Bandar Subang Sdn. Bhd. v LIM EU Ching (12ANCVC-94-11/2016)

This is an appeal by the Appellant who was the Defendant, on the decision of the Sessions Court in allowing for the summary judgment under Order 14 of the Rules of Court 2012 against the Appellant by the Respondent, who was the Plaintiff. The Sessions Court found for the Plaintiff, that there was no triable issue on the part of the Appellant’s Defence. 3

Both parties, in this judgment, will be known as they were in the Sessions Court.

The Plaintiff’s claim against the Defendant is for liquidated damages of the sum RM348,003.94 due to the Defendant’s delay of 3107 days in delivering vacant possession of a double storey semi-detached house held under the title H.S.(D) 177895, P.T. 4922 Mukim Bukit Raja, District of Petaling, State of Selangor Darul Ehsan with a postal address of No.3, Jalan Pulau Indanh U10/58, Seksyen U10, 40170 Shah Alam, Selangor Darul Ehsan (the said Property).

The Plaintiff is a Malaysian citizen of full age having his residential address at No.7, Jalan SL 7/5, Bandar Sungai Long, 43000 Kajang, Selangor Darul Ehsan whereas the Defendant is a private limited company duly incorporated in Malaysia with its registered address at No. 1, Lintang Angsana, Bandar Baru Ayer Itam, 11500 Pulau Pinang and its business address at No. 2-8, Bangunan Farlim, Jalan PJS 10/32, Bandar Sri Subang, 46000 Petaling Jaya, Selangor Darul Ehsan. 4

The Defendant is primarily involved in the business of property development wherein the Defendant’s projects include but not limited to a housing development known as the ‘Subang Impian, Shah Alam, Phase 2’ project (the said Development).

It was claimed that on or about 11.11.2005, the Plaintiff had entered into a Sale and Purchase Agreement dated 11.11.2005 with the Defendant (the SPA) (can be found at pages 99 – 124 of the Appeal Record) for the sale of the said Property within the said Development wherein the said Property was sold by the Defendant, being the Vendor, to the Plaintiff, being the Purchaser, for a total purchase price of RM409,135.00 (the Purchase Price).

The Plaintiff claimed that there are express terms and conditions of the said SPA on delivery of vacant possession which bind both the Plaintiff and Defendant, as follows: “Clause 23(1) Vacant possession of the said Building shall be delivered to the Purchaser in the manner stipulated 5 in Clause 24 herein within twenty-four (24) calendar months from the date of this Agreement;” “Clause 23(2) If the Vendor fails to deliver vacant possession of the said Building in manner stipulated in Clause 24 herein within the time stipulated in sub-clause (1), the Vendor shall be liable to pay 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 delivery of vacant possession in sub-clause (1) until the date the Purchaser takes vacant possession of the said Building. Such liquidated damages shall be paid by the Vendor to the Purchaser immediately upon the date of Purchaser takes vacant possession of the said Building.” “Clause 23(3) For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under 6 this clause shall accrue on the date the Purchaser takes vacant possession of the said Building.”

The Defendant alleged that there was no consideration given by the Plaintiff to the Defendant in relation to the purchase of the said Property as there was no payment made in accordance with clause 4.1 of the said SPA. The Plaintiff argued that Defendant’s allegation was wholly inaccurate as the said SPA and transfer of property had taken place due to reasons that the Defendant was indebted to Yap Grouting & Drilling Services Sdn. Bhd. (“Yap Grouting”) who was at that material time the main contractor for the said Development.

The Plaintiff claimed that the Defendant had offered the said Property to Yap Grouting to set-off the debts due and owing by Defendant to Yap Grouting and Yap Grouting who was also indebted to the Plaintiff, had in turn offered the said Property to the Plaintiff as a set-off against the debts due and owing by Yap Grouting to the Plaintiff.

