The court clarified the contractual obligations regarding delivery of possession and upheld liquidated damages due to failure in timely delivery.

Introduction

[1] The Appellant appeals against the decision of the High Court in dismissing the Appellant's claims against the 1st and 2nd Respondents for the damages for delay in delivery of vacant possession of 8 units of eight-storey shop offices (collectively "the said Properties") under the Icon City project ("the said Project") and for the torts of conspiracy and negligence.

[2] The Appellant was the Plaintiff in the High Court, and the Appellant's claim was for liquidated ascertained damages ("LAD") for late delivery of vacant possession of the said Properties bought from the 1st Respondent (the 1st Defendant below) who was the Project Developer, and also against the 2nd Respondent, (the 2nd Defendant below) who was the Project Architect of the said Project.

[3] This is a unanimous decision of the Court. We heard this appeal on 6 May 2021 and allowed the appeal in part. These are our grounds for our decision.

[4] The parties herein shall be referred to, in their respective capacities before this Court.

Background

[5] As a result of the 1st Respondent failing to deliver the valid vacant possession of the said Properties, the Appellant filed a suit in the High Court, against the 1st and 2nd Respondents claiming for the following reliefs:

(a) A declaration that the delay or cessation of work by a third party or contractor/subcontractor appointed by the 1st Respondent is within the 1st Respondent's control;

(b) A declaration that the opinion/recommendation by the 2nd Respondent to delay or extend the completion date and date of delivery of vacant possession is wrongful, invalid, improper and/ or not bona fide and not applicable;

(c) A declaration that the Appellant is entitled to claim for damages for the delay of the 1st Respondent in the completion of works and delivery of vacant possession for the units purchased by the Appellant as the opinion/recommendation of the 2nd Respondent to delay or extend the completion date and the date of delivery of vacant possession is wrongful, invalid, improper and/or not bona fide and not applicable;

(d) LAD for delays in delivery of vacant possession in the sum of RM3,710,465.75 calculated from 5 June 2015 to 30 December 2015 to be paid by the 1st Respondent and/or the 2nd Respondent jointly and severally;

(e) Damages for delays in delivery of vacant possession in the sum of RM2,550,425.36 calculated from 31 December 2015 to 26 August 2016 to be paid by the 1st Respondent and/or the 2nd Respondent jointly and severally;

(f) General damages;

(g) Interest at the rate of 5% per annum on all judgment sums from the date of judgment until full realisation; and

(h) Costs.

[6] The Appellant's cause of action against the 1st Respondent developer is founded upon the 1st Respondent's breach of the 8 Sale and Purchase Agreements all dated 21 October 2011 in relation to the said Properties (collectively "SPAs") and the tort of conspiracy. The terms and conditions of the 8 SPAs are identical save for the details and descriptions of the said Properties. The Appellant's cause of action against the 2nd Respondent, is founded upon the torts of conspiracy and negligence for the breach of duty of care as the Architect for the said Project.

[7] Under the terms of the SPAs, the date by which the 1st Respondent had to deliver vacant possession of the said Properties was on or before 4 June 2015. However, vacant possession of the Properties was not delivered on or before 4 June 2015. Both these facts are not in dispute.

[8] The 1st Respondent issued a letter dated 30 December 2015 to the Appellant informing that vacant possession of the said Properties was ready to be delivered, when in fact it was not, as the Certificate of Completion and Compliance ("CCC") was