Balbeer Singh A/L Swaran Singh v Austin Heights Sdn Bhd (JA-22NCvC-115-09/2020)

BALBEER SINGH A/L SWARAN SINGH

USHA DEVI A/P TARA SINGH

Ng SOK HUN

LIM PEAK BOOM

TAN CHEE SEN

WONG LEE CHOO

WONG KWOK CHEW

TAN KHOO KIM LOOI

ANDY HONG CHING HUAT [NO. KAD PENGENALAN: 780118-01-6201]

YEO CHEW LIN [NO. KAD PENGENALAN: 820415-01-5102]

TANG GUAN EN [NO. KAD PENGENALAN: 691118-01-5271]

TAN SIEW KEE [NO. KAD PENGENALAN: 711108-01-5660]

TEH HING KOON [NO. KAD PENGENALAN: 680622-01-5701]

ONG NGIAM YEE SING [NO. KAD PENGENALAN: 701221-13-5016]

WONG SIEW CHIENG 25/02/2026 13:48:42 JA-22NCvC-115-09/2020 Kand. 282 [NO. KAD PENGENALAN: 721026-04-5013]

WONG SIOW WEN [NO. KAD PENGENALAN: 740718-01-6460]

PANG WOO [NO. KAD PENGENALAN: 481112-01-5419]

HO LEE HWA [NO. KAD PENGENALAN: 840403-01-5226]

HOO SUEK MUI @ HOE SUEK MUI [NO. KAD PENGENALAN: 511025-01-5378]

LEE LEE KIM [NO. KAD PENGENALAN: 710428-01-5032]

LAW PEI EN [NO. KAD PENGENALAN: 860426-66-5086]

ONG KIM PIN [NO. KAD PENGENALAN: 510413-08-5373]

ONG WEI BOON [NO. KAD PENGENALAN: 851009-10-6211]

ONG CHEE BOON [NO. KAD PENGENALAN: 851009-10-6289]

LEE CHAI YEING [NO. KAD PENGENALAN: 750112-01-5614]

LEE CHONG HWE [NO. KAD PENGENALAN: 730608-01-6233]

KONG CHEE FEI [NO. KAD PENGENALAN: 820405-01-5061]

ANG GUAN HIN [NO. PASPOT: E2897758N

ANG LING, ELAINE [NO. PASPOT: E3833786D]

LOKE SOON CHOO [NO. PASPOT: E3622837E]

LOKE XINYI DENISE SUE-LYNN [NO. PASPOT: E1045495D]

WONG TWEE MENG [NO. PASPOT: S1744964H]

SIM BEE LING PAULINE [NO. PASPOT: S1806759E]

LIM SIEW HENG STEPHEN [NO. PASPOT: E2504823E]

SEAH EE CHENG CALISTA [NO. PASPOT: E2624620J]

LIM CHONG PING [NO. KAD PENGENALAN: 860109-01-5805]

TIUNG SOO HUI [NO. KAD PENGENALAN: 771105-01-6136]

LIM KWEE LAN [NO. KAD PENGENALAN: 541009-11-5018]

TAN SE FONG [NO. KAD PENGENALAN: 770212-01-5206]

LIM MIANG CHIANG [NO. KAD PENGENALAN: 571113-01-5903]

LEE SAI KIAU [NO. KAD PENGENALAN: 640901-01-5468]

MARINA TAN KAI YEEN [NO. KAD PENGENALAN: 810822-04-5262]

TEH WAN SIN [NO. KAD PENGENALAN: 790622-04-5422]

TAN KIEN TEONG [NO. KAD PENGENALAN: 840806-14-5201]

TAN PEI SAN [NO. KAD PENGENALAN: 770831-14-5376]

LAU MING JYE [NO. KAD PENGENALAN: 691204-13-5309]

SIH KAI SHEONG [NO. KAD PENGENALAN: 791010-01-6537]

DAU YONG HOCK [NO. KAD PENGENALAN: 760119-04-5225]

HO PAU LIN [NO. KAD PENGENALAN: 770422-12-5526]

CHAN TACK CHON [NO. KAD PENGENALAN: 801120-01-6067]

