Ooi Cheng Huat @ Ooi Peng Huat (Menyaman Atas Namanya Sendiri Dan Sebagai Wasi Dan Pemegang Amanah Harta Pusaka Linda Patricia Lim Sooi Hong, Si Mati) v Sime Darby Property (Bukit Jelutong) Sdn Bhd (BA-22C-43-10/2017)

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Schedule 1 in accordance with Clause 15(1) [Schedule I]. In deciding the above questions, can the court consider the effect of Selangor Uniform Building By-Laws 1986 (SUBBL)?; (ii) the Plaintiffs’ Renovation Works. In this regard, the Home Owners Manual provided that the Defendant “shall not be held responsible for any defect whatsoever arising after the renovation” [Exclusion Clause (Home Owners Manual)]; (iii) the Plaintiffs’ Lack of Maintenance (6 Bungalows); and/or (iv) Ordinary Wear and Tear (6 Bungalows); (b) can the Defendant rely on the expiry of DLP as provided in - (i) Clause 25(1) (Suits No. 43 to 45 and 47) for the 4 Bungalows (Suits No. 43 to 45 and 47); and (ii) clause 27(1) in Schedule I {Clause 27(1) [Schedule I]} for the 2 Bungalows (Suits No. 46 and 49) - as a ground to exclude the Defendant’s liability for the Alleged Defects (6 Bungalows)?; and (c) whether the Plaintiffs are barred from claiming for the Alleged Defects (6 Bungalows) on any one or more of the following grounds - (i) CCC had been issued for the 6 Bungalows; (ii) the Plaintiffs inspected the 6 Bungalows before taking delivery of vacant possession of the 6 Bungalows and did not complain about any defect in the 6 Bungalows [Plaintiffs’ Inspection of 6 Bungalows (Delivery of Vacant Possession)]; (iii) the Plaintiffs signed the Defendant’s “CRM Checklist” and “Inventory Checklist” for the 6 Bungalows without any complaint of any defect in the 6 Bungalows; (iv) the Plaintiffs had signed DRFs and FFs wherein the Plaintiffs had not denied their signatures (Genuine DRFs/FFs); and (v) some of the Alleged Defects (6 Bungalows) - (v)(a) had not been notified at all to the Defendant until the filing of the 6 Suits; and/or (v)(b) were only conveyed to the Defendant in the reports of the Plaintiffs’ experts (after the filing of the 6 Suits and before the commencement of Trial); and (d) in view of the application of HDA and HDR in the 6 Suits, can the Defendant invoke the equitable doctrine of estoppel against the Plaintiffs?; (7) if the Defendant is liable to the Plaintiffs for the Alleged Defects (6 Bungalows), whether the Plaintiffs can recover the following sums pursuant to s 74(1) of the Contracts Act 1950 (CA) - (a) Rectification Cost (6 Bungalows); and (b) Loss of Use/Enjoyment (6 Bungalows), including Loss of Rental (6 Bungalows). I am not able to find a previous Malaysian case which has decided on the issues raised in the above sub-paragraphs (2) and (3). E. Disputed Plaintiffs’ Signatures (Suits No. 43 to 45 and 47) E(1). Whether Plaintiffs (Suits No. 43 to 45 and 47) were required to plead Averment (Forgery) in 4 SOCs (Suits No. 43 to 45 and 47) 22. Mr. Rohan Arasoo A/L Jeyabalah, the Defendant’s learned counsel, had contended that the Plaintiffs (Suits No. 43 to 45 and 47) could not raise the Averment (Forgery) in Suits No. 43 to 45 and 47 because such an issue had not been pleaded in the 4 SOCs (Suits No. 43 to 45 and 47). 23. I reproduce below O 1A, O 2 r 1(2), O 18 r 7(1) and 12(1) RC: “O 1A Regard shall be to justice In administering [RC], the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with [RC]. O 2 r 1(2) [RC] are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective. O 18 r 7 Facts, not evidence, to be pleaded (1) Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits. O 18 r 12 Particulars of pleading (1) Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words - (a) particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies; and (b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.” (emphasis added). 24. I have no hesitation to decide that the Plaintiffs (Suits No. 43 to 45 and 47) were not required by O 18 rr 7(1) and 12(1) read with O 1A and O 2 r 1(2) RC to plead the Averment (Forgery) in the 4 SOCs (Suits No. 43 to 45 and 47). This decision is premised on the following reasons: (1) the sole cause of action for the Plaintiffs (Suits No. 43 to 45 and 47) against the Defendant is based on a breach of the 4 SPAs (Suits No. 43 to 45 and 47) with regard to the 4 Bungalows (Suits No. 43 to 45 and 47) [Sole Cause of Action (Suits No. 43 to 45 and 47)]. The Plaintiffs (Suits No. 43 to 45 and 47) were only required by O 18 rr 7(1) and 12(1) RC to plead the following particulars in the 4 SOCs (Suits No. 43 to 45 and 47) - (a) by virtue of O 18 r 7(1) RC, the 4 SOCs (Suits No. 43 to 45 and 47) - (i) “shall contain, and contain only, a statement in a summary form of the material facts” on which the Plaintiffs (Suits No. 43 to 45 and 47) rely for the Sole Cause of Action (Suits No. 43 to 45 and 47); (ii) shall not plead the evidence by which the Sole Cause of Action (Suits No. 43 to 45 and 47) is to be proved; and (iii) “shall be as brief as the nature of the case admits”. The Averment (Forgery) did not constitute a “material fact” upon which the Plaintiffs (Suits No. 43 to 45 and 47) could rely to prove the Sole Cause of Action (Suits No. 43 to 45 and 47). As such, the Plaintiffs (Suits No. 43 to 45 and 47) were not required to plead the Averment (Forgery) in the 4 SOCs (Suits No. 43 to 45 and 47); and (b) O 18 r 7(1) is subject to O 18 r 12(1) RC - please refer to Universiti Teknologi MARA v Magna Metier Sdn Bhd [2022] 5 AMR 583, at [20(2)]. According to O 18 r 12(1) RC, the 4 SOCs (Suits No. 43 to 45 and 47) “shall contain the necessary particulars” of the Sole Cause of Action (Suits No. 43 to 45 and 47). The Averment (Forgery) was not a “necessary particular” to support the Sole Cause of Action (Suits No. 43 to 45 and 47). Hence, the Plaintiffs (Suits No. 43 to 45 and 47) were not required by O 18 r 12(1) to plead the Averment (Forgery) in the 4 SOCs (Suits No. 43 to 45 and 47); and (2) according to O 1A and O 2 r 1(2) RC, when RC [including O 18 rr 7(1) and 12(1) RC] are administered by the court, the court “shall have regard to the overriding interest of justice”. I am not able to see how the Plaintiffs’ omission to plead the Averment (Forgery) in the 4 SOCs (Suits No. 43 to 45 and 47) had caused any injustice to the Defendant in resisting the 6 Suits, especially when the Defendant had adduced SD2’s Expert Opinion to rebut the Averment (Forgery). E(2). Did Plaintiffs (Suits No. 43 to 45 and 47) prove Averment (Forgery) on a balance of probabilities? 25. The Plaintiffs (Suits No. 43 to 45 and 47) bear the evidential burden under s 103 of the Evidence Act 1950 (EA) to prove the Averment (Forgery). Section 103 EA reads as follows: “s 103 Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” (emphasis added). 26. The Plaintiffs (Suits No. 43 to 45 and 47) are required to prove the Averment (Forgery) on a balance of probabilities - please refer to the judgment of the Supreme Court delivered by Anuar J (as he then was) in United Asian Bank Bhd v Tai Soon Heng Construction Sdn Bhd [1993] 1 MLJ 182, at 188. E(2A). Whether Plaintiffs (Suits No. 43 to 45 and 47) are required to adduce expert handwriting evidence 27. According to Mr. Rohan, the Plaintiffs (Suits No. 43 to 45 and 47) did not adduce any opinion from a handwriting expert to prove the Averment (Forgery), let alone rebut SD2’s Expert Opinion. 28. I am not able to accede to the above submission. My reasons are as follows: (1) s 45(1) EA provides as follows - “s 45(1) Opinions of experts When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.” (emphasis added). Section 45(1) EA does not provide that the court is bound by a handwriting expert’s opinion on the authenticity of a signature or otherwise (Handwriting Expert’s Opinion). This is because a trial judge has the primary duty as a decider of fact to decide on the genuineness of a signature or otherwise [Factual Issue (Genuineness of Signature)] and is not bound by a Handwriting Expert’s Opinion. If otherwise, the court would have abdicated its judicial duty to decide the Factual Issue (Genuineness of Signature) and in turn, a handwriting expert would have usurped the court’s function in this regard; (2) according to ss 47 and 73 EA - “s 47 Opinion as to handwriting when relevant When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to have been written or signed, that it was or was not written or signed by that person, is a relevant fact. Explanation - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. s 73 Comparison of signature, writing or seal with others admitted or proved (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared by a witness or by the court with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.” (emphasis added) A party (X) who has alleged that X’s signature or handwriting on a document has been forged (X’s Forgery Allegation) is not required to adduce a Handwriting Expert’s Opinion to discharge the evidential burden under s 103 EA to prove X’s Forgery Allegation. Nor can the court draw an adverse inference against X pursuant to s 114(g) EA for X’s failure to tender a Handwriting Expert’s Opinion to substantiate X’s Forgery Allegation. I refer to the following judgment in Hanson Quarry Products Sdn Bhd v Chong Boon Heng & Ors [2023] MLRHU 603, at [32(1)(a)] and [32(1)(b)] - “[32] … (1)(a) ss 47 and 73(1) [EA] state as follows - … By virtue of s 73(1) EA - (i) the court has a discretion to decide as a matter of fact regarding the genuineness of a person’s signature on a document (Signature A) by comparing Signature A with other undisputed signatures of that person (Undisputed Signatures); and (ii) the court does not need, let alone require, an opinion of a handwriting expert to assist the court to decide the authenticity of Signature A. According to s 47 EA, the court may decide on the genuineness of Signature A by way of evidence of persons who are “acquainted” with the signatures of the signatory of Signature A (as understood in the Explanation to s 47 EA); (b) in the Federal Court case of Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi Alias Sona Lena Alamelo Acho, Deceased) & Anor v Secure Plantations Sdn Bhd [2017] 4 MLJ 697, at [1] and [92] to [94], Jeffrey Tan FCJ delivered the following judgment - “[1] Leave was granted to the appellants to raise the following ‘questions of law’ before this court: … (3) whether a case of forgery can only be proved by means of the opinion of a handwriting expert? … [92] Inadvertent or not, the courts below plainly held that only the evidence of a forensic expert was sufficient in law to prove the alleged forgery. ‘But opinion as to handwriting is not confined to experts, but may be given by any person who is duly acquainted with it. It is not necessary to examine a handwriting expert in every case of disputed writing. No adverse inference can be drawn against a party from the fact that the opinion of the handwriting expert has not been obtained … ‘The modes of proof envisaged in ss 45 and 47 [EA] are not exclusive for proving the genuineness or authorship of a document’ (Woodroffe and Amir Ali Vol 2 at p 2237). Comparison may be made, by a handwriting expert under s 45 [EA], by anyone familiar with the handwriting of the person concerned as provided by s 47 [EA], or by the court itself. ‘As a matter of extreme caution and judicial sobriety, the court should not normally, take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of the experts. But this does not mean that the court does not have any power to compare the disputed signature with the admitted signature. That power is clearly available under s 73 [EA]’ (Woodroffe and Amir Ali Vol 2 at p 2236). But ‘if the feature of writing and signature on the documents are so glaring, that the court can form an opinion by itself either way, further exercise under s 45 may virtually become unnecessary or futile’ (Woodroffe and Amir Ali Vol 2 at p 2248). That was practically said in Siaw Kim Seong v Siew Swee Yin (f) & Anor [2009] 1 MLJ 349, where the supposed signatures of the plaintiff did not match his admitted signatures upon a cursory visual examination, and where it was said by the Court of Appeal per Gopal Sri Ram JCA, as he then was, delivering the judgment of the court, that the trial judge ought to have acted under s 73(1) [EA] and made the comparison himself and that ‘had the judge undertaken such an examination he would have concluded, even without the aid of an expert, that the signatures appearing on the assignment and the transfer were plain and undisguised forgeries’. It should be clear enough that a finding of forgery could be made without the opinion evidence of a handwriting expert, be it in civil (AGS Harta Sdn Bhd v Liew Yok Yin) or in criminal proceedings (Dato Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232 at p 277). [93] There was no opinion evidence from a handwriting expert. Yet the courts below should have considered the totality of the evidence, the evidentiary facts and made the inferences, and not just dismissed them as being of no probative value. … The testimony of a witness, or even the testimonies of witnesses, could not prevail over the inferences drawn from the total body of evidence. In the final analysis, there were two contrary versions, genuine versus forgery. But only the version of forgery was not at odds with the indirect evidence. On the balance of probabilities, forgery was proved. … [94] We have covered the ground to answer the leave questions, but in the following terms: … Leave question 3 - Whether a case of forgery can only be proved by means of the opinion of a handwriting expert? Answer: Negative.” (emphasis added). It is clear from Letchumanan Chettiar Alagappan that when the court decides whether Signature A has been forged or otherwise, no adverse inference can be drawn by the court under s 114(g) EA against a party (X) who has alleged forgery of Signature A on the ground that X has failed to procure an opinion of a handwriting expert that Signature A has been forged;” (emphasis added); (3) a Handwriting Expert’s Opinion, by its very nature, is subjective and cannot be conclusive. In the High Court case of Public Prosecutor v Mohamed Kassim bin Yatim [1977] 1 MLJ 64, at 66, Hashim Yeop Sani J (as he then was) has decided as follows - “It is settled law that evidence by a handwriting expert can never be conclusive because it is only opinion evidence - see Ishwari Prasad v Mohd Isa AIR 1963 SC 1728. The assessment of evidence of handwriting experts was also dealt with in Indar Datt v Emperor AIR 1931 Lahore 408 413. In that case In re B Venkata Row (1913) ILR 36 Mad 159; 14 IC 418; 13 cr LJ 226 was cited and also a quotation from Dr. Lawson's work on the Law of Expert and Opinion Evidence, which runs as follows: "The evidence of the genuineness of the signature based upon the comparison of handwriting and of the opinion of experts is entitled to proper consideration and weight. It must be confessed however that it is of the lowest order of evidence or of the most unsatisfactory character. We believe that in this opinion experienced laymen unite with the members of the legal profession. Of all kinds of evidence admitted in a court this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence." ” (emphasis added); (4) if X has given oral evidence to prove X’s Forgery Allegation and if the court finds X to be a credible witness (especially after vigorous cross-examination), X’s testimony, in itself, can discharge the evidential onus to prove X’s Forgery Allegation on a balance of probabilities; and (5) circumstantial evidence may prove X’s Forgery Allegation on a balance of probabilities. E(2B). Can court accept SD2 as a handwriting expert? 29. The Plaintiffs’ learned counsel, Mr. Colin Andrew Pereira, had invited the court to find as a fact that SD2 was not a competent handwriting expert under s 45(1) EA and on this ground alone, SD2’s Expert Opinion should be rejected. According to Mr. Pereira, the following judgments of the High Court had rejected SD2’s expert testimony on the authenticity of signatures: (1) the decision of Amelia Tee Hong Geok Abdullah J in Genevieve Christeta Bois v Public Prosecutor [2013] 1 LNS 947, at [42] and [43]; (2) in Tan Sri Dato’ Kam Woon Wah v Dato’ Sri Andrew Kam Tai Yeow [2021] 1 LNS 2207, at [74] to [96], Ong Chee Kwan JC (as he then was) preferred the opinion of one expert, Mr. William Pang Chan Kok (Mr. Pang), over SD2’s expert view; and (3) the judgment of Kamaludin Md. Said J (as he then was) in Goh Chin Chai v Goh Seng Chan [2016] 1 LNS 1660, at [44]. 30. In my earlier decision in Lai Kim Wa v Khiew Ju Meng & Ors [2023] 1 AMR 308, at [23] to [25], I have accepted SD2’s expert opinion and rejected the expert evidence of Mr. Pang. 31. Firstly, the factual findings of one or more courts regarding - (1) the competence of an expert (Y); and (2) the weight to be attached to Y’s expert testimony, if any [Previous Court’s Factual Findings (Y’s Expert Opinion)]; - does not bind another court. This is due to the following reasons - (a) from the view point of the doctrine of stare decisis, Previous Court’s Factual Findings (Y’s Expert Opinion) have no binding effect. This is because only the ratio decidendi in the written judgment of a superior court binds all lower courts. The ratio decidendi of a court’s written judgment is the legal proposition and reasoning (not the factual decision) which has been applied by the court to decide an issue which arises from the material facts of the case in question - please refer to Syahin Hafiy Danial Bin Soh Ahmad Luptepi Amin v Mansur Bin Yunus & Anor [2021] 8 MLJ 297, at [14]; and (b) Previous Court’s Factual Findings (Y’s Expert Opinion) are based on the particular facts and evidence adduced in those cases. Notwithstanding the fact that Previous Court’s Factual Findings (Y’s Expert Opinion) have no binding effect, if the court has decided as a matter of fact that Y is not a competent expert under s 45(1) EA and/or Y’s Expert Opinion should not be accepted (for any reason adduced in that case), the court may rely on Previous Court’s Factual Findings (Y’s Expert Opinion) to support such a finding of fact. 32. Secondly, notwithstanding the previous cases listed in the above paragraph 29 (which had rejected SD2’s expert evidence), I find as a fact that SD2 is a competent handwriting expert under s 45(1) EA to assist this court regarding the genuineness of the Disputed Plaintiffs’ Signatures (Suits No. 43 to 45 and 47) or otherwise. This finding of fact is based on SD2’s training and vast experience as a handwriting expert. E(2C). Should court accept SD2’s Expert Opinion? 