Sime Darby Property (Bukit Jelutong) Sdn Bhd v Ooi Cheng Huat @ Ooi Peng Huat (Menyaman Atas Namanya Sendiri Dan Sebagai Wasi Dan Pemegang Amanah Harta Pusaka Linda Patricia Lim Sooi Hong, Si Mati) (B-02(C)(W)-591-04/2023)

1 RAYUAN SIVIL NO.: B-02(C)(W)-591-04/2023 SIME DARBY PROPERTY (BUKIT JELUTONG) SDN. BHD. (Digantikan menurut Perintah Mahkamah Rayuan bertarikh 9.7.2025) ...PERAYU [NO. K/P: 540105-02-5317] (Menyaman atas Namanya sendiri dan sebagai Wasi dan Pemegang Amanah harta pusaka Linda Patricia Lim Sooi Hong, si mati) [NO. K/P: 890827-10-5765] [NO. K/P: 911125-10-5613] 04/02/2026 16:36:48 B-02(C)(W)-591-04/2023 Kand. 150 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 (Dalam Perkara Saman Pemula No. BA-22C-43-10/2017 di Mahkamah Tinggi Malaya Di Shah Alam Antara [No. K/P: 540105-02-5317] (Menyaman atas Namanya sendiri dan sebagai Wasi dan Pemegang Amanah harta pusaka Linda Patricia Lim Sooi Hong, si mati) [No. K/P: 890827-10-5765] [No. K/P: 911125-10-5613] ... Plaintif-Plaintif Dan Sime Darby Property Berhad (No. Syarikat: 15631-P) ... Defendan) RAYUAN SIVIL NO.: B-02(C)(W)-592-04/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 (Digantikan menurut Perintah Mahkamah Rayuan bertarikh 9.7.2025) SPIRAL PRISTINE SDN BHD [NO. SYARIKAT: 775532-T] (Dalam Perkara Saman Pemula No. BA-22C-44-10/2017 di Mahkamah Tinggi Malaya Di Shah Alam Antara Spiral Pristine Sdn Bhd [No. Syarikat: 775532-T] ... Plaintif Dan Sime Darby Property Berhad (No. Syarikat: 15631-P) ... Defendan) **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 RAYUAN SIVIL NO.: B-02(C)(W)-593-04/2023 (Digantikan menurut Perintah Mahkamah Rayuan bertarikh 9.7.2025) SHAIFUL HAMIDI BIN BASIRDIN [NO. K/P: 750513-08-6309] (Dalam Perkara Saman Pemula No. BA-22C-45-10/2017 di Mahkamah Tinggi Malaya Di Shah Alam Antara Shaiful Hamidi Bin Basirdin **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [No. K/P: 750513-08-6309] ... Plaintif Dan Sime Darby Property Berhad (No. Syarikat: 15631-P) ... Defendan) RAYUAN SIVIL NO.: B-02(C)(W)-594-04/2023 (Digantikan menurut Perintah Mahkamah Rayuan bertarikh 9.7.2025) ROSLI BIN MUSA [NO. K/P: 620521-10-5789] **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 (Dalam Perkara Saman Pemula No. BA-22C-46-10/2017 di Mahkamah Tinggi Malaya Di Shah Alam Antara Rosli Bin Musa [No. K/P: 620521-10-5789] ... Plaintif Dan Sime Darby Property Berhad (No. Syarikat: 15631-P) ... Defendan) RAYUAN SIVIL NO.: B-02(C)(W)-595-04/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 (Digantikan menurut Perintah Mahkamah Rayuan bertarikh 9.7.2025) [NO. SYARIKAT: 867883-M] [NO. K/P: 700702-10-5016] (Dalam Perkara Saman Pemula No. BA-22C-47-10/2017 di Mahkamah Tinggi Malaya Di Shah Alam Antara [No. Syarikat: 867883-M] [No. K/P: 700702-10-5016] ... Plaintif-Plaintif Dan Sime Darby Property Berhad (No. Syarikat: 15631-P) ... Defendan) **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 RAYUAN SIVIL NO.: B-02(C)(W)-596-04/2023 (Digantikan menurut Perintah Mahkamah Rayuan bertarikh 9.7.2025) …PERAYU [NO. K/P: 730120-13-5159] [NO. K/P: 730915-13-5144] (Dalam Perkara Saman Pemula No. BA-22C-49-10/2017 di Mahkamah Tinggi Malaya Di Shah Alam Antara **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [No. K/P: 730120-13-5159] [No. K/P: 730915-13-5144] ... Plaintif-Plaintif Dan Sime Darby Property Berhad (No. Syarikat: 15631-P) ... Defendan) CORAM WAN AHMAD FARID BIN WAN SALLEH, now CJ AZIZAH BINTI HAJI NAWAWI, now CJSS AZIMAH BINTI OMAR, now FCJ GROUNDS OF JUDGMENT A. INTRODUCTION [1] The six (6) Related Appeals before us originated from six (6) separate civil suits filed in the Shah Alam High Court by the purchasers of six (6) bungalows against the developer of a luxury bungalow project, Sime Darby Property Berhad. However, after the hearing of the six appeals were concluded (pending the delivery of our decision which was then fixed on 27.5.2025) the Appellant on 18.4.2025 had filed an application in Enclosure 91 to substitute the name of the Appellant. Vide its Enclosure 91 **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 (pursuant to Rules 21 and /or 41 of the Rules of Court of Appeal 1994 and Order 15 rule 7(2) of the Rules of Court 2012) the Appellant had applied to substitute the name of the Appellant from Sime Darby Property Berhad to Sime Darby Property (Bukit Jelutong) Sdn Bhd. The application to change the name of the Appellant was made on the ground that there was a Reorganisation Agreement 1 executed between the Appellant and Sime Darby Property (Bukit Jelutong) Sdn Bhd on 6.6.2024 in which the Appellant had agreed to transfer all its assets and liabilities listed in Reorganisation Agreement 1 to Sime Darby Property (Bukit Jelutong) Sdn Bhd. The Appellant’s application in Enclosure 91 was allowed by the Court of Appeal on 9.7.2025. (For ease of reference, the Appellant hereinafter will be referred to as “Sime