ANG GUAT LIN [NO. KAD PENGENALAN: 750211-08-5394]

HO PAU CHING [NO. KAD PENGENALAN: 770422-12-5518]

KHEK SOON HENG [NO. KAD PENGENALAN: 621028-01-6015]

GOH SIEW YEN [NO. KAD PENGENALAN: 900103-01-5672]

CHA HANG SONG [NO. PASPOT: E0974797B]

SIM HAR PING [NO. PASPOT: E2683098J]

CHAN WAI FAN [NO. KAD PENGENALAN: 640523-93-5012]

HOON HENG KEAT [NO. KAD PENGENALAN: 670320-01-5707]

WOO KEOK FAH [NO. KAD PENGENALAN: 690721-09-5064]

LIM TIAN TZE [NO. KAD PENGENALAN: 670727-01-6357]

WOO TUCK SANG [NO. KAD PENGENALAN: 610522-08-6007]

TEOH GAIK HONG [NO. KAD PENGENALAN: 611114-02-5162]

WEE KAI LOAN [NO. KAD PENGENALAN: 840312-01-5933]

WONG YUK CHUN [NO. KAD PENGENALAN: 530714-71-5074]

TEH SIEN CHENG [NO. KAD PENGENALAN: 810111-04-5477

WANG LAI HENG [NO. KAD PENGENALAN: 690622-01-5575]

TEO KIM KEONG [NO. KAD PENGENALAN: 820226-01-5437]

LIM HUI JIAN [NO. KAD PENGENALAN: 830102-05-5444]

CHIA WAI KIN [NO. KAD PENGENALAN: 680705-06-5050]

YEW KIM ENG [NO. KAD PENGENALAN: 531101-01-5264]

SIOW WAN LING [NO. KAD PENGENALAN: 801020-01-5032]

GAN CHING CHING [NO. KAD PENGENALAN: 830313-01-5258]

LEE SHOK FUNG [NO. KAD PENGENALAN: 580623-01-6118]

KONG WENG KEAT [NO. KAD PENGENALAN: 800919-01-5407]

KONG WENG KEONG [NO. KAD PENGENALAN: 790312-08-5883] …PLAINTIF-PLAINTIF DAN AUSTIN HEIGHTS SDN BHD (NO. SYARIKAT: 599146-X) …DEFENDAN

This is an appeal filed by the Defendant, a licensed housing developer of a project known as Midori Green Resort Home (hereafter refers to “Midori Home”). The defendant is also the registered owner of the land on which this project is located, known as Geran No. 558620 Lot 165775 (previously known as HS(D) 462281 PTD 149234), Mukim Tebrau, Daerah Johor Bahru. It has been subdivided into strata title but subject to be transferred to the respective purchasers.

The Plaintiffs are the purchasers of the houses in Midori Home, their respective units are as per the Sale and Purchase Agreements (hereafter refers to as “SPA”) signed between the Plaintiffs and the Defendant.

The claim by the Plaintiffs some are for late delivery of vacant possession and others on the failure to complete the Rooftop Garden represented in the brochure by the Defendant to be part of the facilities that comes with the purchase of the units in the Midori Home.

It turned out, when vacant possession was delivered, the works done were only up to Rooftop Slab but no Rooftop Garden. The Plaintiffs say that this was a false impression given by the Defendant in the brochure and the SPA. The impression with Rooftop Garden facility that moved the Plaintiffs to enter into an agreement with the Defendant for the purchase of the respective units.

The Plaintiffs claimed this is a breach of the SPA. In addition to the Rooftop Garden, the supply of the electricity not on the date of the delivery of vacant possession 3.5.2016. The supply only came on 13.9.2016 on deposit payment of HT meter was made by the Defendant. The Plaintiffs in this suit are seeking for damages at the amount of 10% of the purchase price as per the Amended Statement of Claim.

The Defendant on the other hand said that CCC (Certificate of Completion and Compliance) was issued on 3.5.2016 by Daniel Chow Architect, therefore the alternative electricity power supply via generator placed by the Defendant is sufficient for the electricity supply to the Plaintiffs’ units. The Defendant said further that the issuance of the CCC means the respective parties with interest and responsibilities in its issuance such as TNB, have given their approval for CCC to be issued by Daniel Chow Architect.