33. Regrettably, I am not able to attach any weight to SD2’s Expert Opinion. This is because SD2 had not compared the Disputed Plaintiffs’ Signatures (Suits No. 43 to 45 and 47) on the Original Documents (Disputed Plaintiffs’ Signatures) with Undisputed Plaintiffs’ Signatures (Suits No. 43 to 45 and 47) on the Original Documents (Undisputed Plaintiffs’ Signatures). Only with the availability of the Original Documents (Disputed Plaintiffs’ Signatures) and Original Documents (Undisputed Plaintiffs’ Signatures) could SD2 ascertain the fluency of writing movement and the pressure of the pen(s) used by the Plaintiffs (Suits No. 43 to 45 and 47) on the Original Documents (Disputed Plaintiffs’ Signatures). The importance of the availability of original documents for the purpose of a forensic handwriting analysis has been explained in the following cases and article: (1) Mah Weng Kwai JCA has delivered the following judgment of the Court of Appeal in Bumiputra-Commerce Bank Bhd v Augusto Pompeo Romei & Anor [2014] 3 MLJ 672, at [33] - “[33] The court is mindful that the use of photocopies of original documents in handwriting/signature analysis may result in inaccurate and inconclusive findings as fine hand or pen movements would not be detectable as was held in CS Petroleum (M) Sdn Bhd v Public Bank Berhad & Other Cases [2011] 1 LNS 1349.” (emphasis added); (2) in the High Court case of CS Petroleum (M) Sdn Bhd v Public Bank Bhd & Other Cases [2011] 1 LNS 1349, at [73] and [74], Gunalan Muniandy JC (as he then was) has decided as follows - “[73] ... Very importantly [Plaintiff’s handwriting expert’s] report is entirely based on photocopies of the disputed cheques and documents and he had never sighted the original documents. ... [74] It is a well known fact in the field of document examination that the use of photocopies in handwriting/signature analysis would result in inaccurate and inconclusive findings as fine hand or pen movements would not be detectable. …” (emphasis added); and (3) Mr. Harcharan Singh Tara, a handwriting expert and former Director-General of the Chemistry Department, has expressed the following opinion in his article, “Examination of Handwriting and Signatures” [1995] 3 MLJ i, at iii - “Photostated copies of disputed signatures/writing are not so suitable for examination and all attempts should be made to obtain the originals.” (emphasis added). E(2D). Whether Plaintiffs (Suits No. 43 to 45 and 47) had proven forgeries of Disputed Plaintiffs’ Signatures (Suits No. 43 to 45 and 47) 34. I find as a fact that the Plaintiffs (Suits No. 43 to 45 and 47) have succeeded to prove the Averment (Forgery) on a balance of probabilities. This factual finding is premised on the following evidence and reasons: (1) the Plaintiffs (Suits No. 43 to 45 and 47) had given oral testimonies that the Disputed Plaintiffs’ Signatures (Suits No. 43 to 45 and 47) had been forged; (2) the cross-examination of the Plaintiffs (Suits No. 43 to 45 and 47) has not revealed any reason to doubt their veracity; (3) police reports regarding the forgeries of the Disputed Plaintiffs’ Signatures (Suits No. 43 to 45 and 47) had been lodged by the Plaintiffs (Suits No. 43 to 45 and 47); and (4) there is no reason for the Plaintiffs (Suits No. 43 to 45 and 47) to - (a) give false evidence that the Disputed Plaintiffs’ Signatures (Suits No. 43 to 45 and 47) had been forged. It is to be noted that s 193 of the Penal Code (PC) provides for a maximum imprisonment sentence of seven years and/or a fine for an offence of giving false evidence; and (b) according to s 182 PC, a person is liable to imprisonment up to six months and/or a fine not exceeding RM2,000.00 for an offence of making a false police report. 35. As explained in the above paragraph 34, the Disputed Plaintiffs’ Signatures (Suits No. 43 to 45 and 47) had been forged. Accordingly, the Plaintiffs (Suits No. 43 to 45 and 47) are not bound by DRFs and FFs which contained their forged signatures. F. Object of HDA and effect of HDR 36. In the Federal Court case of Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar & Anor and another appeal [2020] 1 CLJ 162, at [40], Tengku Maimun Binti Tuan Mat CJ has decided that “{Housing Development (Control and Licensing) Act 1966 [HDA]} being a social legislation designed to protect the house buyers, the interests of the purchasers shall be the paramount consideration against the developer” [Object (HDA)]. 37. I reproduce below reg. 11(1), (1A) and (1B) HDR: “Contract of sale. 11(1) Every contract of sale for the sale and purchase of a housing accommodation together with the subdivisional portion of land appurtenant thereto shall be in the form prescribed in Schedule G and where the contract of sale is for the sale and purchase of a housing accommodation in a subdivided building, in the form of a parcel of a building or land intended for subdivision into parcels, as the case may be, it shall be in the form prescribed in Schedule H. (1A) Notwithstanding paragraph (1), every contract of sale for build then sell for a housing accommodation together with the subdivisional portion of land appurtenant thereto shall be in the form prescribed in Schedule I and where the contract of sale for build then sell is for the sale and purchase of a housing accommodation in the form of a parcel of a building or land intended for subdivision into parcels, as the case may be, it shall be in the form prescribed in

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Schedule J; (1B) Subregulations (1) and (1A) shall not apply if at the time of the execution of the contract of sale, the certificate of completion and compliance for the housing accommodation has been issued and a certified true copy of which has been forwarded to the purchaser.” (emphasis added). 38. In SEA Housing Corporation Sdn Bhd v Lee Poh Choo [1982] 2 MLJ 31, the previous Federal Court (the Privy Council was then the apex court) had construed provisions in HDA and Housing Developers (Control and Licensing) Rules 1970 (1970 Rules). The Housing Developers (Control and Licensing) Regulations 1982 (1982 Regulations) had replaced 1970 Rules. HDR has subsequently repealed 1982 Regulations. Suffian LP has decided as follows in SEA Housing Corporation, at p. 24: “In Daiman Development Sdn Bhd v Mathew Lui Chin Teck [1978] 2 MLJ 239 we said at page 243 that developers are bound by the [1970 Rules] … … Mr. Chelliah argued that clause 32 is such a detail. With respect we do not agree. In our judgment such details as are inserted into a written agreement must be details consistent, not inconsistent with [HAD] and [1970 Rules]. Clause 32 is inconsistent with paragraph (r) of rule 12(1) [1970 Rules]. When Daiman went to the Privy Council [1981] 1 MLJ 56 their Lordships observed at page 60, second column: "… it seems to their Lordships that upon the proper construction of the proforma [used in that case] the solicitors [for the developer there] would not be able to include in the contract of sale any term or condition which was not appropriate to effectuate the sale which had been made, including for that purpose, of course, provisions to comply with the requirements of the [1970 Rules]." Thus it is clear that only terms and conditions designed to comply with the requirements of the [1970 Rules] that may be inserted in a contract of sale of land that is governed by [HDA] and [1970 Rules], and that on the contrary terms and conditions which purport to get round [HDA] and [1970 Rules] so as to remove the protection of home buyers may not be so inserted. With respect, the provisions in question here are similar to those in Johnson v Moreton [1978] 3 All ER 37, a House of Lords decision, where at page 49 Lord Hailsham said: "The policy of the law has been repeatedly used to protect the weaker of two parties who do not contract from bargaining positions of equal strength. The truth is that it can no longer be treated as axiomatic that, in the absence of explicit language, the courts will permit contracting out of the provisions of an Act of Parliament - as was attempted here - where that Act, though silent as to the possibility of contracting out, nevertheless is manifestly passed for the protection of a class of persons who do not negotiate from a position of equal strength, but in whose well-being there is a public as well as a private interest." It would appear that only "contracting out" in favour of the weaker party - i.e. the purchaser - might be countenanced by the courts.” (emphasis added). The above decision in SEA Housing Corporation was followed by Lord Oliver in the Privy Council in Loh Wai Lian v SEA Housing Corporation Sdn Bhd [1987] 2 MLJ 1, at 2. 39. I am of the following view regarding reg. 11(1), (1A) and (1B) HDR: (1) regs. 11(1) and (1A) HDR have mandatory effect due to the employment of an imperative term “shall” in those provisions; (2) reg. 11(1) HDR is subject to reg. 11(1A) HDR. This is clear from the words “Notwithstanding paragraph (1)” in reg. 11(1A) HDR; (3) according to reg. 11(1) HDR, if a “housing developer” (defined in s 3 HDA) sells - (a) a “housing accommodation” (defined in s 3 HDA) together with a subdivided portion of land appurtenant to the housing accommodation, the SPA “shall” be in Schedule G; and (b) a housing accommodation in a subdivided building, the SPA “shall” be in Schedule H to HDR (Schedule H); (4) reg. 11(1A) HDR provides that notwithstanding reg. 11(1) HDR, if a housing developer builds and then sell - (a) a housing accommodation together with a subdivided portion of land attached to the housing accommodation, the SPA “shall” be in Schedule I; and (b) a housing accommodation in a subdivided building, the SPA “shall” be in Schedule J to HDR (Schedule J); (5) according to reg. 11(1B) HDR, reg. 11(1) and (1A) HDR do not apply provided that at the time of the execution of the SPA - (a) the CCC for the housing accommodation has been issued; and (b) a certified true copy of the CCC has been forwarded to the purchaser. If reg. 11(1B) HDR applies, the SPA of the housing accommodation is not required to be in the form of a Statutory SPA (Schedule G, H, I or J). The 6 Bungalows concern the application of SUBBL. According to by-law 25(1) SUBBL, the CCC of a construction project (in Form F in the Second Schedule to SUBBL) shall be issued by the project’s “principal submitting person”. By-law 2 SUBBL defines a principal submitting person as a “qualified person” who has submitted “building plans” (defined in by-law 2 SUBBL) (Building Plans) to the local authority for approval in accordance with SUBBL and includes any other qualified person who has taken over the duties and responsibilities of or acts of the first-mentioned qualified person (in accordance with by-law 7 SUBBL); (6) a housing developer who intends to rely on reg. 11(1B) HDR has the evidential burden under s 103 EA to prove compliance with reg. 11(1B) HDR [as explained in the above sub-paragraph (5)]. Purchasers have no evidential onus to disprove the application of reg. 11(1B) HDR because purchasers are entitled to rely on the mandatory application of reg. 11(1) and (1A) HDR; (7) if reg. 11(1B) HDR does not apply, housing developers cannot contract out of reg. 11(1) and (1A) HDR due to the following reasons - (a) as explained in the above sub-paragraph (1), reg. 11(1) and (1A) HDR have mandatory effect; (b) the only exception to reg. 11(1) and (1A) HDR is reg. 11(1B) HDR; and (c) if a housing developer is allowed to contract out of reg. 11(1) and (1A) HDR - (i) this will defeat the Object (HDA); and (ii) this will be contrary to the ratio decidendi in SEA Housing Corporation; (8) in accordance with SEA Housing Corporation, purchasers of housing accommodation may contract out of reg. 11(1) and (1A) HDR in the sense that housing developers may agree to terms and conditions in the relevant Statutory SPA which are more favourable to the purchasers than those provided in the Statutory SPA; and (9) in the construction of the Statutory SPA - (a) if there is any ambiguity in any provision in the Statutory SPA, such an ambiguity should be resolved in favour of a purchaser of housing accommodation against a housing developer. Such an interpretation attains the Object (HDA); (b) Malaysian cases on contracts, in particular construction contracts, which do not involve the Statutory SPA (Non-Housing Development Contracts), should be read with caution because - (i) parties to Non-Housing Development Contracts have the freedom to contract and are not bound to follow the Statutory SPA; and (ii) there is no disparity in the bargaining power between the parties to Non-Housing Development Contracts which warrants Parliament to intervene by way of legislation (such as HDA); (c) even if a Non-Housing Development Contract has a provision which is identical or similar to a provision in the Statutory SPA, it has to be borne in mind that the Non-Housing Development Contract does not involve the attainment of the Object (HDA); and (d) cases from the Commonwealth which have decided on the effect of contractual provisions which are identical or similar to provisions in the Statutory SPAs, should be read with caution as these foreign cases do not concern the achievement of the Object (HDA). G. Whether Defendant can rely on reg. 11(1B) HDR in Suits No. 46 and 49 40. As explained in the above sub-paragraphs 39(5) and (6), for the Defendant to rely on reg. 11(1B) HDR in Suits No. 46 and 49, the Defendant has the evidential burden pursuant to s 103 EA to satisfy the court that at the time of the execution of the 2 SPAs (Suits No. 46 and 49): (1) the CCC for the Project dated 30.1.2015 [CCC (Project)] had been issued; and (2) a certified true copy of the CCC (Project) [CTC (Project’s CCC)] had been forwarded to the purchasers of the 2 Bungalows (Suits No. 46 and 49). 41. I have no hesitation to accept Mr. Pereira’s submission that the Defendant cannot rely on reg. 11(1B) HDR in Suits No. 46 and 49 because - (1) the Defendant did not adduce any evidence regarding the CTC (Project’s CCC); (2) no documentary evidence had been adduced in Suits No. 46 and 49 to prove that the CTC (Project’s CCC) had been forwarded to the purchasers of the 2 Bungalows (Suits No. 46 and 49) at the time of the signing of the 2 SPAs (Suits No. 46 and 49); (3) according to SP6 (for Suit No. 46), SP6 only received the CCC (Project) a few years after the conclusion of the SPA (Suit No. 46); and (4) SP7 (for Suit No. 49) testified that she had not received the CCC (Project). 42. I have not overlooked the Defendant’s letter dated 21.9.2015 to, among others, SP7 [Defendant’s Letter (21.9.2015)]. Attached to the Defendant’s Letter (21.9.2015) was a copy of the CCC (Project) [Attachment to Defendant’s Letter (21.9.2015)]. This court is not able to accept the Defendant’s Letter (21.9.2015) and Attachment to Defendant’s Letter (21.9.2015) as compliance with reg. 11(1B) HDR by the Defendant in Suit No. 49. My reasons are as follows: (1) there was no evidence that the Attachment to Defendant’s Letter (21.9.2015) had been certified as a true copy of the CCC (Project) by the Project’s principal submitting person [Ar. Kam Pak Cheong (Ar. Kam) from the Project Architect] or any person authorized by Ar. Kam; (2) the Defendant’s Letter (21.9.2015) stated that it had been sent by “Registered Mail” to the Plaintiffs (Suit No. 49). In view of SP7’s denial of receipt of the Defendant’s Letter (21.9.2015) and Attachment to Defendant’s Letter (21.9.2015), the Defendant should have adduced documentary evidence to prove the posting of the Defendant’s Letter (21.9.2015) and Attachment to Defendant’s Letter (21.9.2015) by way of Registered Post {Documentary Evidence [Posting of Defendant’s Letter (21.9.2015) and Attachment to Defendant’s Letter (21.9.2015)]}. Illustration (f) to s 114(f) EA states as follows - “s 114 Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume - … (f) that the common course of business has been followed in particular cases; … (vii) as to illustration (f) - the question is whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;” (emphasis added). The Defendant can only invoke the rebuttable presumption under s 114(f) EA that the Defendant’s Letter (21.9.2015) and Attachment to Defendant’s Letter (21.9.2015) had been received by the Plaintiffs (Suit No. 49) by way of Registered Post if the Defendant had adduced the Documentary Evidence [Posting of Defendant’s Letter (21.9.2015) and Attachment to Defendant’s Letter (21.9.2015)]. As the Defendant had failed to tender in Suit No. 49 the Documentary Evidence [Posting of Defendant’s Letter (21.9.2015) and Attachment to Defendant’s Letter (21.9.2015)], the Defendant cannot rely on s 114(f) EA to contend that - (a) there was a rebuttable presumption that the Plaintiffs (Suit No. 49) had received the Defendant’s Letter (21.9.2015) and Attachment to Defendant’s Letter (21.9.2015); and (b) the Plaintiffs (Suit No. 49) had the evidential burden to rebut the above rebuttable presumption; and (3) even if it is assumed that the Plaintiffs (Suit No. 49) had received the Defendant’s Letter (21.9.2015) and Attachment to Defendant’s Letter (21.9.2015), reg. 11(1B) HDR required the Defendant to forward the CTC (Project’s CCC) to the Plaintiffs (Suit No. 49) on 28.4.2015, the date of the signing of the SPA (Suit No. 49). 43. In any event, premised on of the evidence and reasons stated in the above paragraphs 40 to 42, I find as a fact that the Defendant has failed to discharge the evidential burden to prove the application of reg. 11(1B) HDR in Suits No. 46 and 49. 