Darby”, while the six Respondents will be referred to as “the Purchasers”) [2] The six substantive appeals were filed by the same Appellant namely; Sime Darby as the developer and vendor of the six luxury bungalows purchased by the six Respondents (the Purchasers). The Purchasers’ actions against Sime Darby were grounded on contractual breach of six (6) Sale and Purchase Agreements (hereinafter referred as the “SPAs”) due to various patent and latent defects in the six (6) bungalows. [3] For ease of reference, we tabulated the particulars of the six (6) appeals and the Purchasers’ respective suits filed in the High Court together with the purchase price of each bungalow: **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 No. High Court Suit Appeal (COA) i. BA-22C-43-10/2017 (“Suit 43”) B-02(C)(W)-591-04/2023 (“Appeal 591”) Purchasers: Ooi Cheng Huat @ Ooi Peng Huat, Bryan Patrick Ooi Sze-Yuen, Shawn Phlip Ooi Sze-Yew Purchase price: RM4,891.127.00 ii. BA-22C-44-10/2017 (“Suit 44”) B-02(C)(W)-592-04/2023 (“Appeal 592”) Purchaser: Spiral Pristine Sdn Bhd Purchase price: RM4,869,008.00 iii. BA-22C-45-10/2017 (“Suit 45”) B-02(C)(W)-593-04/2023 (“Appeal 593”) Purchaser: Shaiful Hamidi bin Basirdin Purchase price: RM5,537.628.00 iv. BA-22C-46-10/2017 (“Suit 46”) B-02(C)(W)-594-04/2023 (“Appeal 594”) Purchaser: Rosli bin Musa Purchase price: RM4,701.247.00 v. BA-22C-47-10/2017 (“Suit 47”) B-02(C)(W)-595-04/2023 (“Appeal 595”) Purchaser: Nitt Sdn Bhd, Susilawati bt Ahmad Purchase price: RM4,502.534.00 vi. BA-22C-49-10/2017 (“Suit 49”) B-02(C)(W)-596-04/2023 (“Appeal 596”) Purchaser: Albert Chai Min Chung. Adele Leong Boon Yien Purchase price: RM5,033.032.00 (“the six (6) appeals”) **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 B. THE BACKGROUND FACTS [4] The six (6) luxury bungalows were part of Sime Darby’s development project in Bukit Jelutong known as “PRIMO Bukit Jelutong” (“the Project”). We are minded that considering the Project’s own namesake “PRIMO” (as in Prime or Premier) and the extravagant purchase price of each bungalow units (between RM 4 to RM5 million) res ipsa the six (6) bungalows were intended and were conceptualized to be premium and high-end landed properties. [5] Sime Darby obtained Certificate of Completion and Compliance (“CCC”) for the Project on 30.01.2012 and the vacant possession (“VP”) of each bungalow units were delivered on the following dates: [6] It must be noted that the Purchasers in suits 43, 44, 45 and 47 (“STB Purchasers”) had purchased their respective units on the terms of Sell – then – Build SPAs (“STB”) adopting Schedule G of the Housing Development (Control) and Licensing) Regulations 1989 (“HDLR”) with the statutory twenty-four (24) months’ Defect Liability Period (“DLP”). At the time of the signing Bungalow unit Issuance of Notice of VP Suit 43 22.03.2012 Suit 44 29.06.2012 Suit 45 07.05.2012 Suit 46 27.08.2014 Suit 47 29.06.2012 Suit 49 23.09.2015 **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 of their respective STB SPAs, the subject bungalows were still under construction (and had yet to be completed). [7] Meanwhile, the Purchasers in suits 46 and 49 had purchased their respective units on the terms of Build – then – Sell SPAs (“BTS”) where their subject properties were already completed at the time of execution of the SPA. The SPAs in suits 46 and 49 were not in conformity to any schedules prescribed in the HDA. Safe to say that the Appellant-Developer was seeking to ‘contract out’ of

Schedule I of the HDLR and instead abide by the terms of an ‘as is where is’ basis of sale (validity of which will be discussed further down this judgment). [8] The six purchasers (both STB and BTS) had filed their respective separate civil actions against Sime Darby in the High Court, claiming for monetary compensation (damages) primarily premised on the following grounds: a) the bungalow units which they had purchased from Sime Darby were not built in accordance with the specifications provided in the approved plan, which forms part of the SPAs; and b) Sime Darby had constructed and delivered bungalow units which were of subpar quality with numerous LATENT defects which were caused by defective or poor workmanship / materials and thus, Sime Darby was in breach of the SPAs and / or its statutory obligations under the Housing Developers Act 1976 (“HDA") and the HDLR. **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [9] The Purchasers essentially contended that despite having to pay an extravagant purchase price to own luxury bungalows, the bungalow units developed by Sime Darby were rife with defects wherein the Purchasers alleged that Sime Darby had not developed and constructed the bungalow units in a good and workman like manner in adherence to good materials and workmanlike obligations under the SPAs. The Purchasers also alleged that Sime Darby had utilized subpar and cheap