Kirubagharan A/L Sivanadham v Hartawan Pasifik Sdn Bhd (WA-22NCvC-305-04/2021)

KIRUBAGHARAN A/L SIVANADHAM

FARAMALA DAWI A/P SAMY DURAI

THAMIL SELVI A/P LETCHUMANA PILLAI (NRIC NO.: 710507-02-5706) (suing as the Administrator of the Estate of THILLAINATHAN A/L MUNUSAMY (NRIC NO.: 650901-10- 5147))

THILLAINATHAN A/L MUNUSAMY (NRIC NO.: 650901-10-5147) …. PLAINTIFFS

HARTAWAN PASIFIK SDN BHD

KHALID HAJI AHMAD (Operating Under the Name & Style of Khalid Ahmad Architects)

PERUNDING JPC SDN BHD (COMPANY’S NO: 200601008363 (728112-M)) …DEFENDANTS 03/07/2026 17:48:40 WA-22NCvC-305-04/2021 Kand. 163 GROUNDS OF JUDGMENT

This action concerns a dispute arising from the delivery of vacant possession and the issuance of the Certificate of Completion and Compliance (“CCC”) for properties within a housing development known as Saffron Puteri Heights Phase 3, Rawang.

The Plaintiffs are purchasers of units within the said development. The 1st Defendant is the developer of the project. The 2nd Defendant is the architect and Principal Submitting Person (“PSP”) for the development, whilst the 3rd Defendant is the engineering consultant involved in the project.

The trial of this matter was fully heard before my learned brother Judge, now deceased. All witnesses had completed their evidence and the documentary evidence had been tendered before the learned Judge.

Following the passing of the learned Judge, this matter was reassigned before this Court for purposes of delivering the decision.

Upon reassignment of the matter, this Court directed parties to appear before this Court for oral clarification and highlighting of their respective written submissions previously filed after the completion of trial.

Accordingly, this Court has considered:

(a) the pleadings;

(b) the Notes of Proceedings;

(c) witness statements and oral evidence recorded at trial;

(d) the documentary exhibits tendered during trial;

(e) the written submissions and reply submissions of all parties; and

(f) The oral clarification subsequently presented before this Court.

Having carefully considered the entirety of the evidence and submissions, this Court now delivers its Grounds of Judgment.

The Plaintiffs purchased residential properties developed by the 1st Defendant within the Saffron Puteri Heights Phase 3 development pursuant to Sale and Purchase Agreements (“SPA”) governed by the Housing Development (Control and Licensing) Act 1966 and the prescribed statutory form of agreement.

The 2nd Defendant acted as the architect and PSP for the development. The 3rd Defendant acted as the engineering consultant in relation to portions of the infrastructure and engineering works for the project.

The CCC for the development was issued on 13.09.2013.

Vacant possession was thereafter delivered to the Plaintiffs in or around September 2013.

The Plaintiffs subsequently took possession and occupied the respective premises.

The Plaintiffs’ complaint in this action centres primarily upon alleged deficiencies relating to the water reticulation system, SYABAS/Air Selangor documentation, takeover processes, and subsequent regularisation matters involving the water infrastructure serving the development.

The Plaintiffs contend that the CCC dated 13.09.2013 was defective, invalid, and/or unlawfully issued because the requirements relating to water supply readiness and supporting documentation under Form G13 had allegedly not been properly satisfied at the material time.

It is the Plaintiffs’ case that as a consequence:

(a) lawful vacant possession was never validly delivered in 2013;

(b) the statutory and contractual requirements under the SPA were not fulfilled; and

(c) Liquidated Ascertained Damages (“LAD”) continued to accrue until much later, allegedly until the regularisation of the water infrastructure in or around 2023.

The Defendants deny the Plaintiffs’ claims and contend, inter alia, that:

(a) the CCC was lawfully issued pursuant to the statutory framework under the Street, Drainage and Building Act 1974 (“SDBA”);

(b) the PSP certification process and Forms G1-G21 requirements had been complied with;

(c) vacant possession was validly delivered in 2013;

(d) the Plaintiffs had occupied and utilised the premises thereafter; and

(e) subsequent utility, reticulation, takeover, or regularisation matters did not invalidate the CCC nor negate the legal effect of the delivery of vacant possession. C. ISSUES FOR DETERMINATION

Having considered the pleadings, evidence, and submissions, this Court is of the view that the principal issues for determination may be summarised as follows:

(a) Whether the CCC dated 13.09.2013 was defective and/or legally invalid;

(b) Whether vacant possession was lawfully delivered to the Plaintiffs in 2013;

(c) Whether the subsequent SYABAS/Air Selangor issues and regularisation matters rendered the CCC retrospectively invalid;

(d) Whether the 2nd and 3rd Defendants owed actionable duties to the Plaintiffs in the circumstances of this case;

(e) Whether the Plaintiffs are entitled to LAD and/or damages as claimed. D. THE STATUTORY CCC FRAMEWORK

Before considering the factual disputes, it is necessary to appreciate the statutory framework governing the issuance of the

Under the SDBA and the Uniform Building By-Laws, the CCC regime replaced the previous Certificate of Fitness for Occupation (“CFO”) system.

