Smooth Achievement Sdn Bhd v Cekal Unggul Sdn Bhd (B-02(NCvC)(W)-1020-06/2023)

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1 IN THE COURT OF APPEAL MALAYSIA IN PUTRAJAYA (APPELLATE JURISDICTION) IN THE FEDERAL TERRITORY OF PUTRAJAYA CIVIL APPEAL NO: B-02(NCvC)(W)-1020-06/2023

Schedule

SCHEDULE OF PAYMENT OF PURCHASE PRICE (Which is to be taken, read and construed as a essential part of this Agreement) Instalments Payable % Amount (RM) 1. Immediately upon the signing of the Agreement 10 2 Upon completion of Earthworks 20 3 notification that the Development Order has been obtained. 10 4 notification that Infrastructures have been completed. 10 5 On the date the Purchaser takes vacant possession of the Land in accordance with Clause 5 of this Agreement. 50 Total 100 However, we observed that Clause 11.2 above applied only to the First, Second, Third, Fourth, and Fifth Appellants. In contrast, Clause 11.2 of the SPA for the Sixth, Seventh, and Eighth Appellants provided: The Vendor shall at its cost and expense lay or cause to be laid all necessary water, electricity and sewerage mains, and telephone trunking and cabling up to the boundary of the Land in accordance with the recommendation of the Consultant and as approved by the Appropriate Authorities. ( ). Supplemental Agreement dated 31st December 2014, revising Clause 11.2 to read: The Vendor shall at its own cost and expense lay or cause to be laid all necessary water. Electricity and sewerage mains, and telephone trunking and cabling up to the boundary of the Land in accordance with the recommendation ). S/N u5dxfwPe9kahmxP1qSxdNA The same Supplemental Agreement also introduced a new provision, Clause 11.4: The Purchaser shall be fully responsible to apply to the Appropriate Authorities at its own costs and expenses for the connection of all utilities including but not limited to electricity, water, sewerage, sanitary and telephone to the building or such structures to be constructed on the Land by the Purchaser. Significantly, Clause 11.4 is also included in the SPA of the Sixth, Seventh, and Eighth Appellants. [12] On 1st August 2013, the First Respondent obtained planning approval for the Project and subsequently commenced development in accordance with the SPAs until its completion. [13] In accordance with the Fourth Schedule of the SPA, the Second Respondent issued the requisite stage completion certificates, particularly under Items 4 and 5, on 7th September 2015 and 30th September 2015, respectively. [14] However, disputes arose between the Appellants and the Respondents concerning the issuance of the certificates and the delivery of vacant possession of the Property. These disputes included the liquidated damages for delay, and the First-claim for unpaid stage payments under the SPAs, together with interest. [15] As a result, on 6th June 2018, the Appellants commenced proceedings in the Shah Alam High Court via Civil Suit No. BA-22NCVC-S/N u5dxfwPe9kahmxP1qSxdNA 283-06/2018 ( ) and Civil Suit No. BA-22NCVC-284-06/2018 ( ). IN THE HIGH COURT [16] Suit 283 and Suit 284 were heard together before the same learned Judge of the High Court. [17] The First to Sixth Appellants, who were the first, third to seventh plaintiffs in Suit 283, sought the following reliefs against the Respondents, who were the first and second defendants therein (in Bahasa Melayu): (A) satu perintah untuk pelaksanaan spesifik Perjanjian Jual Beli tersebut yang ditandatangani antara Plaintif-Plaintif dan Defendan Pertama untuk menyediakan, menyiapkan dan meletakkan kesemua kabel dan trunking untuk air, elektrik dan pembentungan dan telefon sehingga sampai ke sempadan hartanah kepunyaan Plaintif-Plaintif menurut klausa 11 Perjanjian tersebut. (B) satu deklarasi bahawa sijil-sijil pengesahan penyiapan kerja bertarikh 07.09.2015 dan 30.09.2016 yang diisukan oleh Defendan Kedua adalah tidak sah dan diketepikan; (C) satu deklarasi bahawa Notis Serahan Milikan Kosong yang diisukan oleh Defendan Pertama adalah tidak sah dan diketepikan; (D) Defendan Pertama dan Defendan Kedua diperintahkan untuk membayar kepada Plaintif-Plaintif satu jumlah sebagai ganti rugi dan/atau kerosakan yang akan ditaksirkan oleh Mahkamah Yang Mulia ini; (E) Plaintif Pertama (Lot 14-A) (i) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Pertama untuk jumlah wang sebanyak RM 1,060,433.07 dikira setakat 06.06.2018; S/N u5dxfwPe9kahmxP1qSxdNA (ii) Faedah seterusnya ke atas jumlah RM 1,060,433.07 pada kadar 5% setahun dikira dari 07.06.2018 sehingga tarikh pembayaran penuh; (iii) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Pertama untuk jumlah wang bersamaan 8% setahun ke atas jumlah RM 3,959,268.30 dikira dari 07.06.2018 sehingga tarikh-tarikh kerja-kerja infrastruktur disempurnakan oleh Defendan Pertama di bawah Perjanjian Jual Beli tersebut; (iv) Defendan Pertama dan Defendan Kedua diperintahkan untuk membayar kehilangan faedah ke atas jumlah RM 2,518,094.64 pada kadar 5% setahun dikira dari 26.10.2015 sehingga tarikh pembayaran penuh. (F) Plaintif Kedua (Lot 38-B) (G) Plaintiff Ketiga (Lot 28-B) (i) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Ketiga untuk jumlah wang sebanyak RM 874,597.60 dikira setakat 06.06.2018; (ii) Faedah seterusnya