A party acting as an agent lacks standing to claim liquidated damages when the relevant agreements are superseded by a Deed, which determines rights and obligations contrary to the claims.

Norliza Othman J:

[Full Trial]

A. Background Facts

[1] Suit No.: BL-22NCVC-21-06/2023 (known as Suit 21) and Suit No.: BL-22NCvC-22-06/2023 (known as Suit 22) will be decided together since both are tried together. The documents are common for both suits

The Plaintiff were purchasers of two (2) units of condominium under the D'Rapport Festa, Ampang ("Project") developed by the Defendant.

[2] Parties then entered into two (2) Sale and Purchase Agreement, both dated 22 February 2011 ("SPA") with the purchase price of RM1,060,200.00 and RM1,056,700.00 respectively ("Properties"). Plaintiff claims that the purchase price were paid by 3rd party consideration, which was the debt owed by the Defendant to one Juruukur Bahan FPPS Sdn Bhd ("FPS") to which a Deed of Settlement dated 29 August 2013 was entered between FPS and the Defendant ("Deed").

[3] The Defendant ought to have delivered the vacant possession of the properties on or by 21 February 2014 which is within 36 months from the date of the SPA as stated in cl 25(1) of the SPA. However, the Defendant only issued and/or delivered the vacant possession of the properties on 21 February 2023 ie 14 days after issuance of Notice of Delivery of Vacant Possession. Plaintiff then filed this suit claiming liquidated ascertained damages against the Defendant pertaining to the late delivery of the said properties.

[4] The Defendant's version is:

i. The Defendant is a developer of a plot of land ("Land"). By way of Letter of Appointment dated 7 April 2010, the Defendant appointed FPS as the Quantity Surveyor for the said project;

ii. FPS and the Defendant agreed to settle part of the remaining professional consultant fees owing to FPS for the project by way of contra properties. FPS agreed to accept 2 condominium units and 1 apartment unit known as D' Rapport Condominium Unit E-21-02 and Unit E-22-02 ("condominium units") and Palm Garden Apartment A-8-13A worth a total sum of RM 2,182,000.00 as full and final settlement sum of the services rendered by FPS.

iii. By way of a letter from FPS to the Defendant dated 11 November 2010 and a letter from the Defendant to FPS dated 10 May 2013, FPS agreed to name the above properties in the name of the Plaintiff as FPS nominee. Plaintiff and the Defendant then entered into 2 SPA for the properties which were dated 22 February 2011. The Defendant and FPS then subsequently entered into a Deed of Settlement dated 29 August 2013 and by way of a Letter of Release dated 17 September 2013, FPS was fully discharged as the Consultant Quantity Surveyors for the project.

[5] The trial took 1 day on 25 November 2024 and the Plaintiff called 2 witnesses and the Defendant called only 1 witness.

B. Decision Of The Court

[6] Parties have filed Issues to Be Tried and the decision of this Court is based on these issues.

I. Whether The Plaintiff Has Locus Standi To File The Suits?

[7] The Plaintiff submits that they have locus standi to file this suit because the SPA was entered between the Plaintiff and the Defendant. The Notice of Delivery of Vacant Possession was issued by the Defendant to the Plaintiff and no one else. At all material times, before the notice of demand being issued by the Plaintiff, there was no evidence whatsoever by the Defendant to suggest that the Plaintiff was not the purchaser of the said properties. By virtue of the said SPA, Plaintiff is the rightful owner of the said 2 properties.

[8] It is not disputed by parties as per para 5 of the Statement of Agreed Facts that Plaintiff was acting as a nominee or agent for FPS in signing the two SPAs.

"5. By way of a letter from JBFPS