The Plaintiff filed a Writ in the Shah Alam Sessions Court claiming against the Defendant for liquidated damages in the sum of RM348,003.94 7 for the delay in delivery of vacant possession of the said Property. On 25.10.2016, the Sessions Court allowed the Plaintiff’s application for summary judgment against the Defendant through the Notice of Application dated 23.8.2016, with the following orders granted:

the Defendant to pay the Plaintiff the total sum of RM348,003.94 being the Outstanding Sum;

the Defendant to pay to the Plaintiff interest on the total Outstanding Sum at the rate of 5% per annum from the date of the action until the date of judgment; and

the costs of the Plaintiff’s Application to be forthwith paid by the Defendant to the Plaintiff. The Cause Papers [11] The cause papers which are all filed in the Defendant’s Record of Appeal: 8 “(a) Respondent’s Writ dated 10.08.2016 (“Writ”) [see: pages 10 to 20 ROA];

Respondent’s Statement of Claim dated 10.08.2016 (“Statement of Claim”) [see: pages 21 to 36 ROA];

Appellant’s Defence dated 07.09.2016 (“Defence”) [see: pages 37 to 45 ROA];

Respondent’s Reply to Defence dated 22.09.2016 (“Reply to Defence”) [see: pages 46 to 73 ROA];

Respondent’s Notice of Application for Summary Judgment dated 23.08.2016 (“Application”) [see: pages 1 to 9 ROA];

Respondent’s Affidavit in Support affirmed on 25.08.2016 (“Respondent’s Affidavit in Support”) [see: pages 74 to 129 9

Appellant’s Affidavit in Reply affirmed on 23.09.2016 (“Appellant’s Affidavit in Reply”) [see: pages 130 to 145

Respondent’s Affidavit in Reply affirmed on 06.10.2016 (“Respondent’s Affidavit in Reply”) [see: page 146 to 218

Respondent’s Affidavit in Reply (II) affirmed on 10.10.2016 (“Respondent’s Second Affidavit in Reply”) [see: pages 219 to 238 ROA];

Respondent’s Written Submissions dated 18.10.2016 [see: pages 1 to 33 of the Additional Record of Appeal (“AROA”);

Appellant’s Written Submissions dated 21.10.2016 [see: pages 34 to 45 AROA];

Respondent’s Written Submissions in Reply dated 22.10.2016 [see: pages 46 to 53 AROA]; and 10

Grounds of Judgment dated 07.12.2016 [see: pages 54 to 68 AROA].” Defendant’s Submission [12] The learned counsel for the Defendant advanced several grounds in arguing that there are triable issues on this matter. This Court will zoom into the main grounds based on the Defendant’s counsel’s written submission and partly from oral submission. The written submission which are reproduced in parts are as follows: “6.1 The Respondent/Plaintiff had failed to disclose truthfully and fully in the Statement of Claim the circumstances under which the Sale and Purchase Agreement was signed. It is submitted that the Sale and Purchase Agreement was not a simple case of the Respondent as an ordinary purchaser was enticed to purchase the said property from the Appellant as developer and hence requires the court’s protection. 11

6.2 The Appellant did not offer or advertised to offer to sell the said property to the Respondent. The Respondent was aware that the Appellant signed the Sale and Purchase Agreement with the Respondent in respect of the said property and the transfer of the said property to the Respondent as the result of a commercial debt settlement by the Appellant with Yap Grouting. At all material time, the Respondent entered into the Sale and Purchase Agreement with the Appellant at the direction or instruction of Yap Grouting as a result of a commercial transaction of settlement of debt between the Respondent and

6.3 It is submitted that the Sale and Purchase Agreement is a business arrangement in the guise of a statutory Sale and Purchase Agreement for the purchase of the said property by a normal purchaser. As the Respondent claimed that Yap Grouting was indebted to him, the Respondent had signed the Sale and Purchase as part of a commercial debt settlement with Yap Grouting. As such the Respondent is not an ordinary purchaser. 12