ke atas jumlah RM 874,597.60 pada kadar 5% setahun dikira dari 07.06.2018 sehingga tarikh pembayaran penuh; (iii) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Ketiga untuk jumlah wang bersamaan 8% setahun ke atas jumlah RM 3,265,426.80 dikira dari 07.06.2018 sehingga tarikh-tarikh kerja-kerja infrastruktur disempurnakan oleh Defendan Pertama di bawah Perjanjian Jual Beli tersebut; (iv) Defendan Pertama dan Defendan Kedua diperintahkan untuk membayar kehilangan faedah ke atas jumlah RM 2,076,811.44 pada kadar 5% setahun dikira dari 12.04.2016 sehingga tarikh pembayaran penuh. (H) Plaintif Keempat dan Plaintif Kelima (Lot 35-A & 36-A) (i) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Keempat dan Plaintif Kelima untuk jumlah wang sebanyak RM 1,814,245.75 dikira setakat 06.06.2018; S/N u5dxfwPe9kahmxP1qSxdNA (ii) Faedah seterusnya ke atas jumlah RM 1,814,245.75 pada kadar 5% setahun dikira dari 07.06.2018 sehingga tarikh pembayaran penuh; (iii) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Keempat dan Kelima untuk jumlah wang bersamaan 8% setahun ke atas jumlah RM 6,773,728.50 dikira dari 07.06.2018 sehingga tarikh-tarikh kerja-kerja infrastruktur disempurnakan oleh Defendan Pertama di bawah Perjanjian Jual Beli tersebut; (iv) Defendan Pertama dan Defendan Kedua diperintahkan untuk membayar kehilangan faedah ke atas jumlah RM 4,308,091.33 pada kadar 5% setahun dikira dari 13.09.2016 sehingga tarikh pembayaran penuh. (I) Plaintif Keenam (Lot 21-A& 22A) (i) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Keenam untuk jumlah wang sebanyak RM 1,717,747.50 dikira setakat 06.06.2018; (ii) Faedah seterusnya ke atas jumlah RM 1,717,747.50 pada kadar 5% setahun dikira dari 07.06.2018 sehingga tarikh pembayaran penuh; (iii) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Keenam untuk jumlah wang bersamaan 8% setahun ke atas jumlah RM 6,387,304.00 dikira dari 07.06.2018 sehingga tarikh-tarikh kerja-kerja infrastruktur disempurnakan oleh Defendan Pertama di bawah Perjanjian Jual Beli tersebut; (iv) Defendan Pertama dan Defendan Kedua diperintahkan untuk membayar kehilangan faedah ke atas jumlah RM 4,062,325.34 pada kadar 5% setahun dikira dari 22.03.2016 sehingga tarikh pembayaran penuh. (J) Plaintif Ketujuh (Lot 18-A & 19A) (i) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Ketujuh untuk jumlah wang sebanyak RM 1,069,450.30 dikira setakat 06.06.2018; S/N u5dxfwPe9kahmxP1qSxdNA (ii) Faedah seterusnya ke atas jumlah RM 1,069,450.30 pada kadar 5% setahun dikira dari 07.06.2018 sehingga tarikh pembayaran penuh; (iii) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Ketujuh untuk jumlah wang bersamaan 8% setahun ke atas jumlah RM 7,066,034.40 dikira dari 07.06.2018 sehingga tarikh-tarikh kerja-kerja infrastruktur disempurnakan oleh Defendan Pertama di bawah Perjanjian Jual Beli tersebut; (iv) Defendan Pertama dan Defendan Kedua diperintahkan untuk membayar kehilangan faedah ke atas jumlah RM 2,246,988.94 pada kadar 5% setahun dikira dari 22.08.2016 sehingga tarikh pembayaran penuh. (K) Kos tindakan ini atas dasar peguamcara dan anak guaman; dan (L) Lain-lain perintah atau relif yang difikirkan adil dan suaimanfaat oleh Mahkamah Yang Mulia ini. [18] The First Respondent, who was the first defendant in the Suit 283, filed a counterclaim in response, seeking the following reliefs (in Bahasa Melayu): Oleh hal yang demikian Defendan Pertama menuntut untuk yang berikut: (i) Jumlah wang sebanyak RM 82,246-58 yang merupakan kerugian dan kerosakan daripada Plaintif Ketiga; (ii) Jumlah wang sebanyak RM 20,911-34 yang merupakan kerugian dan kerosakan daripada Plaintif Keempat/Plaintif Kelima; (iii) Jumlah wang sebanyak RM 454,089-92 yang merupakan kerugian dan kerosakan daripada Plaintif Keenam; (iv) Jumlah wang sebanyak RM 598,342-07 yang merupakan kerugian dan kerosakan daripada Plaintif Ketujuh. b) Gantirugi Am; c) Faedah atas jumlah penghakiman pada kadar 5% setahun untuk tempoh yang Mahkamah yang Mulia ini fikirkan patut dan suaimanfaat; S/N u5dxfwPe9kahmxP1qSxdNA d) Relif lain dan/atau lanjut yang dianggap patut dan sesuai oleh Mahkamah yang Mulia ini. [19] The Seventh and Eighth Appellants who were the first and second plaintiffs in Suit 284 claimed as follows from the Respondents who were the first and second defendants therein (in Bahasa Melayu): (A) satu perintah untuk pelaksanaan spesifik Perjanjian Jual Beli tersebut yang ditandatangani antara Plaintif-Plaintif dan Defendan Pertama untuk menyediakan, menyiapkan dan meletakkan kesemua kabel dan trunking untuk air, elektrik dan pembentungan dan telefon sehingga sampai ke sempadan hartanah kepunyaan Plaintif-Plaintif menurut klausa 11 Perjanjian tersebut. (B) satu deklarasi bahawa sijil-sijil pengesahan penyiapan kerja bertarikh 07.09.2015 dan 30.09.2016 yang diisukan oleh Defendan Kedua adalah tidak sah dan diketepikan; (C) satu deklarasi bahawa Notis Serahan Milikan Kosong yang diisukan oleh Defendan Pertama adalah tidak sah dan diketepikan; (D) Defendan Pertama dan Defendan Kedua diperintahkan untuk membayar kepada Plaintif-Plaintif satu jumlah sebagai ganti rugi dan/atau kerosakan yang akan ditaksirkan oleh Mahkamah Yang Mulia ini; (E) Plaintif Pertama (Lot 40-B & 