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2022 MarsdenLR 2811
HIGH COURT MALAYA KUALA LUMPUR
TOH AI SHI – Appellant
Versus
TALENT TEAM SDN BHD & ANOR – Respondent
[Civil Appeal No: WA-12ANCVC-108-03-2020]
Liquidated damages for delayed delivery of property are calculated from the signing of the sales and purchase agreement, not the payment of a booking fee.
Headnote:(A) Housing Development Act (Control and Licensing) 1966 – Sales and Purchase Agreement – Liquidated Ascertained Damages – Appellant sought LAD for delayed completion of residential unit – Court ruled that LAD calculation starts from the signing of SPA, not from booking fee payment – Validity of time extension granted by Housing Controller affirmed – GRanted, stakeholder sum conditions upheld. (Paras 9, 10, 11, 77)
(B) Liquidated Damages – Application of cl 25 of SPA – Extracting LAD claims without a valid booking fee is impermissible – Stakeholder sum defined and distinguished from booking deposits and conditions for release outlined. (Paras 26, 30, 53)
(C) Judicial Review – Appellant's claim lacked proper procedure for challenging validity of Housing Controller's decision – No basis to challenge extension of time validity in a private suit. (Paras 33, 34, 41)
Facts of the case: Appellant purchased Residential Unit in Ayuman Suites, claiming damages over alleged delay in delivery from developer. The court found delivery complied with approved extensions. (Paras 1, 5)
Findings of Court: Upholding Sessions Court's decision dismissing appellant's claims for LAD and confirming stakeholder sum release conditions as per SPA. (Paras 77)
Issues: Primary issues included determination of when LAD starts accruing and the validity of time extensions granted by Housing Controller. (Paras 9, 32)
Ratio Decidendi: The contractual terms of SPA dictate LAD calculation starts at signing; appellant's failure to substantiate claims regarding booking fee undermines her standing. (Paras 10, 11, 77)
Result: Appeal dismissed with costs.
JUDGMENT
(Appeal Against A Decision (Other Than Full Trial) Made By The Sessions Court)
Introduction
[1] This is an appeal ("this appeal") against a decision made by the learned Sessions Court Judge after a full hearing. The suit was brought by the plaintiff/ appellant ("the appellant"), among others, to seek and enforce payments of liquidated ascertained damages ("LAD") over delayed completion of the property purchased and the common facilities and the delivery of the vacant possession to the appellant.
[2] The appellant is a purchaser of a residential unit ("the Residential Unit") in a development known as 'Ayuman Suites @ Gombak' ("Ayuman Suites"), which is a residential project governed under the Housing Development Act (Control and Licensing) 1966 ("HDA 1966") and HDA Regulations 2015.
[3] The 1st defendant ("1st respondent") is a developer responsible for the construction of the Ayuman Suites whereas the 2nd defendant ("2nd respondent") is a legal firm being sued under said capacity as stakeholders of certain stakeholder sum.
[4] It is an undisputed fact that the appellant and the 1st respondent have entered into a sales and purchase agreement under Schedule H of the HDA 1966 on 1 October 2015 to purchase the Residential Unit ("the SPA").
Decision Of The Subordinate Court
[5] The learned Sessions Court Judge decided that there was an extension of time for the completion of the Residential Unit granted by the Housing Development Board from 36 months to 48 months. In interpreting the said extension of time, the learned Sessions Court Judge decided that time ran from the date the SPA was entered and not from the date the deposit was paid by the appellant to the 1st respondent. In support, the learned Sessions Court Judge relied on two cases namely the Court of Appeal's decision of GJH Avenue Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah , Kementerian Kesejahteraan Bandar, Perumahan, dan Kerajaan Tempatan & Ors, [2020] 3 CLJ 307 and the High Court's decision of Southville City Sdn Bhd v. Mohd Azlan Abu Bakar & Anor.
[6] It was also decided that the 2nd respondent is the stakeholder of the stakeholder sum and as such, they are bound by cl 30 of the SPA where there is nothing in the said clause that allows for the stakeholder sum to be released for the purpose of paying any LAD. The decision was supported by the case TS Chong & Co v. Mount Austin Properties Sdn Bhd, [2008] 5 CLJ 397.
[7] Dissatisfied with the decision of the learned Sessions Court Judge, the appellant appealed to me. By virtue of O 55 r 2 of the Rules of 2012, I have reheard the submission of the parties.
This Court's Findings
[8] Having read the appeal records and parties' written submissions and having heard the oral submissions thereafter, I agree with the decision of the learned Sessions Court Judge and dismiss this appeal. Below are my reasonings and judgment for the dismissal of this appeal.
[9] The pith and substance of the appellant's case is that there was a delay in the delivery of the Residential Unit and the common area. The issue in dispute henceforth arose on the exact date when this delay is to be calculated from. The appellant's case is that the date runs from the day the booking fee was paid to the 1st respondent whereas the 1st respondent's case is that it runs from the date the SPA was signed.
[10] Respectively on this point, the appellant relied on the Federal Court's case of PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeals, and the 1st respondent relied on the Court of Appeal case of GJH Avenue Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah , Kementerian Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Ors and Other Appeals, [2020] 3 CLJ 307 .
[11] While I am mindful that PJD Regency (supra) had overturned the ratio of GJH Avenue (supra) when the Federal Court decided that the date for the calculation of LAD begins from the date the booking fee was paid to the developer and not the