44. As explained in the above paragraphs 40 to 43 - (1) the 2 SPA’s (Suits No. 46 and 49) [including Section 6.01 (Suits No. 46 and 49)] cannot be enforced in Suits No. 46 and 49 because of the non-applicability of reg. 11(1B) HDR; and (2) in view of reg. 11(1A) HDA, Schedule I shall apply to the 2 Bungalows (Suits No. 46 and 49). H. Whether Defendant can rely on Home Owners Manual 45. I am of the view that the Defendant cannot rely on the Home Owners Manual as a defence to the 6 Suits because - (1) any reliance on the Home Owners Manual would allow the Defendant to circumvent - (a) the contents of the 4 SPAs (Suits No. 43 to 45 and 47) which have been mandatorily prescribed in Schedule G by virtue of reg. 11(1) HDR; (b) Schedule I which applies in Suits No. 46 and 49 by reason of - (i) the non-applicability of reg. 11(1B) HDR; and (ii) the invocation of reg. 11(1A) HDR; (2) according to ss 91 and 92 EA - “Evidence of terms of contracts, grants and other dispositions of property reduced to form of document s 91. When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. … Exclusion of evidence of oral agreement s 92. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms: Provided that - (a) any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law; (b) the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document; (c) the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved; (d) the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents; (e) any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of any such incident would not be repugnant to or inconsistent with the express terms of the contract; and (f) any fact may be proved which shows in what manner the language of a document is related to existing facts. …” (emphasis added). It is not disputed that in Suits No. 43 to 45 and 47, the Defendant cannot rely on any of the provisos (a) to (f) to s 92 EA. By virtue of ss 91 and 92 EA, as explained by Chang Min Tat FJ in the Federal Court case of Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229, at 232 to 233, the contents of the Home Owners Manual cannot - (a) contradict; (b) vary; (c) add to; or (d) subtract from - the 4 SPAs (Suits No. 43 to 45 and 47); and (3) the contents of the Home Owners Manual do not have any legal effect. This is clear from the second page of the Home Owners Manual (under the title “Provision”) - “This [Home Owners Manual] is for Owner’s reference purposes only. It is not legally binding and its contents are not to be taken, read and construed as an integral part of the [SPA] …” (emphasis added). I. Whether court can reject SD4’s report as evidence due to non-compliance with O 40A r 3(2)(g) and (h) RC 46. Mr. Pereira had invited the court to reject SD4’s Report as evidence solely on the ground that SD4’s Report had failed to comply with O 40A r 3(2)(g) and (h) RC. 47. O 40A r 3(2)(g) and (h) RC state as follows: “O 40A r 3 Requirements of expert’s evidence (1) Unless the Court otherwise directs, expert evidence to be given at the trial of any action, is to be given in a written report signed by the expert and exhibited in an affidavit sworn to or affirmed by him testifying that the report exhibited is his and that he accepts full responsibility for the report. (2) An expert’s report shall - … (g) contain a statement of belief of correctness of the expert’s opinion; and (h) contain a statement that the expert understands that in giving his report, his overriding duty is to the Court and that he complies with that duty.” (emphasis added). 48. According to Mr. Pereira, in the following cases, the court has rejected the admissibility of experts’ reports on the sole ground that the experts’ reports have failed to comply with the mandatory provisions of O 40A r 3 RC: (1) the judgment of Vernon Ong Kiat Lam JCA (as he then was) in the Court of Appeal case of Batu Kemas Industri Sdn Bhd v Kerajaan Malaysia & Anor [2015] 7 CLJ 849; (2) the High Court’s decision in Goh Chin Chai; and (3) Abdul Wahab Mohamed JC’s (as he then was) judgment in Teoh Ah Cha @ Teoh Sik Sen & Ors v Huatson Sdn Bhd & Ors [2018] 1 LNS 1037. Based on the above cases, Mr. Pereira had attempted to persuade this court to exclude SD4’s Report as evidence solely on the ground that SD4’s Report had failed to comply with the mandatory provisions of O 40A r 3(2)(g) and (h) RC. 49. Firstly, the requirements imposed by O 40A r 3(2)(a) to (h) RC regarding the contents of an expert’s report, are not mandatory. It is decided by Lau Bee Lan J (as she then was) in the High Court case of ADM Ventures (M) Sdn Bhd & Ors v Renew Capital Sdn Bhd and other cases [2021] MLJU 1466, at [88], as follows: “[88] By virtue of the opening words “unless the Court otherwise directs …” being present in O 40A r 3(1) [RC], I am of the respectful view that is not mandatory for the written report of the expert to be exhibited in an affidavit form sworn or affirmed by him. Consequentially premised on the authority of Datuk Captain Hamzah (supra), since the non-compliance is not mandatory in nature, in the interest of justice I invoke O 1A [RC] to overcome the technical non-compliance.” (emphasis added). The above judgment in ADM Ventures has been followed by John Lee Kien How @ Mohd Johan Lee JC (as he then was) in the High Court in Mercu Pusu Development Sdn Bhd v Setara Jaya Sdn Bhd [2022] MLJU 512, at [52] and [53]. I have no hesitation to accept the ratio decidendi of ADM Ventures and Mercu Pusu Development. 50. Secondly, Batu Kemas Industri has not decided that if an expert’s report does not comply with any of the paragraphs in O 40A r 3(2)(a) to (h) RC, the court should reject the admissibility of the expert’s report on this ground alone. 51. Thirdly, the High Court has decided in Goh Chin Chai and Teoh Ah Cha that if an expert’s report fails to comply with any of the paragraphs in O 40A r 3(2)(a) to (h) RC, the expert’s report cannot be admitted as evidence: (1) according to Goh Chin Chai, at [30] and [31] (in our National Language) - “[30] Berdasarkan kepada kegagalan mengeksibitkan laporan pakar yang disediakan dalam afidavit yang diikrarkan sepertimana kehendak Aturan 40A k 3(1), saya berpendapat laporan pakar P2 telah dikemukakan tanpa mematuhi arahan di bawah Aturan 40A k 3(1) Kaedah-Kaedah Mahkamah 2012. Adalah penting mematuhi peruntukan dalam Kaedah-Kaedah yang telah diadakan kerana tanggungjawab pakar adalah membantu Mahkamah dalam perkara-perkara dalam kemahirannya dan tanggungjawab ini mengatasi sebarang tanggungjawab terhadap mana-mana orang yang mana arahan diterima atau yang membayar saksi pakar itu (A 40A k 2). [31] Berdasarkan kepada ketakpatuhan itu maka laporan bertulis yang disediakan oleh SP1 tidak memenuh isyaratsyarat di bawah Kaedah-Kaedah Mahkamah 2012. Laporan bertulis SP1 dan keterangan yang diberikan wajar ditolak.” (emphasis added); and (2) the above judgment in Goh Chin Chai has been followed in Teoh Ah Cha, at [30] and [31] - “[30] Failure of an expert report to comply with Order 40A [RC] was a serious defect as may be seen in the case of Goh Chin Chai v. Goh Seng Chan [2016] 1 LNS 1660 where it was held as follows:- … [31] Based on the forensic report prepared by PW4, I agree with the Defendants that PW4 had failed to comply with the O 40A r 3(1) [RC] and that his evidence ought to be rejected by this court. It was also my finding that PW4 had failed to state in his report that his duty is to the Court and that he complies with that duty as required under O 40A r 3(2)(e) [RC].” (emphasis added). 52. Fourthly, as explained by Ong Hock Thye FJ (as he then was) in the Federal Court case of Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211, at 213, the ratio decidendi of a High Court’s judgment does not bind the other High Courts. With respect, I beg to differ with the ratio decidendi of Goh Chin Chai and Teoh Ah Cha. I am of the view that if an expert’s report does not comply with any of the paragraphs in O 40A r 3(2)(a) to (h) RC {Non-Compliance [O 40A r 3(2) RC]} - (1) notwithstanding the Non-Compliance [O 40A r 3(2) RC], the expert’s report is still admissible as evidence; and (2) the Non-Compliance [O 40A r 3(2) RC] may only adversely affect the weight to be attached by the court to the expert’s report, affidavit and oral testimony. The above opinion is supported by the following considerations - (a) O 40A r 3(2) RC does not provide, either expressly or by necessary implication, that the expert’s report is inadmissible as evidence solely due to the Non-Compliance [O 40A r 3(2) RC]. It is decided as follows in Kingtime International Ltd & Anor v Petrofac E&C Sdn Bhd [2018] MLJU 1840, at [24(5)] - “[24] I am of the following view regarding an expert’s duties: … (5) if an expert - (a) is not independent or is perceived to be not independent; or (b) has breached the Duty To Disclose the Court cannot reject the expert’s evidence. This view is supported by the following reasons - (i) O 40A r 2(1) and (2) RC do not provide for admissibility or exclusion of expert evidence; (ii) s 45(1) EA provides for expert evidence as follows - … Section 45(1) EA does not bar the admissibility of expert evidence on the ground that the expert is not independent (in fact or perceived as such) or has failed to comply with the Duty To Disclose;” (emphasis added); (b) in Mercu Pusu Development - (i) the valuation report (VR) of an expert valuer did not comply with O 40A r 3 RC; and (ii) the defendant had applied to the High Court to exclude as evidence both the VR and the valuer’s oral evidence solely on the ground that O 40A r 3 RC had been breached. It is decided in Mercu Pusu Development, at [42] to [45], as follows - “[42] I shall now proceed with the next issue, in which the parties disputed as to the admissibility of the VR. The Defendant contended that the VR should be disregarded and/or set aside by this Court due to its incompliance to the mandatory requirements set in Order 40A Rule 3 [RC]. [43] The Defendant further elaborated that it is mandatory for the expert evidence to be given in a written report and exhibited in an affidavit sworn by the maker of the report. The Plaintiff’s expert witness in this case had produced the VR in a common bundle as usual documentary evidence attached with a statutory declaration. [44] I differ with the Defendant on this because Order 40A Rule 3 [RC] does not bar the Court from accepting the witness’s oral testimony if the expert’s opinion was not done in accordance to Order 40A rule 3 [RC]. … [45] While Order 40A rule 3 detects that written expert opinion needs to be tendered in accordance with the format laid down in it, there is nothing to impede the witness from giving their oral testimony stating their opinion as to facts. The court may still consider PW1’s testimony under section 59 [EA], where it states: 59. “Proof of facts by oral evidence All facts, except the documents, may be proved by oral evidence.” ” (emphasis added); (c) by virtue of O 2 r 1(1) RC, the Non-Compliance [O 40A r 3(2) RC] “shall be treated as an irregularity and shall not nullify” the expert’s report and the court may “make such order, if any, dealing with the proceedings generally as it or he thinks fit in order to cure the irregularity”, ie., the Non-Compliance [O 40A r 3(2) RC], pursuant to O 2 r 1(3) RC. I reproduce below O 2 r 1(1) and (3) RC - “O 2 r 1 Non-compliance with Rules (1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been non-compliance with the requirement of these Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. … (3) The Court or Judge may, on the ground that there has been such non-compliance as referred to in paragraph (1), and on such terms as to costs or otherwise as it or he thinks just, bearing in mind the overriding objective of these Rules, exercise its or his discretion under these Rules to allow such amendments, if any, to be made and to make such order, if any, dealing with the proceedings generally as it or he thinks fit in order to cure the irregularity.” (emphasis added). In Mercu Pusu Development, at [53] and [54], the High Court had exercised its discretion pursuant to O 2 r 1(1) RC to cure the non-compliance with O 40A r 3 RC; (d) O 1A and O 2 r 1(2) RC require the court to administer O 40A r 3(2)(a) to (h) RC with regard to the overriding interest of justice - please refer to ADM Ventures, at [88]; and (e) no injustice is caused by the Non-Compliance [O 40A r 3(2) RC] because - (i) the report and affidavit of an expert (S) which do not comply with O 40A r 3(2) RC is disclosed to the opposing party’s expert (T) before the commencement of a trial and T may then assist the court with regard to T’s rebuttal, if any, to the contents of S’s report and affidavit; (ii) T’s learned counsel has a right to cross-examine S in respect of the Non-Compliance [O 40A r 3(2) RC], contents of S’s report, affidavit and S’s oral evidence; and (iii) T’s learned counsel has a right to submit, orally and in writing, on the Non-Compliance [O 40A r 3(2) RC], contents of S’s report, affidavit and S’s oral testimony. 53. As explained in the above paragraph 52, I am not able to accede to Mr. Pereira’s application for this court to exclude SD4’s Report as evidence in Suits No. 45, 47 and 49. J. Did Defendant breach Clause 13 (Suits No. 45 and 47) and Clause 15(1) [Schedule I] by using Red Balau timber in 3 Bungalows (Suits No. 45, 47 and 49)? 54. Mr. Pereira had submitted as follows, among others: (1) SP15, a timber expert, had examined parts of timber taken from the 3 Bungalows (Suits No. 45, 47 and 49) (Timber Parts). According to SP15’s examination of the Timber Parts, Red Balau (not Yellow Balau) timber was used by the Defendant in the construction of the 3 Bungalows (Suits No. 45, 47 and 49); (2) SP15 had given the following expert view (SP15’s Expert Opinion) - (a) Red Balau timber is classified as “SG3” under “MS 544, 2001”, “Code of Practice for Structural Use of Timber: Part 2, Permissible Stress Design of Solid Timber” from the Department of Standards Malaysia (MS 544); and (b) according to MS 544, Yellow Balau timber is classified as “SG 1” which is “stronger” than Red Balau timber (classified as “SG 3” in MS 544); (3) based on the reasons advanced by Mr. Pereira, the court should prefer SP15’s Expert Opinion to SD4’s expert evidence (SD4’s Expert Opinion); and (4) in view of SP15’s Expert Opinion, the Defendant had breached - (a) Clause 13 (Suits No. 45 and 47); and (b) Clause 15(1) [Schedule I] [which applies to Suit No. 49 upon the application of reg. 11(1A) HDR]. According to Mr. Pereira, due to the High Purchase Prices, the Defendant should have used Yellow Balau (not Red Balau) timber in the construction of the 3 Bungalows (Suits No. 45, 47 and 49). Reliance had been placed on the following two High Court decisions - (i) the judgment of Lim Chong Fong J (as he then was) in Dua Residency Management Corporation v Edisi Utama Sdn Bhd & Anor [2021] 1 LNS 174; and (ii) See Mee Chun J’s (as she then was) decision in Portland Arena Sdn Bhd v Sime Darby Property Bhd [2014] 1 LNS 1562. J(1). Interpretation of Clause 13 (Suits No. 45 and 47) and Clause 15(1) [Schedule I] 55. I reproduce below the relevant part of Clause 13 (Suits No. 45 and 47) and Clause 15(1) [Schedule I]: “Clause 13 (Suits No. 45 and 47) Materials and workmanship to conform to description The said Building shall be constructed in a good and workmanlike manner in accordance with the description set out in the Fourth Schedule hereto and in accordance with the plans approved by the Appropriate Authority as in the Second Schedule, which descriptions and plans have been accepted and approved by the Purchaser, as the Purchaser hereby acknowledges. ... Clause 15(1) [Schedule I] Materials and workmanship to conform to description 15(1) The said Building shall be constructed in a good and workmanlike manner in accordance with the description set out in the Fourth Schedule and in accordance with the plans approved by the Appropriate Authority as in the Second Schedule, which descriptions and plans have been accepted and consented by the Purchaser, as the Purchaser hereby acknowledges.” (emphasis added). The Second Schedule to the 2 SPAs (Suits No. 45 and 47) and the Second Schedule to the Statutory SPA in Schedule I [collectively referred to in this judgment as the “2nd Schedule (SPAs)”] contain the approved Building Plans for the 3 Bungalows (Suits No. 45, 47 and 49). This judgment shall refer collectively to the Fourth Schedule to the 2 SPAs (Suits No. 45 and 47) and the Fourth Schedule to the Statutory SPA in Schedule I as the “4th Schedule (SPAs)”. The 4th Schedule (SPAs) provides the particulars for the materials to be used in the construction of the 3 Bungalows (Suits No. 45, 47 and 49). 56. Section 74(1) CA provides as follows: “Compensation for loss or damage caused by breach of contract 74(1) CA When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.” (emphasis added). As explained in Jambatan Merah Sdn Bhd (in liquidation) v Public Bank Bhd [2016] 1 CLJ 811, at [46], a party can only claim for loss due to a breach of a contract if the loss falls within the following two limbs of s 74(1) CA {2 Limbs [Section 74(1) CA]}: (1) the loss “naturally arose in the usual course of things” from the breach of the contract within the meaning of the first limb of s 74(1) CA {1st Limb [Section 74(1) CA]}; and/or (2) both the contracting parties “knew, when they made the contract” that the “loss was likely to result from the breach” of the contract as understood in the second limb of s 74(1) CA {2nd Limb [Section 74(1) CA]}. 