1.3. “In claiming for damages and/or liquidated ascertained damages from the Defendant, is the Plaintiff required to prove his actual loss in accordance with the Federal Court 3 decision in the case of Selva Kumar a/l Murugiah v Thiagarajah a/l Retnasamy [1995] 1 MLJ 817?” (“3rd Proposed Question”); 2) In the event the Court answers any or all of the Proposed Questions in the affirmative i.e. in favour of the Defendant, then the Court should make the appropriate orders and/or directions to either dismiss the Plaintiff’s claim against the Defendant summarily or set the action down for the trial on any remaining issues (if any) arising from the determination of the Proposed Questions; and 3) That the costs of this application be paid by the Plaintiff to the Defendant. [2] Grounds for this application are as follows:- a) The Proposed Questions are suitable for determination without the full trial of the action; b) The Defendant is exempted from the purview of the Housing Development (Control and Licensing) Act 1966 on the basis that the Defendant was building service apartments and not housing development; 4 c) The Defendant has been formally exempted from the Housing Development (Control & Licensing) Act 1966 through a letter dated 23.10.2007 from Licensing and Advisory Services Division of the Ministry of Urban Wellbeing, Housing and Local Government and it was confirmed by the Housing Development Licensing Division of the National Housing Department through a letter dated 15.1.2009 and it was subsequently gazetted by the Ministry of Urban Wellbeing, Housing and Local Government on 3.2.3009 following which the Defendant was then identified as an exempted property developer; d) If the Housing Development (Control & Licensing) Act 1966 is not applicable, the provisions of the Contract Act 1950 would apply to the Sale and Purchase Agreement specifically section 56(3) which requires notice of intention to claim compensation for loss to be given before such compensation can be claimed; and e) The Law requires that the party complaining of the breach must first prove its actual loss. 5 BRIEF FACTS OF THE CASE Plaintiff’s claim [3] In this Suit filed by the Plaintiff against the Defendant, the Plaintiff claims for the following :- a) A Declaration that the Defendant is in breach of contract to deliver Vacant Possession within 48 months from the date of the Sale and Purchase Agreement; b) Specific Performance for the Defendant to deliver Vacant Possession within 14 days from the date of this Order together with the Certificate of Practical Completion and Certification of Fitness for Occupation; c) Damages for the loss of use, breach of contract and liquidated ascertained damages together with interest; and d) Cost to be borne by the Defendant. [4] The Plaintiff entered into Sale and Purchase Agreement dated 4.3.2008 (“SPA”) with the Defendant for the sale and purchase of a service apartment unit identified as parcel No. A28-08, Level No. 28, Unit No. 08, Type E (“the said Unit”) within the development area built by the Defendant known as “The Crest Jalan Sultan Ismail” for a total purchase price of RM768,300.00. 6 [5] The said Unit was supposed to be completed and vacant possession to be delivered within 48 months from the date of the SPA. [6] However, the Defendant was in breach of the said SPA when the Defendant failed to complete and deliver the said Unit within 48 months from the date of the SPA i.e. on 5.3.2012 as the Certificate of Occupation was only issued on 16.10.2017 and notice of delivery of vacant possession was issued on 1.11.2017. [7] Therefore, the Plaintiff pleads that the Plaintiff has the right to claim for Liquidated Ascertained Damages for the loss attributed to the late delivery of vacant possession of the said Unit by the Defendant to the Plaintiff. DECISION OF THE COURT [8] Having perused all the cause papers filed in the Defendant’s application, and after considering the submissions by all the parties, the Defendant’s application is dismissed with costs of RM3,500.00 to be paid by the Defendant to the Plaintiff. The reasons for dismissing the Defendant’s application are set down below. [9] Going through the affidavits and the relevant documents filed in the application by the Defendant, the Court is of the opinion that the 7 Proposed Questions raised by the Defendant are not suitable for determination without the full trial of the action. This action cannot be resolved or determined by way of affidavit evidence through interlocutory application as there are material disputed facts involved in this action. [10] The main issue relating to the Proposed Questions raised by the Defendant is whether the Defendant as a property developer is exempted by the ministry of Urban Wellbeing, Housing and Local Government (“the Ministry”) from the purview of the Housing Development (Control & Licensing) Act 1966 (“the Act”) and the Court is of the opinion that this issue can only be answered by the presence of the personnel of the relevant body, i.e. the Ministry concerned. [11] The basis for the Defendant’s application here is the letter dated 23.10.2007 issued by the Licensing and Advisory Services Division of the Ministry (refer Exhibit DSA-2 in Encl 17) where it states: “2. Sukacita dimaklumkan bahawa Kementerian ini telah meneliti permohonan tuan dan bersetuju untuk memberikan pengecualian sepenuhnya daripada Akta Pemajuan Perumahan (Kawalan dan Pelesenan) 1966 (Pindaan) 2007 8 kepada Tetuan Crest Worldwide Resources Sdn Bhd dengan syarat-syarat berikut: i) Pengecualian hanya diberikan kepada pemaju perumahan di atas tanah Lot 134, Bandar Kuala Lumpur, Daerah Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur bagi 1 blok pangsapuri servis 44 tingkat yang mengandungi 278 unit rumah; ii) Tempoh pengecualian hanya diberi mulai 12 April 2007 sehingga pemaju mendapat Perakuan Layak menduduki (CFO); iii) Kelulusan ini adalah tertakluk kepada pewartaan yang akan dimuktamadkan oleh Jabatan Peguam Negara.” [12] Going through the said letter, exemption by the Ministry that the Defendant was referring to, from the observation of the Court come with conditions attached to it where it states that the confirmation of the exemption will only be after it is gazetted, and the exemption was gazetted on 3.2.2009. 