Chong Ngit Sooi v Kaisar Maxim Sdn. Bhd. (BA-12ANCvC-39-07/2025)

CHONG NGIT SOOI

HO PEAK HWA

YEE CHUNG TUCK

YEE YING YING

TAY JEAN SEAN

TAY CHOON HOW

PANG JIAN YONG (NO. K/P: 941128-14-6055) 16/02/2026 10:00:39

PANG TSE FUI

TAN HOON THEAN

TAN NING PEI

SOW TIAP

12.

TAN NING XIN (NO. K/P: 901024-14-5326) … APPELLANTS AND KAISAR MAXIM SDN BHD (COMPANY NO.: 201201004908 [978433-P]) …RESPONDANT (IN THE SESSIONS COURT AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA WRIT NO: BB-B52NCvC-32-04/2023

CHONG NGIT SOOI

HO PEAK HWA

YEE CHUNG TUCK

YEE YING YING

TAY JEAN SEAN

TAY CHOON HOW

PANG JIAN YONG

PANG TSE FUI

TAN HOON THEAN

TAN NING PEI

SOW TIAP

12.

TAN NING XIN (NO. K/P: 901024-14-5326) … PLAINTIFFS AND KAISAR MAXIM SDN BHD (COMPANY NO.: 201201004908 [978433-P]) …DEFENDANT)

This is an appeal against the decision of the Sessions Court, which allowed the Respondent’s/Defendant’s application under Order 14A of the Rules of Court 2012 (ROC) and dismissed the Appellant’s/Plaintiffs’ claim for liquidated ascertained damages (LAD) arising from the alleged late delivery of vacant possession of their properties.

After hearing both parties, perusing the Appeal Record, and considering the written submissions and authorities relied upon, I allow the appeal. The decision of the learned Sessions Court Judge (SCJ) is set aside. The Respondent’s application under Order 14A is answered in the negative for prayers (1) and (2), and the Appellants’ application under Order 14 is allowed.

This appeal turns on the legal effect of an extension of time granted by the housing authority, the applicability of the Federal Court decision in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd & Ors [2024] 8 CLJ 519, and whether the Plaintiffs have a sustainable statutory claim under Schedule H of the Housing Development (Control and Licensing) Regulations 1989 (HDR).

The parties will be referred to in this judgment as they were in the Sessions Court.

The Plaintiffs are purchasers of residential units in a housing development known as “The Address”. Each Plaintiff entered into a sale and purchase agreement with the Defendant for the purchase of an apartment unit together with the relevant accessory parcels.

The Defendant is the developer of the said housing development. It is not disputed that the Defendant is a licensed housing developer and that the sale and purchase agreements entered into with the Plaintiffs are contracts regulated by the

The statutory form prescribed under Schedule H provides that vacant possession is to be delivered within thirty-six (36) months.

Before and at the time the sale and purchase agreements were executed, the Defendant relied on an extension of time (EOT) dated 2 August 2017 issued by the Jabatan Perumahan Negara under the Ministry of Housing and Local Government (Kementerian Perumahan dan Kerajaan Tempatan) (housing authority), which approved an extension of the completion period from thirty-six (36) months to fifty-four (54) months. The EOT approval letter was signed by the Controller of Housing.

Notably, the said extension was granted after the High Court decision in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor [2017] MLRHU 936 on 15 June 2017, in which Regulation 11(3) of the HDR was declared ultra vires.

Subsequently, by letters dated 9 November 2020 and 5 April 2022, the housing authority granted a further exclusion of 320 days from the computation of time due to the COVID-19 pandemic. These two extensions were not disputed by the Plaintiffs.

Vacant possession of the Plaintiffs’ units was delivered in October 2022. The Plaintiffs contend that, applying the statutory thirty-six (36) month completion period and computing time from the date of payment of booking fees, the delivery was late and they are entitled to LAD. This was the basis of their application for summary judgment under Order 14.

The Defendant takes the position that the EOT dated 2 August 2017 was valid and binding, that the fifty-four (54) month completion period applies, and that, with the additional 320 days excluded due to COVID-19, vacant possession was delivered within time. On this basis, the Defendant applied under Order 14A for a determination that the Plaintiffs have no sustainable cause of action.

It was on these facts that the learned SCJ allowed the Defendant’s application and dismissed the Plaintiffs’ claim, giving rise to the present appeal. Order 14A application

14.

