JUDGMENT

I. APPEALS

The appellant/ defendant ("the defendant") has lodged two appeals against the decision of the learned magistrate who had:-

1. on 20 September 2000 given judgment with costs in favour of the respondent ("the plaintiff") with damages to be assessed; and

2. on 18 January 2002 dismissed with costs the defendant's application to set aside the damages of RM 15,000 assessed against the defendant.

As these two appeals are heard together and relate to the same subject matter in which the issues are intertwined, I shall refer to them as one single appeal only.

II. FACTUAL BACKGROUND

The defendant is a licensed housing developer for the project known as Taman Pantai Mas. The plaintiff had on 27 March 1990 entered into a sale and purchase agreement ("SPA") for the purchase of a corner lot, Lot 260 in the approved layout plan, for the type of houses known as "Pulau Undan" in the project.

For brevity and convenience, a reference hereinafter to a clause and a schedule is a reference to the clause in and the schedule to the SPA.

The First Schedule contains the approved layout plan for intermediate lots on which were to be erected houses without any side porch, while the house erected for the corner lot is with a side porch.

The Second Schedule contains the authorised building plan for the house with a side porch for Lot 260 being a corner lot.

The catalogue for the intermediate lots and corner lots stated the prices "from RM94,888" with an area of 22ft by 70ft i.e. 1540 sq ft.

In the SPA, the purchase price for Lot 260 was stated as RM119,905 with an area of 212 sq metres, for which a refund of RM 13.50 per sq ft would be made by the defendant to the plaintiff in the event of a shortfall in land area.

The house constructed on Lot 260 was without a side porch and the land area was short of 132 sq ft.

The plaintiff has, vide a notice, demanded a sum of RM 15,000 from the defendant for not constructing the side porch, and a sum of RM 1,782 (RM 13.50 X 132 sq ft) being the refund for the shortfall in land area.

The defendant made a payment of RM2,500 allegedly as full and final settlement which the plaintiff has allegedly accepted.

However, the plaintiff has subsequently commenced an action in the magistrate's court for RM 15,000 for Lot 260 i.e. the corner lot which was constructed without a side porch.

III. SIDE PORCH

It was submitted by learned counsel Miss Fatima Tahir Ali for the defendant that:-

1. in the First Schedule, the approved layout plan has set out the construction of the house as being without a side porch and that the authorised building plan in the Second Schedule was a standard plan which the plaintiff has never challenged and should be taken as the truth, as in Wong Swee Chin v. Public Prosecutor [1981] 1 MLJ 212, at 213 FC; and

2. the plaintiff has failed to discharge the burden of proving the defendant's breach of the agreement in order to obtain judgment, on the basis of Tenaga Nasional Bhd v Perwaja Steel Sdn Bhd [1995] 4 CLJ 670; [1995] 4 MLJ 673 at 676 para 1 HC; and Selvaduray v Chinniah [1939] MLJ 253 CA.

Miss Anis Hasliza bt Ajis, plaintiffs learned counsel, contended that there was a breach of the SPA by the defendant as the side porch has not been constructed according to the SPA made under Reg. 11(1) Schedule G to the Housing Development (Control and Licensing) Regulations 1989 ("1989 Regulations") to protect the interest of the purchasers and that the schedules to the SPA form part of the SPA, relying on Kang Yoon Mook Xavier v Insun Development Sdn Bhd [1995] 2 CLJ 471; [1995] 2 MLJ 91 HC.

On my part, it is appropriate to restate the principles governing the interpretation of the SPA which is part of the housing legislation, being a statutory form of contract contained in Schedule G i.e. SPA for land and building under the 1989 Regulations made under s. 24 of the Housing Development (Control and Licensing) Act 1966 as amended.

In Tan Tian Seng & Anor v Grobina Resorts Sdn Bhd (No. 2) [2005]