The court ruled that the Developer's delivery of Vacant Possession based on Partial CCC was valid under the Sale and Purchase Agreements, and the Architect owed no duty of care regarding this matter.

Azimah Omar JCA:

A. Introduction

[1] There were two (2) appeals before us, namely; (i) B-02(IM)(NCvC)-1594-08-2022 ("Appeal 1594 / Developer's Appeal") and (ii) B-02(IM)(NCvC)-1654-09-2022 ("Appeal 1654 / Architect's Appeal"). Both appeals originated from the same High Court Suit No BA-22NCvC-89-02-2021 ("HC Suit 89").

[2] HC Suit 89 is essentially the Respondents-Plaintiffs' claim against the Developer for 'additional' Liquidated Ascertained Damages ("LAD") mounted on the allegation that the Vacant Possession delivered by the Appellant- Defendant Developer (on the basis of a partial Certificate of Completion and Compliance (also known as "Form F1 / Partial CCC / Partial Certificate of Fitness for Occupation / Partial CFO") of the Plaintiffs' specific parcels) was either a meaningless or an invalid delivery of Vacant Possession. Thus, the Plaintiffs contended that the delay for delivery of Vacant Possession subsisted even after the Developer's invalid delivery of Vacant Possession.

[3] A majority of the Respondents-Plaintiffs had already been paid LAD by the Appellant-Developer upon the parties' mutual execution and entry into Full and Final Settlement Agreements.

[4] However, the Plaintiffs somehow roped in the Architect for the Developer's alleged additional delay and wrongful delivery of Vacant Possession despite the fact that the Architect was neither privy to the SPAs nor was contractually obliged to ensure that the Plaintiffs' respective parcels were delivered within the deadlines set under the SPAs.

[5] Appeal 1594 or the Developer's Appeal is the Appeal by the 1st Defendant- Developer, Cosmopolitan Avenue Sdn Bhd ("the Developer / CASB") against the Learned Judicial Commissioner's ("Learned JC") decision to dismiss the CASB's Application to strike out the Plaintiffs' claim against the Developer pursuant to O 18 r 19 of the Rules of 2012 (O 18 r 19 ROC 2012).

[6] While Appeal 1654 or the Architect's Appeal, is the Appeal by the 2nd Defendant, Loo Chang Seng ("the Architect") whose application under O 18 r 19 ROC 2012 to strike out the Plaintiffs' claim against him was similarly dismissed by the same Learned JC.

[7] In any case, it is only apt that we appreciate the underlying facts of this Appeal before we delve into the grounds of our judgment and error in the Learned JC's decision to dismiss both the Developer's and Architect's striking out Applications.

B. Facts Of The Case

[8] The Respondents-Plaintiffs are purchasers of office units in the mixed commercial development project known as 'Empire City, Damansara' ("the Project") erected on HS(D) 222400, No PT 44016 and HS(D) 222402, No PT 44017, both in Mukim Sungai Buloh, Daerah Petaling, Negeri Selangor.

[9] The only two signatories to all of the Sale and Purchase Agreements ("SPAs") were the respective purchasers and CASB as the Developer. The Architect was not at all privy to the SPAs.

[10] The Project consists of, amongst others, Shopping Mall, Office Building Blocks and Studio Building Blocks.

[11] CASB is the Developer and vendor of the Project as well as the registered owner of all those pieces of land held under HS(D) 222400, No PT 44016 and HS(D) 222401, No PT 44017, both in Mukim Sungai Buloh, Daerah Petaling, Negeri Selangor.

[12] The 2nd Defendant is a licensed Architect appointed by CASB for the Project, practising under the name and style of 'EDA Architects'.

[13] CASB had obtained the approval of the building plans from the appropriate Authority on 23 March 2012.

[14] CASB as the vendor had agreed to sell and the Plaintiffs as the Purchasers had agreed to purchase units in Blocks E (Office Suites) and M (SOHO Office) of the Project with vacant possession subject to the terms and conditions contained in the SPAs.

[15] The salient terms under the SPAs governing the completion and delivery of the purchasers' respective parcels (or partial / practical completion of the Project) are cl 25.1, cl 25.2, cl 1.1 (o), cl 1.1 (m), and the Sixth Schedule to the SPAs:

"25.1