6.4 There was no consideration for the Sale and Purchase Agreement. No monies were paid for the purchase price by the Respondent to the Appellant. Yap Grouting only “authorised” Respondent to be the “purchaser” which are the words used in Yap Grouting’s letter dated 14.10.2005 as exhibited in the Respondent’s Affidavit in Reply (II) as “YYL-1” (“Yap Grouting Letter”) (pages 237 – 238 Appeal Record). There was no reason given for authorization by Yap Grouting to “authorize” the Respondent to sign the Sale and Purchase Agreement. In the ordinary meaning of the word “authorised” as found in the English Oxford Dictionary, it means to give permission. As such there was no consideration for the purchase of the said property from the Respondent.

6.5 The Respondent is not entitled to the benefit of clause 23 of the Sale and Purchase Agreement without satisfaction of the proof of the Respondent’s burden of paying the purchase price to the Appellant under clauses 3 and 4 of the Sale and Purchase Agreement. The Respondent cannot be entitled to take advantage of the Sale and Purchase Agreement by insisting on 13 his rights under clause 23 while ignoring the provisions of clauses 3 and 4 which expressly states that the purchase price shall be paid to the Appellant as vendor. Clause 3 provides that the purchase price “shall be payable in the manner hereinafter provided”. Clause 4 provides that the purchase price “shall be paid by the Purchaser to the Vendor”.

6.6 ………

6.7 ……….

6.8 ………

6.9 The Respondent’s allegation that Yap Grouting offered the said property to the Respondent as debt settlement is adding facts which are not supported by the documents. The Yap Grouting letter did not state that there was a debt contra arrangement between Yap Grouting and the Respondent. The only thing that the Appellant agreed was the commercial debt contra arrangement between the Appellant and Yap Grouting as stated in the Appellant’s letter dated 29.10.2005 (“appellant’s 14 Letter’) that had been exhibited as “IAW-1” in the Appellant’s Affidavit in Reply (pages 136-137 Appeal Record). The Appellant submits that the Respondent or Yap Grouting cannot add words orally or by way of affidavits to amend, vary, contradict or insert terms that were never in the Yap Grouting Letter or the Sale and Purchase Agreement. There is nothing in the Appellant’s letter or Yap Grouting’s Letter to support the Respondent’s allegations. Yap Grouting cannot add additional evidence by Affidavit to expand or to explain the contents of its letter to the Appellant. In the circumstances, Section 91 to 94 of the Evidence Act 1950 are applicable which disallows the Respondent to give parol or affidavit evidence to add, subtract, vary or contradict the Yap Grouting Letter or to remedy the defects in the Yap Grouting Letter or to use it in respect of the Sale and Purchase Agreement. As for the Appellant’s Letter, the Respondent is not a party to the said Letter. The following are the authorities referred:- 15

Citibank Bhd v Pembangunan Cahaya Tulis Sdn Bhd (receivers and managers appointed) & Ors and other suits [2012] 9 MLJ 181;

Datuk Tan Leng Teck v Sarjana Sdn Bhd & Ors [1997] 4 MLJ 329;

Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229;

