Anuar Bin Mahmood v Johor Land Berhad (JA-22C-4-06/2020)

Content

1 IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TA’ZIM MALAYSIA CIVIL SUIT NO. : JA-22C-4-06/2020

Preamble

pursuant to Clause 27(1)(a) of the SPA, notice sent by registered post is deemed received 5 days after posting, i.e.,

Preamble

pursuant to Clause 23(3) of the SPA, if the Purchaser fails to take VP within 14 days of the notice, VP is deemed taken. Therefore, VP was deemed taken on 1.7.2014.

Schedule

Jadual Ketiga dan segala wang lain yang kena dibayar di bawah Perjanjian ini dan Pembeli telah melaksanakan dan mematuhi segala terma dan waad di pihaknya di bawah Perjanjian ini”. 28. In summary Clause 23(1) of the SPA requires the Defendant to deliver VP when the house is – (a) constructed and completed in accordance with the SPA; and (b) fit for occupation. 29. These are substantive preconditions that must be fulfilled before VP can be validly delivered. The deeming provision in Clause 23(3) of the SPA is a procedural mechanism to prevent purchasers from indefinitely refusing to collect keys. However, it presupposes that the developer has first fulfilled the substantive requirements in Clause 23(1) of the SPA. 30. From the testimony of the Defendant's witnesses (SD2, SD3 and SD4), it is clear that VP can only be delivered after the issuance of the Certificate of Completion and Compliance (CCC). As explained by SD2, the architect responsible for issuing the CCC, the CCC certifies the building is safe and fit for occupation. 31. Legally speaking, section 3 of the Street, Drainage and Building Act 1974 [Act 133], define CCC as follows – "Certificate of completion and compliance" means the certificate given or granted under any by-laws made under this Act; 32. Section 70(21) of Act 133, provides as follows – “(21) Before the issuance of a certificate of completion and compliance, it shall be the duties and responsibilities of the principal submitting person to – (a) supervise the erection of the building to ensure that the erection is in conformity with the approved plans and the requirements of the provisions of this Act or any by-laws made thereunder; (b) ensure that the building has been duly constructed and completed in conformity with the approved plans and the requirements of this Act or any by-laws made thereunder and that all technical conditions imposed by the local authority has been duly complied with; and (c) ensure that the building is safe and fit for occupation”. 33. For the purpose of this claim, the relevant by-laws are the Negeri Johor Uniform Building By-Law 1986. The provision of By-Law No. 25 provides – “Perakuan siap dan pematuhan” (25) (1) Suatu perakuan siap dan pematuhan dalam borang F sebagaimana yang dinyatakan dalam

Schedule

Jadual Kedua hendaklah dikeluarkan oleh orang utama yang mengemukakan – (a) Apabila semua syarat teknikal yang dikenakan oleh pihak berkuasa tempatan telah dipatuhi dengan sewajarnya; (b) Apabila borang G 1 hingga G 21 berkenaan dengan perakuan berperingkat sebagaimana dinyatakan dalam Jadual Kedua telah diperakui dengan sewajarnya dan diterima olehnya; (c) Apabila semua perkhidmatan perlu, termasuk jalan akses, pandangan darat, tempat letak kereta, parit, pemasangan alat-alat sanitari, air, elektrik dan komunikasi, pili bomba, kehendak pembentungan dan pembuangan sampah dan lif bomba jika dikehendaki, telah disediakan; dan (d) Apabila dia memperakui dalam Borang F bahawa dia telah mengawasi pembinaan dan penyiapan bangunan itu dan bahawa sepanjang pengetahuan dan kepercayaannya bangunan itu telah dibina dan disiapkan mengikut Akta, Undang-Undang Kecil ini dan pelan yang diluluskan. (2) Apabila perakuan siap dan pematuhan dikeluarkan, orang utama yang mengemukakan menerima tanggungjawab sepenuhnya bagi pengeluaran perakuan siap dan pematuhan itu dan dia memperakui bahawa bangunan itu adalah selamat dan layak untuk diduduki. (3) Orang utama yang mengemukakan hendaklah dalam masa empat belas hari dari pengeluaran perakuan siap dan pematuhan atau perakuan siap dan pematuhan sebahagian, mengikut mana-mana yang berkenaan, mendepositkan suatu salinan perakuan tersebut dan Borang G 1 hingga G 21 dengan pihak berkuasa tempatan dan Lembaga Arkitek Malaysia atau Lembaga Jurutera Malaysia, mengikut mana-mana yang berkenaan. (4) Tiada apa-apa jua yang terkandung dalam undang-undang kecil ini boleh menghalang pihak berkuasa tempatan atau mana-mana pegawai yang diberi kuasa olehnya secara bertulis bagi maksud itu, daripada memeriksa apa-apa kerja, bangunan pada mana-mana peringkatnya dan menarik perhatian kepada apa-apa kemungkiran kepada bangunan itu atau ketidakpatuhan dengan undang-undang kecil ini yang didapatinya, memberi notis bertulis kepada orang utama yang mengemukakan yang mengarahkan supaya kemungkiran dan ketidakpatuhan itu dibetulkan. (5) Tertakluk kepada perenggan (4), pihak berkuasa tempatan boleh mengeluarkan suatu arahan secara bertulis kepada orang utama yang mengemukakan untuk menahan pengeluaran perakuan siap dan pematuhan atau perakuan siap dan pematuhan atau peraturan siap dan pematuhan sebahagian, mengikut mana-mana yang berkenaan. (6) Orang utama yang mengemukakan hendaklah dalam masa dua puluh satu hari selepas menerima notis yang dikeluarkan menurut perenggan (4) atau apa-apa tempoh lanjutan yang diluluskan oleh pihak berkuasa tempatan, membetulkan kemungkiran atau ketidakpatuhan itu. (7) Jika orang utama yang mengemukakan telah membetulkan kemungkinan atau ketidakpatuhan itu, dia hendaklah mengeluarkan suatu notis kepada pihak berkuasa tempatan yang mengesahkan bahawa kerja-kerja pembetulan itu telah disiapkan dengan memuaskan. (8) Apabila menerima notis yang disebut dalam perenggan (7), pihak berkuasa tempatan hendaklah dalam masa empat belas hari dari penerimaan notis itu memeriksa bangunan itu untuk mengesahkan bahawa kemungkiran atau ketidakpatuhan itu telah dibetulkan dengan memuaskan. (9) Jika pihak berkuasa tempatan berpuas hati bahawa kemungkinan atau ketidakpatuhan yang dinyatakan dalam perenggan (4) telah dibetulkan dengan memuaskan, pihak berkuasa tempatan hendaklah mengeluarkan suatu arahan secara bertulis kepada orang utama yang mengemukakan supaya mengeluarkan perakuan siap dan pematuhan atau perakuan siap dan pematuhan sebahagian, mengikut mana-mana yang berkenaan. (10) Jika pihak berkuasa tempatan tidak menjalankan pemeriksaan ke atas kerja-kerja pembetulan mengikut perenggan (8) dalam tempoh yang dinyatakan dalam perenggan itu, maka hendaklah disifatkan bahawa pihak berkuasa tempatan berpuas hati bahawa kerja-kerja pembetulan itu telah disiapkan dengan memuaskan. (11) Jika kemungkiran atau ketidakpatuhan tidak dibetulkan oleh orang utama yang mengemukakan dalam tempoh yang dinyatakan dalam perenggan (6), pihak berkuasa tempatan sendiri boleh menyebabkan apa-apa kerja dilaksanakan atau apa-apa langkah diambil jika pihak berkuasa tempatan berpendapat bahawa kerja atau langkah itu adalah perlu untuk membetulkan ketidakpatuhan itu. (12) Kos untuk melaksanakan apa-apa kerja atau mengambil apa-apa langkah yang disebut dalam perenggan (11) hendaklah ditanggung oleh pemunya bangunan. (13) Perkara siap dan pematuhan atau perakuan siap dan pematuhan sebahagian, mengikut mana-mana yang berkenaan, tidak boleh dikeluarkan oleh orang utama yang mengemukakan sehingga semua kemungkinan atau ketidakpatuhan berkenaan dengan bangunan itu telah dibetulkan dengan memuaskan”. 34. By-Law 25 of the Negeri Johor Uniform Building By-Law 1986 sets out the requirements for the issuance of a Certificate of Completion and Compliance (CCC) in Form F. Under By-Law 25(1), a CCC shall only be issued by the Principal Submitting Person (PSP) when – (a) all technical conditions imposed by the local authority have been duly complied with; (b) Forms G1 to G21 relating to stage certifications have been duly certified and accepted; (c) all necessary services, including electrical installations, have been provided; and (d) the PSP certifies that he has supervised the construction and completion of the building and that, to the best of his knowledge and belief, the building has been constructed and completed in accordance with the Act, By-Laws and approved plans. 35. Crucially, By-Law 25(2) provides that upon issuing the CCC, the PSP accepts full responsibility for its issuance and certifies that the building is safe and fit for occupation. Furthermore, By-Law 25(13) stipulates that a CCC shall not be issued until all defects or non-compliance have been satisfactorily rectified. 36. The seriousness of the responsibility to ensure the building is safe and fit for habitation is reflected by Section 70(27) of Act 133, which provides that any PSP who makes a false or fraudulent declaration in issuing a CCC is liable to a fine of up to RM250,000.00 or imprisonment up to 10 years, or both. This underscores that the issuance of a CCC is not a mere formality. It carries with it a solemn certification that the building has been constructed in accordance with the approved plans and is safe for occupation. 37. The Defendant relies heavily on the CCC dated 13.4.2014 as proof that the house was completed and fit for occupation. 38. SD2 the architect who issued the CCC, admitted under cross-examination that – (a) his office was in Kuala Lumpur, not Johor Bahru, limiting his physical presence at the site; (b) he had only one site clerk or kerani tapak to supervise 217 units in the project; (c) unfortunately, he could not even name the said site clerk who was supposedly supervising the works; (d) he could not produce any site inspection reports or minutes to demonstrate that proper inspections had been carried out; and (e) he failed to produce the G1-G21 forms, which are the inspection checklists required before CCC issuance. 39. The evidence of SD2 as above to this Court’s judgment, raises serious concerns about its reliability. 40. Meanwhile, the Plaintiff’s evidence adduced at trial demonstrates that the house was not, in fact, fit for occupation at the time VP was purportedly delivered. The defects discovered were not minor cosmetic issues but serious defects evidencing poor workmanship from original construction. 41. The most significant defect is the electrical wiring laid on the floor instead of through the wall. SP4, an electrical engineer with 32 years of experience, testified that – (a) the wiring on the floor did not comply with Suruhanjaya Tenaga (ST) specifications; (b) the cable was undersized - 2.5mm was used instead of the required 4 mm for aircond and water heater; (c) the cable was not waterproof type; (d) the termination of cables was improper; and (e) this posed a genuine risk of electric shock to the occupants. 42. This electrical defect was a latent defect, which is hidden beneath the floor tiles and only discovered when the first rectification contractor hacked the tiles. The fact that it was hidden does not diminish its significance. On the contrary, it demonstrates that the house was defective from original construction and the defect would have existed at the time the CCC was issued and VP was purportedly delivered. 43. SP4's evidence was not seriously challenged by the Defendant. In fact, SD5 the Defendant's rectification contractor, admitted that item 39 of his defect list was "Electrical - terdapat cable dalam lantai bilik utama" (electrical cable on master bedroom floor). He further admitted that he had no method statement for how this defect would be rectified. 