whether the purchasers’ ONLY REMEDY IN LAW is to sue the developer? The answer is in the positive.” (Emphasis added.) [33] The Federal Court also fully adopted the Court of Appeal’s decision in Loh Chiak Eng & Anor v Lok Kok Beng & Ors [2013] 1 MLJ 27 that an architect does not owe any duty of care to ensure that a CFO be obtained without undue delay under the SPAs between the Developer and purchasers: “While an architect may be made liable for faulty design or negligent supervision resulting in personal injury or inherent defects or damage to property, there is NO AUTHORITY to support the contention made in the present case that the appellants, as the architects, owed the respondents, as purchasers of the industrial buildings, A DUTY OF CARE TO ENSURE THAT THE CFOs WERE OBTAINED WITHOUT UNDUE DELAY.” (Emphasis added.) [34] The Court of Appeal even went as far as finding that the purchasers cannot simply disguise their claim for delays under the SPAs by alleging negligence against the architect: “Therefore, should there be any undue delay in obtaining the CFO, the plaintiffs'/purchasers’ only remedy, in our view, is to sue the developer for breach of contract or for negligence, and NOT TO SUE THE DEFENDANTS/ARCHITECTS, who have no contractual relationship with the plaintiffs/purchasers, BY ATTEMPTING TO INVOKE THE LAW OF NEGLIGENCE.” (Emphasis added.) [35] The precedents above (inclusive of the Federal Court) have in finality limited the scope of responsibility and duty of an architect to NOT include the duty to certify / to complete construction / to deliver VP within the developer’s or contractor’s contractual period. In the gross absence of duty of care, it is only natural that all other elements to prove negligence shall fail. Since the Architect does not owe such duty of care, there can be no breach of duty nor any damages consequent to a breach by the Architect. [36] Succinctly speaking, it is not at all the Architect’s duty to ensure whether Form F1 or even Form F is the appropriate CCC for a valid delivery of VP under the SPAs. Whether or not the delivery of VP is valid or not is a matter totally privy only between the Plaintiffs and the Developer. To extend the Developer’s duty over to the architect is plainly against public policy and would impede the partial and professional duty of an architect to certify the work progress in compliance with the relevant laws and by-laws. [37] In any case, the Plaintiffs’ complaint against the Architect was neither regarding the Architect’s drawings, plans, or even the safety or integrity of the building. Nor was it the Plaintiffs’ case to dispute the validity of the Architect’s issuance of mere Form F1 (partial CCC / CFO) as the Plaintiffs also claim that the said Project has not been fully completed. Instead the Plaintiffs’ dispute was that it was improper for the Developer to deliver VP on the basis of Form F1 (which upon all of the scintillating precedents above, is a contractual issue totally irrelevant to the Architect). [38] The Federal Court in Loh Kok Beng in clear terms held that firstly, the Court must acknowledge and consider the contractual matrix between the developer and purchasers which have clearly codified their respective rights and liabilities. Secondly and most pertinently, ANY REMEDY OR RIGHT SPECIFICALLY UNDER THE SPAs CANNOT BE MOUNTED AGAINST THE ARCHITECT FOR ABSENCE OF PRIVITY OF CONTRACT. Doing so would tantamount to wrongful rewriting the terms of the SPAs: “we agree with the Court of Appeal that the court must give consideration to the presence of a contractual matrix between the developer and purchasers which clearly define the rights and liabilities of parties and their relative bargaining positions. THERE CAN BE NO ACTION AGAINST THE ARCHITECT IF THE REMEDY ASKED FOR IS SPECIFICALLY PROVIDED FOR IN THE CONTRACT. Otherwise, it has the effect of rewriting the contractual terms. Such claims must be dismissed on grounds of policy.” (Emphasis added.) [39] Similar to the present case, the Plaintiffs’ claim for LAD for alleged delay in delivering VP is contractual under the SPAs. The Plaintiffs’ claim for negligence against the Architect was also predicated upon the Architect’s failure to comply with a term under the SPAs which allegedly only accepts Form F (Full CCC / CFO) as valid basis for delivery of VP. [40] Thus, since all of the