Chuah Say Chin v Midas De Sdn Bhd (BB-A72NCvC-1227-12/2025)

1 DALAM MAHKAMAH MAJISTRET DI PETALING JAYA DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN SIVIL NO.: BB-A72NCvC-1227-12/2025 ANTARA CHUAH SAY CHIN (No. K/P: 561014-08-6459) … PLAINTIF DAN MIDAS DE SDN BHD (No. Syarikat: 731917-H / 200601012167) … DEFENDAN GROUNDS OF JUDGMENT A. INTRODUCTION

1. This application (Encl. 8) was filed by the Defendant to set aside the judgment in default of appearance (JID) entered against the Defendant on 20-01-2026.

2. By Encl. 8, the Defendant prayed for the following orders:- i) leave pursuant to Order 12 Rule 5 of the ROC 2012 for the Defendant to enter appearance; ii) that the JID entered against the Defendant on 20-01-2026 be set aside; iii) leave for the Defendant to file its Defence within 14 days from the date of the Order herein or within such further time as this Court deems fit; and iv) Cost of this application be borne by the Plaintiff.

3. After perusing all the cause papers, affidavits and written submissions filed by both parties, I dismissed this application with costs of RM2,000.00 to the Plaintiff.

4. I now set out the grounds for my decision. 06/07/2026 22:19:59 BB-A72NCvC-1227-12/2025 Kand. 23 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 B. THE BACKGROUND FACTS

5. Both the Plaintiff and the Defendant entered into a Sale and Purchase Agreement dated 25-12-2021 (SPA) for the purchase of a service apartment unit known as unit B-13A-02 (hereinafter referred to as “the said Unit”) in a development project known as Ruby Seapark (hereinafter referred to as “the said Project”). The Defendant is the developer of the said Project.

6.

Pursuant to Clauses 25(1) & (2) of the SPA, the vacant possession of the said Unit shall be delivered to the Plaintiff within 36 months from the date of the SPA, failing that, the Plaintiff is entitled to LAD at the rate of 10% per annum calculated based on the purchase price, from the expiry of the period of 36 months until the actual date of vacant possession delivered.

7. In addition, Clauses 29(1) & (2) of the SPA require the Defendant to complete the common facilities of the said Project within 36 months from the date of the SPA. In default thereof, the Plaintiff is entitled to LAD at the rate of 10% per annum calculated on 20% of the purchase price from the expiry of the period of 36 months until the actual date of completion of the common facilities.

8. On 19-12-2025, the Plaintiff filed a civil claim against the Defendant for a sum of RM98,307.61, being liquidated ascertained damages (LAD) for late delivery of the said Unit and delay in completing the common facilities, together with interest at the rate of 5% per annum from the date of filing of the civil claim until full settlement.

9. The Writ of Summons and Statement of Claim (respectively Encls. 1 and 2) were served on the Defendant at both its registered address and business address namely at C-2-5, Medan Connaught, No. 1, Jalan 3/144A, 56000 Kuala Lumpur and Unit G105 & G106, Block G, Pusat Dagangan Phileo Damansara 1, No. 9, Jalan 16/11, 46300 Petaling Jaya, Selangor on 30-12-2025 via registered post together with a covering letter of even date. (Please refer to exhibit TYY-1 in Encl. 4, Plaintiff’s Affidavit of Service) **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

10. The Defendant failed to enter appearance within the prescribed 14 days after the date of service. Consequently, the Plaintiff filed the Certificate of Non-Appearance (CNA) on 20-01-2026, and the JID was entered against the Defendant on the same day. C. THE LAW ON SETTING ASIDE JUDGMENT IN DEFAULT (JID)

11. Before delving further into this case, it is necessary to first consider the applicable principles governing an application to set aside a JID. It is well established that the Court’s power to set aside a JID is discretionary in nature. Accordingly, the Defendant bears the burden of satisfying this Court that there are sufficient grounds for the JID to be set aside.

12. The power of this Court to set aside a JID is provided under Order 13 Rule 8 of the Rules of Court 2012 (hereinafter referred to as ROC 2012), which states as follows:- “The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.”

