Pink Alliance Sdn Bhd v Mah Sing Properties Sdn Bhd (JA-11BNCvC-6-07/2022)

This is an appeal by the Appellant against the decision of the Magistrate that dismissed the Appellant’s claim after the full trial. [2] After having read the grounds of the judgment of the Magistrate, the Appeal records, parties’ written submissions, and after having heard the oral submissions of the parties, I allowed the appeal filed by the Appellant with costs of RM5000.00 to be paid by the Respondent to the Appellant.

Below are the grounds of my decision. BRIEF BACKGROUND

The background facts in this appeal are gathered from the Appeal Records and submissions filed by the parties and stated in chronological order.

The Respondent is a developer of a commercial project known as "iPARC @ Tanjung Pelepas" with a total area of approximately 210.28 acres (hereinafter referred to as "the Project").

The Appellant has signed a sale and purchase agreement dated 31.12.2012 with the Respondent (hereinafter referred to as "SPA") to purchase from the Respondent a three (3) storey office shop known as "Lot No. S6" in the Project (“the Property”) with a purchase price of RM768,000.00 ("the Purchase Price").

According to Clause 18.1 of the SPA, the Respondent must 3 deliver vacant possession of the Property to the Appellant within thirty six (36) months from the date of the SPA, by 31.12.2015. If the Respondent failed to do so, the Respondent must pay damages at a rate of 8% per annum based on the Purchase Price (“LAD”) for the delay pursuant to the same clause.

The Respondent delivered vacant poseession through a Notice Delivery of Vacant Possession dated 17.11.2016 ("Notice of Delivery") which is about three hundred and twenty nine (329) days later and the presumed date of delivery of the vacant possession of the Property was seven (7) days thereafter on 24.11.2016.

Hence, accordance to Clause 18.1 of the SPA, the Appellant claimed the LAD from the Respondent amounting to RM55,380.17 based on the following calculation: (RM768,000.00 x 8%) / 365 days a year x 329 days = RM55,380.17

The Respondent contended that the Appellant was not entitled to claim LAD as the delay in the delivering of vacant possession of the Property was due to shortage of material by Tenaga Nasional Berhad (“TNB”) and that the engineer has issued letters of extension of time (“EOT”) extending the thirty six (36) months to deliver the vacant possession of the Property, and that the delay is beyond the control of the Respondent.

However, the Appellant argued that the Respondent has delayed in applying for the electricity supply to the Project and the Respondent's own delay and lack of planning have caused the delay. ISSUES TO BE DETERMINED [12] The issues for the determination of this Court are as follows:

whether the Appellant is entitled to the LAD as claimed;

