Parvathi A/P Periakaruppan v Amalan Setar (M) Sdn. Bhd. (BA-12BNCvC-50-08/2024)

This case concerns a dispute between a purchaser and a developer. They had entered into a Sale and Purchase Agreement for the purchase of a double-storey house in Rawang.

After the developer obtained the requisite Certificate of Completion and Compliance, it duly issued a Notice to the purchaser to take vacant possession of the property. However, due to an inadvertent mix-up of addresses, the keys to the purchaser’s house were mistakenly handed over to a contractor tasked with renovation works intended for a different property. The purchaser was thus shocked to discover their house in a state of renovation, rendering it uninhabitable.

This led the purchaser into filing a claim against the developer in the Sessions Court claiming that vacant possession has not been delivered and thus she was entitled to liquidated damages and for damages for loss of use of the house (loss of rental).

The developer sought a declaration by way of a counterclaim that vacant possession was delivered on 26 February, 2020.

There was also a third-party claim.

At the conclusion of trial, the Sessions Court allowed the purchaser’s claim for liquidated damages for 7 days and damages for loss of use of the house (rental income) for 4 months (at RM1,000.00 per month) with costs of RM10,000.00.

However, the Sessions Court dismissed the developer’s counterclaim and the third-party claim, each with costs of

Both parties were dissatisfied with the above decisions and have filed their respective Appeal (Enclosure 1) and Cross-Appeal (Enclosure 3).

These Appeal and Cross-Appeal relate to the decisions made on the main claim.

The developer has since withdrawn its Cross-Appeal.

The parties are referred to as they were in the Sessions Court.

The prevailing issue in this appeal relates to the question of whether the Plaintiff is entitled to the reliefs as per her Statement of Claim. The Decision of this Court

This Court has approached this appeal by way of re-hearing – as mandated under Order 55 rule 2 of the Rules of Court 2012 – and will accordingly adhere to the applicable and established principles governing this aspect of the law.

In determining and arriving at its conclusion, this Court has taken into account the factual matrix of the case, carried out an independent assessment and re-evaluation of the evidence before it and considered the authorities and submissions relied and made by the parties.

Based on Clause 24(1) in the Sale and Purchase Agreement, vacant possession was supposed to be handed to the Plaintiff/Appellant on 12 January, 2020.

On this issue of vacant possession, Clauses 26(1) and 26(2) have been pitted against Clause 26(3) of the Sale and Purchase Agreement. These clauses must also be read and understood in the context of the facts and evidence established in the course of trial, and together with the other Clauses in the Sale and Purchase Agreement, one of which being Clause 24.

Clauses 24 and 26 of the said Agreement state as follows:

Time for delivery of vacant possession

Vacant possession of the said Property shall be delivered to the Purchaser in the manner stipulated in clause 26 within twenty-four (24) months from the date of this Agreement.

If the Developer fails to deliver vacant possession of the said Property in the manner stipulated in clause 26 within the time stipulated in subclause (1), the Developer shall be liable to pay to the Purchaser liquidated damages calculated from day to day at the rate of ten per centum (10%) per annum of the purchase price from the expiry of the period stipulated in subclause (1) until the date the Purchaser takes vacant possession of the said Property.

The Developer shall pay any liquidated damages referred to in subclause (2) to the Purchaser immediately after the Developer has given notice requesting the Purchaser to take possession of the said Property In the manner stipulated in clause 26, failing which the Purchaser shall be entitled to deduct such liquidated damages from any instalment of the purchase price due to the Developer. .

For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Purchaser ‘takes vacant possession of the said Property.

Manner of delivery of vacant possession

The Developer shall let the Purchaser into possession of the said Property upon the following:

the issuance of a certificate of completion and compliance;

water and electricity supply are ready for connection to the said Building;

the Purchaser having paid all monies payable under subclause 5(1) in accordance with the Third Schedule and all other monies due under this Agreement and the Purchaser having performed and observed all the terms and covenants on his part under this

the completion of any alteration or additional work under subclause 16(2), if any.

The delivery of vacant possession by the Developer shall be supported by a certificate of completion and compliance and includes the handing over of the keys of the said Building to the Purchaser.

Upon the expiry of thirty (30) days from the date of service of a notice from the Developer requesting the Purchaser to take possession of the said Property, whether or not the Purchaser has actually entered into possession or occupation of the said Property, the Purchaser shall be deemed to have taken delivery of vacant possession.

This Court is of the considered view that the “deeming provision” in Clause 26(3) is subject to the terms in the other clauses in the Sale and Purchase Agreement.

The Plaintiff in having “facilitated” the intervening act by the third-party – rendering the premises as uninhabitable – vacant possession cannot be deemed to have been given to the Plaintiff as of 19 January 2020 (30 days after issuance of the Notice on 19 December, 2019.

However, the second Notice dated 22 May, 2020 is valid. By virtue of Clause 26(3), vacant possession is thus deemed to have been given on 22 June, 2020.

Accordingly, the Plaintiff is entitled to liquidated ascertained damages from 13 January, 2020 to 21 June, 2020.

On the issue of loss of rental income, the award of RM4,000.00 is substituted with the sum of RM5,000.00

The Plaintiff is awarded costs of RM5,000. Dated: 30 September, 2025 sgd (CHOONG YEOW CHOY) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsel: For the Appellant : T. Ananathan Farah Nur Atiqah Binti Bahari (Messrs Nazrin Nasir T. Anand & Co.) For the Respondent : Tiffany Chee (Messrs Chee, Krishnan &