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2021 MarsdenLR 3443
HIGH COURT MALAYA KUALA LUMPUR
AMINNUDIN REZAL JAAFAR & ORS – Appellant
Versus
PREMA BONANZA SDN BHD – Respondent
[Suit No: WA-22NCvC-464-08/2020]
The court upheld the statutory completion period of 36 months under Schedule H, declaring any extensions or alterations void, thus validating purchasers' claims for liquidated damages against the developer.
Headnote:(A) Housing Development (Control and Licensing) Act 1966 – Housing Development (Control and Licensing) Regulations 1989 – Schedule H – Summary judgment against housing developer for late delivery of vacant possession of property – Variation of delivery period from 36 months to 54 months held unlawful due to statutory nature of Schedule H – Extension of time (EOT) for completion declared void as contrary to law – Legal principles on liquidated damages (LAD) clarified. (Paras 17, 22, 46, 80)
(B) Contractual Validity – SPA’s inability to deviate from statutory guidelines emphasized – EOT claimed by defendant was obtained unlawfully, hence does not hold ground in diminutive entitlement of purchasers for LAD – Purchasers asserted claims based on entitlements as set by law.
(C) Estoppel and Settlement – Waiver of rights against statutory provisions unrecognized; resulting claims for LAD valid despite prior compromised settlements.
(D) Limitation Period – Delay in filing suit not applicable; LAD claims commence from delivery of vacant possession as specified in SPA – Claim held within limit.
Facts of the case: The plaintiffs claimed against the developer (D) for unpaid liquidated damages following delay in delivery of property, arguing the SPA's contractual terms invalidated extensions made pre-agreement. (Paras 9, 12)
Findings of Court: The court ruled in favor of the plaintiffs, recognizing their statutory right for claims under the law; the developer's justification for extensions was invalid. The EOT was pronounced null and void. (Paras 17, 22, 24)
Issues: The key issues included the validity of the altered completion timeline and the contractual obligations of the developer regarding delivery of vacant possession. (Paras 9, 10)
Ratio Decidendi: The completion period stipulated in Schedule H could not be altered; statutory protections for buyers upheld – Subsequent claims were allowed under the statutory framework as no prejudice occurred against statute. (Paras 17, 24)
Result: Summary judgment entered against developer, awarding plaintiffs with LAD claims, alongside interest and costs. (Para 88)
JUDGMENT
Introduction
[1] The plaintiffs filed an application vide encl 47 ("encl 47") for summary judgment against the defendant ("D"). Enclosure 47 is made under O 14 of the Rules of 2012 ("ROC"). I allowed encl 47 and entered summary judgment against D. These are the grounds of my decision.
Background
[2] The plaintiffs are purchasers and/or parcel owners of residential units ("property") in a housing project known as 'The Central Residences' ("housing project"). D is the developer of the housing project.
[3] By way of separate sale and purchase agreements ("SPA") entered into on various dates in 2012 and 2013, the plaintiffs purchased the property. The respective unit or parcel of the plaintiffs is set out in columns A and B of the annexures attached to the statement of claim ("SOC annexures "). The respective date and price under the SPA are set out in column D of the SOC annexures
[4] Prior to the execution of the SPA, some of the plaintiffs paid a commitment sum ("booking fee") of RM10,000 and the 19th and 20th plaintiffs paid a booking fee amounting to RM101,000 to D. The date of payment of the booking fee is set out in column C of the SOC annexures
[5] The SPA signed between the parties was in the prescribed statutory form under Schedule H ("Schedule H") of the Housing Development (Control and Licensing) Regulations 1989 ("HDR"). The Schedule H contract of sale provides that vacant possession of the property and the common facilities shall be delivered within 36 months from the date of the SPA.
[6] D, however, had obtained an extension of time ("EOT") for the completion period of the housing project from 36 months to 54 months ("EOT period"). The EOT was obtained on 16 December 2010, ie, before the SPA was entered into. As such, the SPA signed between the parties reflected the 54 months EOT period in cls 25 and 27 thereof.
[7] Under cl 25(2) of Schedule H, the liquidated ascertained damages ("LAD") for late delivery of vacant possession of the property shall be calculated at the rate of 10% per annum on the purchase price, from the due date for delivery of vacant possession until the date the purchaser takes vacant possession. Under cl 27(2) of Schedule H, the LAD for late completion of the common facilities shall be calculated at the rate of 10% per annum on the last 20% of the purchase price.
[8] On various dates in January 2017, D issued the notice of delivery of vacant possession to the plaintiffs, giving 14 days' notice from the date of the said notice, of delivery of vacant possession of the property. By virtue of cl 26(3) of the SPA, the plaintiffs are deemed to have taken delivery of vacant possession of the property at the expiry of 14 days after the said notice. The date of delivery of vacant possession in respect of each plaintiff is set out in column E of the SOC annexures
Plaintiffs' Case
[9] The plaintiffs aver that the variation of the time period for delivery of vacant possession of the property from 36 months to 54 months in the SPA is void. By reason that such deviation of the prescribed statutory form sale and purchase agreement in Schedule H contravenes the Housing Development (Control and Licensing) Act 1966 ("HDA") and the HDR. The plaintiffs rely on the decision of the Federal Court delivered on 26 November 2019 in Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals, ("Ang Ming Lee").
[10] Premised on the completion period of 36 months as stipulated in the Schedule H contract of sale, the plaintiffs aver that vacant possession of the property was delivered late. Vacant possession ought to have been delivered on or before the date which is 36 months from the date of the respective SPA. As such, the plaintiffs aver that D is liable to pay LAD for late delivery of vacant possession of the property.
[11] D had paid some of the plaintiffs' LAD (said to be pursuant to cl 25(2) of the SPA) for late delivery of vacant possession of the prope
