1. ) Audi Bin Sya Rizal v Symphony Hills Sdn. Bhd. (BA-22NCvC-363-09/2021)

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1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA (CIVIL DIVISION)

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Schedule G of the HDA 1966. (d) Whether the plaintiffs would be unjustly enriched if the plaintiff’s claim is allowed? (e) Whether the plaintiffs, who are fully aware of the terms of the SPA with the extended period with no objection, are estopped from now disputing the Letter of Approval? (b) Whether the decision of the Federal Court in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals is applicable in this action. (c) Whether the plaintiffs’ action against the defendant is included in the prospective application of Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals. S/N B7yLfbzQt0KxsdnHvkS0/A Plaintiff’s Questions of Law in Encl. 57 Defendant’s Question of Law in Enc. (d) Whether the plaintiff’s reliance on the Federal Court decision in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals before declaring the prospective appliccation in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza and other appeals allows the plaintiffs to have a valid cause of action against the defendant at the time this action was filed. (e) Whether the Court is bound by the precedent of Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals in deciding the plaintiffs’ claim against the defendant. If the questions (b) to (e) were decided in the affirmative, for the Court to determine the following questions: Whether the plaintiffs have the right to claim liquidated ascertained damages (LAD) against the defendant based on the 24 month period for the delivery of vacant possession as fixed in the Schedule G of the HD 1966. S/N B7yLfbzQt0KxsdnHvkS0/A Plaintiff’s Questions of Law in Encl. 57 Defendant’s Question of Law in Enc. (f) Whether the plaintiffs' action could be distinguished from the case of Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd and other appeals, which was heard before the Federal Court. Decision of the Court [18] I have embraced the questions on law proposed by the defendant due to their clarity and precise terms of reference. The Federal Court ruling in Directors of Forests, Sarawak & Anor v Racha Ak Urud & Ors and Other Appeals [2017] 4 MLJ 42 is referenced. [19] It is an undisputed fact that the plaintiffs commenced the current claim on 21-9-2021 for liquidated damages against the defendant, based on the Federal Court’s decision in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and Other Appeals [2020] 1 CLJ 162 (hereinafter referred to as “Ang Ming Lee”). [20] The plaintiffs contended that, based on “Ang Ming Lee’s” case, the approval letter issued for the project was invalid, as the Controller of Housing lacked the authority to alter any provision of Schedule G of the agreement. S/N B7yLfbzQt0KxsdnHvkS0/A [21] Firstly, I address question (b), whether the decision in the Federal Court case of Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd and Other Appeals [2024] 8 CLJ 519 (hereinafter referred to as “Obata”) applies to the current proceedings before this Court. [22] It is a well-established legal principle that subordinate courts are required to comply with the decisions rendered by higher courts. The Federal Court's ruling in the case of Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149 is hereby referenced. [23] Both the current proceedings and “Obata” share common facts. In “Obata”, the facts are as follows: (i) The purchasers entered into their respective sale and purchase agreements from 2012 to 2013. (ii) In 2010, prior to the execution of the Sale and Purchase Agreements, the developer obtained approval to extend the delivery period for vacant possession from 36 months to 54 months. (iii) The vacant possession of the properties was granted in 2017. The purchasers initiated legal action against the developer to seek liquidated damages three years after delivery of vacant S/N B7yLfbzQt0KxsdnHvkS0/A possession, following the ruling in “Ang Ming Lee.” (iv) The purchasers asserted that the time extension obtained by the developer was invalid. [24] Upon examining the similarities in the facts of the current proceedings and “Obata”, I am bound by the principles of law articulated in “Obata” to apply them in this case before me. [25] Consequently, the response to the defendant’s question (b) is affirmative. [26] Moving on to the question posed in (a), the plaintiffs contended that the letter of approval granted to the defendant is invalid because the power exercised by the Controller of Housing was deemed ultra vires the Housing Development (Control and Licensing) Regulations Act 1989 (hereinafter referred to as HDR) as per “Ang Ming Lee.” [27] The plaintiffs further contended that the Second Actor Theory is inapplicable in the current suit since the High Court had declared Regulation 11(3) of the HDR invalid in “Ang Ming Lee” at the relevant time. [28] This Court concurs with the summary of facts that distinguishes the current proceedings from “Ang Ming Lee”, as presented by the defendant, as follows: S/N B7yLfbzQt0KxsdnHvkS0/A Ang Ming Lee Current proceedings 1. Stems from a judicial review application Commenced by way of writ action. 2. The application was filed against the Minister of Housing and the developer. The action was filed only against the defendant as the developer, without naming the Minister of Housing and the Controller of Housing. 3. The approval from the Controller of Housing to amend the time period to deliver vacant possession was obtained after the SPAs were signed and after the appeal to the minister. The Letter of Approval from the Controller of Housing to amend the time period to deliver vacant possession was obtained before any of the SPAs were signed by the plaintiffs. 4. The grounds for the application to amend the time period to deliver vacant possession were: (i) non-stop complaints by nearby residents due to extended working hours; (ii) stop work orders issued by the local authorities; (iii) investigation conducted on the piling contractor. The application to amend the time period to deliver vacant possession was made out of necessity in order to complete the complex waterworks of IWSS, which involved 12 other developers. 