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WA-22NCvC-775-12/2024
High Court of Malaysia8 May 2025
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“ies within the statutory period from 18.03.2020 to 31.08.2020, must be excluded under Section 35(1) of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 (“COVID Act”).”
“rescribed in O. 53, of the RC 2012 (see, among others, Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865 and Kenneth Kong Kok Leong & Ors v Mayfair Ventures Sdn Bdn [2025] CLJU 4 ). 16. In Ang Ming Lee (supra), the aggrieved purchasers commenced their action by filing an application f”
“ed the case authorities of Chan Kwai Chun v. Lembaga Kelayakan [2002] 3 CLJ 231, Tenaga Nasional Berhad v. Bandar Nusajaya Development Sdn Bhd [2016] 8 CLJ 163 and Lam Su See v. Prema Bonanza Sdn Bhd [2021] MLJU 713 (subsequently affirmed by the Court of Appeal and Federal Court) to support the submission that there is”
Auto-detected from judgment text; not a substitute for a citator check.
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JIMMY ONG KIM HENG ... PLAINTIFFS AND 22/09/2025 12:23:21 Kand. 35 GLOMAC SEGAR SDN BHD (Company No.: 361055-W) ... DEFENDANT GROUNDS OF JUDGMENT (Enclosure 50)
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The main claim made by the Plaintiffs in these suits was for Liquidated Ascertained Damages (‘LAD’) for the delay in the delivery of vacant possession of their respective parcels and in the completion of the common facilities for the project known as Plaza @ Kelana Jaya within the stipulated timeframe.
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The total LAD claimed by the Plaintiffs in Suit No.: WA-22NCvC- 438-08/2023 was RM2,061,157.80 while the total LAD claimed in Suit No.: amounts to
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On 23.12.2024, the Court on its own motion directed that the questions of law or construction of documents (‘Questions of Law’) arising in this cause or matter at this stage of the proceedings are to be determined by this Court under O. 14A, r. 1 of the Rules of Court 2012 (‘RC 2012’) which reads as follows: “Determination of questions of law or construction (O. 14A, r. 1)
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The Court may, upon the application of a party or of it's own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that—
a
such question is suitable for determination without the full trial of the action; and
b
such determination will finally determine the entire cause or matter or any claim or issue therein.
2
On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.
3
The Court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question. …”.
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The parties agreed that, upon the determination of the Questions of Law, the Court may allow or dismiss the cause or matter or make such order or judgment as it thinks just.
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The Questions of Law are as follows: “1. Whether the Plaintiffs used the correct mode of proceedings to challenge the extension of time granted to the Defendant vide the letter from Ketua Pengarah, Jabatan Perumahan Negara, Kementerian Perumahan dan Kerajaan Tempatan dated 29.06.2018 with the reference number (29)JPN/(PS)/974/AM-EOT/Jld.7 (‘the 29.06.2018 Letter’)?
2
If the answer to Question 1 is negative, whether the Plaintiffs’ claim ought to be dismissed?
3
Whether the present claim is limited to Liquidated Ascertained Damages (‘LAD’) or challenging the amended clauses in the Sale and Purchase Agreements (‘SPAs’) which are alleged to have contradicted Schedule H of the Housing Development (Control and Licensing) Regulations 1989 (‘HDR’)?
4
Whether the Plaintiffs’ cause of action should begin from the date of the SPAs or payment of the booking fee?
5
Whether there is a sale of a Plaza Kelana Jaya unit on or before the issuance of the 29.06.2018 Letter?
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If the answer to Question 5 is affirmative, whether a sale of a Plaza Kelana Jaya unit can render the 29.06.2018 Letter null and void?
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If the answer to Question 6 is affirmative, whether the 29.06.2018 Letter is rendered null and void as a whole, or it is only rendered null and void concerning purchasers who signed their SPAs before the sale of the Plaza Kelana Jaya unit?
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Subject to the answer in Question 7, if the answer to Question 6 is affirmative, whether the Plaintiffs are bound by the period of delivery of vacant possession and completion of common facilities in clauses 25(1) and 29(1) of the Plaintiffs’ SPAs which stated 48 months?
