Icon City Development Sdn. Bhd. (DAHULU DIKENALI SEBAGAI SIERRA PENINSULAR DEVELOPMENT SDN BHD) v 1. ) Philip Anthony a/l M Irdiahsamy (BA-12BNCvC-7-03/2022)

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WONG HUEY SHYAN LOH WING YEW …RESPONDEN-RESPONDEN 05/05/2025 09:49:10 BA-12BNCvC-7-03/2022 Kand. 50 Dalam Mahkamah Sesyen Di Shah Alam Dalam Negeri Selangor Darul Ehsan, Malaysia

Antara

Philip Anthony A/L M. Irdiahsamy

Annie A/P Joseph

Tan Kai Boon

Soo Huey Chiun

Lee Gim Hee

Tan Chin Poh

Lai Wai Mun

Kong Moi Cheng

Chew Swee Hoe

Chaw Lai Kit

Kong Kah Wai

Hiew Chee Faun

Yip Wai Teng

Wong Huey Shyan Loh Wing Yew … Plaintif-Plaintif Dan Icon City Development Sdn. Bhd. (No. Syarikat: 731177-K) (Dahulu di kenali sebagai Sierra Peninsular Development Sdn Bhd) … Defendan yang diputuskan oleh Hakim Mahkamah Sesyen, Puan Nik Nasimah Bt. Nik Mohammad pada 28.02.2022 GROUNDS OF JUDGMENT Introduction [1] This is an appeal by the Appellant/Defendant against the decision of the learned Session Court Judge (SCJ), after a full trial, who had allowed the Respondents/Plaintiffs' claim for Liquidated Ascertained Damages (LAD) for late delivery of vacant possession with cost of RM10,000.00. [2] Having heard both parties, perused the Appeal Record and read all the submissions filed, I dismissed the appeal on the grounds, inter alia, that this Court is bound by the decision of the Court of Appeal on the current position of law in dispute. [3] The Appellant has now appealed to the Court of Appeal, and my reasons are below. [4] For ease of reference, parties are referred to as they were at the Session Court. The Parties [5] Plaintiffs were purchasers of a "Small Office Versatile Office" (SOVO) unit in a project development known as "Icon City" (the project). [6] Defendant is the developer of the project, a stratified mixed commercial and residential development comprising SOVO, jewel shops, boutique offices, shop lots, and service residences. Brief Facts [7] Plaintiffs entered their respective Sale and Purchase Agreements with Defendant to purchase a SOVO unit (the SPA). [8] Clause 35A of the SPA provides that Defendant is to obtain the land conversion and building plan approval within twelve (12) months from the SPA date, subject to a six (6) month extension. [9] According to section 10 Schedule A of the SPA, vacant possession (VP) shall be delivered to the Plaintiffs within forty-two (42) calendar months from the date of the Period of Approval or Extended Approval Period. [10] Undisputedly, the approval for the land conversion was obtained on 17.1.2012, while the approval for the 1st building plan was obtained on 2.8.2012 (the approvals). [11] VP has been delivered to the Plaintiffs by notices dated 2.9.2016 and 22.9.2016, respectively. Plaintiffs now claim against Defendant for LAD due to late delivery of VP of the premises. [12] However, disputes arose due to the fact that the building plan was amended, and the last amendment was obtained on 17.11.2015 (about 3 years after the 1st approval). At that material time (17.11.2015), the construction of the building was almost 90% completed. [13] Plaintiffs contend that the 42 months should start from the date when the approvals were obtained, i.e. 2.8.2012. It should, therefore, follow that the 42 months begin to commence from 2.8.2012. [14] Defendant argued at the trial that the 42 months should commence from the date of the last amendment to the building plans on 17.11.2015 or after the date of extensions granted, calculated from the date of the SPA. Findings of the SCJ [15] There were two (2) main issues before the SCJ, that is:

The interpretation of Section 10 of Schedule A in the SPA, i.e. whether the 42 months commencing on the date of the 1st building plan approvals obtained or on the date of expiry of Period of

Approval or Extended Approval Period; and Whether the Plaintiffs are entitled to claim for the LAD up to the date the VP notice was issued or upon 14 days expiry of the VP notice. [16] The SCJ allowed the Plaintiffs' claims and held as follows:

The 42 months to delivery of VP starts from 2.8.2012 when Defendant has obtained the Conversion Approval and 1st Building Plan Approval, as the Defendant is able to start the building works pursuant to Clause 35A and Section 10 Schedule A of the SPA (paragraph 33 of the grounds of judgment).