44. The Defendant argues that the Plaintiffs never pleaded a challenge to the CCC validity and relies on the Federal Court decision in Iftikar Ahmed Khan v. Perwira Affin Bank [2018] 1 MLRA 202 for the proposition that parties are bound by their pleadings. This Court does not accept this objection. Paragraph 8 of the Amended Statement of Claim stated the following – “8. Plaintif-Plaintif akan mengatakan dan menegaskan bahawa Plaintif-Plaintif berasa sungguh kecewa bagaimana pihak Defendan telah mengeluarkan Notis Milikan Kosong (Notice Vacant Possession) bertarikh 17.06.2014 sedangkan pada masa tersebut, Defendan masih belum menyempurnakan pembinaan rumah tersebut. Plaintif-Plaintif akan mengatakan dan menegaskan bahawa Plaintif-Plaintif telah langsung tidak menerima Notis tersebut tetapi telah diberitahu oleh Defendan bahawa suatu Notis telah dikeluarkan dan memberi satu Salinan kepada Plaintif-Plainrif. Walau bagaimanapun memandangkan bahawa kecacatan-kecacatan pada rumah tersebut adalah sangat teruk, Plaintif-Plaintif langsung tidak mengambil kunci rumah dan milikan kosong rumah tersebut daripada Defendan”. 45. In summary, the Plaintiffs pleaded in paragraph 8 of the Amended Statement of Claim that they were disappointed that VP was issued despite the house not being completed. This puts the Defendant on notice that the validity of VP (which depends on a valid CCC) is in issue. Furthermore, the evidence of SD2's failure to produce the G1- G21 forms and his inability to demonstrate proper supervision emerged during cross-examination of the Defendant's own witness. The Court is entitled to evaluate the reliability and weight of evidence adduced by the Defendant. 46. Additionally, SP2, a contractor who has performed repair works for nearly 30 units in the same housing area, testified that the main defect commonly reported is waterproofing system failure "due to original workmanship not meeting good standards". This suggests that the defects in the Plaintiffs' house are not isolated but part of a pattern of poor workmanship in the Defendant's project. 47. In this Court’s judgment, the CCC is meant to certify that the building has been constructed in accordance with approved plans and is safe and fit for occupation. It is only as reliable as the verification process behind it. Where, as here, SD2, the architect who issued the CCC cannot confirm that proper inspections were conducted, the Court is unable to accept the CCC as conclusive proof that the Property was completed and fit for occupation. 48. Further, the Defendant's own conduct is inconsistent with its position that the house was fit for occupation on 1.7.2014. If the house was truly complete and fit for occupation – (a) why did the first rectification contractor hack almost all the floor tiles and then abandon the work, leaving the house in a worse condition; (b) why did the Defendant appoint a second contractor to continue rectification works? (c) why did the Defendant propose a third rectification period from 2.2.2015 to 4.3.2015; and (d) why has the house remained uninhabitable for more than 10 years? 49. The repeated rectification attempts and the continued uninhabitable state of the house demonstrate that even the Defendant admitted that the house was unfit for occupation at the time of VP. 50. While this Court makes no finding that SD2 acted fraudulently under section 70(27) of Act 133, his inability to produce the requisite documentation mentioned in By-Laws 25 raises serious doubts about the reliability of the CCC. This Court therefore finds that the CCC dated 13.4.2014 was issued without proper verification. 51. To this Court’s mind, a developer cannot simply issue a VP notice for an incomplete or unfit house and then rely on the deeming provision to claim that VP has been taken. To hold otherwise would render Clause 23(1) of the SPA meaningless and defeat the protective purpose of the Act 118. This Court’s understanding is in line with the principle laid by the Court of Appeal and the Federal Court in Sentul Raya Sdn Bhd and PJD Regency Sdn Bhd. 52. More recently, the High Court in Ho Yui Luen & Anor v Agile PJD Development Sdn Bhd [2025] 12 MLJ 21, held that vacant possession is not merely a procedural threshold but must reflect the substantive condition of the property, namely, its fitness for human habitation. The Court held that procedural compliance cannot override the developer's continuing duty to deliver a property that is safe, functional and consistent with the purchaser's legitimate expectations of habitability. 53. The Ho Yui Luen case also applyied the threefold implied terms set out in Hancock v B W Brazier (Anerley) Ltd [1966] 2 All ER 901 and adopted in Malaysia in SEA Housing Corp Sdn Bhd v Lee Poh Choo [1982] 2 MLJ 31 and Dua Residency Management Corporation v Edisi Utama Sdn Bhd & Anor [2021] MLJU 140 as follows – (a) a duty to build in a good and workmanlike manner; (b) a duty to use proper materials; and (c) a duty to ensure the property is reasonably fit for human habitation. 54. The Court in Ho Yui Luen held that these obligations are not displaced by the existence of a CCC or the deeming provisions in the SPA. They are implied as a matter of law into all Schedule G and

Schedule

Schedule H contracts governed by Act 118. 55. For the reasons above, this Court finds that – (a) the CCC dated 13.4.2014 was issued without proper verification and cannot be relied upon as conclusive proof that the Property was completed and fit for occupation; (b) the house was not constructed and completed in accordance to the specification in the SPA, and was not fit for occupation at the time the VP Notice was issued on 17.6.2014; (c) the Defendant therefore failed to deliver valid VP in accordance with Clause 23(1) of the SPA; (d) the deeming provision in Clause 23(3) cannot operate to validate a VP that was delivered in breach of the substantive requirements in Clause 23(1); and (e) strictly speaking, no valid VP has been delivered to date. 56. However, it is necessary to draw a clear distinction between (a) the Court’s finding on the true legal position, and (b) the date adopted purely for quantification in this suit. 57. On the evidence, and for the reasons stated above, this Court finds that the Defendant failed to deliver valid vacant possession in accordance with Clause 23(1) of the SPA, and that the deeming provision in Clause 23(3) of the SPA cannot operate to validate a vacant possession delivered in breach of the substantive requirements. Hence, no valid vacant possession has been delivered to date. 58. Nevertheless, the Plaintiffs’ pleaded case (and the way the LAD claim was advanced) relies on 12.2.2015 as the operative date for calculating LAD. The Court is bound to determine the parties’ rights and relief within the boundaries of the case pleaded. Accordingly, and for the limited purpose of quantifying LAD in this judgment (and without treating it as a finding that valid vacant possession was in fact delivered), this Court adopts 12.2.2015 as the proxy date, as it marks the point at which the Defendant, by its own letter, acknowledged that the parties had reached an impasse. ISSUE 2 : Whether The Defendant Breached Clause 13 of the SPA (Construction Standards)? 59. Having found that the CCC was issued without proper verification and that the Property was not fit for occupation at the time of VP, this Court now turn to the question of whether the Defendant breached Clause 13 of the SPA. 60. Clause 13 of the SPA reads – “13. Bahan-bahan dan kemahiran kerja hendaklah menepati perihalan Bangunan tersebut hendaklah dibina mengikut cara kemahiran kerja yang baik mengikut perihalan yang dinyatakan dalam Jadual Keempat dan mengikut pelan-pelan yang diluluskan oleh Pihak Berkuasa Yang Berkenaan seperti dalam Jadual Kedua, yang perihal pelan tersebut telah dipersetujui oleh Pembeli seperti yang diakui oleh Pembeli. Tiada sebarang perubahan atau lencongan boleh dibuat tanpa izin bertulis daripada Pembeli kecuali sebagaimana yang dikehendaki oleh Pihak Berkuasa Yang Berkenaan. Pembeli tidak bertanggungjawab untuk membayar kos perubahan atau lencongan yang demikian dan sekiranya perubahan atau lencongan yang demikian melibatkan penggantian atau penggunaan bahan-bahan yang lebih murah atau peninggalan kerja-kerja yang pada asalnya telah dipersetujui dilakukan oleh Penjual, maka Pembeli berhak untuk mendapat potongan yang bersamaan dalam harga beli atau ganti rugi, mengikut mana-mana yang berkenaan”. 61. To this Court’s mind, the responsibilities of the Defendant to construct the house under Clause 13 of the SPA "in accordance with the descriptions and specifications set out in the Fourth Schedule” do not stand in silo. The developer is bound by the implied terms as explained by the Federal Court in SEA Housing Corp Sdn Bhd as follows – (a) that the house will be built in a good and workmanlike manner; (b) that proper materials will be used; and (c) that the house will be reasonably fit for human habitation. 62. A breach of any of these terms entitles the purchaser to damages. 63. Based on this Court observation, the evidence adduced at trial establishes that the Defendant failed to construct the Property in a good and workmanlike manner. This Court has already addressed the electrical wiring defect in my analysis of Issue 1. This Court now summarises the totality of evidence on the defects. (a) Electrical Defects 64. SP4 an electrical engineer with 32 years of experience, conducted an inspection of the Property in February 2025 and found the following – (a) wiring laid on the floor instead of through the wall, contrary to Suruhanjaya Tenaga (ST) specifications; (b) undersized cable of 2.5 mm was used instead of the required 4 mm for aircond and water heater points; (c) non-waterproof cable used in areas where waterproof cable is required; (d) improper termination of cables throughout the house; and (e) the installation posed a genuine risk of electric shock to occupants. 65. SP4 also testified that the estimated cost to rectify all electrical defects was RM20,000.00 and that the entire electrical system would need to be redone from scratch. 66. SP5, a site supervisor with a PW4 Competent Person License from Suruhanjaya Tenaga, conducted insulation and continuity tests and found no proper earthing system in the Property. 67. Critically, these electrical defects were latent, hidden beneath the floor tiles and only discovered when the first rectification contractor hacked the tiles. This demonstrates that the defects existed from original construction and were not caused by subsequent deterioration or lack of maintenance. (b) Waterproofing Defects 68. SP2, a contractor with 43 years of experience who has performed repair works for nearly 30 units in the same housing area under Johor Land, testified that the main defect commonly reported by homeowners in the area is waterproofing system failure. 69. SP2 stated that this failure is "due to original workmanship not meeting good standards". He explained that to repair waterproofing defects, the original cement layer must be removed, rendering works performed, and the waterproofing system reinstalled properly. 