Cosmopolitan Avenue Sdn Bhd v Dickson Woo Boon Siew (B-02(NCvC)(W)-890-05/2024)

DICKSON WOO BOON SIEW

CHOONG SOO HOI (P)

LEE SWEE KIAT

LEE MEI PENG (P)

CHU SWEE WAH

TIONG POH LING (P)

PRISTINE CLEAR SDN BHD (COMPANY NO.: 200401033763 [672271-H])

CSL PROPERTIES SDN. BHD. (COMPANY NO.: 201001030756 [914677-V]) S 23/02/2026 13:55:41 B-02(NCvC)(W)-890-05/2024 Kand. 61 S/N hjo42hGtuk6HxnAKbwlk8w In the High Court of Malaya at Shah Alam, Civil Suit No. BA-22NCvC-450-10/2020 Between

Dickson Woo Boon Siew (NRIC No.: 690205-07-5075)

Choong Soo Hoi (P) (NRIC No.: 801110-09-5048)

Lee Swee Kiat (NRIC No.: 780306-04-5317)

Lee Mei Peng (P) (NRIC No.: 790902-14-5348)

Chu Swee Wah (NRIC No.: 710508-05-5501)

Tiong Poh Ling (P) (NRIC No.: 610830-13-5632)

Pristine Clear Sdn Bhd (Company No.: 200401033763 [672271-H])

CSL Properties Sdn. Bhd. (Company No.: 201001030756 [914677-V]) And Cosmopolitan Avenue Sdn Bhd (Company No.: 201001004123 [888713-V]) CORAM HASHIM BIN HAMZAH, CJM. LIM CHONG FONG, JCA. ALWI BIN HJ ABDUL WAHAB, JCA. S/N hjo42hGtuk6HxnAKbwlk8w GROUNDS OF JUDGMENT INTRODUCTION [1] This appeal concerns the nullification of a settlement agreement entered into to resolve claims arising from the late delivery of commercial office suites sold by the Appellant. [2] The Appellant, who was the defendant in the High Court, is a private limited company engaged in commercial property development [3] The Respondents, who were the plaintiffs in the High Court, comprise both individuals and private limited companies. [4] We heard the appeal on 29th April 2025 and thereafter curia advsisari vult our decision to deliberate on the issues advanced by the parties. [5] Now having done so, we furnish our decision below together with the supporting grounds. BACKGROUND [6] The Appellant is the developer of the Empire City, Damansara project ( ) comprising of office suits that were [7] By way of a standard bespoke sale and purchase agreement produced by the Appellant ( ), the respective Respondents S/N hjo42hGtuk6HxnAKbwlk8w purchased office suite from the Appellant. The 1st Respondent purchased unit M-13-09, the 2nd & 3rd Respondents jointly purchased unit M-12-09, the 4th Respondent purchased unit M-21-06, the 5th Respondent purchased unit M-27-07, the 6th Respondent purchased unit M-28-03A, the 7th Respondent purchased unit M-27-09 and the 8th Respondent purchased unit M-23-02 of the office. suites respectively. [8] The delivery of the office suites by the Appellant to the Respondents were late, thus the Respondents sought liquidated and ascertained damages ( ) from the Appellant payable from the contractual date of handing vacant possession of the units until the date of certificate of th March 2019 ( ) or receipt of keys of the respective units from the Appellant. [9] By reason of the failure, refusal or neglect of the Appellant paying the LAD sought, the Respondents commenced Shah Alam High Court suit no. BA-22NCVC-450-10/2020 ( ) against the Appellant. IN THE HIGH COURT [10] The Respondents claimed for the following from the Appellant in the Suit (in Bahasa Melayu):

Berdasarkan alasan-alasan yang diplidkan di atas, Plaintif-Plaintif menuntut terhadap Defendan untuk:

(a) Deklarasi dan Perintah bahawa surat-surat penyelesaian antara Plaintif Pertama, Ke-2, Ke-3, Ke-4, dan Ke-5, Ke-6 dan Ke-7 yang ditandatangani dengan Defendan adalah tidak sah dan terbatal. S/N hjo42hGtuk6HxnAKbwlk8w

(b) Deklarasi dan perintah bahawa tempoh pengiraan 42 bulan kalender SPA-SPA tersebut adalah bermula dari Pembayaran Yuran Pendahuluan oleh Defendan kepada Plaintif-Plaintif seperti berikut:- Plaintif-Plaintif/Pembeli-Pembeli Tarikh Pembayaran Yuran Pendahuluan/Bayaran Tempahan

(i) Plaintiff Pertama 21.01.2011

(v) Plaintif Ke-6 14.09.2011

(c) Deklarasi dan perintah bahawa notis-notis milikan kosong dan kononnya milikan kosong yang diberikan oleh Defendan pada tahun 2016 kepada Plaintif-Plaintif adalah tidak sah dan terbatal.

