Gopal Sri Ram FCJ:

[1] The appellants are house-buyers. The respondent is a licensed developer. The appellants entered into separate agreements with the respondent to purchase apartments built by it. The respondent took the position that it had delivered the apartments to the appellants in accordance with the agreements it had with them. The appellants disputed this. They took the position that there had not been delivery in accordance with the terms of the agreement. They claimed compensation for late delivery. The High Court agreed with the appellants and ordered the respondent to pay liquidated and ascertained damages for late delivery. The Court of Appeal varied the High Court's order by reducing the sum awarded. It did this on the basis that time should stop running against the respondent as of the date of issuance of the temporary certificate of occupation. As it happens, no such certificate was ever produced by the respondent at the hearing before the High Court. The appellants then obtained leave of this Court and brought the appeal herein before us.

[2] The gist of the appellant's case before us is that the respondent breached cl 23 of the agreement in question. That clause reads:

Upon the issuance of a Certificate by the Vendor's Architect certifying that the construction of the said Parcel has been duly completed and water and electricity supply are ready for connection to the said Parcel and the Vendor has applied for the issuance of the Certificate of Fitness for Occupation from the Appropriate Authority and the Purchaser having paid all monies payable under cl 4(1) in accordance with the Third Schedule and all other monies due under this Agreement and the Purchaser having performed and observed all the terms and covenants on his part under this Agreement the Vendor shall let the Purchaser into possession of the said Parcel.

It is common knowledge that in recent years, especially when government started giving housing loans making it possible for public servants to borrow money at 4% interest per annum to buy homes, there was an upsurge in demand for housing, and that to protect home buyers, most of whom are people of modest means, from rich and powerful developers, Parliament found it necessary to regulate the sale of houses and protect buyers by enacting the Act. That was why r 12 was enacted and in particular paras (o) and (r) thereof. With respect we do not agree with Mr Chelliah that it was open to a developer to get round these paragraphs by the inclusion of such a clause as cl 32 in this agreement... In our judgment such details as are inserted into a written agreement must be details consistent, not inconsistent with the Act and rules.

[4] Similarly, in Sentul Raya Sdn Bhd v. Hariram Jayaram & Ors And Other Appeals, [2008] 4 MLJ 852, the Court of Appeal said of such a contract as in the present case:

The contract which has fallen for construction in the present cases is a special contract. It is prescribed and regulated by statute. While parties in normal cases of contract have freedom to make provisions between themselves, a housing developer does not enjoy such freedom. Hence, parties to a contract in Form H cannot contract out of the scheduled form. Terms more onerous to a purchaser may not be imposed. So too, terms imposing additional obligations on the part of a purchaser may not be included in the statutory form of contract.

[5] The case for the appellants before us is this. Clause 23 prescribes the precise manner in which