As to the Rooftop Garden, the Defendant in its Statement of Defence para 16.1 and in SD1’s oral testimony, maintained that the Rooftop Garden was completed in accordance with the landscape plan approved by the authority. In addition, the disclaimer clause in the sale brochure is a waiver to the Defendant’s obligation and it allows the Defendant to modify it.

The disclaimer is as follows: “All pictures are artist’s impressions. The information herein is subjected to changes deemed necessary by the developer or authorities and cannot form a part of a contract. While every reasonable care has been taken, the developer cannot be held responsible for any inaccuracies”.

The Defendant contended that this disclaimer excluded the developer company from any liabilities. As to their plea that with exception of Plaintiff number 9, number 34, number 35, number 40 and number 41, all other Plaintiffs have no locus standi to bring the suit against the Defendant as only the identified Plaintiffs paid for the units in cash and not the rest. Findings by this Court A. Issue on locus of Plaintiffs 10. First and foremost, this Court on 18.1.2024 had recorded a Consent Judgment on enclosure 131 permitting 47 of the Plaintiffs be allowed to give their evidence by deposition under O.39, r.1 of the Rules of Court 2012. Secondly, the Defendant had earlier filed an application to struck out the Plaintiffs’ suit under O18 r19(1)(a) Rules of Court 2012 on the ground that the suit discloses no reasonable cause of action or defence, via enclosure 95. However, on 22.4.2022 it was withdrawn by the applicant Defendant itself on 25.5.2022, during case management.

The reason for the striking out application as indicated in the Notice of Application itself (no affidavit in support to enclosure 95 by the Defendant was filed) was that the suit ought to be brought separately by each individual Plaintiff and not collectively in one suit by all 75. Reason being they have all signed the SPA each separately.

With the withdrawal of enclosure 95 and the recording of the Consent Judgment in relation to enclosure 131, this Court is of the view the Defendant cannot now raised the issue on locus once more as the withdrawal of the said enclosure was not accorded any reason except counsel for the Defendant argued that under O18 r19(2), the Rules state that “(2) No evidence shall be admissible on an application under subparagraph (1)(a)”.

Furthermore, the recording of the Consent Judgment itself surely cannot be subjected to the Defendant arguing later that the Plaintiffs have no locus to bring this same suit. The Defendant had agreed on the manner the evidence of the Plaintiffs be taken, suggesting a made believe situation that with the Defendant’s withdrawal of enclosure 98 (striking out for want of locus) and the recording of the Consent Judgment of enclosure 131 (evidence by deposition), there would be no further challenge on their locus.

The Plaintiffs were in fact ready to answer and refute the Defendant on the issue of want of locus when a date was sought to allow the Plaintiffs to file their affidavit in reply as a respond to enclosure 98, but for the withdrawal of enclosure 98 by the Defendant on the same date the request to reply was notified by the counsel for the Plaintiffs.

The Plaintiffs cannot be made to wait until the end of trial after the calling of witnesses and production of documents by both parties before the issue on locus be raised again. To do so, is allowing the Defendant to have a second bite of the cherry. In any event, it is this Court’s finding that the Plaintiffs have all signed the same SPA but with some variations on the specification of the unit and its number that led to a different sale price. Other than this, other terms and conditions remain the same.

Most importantly, it was brought to this Court’s attention that a different suit was also filed at the Sessions Court, by another group of purchasers of different units in the same housing project seeking for damages for non-delivery of vacant possession according to the terms in the SPA. The appeal by the Defendant developer company was dismissed by the High Court in Appeal No. JA-12BNCVC-8-03/2018. The Defendant’s application for leave to appeal to Court of Appeal in Appeal No. J-08-13-01/2019 was also dismissed. For these reasons, this Court disagreed with the Defendant on the issue of locus. B. Common facilities including Roof Top Garden

The Defendant through its witness SD1 agreed that all Plaintiffs have a similar SPA. When cross-examined, SD1 agreed that the SPA and the brochure of the Plaintiffs listed 7 common facilities and they are guard house, landscape, pergola, children’s playground, swimming pool, landscape pavilion, club house with management and maintenance office, changing rooms, toilets, sauna, the Roof Top Garden (see: enclosure 152 Common Bundles of Documents CBODs at page 155 pdf for the SPA and page 176 pdf. for the list of “common facilities”).