The questions posed were as follows:

Bahawa sebagai suatu persoalan undang-undang berdasarkan keputusan Mahkamah Persekutuan dalam Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd (2014) CLJU 1657, Plaintif-Plaintif adalah terikat kepada tempoh 54 bulan yang diperuntukkan dalam perjanjian-perjanjian jual beli yang ditanda tangani oleh mereka dengan Defendan untuk penyerahan milikan kosong unit-unit mereka;

Bahawa berdasarkan tempoh 54 bulan untuk penyerahan milikan kosong unit-unit dan mengambil kira juga tempoh yang dikecualikan daripada pengiraan masa serahan milikan kosong dibawah Akta Langkah-Langkah Sementara bagi Mengurangkan Kesan Penyakit Koronovirus 2019 (Covid 19) 2020 yang disahkan oleh Kementerian Perumahan dan Kerajaan Tempatan, Plaintif-Plaintif tidak mempunyai sebarang kausa tindakan dan tuntutan yang sah terhadap Defendan untuk gantirugi berkenaan dengan penyerahan milikan kosong unit-unit mereka.

Bahawa tuntutan Plaintif-Plaintif terhadap Defendan dalam Writ Saman adalah ditolak.

Flowing from that question, the Defendant sought an order that the Plaintiffs’ claim be dismissed in its entirety without proceeding to trial.

This was the sole legal issue placed before the Sessions Court for determination under Order 14A, and it formed the basis of the learned SCJ’s decision to dismiss the Plaintiffs’ claim.

In the Plaintiff’s summary judgment application, a declaration was sought that the EOT was invalid and that vacant possession was to be calculated from the date the booking fees were paid, and, consequently, the respective amounts of LAD owed to each Plaintiff, with interest.

Based on the Grounds of Judgment of the Sessions Court and the submissions reproduced in the Appeal Record, the reasons and findings of the SCJ can be summarised as follows.

The SCJ accepted that the Defendant had obtained EOT from the housing authority, including the letters dated 9 November 2020 and 5 April 2022, which excluded 320 days from the computation of time due to the COVID-19 pandemic. The SCJ treated these extensions as valid and binding.

The SCJ held that the authority with the power to grant EOT arising from the COVID-19 situation was the Ministry of Housing and Local Government, acting pursuant to the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 Act 2020 and its amendment.

The SCJ found that any challenge to the validity of the decisions made by the housing authority, including the EOT, could only be mounted by way of judicial review in the High Court under Order 53, and not by way of a private law action in the Sessions Court.

The SCJ relied on the Federal Court decision in Obata-Ambak to hold that purchasers are not entitled to collaterally challenge an EOT granted by the housing authority in an action against the developer.

Applying Obata-Ambak, the SCJ concluded that the Defendant, as a developer who had relied on the EOT granted by the housing authority, was protected by the second actor principle.

The SCJ further held that since the Plaintiffs had not challenged the validity of the EOT by way of judicial review, the EOT remained effective and binding between the parties.

On that basis, the SCJ found that the Plaintiffs had no valid cause of action for LAD against the Defendant.

Consequently, the SCJ allowed the Defendant’s application under Order 14A of the ROC and dismissed the Plaintiffs’ claim in its entirety, with costs awarded to the Defendant. Analysis and Findings

As an appellate court, my role is limited. I do not rehear the case or substitute my own findings of fact merely because I may have come to a different conclusion (see Top 2 Global Sdn Bhd v Dato Seri Yong Tu Sang [2026] 1 MLRA 664). Intervention is justified only where the SCJ had misdirected herself in law, applied the wrong legal principles, taken into account irrelevant considerations, failed to consider relevant matters, or where the decision is plainly wrong on the law (refer Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors [2020] 6 MLRA 193).

In the present appeal, however, the complaint is not one of factual evaluation but of legal approach. The Plaintiffs contend that the learned SCJ erred in law by relying on an inapplicable Federal Court authority (Obata-Ambak), by treating the EOT as immune from challenge, and by concluding that the Plaintiffs had no sustainable cause of action at the threshold stage under

It is therefore necessary for this Court to examine whether the legal principles applied by the Sessions Court were correct, and whether the claim was suitable to be disposed of summarily without proceeding to trial.

The central issue in this appeal concerns the legal effect of the EOT dated 2 August 2017.

Of no doubt, the Federal Court decision in Obata-Ambak is binding on this Court. In that case, the Federal Court clarified the legal position following Ang Ming Lee.

The Federal Court held, among others, that:

The decision in Ang Ming Lee operates prospectively.

An extension of time granted by the Controller is presumed valid and binding unless and until it is set aside by way of judicial review.

Purchasers are not entitled to mount a collateral challenge against such extension in a civil action for LAD.

The second actor doctrine protects developers who relied on administrative decisions granted when Regulation 11(3) was still treated as valid law.

