The calculation of liquidated ascertained damages for late delivery of vacant possession must commence from the date of booking fee payment, not from the date of the Sale and Purchase Agreement, to protect house buyers' interests.

Mohd Nazlan Ghazali JCA:

Introduction

[1] Five appeals were heard before us against a decision of the High Court at Kuching in a judicial review proceeding, which had granted an order of certiorari to quash parts of the three awards made by the Tribunal of Housing Purchaser's Claims Sarawak. These awards had calculated the liquidated ascertained damages ("the LAD") for a delay in the delivery of vacant possession under the Sale and Purchase Agreement ("the SPA") prescribed under the Sarawak Housing Development (Control and Licensing) Regulations 2014 to be from the date of payment of booking fees.

[2] The learned Judicial Commissioner of the High Court ("the learned JC") held that the three awards were made in error of law, in that the LAD should be calculated from the date of the SPA. The awards of the Tribunal were therefore set aside.

[3] As the issues raised in the five appeals arising from the three awards were similar, as were those in the cross-appeals filed by the developer in four of the appeals, all parties agreed that the outcome of one appeal ought to bind the four other appeals.

[4] At the conclusion of the hearing, we allowed all the appeals, and dismissed the cross-appeals. These are our reasons.

Key Background Facts

[5] The five appeals were registered as Q-01(A)-174-03-2022 ("Appeal 174"), Q-01(A)-175-03-2022 ("Appeal 175"), Q-01(A)-176-03-2022 ("Appeal 176"), Q-01(A)-220-04-2022 ("Appeal 220") and Q-01(A)-221-04- 2022 ("Appeal 221"). All five resulted from the said decision of the High Court delivered on 24 March 2022.

[6] The Appellants in Appeals 174, 175 and 176 were three different house purchasers, respectively, and the Appellant in Appeals 220 and 221 was the Tribunal of Housing Purchaser's Claims Sarawak or Tribunal Tuntutan Pembeli Rumah Sarawak ("the Tribunal"). The appeals in Appeals 220 and 221 by the Tribunal also concerned the cases in Appeals 174 and 175 and raised the same key issues in Appeals 174 and 175. The Tribunal was also the 2nd respondent in Appeals 174, 175 and 176. The developer - RJ Realty Sdn Bhd was the 1st respondent in all five appeals.

[7] The claims of the Appellants in Appeals 174, 175 and 176 against the 1st respondent were therefore for all intents and purposes similar, and all three were also represented by the same counsel who before us raised the key issues common to all three Appellants, as agreed by all parties. The Tribunal, as the Appellant in Appeals 220 and 221 also raised submissions consistent with those of the three Appellant house buyers.

[8] There were also cross-appeals filed by the 1st respondent in Appeals 174 and 175 as well as in Appeals 220 and 221 on the ground that if the main appeals were allowed, the awards of the Tribunal ought to be varied as it had granted the LAD sum in excess of that pleaded by the Appellant house buyers.

[9] The three Appellants purchased their respective apartments at "Ferra Blessed Residences" from the 1st respondent. Before they executed the SPAs, they had each signed a booking form and paid a booking fee of RM20,000.00 to the 1st respondent for the purchase of one unit of the apartment respectively. Thus, for example, in the case of the Appellant in Appeal 174, the purchase price of her parcel was RM699,900.00, and she signed the booking form and paid the booking fees on 24 April 2015.

[10] The SPAs in the three appeals were however in fact only executed several months later, and in the case of the Appellant in Appeal 174 the SPA was signed on and dated 27 July 2016.

[11] Pursuant to reg 9(1) of the Sarawak's Housing Development (Control and Licensing) Regulations 2014 ("the Sarawak HDR 2014"), issued under the Housing Development (Control and Licensing) Ordinance 2013 ("the Sarawak HDO 2013"), every contract of sale for the sale and purchase of a housing accommodation in a subdivided building, like in the case of the three Appellants herein, shall be in Form C in the Schedule. Section 9(1) of the Sarawak HDR 2014 on Contr