Ekovest Capital Sdn Bhd v Chong Sew May (W-04B(NCVC)(W)-359-10/2025)

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: W-04B(NCVC)(W)-349-10/2025 ANTARA EKOVEST CAPITAL SDN BHD (NO. SYARIKAT: 199901011171 [486071-X]) (DAHULUNYA DIKENALI SEBAGAI “PROMPT CAPITAL SDN BHD”) …PERAYU DAN

1. TAN TIONG HWA (NO. K/P: 641103-10-5025)

2. LIM SWEE PEI (NO. K/P: 701013-05-5396) …RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Dalam Wilayah Persekutuan Kuala Lumpur, Malaysia Rayuan No: WA-12BNCVC-63-08/2021 Antara Ekovest Capital Sdn Bhd (No. Syarikat: 199901011171 [486071-X]) (dahulunya dikenali sebagai “Prompt Capital Sdn Bhd”) …Perayu Dan

1. Tan Tiong Hwa (No. K/P: 641103-10-5025)

2. Lim Swee Pei (No. K/P: 701013-05-5396) …Responden-Responden] 29/07/2026 12:06:59 W-04B(NCVC)(W)-359-10/2025 Kand. 28 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 (DIDENGAR BERSAMA DENGAN) DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: W-04B(NCVC)(W)-359-10/2025 ANTARA EKOVEST CAPITAL SDN BHD (NO. SYARIKAT: 199901011171 [486071-X]) (DAHULUNYA DIKENALI SEBAGAI “PROMPT CAPITAL SDN BHD”) …PERAYU DAN

1. CHONG SEW MAY (NO. K/P: 680827-10-5866)

2. CHONG CHEE SIEN (NO. K/P: 721015-14-5393) …RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Dalam Wilayah Persekutuan Kuala Lumpur, Malaysia Rayuan No: WA-12BNCVC-62-08/2021 Antara Ekovest Capital Sdn Bhd (No. Syarikat: 199901011171 [486071-X]) (dahulunya dikenali sebagai “Prompt Capital Sdn Bhd”) …Perayu Dan

1. Chong Sew May (No. K/P: 680827-10-5866)

2. Chong Chee Sien (No. K/P: 721015-14-5393) …Responden-Responden] **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 CORAM: AZIZUL AZMI BIN ADNAN, JCA. ONG CHEE KWAN, JCA. NADZARIN BIN WOK NORDIN, JCA. JUDGMENT OF THE COURT A. INTRODUCTION

1. The question at the heart of this appeal is a short one, although it is of some importance to the housing industry. A purchaser takes delivery of vacant possession. He is paid liquidated ascertained damages (“LAD”) for the developer’s delay, and he signs a letter recording that the payment is in full and final settlement of all his claims. Years later, decisions of the courts show that, had he fought the matter out, he would have recovered more. May he then come back and sue for the difference? Related questions arise as to the reach of the decision of the Federal Court in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd and other appeals [2024] 5 MLJ 897 (“Obata-Ambak”), the treatment of rebates in the computation of LAD, the application of PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60 (“PJD Regency”), and whether vacant **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 possession may validly be delivered on the strength of a Partial Certificate of Completion and Compliance (Borang F1).

2. The appellant, Ekovest Capital Sdn Bhd, is the developer of the ‘EkoCheras’ mixed development in Kuala Lumpur. The respondents bought two residential parcels in it, Parcel J-20-11 (“the 1st Parcel”) and Parcel J-27-01 (“the 2nd Parcel”). With leave granted on 27.8.2025, the appellant appeals against the decision of the learned Judicial Commissioner (“JC”) of the High Court at Kuala Lumpur dated 6.1.2025. That decision dismissed the appellant’s appeal in part, allowed the respondents’ cross-appeal in part, and awarded the respondents balance LAD together with interest and costs, thereby varying the decision of the learned Sessions Court Judge (“SCJ”) dated 27.7.2021.

3. Having heard learned counsel on both sides and considered the appeal records and the written and oral submissions, we were unanimously of the view that the appeal ought to be allowed. We set aside the orders of the courts below in so far as they awarded the respondents balance LAD, and we dismissed the respondents’ claims. These are our grounds. B. BACKGROUND FACTS

4. The facts are largely not in dispute and may be shortly stated. Before the EkoCheras project was marketed, the appellant applied to the Ministry of Housing and Local Government for an extension of time to deliver vacant possession. By a letter dated **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

18.10.2013 the Controller granted an extension (“the EOT”) which lengthened the completion period from thirty-six (36) months to forty-eight (48) months. The EOT therefore came before the respondents’ sale and purchase agreements were signed.

5. The respondents paid booking fees of RM10,000.00 for each of the 1st Parcel and the 2nd Parcel on 7.9.2013. The statutory sale and purchase agreements in the form prescribed by Schedule H of the Housing Development (Control and Licensing) Regulations 1989 (“the SPAs” and “the HDR” respectively) were executed on 16.12.2013 for the 1st Parcel and on 10.4.2014 for the 2nd Parcel. Clauses 25(1) and 27(1), as varied under the EOT, gave the appellant forty-eight (48) calendar months in which to deliver vacant possession and to complete the common facilities.