70. To this Court’s mind, SP2's evidence that similar defects exist in nearly 30 other units in the same project strongly suggests a systemic failure in workmanship by the Defendant, rather than isolated defects in the Plaintiffs' unit alone. (c) The Failed Rectification Attempts 71. The evidence of the rectification attempts further demonstrates the extent of the defects – (i) First rectification (June 2014) – The Defendant's original contractor hacked almost all the floor tiles and then abandoned the work, leaving the house in a worse condition than before. (ii) Second rectification (October 2014) – SD5 worked for only 8 days before being stopped. The work included rewiring and cement rendering, but SD5 admitted that he had no method statement for the proper rectification of the electrical defect. (iii) Third rectification (proposed January 2015) – The Defendant proposed a third rectification period from 2.2.2015 to 4.3.2015, but the Plaintiffs refused it. 72. This Court is of the opinion that the fact that the Defendant's own contractors hacked almost all the floor tiles during the first rectification attempt is a clear indication that the defects were not minor or superficial but required substantial remedial work. 73. The Defendant relies on the following in defence – (a) the CCC dated 13.4.2014 proves the house was completed as required under specifications and safe for occupation; (b) SD2, confirmed construction complied with Second Schedule and local authority requirements; (c) the defects identified were minor and repairable; and (d) the current condition of the Property is due to the Plaintiffs' failure to maintain it for over 10 years. 74. This Court has already found that the CCC was issued without proper verification and cannot be relied upon as conclusive proof of compliance. SD2's evidence is undermined by his inability to produce site inspection reports, minutes, or G1-G21 forms. 75. As for the contention that the defects were minor and repairable, this Court found that this contention is contradicted by – (a) the evidence of SP4 that the electrical installation was non-compliant with ST specifications and posed a safety hazard; (b the evidence of SP2 that waterproofing failure is a common problem in the area due to poor original workmanship; (c) the fact that the first rectification contractor abandoned the work after hacking almost all the tiles; and (d) the fact that the house has remained uninhabitable for more than 10 years. 76. As for the Defendant’s argument that the current condition is due to a lack of maintenance, this Court accepts that some deterioration may have occurred over 10 years. However, the core defects, i.e., the electrical wiring on the floor and the waterproofing failures, are clearly attributable to original poor workmanship, not due to a lack of maintenance. This Court’s finding is based on SP4's evidence regarding electrical defects attributable to the manner of the original installation, not to subsequent deterioration. Similarly, SP2's evidence is that the waterproofing failures in the area are due to "original workmanship not meeting good standards". 77. This Court’s finding is consistent with the principle established in Dua Residency Management Corporation v Edisi Utama Sdn Bhd & Anor [2021] MLJU 140, where the Court drew a distinction between defects arising from defective design or workmanship and those arising from lack of maintenance. The former remains the responsibility of the developer. The evidence in this case clearly establishes that the defects fall within the former category. 78. For the reasons above, this Court finds that the Property was not built with proper materials and was not reasonably fit for human habitation. Therefore, the Defendant breached Clause 13 of the SPA and the implied terms in Hancock v B W Brazier by failing to construct the Property in a good and workmanlike manner. ISSUE 3 : Whether The 20.6.2014 Email Constituted A Valid Written Notice Under Clause 25(1) Of The Spa? 79. Clause 25 of the SPA states – “25. Tempoh liabiliti kecacatan (1) Apa-apa kecacatan, pengecilan atau kekurangan lain pada Bangunan tersebut yang menjadi ketara kepada Pembeli dalam tempoh dua puluh empat (24) bulan kalendar selepas tarikh Pembeli mengambil pemilikan kosong Bangunan tersebut dan yang disebabkan oleh kecacatan kemahiran kerja atau bahan-bahan atau; Bangunan tersebut tidak dibina mengikut pelan-pelan dan perihalan sebagaimana yang dinyatakan dalam Jadual Kedua dan Keempat sebagaimana yang diluluskan atau dipinda oleh Pihak Berkuasa Yang Berkenaan, hendaklah diperbaiki dan diperbetulkan oleh Penjual dengan kos dan perbelanjaannya sendiri dalam tempoh tiga puluh (30) hari dari tarikh Penjual menerima notis bertulis mengenainya daripada Pembeli. (2) Jika kecacatan, pengecilan atau kekurangan-kekurangan lain pada Bangunan itu tidak diperbetulkan oleh Penjual dalam tempoh tiga puluh (30) hari yang disebut di bawah subfasal (1), maka Pembeli berhak untuk menjalankan kerja-kerja untuk memperbaiki dan memperbetulkan kecacatan, pengecilan atau kekurangan-kekurangan lain itu sendiri dan mendapatkan kembali daripada Penjual kos memperbaiki dan memperbetulkan kecacatan, pengecilan atau kekurangan-kekurangan lain itu dan Pembeli boleh memotong kos itu daripada apa-apa wang yang dipegang oleh peguam cara Penjual sebagai pemegang kepentingan bagi pihak Penjual di bawah butiran 5 Jadual Ketiga dengan syarat Pembeli hendaklah, pada bila-bila masa selepas tamat tempoh tiga puluh (30) hari tersebut memberitahu Penjual kos memperbaiki dan memperbetulkan kecacatan, pengecilan atau kekurangan-kekurangan lain itu sebelum bermulanya kerja-kerja itu dan hendaklah memberi peluang kepada Penjual untuk menjalankan kerja-kerja itu sendiri dalam tempoh empat belas (14) hari dari tarikh Pembeli memberitahu Penjual mengenai niatnya untuk menjalankan kerja-kerja tersebut dan dengan syarat selanjutnya bahawa Pembeli itu hendaklah menjalankan dan memulakan kerja-kerja tersebut seberapa segera yang boleh dilaksanakan selepas kegagalan Penjual untuk menjalankan kerja-kerja tersebut dalam tempoh empat belas (14) hari tersebut. Dalam keadaan yang sedemikian, peguam cara Penjual hendaklah melepaskan kos yang sedemikian daripada wang pemegang kepentingan yang dipegang oleh peguam cara Penjual di bawah butiran 5 Jadual Ketiga dalam tempoh empat belas (14) hari dari penerimaan tuntutan bertulis Pembeli oleh peguam cara Penjual. (3) Tertakluk kepada subfasal (2), jika Pembeli telah, sebelum tamat tempoh lapan (8) bulan atau dua puluh empat (24) bulan selepas tarikh Pembeli mengambil pemilikan kosong Bangunan tersebut seperti yang dinyatakan dalam butiran 5(a) atau butiran 5(b) Jadual Ketiga masing-masing, yang disampaikan sewajarnya kepada peguam cara Penjual sesalinan notis bertulis daripada Pembeli kepada Penjual di bawah subfasal (1) untuk memperbaiki kecacatan, pengecilan atau kekurangan-kekurangan lain pada Bangunan tersebut, peguam cara Penjual hendaklah sebagai pemegang kepentingan menurut butiran 5(a) dan/ atau butiran 5(b) Jadual Ketiga, mengikut mana-mana yang berkenaan, sehingga peguam cara Penjual telah menerima perakuan yang ditandatangani oleh arkitek yang memperakui bahawa kecacatan, pengecilan atau kekurangan-kekurangan lain Bangunan tersebut telah dibaiki dan diperbetulkan oleh Penjual”. 80. In summary, Clause 25 of the SPA provides the mechanism for rectification of defects during the Defect Liability Period (DLP). The DLP runs for 24 months from the date of VP and requires the following– (a) the Purchaser to give "written notice" of defects to the Vendor, following which the Vendor must rectify the defects within 30 days; (b) if the Vendor fails to rectify within 30 days, the Purchaser may– (i) give a further 14 days' notice of intention to appoint their own contractor; and (ii) thereafter, appoint their own contractor and claim the costs from the Vendor. 81. The purpose of the written notice requirement is to put the developer on notice of the defects so that the developer has an opportunity to rectify them. From this Court point of view, the requirement serves a practical purpose and it is not meant to be a technical trap to defeat legitimate claims by purchasers. 82. The Plaintiffs' position is that the email dated 20.6.2014, sent by the Second Plaintiff to the Defendant with photographs showing defects, constituted a valid written notice under Clause 25(1) of the SPA. 83. However, the Defendant claimed that the email contained only photographs without a detailed defect list. Hence, the Defendant contends that it is insufficient to constitute "written notice" under Clause 25(1) of the SPA, which requires a proper written list of defects. 84. Based on this Court observation, the chronological evidence before this Court establishes the following – (a) on 20.6.2014, the Second Plaintiff sent an email to the Defendant attaching photographs showing defects in the Property, including two miscoloured tiles; (b) the Defendant received the email and acted upon it, i.e, the Defendant appointed a contractor who commenced the first rectification attempt in June 2014; (c) the Defendant did not, at the material time, reject the email as invalid or request a more detailed defect list; and (d) SD1, the Defendant's Manager, was cross-examined and re-examined on this point. During re-examination, SD1 accepted that the 20.6.2014 email constituted a valid Clause 25(1) notice under the SPA. 85. To this Court’s mind, since the Defendant's own witness (SD1) conceded that the 20.6.2014 email constituted valid notice under Clause 25(1) of the SPA, the Defendant is bound by this concession. 86. Even apart from this concession, this Court would have found that the email constituted valid written notice for the following reasons – (a) the email was in writing An email is a form of written communication. There is no requirement in Clause 25(1) of the SPA that the notice be in any particular form. Clause 25(1) of the SPA only requires that that it be "written"; (b) the photographs identified the defects The photographs attached to the email clearly showed the defects complained of. A picture, as they say is worth a thousand words. To this Court’s mind, those photographs were sufficient to put the Defendant on notice of the nature and location of the defects; and (c) the Defendant understood it as a defect notice The Defendant's conduct in responding to the email by appointing a contractor to commence rectification works demonstrates that the Defendant understood the email as a defect complaint requiring action under Clause 25 of the SPA. 87. To this Court’s understanding, the purpose of the written notice requirement is to inform the Vendor of defects so that rectification can be carried out. Based on the above, this Court is satisfied that this purpose was achieved. The Defendant was informed and commenced rectification. 88. Therefore, this Court is of the view that to hold that the email was not a valid notice would be to elevate form over substance. As this Court had establish at the earlier part of this section, Act 118 is social legislation designed to protect purchasers, not to provide technical loopholes for developers to escape liability. Therefore, as rightly established by the Federal Court in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals, the Courts must construe the statutory contract in accordance with the statutory protection afforded by Parliament. 89. In any event, even if the 20.6.2014 email were insufficient, the evidence below shows that subsequent communications clearly identified the defects – (a) the joint inspection on 3.8.2014; (b) the SD5’s quotation dated 6.10.2014 listing 50 defect items; and (c) the Plaintiffs' own quotation dated 7.12.2014 listing 12 categories of works. 90. Hence, the Defendant cannot claim ignorance of the defects when its own contractor prepared a detailed list of 50 defect items. 