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Subject to the answer in Question 7, if the answer to Question 6 is affirmative, whether the Plaintiffs can rely on the statutory period of 36 months as provided in Schedule H and Regulation 11(1) of the HDR?
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Subject to the answer in Question 7, if the answer to Question 8 is negative and the answer to Question 9 is affirmative, whether the Plaintiffs are entitled to the LAD as pleaded at paragraphs 65 of the Statement of Claim (‘SOC’) in suit WA- 22NCvC-438-08/2023 and at paragraph 28 of the SOC in suit WA-WA-A52NCvC-221- 03/2024 I 22NCvC-775-12/2024?
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Whether the Plaintiffs are seeking to unjustly enrich themselves by pursuing the LAD in this suit?”.
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After having considered the cause papers and submissions of the parties, I found that the matter can be disposed pursuant to O. 14A of the RC 2012 by answering Questions 1 to 3 only in encl. 50. Following the answers to these three questions as shall be elaborated below, it necessarily follows that the Plaintiffs’ claims in both suits must be dismissed.
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Five of the Plaintiffs, namely Ho Kak Fai (P1), Ooi Tian Guan (P7), Suresh A/L Gnasegarah (P11), Mohammad Firdaus Bin Pasro Radzi (P13) and Soo Wan Ru (P21) are aggrieved by the decision of this Court and have appealed against the same.
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These are my full grounds of judgment.
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To facilitate the hearing of the Questions of Law, the parties had filed a Statement of Agreed Facts in encl. 51, which is re-reproduced below: “1. The Defendant is a company incorporated in Malaysia on 26.09.1995, with its registered address and business address at Level 15, Menara Glomac, Glomac Damansara, Jalan Damansara 60000 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur.
2
The Plaintiffs have each entered into a Sale and Purchase Agreement (“SPA”) pursuant to the statutory sale contract under Schedule H of the Housing Developers (Control and Licensing) Regulations 1989 (“HDR”) (in their respective capacities as Buyers) with the Defendant (in its capacity as Developer, Seller and Landowner) in respect of their respective purchases of parcels in the housing development project known as “Plaza @ Kelana Jaya” (“Plaza Kelana Jaya”).
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Suit WA-22NCvC-438-08/2023 consists of 44 Plaintiffs, whereas Suit WA-A52NCVC-221- 03/2024I WA-22NCvC-775-12/2024 consists of 2 Plaintiffs. Both Suits concern the same Defendant dan housing development project.
Preamble
Pursuant to the Order of this Honourable Court dated 27.11.2024, both suits had been consolidated and ordered to be heard together.
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The details of the sale and purchases, such as the SPA dates, purchased parcel numbers, the dates of payment for booking fees / deposit (except for the 20th, 29th, 31st and 32nd Plaintiffs in Suit WA-22NCvC-438-08/2023, as these Plaintiffs were unable to locate their respective booking fee / deposit payment documents), and the purchase prices are as detailed below:- Plaintiff Date of SPA Parcel Date of Payment of booking fee/ deposit Purchase Price 1 30.07.2018 B-22-08 23.06.2018 RM683,300.00 2 10.01.2019 C-15-08 22.12.2018 RM652,940.00 3&4 12.11.2018 B-20-07 21.09.2018 RM679,300.00 5 30.07.2018 B-17-02 10.06.2018 RM628,300.00 6 30.07.2018
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14.06.2018 RM401,800.00 7 30.08.2018 C-07-06 05.08.2018 RM397,640.00 8 30.07.2018 B-09-11 08.06.2018 RM354,800.00 9 30.07.2018 B-23-A-
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10.06.2018 RM409,800.00 10 18.09.2018 B-10-