6. Notices of Vacant Possession dated 2.5.2019 were issued for both parcels. They were supported by a Partial Certificate of Completion and Compliance (Borang F1) of the same date (“the Partial CCC”) issued for the residential blocks, including Blocks J and H in which the parcels are situated. The project architect, Messrs KDI Sdn Bhd, had earlier certified the completion of the common facilities by a letter dated 20.12.2018. Vacant possession was deemed delivered on 16.5.2019. The full Certificate of Completion and Compliance (Borang F) for the development as a whole (“the Full CCC”) followed on 13.9.2019. The appellant’s architect (SD2) testified that the **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 residential blocks had been completed, and that the interval between the Partial CCC and the Full CCC was due to outstanding compliance matters, principally Bomba compliance, in the hotel block, which was the last phase of the development.

7. At or about the time vacant possession was delivered, the appellant paid the respondents LAD for each parcel and for the common facilities. The computation took the 48-month period as running from the dates of the respective SPAs. The respondents then signed settlement letters dated 16.5.2019 for the parcels and 27.6.2019 for the common facilities (collectively, “the Settlement Letters”). The material words are these: “…upon your receipt of the aforesaid sum, you unconditionally agree that this shall be in full and final settlement of any and all loss and damage… arising out of or in respect of the said Parcel and/or the common facilities. You further agree that you irrevocably waive and shall have no further rights or claims whatsoever against us… in respect of all matters regarding the said Parcel.”

8. The respondents took the keys to the parcels together with the settlement cheques, banked in and kept the money, and went into possession. It is not disputed that the payments were accepted and cashed without a word of protest, and that not a sen of them has ever been tendered back. **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

9. On 26.11.2019 the Federal Court delivered its decision in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals [2020] 1 MLJ 281 (“Ang Ming Lee”), holding that regulation 11(3) of the HDR did not empower the Controller to delegate the power to grant extensions of time modifying Schedule H. On 24.2.2020, some nine months after signing the Settlement Letters and three months after Ang Ming Lee, the respondents commenced the present action in the Sessions Court. They claimed, among other things, additional LAD on the footing that the EOT was invalid, that is to say computed on a 36-month completion period, and, in the alternative, balance LAD on other bases. C. THE DECISIONS BELOW

10. The learned SCJ allowed the respondents’ claims by her decision dated 27.7.2021. Her Ladyship held, in substance, that: (a) following Ang Ming Lee, the EOT was ultra vires regulation 11(3) of the HDR and therefore invalid; (b) the respondents did not have to challenge the EOT by way of judicial review; (c) the claims were not time-barred; (d) vacant possession was deemed delivered on 16.5.2019, with LAD to be calculated over a 36-month period from the dates of the SPAs; (e) the Settlement Letters did not bar a claim for further LAD; and (f) the appellant could not recover the rebate, which was a promotion voluntarily given. **Note : Serial number will be used to verify the originality of this document via eFILING portal 8

11. The appellant appealed to the High Court. Between the decision of the Sessions Court and the hearing of that appeal, the Federal Court delivered its decision in Obata-Ambak on 27.8.2024, which made it clear that Ang Ming Lee does not operate retrospectively so as to invalidate extensions of time granted before it was decided. The respondents accordingly abandoned their claim founded on the invalidity of the EOT. That was recorded by consent in the Order dated 6.1.2025, as clarified by the Consequential Order dated 28.4.2025: the EOT extending the completion period from 36 months to 48 months is not ultra vires the Housing Development (Control and Licensing) Act 1966 (“the HDA”) and is valid and binding on the respondents, and the appellant was obliged to deliver vacant possession and complete the common facilities within 48 months under clauses 25(1) and 27(1) of the SPAs.

12. That concession notwithstanding, the learned JC held that the respondents remained entitled to balance LAD, albeit on a recalculated basis. Her Ladyship held that: (a) applying PJD Regency, time for the computation of LAD began to run from the date the booking fees were paid, namely 7.9.2013, and not from the dates of the SPAs; (b) allowing the respondents’ cross-appeal, delivery of vacant possession supported only by the Partial CCC was invalid, so that LAD ran until the Full CCC was issued on 13.9.2019; (c) the claims were not time-barred, the cause of action having accrued upon vacant possession under clause 25(3) of the SPAs; (d) the Settlement Letters neither estopped the respondents nor otherwise stood in the way of the **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 claim; and (e) the appellant’s counterclaim for the rebate failed. On that footing Her Ladyship awarded the respondents balance LAD of RM50,107.32 (parcel) and RM16,808.72 (common facilities) for the 1st Parcel, and RM74,499.70 (parcel) and RM21,820.64 (common facilities) for the 2nd Parcel, with interest at 5% per annum from the date of filing of the writ and costs of RM15,000.00. D. THE ISSUES IN THIS APPEAL

13. The submissions before us covered the following issues, which we take in turn:

14. The principles governing appellate intervention are settled and need no elaboration. An appellate court will not ordinarily disturb findings of fact made by a trial court unless the decision is plainly wrong, or there has been no or insufficient judicial appreciation of the evidence occasioning an injustice [See: UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2010] 2 MLRA 668 (FC) (“UEM Group Bhd”) and Kompleks Perkayuan Kelantan Sdn Bhd v Tian Chuan Sen & Yang Lain [2020] 2 CLJ 781 (CA) (“Kompleks Perkayuan Kelantan”)].

