Parvathi A/P Periakaruppan v Amalan Setar (M) Sdn. Bhd. (BF-B52NCvC-1-11/2020)

This is my judgment in respect of the Plaintiff’s claim against the Defendants inter-alia for liquidated ascertained damages (“LAD”) amounting to RM36,397.26 as at 24.11.2020 which is still ongoing and for general, aggravated and exemplary damages. 17/03/2025 08:16:02 BF-B52NCvC-1-11/2020 Kand. 107

The Plaintiff is the purchaser of one double storey terrace house known as Geran No : 282616, Lot No.: 29541 Seksyen 20, Bandar Serendah, Daerah Ulu Selangor, Negeri Selangor, bearing the postal address of No. 19, Jalan Sari Alamanda 1/3A, Sari Alamanda, 48000 Rawang, Selangor Darul Ehsan (“the said property”).

The Defendant is a private limited company incorporated in Malaysia. The Defendant is in the business of housing development. In this case, Defendant is the developer to the project of Sari Alamanda.

While the 3rd party is the registered and beneficial owner of the double storey terrace house bearing the postal address of No. 19, Jalan Seri Alamanda 1/3, Sari Alamanda, 48000 Rawang, Selangor Darul Ehsan (“Property 1/3”) which is located at the next road which is situated at the back of the Plaintiff’s property.

On 13.01.2018, both the Plaintiff and the Defendant had entered into a Sale and Purchase Agreement, whereby the Plaintiff had agreed to purchase the said property and the Defendant had agreed to sell the said property to the Plaintiff at a selling price of RM350,000 (“SPA”).

It was an agreed term pursuant to clause 24 of the SPA that the vacant possession of the said property shall be delivered to the Plaintiff within 24 months from the date of the agreement. If the Defendant fails to deliver vacant possession of the said property within 24 months from the date of the agreement, Defendant is liable to the Plaintiff liquidated damages calculated from day to day at the rate of ten per centum (10%) per annum of the purchase price.

It is also agreed that pursuant clause 26 of the SPA, manner of delivery of vacant possession of the said property upon the following conditions:-

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 the subclauses 5(1) in accordance with the 3rd schedule and all other monies due under this Agreement and the Purchaser having performed and observed all the terms and covenants on this part of the agreement, and

the completion of any alteration or additional work under subclause 16(2), if any [8] Plaintiff had also agreed that upon the expiry of 30 days from the date of the service of a notice from the Defendant requesting the Plaintiff to take possession of the said property, whether or not the Plaintiff has actually entered into possession or occupation of the said property, the Purchaser shall be deemed to have taken delivery of vacant possession. [9] The Defendant’s architect had issued the Certificate of Completion and Compliance (“CCC”) of the Property in which Defendant had received the same on 04.12.2019 (at pg 48 of the CBOD, part B). [10] Defendant’s company then issued a notice to the Plaintiff vide a letter dated 20.12.2019 (1st Notice) (at pg 44 of the CBOD, part B) to inform Plaintiff to collect the vacant possession of the said property and that the keys are ready for collection. Through the letter, it was also informed that the Plaintiff has to contact the Defendant’s sales office within 14 days for an appointment for the collection of keys and vacant possession. Subsequently, an appointment on 26.02.2020 was fixed for the collection of keys and vacant possession of the said property (at pg 78 of the CBOD, part B). [11] On the date of the appointment dated 26.02.2020, the Plaintiff paid the outstanding sum and had received the keys of the said property. Subsequently, the Plaintiff and the Defendant’s representative then visited the said property. When visiting the said property, the Plaintiff and the Defendant’s representative were both shocked to find out that the walls in the kitchen was partially demolished and there were 3-4 Indonesian workers were at work. As such, the Plaintiff decided to return the keys of the said property to the Defendant in bewilderment. [12] During the visit to the said property, Plaintiff found that despite the kitchen wall had been partly demolished, an extended kitchen was in progress. The septic tank which is supposed to be outside the house was now inside the extended kitchen area. Plaintiff also saw that a wall divider was built between the living room and the kitchen. Another renovation was made to the bottom of the stairs which was intended to be a store room. Plaintiff then had taken pictures of all the renovation made to the Plaintiff’s said property. [13] Plaintiff later went to the sales gallery and demanded an explanation as to renovation made to the said property from Mr Lim/DW2. DW2 then had apologized and assured Plaintiff that he will settle the issue and requested Plaintiff not to take legal action against the Defendant. Later, upon investigation made by the Defendant, it was discovered that the 3rd party had sent his Indonesian workers to perform renovation works at the kitchen of the said property. [14] Consequently, on 2.3.2020, Plaintiff went to the sale office to discuss the matter. During the discussion, Plaintiff had requested a contractor of her choice to be appointed and that the renovation would follow the Plaintiff’s wishes. [15] According to the Defendant, Defendant’s representative is to perform the rectification works at the kitchen of the said property as follows :-

