Excelente Amigos Sdn Bhd v Mah Sing Properties Sdn Bhd (JA-12BNCvC-24-10/2024)

This is the Appellant’s (Plaintiff’s) appeal against the decision of the learned Sessions Court Judge (“SCJ”), delivered on 17 October 2024, whereby the Appellant’s claim was dismissed with costs.

For ease of reference parties shall be referred to as they were in the Sessions Court.

The appeal was fixed for hearing on 30 October 2025. However, counsel for the Defendant sought an adjournment and requested that the matter be converted to case management due to a back injury sustained in a car accident. As both parties had filed their written submissions and bundles of authorities, the Court directed reliance on the written submissions and fixed the decision for 4 November 2025.

The Defendant is the developer of iPARC@Tanjung Pelepas in Johor Bahru. By a Sale and Purchase Agreement (“SPA”) dated 3 June 2013, the Plaintiff purchased a detached factory (Type A) at Lot D22, Mukim Tanjung Kupang for RM3,101,295.00.

Under Clause 15.1 of the SPA, the Defendant was to deliver vacant possession within thirty-six (36) months, subject to any extension of time granted under Clause 20 for events beyond its control. Clause 15.2 provides for liquidated agreed damages (LAD) at 10% per annum of the purchase price for any unexcused delay.

Before expiry of the completion period, the Defendant issued letters dated 28 March, 20 June and 24 August 2016, notifying the Plaintiff of extensions of time due to incomplete utility works by Tenaga Nasional Berhad (TNB), supported by correspondence from the project engineer, Perunding Cekap. The Defendant delivered vacant possession on 31 October 2016, accompanied by the Certificate of Completion and Compliance (CCC) dated 26 October 2016.

No objection was raised by the Plaintiff at the material time. However, after four years, by letter dated 28 December 2020, the Plaintiff claimed RM127,450.48 as LAD for an alleged 150-day delay, calculated from 3 June to 31 October 2016. The Defendant, by reply dated 3 February 2021, denied liability and maintained that valid extensions had been granted under the SPA.

The Plaintiff filed a Statement of Claim on 30 April 2021, seeking LAD, interest, and costs. The Defence dated 2 June 2021 denied any breach and alleged that the claim was an afterthought, as the Plaintiff had accepted possession without protest. The Reply to Defence dated 21 June 2021 maintained that delivery was 150 days late and that the Defendant’s reliance on the engineer’s letters and Clause 20 was misconceived.

The learned SCJ found that the delay complained of was caused by circumstances beyond the Defendant’s control, namely the incomplete utility works by Tenaga Nasional Berhad (“TNB”) and that the extensions of time granted by the Defendant were valid under Clauses 15.1 and 20.2 of the Sale and Purchase Agreement (“SPA”). Accordingly, the SCJ dismissed Plaintiff’s claim for liquidated agreed damages (“LAD”).

The Plaintiff now appeals, contending that the SCJ erred in law and fact in finding that the Defendant had proven a force majeure event and in treating the Defendant’s own notices as sufficient compliance with Clause 20 of the SPA.

Based on the SCJ’s ground of judgment, this Court notes the following –

the SCJ accepted the Defendant’s submission that the challenges to the Architect’s role and delegation were not borne out by the original pleadings and were in any event an afterthought. The only position taken by the Plaintiff in its Reply to the Defence was that the Defendant’s letters and the letters issued by M/S Perunding Cekap were “not sufficient” for the Defendant to rely on Clause 20 force majeure. The following issues were never pleaded but are now raised afresh –

the Architect did not give his opinion;

(ii) the Architect delegated its authority to the Engineer;

(iii) the Architect did not attend meetings between TNB and the Defendant;

(iv) the Engineer EOT Letters were not addressed to the Plaintiff; and

the Defendant has failed to prove delay by TNB. It is settled law that parties are bound by their pleadings. (See Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697 on principle that cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment).

the SCJ was bound by the Court of Appeal’s decision in Tan Mee Su & other v Mah Sing Properties Sdn Bhd (Civil Appeal No. : J-04(NCVC)(W)-155-04/2023, delivered on 21 June 2024), which involved identical contractual provisions and similar facts relating to delays occasioned by TNB’s infrastructure works. In line with the doctrine of stare decisis, the SCJ was duty-bound to follow that decision, which likewise held that such delays constituted force majeure within Clause 20 of the standard Mah Sing SPA.