13. Before determining the Defendant’s application to set aside the JID, this Court must first ascertain whether JID entered against the Defendant is regular or irregular.

14. It is trite law that an irregular judgment ought to be set aside ex debito justitiae. Conversely, where the judgment is regular, the Defendant must satisfy the Court that he has a defence on merits, which warrant the setting aside of the judgment obtained against him. (See Yap Ke Huat & 4 Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 3 AMR; [2008] 5 MLJ 112)

15. To use common and plain language, the Defendant must show that his defence is not sham defence but one that is prima facie, raising serious issues as a bona fide reasonable defence that ought to be tried, otherwise, the application must fail. (See Hasil Bumi Perumahan Sdn Bhd & Ors v United Malayan Banking **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 Corp Bhd [1994] 1 MLJ 312; Seng Huat Hang Sdn Bhd v Chee Seng & Co. Sdn Bhd [1985] 2 CLJ 97)

16. For the issue of defence on merits, it has also been clarified in the case of Majlis Amanah Rakyat v Ismail Maskor & Ors [2006] 5 CLJ 230, Low Hop Ping J (as he then was), held that:- [30] In my judgment, it would serve a useful purpose to enumerate the relevant principles governing the setting aside of a regular judgment as follows:

1. Before setting aside a default judgment, the court must be satisfied on the affidavits that there is defence on the merits: see eg, Tan Ooi Chee & Anor v. Kanching Realty Sdn Bhd [1989] 1 MLJ 519; Pengkalen Concrete Sdn Bhd, supra; Tiong Kieng Seng, supra; and Yap Teck Ngian, supra;

2. The defendant has to establish the defence on the merits by at least filing a draft defence for the court to consider: see eg, Pengkalen Concrete, supra; and

3. A defence on the merits means a defence which discloses an arguable or triable issue, although it does not have to show that there is a real prospect of success or that it has to carry some degree of conviction: see eg, Tan Chiang Brother’s Marble (S) Ptd Ltd v. Lightweight Concrete Sdn Bhd [1997] 4 CLJ 759 HC; Pengkalen Concrete Sdn Bhd, supra; and PL Copnstruction Sdn Bhd v. Abdullah bin Said [1989] 1 MLJ 60.

17. Therefore, where the JID is regular, the Defendant must demonstrate that he has a defence which raises a bona fide triable issue in order to justify the setting aside of the JID. Such defence must be founded on reasonable, serious and bona fide grounds. **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

18. Before we go into further, it is incumbent to note that the Defendant has never disputed there was delay in delivering the vacant possession of the said Unit to the Plaintiff and the delay in completing the common facilities. This can be seen from the Proposed Defence of the Defendant in Exhibit “TSA-7”, Encl. 9, Defendant’s Affidavit in Support. D. SERVICE OF ENCLOSURES 1 & 2 TO THE DEFENDANT

19. The Defendant contends that the Plaintiff only exhibited a Domestic Registered Post Posting Receipt in Exhibit TYY-1, which merely reflects the date of posting, the name of the intended recipient and the tracking number to prove the service of Writ Summons and Statement of Claim.

20. On that basis, the Defendant submits that there is no proof of actual delivery of the Writ of Summons and Statement of Claim. Notwithstanding the above, the Defendant averred in its Affidavit in Reply and written submissions that there were internal processes for the segregation and circulation of documents within the Defendant's organisation, coupled with changes in its internal management and the Writ of Summons and Statement of Claim only came to its attention after the JID had been entered against it. This is evident from paragraph 5 of the Defendant's Affidavit in Support (Encl. 9) and paragraph 12 of the Defendant's Written Submissions (Encl. 14).

21. In my view, the Defendant's own evidence clearly demonstrates that the Writ of Summons and Statement of Claim were in fact received by the Defendant and had remained within its possession. At no point in Enclosure 9 did the Defendant deny receipt of the cause papers.

