The developer’s right to amend property plans depends on explicit contractual terms and statutory obligations, impacting plaintiffs' entitlements under Sale and Purchase Agreements.

Ravinthran Paramaguru J:

Introduction

[1] The plaintiffs have purchased 78 parcels of shop lots in a five storey shopping complex known as the Megalong Complex. The 1st defendant is the developer. The 2nd defendant was appointed as the manager of the complex when it was opened in 2010. The 1st defendant has taken over the management since 1st June 2012. The 3rd defendant is the local authority vested with the statutory duty to grant planning and building approval. The 3rd defendant is also the owner of the lands on which the complex was constructed. The plaintiffs' have alleged in this suit that the 1st defendant had breached the Sale and Purchase agreement (SPA) in various ways. The alleged breaches include imposing high service charges unfairly and amending the building plan to their detriment. The action against the 2nd defendant is "for breach of warranty to act as interim manager" of the Megalong complex as they are not authorized to practice as property manager under s 19 of the Valuers, Appraisers and Estates Agents Act 1981. The action against the 3rd defendant is for breach of implied duties as land owner under the Land (Subsidiary Title) Enactment 1972 ( LSTE ) and for approving the amendments to the original building in the exercise of their statutory power.

Case For The Plaintiffs

[2] The plaintiffs in the instant case had purchased 78 parcels in the Megalong Complex. Some of the plaintiffs are co-owners of a single unit with the result that there are 100 plaintiffs in this action. The earliest of the 78 SPAs was executed on 28th June 2007 while the latest SPA was executed on 20th December 2010. Although, the 78 SPAs are largely similar, they are not identical and contain differences in respect of the number escalators per floor, in respect of the penalty of RM250 a day for not opening the shop lots for business and the initial formula for calculating service charges.

Summary Of The Plaintiffs' Evidence

[3] The Plaintiffs have called upon four witnesses to prove their case. These four witnesses are also the plaintiffs in this suit. PW 1 is also the attorney for other Plaintiffs who did not give evidence. They said that the SPAs signed by the plaintiffs are not identical and differed in respect of the following matters:

1. Number of escalators per floor.

2. Provision of penalty for not opening business

3. Quantum of service charges

[4] PW1 and PW2 stated that there are 30 of the sales and purchase agreements that have express representation that there will be "3 passenger escalators" per floor from ground floor to 1st floor and from 1st floor to 2nd floor. However, there are 48 other sales and purchase agreements which merely stated that there will be "passenger escalators". PW1 said that he purchased two parcels at the second floor. Even though his parcels are on the 2nd floor, he said the "missing" escalator on the 1st floor had affected his shop lots as it reduced the accessibility and flow of customer traffic to the 2nd floor through the 1st floor. PW2's testimony is that the amended plan to reduce the number of passenger escalators has affected his shop lot as he could not rent it out. PW3 testified that she purchased her shop lot from the 1st defendant because of the representation in the building plans that showed that the said shop lot is located near to the escalator on the 1st floor. However, when she took possession of her shop lot, she realized that there is no escalator near her unit. She said that the 1st defendant had only installed two sets of escalators from the ground floor to the 1st floor. According to her, there should have been th