whether delay in delivery of vacant possession was due to nationwide shortage and administrative procedure of TNB and hence it is an event of force majeure under Clause 23 of the SPA or whether the delay was due to the lack of proper planning on the part of the Respondent. COURT ANALYSIS AND FINDINGS Whether the Appellant is entitled to the LAD as claimed [13] It is not disputed that there was a delay in delivery of vacant possession of the Property to the Appellant by the Respondent and the calculation of LAD was based on Clause 18.1 of the SPA. [14] Clause 18.1 of SPA is reproduced as follows: “Provided the Purchaser shall have paid the Purchase Price in full and provided the Purchaser shall have faithfully performed all the terms and conditions set out in this Agreement the Vendor shall deliver vacant possession of the Property free from all encumbrances to the Purchaser within Thirty Six (36) months from the date of this Agreement (hereinafter referred to as “the Delivery Period”), failing which the Purchaser shall be entitled only to liquidated damages at the rate of Eight per centum (8%) per annum of the total amount paid to date by the Purchaser until actual or deemed delivery of vacant possession of the Property. Apart from the above rights the purchaser shall not have any other rights against the Vendor regardless of whether or not the Purchaser shall have suffered damages of whatsoever kind. Such liquidated damages shall be paid by the Vendor to the Purchaser immediately upon the date the Purchaser takes vacant possession of the said Property. For the avoidance of doubt, any cause of action to claim for liquidated damages by the Purchaser under this clause shall accrue on the Purchaser takes vacant possession of the said Building. Vacant possession of the Property shall be delivered to the Purchaser by way of Vendor notifying the Purchaser in writing to take the same within Seven (7) days of the receipt of the notice and vacant possession of the Property shall be deemed to have been taken by the Purchaser upon the expiry of the said Seven (7) days regardless of whether or not the Purchaser shall have physically taken the same or entered into occupation of the Property.”. [Emphasis added] [15] Based on Clause 18.1 above, the Appellant is entitled to claim for the LAD against the Respondent when the delivery of the vacant possession is more than thirty six (36) months. However, the Respondent argued that the Appellant was not entitled to claim for the LAD as the delay of TNB to supply electricity supply was due to nationwide shortage of material and administrative procedure of TNB. TNB had postponed the target date for completion of the electricity supply works twice, February 2016 and August 2016 via TNB’s letter dated 19.11.2015 and 10.4.2016 respectively. Hence, the delay was beyond the control of the Respondent as it is the events of force majeure under Clause 23 of SPA. [16] Clause 23 is reproduced for ease of references: “The Vendor shall not be liable in any way if, in the Vendor’s Architect or Engineer’s opinion, any delay in completion of the Property or any failure by the Vendor to fulfill any of its obligations hereunder is due to or caused by force majeure…..delay by the Appropriate Authorities or other public authorities in supplying water and/or electricity to the Property…” [Emphasis added] [17] In order to determine the issues raised by the Respondent, I will examine the evidence presented during the trial at the Magistrate Court. Whether the delay in delivery of vacant possession was due to shortage of material and administrative issues of TNB and hence it is an event of force majeure under Clause 23 of the SPA or whether the delay was due to the lack of proper planning on the part of the Respondent [18] It is not disputed by the Parties that there was a delay in the electricity supply for the Project. The Respondent contended that delay in supplying electical supply was due to shortage of material and administrative procedure of TNB. The Respondent argued that those materials could only be purchased by TNB and TNB is the sole service provider for the electricity supply. The Respondent was not allowed to appoint other contractors to complete the electricity suppy works. The events were beyond the control of the Respondent and therefore it fell within the event of force majeure. Thus, based on Clause 23 of the SPA, the Respondent was not liable to pay any LAD to the Appellant. [19] The Respondent claimed that the Architect, SD5 from Messrs. Akipro Chartered Architect who has attended all the meetings and has knowledge of the delay by TNB in completing the electricity supply works to the Project. SD5 has given his opinion on 13.11.2015 that the delay by TNB in completing the electricity supply works to the Project has caused the delay in the completion of the Project. Subsequent thereto, SD5 has vide a letter dated 16.11.2015 requested the Perunding Cekap to take further action. Thereafter, a first EOT letter was issued by Perunding Cekap on 19.11.2015 (the “first letter of EOT”), hence the EOT for the completion of the Project ought to be granted to the Respondent. [20] The Respondent claimed that the decision of the Magistrate in holding the EOT letters issued by the SD7 who is the Electrical Consultant, Perunding Cekap [see pages 556, 557 and 559 of Appeal Record Part C (Volume 5)] are valid for reason that the delay was due to TNB’s administrative procedures and the nationwide shortage of materials. The EOT given by the Engineer are