The court upheld the summary judgment as the defendant failed to show a bona fide triable issue regarding liquidated damages under the Sale and Purchase Agreement.

[1] This is an appeal by the Appellant who was the Defendant, on the decision of the Sessions Court in allowing for the summary judgment under O 14 of the Rules of 2012 against the Appellant by the Respondent, who was the Plaintiff. The Sessions Court found for the Plaintiff, that there was no triable issue on the part of the Appellant's Defence.

[2] Both parties, in this judgment, will be known as they were in the Sessions Court.

Factual Background

[3] The Plaintiff's claim against the Defendant is for liquidated damages of the sum RM348,003.94 due to the Defendant's delay of 3107 days in delivering vacant possession of a double storey semi-detached house held under the title H.S.(D) 177895, P.T. 4922 Mukim Bukit Raja, District of Petaling, State of Selangor Darul Ehsan with a postal address of No.3, Jalan Pulau Indanh U10/58, Seksyen U10, 40170 Shah Alam, Selangor Darul Ehsan (the said Property).

[4] The Plaintiff is a Malaysian citizen of full age having his residential address at No.7, Jalan SL 7/5, Bandar Sungai Long, 43000 Kajang, Selangor Darul Ehsan whereas the Defendant is a private limited company duly incorporated in Malaysia with its registered address at No. 1, Lintang Angsana, Bandar Baru Ayer Itam, 11500 Pulau Pinang and its business address at No. 2-8, Bangunan Farlim, Jalan PJS 10/32, Bandar Sri Subang, 46000 Petaling Jaya, Selangor Darul Ehsan.

[5] The Defendant is primarily involved in the business of property development wherein the Defendant's projects include but not limited to a housing development known as the 'Subang Impian, Shah Alam, Phase 2' project (the said Development).

[6] It was claimed that on or about 11 November 2005, the Plaintiff had entered into a Sale and Purchase Agreement dated 11 November 2005 with the Defendant (the SPA) (can be found at pp 99 - 124 of the Appeal Record) for the sale of the said Property within the said Development wherein the said Property was sold by the Defendant, being the Vendor, to the Plaintiff, being the Purchaser, for a total purchase price of RM409,135.00 (the Purchase Price).

[7] The Plaintiff claimed that there are express terms and conditions of the said SPA on delivery of vacant possession which bind both the Plaintiff and Defendant, as follows:

"Clause 23(1) Vacant possession of the said Building shall be delivered to the Purchaser in the manner stipulated in Cl 24 herein within twenty-four (24) calendar months from the date of this Agreement;"

"Clause 23(2) If the Vendor fails to deliver vacant possession of the said Building in manner stipulated in Cl 24 herein within the time stipulated in sub-clause (1), the Vendor shall be liable to pay the Purchaser liquidated damages calculated from day to day at the rate of ten per centum (10%) per annum of the purchase price from the expiry of the delivery of vacant possession in sub-clause (1) until the date the Purchaser takes vacant possession of the said Building. Such liquidated damages shall be paid by the Vendor to the Purchaser immediately upon the date of Purchaser takes vacant possession of the said Building."

"Clause 23(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 Building."

[8] The Defendant alleged that there was no consideration given by the Plaintiff to the Defendant in relation to the purchase of the said Property as there was no payment made in accordance with cl 4.1 of the said SPA. The Plaintiff argued that Defendant's allegation was wholly inaccurate