James Foong JCA:

Introduction

This appeal centres on the perennial dispute as to whether delivery of vacant possession of a house sold by a developer to a purchaser should include supply of water and electricity to the house and if so to what extent and manner.

Facts

The undisputed facts of this case are these:

By a sale and purchase agreement dated 16.5.1990 (S & P Agreement), the respondent purchased from the appellant a shop house in Raub for a sum of RM95,000.00. Complying with regulation 11(1) of the Housing Developers (Control And Licensing) Regulations 1989 (1989 Regulations), the S & P Agreement contains the following clauses, relevant to the dispute in this case:

Clause 17(1)

The Vendor shall, at its own cost and expense, lay or cause to be laid all necessary water, electricity and sewerage mains, gas piping (if any) and internal telephone trunking and cabling (if any), to serve the said Estate and at its own cost and expense undertake to apply for the connection of internal water, electricity, sanitary and gas installations (if any) of the said Building to the water, electricity and sewerage mains of the Appropriate Authority, and the gas mains of the relevant authority.

Clause 17 (2)

The Purchaser shall be liable for and shall pay, within fourteen (14) days after the receipt of a notice requesting for payment from the Vendor, the deposits for the installation of water, electricity and gas meters and the Vendor shall bear all other costs, if any.

Clause 20(1)

The said Building shall be completed by the Vendor and vacant possession with the connection of water and electricity supply to the said Building, shall be handed over to the Purchaser within twenty-four (24) calendar months from the date of this Agreement.

Clause 20(2)

If the Vendor fails to hand over vacant possession of the said Building together with the connection of water and electricity supply to the said Building in time, the Vendor shall pay immediately to the Purchaser liquidated damages to be calculated from day to day at the rate of ten per centum (10%) per annum of the purchase price.

Clause 21(1)

Upon the issue by the Vendor's Architect of a Certificate certifying that the construction of the said Building has been duly completed and water and electricity supply has been connected to said Building and the Purchaser having paid all monies payable under clause 4(1) in accordance with the Third Schedule and all other monies due under this Agreement and the Purchaser having performed and observed all the terms and covenants on his part under this Agreement the Vendor shall let the Purchaser into possession of the said Property.

The last date for the appellant to deliver vacant possession of the said building under the S & P Agreement is 16 May 1992. Water pipes and electricity mains were duly laid and connected to the said building on 13 January 1991. Keys to the said building were handed over to the respondent on 30 October 1991. Certificate of Fitness to the said building was issued on 19 August 1993. However, electricity supply was only connected to the said building on 18 January 1994.

For this, the respondent claimed from the appellant in the Magistrate's Court in Raub a sum of RM15.902.73 for late delivery of vacant possession of the said building from 16 May 1992 to 18 January 1994; a total of 611 days.

The learned Magistrate allowed the respondent's claim with interest and costs. Dissatisfied, the appellant appealed to the High Court in Raub. Judicial Commissioner Dato' Azhar Ma'ah (as he then was) dismissed the appeal with costs. Still discontented, the appellant filed this appeal before us.

Appellant's Argument

Mr. Felix Dorairaj, counsel for the appellant, first submitted that the appellant has complied with its obligation to the respondent to hand over vacant possession of the said building to the respondent on time. At that time, the appellant had, at its own cost and expense, laid all the pipes and cables for connection of wate