the court is of the view that in light of the certificate, it is deemed conclusive that the reasons for the delay in the completion and delivery of vacant possession of the unit are stated in the certificate. The court cannot and is not at liberty to go behind the certificate to question its validity in the absence of any evidence to suggest that the certificate was issued as a result of inter alia, fraud, misrepresentation or mala fides. It is trite that the court should not intervene to rewrite the terms and conditions of the Sale and Purchase Agreement willingly accepted by the respondent when it entered into the agreement with the appellant;” [12] The above excerpt proffers the legal proposition that once an architect’s certificate is issued allowing an extension of time, the decision of the architect’s certificate is final, conclusive and binding. Parties, and even the court, are not supposed to go behind the certificate to question its validity. Although the Court of Appeal took a strict interpretation of the architect’s certificate as final, conclusive and binding, it did not shut the other party’s right completely to challenge the certificate. A party could still challenge the validity of the certificate in the event there is “any evidence to suggest that the certificate was issued as a result of, inter alia, fraud, misrepresentation or mala fides.” Page 7 of 11 [13] It is the considered view of this Court that the Court of Appeal in Malaysia Land Properties Sdn Bhd (supra) did not limit the grounds to challenge an architect’s certificate only on ‘fraud’, ‘misrepresentation’ and ‘mala fide’. ‘Fraud’, ‘misrepresentation’ and ‘mala fide’ are merely among other grounds which a party may seek to challenge the validity of an architect’s certificate. This is evidence from the later part of the judgment at p. 674, where the Court of Appeal held: “…Suffice to say that unless the respondent can demonstrate that the certificate issued was manifestly erroneous or was issued with mala fides, the certificate will have to be accepted by the court;” [14] ‘Manifestly erroneous’ can be a ground too to review the validity of an architect certificate. What may tantamount to ‘manifestly erroneous’ can only be determined on a case to case basis. [15] The Court of Appeal in Malaysia Land Properties Sdn Bhd (supra) distinguished Araprop Development Sdn Bhd v Leong Chee Kong & Anor [2008] 1 CLJ 135, another Court of Appeal decision, in that the delay in that case was not a delay as stipulated by the exclusion clause of the sale and purchase agreement. The delay in that case was caused by the delay of the developer’s (appellant’s) sub-contractors who were under the control of the developer. Further, there was no final, conclusive and binding clause like the one in Malaysia Land Properties Sdn Bhd. [16] The facts in the present case could be distinguished from the facts in Malaysia Land Properties Sdn Bhd (supra). Firstly, in Malaysia Land Page 8 of 11 Properties Sdn Bhd, the architect had in its letter to the developer (appellant) appended a summary stating the reasons for the grant of extension of time to the developer. Secondly, the architect had made available any information in relation to the granting of the extension of time to the purchasers upon request. The Court of Appeal was of the opinion that since the respondent (purchaser) did not apply for further and better particulars and/or discovery of documents before the trial, therefore, the architect’s certificate would be final, conclusive and binding on its face value. It was on these two peculiar finding of facts that the Court of Appeal held that the decision of the architect’s certificate was final, conclusive and binding. [17] In the present case, the reason provided by the defendant’s engineer’s certificate was that due to administrative procedure and nationwide shortage of material, and therefore, it was totally beyond the developer’s control. The defendant appended letters from Tenaga Nasional Berhad (TNB) which mentioned nothing of the nationwide shortage of material. The letters merely stated the targeted date to complete the supply of electricity to the project. All three letters (see Rekod Rayuan pp. 84, 88 and 92) from TNB merely informed of the targeted dates. The reason stated in the engineer’s certificate did not correspond with the supporting documents from TNB. The engineer’s certificate, by appending the TNB’s letters, was representing to the purchasers that it was the TNB’s fault in completing the supply of electricity to the project due to a nationwide shortage of materials that were required to complete the works. However, TNB’s letters did not mention any shortage of material, let alone nationwide shortage of material. It was the defendant’s own engineer who made a bare allegation that there was a nationwide shortage of material. This Page 9 of 11 representation was not supported by TNB’s letters. As such, the engineer’s certificate could be said ‘manifestly erroneous’ and/or a ‘misrepresentation’ to the purchaser. [18] The facts in the present case could also be distinguished in that the purchasers and/or the plaintiffs were not informed that further information was available upon request in relation to the granting of extension of time by the engineer as opposed to the facts in Malaysia Land Properties Sdn Bhd. [19] In the instant case, there was no evidence in the defendant’s case to support the statement made by the engineer in its certificate. The defendant’s case weighed upon only on the engineer’s certificate as final, conclusive and binding. But, as explained above, the engineer’s certificate was ‘manifestly erroneous’ based on the contents of the certificate and its attachments. The defendant failed to adduce evidence to show that the engineer’s certificate was correctly issued. [20] Further, a final, conclusive and binding clause on an architect’s certificate for granting an extension of time could only be relied on when the information and reason given by an architect is supported by cogent documentation, and that information and documentation ought to be available for inspection upon request. [21] The Court is not precluded from going behind the certificate and from questioning the validity of the certificate when the architect’s/engineer’s certificate is ‘manifestly erroneous’ on its face, despite there being a final, conclusive and binding clause. On the facts of this case, this Court was of the opinion that there was manifest error Page 10 of 11 on the face of the engineer’s certificate, and it seems there was also a misrepresentation of fact to the plaintiffs as well. [22] The legal proposition in the Court of Appeal decision is not a carte blanche for the defendant to avoid liability to pay liquidated and ascertained damages whenever there is delay by relying on a clause allowing an architect/engineer to issue a certificate to grant an extension of time to hand over vacant possession. [23] There are exceptions for the application of the legal proposition in Malaysia Land Properties Sdn Bhd, and the facts of this instant case fall within those exceptions. [24] The facts in this instant case could be distinguished from Malaysia Land Properties Sdn Bhd as explained above. Further, the facts of this instant case fall squarely within the grounds where an architect’s/engineer’s certificate could be challenged. [25] When an architect’s/engineer’s certificate could be challenged, this would mean that the court could go behind the certificate to consider if there was evidence to support the architect’s/engineer’s certificate. [26] Based on the above reasoning, therefore, it was incumbent upon the defendant to adduce evidence to support its averment that there was a nationwide shortage of material, and as a result of that, the TNB could not complete the supply of electricity to the project, and the nationwide shortage of material as well as the completion of TNB’s work were beyond the control of the defendant. Page 11 of 11 [27] At the lower court during the trial, the defendant did not lead any evidence in support of its claim there was a nationwide shortage of material which led to TNB’s delay in the supply of electricity to the project. Further, no witness from TNB was called to testify as to why TNB had to postpone the targeted dates several times. As such, the Magistrate was correct to arrive at a decision that the defendant did not prove its case that there was a nationwide shortage of material which resulted in a delay in handing over the vacant possession of the said property and the cause of the delay was beyond the control of the defendant. Conclusion [28] Based on the above reasoning, this Court dismissed the defendant’s appeal. This Court ordered the defendant to pay costs of RM2,000.00 to the plaintiff. -Sgd- …………………………………. (CHOO KAH SING) Judicial Commissioner High Court Johor Bahru Counsel for the defendant/ appellant : Muhammad Adam (Nur Syamimi Amalina with him) Tetuan Adam Abdullah & Mani Counsel for the plaintiff/ Respondent : Simon Tay Tetuan Tay L.E. & Co.