(d) Deklarasi dan perintah bahawa untuk tujuan pengiraan gantirugi tetap terhutang Defendan kepada Plaintif-Plaintif, tarikh milikan kosong adalah diberikan pada tarikh kunci diberikan pada: - Plaintif-Plaintif/Pembeli-Pembeli Tarikh Kunci Penuh Diberikan

(i) Plaintiff Pertama 04.01.2020

(v) Plaintif Ke-6 Pada tarikh sebenar kunci-kunci diberikan dan dalam masa 7 hari dari tarikh penghakiman

(e) Deklarasi dan perintah bahawa pengiraaan ganti rugi tetap adalah setakat tarikh Perakuan Penyiapan dan Pematuhan (Certificate of Completion and Compliance) pada 13.03.2019 atau tarikh Plaintif-S/N hjo42hGtuk6HxnAKbwlk8w Plaintif menerima kesemua kunci unit-unit Plaintif-Plaintif masing-masing, yang mana adalah lebih lewat.

(f) Perintah bahawa Defendan memberikan kesemua kunci unit-unit Plaintif Ke-5 dan Plaintif Ke-6 iaitu kesemua M27 07 SOHO Projek tersebut kepada Plaintif Ke-5 dan kesemua kunci M-38-04A SOHO Projek tersebut jeoada Plaintif Ke-6 dalam tempoh 7 hari dari tarikh penghakiman ini di mana tarikh pengiraan tempoh liabilti Defendan adalah 6 bulan dari tarikh penerimaan sebenar kesemua kunci.

(g) Jumlah sebanyak RM 1,668,308.69 dibayar oleh Defendan kepada Plaintif-Plaintif menurut Lampiran A dan Lampiran B seperti berikut:- Pihak Plaintif Jumlah dari tarikh pembayaran Yuran Pendahuluan hingga tarikh terima kunci/tarikh CCC pada 13.03.2019 Jumlah

(i) Plaintif Pertama RM 106,549.35 + RM 128.641.71 (setakat tarikh CCC pada 13.03.2019) RM 235,1919.06

(v) Plaintiff ke-6 RM 83,592.54+ RM 190, 176.119 (setakat tarikh pemfailan dengan kiraan sehingga pada 21.10.2010) RM 273,768.73

(h) Perintah bahawa Defendan membayar gantirugi tetap kepada Plaintif ke-5 an/atau Plaintif Ke-6 untuk tempoh dari 22.10.2020 sehingga tarikh sebenar kesemua kunci unit unit masing-masing Plaintif-Plaintif Ke-5 dan ke-6 diberikan kepada Plaintif Ke-5 dan Ke- 6 di mana Plaintif Ke-5 menerima pada 10.12.2020.

(i) Jumlah sebanyak RM 25,394.00 setakat 28.11.2016 dipulangkan oleh Defendan kepada Plaintif ke-6 sebagai lebihan pembayaran Plaintif ke-6 kepada Defendan dalam tempoh masa 7 hari tarikh penghakiman ini.

(j) Faedah pada kadar 10% setahun atas jumlah penghakiman di atas dari tarikh terakru sehingga tarikh penghakiman dibayar oleh Defendan kepada Plaintif-Plaintif.

(k) Faedah pada kadar 10% setahun atas jumlah penghakiman di atas dari tarikh penghakiman sehingga tarikh penyelesaian penuh dibayar oleh Defendan kepada Plaintif-Plaintif.

(l) Gantirugi am termasuk gantirugi teruk dan teladan;

(m) Plaintif-plaintif diberi kebebasan untuk memohon perintah lanjutan..