materials despite the fact that the bungalow units were presented and marketed as a luxurious and premium development. [10] By its Statement of Defence (“SOD”) filed in each suit, Sime Darby had vigorously resisted the Purchasers’ claims by raising the following defences: a) Against Purchasers under the STB SPAs: i. The STB Purchasers have already signed and acknowledged that all the defects had already been rectified via the signed Defect Rectification Form during the DLP Period (“DRFs”) and Feedback Forms (“FFs”) for defects rectified outside of the DLP Period out of Sime Darby’s own ‘goodwill’; b) Against Purchasers under the BTS SPAs: i. The Purchasers have reported of and acknowledged the rectification of the same defects via FFs; ii. The sale of the bungalow units under the BTS SPAs was on an “as is where is basis” wherein the Purchasers **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 already had an opportunity to inspect the units and subsequently signed the FFs; c) The alleged defects (if there were any) were not caused by poor workmanship or subpar cheap materials. Instead, they were caused by the Purchasers’ own renovations, wear and tear and lack of maintenance; and d) The Purchasers must prove that the causa causans of the alleged defects were not due to their own renovations, lack of maintenance and ordinary wear and tear. [11] The STB Purchasers in suits 43, 44, 45 and 47 on the contrary alleged that their signatures on all of the DRFs and FFs were forgeries, hence the DRFs and FFs cannot be used as evidence that all defects complained of have already been rectified by Sime Darby. [12] The STB Purchasers also vehemently contended that LATENT defects were in nature defects that reasonably were not discoverable within the DLP. It was further argued that the DLP terms on patent defects do not apply as against the latent defects. [13] It is not in dispute that despite contending that all the signatures appearing on all of the DRFs and FFs were forgeries, the Purchasers did not furnish a handwriting expert to support their assertion of forged signatures. **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 [14] All of the 6 suits were heard together before the same Learned High Court Judge (“LHJ”). Upon the conclusion of trial, the LHJ had decided in favour of the Purchasers and found Sime Darby to be liable for all the defects alleged by the Purchasers in their statements of claim and therefore held that Sime Darby had breached the terms and conditions of the SPAs as well as breaching its statutory obligations under the HDA and HDLR. Consequentially, the LHJ allowed the Purchasers’ claims and ordered Sime Darby to pay the following damages and costs to the Purchasers: a) b) Interest at the rate of 5% pa on the Award (Total Damages) from the Date (Oral Decision) until full payment of the Award (Total Damages) shall be paid by Sime Darby to the Purchasers; c) Costs as indicated in above table; and Suit. No Damages for Defects (Air Conditioners) Rectification Costs (Other Defects) Costs Suit 43 RM79,400.00 RM680,970.00 RM90,000.00 Suit 44 RM79,400.00 RM780,960.00 RM90,000.00 Suit 45 RM72,600.00 RM841,060.00 RM90,000.00 Suit 46 RM79,400.00 RM731,780.00 RM100,000.00 Suit 47 RM79,400.00 RM826,450.00 RM90,000.00 Suit 49 RM33,000.00 RM509,280.62 RM90,000.00 **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 d) Interest at the rate of 5% pa on the Quantum (Costs) shall be paid by the Sime Darby to the Purchasers from 30.03.2023, the date of determination of costs until full payment. [15] However, the LHJ had dismissed the Purchasers’ claims for additional damages for loss of use and/or loss of enjoyment of the properties (bungalows) and pre-judgment interest. [16] Disgruntled by the decision of the LHJ, Sime Darby filed the six Appeals before us. The Purchasers on the hand filed their respective cross-appeals against the LHJ’s decision to refuse additional damages for loss of use and pre-judgment interest. These cross-appeals are respectively in Enclosures: 42 (Appeal 591), 11 (Appeal 592), 11 (Appeal 593), 13 (Appeal 594), 14 (Appeal 595) and 15 (Appeal 596). C. THE HIGH COURT’S FINDINGS [17] From the LHJ’s grounds of judgment (“GOJ”) spanning over 134 pages, the LHJ primarily found that Sime Darby was in breach of its Housing Developer’s Obligation (Materials) and Housing Developer’s Obligation (Good Workmanship) under the Statutory SPAs (under Schedule G for the STB SPAs and Schedule I for the BTS SPAs) and therefore had allowed the Purchasers’ claims on the following grounds: a) Sime Darby cannot be absolved from their liability in respect of the defects found on the STB bungalow units by relying on the DRFs and FFs in suits 43, 44, 45 and 47 as the signatures **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 appearing on the DRFs and FFs were forged signatures. The STB Purchasers are therefore not bound