Plaintiffs’ cause of action stems from the terms of the SPAs, then it clearly gleans that the Plaintiffs’ claim is contractual in nature and is only privy between contracting parties (being the Developer and the purchasers) [41] In fact, the Architect’s duty of certification is NOT SUBJECT TO ANY CONTRACT but instead is subject to the relevant governing laws, by-laws, guidelines and approvals by the local authority. In fact, the Lembaga Arkitek Malaysia (“LAM”) vide its guideline in General Circular No 2/2010 clearly stipulates that the architect’s duty to issue Form F1 is subject to the approval of the relevant local authorities: “Dengan itu Borang F1 hanya boleh dikeluarkan bagi bahagian / bahagian-bahagian yang telah dijadual mengikut kebenaran daripada pihak berkuasa tempatan. Orang Utama yang Mengemukakan tidak boleh menggunakan budi bicaranya sendiri untuk mengeluarkan Borang F1. Borang F akan dikeluarkan bagi keseluruhan bangunan apabila semua bahagian telah siap kelak.” [42] And rightfully so, upon the approval of the local authorities in Forms G1 to G21 it was legally incumbent upon the Architect to issue Form F1 (Partial CCC / CFO). The LAM in General Circular No 2/2010 also endorses and clearly admits that Form F1 (Partial CCC / CFO) is a legally valid instrument to be issued in circumstances where specific portions of a project was completed ahead of other remainder portions: “Borang F1 bertujuan untuk memenuhi kehendak sebuah bangunan yang memerlukan mana-mana bahagian / bahagian-bahagian pembangunan untuk disiapkan mendahului yang lain. Contohnya ialah sebuah kompleks seperti pusat membeli-belah dengan menara kediaman atau komersial di atasnya” [43] In fact, it is plain and vivid that Form F1 is a valid instrument under the governing law of the Undang-Undang Kecil Bangunan Seragam Selangor (“UUKBSS”). By-Law 27(1) of the UUKBSS clearly stipulates that Form F1 is a “Perakuan Kelayakan Menduduki Sebahagian” or a partial CFO / CCC: [44] Furthermore, By-Law 27(2) of the UUKBSS goes as far as to stipulate that Form F1 must be in effect until the remainder portion of the Project is later completed and that any portion already certified with Form F1 is already fit for occupation: “Suatu perakuan kelayakan menduduki sebahagian apabila dikeluarkan hendaklah berkuatkuasa berterusan sehingga keseluruhan bangunan itu siap. Tiada seorang pun boleh menduduki atau membenarkan diduduki mana-mana bangunan atau mana-mana bahagiannya melainkan jika suatu…perakuan kelayakan menduduki sebahagian … telah dikeluarkan di bawah Undang-Undang Kecil ini…” [45] Thus, it is patently obvious that the Architect’s role in the issuance of Form F1 is entirely distinct and separate from the SPAs and is instead governed by clear governing laws and guidelines. Therefore, it is erroneous for the Plaintiffs to assume that the Architect’s role and duty to be one and the same with the Developer’s contractual duty to deliver VP within the contractual period under the SPAs. [46] Much guidance can be gleaned from the recent decision in Chin Kok Woo & Ors (suing in their personal capacity and representing 19 resident unit buyers in the mixed development project known as ‘SkyPark @ Cyberjaya’) v Sky Park Properties Sdn Bhd & Ors [2022] 10 MLJ 153: “[37] Therefore, was it wrong for the third defendant to issue a Form F1 instead of Form F. I am of the opinion that the third defendant is entitled to issue a Form F1 in accordance with its duties under the Street, Drainage and Building Act 1974, Selangor Uniform Building By-Laws 1986 (‘the UUKBS 1986’). … [40] I find that the said defendant has produced the required Forms G1–G21 and all supported documents in exh SAS3. I find that the third defendant has shown that the said Form F1 was issued in accordance with statutory provisions and that they had acted lawfully in accordance with their obligations under the relevant statutory provisions. It is not for the plaintiffs to dictate the required form that should be issued by the architect, the third defendant, as that would be contrary to the statute and defeat the purpose of having him to exercise his duties to ensure that the project is safe and sound for occupation by the intended purchasers.” (Emphasis added.) [47] All of the above deliberations considered, we hereby answer the 1st issue in the NEGATIVE. The Learned JC was certainly wrong to find