(n) Kos; dan

(o) Lain-lain relief yang difikirkan sesuiai, adli dan berpatutan oleh Mahkamah yang Mulia ini. [11] The learned Judicial Commissioner ( ) after trial found in favour of the Respondents and ordered as follows on 29th April 2024 ( ):

Deklarasi dan Perintah bahawa surat-surat penyelesaian antara Plaintif Pertama, Ke-2, Ke-3, Ke-4, Ke-5 dan Ke-7 yang masing-masing ditandatangani dengan Defendan adalah tidak sah dan terbatal; S/N hjo42hGtuk6HxnAKbwlk8w

Jumlah ganti rugi tetap yang dikehendaki untuk dibayar kepada Plaintif-Plaintif adalah dikira dari 22/9/2015 sehingga tarikh notis penyerahan milikan kpsong pada 13/8/2016 kepada Plaintif-Plaintif Pertama, Ke-2 dan Ke-3, Ke-4 dan Ke-8 dan pada 14/11/2016 kepada Plaintif Ke-5, Ke-6 dan Ke-7 seperti berikut:-

(a) Untuk Plaintif Pertama [Unit M-13-09]: RM 45,207.72

(b) Untuk Plaintif Ke-2 dan Plaintif Ke-3 [Unit M-12-09]: RM 44,953.17

(c) Untuk Plaintif Ke-4 [Unit M-21-06]: RM 38,080,37

(d) Untuk Plaintif Ke-5 [Unit M-27-06]: RM 46,108.37

(e) Untuk Plaintif Ke-6 [Unit M28-03A]: RM 56,032.35;

(f) Untuk Plaintiff Ke-7 [ Unit M-27-09]: RM 62,902.81

(g) Untuk Plaintif Ke-8 [Unit M-23-02]: RM 35,110.65

Jumlah sebanyak RM 25,394.00 setakat 28.11.2016 dipulangkan oleh Defendan kepada Plaintif ke-6 sebagai lebihan pembayaran Plaintif ke-6 kepada Defendan dalam tempoh masa 7 hari tarikh penghakiman ini.

Faedah pada kadar 5% setahun atas jumlah penghakiman di atas dari tarikh pemfailan writ (30/10/2020) sehingga penyelesaian penuh.

Perenggan 31(b)(c)(d)(e)(h) dan (I) Pernyataan Tuntutan Terpinda adalah ditolak;

Kos sebanyak RM 30,000.00 dibayar oleh Defendan kepada Plaintif-Plaintif tertakluk kepada fi alokatur. [12] The learned JC held, inter alia, as follows in the grounds of Judgment: [14] Upon the final decision of this Court, the Defendant has filed an appeal in respect of the following issues: S/N hjo42hGtuk6HxnAKbwlk8w

(a) Declaration and Order of this Court that the settlement letters between the 1st, 2nd, 3rd, 4th, and 7th Plaintiffs and the Defendant are not valid and void.

(b) The Defendant is to return the sum of RM25,394.00 to the 6th Plaintiff as it was an overpayment by the 6th Plaintiff to the Defendant.

(c) Interest at 5% per annum to be calculated on the judgment sum from the filing date of the Writ Summons (30 October 2020) till full realisation of the judgment sum.

