The calculation of liquidated agreed damages (LAD) in housing contracts commences from the date of booking fee payment, reinforcing protections for home buyers under social legislation.

Tengku Maimun Tuan Mat CJ:

Introduction

[2] The question then arises: what happens when the developers devise ingenious schemes to circumvent the law and when they are called out for it, turn around to say that it is the home buyers who seek to make a windfall under the guise of 'protection'? To our minds, this is the crux of these appeals.

Background Facts

[3] There are seven appeals before us comprising three sets of different cases. All cases stemmed from applications for judicial review filed in the High Court at Kuala Lumpur and Malacca.

[4] Two appeals (Appeals No 29 and No 30) were filed by PJD Regency Sdn Bhd, the developer of a project known as 'You Vista' in Cheras. The 1st respondent in both appeals is the statutory housing tribunal ('Housing Tribunal') constituted under s 16B of the HDA 1966. The 2nd respondent in both appeals are the purchasers of certain units in that development project. We will refer to this set of appeals as 'PJD Regency Cases'.

[5] Three appeals (Appeals No 40, 41 and 42) were filed by the purchasers of a project known as 'Taman Paya Rumput Perdana Fasa 2'. The common respondent is the developer of the project, GJH Avenue Sdn Bhd. This set of appeals will be referred to collectively as 'GHJ Avenue Cases'.

[6] The remaining two appeals (Appeals No 4 and 31) were filed by the developer Sri Damansara Sdn Bhd in relation to a project known as 'Foresta Damansara'. The respondents in both the appeals are the purchasers. The appellant is represented by different counsel in both appeals as they stemmed from two separate judicial review applications. This set of appeals will be referred to as 'Sri Damansara Cases'.

[7] For ease of comprehension, throughout this judgment, we will refer to parties by their general designations namely as 'the developers', 'the purchasers' and 'the Housing Tribunal'.

[8] We heard the appeals together as they essentially raised the same point of law. The common question of law falling for consideration as summed up from the similarly worded leave questions in all the appeals is as follows:

"Where there is a delay in the delivery of vacant possession by a developer to the purchaser in respect of Schedule G and/or H type contracts under reg 11(1) of the Housing Development (Control and Licensing) Regulations 1989 (Regulation 1989) enacted pursuant to s 24 of the Housing Development (Control and Licensing) Act 1966 , whether the date for calculation of liquidated agreed damages ('LAD') begins from:

(a) The date of payment of deposit/booking fee/initial fee/expression by purchase of his written intention to purchase; or

(b) From the date of the sale and purchase agreement,

having regard to the decisions of the Supreme Court in Hoo See Sen & Anor v. Public Bank Bhd & Anor, 1988 MarsdenLR 798 and Faber Union Sdn Bhd v. Chew Nyat Shong & Anor; [1995] 2 MLJ 597; [1995] 3 CLJ 797; [1995] 2 AMR 2094.".

[9] The above question arose as a result of the difference in interpretation between the developers and the purchasers as to the meaning of the words "from the date of this agreement" contained respectively in cl 24(1) of Schedule G of the HDR 1989 and cl 25 of Schedule H of the HDR 1989 (both are statutory contracts and shall be referred to collectively as 'Scheduled Contracts'). Similar clauses appear in other scheduled contracts such as in Schedule J.

[10] For clarity, we reproduce the material portions of those clauses respectively as follows:

"Schedule G

24. Time for deli