22. Instead, the Defendant's explanation is that the documents were delayed in reaching the appropriate officers due to its internal document circulation procedures and changes in management. Such internal administrative arrangements cannot negate or invalidate proper service effected in accordance with the ROC 2012. **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

23. Accordingly, I am unable to accept the Defendant's contention that there was no actual delivery of the cause papers.

24. Furthermore, as pursuant to Order. 62, Rule. 4 of the ROC 2012, which states as follows:- “Service on corporation (O. 62, r. 4)

4. (1) Where an action is against a corporation, the writ may be served—

25. In AFP Land Ltd v Super Line (M) Sdn Bhd [2025] MLJU 4798, the Court held that:- “[9] As for service, the Writ was served at the Defendant’s registered address by personal delivery and registered post. On this point, the presumption of service under section 12 of the Interpretation Acts 1948 and 1967 (Act 388), read with Order 62 rule 4 ROC 2012, is clearly engaged and not rebutted. Further, Clarion (Malaysia) **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 Sendirian Bhd v Permintex Sanko Technologies Sdn Bhd [2019] MLJU 401 and IIC Hotels & Resorts Sdn Bhd v JP Heritage Sdn Bhd [2022] MLJU 3375 support the proposition that proof of posting by registered post is sufficient to establish service, absent cogent evidence to the contrary. [10] The Defendant’s denial of receipt is difficult to accept when it admits receiving the JID served to the same address by the same method. In the Court’s judgment, the Defendant cannot accept one and deny the other.”

26. Also, in Well Connected Sdn Bhd v Adsi Engineering Sdn Bhd [2023] MLJU 761, it is well concluded that, the postal receipt is considered as sufficient evidence to proof a good and regular service:- “[17] The requirement for service of the said Writ under Order 62 rule 4 of the Rules of Court 2012 has been shown to have been complied with and I am satisfied that the JIDA obtained on the 22.12.2021 was regularly entered. [18] The postal receipts as enclosed and marked as “Exhibit CKC- 1” and “Exhibit CKC-4” are sufficient evidence to proof a good and regular service of the cause papers to the Defendant. There is no requirement for the recipient of such service to provide an acknowledgement of receipt neither is there a need to state the Defendant’s business and registered address on the Plaintiff’s postal receipts as alleged. The service done by the Plaintiff was in accordance with the provision of Order 62 ROC. In addition, the burden of proving receipt of the cause papers is not required in cases involving a corporation because corporations are deemed to be open during office hours. See s.469(1) and (2) of the Companies Act

2016. The Defendant’s argument that they did not answer the said Writ because there was no acknowledgment of receipt by the person named in the AR registered post is therefore without merit.” **Note : Serial number will be used to verify the originality of this document via eFILING portal 8

27. Furthermore, pursuant to Clause 32 of the SPA, service of any notice or document is to be effected by registered post addressed to the parties' respective addresses, and such notice or document shall be deemed to have been served upon the expiry of five (5) days from the date of posting. In the present case, I decline to accept the Defendant's contention that service had not been proved, as the requirements prescribed under both the SPA and the ROC 2012 have been duly complied with.

28. Having carefully perused the cause papers and affidavits filed in this case, I am unable to find any irregularity which would warrant the setting aside of the JID. In particular, none of the irregularities identified in Tetuan Tan Teng Siah Realty Sdn Bhd v Island Oil Palm Plantations Sdn Bhd & Anor [1997] 4 CLJ 634, is present in the circumstances of the present case.

29. Accordingly, I find that the JID was regularly obtained. The Defendant must therefore demonstrate the existence of a bona fide defence on the merits before this Court may exercise its discretion to set aside the JID. E. WHETHER THE PAYMENT OF RM5,000.00 CONSTITUTED DEPOSIT

30. The Defendant denies having received any booking fee from the Plaintiff, whether directly or through its solicitors, Messrs Gan & Zul. This form the basis of the Defendant’s Defence. The Defendant further contends that the sum of RM5,000.00 paid by the Plaintiff was not a booking fee paid to secure or reserve the said Unit. Instead, the Defendant asserts that the payment was made pursuant to the “Pre-Purchase Due Diligence and Request for Option to Purchase” (the “Due Diligence Form”).

