Soh Chin Kiat v Buana Tunggal Sdn. Bhd. (JA-12BNCvC-4-02/2026)

SOH CHIN KIAT [NRIC NO. : 630918-01-5502]

CHIN ZIA ZONG [NRIC NO. : 871105-23-6145] …APPELLANTS AND BUANA TUNGGAL SDN. BHD. [COMPANY NO. : 328170-W] …RESPONDENT IN THE SESSIONS COURT AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TA'ZIM, MALAYSIA CIVIL SUIT NO. : JA-B52NCVC-16-02/2024 26/07/2026 13:30:54 JA-12BNCvC-4-02/2026 Kand. 29 S/N tfsOduty5UqZgkMU/4JsOw

SOH CHIN KIAT [NRIC NO. : 630918-01-5502]

CHIN ZIA ZONG [NRIC NO. : 871105-23-6145] …PLAINTIFFS AND BUANA TUNGGAL SDN. BHD. [COMPANY NO. : 328170-W] …DEFENDANT GROUNDS OF JUDGMENT

This is the appellants’ appeal against the whole of the decision of the Sessions Court Judge (“SCJ”) given on 16 February 2026, after a full trial, in a claim for liquidated ascertained damages (“LAD”) for the late S/N tfsOduty5UqZgkMU/4JsOw completion of a commercial unit. For convenience, I refer to the parties as they were below : the appellants as the plaintiffs and the respondent as the defendant.

The plaintiffs are the joint purchasers of a three-storey shop office with mezzanine known as Unit A-13 (comprising A-13-UG, A-13-01 and A-13-02) in a commercial development known as “Permas City”. The defendant is the developer of that project. The purchase was made under a sale and purchase agreement dated 6 September 2017 (“the SPA”) at a price of RM1,900,000.00 (a net purchase price of RM1,792,453.00 together with goods and services tax of

The Sessions Court awarded the plaintiffs LAD of RM144,639.05 (after set-off of sums owing by them), interest at 5% per annum on the judgment sum from the date of judgment until realisation and costs of RM10,000.00. The plaintiffs say that figure is too low, and seek a substantially larger award together with interest from an earlier date.

It is not in dispute that completion of the unit was late. What is in dispute is the number of compensable days of delay and consequently, the quantum of LAD. The material facts are as follows.

On 12 May 2017 the plaintiffs paid a booking fee of RM30,000.00 against a Purchase Letter. On 6 September 2017 the parties S/N tfsOduty5UqZgkMU/4JsOw executed the SPA, the plaintiffs paying a further RM160,000.00, making up 10% of the price. By section 10.02(a) the defendant was to complete the unit “within thirty six (36) months from the date hereof”, subject to any extension of time granted by the defendant’s architect, by section 10.02(b) LAD at 8% per annum on the purchase price was to run from “the due date of completion as specified in Section 10.02(a)” to the date of completion, with the defendant entitled to set off monies due by the plaintiffs.

The defendant’s architect, Arkitek Permata (SD-3, Dato’ AR Teng Chew Hoe), issued two documents said to be extensions of time. The first, dated 1 June 2016 (“EOT 1”), purported to grant a 12-month extension for contractor disability and delay in obtaining authority approval. The second, dated 15 September 2021 (“EOT 2”), certified a delay by reason of force majeure, namely the COVID-19 pandemic and the Movement Control Order, “from 18 March 2020 and… still continuing”.

The architect issued a Certificate of Practical Completion (“CPC”) dated 1 April 2023. A Certificate of Completion and Compliance (“CCC”, in Borang F) was signed on 21 September 2023. The defendant issued its notice of progressive (final) payment on 27 September 2023 and its notice of delivery of vacant possession on 3 October 2023.

By a statement of account dated 4 January 2024, the defendant’s accountant, Sarah & Co (SD-2, Sarah binti Abdul Hameid), computed the sum payable. It took a delay period of 939 days (5 September 2020 to 1 April 2023), deducted 546 days (18 March 2020 to 15 S/N tfsOduty5UqZgkMU/4JsOw September 2021) said to be the architect’s certified force-majeure period, arrived at 393 net days, computed LAD of RM154,396.50, deducted the plaintiffs’ outgoings of RM9,757.45 (quit rent, assessment and insurance) and certified a net sum of RM144,639.05 payable by the defendant to the plaintiffs.

