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2025 MarsdenLR 4504
SESSION COURT KUALA KUBU BHARU
PARVATHI PERIAKARUPPAN – Appellant
Versus
AMALAN SETAR (M) SDN BHD; JAIKANES MANOKARAN (THIRD PARTY) (ENCLS 1 & 25) – Respondent
[Suit No: BF-A52NCVC-1-11/2020]
Contractual obligations must be adhered to, and negligence in managing property keys can lead to liability for damages, including liquidated and general damages.
Headnote:(A) Sale and Purchase Agreement - Clauses 24 and 26 - Liquidated damages for late delivery of vacant possession - Plaintiff entitled to RM671.00 as liquidated damages for late delivery of property, plus RM4,000.00 for loss of rental due to Defendant's negligence in handling property keys and renovations. The court emphasizes the importance of adhering to contractual obligations and the foreseeability of harm in negligence claims. (Paras 46, 61, 66)
(B) Negligence - Duty of care - Developer has a duty to ensure proper handover of property and avoid negligence in managing keys and renovations. (Paras 54, 59)
Facts of the case:
The Plaintiff purchased a property from the Defendant, which failed to deliver vacant possession as per the Sale and Purchase Agreement, leading to claims for liquidated and general damages due to delays and unauthorized renovations. (Paras 5, 12, 22)
Findings of Court:
The court found that the vacant possession was deemed delivered as per the contract, but the Defendant acted negligently in managing the property, leading to damages awarded to the Plaintiff. (Paras 49, 66)
Issues: The main issues included whether the vacant possession was delivered, entitlement to damages for late delivery, and the validity of renovation claims. (Paras 42, 46)
Ratio Decidendi: The court ruled that the Plaintiff was entitled to liquidated damages for late possession and general damages for loss of rental due to the Defendant's negligence, emphasizing the contractual obligations and foreseeability in negligence cases. (Paras 46, 66)
Result: Plaintiff's claims for liquidated damages and general damages allowed, counterclaim dismissed.
| Table of Content |
|---|
| 1. background of the property sale agreement. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. events surrounding the delivery of possession. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20) |
| 3. plaintiff's claims and damages sought. (Para 21 , 22 , 23) |
| 4. plaintiff's case and arguments. (Para 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35) |
| 5. defendant's rebuttal and counterarguments. (Para 36 , 37 , 38 , 39 , 40) |
| 6. court's findings on possession delivery. (Para 42 , 43 , 44 , 45 , 46 , 47 , 48) |
| 7. court's observations on negligence. (Para 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57) |
| 8. legal principles on duty of care. (Para 58 , 59 , 60 , 61) |
| 9. court's conclusion on damages. (Para 62 , 63 , 64 , 65) |
| 10. final judgment and orders. (Para 66) |
Enclosure 1
[1] This is my judgment in respect of the Plaintiff's claim against the Defendants inter-alia for liquidated ascertained damages ("LAD") amounting to RM36,397.26 as at 24 November 2020 which is still ongoing and for general, aggravated and exemplary damages.
Brief Facts
[2] The Plaintiff is the purchaser of one double storey terrace house known as Geran No: 282616, Lot No: 29541 Seksyen 20, Bandar Serendah, Daerah Ulu Selangor, Negeri Selangor, bearing the postal address of No 19, Jalan Sari Alamanda 1/3A, Sari Alamanda, 48000 Rawang, Selangor Darul Ehsan ("the said property").
[3] The Defendant is a private limited company incorporated in Malaysia. The Defendant is in the business of housing development. In this case, Defendant is the developer to the project of Sari Alamanda.
[4] While the 3rd party is the registered and beneficial owner of the double storey terrace house bearing the postal address of No 19, Jalan Seri Alamanda 1/3, Sari Alamanda, 48000 Rawang, Selangor Darul Ehsan ("Property 1/3") which is located at the next road which is situated at the back of the Plaintiff's property.
[5] On 13 January 2018, both the Plaintiff and the Defendant had entered into a Sale and Purchase Agreement, whereby the Plaintiff had agreed to purchase the said property and the Defendant had agreed to sell the said property to the Plaintiff at a selling price of RM350,000.00. ("SPA").
[6] It was an agreed term pursuant to cl 24 of the SPA that the vacant possession of the said property shall be delivered to the Plaintiff within 24 months from the date of the agreement. If the Defendant fails to deliver vacant possession of the said property within 24 months from the date of the agreement, Defendant is liable to the Plaintiff liquidated damages calculated from day to day at the rate of ten per centum (10%) per annum of the purchase price.
[7] It is also agreed that pursuant cl 26 of the SPA, manner of delivery of vacant possession of the said property upon the following conditions:
(a) the issuance of a certificate of completion and compliance;
(b) water and electricity supply are ready for connection to the said building;
(c) the Purchaser having paid all monies payable under the subclauses 5(1) in accordance with the 3rd schedule and all other monies due under this Agreement and the Purchaser having performed and observed all the terms and covenants on this part of the agreement, and
(d) the completion of any alteration or additional work under subclause 16(2), if any.
[8] Plaintiff had also agreed that upon the expiry of 30 days from the date of the service of a notice from the Defendant requesting the Plaintiff to take possession of the said property, whether or not the Plaintiff has actually entered into possession or occupation of the said property, the Purchaser shall be deemed to have taken delivery of vacant possession.
[9] The Defendant's architect had issued the Certificate of Completion and Compliance ("CCC") of the Property in which Defendant had received the same on 4 December 2019 (at p 48 of the CBOD, part B).
[10] Defendant's company then issued a notice to the Plaintiff vide a letter dated 20 December 2019 (1st Notice) (at p 44 of the CBOD, part