Hence, the appeal turns on the limited question of –

whether the learned SCJ erred in finding that the extensions of time were valid and enforceable under the terms of the SPA”; and

whether the SCJ correctly concluded that the delay in delivery of vacant possession was caused by circumstances beyond the Defendant’s control.

In determining these issues, it is necessary first to consider the relevant provisions of the SPA. Clause 15.1 and 20.2 of the SPA read – Clause 15.1 - Time for Delivery of Vacant Possession “The Vendor shall complete the construction of the said building and deliver vacant possession thereof to the Purchaser within thirty-six (36) calendar months from the date of this Agreement subject nevertheless to any extension of time which may be granted in writing by the Engineer or the Architect pursuant to Clause 20 hereof”. Clause 20.2 - Force Majeure / Extension of Time “If the completion of the said building is delayed by reason of any cause beyond the control of the Vendor, including force majeure, strikes, lock-outs, riots, civil commotion, war, fire, flood, drought, act of God or delay in the supply of materials or services by any public authority, the Engineer or the Architect may certify an extension of time as may be reasonable and such certification shall be final and binding upon the parties”.

The Court now examines whether the Defendant’s conduct and the accompanying correspondence satisfied the requirements of Clauses 15.1 and 20.2.

It is not disputed that, before the expiry of the contractual period, the Defendant had issued three written notices dated 28 March 2016, 20 June 2016 and 24 August 2016 each accompanied by correspondence from Perunding Cekap, referring to TNB’s delay in completing electrical infrastructure works.

These letters expressly stated that the delay was due to factors outside the Defendant’s control and sought extensions of time to complete the project.

The SCJ accepted the Defendant’s evidence that the delay was attributable to TNB’s incomplete external electrical works and therefore constituted a force majeure event within the meaning of Clause 20 of the SPA. The contractual mechanism operates in two steps. First, under Clause 20.1, the Architect forms an opinion on whether force majeure circumstances exist. Second, under Clause 20.2, based on the Architect’s opinion, a decision is made to grant an extension of time. The Architect testified that he formed and gave his opinion on 13 November 2015, during a meeting with the Defendant, that an extension of time should be given because there was a delay by TNB which was beyond the Defendant’s control. This opinion was recorded in the Architect’s letter dated 16 November 2015. Significantly, the Plaintiff’s own witness (SP1) admitted that this letter is an opinion of the Architect. The Engineer testified that the M/S Perunding Cekap letters were decisions to grant extensions of time, not opinions. The Architect’s opinion as to the cause of delay, followed by the Engineer’s grant of three extensions of time and the Defendant’s subsequent notices to the Plaintiff, collectively satisfied the procedural requirements of Clauses 15.1 and 20.2, which permit an extension where completion is delayed by factors beyond the Vendor’s control.

The SCJ also observed that the Plaintiff raised no protest or objection between 2015 and 2016 and took the delivery of the factory on 31 October 2016 without reservation. The Plaintiff’s silence and acceptance were viewed as consistent with acquiescence to the revised timeline.

The Plaintiff’s first complaint was raised through its solicitors’ letter dated 28 December 2020, more than four years after the delivery, and it was regarded as an afterthought. The SCJ therefore held that the claim was belated and unsupported by evidence.

On the totality of the evidence, the SCJ found that the Defendant had discharged its obligation within the extended period permitted under the SPA and that the Plaintiff had failed to prove its entitlement to the LAD. The Plaintiff’s claim was therefore dismissed with costs.

Before this Court, the Plaintiff argues that the extensions were invalid as they were not issued by the Architect or Engineer as required by Clause 20. The Defendant maintains that the delay arose from TNB’s works, properly communicated to the Plaintiff, and that the SCJ’s findings were correct.