by the forged DRFs and FFs; b) In raising the issue of forgery, the STB Purchasers in suits 43, 44, 45 and 47 are not required by Order 18 rules 7(1) and 12 2012) to plead specifically the word “forgery” in their statement of claims. The LHJ held that the word 'forgery' itself need not be expressly pleaded so long as the material facts pleaded is sufficient to justify the plea of forgery. The Purchasers are required to prove the forgery on a balance of probabilities (in which the Purchasers had successfully proven in this case); c) the Purchasers’ failure to tender their own handwriting expert was not fatal to the Purchaser’s challenge as to the validity of the DRFs and FFs; d) Sime Darby’s handwriting expert report cannot be accepted as evidence to prove the authenticity of the signatures appearing on the DRFs and FFs as the expert report only made comparisons between photostat copies without any comparison with the hand-signed original documents; e) Sime Darby had not satisfied the conditions under Regulation 11 (1B) of HDLR in suits 46 & 49 to allow it to contract out of the statutory form in Schedule I. There was no proof that at the time the SPAs were executed that a CTC of the CCC of the completed BTS units were handed to the Purchasers. **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 Thus, the 'as is where is' term of sale with right to inspection cannot be enforced as it contravened the terms in Schedule I; f) Sime Darby had not breached Clause 13 of the STB SPAs (Clause 15 in BTS / Schedule I SPAs) of the developer's good workmanship and materials obligation when Sime Darby utilised the cheaper Red Balau timber (instead of the more expensive Yellow Balau timber) as the 4th Schedule in all of the SPAs never included any description of Yellow Balau timber; g) Sime Darby had breached its good workmanship and materials obligations as to the defects in air-conditioning as the causa causans of the defects occurring upon the units' air-conditioners was the under-capacity air-conditioners and the use of unsuitable pipe insulation. These nature of defects had nothing to do with wear and tear, renovations or lack of maintenance; h) in respect of the other defects, the Purchasers had discharged their burden of proof to prove the other defects; i) Sime Darby cannot hide behind the Home Owners' Manual (exclusion on renovations) to contract out of the statutory forms under the HDA to not be bound by the terms for DLP. Just because there were renovations by the Respondents during the DLP (or before rectification works), it does not automatically ‘liberate’ the Appellant from the statutory terms and obligations under Schedules G or I. It still remains open to the parties to argue (and for the Court to identify) whether or not the defects were caused by the developer's poor **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 workmanship/materials despite the renovations at any time; j) the SPAs / statutory forms' DLP terms are applicable only as against PATENT defects which are discoverable during the 24 months' DLP Period. The statutory form does not operate to bar homeowners from claiming damages for LATENT defects for poor workmanship / materials which are only discoverable after the DLP period. It was still up to the parties to argue and prove whether or not any nature of defect was either a Latent defect (that was not discoverable within DLP period) or a Patent defect (that should be reasonably discoverable upon reasonable inspection during DLP Period); k) Regarding quantum of damages, based on the evidence SP9 (Encik Mushahar bin Mohamed Suki), SP10 (Encik Adfazli bin Ahmad) and SP16 (Mr Lim Kok Sang), the Purchasers have successfully discharged their legal and evidential burden to prove the Rectifications Costs that they have incurred. Both SP9 and SP10 were architects while SP16 was a quantity surveyor. SP9, SP10 and SP16 testified as expert witnesses for the Purchasers to prove the alleged defects as well as quantum of damages. D. PROCEEDINGS IN THE COURT OF APPEAL [18] As we have alluded to earlier, apart from the 6 substantive Appeals filed by Sime Darby, there are six cross - appeals filed by the respective Purchasers purportedly appealing against the LHJ’s dismissal of their claims for additional damages for loss of use and **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 pre-judgment interest. In response to these cross appeals, Sime Darby had filed six (6) Notices of Motion to strike out all the cross appeals. The Notices of Motion to strike out the Purchasers’ cross appeals are namely in Enclosures: 50 in Appeal 591, 19 Appeal 592, 19 in Appeal 593, 21 in Appeal 594, 22 in Appeal 595 and 23 in Appeal 596. [19] Most recently, on 22.8.2025, the Purchasers have each filed their respective applications to admit new evidence pursuant to pursuant to section 69(2) of the Courts of Judicature Act 1964 (“CJA 