that the Plaintiffs had established a prima facie case of negligence and/or unlawful interference against the Architect for issuing a partial CCC in Form F1 instead of a full CCC in Form F. And since the Plaintiffs-Respondents had failed to prove a prima facie case, then the Learned JC should have allowed the Architect’s Striking Out Application. F. 2nd issue: WHETHER OR NOT THE LEARNED JC WAS CORRECT TO FIND THAT THERE WERE TRIABLE ISSUES AS TO THE INTERPRETATION OF THE SPAS AND AS TO THE PROPRIETY OF THE DELIVERY OF VP BY THE DEVELOPER BASED ON THE PARTIAL CCC IN FORM F1 [48] Since we have identified the proper privies of the SPAs for a dispute for LAD (being the Developer and the purchasers), we shall proceed to determine whether the Learned JC’s dismissal of the Developer’s Striking Out Application was proper or otherwise. [49] In essence, the Respondents-Plaintiffs are insistent that the entirety of the mixed and phased commercial Project must be completed before the Developer can appropriately deliver VP to the purchasers. The Learned JC was also somehow moved to ponder the Plaintiff’s insistence to the extent that the Learned JC found that there was a triable issue as to the proper interpretation of the terms of the SPAs (particularly the terms governing the manner and method in which VP shall be delivered). [50] In the earlier part of this judgment we have already identified the unambiguous and clear terms under the SPAs which govern the delivery of VP. Contrary to what the Learned JC and the Plaintiffs’ believed and insisted, we are of the view that the SPAs in clear and unequivocal terms prescribes the Partial CCC in Form F1 (for the completion of specific “Parcels”) as the contractual threshold in which the Developer may deliver VP. [51] It is a trite rule of interpretation that a contract must be read as a whole and no one term ought to be read in isolation from the other prevailing terms of a contract. Thus, the manner of delivery of VP under Clause 25.1 of the SPAs must necessarily be read together with the definitions as per Clause 1.1 of the SPAs. [52] Thus, it was clear and vivid that the subject matter that was contractually agreed under Clause 25.1 of the SPAs to be delivered VP was the “Parcel” and NOT PROJECT. Since the word used was “Parcel”, the Plaintiffs cannot simply ascribe their own assumptions so as to the meaning of the word, ‘Parcel’. This was not a case where the contract was vague which would have necessitated a deeper investigation as to the extraneous facts surrounding the contract. Instead, the word “Parcel” had been explicitly defined under clause 1.1 (o) of the SPAs: “Parcel” means ONE of the unit situated in the Units and more particularly described in Part II of the SIXTH SXHEDULE hereto. [53] And Part II of the Sixth Schedule of the SPAs all describes the specific unit that a given purchaser had purchased from the Developer. For instance: [54] The specificity of the subject matter and the terms of the SPAs do not at all leave any room for ‘innovative’ or ‘creative’ interpretation as insisted by the Plaintiffs. If the parties have intended that the individual Parcels can only be delivered VP together with all other phases and full features of the completed Project, then the SPAs must necessarily reflect as such (which in this case, all the SPAs certainly do not reflect so). And any insistence of this contention would only serve to unlawfully and unjustly rewriting the terms of the SPAs, which the Court should never condone. [55] In fact, as astutely highlighted by the Learned Counsel for the Architect, clause 20.4 of the SPAs had already mutually anticipated the instance where the individual Parcels to be completed ahead of other parts or phases of the Project. “The Purchaser hereby expressly acknowledges and agrees that by reason of the Parcel forming part of the overall development of the Project, construction and OTHER WORKS shall continue to be carried out on at and to OTHER PARTS of the Project EVEN AFTER THE ISSUANCE OF CERTIFICATE OF COMPLETION AND COMPLIANCE TO THE PARCEL…” [56] This clause in vivid terms effectively entitles the Developer to: a. Deliver VP based on partial CCC in Form F1 for the specific Parcels ahead of the completion of the other parts or phases of the Project; and b. Continue work and construct other parts of phases of the Project after the