Noorin binti Badaruddin J:

JUDGMENT

[1]This is the Plaintiff’s application seeking for inter alia the followings:

1.1a declaration that the Defendants’ statutory notice pursuant to s. 465 (1) (e) and s. 466 (1) (a) of the Companies Act 2016 dated 28.8.2018 is null and void; and

2.1an injunction prohibiting the Defendants whether jointly and/or separately to file a company’s winding up petition against the Plaintiff

Background Facts

[2]The Plaintiff is a housing developer and had commenced a housing project of two blocks of 20-storey condominiums consisting of 350 units known as Residensi Sungai Chinchin, Gombak (“the project”) and the Defendants are the purchasers of 120 units of the condominiums (“the units”) in the project.

[3]The Plaintiff, Defendants and the land owners have signed the relevant Sale and Purchase Agreements pursuant to schedule H of the Housing Development (Control and Licensing) Act 1966 (“the SPAs”).

[4]The Plaintiff failed to complete the project and to date, no vacant possession of the units were delivered to any of the Defendants. By letter dated 5.1.2018, the Ministry of Urban Wellbeing, Housing and Local Government declared that the project is an abandoned project. The project had not been resumed since.

[5]The Defendants through their solicitors have issued statutory notice (“the notice”) dated 28.8.2018 against the Plaintiff pursuant to ss. 465 (1) (a) and 466 (1) (e) of the Companies Act 2016 (“CA”) claiming for the liquidated and ascertained damages (“LAD”) as the sum due and owing to them.

Summary of the Plaintiff’s Contentions

[6]It is the Plaintiff’s contention by issuing the notice, the Defendants are proposing to present a petition based on the LAD debt which has yet to accrue as a cause of action and is therefore bona fide disputed on substantial grounds. It is highlighted that pursuant to clause 26 (3) of the SPAs, the LAD shall only be paid to the Defendants upon the latter taking possession of the units. The Plaintiff contends that the Defendants’ action is premature as they have not delivered vacant possession of the respective units to the Defendants. The Plaintiff further contends that the Defendants have yet to commence a civil action against the Plaintiff to determine the truth of the allegations and/or their rights and as such it is submitted that the notice has no basis as there is no creditor-debtor relationship between the parties for the Defendants to enforce the debt.

Summary of the Defendants’ Contentions

[7]It is the Defendants’ contention since the Plaintiff fails to deliver vacant possession of the units purchased by them, it is their rights to claim for the LAD even if there is no vacant possession delivered to them and there is no necessity for a judgment to be obtained first before initiating a winding-up proceeding. It is further contended that there is no bona fide dispute as to the amount owed by the Plaintiff to them.

Evaluation and Findings

[8]It cannot be disputed that the Defendants are entitled to the LAD pursuant to clause 26 (2) of the SPAs which clearly provides for the LAD in the event of delay accruing at the rate of 10% of the purchase price of the units respectively. Clause 26 (1) of the SPAs provides that the delivery of vacant possession in accordance with clause 27 i.e. upon issuance of the Architect Certificate approving the completion of the condominium unit, must be delivered to the Defendants within thirty (36) months from the respective dates of the SPAs. Clauses 26(1) and (2) of the SPAs are reproduced:

“26 (1) Vacant possession of the said Parcel shall be delivered to the Purchaser in the manner stipulated in clause 27 herein within thirty-six (36) calendar months from the date of this Agreement

(2) If the Vendor fails to deliver vacant possession of the said Parcel in the manner stipulated in clause 27 herein within the time stipulated in subclause (1), the Vendor shall be liable to pay to the Purchaser liquidated damages calculated from day today at the rate o