41-B) (i) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Pertama untuk jumlah wang sebanyak RM 1,545,501.49 dikira setakat 06.06.2018; (ii) Faedah seterusnya ke atas jumlah RM 1,545,501.49 pada kadar 5% setahun dikira dari 07.06.2018 sehingga tarikh pembayaran penuh; (iii) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Pertama untuk jumlah wang bersamaan 8% setahun ke atas jumlah 9,165,663.80 dikira dari 07.06.2018 sehingga tarikh-tarikh kerja-kerja infrastruktur disempurnakan oleh Defendan Pertama di bawah Perjanjian Jual Beli tersebut; S/N u5dxfwPe9kahmxP1qSxdNA (iv) Defendan Pertama dan Defendan Kedua diperintahkan untuk membayar kehilangan faedah ke atas jumlah RM 5,499,398.28 pada kadar 5% setahun dikira dari 19.12.2017 sehingga tarikh pembayaran penuh. (F) Plaintiff Kedua (Lot 32-B) (i) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Kedua untuk jumlah wang sebanyak RM 743,347.20 dikira setakat 06.06.2018; (ii) Faedah seterusnya ke atas jumlah RM 743,347.20 pada kadar 5% setahun dikira dari 07.06.2018 sehingga tarikh pembayaran penuh; (iii) Defendan Pertama diperintahkan untuk membayar ganti rugi tertentu kepada Plaintif Kedua untuk jumlah wang bersamaan 8% setahun ke atas jumlah RM 4,355,078.00 dikira dari 07.06.2018 sehingga tarikh-tarikh kerja-kerja infrastruktur disempurnakan oleh Defendan Pertama di bawah Perjanjian Jual Beli tersebut; (iv) Defendan Pertama dan Defendan Kedua diperintahkan untuk membayar kehilangan faedah ke atas jumlah RM 2,613,046.80 pada kadar 5% setahun dikira dari 12.04.2016 sehingga tarikh pembayaran penuh. (G) Kos tindakan ini atas dasar peguamcara dan anak guaman; dan (H) Lain-lain perintah atau relif yang difikirkan adil dan suaimanfaat oleh Mahkamah Yang Mulia ini. [20] The First Respondent, who was the first defendant in the Suit 284, filed a counterclaim in response, seeking the following reliefs (in Bahasa Melayu): Oleh hal yang demikian Defendan Pertama menuntut untuk yang berikut: (a) Jumlah RM 847,565-16 dari Plaintif Pertama sebagai faedah ke atas bayaran lewat baki Harga Belian; S/N u5dxfwPe9kahmxP1qSxdNA (b) Jumlah RM 768,668-46 dari Plaintif Kedua sebagai faedah ke atas bayaran lewat baki Harga Belian; (c) Ganti rugi am; (d) Faedah atas jumlah penghakiman pada kadar 5% setahun untuk tempoh yang Mahkamah yang Mulia ini fikirkan patut dan suaimanfaat; (e) Relif lain dan/atau lanjut yang dianggap patut dan sesuai oleh Mahkamah yang Mulia ini. [21] The primary issues in dispute between the parties, which required determination, were summarised by the learned High Court Judge in the broad grounds as follows: From the dispute, various issues were raised before the Court for decisions: (i) whether the First Defendant had breached the terms of the SPA in delivering vacant possessions. (ii) whether the delivery of vacant possession is subjected to the completion of all the infrastructure works. (iii) whether the Plaintiffs are entitled to claim for liquidated ascertained damages (LAD) for the alleged late delivery of vacant possessions. (iv) whether the First Defendant is entitled to counter claim for the interest charges for late payment of progress billing from the Plaintiffs. [22] After a full trial, the High Court ruled in favour of the Appellants on issues (i) and (ii), but against them on issues (iii) and (iv). In addition, the High Court found against the Appellants in relation to the Second Respondent ( ). Finally, the High Court also allowed the First The full grounds of the Judgment are reported at . S/N u5dxfwPe9kahmxP1qSxdNA [23] The Appellants, dissatisfied with the Judgment, filed an appeal to the Court of Appeal on 22nd June 2023. The First Respondent also filed a cross-appeal on 12th December 2023. FINDINGS OF THIS COURT [24] As this is an appeal arising from a full trial, it is trite law that the appellate function is limited to a review based solely on the record of appeal. In this regard, Abdul Wahab Patail JCA, in Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416 (CA), made the following observation with emphasis added by us: Both parties began their submissions with the clear understanding that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts in the trial judge. They cited this court in Sivalingam Periasamy v. Periasamy & Anor [1996] 4 CLJ 545 CA; [1995] 3 MLJ 395 CA. This general principle was adopted by this court in Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 and other cases. It is clear it is a general principle and that there are exceptions when appellate intervention is necessary to ensure justice is done. In the cases regularly cited, the terms "intervene" and "interfere" are used interchangeably. A more precise use of terminology would remove much unnecessary confusion and argument. It is more precise to say that an appellate court will intervene to correct an injustice when it is shown to have occurred in the trial court, but it would be an interference otherwise. [7] There is almost no limit to the range within which cases in court may vary. At one end there are cases that involve solely questions of law, and no facts are disputed. On the other there are cases that involve no law but all the facts are disputed. Within these cases there may be cases with disputed facts that involve solely interpretation