JUDGMENTBY: EDGAR JOSEPH JR FCJ (DELIVERING THE JUDGMENT OF THE COURT)

This is an appeal from the judgment of the High Court, Johor Bahru, ordering that judgment be entered in favour of the plaintiff Azali bin Bakar, the purchaser (the purchaser) under a sale and purchase agreement dated 12 December 1984 (the agreement) of a single-storey dwelling house (the house) to be erected by the defendant Insun Development Sdn Bhd, the corporate licensed developer (the vendor). The agreement was in the form prescribed in the Schedule to the Housing Developers (Control and Licensing) Regulations 1982 (the 1982 Regulations).

More particularly, the purchasers claim by way of originating summons issued on 31 July 1993 was for a declaration as to entitlement to agreed liquidated damages for breach of contract, calculated at the rate of 10% per annum on a daily basis on the purchase price of RM49,725 from 12 December 1986 to date of delivery of possession of the house. Alternatively, the purchasers claim was for a declaration as to entitlement to liquidated damages as aforesaid under the Housing Developers (Control & Licensing) Act 1966, and the regulations made thereunder, to wit, the 1982 Regulations. In the event, the judge held that the purchaser was entitled to the primary declaration prayed for and entered judgment in his favour accordingly. The essential facts may be shortly stated. The agreement was dated 12 December 1984 and by cl 18 thereof, it was provided as follows:

(18) (1) The said building shall be completed by the vendor and vacant

possession delivered to the purchaser within twenty-four (24)

calendar months from the date of this agreement.

(2) If the vendor fails to deliver vacant possession of the said

building 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 purchase price.

It was common ground that the house was not completed and available for delivery until 25 March 1994, and that there had thus been a delay from 12 December 1986 until 25 March 1994 on the part of the vendor in delivering vacant possession of the same.

A demand for agreed liquidated damages by the purchaser having been refused by the vendor, the former commenced proceedings by way of the originating summons aforesaid for the declarations aforesaid and for consequential reliefs.

The vendors defence was that the purchasers claim was barred by s 6(1) of the Limitation Act 1953. More particularly, it was contended that as the purchasers claim was founded upon a breach of contract, that is to say, of cl 18, his cause of action accrued on the day following the time limited under the agreement for completion and delivery of vacant possession of the house. On this view, the purchaser had commenced the proceedings aforesaid more than seven months out of time and his claim was therefore barred by limitation.

In giving judgment for the purchaser, the judge relied heavily on the Malaysian Privy Council decision in Loh Wai Lian v SEA Housing Corp Sdn Bhd [1987] 2 MLJ 1 . It follows that the point of central importance to this appeal is whether the present case is governed by the judgment of the Privy Council in Loh Wai Lian, as the judge thought.

In Loh Wai Lians case, by a contract in writing dated and executed on 18 March 1974, the plaintiff/buyer had agreed to purchase, and the defendant/developer -- a corporate licensed housing developer -- had agreed to sell, a shophouse to be constructed by the developer. By cl 17 of the contract it was provided as follows:

Subject to cl 32 hereof and/or to any extension or extensions of time

as may be allowed by the controller the said building shall be

completed and ready for delivery of possession to the purchaser within

eighteen (18) calendar months from the date of this

agreement. Provided always that if