I respectfully accept and apply those principles.

The present appeal, however, turns on a narrower question. The Plaintiffs’ contention is that the extension dated 2 August 2017 was granted after Regulation 11(3) had already been declared ultra vires by the High Court on 15 June 2017.

The material facts relating to the date of the declaration and the date of the extension are not disputed. The issue is therefore a pure question of law.

In Obata-Ambak, the Federal Court was concerned with extensions granted at a time when Regulation 11(3) was still treated as valid law. The protection afforded in that case was directed at preventing retrospective disruption of transactions entered into in reliance on a provision that had not yet been judicially invalidated.

The present case does not involve retrospective invalidation of an earlier administrative act. The question here is whether, at the time the extension dated 2 August 2017 was granted, there remained lawful statutory authority empowering the Controller to extend the completion period prescribed under Schedule H.

Under Schedule H of the HDR, the developer is bound to complete and deliver vacant possession within thirty-six months. It is settled law that the statutory terms cannot be varied unless authorised by law. The only source of power enabling the Controller to extend the prescribed period was Regulation 11(3) (see Sentul Raya Sdn Bhd v Hariram Jayaram & Ors [2008] 4 CLJ 618 and SEA Housing Corporation Sdn Bhd v Lee Poh Choo [1982] 2 MLJ 31).

Again, Regulation 11(3) had been declared ultra vires by the High Court on 15 June 2017. Therefore, I am of the view that once declared ultra vires, the provision cannot thereafter provide lawful authority.

Accordingly, the determination in this appeal turns not on a collateral challenge against a subsisting valid extension, but on whether there was lawful enabling authority in existence at the time the extension was granted.

On the undisputed facts, the extension dated 2 August 2017 was granted after Regulation 11(3) had been declared ultra vires. In the absence of lawful enabling power, the extension cannot operate to vary the statutory completion period prescribed under Schedule H.

Once that extension is disregarded, the Defendant remains bound by the statutory completion period of thirty-six months.

I also accept the Plaintiffs’ submission that the claim is not time-barred. On their pleaded case, the cause of action for LAD accrued upon delivery or deemed delivery of vacant possession in October 2022. This action was filed in 2023. It is therefore within the six-year limitation period computed from the accrual of the cause of action.

On the issue of jurisdiction, I am not persuaded that the Plaintiffs were required to commence judicial review proceedings under Order 53. The Plaintiffs’ claim is a private law action for LAD arising from statutory contractual rights. The question of the validity of the extension arises incidentally in determining whether the Defendant complied with its statutory obligation. The Court is not being asked to quash the decision of the Controller, but to determine its legal effect in the context of the parties’ contractual relationship (refer to Chan Kwai Chun v Lembaga Kelayakan [2002] 1 MLRA 169 and Tenaga Nasional Bhd v Bandar Nusajaya Development Sdn Bhd [2016] 6 MLRA 103).

For these reasons, I am of the view that the learned SCJ erred in treating Obata-Ambak as dispositive of the Plaintiffs’ claim and in concluding that the Plaintiffs had no sustainable cause of action. Order 14 Application 39. The material facts are not in dispute. There is no factual controversy requiring oral evidence.

In those circumstances, the Defendant remains bound by the statutory completion period of thirty-six months under Schedule

Applying the Federal Court decision in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2021] 1 MLRA 506, the Plaintiffs’ entitlement to LAD, computed from the date of payment of booking fees, is legally sustainable.

In the circumstances, I find that the Defendant has not disclosed any real defence that would warrant a trial. There is no triable issue requiring a full trial.

The learned SCJ therefore erred in allowing the Defendant’s application under Order 14A and the matter is suitable for summary judgment in favour of the Plaintiffs under Order 14. Conclusion 44. For the reasons set out above, I find that the learned SCJ had misdirected herself in law in allowing the Defendant’s application under Order 14A and in dismissing the Plaintiffs’ claim at the threshold stage.

Accordingly, this appeal is allowed. The order of the Sessions Court dated 12 June 2025 allowing prayers (1) and (2) of the Defendant’s application under Order 14A is set aside. The Defendant’s Order 14A application is dismissed. The Plaintiffs’ application under Order 14 is allowed, and summary judgment is entered in favour of the Plaintiffs as prayed in Enclosure 8.

Costs of the appeal are fixed at RM5,000, subject to the allocator. Dated this: 13th February 2026 -signed- (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR For the Appellants : Low Joo Hean Messrs Ching, Tan & Associates For the Respondant : Daniel Bock Jr Wei Messrs Shukur Baljit & Partners