The Housing Development (Control and Licensing) Act 1966 applies to developments intended for human habitation, regardless of their commercial designation, entitling Purchasers to protections under the Act.

Introduction

[1] These appeals concern the late delivery of vacant possession of commercial accommodation suites, along with claims for indemnification related to the Goods and Services Tax ("GST") and late payment interest arising from the sales and purchases of those commercial accommodation suites.

[2] The Appellants in appeal No P-04(NCVC)(W)-51-02/2022 ("Appeal 51") and Respondents in appeal No P-04(NCVC)(W)-63-02/2022 ("Appeal 63") were the plaintiffs in the Sessions Court and respondents in the High Court. They are individuals and the purchasers of the commercial accommodation suites in issue.

[3] The Respondent in Appeal 51 and Appellant in Appeal 63 was the defendant in the Sessions Court and the appellant in the High Court. It is a private limited company that developed and sold the commercial accommodation suites in issue.

[4] For convenience, we will hereinafter refer to them as the Purchasers and the Developer, respectively.

[5] We heard the appeals on 13 January 2025 and thereafter adjourned the same to deliberate on rival contentions advanced before us.

[6] Now having duly done so, we furnish below our decision together with the supporting grounds thereof.

Background

[7] The Developer initiated a commercial development comprising a hotel known as the Jazz Hotel and commercial suites known as the Jazz Suites in Tanjung Tokong, Penang (collectively, the "Jazz Project"). The master land title for the Jazz Project states as follows:

"Tanah yang diberimilik ini hendaklah digunakan untuk tujuan perniagaan sahaja."

[8] Furthermore, the planning permission and building plans of the Jazz Project applied for by the Developer and approved by the Majlis Bandaraya Pulau Pinang, were premised on a commercial development.

[9] Subsequently, the 19 Purchasers and the Developer respectively entered into a bespoke Sale and Purchase Agreements ("SPAs") and Deeds of Mutual Covenants ("DMCs") in respect of the sale and purchase of suites in the Jazz Suites. Seventeen (17) SPAs and DMCs were executed in August 2012, and the remaining two (2) were executed in 2013.

[10] The SPA provides, inter alia, the following express terms:

"Preamble

4. The Vendor intend to develop the said Land as a Commercial Lots, Commercial Suites, Hotel and /or other type of development as the Vendor shall deem proper (hereinafter referred to as "the Jazz")...as may be approved by the Relevant Authority.

5. The Vendor is developing part of the Jazz into Commercial Suites (hereinafterreferred to as "Jazz Suites")..."

[11] Furthermore, the DMC provides, inter alia, the following express term:

"By a sale and purchase agreement of even date made between the vendor or the one part and the purchaser on the other part the vendor sold and the purchaser purchased all that parcel of commercial space at Jazz Suites which is more particularly described in s 3 of the First Schedule hereto upon the terms and conditions stated in the Sale and Purchase Agreement. "

[12] According to the SPA, the time for delivery of vacant possession of the Jazz Suites and completion of common facilities for the Purchasers comprising of the Appellants (other than the 23rd and 24th Appellants) in Appeal 51 and Respondents (other than the 23rd and 24th Respondents) in Appeal 63 is 36 months from completion of piling works as certified by the architect of the Jazz Project.

[13] However, in the case of the Purchasers comprising