1. ) Chong Kok Siong v Mawar Awal (M) Sdn Bhd (WA-22NCvC-521-08/2024)

CHONG KOK SIONG (No. K/P : 691107-04-5117)

TEE AI LING (No. K/P : 720108-07-5414)

HON KAH SHIN (No. K/P : 731201-05-5307)

CHOW LAI LAI (No. K/P : 730131-14-5344)

SAH THIAM LEONG (No. K/P : 760430-14-5237)

LOW HUEY SUAN …PLAINTIFFS (No. K/P : 760717-14-5744) AND MAWAR AWAL (M) SDN. BHD. (No. Syarikat : 211208-V) …DEFENDANT 03/07/2025 16:16:22 WA-22NCvC-521-08/2024 Kand. 38 GROUNDS OF JUDGMENT (Enclosure 6 / Summary Judgment) INTRODUCTION [1] This is an application by the Plaintiffs for a summary judgement to be entered against the Defendant (Enclosure 6) pursuant to Order 14 of the Rules of Court 2012 (ROC). [2] The Plaintiffs are claiming for liquidated ascertained damages (LAD) for late delivery of vacant possession and completing common facilities of condominium by the Defendant. BRIEF FACTS [3] The Defendant is a developer of a housing project known as “Mulberi Kondominium” (Project). [4] The Plaintiffs and the Defendant had entered into Sale and Purchase Agreements pursuant to Schedule H of the Housing Development (Control and Licensing) Regulations 1989 (Sale and Purchase Agreements) to purchase a condominium with accessory parcel where the particulars of the respective Sale and Purchase Agreements of the Plaintiffs and the Defendant are as follows:

1st Plaintiff & 2nd Plaintif (P1 & P2) 10-12-2013 11-07 with accessory parcel no. 2-43 & 2- 43A (P1 & P2’s property) 657,000.00

3rd Plaintiff & 4th Plaintif (P3 & P4) 19-12-2013 8-06 with accessory parcel no. 3-84 & 3- 85 (P3 & P4’s property) 691,400.00 3. 5th Plaintiff & 6th Plaintif (P5 & P6) 13-3-2014 9-09 with accessory parcel no. 4-37 & 4- 37A (P5 & P6’s property) 600,900.00 [5] The salient terms and conditions of the Sale and Purchase Agreements are-Clause 8: “8. Time essence of contract Time shall be the essence of the contract in relation to all provisions of this Agreement” Clause 25: “25. Time for delivery of vacant possession

Vacant possession of the said Parcel shall be delivered to the Purchaser in the manner stipulated in clause 26 within thirty-six (36) calendar months from the date of this Agreement.

If the Vendor fails to deliver vacant possession of the said Parcel in the manner stipulated in clause 26 within the time stipulated in subclause (1), the Vendor shall be liable to pay to the Purchaser liquidated damages calculated from day to day at the rate of ten per centum (10%) per annum of the purchase price from the expiry date of the delivery of vacant possession in subclause (1) until the date the Purchaser takes vacant possession of the said Parcel. Such liquidated damages shall be paid by the Vendor to the Purchaser immediately upon the date the Purchaser takes vacant possession of the said Parcel.”

For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Purchaser takes vacant possession of the said Parcel.” Clause 27: “27. Completion of common facilities

The common facilities serving the said housing development shall be completed by the Vendor within thirty-six (36) calendar months from the date of this Agreement. The Vendor’s architect shall certify the date of completion of the common facilities.

If the Vendor fails to complete the common facilities in time the Vendor shall pay immediately to the Purchaser liquidated damages to be calculated from day to day at the rate of ten per centum (10%) per annum of the last twenty per centum (20%) of the purchase price.

For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Vendor complete the common facilities.” [6] In short, according to clauses 25 and 27 of the Sale and Purchase Agreements, the Defendant shall deliver vacant possession of the properties to the Plaintiffs in the manner pursuant to clause 26 within 36 months for the date of the Sale and Purchase Agreements. [7] In June 2024, the Plaintiffs received Notice of Delivery of Vacant Possession from the Defendant. [8]

P1 & P2 2586 2. P3 & P4 2594 3. P5 & P6 2506 [11] As such, the Plaintiffs are claiming against the Defendant for the following sum-Party Damages in respect of delivery of vacant possession of the Plaintiff’s properties Damages in respect of completeion of common facilities of the said project