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10.08.2018 RM396,800.00 11 30.07.2018 B-21-13 10.06.2018 RM378,800.00 12 28.09.2018 C-20-06 05.09.2018 RM414,640.00 13 30.07.2018 B-16-02 23.06.2018 RM666,300.00 14 30.07.2018 B-20-09 Could not be located RM376,800.00 15 30.07.2018 B-23A- 11 14.06.2018 RM399,800.00 16 & 17 08.10.2018 C-22-05 09.09.2018 RM418,640.00 18 & 19 30.09.2018 C-22-06 09.09.2018 RM418,640.00 20 28.09.2018 C-18-11 Could not be located RM405,640.00 21 18.09.2018 C-18-10 05.08.2018 RM395,640.00 22 25.09.2018 C-17-05 26.08.2018 RM408,640.00 23 30.07.2018 B-19-11 10.06.2018 RM374,800.00 24 30.07.2018 B-27-09 10.06.2018 RM390,800.00 25 & 26 30.07.2018 B-16-08 09.06.2018 RM631,300.00 27 30.07.2018 B-18-13 09.06.2018 RM372,800.00 28 30.07.2018 B-16-11 09.06.2018 RM368,800.00 29 30.07.2018 B-13A- 07 Could not be located RM632,300.00 30 30.07.2018 B-10-07 10.06.2018 RM614,300.00 31 & 32 30.07.2018 B-17-07 Could not be located RM638,300.00 33 & 34 30.07.2018 B-15-01 23.06.2018 RM639,300.00 35 25.04.2019 C-08-07 29.03.2019 RM633,940.00 36 & 37 18.01.2019
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16.12.2018 RM427,640.00 38 30.07.2018
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09.06.2018 RM372,800.00 39 30.07.2018
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08.06.2018 RM352,800.00 40 30.07.2018 B-13-01 09.06.2018 RM625,300.00 41 18.09.2018 C-16-06 18.08.2018 RM406,640.00 42 30.07.2018 B-13-11 10.06.2018 RM362,800.00 43 30.07.2018
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For the purpose of the suits, among the salient terms of the SPAs are as follows (in original text): -
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5.1 Clause 8 “The Purchaser shall be entitled on his own volition in his own name to initiate, commence, institute and maintain in any court or tribunal any action, suit or proceedings against the Developer or any other persons in respect of any matter arising out of this Agreement provided the Purchaser’s Financier or the Government under a deed of absolute assignment is notified in writing either before or within thirty (30) days after the action, suit or proceedings against the Developer or any such other persons has been filed before any court or tribunal.”
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5.2 Clause 25(1) “Vacant possession of the said Parcel shall be delivered to the Purchaser in the manner stipulated in clause 27 within forty eight (48) months from the date of this
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5.3 Clause 25(2) “If the Developer fails to deliver vacant possession of the said Parcel in the manner stipulated in clause 27 within the period stipulated in subclause (1), the Developer shall be liable to pay to the Purchaser liquidated damages calculated from day to day at the rate of ten per centum (10%) per annum of the purchase price from the expiry of the period stipulated in subclause (1) until the date the Purchaser takes vacant possession of the said Parcel.”
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5.4. Clause 29(1) “The common facilities serving the said housing development, which shall form part of the common property, shall be completed by the Developer within forty eight (48) months from the date of this Agreement. The Developer's architect shall certify the date of completion of the common facilities and a copy of the certification shall be provided to the
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5.5. Clause 29(2) “If the Developer fails to complete the common facilities in time, the Developer shall pay immediately to the Purchaser liquidated damages to be calculated from day to day at the rate of ten per centum (10%) per annum of the last twenty per centum (20%) of the purchase price.”
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The Defendant obtained the Certificate of Completion and Compliance (Form F) issued by the Principal Submitting Person, Ar Rosli bin Ahmad (LAM Registration No: A/R 22) on 19.04.2023.
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Through the issuance of the Certificate of Completion and Compliance, the Plaintiffs state that the common facilities for Plaza Kelana Jaya have been completed by the Defendant.
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The Plaintiffs confirm the date of the Notice of Delivery of Vacant Possession.