Installation of a new storeroom with a door;

(ii) Installation of a small room (with a door) at the dining room;

(iii) Installation of tiles of her choice at the living room;

(iv) Installation of walls at the exterior area of the kitchen;

Installation of a plaster ceiling at the living room; and

(vi) Installation of concrete top at the kitchen. [16] The Defendant’s representative informed the Plaintiff that DW2 needed to first obtain the Defendant’s approval and consent before agreeing to the Plaintiff’s request. Nevertheless, the DW2 informed that the Plaintiff may obtain quotation from her contractor for the abovementioned work as a reference first. Plaintiff again demanded that all renovation works should be made subject to the Plaintiff’s wishes and consent. [17] Plaintiff had later obtained a quotation dated 20.4.2020 from Sreem Matrix Reno for the renovation works amounting to RM28,000 and had submitted to DW2 on 4.5.2020. To Plaintiff’s dismay, the Defendant’s Management disagreed to the Plaintiff’s quotation on the additional items and Defendant had decided to rectify the kitchen area of the said property themselves in accordance to the original design and specification as stipulated in the SPA. The rectification works of the kitchen area of the said property had then commenced and was completed around 20.05.2020. [18] After Plaintiff had found out that the rectification works of the kitchen area of the said property had commenced by the Defendant, the Plaintiff and her brother contacted the Defendant’s representative with anger and frustration. They questioned him on the commencement of the rectification works and was dissatisfied as it was not in accordance to the Plaintiff’s wishes. Due to the incident, Plaintiff later lodged a police report via Serendah/001094/20 on 14.5.2020. [19] Prior to the police report made, Plaintiff and her brother had visited the said property to take photos before they went to Serendah Police Station. According to the Defendant, Plaintiff went to the sales gallery on 13.05.2020 and demanded for compensation, as the renovation works was not done in accordance with her wishes which is to add on the various installation work which exceeds what was originally agreed in the SPA. [20] Subsequently, Defendant later issued another notice to the Plaintiff vide a letter dated 22.05.2020 (2nd Notice) to remind the Plaintiff that Plaintiff has yet to call the office to make appointment and to take keys of the said property. Plaintiff did not respond or contact the Defendant’s representative regarding the handing over of the said property after the 2nd Notice. [21] On 02.06.2020, the Plaintiff, had instructed her solicitor, to issue a letter of demand to the Defendant inter-alia stating the following:-

Plaintiff alleged that the Defendant had delivered vacant possession of the Property to a third party and hence it constituted to negligence and breach of contract;

(ii) Plaintiff demanded for aggravated and exemplary damages amounting to RM100,000.00 due to the mental distress and agony encountered by the Plaintiff while demanding the renovation works at the kitchen area of the Property and re-installing tiles in accordance with her wishes.