specific Parcels were already delivered VP based on partial CCC in Form F1. [57] Considering the glaring simplicity and clarity of the terms of the SPAs, it was utterly perplexing that the Learned JC would still erroneously find that the case still required a Full Trial to further examine the proper interpretation of the terms of the SPA. [58] This same exact finding had already been affirmed by the Court of Appeal in the case of Tham Wai Keat & Ors v Cosmopolitan Avenue Sdn Bhd & Anor [2023] MLJU 1007 which also involved the very same Project as in this Appeal. The High Court there (also affirmed by the Court of Appeal via Appeal No. B-02(IM)(NCvC)- 1384-07/2021) had similarly found that it had never been the parties’ intention that the respective individual Parcels can only be delivered VP upon the full completion of the entire Project: “[31] Pursuant to clause 20.4, it is abundantly clear the issuance of Borang F1 in respect of the Parcels ie Perakuan Siap dan Pematuhan Sebahagian is in accordance with the terms and condition of the sale and purchase agreements. It appears that the Plaintiffs claim that the 2nd Defendant has contravened prescribed law is misconstrued. [32] Consequentially the issuance of a partial completion ie Borang F1 by the 2nd Defendant cannot be said to be in breach of the 2nd Defendant’s duty to the Plaintiffs. It cannot also be said the issuance of the Borang F1 has induced the 1st Defendant to deliver vacant possession prematurely as issuance of Borang F1 in respect of the parcels is permissible under the bye-laws. [33] Pursuant to clause 20.4 of the SPAs, the Plaintiffs have contractually agreed that even after the issuance of the CCC in respect of the Parcels (which entitled the Plaintiffs to occupy their Parcels), construction works of the other parts of the Project shall continue until completion. The intention of the parties is clear - the Plaintiffs’ occupation of the Parcels after the issuance of the CCC is to a certain extent parallel with the constructions carried out for the other components of the Project. [34] As such it was never intended for the delivery of vacant possession of the Plaintiffs’ Parcels to be conditional upon the issuance of the CCC in respect of the whole Project. Had that been the intention of the parties, clear words to that effect would have been incorporated in the said provisions. This is especially so because the Plaintiffs’ argument if accepted would be detrimental to the 1st Defendant as it would attract massive sum of LAD due to the Project being a large-scale development project to be completed in phases”. (Emphasis added.) [59] The same sentiment was yet again echoed in Quah Eng Hai & Anor v Cosmopolitan Avenue Sdn Bhd & Ors [2019] 8 MLJ 194 where the High Court (affirmed by the Court of Appeal via Appeal No. W-02(IM)(NCvC)-1193-06/2018) also dealt with a clause similar to Clause 20.4 of the SPA here where the parties have already mutually anticipated that the purchasers’ respective parcels can be completed ahead of other parts of the entire Project (partial CCC). Here the Court had allowed an application for the purchasers’ claim to be struck out: “[28] … It is the both the first and third defendants’ case that the unit purchased by the plaintiffs has been completed. In this regard, it is my finding that the plaintiffs’ definition of the ‘property’ which is to include both the unit purchased by the plaintiffs and the common area is nowhere to be found in the SPA. Instead, under the SPA, the unit purchased by the plaintiffs is described as ‘parcel’ and that the parcel purchased is part of the project. [29] Having taken note of the first defendant’s defence that the plaintiffs parcel was indeed completed when the notice of vacant possession dated 2 October 2015 was issued and that the part which has yet to be completed at the material time is the common property, it is my finding that under cl 20.4 of the SPA, the plaintiffs had expressly acknowledged and agreed that by reason of the unit purchased forming part of the overall development of the project, construction and other works shall continue to be carried out on, at and other parts of the project even after the issuance of the certificate of completion and compliance to the plaintiffs’ unit. In light thereof, I take the view that the plaintiffs’ allegation that the property was not completed