and inferences leading to a conclusion on a finding on the disputed fact, and there may be other cases with disputed facts that involve solely oral evidence and the finding depends entirely upon an assessment of the credibility of witnesses who testified and were tested before the trial judge. [8] Hence, the proper approach is that if (a) it is shown that the judgment cannot be explained or justified by the special advantage enjoyed by the S/N u5dxfwPe9kahmxP1qSxdNA trial judge by reason of having seen and heard the witnesses testify and being tested before him, and (b) an injustice is demonstrated to have been occasioned by any error by the trial judge, for example: (a) the judgment is based upon a wrong premise of fact or of law; (b) there was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him; (c) the trial judge has completely overlooked the inherent probabilities of the case; (d) that the course or events affirmed by the trial judge could not have occurred; (e) the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or (f) the trial judge had so fundamentally misdirected himself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion; an appellate court will intervene to rectify that error so that injustice is [25] Moreover, we are guided by Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309 (FC) wherein Steve Shim CJ (Sabah and Sarawak) held as follows with emphasis added by us: s was whether the term "insufficient judicial appreciation of the evidence" used by the Court of Appeal constituted a new test for appellate intervention. We think it is important to examine this proposition in the light of what the Court of Appeal had said in its judgment beginning from para. 27 which we have reproduced earlier but repeated herein for the purpose of emphasis. It states: Suffice to say that we re-affirm the proposition that an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its conclusion. But appellate interference will take place in cases where there has been no or insufficient judicial S/N u5dxfwPe9kahmxP1qSxdNA appreciation of the evidence. It is, we think, appropriate that we say what judicial appreciation of evidence involves. And the Court of Appeal went on to explain in para. 28 as follows: A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness test it against relevant criteria. He must also test the evidence of a particular witness against the probabilities of the case. In making the observations above, the Court of Appeal cited the following cases: Tindok Besar Estate Sdn Bhd v. Tinjar Co. [1979] 1 LNS 119; [1979] 2 MLJ 229; Muniandy & Ors. v. Public Prosecutor [1966] 1 LNS 110; [1966] 1 MLJ 257; Dr. Shanmuganathan v. Periasamy s/o Sithambaram Pillai [1997] 2 CLJ 153, Yusoff bin Kassim v. Public Prosecutor [1992] 3 CLJ 1535; [1992] 1 CLJ (Rep) 376; Rex v. Low Toh Cheng [1941] MLJ 1; Tengku Mahmood v. Public Prosecutor [1974] 1 LNS 176; [1974] 1 MLJ 110; Choo Kok Beng v. Choo Kok Hoe & Ors [1984] 1 LNS 40; [1984] 2 MLJ 165; Armagas Ltd v. Mundogas SA ("The Ocean Frost") [1985] 1 L1 R 1; State of Rajasthan v. Hanuman (AIR) [2001] SC 282, 284; Tek Chand v. Dile Ram (AIR) [2001] SC 905. In our view, the Court of Appeal in citing these cases had clearly borne in mind the central feature of appellate intervention ie, to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase "insufficient judicial appreciation of evidence" merely related to such a process. This is reflected in the Court of Appeal's restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention ie, that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the established plainly wrong test. In the circumstances and for the reasons stated, there is no merit in the appellants' contention that the Court of Appeal had adopted a new test for appellate intervention. In our view, what the Court of Appeal had done was merely to accentuate the established plainly wrong test consistently applied by S/N u5dxfwPe9kahmxP1qSxdNA See also Ng Hoo Kui & Anor v. Wendy Tan Lee Pheng, Administrator of the Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1 (FC). [26] Based on our review of the Judgment and the submissions advanced by the parties, we find that the pivotal issue hinges on the delivery of vacant possession of the Property pursuant to the SPA. [27] This issue turns on the proper construction of Clause 5 of the SPA. We observe that the SPA are a bespoke contract specifically drafted for this Project, and is not based on a standard form of contract such as that provided under the Housing Development (Control and Licensing) Act 1966 for housing development. [28] It does not appear to be in dispute between the parties that the Project required the First Respondent to provide the requisite infrastructure in accordance with the Development Order. This obligation is set out in Clause 11.2 of the SPA. [29] According to the Appellants, the First Respondent had failed to complete the required infrastructure, and as such, vacant possession of the Property could not have been validly delivered as certified by the Second Respondent under items 4 and 5 of the stage of completion on 7th September 2015 and 30th September 2015, respectively. In this regard, the Appellants contended that the