Hayatul Akmal Abdul Aziz J:

JUDGMENT

(Enclosure 28)

Introduction

[1]The plaintiff (a developer) seeks to enter a final judgment against the defendant (the purchaser) under O.81 r.11 Rules of Court (RC 2012)

(i)Civil Suit No: WA-22NCvC-436-06/2021 (enclosure 40) Sazean Development Sdn Bhd v Era Jaya Development Sdn Bhd; and

(ii)Civil Suit No: WA-22NCvC-437-06/2021 (enclosure 20) Sazean Development Sdn Bhd v Era Jaya Development Sdn Bhd.

[2]All three applications:

2.1 Were fixed for hearing on 14.12.2022 and the same counsels represented the parties.

2.2 I was duly informed that the parties agreed that my decision on enclosure 28 would bind the other two applications for suits, WA- 22NCvC-436-06/2021 (enclosure 40) and WA-22NCvC-437-06/2021 (enclosure 20), being of similar facts and nature with enclosure 28 save and except for the details of the parties and the property, which is the subject matter of the respective SPAs.

2.3 The plaintiff, in a nutshell, prayed for:

(a)A declaration that the Sales and Purchase Agreement (SPA) with the defendant is terminated because the defendant failed to pay the last 20% of the scheduled payment of the purchase price in the SPA.

(b)An order for the defendant to transfer the said property under the SPA back to the plaintiff free from any encumbrances within fourteen days from the date of the order.

(c)The defendant is to surrender and deliver up vacant possession of the said property to the plaintiff within fourteen days from the date of the order.

(d)A sum of RM64,888.80 (10% of the purchase price) is allowed to be forfeited from the progress payments made under the SPA, and any balance sum of monies to be returned to the defendant must be treated in compliance with the legal provisions and rules applicable to companies in liquidation:

(i)The plaintiff was wound up and placed in liquidation by the Shah Alam High Court on 08.08.2019; BA-28NCC-253- 04/2019; and

(ii)Mr Ling Sie Kiong (750331-13-5245) is the appointed liquidator of the plaintiff presently.

[3]On 14.11.2022, after perusing all cause papers and hearing the submissions of respective counsels, I find that the plaintiff had satisfied the requirements of O.81 RC 2012

BRIEF FACTS

[4]The brief facts gathered from the cause papers and submissions are:

4.1 Plaintiff is a housing developer for Anjung Sari@Bandar Setia Alam Fasa 1 C Setia Alam Selangor.

4.2 On 26.06.2012:

(a)The defendant entered into a sale and purchase agreement (SPA) with the plaintiff for the purchase of Lot No: PH1C-U13/26G-20 (the property) at a purchase consideration of RM648,888.00.

(b)The delivery of vacant possession was scheduled within 24 months, i.e., on 25.06.2014.

(c)The SPA provides that the purchaser/defendant shall pay the purchase price in instalments at the time and in the manner prescribed in the Third Schedule of the SPA.

4.3 The plaintiff claimed that the defendant had refused and failed to pay the last 20% of the said purchase price (RM129,777.60), resulting in the breach of the impugned SPA leading to the plaintiff officially terminating the SPA.

4.4 In contrast, the defendant argued that:

(a)The Certificate of Completion and Compliance (CCC) was issued on 21.05.2019; therefore, the vacant possession is deemed delivered on 21.05.2019 and not 25.06.2014 as scheduled.

(b)The plaintiff, is liable for this delay in the delivery of vacant possession as agreed. The LAD far exceeds the balance of 20% of the purchase price; therefore, the plaintiff is not entitled to ask for it from the defendant.

(c)The defendant claimed a right of set-off of the LAD against the 20% balance purchase price due and payable to the plaintiff, and therefore, the balance 20% purchase price need not be made.

SUBMISSIONS BY THE PLAINTIFF

[5]The plaintiff argued that:

5.1 Just several months before the issuance of the CCC on 21.05.2019, the defendant had sued the plaintiff at the Shah Alam High Court via OS BA-24NCVC-47-01/2019, claiming:

(a)The plaintiff had breached the SPA in failing to deliver vacant possession