Homebuyers cannot be estopped from claiming additional damages when valid statutory claims exist, despite settlement agreements.

Introduction

[1] This is an application by the defendant by way of Notice of Application (Encl 12) to strike out the plaintiffs' Writ of Summons and Statement of Claim under O 18 r 19(1)(a), (b), (c) or (d) of the Rules of 2012 ( ROC 2012).

[2] Enclosure 12 is supported by the defendant's Afidavit Sokongan (Encl 13). The plaintiffs filed Afidavit Jawapan Plaintif-Plaintif (Encl 15) in opposing encl 12. The defendant's reply to encl 15 is as per Afidavit Jawapan Defendan (Encl 16).

[3] On 9 August 2022, after having read the relevant cause papers and affidavits filed the parties and having heard submissions advanced by learned counsel for both parties, I dismissed encl 12 with no order as to costs.

[4] My reasons are as follows.

Salient Facts

[5] The plaintiffs are a group of purchasers of residential strata units known as Residensi Prima Tebrau in Johor Bahru (the said properties). The defendant is the proprietor, developer and vendor of the said properties.

[6] To that end, the plaintiffs, either as individual purchasers or co- purchasers, and the defendant had entered into sale and purchase agreements ("SPA") of the said properties on various dates between 2014 and 2017. Prior to the signing of the SPA, the plaintiffs had signed certain pre-prepared documents communicating their acceptance to the offer made by the defendant for the purpose of the said sale and purchase.

[7] The said properties were developed by the defendant under a special programme established by the Malaysian government through an Act of Parliament known as Perumahan Rakyat 1Malaysia Act 2012 (Prima Act). Among the objectives of Prima Act is to assist middle income Malaysians to own houses.

[8] Since the development of the said properties are under Prima Act, the SPA used are slightly different from the standard Sale and Purchase Agreement commonly known as Schedule H Agreement under the Housing Development (Control and Licensing) Act 1966 (HDA Act), which is the primary law that regulates the housing development industry in Malaysia.

[9] According to cl 26 in the SPA, the delivery of vacant possession for each strata unit must be made by the defendant to the plaintiffs within 36 months from the date of signing of the SPA, failing which the defendant shall pay liquidated and ascertained damages (LAD) to the plaintiffs based on a certain quantifiable formula in the SPA.

[10] Since the said properties are of strata units, it is also prescribed under cl 28 in the SPA that the Common Facilities to the said properties must also be completed by the defendant within the same 36 months or another LAD shall be imposed should the defendant defaults.

[11] The defendant fails to deliver vacant possession of the strata units and to complete the Common Facilities within the stipulated 36 months.

[12] On 15 April 2021, the defendant issued notice to purchasers notifying that vacant possession is ready.

[13] The defendant, in acknowledging the delay and its obligation to pay LAD under the SPA to those affected, arranged a scheme of settlement with the purchasers of the said properties which includes the plaintiffs.

[14] Within the scheme, the defendant had classified the purchasers under two separate groups. The first consists of purchasers who are entitled to be paid LAD for late delivery of both strata units and Common Facilities; and the second, purchasers who are entitled to be paid LAD for late delivery of either the strata units or the Common Facility only.

[15] Based on the scheme, the defendant had paid certain su