electrical supply, sewerage, and telephone trunking serving the Property were not completed by those dates. S/N u5dxfwPe9kahmxP1qSxdNA [30] With respect to the electrical supply, the Appellants contended that the supply was only energised and made available to the Property on 4th June 2018. [31] As for sewerage, the Appellants further contended that the pump house station serving the system was only handed over to Indah Water Konsortium ( IWK ) on 15th July 2019. [32] Thus, vacant possession of all the Property ought only to be given on 15th July 2019. [33] The Appellants also contended that the Second Respondent had failed to act impartially, professionally, and fairly, and was therefore negligent in issuing the certificates for items 4 and 5 of the stage of completion on 7th September 2015 and 30th September 2015, respectively. [34] In response, the First Respondent contended that the certificates for items 4 and 5 were properly and correctly issued by the Second Respondent on the said dates. [35] The First Respondent asserted that the civil works, including infrastructure related to the M&E works, were completed by the certified dates. It argued that the actual M&E works were to be carried out subsequently by the relevant utility providers, and that this interpretation was consistent with a harmonious reading of Clauses 5 and 11 of the SPA. Furthermore, the First Respondent submitted that there was no requirement to provide telephone trunking, as this was not stipulated in the Development Order. S/N u5dxfwPe9kahmxP1qSxdNA [36] The Second Respondent essentially adopted the contentions of the First Respondent, but maintained that its professional responsibility extended only to the civil works, and not to the M&E works of the Project, including for the certificates of completion issued pursuant to the Fourth Schedule of the SPA. [37] We have carefully examined Clauses 5 and 11 of the SPA, as well as the case of SPM Membrane Switch Sdn Bhd v. Kerajaan Negeri Selangor [2016] 1 CLJ FC, which was relied upon by the parties and the learned High Court judge. In that case, Zainun Ali FCJ held as follows with emphasis added by us: The purpose of interpretation, as Lord Steryn observed in Equitable Life Assurance Society v. Hyman [2002] 1 AC 408, "is to assign to the language of the text the most appropriate meaning which the words can legitimately bear. [38] Lewison commented upon this, saying: Beguilingly simple though the formulation of Lord Hoffmann's first principle is, it contains the fundamental philosophy underlying the English approach to the interpretation of contracts. That is that interpretation does not involve the search for the actual intentions of parties but for an objective meaning. The purpose of interpretation is not to find out what the parties intended, but what the language of the contract would signify to a properly informed ordinary speaker of English. The refocussing of intention on the impression made by the words on the reader, rather than on the intended message of the writer, is a departure from the traditional formulation of the aim of interpretation, namely to ascertain the presumed intention of the parties. It is this philosophy that explains the rationale for such of the exclusionary rules of evidence as remain in English law. In this respect, as Lord Hoffmann acknowledged, the five principles do not follow the way in which serious utterances are interpreted in ordinary life. (emphasis added) S/N u5dxfwPe9kahmxP1qSxdNA [39] Professor McMeel in G. McMeel, The Construction of Contracts: Interpretation, Implication and Rectification (2nd edn, 2011) adds at 1.44 to 1.46: First, construction is concerned with ascertaining the meaning which the document (or utterance) would convey to the reasonable person. It is not concerned with identifying some (fictional) common intention of the parties. The parties are taken to have contracted on the basis that they both accept the determination of an independent tribunal as to the meaning and effect of the language they have deployed, applying the standard of the reasonable person: In this sense the meaning is "objectively ascertained." Secondly, the court adopts a common sense approach to the meaning of contractual language, rather than one based on literalism or technical arguments of syntax and semantics. Whilst the general rule is that a commonsense reading is to be preferred, in respect of some contracts or some species of contractual clause a stricter approach to language may be adopted on the grounds of legal policy, Thirdly, the tribunal considers as relevant not just the immediate context of the remainer of the instrument, but all the admissible surrounding circumstances (legal, regulatory and factual background, albeit not the prior negotiations or declarations of subjective intention) when interpreting the language. Crucially this approach is adopted whether or not a particular phrase or clause is unclear or ambiguous. Ambiguity is no longer a precondition for recourse to such "extrinsic evidence. [40] Consistent with this analysis is the case of Berjaya Times Square (supra) where at p. 297 CLJ; [43] 621E, Gopal Sri Ram, FCJ (as His Lordship then was) adopting the British authorities, states: The most