15. The questions which decide this appeal, however, are of a different order. The legal effect of the Settlement Letters, the **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 construction of the SPAs, the reach of Obata-Ambak and PJD Regency, and the validity in law of a delivery of vacant possession supported by a Partial CCC, are all questions of law and of the construction of statutes and written contracts. On questions of that kind, an appellate court stands in the same position as the court of first instance and enjoys no lesser advantage [See: Ace Jerneh Insurance Berhad v Best Re (L) Limited [2015] 2 MLRH 377 (“Ace Jerneh Insurance”)]. We are accordingly entitled, and indeed bound, to intervene if the courts below have erred in law. F. LIMITATION AND THE REACH OF OBATA-AMBAK

16. It is convenient to begin with the appellant’s limitation defence, because the argument upon it frames the proper reach of Obata-Ambak. Learned counsel for the appellant submitted that, applying Obata-Ambak, the respondents’ causes of action accrued when the SPAs were executed on 16.12.2013 and 10.4.2014, with the result that the action filed on 24.2.2020 was caught by section 6(1) of the Limitation Act 1953.

17. We are unable to accept that contention, and to this extent the respondents are right. The limitation holding in Obata-Ambak was arrived at in a particular context. The purchasers there were, in substance, attacking the validity of clauses 25 and 27 of their own SPAs, terms to which they had agreed when they signed. It was in that setting that the Federal Court held, at paragraph [96], that the cause of action for such a challenge **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 accrued from the date of execution of the SPAs, that being the earliest point at which the claim could have been brought, or upon breach of the terms of the SPAs.

18. The claim before us is not of that character. The respondents no longer impugn the EOT or the 48-month completion period. Both are, by consent, valid and binding. What they claim is balance LAD for late delivery within the framework of the SPAs as they stand. Clauses 25(3) and 27(3) say in terms, and for the avoidance of doubt, that the cause of action to claim liquidated damages accrues on the date the purchaser takes vacant possession of the parcel and on the date the vendor completes the common facilities. Until the contractual period has run and delivery has been effected, there can be no breach, and no ascertainable period of delay. The Notices of Vacant Possession were dated 2.5.2019, and the action was commenced on 24.2.2020, comfortably within six years. The claims are therefore not time-barred. With respect, to read Obata-Ambak as an overarching limitation defence is to read that decision too widely.

19. It does not follow, however, that Obata-Ambak has nothing to say to this appeal, as the respondents would have it. Limitation was but one strand of that decision. The second strand, and for present purposes the decisive one, concerns what is to happen when purchasers have accepted LAD in full and final settlement upon delivery of vacant possession, and then seek, on the strength of later judicial developments, to reopen the position **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 and extract a further payment. Upon that question the Federal Court spoke in emphatic terms, and what it said applies to this appeal with full force. We explain why. G. THE SETTLEMENT LETTERS: A BINDING ACCORD AND SATISFACTION

20. We come to the central issue. In our judgment the learned JC fell into error in declining to give effect to the Settlement Letters. They are a valid and binding accord and satisfaction. They discharged the appellant’s liability for LAD in respect of the parcels and the common facilities, and they answer the whole of the present claim.

21. The facts bear repeating. By the time the Settlement Letters were signed, the appellant had performed its obligations to deliver vacant possession and to complete the common facilities, late though it was. The respondents’ claims to LAD had accrued and had crystallised. The appellant tendered payment computed in accordance with the SPAs as they then stood, that is, on the 48-month completion period running from the dates of the SPAs, which was the law as it was then understood and applied. In exchange, the respondents signed letters in the clearest of terms, recording the payment as being in “full and final settlement of any and all loss and damage” and “irrevocably” waiving “any further rights or claims whatsoever”. They accepted the payments and banked them in. They took **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 the keys and went into possession. They hold the money to this day.

22. That is an accord and satisfaction in its classic form. Section 64 of the Contracts Act 1950 permits a promisee to dispense with or remit, wholly or in part, the performance of the promise made to him, or to accept instead of it any satisfaction which he thinks fit. A compromise of an accrued claim, supported by payment which is accepted, binds according to its terms. The law leans in favour of upholding settlements. There is a public interest in finality and in disputes being laid to rest without litigation, and a party who has taken the benefit of a settlement will not be heard to approbate and reprobate. G1. The distinction between contracting out and post-breach compromise

23. The respondents’ principal answer, which found favour below, was that the right to LAD under a Schedule H contract is a statutory protection conferred by social legislation. A statutory SPA, it was said, cannot be contracted out of, varied or modified to the prejudice of house purchasers [See: Sentul Raya Sdn Bhd v Hariram Jayaram & Ors and other appeals [2008] 4 CLJ 618 (CA) (“Sentul Raya”)]. Any waiver of such protection must be proved by clear, unequivocal and compelling evidence of an informed decision [See: Hedgeford Sdn Bhd v Sri Gananatha Sivanathan & Ors [2018] 1 LNS 1497 (“Hedgeford”); Southville City Sdn Bhd v Lim Yee Chien & Ors [2019] 1 LNS 1477 **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 (“Southville City”); EUPE Bangsar South Development (JV) Sdn Bhd v Lam Sai Yih [2023] 1 CLJ 194 (“EUPE Bangsar South”); Leong Keng Chiang v Prema Bonanza Sdn Bhd [2021] MLJU 714 (“Leong Keng Chiang”)]. And in any event, it was said, there can be no estoppel against a statute [See: Loh Tina & Ors v Kemuning Setia Sdn Bhd & Ors and another appeal [2020] 7 CLJ 720 (CA) (“Loh Tina”)].

