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2021 MarsdenLR 991
HIGH COURT MALAYA JOHOR BAHRU
MURUGAN SUPERAMMUNIAM – Appellant
Versus
SOUTHKEY CITY SDN BHD – Respondent
[Civil Appeal No: JA-11ANCVC-12-08-2020]
Changes to statutory contracts governed by the Housing Development regulations cannot be waived or modified without specific statutory authority, ensuring protection for homebuyers.
Headnote:(A) Housing Development (Control & Licensing) Act 1966 – Section 24 – Housing Development (Control & Licensing) Regulations 1989 – Regulations 11 and 12 – Appeal dismissed for triable issues regarding completion periods under statutory contract – Court held that decisions altering statutorily prescribed timeframes are invalid if ultra vires – Issue of retrospective application of judgment. (Paras 12, 14, 20, 21, 22)
Facts of the case: The Plaintiff contested the extension of time for possession delivery under a statutory sale contract, alleging inappropriate delays and demanding liquidated damages.
Findings of Court: The Court determined the extension granted was invalid based on previous Federal Court rulings.
Issues: Whether the learned Magistrate erred in identifying triable issues regarding contract terms and extensions.
Ratio Decidendi: The court emphasized statutory adherence under the Housing Development legislation, reflecting intent to protect buyers.
Result: Appeal allowed.
JUDGMENT
Introduction
[1] This was an appeal ("this Appeal") against the decision of the learned Magistrate on 12 August 2020, in dismissing the Appellant's application for summary judgment against the Respondent, pursuant to O 14 of the Rules of 2012 ("Rules of "). For ease of reference, the Appellant and Respondent will be referred to respectively as the Plaintiff and Defendant.
The Background Facts
[2] Pursuant to a sale and purchase agreement ("SPA") dated 20 September 2013, the Plaintiff had purchased from the Defendant, the developer, a unit at A-30-06, Mosaic SR Tower A, Southkey, Johor Bahru, Johor ("the Unit") at the price of MYR947,000.
[3] Although the SPA was a contract pursuant to Schedule H to the Housing Development (Control & Licensing) Regulations 1989 ("Housing Development Regulations"), clauses 25 and 27 of the SPA provided for 42 months (instead of 36 months as statutorily prescribed) as the completion period.
Time for delivery of vacant possession
25. (1) Vacant possession of the said parcel shall be delivered to the Purchaser in the manner stipulated in cl 26 within forty two (42) calendar months from the date of this Agreement.
(2) If the Vendor fails to deliver vacant possession of the said Parcel in the manner stipulated in cl 26 within the time stipulated in subclause (1), the Vendor shall be liable to pay to the Purchaser liquidated damages calculated from day to day at the rule of ten per centum (10%) per annum of the purchase price from the expiry date of the delivery of vacant possession in subclause (1) until the date the Purchaser takes vacant possession of the said Parcel. Such lilquidated damages shall be paid by the Vendor to the purchaser immediately upon the date the Puchaser takes vacant possession of the said parcel.
(3) For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Purchaser takes vacant possession of the said parcel.
...
Completion of common facilities
27. (1) The common facilities serving the said housing development shall be completed by the Vendor within forty two calendar months from the date of this Agreement. The Vendor's architect shall certify the date of completion of the common facilities.
(2) If the Vendor fails to complete the common facilities in time the Vendor shall pay immediately to the Purchaser liquidated damages to be calculated from day to day at the rate of ten per centum (10%) per annum of the last twenty per centum (20%) of the purchase price.
(3) For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Vendor completes the common facilities.
[Emphasis Added]
[4] The Defendant subsequently applied for and obtained from the Kementerian Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan ("the Ministry"), a further extension of six months to deliver vacant possession, which approval was communicated via letter dated 1 December 2016.
[5] The Defendant had surrendered vacant possession of the Unit on 4 September 2017 and the common facilities on 13 December 2017, resulting in what the Plaintiff claimed to be, a delay of 168 days and 286 days respectively, on the basis that delivery of vacant possession should have been on 20 March 2017.
[6] The Plaintiff filed his claim on 18 February 2020 for liquidated ascertained damages ("LAD") in the amount of MYR43,587.95 and MYR14,840.66 for the delay in delivery of the Unit and common facilities respectively.
[7] On 9 June 2020, the Plaintiff filed an application for summary judgment, which was dismissed by the Magistrate. As a result thereof, the Plaintiff appealed to this Court. This Appeal was allowed for the following reasons.
Contentions, Evaluation, And Findings
[8] The learned Magistrate concluded that there were triable issues, namely, whether the Plaintiff had objected to the initial completion period of 42 months as opposed to 36 months
