WA-22NCvC-345-05/2019
High Court of Malaysia24 Feb 2023
The written judgment as the court issued it, with the coram, case number, and source links. Every paragraph has its own anchor.
Content
DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA BAHAGIAN SIVIL NO. GUAMAN SIVIL : WA-22NCvC-345-05/2019 ANTARA HARBANS SINGH A/L SADHU SINGH (NO. KP: 591118-08-5159) …PLAINTIF DAN TRISTAR ACRES SDN BHD (NO. SYARIKAT: 788149-T) ...DEFENDAN JUDGMENT
1
The Plaintiff’s claim against the Defendants is for Liquidated Ascertained Damages (LAD) for the late delivery of vacant possession of a shop office known as Parcel No. B2-G-88 (“the premise”) in a project known as Savana Commercial Shop Lots (“the project”). The Defendant counter claimed against the Plaintiff for the failure to pay all charges due on the purchase of the premise.
2
The case went for a full trial where the parties relied on oral testimony of witnesses as well as documents contained in the bundle of documents which included the sale and purchase agreement as well as other documents. The Plaintiff called 1 witness whereas the Defendant called 2 witnesses. 05/05/2023 15:14:01 WA-22NCvC-345-05/2019 Kand. 129 Brief facts
3
The Plaintiff a private individual had purchased the premise from the Defendant the developer of the project for a sum of RM1,976,800 vide a Sale and Purchase Agreement (“SPA”) dated 27/3/2014.
4
One of the terms of the agreement is that the delivery of vacant possession to be within 48 months from the date of the SPA. Failing to deliver vacant possession within the period agreed upon, will attract an LAD of 10% per annum calculated on a daily rest basis on the amount of payment made by the Plaintiff.
5
The Plaintiff has made full payment of the purchase price to the Defendant. The Defendant on 29/3/2018 delivered the Certificate of Completion issued by the Architect together with 6 invoices of charges to be paid by the Plaintiff.
6
On 4/4/2018 the Plaintiff’s Bank paid the balance sum of the purchase price amounting to RM196,780. However the Plaintiff disputed the other charges imposed by the Defendant.
7
As the Plaintiff had failed to pay all the charges claimed the Defendant refused to deliver vacant possession to the Plaintiff. This led the Plaintiff to issue a Notice of Demand and finally initiating of this Civil Suit.
8
The Plaintiff apart from seeking for vacant possession is also asking for LAD as well as general and aggravated damages whereas the Defendant is claiming for the charges not paid by the Defendant.
9
From the evidence it is clear that the key of the premise were finally given to the Plaintiff on 4/11/2020 upon the payment of a certain sum of money.
10
The claim for vacant possession in the Court’s view is no more a relief applicable to the Plaintiff. The only issue needing the determination of the Court is the Plaintiff’s claim of LAD and other damages. The other issue for determination by the Court is the Defendants’ counterclaim. LAD and other damages
11
The crux of the dispute on this issue is to determine whether there was a delay in the delivery of the vacant possession. For the determination of this issue, the entirety of the SPA has to be considered by the Court.
12
It is trite law that in interpreting any agreement, the Court has to consider the language and wordings of the clauses of the SPA and give ordinary meaning to the words and phrases used. The Court is restrained from giving its own interpretation of the terms in the agreement unless the clauses are vague and ambiguous.
13
For the issue at hand of late delivery of possession, the Court looked at clause 12.2.1 of the SPA which is reproduced here for ease of reference: “Upon issuance of a certificate by the Developer’s architect certifying that the construction of the said parcel has been duly completed and the Purchaser having paid all the monies payable under this Agreement and having performed and observed all terms and conditions on the Purchaser’s part under this Agreement the Developer shall let the Purchaser into possession of the said Parcel provided that such possession shall not give the Purchaser the right to occupy and the Purchaser shall occupy the said parcel or to make alterations, additions, or otherwise to the said Parcel until such time as the Certificate of Completion and Compliance for the said Parcel is issued.”