The plaintiffs commenced the action on 28 February 2024. Four witnesses gave evidence at trial –

SP-1 (the second plaintiff, Chin Zia Zong);

SD-1 (the defendant’s director, Tok Beng Tong);

SD-2 (the accountant); and

SD-3 (the architect).

The SCJ held, in short, that as the unit was commercial the plaintiffs’ right to claim depended entirely upon the agreed terms of the SPA. On that footing she found –

the LAD start date was 36 months from the SPA, that is from 6 September 2017 (the due date being 5 September 2020);

the completion date was the CPC of 1 April 2023;

the architect’s extensions of time were valid and contractual; and S/N tfsOduty5UqZgkMU/4JsOw

the accountant’s statement of 4 January 2024 conclusively determined the parties’ financial position. She accordingly adopted the defendant’s computation and awarded RM144,639.05.

The grounds in the Memorandum of Appeal resolve into six issues –

whether the LAD start date is the booking fee or the SPA;

whether the completion date is the CPC or the CCC;

the validity of EOT 1;

the validity of EOT 2;

whether the Sarah & Co statement validly determined the sum; and

the date from which interest should run. S/N tfsOduty5UqZgkMU/4JsOw The standard of appellate intervention

A first appeal proceeds by way of rehearing on the record. An appellate court will not disturb findings of fact or credibility unless the trial court is shown to be plainly wrong or to have failed in the judicial appreciation of the evidence. [See : Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67, UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 and Lim Choon Seng v Lim Poh Kwee [2020] 5 MLJ 587]. Where, however, the question is the construction of the written agreement, it is a question of law on which this Court is in as good a position as the court below. As will be seen, several of the issues turn on construction, on those I am entitled to and do, form my own view. Issue 1 - the LAD start date

The plaintiffs contend that LAD must run from the date the booking fee was paid (12 May 2017), relying on Hoo See Sen & Anor v. Public Bank Bhd [1988] 1 MLRA 46 and Faber Union Sdn Bhd v. Chew Nyat Shong & Anor [1995] 1 MLRA 623, affirmed as good law by the Federal Court in PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor And Other Appeals [2021] 1 MLRA 506. They say the principle is one of general application, not confined to housing contracts, having been applied to a non-housing S/N tfsOduty5UqZgkMU/4JsOw sale in the Court of Appeal in Nippon Express (M) Sdn Bhd v. Che Kiang Realty Sdn Bhd & Another Appeal [2014] 1 MLRA 558.

I am unable to accept that contention. The authorities relied upon were decided in the context of statutory sale and purchase agreements prescribed under the Housing Development (Control and Licensing) Act 1966, a social legislation enacted to protect house buyers, in which the courts read down prescribed terms and addressed the developer’s collection of booking fees ahead of the statutory agreement. The present agreement is not a statutory housing agreement. It is a freely negotiated commercial contract for a commercial unit and the source of the parties’ rights and obligations is the SPA itself. [See : Icon City Development Sdn Bhd (formerly known as Sierra Peninsular Development Sdn Bhd) v Lee Kean Hwa & Ors [2025] 6 MLJ 901].

The express words of the SPA admit of only one meaning. Section 10.02(a) requires completion “within thirty six (36) months from the date hereof” and section 10.02(b) fixes LAD as running “from the due date of completion as specified in Section 10.02(a)”. “The date hereof” is the date of the SPA. There is no ambiguity, and so no room for the contra proferentem rule. Indeed SP1 himself accepted in evidence that, under section 10.02(a), the unit was to be completed within 36 months of the SPA.

A principle developed to protect house buyers under a statutory regime cannot be deployed to displace an express term of a commercial contract freely agreed between the parties. The SCJ was right to take the SPA as the starting point and she was not plainly S/N tfsOduty5UqZgkMU/4JsOw wrong. This ground fails. The start date is 6 September 2017 and the due date of completion is 5 September 2020. Issue 2 - the completion date

This is a question of construction and here I respectfully differ from the court below. The term “Certificate of Practical Completion”, or “CPC”, appears nowhere in the SPA. Completion and delivery of possession are dealt with in section 10.02 and the Certificate of Completion and Compliance is the subject of section 10.03.

On the evidence, the CPC of 1 April 2023 was a certificate issued under the building contract between the defendant and its main contractor and not under the SPA between the defendant and the plaintiffs. These are two distinct contracts. A certificate of practical completion as between developer and contractor is not the contractual measure of “completion of the Property” for the purpose of the developer’s obligation to the purchaser.