24. Properly understood, these propositions do not carry the respondents home. They run together two situations which are quite distinct in law.

25. The first is the prospective exclusion or dilution of a purchaser’s statutory rights which come in the form of terms in, or collateral to, the statutory contract which seek, before any dispute has arisen, to exclude, cap or vary what the prescribed form confers upon the purchaser. That is the mischief at which the rule against contracting out is aimed. The Schedule H form is prescribed by law. A developer has no freedom to impose terms more onerous than the scheduled form, and a device by which a purchaser is made, at the point of sale or during the currency of the contract, to sign away rights which the legislation confers upon him will not be given effect. Sentul Raya and the cases which follow it are directed at that mischief.

26. The second is the compromise of an accrued claim. This is a settlement reached after the developer’s breach has occurred and the purchaser’s cause of action for LAD has crystallised, by **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 which the parties resolve the quantum of an accrued money claim. Such a settlement varies nothing in the statutory contract. It takes the statutory rights as it finds them and disposes of the money claim arising from their breach. Nothing in the HDA or in the HDR forbids a house purchaser from compromising an accrued claim for LAD, any more than a plaintiff is forbidden to settle any other accrued statutory cause of action. If anything, the legislative scheme points the other way. The Tribunal for Homebuyer Claims constituted under Part VI of the HDA is to assist parties towards a settlement, and settlements reached may be recorded and take effect as awards. As the High Court put it in Tham Wai Keat & Ors v Cosmopolitan Avenue Sdn Bhd & Anor [2023] MLRHU 2428 (“Tham Wai Keat”), in the absence of fraud, plaintiffs are bound by the terms of a settlement agreement recording LAD accepted in full and final settlement, and cannot resile from their promise.

27. In truth, the distinction is not a novel one. It is the very distinction drawn by the Federal Court in Obata-Ambak itself. At paragraph [99], the Federal Court attached decisive significance to the fact that the purchasers there had “executed a full and final settlement when they accepted the payment of the LAD in 2017 from the developer”, and held that they “could have and should have raised the issue of the validity of clauses in the SPAs before signing the full and final settlement… which they failed to do so”. At paragraphs [173] to [177], the Federal Court held that purchasers who had accepted payment of LAD as a full and final settlement, and had received vacant possession, were **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 disentitled to remedies by reason of unconscionability, unjust enrichment and estoppel. The Federal Court could not have so held if, as the respondents contend, a full and final settlement of an accrued LAD claim were incapable in law of binding a house purchaser because the SPA is statutory in character. Carried to its logical conclusion, the respondents’ argument would mean that no LAD dispute under a Schedule H contract could ever be compromised. That cannot be right. It runs counter to authority, to the scheme of the HDA, and to the public interest in the finality of settlements. G2. Loh Tina distinguished

28. Loh Tina does not assist the respondents. The holdings at paragraphs [85] to [88] of that case, namely that the purchasers could not be estopped from pursuing rights “unlawfully taken away from them in breach of the HDA and the Regulations”, and that estoppel does not operate against a statute or a statutory form of contract, were made in a context where the developer had, without the Controller’s certification, unlawfully modified the period for delivery of practical completion. The estoppel there invoked was one deployed to perfect an unlawful deprivation of statutory rights.

29. This case is materially different in two respects. First, nothing has been unlawfully taken away from the respondents, or diminished. The EOT is, by the parties’ own consent recorded in the Consequential Order dated 28.4.2025, valid and binding, **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 and 48 months is the lawful contractual period. Secondly, the appellant does not invoke estoppel in order to defeat a subsisting statutory right. It relies on an accord and satisfaction which discharged an accrued monetary claim. The maxim that there is no estoppel against a statute is directed at attempts to render lawful that which a statute prohibits, or to enlarge powers or curtail rights in defiance of a statutory command. It has nothing to say about the ordinary compromise of an accrued private claim for money. Once that is appreciated, the respondents’ argument on waiver and statute loses its force. G3. The evidential objections

30. The learned JC accepted the respondents’ evidence, given principally through SP1, that they did not intend the Settlement Letters to operate as a waiver of their full entitlement, and that they signed because they would otherwise have been given neither the keys nor any payment. With respect, that evidence could not in law bear the weight placed upon it, for three reasons.

31. First, the Settlement Letters are written instruments and their terms are clear and unambiguous. A party’s uncommunicated reservations about what “full and final settlement” means are beside the point. A written contract is construed objectively, and a man who signs a document knowing it to contain contractual terms is bound by it whether or not he has read or fully appreciated it, absent any vitiating factor. SP1’s answer under **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 cross-examination that “settle can be so many meanings”, and his disagreement that the letters meant what they plainly said, was not admissible for the purpose for which it was led and could not in any event alter the objective meaning of the instruments.