57. I construe Clause 13 (Suits No. 45 and 47) and Clause 15(1) [Schedule I] as follows: (1) Clause 13 (Suits No. 45 and 47) and Clause 15(1) [Schedule I] require a housing developer to - (a) construct a housing accommodation in accordance with the approved Building Plans as laid down in the 2nd Schedule (SPAs); (b) use materials in the building of a housing accommodation (Construction Materials) which conforms to the description in the 4th Schedule (SPAs) [Housing Developer’s Obligation (Materials)]; and (c) construct a housing accommodation in a “good and workmanlike manner” in accordance with - (i) the 4th Schedule (SPAs); and (ii) the 2nd Schedule (SPAs) [Housing Developer’s Obligation (Good Workmanship)]; (2) the nature and extent of a Housing Developer’s Obligation (Materials) and Housing Developer’s Obligation (Good Workmanship) are dependent on the price of the housing accommodation [Price (Housing Accommodation)]. The relevance of the Price (Housing Accommodation) is clear from the following reasons - (a) the Price (Housing Accommodation) is the valuable consideration furnished by the purchaser to the housing developer for the housing accommodation; (b) in determining the loss which may be claimed by a purchaser of a housing accommodation from a housing developer for breach of a Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship) - (i) the court has to consider the Price (Housing Accommodation) in deciding whether the loss “naturally arose in the usual course of things” from the breach of the contract - please refer to the 1st Limb [Section 74(1) CA]; and/or (ii) premised on the Price (Housing Accommodation), both the purchaser and housing developer would have known, when they made the contract, whether the “loss was likely to result from the breach” of the contract - please see the 2nd Limb [Section 74(1) CA]; and (c) Dua Residency Management Corporation has interpreted a contractual provision which is substantially similar to Clause 13 (Suits No. 45 and 47) and Clause 15(1) [Schedule I]. It is decided in Dua Residency Management Corporation, at [91] and [115], as follows - “[91] Furthermore, the Plaintiff relied on three-fold implied terms expounded in the 1966 English Court of Appeal case of Hancock and Others v. B W Brazier (Anerley) Ltd [1966] 2 All ER 901 (CA), in which the plaintiff, the purchaser of a house built by the defendants, sued for damages for breach of contract in failing to erect and complete the house purchased in a proper and workmanlike manner after the purchaser’s house suffered from substantial damage due to the usage of unsuitable materials during its construction. Lord Denning held that apart from the express clauses contained within the contract entered into between the plaintiff and the defendants in the sale and purchase of the house, the defendant builders were also bound by a threefold implication in law: “It is quite clear from Lawrence v. Cassel (1) and Miller v. Cannon Hill Estates, Ltd (2), that when a purchaser buys a house from a builder who contracts to build it, there is a threefold implication: that the builder will do his work in a good and workmanlike manner; that he will supply good and proper materials; and that it will be reasonably fit for human habitation. Sometimes this implication, or some part of it, may be excluded by an express provision, as for instance in Lynch v. Thorne (3). … The question in this case is whether the threefold implication is excluded by cl. 9. I think that it is not, for this simple reason: cl. 9 deals only with workmanship. It does not deal with materials. The quality of materials is left to be implied; and the necessary implication is that they should be good and suitable for the work. I am quite clear that it is implied in the contract that the hardcore must be good and proper hardcore, in the same way as the bricks must be good and proper bricks. I know that the builders were not at fault themselves. Nevertheless this is a contract: it was their responsibility to see that good and proper hardcore was put in. As it was not put in, they are in breach of their contract. If it is any consolation to them, they can try and get hold of their suppliers and sue them if they can prove it against them; but they have to take responsibility so far as the purchasers are concerned.” (emphasis added) This three-fold implied terms principle has been accepted in the Malaysian cases of Teh Khem On & Anor v. Yeoh & Wu Development Sdn Bhd & Ors [1995] 2 MLJ 663 as well as Komala Devi M Perumal v. Bandar Eco-Setia Sdn Bhd & Anor [2016] 1 LNS 1053. … [115] First and foremost, I have no qualms that this Condominium is indeed an expensive high end condominium located in a prestigious location in the Golden Triangle of Kuala Lumpur. In the English case of Brown v. Gilbert-Scott [1992] 35 Con LR 120, Mr Recorder Coles QC held as follows: “... if you buy a Mini Minor you cannot expect to have a car with all the attributes of a Rolls-Royce and the same must be true of building works.” Likewise, I hold this must be conversely true if it is for an expensive high end building; see also the English Court of Appeal case of Cotton v. Wallis [1955] 1 WLR 1168. In other words, the quality expectation should generally commensurate with the price.” (emphasis added); (3) taking into consideration the Price (Housing Accommodation), a Housing Developer’s Obligation (Materials) is breached if the housing developer uses Construction Materials which - (a) is contrary to the 4th Schedule (SPAs); (b) causes defects, patent and/or latent, in a housing accommodation which should not have occurred in view of the Price (Housing Accommodation); and/or (c) will render the housing accommodation not fit for human habitation for a purchaser who has paid the Price (Housing Accommodation); (4) based on the Price (Housing Accommodation), a Housing Developer’s Obligation (Good Workmanship) is not fulfilled when a housing developer’s workmanship in a housing accommodation causes - (a) patent and/or latent defects in a housing accommodation which should not have occurred in view of the Price (Housing Accommodation); and/or (b) the housing accommodation to be not fit for human habitation for a purchaser who has paid the Price (Housing Accommodation); and (5) a breach of SUBBL does not create an independent cause of action in the form of a tort of breach of statutory duty - please refer to the judgment of Lee Swee Seng J (as he then was) in the High Court in KL Eco City Sdn Bhd v Tuck Sin Engineering & Construction Sdn Bhd & Anor [2020] 1 LNS 360, at [187] and [188]. Having said that, in deciding the extent of a Housing Developer’s Obligation (Materials) and Housing Developer’s Obligation (Good Workmanship), the court may consider the effect of SUBBL. This is because the building plans for the housing accommodation as laid down in the 2nd Schedule (SPAs) can only be approved by the local authority if the housing developer complies with SUBBL. J(2). Whether Defendant had breached Housing Developer’s Obligation (Materials) by using Red Balau timber in 3 Bungalows (Suits No. 45, 47 and 49) 58. The 4th Schedule (SPAs) has not specified the particular type of timber, let alone Yellow Balau timber, to be used in the construction of 3 Bungalows (Suits No. 45, 47 and 49). Nonetheless, even if this court accepts SP15’s Expert Opinion [the Defendant had used Red Balau to construct the 3 Bungalows (Suits No. 45, 47 and 49)], I decide that the Defendant has not breached Housing Developer’s Obligation (Materials). My reasons are as follows: (1) SP15 did not offer any expert testimony that in view of the High Purchase Prices, Red Balau timber is not a strong timber which should not have been used by the Defendant in the building of the 3 Bungalows (Suits No. 45, 47 and 49); and (2) there is no evidence to show that the Defendant’s use of Red Balau timber in the construction of the 3 Bungalows (Suits No. 45, 47 and 49) - (a) had caused any patent and/or latent defect in the 3 Bungalows (Suits No. 45, 47 and 49) which should not have occurred in view of the High Purchase Prices; and (b) had rendered the 3 Bungalows (Suits No. 45, 47 and 49) not fit for human habitation for the purchasers who had paid the High Purchase Prices for the 3 Bungalows (Suits No. 45, 47 and 49). K. Alleged Defects (6 Bungalows) 59. It is not disputed that the Plaintiffs bear the legal and evidential burden to prove on a balance of probabilities - (1) the existence of the Alleged Defects (6 Bungalows); and (2) the causa causans of the Alleged Defects (6 Bungalows) was - (a) the Defendant’s breach of Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship) as provided in Clause 13 (Suits No. 43 to 45 and 47) and Clause 15(1) [Schedule I]; (b) not the Plaintiffs’ Renovation Works; (c) not the Plaintiffs’ Lack of Maintenance (6 Bungalows); and/or (d) not Ordinary Wear and Tear (6 Bungalows). In deciding the causa causans of the Alleged Defects (6 Bungalows), I refer to the following judgment in Tropicana Golf & Country Resort Bhd v Loke Wei Kuen & Ors and three other appeals [2023] 2 MLRH 453, at [35], [36], [79] and [80] - “[35] Firstly, a plaintiff can only claim for damages from a defendant for a tort if the causa causans of the plaintiff’s injury, loss and/or damage [Loss/Injury/Damage] is the commission of the tort by the defendant. This is a question regarding “causation in fact” of the Loss/Injury/Damage (Factual Causation Issue). Besides the term causa causans, case law has used various terms, ie., “effective” cause, “real” cause, “proximate” cause, “immediate” cause, “operative” cause, “dominant” cause, “true” cause and “substantial” cause as the factual cause of the Loss/Injury/Damage which is enforceable in law. In this judgment, I will employ the term causa causans as the factual cause of the Loss/Injury/Damage which is enforceable in law. This is because of the following judgment by Steve Shim CJ (Sabah & Sarawak) in the Federal Court case of Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389, at [4]: “[4] … The expression 'causa causans' merely means a cause that causes (see Smith, Hogg & Company Ltd v Black Sea & Baltic General Insurance Co Ltd [1940] AC 997 at p 1003). There may be more than one cause that causes a particular injury. From the passage cited above, it would appear that Mr Abraham was of the view that causa causans merely meant an effective cause. It has been held that such an expression should be avoided as the issue of causation does not necessarily turn upon it (see Environment Agency (Formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 23 at p 29). Causation is a matter to be determined by common sense and what the law regards as fair, just and reasonable in the circumstances of a particular case (see Fairchild (suing on her own behalf) etc v Glenhaven Funeral Services Ltd & Ors, etc [2002] 3 WLR 89, March v E & MH Stramare Pty Ltd & Anor (1991) 99 ALR 423 at p 429). The relevant question is whether the acts and/or omissions of a particular defendant made a material contribution to the harm suffered by the plaintiff (see Bonnington Castings v Wardlaw [1956] AC 613 at pp 620, 623; Nicholsons & Ors v Atlas Steel Foundary & Engineering Co Ltd [1957] 1 WLR 631 at p 624; Fairchild (suing on her own behalf) etc v Glenhaven Funeral Services; Chappel v Hart (1998) 156 ALR 517 at pp 524–524).” (emphasis added). [36] I am of the following view regarding the Factual Causation Issue: (1) cases have not spoken with one voice regarding the Factual Causation Issue. Each written judgment on the Factual Causation Issue depends on the particular facts of the case in question. Hence, previous decisions concerning the Factual Causation Issue cannot constitute binding legal precedents from the view point of the doctrine of stare decisis; (2) a plaintiff bears the evidential onus to satisfy the court on a balance of probabilities regarding the Factual Causation Issue, namely, the commission of a tort by the defendant is the causa causans of the Loss/Injury/Damage; and (3) the following considerations are relevant in the determination of the Factual Causation Issue - (a) the most important consideration is common sense - Majlis Perbandaran Ampang Jaya; (b) what is fair, just and reasonable in the circumstances of the case in question - Majlis Perbandaran Ampang Jaya; (c) policy considerations are relevant according to the following joint judgment of Mason CJ, Deane and Toohey JJ in the High Court of Australia (the highest court in Australia) in Bennett v Minister of Community Welfare (1992) 107 ALR 617, at 619 - “In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense. In resolving that question, the “but for” test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude.” (emphasis added); and (d) the court may apply the “but for” test, ie., would the plaintiff have suffered the Loss/Injury/Damage “but for” the commission of a tort by the defendant? - please refer to Ravi A/L Ratnam v Ghandi Rajan A/L Arjunan & Ors [2020] 7 MLJ 591, at [23] and [24]. … [79] When a contract is breached, the innocent party to the contract has the burden to prove that the causa causans of the innocent party’s loss and/or damage, is the breach of contract. I rely on the following judgment of Glidewell LJ in UK’s Court of Appeal case of Galoo Ltd (in liquidation) v Bright Grahame Murra [1994] 1 WLR 1360, at 1369-1370 - “This argument depends upon the nature of the causation necessary to establish liability for breach of duty, whether in contract or in tort. There is no doubt that this is one of the most difficult areas of the law. Both counsel are agreed that, at least in the context of this case, the principles applicable to liability in either contract or tort are the same. Mr. Hunter, for the defendants, submits that the plaintiff's case depends upon the adoption of the "but for” test of causation which, at least in contract, is not the proper test in English law. This is causation of the kind which has sometimes been referred to as a "causa sine qua non.” In Chitty on Contracts, 26th ed. (1989), vol. 2, pp. 1128– 1129, para. 1785, the editors say: "The important issue in remoteness of damage in the law of contract is whether a particular loss was within the reasonable contemplation of the parties, but causation must also be proved: there must be a causal connection between the defendant's breach of contract and the plaintiff's loss. The courts have avoided laying down any formal tests for causation: they have relied on common sense to guide decisions as to whether a breach of contract is a sufficiently substantial cause of the plaintiff's loss. (It need not be the sole cause).” ” (emphasis added). [80] Premised on Galoo Ltd, the test for causation for torts and breaches of contract is the same. I accept this legal position as there is nothing in principle which justifies a test for deciding the causa causans for a plaintiff’s Loss/Injury/Damage due to the commission of a tort which is different from a test used to decide the issue of causation for breaches of agreements. Nor is such a difference supported by any policy consideration. Accordingly, the cases discussed in the above paragraphs 35 and 36 regarding causation for torts, apply in deciding whether the causa causans for a plaintiff’s loss and/or damage arises from a breach of contract.” (emphasis added). K(1). Whether court needs expert evidence regarding defects in housing accommodation 60. It is decided in Era Kemuncak Jaya (M) Sdn Bhd v Tenaga Switchgear Sdn Bhd [2022] 1 MLRH 208, at [37], as follows: “[37] Secondly, I am of the view that the court can decide the following three questions (3 Questions) in this case without the assistance of any expert testimony: (1) the Issue (Breach of Contract); (2) the Issue (Remoteness of Damage) under s 74(1) CA; and (3) the Issue (Quantum of Damages). I acknowledge that there may be exceptional cases when the 3 Questions involve a highly technical matter which is beyond the competence of the court. In such exceptional matters, an expert’s opinion may assist the court to decide the 3 Questions. In this case, the 3 Questions did not concern any highly technical matter which necessitated the Defendant to adduce any expert view. Regrettably, SD5’s Opinion on the 3 Questions unnecessarily protracted the trial and escalated the costs incurred in this case.” (emphasis added). K(1A). Does court need expert testimony regarding alleged defects in air conditioners installed in 6 Bungalows (Air Conditioners)? 61. The Plaintiffs had claimed the existence of the following defects regarding the Air Conditioners, - (1) for the five bungalows in Suits No. 43, 44, 45, 46 and 47 [5 Bungalows (Suits No. 43 to 47)] - (a) “cooling load” of a particular area refers to the amount of energy which is required by an air conditioner to cool the area at a particular temperature. The kitchen and entrance areas of the 5 Bungalows (Suits No. 43 to 47) have a high cooling load but the Defendant had installed “under-capacity” Air Conditioners in those areas. Consequently, there was “sweating” at the “Supply Diffuser” of the Air Conditioners in the 5 Bungalows (Suits No. 43 to 47) {Sweating at Supply Diffuser [Air Conditioners in 5 Bungalows (Suits No. 43 to 47)]}; and (b) the Defendant had used a “foam insulation” to wrap the pipe for the outdoor Air-Conditioners [Pipe (Air Conditioners)]. This foam insulation was too soft to protect the Pipe (Air Conditioners) {Unsuitable Pipe Insulation [Air Conditioners in 5 Bungalows (Suits No. 43 to 47)]}; and (2) in respect of Bungalow (Suit No. 49), there was a condensation problem in respect of the Air Conditioners {Condensation Problem [Air-Conditioners in Bungalow (Suit No. 49)]}. 62. In respect of - (1) Sweating at Supply Diffuser [Air Conditioners in 5 Bungalows (Suits No. 43 to 47)]; (2) Unsuitable Pipe Insulation [Air Conditioners in 5 Bungalows (Suits No. 43 to 47)]; and (3) Condensation Problem [Air-Conditioners in Bungalow (Suit No. 49)] [collectively referred to in this judgment as “Alleged Defects (Air Conditioners)”] the court needs expert opinion to decide the following issues - (a) whether the Alleged Defects (Air Conditioners) exist; and (b) whether the causa causans of the Alleged Defects (Air Conditioners) was - (i) the Defendant’s breach of Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship); (ii) not the Plaintiffs’ Renovation Works; (iii) not the Plaintiffs’ Lack of Maintenance (6 Bungalows); and/or (iv) not Ordinary Wear and Tear (6 Bungalows). K(1B). Whether court needs expert evidence regarding Alleged Defects (6 Bungalows) other than Alleged Defects (Air Conditioners) 63. In this judgment, I shall refer to all the Alleged Defects (6 Bungalows) other than the Alleged Defects (Air Conditioners) as the “Alleged Other Defects (6 Bungalows)”. 