Claimants must establish actual damages suffered as a result of a contract breach to claim compensation; merely presenting a quotation does not suffice without evidence of repair completion.

JUDGMENT

Abdul Rahman Sebli FCJ:

[1] This appeal arose from the decision of the Court of Appeal allowing the respondent's appeal against the decision of the learned Judicial Commissioner (JC) who affirmed the decision of the learned Senior Assistant Registrar (SAR) to award damages in the sum of RM380,500.00 to the appellants for breach of contract.

[2] The question of law for which the appellants had been granted leave to appeal is as follows:

"Whether a claim for damages for the purpose provided in Clause 12 of the statutory sale and purchase contract under Schedule H of the Housing Developers (Control and Licensing) Regulations 1989 requires proof of actual loss to be shown before damages could be awarded?"

[3] For the facts of the case, we are taking the liberty to replicate those that the Court of Appeal had set out in its judgment, with the necessary modifications. They are as follows. The seven appellants, two of whom are husband and wife, were purchasers of six apartment units of a housing project known as Golden Heights of Taman Mas Sepang, Phase 3 which was developed by the respondent. The sale and purchase agreements (SPAs) entered into between the appellants and the respondent were statutory contracts of sale under the Housing Development (Control and Licensing) Act 1966.

[4] Delivery of vacant possession was to be within 36 months from the date of the SPAs failing which the respondent would have to pay liquidated and ascertained damages (LAD) under clause 22. If the respondent failed to complete the common facilities within the same time frame, it must pay LAD under clause 24.

[5] As it turned out, the respondent not only failed to deliver vacant possession but also failed to complete the common facilities within the stipulated time. Despite that, it refused to pay LAD.

[6] Other than breaching clauses 22 and 24 of the SPAs, it was also the appellants' case that the respondent breached clause 12 when it changed the building material for the outer brick walls of the properties from autoclaved aerated concrete building block to flexcore without their written consent.

[7] The appellants sued the respondent together with the landowner and the architect (not parties to this appeal) claiming inter alia LAD under clauses 22 and 24, or alternatively damages for breach of contract under clause 12.

[8] After a full trial of the action, the appellants' claims were allowed by the High Court on 31 May 2012. Of concern to the present appeal is the Court's decision to allow the appellants' claims for damages for breach of clause 12 of the SPAs. There was no appeal against the decision, which means the respondent accepted liability for breach of contract, subject to assessment of the quantum of damages.

[9] We need to mention in passing that there was an additional claim for distress, discomfort and inconvenience but were disallowed by the learned SAR as they were not awarded by the High Court on 31 May 2012.

[10] The High Court order relating to the award of damages for the respondent's breach of clause 12 of the SPAs was in the following terms:

"2 Defendan Pertama dan Defendan Ketiga adalah bertanggungan secara bersama dan/atau berasingan membayar gantirugi Plaintif-Plaintif bagi kemungkiran kontrak bagi Klausa 12 perjanjian jual beli dengan Plaintif- Plaintif masing-masing bersama dengan faedah keatasnya pada kadar 8% setahun dari tarikh kemungkiran tersebut sehingga tarikh pembayaran penuh.

3. Gantirugi serta faedah yang diperintahkan dalam perenggan 2 di atas hendaklah ditaksirkan oleh Pendaftar Mahkamah Tinggi."

[11] The appellants filed the Notice for Directions on 11 September 2017, more than four years after the order for assessment was made by the High Court on 31 May 2012. It is unclear why there was this delay of more than four years by the appellants. Rules 1 and 5 of O 37 of the Rules of 2012 require directions for assessment of damages to be applied for within one month from the date of the order or judgment, or six months from