32. Secondly, no case of duress, coercion or unconscionable procurement of the Settlement Letters was pleaded, and none was made out. The high point of the respondents’ evidence was that the keys and the money would not be released unless the letters were signed. But the simultaneous handing over of keys, payment and settlement documentation at vacant possession is the ordinary mechanics of completion. A developer who tenders payment of LAD in exchange for a discharge is not thereby applying illegitimate pressure. There was no protest at the time. Nobody signed under reservation. No complaint was made in the months that followed. Most tellingly of all, the settlement moneys were never tendered back, not even after the respondents had formed the view that they were entitled to more. A party who wishes to impeach a settlement on the ground of duress must move promptly and must not affirm the transaction by retaining its fruits. The respondents did the very opposite. They kept the money, kept the keys, occupied the parcels, and sued nine months later, when the legal landscape appeared, after Ang Ming Lee, to have shifted in their favour.

33. Thirdly, the line of authority requiring “clear, unequivocal and compelling evidence” of an informed waiver, following **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 Hedgeford, Southville City, EUPE Bangsar South and Leong Keng Chiang, must be read against the factual settings out of which it grew. Those were cases in which the LAD tendered was demonstrably an under-calculation of the purchaser’s entitlement as the law then stood, or in which the developer relied on a bare receipt to defeat rights the purchaser did not know had been infringed. In such a case the court is right to scrutinise whether the purchaser truly made an informed decision to forego a known entitlement. The position here is not the same. The LAD tendered in May and June 2019 was computed precisely in accordance with the SPAs as they stood and the law as it was then understood and applied, namely, a 48-month completion period, under an EOT then unimpeached and now conceded to be valid, running from the dates of the SPAs, in accordance with the then-prevailing understanding of the commencement date, PJD Regency not having been decided until January 2021. At the time of settlement there was no shortfall known, or capable of being known, to be waived. What the respondents gave up, objectively, was the ordinary litigation risk which every compromise carries, including the risk, which cuts both ways, that the law may afterwards develop in favour of one side or the other.

34. That last point deserves emphasis. A compromise is, by its very nature, an allocation of risk as to the facts and as to the law. A settlement of a genuine claim is not vitiated because a later decision shows that one party would have done better had he fought. Were it otherwise, no settlement would ever be safe, **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 and every development in the law would reopen every concluded compromise which touched upon it. The later decisions in Ang Ming Lee (as to the EOT, a point the respondents have abandoned), in PJD Regency (as to the commencement date), and in the Partial CCC line of cases (as to the terminal date) cannot retrospectively convert a payment which was full and final when made into a part payment. The Settlement Letters placed that risk upon the respondents, and gave them immediate and certain money in return. They must take the bargain as they made it.

35. For completeness, we do not accept the submission that the settlement sums were an under-calculation which of itself negates an informed waiver. On the law as it stood at the date of the Settlement Letters, the sums tendered were not an under-calculation at all. They were the full measure of the respondents’ entitlement as it was then understood. The “balance” now claimed exists only if later decisions are applied retrospectively to a concluded settlement, which is precisely what Obata-Ambak forbids. G4. Conclusion on the Settlement Letters

36. We therefore hold that the Settlement Letters constitute a complete accord and satisfaction and a full and final discharge of the appellant’s liability for LAD in respect of the parcels and the common facilities. The claims for balance LAD, whether the balance is generated by moving the commencement date back **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 to the booking fee date, or by moving the terminal date forward to the Full CCC, or by both, are claims “arising out of or in respect of the said Parcel and/or the common facilities”. They fall squarely within the words of the discharge and are precluded by it. The learned JC’s conclusion to the contrary was an error of law warranting appellate intervention. H. UNJUST ENRICHMENT

37. The respondents submitted that there is no unjust enrichment in their claim because, unlike the purchasers in Obata-Ambak, they are not pursuing LAD for the EOT period. They accept the 48-month period and ask only for the correct balance under the statutory SPA. With respect, the submission does not survive examination.

38. The Federal Court’s reasoning at paragraphs [173] to [177] of Obata-Ambak did not rest upon the arithmetic of the EOT period. Its foundation was broader. The purchasers had agreed to the completion period in their SPAs. Vacant possession was delivered. LAD was paid in full by the developer and accepted as a full and final settlement. The purchasers had suffered no loss beyond that for which they had been compensated. The developer had complied with the law as it stood at the material time and had not acted unconscionably. It was only after the legal landscape changed that the claims were filed, years after delivery and payment. In those circumstances the Federal Court held that the purchasers “shall not be entitled to remedies due **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 to inequitable conduct of unconscionability, unjust enrichment and estoppel”; that there would be “injustice if the claims for LAD were allowed to be calculated retrospectively”; and that Ang Ming Lee “is not a carte blanche for purchasers to claim LAD retrospectively and to enjoy the financial windfall”.