SD1 at the same time, agreed further that the approved building plan does not have a roof top garden. Instead, it only has RC roof slab. For this purpose, the testimonies of the Defendant’s architect Mr. Daniel Chow, who testified in the earlier suit before the Session Court was referred. He testified that the submitted plan did not carry a Roof Top Garden, just a RC rooftop. Despite all the above statements and evidence adduced, SD1 disagreed that one of the common facilities in the SPA was not carried out by the Defendant.

This Court having sight of the brochure on Midori Green and having viewed the pictures which the Defendant contended to be artist impression, rejected the said defence. The disclaimer on exclusion of liability to provide a Roof Top Garden similarly rejected by this Court as the totality of the contents of the brochure on Midori Green, showed a bulk of the statements describing the sort of a Roof Top Garden intended by the Defendant.

The brochure contained statements such as “A greener pasture awaits”, “a holistic collection of zeo-inspired residences in the heart and soul of Austin Heights … in a therapeutic and wholesome environment…”, “This is living in Zen”, “Discover the patterns and textures of your ‘Karesansui garden…surrounded by quaint water features, koi ponds and …of plants and delightful blooms…”.

All the above put them side by side with the SPA that listed the Roof Top Garden as “common facilities”, would undeniably attracted the attention of the purchasers. This was the case for the Plaintiffs that the units would come with such green facility including a Japanese garden (see: enclosure 150 CBODs at page 5 pdf onwards on Midori Green brochure and developer’s letters).

Correspondences show that the Roof Top Garden was not completed within 36 months from the date of the SPA, when delivery of vacant possession took place. Vacant possession was handed to the Plaintiffs, on 3.5.2016 (see: letter in enclosure 150 pages 41 pdf onwards, SPA clause 26 on vacant possession and clause 27 on common facilities at enclosure 152). As at 18.7.2016, the letter from the Defendant indicated that the Roof Top Garden was still not completed.

With the developer’s own admission in the letter that the Roof Top Garden is delayed alleging on safety reasons, it is the finding of this Court that there was failure on the part of the Defendant to satisfy the sale of the units with the attraction contained in the brochure that it comes with green pasture like “Karesansui garden” or like a “Japanese Garden”. The common facilities of a “Roof Top Garden”, was part of the terms and conditions in the SPA (see: clause 17(2) of the SPA).

The content of the brochure was full of this presentation of green pasture neighborhood, so rightly so the Plaintiffs found the Roof Top Garden an important element that influenced them towards the purchase of their respective units. The Defendant cannot hide behind the disclaimer clause and argue that it protected the Defendant from any liability knowing that the Roof Top Garden that would be delivered would come only be roof slab with grass, shrubs and nothing more.

Hence, although the CCC was issued on 3.5.2016, it is the finding of this Court that the CCC was issued based on compliance with construction plan that a swimming pool will be built but not one in compliance with the promised SPA, that the common facilities swimming pool and Roof Top Garden can be utilized for use at any time the time vacant possession was delivered.

It is the finding of this Court that it cannot be a defence that the Roof Top Garden was built, but not up to the specifications or presentations made in the brochure. Therefore, to this Court what was presented in the brochure amounts to a misrepresentation as the approved building plan only contained an RC slab. This fits into the definition of the word “misrepresentation” in the Contracts Act 1950 that the brochure carries “a positive assertion, in a manner not warranted by the information of the person making it…” under subparagraph 18(a) of the Act. C. Supply of electricity and swimming pool ready for use

SD1 in his cross-examination and re-affirmed by SD1 in his re-examination, said that the electricity only came in later by the fact that 2 generators had to be utilized that powered the residential development. SD2 the Mechanical and Electrical Engineering Contractor said the generators were utilized on a 24 x 7 basis. In short, to this Court’s view, the electricity was not “ready for connection” for purpose of vacant possession. “Ready for connection” as explained by SD2 means “that electrical works must be completed except for TNB meter installation at the respective parcel” by the respective purchasers.