31. In determining this issue, this Court is guided by the case of PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60, wherein the Federal Court unanimously held as follows:- “[46] Regulation 11(2), as emphasised, very clearly stipulates and expressly provides for an absolute prohibition against the **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 collection of booking fees howsoever they are called or described. Instead, the scheduled contracts now require that 10 percent of the purchase price be paid upon the signing of the sale and purchase agreement. Thus, speaking in ideal terms, if the law is strictly complied with, there is no question as to whether the date of calculation of the LAD runs from the date of payment of the booking fee or from the formal date of the agreement. This is because, the 10 percent deposit and the signing of the sale and purchase agreement would have been done simultaneously. Indeed, the statutory contracts for sale prescribe a specific payment schedule that must be complied with. [47] The recent amendment to the HDR 1989 vide PU(A) 106/2015, to our minds, further cements the notion that the legislative framework has been further tightened to abrogate this practice of booking fees. Regulation 11(2) was amended to even stricter terms: everyone, not just developers, is prohibited from collecting booking fees. The new reg 11(2) of the HDR 1989 reads:

(2) No person including parties acting as stakeholders shall collect any payment by whatever name called except as prescribed by the contract of sale. [48] In our view, the intention of Parliament is unequivocal. From the Hansard in 1966, to the change in the subsidiary legislation up to the amendment to the HDR 1989 in 2015, the written law in force has made it crystal clear that the collection of booking fees is to be absolutely prohibited. … [89] We agree fully with the views expressed above and as such we answer all related leave questions on the common issue to the effect as follows: Where there is a delay in the delivery of vacant possession by a developer to the purchaser in respect of Scheduled Contracts under Regulation 11(1) of the Housing Development (Control and Licensing) Regulations 1989 (Regulation 1989) enacted pursuant to **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 Section 24 of the Housing Development (Control and Licensing) Act 1966, the date for calculation of liquidated agreed damages (‘LAD’) begins from the date of payment of deposit/booking fee/initial fee/expression by the purchaser of his written intention to purchase and not from the date of the sale and purchase agreement literally.”

32. This Court also derives guidance from the decision of the High Court in Xtreme Meridian Sdn Bhd v Chow Chee Wah & Ors [2026] MLJU 970, the learned Judicial Commissioner after considering the decision of the Federal Court in PJD Regency, held as follows:- “[70] The appellant places considerable emphasis on the express wording of the LOI, which describes the RM10,000 as a “stakeholder sum” held by solicitors pending the launch of the project. I accept that, as a matter of form, the payment was not made directly to the developer, and that at the time of payment no statutory sale and purchase agreement had yet to be executed. However, these features are not determinative of the issue. [71] What is critical is the purpose for which the payment was made and the manner in which it was subsequently treated. The RM10,000 was paid for the specific purpose of securing the allocation of a unit. It was neither refunded nor rejected. On the contrary, the developer proceeded to execute the statutory SPA with the respondents and retained the benefit of that payment. The payment therefore formed part of a continuum of transactions culminating in binding contracts of sale. In substance, it represented the purchasers’ first financial commitment to the acquisition of their homes. [72] The Federal Court in PJD Regency (supra) made clear that the commencement of LAD is anchored not to formalistic milestones, but to the point at which the purchaser’s money is committed in furtherance of the purchase. The Court stated unequivocally that where vacant **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 possession is delivered late, LAD is to be calculated from the date of payment of the booking fee and not from the date of the statutory agreement. [73] While PJD Regency (supra) concerned payments made directly to developers, I do not accept that its ratio is so narrowly confined. The Federal Court’s reasoning is grounded in substance upon legislative purpose, not in the mechanics of payment. To limit the principle only to payments made directly to developers would permit easy circumvention of statutory protection through the interposition of stakeholder arrangements, a result plainly inconsistent with the object of the HDA. [74] The Federal Court’s observations on the amendment to regulation 11(2) of the Housing Development (Control and Licensing) Regulations 1989, which now expressly prohibits the collection of any payment “by whatever name called”, including by parties acting as stakeholders. The Court observed that Parliament’s intention was unequivocal. The collection of booking fees, whether directly or indirectly, was to be eradicated. To allow developers to rely on the printed date of the SPA in such circumstances would be to condone an evasion of the statutory scheme. [75] Viewed purposively, and in light of the social and protective nature of the HDA, I am satisfied that the learned Sessions Court Judge was correct to hold that the RM10,000 payment under the LOI constituted a form of booking fee. The calculation of LAD from 8 December 2014 was therefore consistent with binding Federal Court authority and with the statutory objective of protecting homebuyers against delay.”