Encony Development Sdn Bhd v Robert Geoffrey Gooch & Anor [2016] 3 MLJ 400. [13] The Defendant’s counsel submits that the Sessions Court had erred in deciding that the purchase price can be settled by a set-off agreement between a third party and the Plaintiff. The Defendant submits that the set-off and facts on consideration were never pleaded in the Statement of Claim. As such the facts pertaining to a set-off agreement cannot be considered by the Court. [14] In addition, counsel for the Defendant submits that the Plaintiff should have amended the Statement of Claim and cannot simply add facts by incorporating it in the Affidavit In Reply. Counsel also added that the 16 Affidavit of Yap Grouting was not the one whom instructed for the contra debt arrangement and the said Affidavit was 14 days late. [15] The counsel for the Defendant also submitted that although the SPA is a statutory agreement, the terms must be enforced fairly without undue preference to one party. The Defendant’s counsel submitted that it would not be fair to the Defendant where the court construed the LAD terms in the SPA in favour of the Plaintiff while ignoring the pre-conditions and the Plaintiff’s obligations for claiming LAD. It is also not fair to the Defendant to ignore or overlook the terms of SPA in favour of the Plaintiff or not to enforce the terms of SPA in favour of the Defendant. [16] It is submitted that the Court must give effect to the intention of the parties notwithstanding it is an agreement made pursuant to the Housing Development (Control and Licensing) Act 1966. The Defendant’s counsel referred to the authority in the case of Foong Seong Equipment Sdn Bhd (Receivers and Mangers appointed) v Keris Properties (PK) Sdn Bhd and another appeal [2013] 2 MLJ 361 as a general principle of the interpretation of contracts. 17 [17] In relation to the loan, the Defendant submitted that the Court should not condone the Plaintiff in misleading the Bank when the Plaintiff took the monies for purchase financing for his own use when the loan monies should have been paid to the Defendant to pay the purchase price. This is because the purpose of the loan was for purchase financing as stated in the Facility Agreement and also the Letter of Offer. Thus, it is submitted that Plaintiff failed to use the loan as to the purpose of the loan itself (which was for the said Property purchase financing) since he had used the loan for his own purposes and enjoyed the benefit of the loan. As such it is not right for the Defendant to pay LAD to the Plaintiff when he has obtained benefits under the SPA without having to fulfill his obligations to pay the purchase price from the loan under clause 5(2) of the SPA. [18] In addition, the Defendant submits that the Plaintiff committed a fundamental breach of the SPA by using the said Property to obtain loan financing and without utilizing the loan to pay the Defendant, the Plaintiff is estopped from claiming for LAD and relied on the authority Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1996] 3 MLJ 675. 18 [19] The Defendant’s counsel submitted that Plaintiff is not allowed to raise an allegation of fact in his affidavits which is not pleaded and which is inconsistent with the Statement of Claim in order to improve his claim. In addition, he argued that the Defendant’s Defence need only show a triable issue for a full trial under Order 14 Application for a Summary Judgment and that the Defendant need not show a complete defence. [20] On that point, the counsel for the Defendant referred to the following authorities, the case of BANK NEGARA MALAYSIA V MOHD ISMAIL & ORS [1992] 1 MLJ 400 (Pages 255 to 270 Appellant Bundle of Authorities) and the case of Eng Say Kuang v Hong Leong Bank Bhd [2008] MLJU 38 (pages 271 to 276 Appellant Bundle of Authorities). [21] The Court heard the submission by the Defendant’s counsel that the late delivery of physical possession was about after 10 years, due to beyond circumstances of control as there was a stop work order issued by the local authorities where additional conditions were imposed after the completion and the Certificate of Fitness was issued later. The Defendant claimed that frustration of contract occurred. 19 [22] On the issue of limitation, the counsel submitted that the SPA was signed on 11.11.2005 and the 6 years limitation started on 1.1.2007 until year 2013 which would mean the claim by the Plaintiff filed in 2016 would be time barred and added that this was not pleaded by the Plaintiff. Plaintiff’s Submission [23] The Plaintiff’s counsel assertion is that there was a SPA signed and the Plaintiff is entitled to invoke LAD when there is a delay in the delivery of vacant possession of the said Property. [24] The Plaintiff’s counsel argued that there was an arrangement where the Defendant will transfer the said Property to Plaintiff instead as the 3rd party whom owed to Plaintiff and the Defendant’s allegation is wholly inaccurate, misconceived and baseless. The counsel submitted as in its written submission: “17.1 prior to executing the said SPA, the Appellant was indebted to Yap Grouting & Drilling Services Sdn. Bhd. (hereinafter referred to as “Yap Grouting”), who was at 20 the material time the main contractor for the said

