A party's failure to fulfil obligations under a Sale and Purchase Agreement can preclude them from claiming damages for late delivery of possession.

Introduction

[1] The Plaintiff's claim against the Defendants is for Liquidated Ascertained Damages (LAD) for the late delivery of vacant possession of a shop office known as Parcel No B2-G-88 ("the premise") in a project known as Savana Commercial Shop Lots ("the project"). The Defendant counter claimed against the Plaintiff for the failure to pay all charges due on the purchase of the premise.

[2] The case went for a full trial where the parties relied on oral testimony of witnesses as well as documents contained in the bundle of documents which included the sale and purchase agreement as well as other documents. The Plaintiff called 1 witness whereas the Defendant called 2 witnesses.

Brief Facts

[3] The Plaintiff a private individual had purchased the premise from the Defendant the developer of the project for a sum of RM1,976,800 vide a Sale and Purchase Agreement ("SPA") dated 27 March 2014.

[4] One of the terms of the agreement is that the delivery of vacant possession to be within 48 months from the date of the SPA. Failing to deliver vacant possession within the period agreed upon, will attract an LAD of 10% per annum calculated on a daily rest basis on the amount of payment made by the Plaintiff.

[5] The Plaintiff has made full payment of the purchase price to the Defendant. The Defendant on 29 March 2018 delivered the Certificate of Completion issued by the Architect together with 6 invoices of charges to be paid by the Plaintiff.

[6] On 4 April 2018 the Plaintiff's Bank paid the balance sum of the purchase price amounting to RM196,780. However the Plaintiff disputed the other charges imposed by the Defendant.

[7] As the Plaintiff had failed to pay all the charges claimed the Defendant refused to deliver vacant possession to the Plaintiff. This led the Plaintiff to issue a Notice of Demand and finally initiating of this Civil Suit.

[8] The Plaintiff apart from seeking for vacant possession is also asking for LAD as well as general and aggravated damages whereas the Defendant is claiming for the charges not paid by the Defendant.

[9] From the evidence it is clear that the key of the premise were finally given to the Plaintiff on 4 November 2020 upon the payment of a certain sum of money.

[10] The claim for vacant possession in the Court's view is no more a relief applicable to the Plaintiff. The only issue needing the determination of the Court is the Plaintiff's claim of LAD and other damages. The other issue for determination by the Court is the Defendants' counterclaim.

LAD And Other Damages

[11] The crux of the dispute on this issue is to determine whether there was a delay in the delivery of the vacant possession. For the determination of this issue, the entirety of the SPA has to be considered by the Court.

[12] It is trite law that in interpreting any agreement, the Court has to consider the language and wordings of the clauses of the SPA and give ordinary meaning to the words and phrases used. The Court is restrained from giving its own interpretation of the terms in the agreement unless the clauses are vague and ambiguous.

[13] For the issue at hand of late delivery of possession, the Court looked at cl 12.2.1 of the SPA which is reproduced here for ease of reference:

"Upon issuance of a certificate by the Developer's architect certifying that the construction of the said parcel has been duly completed and the Purchaser having paid all the monies payable under this Agreement and having performed and observed all terms and conditions on the Purchaser's part under this Agreement the Developer shall let the