necessary, accurate and reasonable. [21] Therefore, the Respondent argued that the EOT granted by the Engineer was final and binding on the Appellant. The Respondent claimed that they have informed the Appellant of the EOT via their letters dated 7.1.2015 and 20.6.2016 respectively. Thus, the Appellant was not entitled to the LAD as claimed. [22] In the present case, the first letter of EOT and the letter of EOT dated 13.4.2016 (the “second letter of EOT”) were not issued by the Architect, SD5 who was the Principal Submitting Person (“PSP”) and also Superintendent Officer (“SO”) for the Project as stated in Form C of the Certificate of Completion and Compliance (“CCC”). However, SD5 did not issue the letters of EOT instead he has granted his rights to issue the letter of EOT to SD7. These two (2) letters of EOT were subsequently issued by the Electrical Engineer, SD7 who was not the SO and PSP for the said Project. [23] SD7 never attended any meeting with TNB and admitted that he never attended any site meeting during the cross-examination [see pages 234 and 235 of the Appeal Record Part B (Volume 2)]. SD7 obtained the information from his employees namely Richard Tan and Norazam, SD4 whom was not a certified Electrical Engineer. Therefore, the letters of EOT was not based on SD7’s own opinion. Hence, following the Supreme Court’s decision in the case of Malaysia National Insurance Sdn. Bhd. v Malaysia Rubber Development Corporation [1986] 2MLJ 124, the letter of EOT based on hearsay evidence should be rejected. [24] Further, subsection 70(21) of the Street, Drainage and Building Act 1974 [Act 133] spell out the duties and responsibilities of PSP prior to issuance of the CCC. Therefore, SD5 as PSP should be the one consider and justify whether the EOT should be granted. [25] Court of Appeal in the case of Kerajaan Malaysia (Jabatan Kerja Raya) v Global Globe (M) Sdn. Bhd. [2019] 1 MLJ 281 at pages 291-292 held that— “….When there is a probability, or a possibility that there is likely to be, a delay that could merit an extension of time, the contractor will apply by way of a written notice to the contract administrator or the SO identifying the cause of the delay and request for an extension of time according to the terms of the contract. If a contractor seeks to rely on late instructions as entitlement for extension of time and at the same relevant time the contractor is also delayed by events for which it is responsible, the contract administrator/SO will need to satisfy himself that the delay caused by the late instruction was the dominant cause of the delay in order to award an extension time. If the contract administrator/SO is satisfied that the delay was caused by good reasons then an extension of time may be granted and the completion date will be adjusted accordingly.”. [Emphasis added] [26] Based on the abovementioned case and subsection 70(21) of Act 133, SD5 should be the one who determine whether the delay has happened and issued both letters of EOT, and not SD7. SD5 only issued the letter of EOT on 18.1.2021 (see page 591 of the Appeal Record Part C (Volume 5) (the “third letter of EOT”), which was five (5) years later and after the vacant possession has been delivered to the Appellant, and also after six (6) months after the suit has initiated against the Respondent. SD5 informed in the cross-examination that the third letter of EOT was issued based on the instructions of the Respondent and after multiple court cases on LAD claim against the Respondent [see pages 203 and 204 of the Appeal Record Part B (Volume 2)]. [27] Upon perusing the first and second letter of EOT, I find that nothing in those letters to show that it was an opinion of SD7. The first and second letters of EOT issued by SD7 was not based on the opinion of his own, but it was based on information provided by his employees Richard Tan and Norazam, SD4 and also the minutes of meetings taken by SD4. [28] SD7 admitted during the cross-examination, he did not conduct any investigation or enquiry to verify the fact prior to the issuance of the letters of EOT (see pages 235 and 244 of the Appeal Record Part B (Volume 2). SD7 also informed that the letters were issued based on the reasons given by TNB as stated in the TNB’s letter attached together. However, upon perusing those letters, it merely state that TNB was taking effort to complete the supply of electricity for the Project within the target date. No indication that there were administrative procedures and nationwide shortage of material as claimed by the Respondent. [29] Further, I find the fact that the Respondent instructed SD5 to issue the third letter of EOT on 18.1.2021 has strengthened the arguments of the Appellant that SD7 was not the right and proper person to issued the first and second letters of EOT. [30] In this regard, reference is made to the Court of Appeal’s decision in the case Icon City Development Sdn. Bhd. v K-Shin Corporation Sdn. Bhd. [2022] 9 CLJ 827, where the facts are similar to this Appeal. The Court of Appeal has decided that the EOT issued by the architect did not serve as certificate or opinion, and therefore not valid under the agreement. It was held that— “...[24] Our perusal of the learned High Court Judge's grounds of judgment showed that she has considered this issue correctly. This is what she said at paras. 175 and 179 of her grounds of judgment: [175] Even a cursory reading of the architect's letters will show that they were not extensions of time under the SPA. The architect's letters:

Make no mention of the SPA let alone the specific Clause 13.1.1;

Do not state that in the opinion of the architect, the events in the said letters were events beyond the Developer's control or events which fall within any of the grounds in Clause 13.1.1; and

The letters do not state any opinion at all and merely state that there would be delays in the completion of the construction works. [179] The architect's letters are clearly not Certificates of Extension of Time for the following reasons:

They are addressed to the first defendant and not the main contractor (they are not copied to the main contractor either);

They make no reference to the PAM Contract let alone Clause 23 therein; They do not state that they are certificates of extension of time;

They make no mention of the main contractor's application for extension of time let alone that the architect accepts or rejects those applications;

They make no mention that the grounds therein are relevant events pursuant to Clause 23.8 of the PAM Contract; and

(In fact, breaches by the main contractor are obviously not a relevant event pursuant to Clause 23.8 of the PAM Contract). (See: Enclosure 24, pp. 83 to 85) (emphasis added ) [25] In making the findings that the architect's letters are not the Certificates of Extension of Time, the learned trial judge also took into consideration of the testimony of PW2, the appellant's architect, who testified that the architect's letters merely served the purpose of informing the appellant of the delay of the project. [26] As such, we are of the opinion that the architect's letters do not qualify as Certificates of Extension of Time which would justify the appellant's delay in delivering the vacant possession of the shop office to the respondent.”. [Emphasis added] [31] I find those two letters of EOT did not state the relevant event pursuant to Clause 23 of the SPA. I further find that SD7 was not a right and proper person to issue the first and second letters of EOT. Further, the third letter of EOT was issued by SD5 based on the instruction given by the Respondent after the delivery of the vacant possession. SD5 did not act fairly and independently when he issued the third letter of EOT. [32] Further, I find the minutes of the meeting prepared by SD4 although was confirmed by SD2, there was no mention about the delay in completing the electrical works was due to nationwide shortage of material. SD2 has informed that he did not attend all the site meetings. It was attended by his representative who are his two (2) staffs and they will report to him the progress of the electricity supply to the Project as well as all the things discussed in the site meetings. Therefore, I find the SD2 was not able to verify the matters discussed and recorded in the minutes of meeting and thus, his evidence is hearsay of which could not be accepted by this Court. [33] SD2 in examination in chief has informed that there was shortage material such as switchgear, transformer, LV cables, termination kit and others. However, nothing in those two (2) TNB letters to the Respondent’s consultant, Perunding Cekap mentioned about shortage of those materials. [34] Based on the evidence presented, I am of the view that the letters of EOT issued by the Respondent are not valid and binding on the Appellant. Therefore, I ruled that the allegation of nationwide shortage of material was merely the allegation of the Electrical Engineer, SD7 and was not supported by the letters issued by TNB. [35] I refer to the case of Mah Sing Properties Sdn. Bhd. v Goh Leng Nguan @ Goh Ah Guan & Anor [2018] 1 LNS 45 where the facts of the case are similar to the present case. The High Court decided that— “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 support 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 nationwide shortage of material. This representation was not supported by TNB’s letters. As such, the engineer’s certificate could be said “manifestly erroneous” and/or a “mispresentation” to the purchaser.”. [Emphasis added] [36] Similarly, in the present case, TNB letters dated 19.11.2015 as per page 557 of Appeal Record Part C (Volume 5) did not mention about “administrative procedures” and “nationwide shortage of materials”. TNB merely stated that they are “sedang berusaha untuk menyiapkan projek-projek bekalan elektrik…Tarikh sasaran untuk penyiapkan projek-projek adalah Februari 2016.” Another letter dated 10.4.2016 from TNB at page 560 of Appeal Record Part C (Volume 5) also did not state the same and merely stated the target date to complete the Project will be August 2016. [37] I rule that the Respondent has failed to prove the event of shortage of the material and administrative procedure of the TNB is the event of force majeure pursuant to section 103 of the Evidence Act 1950 [Act 56]. [38] Therefore, I rule that the allegation of nationwide shortage of material was merely the allegation of the Electrical Engineer, SD7 and was not supported by the letters issued by TNB. The Respondent could not use the EOT as an excuse not to pay the LAD where their delay and lack of planning has caused the delay of delivery of vacant possession of the Property to the Appellant. [39] I rule that the Magistrate has erred in fact and laws by taking words and oral testimonies from the Respondent’s witnesses such as SD2, SD4, SD5 and SD7 to determine whether there was a delay from TNB in the providing the electricity supply to the Project and without considering whether the contemporaneous documents contradicted with the oral testimonies of those witnesses. Whether delay of TNB in supplying electricy was due to the lack of proper planning by the Respondent [40] The Respondent has applied for “Kebenaran Merancang” ("KM") (also known as Development Order or Planning Permission) from Majlis Perbandaran Johor Bahru Tengah (the "Local Authority") on 18.7.2012. [41] TNB has vide the letter dated 27.6.2012 informed the Respondent that TNB has no objection to their application for KM and a copy of the KM to TNB when applied of electricity supply. The said letter is only valid for one (1) year from the date of the letter. [42] The Local Authority has approved the KM on 29.11.2012 . [43] The Appellant contended that the Project was a mega project and the Respondent should have anticipated that TNB would take more than twelve (12) months to complete the electricity supply works. [44] The Respondent had vide their Electrical Consultant, Perunding Cekap applied for the electricity supply on 15.5.2014, which was eighteen (18) months thereafter. This has been confirmed by the SD2 who is TNB officer during the cross-examination. [45] The Respondent argued that the Appellant has misconceived the requirements under the Electricity Supply Application Handbook (see page 688 of the Appeal Record Part C (Volume 5) (the “said Handbook”). The Respondent claimed that what they need to submit to TNB was not the KM as argued by the Appellant. The application for electricity supply can only be made after the building plan approved on 26.8.2013. This has been confirmed by SD1, SD2 and SD7. The Respondent further argued that it was impossible for the application of electricity suppy to be submitted to TNB immediately after the building plan has been approved on 26.8.2013 as the Respondent needs time to prepare the documents, drawings and discussion with the authorities before submitting the application to TNB. [46] According to the Electricity Supply Application Handbook (see page 688 of the Appeal Record Part C (Volume 5) (the “said Handbook”) which state that the Electrical Consultant Engineer may on behalf of the developer submit the application for electric supply to the nearest Customer Service Centre using the reference of the approved Development Order Plan. [47] Further, the letter from TNB dated 10.8.2012, in particular paragraph 8 specify that a copy of the approved KM by the authorities to be submitted to TNB when the application for electricity supply was made. Therefore, based on the said Handbook and TNB’s letter, it is clear that the documents need to be