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2025 MarsdenLR 201
SESSION COURT KUALA KUBU BHARU
PARVATHI PERIAKARUPPAN – Appellant
Versus
AMALAN SETAR (M) SDN BHD; JAIKANES MANOKARAN (THIRD PARTY) (ENCLS 1 & 25) – Respondent
[Suit No: BF-A52NCVC-1-11/2020]
The court established that timely delivery of vacant possession per contract terms is crucial, and failure may lead to liability for damages, including lost rental income due to unauthorized alterations by third parties.
Headnote:(A) Contract Law - Sale and Purchase Agreement - Liquidated Damages - The Plaintiff sought damages of RM36,397.26 due to late delivery of vacant possession and other claims from the Defendant, a housing developer, for breach of contract. The court held that the Defendant had complied with the delivery conditions outlined in the Sale and Purchase Agreement, and time was deemed to be of the essence. The court awarded liquidated ascertained damages amounting to RM671.00 and general damages for loss of rental amounting to RM4,000.00. The counterclaim by the Defendant was dismissed. (Paras 5, 6, 42-45, 66)
(B) Negligence - Duty of Care - The court found the Defendant negligent in managing the keys to the property, leading to unauthorized access by a third party during the renovation period. The Defendant has a duty to ensure proper management of property transfers to avoid foreseeability of harm. (Paras 55-58)
Facts of the case:
The Plaintiff entered into a Sale and Purchase Agreement with the Defendant for a property, with a specified timeline for vacant possession. The Plaintiff alleged that the property was never delivered properly and was subjected to unauthorized renovations by a third party. (Paras 5, 6, 12-13)
Findings of Court:
The court found that vacant possession was deemed delivered according to the terms of the agreement, but the Defendant acted negligently in allowing third-party access. Compensation was awarded for late delivery and loss of rental. (Paras 61-62, 66)
Issues: Was vacant possession delivered as per the Sale and Purchase Agreement? What damages is the Plaintiff entitled to due to the Defendant's failure to deliver the property properly? (Paras 42-44)
Ratio Decidendi: The court emphasized that the Sale and Purchase Agreement's terms must be honored and that any failure to adhere to prescribed terms—without the Plaintiff's consent to renovations—constitutes a breach warranting damages. (Paras 45, 55-57)
Result: The Plaintiff was awarded liquidated damges and general damages, and the Defendant's counterclaim was dismissed.
| Table of Content |
|---|
| 1. factual background concerning ownership and agreements (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 2. plaintiff's claims and arguments regarding ownership issues (Para 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35) |
| 3. defendant's rebutting arguments and claims (Para 36 , 37 , 38 , 39 , 40) |
| 4. court’s reasoning and observations on testimony and evidence (Para 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65) |
| 5. final decision and orders of the court (Para 66) |
Enclosure 1
[1] This is my judgment in respect of the Plaintiff's claim against the Defendants inter-alia for liquidated ascertained damages ("LAD") amounting to RM36,397.26 as at 24 November 2020 which is still ongoing and for general, aggravated and exemplary damages.
Brief Facts
[2] The Plaintiff is the purchaser of one double storey terrace house known as Geran No: 282616, Lot No: 29541 Seksyen 20, Bandar Serendah, Daerah Ulu Selangor, Negeri Selangor, bearing the postal address of No 19, Jalan Sari Alamanda 1/3A, Sari Alamanda, 48000 Rawang, Selangor Darul Ehsan ("the said property").
[3] The Defendant is a private limited company incorporated in Malaysia. The Defendant is in the business of housing development. In this case, Defendant is the developer to the project of Sari Alamanda.
[4] While the 3rd party is the registered and beneficial owner of the double storey terrace house bearing the postal address of No 19, Jalan Seri Alamanda 1/3, Sari Alamanda, 48000 Rawang, Selangor Darul Ehsan ("Property 1/3") which is located at the next road which is situated at the back of the Plaintiff's property.
[5] On 13 January 2018, both the Plaintiff and the Defendant had entered into a Sale and Purchase Agreement, whereby the Plaintiff had agreed to purchase the said property and the Defendant had agreed to sell the said property to the Plaintiff at a selling price of RM350,000.00. ("SPA").
[6] It was an agreed term pursuant to cl 24 of the SPA that the vacant possession of the said property shall be delivered to the Plaintiff within 24 months from the date of the agreement. If the Defendant fails to deliver vacant possession of the said property within 24 months from the date of the agreement, Defendant is liable to the Plaintiff liquidated damages calculated from day to day at the rate of ten per centum (10%) per annum of the purchase price.
[7] It is also agreed that pursuant cl 26 of the SPA, manner of delivery of vacant possession of the said property upon the following conditions:
(a) the issuance of a certificate of completion and compliance;
(b) water and electricity supply are ready for connection to the said building;
(c) the Purchaser having paid all monies payable under the subclauses 5(1) in accordance with the 3rd schedule and all other monies due under this Agreement and the Purchaser having performed and observed all the terms and covenants on this part of the agreement, and
(d) the completion of any alteration or additional work under subclause 16(2), if any.
[8] Plaintiff had also agreed that upon the expiry of 30 days from the date of the service of a notice from the Defendant requesting the Plaintiff to take possession of the said property, whether or not the Plaintiff has actually entered into possession or occupation of the said property, the Purchaser shall be deemed to have taken delivery of vacant possession.
[9] The Defendant's architect had issued the Certificate of Completion and Compliance ("CCC") of the Property in which Defendant had received the same on 4 December 2019 (at p 48 of the CBOD, part B).
[10] Defendant's company then issued a notice to the Plaintiff vide a letter dated 20 December 2019 (1st Notice) (at p 44 of the CBOD, part B) to inform Plaintiff to collect the vacant possession of the said property and that the keys are ready for collection. Through the le