recent statement of the guideline to interpretation of contract statutes and other instruments is to be found in Attorney General of Belize v. Belize Telecom [2009] UKPC 10, where delivering the advice of the board, Lord Hoffman said: The Court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms or make it fairer or more reasonable. If it is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would S/N u5dxfwPe9kahmxP1qSxdNA convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed... It is this objective meaning which is conventionally called the intention of the parties or the intention of Parliament, or the intention of whatever person or body was or is deemed to have been the author of the instrument. [41] Thus in addition to the above in interpreting the contract, the court must approach it holistically. No term is to be taken or interpreted in isolation. This canon of construction is so long established, it is almost banal. See for instance Chamber Colliery Ltd v. Twyerould [1893] [1915] 1 Ch 268 (Note): ... the application of the well-known (sic) rule that a deed ought to be read as a whole, in order to ascertain the true meaning of its several clauses; and that the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible. [42] This is further reinforced by Lord Mustill in Charter Reinsurance Co Ltd v. Fagan [1997] AC 313, 384, where His Lordship stated that "the words (to be interpreted) must be set in the landscape of the instrument as a whole". [68] Thus the nub of this appeal is, when one has to choose between two competing interpretations, the one which makes more commercial sense should be preferred if the natural meaning of the words is unclear. It is noteworthy that the same approach was taken by Lord Hodge (in the majority decision of Arnold v. Britton And Others ), where His Lordship accepted the unitary process of construction in Rainy Sky SA v. Kookmin Bank[2011] 1 WLR 2900 para. 21 that: ... if there are two possible constructions, the Court is entitled to prefer the construction which is consistent with business common sense and [38] Upon our objective construction of Clauses 5 and 11, particularly Clauses 5.1, 5.2, and 11.2 of the SPA, we find that the First Respondent is obliged to hand over vacant possession of the Property within the time S/N u5dxfwPe9kahmxP1qSxdNA stipulated in Clauses 5.1 and 5.2. We further find that the First Respondent is required to provide the infrastructure serving the Property, as set out in Clause 11.2 of the SPA. These obligations do not appear to be disputed by the parties. [39] However, the salient dispute between the parties is whether the First Respondent is obliged to provide the Infrastructures at the time of giving vacant possession of the Property to the Appellants. We find in the negative. [40] It is plain that the Project is the sale of empty factory land lots to many purchasers that include the Appellants without factory building built thereon by the First Respondent. Thus, in respect of all utilities including electricity supply and sewerage which are in issue here, they are necessarily dependent on the ultimate needs of all the purchasers of the Property based on the type and nature of the factory to be built thereon. From the evidence adduced, we find that the requisite electrical equipment which formed the M & E works to be installed in the 4 electrical sub-stations as well as the electrical cabling from the sub-station to the feeder pillar at the boundary of each Property will be undertaken by TNB. The respective Appellants must themselves apply to TNB for their requisite electrical supply but the First Respondent must nevertheless pursuant to the SPA pay for any connection charges required by TNB. [41] Likewise, for the sewerage, we find that the sewage pumping equipment which formed the M & E works will be installed by IWK in the sewerage pump house constructed by the First Respondent. S/N u5dxfwPe9kahmxP1qSxdNA [42] Consequently, we find and hold based on a sensible and reasonable commercial interpretation of the SPA that vacant possession of the Property is given to the Appellants on the completion of the civil works of the Property as well as the civil works of the Infrastructures that serve the Project. The M & E works of the Infrastructures will be subsequently carried out by the utility companies upon application by the Appellants based on their respective needs, particularly as expressly provided in Clause 11.2 of the SPA for the First, Sixth, Seventh and Eighth Appellants. This is consistent with the words We are of the view that the First Respondent has to otherwise unfairly assume the risk of possible exposure to liquidated damages for the unspecified and unknown time period which will elapse for each Appellant to determine the design and construction of their respective factory building. This is beyond the control of the First Respondent and cannot objectively be the intent of the parties. [43] It is not in dispute that the civil works of the A Property were completed by September 2015. From the evidence adduced, we find as a matter of fact that the TNB sub-stations and IWK sewerage civil works of the Project were also substantially done before the end September 2015. [44] In the