when the notice of vacant possession was issued is rather mischievous.” (Emphasis added.) [60] Another High Court decision (upon the very same Project in this Appeal) which shared the same sentiment was Cosmopolitan Avenue Sdn Bhd v Thien Kim Keong & Ors and another case [2021] MLJU 720, albeit the High Court here referred to the partial CCC under the SPAs to be the CPC while the full CCC to be the CCC. “[32] Contrary to the contention of the Plaintiffs, the issuance of the CCC is not a pre-requisite for delivery of vacant possession. Both CPC and CCC are distinct certificates for different purposes under the SPA. This is made clear by clause 25.2 which expressly state that although possession is given, it does not to be equated with the right to occupy. The Plaintiffs can only occupy when the CCC is issued. … [34] The terms of the SPA are clear and unambiguous. The relevant date for delivery of vacant possession is the date of giving notice of issuance of CPC. The right to occupy and issuance of CCC is irrelevant to the date for delivery of vacant possession. As the notices were given before the due date for delivery of vacant possession, no issue of imposition of LAD arises. [35] In view of this, the claim is both frivolous and vexatious, and an abuse of the court’s process. A trial is unnecessary, and the case can be disposed of summarily.” (Emphasis added) [61] At this juncture, it is already obvious that the Learned JC had erred in finding that there were triable issues necessitating a trial. Further negating the Plaintiffs’ claim beyond salvation was the fact that a large majority of the purchasers had already entered into Full and Final Settlement Agreements in which they were already paid LAD (upon which they agree to no longer have any claims against the Developer under the SPAs). [62] Considering the Settlement Agreements, the Plaintiffs in truth had already put the matter of LAD to final rest and conclusion. It would only be gravely unjust to allow the Plaintiffs to re-litigate the same exact matter that the Plaintiffs have unequivocally laid to rest. We refer to a recent decision by SM Komathy Suppiah J (now JCA) in the case of Chua Chong Poh & Ors v Kingsley Hills Sdn Bhd & Anor [2020] MLJU 1452 in which the Her Ladyship had struck out a claim by 47 purchasers for LAD considering that the same purchasers had already entered into Settlement Agreements and were already paid LAD under the same settlements: “[27] It was the defendants’ contention that the claim was legally and factually unsustainable as the plaintiffs are bound by the settlement agreements. It was strenuously argued that plaintiffs are estopped from maintaining this action and/or raising illegality as a means of undermining the settlement agreements to claim for additional liquidated damages having affirmed the settlement agreements by accepting the payments made there under. … [29] In this case, I need only consider some brief and simple undisputed facts. The plaintiffs signed the settlement agreements with the defendants as there was delay in the delivery of vacant possession. They accepted the payments made to them due under the settlement agreements. They do not challenge the validity of the settlement agreements in this action. It is their case, that the provision in the settlement agreements that they shall have no further claims against the defendants does not preclude them from claiming for additional liquidated damages as the sale and purchase and construction agreements are tainted by illegality. [30] There are not many cases on this point. The general rule is that where parties have entered into a settlement agreement, the agreement alone will govern the relationship between the parties and a dispute could not be reopened unless the defendant has taken unfair advantage of the plaintiff.” (Emphasis added.) [63] The Court in Chin Kok Woo & Ors (suing in their personal capacity and representing 19 resident unit buyers in the mixed development project known as ‘SkyPark @ Cyberjaya’) v Sky Park Properties Sdn Bhd & Ors [2022] 10 MLJ 153 went as far as finding that a Settlement Agreement should necessarily prevail even as against a social legislation such as the Housing Development (Control and Licensing) Act 1966: “[75] I find that the plaintiffs cannot reopen the issue of liquidated damages again as they have either: (i) pursued the claims before the Housing Tribunals; and (ii) that they have settled their claims in full as seen in the settlement agreements executed and shown in the affidavit in support filed by the first defendant. [76] I am aware that the Housing Development (Control and Licensing) Act is a piece of social legislation and is intended to protect purchasers. However, this does not mean that this court should disregard any settlement agreement that was entered between the plaintiffs and the defendants that was entered into to finalise any liquidated ascertained damages claimed by the said plaintiffs. Such agreements were not specifically prohibited by legislation, and I therefore, find that the plaintiffs’ claims are frivolous and vexatious against the first defendant. [77] The sword of Justice cuts both ways. I am of the opinion that this court should not merely protect purchasers but should also prevent any attempt to reopen litigation that has been either litigated before a competent tribunal or settled amicably”. (Emphasis added.) [64] The Court in Tham Wai Keat & Ors v Cosmopolitan Avenue Sdn Bhd & Anor [2023] MLJU 1007 even expanded on the same principle in finding that a plea of non est factum (or that the purchasers were ‘unaware’ of the nature and consequence of the Settlement Agreement) cannot nullify the validity of the Settlement Agreements that the parties had unequivocally entered into: “[36] It is the Plaintiffs’ contentions that when the 43 Plaintiffs accepted the LAD from the 1st Defendant, they were not aware that they had abandoned or waived their claims for any further LAD. The 43 Plaintiffs are therefore not estopped from claiming further LAD. It is this Court’s considered view such contention is flawed for the following reasons. [37] Pursuant to the Settlement of Liquidated Damages For Late Delivery of Vacant Possession Plaintiffs signed by the 43 Plaintiffs, the said Plaintiffs have agreed that the sum of LAD they have agreed to accept shall be the full and final settlement of any sums and claims that the 43 Plaintiffs may have against the 1st Defendant in respect of the late delivery of vacant possession of the Plaintiffs’ Parcels. [38] In the absence of fraud, the Plaintiffs are bound by the terms of the settlement agreement and cannot resile from their promise they made to the 1st Defendant ie that the LAD accepted by the 1st Defendant constitute a full and final settlement of the 43 Plaintiffs’ claim.” (Emphasis added) [65] Thus, even if we were wrong on the interpretation of the SPAs (as to the manner and method of VP delivery), it remains inevitable that the Plaintiffs’ claim should still be struck out as the Plaintiffs should necessarily be estopped from raising the same issue of LAD which they had mutually and unequivocally settled with the Developer. [66] Considering all the aforementioned deliberations and findings, we hereby answer the 2nd issue in the NEGATIVE. The Learned JC was certainly wrong in finding that there were triable issues as to the interpretation of the SPAs and as to the propriety of the delivery of VP by the Developer based on the partial CCC in Form F1. G. OUR DECISION [67] We are of the view that there were resounding merits in both Appeal 1594 / Developer’s Appeal and Appeal 1654 / Architect’s Appeal and hereby allows both of the Appeals. The High Court’s decision to dismiss both the Developer’s Striking Out Application (enclosure 12) and the Architect’s Striking Out Application (enclosure 14) is hereby set aside. We accordingly allow both enclosures 12 and 14 and hereby strike out the entirety of the Plaintiffs-Respondents’ claims against the both Defendants-Appellants. [68] We also order costs of RM15,000.00 (here and below) for each of the Appeals (RM30,000.00 total) to be jointly and severally paid by the Respondents to the respective Appellants subject to allocator. [69] Lastly, we must state here that during the preparation of this grounds of judgment (GOJ), the Learned Chairperson of this panel, Kamaluddin bin Md. Said, JCA has since retired. I have forwarded the Draft of the GOJ to my Learned brother, Collin Lawrence Sequerah, JCA who has expressed his agreement with the Draft. Dated 23rd August 2024 SGD -------------------- (AZIMAH BINTI OMAR) JUDGE COURT OF APPEAL For the Appellants - (Cosmopolitan Avenue Sdn. Bhd.) Messrs. Justin Voon Chooi & Wing