1964”) and Rule 7 (3A) of the Rules of Court Appeal 1994 (“RCA 1994”). They are respectively in Enclosures: 112 (Appeal 591), 67 (Appeal 592) 66 (Appeal 593), 68 (Appeal 594), 68 (Appeal 595) and 69 (Appeal 596). [20] At this juncture, it is only appropriate for us to first deal with the interlocutory applications before we embark to determine the merits of the six (6) substantive Appeals. We will deal with the interlocutory applications in the following manner. First, we shall determine Sime Darby’s Applications to strike out the Purchasers’ Cross - Appeals. Following that, we will then proceed to determine the Purchasers’ Applications to admit new / fresh evidence. E. SIME DARBY’S APPLICATIONS TO STRIKE OUT THE PURCHASERS’ NOTICES OF CROSS APPEAL IN ENCLOSURES: 50 IN APPEAL 591, 19 APPEAL 592, 19 IN APPEAL 593, 21 IN APPEAL 594, 22 IN APPEAL 595 AND 23 IN APPEAL 596 **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 [21] It is not in dispute that the specified grounds for filing the Purchasers’ Cross Appeals were their dissatisfaction against the LHJ’s substantive decision in dismissing their claims for loss of use and/or enjoyment of the properties and for pre-judgment interest. [22] Against which, the grounds upon which Sime Darby had applied to strike out the Purchasers’ Notices cross appeal are as follows: a) the Purchasers’ notices of cross-appeal purportedly to vary the decision of the LHJ in respect of the dismissal of their claims under the two heads (namely; for loss of use and/or enjoyment of the properties and pre-judgment interest), do not seek to ‘merely’ vary Sime Darby’s grounds of appeal as raised in the Amended Memorandum of Appeal; b) the dismissal of the two claims for loss of use and/or enjoyment of the properties and pre-judgment interest were not points in issue related and connected to Sime Darby’s grounds of Appeal in Appealing against the LHJ’s decision; c) The Purchasers’ dissatisfaction against the LHJ’s decision for dismissing their two claims for loss of use and/or enjoyment of the properties and for pre-judgment interest are actually against the substantive findings of facts and/or law made by the High Court. Thus, it would be very obvious that Sime Darby will not be appealing against any head of claims by the Purchasers which had been dismissed by the LHJ (which was already in favour of Sime Darby). There should be no logic or reason for Sime Darby to appeal against the LHJ’s findings which were already in Sime Darby’s favour. Since the **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 Purchasers are distinctly challenging a separate portion of the LHJ’s substantive decision in dismissing their 2 heads of substantive claims, the Purchasers therefore should have filed their own Notices of Appeal and cannot raise a point which did not affect the original appeals by Sime Darby (the Appellant), by way of Cross-Appeal. [23] In resisting the striking out applications, the Purchasers argued that the filing of the notices of cross appeal was just and proper. The Purchasers contended that the actual test in filing the cross-appeals was whether the cross-appeals aim to reverse or set aside any part of the High Court’s judgment which was appealed against in the Appellant’s Notice of Appeal. The Purchasers further argued that since the Notice of Appeal by Sime Darby dated 6.4.2023 stated that it is appealing against the entirety of the High Court’s judgment therefore the grounds in appealing against the LHJ’s decision should entail / cover the issue of quantum, interest and costs. It was therefore argued that both Sime Darby’s Appeals and the Purchasers’ Cross-Appeals are intertwined because they had arisen from the same High Court judgment (and were based on the same issues on quantum and costs). [24] The filing of Notice of cross-appeal in the Court of Appeal is governed by Rule 8(1) of the RCA 1994. Rule 8(1) of the RCA 1994 provides as follows: “Rule 8. Notice of cross-appeal. **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 may, at any time after entry of the appeal and not more than ten days after the service on him of the record of appeal, give notice of cross-appeal specifying the grounds thereof, to the appellant and any other party who may be affected by such notice, and shall file within the like period a copy of such notice, accompanied by copies thereof for the use of each of the Judges of the Court. First Schedule. High Court should be varied; but the Court may in its discretion hear any such contention and may, if it thinks fit, impose terms as to costs, adjournment or otherwise.” [25] Our cursory reading of Rule 8(1) of RCA 1994 is simply this: if the Respondent in an appeal filed by the appellant is seeking to only ‘vary’ the decision of the High Court, it is not necessary for the Respondent to file a separate Notice of Appeal. [26] The meaning or threshold of ‘varying’ the High Court’s decision had been explained by the Court of Appeal in LEISURE FARM CORPORATION SDN BHD v. KABUSHIKI KAISHA NGU & ORS [2015] 3 MLRA 6 in paragraph [25] of its judgment; “[25] In our assessment, the answer to the issue posed to us would turn on the meaning to be assigned to the critical words used, namely, '... should be varied specifying the grounds thereof.' and **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 'to be varied to the extent in r 8 and Form 2 respectively of RCOA Oxford Dictionary' to mean- "change, make different, modify". In our considered view, those words used did not carry with it a meaning that there could be a total or wholesale setting aside or review (of the substantive judgment or any findings of the court); the extent of any contention under a cross-appeal, in our scenario here, was to be limited to a modification or some slight difference to be made to that part only of the judgment appealed against. This was borne out by the terminology used.... varied to the extent...' clearly pointing to a limitation of sorts in the scope of the matters to be advanced by way of the cross-appeal, that is, those words being given an ordinary and natural reading. [26] This was also consistent with the scheme of things, as we viewed it, envisaged under r 5 RCOA 1994. There it was provided for an appeal to be lodged against the whole or part of any judgment or order of court and such an appeal (in contrast to a cross-appeal) was by a re-hearing. The word 're-hearing used here clearly anticipated a review or regurgitation before the appeal court of all the points and arguments taken at the court below. Hence if it was the substantive finding of the court that was intended to be attacked, it behoved upon the party aggrieved to file a proper notice of appeal. (Form 1 of RCOA 1994 also refers.)” [27] The Federal Court in KABUSHIKI KAISHA NGU v. LEISURE FARM CORPORATION SDN BHD & ORS [2016] 8 CLJ 149 had affirmed the decision of the Court of Appeal and held that the Court of Appeal had correctly applied the principle enunciated in the **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 English case of Re Cavender’s Trusts (1881) 16 Ch D 270 regarding the operation of a notice of cross appeal provided under Rule 8(1) of the RCA 1994. The Federal Court stated as follows: “[31] The Court of Appeal in the present case had rightly applied the principle enunciated in the English case of Re Cavender’s Trusts (1881) 16 Ch D 270 which states that an appeal on a point which does not affect the original appellant cannot be by a cross-appeal. In other words, where the respondent wishes to raise matters which are unconnected with the substance of the appeal by the appellant the respondent must proceed by way of a separate notice of appeal.” (see: MAJLIS PEGUAM v. CECIL WILBERT MOHANARAJ ABRAHAM [2019] 5 CLJ 139 (FC); PENTADBIR TANAH JOHOR BAHRU V TANAH SUTERA DEVELOPMENT SDN BHD [2023] MLJU 1159.) [28] We are of the considered view that it was improper for the Purchasers to merely file Notices of cross-appeal when they are attempting to substantially / materially alter the substantive decision of the Court below. As held in Kabushiki Kaisa Ngu, a cross appeal may be filed as to matters that would coincide with the matters appealed against in the main appeal by the Appellant. However, in this case, although Sime Darby is appealing against the entire decision of the LHJ, it cannot be logically or reasonably construed that Sime Darby was dissatisfied as to the LHJ’s refusal to award damages for the Purchasers ' loss of use and pre-judgment interest. The cross-appeals were purely the Purchasers' own dissatisfaction which should have been taken up via the **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 Purchasers' own Notices of Appeal (and not by filling a cross-Appeal). [29] In view of the aforementioned reasons, the six Sime Darby’s Notices of Motions to strike out the Cross Appeals are ALLOWED with costs of RM 10,000.00 for each motion, subject to allocatur. Consequentially, all Cross-Appeals in Enclosures 50 in Appeal 591, 19 Appeal 592, 19 in Appeal 593, 21 in Appeal 594, 22 in Appeal 595 and 23 in Appeal 596 are struck out. F. THE PURCHASERS’ APPLICATIONS TO ADDUCE FURTHER / NEW EVIDENCE IN ENCLOSURES 112 (APPEAL 591), 67 (APPEAL 592), 66 (APPEAL 593), 68 (APPEAL 594), 68 (APPEAL 595) AND 69 (APPEAL 596). [30] More than ten months after Sime Darby’s substantive Appeals were heard proper on 29.10.2024, the Purchasers on 22.8.2025 proceeded to file their respective Applications seeking for leave to admit / adduce new evidence in all of the appeals’ proceedings. The new evidence the Purchasers sought to admit were three (3) emails comprising two emails sent by Adele Wong Leong Boon Yien (Adele - the co-purchaser of the bungalow unit in suit 49 (Appeal 596) to Lembaga Arkitek Malaysia (“LAM”) and the