The CCC framework operates substantially through professional certification by the PSP and the relevant submitting professionals through Forms G1 to G21.

The statutory architecture therefore places substantial responsibility upon the PSP and the relevant professionals to certify compliance with the approved plans and statutory requirements prior to issuance of the CCC.

At the same time, the Court must recognise that the CCC regime does not operate upon a standard of absolute perfection whereby every subsequent irregularity, rectification, or later regulatory issue automatically nullifies an already-issued CCC.

The Court must therefore carefully distinguish between:

(a) subsequent operational, administrative, takeover, reticulation, or regularisation matters; and

(b) proof of legal invalidity of the CCC itself at the material time of issuance. E. WHETHER THE PLAINTIFFS HAVE PROVEN LEGAL INVALIDITY OF THE CCC

The Plaintiffs’ ultimate case, as clarified through their final submissions and reply submissions, is not merely that there were later water infrastructure issues.

Rather, the Plaintiffs contend that the CCC itself was substantively defective because the supporting documentation underlying Form G13 was allegedly insufficient or improper, particularly in relation to the water authority requirements.

The Plaintiffs further contend that because the statutory and contractual requirements under Clause 23 and Clause 31(e) of the SPA were allegedly not fulfilled, vacant possession was never lawfully delivered.

This Court accepts that there were indeed continuing matters relating to reticulation, takeover documentation, regularisation, and dealings with the relevant water authorities after issuance of the CCC.

The documentary evidence demonstrates the existence of subsequent correspondence, inspections, rectification processes, and continuing dealings involving SYABAS/Air Selangor and related authorities after 2013.

The Court also accepts that such matters understandably caused dissatisfaction and concern on the part of the Plaintiffs.

However, the existence of such subsequent matters does not, in and of itself, establish that the statutory and contractual threshold for issuance of the CCC and delivery of vacant possession had not been sufficiently satisfied in September 2013.

The Court is unable to accept the Plaintiffs’ proposition that every subsequent reticulation issue, takeover process, regularisation exercise, or later authority correspondence necessarily renders the CCC retrospectively void or invalid ab initio.

Importantly, no statutory provision has been identified before this Court which expressly provides that the subsequent matters relied upon by the Plaintiffs automatically invalidate an already-issued CCC.

Similarly, whilst the Plaintiffs strongly challenge the propriety and sufficiency of the supporting documentation underlying Form G13, the Court does not find sufficient evidence establishing that the 10.07.2013 documentation relied upon was legally incapable of supporting the issuance of the CCC.

The Court also notes that the local authority accepted the submissions made pursuant to the statutory process and the CCC was in fact issued under the prevailing statutory framework.

While such administrative acceptance may not necessarily cure every conceivable substantive defect, it nevertheless remains part of the overall factual and legal matrix to be considered by the Court.

The Plaintiffs have also not produced sufficiently clear evidence establishing that the development was wholly incapable of occupation, devoid of water supply, or entirely unfit for habitation at the material time.

On the contrary, the evidence demonstrates that vacant possession was delivered and the Plaintiffs thereafter occupied and utilised the premises.

The Court is therefore unable to conclude, on the balance of probabilities, that the Plaintiffs have established that the CCC dated 13.09.2013 was legally void, fraudulent, or incapable of supporting lawful delivery of vacant possession. F. SUBSEQUENT REGULARISATION AND LATER AUTHORITY

Much reliance was placed by the Plaintiffs upon the subsequent documentary history involving SYABAS/Air Selangor, including subsequent inspections, rectification requirements, takeover documentation, and eventual regularisation.

The Court accepts that such subsequent conduct may constitute relevant surrounding evidence.

However, subsequent rectification efforts and continuing authority dealings do not necessarily establish that the statutory threshold for lawful issuance of the CCC had not already been sufficiently met at the material time in September 2013.

The Court is unable to accept the proposition that every subsequent regulatory or operational issue retrospectively nullifies the legal effect of an already-issued CCC.