17.2 this circumstances had then caused the Appellant to offer the said Property to Yap Grouting in order to set-off the debts due and owing by the Appellant to Yap Grouting. This fact had been duly admitted by the Appellant in its pleadings [see: paragraph 4.3 Appellant’s Defence at page 38 ROA and paragraph 6.2 Appellant’s Affidavit in Reply at page 132 ROA];

17.3 however, at the same time, Yap Grouting was also indebted to the Respondent and therefore Yap Grouting had in turn, offered the said Property to the Respondent as a set-off against the debts due and owing by Yap Grouting to the Respondent. This fact had been duly confirmed by Yap Yoon Loong, the director of yap Grouting in the Respondent’s Second Affidavit in Reply affirmed by yap Yoon Loong himself [see: paragraph 6.3 21 Respondent’s Second Affidavit in Reply at page 222

17.4 subsequent to the Respondent’s acceptance of the offer by Yap Grouting, all parties, including the appellant, had agreed and/or consented for the said Property to be transferred directly to the Respondent (hereinafter referred to as the “Contra Agreement’).

The existence of the Contra Arrangement was at all material times never disputed by the Defendant and is clearly shown in a letter of settlement dated 29.10.2005 between Yap Grouting and the Appellant [see: Exhibit IAW-1 Appellant’s Affidavit in Reply at page 137 ROA] as well as the letter dated 14.10.2005 from Yap Grouting to the Appellant [see: Exhibit YYL-1 Respondent’s Second Affidavit in Reply at page 238] of which the consideration value of the Contra Arrangement was notably the Purchase Price as stipulated under Clause 3 the said SPA. 22

Following the above, it is pertinent to note that a valuable consideration for a promise may consist in some benefit conferred on the promisor, or detriment suffered by the promise, or both as defined under Section 2(d) Contracts Act 1950 [SEE: Tab 1 Respondent’s Bundle of Authorities (“RBOA”)], which states that:- “When, at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.” [25] The counsel for the Plaintiff relied on the case of Korakyat Plantations Sdn Bhd (in liquidation) v Tan Siew Ee & Ors [2006] 1 MLJ 274 where 10% of the purchase price for each property were made and that the letter of undertaking unconditionally agreed to transfer the said property unit to the respondent free from encumbrances as a total set-off against loans taken by the appellant from the respondents and this was considered to be a valuable consideration. 23 [26] The Plaintiff’s counsel conceded that there was a valuable consideration based on the alternative mode of payment by setting-off via the contra arrangement which consist the said Property to be transferred by the Defendant to the Plaintiff, coupled with the act of executing the memorandum of transfer by the Defendant of the said Property to the Plaintiff is an admission of receiving a valuable consideration from the Plaintiff. In view of receiving the valuable consideration from the Plaintiff, Plaintiff’s counsel submits that it is for the Plaintiff to invoke clause 11(2) of the SPA. [27] About the loan facility, counsel also submitted that this is irrelevant and Plaintiff had suffered loss and could not utilize the said Property for the last 10 years as could not take loan and suffered cash flow which resulted the said Property to be mortgaged with RHB Bank. [28] In terms of the delay in delivering vacant possession due to the stop work order argument, counsel for the Plaintiff asserted that based on Regulation 11 of the Contract of Sale of Housing Development (Control & Licensing) Act, there is a provision on special circumstance where the clause on vacant possession may be waived or modify the due 24 date of delivery of vacant possession. The Plaintiff’s counsel argued that the Defendant should have applied for waiver or modification under the said regulation 11 and relied on the authorities of Tan Sri G. Darshan Singh v. Loke Kee Deve. [2010] 7 MLJ and Ng Hean Ying & Ors v. Ken Property Sdn Bhd [2013] MLRH and therefore the Defendant is estopped to raise the stop work order defence. [29] On the issue of limitation, Plaintiff’s counsel argued that the cause of action was done within time based on Clause 23(3) of SPA where Plaintiff is entitled to claim for LAD. In reply to the contra debt arrangement alleged by Defendant that it was not pleaded, the counsel for the Plaintiff submits that that statement is not true as additional facts had been given in response to Defendant’s defence under the issue of consideration. Sessions Court’s Decision [30] The Sessions Court had considered all the issues submitted and had decided as follows, which parts of the judgement is reproduced here: 25 “Dakwaan tiada balasan dan perjanjian jualbeli tidak menunjukkan niat sebenar pihak-pihak kerana harga belian tidak dibayar