Defendant's reliance on Clause 13.1.2 was misconceived as the clause did not state when the time starts but clearly provided such sum shall be calculated from the date of expiry of the period.

Section 10 Schedule A of the SPA only provides that the 42 months shall start upon the expiry of 18 months without considering whether the approvals have been obtained therefore, since the two conditions under Clause 35A of the SPA have already been fulfilled on 2.8.2012, the 42 months shall therefore start from 2.8.2012.

If Defendant's interpretation is accepted, there will be no definite date for Defendant to hand over the VP due to the change of dates of the amended building plan, which is unfair to the purchasers.

The 6-month extension only applies if the approval was not obtained within 12 months of the period of approval.

Contra proferentum rule applies (principles in interpreting an ambiguous contractual clause).

The High Court order in suit no. WA-11ANCVC-184-11/2019 cannot be taken into consideration as there was no ground of judgment prepared by the Learned High Court judge.

The Plaintiffs are entitled to claim for the LAD up until the expiry of 14 days from the VP notice. The issue in this appeal [17] The Defendant listed down a total of 10 grounds of appeal, but the main issue is focused, by both parties, on the interpretation of Clause 35A and Section 10 of Schedule A of the SPA. Principles of Appellate Intervention [18] An appellate court should be slow in disturbing the findings of facts arrived by the trial court and have the advantage of seeing and hearing the witnesses unless there are substantial and compelling reasons for disagreeing with the finding (see Herchun Singh & Ors v. PP [1969] MLRA 382). [19] In the Federal Court case of Ng Hoo Kui & Anor v. Wendy Tan Lee Peng, Administrator of the Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1, Zabariah Mohd Yusof FCJ delivering the judgment of the Court, held inter alia as follows: "An appellate court should not interfere with the trial judge's conclusions on primary facts unless satisfied that he was plainly wrong. The 'plainly wrong' test operates on the principle that the trial court has had the advantage of seeing and hearing the witnesses on their evidence as opposed to the appellate Court that acts on the printed records." [20] In Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd [2017] 5 CLJ 58 the Court of Appeal held as follows: "[20] Nevertheless there are occasions when appellate interference is warranted and these occasions have been well set out in numerous cases. Some of these occasions are:

where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations. (see Director of Forestry, Sabah & Anor v. Mau Kam Tong & Ors And Another

where there was no proper evaluation of the evidence by the trial judge. (see Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009] 6 CLJ 626; [2009] 6 MLJ 1);

where the decision arrived at by the trial court was without judicial appreciation of the evidence. (see Gan Yook Chin & Anor v. Lee tng Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1);

where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra Sdn Bhd [2008] 2 CLJ 284; [2008] 2 MLJ 87);

where the trial judge was plainly wrong in arriving at his decision. (see Lee ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97);

where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him. (see First Count Sdn Bhd v. Wang Yew Logging & Plantation Sdn Bhd [2013] CLJU 625; [2013] 1 LNS 625; [2013] 4 MLJ 693 which followed the Privy Council case of Choo Kok Beng v. Choo Kok Hoe &