64. As explained in Era Kemuncak Jaya, the court does not need expert testimony to decide on the existence and cause of the Alleged Other Defects (6 Bungalows). Having said that, the court may be assisted by expert opinions regarding the Alleged Other Defects (6 Bungalows). K(1C). Does court need expert opinion on Rectification Cost (6 Bungalows), Loss of Use/Enjoyment (6 Bungalows) and Loss of Rental (6 Bungalows)? 65. I am of the view that expert testimony is not needed by the court to decide on the following questions: (1) Rectification Cost (6 Bungalows); (2) Loss of Use/Enjoyment (6 Bungalows); and (3) Loss of Rental (6 Bungalows). - please refer to Era Kemuncak Jaya. If parties have adduced expert evidence on the above matters, needless to say, the court may refer to such expert testimony. K(2). Alleged Defects (Air Conditioners) K(2A). Who can provide expert opinion on Alleged Defects (Air Conditioners)? 66. I find as a fact that the following experts are competent under s 45(1) EA to give opinions regarding the Alleged Defects (Air Conditioners): (1) SP13 (for Suit No. 49); (2) SP14 (for Suits No. 43 to 47); and (3) SD3, the Defendant’s expert. The above factual finding is based on the work experience of SP13, SP14 and SD3 with regard to air conditioners and air-conditioning systems. K(2B). Can Plaintiffs prove Alleged Defects (Air Conditioners)? 67. This court makes the following findings of fact: (1) SP14’s expert testimony regarding - (a) the Sweating at Supply Diffuser [Air Conditioners in 5 Bungalows (Suits No. 43 to 47)]; and (b) the Unsuitable Pipe Insulation [Air Conditioners in 5 Bungalows (Suits No. 43 to 47)] - is accepted; (2) this court accepts the expert view of SP13 in respect of the Condensation Problem [Air-Conditioners in Bungalow (Suit No. 49)]; and (3) the expert evidence of SD3 with regard to the Alleged Defects (Air Conditioners) is rejected. 68. On a balance of probabilities, the following reasons and evidence support the factual findings made in the above paragraph 67: (1) as opined by SP14 - (a) the Defendant had supplied under-capacity Air Conditioners in the entrance and kitchen areas of the 5 Bungalows (Suits No. 43 to 47) because - (i) the entrance and kitchen areas of the 5 Bungalows (Suits No. 43 to 47) are adjacent to each other. Consequently, the total size of these areas needs a higher cooling load which cannot be met by the Air Conditioners; (ii) cooking in the kitchen areas generates heat; (iii) a substantial part of the kitchen areas has glass windows or panels which expose those areas to sunlight and higher temperatures; and (iv) the air flow in the air ducts of the 5 Bungalows (Suits No. 43 to 47) is turbulent due to poor design and workmanship of the air ducts; and (b) the Unsuitable Pipe Insulation [Air Conditioners in 5 Bungalows (Suits No. 43 to 47)] is proven because the foam insulation used by the Defendant is too soft to insulate the Pipe (Air Conditioners); and (2) according to SP13, the Condensation Problem [Air-Conditioners in Bungalow (Suit No. 49)] is proven by the following evidence and reasons - (a) the probable cause for the Condensation Problem [Air-Conditioners in Bungalow (Suit No. 49)] is the under-capacity Air Conditioners installed by the Defendant in Bungalow (Suit No. 49), namely, the Air Conditioners cannot cool and dehumidify Bungalow (Suit No. 49) within a reasonably short period of time; (b) the Condensation Problem [Air-Conditioners in Bungalow (Suit No. 49)] is aggravated by an unknown reason for the consistently higher indoor "relative humidity" (RH) as compared to the outdoor RH. Hence, the water vapour in Bungalow (Suit No. 49) could not escape outdoor; and (c) there is no sufficient airflow in the Air Conditioners in Bungalow (Suit No. 49). 69. The expert evidence of SD3 cannot credibly rebut the expert opinions of SP13 and SP14 as stated in the above paragraph 68. 70. I will now refer in this judgment to the proven defects regarding the Air Conditioners as the “Defects (Air Conditioners)”. K(2C). What was causa causans of Defects (Air Conditioners)? 71. I have no hesitation to make the following factual decisions: (1) the causa causans of the Defects (Air Conditioners) was the Defendant’s breach of Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship). I rely on the following reasons - (a) the Housing Developer’s Obligation (Materials) was breached in the following manner - (i) the Defendant had installed under-capacity Air Conditioners in the 6 Bungalows; (ii) the under-capacity Air Conditioners had caused the Sweating at Supply Diffuser [Air Conditioners in 5 Bungalows (Suits No. 43 to 47)] and Condensation Problem [Air-Conditioners in Bungalow (Suit No. 49)] which should not have occurred in view of the High Purchase Prices paid by the Plaintiffs to the Defendant; and (iii) the Unsuitable Pipe Insulation [Air Conditioners in 5 Bungalows (Suits No. 43 to 47)] should not have happened in light of the High Purchase Prices; (b) the Defendant had breached the Housing Developer’s Obligation (Good Workmanship) because - (i) the air flow in the air ducts of the 5 Bungalows (Suits No. 43 to 47) is turbulent due to poor design and workmanship of the air ducts; and (ii) there is no sufficient airflow in the Air Conditioners in Bungalow (Suit No. 49); (c) as a matter of common sense, the causa causans of the Defects (Air Conditioners) was the Defendant’s breach of Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship); and (d) the Defects (Air Conditioners) would not have occurred “but for” the Defendant’s breach of Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship); (2) as a matter of common sense, the causa causans of the Defects (Air Conditioners) could not be - (a) the Plaintiffs’ Renovation Works; (b) the Plaintiffs’ Lack of Maintenance (6 Bungalows); and (c) Ordinary Wear and Tear (6 Bungalows); and (3) the application of the “but for” test does not show that the causa causans of the Defects (Air Conditioners) to be - (a) the Plaintiffs’ Renovation Works; (b) the Plaintiffs’ Lack of Maintenance (6 Bungalows); and (c) Ordinary Wear and Tear (6 Bungalows). K(2D). What was Rectification Cost for Defects (Air Conditioners)? 72. To rectify the Defects (Air Conditioners) - (1) SP14 proposed the following sums of money - (a) for Bungalow (Suit No. 43) - RM79,400.00; (b) for Bungalow (Suit No. 44) - RM79,400.00; (c) for Bungalow (Suit No. 45) - RM72,600.00; (d) for Bungalow (Suit No. 46) - RM79,400.00; and (e) for Bungalow (Suit No. 47) - RM79,400.00; and (2) according to SP13, a total sum of RM33,000.00 should rectify the Defects (Air Conditioners) for Bungalow (Suit No. 49). I shall refer the above sums collectively as “Proposed Quantum [Damages for Defects (Air Conditioners)]”. 73. I have no hesitation to award the Proposed Quantum [Damages for Defects (Air Conditioners)] in favour of the Plaintiffs against the Defendant because - (1) the Proposed Quantum [Damages for Defects (Air Conditioners)] constitutes the loss which “naturally arose in the usual course of things” from the Defendant’s breach of Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship) within the meaning of the 1st Limb [Section 74(1) CA]; (2) all the contracting parties in the 6 SPAs knew, when they made the 6 SPAs, that the Proposed Quantum [Damages for Defects (Air Conditioners)] is the loss which is “likely to result” from the Defendant’s breach of Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship) as understood in the 2nd Limb [Section 74(1) CA]; and (3) the Proposed Quantum [Damages for Defects (Air Conditioners)] is not excessive. On the contrary, the Proposed Quantum [Damages for Defects (Air Conditioners)] is a just and reasonable sum to compensate adequately the Plaintiffs for the rectification of the Defects (Air Conditioners). The Defendant had not adduced any evidence to show that the Plaintiffs would be unjustly enriched by the Proposed Quantum [Damages for Defects (Air Conditioners)]. In view of the above proof of Proposed Quantum [Damages for Defects (Air Conditioners)], the Proposed Quantum [Damages for Defects (Air Conditioners)] will now be referred to in this judgment as the “Quantum [Damages for Defects (Air Conditioners)]”. K(3). Alleged Other Defects (6 Bungalows) 74. In Dua Residency Management Corporation, at [116], a defect in a building has been explained as follows: “[116] In the treatise Construction Law by Julian Bailey, it is provided as follows: “WHAT IS A DEFECT? 14.01 There is no precise definition, in law, of what, constitutes a defect. Defects may relate to design, construction or both. The word “defect” may refer to the quality of goods supplied. A defect may be patent, in the sense of being known or detectable upon reasonable observation, or latent, in which case, its existence is unknown or detectable not reasonably discoverable. In everyday parlance, a “defect” is something which is faulty, or not built correctly. This is also true insofar as the law is concerned with building defects ... … 14.04 ... The determination of whether works are defective is not always a straightforward matter ... There could be the case where a contract is silent as to the quality of workmanship called for and where it requires the contractor to perform its works in a “good and workmanlike” manner ... What a builder considers to be “good and workmanlike” may be at odds with the owner’s expectations. Published industry’s standards may sometimes assist, in so far as they provide a normative basis for assessing the sufficiency of work performed, but ultimately if matter are taken to court, or brought before a tribunal) the reckoning of the contractual compliance of work - and whether or not it is “defective” - will involve an admixture of objective and subjective matters.” In the English Court of Appeal case of Barclays Bank plc v. Fairclough Building Ltd [1994] 68 BLR 1, Beldam LJ held as follows: “The requirement that the workmanship should be the best of its kind required a standard to be achieved. It would not be satisfied by workmanship of average competence skill or exercise of reasonable care to attain the standard ... In my view “workmanship’ in the context of the specification was intended to cover the whole of the works which the contractor had undertaken to perform.” Furthermore it is also gainful to reproduce the following learned commentary of the case of Davis & Co (Wines) Ltd v. AFA-Minerva (EMI) Ltd 9 BLR 99 at 101: “On the other hand it may not always be sufficient to say that the design was only as good as the money available (cf Cotton v. Wallis [1955]1 WLR 1158). The work, materials and installation as ultimately to fit for some purpose. A building generally is expected to be watertight. However it does not follow that the building is guaranteed to be watertight for its expected life, since some maintenance is required on nearly every building. Whether there is to be any reduction in the standards which would otherwise obtain will depend in most areas upon the background to the commission and the terms upon which it was made.” ” (emphasis added). 75. Patent and latent defects in a building have been explained by Mary Lim Thiam Suan J (as she then was) in the High Court case of Sigma Elevator (M) Sdn Bhd v Isyoda (M) Sdn Bhd [2015] 1 LNS 1363, at [92], as follows: “[92] ... Broadly, there are two types of defects; patent and latent defects. The writers, S Rajoo and Harbans Singh KS in their book entitled “Construction Law in Malaysia” [Sweet & Maxwell, p 470] have explained: “... Patent defects are defects that can be discovered through reasonable inspection and testing (see Robinson, Lavers, Tan and Chan, Construction Law in Singapore and Malaysia, 2nd Edn., p 160). These are the ones that are more commonly noticed and therefore reported to the contractor prior to completion or during the defect liability period. On the other hand, latent defects cannot be discovered by either reasonable inspection or testing even by a reasonably careful person skilled in the works in question (see Victoria University of Manchester v. Hugh Wilson [1984] 2 Con LR 43). These are inherent in the works themselves and become apparent or noticeable or capable of being discovered only when they become patent (see Pirelli General Cable Works Ltd v. Oscar Faber & Partners [1983] 2 AC 1; see also Steven Phoa Cheng Loon & 72 Ors v. Highland Properties Sdn Bhd & 9 Ors [2000] 1 AMR 3567). …” (emphasis added). 76. The Plaintiffs have claimed a list of the Alleged Other Defects (6 Bungalows) which include both patent and latent defects. K(3A). Whether SP8, SP9, SP10 and SD5 are competent to give expert opinions on Alleged Other Defects (6 Bungalows) 77. The court does not need expert evidence on the existence of the Alleged Other Defects (6 Bungalows) - please refer to Era Kemuncak Jaya. 78. SP8, SP9, SP10 and SD5 had provided their expert testimonies on the Alleged Other Defects (6 Bungalows). SP8, SP9, SP10 and SD5 are qualified and practising architects. Hence, I have no hesitation to accept SP8, SP9, SP10 and SD5 as expert witnesses who can provide expert opinions regarding the Alleged Other Defects (6 Bungalows). K(3B). Had Plaintiffs proven existence of Alleged Other Defects (6 Bungalows)? 79. I find as a fact that the Plaintiffs have discharged the legal and evidential burden to prove the existence of the Alleged Other Defects (6 Bungalows) on a balance of probabilities. This factual decision is premised on the following evidence and reasons: (1) SP1 to SP7 had given oral evidence regarding the existence of the Alleged Other Defects (6 Bungalows) [Oral Evidence (SP1 to SP7)]; (2) the Oral Evidence (SP1 to SP7) did not consist of bare allegations only but instead, the Oral Evidence (SP1 to SP7) is supported by written complaints made by the Plaintiffs in their correspondence with the Defendant, including the Genuine DRFs/FFs [Plaintiffs’ Written Complaints (Defects)). The significance of the Plaintiffs’ Written Complaints (Defects) is provided in s 157 EA which reads as follows - “Former statements of witness may be proved to corroborate later testimony as to same fact s 157 In order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.” (emphasis added); (3) SD5, the Defendant’s own expert, had admitted that there existed certain Alleged Other Defects (6 Bungalows) {SD5’s Admission [Certain Defects (6 Bungalows)]}. In this manner, SD5’s Admission [Certain Defects (6 Bungalows)] corroborated the Oral Evidence (SP1 to SP7); (4) the Oral Evidence (SP1 to SP7) is supported by the expert opinions of SP8 to SP10 [Expert Opinions (SP8 to SP10)]. There is no reason for SP8 to SP10 to sacrifice their professional reputation by providing inaccurate or false Expert Opinions (SP8 to SP10) in the 6 Suits; (5) as explained in the above sub-paragraph 57(5), the court may consider the effect of SUBBL in deciding whether there is a breach of Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship). In the 6 Suits, the Oral Evidence (SP1 to SP7) and Expert Opinions (SP8 to SP10) are supported by the Defendant’s three breaches of SUBBL [Defendant’s 3 Breaches (SUBBL)] as follows - (a) according to by-law 107(1) SUBBL - “107 Handrails (1) Except for staircases of less than 4 risers, all staircases shall be provided with at least one handrail.” (emphasis added). For Bungalow (Suit No. 49), the staircase to the swimming pool therein did not have any handrail. As such, the Defendant did not comply with by-law 107(1) SUBBL with regard to the Bungalow (Suit No. 49). It is to be noted that a mandatory term “shall” is employed in by-law 107(1) SUBBL; (b) by-law 115(1) SUBBL provides as follows - “115 Roof coverings and drainage with a rainwater harvesting and utilisation system (SPAH) (1) All roofs of buildings shall be so constructed as to drain effectually to suitable and sufficient channels, gutters, chutes or troughs which shall be provided in accordance with the requirement of these by-laws for receiving and conveying all water which may fall on and from the roof.” (emphasis added). An imperative term “shall” is used in by-law 115(1) SUBBL. The roofs of all the 6 Bungalows do not have gutters. Hence, the Defendant had breached by-law 115(1) SUBBL in respect of the 6 Bungalows: and (c) by-law 116(1) SUBBL states as follows - “116 Accessible flat roofs, balconies, etc. Every flat roof, balcony or other elevated areas 1.8 metres or more above the adjacent area where normal access is provided shall be protected along the edges with suitable railings, parapets or similar devices not less than 1 metre in height or other suitable means.” (emphasis added). By-law 116 SUBBL has mandatory effect due to the employment of the word “shall” in that provision. The verandah in Bungalow (Suit No. 49) is 3.150 metres above the lower ground floor of that building but the railing around the entrance foyer in the verandah is only 0.720 metre which is less than 1 metre (required by by-law 116 SUBBL). Accordingly, the Defendant has failed to comply with by-law 116 SUBBL regarding Bungalow (Suit No. 49); and (6) there is no reason to disbelieve the Oral Evidence (SP1 to SP7) because - (a) SP1 to SP7 had withstood vigorous cross-examination by Mr. Rohan; and (b) it is inconceivable for SP1 to SP7 to give false evidence with regard to the existence of the Alleged Other Defects (6 Bungalows). 80. In view of the reasons and evidence elaborated in the above paragraph 79, save for SD5’s Admission [Certain Defects (6 Bungalows)], I am not inclined to accept SD5’s expert testimony as a sufficient ground to deny the existence of the Alleged Other Defects (6 Bungalows). 81. This judgment shall now refer to the proven Alleged Other Defects (6 Bungalows) as the “Other Defects (6 Bungalows)”. K(3C). What was causa causans of Other Defects (6 Bungalows)? 