33. This Court is further guided by the decision of the High Court in Southville City Sdn Bhd (formerly known as Tristar Acres Sdn Bhd) v Nurhasyimah Hisamud-Din & Anor [2020] 11 MLJ 456, regarding the issue of the payment of booking fee. It was decided by the learned High Court Judge that a contract **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 is formed on the date when the deposit is paid. The judgments by Nordin Hassan J are produced as below:- “[15] The irrevocable offer to purchase also contained the unit’s number to be purchased and its price. Subsequently, both parties signed the S&P agreement concerning the same property with the same price as in the irrevocable offer to purchase. As such, the payment of RM3,000 was the booking fee for the unit purchased by the first respondent. [16] In this regard, reference to the case of Lim Eh Fah & Ors v Seri Maju Padu [2002] 7 MLJ 262, is relevant where it states that a contract exist the date when the deposit is paid. The judge said this: One must bear in mind that the date of 17 July 1992 ie, the deposit payment date, was the date when the contract was struck, and the very date the respondent assumed responsibility to fulfil its parts of the bargain. If the date of signing of the S&P agreement were to be taken as the relevant date, when time started to run for the delivery of the vacant possession, the respondent could willy-nilly pick any dates it favoured to execute the S&P agreement, which could certainly prejudice the interest of the purchaser. [17] In the circumstances, I find, the contract between the applicant and first respondent was validly formed on the 24 September 2013 when the first respondent paid the booking fee. “[18] The next pertinent issue for determination here is whether Messrs Khairin Nisa & Co was acting for or agent of the applicant in the said project including the transaction involving the first respondent. [19] In relation to this, the following established facts in relevant: **Note : Serial number will be used to verify the originality of this document via eFILING portal 13

34. From the evidence before this Court, it is apparent that Messrs Gan & Zul acted as the Defendant's stakeholders in respect of the said Project. The sum of RM5,000.00 was paid to Messrs Gan & Zul in relation to the purchase of the said Unit. This is evident from Exhibits "TSA-1" and "TSA-4" in Encl. 9.

35. It is further undisputed that the SPA subsequently executed by the parties relates to the very same Unit. It is also significant that Messrs Gan & Zul acted as the Defendant's conveyancing solicitors and were responsible for preparing the SPA.

36. Having considered the evidence in its entirety, I find that the payment of RM5,000.00 formed part of the transaction leading to the execution of the SPA between the Plaintiff and the Defendant. The surrounding circumstances clearly demonstrate that the payment constituted a booking fee notwithstanding the label ascribed to it by the Defendant.

37. Accordingly, I find that the Defendant's contention of the RM5,000.00 constituted security money for the alleged "Pre-Purchase Due Diligence" is wholly unsustainable. The Defendant cannot avoid the legal consequences of the payment by merely assigning it a different description. As the Federal Court observed in PJD Regency Sdn Bhd, the prohibition against collecting booking fees applies "howsoever they are called or described" The substance of the transaction, rather than the label attached to the payment, is determinative.

38. I am likewise unable to accept the Defendant's contention that no booking fee was received merely because the payment was made to Messrs Gan & Zul and was subsequently refunded to the Plaintiff (see Exhibit "TSA-5" in Encl. 9). **Note : Serial number will be used to verify the originality of this document via eFILING portal 15

39. The fact remains that the RM5,000.00 was paid in connection with the purchase of the said Unit through the Defendant's appointed solicitors acting as stakeholders. The subsequent refund of the said sum does not alter the legal character of the payment.