Defendan menimbulkan isu bahawa tiada balasan atas pembelian ini kerana plaintif tidak membayar jumlah RM409,135.00 seperti yang dinyatakan dalam klausa 4.1 perjanjian. Bagaimanapun Mahkamah berpendapat fakta berkenaan set-off tidak boleh diabaikan kerana ia menjadi asas kepada persetujuan pihak-pihak untuk memasuki perjanjian jualbeli. Untuk isu ini, Mahkamah merujuk keputusan Mahkamah Rayuan kes Korakyat Plantiations Sdn Bhd v. Tan Siew Ee & Ors [2005] 2 CLJ 578 dimana Mohd Ghazli Yusoff JCA memutuskan seperti berikut: “…….. The said ‘letters of undertaking’ issued by the appellant in respect of the lots identified therein clearly spelt out that the appellant unconditionally gre that it “will transfer/assign the above units of property free of any and whatsoever encumbrances/ or claim by us as a total set off against the loan take from you”. We would agree with the contention of counsel 26 that this is tantamount to an admission by the appellant that they had received valuable consideration from the respondents concerned.”

Walaupun fakta kes adalah berlainan namun prinsipnya adalah sama dimana sebarang hutang boleh di set-off atau ditolak dengan persetujuan pihak-pihak selepas valuable consideration diterima. Dalam kes ini, defendan berstuju nilai keberhutangan defendan sebanyak RM409,135.00 yang dibuat secara set-off adalah nilai harga belian.

Klausa 11(2) memperuntukkan berikut: “……..subject to the payment of the purchase price by the Purchaser to the Vendor ……the Vendor shall, within twenty one

days, execute a valid and registrable memorandum of transfer of the said property to the Purchaser.” Walaupun tiada bayaran dibuat, defendan masih melaksanakan borang pindahmilik sehingga geran hakmilik di atas nama plaintif dikeluarkan seperti yang ditunjukkan di exh. “LEC-1” 27 (L.5). Ini disebabkan oleh persetujuan defendan untuk menolak hutangnya secara set-off dengan hartanah berkenaan. Defendan adalah terikat dengan surat persetujuan yang dicapai dengan Yap Grouting.

Mahkamah berpendapat siapa yang hendak dinamakan oleh Yap Grouting sebagai pembeli/pemilik hartanah dalam perjanjian jualbeli adalah hak Yap Grouting. Oleh itu plaitif yang dinamakan dalam perjanjian tidak sepatunya dijadikan isu kerana defendan telah memberikan persetujuan mereka untuk menamakan plaintif sebagai pembeli. Mahkamah berpendapat jika defendan mendakwa bayaran tidak dibuat dan tiada persetujuan berkenaan set-off serta nama plaintif sebagai pembeli dipertikaikan maka tidak mungkin defendan menandatangani perjanjian jualbeli dengan plaintif. Jika defendan masih mendakwa harga belian mesti dibayar dan set-off dipertikaikan maka defendan secara jelas telah melanggar surat persetujuan yang dicapai di atas 28

Berdasarkan alasan-alasan yagn dinyatakan, Mahkamah berpendapat perkara ini tidak lagi menjadi isu apabila defendan sendiri telah bertindak melaksanakan dokumen pindahmilik sehingga hartanah berjaya didaftarkan atas nama plaintif seperti yang ditunjukkan di exh. “LEC-1”.