91. For the reasons above, this Court finds that the email dated 20.6.2014 constituted a valid written notice under Clause 25(1) of the SPA. ISSUE 4 : Whether The Defendant Complied With Clause 25(1) of The SPA to Rectify Within 30 Days? 92. Having found that a valid written notice was given on 20.6.2014, the subsequent question is whether the Defendant rectified the defects within 30 days as required by Clause 25(1) of the SPA, i.e., by 20.7.2014. 93. Clause 25(1) of the SPA imposes a mandatory obligation on the Defendant to rectify defects within 30 days of receiving written notice. This is not a discretionary timeline but a contractual obligation with consequences for non-compliance. 94. If the Defendant fails to rectify within 30 days, Clause 25(2) of the SPA is triggered, entitling the Plaintiffs to appoint their own contractor and claim the costs from the Developer. To this Court’s understanding, the 30 days rectification period reflects the legislative intent that purchasers should not be left waiting indefinitely for defects to be rectified. The DLP mechanism is designed to ensure prompt remediation of defects so that purchasers can enjoy their homes. 95. From this Court’s observation, the evidence establishes the following timeline – 20. EVENT 6.2014 Valid written notice given by the Plaintiffs. 20.7.2014 Deadline for rectification under Clause 25(1) of the SPA. June 2014 First rectification attempt commenced. The Defendant's original contractor hacked almost all floor tiles, then abandoned the work incomplete. The house was left in a worse condition than before. 3.8.2014 First joint inspection conducted. It was conducted more than 30 days after the notice. 6.10.2014 SD5 issued a quotation. The quotation was issued more than 3 months after the notice. 6-14.10.2014 commenced second rectification. However, the rectification worked was commenced for only 8 days before being stopped. 96. The Defendant further argues that the Plaintiffs cannot approbate and reprobate. Relying on the Court of Appeal decision in Ooi Joo Aik v. Tan Suan Sim [2025] MLRAU 318 and PB Securities Sdn Bhd v. Autoways Holdings Bhd [2000] 1 MLRA 690, the Defendant contends that the Plaintiffs take inconsistent positions as follows – (a) claiming VP was only delivered on 12.02.2015 for LAD purposes; while (b) relying on the 20.06.2014 email as valid defect notice under Clause 25(1) of the SPA. 97. The Defendant argues that since Clause 25 of the SPA only operates after VP is delivered, the 20.06.2014 notice was premature if VP was on 12.02.2015. 98. This Court does not accept this argument as there is no inconsistency. The 20.06.2014 email was sent after the Plaintiffs received access to the Property following the VP Notice dated 17.06.2014. The Plaintiffs inspected the Property and identified defects. The defect notice requirement under Clause 25(1) of the SPA does not require VP to have been "validly" delivered in the strict legal sense under Clause 23(1) of the SPA. The provision simply requires the Purchaser to have access to the Property and to notify defects discovered. 99. To this Court observation, the Plaintiffs' position is consistent – (a) the Property was accessible from June 2014 following the VP Notice; (b) defects were notified on 20.06.2014 upon inspection; and (c) valid VP in the legal sense under Clause 23(1) of the SPA was only effected on 12.02.2015 when the parties reached an impasse. 100. Hence, the two positions operate on different planes and are not mutually exclusive. 101. To this Court’s mind, the most critical question is whether the first rectification attempt in June 2014 constituted compliance with Clause 25(1) of the SPA. 102. This Court finds that the Defendant did not comply with Clause 25(1) of the SPA for the following reasons – (a) The first rectification was not completed within 30 days 103. The evidence shows that the Defendant did commence rectification works in June 2014. The contractor hacked almost all the floor tiles and then abandoned the work. Accordingly, the works were not completed within 30 days. 104. It is pertinent to understand that the commencement of works must be differentiated from the completion of rectification. Clause 25(1) of the SPA requires the Vendor to "make good the defects" within 30 days. To my understanding, this means actual rectification, not merely starting work. (b) The first unfinished rectification left the house in a worse condition 105. SP1 testified that – "Seterusnya pihak Defendan telah melantik kontraktor yang saya dan isteri kenali sebagai Mr. Micheal dan Muthu yang telah membongkar semua jubin-jubin dan ingin menggantikannya dengan jubin-jubin yang baru dan kontraktor tersebut telah memecahkan banyak bahagian dalam rumah dengan tujuan menggantikan kecacatan yang ada". 106. In essence, SP1's evidence is that the Defendant's contractors dismantled almost all the tiles and broke many parts of the house, but then abandoned the work. 107. Based on SP1 evidence, after the first rectification attempt, the house was left in a worse condition than before. The contractor had hacked almost all the tiles and then abandoned the work. In my view, this does not constitute compliance with Clause 25(1) of the SPA. A rectification that leaves the property in a worse state is no rectification at all. (c) The second rectification only commenced in October 2014 108. The second rectification attempt by SD5 only commenced on 6.10.2014, i.e. more than 3 months after the 20.6.2014 notice. By this time, the 30-day period under Clause 25(1) of the SPA had long expired. 109. SD5 testified that he worked for only 8 days (from 6 to 14 October 2014) before being stopped. In my view, even if this work had been permitted to continue, it would not have cured the Defendant's prior breach of Clause 25(1) of the SPA, which required rectification by 20.7.2014. (d) The Defendant's own conduct acknowledges the failure 110. To this Court’s mind, the following evidence is sufficient to prove that the Defendant's conduct demonstrates an acknowledgment that rectification was not completed – (a) the Defendant appointed a second contractor in October 2014. Had the first rectification been complete, this appointment is unnecessary; (b) the Defendant proposed a third rectification period from 2.2.2015 to 4.3.2015. This further demonstrates that rectification remained incomplete; and (c) the Defendant's letter dated 12.2.2015 confirms that the matter remained unresolved. 111. The Defendant argues that it made multiple good faith attempts to rectify the defects and that it was the Plaintiffs who obstructed the rectification works by refusing access to the contractor in October 2014. On this issue, this Court will address it under Issue 5. In the present matter, the question is whether the Defendant rectified the defects within 30 days of the 20.6.2014 notice. 112. Based on the evidence analysed above, the answer is clearly NO. By 20.7.2014, the first rectification was incomplete and had failed. The house was left in a worse condition. Therefore, this Court is of the opinion that the Defendant cannot rely on subsequent attempts to argue on the compliance with Clause 25(1) of the SPA. 113. For the reasons above, this Court finds that the Defendant failed to comply with Clause 25(1) of the SPA. 114. The consequence of this failure is that Clause 25(2) of the SPA was triggered, entitling the Plaintiffs to appoint their own contractor and claim the costs from the Defendant. Whether the Plaintiffs properly exercised this right, or whether their refusal of further rectification was reasonable, is the subject of Issue 5. ISSUE 5 : Whether The Plaintiffs' Refusal of Further Rectification Was Reasonable or A Breach of Clause 25(2) of The SPA? 115. In this Court considered view, this is the central and most contested issue in this case. The Defendant contends that the Plaintiffs obstructed the Defendant’s rectification works, thereby forfeiting their right to claim repair costs under Clause 25 of the SPA. On the other hand, the Plaintiffs contend that their refusal was reasonable given legitimate safety concerns. 116. At the oral submission on 8.12.2025, this Court directed parties to file further submissions specifically addressing the following question – "Sama ada kerja-kerja pembaikan tidak dibenarkan oleh Plaintif-Plaintif pada asasnya atas alasan bahawa pembaikan tersebut tidak selamat, contohnya pembaikan bagi kabel wayar elektrik di dalam lantai bilik utama yang dibuat pada laluan yang sama". 117. Both parties filed their additional submissions on 22.12.2025 (Enclosures 101 and 103). 118. The Defendant's position, as set out in Enclosures 84, 95 and 101 is as follows – (a) the Plaintiffs stopped SD5 from continuing rectification works in October 2014; (b) the Plaintiffs' letter dated 31.1.2015 expressly stated that "no further work should be done as Johor Land Berhad is incapable of doing it"; (c) the Plaintiffs refused the Defendant's proposal for a third rectification period from 2.2.2015 to 4.3.2015; (d) the safety concern was never raised contemporaneously in any correspondence. The Defendant contends that it is an "afterthought" that only emerged during trial; (e) SD5 was working on the same defects listed in the Plaintiffs' own quotation. Hence, the defect lists from SD5 (6.10.2014), Plaintiffs' quotation (7.12.2014) and Statement of Claim are consistent; (f) SP4 conceded during cross-examination that the electrical defect "could be rectified if the rectification works continue and finish"; and (g) under Clause 25(2) of the SPA, the Plaintiffs were required to give 14 days' notice and allow the Defendant an opportunity to rectify. However, the Plaintiffs’ blanket refusal breached this requirement. 119. The Plaintiffs' position, as set out in Enclosures 88 and 103, is as follows – (a) the Plaintiffs did not refuse rectification per se. They refused a proposed rectification method that would have concealed. Rather than correct, a serious and non-compliant of the electrical defect; (b) during the second rectification, the Plaintiffs discovered that the contractor intended to cover the exposed wiring with cement rather than re-route it through the wall as required by ST specifications; (c) SP1’s evidence on the reason why he stopped the contractor are as follows – "wayar yang tidak dibalut dengan selamat hendak dikambus dan ditutupi dengan simen" (d) the photographs at pages 168-170 and 173 of Enclosure 22 show exposed wiring on the floor and cement work being prepared to cover it. Those photographs corroborated SP1's testimony; (e) SP4 confirmed that the wiring on the floor was non-compliant with ST specifications and posed a genuine safety risk. Hence, merely covering it with cement would not make it safe; (f) SD5 admitted he had no method statement for how the electrical defect would be rectified; (g) the significant cost disparity between SD5’s quotation (RM68,500.00 for all works) and the electrical rectification alone (RM20,000.00 based on SP4, or RM26,058.00 based on SD2’s quotation) suggests that proper rewiring was never contemplated in SD5’s scope; and (h) the refusal was based on legitimate safety concerns and loss of confidence in the Defendant's ability to rectify properly after two failed attempts. 120. Having considered the evidence and submissions, this Court makes the following observations – (a) SP1's Evidence on Safety Concern 121. SP1 testified in his witness statement that he had stopped the attempt to buried and covered with the cement the unsafely covered wiring on the floor. Further, during re-examination, SP1 further testified the following – "Gambar 168, 169 dan 170 di situ kita boleh lihat gambar yang wayar itu dibawah, tidak ada conduit dan pemasangan itu adalah salah kerana pihak Johor Land sendiri kata, wayar seharusnya jalan di atas bukan di lantai dan wayar itu tembus ke bilik air. Membahayakan". 