This Court is satisfied that the contemporaneous correspondence demonstrates that the delay arose from TNB's incomplete external electrical infrastructure works, beyond the Defendant's control. The Architect's opinion dated 13 November 2015 recommending an extension, the Engineer's subsequent certifications, the Defendant's notification letters and the Certificate of Completion and Compliance dated 26 October 2016 collectively support the SCJ's finding that the extensions were granted in compliance with Clauses 15.1 and 20.2 of the SPA. The shortage of materials was independently recorded in eighteen Minutes of Meeting from November 2015 to September 10 2016, verified by SD1 (TNB Senior Manager) whose testimony, based on supervisory knowledge, does not constitute hearsay as explained in Jade Homes Sdn Bhd v Sivananthan a/l Krishnan [2021] 5 MLJ 349. The Defendant and Engineer also took proactive steps to expedite TNB's works, as evidenced by multiple letters urging TNB to complete the infrastructure.

Further, this Court is of the view that the SCJ evaluation accords with the ratio in Tan Mee Su, where similar notices and evidence were accepted as sufficient invocation of the force majeure provision.

The Plaintiff submits that this Court is not bound by the Court of Appeal's decision in Tan Mee Su on the basis that no written grounds of judgment were delivered, relying on the Federal Court decision in Tetuan Wan Shahrizal, Hari & Co v Public Prosecutor [2023] 4 MLJ 1. The Plaintiff further relies on Mohamed Fayadh bin Abdul Gaffor & Ors v Liberty Insurance Bhd [2024] 6 MLJ 519 and Syahin Hafiy Danial bin Soh Ahmad Luptepi Amin v Mansur bin Yunus & Anor [2021] 8 MLJ 297 for the proposition that only the ratio decidendi ascertained from a written judgment of a superior court has binding or persuasive effect.

The Plaintiff also relies on other Court of Appeal decisions such as Mah Sing Properties Sdn Bhd v Goh Leng Nguan which decided in favour of purchasers.

This Court accepts that where no written grounds are delivered, the doctrine of stare decisis in its strict sense may not apply, as the ratio decidendi cannot be ascertained. However, this Court’s is of the view that it does not render the decision in Tan Mee Su irrelevant or of no persuasive value.

First, this Court has conducted its own independent assessment of the issues and has reached the same conclusion on the merits. Second, the conflicting Court of Appeal decisions cited by the Plaintiff, including Mah Sing Properties Sdn Bhd v Goh Leng Nguan, are of coordinate jurisdiction with Tan Mee Su, which the Court is entitled to follow on the most suitable basis. Third, at least seven other court decisions involving the same iPARC @ Tanjung Pelepas project have consistently dismissed purchasers' LAD claims against the Defendant on similar grounds, demonstrating a consistent judicial approach to the interpretation of the standard Mah Sing SPA clauses (including the EJH Case decided by the High Court on 18.07.2024).

Hence, the reliance on Pink Alliance Sdn Bhd v Mah Sing Properties Sdn Bhd [2024] MLJU 2885 is misplaced as it is a High Court decision of coordinate jurisdiction not binding on this Court and is distinguishable on the SPA clauses (Clause 18/23 in Pink Alliance vs Clause 15/20 in the present case). The issues raised following Pink Alliance Sdn Bhd were never pleaded in the original pleadings. The present appeal discloses no distinguishing feature to justify a different result.

Applying the principles in RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188, this Court is satisfied that the SCJ confined herself to the issues raised on the pleadings and correctly found that the Plaintiff had not established any breach entitling it to LAD.

This Court has also considered the Plaintiff's submission that the Defendant contributed to the delay through its own tardiness in providing the Bank Guarantee and land documents to TNB. The evidence shows that the substation was handed over to TNB on 18 August 2014 and the application for electricity supply was made on 20 January 2014. The Plaintiff contends that the Bank Guarantee was only furnished on 18 February 2015 and the land documents on 12 January 2015, allegedly some months after TNB's initial request. However, this Court notes that these matters were not specifically pleaded in the Statement of Claim or Reply to Defence. More significantly, even accepting the Plaintiff's timeline, the evidence demonstrates that TNB's delays in completing the external electrical infrastructure works continued well beyond the provision of these documents, as reflected in the eighteen (18) Minutes of Meeting spanning from November 2015 to September 2016. The causal link between the Defendant's alleged tardiness and the eventual delay in vacant possession has not been established on a balance of probabilities. The SCJ was therefore entitled to find that the predominant cause of delay was TNB's incomplete utility works, which remained beyond the Defendant's control.