where the judgment is based upon a wrong premise of fact or of law. (see Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] CLJU 1416; [2012] 1 LNS 1416; [2012] 4 MLJ 149)." Analysis and Findings [21] The present appeal involved an interpretation of the contractual clauses that both parties had attempted to construe to suit their perspective on the effect and calculation of the start and end date of the 42 months for the delivery of VP. [22] Defendant submitted that the clauses (Clause 35A and Section 10 of Schedule A of the SPA) indicate that the time to deliver VP shall commence from the expiry date of the Period of Approval (which is 12 months from the date of approvals of the conversion and the building plans) and inclusive of the Extended Period of Approval which amounted to a total of 18 months (12 plus 6). [23] Plaintiffs, on the other hand, contend that the 42 months should start from the date when the approvals were obtained, that is, 2.8.2012. The SCJ agreed with the Plaintiffs on this. [24] It is trite and settled law that an issue of interpretation or construction of a contract is a question of law to be determined by the Court and not by witnesses' evidence (refer to NVJ Menon v The Great Eastern Life Assurance Company Ltd (2004) 3 CLJ 96). [25] In so doing, the Court will give effect to the plain meaning of the clauses or words used however much it may dislike the result (see Nippon Express (M) Sdn Bhd v Che Kiang Realty Sdn Bhd (2013) 7 CLJ 713). [26] If there were two possible competing interpretations, as such in the present case, the one which makes more commercial sense should be preferred, and the Court is entitled to choose the construction which is consistent with business common sense and to reject the other (refer to SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor (2016) 1 CLJ 177). [27] The above was in line with the accepted principle of construction, the Contra Proferentum Rule; when the meaning of clauses in the contract contains ambiguity which cannot be resolved or reconciled, it is to be construed adversely to the party who proffered it for execution (discussed in Nippon Express (M) Sdn Bhd, supra). [28] Having those established principles of law in mind, I revert to the present appeal, and upon perusing an extensive exchange of arguments in a series of replies in submissions, the emphasis should centred on the readings of the provision in both Clause 35A and Section 10 Schedule A of the SPA. [29] For ease of reference, both clauses are reproduced as below: Clause 35A "The Developer shall at its own costs and expense obtain the following: -

The conversion Approval from the Appropriate Authority; and

The approval of the Building Plans; within twelve (12) months from the date of this Agreement (herein referred to as "the Period of Approval") and subject to a further extension of six (6) months from the expiry of the Approval Period (hereinafter referred to as "the Extended Approval Period")" Section 10 of Schedule A Time for delivery of Vacant Possession - Forty-Two (42) calendar months from the date of the Period of Approval or the Extended Approval Period. [30] From the plain reading of Section 10, the 42 months for the computation of LAD starts from the date Defendant obtained the authority's conversion approval and the building plan's approval, wherein both (approvals) were referred to as "the Period of Approval" in Clause 35A. [31] In this case, there were amendments to the building plans. Defendant submitted that the 42 months should start after the last amendment to the building plan, and Plaintiff disagreed and vehemently stated that it should be from the 1st approved building plan. [32] The SCJ agreed with the Plaintiff and explained that in order to have a definitive date, and moreover, work is allowed to begin, it should start from the date of the 1st approval. [33] I find no reason not to agree with the above SCJ's finding as such a decision is not in conflict with any provisions or clauses of the contract between both parties. [34] I find that the provisions of the clauses were clear and should not be creatively inserted by implication, nor should any terms be included by any party if the wordings/terms were never there, no matter how unfavourable they would be to the contracting parties. [35] Defendant shall complete and deliver the VP within the time for delivery of the same, which is 42 months from the date of the "Period of Approval" (Section 10 Schedule A). The Period of Approval is defined in Clause 1 and specifically explained in Clause 35A; that is, Defendant shall obtain the conversion and building plans from the appropriate authority within twelve months from the date of the SPA. Further extension is allowed if necessary. [36] The plural version of the phrase "building plans" inspired the Defendant to justify their contention that the final approval date of the amended building plan is the date defined as the "Period of Approval". [37] I would not stretch too far to read the clauses "in between the lines". Clause 35A did not state that the Defendant is entitled to the 18 months without taking any action pursuant to the clause. The direct definition of "Period of Approval" refers to the twelve months that the Defendant is obliged to get approval for, firstly, the conversion and, secondly, the building plans. Once that is done, construction work is to begin. Alterations or amendments to the building plans are inevitable and accepted in these kinds of projects; thus, they were recognised and allowed. However, it cannot be used as a reason or basis to extend the meaning of "Period of Approval". [38] Therefore, any subsequent approval of the building plan should not affect the commencement of the 42 months in order to maintain certainty on the start date. [39] The fact that Defendant is allowed to begin work after the 1st approval coincides with the meaning/intention of both Clause 35A and Section 10 as the regulating clauses to accommodate the parties' further action, that is, to deliver VP and later to calculate the LAD if there is a delay. [40] The Federal Court in Thein Hong Teck & Ors v. Mohd Afrizan Husain & Another appeal [2012] 1 CLJ 49 upheld the Court of Appeal's decision to set aside the High Court's decision that rewrote a statute and states as follows: “[31] … … Under the circumstances it is not the function of the Court to rewrite the statute in a way in which it considers reasonable. In other words, the High Court was not entitled to read words into that provision. Where the words of the statute are plain and unambiguous, the Court ought to give effect to its plain meaning… …" [41] I am also guided by the Court of Appeal case of Antara Vista Sdn Bhd v Rumaya Properties Sdn Bhd (2017) MLJU 2247 where it was held: "[19] One of the cardinal rules of interpretation of a contractual document has been that the Court ought not to look beyond what was contained within the four walls of the contract document. The contract document must contain within its four walls what the parties have agreed to be bound for, in the performance of the contract. What is not contained within its four walls would necessarily mean that such omission was intentionally so omitted by the contracting parties. It is not the role of the Court to read into the contract documents what was not expressly spelt out in the contract. The Court's role is to interpret, not to rewrite, the contract document for the parties. In the Federal Court case of Tractors Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd (1979) 1 MLJ 129 learned Justice Chang Min Tat FJ had occasion to state that 'where a contract has been reduced to writing, it is in the writing that we must look for the whole of the terms made between the parties.'” - emphasis added [42] As stated earlier in the introduction of this judgment, this finding is not unprecedented. Cases of a similar nature had reached the Court of Appeal recently, and it was decided that the above-mentioned clauses were interpreted to mean that the 42-month period for the computation of LAD starts from the date when the Defendant obtained the approvals for the conversion and the 1st approval of the building plan. [43] Though full grounds of judgment were not available, this decision (of the Court of Appeal) does not require reasonings of the finding because the notes of the proceeding clearly state the order of the Court of Appeal, which I am of the opinion binding on me. The cases before the Court of Appeal, decided by the Panel on the same day, 12 September 2024 were as follows:

Icon City Development Sdn Bhd v Lee Kean Hwa and 61 ors W-

Icon City Development Sdn Bhd v Lim Cheng Nguan and 17 ors B-

Icon City Development Sdn Bhd v Andrea Wu Huey Shyen W- 04(IM)(NCVC)-491-10/2022 [44] If I were to depart from these clear findings of the Court of Appeal, for whatever reason, it would undermine judicial hierarchy, which would be a dangerous precedent to set. [45] Federal Court in Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal [2006] 1 CLJ 577 observed as follows: “[3] Judicial hierarchy must be observed in the interests of finality and certainty in the law and for orderly development of legal rules as well as for the courts and lawyers to regulate their affairs. Failure to observe judicial precedents would create chaos and misapprehensions in the judicial system..” [46] Furthermore, the Court of Appeal in Adam Primus Varghese Abdullah v. Wee Loke Choon & Ors And Another Appeal [2019] 2 CLJ 190 reiterates: “[29] Apart from being contrary to the principle of stare decisis it would amount to a direct contradiction of two orders of a higher court by a lower court, which is wholly untenable. It effectively renders the decision of the lower court void as the lower Court has made an order in defiance of the order of the higher Court.” [47] Defendant submitted that it has similar cases pending before the Federal Court on the same issues, and therefore, stare decisis cannot be invoked until they were finally determined. [48] I disagree with the Defendant on the above contention and of the view that the present issue has already been heard and decided by the Court of Appeal and, hence, represents the current legal position. [49] On the issue of Plaintiffs’ entitlement to claim for LAD, undisputedly, clause 13.2.2 of the SPA provides that Plaintiff shall be deemed to have taken delivery of vacant possession of the said property upon expiry of the fourteen (14) days period from the date stated in the VP Notice, that is, on 15.09.2016 and 05.10.2016. Consequently, the Plaintiffs is deemed to have taken possession of the said property on the stated dates. Conclusion [50] Based on the reasons discussed above, having considered the submissions by both learned counsels as well as all the materials (Appeal Record) placed before me, I find that the SCJ had not misdirected herself in making her findings, and sufficient evaluation of evidence has been made. [51] Therefore, the decision of the SCJ is upheld and affirmed. This appeal is hereby dismissed with a cost of RM5000 to the Respondent, subject to allocator fees. Dated this: 2 May 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) Judge Shah Alam High Court NCVC 9 Counsels: For the Appellant: Eunice Kwong Messrs Lee & Poh Partnership For the Respondent: K L Wong together with Wong Renn Xin Messrs Ching, Tan & Associates