122. In summary, SP1's evidence in his witness statement is corroborated by the photographs at pages 168-170 and 173 of Enclosure 22, which show exposed wiring on the floor and cement work being applied to cover it. (b) SP4's Expert Evidence 123. Based on the evidence, SP4, an electrical engineer with 32 years of experience, confirmed the following – (i) the wiring on the floor did not comply with ST specifications; (ii) the cable was undersized, non-waterproof and improperly terminated; (iii) this posed a genuine risk of electric shock; and (iv) merely covering the wiring with cement would not make it safe or compliant. 124. When asked during cross-examination whether the defect "could be rectified if the rectification works continue and finish", SP4 answered "Yes". 125. However, in this Court’s view, this must be understood in context that SP4 was referring to proper rectification (i.e., rewiring through the wall) and not the concealment method that the Plaintiffs observed. (c) SD5's Evidence 126. SD5 testified that – (i) item 39 of his defect list was "Electrical - terdapat cable dalam lantai bilik utama"; (ii) he left the existing wiring exposed for electrical workers to enter and do rewiring; (iii) he worked for only 8 days (6-14 October 2014) before being stopped; and (iv) he had no method statement for how the electrical defect would be rectified. 127. In this Court considered view, the absence of any method statement is significant. SD5 could not explain to the Court how the electrical defect would be properly rectified. Hence, this supports the Plaintiffs' concern that there was no proper plan for rewiring and it is only concealment. (d) The Photographs 128. This Court is also of the view that the photographs at pages 168-170 and 173 of Enclosure 22 are critical evidence. They show – (i) exposed electrical wiring laid on the floor; (ii) the wiring without proper conduit; and (iii) cement work being prepared to cover the exposed wiring. 129. These photographs corroborate SP1's testimony that the contractor intended to cover the wiring with cement rather than re-route it through the wall. (e) The Letter Dated 31.1.2015 130. This Court is also observed that the Plaintiffs' letter dated 31.1.2015 stated – "We see no further work should be done as Johor Land Berhad is incapable of doing it". 131. On this, the Defendant argues that this letter does not mention safety as a reason for refusal. However, this Court notes that this letter was written after – (i) the first uncompleted rectification attempt that left the house in a worse condition; (ii) the second rectification attempt that exposed the latent electrical defect; and (iii) the Plaintiffs' discovery that the contractor intended to conceal rather than properly rectify the wiring defect. 132. In this Court considered view, the phrase "incapable of doing it" must be understood in this context. The Plaintiffs had lost confidence in the Defendant's ability to carry out proper rectification and it was not merely any rectification, but rectification that would make the house safe for habitation. (f) The Cost Disparity 133. The Defendant's quotation from SD5 was RM68,500.00 for all 50 defect items. However, to the contrary, this Court takes note of the following– (i) SP4 estimated RM20,000.00 for electrical rectification alone; (ii) IDLAKAR quoted RM26,058.00 for electrical works; and (iii) Foxvale quoted RM65,000.00 for electrical and mechanical works. 134. To this Court’s mind, the significant disparity between SD5’s total quotation (RM68,500.00 for everything) and the cost of electrical rectification alone (RM20,000.00-RM26,058.00) suggests that SD5’s scope did not contemplate proper rewiring. This supports the Plaintiffs' contention that the proposed rectification would have been inadequate. 135. On the other hand, the Defendant argues that the Plaintiffs' safety concern is an "afterthought" because it was not expressly raised in contemporaneous correspondence. This Court does not accept this argument for the following reasons – (a) SP1's evidence is that he physically stopped the contractor when he observed the unsafe rectification method. To this Court’s mind, this is contemporaneous action, even if not documented in writing; (b) the photographs at pages 168-170 and 173 corroborate SP1's account. They show cement being prepared to cover exposed wiring; (c) the letter dated 31.1.2015, while not expressly mentioning "safety", states that the Defendant is "incapable" of doing the work. To this Court’s mind, this is sufficient to reflect the Plaintiffs' loss of confidence after observing the improper rectification method; and (d) it is unreasonable to expect the Plaintiffs, who are not construction professionals and mere laypersons, to articulate their concerns in precise technical or legal language. To this Court, the substance of their concern that the Defendant was not rectifying properly was clear. 136. The Defendant also relies on SP4's concession that the defect "could be rectified if the rectification works continue and finish". However, to this Court’s mind, this concession must be read in the following context – (a) SP4 was referring to proper rectification, i.e. rewiring through the wall in compliance with ST specifications; (b) SP4 was not endorsing the concealment method that the Plaintiffs observed; and (c) SP4's own evidence is that merely covering the wiring with cement would not make it safe. 137. As for the Defendant's argument that the Plaintiffs breached Clause 25(2) of the SPA by refusing to allow rectification, this Court finds that– (a) Clause 25(2) of the SPA entitles the Purchaser to appoint their own contractor if the Developer fails to rectify within 30 days; (b) as found in Issue 4, the Defendant had already failed to rectify within 30 days; (c) Clause 25(2) of the SPA requires the Purchaser to give 14 days' notice before commencing their own works. It does not require the Purchaser to allow unlimited rectification attempts; (d) the Defendant's proposal dated 27.1.2015 was for rectification from 2.2.2015 to 4.3.2015, i.e a period of 30 days, exceeding the 14-day window contemplated by Clause 25(2) of the SPA; and (e) the duty to mitigate does not require the aggrieved party to act unreasonably. As explained by the Federal Court in Kabatasan Timber Extraction Co v Chong Fah Shing [1969] 2 MLJ 6, a party who has suffered loss from a breach of contract must take reasonable steps to mitigate the damage, but he cannot be expected to behave unreasonably. The Federal Court, citing Payzu Ltd v Saunders [1919] 2 KB 581, further explained that the question of what is reasonable is a question of fact in each case. Applying this principle in the present case, in this Court’s view, allowing a contractor to conceal a safety hazard rather than properly rectify it would not be reasonable mitigation. 138. In Lee Tai Hoo & Anor v Lee Swee Keat & Anor [1987] 1 MLJ 304, Edgar Joseph Jr. J. (as he then was), applying Dodd Properties (Kent) v Canterbury City Council [1980] 1 WLR 433, held that a Plaintiff is justified in postponing repairs or reinstatement until after judgment where liability is disputed. His Lordship further observed that the duty to mitigate does not arise if mitigation would cause the plaintiff financial detriment and that the duty to mitigate does not operate to protect a Defendant from inflationary increases in damages. Based on the Editorial Note at page 304, the decision was upheld by the Supreme Court. 139. Applying these principles, this Court finds that the Plaintiffs were not required to allow further rectification attempts that they reasonably believed would be inadequate or unsafe. Their refusal was based on– (a) two failed rectification attempts; (b) the discovery of a serious latent defect (wiring on floor); (c) the observation that the contractor intended to conceal rather than properly rectify the defect; and (d) the absence of any method statement demonstrating how proper rectification would be achieved. 140. The Defendant also relies on the Court of Appeal decision in Devan & Associates v. TSR Bina Sdn Bhd [2018] 6 MLRA 98 to argue that the Plaintiffs' 10-year delay constitutes novus actus interveniens, thereby breaking the chain of causation. This Court does not accept this argument. As this Court has found above, the Plaintiffs' refusal to allow further rectification was reasonable and based on legitimate safety concerns. A plaintiff who acts reasonably in response to a defendant's breach cannot be said to have committed an intervening act that breaks the chain of causation. From my observation, the Plaintiffs did not abandon the Property out of caprice. They refused to permit unsafe rectification and thereafter reasonably deferred repairs while liability remained disputed. 141. Returning to the specific question posed by this Court at the oral submission on 8.12.2025, as mentioned in paragraph 98 above, my answer is positive. Based on the evidence analysed above, this Court finds that the Plaintiffs disallowed the repair works essentially on the ground that the repairs were unsafe. Specifically – (a) SP1 stopped the contractor when he observed that the exposed electrical wiring on the floor was going to be buried and covered with cement rather than properly re-routed through the wall; (b) this concern was legitimate in which SP4 confirmed that the wiring was non-compliant with ST specifications and posed a genuine safety risk; (c) merely covering the wiring with cement on the same route would not have made it safe or compliant; and (d) SD5 had no method statement demonstrating how the electrical defect would be properly rectified. 142. For the reasons above, this Court finds that – (a) the Plaintiffs' refusal of further rectification was reasonable; (b) the refusal was based on legitimate safety concerns, supported by – (i) SP1's contemporaneous observation of the unsafe rectification method; (ii) the photographs showing cement being prepared to cover exposed wiring; (iii) SP4's expert evidence that the wiring was non-compliant and posed a safety risk; (iv) SD5's admission that he had no method statement; and (v) the cost disparity suggesting inadequate scope; (c) the Plaintiffs' letter dated 31.1.2015, while not expressly mentioning "safety", reflects their loss of confidence after observing improper rectification methods; (d) the Plaintiffs did not breach Clause 25(2) of the SPA when in the first place the Defendant had already failed to comply with Clause 25(1) of the SPA. Therefore, the Plaintiffs were entitled to refuse further inadequate rectification attempts; and (e) the Plaintiffs' refusal does not bar their claim for repair costs under Clause 25(2) of the SPA. ISSUE 6 : Whether The Defendant Is Liable In Negligence? 143. The Plaintiffs claim that, in addition to breach of contract, the Defendant is also liable in the tort of negligence for failing to construct the Property with reasonable care and skill. 144. The Plaintiffs' position is that the Defendant owed them a duty of care to – (a) construct the Property in accordance with approved plans and specifications; (b) use proper materials and workmanship; and (c) ensure the Property was safe and fit for habitation. 