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2024 MarsdenLR 2856
HIGH COURT MALAYA SHAH ALAM
OOI CHENG HUAT @ OOI PENG HUAT & ORS – Appellant
Versus
SIME DARBY PROPERTY BERHAD & OTHER CASES – Respondent
[Civil Suit Nos: BA-22C-43-10/2017 BA-22C-44-10/2017 BA-22C-45-10/2017 BA-22C-46-10/2017 BA-22C-47-10/2017 & BA-22C-49-11/2018]
Housing developers are liable for defects in properties sold under statutory SPAs, and cannot evade responsibility through clauses that limit liability or by claiming defects were not reported timely.
Headnote:(A) Housing Development (Control and Licensing) Act 1966 – Breach of Sale and Purchase Agreements – Plaintiffs claimed damages for defects in bungalows sold by Defendant – Court found that Defendant breached obligations under statutory SPAs by failing to construct in a good and workmanlike manner and using unsuitable materials – Plaintiffs proved existence of defects and were entitled to rectification costs and damages for loss of use. (Paras 1-127)
(B) Evidence – Expert testimony – Court accepted expert opinions on defects and rectification costs, while rejecting those that lacked credibility or were based on outdated information. (Paras 67-109)
(C) Costs – Court awarded costs to Plaintiffs as they were largely successful in their claims, with specific amounts determined for each suit. (Paras 121-123)
JUDGMENT
(After Trial)
A. Introduction
[1] This judgment arises from a joint trial (Trial) of the above six suits (6 Suits) filed by purchasers (Plaintiffs) of six bungalows built and sold (6 Bungalows) by the defendant company (Defendant), a housing developer.
[2] In these 6 Suits, the Plaintiffs claimed that the Defendant had breached various provisions of six Sale and Purchase Agreements of the 6 Bungalows (6 SPAs) entered into between the Plaintiffs and Defendant [Alleged Defendant's Breaches (6 SPAs)]. The Alleged Defendant's Breaches (6 SPAs) concern novel legal issues regarding certain clauses in the 6 SPAs.
B. Background
[3] The 6 Suits are as follows:
(1) suit No BA-22C-43-10/2017 (Suit No 43) had been filed by the plaintiffs [Plaintiffs (Suit No 43)] against the Defendant with regard to a two-storey bungalow with a basement [Bungalow (Suit No. 43)] which was-
(a) built on land held Grant 174772, Lot 70087, Mukim Damansara, Petaling District, Selangor; and
(b) sold pursuant to a SPA dated 1 December 2010 [SPA (Suit No 43)];
(2) suit No BA-22C-44-10/2017 (Suit No 44) was filed by the plaintiff company [Plaintiff (Suit No 44)] against the Defendant in respect of a two-storey bungalow with a basement [Bungalow (Suit No. 44) ] which was-
(a) built on land held Grant 174763, Lot 70078, Mukim Damansara, Petaling District, Selangor; and
(b) sold pursuant to a SPA dated 18 April 2012 [SPA (Suit No 44)];
(3) suit No BA-22C-45-10/2017 (Suit No 45) had been filed by the plaintiff [Plaintiff (Suit No 45)] against the Defendant in respect of a two-storey bungalow with a basement [Bungalow (Suit No 45)] which was-
(a) built on land held Grant 174760, Lot 70075, Mukim Damansara, Petaling District, Selangor; and
(b) sold pursuant to a SPA dated 1 December 2010 [SPA (Suit No 45)];
(4) suit No BA-22C-46-10/2017 (Suit No 46) was filed by the plaintiff [Plaintiff (Suit No 46)] against the Defendant in respect of a two- storey bungalow with a basement [Bungalow (Suit No 46)] which was-
(a) built on land held Grant 174770, Lot 70085, Mukim Damansara, Petaling District, Selangor; and
(b) sold pursuant to a SPA dated 22 April 2013 [SPA (Suit No 46)];
(5) suit No BA-22C-47-10/2017 (Suit No 47) had been filed by the plaintiffs [Plaintiffs (Suit No 47)] against the Defendant in respect of a two-storey bungalow with a basement [Bungalow (Suit No 47)] which was-
(a) built on land held Grant 174771, Lot 70086, Mukim Damansara, Petaling District, Selangor; and
(b) sold pursuant to a SPA dated 16 April 2012 [SPA (Suit No 47)]; and
(6) suit No BA-22C-49-11/2018 (Suit No 49) was filed by the plaintiffs [Plaintiffs (Suit No 49)] against the Defendant in respect of a two- storey bungalow with a basement [Bungalow (Suit No 49)] which was-
(a) built on land held Grant 174750, Lot 70066, Mukim Damansara, Petaling District, Selangor; and
(b) sold pursuant to a SPA dated 28 April 2015 [SPA (Suit No 49)].
[4] With regard to SPA (Suit No 43), SPA (Suit No 44), SPA (Suit No 45) and SPA (Suit No 47) [collectively referred to in this judgment as "4 SPAs (Suits No 43 to 45 and 47)"]:
(1) at the time of the execution of 4 SPAs (Suits No 43 to 45 and 47), Bungalow (Suit No 43), Bungalow (Suit No 44), Bungalow (Suit No. 45) and Bungalow (Suit No 47) [collectively referred to in this judgment as "4 Bungalows (Suits No 43 to 45 and 47)"] were still under construction by the Defendant; and
(2) the 4 SPAs (Suits No 43 to 45 and 47) were based on the "statutory' SPA (Statutory SPA) prescribed in Schedule G (Schedule G) to Housing Development (Control and Licensing) Regulations 1989 (HDR).
[5] At the time of the execution of SPA (Suit No 46) and SPA (Suit No 49) [collectively referred to in this judgment as "2 SPAs (Suits No 46 and 49)"], the construction of Bungalow (Suit No 46) and Bungalow (Suit No 49) [collectively referred to in this judgment as "2 Bungalows (Suits No 46 and 49)"] had already been completed.
[6] Section 6.01 in the 2 SPAs (Suits No 46 and 49) [Section 6.01 (Sui
