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2024 MarsdenLR 2742
HIGH COURT (PULAU PINANG)
AZIZAN MD ARSHAD, JC
Bernadette Jeanne De Souza – Plaintiff
Versus
Lau Tiang Hua – Defendant
CIVIL SUIT NO PA-22NCVC-35-02 OF 2019
Charles Rajah (with Lim Seang Lee) (Lim Seang Lee & Assoc) for the plaintiff.
Gregory Das, (with Chong Jen Hui) (Steven Thiru & Sudhar) for the defendant.
Plaintiffs failed to prove breach of contract or misrepresentation in the SPA regarding property features; limited compensation awarded for proven damages.
Headnote:(A) Courts of Judicature Act 1964 - Section 68(1)(a) - Sale and Purchase Agreement (SPA) - Breach of contract claims by Plaintiffs regarding Unit No. A-G-2 - Claims dismissed for lack of evidence; however, damages of RM62,412.00 awarded for proven issues with the unit - Costs of RM40,000.00 awarded to the Plaintiffs - Defendant's alleged breach of express and implied terms not substantiated. (Paras 1, 9, 12, 89).
(B) Misrepresentation - Court found no evidence supporting claims of misrepresentation by the Defendant regarding unit features - Plaintiffs failed to prove allegations of cheating or bad faith. (Paras 44, 56, 62, 70).
(C) Burden of Proof - Court emphasized the Plaintiff's responsibility to provide substantial evidence as per Section 101 of the Evidence Act - Claims of damages and misrepresentation rejected. (Paras 10, 11, 34).
(D) Confirmation of compliance with building regulations and SPA terms - Changes to room classification compliant with local authority guidelines. (Paras 20, 25, 37).
Azizan Md Arshad JC:
GROUNDS OF JUDGMENT
INTRODUCTION
[1]The Appellants’ (Plaintiffs) claim in brief is against the breach of the terms of the Sales and Purchases Agreement (SPA) dated 18.03.2015 by the Defendant. This appeal was filed by the Appellant against the Order of this Court on 20.08.2024 which allowed part of the Appellants’ claim against the Respondent (Defendant) with costs.
[2]The parties are referred to as they stand during the full hearing in the High Court. The parties are referred to as they were in the High Court. This trial took 15 days with a total of 8 witnesses (3 Plaintiffs’ witnesses and 5 Defendant’s witnesses)
RELIEF PRAYED FOR IN THE SOC BY THE APPELLANT/PLAINTIFFS
[3]Overall the Plaintiffs case is that there are several alleged breaches of contract in the SPA which are combined as a whole causing the Plaintiff’s to be denied the full right to enjoy the interest and benefits of Unit No. A-G-2. The Plaintiff has given a Letter of Termination of the Contract dated 10.12.2018 and reclaims the purchase price of the unit along with damages.
Based on the SOC, the Plaintiffs’ claim against the Defendant is as follows:
(1)an order that the Defendant do pay the sum of RM2.795.680.00 together with interest thereon at the rate of 5% per anum from the date of judgment until full payment;
(2)in the alternatives damages;
(3)costs;
(4)Such further or other relief as this Honourable Court may deem fit to grant
SUMMARY OF THE FACTS OF THE CASE
[4]The following is the summary of the facts of the case referred to by the parties in their respective arguments:
(i)The Plaintiffs attended a preview of the Shorefront, Penang (“the Development”) at a function room at the E & O Hotel, Penang on 7 February 2015 (the Preview);
(ii)At the Preview, the Second Plaintiff was attended to by Mr. Kendrick Wong (Kendrick Wong) (SD-1), Senior Sales & Marketing Executive of Sentul Raya Sdn. Bhd., which is an affiliated company of the Defendant;
(iii)The following occurred in respect of the dealings between Kendrick Wong and the Plaintiffs at the Preview;
(iv)The Second Plaintiff expressed his interest to purchase a unit at the Development that was the closest to the sea and had a sea view;
(v)Kendrick Wong provided the Second Plaintiff with a site plan of the Ground Floor of the Development and referred to the Unit as it was available for purchase at the time;
(vi)Thereafter, the Defendant alleges that Kendrick Wong informed the Second Plaintiff at the outset that the Unit did not have a direct sea view and only had an oblique view of the sea and the Unit would be partially impeded by the wall of the lift lobby entrance that was next to the balcony of the Unit;
(vii)The Second Plaintiff left the venue of the Preview and stated that he required the input of his wife, the First Plaintiff, on the purchase of a unit at the Development;
(viii)The Second Plaintiff returned to the Preview with the First Plaintiff. Kendrick Wong and the Plaintiffs discussed the Plaintiffs’ concerns on the limited view of the sea. At this point, Kendrick Wong alleges, again informed the Plaintiffs that their view of the sea would be partially impeded by the wall of the lift lobby entrance;
(ix)The Plaintiffs then decided to purchase the Unit No.: A-G-2 (the Unit) and signed the Sale and Purchase Agreement dated 18.3.2015 (the SPA);
(x)Vacant possession of the Unit was delivered on 29.1.2018. Between February 2018 and February 2019, the Plaintiffs raised a series of complaints in respect of the Unit and these alleged complaints were attended to and/or rectified by, and/or on the instruction of, the Defendant at no additional costs to the Plaintiffs;
(xi)Despite the completion of the ratification of works in response to these alleged complaints, the Plaintiffs had refused to sign in acknowledgment of any of the works done;
(xii)The Plaintiffs then filed this action seeking termination/rescission of the S&P Agreement and damages in the alternative.
PRELIMINARY LEGAL ISSUE
