Abdul Malik Ishak J:

Introduction

By way of a summons in chambers in encl. 9, the defendant sought for the following orders:

(1) pursuant to s. 73 of the Courts of Judicature Act 1964 and/or the inherent jurisdiction of this Honourable Court that the order of this court dated 4 January 2005 and the execution thereof be stayed:

(a) pending the final disposal of the defendant's appeal to the Court of Appeal against the whole of the said order of this court; or

(b) for such time as this Honourable Court shall so direct;

(2) such consequential and further and/or other orders and/or directions be made as this Honourable Court deems just in the circumstances; and

(3) costs of this application be provided for.

Basically, encl. 9 was the defendant's application for a stay of execution pending appeal to the Court of Appeal.

Facts Of The Case

In a nutshell, the facts may be stated as follows.

The plaintiffs herein - all seven of them, are homebuyers who purchased condominium units from the defendant. The sale and purchase agreements between the parties were the standard sale and purchase agreements ("the SPAs") as found in Schedule "H" of the Housing Developers (Control and Licensing) Regulations 1982. Now, under the SPAs, the defendant was to hand over vacant possession of the condominium units and complete the common facilities within 36 months from the date of the SPAs. The defendant further agreed under the SPAs to pay the plaintiffs liquidated damages if the defendant failed to deliver and complete the common facilities within the 36 months time frame period. So, when the defendant failed to deliver and complete the common facilities of the condominium units within the 36 months time frame period, the plaintiffs filed the present originating summons seeking, inter alia, liquidated damages in accordance to the SPAs as reflected in enclosure one (1).

On 4 January 2005, my immediate predecessor after having deliberated the lengthy written submissions filed by the parties on both sides ordered, inter alia, that the defendant pays the plaintiffs liquidated damages as per the express terms and conditions of the SPAs (hereinafter referred to as "the said order").

On 19 January 2005, the defendant filed an appeal to the Court of Appeal against the said order that was granted by my immediate predecessor.

On 21 February 2005, the defendant filed the present summons in chambers in encl. 9 for a stay of execution of the said order that was granted by my immediate predecessor.

Of crucial importance is the fact that the defendant has always been aware of its liability to pay the plaintiff liquidated damages for its failure to deliver and complete the condominium units within time. Without a doubt, the defendant is a responsible developer and other developers in the country should emulate what the defendant is doing. It is a noble gesture aimed at fostering good relationship with the purchasers. It is evident, so far as the evidence is concerned, that the defendant has already made a provision of RM51.0 million as liquidated damages to be paid to the purchasers. Reference should be made to a newspaper article that appeared in "The Star" on 6 September 2001, annexed as exh. "A" to the plaintiffs' affidavit (No: 3) affirmed by the first plaintiff by the name of Walter a/l Pathrose Gomez on 24 March 2005 as reflected in encl. 10. The salient passage of "The Star" newspaper reads as follows:

Taiping Con had made provision for liquidated ascertained damages in relation to interest/penalty charges for late delivery of units since the project was suspended in 1997. In total, it provided RM29 million in 1999 and a further RM22 million in 2000.

The defendant admitted that provisions in the sum of RM51.0 million were made to pay the liquidated damages. But according to the defendant, such provisions were made "in accordance with prudent accounting practice and is in no way a recognition of liability on the part of the defendant" (see the defendant