GROUNDS OF JUDGMENT

Introduction

This is the Plaintiff's application by way of Summons in Chambers (Enclosure 4) for an order of Specific Performance under Order 81 Rules of the High 1980 with regard to the Sale and Purchase Agreement and the Deed of Mutual Covenants between the Plaintiff and the Defendant both dated 15.4.2004 respectively and House Rules.

Background

The facts not in dispute herein are as follows. The Defendant is the registered and beneficial owner of the land held under HS(D) 135922 Lot 42407 Pekan Cempaka District of Petaling State of Selangor ('the said land').

At material times, the Defendant is the developer of the condominium known as Dataran Prima Condominium ('the said Condominium'). The Defendant sold to the Plaintiffs the apartment described as Parcel No. P- PH-07 Storey No.21 at Building Block P ('the said Apartment') vide the Sale and Purchase Agreement dated 15.4.2004.

The above said Sale and Purchase Agreement entered by the Defendant is in the standard form prescribed by Schedule H of the Housing Development (Control and Licensing) Act 1966 and the Regulation 11(1).

The Defendant agreed and covenanted to construct the said Apartment together with the common property in a good and workmanlike manner in accordance with the description set out in the 4th Schedule to the Sale and Purchase Agreement, an in accordance with the plans approved by the relevant authority.

The Defendant agreed and covenanted to repair and make good at its own costs and expense within thirty (30) days of receipt of a written notice any defects, shrinkages and other faults to the said Apartment, the building or the common property which shall become apparent within a period of eighteen (18) months (the defects liability period) after the date the Plaintiff took vacant possession of the said Apartment which are due to defective workmanship or materials or the Apartment or the Building or the common property not having been constructed in accordance with the approved building plans or the specifications.

The Defendant agreed and covenanted, upon payment of service charges by the Plaintiff, to maintain and manage the common property. The Plaintiff paid the service charges to the Defendant as and when the same becomes due and payable.

The Defendant delivered vacant possession of the said Apartment to the Plaintiff on 14.7.2005. Any defects to the said Apartment, the building or the common property that shall become apparent after 31.1.2007 shall be outside the defects liability period.

The Defendant received a notice in a letter dated 13.3.2006 within the defects liability period from the Plaintiffs that there is water leakage and seepage through the common property reinforced concrete roof slab into the said Apartment and requiring the Defendant to, inter alia , repair and install adequate water proofing to the reinforced concrete roof slab to ensure that there is no water leakage or seepage to the said Apartment.

The Defendant agreed, inter alia , to check the waterproof membrane of the common property reinforced concrete roof slab and if the same is damaged to repair the waterproof membrane on the common property reinforced concrete roof slab. The reinforced concrete roof slab is common property and part of the external structure of the building.

The Defendant admitted in their letter dated 22.9.2006 to Messrs KK Lim & Associates that the illegal extension on the roof top had caused water leakages to the immediate unit below and their engineering specialist verified that that the leakages were directly due to floor punctures caused by drilling which in turn has resulted in water being retained by the pebbles and sipping into the slab through the bolts.

The Defendant failed to and refused to repair and make good the defects as the reinforced concrete slab is common property and part of the external structure of the building.

The illegal extension and structure on the common property reinforced concrete roof slab have not been removed. Th