Subparagraph
(ii) “to which water and electricity supply are ready for connection to the said Building.” Both of the SPAs in Insun and our present appeal are in the form as prescribed by the Housing Developers (Control and Licensing) Regulations which are enforced at the material time. In Insun’s case it was the Housing Developers (Control and Licensing) Regulations 1982, whilst in the present appeal it is the Housing Developers (Control and Licensing) Regulations 1989. 16 [30] We agreed with the submission by Golden Approach that the Sessions Judge and the learned High Court Judge had erred when they had distinguished the SPA in the present appeal with Insun’s case based on the presence of the addendum in Clause 20(2) of the SPA which was absent in Clause 18 (2) of the SPA in the Insun’s case and submitted that the principle as laid down in Loh Wai Lian is applicable. In our view, that addendum was not material and neither was it crucial to the extent that it affected or altered the meaning of the clause in the SPA concerned. What needs to be considered is the obvious and most material difference between the 2 SPAs. As in Insun’s case, Edgar Joseph Jr, FCJ addressed what ought to be considered in determining the date of the accrual of the right to sue for damages. In the process His Lordship had distinguished the provisions of the SPA in Loh Wai Lian with the one in Insun. His Lordship explicitly in his judgment said as follows:: “It is clear law, that in the absence of express contractual provision, the purchaser's right to sue for damages would accrue on the date of the breach of contract (See Nasri v. Mesah [1970] 1 MLJ 32, 34 ; Reeves v. Butcher [1891] 2 QB 509, 511; Gibbs v. Guild [1881] 8 QBD 296, 302). But, the parties to a contract are free to regulate or modify their rights in the event of breach thereof in such a manner as to postpone the date of accrual of their right to sue for damages which, of course, was what had happened in Loh Wai Lian. In the present context, we have to consider whether there is any, and if so, what material difference between the contract of sale in Loh Wai Lian and the agreement here. 17 The obvious difference between the contract of sale in Loh Wai Lian and the agreement here, which we consider to be most material, is this: under the former, the statutory formula for the calculation of the indemnity was modified by expressly stating not only the terminus a quo (the opening date) but also the terminus ad quem (the closing date), which was the date of actual completion and delivery, of possession, whereas under the latter, although there is, by clause 18(2), also a formula for the calculation of liquidated damages, it only specifies the terminus a quo but not the terminus ad quem. In our view, this difference is a matter of critical substance. It is obvious from the judgment of the Privy Council in Loh Wai Lian, that but for the unusual language of clause 17 of the contract of sale, which had provided a formula for the computation of damages payable by the developer to the buyer for delays, by defining not merely the terminus a quo (the opening date) required under r. 12(l)(r) of the 1970 Rules but also the terminus ad quem (the closing date) - not required under r. 12(l)(r) - the case would have been differently decided for their Lordships said this: If the question is asked 'in the absence of such an express provision when would the purchaser's right of action for damages for breach of contract accrue?', the answer is plainly the date on which the breach occurred. But parties to a contract are, of course, entitled to regulate or modify their rights in the event of breach in any way that they think fit and the accrual of any cause of action then becomes a matter of the correct construction of what they have provided. This appeal raises no point of principle but simply a question of what is the true construction of the contract in which the parties entered. In our view, for the reasons stated, Loh Wai Lian is, therefore, readily distinguishable from the present case, and accordingly, the Judge was, with respect, wrong in holding that it was of decisive importance to the question which arose for decision. 18 It follows, therefore, that our answer to the crucial question aforesaid is; because the agreement by clause 18(2) had provided for a formula for the calculation of liquidated damages which defined the terminus a quo (the opening date) but not the terminus ad quem (the closing date), the purchaser's right of action for damages for breach of contract, following the general rule, accrued on the date of the breach, which in this case was the day after the time limited under clause 18(2) for the delivery of vacant possession, that is to say, on 12 December 1986. Accordingly, the purchaser having commenced proceedings only on 31 July 1993, was more than seven months out of time. We are thus driven to the inevitable conclusion that the purchaser's claim was statute-barred under the provisions of s. 6(1) of the Limitation Act, 1953. [31] Thus, applying the principle as enunciated by the Federal Court in Insun’s case, the alleged difference in the addendum in the SPA in our present appeal and the SPA in Insun’s case, (as stated by the Sessions Judge and the learned High Court Judge), is not a matter of critical substance which should be considered by the learned Judge in determining when the cause of action accrued. Hence the Sessions Judge and the learned High Court Judge had considered irrelevant considerations in determining the date of the accrual of the right to sue for damages. Unlike Loh Wai Lian, which is distinguishable with our present appeal, namely that, in Loh Wai Lian, Clause 17 of the SPA had provided a formula for the