39. Each of those features is present here. The respondents agreed to the 48-month completion period and now accept that it is valid. Vacant possession was delivered. The keys were taken. The parcels have been occupied ever since. LAD was paid and accepted, in terms, in full and final settlement. The appellant complied with the law as it stood: it obtained the EOT before the SPAs were signed, computed LAD in accordance with the SPAs and the then-prevailing understanding of the law, and paid it upon delivery. The respondents cashed the payments without demur. It was only after Ang Ming Lee, and, as regards the recalculated commencement and terminal dates now relied upon, only by force of PJD Regency and of later High Court authority, that the settled sum was said to be inadequate.

40. Changing the label from “EOT LAD” to “balance LAD” does not change the substance. Either way, the purchaser seeks to keep the benefits of the settlement, the certainty of the money, the keys and possession, while shedding its burden, and to have a concluded settlement recomputed by reference to decisions which came after it. That is the financial windfall which the Federal Court declined to countenance. To permit it would enrich the respondents unjustly at the appellant’s expense. The **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 appellant paid for a discharge and obtained one. The respondents would keep the price of the discharge and recover a second time. There is, on the other hand, nothing unjust in holding the respondents to their bargain. They received everything to which the law as then understood entitled them, and they received it at once and without having to litigate for it. I. PJD REGENCY

41. The learned JC applied PJD Regency and held that the computation of LAD commenced from the date the booking fees were paid, 7.9.2013, rather than from the dates of the SPAs. Before us the appellant sought to distinguish PJD Regency on its facts, relying on Toh Ai Shi v Talent Team Sdn Bhd & Anor [2022] MLRHU 1380 (“Toh Ai Shi”), while the respondents submitted that PJD Regency is binding and directly in point, the booking fees having been paid to the appellant itself some 99 and 192 days before the respective SPAs were signed.

42. We need not resolve that dispute, and we would not wish to be understood as casting the least doubt upon PJD Regency, which is binding Federal Court authority. We are content to assume, in the respondents’ favour, that had their claims survived, LAD would have run from the dates on which the booking fees were paid. Their difficulty lies elsewhere. PJD Regency tells one how LAD is to be computed upon a subsisting claim. It does not tell one whether a claim subsists. A claim discharged by accord and satisfaction is not revived by a later **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 decision refining the method of computation, any more than a settled personal injury claim is reopened by a later decision revising the conventional awards. Since the respondents’ claims were extinguished by the Settlement Letters in May and June 2019, some eighteen months before PJD Regency was decided, the question of computation under that decision does not arise. J. DELIVERY OF VACANT POSSESSION SUPPORTED BY THE PARTIAL CCC

43. Our conclusion on the Settlement Letters disposes of the appeal. But the validity of the delivery of vacant possession on 16.5.2019 supported by the Partial CCC was fully canvassed in the parties’ written submissions. It was the basis upon which the learned JC extended the LAD period to 13.9.2019 on the respondents’ cross-appeal, and it is a question which recurs in housing litigation. We therefore deal with it. J1. The procedural objection under Ikumi Terada

44. The respondents took a preliminary objection that the appellant’s Memorandum of Appeal contains no specific ground alleging that the learned JC’s decision on this issue was perverse or plainly wrong, and that, applying Ikumi Terada v Jemix Co Ltd & 2 Others [2019] 1 LNS 881 (“Ikumi Terada”), the appellant must be taken to have accepted the finding. **Note : Serial number will be used to verify the originality of this document via eFILING portal 26

45. We are unable to accept the objection. What Ikumi Terada requires, that perversity be expressly pleaded in the memorandum of appeal, is directed at challenges to findings of fact, where the appellate court is asked to hold that the trial judge failed to appreciate the totality of the evidence. The end-point of the LAD computation is not a finding of fact of that character. It is a pure question of law, turning on the construction of clauses 26 and 35(c) of the SPAs and of the statutory scheme, and arising upon primary facts which are not in dispute, namely the dates of the Partial CCC, the Notices of Vacant Possession and the Full CCC. The appellant’s memorandum squarely challenged the learned JC’s computation of LAD and the terminal date she adopted. The point of law was fully ventilated in both courts below and in the written submissions before us. Rule 18(1) of the Rules of the Court of Appeal 1994 requires the memorandum to specify the points of law or of fact alleged to have been wrongly decided. It does not require the word “perverse” to be recited where the complaint is one of error of law. The objection is accordingly dismissed. J2. The merits

46. Clause 26 of the SPAs obliges the vendor to let the purchaser into possession upon, amongst others, the issuance of the certificate of completion and compliance. Clause 26(2) provides that delivery of vacant possession shall be supported by the certificate of completion and compliance and includes the **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 handing over of the keys. Clause 35(c) defines the certificate as one granted under the Street, Drainage and Building Act 1974 certifying that the housing accommodation has been completed and is safe and fit for occupation, and states that it does not include a partial certificate.

47. The learned JC, following Chau Chee Sing & Ors v R & F Development Sdn Bhd [2021] 1 LNS 1799 (“Chau Chee Sing”), held that a delivery supported only by Borang F1 was invalid, and that LAD accordingly ran until the issuance of the Full CCC on 13.9.2019. The appellant relied on Tham Wai Keat (supra), where the High Court held that vacant possession is not synonymous with the CCC, the two being distinct certificates serving different purposes, and that the issuance of a Borang F1, being permitted by the by-laws, could not amount to a breach of duty or render delivery premature.