premises, we find the Second Respondent did not pre-maturely issue the certificate of completion for item 4 and item 5 of the stage of completion of the Property on 7th September 2015 and 30th September 2015 respectively. S/N u5dxfwPe9kahmxP1qSxdNA [45] Based on clauses 5.1 and 5.2 of the SPA, the Appellants contended that the contractual date of vacant possession to be given for their respective Property are as follows: No. Appellant Date of Delivery of Vacant Possession 1. First Appellant 31st January 2015 2. Second Appellant 31st January 2015 3. Third Appellant 31st January 2015 4. Fourth Appellant 31st January 2015 5. Fifth Appellant 31st January 2015 6. Sixth Appellant 16th July 2016 7. Seventh Appellant 28th April 2016 8. Eighth Appellant 28th April 2016 [46] However as contended by the First Respondent and found by the learned High Court judge, the contractual date of vacant possession to be given for their respective Property are instead as follows: No. Appellant Date of Delivery of Vacant Possession 1. First Appellant 31st January 2016 2. Second Appellant 31st January 2016 3. Third Appellant 1st February 2015 4. Fourth Appellant 1st February 2015 5. Fifth Appellant 1st February 2015 6. Sixth Appellant 17th January 2017 7. Seventh Appellant 29th October 2016 8. Eighth Appellant 29th October 2016 S/N u5dxfwPe9kahmxP1qSxdNA [47] Upon our review, we find on the true construction of clauses 5.1 and 5.2 of the respective SPA and evidence adduced by the parties, the contractual date of vacant possession to be given for their respective Property is that as found by the learned High Court judge. [48] As a result, the payment of liquidated damages pursuant to clause 5.3 of the SPA is the difference in days between the actual date and the contractual date of the giving of vacant possession of the Property. The former is 30th September 2015 as determined by us in paragraph [43] above while the latter is that as determined by us in paragraph [47] above. [49] It follows that the First Respondent is only liable to pay liquidated damages to the Third to Fifth Appellants for the late giving of vacant possession of their respective Property pursuant to clause 5.3 of the SPA. [50] That notwithstanding, the governing law on liquidated damages is s. 75 of the Contracts Act 1950 which provides as follows: 75. Compensation for breach of contract when penalty stipulated for When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for. Explanation - A stipulation for increased interest from the date of default may be a stipulation by way of penalty. Exception - When any person enters into any bail-bond, recognizance, or other instrument of the same nature, or, under the provisions of any law, or under the orders of the Federal Government or the Government of any State, gives any bond for the performance of any public duty or act in which the public are S/N u5dxfwPe9kahmxP1qSxdNA interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein. Explanation - A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested. [51] In Cubic Electronics Sdn Bhd (In liquidation) v. Mars Telecommunications Sdn Bhd [2019] 2 CLJ 723 (FC), Richard Malanjum CJ (Sabah & Sarawak) (later CJ) held as follows in interpreting s. 75 of the Contracts Act: With respect and for reasons we shall set out below, we are of the view that there is no necessity for proof of actual loss or damage in every case where the innocent party seeks to enforce a damages clause. Selva Kumar (supra) and Johor Coastal (supra) should not be interpreted (as what the subsequent decisions since then have done) as imposing a legal straightjacket in which proof of actual loss is the sole conclusive determinant of reasonable compensation. Reasonable compensation is not confined to actual loss, although evidence of that may be a useful starting point. [68] Consequently, regardless of whether the damage is quantifiable or otherwise, it is incumbent upon the court to adopt a common-sense approach by taking into account the legitimate interest which an innocent party may have and the proportionality of a damages clause in determining reasonable compensation. This means that in a straightforward case, reasonable compensation can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if indeed the breach occurred (emphasis added). Thus, to derive reasonable compensation, there must not be a significant difference between the level of damages spelt out in the contract and the level of loss or damage which is likely to be suffered by the innocent party. [69] Notwithstanding the foregoing, it must not be overlooked that s. 75 of the Act provides that reasonable compensation must not exceed the amount so named in the contract. Consequently, the impugned clause that the innocent party seeks to uphold would function as a cap on the maximum recoverable S/N u5dxfwPe9kahmxP1qSxdNA [52] The learned High Court judge did not however award liquidated damages to the Third to Fifth Appellants because they did not demonstrate that they suffered actual loss. Upon our review, we do not find evidence the Third to Fifth Appellants adduced cogent evidence of them having already taken preparatory steps to build their respective factory on the Property concerned. These