submitted for the application for electricity supply was the approved KM and not building plan as argued by the Respondent. I find that the evidence of SD1, SD2 and SD7 are in contradiction with those documents. [48] I find that even if it is true that the Respondent can only submit the application for electricity supply after the building plan was approved, the Respondent has taken around eight (8) months to do so. The time period taken by the Respondent was long taking into account the Respondent is an experienced housing developer and have involved in constructing a lot of housing project including mega housing development projects. Thus, the Respondent should have anticipated what are the documents required to be prepared for submission to TNB. The Respondent should not have waited till the building plan approved by TNB then only start the preparation of those documents. The Respondent’s consultants should be accounted for the delay. The Respondent has full control over the consultants and also the planning development of the Project. Therefore, I rule that the arguments of the Respondent are without basis. Delay in handling over the substation [49] The Appellant also contended that one of the cause of delay was the delay in handling over the substation to TNB by the Respondent. The Respondent argured that the substation has been handed over about four (4) months earlier on 18.08.2014. [50] However, based on Senarai Semak dated 18.8.2014 (pages 443- 445 of Appeal Record Part C (Volume 4), there was a marking of “wip” and cross (x) on the several items. SD1 informed that the marking “x” placed by TNB were remarks from TNB for certain adjustments to be made and some were in relation to works to be done after TNB had completed its works. SD2 confirmed that the abbreviation of “wip” on the Senarai Semak means “work in progress”. The markings of “wip” which indicate that the works on the substation was still in progress and has not been completed. The marking cross (x) on certain items means the works at the substation has not fully completed [see pages 142-143 of the Appeal Record Part B (Volume 2)]. SD2 also confirmed that the substation was not 100% completed [see page 143 of the Appeal Record Part B (Volume 2)]. [51] The Persetujuan Bersama Perunding, Pemaju and TNB signed on 8.1.2015 [page 448 of the Appeal Record Part C (Volume 4)] show the substation was completely built. No where in this document to show when the substation was completely built. The Respondent argued that the works to be done was minor and do not affect the handling over the substation. However, I find that the arguments of the Respondent that the substation was handed over to TNB on 18.8.2014 are doubtful as there are few works yet to be completed by the Respondent at that time. [52] SD1 and SD2 gave evidence that CCC is not a pre-requisite for TNB to commence the electricity works. SD2 in his testimony informed that in the normal practice, TNB will not wait till CCC was issued then they will commence works. However, I find the testimonies of SD1 and SD2 were inconsistent with the section 3.4 Step 3 of the said Handbook, which state as follows: “The CCC of the substation building/compartment shall be handed to TNB.”. [53] The Appellant contended that TNB was not able to commence the electricity supply works when the substation was not handed over to them. According to step 3 section 3.4 of the said Handbook (page 689 Appeal Record Part C (Volume 5) that Certificate of Completion and Compliance (“CCC”) must be handed over to TNB prior to the commencing of the electricity supply works. No issuance of CCC for the substation at that time, as part and parcel of handlng over substation to TNB. The Respondent failed to produce any evidence to prove the CCC for the substation has been issued except denial by the Respondent that no CCC is issued purely for the substation. Late in submission of bank guarantee and land title of the substation [54] Further, the Appellant contended that the delay was also due to late submission of bank guarantee and land title of the substation to TNB by the Respondent. [55] In the present case, the Respondent submitted the bank guarantee, the land titles of the substation to TNB together with the Transfer Form of “Borang Perakuan Pajakan/Pindahmilik Tanah” via their letter dated 12.1.2015 [see pages 450-451 of the Appeal Record Part C (Volume 5)]. As such, the Respondent’s argument that the surrender of the document of the title is not a pre-condition before the TNB can commence the electricity supply works devoid of merits. It is clearly contradicted to step 3 of section 3.4 of the said Handbook which provide as below: “The transfer of the land title should be finalized prior to the handling over of site. In the absence of the land title, the applicant is to prepare a Bank Guarantee for TNB fo the period of twelve (12) months and shall be renewed until the land title is transferred to TNB or registration of lease to TNB. Delay in title transfer may affect project implementation.”. [Emphasis added] [56] The evidence of the Respondent’s witnesses clash with the contemporaneous documents. The Magistrate failed to weight the contemporaneous documents and evaluate whether such documents support the Respondents’ oral testimony. Therefore, I rule the contention of Respondent that the substation was handed over to TNB on 18.8.2014 is baseless as it is contrary with the contemporaneous document, namely the Senarai Semak and Borang Perakuan Pajakan/Pindahmilik Tanah. Therefore, I rule that the Magistrate erred in law and fact when she accepted the evidence of the Respondent wholeheartedly and disregarded the contemporaneous documents. [57] In regard, reference is made to the Court of Appeal in the case of Guan Teik Sdn. Bhd. v Hj. Mohd. Noor Hj. Yakob & Ors [2000] 4CLJ 324 where it was decided that – “…In cases where conflicting evidence are presented before a corut, it is the duty of the court not only to weigh such evidence on a balance of probabilities but it also incumbent upon the court to look at all the surrounding factors and to weigh and evaluate comtemporaneous documents that may tend to establish the truth or otherwise of a given fact. In this instance the learned trial judge discredited the evidence of the appellant, accepted the evidence of the respondents wholeheartedly and disregarded the contemporaneous docuements totally. We say that he had erred as he had failed to direct the mind as to the probative effect of the comtemporaneous documents. He should, after accepting the respondents’ evidence, weighted it against the comtemporaneous documents and evaluate whether such documents support the respondents’ oral testimony. We say that this evaluation exercise is most crucial for it must be remembered that the respondents were testifying to events that happended eighteen years ago whilst the comtemporaneous documents speak of matters than existing at the time such documents, were issued…”. [Emphasis added] Delay in payment of Caj Sambungan Pengguna (“CSP”) [58] The Appellant argued that the Respondent has taken ten (10) months after the application of the electricity supply to pay the CSP. [59] According to step 4 of the said Handbook (page 688 of the Appeal Record Part C (Volume 5), CSP has to be settled by the Respondent before TNB could commence the electricity works at stages 6 and 7. [60] SD2 during the cross-examination has informed that the steps taken for the electricity supply needs to follow the sequence as stated in the said Handbook. SD2 also confirmed that the electricity supply works can only be carried out after the CSP has been paid and settled by the Respondent (see page 137 of the Appeal Record Part B (Volume 2). [61] The Respondent argued that the delay was caused by TNB as TNB delayed in issuing the CSP to them. However, the notice to pay CSP has been issued by TNB on 21.12.2014, at page 446 Appeal Record Part C (Volume 4) requested the Respondent to make the CSP payment soonest possible to ensure the electricity be supplied to the Project. The Respondent has taken about two