(d) Costs for RM30,000.00 to be paid to the Plaintiffs by the Defendant subject to the allocator fee. [15] As for the issue in para 14 (a), Defendant submitted that the 1st, 2nd, 3rd, 4th, 5th, and 7th Plaintiffs' had signed settlement letters with Defendant on an agreed "LAD" sums to be paid to the Plaintiffs' respectively. [16] The Defendant further contends that the settlement letters were prepared based on calculation according to cl 24.2 of the Sale and Purchase Agreement. [17] Therefore Defendant submits that the 1st, 2nd, 3rd, 4th, 5th and 7th Plaintiffs' are estopped from claiming "LAD" beyond the calculated sum as stated in the settlement letters. [19] It is also the Defendant's submission that the Plaintiffs had elected to abide by the settlement letters. [20] Therefore once an election has been made, it cannot be revoked as parties are bound by the doctrine of estoppel. [22] Defendant asserted that by their conduct in which they had communicated to Defendant as to the payment of the "LAD" sums agreed upon in the settlement letters, the Plaintiffs cannot take inconsistent positions and dispute the validity of the settlement letters. [23] Defendant denied the Plaintiffs' allegations that Defendant or its staff had made fraudulent misrepresentations that the Plaintiffs would receive their unit S/N hjo42hGtuk6HxnAKbwlk8w faster and would be allowed to schedule an appointment for inspection and the "LAD" sum would be settled faster if they signed the "LAD" settlement letters. [24] The Court of Appeal case of Victor Cham & Anor v. Loh Bee Tuan [2006] 1 MLRA 861; [2006] 5 MLJ 359; [2006] 3 CLJ 770; [2006] 5 AMR 234; referred to what has been defined as fraudulent misrepresentation, as follows: "[13] Fraudulent misrepresentation comes under the tort of deceit. To succeed in his claim, the respondent in this case need to establish that he had in reliance on the fraudulent misrepresentation and that the representation was false. He further needs to establish that the first appellant had made those statements knowingly or recklessly without caring whether it was true or false. And that as a result of reliance on such representation, the respondent had suffered damage. For the elements of the tort of deceit, see Panatron Pte Ltd v. Lee Cheow Lee [2001] 3 SLR 405." [25] The principle enunciated in the Court of Appeal case of Sim Thong Realty Sdn Bhd v. Teh Kim Dar [2003] 1 MLRA 272; [2003] 3 MLJ 460; [2003] 3 CLJ 227; [2003] 4 AMR 460 is as follows: "Now the elements of actionable misrepresentation are well settled. They are set out as follows in Professor McKendrick's Contract Law (3rd Ed), a leading work on the subject: A misrepresentation may be defined as an unambiguous, false statement of fact which is addressed to the party misled and which materially induces the contract. This definition may be broken down into three distinct elements. The first is that the representation must be an unambiguous false statement of fact, the second is that it must be addressed to the party misled and the third is that it must be a material inducement to entry into the contract." [26] I had the opportunity to hear the evidence of all the Plaintiffs who signed the settlement letters. [27] On weighing the facts adduced during the trial I am left with no doubt that the witnesses, all the Plaintiffs' were witnesses of truth. [28] Upon examining the factual evidence adduced in Court, the only inference of fact that I can arrive at is that the Plaintiffs signed the settlement letters upon being induced by the Defendant's employees who had fraudulently S/N hjo42hGtuk6HxnAKbwlk8w misrepresented the Plaintiffs that the Plaintiffs would get the unit faster and "LAD" faster if they signed the settlement letters. [29] It is self-evident that the 6th and 8th Plaintiffs who did not sign the settlement letters were only allowed to inspect their respective units in 2019. [30] There is no iota of evidence from the Defendant to rebut all the factual evidence of the Plaintiffs before this Court. [31] Both of the Defendant's witnesses gave evidence before this Court that the "LAD" sums offered to the Plaintiffs in the settlement letters were to be paid in full following the terms as stipulated in the Sale and Purchase Agreements. [32] However, I am satisfied that there is no evidence before this Court that Defendant did or even attempted to settle the "LAD" sums due to the Plaintiffs' although the Plaintiffs did ask for payments to be made. [33] It is clear from the evidence adduced in Court that the Defendant's representative Mr Yeo had proposed a 50% discount in 2019 concerning the proposed sums offered to the Plaintiffs in the settlement letters. [34] The Defendant didn't rebut the evidence adduced in Court by calling its staff or representative. [35] I opined to derive a factual finding that the settlement letters were fraudulent misrepresentations made by Defendant to the Plaintiffs and not as what has been envisaged by Defendant in their submissions. [36] I find the very Court of Appeal decision referred to be the Defendant in the case of Victor Cham & Anor v. Loh Bee Tuan [2006] 1 MLRA 861; [2006] 5 MLJ 359; [2006] 3 CLJ 770; [2006] 5 AMR 234 fit the Plaintiffs' case as the settlement letters were not honoured and the Plaintiffs' till to date had not received the "LAD" sums due to them. [37] All the allegations adduced by the Plaintiffs remained unchallenged and