steps would be good indicia of business financial loss likely to have been incurred. [53] In the premises, we do not find that the learned High Court judge on issues (iii) and (iv) which are decisive before His Lordship. We nonetheless noticed that the learned High Court judge found in favour of the Appellants in respect of the preceding issues (i) and (ii) which we differ for reasons stated in paragraphs [39] to [44] above. This is however inconsequential because we concur with the ultimate High Court reliefs ordered. We also concur with the learned High Court judge in allowing the [54] Additionally, and by reason also of our findings and reasons stated in paragraphs [39] to [44 against the Second Respondent must necessarily fail because the Second Respondent is not liable for having pre-maturely issued the certificate of completion for item 4 and item 5 of the stage of completion of the Property on 7th September 2015 and 30th September 2015 respectively. For completeness, we also differ with the learned High Court judge that the Second Respondent is only responsible for the civil works but not the M & E works for purposes of the administering the SPA. The Second Respondent is, in our view, the consultant defined in the SPA by its actions particularly in having issued the required certificates thereunder S/N u5dxfwPe9kahmxP1qSxdNA at all material times. In other words, the Second Respondent assumed overall responsibility as consultant for all intents and purposes of the SPA. Hence, the Second Respondent is estopped from so denying the same; see Boustead Trading (1985) Sdn Bhd v. Arab Malaysian Merchant Bank Bhd [1995] 4 CLJ 283 (FC). [55] Finally, we are aware that the First Respondent has cross appealed against its counterclaims which were dismissed by the learned High Court judge. We are however of the view that the cross appeal is incompetent as contended by the Appellants. This is plain from the case of Kabushiki Kaisha Ngu v. Leisure Farm Corporation Sdn Bhd & Ors [2016] 8 CLJ 159 (FC) where Zulkefli Ahmad Makinuddin CJ (Malaya) (later PCA) held as follows: As regards the first question posed before this court as to whether a notice of cross-appeal may only raise contentions to vary the decision of the High Court, we are of the view that r. 8 and Form 2 of the RCA 1994 are relevant consideration. [15] In construing r. 8 and Form 2 of the RCA 1994, the Court of Appeal had rightly considered the critical words used, namely "should be varied... specifying the grounds thereof" and "to be varied to the extent". Following this, the Court of Appeal had rightly held that the word "vary" by itself should be given its ordinary and natural meaning as stated in The Concise Oxford Dictionary to mean "change, make different, modify". [16] We also agree with the Court of Appeal's finding that it had considered the clear provisions under r. 5 of the RCA 1994, and holding that r. 5 of the RCA 1994 provided for an appeal to be lodged against the whole or part of any judgment or order of court, and such an appeal in contrast to a cross-appeal is by way of a re-hearing. The word "re-hearing" used clearly anticipated a review or regurgitation before the appeal court of all the points and arguments taken at the court below. Hence, if it was the substantive finding of the court that was intended to be attacked, it behoved upon the party aggrieved to file a proper S/N u5dxfwPe9kahmxP1qSxdNA [56] It is therefore incumbent upon the First Respondent to file its own notice of appeal to appeal against the variation of the learned High Court its counterclaim and failure to do so is fatal. [57] The cross appeal is hence dismissed in limine. CONCLUSION [58] For the foregoing reasons, we find that there is no appealable error on the part of the learned High Court judge that warrants appellate intervention. We therefore RM20,000.00 to each of the First and Second Respondent subject to allocator. We also dismiss the First no order as to costs. The High Court Judgment is affirmed. Dated this 20th August 2025 Sgd. LIM CHONG FONG COURT OF APPEAL JUDGE S/N u5dxfwPe9kahmxP1qSxdNA LIST OF COUNSELS: Counsels for the Appellants 1. 2. Wong Renn Xin. Solicitors for the Appellants MESSRS. K L WONG No. 31, 2nd Floor, Jalan Barat, Off Jalan Imbi, 55100 Kuala Lumpur. Counsel for the 1st Respondent Lee Eu Kong Solicitors for 1st Respondent MESSRS. VINCENT LIM & PARTNERS No. 18-3S, Tingkat 3, Jalan Kampong Attap, 50460 Kuala Lumpur. 1. Counsel for 2nd Respondent Kam Chin Khoon; 2. Sarjeet Singh Sidhu Solicitors for 2nd Respondent MESSRS. KAM & SIDHU Vo2-07-08, Aras 7, Sunway Velocity Office, Lingkaran SV, Off Jalan Peel, 55100 Kuala Lumpur. STATUTE/LEGISLATION REFERRED TO: s. 75 of the Contracts Act 1950. CASES REFERRED TO: Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; Ng Hoo Kui & Anor v. Wendy Tan Lee Pheng, Administrator of the Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1; S/N u5dxfwPe9kahmxP1qSxdNA Cubic Electronics Sdn Bhd (In liquidation) v. Mars Telecommunications Sdn Bhd [2019] 2 CLJ 723; Boustead Trading (1985) Sdn Bhd v. Arab Malaysian Merchant Bank Bhd [1995] 4 CLJ 283; and Kabushiki Kaisha Ngu v. Leisure Farm Corporation Sdn Bhd & Ors [2016] 8 CLJ 159. S/N u5dxfwPe9kahmxP1qSxdNA