9 [13] The Plaintiff and the Defendant had entered into the SPA on 4.3.2008 but the exemption given was only gazetted on 3.2.2009 i.e. after the date of the SPA. Therefore, the issue whether the Defendant as a property developer is exempted by the Ministry at the time the SPA was entered, cannot be decided summarily especially when the Plaintiff alleged that the exemption was without the Plaintiff’s knowledge. [14] Referring to the SPA, it clearly shows that the Defendant was a Property Developer and no amendments or notice to show that the status of Defendant from Property Developer has been changed to the Exempted Property Developer. [15] In the case of Dr ST Singam v Lee Siew Leong [2007] 1 MLJ 1 the Court of Appeal held:- “(3) When a document or an instrument, on its production, appears to have been altered, it is the general rule that the party offering it in evidence must explain the alteration. Any material alteration in a written document or instrument, whether made by a party or a stranger is fatal to its validity, provided it was made after the document was executed and without the privity of the party to be effected by it and with the additional 10 proviso that the alteration was made while the document was in the possession or in the control or the supervision of the party seeking to enforce it. As such the law on the material alteration of a document or deed is well settled in that a party who has the custody of an instrument or document made for his benefit is bound to preserve it in its original state and any material alteration of it will vitiate the instrument, if it was done without the consent of the other party. As that had actually taken place in this case, the unilateral alteration in itself is sufficient to enable the landlord to treat D9 as being non-binding on him (see paras 40–41).” [16] Going through the affidavits of the parties, it can be seen that the Plaintiff has never agreed to waive his rights to claim for the Liquidated Ascertained Damages nor there any notice sent by the Defendant to the Plaintiff to inform about the changes of the Defendant’s status from Property Developer to the Exempted Property Developer. [17] The Plaintiff’s claim is based on Clause 24 of the SPA and if the Defendant failed to show any proof of a notice sent by the Plaintiff to the Plaintiff about the changes of the Defendant’s status from 11 Property Developer to the Exempted Property Developer, Section 56(3) of Contract Act 1950 (“CA 1950”) in the opinion of the Court, does not apply as it is not relevant in the Plaintiff’s claim. [18] In objecting to the Defendant’s application, the Plaintiff refers to the case of Sentul Raya Sdn Bhd v Hariram Jayaram & Ors and Other Appeal [2008] 4 CLJ 618 where the Court of Appeal held: “(1) Section 56(3) CA deals with contracts generally. The contract in the present case was a special contract. It was prescribed and regulated by statute, i.e., the Housing Development (Control and Licensing) Regulations 1989 ('Regulations'). While parties in normal cases of contract have freedom to make provisions between themselves, a housing developer does not enjoy such freedom. Hence, parties to a contract in Schedule H of the Regulations cannot contract out of the scheduled form. Terms more onerous to a purchaser may not be imposed. So too terms imposing additional obligations on the purchaser may not be included in the statutory form of contract. It followed that the requirement of notice under s. 56(3) CA that was an additional obligation to the detriment of the purchaser could not be imposed on the 12 respondents in light of the statutory scheme under the Housing Development (Control and Licensing) Act 1966 ('HDCLA'). That was evident in the language of cl. 22(2) of the sale and purchase agreement prescribed in Schedule H of the Regulations. On its proper construction, the clause makes a housing developer immediately liable to a purchaser in liquidated damages once the date of completion passes. Put differently, the said clause excludes the operation of s. 56(3) CA. This is another reason for holding that s. 56(3) CA does not apply in cases falling under the HDCLA…” [19] To support this contention, the Plaintiff also refers to the case of Chinaya Ganggaya v Sentul Raya Sdn Bhd [2008] 3 CLJ 23 where the High Court held that:- “(1) Since the agreement is not an ordinary contract but is substantially governed by reg. 11 and Schedule H of the Housing Developers Regulations, it follows that cls. 7, 22, and 24 of the agreement are not mere terms of a contract: they are also statutory provisions since they are actually provisions of Schedule H of the Housing Developers 13 Regulations that had been imposed by law upon the parties. (para 16)