unrebutted. [38] The only conclusion I can draw is that the Plaintiffs signed the settlement letters based on the fraudulent misrepresentations made by the Defendant's staff and representatives. [39] Therefore I concluded that the settlement letters be declared invalid and S/N hjo42hGtuk6HxnAKbwlk8w [40] In the next issue para 14 (b), Defendant submitted that the 6th Plaintiff has failed to prove that she had made an overpayment for the sum of RM25,394.00. [41] The Defendant further contended that the proof of payment referred to P1 and P1a (Enclosure 114, pp 59-60) was a forged and fraudulent document. [42] Mr Jeffrey Liaw (WSPW1) had testified that he made payment to the Defendant's representative by the name of Daniel Neik for a sum of RM76,774.00. [43] According to WSPW1, Daniel Neik was the same sales agent who had dealt with the purchase of a unit in Block E and the purchase of a unit made by the 6th Plaintiff in this case. [44] Defendant failed to tender evidence in Court that Daniel Neik did not act as agent for the 6th Plaintiff. They also failed to adduce evidence by producing their statement of account to prove that the alleged amount was never banked into their account. [45] The argument put forward by Defendant that the said money was not reflected in the 6th Plaintiff's unit statement of account is flawed. I opine to say that Defendant must check their bank statement of account and not blame innocent parties like WSPWI and the 6th Plaintiff who had acted in good faith that Daniel Neik was Defendant's representative in handing over the money. [46] The fact that Daniel Neik had given the original acknowledgment letter signed by him on behalf of Defendant at Defendant's sales office remained unchallenged. [47] I view that it was not for the Plaintiffs to rebut a fact raised by the Defendant that the payment was never made. Section 101 of the Evidence Act 1950 applies to the Defendant to disprove the fact proven by the Plaintiffs. [48] I agreed with the submission by the Plaintiffs that since the payment was made by WSPW1 about 13 years ago, it would be nearly impossible for WSPW1 to obtain a bank statement to show the said payment was made. The principle in the High Court case of Bespile Sdn Bhd v. Asianshine Sdn Bhd & Ors [2010] 5 MLRH 822; [2010] 4 MLJ 824 applies to the facts of this case. [49] The act of WSDW1 in lodging a police report two years after the incident that the acknowledgment letter given to the 6th Plaintiff was forged and fraudulent does not disprove the fact that WSPW1 and the 6th Plaintiff had S/N hjo42hGtuk6HxnAKbwlk8w made the said payment to one Daniel Neik whom they believed to be the Defendant's representative. [50] Moreover, the entire transaction took place in the Defendant's sales office, which only strengthens Plaintiff's version of undisputed facts that they handed over the money to Defendant's representative. [51] In weighing the evidence presented before me, I make a finding of fact that there was an overpayment for a sum of RM25,394.00 made by the 6th [13] The Appellant is dissatisfied with the Judgment and has thus on 24th May 2024 appealed to the Court of Appeal in respect of 4 issues including interest and costs as stated in paragraph (14) of the grounds of Judgment. FINDINGS OF THIS COURT [14] This is an after-trial appeal; hence the function of this Court is that of review only. Abdul Wahab Patail JCA held as follows in Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] CLJU 1416 (CA) with emphasis added by us: "[4] Both parties began their submissions with the clear understanding that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts in the trial judge. They cited this court in Sivalingam Periasamy v. Periasamy & Anor [1996] 4 CLJ 545 CA; [1995] 3 MLJ 395 CA. This general principle was adopted by this court in Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 and other cases. It is clear it is a general principle and that there are exceptions when appellate intervention is necessary to ensure justice is done. In the cases regularly cited, the terms "intervene" and "interfere" are used interchangeably. A more precise use of terminology would remove much unnecessary confusion and argument. It is more precise to say that an appellate court will intervene to correct an injustice when it is shown to have occurred in the trial court, but it would be an interference otherwise. ... S/N hjo42hGtuk6HxnAKbwlk8w [7] There is almost no limit to the range within which cases in court may vary. At one end there are cases that involve solely questions of law, and no facts are disputed. On the other there are cases that involve no law but all the facts are disputed. Within these cases there may be cases with disputed facts that involve solely interpretation and inferences leading to a conclusion on a finding on the disputed fact, and there may be other cases with disputed facts that involve solely oral evidence and the finding depends entirely upon an assessment of the credibility of witnesses who testified and were tested before the trial judge. [8] Hence, the proper approach is that if (a) it is shown that the judgment cannot be explained or justified by the special advantage enjoyed by the trial judge by reason of having seen and heard the witnesses testify and being tested before him, and (b) an injustice is demonstrated to have been occasioned by any error by the trial judge, for example:

