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2025 MarsdenLR 4359
HIGH COURT MALAYA SHAH ALAM
ICON CITY DEVELOPMENT SDN BHD – Appellant
Versus
ROS AZLIN SABAWI – Respondent
[Civil Appeal No: BA-11BNCvC-21-07/2022]
The commencement of the 42-month delivery period for vacant possession in a Sale and Purchase Agreement is based on the first approval date, not subsequent amendments, establishing liability for liquidated ascertained damages for delays.
Headnote:(A) Sale and Purchase Agreement - Clause 35A and Schedule A Section 10 - Liquidated Ascertained Damages (LAD) for late delivery of vacant possession - The calculation of 42 months for VP starts from the first approval date, 2 August 2012, not from subsequent amendments - The Defendant failed to comply with the agreed timelines resulting in a delayed delivery of 226 days, obligating them to pay LAD. (Paras 15-19, 21-39)
(B) Appellate Intervention - An appellate court should uphold the findings of the trial court unless there are compelling reasons to disagree, emphasizing judicial hierarchy and the principle of stare decisis. (Paras 18, 48)
Facts of the case:
The Plaintiff purchased a SOVO unit and claimed LAD due to delayed delivery of VP as provided in their Sale and Purchase Agreement, disputing the commencement date of the 42-month period. (Paras 5-12)
Findings of Court:
The learned Magistrate determined that the VP’s 42-month computation began on 2 August 2012, as per Clause 35A, and the Defendant owed LAD for the delay. (Paras 15-30)
Issues: The court addressed whether the 42 months begin from the first building plan approval or the end of the approval period and the Plaintiff's entitlement to LAD. (Paras 17-19)
Ratio Decidendi: The court affirmed the interpretation that the period for VP starts from the first approval date, rejecting the Defendant's argument for a later start date, aligning with the principles of contractual interpretation. (Paras 21-30)
Result: Appeal dismissed; Defendant to pay LAD with costs. (Paras 50-52)
| Table of Content |
|---|
| 1. establishment of facts related to the appeal (Para 1 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 2. disputed interpretation of contract timelines (Para 13 , 14 , 17) |
| 3. findings of the learned magistrate (Para 15 , 16) |
| 4. principle governing appellate intervention (Para 18 , 19 , 20) |
| 5. importance of contractual interpretation (Para 21 , 22 , 23 , 24 , 25 , 27) |
| 6. meaning of contract clauses for lad computation (Para 28 , 29 , 30) |
| 7. clarification on ambiguity and contract drafting (Para 31 , 32 , 33 , 34 , 35) |
| 8. understanding of the period of approval (Para 36 , 39 , 40) |
| 9. court's role in contract interpretation (Para 41 , 42) |
| 10. stare decisis and judicial precedents (Para 43 , 44 , 45) |
| 11. terminology on pending issues and finality in law (Para 46 , 47 , 49) |
| 12. implications of deemed delivery clauses (Para 50) |
| 13. resolution and dismissal of the appeal (Para 51) |
Introduction
[1] This is an appeal by the Appellant/Defendant against the decision of the learned Magistrate, after a full trial, who had allowed the Respondent/Plaintiff's claim for Liquidated Ascertained Damages (LAD) for late delivery of vacant possession with cost of RM5,000.00.
[2] Having heard both parties, perused the Appeal Record and read the submissions filed, I dismissed the appeal on the grounds, inter alia, that this Court is bound by the decision of the Court of Appeal on the current position of law in dispute.
[3] The Appellant has now appealed to the Court of Appeal, and my reasons are below.
[4] For ease of reference, parties are referred to as they were at the Magistrate Court.
The Parties
[5] Plaintiff purchased a "Small Office Versatile Office" (SOVO) unit in a project development known as "Icon City" (the project).
[6] Defendant is the developer of the project, a stratified mixed commercial and residential development comprising SOVO, jewel shops, boutique offices, shop lots, and service residences.
Brief Facts
[7] Plaintiff entered into a Sale and Purchase Agreement with Defendant to purchase a SOVO unit (the SPA ).
[8] Clause 35A of the SPA provides that Defendant is to obtain the land conversion and building plan approval within twelve (12) months from the SPA date, subject to a six (6) month extension.
[9] According to s 10 Schedule A of the SPA , vacant possession (VP) shall be delivered to the Plaintiff within forty-two (42) calendar months from the date of the Period of Approval or Extended Approval Period.
[10] Undisputedly, the approval for the land conversion was obtained on 17 January 2012, while the approval for the 1st building plan was obtained on 2 August 2012 (the approvals).
[11] VP has been delivered to the Plaintiff by a notice dated 2 September 2016. Plaintiff now claims against Defendant for LAD due to late delivery of VP of the unit.
[12] However, disputes arose due to the fact that the building plan was numerously amended, and the last amendment was obtained on 17 November 2015 (about 3 years after the 1st approval). At that material time (17 November 2015), the construction of the building was almost 90% completed.
[13] Plaintiff contends that the 42 months should start from the date when the approvals were obtained, ie 2 August 2012. It should, therefore, follow that the 42 months begin to commence from 2 August 2012.
[14] Defendant argued at the trial that the 42 months should commence from the date of the last amendment to the building plans on 17 November 2015 or after the date of extensions granted, calculated from the date of the SPA .
Findings Of The Magistrate
[15] The learned Magistrate identified four (4) issues in her grounds of judgment, that is:
i. Whether the period of 42 months for delivery of vacant possession of the said property is to be calculated from 2 August 2012 (date of the first Approval of the Building Plan) or the expiry date of the Period of Approval or the expiry of the Extended Approval Period.
ii. Whether Defendant has delivered vacant possession to Plaintiff on the date of VP Notice or on th