40. In EUPE Bangsar South Development (JV) Sdn Bhd v Lam Sai Yih [2023] 9 MLJ 392, Mohd Nazlan J held that:- “[35] Further, in my judgment, the status of the refundability of the booking fee is of no consequence. It is now clear law that the calculation of LAD must be from the date of payment of the booking fee however it is described or whatever its refundability status, instead of from the date of the SPA. It is worth emphasising this recent development of the law following the landmark decision of the Federal Court in PJD Regency where Tengku Maimun CJ in delivering the judgment of the court lucidly explained as follows: [25] Accordingly, upon a wholesome and coherent reading of the two judgments of the Supreme Court in Hoo See Sen and Faber Union, the point of law at issue in these appeals remains very much decided. Where a developer fails to deliver vacant possession according to the time stipulated in the statutory sale and purchase agreement, the calculation of the LAD begins from the date of payment of the booking fee and not from the date of that statutory agreement. [26] In any event, we are of the view that the above point of law is further clarified and cemented by the nature of the HDA 1966 and HDR 1989 being social legislation. Thus, leaving aside the quarrel over the correctness of the two said Supreme Court decisions, we find that subsequent judicial decisions and legislative changes do not support the developers. **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 [40] Another reason why the status of the booking fees vis a vis its refundability is irrelevant is that it is of no consequence in the instant case even though the appellant characterised it as refundable. This is simply because the parties did proceed to execute the SPA, there was no issue of the respondent not securing a loan to finance the purchase, and the parties did as a matter of fact and law actually complete the SPA, with the only issue being the subsequent late delivery on the part of the appellant. [41] In my view, arguments about the refundability status of the booking fees serve only to distract and obfuscate what is already a clear statement of the position in law in light of PJD Regency. It would also make no difference if like in this case it was contended that the booking fees sums were paid into a stakeholder account and was subjected to a certain terms and conditions. For all intents and purposes payments of booking fees was in fact made by the respondent in favour of the appellant before parties entered into the SPA for the Unit.

41. Based on the foregoing, I find that the fact of the RM5,000.00 was subsequently refunded does not alter the legal position. The evidence clearly establishes that the booking fee was paid via bank cheque date 07-09-2020 and official receipt dated 10-09-2020 was issued (Exhibit “CSC-1”, Encl. 10), and an offer to purchase (the “Due Diligence Form”) dated 07-09-2020 duly signed by the Plaintiff (Exhibit “TSA-4”, Encl. 9). Accordingly, I find that a binding contract came into existence on 10-09-2020 when the payment was confirmed. F. WHETHER THERE IS ISSUE OF ESTOPPEL IN THIS CASE

42.

Pursuant to Clause 25(2) of the SPA, LAD is to be calculated at the rate of ten per cent (10%) per annum based on the purchase price of the said Unit. The purchase price stipulated in the SPA is RM609,000.00. However, the Defendant granted the Plaintiff an 8% discount, resulting in a discounted purchase price of RM560,280.00. **Note : Serial number will be used to verify the originality of this document via eFILING portal 17

43. The Defendant contends that, if the Plaintiff is permitted to compute the LAD based on the original purchase price of RM609,000.00, it would be manifestly unjust and inequitable as it would confer upon the Plaintiff an unwarranted windfall at the expense of the Defendant.

44. In support of this contention, the Defendant relies on two authorities, namely Messrs Tan Chap Associates v. Kk b Poul try Farming Sdn Bhd & Ors [2025] MLRHU 2863 and Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Merchant Bank Berhad [1995] 1 MLRA 738, and submits that the Plaintiff is estopped from computing the LAD based on the original purchase price.

45. The case of Messrs Tan Chap Associates concerns an application for interpleader relief where the Plaintiff, as the stakeholder of a sum of RM200,000.00 for the vendors together with certain security documents, sought the direction of the court to as to the proper recipient of the stakeholder sum and the rightful custodian of the security documents.

46. In Boustead Trading, the dispute arose from a factoring agreement between the supplier and the Respondent, which eventually led to the non-payment by the Appellant. The issue was whether the Appellant could refuse to make payment to the Respondent in light of a cautionary statement in the Appellant’s purchase orders that the amounts stated were to be offset against the costs of stocks returned to the supplier.