(iii) renovation of the kitchen area and re-tile the floors according to Plaintiff’s preference by a contractor of Plaintiff’s choice and all costs to be borne by the Defendant. (at pg 84-86, of the CBOD, part B) [22] On 24.11.2020, Plaintiff had commenced a legal proceeding against Defendant for prayers as follows :-

gantirugi lewat serah berjumlah RM36,397.26 as at 24.11.2020 (dan masih berterusan);

faedah pada kadar 5% setahun ke atas amaun tuntutan di (a) dari tarikh penghakiman sehingga penyelesaian penuh;

Kos pengubahsuaian berjumlah RM28,000;

faedah atas kadar 5% setahun ke atas amaun ke atas kos pengubahsuaian berjumlah RM28,000 dari tarikh penghakiman sehingga penyelesaian penuh;

gantirugi am yang ditaksirkan oleh Mahkamah yang Mulia ini;

faedah pada kadar 5% setahun ke atas amaun gantirugi am dari tarikh penghakiman sehingga penyelesaian penuh;

gantirugi teruk dan teladan yang ditaksirkan oleh Mahkamah yang Mulia ini;

faedah pada kadar 5% setahun ke atas amaun gantirugi teruk dan teladan dari tarikh penghakiman sehingga penyelesaian penuh;

kos;

faedah pada kadar 5% setahun ke atas kos dari tarikh penghakiman sehingga penyelesaian penuh;

apa-apa relif yang difikirkan patut dan sesuai dan adil oleh Mahkamah Mulia ini. [23] Defendant had later filed a defence and counterclaim dated 21.12.2020 for Plaintiff had acted unreasonably and maliciously when Plaintiff refused to collect keys of the said property on 22.5.2020. Due to the filing of the action by the Plaintiff, the Defendant has suffered the following losses:

difficulty and inconvenience due to the existing civil suit filed by the Plaintiff, as follows:- a) difficulty and inconvenience on bank inquiries particularly on the review of existing facilities by the bank; b) difficulty and inconvenience on the approval of the end financing; c) difficulty and inconvenience on the bank loan application; d) impose of the higher interest on base lending rate due to the litigation record in the CCRIS and/or CTOS system.