145. The Plaintiffs contend that the Defendant breached this duty of care by – (a) constructing the Property with defective electrical wiring that did not comply with ST’s specifications; (b) using substandard materials (undersized, non-waterproof cables); (c) failing to properly supervise the construction; and (d) delivering a Property that was unsafe for occupation. 146. Accordingly, the Plaintiffs claim damages for anxiety, distress and inconvenience caused by the Defendant's negligence. 147. The Defendant's position, is that – (a) the relationship between the parties is purely contractual. Therefore, there is no concurrent duty of care in tort; (b) the Plaintiffs' claim is essentially for defective workmanship, which sounds in contract and not claim on tort; (c) any duty of care is already subsumed within the contractual obligations under the SPA; and (d) damages for anxiety and distress are not recoverable in a claim for defective construction. 148. To this Court’s understanding, the question of whether a claim in negligence can be maintained concurrently with a claim in contract for defective construction has been considered by the courts. 149. In Malaysia, the Court of Appeal in Arab-Malaysian Finance Bhd v Steven Phoa Cheng Loon & Ors and other appeals [2003] 1 MLJ 567 citing Murphy v Brentwood District Council [1990] 2 All ER 908, held that the critical question is whether the scope of the duty of care in the circumstances of the case embraces the damage claimed, whether it be pure economic loss or injury to property. This principle recognises that loss of any type or description is recoverable in tort, provided that it is reasonably foreseeable. 150. The position in Malaysia is that concurrent liability in contact and tort is recognized. In Teh Khem On & Anor v Yeoh & Wu Development Sdn Bhd & Ors [1995] 2 MLJ 663, the Court held that a developer owes a duty of care to construct the property safely and that this duty exists independently of the contractual obligations under the SPA. 151. In Arab-Malaysian Finance Bhd, the Court of Appeal, in the context of the Highland Towers tragedy, recognised that a duty of care may arise in tort independent of any contractual relationship (see : Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283). While that case concerned physical injury and death, the principle that tortious duties may exist alongside contractual obligations is well established. 152. This Court has also observed that more directly relevant to defective construction cases is the Federal Court decision in Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389, where it was held that developers and local authorities owe a duty of care to ensure that buildings are constructed safely. The Caparo three-part test was applied to determine whether a duty of care existed. 153. In support of their negligence claim, the Plaintiffs relied on the three-part test in Caparo Industries plc v Dickman [1990] 2 AC 605, namely – (a) foreseeability of damage; (b) proximity of relationship; and (c) whether it is fair, just and reasonable to impose a duty of care. 154. The Plaintiffs submit that all three limbs are satisfied in the developer-purchaser relationship. 155. This Court takes note on the Plaintiff’s direct reliance to the Caparo Industries Plc test. On this point, this Court refer to the Federal Court in Lok Kok Beng & 49 Ors v Loh Chiak Eong & Anor [2015] 4 MLJ 734 which comprehensively addressed the scope of duty of care owed by professionals in construction projects as follows – "In the absence of any contract, an architect rendering his professional service in a construction project can be made liable for negligence if the damage and injury suffered by the purchasers was caused by his act or omission within the scope of duty of care..." 156. The Federal Court in Lok Kok Beng further affirmed that the threshold test for determining the existence of a duty of care is foreseeability. The court stated – "By foreseeability, liability for a consequence is imposed and judged by the standard of the reasonable man that he ought to have foreseen it." 157. The court further held that in addition to foreseeability, there must exist a relationship of proximity between the parties, and the situation must be one in which the court considers it fair, just and reasonable to impose a duty of care. This is the threefold test recognised in Caparo Industries plc. 158. Applying the Caparo Industries plc test to the present case, this Court’s finding on the threefold test are as follows – (a) Foreseeability – 159. It was clearly foreseeable that defective construction, particularly defective electrical wiring, would cause damage to the purchasers. The risk of electric shock from improperly installed wiring on the floor, using undersized and non-waterproof cables, was an obvious and foreseeable harm. Unlike the situation in Lok Kok Beng where the architect could not have foreseen liability arising from amendments to the layout plan (which was within the developer's scope), in the present case, the construction of the Property with proper electrical wiring was squarely within the Defendant's scope of work as developer; (b) Proximity – 160. The relationship between the Defendant as developer and the Plaintiffs as purchasers is sufficiently proximate. The Defendant constructed the Property specifically for sale to the Plaintiffs. The Plaintiffs relied entirely on the Defendant's skill and expertise in constructing a safe and habitable home. This is distinguishable from Lok Kok Beng where the architects had no direct relationship with the purchasers and were merely agents of the developer. (c) Fair, just and reasonable – 161. In the context of housing development, where purchasers place significant trust and financial investment in developers, it is fair, just and reasonable to impose a duty of care. This is consistent with the social legislation character of Act 118, as recognised in Sentul Raya Sdn Bhd. 162. Accordingly, this Court is satisfied that the Defendant owed the Plaintiffs a duty of care in tort to construct the Property safely and in accordance with approved specifications. Breach of Duty 163. In the present case, this Court has already made findings under Issues 1 to 5. 164. These same facts, which constitute breach of contract, also establish breach of the duty of care in tort. The standard of care expected of a housing developer is to construct properties in accordance with approved plans, using proper materials and workmanship and ensuring compliance with relevant safety standards. The Defendant failed to meet this standard. 165. This Court therefore finds that the Defendant breached the duty of care owed to the Plaintiffs. 166. Further, the question is whether the Plaintiffs can recover additional damages in tort beyond what is recoverable in contract. 167. The Federal Court in Lok Kok Beng addressed this issue directly. It held – "There can be no action against the architect if the remedy asked for is specifically provided for in the contract. Otherwise, it has the effect of rewriting the contractual terms. Such claims must be dismissed on grounds of policy. Nevertheless, we must reiterate that a claim for negligence must be brought within the scope of duty of care. The recoverability of claims for pure economic loss in negligence cases is dependent on the facts of individual cases". 168. The Federal Court further held that pure economic loss is recoverable in Malaysia "under limited situations" and that the recoverability of such claims is "dependent on the facts of individual cases". 169. Applying the above principle and having considered the evidence and submissions, the following considerations are relevant – (a) the Plaintiffs' primary claim is for breach of contract. The contractual remedies under the SPA, i.e., LAD, repair costs, and damages for breach, to this Court’s mind, are comprehensive and designed to compensate purchasers for the types of losses claimed here; (b) the losses claimed by the Plaintiffs, namely repair costs, LAD, loss of use, and consequential expenses, are all recoverable under the contractual cause of action. The tort claim does not open any additional head of damage that would otherwise be barred in contract; (c) the claim for anxiety and distress arising from defective construction is not traditionally recoverable in contract for breach of a commercial contract. However, in contracts where the very purpose is to provide peace of mind or enjoyment, such damages may be recoverable (see : Farley v Skinner [2001] UKHL 49); and (d) in housing contracts, the purchaser's quiet enjoyment of the property is a significant contractual expectation. The House of Lords in Farley v Skinner relaxed the stricter "very object" test in Watts v Morrow [1991] 1 WLR 1421, holding that it suffices if providing peace of mind was an important object of the contract (see : Tenaga Nasional Bhd v Big Man Management Sdn Bhd [2024] 2 MLJ 652). 170. The evidence of SP1 and the Second Plaintiff does establish that the Plaintiffs have suffered distress and inconvenience. They have been unable to occupy their home for more than 10 years, have had to continue residing in Singapore instead of moving to their purchased property in Johor Bahru and have endured prolonged litigation. 171. However, this Court is of the view that such damages for anxiety and distress are more appropriately considered under the contractual claim, given that a contract to purchase a home carries with it an expectation of peace of mind and enjoyment. This is consistent with the approach in Farley v Skinner as acknowledged in Tenaga Nasional Bhd. Policy Considerations 172. This Court is mindful of the policy considerations articulated by the Federal Court in Lok Kok Beng as follows – "We are also in agreement with the submissions of counsel for the respondents that it would also be against public policy to impose on architects a duty to deliver vacant possession of buildings within the developer's contractual period. In our view, this would only serve to compromise or even impede their professional duty in ensuring that the building laws are observed and that the structure of the building is safe". 173. To this Court’s mind, in the present case, however, the policy considerations operate differently. Unlike the architect in Lok Kok Beng who was not responsible for the developer's contractual obligations, the Defendant here is the developer itself. The Defendant assumed responsibility for constructing the Property safely and delivering it fit for habitation. The imposition of a duty of care on the Defendant does not compromise any professional duty. Rather, it reinforces the Defendant's obligation to construct housing in accordance with safety standards. 174. Nevertheless, this Court is conscious that where comprehensive contractual remedies exist, the court should be slow to allow a concurrent tortious claim to circumvent or enhance those remedies. As the Federal Court held in Lok Kok Beng, allowing such claims would have "the effect of rewriting the contractual terms". 