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The Plaintiffs took vacant possession of their respective parcels on the following dates:- Plaintiff Date of the Notice of Delivery of Vacant Possession of the Parcel Date of the Plaintiffs took vacant possession 1 19.05.2023 18.06.2023 2 19.05.2023 15.06.2023 3&4 19.05.2023 18.06.2023 5 19.05.2023 16.06.2023 6 19.05.2023 18.06.2023 7 19.05.2023 18.06.2023 8 19.05.2023 18.06.2023 9 19.05.2023
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18.06.2023 10 19.05.2023
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18.06.2023 11 19.05.2023
18
06.2023
19
05.2023
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06.06.2023 13 19.05.2023
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18.06.2023 14 19.05.2023
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18.06.2023 15 19.05.2023 18.06.2023 16 & 17
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19.05.2023 18.06.2023 18 & 19
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19.05.2023 18.06.2023 20
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19.05.2023 18.06.2023 21
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19.05 .2023 18.06.2023 22
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19.05.2023 18.06.2023 23
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19.05.2023 09.06.2023 24
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19.05.2023
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18.06.2023 25 & 26 19.05.2023
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18.06.2023 27 19.05.2023
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18.06.2023 28 19.05.2023
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18.06.2023 29 19.05.2023
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18.06.2023 30 19.05 .2023
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18.06.2023 31 & 32
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19.05.2023 18.06.2023 33 & 34
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19.05.2023 18.06.2023 35
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19.05.2023 14.06.2023 36 & 37
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19.05.2023 18.06.2023 38
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19.05 .2023 18.06.2023 39
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19.05.2023 18.06.2023 40 19.05.2023 18.06.2023 41
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19.05.2023 18.06.2023 42
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19.05.2023 18.06.2023 43
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19.05 .2023 18.06.2023 44
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19.05.2023 18.06.2023 1
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19.05.2023 18.06.2023 2
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19.05.2023 18.06.2023
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The Plaintiffs are aware that the calculation for the claim of LAD for the delay in the delivery of vacant possession and delay in completing the common facilities within the statutory period from 18.03.2020 to 31.08.2020, must be excluded under Section 35(1) of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 (“COVID Act”).
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The exclusion period may be extended until 31.12.2020 if the Defendant has received written instructions from Minister of Housing and Local Government under Section 35(3) of the COVID Act. The Minister of Housing and Local Government may also exclude any period between 01.01.2021 until 31.12.2021 concerning the delay in vacant possession and the completion of common facilities under Section 38C(2) of the COVID Act.
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The Plaintiffs are aware of the following: -
a
Through a letter from Ketua Pengarah, Jabatan Perumahan Negara, Kementerian Perumahan Dan Kerajaan Tempatan dated 04.11.2020 with the reference number
102
(102)KPKT/07/PS/828/2(01), signed by Jayaselan A/L K. Navaratnam, the Minister of Housing and Local Government approved the exclusion period from 18.03.2020 to 31.08.2020 for the Defendant under Section 35(1) of the COVID Act, for a total of 167 days.
b
Through a letter from Ketua Pengarah, Jabatan Perumahan Negara, Kementerian Perumahan Dan Kerajaan Tempatan dated 11.03.2022 with reference number
61
(61)KPKT/07/PS/828/6, signed by Jayaselan A/L K. Navaratnam, the Minister of Housing and Local Government approved the exclusion period from
01
01.06.2021 to 31.10.2021 for the Defendant under Section 35(1) of the COVID Act, for a total of 153 days.
