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2021 MarsdenLR 2520
HIGH COURT MALAYA KUALA LUMPUR
VIGNESH NAIDU KUPPUSAMY NAIDU – Appellant
Versus
PREMA BONANZA SDN BHD – Respondent
[Civil Suit No: WA-22NCVC-507-08/2020]
The courts uphold binding contractual terms unless proven invalid; the extension of time for delivery was valid, and claims for liquidated damages were unsustainable.
Headnote:(A) Housing Development (Control and Licensing) Regulations 1989 – Reg 11(3) – Validity of Sale and Purchase Agreement (SPA) and Liquidated Ascertained Damages (LAD) – The Plaintiff claimed LAD for late possession delivery alleging EOT invalidity per Ang Ming Lee but failed to prove statutory deviations in SPA terms made long before signing. (Paras 8, 10, 26)
(B) Summary Judgment Principles – No triable issues and no reasonable cause of action exhibited by Plaintiff warranting dismissal of claims as unsustainable. Court found reliance on Ang Ming Lee inappropriate given differing facts. (Paras 30, 31)
Facts of the case: The Plaintiff, owner of Parcel A-37-G, claimed LAD from Defendant for alleged late possession beyond SPA-stipulated time, contesting SPA validity under HDR 1989. (Paras 2-6)
Findings of Court: Plaintiff's claims were struck out as unsustainable, and the summary judgment application was dismissed. The EOT granted was valid, and proper contractual obligations were acknowledged. (Paras 31, 29)
Issues: Whether the extension for possession delivery was valid and if the Plaintiff had grounds for LAD claims. (Paras 8, 30)
Ratio Decidendi: Validity of contractual agreements superseded previous judgments due to substantially different circumstances; parties bound by contract terms. (Paras 28, 27)
Result: Defendant's application to strike out allowed; Plaintiff's summary judgment application dismissed.
JUDGMENT
A. Introduction
[1] There are two applications made before this Court. The first application is by the Plaintiff for Summary Judgment order against the Defendant pursuant to O 14 of Rules of 2012 ("ROC 2012") (Enclosure 5) and the second application is by the Defendant for a Striking Out order pursuant to O 18 r 19(1)(b), (c) and/or (d) of ROC 2012 (Enclosure 20).
B. Background Facts
[2] The Plaintiff is an owner of a unit Parcel No A-37-G in a housing project known as The Sentral Residences ('the Housing Project').
[3] At all material times, the Defendant is a company incorporated under the Companies Act 2016 and is the developer for the Housing Project which comprises of two tower service apartments named as Tower A and Tower B.
[4] On 18 July 2012, the Plaintiff entered into a Sale and Purchase Agreement ('SPA') with the Defendant for the purchase of Parcel No A-37-G of the Housing Project with a purchase price of RM2,168,000.00 ('the Property').
[5] On or about 16 December 2010, the completion period for the Housing Project is modified from thirty-six (36) months to fifty-four (54) months by virtue of Reg 11(3) Housing Development (Control and Licensing) Regulations 1989 ('HDR 1989'), due to the magnitude of the Housing Project. The extension of time ('EOT') was granted by the Ministry of Housing and Local Government ('the Ministry') years before the signing of the SPA and was reflected in cls 25 and 27 of the SPA.
[6] Upon completion of the Housing Project development, the Defendant gave a written notice to the Plaintiff on 25 January 2017 stating that the Certificate of Completion and Compliance has been issued and vacant possession of the Property is ready to be delivered to the Plaintiff. However, the Plaintiff claimed that the last date to deliver vacant possession was supposed to be on 17 July 2015 and therefore the Defendant shall be liable to pay the Plaintiff liquidated ascertained damages ('LAD') for late delivery of vacant possession.
[7] The Plaintiff's claim is on the basis that the SPA signed between the parties was not in the prescribed statutory form under Schedule H of HDR 1989. The SPA provides that the vacant possession of the Property shall be delivered by the developer within fifty-four (54) months and not thirty-six (36) months from the date of the signing of SPA as prescribed under Schedule H of HDR 1989. Therefore, the Plaintiff claimed that any contradictions of statutory form under Schedule H of HDR 1989 is invalid and shall not bind the Plaintiff.
[8] The Plaintiff then seeks from the Court:
[a] A declaration that any notice given in accordance to an extension of time ('EOT') by virtue of Reg 11(3) HDR 1989 for the Defendant to deliver vacant possession of the said Property from thirty-six (36) months to fifty-four (54) months is invalid as in the Federal Court's decision in Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals, ;
[b] A declaration that the Defendant is bound to deliver vacant possession to the Plaintiff within a period of thirty-six (36) months in accordance with statutory form under Schedule H of HDR 1989 from the date of the signing of the SPA.
[c] An order for the Defendant to pay LAD to the Plaintiff for late delivery of vacant possession as below:
i. A sum of RM392,021.92; and
ii. Interest at the rate of 5% per annum on the sum of RM392,021.92 from the date of filing of this claim to the date of full settlement.
[d] Costs on a solicitor and client basis.
[e] Other reliefs or orders as the Court thinks fit and just.
C. Summary Judgment (Enclosure 5)
[9] The main ground of this application by the Plaintiff is that there are no triable issues to be tried. The Plaintiff submits that the SPA signed by the parties is a statutory contract thus the Defendant as the developer is not allowed to deviate or add or vary any of the terms in the prescribed form in Schedule H of HDR 1989 including replacing the completion per