months to pay the CSP which was on 12.2.2015. The payment was made only after the Permintaan Untuk Bayaran CSP Ke Sesalur Utama, as in page 454 Appeal Record Part C (Volume 4) has made by TNB. It is cleary shown there was delay in paying CSP by the Respondent. [62] Further, according to the remarks made on the Persetujuan Bersama Perunding dan TNB signed between the Respondent’s representative from Perunding Cekap and the representative from TNB dated 8.1.2015 that the CSP charges was not paid at that point of time and it was only paid on 12.2.2015. Further, the minutes of the meeting dated 13.11.2015 (see pages 465 of Appeal Records Part C) confirmed that the payment of CSP was only made on Feb-April 2015. The contention of the Respondent is contradicted with the payment notice of CSP issued by TNB and its own minutes of meeting. Therefore the contentions of the Respondent is devoid of merit. [63] Further, SD2 in his evidence confirmed that all those requirements need to be fulfilled first before the electricity can be supplied to the Respondent. The evidence of SD2 support the Appellant’s contention that there is lack of planning of the Project on the part of the Respondent which has caused delay in completing the Project and delivery of vacant possession of the Property to the Appellant. [64] I refer to the case of VTS Capital Sdn. Bhd. v Capitol Avenue Development Sdn. Bhd. (Sabah Electricity Sdn. Bhd., Third Party) [2019] MLJU 167 at page 6, the High Court held that— “In the Singapore Court of Appeal case of Golden Bay Realty Pte Ltd v Orchard Twelve Investments Pte Ltd [1989] 2 MLJ 70 a similar issue arose as to the vendor's entitlement to claim protection under the force majure clause if he has under-provided the time required to do the necessary things. The court said that – "We do not think the expression 'any other cause or causes over which the vendor has no control' is wide enough to excuse the appellants for the delays of their consultants. Otherwise, it would mean that nobody is responsible for the delays caused by the consultants, as the purchaser cannot proceed against the consultants, there being no privity between the purchaser and the consultants. Indeed, if the arguments of the appellants are correct, it would also mean that if the delay is due to the default of the contractor of the development project, the vendor would also be excused under cl 15 and the purchaser would be left without any recourse. To adopt such a broad and liberal interpretation to that expression would render quite ineffective or worthless the deadline laid down in cl 14(2). The vendor must make his own arrangements with his consultants to ensure that he is able to fulfil his commitments under the contract. We would, however, agree that the vendor cannot be responsible if the delay is due to the relevant authorities, ie they have taken longer time than normally required to process the applications.". [Emphasis added] [65] The Singapore Court of Appeal in the case of Golden Bay Realty Pte Ltd V. Orchard Twelve Investments Pte Ltd [1990] 1 CLJ 353 has illustrated that the delay caused was within the contemplation of the developer and within their control and/or under provided the time required. The Singapore Court of Appeal held that – “..On an examination of the facts, it is quite clear to us that for the entire period from 17 February to 31 December 1981, all that the appellant managed to do was to submit the application for sub-division under s.9(3). No real concerted efforts were made to meet the deadline 31 December