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Therefore, the Plaintiffs should exclude the time for the calculation for the delivery of vacant possession of the parcels and the completion of common facilities, as well as the calculation of LAD for the failure of the developer to deliver vacant possession and complete the common facilities for a period of 167 days and 153 days, which is a total of 320 days.”. Analysis & Decision of the Court 1st Question: Whether the Plaintiffs used the correct mode of proceedings to challenge the extension of time (‘EoT’) granted to the Defendant vide the 29.6.2018
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The Plaintiffs gave the following reasons in submitting that the necessity for them to challenge the EoT via judicial review does not arise:
a
the Plaintiffs’ claim is premised on the recovery of statutory LAD, which is a civil action;
b
the claim brought, and reliefs sought, by the Plaintiffs are within the jurisdiction and realm of a civil court;
c
all legal provisions under the existing laws, the HDR 1989 and the Housing Development (Control and Licensing) Act 1966 (‘HDA 1966’) to modify the Clauses in a
Schedule
Schedule H governed SPA have been declared ultra vires the HDA 1966 by virtue of the Federal Court decision of Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals [2020] 1 MLJ 281; (d) the Defendant had breached and circumvented the HDR 1989 and HDA 1966 by modifying Clauses 25(1) and 29(1) of the SPA for the delivery of vacant possession of the parcels and completion of the common facilities from 36 months which is mandated in a statutory SPA to 48 months which is contrary to regulation 11(1) of the HDR 1989; (e) the EoT was not signed by the Controller of Housing but rather by “Jayaselan a/l K. Navaratnam” who was the Deputy Controller of Housing; (f) there is no indication nor mention in the SPA as to the EoT or its supposed procurement to reflect the modifications which have been made to Clauses 25(1) and 29(1) of the SPA; and (g) there had been sale transactions of parcels in the housing project between the 1st, 5th, 6th, 8th, 9th, 11th, 13th, 15th, 23rd, 24th, 25th, 26th, 27th, 28th, 30th, 33rd, 34th, 38th, 39th, 40th, 42nd, 43rd and 44th Plaintiffs in Suit 438 as well as the 1st Plaintiff in Suit 775, and the Defendant, prior to the Defendant having obtained the EoT. Hence, the EoT is automatically null and void. 11. The Plaintiffs cited the case authorities of Chan Kwai Chun v. Lembaga Kelayakan [2002] 3 CLJ 231, Tenaga Nasional Berhad v. Bandar Nusajaya Development Sdn Bhd [2016] 8 CLJ 163 and Lam Su See v. Prema Bonanza Sdn Bhd [2021] MLJU 713 (subsequently affirmed by the Court of Appeal and Federal Court) to support the submission that there is no necessity for affected homebuyers to challenge the EoT via other modes i.e. judicial review, and that a writ action is the appropriate mode of proceeding in such circumstances. 12. For the above stated reasons, the Plaintiffs contended that the 29.06.2018 Letter is automatically an illegality. Therefore, there is no need for the Plaintiffs to mount a challenge against the 29.6.2018 Letter by way of judicial review proceedings and they have accordingly instituted the correct mode of proceedings herein. 13. After having considered the submissions of the parties, I was convinced by the Defendant’s argument that the Plaintiffs’ asserted right to the LAD is premised on the validity of the EoT and that the Plaintiffs have used the wrong mode of proceedings of writ of summons instead of judicial review to challenge the granting of the EoT vide the 29.6.2018 Letter. 14. Based on the SoC, the Plaintiffs are claiming LAD under the 36 months completion period. This means that the Plaintiffs are disputing the 48 months completion period approval, which is an administrative decision made by the Deputy Controller of the Ministry of Housing and Local Government (‘Ministry’). Challenging the validity of the EoT is a matter of public law. 15. It is a well-established legal principle that any action to challenge a decision made by a public body concerning an infringed right protected under public law shall be commenced by way of a judicial review and must be made in accordance with the procedural requirements as prescribed in O. 53, of the RC 2012 (see, among others, Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865 and Kenneth Kong Kok Leong & Ors v Mayfair Ventures Sdn Bdn [2025] CLJU 4 ). 16. In Ang Ming Lee (supra), the aggrieved purchasers commenced their action by filing an application for judicial review against the Minister, the Controller and the developer to challenge the validity of the letter granting the EoT to the developer. 