175. For the reasons stated above, this Court finds that – (a) the Defendant owed the Plaintiffs a duty of care in tort to construct the Property safely and in accordance with approved specifications. This duty exists independently of the contract; (b) the Defendant breached this duty of care by constructing the Property with defective electrical wiring that posed a genuine safety risk and by failing to ensure the Property was fit for habitation; (c) however, the Plaintiffs' recoverable damages are not increased by the concurrent claim in tort. The contractual remedies under the SPA are adequate to compensate the Plaintiffs for their losses. To hold otherwise would, in the words of the Federal Court in Lok Kok Beng, have "the effect of rewriting the contractual terms"; and (d) the claim for damages for anxiety and distress shall be considered under the assessment of damages, applying the principles in Farley v Skinner and recognising that a contract for the purchase of a home includes an expectation of peace of mind and enjoyment. 176. In practical terms, the finding of negligence does not add to the Plaintiffs' recovery beyond what is already available under the contractual claims. The Defendant's liability is established under both contract and tort, but the quantum of damages shall be assessed based on the contractual framework and applicable principles. 177. Issue 6 is therefore answered as follows : The Defendant is liable in negligence, but this does not increase the Plaintiffs' recoverable damages beyond what is available under the contractual claim. Assessment of Damages 178. Having found the Defendant liable for breach of contract and negligence, this Court now turns to assess the damages to which the Plaintiffs are entitled. 179. The Plaintiffs claim for RM 1,793,092.00 being special, general, aggravated and exemplary damages as stated in detail in paragraph 9 above. 180. The Defendant's position for the special and general damages is as follows – (a) LAD of RM22,241.01 is admitted for 129 days delay (from 08.02.2014 to 17.06.2014); (b) repair costs should be disallowed because the Plaintiffs refused to allow rectification, alternatively limited to RM68,500.00 (Mohalims quotation); and (c) loss of rental income is too remote and not a term of the SPA. 181. As to the aggravated and exemplary damages, Defendant stand is the said damages are not recoverable for breach of contract. (a) Liquidated Ascertained Damages (LAD) 182. Clause 22(2) of the SPA provides – "(2) Sekiranya Penjual gagal menyerahkan pemilikan kosong Bangunan tersebut mengikut cara yang dinyatakan dalam fasal 23 dalam tempoh yang dinyatakan dalam subfasal (1), Penjual adalah bertanggungan membayar kepada pembeli ganti rugi jumlah tertentu yang dikira dari hari ke hari pada kadar sepuluh peratus (10%) setahun daripada harta beli dari tarikh luput penyerahan pemilikan kosong dalam subfasal (1) hingga tarikh Pembeli mengambil pemilikan kosong Bangunan tersebut….." 183. The key facts relevant to LAD are – (a) Purchase Price RM629,300.00 (b) SPA Date 09.02.2012 (c) VP Due Date 08.02.2014 (24 months from SPA) (d) Rate 10% per annum 184. However, the Plaintiffs claim LAD until 12.02.2015, which they say is the date VP was delivered. The Defendant contends that VP was deemed taken on 01.07.2014 (14 days after the Defendant's notice dated 17.06.2014 was deemed received). 185. As this Court has found under Issue 1, the Defendant failed to deliver valid vacant possession in accordance with Clause 23(1) of the SPA because the Property was not fit for occupation and the CCC cannot be treated as conclusive in the circumstances of this case. 186. However, the LAD relief claimed by the Plaintiffs is pleaded and quantified up to 12.02.2015, which they advance as the operative date for calculation. In keeping with the principle that the Court grants relief within the boundaries of the case pleaded and consistent with my clarification under Issue 1 that the adoption of 12.02.2015 is a proxy for quantification rather than a validation of delivery of vacant possession, this Court adopts 12.02.2015 solely for the purpose of computing the LAD sum in this judgment. Accordingly, the LAD period is from 08.02.2014 to 12.02.2015, i.e. 369 days. 187. Therefore, the LAD calculation is as follows – RM629,300.00 X 10% X 369/365 = RM63,594.52 188. This Court noted that there is a slight discrepancy in the calculation of the Plaintiff’s claim which resulted to the Plaintiffs claim for RM63,792.14. However, based on this Court calculation above, this Court awards LAD in the sum of RM63,594.52. (b) Repair/Rectification Costs 189. The Plaintiffs claim RM339,700.00 for repair costs based on the IDLAKAR quotation dated 27.05.2025. 190. It was objected by the Defendant on the ground that the Plaintiffs refused to allow rectification in breach of Clause 25(2) of the SPA. Alternatively, the Defendant submitted that the repair costs should be limited to RM68,500.00 based on the SD5’s quotation dated 06.10.2014. 191. This Court has already found in Issue 5 that the Plaintiffs' refusal of further rectification was reasonable and did not bar their claim for repair costs under Clause 25(2) of the SPA. 192. For the purpose of the calculation, the following quotations are in evidence – NO. QUOTATION SCOPE (a) SD5’s quotation (Mohalims 06. Enterprise) 10.2014 68,500.00 All 50 defect items (b) Plaintiffs' own quotation 07.12.2014 278,000.001 12 categories of works (c) Foxvale Group 28.02.2025 65,000.00 Electrical & mechanical (d) SD2’s quotation (IDLAKAR 27. Design) 05.2025 339,700.00 Comprehensive repair 193. It's pertinent to note that SP4 estimated RM20,000.00 for electrical rectification alone and based on IDLAKAR quotation RM 26,058.00 from RM339,700.00 is solely for electrical defects. 194. In Dodd Properties (Kent) Ltd the English Court of Appeal held that damages may be assessed at the date of repair rather than the date of breach, particularly where the plaintiff has acted reasonably in deferring repairs. This principle was applied in Malaysia in Lee Tai Hoo & Anor and was upheld by the Supreme Court. 195. In the present case – (a) the Defendant disputed liability throughout; (b) the Plaintiffs reasonably refused further rectification attempts after discovering the unsafe rectification method; (c) the defects have remained unrectified for over 10 years; and (d) the Plaintiffs could not reasonably have been expected to incur the cost of repairs while liability was disputed. 196. Accordingly, this Court finds that the Plaintiffs are entitled to have damages assessed at the current cost of repair, not the 2014 cost. 197. According to the SD2’s quotation dated 27.05.2025, the sum of RM339,700.00 is the most comprehensive and current assessment of repair costs. It was prepared by a qualified contractor after inspection of the Property. However, this Court must consider whether this amount is reasonable. This is because there is a significant increase from RM68,500.00 (in 2014) to RM339,700.00 (in 2025), which requires scrutiny. 198. The Defendant argues that the increase is due to the Plaintiffs' own delay in carrying out repairs. This Court does not accept this argument. As this Court has found – (a) the Defendant failed to rectify properly within 30 days; (b) the Defendant's two rectification attempts made the condition worse; (c) the Plaintiffs reasonably refused further rectification; and (d) the Plaintiffs were entitled to defer repairs pending resolution of the dispute. 199. In assessing whether RM339,700.00 is reasonable this Court is satisfied that the apparent increase from the 2014 figures is explained by the evidence on scope, condition and the passage of time, rather than any unreasonable delay attributable to the Plaintiffs. 200. First, the quotations in evidence are not like-for-like. The SD5 quotation of RM68,500.00 (06.10.2014) is not shown to cover comprehensive rectification to restore the Property to a habitable condition and in any event, the Defendant’s rectification attempts were unsuccessful and left the Property in a worse condition. 201. Secondly, the Plaintiffs’ own 2014 quotation (RM278,000.00) already demonstrates that substantial works, well beyond minor defects that were required even at that time. 202. Thirdly, the 2025 evidence supports that the defects were serious and involved safety-critical items. In particular, SP4 estimated RM20,000.00 for electrical rectification alone and the SD5’s quotation allocates RM26,058.00 specifically for electrical defects, which is broadly consistent in magnitude for safety rectification works. 203. Fourthly, this Court has already found that – (a) the Defendant disputed liability throughout; (b) the Plaintiffs reasonably refused further rectification after discovering the unsafe rectification method; (c) the defects remained unrectified for over 10 years; and (d) the Plaintiffs could not reasonably be expected to incur repair costs while liability was disputed. In these circumstances, it is appropriate to assess damages at the current cost of repair. 204. This Court also takes judicial notice of the DOSM CPI Inflation Calculation published by the Department of Statistics Malaysia. Based on the CPI Inflation Calculator which this Court accessed this morning at https://kalkulator.dosm.gov.my/cpi-calculator/, prices have increased by approximately 20-25% between October 2014 and May 2025. Applying this inflation rate to SD5's quotation of RM68,500.00 would yield approximately RM82,000.00-RM86,000.00 at 2025 prices. Even with this adjustment, SD5's quotation remains fundamentally inadequate when compared to the SD2’s quotation of RM339,700.00. This confirms that the substantial difference in costs is not merely attributable to inflation but to the expanded scope of works required for proper rectification, which includes ST-compliant rewiring, which was never contemplated in SD5's original quotation. Furthermore, the Plaintiffs' own quotation in December 2014 was RM278,000.00. Adjusting for inflation, this would be approximately RM333,000.00-RM348,000.00 at 2025 prices, that broadly consistent with the SD2’s quotation. 205. For these reasons, this Court accepts the SP2’s quotation dated 27.05.2025 as the most comprehensive and current assessment of the reasonable cost of rectification, and this Court awards RM339,700.00. 206. In reaching this conclusion, this Court also notes that – (a) SP4's evidence confirms that the electrical defects alone would cost RM20,000.00-RM26,058.00 to rectify properly; (b) the SP2’s quotation of RM68,500.00 did not contemplate proper rewiring (as evidenced by the cost disparity and the absence of a method statement); and (c) the 2025 quotations reflect the true cost of proper rectification, including rewiring through the walls in compliance with ST specifications. (c) Loss of Rental Income 207. The Plaintiffs claim RM394,240.00 for loss of rental income, calculated as follows – SGD2,000 X 64 months X RM3.08 (exchange rate) = RM394,240 208. The period claimed is from 12.02.2015 (VP date) to the date of trial. 209. The Defendant contends that – (a) loss of rental income is not a term of the SPA; (b) the loss is too remote; and (c) the Plaintiffs failed to prove their loss. 210. The general principle on damages for breach of contract is trite, The Federal Court in Chong Nge Wei & Ors v Kemajuan Masteron Sdn Bhd [2022] 3 MLJ 135, relying on Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, explained the fundamental principle on the measure of damages. The Federal Court also cited its earlier decision in Tan Sri Khoo Teck Puat & Anor v Plenitude Holdings Sdn Bhd [1994] 3 MLJ 777, which in turn cited Robinson v Harman (1848) 1 Exch 850 for the principle that damages for breach of contract should put the innocent party in the position they would have been in had the contract been performed. 