48. In our judgment, on the facts of this case, the delivery of vacant possession on 16.5.2019 supported by the Partial CCC was valid and effective, and the learned JC erred in extending the LAD period to 13.9.2019. Our reasons follow.

49. First, the certification regime must be read purposively. Whether it is Borang F or Borang F1 under the Street, Drainage and Building Act 1974 and the Uniform Building By-Laws 1984, the function of the certificate contemplated by clauses 26 and 35(c) is one and the same in respect of the building it covers, namely to certify that the building has been duly completed and is safe **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 and fit for occupation. That was the unchallenged evidence of the architect, SD2, whose evidence was that the purpose of issuing the CCC and the partial CCC “is the same purpose, is to certify that it is safe for occupation”. By-law 25(2) of the Uniform Building By-Laws 1984 expressly empowers the issuance of a partial certificate in respect of a completed part of a development. The Partial CCC dated 2.5.2019 covered the residential blocks in which the respondents’ parcels are situated. So far as the housing accommodation sold to the respondents is concerned, there was therefore in existence, at the date of delivery, a statutory certification that it was complete and safe and fit for occupation. That is the substance of what clause 26 requires.

50. Secondly, the construction adopted below elevates form over substance and produces consequences which the statutory scheme cannot have intended. It was undisputed that the residential blocks were physically complete at the date of the Partial CCC. What remained outstanding, principally Bomba compliance, concerned the hotel block, the final phase of this mixed development, which formed no part of the housing accommodation sold to the respondents and in which they had no interest. On the respondents’ construction, purchasers holding their keys and free to occupy premises certified safe for occupation would nonetheless go on accruing LAD for a further four months by reason of the incomplete state of a commercial component with which they have nothing to do. LAD under

