The court established that ss 74 and 75 of the Contracts Act 1950 govern statutory contracts, emphasizing reasonable compensation irrespective of proven damages.

[1] There were 7 appeals filed by the same appellant which were fixed before us for hearing on 12 July 2019. We heard all parties. All parties agreed that it will be sufficient to deal with appeal No W-01(A)-218-03/2018 (218) and they will be bound by the decision of this court in relation to the other appeals.

[2] The 7 appeals are as follows: (a) W-01(A)-218-03/2018; (b) W-01(A)- 219-03/2018; (c) W-01(A)-220-03/2018; (d) W-01(A)-221-03/2018; (e) W- 01(A)-222-03/2018; (f) W-01(A)-223-03/2018; (g) W-01(A)-224-03/2018.

Background Of The Appeal

[3] The appellant is a developer and the appeal is related to the award of the Tribunal of Homebuyers Claims. It is crucial to note that the appellant was relying on three decisions of the Federal court, namely: (a) Selva Kumar a/l Murugiah v. Thiagarajah a/l Retnasamy , 1995 MarsdenLR 736 ; (b) Johor Coastal Development Sdn Bhd v. Constrajaya Sdn Bhd , 2009 MarsdenLR 985 ; (c) Cubic Electronics Sdn Bhd (In Liquidation) v. Mars Telecommunications Sdn Bhd, [2019] 2 CLJ 723 (Three cases); to assert inter alia that the respondents claim ought to have been dismissed as they have failed to prove damages. Our preliminary view is that all the Three cases deal with recovery of deposit and/or part payment by defaulting parties. To put it mildly, it will not be jurisprudentially prudent to rely on those cases for purpose of s 75 of the Contracts Act 1950 ( CA 1950). Our view is fortified by the reasoning of the Privy Council in Linggi Plantation as well as the court of Appeal in Johor Coastal Development Sdn Bhd v. Constrajaya Sdn Bhd ; [2009] 3 MLJ 349; [2005] 2 CLJ 914; [2005] 2 AMR 90, where it was held that s 75 does not apply.

[4] For that reason, we have dealt with those cases in this judgment and the underlying jurisprudence related to ss 74 and 75 of the CA 1950, in some detail to arrive at a just decision. Our attempt here is not to undermine the corpus of literature and case laws in this area of jurisprudence, but only an attempt to confront the issues which have arisen out of those decisions which have caused and/or causing much confusion as reflected in not just one or two articles by jurist of great stature but many more. Some of the articles are as follows: (a) Enforcement of Liquidated Damages - To Prove Actual Loss? [1993] 1 MLJ lxxxi - By Lim Chong Fong (currently Judge of the High court, Malaya); (b) Current Developments In The Law of Liquidated Damages - A More Flexible Approach? [1993] 3 MLJ cxv - By Vincent Powell Smith - Professor and a beacon in Construction Law and Dispute; (c) Sakinas Sdn Bhd v. Siew Yik Hau & Anor, [2002] 5 MLJ 498: One Step Forward, Two Steps Back? [2002] 4 MLJ xx - Graham Lim and Kamilah bt Kassim; (d) Recoverability of Liquidated and ascertained Damages In the Construction Industry In Light of Cubic Electronics Sdn Bhd [2019] 1 LNS (A) lxiii - David Cheong Zhao Yee [hereinafter referred to as the Four Articles].

Questions Posed By court

[5] We had also posed inter alia the following questions and/or statements to all parties after hearing submissions on 12 July 2019:

(a) Is there a difference between a statutory and common law contract?

(b) Is it correct to say that ss 74 and 75 are only applicable to common law type of contracts as envisaged by the Act and not statutory contracts where i