Faiza Tamby Chik J:

[1] The issues raised in this appeal are:

(1) Whether There Is An Issue Regarding The Need To Give Notice During The Handover Of Vacant Possession

[2] The solicitor for the defendant submitted that the 'plaintiff set aside their right in bringing this action as they failed to give notice of his intention to claim for damages'. The solicitor of the defendant then referred to s 56(3) of the Contract Acts 1950. It is observed that the plaintiff had duly given the defendant notice vide the plaintiff's letters dated 12 May 2000 when the plaintiff visited the defendant's branch office at the said Apartments and vide their solicitor's letter dated 23 October 2000. See exh 'A-6' of the plaintiff's affidavit in reply affirmed by Law Kim on 2 August 2001 (pp 202-206 of the appeal record) and exh 'A-4' of the plaintiff's affidavit in support affirmed by Law Kim on 19 June 2001 (pp 171-185 of the appeal record). I think even though the notice was not given on 5 May 1998, it cannot be construed to mean that the plaintiff has waived his right to claim damages for late delivery. This is because the plaintiff did not do anything during that period and the conduct is not a waiver of this right. Further, the plaintiff's notices dated 12 May 2000 are within the material time when compared to the defendant's letters dated 24 April 2000 requesting the plaintiff to take delivery of vacant possession (about two weeks). The plaintiff had given the defendant notice as soon as he received the defendant's said letters. In Loke Yuen Cheng & Anor v. Vimtex Sdn Bhd, [1988] 4 MLJ 169, it was held:

When time is of the essence of the contract and when the party who is in the right allows the time fixed for completion to pass and the parties go on negotiating, then time is no longer to be regarded as of the essence of the contract. However, the parties here did not allow time to pass nor did they carry on negotiating for completion of the purchase. The appellant did not do anything between 13 November 1992 and 30 November 1992 except to grant the two-month extension. Their conduct was not such as to amount to a waiver.

[3] However, there is no provision in the said sale and purchase agreement which requires the plaintiff to give the said notice. If the defendant required notice to be given by the plaintiff as soon as the defendant breached the time in handing over vacant possession, then the defendant should provide for the same as an important term in the sale and purchase agreement by applying to the authorities for approval to add the terms pertaining to the notice. Instead, cl 22.2 of the sale and purchase agreement did provide that:

... the Vendor shall pay immediately to the Purchaser liquidated damages to be calculated from day to day at the rate....

[4] This provision compels the defendant to pay the plaintiff the agreed liquidated damages immediately when the defendant is late in delivering vacant possession but did not mention anything pertaining the need to give notice by the plaintiff. It is true that the sale and purchase agreement is a 'contract', however it was made in accordance with Schedule H of the Housing Developers (Control and Licensing) Act 1966 for accommodation units. As there is a specific Act pertaining to the area of law to it, the Contracts Act 1950, which is a general Act, is therefore not applicable in the instant case. The said sale and purchase agreement was drafted in accordance with'Schedule H' of the Housing Developers (Control and Licensing) Act 1966 for accommodation type and it is a statutory contract which cannot be 'contracted out', unless with the consent of the Controller of Housing or Government. The intention is to protect purchasers such as the plaintiff from the defendant who has a more bargaining power and who unilaterally takes advantage of interpreting the plaintiff's conduct as a waiver and who could refuse to pay compensation even though in breach of the agreement. Regulation 11(1) and (