computation of damages payable by the developer to the buyer for delays, by defining not merely the terminus a quo (the opening date) required under r 12(l)(r) of the 1970 Rules but also the terminus ad quem (the closing date). Whereas in our present appeal, the SPA by Clause 18(2) had provided for a formula for the calculation of 19 liquidated damages which defined the terminus a quo (the opening date) but not the terminus ad quem (the closing date), the plaintiffs' right of action for damages for breach of contract, following the general rule, accrued on the date of the breach. In our case, it was the day after the time limited under Clause 18(2) for the delivery of vacant possession, namely on 3.8.2004. Accordingly, the plaintiff having commenced the suit against Golden Approach only on 15.3.2017, was certainly out of time. Inevitably, the plaintiffs’ claim was statute-barred under s. 6(1) of the Limitation Act, 1953. [32] The 2nd ground relied upon by the learned High Court Judge to distinguish Insun and our present appeal is that the purchasers in our present appeal had pursued vigorously against Golden Approach to hand deliver and hand over vacant possession of the property. The purchasers submitted that they had conformed with section 56 (3) of the Contracts Act 1950 which provides that: “56 (3) If, in case of a contract voidable on account of the promisor’s failure to perform his promise at the time agreed, the promise accepts performance of the promise on any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless at the acceptance, he gives notice to the promisor of his intention to do so.” This section, in our view is immaterial and ought not be a basis of distinguishing the case with Insun and neither could it be a basis to extend the time as stipulated under the Limitation Act 1953. 20 [33] Thirdly, the plaintiffs submitted that they would not be able to calculate liquidated damages if they proceeded in filing their claim at the time of breach on 4.8.1998. In other words, the contention of the plaintiffs is that the cause of action would not be complete until the property was actually completed and vacant possession given to the plaintiffs. However, we are of the view that it would not be correct to say that the cause of action would shift because they could not calculate liquidated damages if they were to file their claim at the time of breach, as there was no delivery at the time of the breach. The issue on hand is when the cause of action accrued. It ought not be confused with the reliefs claimed. The plaintiffs failed to see that this precise and specific issue has already been addressed by the Federal Court in Loh Wai Lian v SEA Housing Corporation Sdn Bhd [1984] 2 MLJ 281 whereby Mohamed Azmi FCJ held at page 283 para C: “Such a proposition would in fact mean that if the respondents did not complete the shophouse, accrual of cause of action could be postponed indefinitely. We do not think that the proviso to cl 17 of the agreement could have that effect on the Limitation Ordinance in an action founded on contract. A distinction must clearly recognised between a cause of action and the relief claimed. The date of completion of the shophouse was only necessary to quantify the maximum relief under cl 17 which could be done subsequently by evidence. It could not constitute an impediment to the cause of action being complete. The breach had occurred on 18 September 1975 giving rise to a complete cause of action, and the accrual of cause of action would not be postponed by temporary lack of evidence pertaining to maximum relief claimable resulting from such breach irrespective of whether the damages claimed were liquidated or unliquidated. In the circumstances of the present case, we would not 21 agree to the proposition that the cause of action was not complete until the shophouse was completed.” What is pertinent is to take note of what the Federal Court further held in this respect in Loh Wai Lian at page 281: “(2) the appellant was wrong in thinking that her writ could not be issued until November 1977 because the liquidated damages could not be quantified. The agreement provided that such damages were to be calculated on a day to day basis from the date of breach with the date of actual completion to be used for the purpose of calculating the maximum days claimable. Damages could therefore be ascertained under the agreement and in this case if the statement of claim had been filed on or before September 17, 1981, no court would have struck it out as disclosing no cause of action merely because the maximum liquidated damages claimable was not quantified.” [34] It is also to be noted that Insun’s case is a Federal Court case, which is the highest court in the land and binding on all courts. The High Court is bound by the doctrine of stare decisis to follow the principle as enunciated in Insun. We could do no better than what had already been stated in the judgment of the Federal Court in Dato’ Tan Heng Chew v Tan Kim Hor & Anor Appeal [Civil Appeal Nos: 02-6-2005(W) & 02-8- 2005(W)] which said: “It is axiomatic to state that the doctrine of stare decisis has become the cornerstone of the common law system practised in this country. It is fundamental to its existence and to the rule of law. It has attained the status of immutability. In Public Prosecutor v. Datuk Tan Cheng Swee & Anor[1980] 2 MLJ 277; [1980] 1 LNS 58, Mr. Justice Chang Min Tat had occasion to restate the doctrine in words which are poignantly clear when he said:- 22 It is ... necessary to reaffirm the doctrine of stare decisis which the Federal Court accepts unreservedly and which it expects the High Court and other inferior courts in a common law system such as ours to follow similarly.