P1 and P2 RM657,000 x 10% 365 x 2586 days =RM465,480.00 RM657,000 x 20% x 10% 365 x 2586 days = RM93,096.00 558,576.00

P3 and P4 RM691,400 x 10% 365 x 2594 days =RM491,367.56 RM691,400 x 20% x 10% 365 x 2594 days = RM98,273.51 589,641.07 3. P5 and P6 RM600,900 x 10% 365 x 2506 days =RM412,563.12 RM600,900 x 20% x 10% 365 x 2506 days = RM82,512.62 495,075.74 Plaintiffs’ Contention [12] The Sale and Purchase Agreements were pursuant to Schedule H of the Regulation 11(1) of the Housing Development (Control and Licensing) Regulations 1989 (HDR). The Plaintiffs have further complied with section 22C of the Housing Development (Control And Licensing) Act 1966 (HDA). HDA and HDR are social legislations enacted to protect house buyers and neither waiver or estoppel can prevent the Plaintiffs from claiming what they are entitled to statutorily. [13] The Plaintiffs have not miscalculated the LAD for the delay in delivering vacant possession and LAD for the delay in completing common facilities. [14] The Defendant has failed to raise any triable issue and there are no merits in its defence. Defendant’s Contention [15] The Plaintiffs have miscalculated the LAD for the delay in delivering vacant possession and LAD for the delay in completing common facilities. [16] The Defendant contended that the Plaintiffs’ claim is inaccurate and excessive. The accurate days delayed, of delivering vacant possession and completing the common facilities excluding the period between 18.03.2020 and 31.08.2020 (167 days) pursuant to the Covid-19 Act 2020, are as follows-Total Days delayed for Vacant Possession (LAD) Purchasers Date of Date of Vacant Possession (36 months) Date of Vacant Possession Delivered Total Days delayed for Vacant Possession P1 & P2 10.12.2013 09.12.2016 22.06.2024 2,586 P3 & P4 19.12.2013 18.12.2016 05.07.2024 2,590 P5 & P6 13.03.2014 12.03.2017 05.07.2024 2,506 Total Days delayed for Common Facilities (LAD) Purchasers Date of Date of Vacant Possessio n (36 months)

