Leong Wai Hong JC:

JudgmentIntroduction

[1]The Appellant had appealed via a Notice of Appeal dated 18-07-2022 against the Sessions Court decision dated 05-07-2022 in dismissing the Appellant’s Notice of Application to strike out the Respondents’ writ under O.18 r.19 ROC 2012

[2]I dismissed the appeal on 21-11-2022. The Appellant had appealed to the Court of Appeal. These are my Grounds of Decision. Parties will be cited as they were cited at the court below.

Background Facts

[3]The background facts as pleaded by the Plaintiffs in the Written submissions of the Plaintiffs dated 02-10-2022 [Encl 6] filed for this appeal, and reproduced below, are as follows.

[4]The Defendant is the registered proprietor and beneficial owner of all that leasehold land of 99 years held under Master Title No. Hakmilik Pajakan Mukim 6395, Lot 18152, Section 2 in the town of Ulu Kelang, District of Gombak and State of Selangor in an area measuring approximately 22,934 square metres (hereinafter referred to as “the said Land”). The Defendant is to develop the said Land as a housing development known as “ASTORIA AMPANG” (hereinafter referred to as “the said Development”). (Refer to page 117 of the Record of Appeal).

[5]Via a Sale and Purchase Agreement dated 29-03-2016 (hereinafter referred to as “the said Agreement”) (Refer to page 116 to 153 of the Record of Appeal) entered between the Plaintiffs and the Defendant, the Defendant agreed to sell to the Plaintiffs and the Plaintiffs agreed to purchase from the Defendant a parcel of housing accommodation with vacant possession distinguished as unit no.: A-13A-3A approximately 82.5 square metres at Level 13A, Tower A, together with two (2) units of accessory parcel at Podium 2 – Bay 136 and 137 which will be built on the said Land in the said Development (hereinafter referred to as “the said Parcel”) for the selling price of RM826,000.00 (hereinafter referred to as “the said Selling Price”).

[6]The relevant clauses from the said Agreement is Clause 25 Time for delivery of vacant possession and clause 27 Manner of delivery of vacant possession.

[7]At all the material time, the Plaintiffs have made a payment of RM10,000.00 being the stakeholder sum to the solicitors of the Defendant, Messrs Kington Tan Dzul via a cheque of Maybank Islamic Berhad from the First Plaintiff with the cheque number of 055332, dated 04-04-2015. The Plaintiffs have also signed the Letter of Intent to Purchase the said property on 04-04-2015 (Refer to page 106 to 109 of the Record of Appeal). Thereafter, the Plaintiffs have signed the said Agreement on or around February 2016.

[8]Pursuant to Clause 25(1) and Clause 29(1) of the said Agreement, the Vacant Possession of the said property shall be delivered to the Plaintiffs in forty-eight (48) months from the date of the said Agreement. However, pursuant to Schedule H of Housing Development (Control and Licensing) Regulations 1989, the time for delivery of vacant possession should be thirty-six (36) months. The extension of time was allowed by the Controller via their letter dated 24-03-2016 (Refer to page 113 to 114 of the Record of Appeal). Based on a Federal Court case of Ang Ming Lee & 24 Ors v Menteri Kesejahteraan Bandar, Perumahan & Kerajaan Tempatan & Anor (2020) 1 CLJ 162, the Controller has no power to waive or modify any provision in the Schedule H contract of sale.

[9]The Federal Court In the case of PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor And Other Appeals

[10]In the calculation of the date for delivery of vacant possession of the said property as stipulated in Clause 25 of the said Agreement, the Plaintiffs have calculated according to the date when the Stakeholder Sum has been paid to the Defendant, that was on 04-04-2015. The last date for the Defendant to deliver the Vacant Possession of the said property (36 months from 04-04-2015) was on 03-04-2018.

[11]The Defendant had sent a notice to the Plaintiff through a letter dated 24-09-2020 (Refer to page 157 t