JUDGMENT

Lim Hock Leng JC:

[1] The appellant is the developer and vendor of a housing development in Sibu which comprises townhouses with common facilities.

[2] The respondents are joint purchasers of a townhouse in the said housing development, for the consideration of RM453,888.00.

[3] By a sale and purchase agreement dated 17 July 2012 ("the SPA") which was entered into between the appellant and the respondents, the appellant undertook to deliver vacant possession of the respondents' units within 36 months from the date of the SPA. The appellant also undertook to complete the common facilities (gardens, guardhouse and road access) by the same deadline.

[4] Both those undertakings were given on pain of liquidated ascertained damages ("LAD") at the rate of 10% of the purchase price per annum from the date of each breach.

[5] The respondents sued the appellant in the Sessions Court for failing to meet the common contractual deadline for delivery of vacant possession and completion of the common facilities. They complained that the developer through its architect had certified only 85% completion of the townhouse and that they had made payment in stages up to that stage of certification.

[6] To finance their purchase, the respondents had taken out a loan from Public Bank Berhad which required them to execute and they did execute a letter of offer, facilities agreement, a deed of assignment, and a power of attorney to signify their acceptance of the terms and conditions for the loan.

[7] The respondents obtained summary judgment as prayed for in their amended Statement of Claim, viz:

(a) RM179,542.62 as at 1 October 2018;

(b) further LAD at the agreed rate of 10% per annum of the purchase price for failing to deliver vacant possession of their townhouse (from 2 October 2017 until 14 June 2018);

(c) further LAD at the agreed rate of 10% per annum of the purchase price for failing to complete the common facilities (from 2 October 2017 until 14 June 2018);

(d) a declaration that the appellant shall continue to pay the respondents the LAD at the contractual rate until delivery of vacant possession of their townhouse and completion of the common facilities;

(e) Interest on the decretal sums at the rate of 5% per annum; and

(f) costs of RM7,000.00.

[8] Being dissatisfied with the decision of the learned Sessions Court Judge, the appellant filed an appeal which is now before this Court by way of a rehearing.

[9] Here, the appellant will be referred to as the developer. The respondents will be referred to as the assignors while Public Bank Berhad will be referred to by its name or as the assignee.

[10] The core issue is whether summary judgment ought to have been granted notwithstanding:

(i) Clause 3 of the deed of assignment which the developer argues is an absolute assignment of all the respondents' rights under the SPA to the assignee, which stripped the assignors of locus standi to sue the developer;

(ii) Clause 4.3 of the deed of assignment which requires the assignors to obtain the written consent of the assignee before they sue the developer, and the non-joinder of the assignee;

(iii) the alleged incompetence of the developer's architect and alleged frustrating events;

(iv) the amendment of the Statement of Claim which is contended to be indicative of the assignors' uncertainty over the amounts due, with the assignors' 1/80th share of the common facilities disentitling them from the whole of the LAD for delay in relation to the common facilities; and

(v) ; [1995] 1 MLJ 817; [1995] 2 CLJ 374 which, the developer contends, requires proof of loss or damage which has not been established.

[11] In arguing that cl 3(1) created an absolute assignment, learned counsel for the developer relied on:

(i) ; [1996] 1 MLJ 365; [1996] 1 CLJ 379 where the Federal Court laid down the following principles:

"We have considered s 4(3) of the Civil Law Act 1956 referred to by Counsel for both sides. The subsection lays down conditions for effecting absolute legal assignments.