Total Days delayed for Completion Common Facilities P1 & P2 10.12.2013 09.12.2016 29.11.2023 2,530 P3 & P4 19.12.2013 18.12.2016 29.11.2023 2,371 P5 & P6 13.03.2014 12.03.2017 29.11.2023 2,287 Total Amount for LAD Vacant Possession Purchasers Purchase Price Total Days delayed for Vacant Possession Calculation in accordance to Clause 25 (2) of the SPA Total Amount P1 & P2 657,000.00 2,586 RM 657,000 x 10% / 365 days = RM180.00 per day 2,586 days x RM180.00 = RM465,480.00 465,480.00 P3 & P4 691,400.00 2,590 RM 691,400 x 10% / 365 days = RM189.42 per day 490,597.80 2,590 days x RM189.42 = RM490,597.80 P5 & P6 600,900.00 2,506 RM 600,900 x 10% / 365 days = RM164.63 per day 2,506 days x RM164.63 = RM412,563.12 412,563.12 Total Amount for LAD Common Facilities Purchasers Total Days delayed for Completion Common Facilities Calculation in accordance to Clause 27 (2) of the SPA Total Amount P1 & P2 2,530 RM 131,400 x 10% / 365 days = RM36.00 per day 2,530 days x RM36.00 = RM91,080.00 91,080.00 P3 & P4 2,371 RM 138,280 x 10% / 365 days = RM37.88 per day 2,371 days x RM37.88 = RM89,813.48 89,813.48 P5 & P6 2,287 RM 120,180 x 10% / 365 days 75,288.04 = RM32.92 per day 2,287 days x RM32.92 = RM75,288.04 [17] The Defendant also contended that the Plaintiffs are barred by the principle of estoppel from filing any claim against the Defendant, as the Plaintiffs remained silent and, by accepting the Notice of Vacant Possession, are deemed to have waived, consented and accepted, without objection. [18] The Defendant further contended that, the Plaintiffs would be unjustly enriched if the Plaintiffs’ claim is allowed since the amount claimed exceeds the purchase price of each of the Plaintiff’s unit. [19] The Defendant also contended that it has raised defence on merits and there are triable issues to be determined by the Court. ANALYSIS AND FINDINGS [20] The law on summary judgment is trite. The well-established legal principles applicable to applications for summary judgment have been clearly and expressly deliberated as provided by statutory provisions and decided cases. Plaintiff must satisfy the primary requirements in an application for a summary judgment (see also the cases of Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLJ 400; [1992] 1 CLJ 627; [1992] 1 MLRA 190 (Supreme Court), Gunung Bayu Sdn Bhd v. Syarikat Pembinaan Perlis Sdn Bhd [1987] 2 MLJ 332; [1987] CLJ Rep 120; [1987] 1 MLRA 20 (Supreme Court), United Malayan Banking Corporation Bhd v. Palm & Vegetable Oils (M) Sdn Bhd & Ors [1982] 1 MLRA 720; [1982] CLJ Rep 358; [1983] 1 MLJ 206 (Federal Court), Percetakan Solai Sdn Bhd v. Kin Kwok Daily News Sdn Bhd & Anor [1984] 1 MLRH 509; [1985] CLJ Rep 632; [1986] 1 MLJ 240 and Doshi v. Yeoh Tiong Lay [1974] 1 LNS 30; [1974] 1 MLRA 255; [1975] 1 MLJ 85 (Federal Court) just to name a few). [21] In the case of Citibank NA v. Ooi Boon Leong & 2 Ors [1980] 1 MLRA 221; [1981] 1 MLJ 282, the Federal Court held that “where all the issues are clear and the matter in substance can be decided once and for all without going to trial there is no reason why the Assistant Registrar or the judge in chambers, or, for that matter this court, shall not deal with the whole matter under the R.S.C Order 14 procedure.”. [22] The preconditions for the application of summary judgment were stated in the case of National Company for Foreign Trade v. Kayu Raya Sdn. Bhd. [1984] 2 MLJ 300; [1984] 2 CLJ 220; [1984] 1 MLRA 190. The Federal Court held that: “For the purposes of an application under Order 14 the preliminary requirements are i. The defendant must have entered an appearance; ii. The statement of claim must have been served on the defendant, and; iii. The affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14.”. [23] The Federal Court in National Company for Foreign Trade (supra) also held- “[9] If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he comes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him [see O 14 r 3 and 4(1)].”. [24] This Court finds that the Plaintiffs have fulfilled the preliminary requirements whereas the claim has been served and affidavit sworn in compliance with Order 14 Rule 2 of the ROC. Consequently, the Plaintiffs have established a prima facie case and entitled to a summary judgment. [25] The burden then shifts to the Defendant to prove any triable issue that ought to be set down for trial for the claim (Cempaka Finance Bhd v. Ho Lai Ying (trading as KH Trading) & Anor [2005] 2 MLRA 736; [2006] 2 MLJ 685; [2006] 3 CLJ 544 (FC), South East Asia Insurance Berhad v. Kerajaan Malaysia [1996] 2 MLRA 659; [1998] 1 AMR 657 (CA)). What constitute a triable issue will depend on the facts or the law arising from each case as disclosed in evidence before the Court (Bank Negara Malaysia (supra)). [26] This Court is guided by the case of Bank Negara Malaysia (supra), where the Supreme Court held- “In our view, basic to the application of all those legal propositions, is the requirement under O 14 for the court to be satisfied on affidavit evidence that the defence has not only raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the facts or the law arising from each case as disclosed in the affidavit evidence before the court … Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. In our opinion, unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application. Thus, apart from identifying the issues of fact or law, the court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue. Where