(a) the judgment is based upon a wrong premise of fact or of law;

(b) there was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him;

(c) the trial judge has completely overlooked the inherent probabilities of the case;

(d) that the course or events affirmed by the trial judge could not have occurred;

(e) the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or

(f) the trial judge had so fundamentally misdirected himself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion;

(g) an appellate court will intervene to rectify that error so that injustice is not occasioned." S/N hjo42hGtuk6HxnAKbwlk8w See also Ng Hoo Kui & Anor v. Wendy Tan Lee Pheng, Administrator of the Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1 (FC). [15] Before us, the parties basically re-hashed their respective submissions made in the High Court. [16] It is undisputed that the office suites were not completed by the Appellant within the original contractual stipulated date calculated based on the SPA. [17] As a result, there is LAD payable by the Appellant to the Respondents pursuant to the SPA. [18] Nonetheless, the Respondents (except the 6th and 8th Respondents) and Appellant agreed to the mutual set off of miscellaneous charges chargeable by the Appellant and LAD payable to the Respondents as evidenced by a settlement letter made between them respectively. [19] That notwithstanding, the parties were at odds over the amount of LAD payable and the Respondents ultimately sued the Appellant for the recovery of LAD. S/N hjo42hGtuk6HxnAKbwlk8w [20] S/N hjo42hGtuk6HxnAKbwlk8w S/N hjo42hGtuk6HxnAKbwlk8w [21] It is, in our view, apt to reproduce the following relevant contractual provisions of the SPA, viz.:

(a) This Agreement is expressly conditional upon the Vendor obtaining the approval of the Building Plan (with such amendments variations or substitution thereto as may be required by the Appropriate Authority or consultants who shall consider expedient or necessary, whether before or after the approval of the Building Plan by the Appropriate Authority) for the Project from the Appropriate Authority (hereinafter referred to as and subject to an extension of six (6) months from the expiry of the Approval Period

(b)

24.1 Vacant possession of the Parcel shall be delivered to the Purchaser in the manner stipulated in Clause 25 herein within forty-two (42) calendar months from the date the Building Plan Approval is obtained or date of this Agreement, whichever is later.

24.2 If the Vendor fails to deliver vacant possession of the Parcel in the manner stipulate in Clause 25 herein within the time stipulated in sub-clause 24.1, the Vendor shall be liable to pay to the Purchaser liquidated damages calculated from day to day at the rate of ten per centum (10%) S/N hjo42hGtuk6HxnAKbwlk8w per annum on such portion of the Purchase Price as the Purchaser shall have paid to the Vendor from the expiry date of the delivery of vacant possession in sub-cause 24.1 until the date of notice from the Vendor to the Purchaser requesting the Purchaser to take vacant possession of the Parcel. Such liquidated damages shall be paid by the Vendor to the Purchaser and/or shall be set off from the outstanding amount due from the Purchaser to the Vendor upon the date of the Purchaser takes vacant possession of the Parcel.

(c) certifying that the construction of the Parcel has been practically completed in accordance thereof and provided the Purchaser having paid all monies payable under Clause 4 in accordance with the THIRD SCHEDULE hereto and all other monies due under this Agreement and the Purchaser having performed and observed all the terms and covenants on this part under this Agreement the Vendor shall let the Purchaser into possession of the Parcel.

25.2 Such possession shall not give the Purchaser the right to occupy the Parcel and the Purchaser shall not occupy the Parcel until such time as the Certificate of Completion and Compliance of the Parcel is issued.