The structure of the SPA points to the CCC. The defect liability period under section 11.01 runs from the delivery of vacant possession and vacant possession was delivered together with and following, the CCC. The defendant’s own conduct is consistent with this and not with the CPC. It issued its third and final progressive payment claim (27 September 2023) and its notice of delivery of vacant possession (3 October 2023) only after the CCC was issued on 21 September S/N tfsOduty5UqZgkMU/4JsOw 10 2023 and not upon the CPC of 1 April 2023. The defendant thereby treated completion as occurring upon the CCC.

I therefore hold that, for the purpose of computing LAD under section 10.02(b), the date of completion of the unit is the date of the CCC, 21 September 2023 and not the CPC of 1 April 2023. To this extent, the appeal succeeds. Issue 3 - the validity of EOT 1 (1 June 2016)

EOT 1 is dated 1 June 2016, which predates both the booking fee (12 May 2017) and the SPA (6 September 2017). An extension of the 36- month completion period, which is a period defined by reference to, and running from, the SPA. It cannot logically have been granted before that period came into existence. In any event, EOT 1 does not enter into the computation that produced the award. The Sarah & Co statement measured the delay from the unextended due date and deducted only the period attributed to EOT 2. EOT 1 therefore has no bearing on the quantum and I give it no effect. The due date of completion remains 5 September 2020. Issue 4 - the validity and effect of EOT 2 (15 September 2021)

Section 10.02(a) expressly empowers the defendant's architect to grant a fair and reasonable extension of time on account of, among S/N tfsOduty5UqZgkMU/4JsOw other specified causes, an outbreak of epidemic disease or force majeure and provides that the architect's decision is "final, conclusive and binding". Such a decision may be impugned only on grounds of fraud, mala fide or manifest error. [See : Malaysia Land Properties Sdn Bhd (formerly known as Vintage Fame Sdn Bhd) v Tan Peng Foo [2014] 1 MLJ 718].

The plaintiffs’ submission that only the Minister could grant a COVID-related extension does not assist them. That proposition belongs to the statutory housing regime, the present is a commercial SPA which by section 10.02(a) confers the power expressly upon the architect. No fraud or mala fide was pleaded or proved. SD-3’s description of the document in cross-examination as his “advice” must be read with his evidence as a whole and with the document itself, which is headed a “Certification of Delay of Completion… under Section 10.02”. Reading the matter as a whole, I am not persuaded that EOT 2 was a nullity and I see no basis to disturb the finding below that the architect had and exercised, the contractual power to extend time on account of the pandemic.

Ground 6 of the Memorandum of Appeal separately complains that the SCJ erred in her construction of section 20.04 of the SPA, the general "Force Majeure and other Disabilities" clause, in permitting the extension. Section 20.04 excuses the defendant from liability for failing to fulfil the terms of the Agreement where fulfilment is delayed, hindered or prevented by force majeure, it says nothing about extending the date of completion or the mechanism by which LAD is computed under section 10.02(b). That mechanism is governed specifically and exclusively, by section 10.02(a), which I have already S/N tfsOduty5UqZgkMU/4JsOw considered. Section 20.04 cannot be read to confer on the architect, or anyone else, a power to extend time wider than that already conferred by section 10.02(a), nor to revive or extend a period beyond what the architect has in fact certified under that section. The SCJ, in addressing this issue, referred to section 20.04 alongside section 10.02(a). For the reasons given, that reference does not affect the analysis or conclusion reached above. This ground does not affect the outcome.

The manner in which EOT 2 was quantified and applied is, however, a different matter and two errors appear on the face of the documents.

First, EOT 2 certifies an extension “from 18 March 2020 and… still continuing”, an open-ended period with no terminus. Section 10.02(a) requires “a fair and reasonable extension of time”, which connotes an ascertainable period. The figure of 546 days deducted in the account was not a period certified by the architect, it was a computation by the accountant, ending on the arbitrarily chosen date of 15 September 2021.

