JUDGMENT

Hashim Yeop Sani SCJ:

The appellant, a housing developer, has appealed against the decision of the learned Judge in granting an order of specific performance of an agreement dated 3 November 1978 entered into between the developer and respondent, one Bhagat Singh s/o Surian Singh, and the order for statutory indemnity awarded under the Housing Developers (Control and Licensing) Rules, 1970.

Bhagat Singh s/o Surian Singh is a retired Hospital Attendant who in the latter part of 1978 booked a house with the developer in view of his retirement. Accordingly the two parties executed a sale and purchase agreement of Lot No. P.T. 13543, Taman Muhibbah, Tg. Rambutan, Perak. The agreement was signed on 3 November 1978. Under this agreement the agreed purchase price was RM29,404.50 and the house was to be completed within 18 months from the date of the signing of the agreement, that is by 2 May 1980. But the house was never completed by the date. A second agreement called the "supplementary agreement" was entered into by the parties on 11 July 1981 which provided that the house should be completed within six months from the date of the signing of the agreement and that the purchase price of the house to be increased by RM3,585. However the house was again not completed by that date and delivery and vacant possession never made to Bhagat Singh s/o Surian Singh.

There are 19 grounds of appeal but only 3 merit some consideration and they are-

(1) that the learned Judge was wrong in holding that the second agreement was void and of no effect;

(2) that the learned Judge was wrong in awarding indemnity at 12% per annum on the full agreed purchase price and not merely on the actual amount already paid by the respondent; and

(3) the learned Judge was wrong in awarding interest on the purchase price on a day to day basis as damages.

As regards the first ground, the learned Judge in his judgment gave two reasons why he considered the second agreement to be void and of no effect. This he said at p. 134 as follows:

Indeed, the second agreement made on 11 July 1981 was essentially to extend the time, which fact was confirmed in evidence by the defendant themselves. But in the process, the defendant had also been disposed to increase the price, which clearly was in violation of Clause 30 of the agreement, since it required the prior certificate of the architect, but no such certificate was ever produced or referred to in that agreement or even adduced in this Court, which thus renders the second agreement void.

But it would seem to us that the validity of the second agreement should be tested in the light of the Housing Developers (Control and Licensing) Rules, 1970. We are of the view that the second agreement is a clear example of "contracting out" of the provisions of the 1970 Rules. The primary object of that legislation is to protect the weak against the strong. See also S.E.A. Housing Corporation Sdn. Bhd. v. Lee Poh Choo[1982] CLJ 305 (Rep). The position of Bhagat Singh s/o Surian Singh when he signed the second agreement must be one of extreme desperation because by that time he had already retired from service and was renting a house and there had been a delay of more than a year from the due date of delivery of vacant possession under the first agreement. There is also evidence that he had visited the office of the developer not less than 10 times enquiring about his house before he entered into the second agreement. It is also not disputed that by that time he had already paid RM18,440 of the purchase price. Secondly the Managing Director of the developer company admitted frankly that the real reason for the second agreement was to delay the date of delivery of the house and also to get an increase in the purchase price. He said candidly that he was "not aware of any other reason" for the second agreement - p. 54. Finally it is also not disputed that no attempts were made by the developer to get approval for extension of time from