Abi Construction Sdn Bhd v Janny Puah & 13 Lagi (C-02(NCVC)(W)-1940-11/2015)

JANNY PUAH

2.

3.

JIMMY PUAH

CHAN FOO HWA

6.

WONG JEE HWA

8.

9.

OK OPTIKAL GROUP (NO. SYARIKAT: 602625-H) LIM LIAN KUAN

WONG JEE HWA

ALAM TENGGARA SDN BHD (NO. SYARIKAT: 288855-V) ...RESPONDEN-RESPONDEN DALAM MAHKAMAH TINGGI MALAYA DI KUANTAN DALAM NEGERI PAHANG DARUL MAKMUR, MALAYSIA GUAMAN NO. 22NCVC-2-1/2013 2 JANNY PUAH (NO. K/P: 800913-11-5140)

1.

CIMB BANK BERHAD (NO. SYARIKAT: 13491-P) ... DEFENDAN-DEFENDAN (NO SYARIKAT: 288855-V) ...PIHAK KETIGA GUAMAN NO: 22NCVC-03-01/2013 ANTARA 1. WONG THIAM FOOK

CHUA CHOR ING (NO. K/P: 711107-01-5116)

1.

3

1.

2.

CHAN FOO HWA (NO. K/P: 650212-11-5147) ...PLAINTIF 4

1.

GUAMAN NO: 22NCVC-06-01/2013 ANTARA 1. CHAN TECK FOOK (NO. K/P: 621118-11-5009) … PLAINTIF

5

WONG JEE HWA (NO. K/P: 550712-11-5096)

1.

2.

WONG SEW CHEONG (NO. K/P: 610506-05-5403)

1.

6 ALAM TENGGARA SDN … PIHAK KETIGA)

OK OPTIKAL … PLAINTIF

1.

... DEFENDAN-DEFENDAN GUAMAN NO: 22NCVC-10-01/2013 7

LIM LIAN KUAN (NO. K/P: 690905-11-5090) … PLAINTIF

1.

... DEFENDAN-DEFENDAN … PIHAK KETIGA)

1.

PUAH CHONG TEE (NO. K/P: 491017-11-5015

1.

(NO. SYARIKAT. 6463-H) 8 ...PIHAK KETIGA

1.

Coram: David Wong Dak Wah, JCA Hamid Sultan bin Abu Backer, JCA Mary Lim Thiam Suan, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of the Court) 9 BROAD GROUNDS OF JUDGMENT [Not for Publication] [1] In respect of the 14th respondent, we were mindful that there was no assignment of the SPA by the appellant to the 14th respondent. In consequence, it was dismissed on 4-07-2017 with costs of RM10,000.oo subject to allocator fees and deposit to be refunded. There was also no leave to appeal filed by the 14th respondent even though the parties continued with the hearing against the 1st to 13th respondents. [2] The brief facts related to the 1st to 13 respondents are set out in the submission of the respondents and it reads as follows: “1. The Appellant is at all material time the developer of a commercial project in Dungun, Terengganu known as Sura Gate Business Centre ("the said Project"), pursuant to a joint venture agreement ("JVA") dated 18/4/1999 between the Appellant and the Majlis Daerah Dungun ('MDD'), the owner of the land for the said Project. (JVA agreement at Page 562-587 Appeal Record Jilid 4).

2.

The Appellant develop the said MDD's land in 2 phases with the 1st phase comprising of 71 units of shop/office and the 2nd phase comprising of 16 units shops/office.

The 71 units of shop/office was completed in 2004/2005. 10

The 16 units of shop/office in Phase 2 was offered for sale by the Appellant in 2005, 11 units of which were purchased by the 1st to 13th Respondents.

The 1st to 13th Respondents were purchasers of 11 units of the shops/offices on the following Sales and Purchase Agreement ('SPA').

Save for the date and purchase price the terms and conditions are the same in all the SPA. (Exhibit P2 Page 108-530 Rekod Rayuan Jilid 2).