Secondly, and more fundamentally, the deducted period begins on 18 March 2020, which is some five and a half months before the due date of completion of 5 September 2020. An extension of time operates upon the period for completion, it cannot reduce a delay before any delay has begun to run. To deduct days falling before the due date of completion is to exclude time that was never part of the compensable delay. That is a manifest error. S/N tfsOduty5UqZgkMU/4JsOw

Giving effect to the architect’s valid exercise of power, while correcting the manifest error, the extension can properly operate only upon that part of the certified force-majeure period that falls within the delay window, that is, from the due date of completion (5 September 2020) to the terminus adopted by the defendant’s own account (15 September 2021), a period of 375 days. The excess deduction of 171 days is disallowed. To that extent the appeal succeeds. Issue 5 - the Sarah & Co statement of account (4 January 2024)

Section 20.01 empowers the defendant’s accountant to certify “any monies (including interest) due by the Purchaser to the Vendor”. On its plain terms the clause authorises the certification of sums owed by the purchaser to the developer. It does not, in my judgment, empower the accountant to determine and certify the LAD payable by the developer to the purchaser. That is a sum of a different character, owing in the opposite direction, the quantification of which depends on the construction of the start date, the completion date and the validity and extent of the extension of time, matters for the Court, and not for the developer’s appointed accountant.

To the extent that the statement of account purported to fix the LAD payable by the defendant to the plaintiffs, it went beyond the accountant’s mandate under section 20.01 and is not conclusive of that question. The certificate is conclusive only as to the monies due by the plaintiffs to the defendant, here the quit rent (RM6,175.38), assessment (RM3,401.70) and insurance (RM180.37), totalling S/N tfsOduty5UqZgkMU/4JsOw RM9,757.45, which are not in substance disputed and which fall to be set off under the proviso to section 10.02(b). The LAD itself is for the Court to compute. Further and in any event, the LAD computation within the statement is affected by the manifest error in the 546-day deduction already identified. To this extent the appeal succeeds. Issue 6 - interest

Section 11 of the Civil Law Act 1956 confers on the Court a discretion to award interest on damages for the whole or any part of the period between the date the cause of action arose and the date of judgment. LAD under section 10.02(b) is a liquidated sum, ascertainable from the contract once the relevant reference points are fixed. The defendant’s reliance on CIMB Bank Bhd v Maybank Trustees Bhd and other appeals [2014] 3 MLJ 169, where the sum was unascertained until judgment, is therefore distinguishable.

The plaintiffs were kept out of a sum that fell due upon completion and were, on the evidence, themselves servicing financing in the meantime. In those circumstances the refusal of any pre-judgment interest did not, with respect, do justice between the parties. I exercise the discretion to award interest at 5% per annum on the LAD sum from 27 September 2023 (the date the plaintiffs were notified of completion and the sum fell due) to the date of the judgment of the Sessions Court (16 February 2026) and thereafter at 5% per annum until full realisation. To this extent the appeal succeeds. S/N tfsOduty5UqZgkMU/4JsOw Recomputation of quantum

Applying the above findings, the LAD is recomputed as follows – The net purchase price RM1,792,453.00 the rate is 8% per annum a daily figure of approximately RM392.87 Due date of completion (SPA + 36 months) 5 September 2020 Actual completion (CCC) 21 September 2023 Gross period of delay 1,111 days (Less) valid force-majeure extension (5 September 2020 to 15 September 2021) 375 days Net compensable delay 736 days LAD (RM1,792,453 × 736/365 × 8%) RM289,149.68 (Less) set-off of monies due by the plaintiffs (section 20.01 / proviso to section 10.02(b)) RM9,757.45 Net LAD payable by the defendant to the plaintiffs RM279,392.23 S/N tfsOduty5UqZgkMU/4JsOw

For the reasons given, the appeal is allowed in part. I make the following orders –

the appeal is allowed in part;

the order of the Sessions Court awarding the plaintiffs RM144,639.05 is set aside and there is substituted an award of RM279,392.23 payable by the defendant to the plaintiffs;

interest at 5% per annum on the said sum of RM279,392.23 from 27 September 2023 to 16 February 2026 and thereafter at 5% per annum until full realisation; and

since the appeal is only allowed in part, I make no costs to the appeal. Dated : 1 July 2026 -signed- (NORADURA BINTI HAMZAH) Judicial Commissioner High Court Civil 2 Johor Bahru S/N tfsOduty5UqZgkMU/4JsOw Counsel for the Appellants : : Meyappan Pillai, Ishak Mohd Sharif and Nanthini Peidenaidu Messrs. Ishak Sharif & Co. Counsel for the Respondent : : Chuah Chen Yean Messrs. Sidek Teoh Wong & Dennis S/N tfsOduty5UqZgkMU/4JsOw