the issue raised is solely a question of law without reference to any facts or where the facts are clear and undisputed, the court should exercise its duty under O 14. If the legal point is understood and the court is satisfied that it is unarguable, the court is not prevented from granting a summary judgment merely because ‘the question of law is at first blush of some complexity and therefore takes a little longer to understand’. (See Cow v Casey 6 and European Asian Bank AG v Punjab & Sind Bank 7 at p 516.)” [27] Accordingly, summary judgement can be entered against a licensed developer for LAD claim (see Kok Sue Lynn & Ors v. Mayfair Ventures Sdn Bhd & Anor [2022] 1 LNS 2556; [2022] MLJU 2682 and Chang Sheng Yuh v. Wealth Plateau Sdn Bhd [2023] 1 LNS 2234; [2023] MLJU 2483). [28] Furthermore, HDA and HDR are social legislations to protect home buyers and hence parties are prohibited from contracting out of the Sale and Purchase Agreement (See Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals [2020] 1 MLJ 281 (FC), Veronica Lee Ha Ling & Ors v. Maxisegar Sdn Bhd [2009] 1 LNS 888; [2009] 2 MLRA 408; [2011] 2 MLJ 141 (FC) and Lai Chin Wah & Anor v. Sitrac Corporation Sdn Bhd [2023] MLJU 891; [2023] 4 MLRA 677; [2023] 6 CLJ 232, (CA). [29] In PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60; [2021] 2 CLJ 441, the Federal Court held- [125] The LAD prescribed by law is a statutory remedy afforded to the purchasers. There can therefore be no question of unjust enrichment upon an innocent party’s right to enforce his statutory remedy against the party in breach. This is especially so considering the developer’s own contravention of the law by collecting an initial fee from the purchaser in express contravention of regulation 11(2) of the HDR 1989.” [30] The burden is on the Defendant to raise triable issue. However, the Defendant has failed to do so and there are also no merits in its defence. Reference is made to the case of Abdol Mulok Awang Damit v. Perdana Industri Holdings Berhad [2003] 4 MLJ 441; [2003] 3 CLJ 497; [2003] 1 MLRA 401, where the Court of Appeal held- “It was the contention of learned counsel for the appellant that since it was only an O 14 application, all that was required of the appellant was to raise triable issues and that he should not be expected to come up with proofs as ruled by the learned judge in the court below. With respect, such a submission is not entirely consistent with our current judicial trend. Bare assertion does not necessarily amount to a triable issue thereby compelling a case to go for a full trial. It may still be subject to curial scrutiny for its value.” [31] Further, in Puncak Niaga (M) Sdn Bhd v. NZ Wheels Sdn Bhd [2011] 9 CLJ 833; [2012] 1 MLJ 27; [2012] 1 MLRA 179, the Court of Appeal held- “We categorically say that mere bare denials or assertions do not constitute evidence and they cannot give rise to triable issues. This court in Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363 at p 367 aptly said: When an application is made for summary judgment under O 14 supported by an affidavit which goes to show that there is no defence, the defendants must show cause why leave to defend must be given. This means that the defendants must provide answers on oath which constitute evidence that they have a defence which is fit to be tried. Denials in a defence do not constitute evidence. They are challenges to the other side to show proof. In the present case the guarantors do not appear to have appreciated this. Their affidavits merely relied on the defence they pleaded, which consists of bare denials and points of law which they could not sustain. Whether an issue is triable would depend on the facts and the law as disclosed in the affidavit evidence.” [32] Based on the above findings, this Court is of a considered view that there is no triable issue in the Plaintiffs’ claim that could be considered for a full trial as this is a straight forward matter. [33] This Court finds that the matter in question is only about the calculation of the LAD and which calculation, whether the Plaintiffs or the Defendant, as correct? In this regard, this Court finds that the calculation of the Defendant has a basis and had given such order accordingly. CONCLUSION [34] Consequently, after careful scrutiny and judicious consideration of all the evidence before this Court, including the written and oral submissions of both parties, this Court in allowing Enclosure 6 has ordered the Defendant to pay as follows- “1. Gantirugi tetap yang berjumlah RM 556,560.00 dibayar oleh Defendan kepada Plaintif Pertama dan Plaintif Ke-2;

Gantirugi tetap yang berjumlah RM 580,411.28 dibayar oleh Defendan kepada Plaintif Ke-3 dan Plaintif Ke-4;

Gantirugi tetap yang berjumlah RM 487,851.16 dibayar oleh Defendan kepada Plaintif Ke-5 dan Plaintif Ke-6;

Faedah atas perenggan-perenggan 1-3 di atas pada kadar 5% setahun dari tarikh tuntutan ini iaitu pada 5-8-2024 sehingga pembayaran penuh dan muktamad dibayar oleh Defendan kepada Plaintif-Plaintif; dan kos...”. -SGD- (DR. SUZANA BINTI MUHAMAD SAID) Judicial Commisioner of the High Court NCVC1 Kuala Lumpur Court DATED: 2 JULY 2025 COUNSELS FOR THE PLAINTIFFS Messrs A.J. Ariffin, Yeo & Harpal Advocates & Solicitors 3rd Floor, Wisma Cheong Hin 116-118, Jalan Pudu 55100 Kuala Lumpur FOR THE DEFENDANT Messrs Cheong Su Yin & Co. Advocates & Solicitor B-06-11, Plaza Mont Kiara No. 2, Jalan Kiara 50480 Kuala Lumpur