17. Subsequently, the Federal Court in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd and other appeals [2024] 5 MLJ 897 has made it clear that despite the Housing Controller’s power to grant the EoT under regulation 11(3) of the HDR 1989 having been declared as ultra vires the HDA 1966 pursuant to the decision in Ang Ming Lee, any decision made pursuant to the said provision must be challenged by way of judicial review in order for it to be set aside. An administrative decision made without lawful authority is not automatically null and void unless quashed by a court of law. 18. Furthermore, judicial review should be the proper way to challenge the granting of the EoT since the Plaintiffs are challenging the validity of Clauses 25(1) and 29(1) of the SPA. In the absence of a declaration of invalidity of the EoT, these Clauses in the SPA remain valid and enforceable. 19. The Plaintiffs have also failed to add the Minister or the Housing Controller as a party in this suit even though they are the responsible authority for granting the EoT. Due to this omission, the Minister has been deprived of his right to be heard and to provide an explanation, in contravention of the principle of audi alteram partem. 20. In sum, the Plaintiffs have failed to initiate their claim by using the correct mode of proceedings and to include the relevant parties in the suit and to seek the correct reliefs. 21. The 1st Question was therefore answered in the negative. 2nd Question: If the answer to Question 1 is negative, whether the Plaintiffs’ claim ought to be dismissed 22. The Plaintiffs insisted that their claim, which is premised on the recovery of statutory LAD, survives as a civil action, and which claim and reliefs sought are entirely within the jurisdiction and realm of a civil court. 23. With respect, the Plaintiffs’ contention is flawed. The Plaintiffs are bound to file a judicial review application as the issue of validity of the EoT is in dispute and this matter falls within the sphere of public law. 24. The Plaintiffs’ failure to comply with O. 53 of the RC 2012 and by using the wrong mode of proceedings amount to an abuse of the court process. I was constrained to hold that the Plaintiffs’ claim must be dismissed on the ground of abuse of the court process (see Ahmad Jefri’s case and Nor Hazliza Ismail & Anor v. Mohamed Yusoff Shaik Madar [2024] 4 CLJ 353). 25. The 2nd Question was answered in the affirmative. 3rd Question: Whether the present claim is limited to LAD or challenging the amended Clauses in the SPA which are alleged to have contradicted Schedule H of the HDR 1989 26. The Plaintiffs repeated the submission that their claim is primarily premised on the recovery of statutory LAD due to the Defendant’s delay in delivering vacant possession of parcels and completing the common facilities, which should have been done within the statutorily mandated time period of 36 months pursuant to Schedule H of the HDR 1989. Due to the illegality of the 29.6.2018 Letter, there would be no requirement to challenge the amended Clauses in the SPA, and the Plaintiffs are entitled to claim statutory LAD vide the present suits. 27. In the course of considering the 1st Question, the 3rd Question was inevitably answered. 28. At the risk of repetition, the SPA entered between the Plaintiffs and the Defendant is a statutory sale contract under Schedule H of the HDA 1966. Schedule H provides that the delivery of vacant possession is 36 months. However, in this case, the Ministry had, vide the 29.6.2018 Letter, approved the Defendant's application to amend the content of Schedule H whereby the delivery of vacant possession to the Plaintiffs was extended from 36 months to 48 months. 29. Based on the SoC, the Plaintiffs have clearly pleaded that the 29.6.2018 Letter is null and void and that the amendment to Clauses 25(1) and 29(1) of the SPA is of no legal purport and is a nullity. 30. There is no doubt at all that the answer to the 3rd Question was that the claim involves a challenge to the legality of Clauses 25(1) and 29(1) of the SPA. Conclusion 31. Premised on the abovesaid considerations, and having answered the Questions of Law in the manner as outlined above, the Plaintiffs claims in both suits were dismissed. 32. On the issue of costs, Mr. Tunku Munawir prayed for RM20,000.00. The counsel for the Plaintiffs suggested that costs be ordered to be paid by each Plaintiff for easier collection with the quantum proposed at RM600.00 per Plaintiff. 33. I agreed with the Plaintiffs’ counsel and the order was made for the sum of RM600.00 to be paid by each Plaintiff to the Defendant, subject to allocatur. Dated: 22.9.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Solicitors for the Plaintiffs: Chandni Anantha Krishnan Messrs. Lui & Bhullar Solicitors for the Defendant in Suit No.: WA-22NCvC-438-08/2023: Tunku Ahmad Munawir Messrs. Hasnan Hamzah Solicitors for the Defendant in Suit No.: WA-22NCvC-775-12/2024: Airul Redzma Mahpor, Ooi Tuan Leng and Tang Hui Jun Messrs. Lavina, Dell Akhbar, Tee & Partners
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