(ii) Reputation and credibility losses and/or damages despite the fact that the Defendant has been complied its obligations as a housing developer at all material times. [24] Defendant had later filed an application to issue a 3rd party Notice against the Jaikanes A/L Manokaran. The application was allowed by this Honourable Court vide an order dated 3.3.2022. Jaikanes was later made as a 3rd party to the suit. [25] The 3rd party in their defence contended that the 3rd party had entered into the said property due to the negligence of the Defendant’s representative who had mistakenly shown a property belongs to the Plaintiff and handed over the Plaintiff’s house keys to the 3rd party. On 24.2.2020, the 3rd party had paid a deposit of RM500 to the Defendant as a deposit for the renovation. The payment of deposit of RM500 was a pre-condition to be complied with by all the purchasers before they can proceed with renovation to their own house. [26] After payment was made by the 3rd party, on 25.2.2020 the Defendant’s representative had unloaded the cement packaging in front of the said property and a sticker was paste at the said property. According to the 3rd party, at all material time, there were no sign boards displayed at the junction to show the road’s name where their property is located. The 3rd party only relied on the direction given by the Defendant’s representatives as to the location of the house. Plaintiff’s case : [27] It is the Plaintiff’s case that the vacant possession of the said property has not been handed over until to date and therefore Defendant is at breach of the agreed terms in clause 24(1) and 26(1) & (2) of the SPA. [28] Plaintiff had also averred that the notice issued on 20.12.2019 (“1st Notice”) was defective because the address of the property stated in the Hand-Over Vacant Possession Form was incorrect. The address mentioned in the forms is No.3 but the correct address of the said property is No.19, Jalan Sari Alamanda 1/3A, Sari Alamanda, 48000 Rawang Selangor (marked as P1). Due to defective notice, Plaintiff submitted that the clause 26(3) of the SPA is inapplicable. [29] Nevertheless, Plaintiff admitted that the Hand-Over Vacant Possession Form which was issued out on the appointment date on 26.2.2020 was correct (at pg 81-82 of the CBOD, part B). The date of the appointment was given by the Defendant as the earliest date available since other slots has been fully booked. [30] Plaintiff had also submitted that the demolition and damage to the said property cannot be deemed as defect pursuant to clause 27 of the SPA. Due to demolition and the said renovation, Plaintiff returned the keys to the Defendant and refused to sign the hand over form on the same day. Therefore the vacant possession has not taken place. [31] However, Plaintiff did not deny that Plaintiff had demanded the Defendant to rectify the said property according to her wishes and own choice of contractor and quotation to be borne by the Defendant. Plaintiff had admitted that Plaintiff went to see the Defendant’s representative to discuss on settlement proposal according to Plaintiff’s wishes. The Defendant’s representative later had requested Plaintiff to forward a quotation for renovation. Plaintiff had also admitted that Plaintiff had demanded that the renovation should be made according to her wishes. [32] Plaintiff also submitted that the renovation was done by the Defendant was not with the consent of the Plaintiff and without her knowledge. Defendant did not get back to Plaintiff after Plaintiff had forwarded the quotation by her own contractor. Plaintiff argued that the renovation was not in accordance to the agreed SPA. No proof that the said property was renovated according to original house design as per the SPA nor any new certificate of completion (“CCC”) was issued to verify the same. [33] Plaintiff argued that since a new notice dated 22.5.2020 (“2nd Notice”) was issued by the Defendant to the Plaintiff informing the Plaintiff to take possession of the said property, the 1st Notice is defective and inapplicable. Plaintiff argued that the vacant possession has not taken place until to date. [34] Plaintiff admitted that the quotation forwarded to the Defendant had been rejected by the Defendant. For the purpose of trial, Plaintiff had produced another quotation amounting to RM43,500 as the costs of renovation by Inspira Maju Resources (marked as P14) since the last quotation is outdated. [35] As regards to the general, exemplary and aggravated damages, Plaintiff submitted that Plaintiff has suffered a “loss of rental” from the date the said property is to be handed over to the Plaintiff which is starting 13.1.2020 until to date. Plaintiff during examination has testified that Plaintiff had suffered loss of rental of RM1000 per month since 13.1.2020 amounting to RM53,000. Plaintiff had also suffered loss of use after the Defendant failed to hand over the said property as per the SPA. Defendant had also acted unilaterally in renovating the said property without the Plaintiff’s consent. Defendant’s case [36] In rebuttal, the Defendant argued pursuant to clause 26(1) and (3) of SPA, that the said property is deemed to be handed over as early as 19.1.2020. Plaintiff failed to take possession after 30 