Claims for liquidated ascertained damages due to delayed delivery of vacant possession are unsustainable if extensions of time are validated by pertinent rulings; consolidated actions can constitute an abuse of process if jurisdictional limits are not met.

Introduction

[1] The 26 Plaintiffs in this action are purchasers of units in a housing project developed by the Defendant known as Lumi Tropicana. The Plaintiffs claim liquidated ascertained damages ("LAD") for late delivery of vacant possession ("VP") of their individual units.

[2] Two (2) applications came before me for hearing on 13 December 2024. Enclosure 8 was filed by the Defendant on 9 October 2023 to strike out the action. Enclosure 15 was filed by the Plaintiffs on 7 October 2024 to stay this action pending a judicial review application in BA-25-45-06/2022 ("JR application") filed by 12 of the 26 Plaintiffs.

Background Facts

[3] The Plaintiffs paid booking deposits and signed their respective sale and purchase agreements ("SPAs" ) to purchase units in Lumi Tropicana on various dates in 2017. They all received vacant possession of their units after the notice of delivery of VP on 28 December 2021.

[4] The SPAs were in the prescribed form under Schedule H of the Housing Development (Control and Licensing) Regulations 1989 ("HDR") except that the period for delivering VP had been varied from 36 months to 48 months.

[5] By the time the Plaintiffs received VP of their units, the development had experienced the following periods of delay beyond the statutory period of 36 months stipulated in the prescribed form Schedule H SPA:

(a) the 12-month extension of time granted by Controller of Housing to the Defendant on 21 June 2017 to amend the statutory period for delivery of VP to 48 months ("pre-SPA EOT") ;

(b) a 167-day extension of time (18 March 2020 to 31 August 2020) granted by the Minister and/or the Director General of National Housing Department, Ministry of Housing and Local Government on 6 July 2021 under s 35 of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 ("COVID-19 Act") ("1st Covid EOT"); and

(c) a 153-day extension of time (1 June 2021 to 31 October 2021) granted by the Minister and/or the Director General of National Housing Department, Ministry of Housing and Local Government on 15 March 2022 pursuant to an application made by the Defendant under s 38C of the COVID-19 Act ("2nd Covid EOT).

[6] The 1st Covid EOT is not disputed, but the JR application was filed by the 1st to 3rd, 6th to 9th, 11th to 13th, 15th and 16th Plaintiffs ("JR Plaintiffs") to quash the 2nd Covid EOT which the JR Plaintiffs say they received notice of on 29 April 2022. Leave was granted on 18 October 2022 and the JR application proper is fixed for hearing on 19 February 2025.

[7] At the outset, the Plaintiffs had pleaded the 2nd Covid EOT as the basis for part of their claim here. They then amended the Statement of Claim to remove that plea prior to service of the Writ. Consequently, the Plaintiffs asserted the invalidity of the 2nd Covid EOT here but claimed no relief from it, and decided to pursue both the writ action and the JR application at the same time.

[8] As it stands therefore, the Plaintiffs in this action are only claiming LAD for the period of delay caused by the pre-SPA EOT, with a reservation of rights to further amend the claim if the JR application is decided in their favour ("Reservation of Right to Amend").

[9] By the time encls 8 and 15 came up before me for hearing, both this action and the JR application had been at abeyance for some time pending the anticipated outcome of the Federal Court decision in Obata-Ambak Holdings Sdn Bhd v. Prema Bonanza Sdn Bhd & Other Appeals ; [2024