211. The Federal Court in Selva Kumar a/l Murugiah v Thiagarajah a/l Retnasamy [1995] 1 MLJ 817, reaffirmed in Johor Coastal Development Sdn Bhd v Constrajaya Sdn Bhd [2009] 4 MLJ 445, held that damages must be proved in accordance with the settled principles in Hadley v Baxendale (1854) 9 Exch 341. Under these principles, losses are recoverable if they – (a) arise naturally from the breach; or (b) were reasonably within the contemplation of both parties at the time of contracting. 212. It is also pertinent to highlight that the Federal Court in Cubic Electronics Sdn Bhd (in liquidation) v Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15 departed from the strict requirement in Selva Kumar and Johor Coastal to prove actual loss for the purposes of enforcing a damages clause under Section 75 of the Contracts Act 1950. However, the Hadley v Baxendale principles on remoteness of damages remain applicable to claims for general damages such as loss of rental income. 213. Based to the abovesaid principle, this Court is of the view that Plaintiffs’ loss of rental income is recoverable in the present case for the following reasons – (a) the Plaintiffs purchased the Property as their intended home. It was reasonably foreseeable that if the Property was not fit for habitation, the Plaintiffs would need to continue renting elsewhere; (b) the Defendant knew or ought to have known that the Plaintiffs were Singapore citizens who intended to move to Johor Bahru upon completion; and (c) the loss of rental income (or loss of use) is a natural consequence of the Defendant's failure to deliver a habitable property. 214. However, this Court is not satisfied that the full claim of RM394,240.00 is justified based on the following reasons – (a) the exchange rate of SGD1 = RM3.08 is not substantiated by evidence; (b) the period of 64 months appears to extend beyond reasonable mitigation; and (c) there is limited evidence of the actual rental paid by the Plaintiffs. 215. In the circumstances, this Court awards a global sum for loss of use and rental, which this Court assesses at RM250,000.00. This considers – (a) the Plaintiffs' inability to occupy the Property for over 10 years; (b) the need for the Plaintiffs to maintain alternative accommodation; and (c) the principles of reasonableness and mitigation. 216. This Court also notes that this global award is materially lower than the Plaintiffs’ own pleaded quantification of RM394,240.00 for loss of rental income (SGD2,000.00 X 64 months), and also below the separate pleaded figure of RM360,000.00 advanced under “loss of use”. The sum of RM250,000.00 therefore reflects a moderated and fair assessment which accounts for the evidential gaps on exchange rate and precise monthly rental, as well as the need for reasonable mitigation, while recognising the prolonged deprivation of use of the Property. (d) General Damages 217. The Plaintiffs claim RM405,000.00 for general damages, comprising– NO. ITEM (a) House Insurance for 10 years RM25,000.00 (b) Property Tax RM12,000.00 (c) Consultant fee RM8,000.00 (d) Loss of use (since 2014 until 2025) RM360,000.00 218. At para 215 above, this Court has already awarded a global sum of RM250,000.00 for loss of use under the head of loss of rental income above. Accordingly, to avoid double recovery, this Court will not make a separate award for "loss of use". 219. As for the other items, the Court’s findings are as follows – (a) House Insurance (RM25,000.00) – This is not recoverable as the Plaintiffs have not proven that they actually incurred this expense, or that it was wasted as a result of the Defendant's breach; (b) Property Tax (RM12,000.00) – Similarly, this is not proven to be a loss flowing from the breach. Property tax would have been payable in any event; and (c) Consultant fee (RM8,000.00) – This is recoverable as a reasonable expense incurred in obtaining expert reports to assess the defects. This Court awards RM8,000.00. (e) Damages for Distress and Inconvenience 220. As this Court found in Issue 6, damages for anxiety and distress may be recoverable where the contract's purpose includes provision of peace of mind or enjoyment, such as a contract to purchase a home. 221. The evidence establishes that – (a) the Plaintiffs have been unable to occupy their home for more than 10 years; (b) they have endured two failed rectification attempts; (c) they discovered a serious latent defect (wiring on floor) that posed a genuine safety risk; (d) they have endured prolonged litigation; and (e) SP1 and the Second Plaintiff testified to the distress and inconvenience suffered. 222. In the circumstances, this Court awards the Plaintiffs RM30,000.00 for distress and inconvenience. (f) Aggravated and Exemplary Damages 223. The Plaintiffs claim RM591,360.00 for aggravated and exemplary damages, calculated at 25% of the compensatory damages claimed. 224. The Defendant contends that aggravated and exemplary damages are not recoverable for breach of contract. 225. The jurisprudence in aggravated and exemplary damages are many. In general, aggravated damages is compensatory in nature. They compensate for additional injury to the plaintiff's feelings caused by the manner in which the defendant committed the wrong (see : Sambaga Valli KR Ponnusamy v. Datuk Bandar Kuala Lumpur & Ors And Another Appeal [2018] 3 MLRA 488). 226. Comparatively, exemplary damages, on the other hand, are punitive in nature. They are designed to punish the defendant for outrageous conduct and to deter similar conduct in the future. 227. The general rule in Malaysia is that exemplary damages are not available for breach of contract. As established in Rookes v Barnard and others [1964] AC 1129 and affirmed by the Federal Court in Koperal Zainal bin Mohd Ali & Ors v Selvi a/p Narayan (joint administrator and dependant of Chandran a/l Perumal, deceased) & Anor [2021] 3 MLJ 365, exemplary damages are intended to punish and deter, and may only be awarded in limited categories – (a) oppressive, arbitrary or unconstitutional action by government servants; (b) conduct calculated to make a profit exceeding compensation; and (c) where expressly authorised by statute. (see also : Big Junkyard Sdn Bhd & Anor v. Chan Kah Wai [2022] MLRHU 2416) 228. The present case does not fall within any of these categories. The Defendant's conduct, while unsatisfactory, does not amount to the kind of outrageous or cynical conduct that would justify exemplary damages. 229. As for aggravated damages, while they are compensatory in nature, they are typically awarded in tort cases involving injury to dignity or feelings, such as defamation, assault or false imprisonment. In the context of a housing development dispute, this Court does not consider aggravated damages to be appropriate. 230. Accordingly, this Court declines to award aggravated or exemplary damages. Court’s Decision 231. Based on the above, on the balance of probabilities, this Court’s findings on the issue raised for determination are as follows – (a) Issue 1 : When was Vacant Possession validly delivered? The Defendant breached Clause 23(1) of the SPA by failing to deliver valid vacant possession. The CCC issued on 13.04.2014 was defective because the electrical installation did not comply with the approved plans and ST specifications. Accordingly, the VP purportedly delivered was not valid VP within the meaning of Clause 23(1) of the SPA. (b) Issue 2 : Whether the Defendant breached Clause 13 of the SPA? This Court answers it in the affirmative. The Defendant breached Clause 13 of the SPA by failing to construct the Property in a good and workmanlike manner. The electrical wiring was laid on the floor instead of through the walls, using undersized cables (2.5mm instead of 4mm), non-waterproof cables and improper terminations, all in violation of Suruhanjaya Tenaga specifications. (c) Issue 3 : Whether the 20.6.2014 email constituted valid written notice under Clause 25(1) of the SPA? This Court answers it in the affirmative. This Court finds that the email dated 20.6.2014 constituted valid written notice under Clause 25(1) of the SPA. This finding is supported by – (i) SD1's concession during re-examination that the email was valid notice; (ii) the fact that the email was in writing and contained photographs identifying the defects; (iii) the Defendant's own conduct in treating the email as a defect complaint and commencing rectification; and (iv) the protective purpose of Act 113, which requires a purposive rather than technical interpretation of the SPA. (d) Issue 4 : Whether the Defendant complied with Clause 25(1) of the SPA to rectify within 30 days? This Court answers it in the negative. The Defendant breached Clause 25(1) of the SPA by failing to rectify the defects within 30 days of receiving the Plaintiffs' defect list. The Defendant's two rectification attempts were unsuccessful and, in fact, made the condition of the Property worse. (e) Issue 5 : Whether the Plaintiffs' refusal of further rectification was reasonable? This Court answers it in the affirmative. The Plaintiffs' refusal of further rectification was reasonable and based on legitimate safety concerns. The Plaintiffs discovered that the contractor intended to conceal the defective wiring by covering it with cement rather than properly re-routing it through the walls. SP4's expert evidence confirmed that this would not make the wiring safe or compliant. The Plaintiffs did not breach Clause 25(2) of the SPA. (f) Issue 6 : Whether the Defendant is liable in negligence? This Court answers it in the affirmative. The Defendant owed the Plaintiffs a duty of care in tort to construct the Property safely and in accordance with approved specifications. The Defendant breached this duty. However, the Plaintiffs' recoverable damages are not increased by the concurrent claim in tort. The contractual remedies under the SPA are adequate to compensate the Plaintiffs for their losses. 232. Accordingly, the Plaintiffs are entitled to damages as follows – NO. DAMAGES AWARDED (a) Liquidated Ascertained Damages (LAD) 63,594.52 (b) Repair/Rectification Costs 339,700.00 (c) Loss of Use/Rental 250,000.00 (d) Consultant Fee 8,000.00 (e) Distress and Inconvenience 30,000.00 TOTAL 691,294.52 233. The Plaintiffs' claim for aggravated and exemplary damages is dismissed. 234. In paragraph 20 of the Defendant’s Amended Statement of Defence, the Defendant sought to set-off the sum of RM1,791.30 for unpaid utility deposits against the LAD payable to the Plaintiffs. However, this set-off was not pleaded as a formal counterclaim and was not included in the Issues for Trial. In any event, the Defendant has not proven that these sums are owing and due from the Plaintiffs. Accordingly, no set-off is allowed. 235. In the circumstances, this Court makes the following orders – (a) the Plaintiffs' claim is allowed in part; (b) Judgment is entered for the Plaintiffs against the Defendant for the total sum of RM691,294.52, comprising the details as stated in paragraph 232 above; (c) the Plaintiffs' claim for aggravated and exemplary damages is dismissed; (d) interest at 5% per annum on the LAD sum of RM63,594.52, calculated from the date of filing of the Writ until the date of judgment; (e) interest at 5% per annum on the remaining sum of RM627,700.00 calculated from the date of judgment until full payment; and (f) costs of RM150,000.00, subject to the allocator to be paid to the Plaintiffs. Dated : 14 January 2026 -signed-Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Counsel for the Plaintiff : Datuk Ahmad Musthafi Bin Mohamad : Messrs. Hashim Amran Tabiah Ahmad Counsel for the Defendant : Rohana Binti Ngah : Messrs Abdul Raman Saad & Associates