days from the date of the 1st Notice. Plaintiff had also failed to prove that the said property was failed to be handed over in accordance to clause 26(1) and (3) of the SPA. [37] Defendant had also argued that Plaintiff had admitted that the Plaintiff had refused to take vacant possession of the said property. Therefore, Plaintiff is estopped from raising issue on the validity of the 1st Notice. Defendant had also argued that Defendant had never handed over the vacant possession of the said property to the 3rd party. [38] Defendant contended that there was no agreement between Plaintiff and the Defendant to renovate the said property according to the wishes of the Plaintiff. Plaintiff had also failed to served the notice or claim for costs of renovation pursuant to clause 29(1) of the SPA. [39] The quotation issued by the Inspira Maju Resources dated 16.12.2022 which is in favor to the Plaintiff should have been rejected by this Honourable Court because it is not supported by Plaintiff’s pleading. Whilst the quotation by Sreem Matrix Reno dated 20.4.2020 should not be at the consideration of this Court because it is still marked as ID4. [40] Defendant has also argued that Defendant has no obligation to the said property after the vacant possession had been handed over to the Plaintiff. It is the 3rd party who has negligently trespass the said property and not the Defendant. Furthermore, Defendant had taken steps to mitigate the losses. [41] The Defendant had submitted that the 3rd party is contributorily liable to the wall demolition and renovation to the said property. No prove to show that cement packaging were unloaded by the Defendant’s representative at the said property. Issues for the determination of this Honourable Court [42] After having heard the evidence by both parties, I conclude that the main issues for determination and as agreed by the parties (see enclosure 25) are as follows :- i) Whether the vacant possession of the said property has been delivered; ii) Whether the Plaintiff is entitled to damages for the late delivery of vacant possession of the said Property in accordance with clause 24(2) of the said SPA; iii) Whether Plaintiff is entitled to the renovation costs; iv) Whether there was an agreement to renovate the said property as per the Plaintiff's wishes; v) Whether Plaintiff is entitled to general, aggravated and exemplary damages for the Defendant's negligence; vi) Whether 3rd party is contributory liable to the claim made by Plaintiff; Findings: [43] It is undisputed fact that Plaintiff had received a notice dated 20.12.2019 (1st Notice) from the Defendant to take vacant possession of the said property. Upon receiving the said notice, Plaintiff had requested for an appointment date and Defendant had fixed an appointment date on 26.2.2020 for Plaintiff to collect the keys and to settle the outstanding payment so as to make effect to the handing over of the vacant possession. [44] I must start with the premise that there shall be freedom of contract between parties and this Courts should not rewrite nor interfere with the terms which have been agreed voluntarily between the parties. The position of the law in this respect is clear. (refer to the case of Nippon Express (M) Sdn Bhd v. Che Kiang Realty Sdn Bhd & Another Appeal [2013] 7 CLJ 713 CA; [2014] 1 MLRA558; [2013] AMEJ 0282). [45] Defendant has agreed that it is a term of the SPA that the vacant possession of the said property is to be delivered within 24 months from the date of the SPA. Time shall be the essence of agreement in relation to all of the provisions in the SPA. The SPA was signed by Plaintiff and Defendant on 13.1.2018. Therefore, according to the clause 24(1) the SPA, Defendant has an obligation to deliver the vacant possession of the said property before 13.1.2020. Clause 24 of the SPA is spelled out as follows :- [46] Therefore, if the Defendant failed to deliver the said property before the expiry of 24 months from the date of the SPA, Defendant is liable to pay the liquidated ascertained damages (LAD) calculated from day to day at the rate of 10% per annum of the purchase price. It is the stance of the Defendant that the vacant possession of said property has been delivered on 19.1.2020 pursuant to clause 26(1) and (3) of the SPA. Whilst, it is the Plaintiff contention that the said property has never been delivered to the Plaintiff until to date. [47] To answer to the issue (i) and (ii), clause 26 of the SPA must be referred to and adhered by parties. Clause 26 of the SPA provides manner of delivery of vacant possession as follows :- [48] It is undisputed fact that Plaintiff had received the 1st Notice of vacant possession dated 20.12.2019. Notwithstanding that the appointment date was fixed later or no occupation or entered into possession of the said property, clause 26(3) of the SPA clearly states that the Plaintiff shall be deemed to have taken delivery of vacant possession upon the expiry of 30 days from the date of the service of the notice which is the 1st Notice. [49] I am agreeable with the submission made by Defendant that the vacant possession has taken place as early as at 19.1.2020. Since the said property is to be delivered by or before 13.1.2020, I find that the liquidated ascertained