Vacant possession is deemed given upon notification of the Certificate of Completion and Compliance, not upon physical handover of keys.

JUDGMENT

Anand Ponnudurai J:

Introduction

[1] The Applicant in this present case is seeking an Order of Certiorari to quash the Award of the 1st Respondent dated 12 October 2023 which awarded the 2nd and 3rd Respondents a sum of RM1,953.40 as LAD for the late delivery of the vacant possession of the property known as Plot 868, Geran Hakmilik 175045, Lot 21141, Mukim 12, Daerah Seberang Perai Utara, Penang together with a double storey house erected thereupon (hereinafter referred to as the "said property").

The Background Facts

[2] The Applicant and the 2nd and 3rd Respondents executed a sale and purchase agreement on 31 January 2021 (hereinafter referred to as "SPA") in respect of the said property for a sum of RM230,000.00.

[3] The relevant clauses in the SPA are as follows:

[4] Due to the pandemic Covid-19, the Parliament enacted the Temporary Measures For Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020 and by virtue of the same, the Minister of Housing and Local Government vide its letter dated 19 August 2022 excluded the period beginning from 1 June 2021 to 31 October 2021 (a total of 153 days) from the computation of the period of 24 months for the delivery of vacant possession of the said property.

[5] Based on the above, the due date for the delivery of vacant possession of the said property ends on 3 July 2023.

[6] On 3 July 2023, upon the issuance of the Certificate of Completion and Compliance (hereinafter referred to as "CCC"), the Applicant vide its letter dated 3 July 2023 notified the 2nd and 3rd Respondents of the same and included in the said notice a copy of the CCC as evidence.

[7] In addition, the 2nd and 3rd Respondents were notified by the Applicant that the keys would be handed to them upon the settlement of the outstanding sum of RM63,277.50.

[8] It is to be noted at this juncture that the said letter dated 3 July 2024 was sent to the 2nd and 3rd Respondents via AR registered post and was only received by them on 11 July 2023. Having received the said letter dated 3 July 2023, the balance purchase price of the said property was later settled by the 2nd and 3rd Respondents on 17 July 2023 vide their financier, Lembaga Pembiayaan Perumahan Sektor Awam (hereinafter referred to as "LPPSA").

[9] Thereafter, the 2nd and 3rd Respondents were only able to attend the Applicant's office on 16 August 2023 to execute the clearance letter and collect the keys of the premises on 16 August 2023 which they duly attended and collected the keys upon signing the said clearance letter.

[10] Subsequently, on 12 September 2023, the 2nd and 3rd Respondents filed a claim with the Homebuyer Claims Tribunal wherein the 2nd and 3rd Respondents alleged that there was a delay of 44 days in handing over vacant possession of the said property and sought a sum of RM2,772.60 as the liquidated ascertained damages (hereinafter referred to as "LAD") payable to them.

[11] The 2nd and 3rd Respondents claim at the Tribunal was as follows:

[12] Obviously, the 2nd and 3rd Respondents herein are of the view that the vacant possession of the said property was only given on 16 August 2024 which was a 44 days delay from 3 July 2023.

[13] The Applicant herein in its Defence to the Claim in the Tribunal below denied any delay in delivery of vacant possession of the said property. The Applicant relied primarily on the Federal Court case of Everest Point Sdn Bhd v. Lim Peck Sim & Ors, 2017 MarsdenLR 2265 and pleaded that vacant possession of the said property was given on 3 July 2023 when the said letter was issued and as such there has been no delay.

[14] In addition, the Applicant pleaded that despite the notice issued on 3 July 2023, pursuant to cl 26(1)(c) of the SPA, the 2nd and 3rd Respondents herein are supposed to settle the outstanding sum pursuant to the 3rd schedule of the SPA and the same was only settled on 25 July 2023. As such, the Applicant ought not to be responsible for the delay caused by the payment of the outstanding sum.

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