25.3 Upon the expiry of foruteen (14) days from the date of a notice from the Vendor requesting the Purchaser to take possession of the Parcel, whether or not the Purchaser has actually entered into possession or occupation of the Parcel, the Purchaser shall be deemed to have taken delivery of vacant possession of the Parcel whereupon the Vendor shall cease to be responsible howsoever for any loss or damages to the Parcel and/or the fixtures and fittings thereon/therein. [22] entitlement to LAD is strictly governed by clause 24.2 read together with clause 25 of the SPA. Thus, the contractual date of handing over of vacation possession as well as the date of notice the Appellant requested the Respondents to take vacant possession of the office suites are that as calculated by the Appellant and accordingly found by learned JC. This is S/N hjo42hGtuk6HxnAKbwlk8w not disputed by the Respondents as seen from them not separately appealing against the same. [23] Be that as it may, it must be appreciated that the SPA is a bespoke contract which is not synonymous to the statutory standard form of sale and purchase agreement prescribed in the Housing Development (Control and Licensing) Act 1966 ( ). [24] Hence, the law and cases including that of PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeals [2021] 1 MLRA 506 (FC) that seem to be relied upon by the Respondents on the calculation of LAD are inapplicable here because the HDA that protects residential purchasers under that social legislation does not apply to commercial office suites purchasers. In other words, the SPA is not a statutory contract; hence the calculation of the LAD must strictly be based on the express provisions of the SPA. [25] As a result, this meant that the LAD claim sought by the Respondents in the Suit which is calculated based on contractual date of handing vacant possession of the units until the date of certificate of completion and compliance issued by the th March 2019 ( ) or receipt of keys of the respective units from the Appellant is untenable. [26] On this footing, we then review the first issue that the settlement letters made between the Appellant and the Respondents (except the 6th and 8th Respondents) respectively ( ) is not valid and void. S/N hjo42hGtuk6HxnAKbwlk8w [27] The Respondents (except the 6th and 8th Respondents) contended that the Settlement Agreement is void by reason of fraudulent misrepresentation because the LAD which are supposedly to be paid in 12 equal instalments were not honoured by the Appellant. According to them, the Settlement Agreement is a sham façade attempted to limit the Appellant liability to pay the LAD. Reliance is made by the Respondents on the case of Messrs Shahinuddin & Ranjit v. Ravichantiran Ganesan [2020] 1 LNS 1165 amounted to fraud when no truth or insufficient information or half-truth or untruth were fed to them. The Respondents (except the 6th and 8th Respondents) also asserted that they were induced to enter in to the Settlement Agreement with the promise that they will receive the LAD faster as well as actual possession of units faster too. But that never materialised. [28] The Appellant in rebuttal contended relying on the case of Oxbridge Heights Sdn Bhd v. Abdul Razak Mohd Yusof & Anor [2015] 2 CLJ 252(CA) that the Settlement Agreement is valid which has resolved the LAD issue between the Respondents (except the 6th and 8th Respondents) fully and finally. Moreover, according to the Appellant, the Respondents (except the 6th and 8th Respondents) had by conduct affirmed the Settlement Agreement by repeatedly chasing for payment of the LAD as agreed following Lim Ah Moi v. AMS Periasamy a/l Suppiah Pillay [1997] 3 MLJ 323 (CA). S/N hjo42hGtuk6HxnAKbwlk8w [29] From our objective review of the both the documentary and testamentary evidence adduced by the parties, we find that there is both the conflict over the calculation of the LAD payable as well as the inability of the Respondents to obtain possession, occupancy and use of their respective office suites (despite the issuance of the notice of vacant possession by the Appellant pursuant to the SPA) at the material time of making of the Settlement Agreement. [30] Upon our perusal of the Settlement Agreement, it is the plain and clear that the amount of payment of the LAD has been settled and agreed upon by the parties. Albeit not stated in the Settlement Agreement, it seems undisputed that the Appellant promised to hand over the office suites soonest but the Respondents could only occupy the suites several years later after the CCC has been issued. [31] Additionally, the Appellant failed to pay according to the Settlement Agreement. [32] In the circumstances, we are of the view that there was no vitiating factor such as that of fraudulent misrepresentation that justified avoiding the Settlement Agreement. The Settlement Agreement are thus valid. The cause of action of the Respondents (except the 6th and 8th Respondents) ought instead to be to sue the Appellant for a debt under their respective Settlement Agreement as well as for damages for breach of implied promise to enable the Respondents (including the 6th and 8th Respondents) to occupy and use their respective office suites within reasonable time. We are mindful that there were disputes between the parties post the making of the Settlement Agreement