By section 10.01 of the SPA, the Appellant shall complete the shop/offices and vacant possession whereof to which water and electricity supply are ready for connection be delivered to the 1st to 13th Respondents within 36 calendar months from the date of the SPA.

By section 10.04 the manner of delivery of vacant possession shall be upon the issuance of the Architect certificate certifying that.- a) the construction of the shop/office has been practically completed and Respondent SPA Date Amount (RM) 1st 23/12/2005 450,000.00 2nd & 3rd 13/12/2005 450,000.00 4th 23/12/2005 450,000.00 5th 13/12/2005 490,000.00 6th 13/12/2005 450,000.00 7th 23/12/2005 450,000.00 8th 13/12/2005 450,000.00 9th 13/12/2005 450,000.00 10th 30/6/2006 450,000.00 11th & 12th 23/12/2005 878,998.00 13th 23/12/2005 490,000.00 11 b) Water and electricity supply are ready for connection.

By section 10.05 the Appellant shall pay liquidated damages for late delivery of vacant possession to the 1st to 13th Respondents at the interest of 10% p.a. of the purchase price calculated on a daily basis from the due date of delivery of vacant possession to the actual/deemed date of delivery of vacant possession.

For the test case, the date for delivery of vacant possession pursuant to the agreement shall be 12-12-2008.

The Appellant by their defence avers:- a) that the delay were not caused by them but were caused by the MDD and Tenaga Nasional Bhd (‘TNB') b) that they have assigned all the shop/office in the 2nd phase to the 3rd party who should be liable to the 1st to 13th Respondents.

The Appellant at the hearing aver that their Architect A. Bakhtiar had by his letter of 22.11.2002 (Exhibit D35 at Page 645 of Record of Appeal Jilid 4) to the Appellant has extended the time for the completion of the project by another 412 days.

The Appellant also claim against the 1st to 13th Respondents for interest for late payment of progress payment pursuant to section 5.04 of the SPA.

The Appellant while having completed the shop/office under Phase 1 of the said Project had failed to build the Sewerage Treatment Plant (STP) according to Indah Water Konsortium's ("IWK") specification.

To date the Appellant had failed to rectify the defect to the STP which also serves the shop/office in Phase 2 of the said Project. 12

Although MDD allowed the 1st to 13th Respondents to occupy the shop/office, MDD will not issue the CFO for the shop/office in Phase 2 of the said Project until the Appellant rectifies the STP as required by IWK.” [3] During the course of hearing, there were concessions made by all parties. Consequently, the appeal was allowed in part with the order of the High Court varied to the above effect. On the matter of quantum, given numerous parties with its attendant differing logistical details, the parties agreed to tabulate the quantum of damages for our consideration. The tabulation was marked as Exhibit A and the parties agreed to leave it to the court. In consequence we made our order as per Exhibit A. That part of the minutes reads as follows: “9.25am-9.30am: Mr. Wong Fook Yong for R1,2,3,4,7,11,12,13 and mentioning on behalf for the solicitors of R5,6,8,9,10. Mr G. Balan : I have prepared the list of general damages. Mr. Wong : I agreed. Court : We marked as "A" for each individual appeals. Kaedah Pelupusan: Rayuan Dibenarkan. KEPUTUSAN: Court with unanimous decision: - The appeal is allowed in part and to the extent as exhibited in "A" as confirmed for each appeal.” [4] We also made no order as to costs and deposit to be refunded. 13 [5] We are very surprised to note that there is a leave application. Date: 24 December 2018 sgd (DATUK DR. HAJI HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia Counsel for Appellant: Mr. G. Balan Messrs. Haniff Khatri No. 26, Tingkat Atas Jalan Camar 4/3, Seksyen 4 Kota Damansara 47800 Petaling Jaya Selangor. [Ref: HK/L 688/ABI-80/15] Counsel for Respondents: Mr. Wong Fook Yong Messrs. Wong, Law & Ti A-21, 1st, 2nd & 3rd Floors Lorong Seri Kuantan 2 Sri Kuantan Square Jalan Teluk Sisek 25000 Kuantan Pahang.