To hold otherwise would introduce substantial uncertainty into the statutory CCC framework and would potentially undermine the legal finality ordinarily attached to the issuance of a CCC under the statutory regime. G. WHETHER VACANT POSSESSION WAS LAWFULLY

The Plaintiffs’ claim for continuing LAD is fundamentally premised upon the proposition that lawful vacant possession never occurred until much later.

However, once the Plaintiffs fail to establish that the CCC was legally invalid, the foundation for the continuing LAD claim correspondingly weakens.

The evidence before this Court demonstrates that:

(a) the CCC was issued in September 2013;

(b) vacant possession was thereafter delivered; and

(c) the Plaintiffs occupied and utilised the premises thereafter.

Whilst subsequent utility and regularisation issues may have existed, this Court is unable to conclude that such matters negated the legal effect of the delivery of vacant possession in 2013.

The Court therefore finds that lawful vacant possession was sufficiently delivered in or around September 2013.

The Plaintiffs contend that the 2nd Defendant, as architect and PSP, negligently and/or wrongfully issued or supported the issuance of the CCC.

The Court accepts that in an appropriate case, a professional such as an architect or PSP may owe duties extending beyond pure contractual privity.

The Court further accepts that the statutory responsibilities imposed upon a PSP under the SDBA are significant and should not be lightly treated.

Nevertheless, on the evidence before this Court, the Plaintiffs have failed to establish sufficient proof that the 2nd Defendant fraudulently, dishonestly, recklessly, or unlawfully issued the CCC in the manner alleged.

The evidence falls short of establishing that the 2nd Defendant knowingly issued a CCC in circumstances where the statutory threshold for issuance had clearly not been met.

The Court is also mindful of the caution expressed in authorities such as Lok Kok Beng & Ors v Loh Chiak Eong & Anor [2015] 4 MLJ 734 against improperly extending SPA-based liabilities to non-contracting professionals in a manner inconsistent with the contractual framework. Lok Kok Beng & Ors v Loh Chiak Eong & Anor is a landmark Malaysian Federal Court case. It ruled that a project architect generally does not owe a duty of care to third-party purchasers for purely financial (pure economic) losses caused by construction delay.

In the circumstances, the Plaintiffs have failed to establish actionable liability against the 2nd Defendant. I.

The Plaintiffs similarly seek to impose liability upon the 3rd Defendant as engineering consultant involved in the development.

However, the nexus between the 3rd Defendant’s role and the Plaintiffs’ claimed LAD losses has not been satisfactorily established.

The Court does not find sufficient evidence establishing independent actionable negligence on the part of the 3rd Defendant causing the losses pleaded by the Plaintiffs.

Accordingly, the claims against the 3rd Defendant likewise fail. J.

The Plaintiffs’ claim for LAD extending until 2023 is fundamentally dependent upon establishing that:

(a) lawful vacant possession never occurred in 2013; and

(b) the CCC was legally ineffective or invalid.

However, this Court has found that the Plaintiffs failed to establish legal invalidity of the CCC.

This Court has further found that lawful vacant possession was sufficiently delivered in 2013.

In the circumstances, the Plaintiffs’ claim for continuing LAD until 2023 cannot be sustained.

The Court accepts that there were subsequent matters involving water reticulation, takeover documentation, regularisation processes, and continuing dealings with the relevant water authorities after issuance of the CCC.

However, the Plaintiffs have failed to establish, on the balance of probabilities, that:

(a) the CCC dated 13.09.2013 was legally invalid;

(b) vacant possession was ineffective in law;

(c) the statutory and contractual threshold for issuance of the CCC had not been sufficiently satisfied in September 2013; or

(d) the 2nd and 3rd Defendants incurred actionable liability in the manner alleged.

Accordingly, the Plaintiffs’ claims against all Defendants are dismissed.

Costs of RM15,000 are awarded to the Defendants, subject to allocatur. Dated: 3rd July 2026 ……………………………………………………………….. (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel for The Plaintiff : Dheebak Kumaran Messrs. Rasvin Sodhi & Co. (Kuala Lumpur) Advocates & Solicitors Counsel for The 1st Defendant : Rutheran Sivagnanam & Chong Yi Zhen Messrs. R. Sivagnanam & Assoc. (Kuala Lumpur) Advocates & Solicitors Counsel for The 2nd Defendant : K. Ganesan Messrs. Ganesan & Irmohizam (Kuala Lumpur) Advocates & Solicitors Counsel for The 3rd Defendant : Nurjeehan Abd Jabar & Siti Vunyra Iskandar Messrs. Steven Tai, Wong & Partners (Petaling Jaya) Advocates & Solicitors