The Plaintiff further submits that the TNB letters (TNB1, TNB2 and TNB3) did not mention any administrative problems or nationwide shortage of materials and that the Defendant's engineer made a bare allegation unsupported by TNB's own correspondence. This Court has examined the TNB letters and notes that while they stated targeted completion dates, they did not expressly attribute the delay to administrative problems or material shortages. However, Clause 20.2 of the SPA does not require that the external cause be specifically categorised or labelled in any particular manner. What is required is that the delay be "by reason of any cause beyond the control of the Vendor". The contemporaneous evidence, including the Minutes of Meeting and the correspondence from M/S Perunding Cekap, sufficiently establishes that TNB's works were incomplete and that this was beyond the Defendant's control. The SCJ was entitled to accept the totality of the evidence rather than confine herself to the precise wording of the TNB letters alone.

The Plaintiff submits that JYP Architect's letter dated 13 January 2021 (JYP2) was an afterthought, and that the earlier letter dated 16 November 2015 (JYP1) improperly delegated the Architect's duty under Clause 20.1 to the engineers. The Plaintiff relies on Feature Spare Parts Sdn Bhd v Nautical Wealth Sdn Bhd & Other Appeals [2022] MLRHU 2346 for support. This Court is not persuaded. Clause 20.2 expressly provides that 'the Engineer or the Architect may certify an extension of time'. The Architect's letter dated 16 November 2015 recorded his opinion that an extension should be granted due to circumstances beyond the Defendant's control. The subsequent certifications by the Engineer (M/S Perunding Cekap) were issued pursuant to Clause 20.2 and were consistent with the Architect's opinion. The letter dated 13 January 2021 merely confirmed and ratified this position in the context of litigation; the fact that a confirmatory letter was issued after proceedings commenced does not invalidate the original opinion. Feature Spare Parts is distinguishable - in that case, no prior opinion or delegation existed. Here, the Architect gave his opinion under Clause 20.1 and the Engineer thereafter granted the extensions under Clause 20.2. The contractual mechanism was properly followed.

The Plaintiff submits that SD3 (the Architect, Mr. Ng Hong Ling) did not attend any of the meetings between the Defendant's representatives and TNB, and that his evidence regarding the cause of delay was therefore hearsay. This Court notes that SD3 testified that he formed his opinion based on information received from the Defendant and M/S Perunding Cekap, as well as the contemporaneous documentation including the TNB letters and Minutes of Meeting. An expert or professional witness is entitled to form an opinion based on information supplied to him, provided that the underlying facts are themselves proved by admissible evidence. The Minutes of Meeting were verified by SD1 (the TNB Senior Manager) and the correspondence from M/S Perunding Cekap was produced in evidence. SD3's opinion, based on these materials, was properly admissible and the SCJ was entitled to accept it.

The Plaintiff's reliance on Koperasi Permodalan Felda Malaysia Bhd v Icon City Development Sdn Bhd [2023] 2 MLJ 338 is also distinguishable. In that case, the delay was caused by the developer's own contractor (Sara Timur Sdn Bhd), and the architect's letters merely informed the purchasers of a dispute between the developer and its contractor without expressing any opinion that the delay was a circumstance beyond the developer's control within the meaning of the force majeure clause. The architect in that case did not testify that his letters constituted an opinion under the relevant SPA clause. In the present case, the Architect (SD3) testified that he formed his opinion on 13 November 2015 that the delay by TNB was beyond the Defendant's control, and this constituted a force majeure situation under Clause 20.1 of the SPA . The Architect's letter dated 16 November 2015 expressly recorded this opinion. The factual matrix in Koperasi Permodalan Felda is therefore materially different from the present case.

The Plaintiff also challenges the evidence of SD4 (Encik Norazam Ahmad), contending that his designation was "Pembantu Teknikal" to M/S Perunding Cekap and not the Consultant Engineer in charge of the project, that he did not sign the opinions issued by M/S Perunding Cekap (PC1, PC2 and PC3) which were signed by the late Ir. Tong Teng Wee and that his evidence regarding TNB's administrative problems and nationwide shortage of materials constitutes hearsay. The Plaintiff relies on Mohd Shukri bin Mat v Lembaga Kemajuan Tanah Persekutuan [2014] 9 MLJ 663 and Kong Ming Trading Sdn Bhd v Lembaga Pelabuhan Kelang [2014] 6 MLJ 525 for the proposition that such evidence is inadmissible.

