Purchaser retains right to claim damages against the developer for late delivery despite assigning rights to a bank, provided proper notification is given.

JUDGMENT

Choo Kah Sing J:

Introduction

[1] The plaintiff's claims are premised on a Sale and Purchase Agreement (under Schedule H of the Housing Development (Control and Licensing) Regulations 1989) entered into between the plaintiff and the defendant dated 9 September 2011 (hereafter the 'SPA') in which the plaintiff had agreed to purchase and the defendant (as a developer) had agreed to sell a unit of property known as Parcel P08-023A with accessory parcel No ACP08-023A (hereafter 'the property') in a housing development known as "EMPIRE RESIDENCE" for a sale and purchase price of RM1,738,800.00 (hereafter 'the SPA price').

[2] The plaintiff averred that the defendant failed to deliver vacant possession of the property on time as stipulated in the terms of the SPA. As such, the plaintiff claimed against the defendant for liquidated ascertained damages for (i) the late delivery of vacant possession of the property (hereafter 'the first claim'), and (ii) the late delivery of the common facilities serving the housing development where the plaintiff's property is situated (hereafter 'the second claim').

[3] On 1 November 2021, this Court allowed the plaintiff's claims (with adjustment). The reasons for the decision are set out as below.

Brief Facts

[4] The plaintiff's first claim is premised on cl 25 of the SPA which states as follows:

"25 Time for delivery of vacant possession

(1) Vacant possession of the said Parcel shall be delivered to the Purchaser in the manner stipulated in cl 26 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 cl 26 within the time stipulated in subclause (1), the Vendor shall be liable to pay to the Purchaser liquidated damages calculated from the day to day at the rate of ten per centum (10%) per annum of the purchase price from the expiry date of the delivery of vacant possession in subclause (1) until the date the Purchaser takes vacant possession of the said Parcel. Such liquidated damages shall be paid by the Vendor to the Purchaser immediately upon the date the Purchaser takes vacant possession of the said Parcel.

(3) For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Purchaser takes vacant possession of the said Parcel."

[5] With regard to the plaintiff's second claim, it is premised on cl 27 of the SPA which states as follows:

"27 Completion of common facilities

(1) The common facilities serving the said housing development shall be completed by the Vendor within thirty-six (36) calendar months from the date of this Agreement. The Vendor's architect shall certify the date of completion of the common facilities.

(2) If the Vendor fails to complete the common facilities in time the Vendor shall pay immediately to the Purchaser liquidated damages to be calculated from day to day at the rate of ten per centum (10%) per annum of the last twenty per centum (20%) of the purchase price.

(3) For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Vendor completes the common facilities."

[6] Based on cl 25(1) of the SPA, the date for delivery of vacant possession should be on or before 9 September 2014 (36 calendar months from 9 September 2011). However, on 11 August 2014, before the expiry of 36 months, the defendant obtained from the Ministry of Urban Wellbeing, Housing & Local Government an extension of six (6) months for the date of delivery of vacant possession after the expiry of the 36 months as stipulated in cl 25(1) of the SPA. Hence, the date for delivery of vacant possession was deferred to 9 March 2015 (hereafter 'the extended date').

[7] The defendant issued a Notice of Delivery of Vacant Possession dated 26 August 2020 in accordance with cl 26(1) of the SPA to inform the plaintiff to take vacant possession of the prope