As was pointed out by the leamed Judge, matters began to move only in March 1982. In our view, it is clear that there were three main causes for the delay. First, the consultants were slow in discharging their tasks. Second, the appellant did not take any active steps to meet the deadline and instead allowed matters to drift. Third, there was an element of under-provision when the appellant specified 31 December 1981 as the date would give notice to complete. We do not think a vendor is entitled to claim protection under the force majeure clause if he has under provided the time required to do the necessary things. The situation would be the same as if a builder had covenanted to build a structure within three months and notwithstanding his best efforts still failed to meet the target because he had under provided the time required. We do not see how the builder could avoid liability on the ground that the delay was due to a cause beyond his control.”. [Emphasis added] Hence, the Singapore Court of Appeal held that— “…[5] The force majeure clause does not come into play where the delays caused were within the contemplation of the appellant and were within their control. [6] The delays amounted to non-approval of plans etc. caused by government authorities which were delays normally contemplated b by developers and, the fact that the appellant had in fact under provided the time required to do the necessary things does not make these delays “any other cause or causes over which the vendor has no control.”. [66] I further refer to the Court of Appeal decision in the case of Capitol Avenue Development Sdn. Bhd. v Gamwon Properties Sdn. Bhd. [2021] 1 LNS 528. The facts of the case are quite similar to the present Appeal. The Court of Appeal has rejected the Defence of Force Majuere despite the Defendant claimed there was a delay from Sabah Electricity Sdn. Bhd. (“SESB”) in the electricity supply and beyond the control of the Defendant, and the clause and the SPA should be construed as a whole. The Court of Appeal held that— “…[16] The main arguments by both parties is essentially on the issuance of the Architect Certificate of Extension of Time. [17] Under Clause 14.1.1 the Defendant must complete and deliver vacant possession of the said Parcel in accordance with the terms and conditions of the SPA within the period as stated in Section 10 of the