47. The facts and issues arising in both cases are materially different from those in the present case. This Court cannot see or appreciate how these two authorities can be relevant in our current case. In fact, both case laws are different in issues and facts. None of the gist can be referred or derived as the reference of this Court. **Note : Serial number will be used to verify the originality of this document via eFILING portal 18

48. In response, the Plaintiff relies on Aminnuddin Rezal Bin Jaafar & Ors v Prema Bonanza Sdn Bhd [2021] MLJU 2783, where the High Court held as follows:- “[56] In the present context, the HDA (and its subsidiary legislation the HDR) are a social legislation enacted with the purpose to protect house buyers. Thus, the law on waiver or estoppel cannot operate against the HDA and the HDR. If waiver or estoppel is allowed to operate, it will defeat the object and purpose of the HAD and the HDR. [57] It is a truism that there is an inequality of bargaining power between developers and house buyers. It is conceivable that in some cases, a developer might not disclose to a house buyer, his or her full entitlement to claim for LAD under the law. In such instance, it may not take very much for a developer to persuade a house buyer to sign away his or her statutory rights under the HDA and the HDR. I therefore think there can be no waiver or estoppel against the HDA and the HDR. [58] My conclusion is that D cannot be allowed to rely on any waiver or estoppel to preclude the Plaintiffs from asserting their statutory rights to claim for full LAD pursuant to Schedule H based on the completion period of 36 months (instead of 54 months).”

49. The Plaintiff further relies on Veetak Enterprise Sdn Bhd v The Kuala Lumpur Finance Bhd [1987] 1 MLJ 407, where the Court held that:- “It was another submission of counsel for the plaintiff that the defendant could not raise the issue of estoppel and he referred to the former Court of Appeal case of Puran Singh v Kehar Singh & Anor [1939] MLJ 71 75. In that case reference was made by Thomas C.J. to Barrow's case (1880) 14 Ch D 432 in which was stated by Bacon, V.C. in the course of his judgment that: **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 “the doctrine of estoppel cannot be applied to an Act of Parliament. Estoppel only applies to a contract inter partes and it is not competent to parties to a contract to estop themselves or anybody else in the face of an Act of Parliament.” It was held by the former Court of Appeal, inter alia, that there can be no estoppel against statutory provision in an Enactment which legislates on a matter of general interest.”

50. In light of the decisions stated in Prema Bonanza Sdn Bhd & Veetak Enterprise Sdn Bhd, i am of the view that no issue of estoppel arises in the present case. Accordingly, the Defendant cannot rely on the doctrine of estoppel to defeat or curtail the Plaintiff's statutory right to claim LAD.

