Suites classified as commercial units do not fall under the Housing Development Act; the burden of proof regarding categorization misunderstood by lower court.

JUDGMENT

Tun Abd Majid Tun Hamzah J:

[1] In the court below, the learned Sessions court Judge allowed the respondents/plaintiffs' claim and dismissed the counterclaim by the appellant/defendant. The parties are referred to as they were in the court below. Having heard the appeal, I allowed the defendant's appeal in part.

[2] The brief facts are as follows. The defendant was the developer of Jazz Hotel and commercial suites known as the Jazz Suites ("suites"). The plaintiffs were the purchasers of the suites. Seventeen of the plaintiffs entered into the Sale and Purchase Agreements ("SPAs") with the defendant in August 2012 and two of them in 2013. All the SPAs except the SPA for Suit 155 provide for delivery of vacant possession within 36 months from the completion of the piling works (cl 26) while the SPA for Suit 155 provides that vacant possession to be delivered within 36 months from the date of the agreement. The Certificate of Completion and Compliance for the suites was issued on 21 April 2017 while the common facilities were completed sometime in December.

[3] The plaintiffs brought the action in the court below claiming for Liquidated Ascertained Damages ("LAD") for late delivery of vacant possession for the suites until 21 April 2017 and common facilities until it was December 2017 and to be refunded of the Goods and Services Tax ("GST") which had been paid. The defendant in their counterclaim sought for the outstanding GST against the plaintiffs in Suits 123 - 128, 131, 135, 139 and 192; late payment interest on GST against plaintiffs in Suits 122, 129 - 130, 132 - 134 and 141; outstanding service charges and sinking fund against plaintiffs in Suits 125 and 192; late payment interest on service charges and sinking fund against plaintiffs in Suits 122, 129, 133 - 134 and 141; and late payment interest on progress billings against plaintiff in Suit 192.

[4] The main contention between the parties before the Sessions court was whether the Housing Development (Control and Licensing) Act 1966 ("HDA") was applicable and the determination of the date of the delivery of vacant possession. The plaintiffs in Suits 123 - 124, 128, 130 - 132, 135 and 139 however had accepted the payments for LAD in respect of their suites under the SPAs. While plaintiffs in Suits 123 - 124, 131, 135 and 139 had accepted the payments for LAD in respect of the common facilities under the SPAs.

Decision Of The Sessions court

[5] The learned Sessions court Judge ("SCJ") in allowing the plaintiffs' claim for LAD in respect of the late delivery of vacant possessions of their units and common facilities held that the suites were residential units pursuant to the definition of housing development and housing accommodation hence the SPAs were governed by the HDA. In addition, the learned SCJ allowed several declarations inter alia, that the plaintiffs should not be paying the GST and the defendant to refund the payments already made by some of the plaintiffs and some other consequential orders.

Issues And Analysis

[6] It was submitted by the learned counsel for the defendant that the learned SCJ applied the wrong burden of proof. According to the learned counsel the plaintiff should bear the burden in proving the claim that the suites are of residential category.

[7] In dealing with the issue of burden the learned SCJ was addressing the issue of the SPAs where four plaintiffs were offered housing loan by the bank as opposed to commercial loan offered to the rest of the plaintiffs. The learned SCJ opined that the burden was on the defendant to prove that despite being offered housing loans the loans were actual commercial in nature. He concluded that the defendant failed to discharge this burden and concluded that as there was a lacuna the suites purchased by the four plaintiffs were of housing accommodation or housing development subjected to the Act.

[8] It was the plaintiffs' pleaded case that the suites are residential and not commercial and that the HDA is a