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2020 MarsdenLR 2586
HIGH COURT SABAH & SARAWAK BINTULU
TING JACK TAK & ANOR – Appellant
Versus
NAIM LAND SDN BHD – Respondent
[Originating Summons No: BTU-24-NCvC-1/1-2020 (HC)]
A fixed-price contract does not exempt liability for GST imposed by law after its execution; delivery of possession occurs by contract stipulation upon notice.
Headnote:(A) Goods and Services Tax Act 2014 – Sections 9 and 188 – Sale and Purchase Agreement – Clause 22 interpreted to enforce liability for GST effective after execution – Fixed price contract does not exempt GST where law changes after agreement – Delivery of vacant possession determined per contract terms. (Paras 19-41)
(B) Conflict of Interest – Legal representation – Allegations of conflict lacked evidence; no basis to disqualify counsel representing Plaintiffs. (Paras 18-29)
Facts of the case: Plaintiffs sought declarations regarding GST liability and delivery of possession for property purchased via Sale and Purchase Agreement against the Defendant, which involved allegations of unauthorized GST claims and failure to deliver the property.
Findings of Court: Plaintiffs are liable to indemnify the Defendant for GST amounting to RM72,896.97 and no late delivery charges applicable.
Issues: Liability for GST under the SPA, delivery of possession rights post-notice, and potential conflict of interest in legal representation.
Ratio Decidendi: Court found that GST is applicable per contract, affirmed that delivery is considered upon notice expiry regardless of actual possession, and determined the Defendant established no conflict of interest regarding legal counsel.
Result: Application dismissed with costs awarded to Defendant.
[1] Enclosure 1 is an application by the Plaintiffs for the following reliefs:
(1) A declaration that the Purchase Price in the sum of RM2,699,888.00 under the Sale And Purchase Agreement dated 24 September 2013 ("the said SPA") made between the Defendant, Niam Land Sdn Bhd as Vendor and the Plaintiffs, Ting Jack Tak and Ling Kuong Ing as Purchasers of all that parcel of Street Mall described as Unit No D-G-12 (Phase 1) Ground Floor ("the said Parcel") situates at Behind Bintulu Airfield, Bintulu and Old Bintulu Airport, Bintulu on Lots 2203, 4172 and 4173 all of Bintulu Town District as explained in the said SPA is a fixed-price contract without any liability of goods and services tax (GST) under the Goods and Services Tax Act 2014;
(2) A declaration that the Plaintiffs are entitled to be given and delivered with vacant possession of the said Parcel by the Defendant on or before 24 September 2016;
(3) A declaration that the Defendant is liable to pay the Plaintiffs for late delivery pre-agree Liquidated Damages at the rate of RM8,999.63 per month, which is equivalent to RM299.99 per day, from the 25 September 2016 until the date of actual delivery of the vacant possession of the said Parcel with all the keys thereto free from any payments or charge;
(4) A declaration that the Defendant is also liable to the Plaintiff for late interest charges on the said late delivery pre-agree Liquidated Damages at the rate of 5% per annum from the due date until the date of full payment of all the said damages;
(5) A declaration that the Plaintiffs are not liable to pay for any charges or fees on the property management, sinking fund, water charges and electricity fee and services for and or in connection to the said Parcel imposed by the Defendant before the actual delivery of the said Parcel with vacant possession of the same to them;
(6) An order that such other damages to be assessed with respect to the conduct of the Defendant in depriving and denying the right of the Plaintiffs to vacant possession of the said Parcel by 24 September 2016;
(7) Such further and other relief as this Honourable Court deems fit and proper be granted;
(8) Costs to the Plaintiffs.
[2] The grounds of the application are stated in the Affidavit in Support affirmed by MR TING JACK TAK (WN KP No 670326-13-5021) on the 10 January 2020 and filed herein as follows:
(1) Plaintiffs are not liable to pay for any goods and services tax (GST) under the Goods and Services Tax Act 2014 as the Purchase Price of the said Parcel is fixed by the Sale and Purchase Agreement dated 24 September 2013 ("the said SPA") made between the Defendant, Niam Land Sdn Bhd as Vendor and the Plaintiffs. Ting Jack Tak and Ling Kuong Ing as Purchasers of all that parcel of Street Mall described as Unit NoD-G-12 (Phase 1) Ground Floor ("the said Parcel") situates at Behind Bintulu Airfield, Bintulu and Old Bintulu Airport, Bintulu on Lots 2203, 4172 and 4173 all of Bintulu Town District as explained in the said SPA is a fixed-price contract without any liability of goods and services tax (GST) under the 2014;
(2) Under the said SPA, the Plaintiffs are entitled to vacant possession of the said Parcel by the 24 September 2016;
(3) The Defendant failed and refused to deliver the actual vacant possession of the said Parcel by 24 September 2016 on an arbitrary ground that the Plaintiffs have not paid the GST to the Defendant when they are not obliged to pay any GST under the said SPA;
(4) By cl 23.2 and s 6 of the First Schedule of the said SPA, the Defendant is liable to pay for late delivery Liquidated Ascertained Damages to the Plaintiffs at the rate of RM8,999.63 per month (which is equivalent to RM299.99 per day) from the 25 September 2016 until the date of actual delivery of the vacant possession of the said Parcel;
(5) The Plaintiffs have suffered loss of rental income following the failure or refusal of the Defendant to give them vacant possession of the said Parcel since 25 Sept