51. Apart from that, the Defendant's contention that the Plaintiff would be unjustly enriched by computing the LAD based on the original purchase price has likewise been considered and rejected by the Federal Court in PJD Regency Sdn Bhd, and the Federal Court held that:- “[118] The only issue that remains is unjust enrichment. The developer had provided a 10 percent rebate on the purchase price of the property to the purchasers. As such, the developer contended that the LAD should have been calculated on the rebated purchase price and not on the actual purchase price stipulated in the sale and purchase agreement as that would otherwise tantamount to unjust enrichment. [119] The learned High Court judge cited with approval the following passage in Chew Ewe Hin & Anor v Sanjana Triangle Sdn Bhd & Anor case [2017] 1 LNS 355, where Abdul Majid Tun Abdul Hamzah JC (as he then was) held, as follows: **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 [36] Returning to the four clauses pertaining to the LAD found in the SPA I agree with the views expressed by the learned author and hold that the doctrine of unjust enrichment has no application to the present case. The Defendant cannot turn around and say that since discount was given the LAD ought to be calculated based on the discounted purchase price. After all the terms of the SPA are statutorily provided for. [120] As we understand it, the High Court essentially held that the sale and purchase agreement having been derived from a statutory contract was not subject to amendment by the parties and that accordingly the developer was bound by the terms of the statutory contract of sale that the LAD shall be calculated from the purchase price. [121] The Court of Appeal dealt with the issue quite simply as follows, per Harmindar Singh Dhaliwal JCA (as he then was): [24] In this context, the provisions of the contract of sale admit to no ambiguity as liquidated damages are to be calculated from the agreed purchase price. There was no mention of any rebate in the sale and purchase agreement. It must be borne in mind that the contract of sale was prescribed and regulated by statute and the parties could not import additional clauses into it and especially to remove the protection of home buyers. [25] For the above reasons, we did not think there was any justification for the plea of unjust enrichment. There was, therefore, no error on the part of the Tribunal in the calculation of the liquidated damages. [122] We agree with the views of the High Court and the Court of Appeal. It is trite principle of law that where a statute prescribes a form **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 under the umbrella of social protection, such provisions may be contracted out of provided that the terms of the agreement are favourable to the purchasers (see Sea Housing at p 34). [123] The express provision of rebates, in our view, is favourable to the purchasers which the developer could have inserted into the sale and purchase agreement. There is an express finding by the Court of Appeal that there were no such terms. Now, even if such terms were included into the contract, for the following reason, we doubt that it would have altered the conclusion on the calculation of the LAD. [124] A rebate is essentially an ex post facto discount. It amounts to refund of monies already paid by the purchaser. The concept behind LAD is to compensate a purchaser for the developer’s failure to comply with the statutorily prescribed timeline. It would defeat the purpose of the protection guaranteed by the law if a developer is allowed to cut his losses incurred by the LAD by offsetting it using the purchaser’s own money. In our view, such an act amounts to nothing more than an act to manipulate the purchase price for the collateral purpose of having to pay LAD. [125] The LAD prescribed by law is a statutory remedy afforded to the purchasers. There can therefore be no question of unjust enrichment upon an innocent party’s right to enforce his statutory remedy against the party in breach. This is especially so considering the developer’s own contravention of the law by collecting an initial fee from the purchaser in express contravention of reg 11(2) of the HDR 1989.

52. I agree with the Plaintiff's submission that Clause 25(2) of the SPA expressly provides that the LAD shall be calculated from day to day at the rate of ten per cent (10%) per annum based on the "Purchase Price." The SPA stipulates the purchase price as RM609,000.00 and contains no provision permitting the calculation of LAD based on the discounted purchase price. **Note : Serial number will be used to verify the originality of this document via eFILING portal 22

53. In the absence of any contractual provision to the contrary, this Court is bound to give effect to the express terms of the SPA. This conclusion is entirely consistent with the principles laid down by the Federal Court in PJD Regency.

54. Accordingly, I reject the Defendant's contention that the LAD ought to be calculated based on the discounted purchase price of RM560,280.00. The applicable purchase price for the purpose of computation the LAD remains RM609,000.00 as stipulated in the SPA.

55. Having considered the foregoing, I find that the commencement date for the computation of the LAD has been correctly determined and that the Plaintiff's computation of the LAD is in accordance with Clause 25(2) of the SPA. Accordingly, I see no reason to interfere with the Plaintiff's computation of the LAD. G. CONCLUSION

56. Having considered the entirety of the materials, this Court finds that the JID entered against the Defendant was done in accordance to the requirements under the ROC 2012. The contentions of the Defendant are devoid of merits.

57. Based on the foregoing, I am satisfied that there is no merit to the Defendant's proposed defence. There are no bona fide triable or arguable issues raised by the Defendant. On that note, I have no compunction in dismissing this application with costs. DATED 6 JULY 2026 LEE KA FULL MAGISTRATE MAGISTRATE COURT OF PETALING JAYA SELANGOR **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 Counsels: For the Plaintiff: Hong Chun Hao Messrs Chim & Hong Advocates & Solicitors D3-1-16, Solaris Dutamas, Jalan Dutamas 1, 50480 Kuala Lumpur Wilayah Persekutuan Kuala Lumpur For the Defendant: Wong Yi Ying Messrs Shu Yin, Teh & Taing Advocates & Solicitors No. 8 (1st & 2nd Floor), Jalan SS15/4B, 47500 Subang Jaya Selangor (Judgment is delivered on 11-05-2026 via platform eReview) **Note : Serial number will be used to verify the originality of this document via eFILING portal