period of Approval or Extended Approval Period". There is a reason why one cannot read the word "expiry" i