Mahkamah berpendapat melalui perbuatan dan tindakan defendan, defendan telah diestop daripada menimbulkan isu-isu ini terutama apabila defendan tidak pernah pada bila-bila masa membangkitkan bahawa tiada bayaran dibuat oleh plaintif. Exh. “LEC-1” jelas menunjukkan bahawa plaintif adalah pemilik rumah tersebut. Oleh itu juga, plaintif sebagai pemilik berdaftar adalah bebas untuk berurusan dengan hartanah tersebut seperti menggadaikannya kepada RHB Bank untuk pinjaman yang diambil. Priviti kontrak dan isu Iocus standi 11. Defendan membangkitkan isu bahwa tiada privit kontrak diantara plaintif dengan defendan kerana surat persetujuan adalah diantara defendan dengan Yap Grouting. Atas sebab ini 29 maka defendan mendakwa plaintif hanya bertindak sebagai ejen kepada Yap Grouting dan dengan itu plaintif tiada locus standi untuk memulakan tindakan bagi menuntut gantirugi LAD terhadap defendan.

Untuk isu ini, Yap Grouting telah mengesahkan bahawa hartanah telah diberikan kepada plaintif. Defendan telah menandatangani perjanjian jualbeli dengan plaintif dan bukan dengan Yap Grouting. Tiada dimana-mana dalam perjanjian jualbeli yang menyatakan bahawa plaintif bertindak sebagai ejen kepada Yap Grouting. Mukasurat hadapan perjanjian jualbeli di exh. “LES-2” (L.5) jelas menunjukkan bahawa plaintif adalah pembeli tanpa sebarang syarat. Oleh kerana plaintif adalah pembeli yagn dinamakan dan plaintif telah diisukan dengan geran hakmilik sebagai pemilik berdaftar maka Mahkamah berpendapat plaintif mempunyai locus standi untuk membawa tindakan ini terhadap defendan. Berdasarkan alasan ini maka Mahkamah berpendapat isu ini juga bukan isu untuk dibicarakan. 30 Kelewatan menyerahkan milikan kosong hartanah 13. Berdasarkan perjanjian jualbeli, defendan dikehendaki menyerahkan milikan kosong dalam masa 24 bulan dari tarikh perjanjian (11.11.2005) dimana milikan kosong patut diberikan pada 11.11.2007. Namun tarikh penyerahan sebenar dibuat pada 13.5.2016 – exh. “LEC-3” (L.5). Fakta jelas menunjukkan berlaku kelewatan selama 9 tahun 6 bulan.

Defendan mendakwa kelewatan adalah disebabkan oleh Perintah Berhenti Kerja (stop work order) dan Yap Grouting mempunyak pengetahuan mengenainya. Defendan juga mendakwa disebabkan Yap Grouting mempunyai pengetahuan maka plaintif diestop daripada menuntut gantirugi LAD. Mahkamah berpendapat samada Yap Grouting atau plaintif mempunyai pengetahuan, pengetahuan tersebut tidak boleh di infer terhadap plaintif. Plaintif tidak diestop daripada menuntut gantirugi LAD kerana pihak-pihak adalah terikat dengan terma-terma di dalam perjanjian. 31

Perintah Berhenti Kerja bukan suatu halangan kepada plaintif untuk melaksanakan haknya dalam menuntut LAD. Perjanjian jualbeli adalah tertakluk kepada peruntukan statutory yang mengawal aktiviti defendan sebagai pemaju. Peraturan 11(1) Housing Development (Control & Licensing) Regulations 1989 telah memperuntukkan berikut: “11. Contract of sale

Every contract of sale for the sale and purchase of a housing accommodation together with the subdivisional portion of land appurtenant thereto shall be in the form prescribed in Schedule G and where the contract of sale is for the sale and purchase of a housing accommodation in a subdivided building in the form of a parcel of a building or land intended for subdivision into parcels, as the case may be, it shall be in the form prescribed in