James Foong J:

Introduction

Enclosure 13 is an application of the plaintiffs under O. 22A r. 3(1)(a) and (e) of the Rules of High to order the 1st defendant to pay an interim payment of RM2,003,425 to the plaintiffs.

Plaintiffs' Claim

The 1st defendant is a property developer.

Save and except the 9th. 10th. 16th, 17th, 18th, 19th, 20th, 21st, 22nd, 23rd, 24th, 119th and 120th plaintiffs, all the other plaintiffs are purchasers of residential properties in a project developed by the 1st defendant. For ease of reference I shall be referring them as 'Residential Properties Purchasers'.

The 9th, 10th, 16th, 17th, 18th, 19th, 20th, 21st, 22nd, 23rd, 24th, 119th, and 120th plaintiffs are purchasers of commercial properties that are also developed by the 1st defendant. For these plaintiffs, I shall hereinafter be referring them as 'Commercial Properties Purchasers'.

The purchases by the plaintiffs are all evidenced by written sale and purchase agreements entered into between the plaintiffs and the 1st defendant.

Under the terms and conditions in the sale and purchase agreements the 1st defendant is to deliver vacant possession of the properties so purchased by the plaintiffs within a certain specified period leading to the issuance of certificate of fitness (CF) to occupy the said properties, which till date has not been issued by the authorities. The plaintiffs in this suit claim that the 1st defendant has breached this term and they are now demanding from the 1st defendant liquidated damages.

In respect of the sale and purchase agreements involving the Residential Properties Purchasers cl. 22 requires the 1st defendant to complete the residential properties and deliver vacant possession of the same, with water and electricity supply within 36 calendar months from date of the agreements. Then cl. 23 specifies that delivery of vacant possession means: upon issuance of the 1st defendant's architect certificate certifying that the said property has been duly completed; water and electricity have been connected thereto and; the 1st defendant has applied for CF from the appropriate authorities; provided always that the Residential Properties Purchasers have paid all monies due under the purchase price. And in the event that the 1st defendant fails to deliver vacant possession within the time as stated then the Residential Properties Purchasers are entitled to be paid 10% per annum of the purchase price for each day of delay as agreed liquidated damages.

In addition to the above, cl. 24 of the agreements demands the 1st defendant to complete the common facilities of the residential properties within 36 months from date of the agreements. In the event of default, the 1st defendant shall pay on a day-to-day basis 10% per annum of the last 20% of the purchase price.

For the Commercial Properties Purchasers, cl. 11.1 of their agreements with the 1st defendant states that the 1st defendant shall practically complete the said commercial properties within 36 months from date of agreements provided "the architect's certificate certifying the same shall be conclusive evidence of practical completion of the premises." Then if the 1st defendant "willfully delay practical completion of the premises beyond the aforesaid period the vendor shall pay to the purchaser agreed liquidated damages calculated from day to day at the rate of eight percent (8%) per annum" from the date of expiry of the 36 months to date of issuance of the certificate of practical completion by the 1st defendant's architect.

For particulars of liquidated damages, the plaintiffs have set out in detail various tables to show the period of delay and the amount due. For the Residential Properties Purchasers there are two tables: one is for liquidated damages for late delivery of the residential properties and the other is for liquidated damages for failure to complete the common facilities. Calculation on the amount stated in the particulars is up to 20 November 2002.

It is on these amou