Schedule H is compensatory in design. It compensates the **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 purchaser for being kept out of possession of his parcel and out of the enjoyment of the common facilities. It is not a penalty referable to the completion of the development at large. We respectfully prefer the approach in Tham Wai Keat to that in Chau Chee Sing and in Wong Sii Ling & 58 Others v BJ Homes Development Sdn Bhd & 4 Others [2025] CLJU 1992 (“Wong Sii Ling”). In those two cases, we note, the partial certificates covered only part of the very accommodation and facilities sold, and the preamble to the SPAs there stipulated that vacant possession comprised all the blocks together with the common facilities. They are in any event distinguishable on that footing. Here the Partial CCC covered the whole of the respondents’ blocks, and the common facilities had been certified complete by the architect’s letter dated 20.12.2018. 51. Thirdly, and decisively even if we are wrong upon the construction, the respondents’ own conduct forecloses the point. They accepted the Notices of Vacant Possession, took the keys and the LAD cheques, went into possession, and signed the Settlement Letters which settled “all matters regarding the said Parcel” and the common facilities. Whether the terminal date for LAD was 2.5.2019, 16.5.2019 or 13.9.2019 was a matter squarely within the compass of that settlement. It is an ingredient of the very quantum which was compromised. Having elected to take delivery and to settle, the respondents cannot now, on the strength of decisions handed down years afterwards, unpick the delivery which they accepted in order to enlarge a claim which stands discharged. **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 K. THE REBATE 52. The last issue concerns the rebate granted by the appellant at the point of sale. The question is whether LAD ought to be computed on the purchase price net of the rebate, and whether the appellant’s counterclaim to recover the rebate was rightly dismissed. 53. Given our conclusion that the respondents’ claims are precluded by the Settlement Letters, no balance LAD falls to be computed and the point is strictly academic. As it was fully argued, we state our views shortly. 54. Had a claim for balance LAD survived, we consider that its computation ought to have taken the rebate into account. In Obata-Ambak itself, in the Sri Damansara appeals, the High Court held that the tribunal ought to have considered the rebate because it amounted to a valid bilateral variation of the purchase price, and that by ignoring it the tribunal had unjustly enriched the purchasers to the developer’s detriment. The Court of Appeal affirmed that in awarding LAD the High Court had correctly “considered and less the Rebate”, and the Federal Court found that approach just and reasonable. The principle is one of coherence. LAD under Schedule H is fixed by reference to the purchase price because the purchase price is the measure of what the purchaser has laid out. Where the price actually borne by the purchaser has been reduced by a rebate, **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 computing LAD on the gross price compensates him for an outlay he never made and confers a windfall to that extent. 55. That, however, is a different thing from a developer seeking to claw back a rebate as a freestanding debt merely because the purchaser has sued. Loh Tina (at [143]) and PJD Regency (at [124]) hold that a rebate or discount, once given, cannot be converted into a shortfall recoverable from the purchaser, nor used to manipulate the purchase price so as to defeat the protection which the purchaser enjoys. We respectfully agree. The two lines of authority sit comfortably together. The rebate operates defensively, in the arithmetic of any LAD actually payable (Obata-Ambak/Sri Damansara), but not offensively, as a sum recoverable in its own right (Loh Tina; PJD Regency). The appellant’s counterclaim, in so far as it sought repayment of the rebate as such, was therefore rightly dismissed, and we affirm that dismissal. But had any balance LAD been payable, which for the reasons given it is not, it would have fallen to be computed on the purchase price net of the rebate. L. CONCLUSION AND DISPOSITION 56. To summarise our conclusions: (a) the respondents’ claims were not time-barred. The causes of action accrued upon delivery of vacant possession and completion of the common facilities under clauses 25(3) and 27(3) of the SPAs, and the limitation **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 holding in Obata-Ambak is confined to claims impugning the terms of the SPAs themselves; (b) the equitable holdings of Obata-Ambak on full and final settlements, unconscionability, unjust enrichment and estoppel apply squarely to this appeal; (c) the Settlement Letters are a binding accord and satisfaction which discharged the appellant’s liability for LAD in respect of the parcels and the common facilities. The rule against contracting out of a Schedule H contract does not invalidate the bona fide post-breach compromise of an accrued LAD claim, and the maxim that there is no estoppel against a statute has no application to such a compromise; (d) to allow the respondents to reopen and recompute a concluded settlement by reference to decisions which post-date it would confer upon them the very retrospective windfall, and work the very unjust enrichment, against which the Federal Court warned in Obata-Ambak; (e) PJD Regency governs the computation of a subsisting LAD claim, but it cannot revive a claim discharged by accord and satisfaction before it was decided; (f) The delivery of vacant possession on 16.5.2019, supported by a Partial CCC certifying the whole of the **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 respondents’ residential blocks and the common facilities as complete, was valid and effective. The learned JC erred in extending the terminal date for LAD to the date of the Full CCC; and (g) had any balance LAD been payable, it would have been computed on the purchase price net of the rebate, although the appellant’s counterclaim to recover the rebate as a freestanding debt was rightly dismissed. 57. In the result, the appeal is allowed. The orders of the High Court dated 6.1.2025 (as clarified by the Consequential Order dated 28.4.2025) and of the Sessions Court dated 27.7.2021 are set aside in so far as they award the respondents balance or additional LAD, interest and costs, and the respondents’ claims are dismissed. The dismissal of the appellant’s counterclaim for the rebate is affirmed. We order the respondents to pay the appellant costs of RM30,000.00 here and below, subject to allocatur. Dated this 28th day of July 2026 -sgd-ONG CHEE KWAN JUDGE COURT OF APPEAL **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 Appeal No.: W-04B(NCVC)(W)-349-10/2025 Counsel for the Appellant : 1. Dato’ J. Shamesh; and 2. Dashprit Kaur. (Messrs. Jeeva Partnership) Counsel for the Respondents : 1. Tan Shee Shia Cecilia; and 2. Fatin Izyan binti Muhamad Fadzil. (Messrs. Soh Hayati & Co.) Appeal No.: W-04B(NCVC)(W)-359-10/2025 Counsel for the Appellant : 1. Dato’ J. Shamesh; and 2. Dashprit Kaur. (Messrs. Jeeva Partnership) Counsel for the Respondents : 1. Tan Shee Shia Cecilia; and 2. Fatin Izyan binti Muhamad Fadzil. (Messrs. Soh Hayati & Co.) Cases referred to: Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd and other appeals [2024] 5 MLJ 897, FC Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals [2020] 1 MLJ 281, FC PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60, FC **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2010] 2 MLRA 668, FC Ace Jerneh Insurance Berhad v Best Re (L) Limited [2015] 2 MLRH 377 Kompleks Perkayuan Kelantan Sdn Bhd v Tian Chuan Sen & Yang Lain [2020] 2 CLJ 781, CA Sentul Raya Sdn Bhd v Hariram Jayaram & Ors and other appeals [2008] 4 CLJ 618, CA Loh Tina & Ors v Kemuning Setia Sdn Bhd & Ors and another appeal [2020] 7 CLJ 720, CA Tham Wai Keat & Ors v Cosmopolitan Avenue Sdn Bhd & Anor [2023] MLRHU 2428, HC Hedgeford Sdn Bhd v Sri Gananatha Sivanathan & Ors [2018] 1 LNS 1497, HC Southville City Sdn Bhd v Lim Yee Chien & Ors [2019] 1 LNS 1477, HC EUPE Bangsar South Development (JV) Sdn Bhd v Lam Sai Yih [2023] 1 CLJ 194, HC Leong Keng Chiang v Prema Bonanza Sdn Bhd [2021] MLJU 714, HC Toh Ai Shi v Talent Team Sdn Bhd & Anor [2022] MLRHU 1380, HC Chau Chee Sing & Ors v R & F Development Sdn Bhd [2021] 1 LNS 1799, HC Wong Sii Ling & 58 Others v BJ Homes Development Sdn Bhd & 4 Others [2025] CLJU 1992, HC Ikumi Terada v Jemix Co Ltd & 2 Others [2019] 1 LNS 881, CA **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 Legislation referred to: Housing Development (Control and Licensing) Act 1966, ss 16 (Part VI) Housing Development (Control and Licensing) Regulations 1989, reg 11(3), Schedule H, cll 25, 26, 27, 35(c) Contracts Act 1950, s 64 Evidence Act 1950, ss 91, 92 Limitation Act 1953, s 6(1) Street, Drainage and Building Act 1974 Uniform Building By-Laws 1984, by-law 25 Rules of the Court of Appeal 1994, r 18(1) **Note : Serial number will be used to verify the originality of this document via eFILING portal