This Court notes that SD4 testified that he attended meetings between the Defendant's representatives and TNB, and that he had direct knowledge of the discussions regarding the delay in TNB's electrical infrastructure works. His evidence was not confined to repeating what others had told him; rather, he testified as to matters within his own knowledge derived from his attendance at the site meetings. The Minutes of Meeting prepared by M/S Perunding Cekap, which recorded the ongoing delays attributable to TNB, were produced in evidence and verified by SD1 (the TNB Senior Manager). In these circumstances, SD4's evidence regarding the cause of delay was properly admissible as evidence of facts within his personal knowledge. The cases of Mohd Shukri bin Mat and Kong Ming Trading are distinguishable as in those cases the witnesses were testifying to matters entirely outside their personal knowledge. Here, SD4 had direct involvement in the project and attended the relevant meetings. The SCJ was entitled to accept his evidence.

The Plaintiff further contends that the letters from M/S Perunding Cekap (PC1, PC2 and PC3) were addressed only to the Defendant and not to both parties and that this indicates they were intended as opinions under Clause 20.1 rather than decisions to grant extensions under Clause 20.2. This Court does not find this submission persuasive. There is no requirement under the SPA that the Engineer's certification must be addressed to both parties simultaneously. What is required is that the extension be communicated to the Purchaser, which was done through the Defendant's letters dated 28 March 2016, 20 June 2016 and 24 August 2016, each of which enclosed the relevant correspondence from M/S Perunding Cekap. The Plaintiff was therefore notified of the extensions and the reasons therefor. The mode of communication does not invalidate the substance of the certification.

The Plaintiff further submits that the first Extension of Time (EOT1) was issued by the Defendant itself and not by the Architect or Engineer as required under Clause 20.2 of the SPA, and that this renders EOT1 invalid. This Court has examined the evidence and notes that the Defendant's letter dated 28 March 2016 (EOT1) was a notice communicating the extension of time to the Plaintiff, not a certification of the extension itself. The certification was contained in the accompanying letter from M/S Perunding Cekap (PC1) dated 19 November 2015, which stated that completion of the project was expected to be delayed due to TNB's incomplete electrical infrastructure works. The contractual scheme under Clauses 15.1 and 20.2 requires the Engineer or Architect to certify the extension; it does not prescribe that the developer cannot thereafter communicate such certification to the purchaser. What is material is that the extension was certified by the Engineer and communicated to the Plaintiff with the supporting correspondence enclosed. This was done. The Plaintiff's submission conflates the act of certification with the act of notification, and is therefore rejected.

The Plaintiff relies on Intan Payong Sdn Bhd v Goh Saw Chan Sdn Bhd [2005] 1 MLJ 311 for the proposition that the burden of proving a force majeure event under Clause 20.1 lies with the Defendant. This Court accepts that proposition. However, for the reasons set out above, this Court is satisfied that the Defendant has discharged that burden on a balance of probabilities. The contemporaneous documentary evidence, including the Architect's opinion dated 16 November 2015, the Engineer's certifications, the TNB correspondence, and the eighteen Minutes of Meeting spanning from November 2015 to September 2016, collectively establish that the delay in completion was caused by TNB's incomplete external electrical infrastructure works, which were beyond the Defendant's control. The Plaintiff has not adduced any evidence to contradict or undermine this finding.

Accordingly, this Court finds no basis to disturb the decision of the learned SCJ.

Having considered the record, submissions, and authorities, this Court finds no error of law or fact in the SCJ's findings.

For the foregoing reasons, the appeal is dismissed with costs of RM7,000.00 subject to the allocator. The decision of the Sessions Court is affirmed. Dated : 4 November 2025 -sgd-Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitors for the Appellant : Mohd Faizal Bin Ahmad together with Muhammad Ibrahim Haneef Bin Azhari Messrs. Hazelin & Associates Solicitors for the Respondent : Naveen Sri Kantha together with Leong Chee Weng Messrs. Lee & Poh Partnership