JUDGMENT

David Wong Dak Wah J:

Proceeding

(1) The plaintiffs claim is for damage and loss against the defendant on the ground that the residential houses which they have purchased from the defendant were defective and the delivery of possession of the same was late. The claims are denied by the defendant on the ground that there was no breach of duties, contractual or otherwise, on their part and in any event the plaintiffs had failed to prove damages they have suffered.

Background Facts

(2) There are 46 plaintiffs in this case and they are the purchasers of the various residential houses in a housing scheme known as Taman Bukit Saujana Springfields situated at Jalan Bantayan, Off Jalan Tuaran Mile 3 1/2, Kota Kinabalu, Sabah (project). Summary of the names of the 46 plaintiffs, particulars of their respective residential houses, and the particulars of their sale and purchase agreements (sale and purchase agreements) are set out in Annexure A annexed to the amended statement of claim dated 21 August 2009. After taking possession of their residential houses, defects were detected by the plaintiffs and in view of the developers failure to remedy those defects; this suit is taken out against the defendant/developer, Yusen Jaya Sdn Bhd.

(3) The damages claimed by the plaintiffs are as follows:

(i) Liquidated and ascertained damages ("LAD") for late delivery of the houses under cl. 18(2) of the sale and purchase agreements;

(ii) Damages for breach of contract;

(iii) Damages for breach of statutory duty;

(iv) Damages under the tort of negligence;

(v) Damages for distress and inconvenience;

(vi) Damages for loss of amenity or diminution value of houses.

Claims For Liquidated Damages For Late Delivery Of Possession Of The Houses

(4) This issue revolves around the interpretation of cl. 18 of sale and purchase agreement which reads as follows:

(1) Subject to Clause 18(3) hereof and/or to any extension of time as may be allowed by the Controller, the said Property shall be completed by the Developer within twenty-four (24) calendar month from the date of this Agreement. Completion in Clause 18 herein shall mean practical completion duly certified by the Developers Architect and/or Consultant for the purpose of application to the Appropriate Authority for the Certificate of fitness for Occupation.

(2) If the Developer fails to complete the said Property within the stipulated period, the Developer shall pay to the Purchaser liquidated damages to be calculated from day to day at the rate of eight per centum (8%) per annum of the purchase price commencing immediately after the expiry of the said twenty four (24) months period to the date the Developer submits its application to the Appropriate Authority for the Certificate of Fitness for Occupation Provided always that no indemnity shall be payable hereunder unless the whole of the purchase price shall have been paid to or settled with the Developer.

(3) Notwithstanding any provisions herein contained to the contrary (if any), it is hereby expressly agreed by the parties hereto that the Developer shall not be liable to the Purchaser for any failure on its part to fulfill any term of this Agreement, if such fulfillment is delayed, hindered or prevented by circumstances beyond the control of the Developer such as riot, civil commotion, inclement weather conditions and any act of God causing the disability of the contractors and sub-contractors employed by the Developer either commencing, carrying on or completing their work or failure to obtain any necessary sanction or approval from the Appropriate Authority or any other circumstances of whatsoever nature, beyond the control of the Developer.

(5) Counsel for the defendants submits that cl. 18 does not provide that only the Controller is the sole authority in granting extension of time of completion of the houses. In the words of counsel, this is how it sounds:

Therefore, those words, "Subject to Clause 18(3) hereof and/or