between the parties including on the right to inspect the office suites, subsistence of patent S/N hjo42hGtuk6HxnAKbwlk8w defects therein and restriction of access thereto by the Appellant but these are peripheral matters that need not be dealt by us for purposes of this appeal. [33] We therefore find that the learned JC has been plainly wrong for having declared that the Settlement Agreement is invalid and void. [34] That notwithstanding, we noted that the learned JC however adjudged that the Appellant pay LAD to the Respondents based on the provisions of the SPA as calculated by the Appellant (as stated in the Settlement Agreement for the Respondents (except the 6th and 8th Respondents)) but not that as calculated by the Respondents. This is correct; see paragraphs [22] to [26] above. [35] However, the learned JC did not consider the miscellaneous charges claimed by the Appellant which have been agreed by the Respondents (except the 6th and 8th Respondents) in the Settlement Agreement too. We find that the miscellaneous charges must be deducted from the LAD payable by the Appellant to the Respondents (except the 6th and 8th Respondents). Since this has been agreed to by the parties, we find that the learned JC has again been plainly wrong for not having accounted for it. [36] Next as to the issue of overpayment of the sum of RM25,394.00 received by the Appellant from the 6th Respondent to the Appellant, the Appellant primarily contended that the learned JC fell into error by requiring the Appellant to disprove the payment was not received by the Appellant whereas it should have been the 6th Respondent proving that the payment was indeed made. S/N hjo42hGtuk6HxnAKbwlk8w [37] Upon our objective review, we firstly find that the burden of proof plainly lies on the 6th Respondent to establish that his alleged overpayment was made to the Respondent and not the Respondent to disprove not having received it; see s. 101 Evidence Act 1950 and the case of Yeohata Machineries Sdn Bhd & Anor v. Coil Master Sdn Bhd & Ors [2015] 6 MLJ 810 (CA) as well as Konwa Industrial Sewing Machine (M) Sdn Bhd v. Kang Thien Tz [2015] CLJU 950. [38] Furthermore, we find from the documentary and testamentary evidence adduced by the parties, the 6th Respondent contended that the overpayment formed part of her payment of RM76,774.00 made at the request of the Appellant. However, the payment by the 6th Respondent was made to a Jeffery Liaw Chee Chung ( ) who claimed that he made the onward payment to Daniel Neil Daniel who is the agent of the Appellant. The 6th Respondent also claimed that she wrote an e-mail to Daniel informing him that she had already paid Jeffery. She produced a letter from Mammoth Empire Land Sdn Bhd to acknowledge receipt of the aforesaid payment of RM76,774.00. [39] However, the Appellant denied receiving the sum of RM76,774.00 and the learned JC faulted the Appellant for not producing the statement of accounts to establish the non-receipt of the payment. [40] Upon our objective review, we find that the learned JC has also been plainly wrong in that, besides having placed the wrong burden of proof on the Appellant, the learned JC did not judicially appreciate the totality of the evidence adduced; thus, culminating in faulty reasoning and conclusions made therefrom. We noted that the letter of acknowledgement of receipt on payment is from Mammoth Empire Land Sdn Bhd and not the S/N hjo42hGtuk6HxnAKbwlk8w Appellant. Moreover, the Appellant has established that the aforesaid letter is forged and fraudulently issued because it is not authorised by the directors of Mammoth Empire Land Sdn Bhd. In this regard, it is crucial that Daniel ought to have been called by the 6th Respondent but this was not done to clear the air. This, in our view, justified the invocation of adverse inference on the 6th Respondent; see s. 114(g) Evidence Act 1950 and the case of Juahir bin Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627 (CA). Finally, the Appellant has sought from the 6th Respondent the receipt of the alleged payment of RM76,774.00 but this could not be produced by her. [41] In the premises, appellate intervention is thus warranted and the order of repayment of RM25,394.00 must be set aside. [42] Finally, on the last issue of interest and cost awarded, these are discretionary orders of the learned JC which we do not generally intervene unless they are proven to be outrageous. [43] Upon our review, we find that the interest awarded on the judgment sum is normal within the powers exercisable by the learned JC pursuant to s. 11 of the Civil Law Act 1956 and Order 42 rule 12 of the Rules of Court 2012. [44] As for costs, we find the learned JC correctly awarded costs to the Respondents notwithstanding that the amount awarded is substantially lower that the amount claimed by the Respondents in the Suit because there is no offer to settle made by the Appellant pursuant to Order 22B of the Rules of Court 2012 since the filing of the Suit by the Respondents. S/N hjo42hGtuk6HxnAKbwlk8w CONCLUSION [45] For the foregoing reasons, we find merit in the appeal. The appeal is therefore allowed to the extent that the Judgment is varied as follows only:

(i) Paragraph 1 is deleted.

(a) RM38,833.90;

(b) RM38,571.50;

(c) RM32,501.96;

(d) RM40,852.87;

(e) RM56,032.35;

(f) RM55,710.37; and

(g) RM35,110.65.