5. The grounds for application to amend the time period to deliver vacant possession appear to be things within the developer’s control. The application to amend the time period to deliver vancat possession was caused by water supply issues which are beyond the defendant’s control. S/N B7yLfbzQt0KxsdnHvkS0/A Ang Ming Lee Current proceedings 6. The approval was not annexed to the SPAs. The Letter of approval was annexed to all the SPAs with a footnote indicating that Clause 24 (1) was amended pursuant to the Letter of Approval. 7. The purchasers were unaware of the amendment at the time of signing the SPAs, as the approval was obtained post-signature without the purchasers' consent. The plaintiffs were fully aware, before the execution of the SPA, that delivery of vacant possession of the properties would be within thirty-six (36) months from the date of the respective SPA. [29] Based on the above facts, the current proceedings differ from those in “Ang Ming Lee”, as the present suit does not involve any post-contractual variation that would deprive the plaintiffs of their rights. [30] Therefore, the primary consideration for protecting the purchasers as aggrieved parties is not relevant to the current proceedings. [31] In the case referenced as "Obata”, the Federal Court implemented the Second Actor Theory as elucidated in the decision rendered by the Court of Appeal in Pan Wai Mei v Sam Weng Yee & Anor [2006] 2 MLJ 1. S/N B7yLfbzQt0KxsdnHvkS0/A [32] This Court finds that the defendant acted in good faith and complied with the administrative decision issued by the Controller of Housing in accordance with Regulation 11(3) of the HDR at that time. [33] The defendant's action of appending the Letter of Approval as an appendix to the plaintiffs’ Sale and Purchase Agreements further enhances the transparency of the defendant’s dealings with the plaintiffs. [34] At the relevant time, Regulation 11(3) of the HDR was valid; therefore, the defendant’s conduct adhered to the rules. [35] Given the relevant facts and law, I find that the Second Actor Theory applies to the current proceedings as enunciated in “Obata”. [36] Another noteworthy point to consider is that the plaintiffs did not contest the validity of the Letter of Approval. The Controller of Housing is not involved in the current proceedings. Instead, the plaintiffs have chosen to launch a collateral attack on the Letter of Approval. Once again, following “Obata”, such an approach is not permitted by law. [37] The plaintiffs' contention that the High Court decision in “Ang Ming Lee” applies to the current proceedings is misguided. It was on 26- 11-2019 that the Federal Court declared Regulation 11(3) of the HDR to be ultra vires; only then did “Ang Ming Lee” become applicable. S/N B7yLfbzQt0KxsdnHvkS0/A [38] Therefore, the question posed in (a) is affirmative. [39] The question in (c) is whether “Ang Ming Lee” applies prospectively, as held by the Federal Court in “Obata”? [40] In “Ang Ming Lee”, the Federal Court did not address whether declaring Regulation 11(3) of the HDR ultra vires would have retrospective or prospective effect. [41] However, in Obata, the Federal Court has clarified that “Ang Ming Lee” is to be applied prospectively and that the extensions granted by the Controller of Housing before “Ang Ming Lee” remain valid. [42] The Letter of Approval was issued on 13-6-2017, during the ongoing proceedings. The Federal Court decided on “Ang Ming Lee” in November 2019. Consequently, the Letter of Approval remains valid in light of “Obata”. [43] The question posed in (c) is affirmative. [44] In relation to the question posed in (d), the plaintiffs contended that the purchasers intended to seek protection under the Housing Developers Act 1966. The Federal Court case of PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60 is referenced. [45] I concur with the defendant's assertion that the Letter of Approval was secured prior to the execution of the sale and purchase agreement. The facts in the current proceedings differ from those S/N B7yLfbzQt0KxsdnHvkS0/A in “Ang Ming Lee”, as there is no post-contractual variation in the matter before me. [46] SYABAS supported the Letter of Approval granted by the Ministry (refer to Encl 64, Exhibit SH-2, pages 32-37). Furthermore, the defendant adhered to the prevailing procedure at that time. [47] Following “Obata”, this Court rules that the plaintiffs cannot be unjustly enriched when the defendant has evidently complied with the law at the relevant time and has not acted in any unconscionable manner to the detriment of the plaintiffs. The law concerning unjust enrichment is outlined in the Federal Court case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441. [48] The question posed in (d) is affirmative. [49] As for the final question raised in (e), the law of contract stipulates that a party is bound by the terms of a contract upon its execution. The Court of Appeal case in Ajwa for Food Industries Co (MIGOP), Egypt v Pacific Inter-Link Sdn Bhd [2013] 2 CLJ 395 is referenced. [50] Both the purchasers and the developer are obligated to adhere to the terms of the contract they have entered into, and a significant injustice would befall the defendant should the plaintiffs' claim be permitted. [51] In conclusion, the question posed in (e) is answered affirmatively. S/N B7yLfbzQt0KxsdnHvkS0/A Conclusion [52] Accordingly, I rule that it is just and appropriate for the defendant’s application to be allowed with costs, and the plaintiffs' application to be dismissed with costs. Dated: 16th June 2025 (INDRA NEHRU SAVANDIAH) Judicial Commissioner High Court of Malaya Shah Alam Selangor Date of Decision: 30th April 2025 Counsels: For the Plaintiffs: Nurin Ayuni Nazira binti Nazri, [Messrs Nashitoh Kassim & Associates] For the Defendant: Leornard Yeoh, Caleb Sio & Chen Mei Yan, [Messrs Tay & Partners] S/N B7yLfbzQt0KxsdnHvkS0/A