Despite alternate remedy plan by equipping with generators, SD2 said it would be insufficient to sustain all 400 sites if all were operating full capacity. The swimming pool too could not be tested for safe use without supply of electricity.

This finding is based on the fact that electricity became available only on 13.9.2016 on deposit payment of HT (high tension) meter by the Defendant and not on 3.5.2016 when vacant possession was delivered when the key was handed over.

This goes contrary to the decision by the Federal Court in the case of Remeggious Krishnan v SKS Southern Sdn Bhd (formerly known as MB Builders Sdn Bhd) [2023] 3 MLJ 1. In this case it was ruled the phrase “ready for connection” as stipulated in Clause 27(1)(c) of a Sale and Purchase Agreement prescribed under Schedule H of the Housing Development (Control and Licensing) Regulations 1989 (in this present case Clause 26) must be interpreted to mean that the property must be installed with actual supply of electricity during the delivery of vacant possession. There is an obligation on the developer to provide and ensure that there is actual supply of water and electricity to the property.

In this present case, the Defendant developer in clause 22 gave that undertaking as follows: “22. Water, electricity, gas piping, telephone trunking

The Vendor shall, at its own cost and expense, lay or cause to be laid all necessary water, electricity and … to serve the said Building and at its own cost and expense undertake to apply for the connection of internal water, electricity … of the said Parcel to the water, electricity and sewerage mains of the Appropriate Authority …

The Purchaser shall be liable for and shall pay, within fourteen (14) days after the receipt of a notice requesting for payment from the Vendor, the deposits, for the installation of water, electricity and gas metres and the Vendor shall bear all other costs if any.

…”

The above case cited was a decision held by the Housing Tribunal and eventually affirmed by the Federal Court. It relates to the following finding by the Tribunal: “that vacant possession must entail that “water and electricity supply are ready for connection to the said Parcel” and that the Appellant must ensure that the necessary application form for electricity supply and deposit have been duly filed and paid to Tenaga Nasional Berhad (“TNB”). Only then can it be said that the Appellant have complied with the manner for delivery of vacant possession;” (reported in [2021] MLJU 363. See also: Syarikat Kemajuan Perumahan Negara Sdn Bhd v. Lee Cheng & Anor [2006] 1MLJ 150)

Hence, for the above findings this Court arrived at a conclusion that the Plaintiffs are entitled to the damages they sought in their statement of claim as there was delay in delivery of vacant possession by the fact that the manner of the delivery of vacant possession was without the Roof Top Garden and electricity supply. The Plaintiffs, for that matter also suffered losses as they were deprived of utilizing the common facilities including a safe use of the swimming pool.

For these reasons, this Court allowed compensation and damages in lieu equivalent to 10% from the purchase price for the misrepresentation on Roof Top Garden that resulted in the Defendant benefitting in the sale of the units. The amount as calculated in the table in the Amended Statement of Claim, awarded to all the Plaintiffs. The Liquidated Ascertained Damages (LAD) awarded to the 1st up to 39th Plaintiff, for late delivery of vacant possession calculated up to 13.9.2016. For ease of reference, the sum as per the table prepared in the Amended Statement of Claim.

Both sums awarded are with 5% interest from 13.9.2016 till realization. Cost for the Plaintiffs at the sum of RM50,000.00. Other claims by the Plaintiffs for other kind of damages are dismissed including damages for late delivery of common facilities as the swimming pool was constructed but for safe testing, was delayed. In any event the cause for the delay of the swimming pool was related to supply of electricity that was already accounted for in the LAD for vacant possession.

As to damages for late delivery of Roof Top Garden, it was already considered together by this Court in awarding the damages for misrepresentation at the rate of 10% of purchase price in the above paragraph. Dated 12th December 2025 -signed-

For the Plaintiffs

N.G. Vinod Jackson a/l Danile

For the Defendant

K.Rajasegaran