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2025 MarsdenLR 1979
HIGH COURT MALAYA GEORGETOWN
TECHWARE ENTERPRISE SDN BHD – Appellant
Versus
CHAN SAI KHUEN & ANOR – Respondent
[Civil Appeal No: PA-12ANCVC-44-10/2023]
Developer liable for liquidated damages due to late possession delivery under sale agreement; vague assertions do not constitute a valid defense against summary judgment.
Headnote:(A) Housing Development (Control And Licensing) Regulations 1989 - Summary judgment - Liquidated damages for late delivery of vacant possession - Developer's failure to deliver resulted in liability for liquidated damages as stipulated in sale and purchase agreement. Court found no substantial defense raised by developer justifying a trial - Affirmation of lower court's summary judgment against developer. (Paras 24, 25, 32, 46, 58)
(B) Covid-19 Act - Section 35 - Exemption from liability for liquidated damages - Developer could not invoke pandemic as a reason for delay prior to contractually agreed deadline; application of exemption only applied to specified subsequent timeline articulated under the Covid-19 Act. (Paras 35, 49)
Facts of the case:
Developer failed to deliver vacant possession of property unit to purchasers within the contractual deadline; purchasers claimed liquidated damages in accordance with terms of sale and purchase agreement after developer's delay. (Paras 2, 46)
Findings of Court:
The court affirmed that the developer was liable for liquidated damages as the agreement stipulated and found no genuine triable issues that warranted a trial. (Paras 56, 58)
Issues: Main issues included whether there was a triable defense against the liquidated damages claim and the application of Covid-19 Act exemptions. (Paras 26, 52)
Ratio Decidendi: The court's assessment emphasized that vague assertions from the developer did not establish a bona fide defense against the clear obligations of the sale agreement, and thus summary judgment was warranted. (Paras 56, 58)
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. introduction of parties and agreement context. (Para 1 , 2 , 3) |
| 2. legal standards for summary judgment applications. (Para 24 , 25 , 26) |
| 3. chronology of key events leading to the dispute. (Para 34) |
| 4. summary of d's defenses and arguments. (Para 44 , 45) |
| 5. court's analysis of d's arguments against summary judgment. (Para 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54) |
| 6. conclusion and dismissal of d's appeal. (Para 55 , 56 , 57) |
Prelusion
[1] The Appellant-Defendant (D) was the developer of a housing development project known as "The Retreat" (Project). The Respondents-Plaintiffs (Ps) were the purchasers of a parcel of property in the Project.
[2] D and Ps entered into a prescribed Schedule H (Housing Development (Control And Licensing) Regulations 1989) sale and purchase agreement (SPA) to govern the purchase. D failed to deliver vacant possession (VP) of Ps' unit within the contracted period. This made D liable to pay Ps "liquidated damages" (LD), according to the relevant terms of the SPA.
[3] Ps filed this suit in the Sessions Court to claim the amount of LD they asserted they were entitled to. Ps applied to enter summary judgment against D (under O 14 of the Rules Of Court 2012). D resisted the entry of a summary judgment. The Sessions Court allowed Ps' application and ordered summary judgment to be entered against D. D appealed to the High Court. This was the appeal before me.
[4] Should I have allowed D's appeal ie set aside the summary judgment? Or should I have dismissed D's appeal ie sustained the summary judgment?
Preliminaries
[5] Before I set out my grounds for this judgment, there are several preliminary matters that I must first allude to. First-my decision on D's appeal. On 26 July 2024, I heard the parties and dismissed D's appeal. I affirmed the summary judgment that the Sessions Court ordered against D.
[6] As Ps' claim was less than RM250K, for D to appeal against my (the High Court's) decision, D needed the leave of the Court Of Appeal — s 68(1)(a) of the Courts Of Judicature Act 1964 . D accordingly filed a motion for leave to appeal to the Court Of Appeal.
[7] On 6 November 2024, the Court Of Appeal granted D a limited leave to appeal. The Court Of Appeal granted D leave to appeal which was limited to the period of 122 days under the 2nd Movement Control Order (2nd MCO). This 6 November 2024 order, at paragraph (a), was thus worded: "Pemohon [ie D] dibenarkan untuk merayu akan tetapi hanya terhad kepada tempoh seratus dua puluh dua (122) hari di bawah Perintah Kawalan Pergerakan ("PKP") kedua sahaja berhubung dengan subjek rayuan".
[8] However, D did not raise or canvass this issue of "the 122 days under the 2nd MCO" in its written submissions or oral submissions in the appeal proceeding before me. I did not hear, and as such did not consider, this issue when I determined D's appeal before me.
[9] Further, this issue of "the 122 days under the 2nd MCO" was not defined or even described — not for the record, nor for my benefit. In other words, I am not informed as to what exactly was this issue of "the 122 days under the 2nd MCO".
[10] Relatedly, even though the Court Of Appeal granted D the limited leave to appeal only on this issue of "the 122 days under the 2nd MCO", D filed a Notice Of Appeal that is "against the whole of" my 26 July 2024 judgment. D's Notice Of Appeal does not inform me that D's leave to appeal was only to appeal on this issue. Nor did D inform me by letter that its leave to appeal was confined to this issue.
[11] And so, while I know that the Court Of Appeal granted D leave to appeal only on this issue, I am not able to give my grounds of judgment (on D's appeal before me) concerning this issue. D did not raise it before me. Ps did not get to respond to it in the proceeding before me. I did not consider this issue.
[12] As such, I can only prepare, and actually should only prepare, these written grounds of judgment based on what was produced and presented (submitt
