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2023 MarsdenLR 1527
HIGH COURT MALAYA KUALA LUMPUR
XTREME MERIDIAN SDN BHD – Appellant
Versus
NAGARAJAN SUPRAMANIAM & ANOR (ENCLS 6 & 8) – Respondent
[Civil Suit No: WA-12ANCvC-206-07/2022]
Court confirmed that delivery timelines in housing agreements are binding, with liquidated damages applicable for delays.
Headnote:The appeal contested a previous decision dismissing an application to strike out a writ under O 18 r 19 ROC 2012, related to the timely delivery of vacant possession as stipulated in the Sale and Purchase Agreement. The court reaffirmed the requirement of adherence to Schedule H of Housing Development regulations, determining that the Defendant failed to meet its obligations leading to liquidated damages. Key legal questions addressed whether the action was properly commenced and if the claims were time-barred. Ultimately, the appeal was dismissed with costs.
| Table of Content |
|---|
| 1. introduction and procedural history of the appeal. (Para 1 , 2) |
| 2. facts regarding property sale and delivery timelines. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 3. details of liquidated damages calculation. (Para 11 , 12 , 13 , 14 , 15) |
| 4. court's examination of liquidated damages and delivery timelines. (Para 19 , 20 , 22 , 23 , 24 , 25 , 26) |
| 5. discussion on the validity of the action's commencement. (Para 30 , 31 , 33 , 36) |
| 6. final decisions regarding appeal dismissal and costs. (Para 39 , 41) |
Introduction
[1] The Appellant had appealed via a Notice of Appeal dated 18 July 2022 against the Sessions Court decision dated 5 July 2022 in dismissing the Appellant's Notice of Application to strike out the Respondents' writ under O 18 r 19 ROC 2012.
[2] I dismissed the appeal on 21 November 2022. The Appellant had appealed to the Court of Appeal. These are my Grounds of Decision. Parties will be cited as they were cited at the Court below.
Background Facts
[3] The background facts as pleaded by the Plaintiffs in the Written submissions of the Plaintiffs dated 2 October 2022 (Encl 6) filed for this appeal, and reproduced below,areas follows.
[4] The Defendant is the registered proprietor and beneficial owner of all that leasehold land of 99 years held under Master Title No Hakmilik Pajakan Mukim 6395, Lot 18152, Section 2 in the town of Ulu Kelang, District of Gombak and State of Selangor in an area measuring approximately 22,934 square metres (hereinafter referred to as "the said Land"). The Defendant is to develop the said Land as a housing development known as "ASTORIA AMPANG" (hereinafter referred to as "the said Development"). (Refer to p 117 of the Record of Appeal).
[5] Via a Sale and Purchase Agreement dated 29 March 2016 (hereinafter referred to as "the said Agreement") (Refer to p 116 to 153 of the Record of Appeal) entered between the Plaintiffs and the Defendant, the Defendant agreed to sell to the Plaintiffs and the Plaintiffs agreed to purchase from the Defendant a parcel of housing accommodation with vacant possession distinguished as unit no: A-13A-3A approximately 82.5 square metres at Level 13A, Tower A, together with two (2) units of accessory parcel at Podium 2 - Bay 136 and 137 which will be built on the said Land in the said Development (hereinafter referred to as "the said Parcel") for the selling price of RM826,000.00 (hereinafter referred to as "the said Selling Price").
[6] The relevant clauses from the said Agreement is cl 25 Time for delivery of vacant possession and cl 27 Manner of delivery of vacantpossession.
[7] At all the material time, the Plaintiffs have made a payment of RM10,000.00 being the stakeholder sum to the solicitors of the Defendant, Messrs Kington Tan Dzul via a cheque of Maybank Islamic Berhad from the First Plaintiff with the cheque number of 055332, dated 4 April 2015. The Plaintiffs have also signed the Letter of Intent to Purchase the said property on 4 April 2015 (Refer to p 16 to 109 of the Record of Appeal). Thereafter, the Plaintiffs have signed the said Agreementon oraround February 2016.
[8] Pursuant to cl 25(1) and cl 29(1) of the said Agreement, the Vacant Possession of the said property shall be delivered to the Plaintiffs inforty-eight (48) months from the date of the said Agreement. However, pursuant to Schedule H of Housing Development (Control and Licensing) Regulations 1989, the time for delivery of vacant possession should be thirty-six (36) months. The extension of time was allowed by the Controller via their letter dated 24 March 2016 (Refer to p 113 to 114 of the Record of Appeal). Based on a Federal Court case of Ang Ming Lee & 24 Ors v. Menteri Kesejahteraan Bandar, Perumahan & Kerajaan Tempatan & Anor, [2020] 1 MLJ 281, the Controller has no power to waive or modify any provision in the Schedule H contract of sale.
[9] The Federal Court In the case of PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor And Other Appeals, [