damages should be calculated from 12.1.2020 until the date that the vacant possession is deemed to have taken place which was on 19.1.2020. Thus, the liquidated ascertained damages amounting to RM671 is the correct award to be granted to the Plaintiff. [50] Furthermore, I find Defendant had complied with clause 26(1) of the SPA as to the manner of the delivery of the said property is to be made. In this case, Plaintiff did not challenge or question on the validity of the Certificate of Completion and Compliance for the said property. The CCC ( at pg 48 of the CBOD, part B) of the said property has been produced by the Defendant as follows :- [51] During cross-examination, I notice that there was no serious challenge by the Plaintiff as regards to Defendant’s compliance as per clause 26(1) (a)-(d) of the SPA. The argument made by the Plaintiff was that the said property structure and building was not in accordance to workmanship and structural plan of the SPA. I notice that the CCC was issued long before the 1st Notice was issued nor before the appointment date was fixed. [52] The demolition of the kitchen wall and other renovation had been made to the said property by the 3rd party was well after Plaintiff had collected the keys or after the 1st Notice was issued. It is the evidence of the 3rd party that the 3rd party had collected the keys of his unit on 2.1.2020. The 3rd party had paid for the renovation fee on 24.2.2020. Therefore, I find that the demolition partly to the kitchen wall of the said property was done after the 1st Notice was issued. In other words, the said property was intact before the 1st Notice was issued otherwise the CCC would not have issued by the architect. [53] I find that the part of the incident where the Plaintiff had discovered that the said property was in demolition by the 3rd party does not affect to the Defendant’s compliance as to manner of delivery. However, I find that there is negligence on the part of the Defendant in distributing and managing the keys after the vacant possession had taken place. It is the evidence of DW2 that DW2 had also shocked with the situation and immediately negotiated with the Plaintiff on rectification. DW2 had also admitted that DW2 had requested for the Plaintiff to put forward a quotation for Defendant’s consideration. [54] In support to the negligence by the Defendant, it is the evidence of DW3, that upon payment of the deposit of RM500 made by the DW3, the Defendant’s representative had unloaded the cement packaging in front of the said property and paste a sticker for renovation at the said property. I am not in agreeable to the submission made by the Defendant that they have no duty of care towards the Plaintiff after the vacant of possession of the said property had taken place. [55] I am of the opinion that as the developer who handled the project, Defendant has duty to ensure that the placement of each units must be in accordance to the signed SPA. The negligent occurred when the Defendant’s representatives had mistakenly addressed Plaintiff and the 3rd party to their units and keys. It is the evidence of DW3, that there were no sign board which can guide purchasers or to any of the workers appointed by the 3rd party as to the name of the road. DW3 in his evidence stated that the keys that has been given by the Defendant to him is fit to open the door of the said property. [56] Further, it was the evidence of DW3 that the Defendant’s representatives had paste a sticker for renovation to the said property which was actually Plaintiff’s purchased property. The sticker was issued by the Defendant after purchaser pay a deposit to start renovation. [57] Without the sign boards at each junction to specify the name of the roads, it is foreseeable that purchasers or any laymen will not have knowledge to the name of the road which attached to their house as they are unfamiliar with the construction site. Plaintiff and the 3rd party verily depended on the direction given by the Defendant as their developer to their purchased units. It is illogical they can find their own way to their units. Therefore, I find Defendant is negligent so as to cause the catastrophe between Plaintiff and the 3rd party. [58] For this, I am guided by the Federal Court case of Lim Kar Bee v. Abdul Latif Ismail [1977] CLJU 64; [1977] 1 LNS 64; [1978] 1 MLJ 109, Raja Azlan Shah FCJ (as His Highness then was) referred to the common law principles of foreseeability and proximity as the principles giving rise to a duty of care. At p. 117 of the judgment His Lordship said that: “The claim in negligence postulates a breach by the defendant of some duty owed by him to the plaintiff. Accordingly, the first question to be asked and answered is whether a duty was owed to the plaintiff by him of which he committed a breach. In order to determine the existence of this duty, I think a citation of two passages from well-known judgments are relevant. The first is from the judgment of Brett M.R. in Heaven v. Pender (1883) 2 QBD 503: "Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." The second is from the famous dictum of Lord Atkin in Donoghue v. Stevenson [1932] AC 562, 580: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be -- persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."