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2024 MarsdenLR 110
MAJISTRET COURT TAIPING
GAYATRI PANIRSELVAM – Appellant
Versus
TEROKA PELANGI SDN BHD – Respondent
[Civil Suit No: AB-A72NCC-89-12/2022]
The calculation of Liquidated Ascertained Damages for property delivery delays begins from the booking fee payment date, not the Sale and Purchase Agreement date.
Headnote:(A) Housing Development Act 1966 - Liquidated Ascertained Damages (LAD) - The court held that LAD for delayed delivery of vacant possession should be calculated from the date of booking fee payment rather than the sale and purchase agreement date. (Paras 20, 21, 22)
(B) The court affirmed the authenticity of the booking fee receipt and established that the plaintiff paid the booking fee prior to the SPA date. (Paras 13, 16, 19)
(C) The defendant's claim of not receiving the booking fee was rejected based on credible evidence from the plaintiff and the solicitor. (Paras 10, 18)
Facts of the case:
The plaintiff paid a booking fee of RM1,000 on 18 October 2018, but vacant possession was only delivered on 30 August 2022, leading to a claim for RM33,580.82 in LAD.
Findings of Court:
The plaintiff successfully proved her claims, and the total LAD was calculated based on the delay of 515 days, resulting in an award of RM33,580.82.
Issues: The main issues were whether the booking fee was paid and whether LAD should be calculated from the booking fee or the SPA date.
Ratio Decidendi: The court ruled that LAD begins from the booking fee payment date to protect buyers and ensure developers cannot evade penalties.
Result: Claim allowed with costs.
JUDGMENT
[1] In this case, the cause of action is based on a simple yet profound transaction-a booking fee of RM1,000 for a property purchase. The plaintiff filed suit to claim and enforce payment of liquidated ascertained damages ('LAD') due to delays in completing the property purchase and late delivery of vacant possession to the plaintiff. The main issues in this case are: whether the booking fee was paid and, if so, whether the LAD should be calculated from the date the booking fee was paid or from the Sale and Purchase Agreement ('SPA') date.
[2] After a full trial, this court found in favor of the plaintiff and allowed the claim. The defendant, aggrieved by the decision, has appealed to the High court of Taiping. These grounds of judgment provide the full reasons for this court's decision.
The Trial
[3] At the trial, which went on for three days, the plaintiff called two witnesses, one of whom under subpoena, and the defendant one. The plaintiff's witnesses were:
(i) Gayatri Panirselvam, the plaintiff herself (PW1); and
(ii) Chuah Phei San, the solicitor from the firm Ong & Partners who prepared the SPA, a subpoenaed witness (PW2).
[4] The defendant's sole witness was Tung Mun Foong, who is the director of the defendant (DW1).
Summary Of Plaintiff's Case
[5] The plaintiff, a purchaser, entered into a SPA dated 29 June 2020 with the defendant, who is the developer of a housing project, for Unit PT 15249 located at No 50, Jalan Lit 3, Taman Larah Indah Timur, 34010 Ulu Sepetang, Taiping, Perak ('property'). The total purchase price for the property was RM238,000.
[6] The SPA stipulated that time was of the essence, meaning that timely delivery of the property was crucial. According to the cl 24 of the SPA, the defendant was required to deliver vacant possession of the property within 24 months from the date of the SPA. Failure to meet this deadline would result in the defendant being liable to pay LAD at a rate of 10% per annum of the purchase price from the expiry of the period until the date the plaintiff took vacant possession of the property.
[7] The key event for the plaintiff's case happened on 18 October 2018, two years before the plaintiff and defendant signed the SPA agreement on 29 June 2020. On that day, the plaintiff paid an earnest deposit of RM1,000 to the defendant's property agent as a booking fee. This payment was made in response to the defendant's advertisement for the housing project, which prominently featured the phrase "BOOK NOW". Later, the plaintiff received a copy of the official receipt for the booking fees via WhatsApp, issued by the firm Ong & Partners.
[8] However, the plaintiff only received vacant possession of the property on 30 August 2022, which was four years after paying the booking fee. The plaintiff argued that the defendant clearly breached the SPA by failing to deliver vacant possession on time. The plaintiff claimed that vacant possession of the property should have been given to her within 24 months from the booking fee date and the defendant owed RM33,580.82 (LAD) for failing to deliver vacant possession by 17 October 2020.
[9] The plaintiff submitted that the LAD calculation should commence from the date of the booking fee payment, which was 18 October 2018. The plaintiff relied on a recent decision of the Federal court in PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor and other appeals, ('PJD Regency'), which decided that the calculation of LAD begins from the date of the booking fee payment and not from the date of the statutory agreement.
Summary Of Defendant's Case
[10]The main points in the defendant's defence are:
(i) The defendant never directed, requested, or received any payment from the plaintiff that could be understood as a booking fee and/or earnest deposit. If such payment exists, it was made without the defendant's knowledge.
(ii) The contract between the plaintiff and defendant only began on the date of the SPA, which was 29 June 2020. There was