14
Although nothing is contained in the SPA which defines the phrase “let into possession”, the Court takes notice of the fact that generally this phrase refers to the handing over the keys to the purchaser by the Developer. In this case the Court notes that both parties understood the phrase in a similar manner.
15
It is also clear from the above provision that “let into possession” does not give a right to the Purchaser to occupy the premise. The right to occupy only accrues after the Certificate of Completion and Compliance (“CCC”) has been issued. The issuance of the CCC is the subject matter of another clause of the SPA.
16
In this case there is no dispute that the Architect had issued the Certificate of Completion (“CC”). The time frame for the delivery of vacant possession as opposed to occupation of the premise is 48 months from the date of the Agreement, as is stated in section 10 of
Schedule
Schedule A of the SPA. There is no dispute that the CC was issued within this period of time. 17. What is disputed is the delay in “let into possession” by giving the premise key to the Purchaser. For “Let into possession” there are 3 conditions to be fulfilled, the first is the issuance of the CC and the second is when Purchaser having paid all monies payable under this agreement and the Purchaser having fulfilled all the terms and conditions (Purchaser’s obligation) under the SPA. 18. Monies payable and the Purchaser’s obligation under the SPA are contained in various clauses of the SPA. Some of the payments and monies due are to be paid on possession or deemed possession. This includes payment for service charges, sinking fund. The Court refers to Clause 12 of the SPA which clearly provides that the Plaintiff is deemed to have taken possession 14 days after the issuance of CC. ( Clauses 14.1 and 15.1 stated the need to pay service charges and sinking fund charges) 19. Some monies are to be paid from the date of the SPA. This includes payment of all outgoings, quit rent assessment and other charges which includes deposit for electricity and water. ( Clause 17 states f payment of this charges) 20. Some of the monies are to be paid on demand from the Developer and this includes for promotion and advertisement activities undertaken by the Developer and the payment of GST. (Clause 26A) 21. Amongst the sums not paid by the Plaintiff are the payment of GST, electricity deposits, quit rent, late payment interest service charges and sinking fund. These payment were not paid at the time of the issuance of the CC. 22. The Plaintiff have contended that the Defendant on their own volition had given a discount on the interest charged for late payment. The Court does not regard this to be an admission by the Defendants that the other charges are not due and payable or there are any errors in any of the charges claimed by the Defendants. 23. In the Court’s view this refusal to pay the charges by the Plaintiff for whatever reasons, is non fulfilment of their obligations under the SPA. Therefore the Defendant was has a right to withhold the handing over of the premise keys and letting the Plaintiff into possession of the premise. 24. In fact by not paying the charges and fulfilling their obligations, the Plaintiff have committed an act of default as stated in Clause8.1 (b) of the SPA. This act of default in fact entitles the Defendants to annul the SPA. 25. In short, the Defendants have not committed any breach in not ‘letting into possession ‘the premise or given late delivery of possession of the premise. It is clear to the Court, it is the Plaintiff who has failed to fulfil his obligations under the SPA 26. For the same reason the Plaintiff cannot now claim for LAD by relying on certain clauses of the agreement and ignoring other clauses. This clearly amounts to approbation and reprobation of the SPA. The SPA has to be looked as a whole and its entirety. 27. As to the Defendant’s counterclaim, the Court finds that the Defendants have proven that the full charges to be paid by the Plaintiff to the Defendants has not been paid. Conclusion 28. Taking into consideration the above factors the Court dismissed the Plaintiff’s claim and allowed the counterclaim of the Defendant deducting the sum already paid by the Plaintiff. The Court also allowed a sum of RM20,000 to the Defendants as the cost of proceedings. Dated: 3.5.2023 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Tetuan Saha & Associates Unit 2-3 2nd Floor, Wisma Bandar No. 18, Jalan Tuanku Abdul Rahman 50100 Kuala Lumpur For the Defendant: Tetuan Justin Voon Chooi & Wing D6-5-31A Bangunan Perdagangan d6 801 Jalan Sentul 51000 Kuala Lumpur
Wrong text, a broken link, out-of-date content, or a removal request — tell us and we'll check it against the official source.