82. This court is satisfied that the causa causans of the Other Defects (6 Bungalows) - (1) was the Defendant’s breach of Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship) {Causa Causans [Other Defects (6 Bungalows)]}; and (2) could not be - (a) the Plaintiffs’ Renovation Works. It is to be noted that SD5 had the candour to admit that for certain Other Defects (6 Bungalows), he was unable to verify whether such defects were caused by the Plaintiffs’ Renovation Works; (b) the Plaintiffs’ Lack of Maintenance (6 Bungalows). In this regard, certain Other Defects (6 Bungalows) did not concern the Plaintiffs’ maintenance of the 6 Bungalows, let alone a lack of maintenance thereof; and (c) Ordinary Wear and Tear (6 Bungalows). The Causa Causans [Other Defects (6 Bungalows)] is premised on the following evidence and reasons: (i) the Oral Evidence (SP1 to SP7); (ii) the Expert Opinions (SP8 to SP10); (iii) SD5’s Admission [Certain Defects (6 Bungalows)]; (iv) considering the High Purchase Prices, common sense supports the Causa Causans [Other Defects (6 Bungalows)]; (v) the Other Defects (6 Bungalows) would not have occurred “but for” the Defendant’s breach of Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship); and (vi) as a matter of common sense and applying the “but for” test, the Causa Causans [Other Defects (6 Bungalows)] could not be - (vi)(a) the Plaintiffs’ Renovation Works; (vi)(b) the Plaintiffs’ Lack of Maintenance (6 Bungalows); and (vi)(c) Ordinary Wear and Tear (6 Bungalows). 83. Mr. Rohan had relied on the Exclusion Clause (Home Owners Manual) which provided as follows: “Guidelines on Renovation … 2. The [Defendant] shall not be held responsible for any defect whatsoever arising after the renovation. Even though the [DLP] is still valid, if there is any defect, please take note that the defect rectification work must be completed before you start your renovation. Failure to do so, the [Defendant] will not be responsible for any defects arise [sic] after your renovation works.” (emphasis added). According to Mr. Rohan, SP1 agreed during cross-examination that if the Plaintiffs’ Renovation Works were carried out before the Defendant could complete the rectification works (Defendant’s Rectification Works), the Defendant would not liable for any defects which arose after the Plaintiffs’ Renovation Works (SP1’s Admission). SP1’s Admission was made based on the Exclusion Clause (Home Owners Manual). I am not able to accede to the above contention by Mr. Rohan because - (1) as explained in the above paragraph 45, the Defendant cannot rely on the Home Owners Manual, including the Exclusion Clause (Home Owners Manual); (2) the Exclusion Clause (Home Owners Manual) has no legal effect because such an exclusion clause is described by the Defendant as a mere guideline; and (3) if the Defendant is allowed to rely on the Exclusion Clause (Home Owners Manual) - (a) this is tantamount to a carte blanche for the Defendant to circumvent the mandatory Schedule G [which applies to the 4 SPAs (Suits No. 43 to 45 and 47)] and Schedule I [which applies to the 2 SPAs (Suits No. 46 and 49)] [Defendant’s Circumvention (Statutory SPAs)]; and (b) as explained in SEA Housing Corporation, the Defendant’s Circumvention (Statutory SPAs) is not allowed - please refer to the above paragraphs 38 and 39(7). As the Exclusion Clause (Home Owners Manual) has no legal effect, the court cannot then attach any weight to SP1’s Admission. 84. I have not overlooked the following submission by Mr. Rohan: (1) SP9 and SP10 agreed during cross-examination that they could not identify certain Other Defects (6 Bungalows) due to the Plaintiffs’ Renovation Works or rectification works performed by the Plaintiffs (Plaintiffs’ Rectification Works); (2) SP9 and SP10 had admitted during cross-examination that in their reports regarding a certain bungalow, they had relied on duplicate photographs of defects in another bungalow (Duplicate Photographs); and (3) SP9 and SP10 agreed during cross-examination that some of the Other Defects (6 Bungalows) could be due to the Plaintiffs’ Lack of Maintenance (6 Bungalows) and Ordinary Wear and Tear (6 Bungalows). The court is not able to accept the above contentions due to the following reasons: (a) the Oral Evidence (SP1 to SP7) and Plaintiffs’ Written Complaints (Defects) are sufficient to prove the existence of all the Other Defects (6 Bungalows). As explained in Era Kemuncak Jaya, the court does not need expert evidence to prove or disprove the existence of the Alleged Other Defects (6 Bungalows); and (b) if the Plaintiffs’ Rectification Works were successful in the rectification of the defects in question, there is no reason for SP1 to SP7 to give false evidence regarding the existence of those defects. In view of the above reasons, I accept the following submission by Mr. Pereira - (i) the Other Defects (6 Bungalows) had not been rectified satisfactorily by the Defendant’s Rectification Works in accordance with the 4 SPAs (Suits No. 43 to 45 and 47) and Schedule I (for Suits No. 46 and 49); or (ii) the Other Defects (6 Bungalows) had recurred after the Defendant’s Rectification Works. For good measure, the Duplicate Photographs does not undermine the credibility of SP9 and SP10 because SP9 and SP10 had actually inspected all the bungalows in Suits No. 43 to 47. 85. Mr. Rohan had relied on a judgment of Zaleha Yusof JC (as she then was) in the High Court case of R Kanagasingam R Rajasingam & Anor v Wong Chong Fatt & Ors [2009] MLJU 1851 to persuade the court that the Causa Causans [Other Defects (6 Bungalows)] was the Plaintiffs’ Renovation Works. With respect, in Kanagasingam, at [10(b)], the plaintiffs (co-purchasers of a double-storey link house) sued the housing developer for the latter’s breach of duty of care (tort of negligence) in allowing the plaintiffs’ neighbour to carry out renovation works on the adjoining link house and the neighbour’s renovations works had caused damage to the plaintiffs’ house. It is clear that Kanagasingam did not decide on the issue of defects of a housing accommodation (built by a housing developer) which is the subject matter of a Statutory SPA. 86. Mr. Rohan’s reliance on the following four High Court judgments: (1) two decisions of Lim Chong Fong JC (as he then was) in KC Leong Holdings Sdn Bhd v Datin Moh Bee Ling [2015] 7 MLJ 10 and Komala Devi a/p Perumal v Bandar Eco-Setia Sdn Bhd & Anor [2016] MLJU 719; (2) Lee Swee Seng J’s (as he then was) judgment in Bumimetro Construction Sdn Bhd v Sun-Jaya M&E Sdn Bhd [2020] MLJU 136; and (3) the decision of Linton Albert J (as he then was) in Kiing Teck Hoon v T-Point Aluminium Sdn Bhd & Ors [2007] MLJU 37 - is misplaced because the above four cases do not concern a Statutory SPA. 87. Mr. Rohan had cited the judgment of Diplock LJ (as he then was) who sat as a High Court judge in United Kingdom’s case of Hancock & Ors v BW Brazier (Anerley) Ltd [1966] 2 All ER 1. As explained in the above sub-paragraph 39(9)(d), construction cases from the Commonwealth should be viewed with caution because such cases do not concern the attainment of the Object (HDA). K(4). Can Defendant rely on expiry of DLP to exclude liability for Defects (Air Conditioners) and Defects (6 Bungalows) [referred collectively in this judgment as “All Defects (6 Bungalows)”]? 88. Mr. Rohan had invited the court to decide that the Defendant was not liable for any defect in the 4 Bungalows (Suits No. 43 to 45 and 47) because the DLP had expired in accordance with Clause 25(1) (Suits No. 43 to 45 and 47). Reliance had been placed by Mr. Rohan on the judgment of the Court of Appeal delivered by Mohd. Hishamudin JCA in Toh Ang Poo (trading as Poo Wah Enterprise) v Jasin Construction Development (M) Sdn Bhd [2014] 2 MLJ 192. 89. Firstly, Toh Ang Poo does not concern a Statutory SPA. 90. Secondly, as explained in the above paragraphs 40 to 44, Schedule I applies to the 2 Bungalows (Suits No. 46 and 49). 91. I reproduce below Clause 25(1) (Suits No. 43 to 45 and 47) and Clause 27(1) [Schedule I]: “Clause 25 (Suits No. 43 to 45 and 47) [DLP] (1) Any defect, shrinkage or other faults in the said Building which shall become apparent within a period of twenty-four (24) calendar months after the date the Purchaser takes vacant possession of the said Building and which are due to defective workmanship or materials or; the said Building not having been constructed in accordance with the plans and description as specified in the Second and Fourth schedule as approved or amended by the Appropriate Authority, shall be repaired and made good by the Vendor at its own cost and expenses within thirty (30) days of the Vendor having received written notice thereof from the Purchaser. (2) If the said defect, shrinkage or other faults in the said Building have not been made good by the Vendor within the said period of thirty (30) days under subclause (1), the Purchaser shall be entitled to carry out the works to repair and make good the said defect, shrinkage or other faults himself and to recover from the Vendor the costs of repairing and making good the same and the Purchaser may deduct such costs from any sum which has been held by the Vendor’s solicitors as stakeholder for the Vendor under item 5 of the Third Schedule provided that the Purchaser shall, at any time after the expiry of the said period of thirty (30) days, notify the Vendor of the cost of repairing and making good the same defect, shrinkage or other faults before the commencement of the works and shall give the Vendor an opportunity to carry out the works himself within fourteen (14) days from the date the Purchaser has notified the Vendor of his intention to carry out the said works and provided further that the Purchaser shall carry out and commence the said works as soon as practicable after the Vendor’s failure to carry out the said works, within the said period of fourteen (14) days. In such an event, the Vendor’s solicitors shall release such costs to the Purchaser from the stakeholder sum held by the Vendor’s solicitors under Item 5 of the Third Schedule within fourteen (14) days after receipt by the Vendor’s solicitors of the Purchaser’s written demand specifying the amount of such costs. (3) Subject to subclause (2), where the Purchaser has, before the expiry of eight (8) months or twenty-four (24) months after the date the Purchaser takes vacant possession of the said Building as set out in item 5(a) and item 5(b) respectively of the Third Schedule, duly served on the Vendor’s solicitors a copy of the written notice from the Purchaser to the Vendor under subclause (1) to rectify the said defect, shrinkage, or other faults in the said Building, the Vendor’s solicitors shall not release to the Vendor the relevant sum held by the Vendor’s solicitors pursuant to item 5(a) and/or item 5(b) of the Third Schedule, as the case may be, until the Vendor’s solicitors shall have received a certificate signed by the Vendor’s architect certifying that the said defect, shrinkage or other faults in the said Building have been repaired and made good by the Vendor. Clause 27 [Schedule I] [DLP] (1) Any defect, shrinkage or other faults in the said Building which becomes apparent within twenty-four (24) months after the date the Purchaser takes vacant possession of the said Property and which are due to defective workmanship or materials or; the said Building not having been constructed in accordance with the plans and descriptions as specified in the Second and Fourth Schedules as approved or amended by the Appropriate Authority, shall be repaired and made good by the Developer at its own cost and expense within thirty (30) days of the Developer having received written notice thereof from the Purchaser. (2) If the defect, shrinkage or other faults in the said Building have not been made good by the Developer within thirty (30) days referred to in subclause (1), the Purchaser shall be entitled to carry out the works to repair and make good such defect, shrinkage or other faults himself and to recover from the Developer the costs of repairing and making good the same provided that the Purchaser shall, at any time after the expiry of the period of thirty (30) days, notify the Developer of the costs of repairing and making good such defect, shrinkage or other faults before the commencement of the works and shall give the Developer an opportunity to carry out the works himself within thirty (30) days from the date the Purchaser has notified the Developer of his intention to carry out the works and provided further that the Purchaser shall carry out and commence the works as soon as practicable after the Developer’s failure to carry out the works within the said thirty (30) days. In such event, the Developer shall reimburse such costs to the Purchaser within thirty (30) days after the receipt by the Developer of the Purchaser’s written demand specifying the amount of such costs.” (emphasis added). 92. I opine as follows regarding the effect of Clause 25 (Suits No. 43 to 45 and 47) and then the application of Clause 27 [Schedule I]: (1) Clause 25(1) (Suits No. 43 to 45 and 47) shall only apply if the following three conditions are fulfilled cumulatively [3 Conditions (Patent Defects)] - (a) defects in a housing accommodation “shall become apparent” (Patent Defects) within 24 calendar months after the date the purchaser of the housing accommodation (Purchaser) has taken vacant possession of the housing accommodation; (b) the Patent Defects are “due to defective workmanship or materials” on the part of the housing developer; and (c) the Purchaser has given written notice of the Patent Defects to the housing developer [Purchaser’s Written Notice (Patent Defects)]; (2) upon the fulfilment of the 3 Conditions (Patent Defects), the Patent Defects “shall be repaired and made good” by the housing developer at the housing developer’s own cost within 30 days from the date of the housing developer’s receipt of the Purchaser’s Written Notice (Patent Defects) (30 Days Period); (3) if the Patent Defects are not rectified by the housing developer at the housing developer’s own cost within the 30 Days Period, by virtue of Clause 25(2) (Suits No. 43 to 45 and 47) the Purchaser shall be entitled to carry out works to rectify the Patent Defects (Purchaser’s Rectification Works) if the following two conditions are met [2 Conditions (Purchaser’s Rectification Works)] - (a) written notice of the Purchaser’s Rectification Works shall be given to the housing developer [Purchaser’s Written Notice (Rectification Works)] after the expiry of the 30 Days Period and the Purchaser’s Written Notice (Rectification Works) shall state the following matters - (i) the cost of the Purchaser’s Rectification Works [Cost (Purchaser’s Rectification Works)]; and (ii) if the housing developer does not rectify the Patent Defects within 14 days from the date of notification of the Purchaser’s Written Notice (Rectification Works) (14 Days Period), the Purchaser’s Rectification Works would be carried out and the Purchaser shall thereafter claim the Cost (Purchaser’s Rectification Works) from the housing developer; and (b) the housing developer has failed to rectify the Patent Defects within the 14 Days Period; (4) upon the completion of the Purchaser’s Rectification Works, according to Clause 25(2) (Suits No. 43 to 45 and 47) - (a) the Purchaser may recover the Cost (Purchaser’s Rectification Works) from the housing developer; or (b) the Purchaser may demand from the housing developer’s solicitors to pay to the Purchaser the Cost (Purchaser’s Rectification Works) from the “stakeholder sum” [provided in item 5 of the Third Schedule to the SPA (Suits No. 43 to 45 and 47)] [Purchaser’s Demand (Housing Developer’s Solicitor)] and the housing developer’s solicitors “shall release” the Cost (Purchaser’s Rectification Works) to the Purchaser from the stakeholder sum within 14 days after the receipt of the Purchaser’s Demand (Housing Developer’s Solicitor); (5) with regard to Clause 27 [Schedule I] - (a) if the 3 Conditions (Patent Defects) are satisfied, the housing developer is required by Clause 27(1) [Schedule I] to rectify the Patent Defects at the housing developer’s own cost within the 30 Days Period; (b) if the housing developer does not rectify the Patent Defects at the housing developer’s own cost within the 30 Days Period, according to Clause 27(2) [Schedule I], the Purchaser’s Rectification Works may be carried out if - (i) the Purchaser’s Written Notice (Rectification Works) is given to the housing developer and the Purchaser’s Written Notice (Rectification Works) shall state as follows - (i)(a) the Cost (Purchaser’s Rectification Works); and (i)(b) if the housing developer does not rectify the Patent Defects within 30 days from the date of notification of the Purchaser’s Written Notice (Rectification Works), the Purchaser’s Rectification Works would be carried out and the Purchaser shall thereafter claim the Cost (Purchaser’s Rectification Works) from the housing developer; and (ii) the housing developer has failed to rectify the Patent Defects within 30 days from the date of notification of the Purchaser’s Written Notice (Rectification Works); and (c) upon the completion of the Purchaser’s Rectification Works, the Purchaser may recover the Cost (Purchaser’s Rectification Works) from the housing developer by serving a written demand on the housing developer [Purchaser’s Demand (Housing Developer)] and the housing developer “shall reimburse” the Cost (Purchaser’s Rectification Works) to the Purchaser within 30 days after the receipt of the Purchaser’s Demand (Housing Developer); (6) Clause 25 (Suits No. 43 to 45 and 47) and Clause 27 [Schedule I] do not apply to defects in a housing accommodation which are not apparent to a Purchaser within 24 calendar months after the date the Purchaser has taken vacant possession of the housing accommodation. The meaning of Patent Defects in Clause 25 (Suits No. 43 to 45 and 47) and Clause 27 [Schedule I] (defects which “shall become apparent” within 24 calendar months after the date the Purchaser has taken vacant possession of the housing accommodation) seems to be slightly different from the meaning of patent defects as explained in the following two cases - (a) Sigma Elevator (defects that can be discovered through reasonable inspection and testing); and (b) Dua Residency Management Corporation (defects which are “reasonably discoverable” in the sense of being known or detectable upon reasonable observation); and (7) as explained in the above sub-paragraphs (1) to (5), Clause 25 (Suits No. 43 to 45 and 47) and Clause 27 [Schedule I] do not afford any ground for a housing developer to avoid liability to a Purchaser for breach of a Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (Good Workmanship). This interpretation is supported by the following cases - (a) in Raja Lob Sharuddin Raja Ahmad Terzali & Ors v Sri Seltra Sdn Bhd [2008] 2 CLJ 284, the Court of Appeal construed clause 23 in a Statutory SPA which is substantially similar to Clause 25 (Suits No. 43 to 45 and 47) and Clause 27 [Schedule I]. Azmel Maamor JCA (as he then was) decided as follows in Raja Lob Sharuddin, at [24] to [26] - “[DLP] [24] The defendant strenuously contended that the plaintiffs’ action should fail because the defects were discovered after the expiry of the [DLP]. The learned judge had also accepted this as a strong ground to reject the plaintiffs’ claim. The Defect Liability Clause is contained under cl. 23 of the Sale and Purchase agreement which reads: … The question that we have to determine is whether this cl. 23 should be construed and applied against purchasers of houses. To do that it would be incumbent upon us to trace the purpose for which cl. 23 was originally created. It began with the passing of the [HDA] and the regulations made thereunder. In 1982 the [1982 Regulations] came into force. And reg. 12(1) [1982 Regulations] provides that every contract of sale for the sale and purchase of a housing accommodation together with the sub-divisional portion of land appurtenant thereto shall be in the form as prescribed in Schedule E. Regulation 12(1) further provides that no amendment to any such contract of sale shall be made except on the ground of hardship or necessity and with the prior approval of the controller. In other words all the provisions in the sale and purchase agreement are actually statutory requirements which must be strictly complied with. Clause 23, in particular, is meant to be an additional protection for house buyers, without affecting or limiting their rights under the common law. This was the ruling made by the Privy Council in City Investment Sdn. Bhd. v. Korperasi Serbaguna Cuepacs Tanggungan Bhd. [1988] 1 MLJ 69. In that case Lord Templeman said: But the [HDA] and the Rules were designed to improve and supplement common law remedies and do not expressly or by implication deprive a litigant of a contractual remedy which is not dealt with under the Rules. … [25] In the Federal Court case of Teh Khem On & Anor v. Yeoh & Wu Development Sdn. Bhd. & Ors. [1996] 2 CLJ 1105, Peh Swee Chin FCJ said: Again, the vendor/builder and in fact, other defendants, all have joined in a common submission by way of defence that the damage occurred after the [DLP] mentioned in cl. 23 of P1. I share the view espoused by Lord Denning in Hancock & Ors v. Bul Brazier Ltd [1966] 2 All ER 901; [1966] 1 WLR 1317, to the effect that such clause similar to cl. 23 in our instant appeal about making good structural defects discovered within six months would not take away the right to sue in respect of such defects which were not discoverable with such six months, and that further in regard those defects discovered within the six months, the provision of an express remedy of making good the same defects will not ipso facto take away the rights of any purchaser which normally follow at common law in the case of a breach of contract. It is pertinent to mention that our cl. 23 provides for 12 months instead of six months. The same principles would apply. Thus the said line of defence also fails. [26] On the basis of the ruling made by the above two cases the reliance of the [DLP] as a defence by the defendant should be totally rejected. …” (emphasis added); and (b) the Court of Appeal in Chrishanthini Angela Regina Sebastiampillai v View Esteem Sdn Bhd [2022] 1 LNS 2212 has construed clause 29 of Schedule H which is in pari materia with Clause 25 (Suits No. 43 to 45 and 47). According to See Mee Chun JCA in Chrishanthini, at [28], [30], [31] and [32] - “[28] A careful consideration of clause 29 SPA would show that it is not intended to bar a purchaser from asserting the common law rights to claim for damages under the SPA. The legal framework of clause 29 is such that it is a but a mechanism for the purchaser to ensure that defects which shall become apparent within 24 months after VP are rectified. This is provided the 30 days’ notice is received. … [30] There is no provision embedded in clause 29 to bar the purchaser from looking to common law for relief even when the purchaser had initially invoked the operation of the clause. … [31] We are fortified in arriving at this finding with reference to Raja Lob Sharuddin where at pages 102-104, the following was stated: … [32] We have found it necessary to reproduce the above paragraphs in extenso as we adopt in toto the principles stated therein that clause 23 which is similar to our clause 29, is intended to be an additional protection to house buyers without affecting their rights under the common law. Although the Respondent sought to distinguish the case in that the claim there was filed after the defect liability period, it cannot detract from the clear principle established that the clause in question could not be construed and applied against house buyers given that its clear intention was to be an additional protection and could not possibly limit the rights of house buyers under common law. This was construed against the backdrop of [HDA] and its Regulations/Rules being a social legislation.” (emphasis added). 93. Premised on - (1) the interpretation of Clause 25 (Suits No. 43 to 45 and 47) and Clause 27 [Schedule I] - please refer to the above paragraph 92; and (2) the Court of Appeal judgments in Raja Lob Sharuddin and Chrishanthini - this court unhesitatingly reject the Defendant’s reliance on the expiry of DLP as a ground to exclude the Defendant’s liability for All Defects (6 Bungalows). K(5). Can Defendant rely on CCC (Project)? 94. Mr. Rohan had made a far-reaching submission. The CCC (Project) stated in our National Language as follows, among others: “… Saya dengan ini mengeluarkan [CCC] untuk [6 Bungalows] setelah berpuas hati bahawa bangunan/bangunan-bangunan itu telah siap menurut pengetahuan dan kepercayaan saya kerja/kerja-kerja itu adalah mengikuti [SUBBL] dan pelan-pelan yang diluluskan. Saya dengan ini memperakui bahawa bangunan/bangunan-bangunan itu adalah selamat dan layak untuk diduduki. … 1. Butir-butir [principal submitting person] Nama: [Ar. Kam]” (emphasis added). According to Mr. Rohan, in view of the above contents of the CCC (Project), the Defendant was not liable to the Plaintiffs for All Defects (6 Bungalows). Mr. Rohan had relied on the following two High Court judgments: (1) the decision of Prasad Sandosham Abraham J (as he then was) in Allan Kinsey & Anor v Sunway Rahman Putra Sdn Bhd & Anor, Dekon Sdn Bhd (Third Party) [2015] 4 CLJ 624; and (2) Lim Chong Fong J’s (as he then was) judgment in Bergamo Development (M) Sdn Bhd v ECK Development Sdn Bhd & Anor [2018] MLJU 555. 95. I am of the following view regarding the effect of a CCC: (1) SUBBL are made by the Selangor State Authority under s 133 of the Street, Drainage and Building Act 1974 (SDBA); and (2) neither SDBA nor SUBBL concern Statutory SPAs. More importantly, SDBA and SUBBL do not provide for any defence in the form of the CCC to any housing developer who faces a suit by Purchasers that Statutory SPAs have been breached by housing developers. If otherwise, this will be contrary to the Object (HDA). 96. In view of the reasons stated in the above paragraph 95, I cannot accept the above contention by Mr. Rohan. Furthermore, SD12 testified that Ar. Kam did not even inspect the 6 Bungalows before he signed the CCC (Project). Worse still, the Defendant did not even call Ar. Kam as a defence witness and the Plaintiffs were thereby deprived of their right to cross-examine him with regard to the contents of the CCC (Project). 97. Bergamo Development is not a decision regarding Statutory SPA. 98. With regard to Allan Kinsey, this case can be easily distinguished from the 6 Suits because there was no evidence to prove any breach of the Statutory SPA by the housing developer in Allan Kinsey. I reproduce below the relevant part of the judgment in Allan Kinsey, at [33] to [35]: “[33] The court is of the view that all the evidence and documents point to the irresistible conclusion that the said property had been constructed in a good and workmanlike manner in accordance with the relevant laws and regulations. The first defendant has delivered vacant possession of the said property with inter alia the support of a certificate signed by the first defendant’s architect (see p. 38 bundle B2) certifying that the said property been duly constructed and completed in accordance with all relevant acts, by-laws and regulations and that all conditions imposed by the appropriate authority in respect of the issuance of the certificate of fitness for occupation had been duly complied with. [34] The plaintiffs’ expert reports whilst dealing with the issue of cracks, does not focus on the first defendant’s obligations under cl. 14. Whilst the findings might be relevant in support of a plea for breach of duty, alas since the plaintiffs relies by way of its pleading on a breach of cl. 14 of the principal agreement, the report is of little assistance to the plaintiffs. [35] It is therefore the view of the court that the first defendant had complied with its contractual obligations under cl. 14 of the principal agreement. …” (emphasis added). K(6). Whether Defendant can rely on Plaintiffs’ Inspection of 6 Bungalows (Delivery of Vacant Possession), CRM Checklist, Inventory Checklist, Genuine DRFs/FFs, no prior notification of defects by Plaintiffs and equitable estoppel doctrine 99. I reproduce below the relevant part of DRFs: “DEFECT RECTIFICATION FORM … UPON COMPLETION OF RECTIFICATION WORKS We hereby agree that all defects have rectified satisfactorily. Signature of customer [Plaintiff]: Representative of [Defendant] Name: Name: Date: Date: ” (emphasis added). Certain DRFs and FFs had a stamp “RESOLVED” on those documents [DRFs/FFs (“Resolved” Stamp)]. 100. Mr. Rohan had contended that the Defendant was not liable to the Plaintiffs for All Defects (6 Bungalows) because - (1) the Plaintiffs did not complain to the Defendant of any defect in the 6 Bungalows - (a) during the Plaintiffs’ Inspection of 6 Bungalows (Delivery of Vacant Possession); and (b) when the Plaintiffs signed CRM Checklist and Inventory Checklist with regard to the 6 Bungalows; (2) the DRFs/FFs (“Resolved” Stamp) proved that the Defendant’s Rectification Works had been satisfactorily carried out; (3) prior to the filing of the 6 Suits, the Plaintiffs did not notify the Defendant of certain defects in the 6 Bungalows. The Defendant was only informed of certain defects in the 6 Bungalows in the reports of SP8, SP9 and SP10 (after the filing of the 6 Suits and before the commencement of Trial); and (4) in view of the matters stated in the above sub-paragraphs (1) to (3), the Plaintiffs are estopped from claiming for All Defects (6 Bungalows). 101. I am not able to accept the Defendant’s detailed submission stated in the above paragraph 100. My reasons are as follows: (1) a Purchaser has a right under s 6(1)(a) of the Limitation Act 1953 (LA) to file a suit for a breach of Statutory SPA within six years from the date of the housing developer’s breach of the Statutory SPA [Purchaser’s Right to Sue Housing Developer (6 Years Limitation Period)]. There is nothing in HDA, HDR and Statutory SPAs which has abridged the Purchaser’s Right to Sue Housing Developer (6 Years Limitation Period). In view of the Purchaser’s Right to Sue Housing Developer (6 Years Limitation Period), the Plaintiffs could claim in the 6 Suits for any defect in the 6 Bungalows provided that the 6 Suits were filed within the six-year limitation period stipulated in s 6(1)(a) LA even though - (a) the Plaintiffs did not complain to the Defendant of any defect in the 6 Bungalows - (i) during the Plaintiffs’ Inspection of 6 Bungalows (Delivery of Vacant Possession); (ii) when the Plaintiffs signed CRM Checklist and Inventory Checklist with regard to the 6 Bungalows; and (iii) before the institution of the 6 Suits; and (b) certain defects in the 6 Bungalows were only brought to the Defendant’s attention in the reports of SP8, SP9 and SP10 (after the commencement of the 6 Suits); (2) the court cannot accept the truth of the contents of the DRFs/FFs (“Resolved” Stamp) because the Plaintiffs had proven on a balance of probabilities the existence of All Defects (6 Bungalows) - please refer to the above paragraph 79; (3) certain Other Defects (6 Bungalows) - (a) were not apparent to the Plaintiffs within 24 calendar months after the Plaintiffs had taken vacant possession of the 6 Bungalows within the meaning of Clause 25 (Suits No. 43 to 45 and 47) and Clause 27 [Schedule I]; (b) could not be discovered by the Plaintiffs through reasonable inspection and testing (as explained in Sigma Elevator); or (c) could not be “reasonably discoverable” by the Plaintiffs in the sense of being known or detectable upon reasonable observation (please refer to Dua Residency Management Corporation) [the above defects are collectively referred to in this judgment as “Latent Defects (6 Bungalows)”]. It is only in the interest of justice for the Defendant to be liable to the Plaintiffs for the Latent Defects (6 Bungalows); (4) the doctrine of equitable estoppel cannot be invoked by the Defendant against the Plaintiffs in the 6 Suits because - (a) the doctrine of equitable estoppel cannot apply in view of the application of HDA and HDR in the 6 Suits by way of the Statutory SPAs. I rely on the following judgment of the Supreme Court delivered by Hashim Yeop Sani CJ (Malaya) in Hotel Ambassador (M) Sdn Bhd v Seapower (M) Sdn Bhd [1991] 1 MLJ 404, at 407 - “On the question of issue estoppel we agree with the learned judge that on the facts of this case the appellants cannot invoke the doctrine of issue estoppel. There can be no estoppel as against statutory provisions.” (emphasis added); (b) the doctrine of equitable estoppel cannot shield the Defendant from the effect of the Defendant’s 3 Breaches (SUBBL) [which supports the Defendant’s breach of the Housing Developer’s Obligation Housing Developer’s Obligation (Materials) and Housing Developer’s Obligation (Good Workmanship) - please refer to the above sub-paragraph 79(5)]; and (c) the doctrine of equitable estoppel is based on justice and equity. If I have applied this doctrine to bar the Plaintiffs from claiming for any remedy for All Defects (6 Bungalows), this would have caused an injustice and inequity to the Plaintiffs; and (5) if the court accepts any one or more of the contentions advanced by the Defendant in the above paragraph 100, this is tantamount to allowing the Defendant to circumvent the Housing Developer’s Obligation (Materials) and Housing Developer’s Obligation (Good Workmanship) pursuant to Clause 13 (Suits No. 45 and 47) and Clause 15(1) [Schedule I]. Such an outcome clearly defeats the Object (HDA). L. Can Plaintiffs recover Rectification Cost (6 Bungalows) for Other Defects (6 Bungalows) [Rectification Cost (Other Defects)]? L(1). Whether SP9, SP10, SP16 and SD13 were competent to provide expert evidence on Rectification Cost (Other Defects) 102. Mr. Rohan has submitted that only a person who has training, qualification or experience in quantity surveying can give an expert’s view on the Quantum [Rectification Cost (Other Defects)]. With respect, I am not able to agree. My reasons are as follows: (1) as explained in the above paragraph 65, premised on Era Kemuncak Jaya, the court does not need expert testimony to decide on the quantum of Rectification Cost (Other Defects) {Quantum [Rectification Cost (Other Defects)]}. The court, of course, may refer to expert opinions when the court ascertains the Quantum [Rectification Cost (Other Defects)]; and (2) if this court has accepted the above contention, this has far-reaching repercussions. This means in all cases concerning rectification of construction defects, claimants have to call QSs to give their expert testimonies to prove rectification cost. As explained in Era Kemuncak Jaya, there is no such requirement in s 45(1) EA or any written law. Worse still, this will increase costs and may impede plaintiffs’ fundamental right of access to justice. 103. Contrary to Mr. Rohan’s submission, I accept SP9 and SP10 as competent experts under s 45(1) EA to assist the court to decide the Quantum [Rectification Cost (Other Defects)] in Suits No. 43 to 47. This is because SP9 and SP10 are qualified and practising architects who have sufficient knowledge and experience in the construction industry to proffer their expert views on the Quantum [Rectification Cost (Other Defects)] in Suits No. 43 to 47 [Expert Opinions of SP9 and SP10 (Rectification Cost)]. 104. SP16, as a qualified and practising QS, is a competent expert pursuant to s 45(1) EA to give an expert opinion on the Quantum [Rectification Cost (Other Defects)] in Suit No. 49 (SP16’s Expert Opinion). Similarly, I accept that SD13, a qualified and practising QS, is competent to give an expert view on the Quantum (Rectification Cost) (SD13’s Expert Opinion). L(2). What is Quantum [Rectification Cost (Other Defects)] to be awarded by court? 105. According to the Expert Opinions of SP9 and SP10 (Rectification Cost), the following sums of money should be awarded as Quantum [Rectification Cost (Other Defects)] for Suits No. 43 to 47: (1) for Bungalow (Suit No. 43) - RM 680,970.00; (2) for Bungalow (Suit No. 44) - RM 780,960.00; (3) for Bungalow (Suit No. 45) - RM 841,060.00; (4) for Bungalow (Suit No. 46) - RM 731,780.00; and (5) for Bungalow (Suit No. 47) - RM 826,450.00. 