third email is LAM’s email responding to Adele’s earlier two emails dated 20.3.2025 and 26.3.2025 respectively (from which Adele had sought verification of a Curriculum Vitae (CV) on an architect by the name of Mr David Cheah (Mr David) regarding his previous employment). This Mr David Cheah had testified in the High Court as Sime Darby’s expert witness (“SD5”). **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 [31] From LAM’s email, it was revealed that SD5 was a former employee of BEP Arkitek Sdn Bhd (“BEP Arkitek”), being the firm of architects that had issued the CCC for the development project upon which the bungalow units purchased by the Purchasers were developed. [32] Basically the Purchasers complained that: a) At the trial before the High Court, SD5 (being Sime Darby’s expert witness) did not disclose that he was previously an employee to BEP Arkitek. The Purchasers argued that if the disclosure of such relationship had been made by SD5 when he took his stand (at the High Court) as Sime Darby’s expert witness, the Purchasers would have challenged his credibility differently during cross examination; b) SD5’s non-disclosure of his employment with BEP Arkitek and his testimony in the trial as Sime Darby’s witness would create potential conflict of interest. Thus, his impartiality and competency are therefore inevitably questionable, especially considering that SD5’s testimony (in respect of timber species) contradicted the timber experts called by Sime Darby and the Purchasers; and c) SD5’s failure to disclose such relationship constitutes a serious breach of ethics and a breach of Order 40A Rule 3(2)(a) of the Rules of Court 2012. **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 F(i): Delay in filing the Applications to adduce further evidence [33] We will first deal with the issue of delay in filing the applications raised by Sime Darby. It was contended by the learned counsel for Sime Darby that there was an inordinate delay on the part of the Purchasers in filing their applications for leave to adduce new evidence. Now, Sime Darby’s six Appeals were filed circa April David Cheah’s prior employment with BEP Arkitek in March 2025 by a Mr Ho. [34] As submitted by the counsel for Sime Darby, Adele received the LAM’s email on 25.4.2025. The six applications were filed only on 22.8.2025. There was no explanation of the four month’s delay. In fact, if any verification was needed to be done on any of the expert witnesses to be called in by the opposing parties in an action / trial, it must be done expeditiously as soon as the expert witness/witnesses’ name was made available (prior to trial) and not belatedly after conclusion of the appeal hearing. **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [35] On this issue, we have no hesitation to agree with the learned counsel for Sime Darby that there was an inordinate delay in the filing of the applications and that the Purchasers had failed to discharge the onus on them to show that the delay was justified. Filing these applications at such a late stage (especially after the conclusion of the hearing of the appeals) in our view was clearly an abuse of court process as it would unnecessarily re-open the appeals proceeding and this will unduly prolong the proceedings. (see: Mutual Way Development & Construction Sdn Bhd v Saiseki (M) Sdn Bhd [2008] 2 CLJ 232; Dato” Ahmad Johari bin Tun Abdul Razak v A. Santamil Selvi a/p Alau Malay @ Anna Malay (administrfatix for the estate of Balasubramaniam) [2020] 6 MLJ 133). On these aforementioned grounds, all six of the Purchaser’s applications to adduce fresh evidence must fail and be dismissed with costs. F(ii): Whether the Purchasers have satisfied the legal threshold in adducing fresh evidence [36] The law is trite that the power of this Court to admit further evidence is found under section 69 of the CJA and Rule 7 (3A) of the RCA Court of Appeal. In the Appeals before us, the evidence that was intended to be admitted was regarding SD5’s history of employment with BEP Arkitek more than 20 years ago. Thus, it was clear that the new evidence that the Purchasers intend to **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 adduce was in in nature, an EXISTENT and available evidence that was not tendered into Court during trial. [37] The Federal Court in AG v Dato’ Sri Najib bin Tun Haji Abdul Razak, had recently re-stated and further reinforced the scope / the threshold of section 69 of the CJA and Rule 7 (3A) of the RCA 1994 regarding applicability of the principles elucidated in Ladd v Marshall in the admittance of fresh evidence: “Therefore… it is our considered view that Rule 7(3A) RCA 1994 is the statutory provisions with regards to admission of new evidence at the appellate level. Although the exact wordings of the essential elements in Ladd v Marshall and the elements in Rule 7(3A) RCA 1994 are not word per