... [59] While in another case of Federal Court, Lok Kok Beng & ORS v. Loh Chiak Eong & Anor [2015] 7 CLJ 1008, Zainun Ali FCJ explained the needs for foreseeability as follows:- “Foreseeability [36] The threshold test in determining the existence of duty of care is that of foreseeability. The rule in the case of Heaven v. Pender as quoted above envisaged that a man ought to have foreseen certain consequences if he created a real risk of them. The test is whether damage to someone in the plaintiff's position was a reasonably foreseeable consequence of the defendant's negligence. Reasonable foreseeability does not of itself lead to a duty of care and that the speech of Lord Atkin of "persons who are so closely and directly affected by my act" stressed not only on the requirement of foreseeability of harm but also that of a close and direct relationship of proximity. [37] By foreseeability, liability for a consequence is imposed and judged by the standard of the reasonable man that he ought to have foreseen it. In the words of the Privy Council in Overseas Tankship (UK) Ltd Appellants; And Morts Dock & Engineering Co Ltd (The Wagon Mound) - [1961] AC 388, 423: For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them) the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them. [38] Closer to home, the Singapore Court of Appeal in Spandeck Engineering (S) Pte Ltd v. Defence Science & Technology Agency [2007] 4 SLR 100 observed that the requirements of foreseeability is merely a "threshold question" that needs to be answered in every negligence claim, having regard to the facts of the case without resorting to any legal formulation. By the term "factual foreseeability" Spandeck takes the view that it is from a factual perspective, that the defendant ought to have known that the claimant would suffer damage from his carelessness. Being merely factual, it is not concerned with the kind and extent of losses suffered by the plaintiff and that it must not be confused with the question of remoteness of damages in tort.” [60] Based on the above principle, I find Plaintiff had satisfied the elements of foreseeability and proximity. I also find that Plaintiff had pleaded action for negligence at para 29 of the amended Statement of Claim (see at pg 23, of the Amended BOP) so as to allow the general damages to the Plaintiff. [61] It is the evidence of PW1 that she had suffered losses as to the rental of the said property which can yield rental up to RM1000 per month if the said property was not damaged by the renovation made by the 3rd party. I find the sum of RM1000 per month for a double storey terrace house located at the suburb of the Klang Valley is a reasonable and not excessive. Therefore, I allow the loss for rental of the said property commencing from 19.1.2020 until the date the 2nd Notice was issued. [62] It is the evidence of DW1 and DW2 that the said property was back to the original position before the 2nd Notice was issued. DW1 and DW2 that the rectification made had followed the specification in the SPA. Nonetheless, Plaintiff refuse to collect the keys and left the said notice unattended and no inspection was made by the Plaintiff until to date. I find that Defendant’s action to rectify the said property back to its original position is an attempt to mitigate losses. [63] On the other hand, I find that the Plaintiff’s action for not responding to the 2nd Notice given by the Defendant and elected not to collect the keys and keep the property idle are at her own expense. I find neither the claim for liquidated ascertained damages after the 2nd Notice until today is uncorroborated by the SPA nor the contention that the vacant possession is not taken place is distinct from law of contract. [64] Further, to allow the claims for LAD after the refusal of Plaintiff to respond to the 2nd Notice, would be unlawful and has enriched Plaintiff when the vacant possession had already taken place according to clause 26(3) of the SPA. Therefore, I am not hesitated to allow the loss of rental until the date the said property is put to original position and ready for occupation. [65] Last but not least, I find nothing exceptional in the Defendant’s conduct that warrants any award for aggravated or exemplary damages (see principle in cases of Rookes v. Barnard [1964] AC 1129 and Big Junkyard Sdn Bhd & Anor v. Chan Kah Wai [2023] 1 CLJ 564; [2022] MLJU 2923). [66] After considering the evidence before me, I allow the Plaintiff’s claim for liquidated ascertained damages amounting to RM671 (from 12.1.2020 – 19.1.2020) and general damages for loss of rental of RM4000 for 4 months (from Jan, 2020 – May, 2020) with costs of RM10,000. I have also dismissed the counterclaim filed by the Defendant against the Plaintiff and dismissed Defendant’s claims against the 3rd party for failure to prove their claim as prayed with costs of RM10,000 each. I hereby order so. NurulMardhiah (NURUL MARDHIAH BINTI MOHAMMED REDZA) Judge Mahkamah Sesyen Kuala Kubu Bharu Selangor. Dated: 14.3.2025 For the Plaintiff : M/s Nazrin Nasir T Anand & Co., Kuala Kubu Bharu, Selangor. For the Defendant : M/s Chee Krishnan & Associates, Taman Tun Dr. Ismail, Kuala Lumpur. For the 3rd Party : M/s Michael & Sinatamby, Shah Alam, Selangor.