106. Based on SP16’s Expert Opinion, a sum of RM 509,280.62 constitutes the Quantum [Rectification Cost (Other Defects)] for Bungalow (Suit No. 49). 107. In comparison to - (1) the Expert Opinions of SP9 and SP10 (Rectification Cost); and (2) SP16’s Expert Opinion - SD13’s Expert Opinion provided a far lower sum of Quantum [Rectification Cost (Other Defects)]. 108. In view of the High Purchase Prices, I make the following findings of fact: (1) the Rectification Cost opined by SP9, SP10 and SP16 [Rectification Cost (Opinions of SP9, SP10 and SP16)] “naturally arose in the usual course of things” from the Defendant’s breach of the Housing Developer’s Obligation (Materials) and Housing Developer’s Obligation (Good Workmanship) [Defendant’s Breach (6 SPAs)] within the meaning of the 1st Limb [Section 74(1) CA]; (2) the Rectification Cost (Opinions of SP9, SP10 and SP16) would have been known to the Plaintiffs and Defendant, when they made the 6 SPAs, that the Rectification Cost (Opinions of SP9, SP10 and SP16) was “likely to result” from the Defendant’s Breach (6 SPAs) as understood in the 2nd Limb [Section 74(1) CA]; (3) the Rectification Cost (Opinions of SP9, SP10 and SP16) is just and reasonable to compensate adequately the Plaintiffs for the Other Defects (6 Bungalows). In other words, the Plaintiffs are not unjustly enriched by the Rectification Cost (Opinions of SP9, SP10 and SP16); and (4) SD13’s Expert Opinion regarding the Quantum [Rectification Cost (Other Defects)] is far too low and cannot compensate adequately the Plaintiffs for the Other Defects (6 Bungalows). Furthermore, this court cannot attach any weight to SD13’s Expert Opinion due to the following reasons - (a) SD13 did not inspect the 6 Bungalows. It is difficult for the court to believe an expert who had not personally visited the 6 Bungalows and had no first-hand knowledge of the Other Defects (6 Bungalows) when the expert provided an estimate of the Quantum [Rectification Cost (Other Defects)]; (b) SD13’s report was prepared in late 2021 but he admitted during cross-examination that he had used rates which were applicable in 2018 (2018 Rates). The court can take judicial notice that cost of rectification work can only increase (not decrease) by the passage of time because such a fact is - (i) “subject of common and general knowledge and its existence or operation is accepted by the public without qualification or contention”; and (ii) “so sufficiently notorious” for which the court may assume the existence of the matter without proof - please refer to the judgment of the Supreme Court delivered by Syed Agil Barakbah SCJ in Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd [1986] 2 MLJ 30, at 31 to 32. At the time of the preparation of SD13’s report, the Plaintiffs were waiting for the court’s decision in the 6 Suits and the Plaintiffs’ Rectification Works had yet to commence. An honest, competent and professional expert should have used the rates which were applicable at the time of the preparation of the expert’s report (Current Rates). By deliberately relying on 2018 Rates and by omitting to consider the Current Rates, SD13 had dishonestly conducted an under-estimation of the Quantum [Rectification Cost (Other Defects)]. In this regard, I cannot accept Mr. Rohan’s contention that SD13 had properly relied on 2018 Rates because he was appointed by the Defendant to give an expert view in 2018. This is because if there is any delay in the preparation of an expert’s valuation report (deliberate or otherwise) and the Current Rates are higher than 2018 Rates, it is incumbent on an honest, competent and professional expert to use the Current Rates. If otherwise, parties, learned counsel and experts will be “emboldened” to delay the preparation of valuation reports which is dissonant with justice and the duties owed by learned counsel and expert to disclose all material facts to the court; and (c) SD13’s report did not state that he had many discussions with SD5 regarding the Quantum [Rectification Cost (Other Defects)] [Discussions (SD13-SD5)]. During cross-examination, SD13 admitted that certain parts of SD13’s Opinion were based on the Discussions (SD13-SD5). As SD13’s Opinion was premised on, among others, the Discussions (SD13-SD5), SD13’s report should have disclosed such a material fact {SD13’s Concealment [Discussions (SD13-SD5)]}. SD13’s Concealment [Discussions (SD13-SD5)] has - (i) effectively undermined SD13’s credibility as an expert witness; and (ii) caused an injustice to the Plaintiffs because Mr. Pereira had been deprived of his right to cross-examine SD5 on the contents of the Discussions (SD13-SD5). 109. As explained in the above paragraph 108, I find as a fact that the Plaintiffs have discharged the legal and evidential burden to prove the Quantum [Rectification Cost (Other Defects)] as opined by SP9, SP10 and SP16. L(3). Can Plaintiffs claim for Loss of Use/Enjoyment (6 Bungalows), including Loss of Rental (6 Bungalows)? 110. The Plaintiffs had adduced expert evidence from SP11 and SP12 regarding their Loss of Use/Enjoyment (6 Bungalows) and Loss of Rental (6 Bungalows). 111. In view of the above claim by the Plaintiffs, Mr. Rohan had called SD1 to give an expert opinion regarding the Loss of Use/Enjoyment (6 Bungalows) and Loss of Rental (6 Bungalows) allegedly suffered by the Plaintiffs. 112. I accept Mr. Rohan’s submission that the Plaintiffs (Suits No. 43 to 47) have no basis to claim for Loss of Use/Enjoyment (6 Bungalows) and Loss of Rental (6 Bungalows) because - (1) the Defendant’s Breach (6 SPAs) did not render the 6 Bungalows not fit for human habitation. In fact, the Plaintiffs had failed to adduce any evidence that the Plaintiffs could not reside in 6 Bungalows due to the Defendant’s Breach (6 SPAs). Consequently, the Plaintiffs had failed to discharge the legal and evidential burden to prove Loss of Use/Enjoyment (6 Bungalows) and Loss of Rental (6 Bungalows) on a balance of probabilities; (2) Loss of Use/Enjoyment (6 Bungalows) and Loss of Rental (6 Bungalows) are too remote to be recovered by the Plaintiffs in the 6 Suits due to the following reasons - (a) the Loss of Use/Enjoyment (6 Bungalows) and Loss of Rental (6 Bungalows) did not naturally arise in the usual course of things from the Defendant’s Breach (6 SPAs) as required by the 1st Limb [Section 74(1) CA]; and (b) the Plaintiffs and Defendant would have known, when they made the 6 SPAs that the Loss of Use/Enjoyment (6 Bungalows) and Loss of Rental (6 Bungalows) were not likely to result from the Defendant’s Breach (6 SPAs) within the meaning of the 2nd Limb [Section 74(1) CA]; and (3) this court has awarded the Quantum [Damages for Defects (Air Conditioners)] and Quantum [Rectification Cost (Other Defects)] [collectively referred to in this judgment as the “Award (Total Damages)”] in favour of the Plaintiffs against the Defendant. If I have awarded Loss of Use/Enjoyment (6 Bungalows) and Loss of Rental (6 Bungalows) in the 6 Suits, this will be tantamount to an unjust enrichment of the Plaintiffs at the expense of the Defendant. M. Whether Plaintiffs can claim pre-judgment interest on Award (Total Damages) 113. Section 11 of the Civil Law Act 1956 (CLA) and O 42 r 12 RC are reproduced below: “s 11 CLA Power of Courts to award interest on debts and damages In any proceedings tried in any Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest as such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: Provided that nothing in this section - (a) shall authorize the giving of interest upon interest; (b) shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or (c) shall affect the damages recoverable for the dishonour of a bill of exchange. O 42 r 12 RC Interest on judgment debts Subject to rule 12A, except when it has been otherwise agreed between the parties, every judgment debt shall carry interest at such rate as the Chief Justice may from time to time determine or at such other rate not exceeding the rate aforesaid as the Court determines, such interest to be calculated from the date of judgment until the judgment is satisfied.” (emphasis added). 114. It is not disputed that the court has the following discretionary power to award interest on a judgment sum: (1) by reason of s 11 CLA, the court may award pre-judgment interest on any judgment sum “at such rate as it thinks fit on the whole or any part of the … damages for the whole or any part of the period … between the date when the cause of action arose and the date of judgment” - please refer to the judgment of Raja Azlan Shah FJ (as His Majesty then was) in the Federal Court in Lim Kar Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109, at 120; and (2) according to O 42 r 12 RC, the court may order a judgment debtor to pay to the judgment creditor post-judgment interest at the rate of 5% per annum (pa) on a judgment sum from the date of the oral decision of the case until full payment of the judgment sum. 115. I have delivered my oral decision for the 6 Suits on 9.12.2022 [Date (Oral Decision)]. 116. Mr. Pereira has invited the court to grant pre-judgment interest on the Award (Total Damages) from the dates of the accrual of the causes of action vested in the Plaintiffs for the Defendant’s Breach (6 SPAs) [Accrual Dates (Plaintiffs’ Causes of Action)]. According to Mr. Pereira, the Accrual Dates (Plaintiffs’ Causes of Action) were the dates when the Defendant delivered vacant possession of the 6 Bungalows to the Plaintiffs. 117. I am not able to grant pre-judgment interest on the Award (Total Damages). On the contrary, this court exercises its discretion under s 11 CLA and O 42 r 12 RC to order the Defendant to pay interest at the rate of 5% pa on the Award (Total Damages) from the Date (Oral Decision) until full satisfaction of the same. The reasons for this exercise of discretion are as follows: (1) the Plaintiffs have yet to incur any expense to rectify All Defects (6 Bungalows). A grant of pre-judgment interest on the Award (Total Damages) will amount to an unjustifiable windfall for the Plaintiffs; and (2) as explained in Linsun Engineering Sdn Bhd v Shin Eversendai Engineering Sdn Bhd [2023] 4 MLRH 466, at [61], this court’s award of interest at the rate of 5% pa on the Award (Total Damages) is higher than the bank interest rates which prevailed at the time of the Accrual Dates (Plaintiffs’ Causes of Action). In other words, the Plaintiffs cannot claim to be prejudiced by the court’s refusal to grant pre-judgment interest on the Award (Total Damages) in the 6 Suits. N. Costs of 6 Suits [Costs (6 Suits)] N(1). Should court certify fees for 2 counsel in favour of Plaintiffs? 118. Mr. Pereira had applied to the court to certify under O 59 r 14(1) RC for fees of two counsel to be paid by the Defendant to the Plaintiff as Costs (6 Suits). According to O 59 r 14(1) RC - “The fees for more than one counsel for one party or set of defendants shall not be allowed unless the Court or Judge at the hearing so certifies.” (emphasis added). 119. It is decided in Singham Sulaiman Sdn Bhd v Appraisal Property Management Sdn Bhd & Anor and another case [2018] 10 MLJ 187, at [115], as follows: “[115] Regarding the court’s power to certify fees for 2 counsel under O 59 r 14(1) RC, I am of the following view: (1) the court has a discretion pursuant to O 59 r 14(1) RC to certify fees for more than one counsel. The court’s exercise of discretion is based on the particular facts of the case at hand and does not constitute a binding legal precedent from the view point of stare decisis doctrine; (2) I refer to Barwick CJ’s judgment in the 4-1 majority decision of the High Court of Australia in Stanley v Phillips (1966) 115 CLR 470, at paragraph 16, which decided that the court may allow fees for more than one counsel where the court is satisfied that “the nature and circumstances of the case are such that the services of two counsel are required if the case is to be presented to the court in such a manner that justice can be done between the parties”. It is to be noted that the High Court of Australia is its apex court; and (3) the court should be wary in certifying fees for more than one counsel because as explained by Vincent Ng Kim Khoay J (as he then was) in the High Court in Pen Apparel Sdn Bhd v Leow Chooi Khon & Ors [1995] 4 CLJ 606, at 616-617, “the process of litigation is solely to enable a litigant to have his rights litigated, rather than to permit him to acquire monetary gains”. Costs is not a remedy in itself. Excessive costs amounts to an unjustifiable windfall and impedes a party’s fundamental right of access to justice as provided in Article 5(1) Constitution - please see the Federal Court’s judgment in Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 CLJ 507, at 514-515.” (emphasis added). 120. Notwithstanding the fact that the 6 Suits raise novel legal issues (please refer to the above paragraph 21), premised on Singham Sulaiman, I decline to exercise my discretion under O 59 r 14(1) RC to certify fees for two counsel to be paid by the Defendant to the Plaintiff as Costs (6 Suits). This decision is based on the following reasons: (1) the nature and circumstances of the 6 Suits do not require the services of two counsel to represent the Plaintiffs so as to enable this court to decide the 6 Suits in a just manner; and (2) if I have certified fees of two counsel to be paid by the Defendant to the Plaintiff as Costs (6 Suits), there is an unjust enrichment to the Plaintiffs in respect of the Costs (6 Suits). N(2). Quantum of Costs (6 Suits) [Quantum (Costs)] 121. By virtue of O 59 rr 2(2), 3(2), 16(2), (3), 19(1) and (2) RC, with regard to the Quantum (Costs), I exercise my discretion as follows: (1) as the Plaintiffs have largely been successful in the 6 Suits, “costs to follow the event”, namely, the Defendant shall pay Costs (6 Suits) to the Plaintiffs on a standard basis. Determination of costs on a standard basis pursuant to O 59 r 16(2) and (3) RC does not entitle the Plaintiffs to claim Costs (6 Suits) on a “time cost” basis - please refer to Allan Lee Mason & Anor v Jeremy Keith Smeeton & Ors [2016] 1 LNS 1593, at [81] and [82]; (2) in respect of issues which the court has found in favour of the Plaintiffs against the Defendant, the Plaintiff is entitled to claim from the Defendant the fees of the relevant experts as “Out of Pocket Expenses”. Accordingly, the Plaintiffs are entitled to claim from the Defendant the expert fees for SP8, SP9, SP10, SP13, SP14 and SP16; and (3) the Defendant is entitled to deduct the following sums from the Quantum (Costs) - (a) two questions which the court has decided in favour of the Defendant against the Plaintiffs, namely - (i) the Defendant’s use of Red Balau timber in the 3 Bungalows (Suits No. 45, 47 and 49); and (ii) the dismissal of the Plaintiffs’ claim for Loss of Use/Enjoyment (6 Bungalows) and Loss of Rental (6 Bungalows); and (b) the expert fees paid by the Defendant for - (i) SD1 [to give his expert view regarding the Plaintiffs’ claim for Loss of Use/Enjoyment (6 Bungalows) and Loss of Rental (6 Bungalows)]; and (ii) SD4’s Expert Opinion with regard to the timber used by the Defendant to construct the 3 Bungalows (Suits No. 45, 47 and 49). 122. Taking into consideration the reasons stated in the above paragraph 121 as well as the considerations provided in O 59 r 16(1)(a) to (c), (e) and (f) RC, this court exercises its discretion to determine the Quantum (Costs) as follows: (1) the Defendant shall pay RM90,000.00 as the Quantum (Costs) for each of Suits No. 43, 44, 45 and 47; and (2) a sum of RM100,000.00 shall be paid by the Defendant as the Quantum (Costs) for each of Suits No. 46 and 49. 123. In accordance with O 59 r 24 RC, I award interest at the rate of 5% pa on the Quantum (Costs) for the 6 Suits from 30.3.2023, the date of determination of the Quantum (Costs) [Date (Determination of Costs)] until full payment of the same. O. Summary of court’s decision 124. In brief, the 6 Suits are allowed with the following judgment: (1) the Defendant shall pay the following damages to the Plaintiffs - (a) the Quantum [Damages for Defects (Air Conditioners)] - please refer to the above paragraphs 72 and 73; and (b) the Quantum [Rectification Cost (Other Defects)] - please see the above paragraphs 105, 106, 108 and 109; (2) interest at the rate of 5% pa on the Award (Total Damages) from the Date (Oral Decision) until full payment of the Award (Total Damages) shall be paid by the Defendant to the Plaintiffs - please refer to the above paragraph 117; (3) as explained in the above paragraphs 121 and 122, the Defendant shall pay the Quantum (Costs); and (4) interest at the rate of 5% pa on the Quantum (Costs) shall be paid by the Defendant to the Plaintiffs from the Date (Determination of Costs)] until full realization of the same. P. Conclusion 125. The 6 Suits do not concern a “mismatch of expectations” (in the words of Mr. Rohan) but involve the Plaintiffs’ right to claim damages for the Defendant’s breach of its Housing Developer’s Obligation (Materials) and Housing Developer’s Obligation (Good Workmanship) under the Statutory SPAs. 126. The Defendant should have instituted third party proceedings under O 16 r 1(1)(a) RC against the Main Contractor for an indemnity or contribution with regard to - (1) the Quantum [Damages for Defects (Air Conditioners)]; and (2) the Quantum [Rectification Cost (Other Defects)] - for which the Defendant was liable to the Plaintiffs. 127. I must end this judgment with the court’s gratitude to Mr. Pereira and Mr. Rohan for their able assistance in these 6 Suits (which has lightened considerably my task in the preparation of this written judgment). WONG KIAN KHEONG Judge Court of Appeal, Malaysia DATE: 14 JANUARY 2024 Counsel for Plaintiffs Mr. Colin Andrew Pereira & Mr. Gary Wong Kin Wai (in 6 Suits): (Messrs Goh Wong Pereira) Counsel for Defendant Mr. Rohan Arasoo A/L Jeyabalah (in 6 Suits): Ms. Amy Hiew Kar Yi & Ms. Pan Yan Teng (Messrs Harold & Lam Partnership)