word the same, the effect and the consequence of applying the elements in Rule 7(3A) of the RCA 1994 and the element in Ladd v Marshall lead to the same conclusion. As to whether Rule 7(3A) “encapsulates”, “codifies” or “reflects” for want of a better term, we prefer the word “encapsulates” which means, it expresses the essential features of the test in Ladd v Marshall succinctly.” [38] Thus, it was incumbent upon the Purchasers to fulfill the threshold in Rule 7 (3A) of the RCA 1994 in that: a) The new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and b) the new evidence, if true, would have had or would have been likely to have had a determining influence upon the **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 decision of the High Court or the subordinate court, as the case may be. [39] Firstly, it is pertinent to note that SD5’s employment with BEP Arkitek subsisted between July 1995 to April 1999. At the time the suits were filed by the Purchasers, SD5’s and BEP Arkitek’s employer / employee relationship was already over for more than 20 years. The whopping gap of 2 decades was certainly an extensive length of time. [40] We are unable to fathom how a conflict of interest can arise considering the relationship between BEP Arkitek and SD5 had already ended for more than two (2) decades. The complaint brought up by the Purchasers was clearly baseless and notional, when the ‘axis’ of the conflict of interest complained of for decades’ long had already ceased to exist. [41] The Purchasers contended that since SD5 was formerly the employee of BEP Arkitek (the firm of architects who had issued the CCC for the development) it therefore deems SD5 as an incompetent witness and thereby his evidence becomes unreliable. We hereby do not follow the Purchasers’ narrative that SD5 would automatically be deemed incompetent merely because SD5 was previously employed in the same firm (more than 20 years ago) which issued the CCC for the Project. It must be noted that the CCC was issued by BEP Arkitek in 2012, (long after SD5 left his employment with the firm i.e. more than 12 years). Considering the long lapse of time, we find that SD5 obviously had nothing to do with the issuance of the CCC by BEP Arkitek. We must also state that the employment history of SD5 with BEP **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 Arkitek was completely irrelevant to the expert opinion that SD5 gave to the Court on behalf of Sime Darby. In this instance, the notion of conflict of interest brought up by the Purchasers was baseless. On this score alone, the Applications by the Purchasers were totally devoid of merit. [42] Furthermore, we must also emphasize that the substantive appeals before us revolved around Sime Darby’s dissatisfaction against the findings made by LHJ. The LHJ had found that Sime Darby was in breach of its obligation under the Housing Developer’s Obligation (Materials) and/or Housing Developer’s Obligation (workmanship) for delivering to the Purchasers bungalows with serious defects (defects in the air conditioning and some other various defects). [43] It is crucial to note that the LHJ had already dismissed the Purchasers’ contention that Sime Darby’s use of the cheaper Red Balau timber instead of Yellow Balau timber was in breach of Clause 13 of the SPAs (Clause 15 in Schedule I SPAs) (of its good workmanship and material obligations) as the 4th Schedule of the SPAs did not expressly specify the description the use of Yellow Balau Timber. The Purchasers’ cross-appeal (even if considered) was limited to the issue of loss of use and pre-judgment interest (which had nothing to do whatsoever with Sime Darby’s use of Red Balau Timber). Thus, it is exceedingly obvious that the Purchasers’ qualm against the evidence of SD5 in respect of the timber species would have NO relevance and NO determining influence on both Sime Darby’s six substantive appeals and the Purchasers’ cross-appeal as Sime Darby’s use of Red Balau timber was neither a subject in Sime Darby’s six substantive **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 appeals nor a subject in any of the two limbs of the Purchasers’ cross-appeals (which we have already struck out above). [44] Furthermore, SD5’s employment with BEP Arkitek had ceased more than 20 years ago and there was no evidence produced by the Purchasers that SD5 had any personal communication with Sime Darby or BEP Arkitek regarding this case. There was no conflict of interest that would affect his ability to act independently. [45] Moreover, SD5’s expertise is in architecture, not on the types or species of timber. SD5 was not Sime Darby’s primary expert evidence to testify on the timber use issue. In fact, the LHJ in his GOJ did not rely on SD5’s testimony in making his findings. [46] In view of the abovementioned deliberations, we are of the considered view that the Purchasers have not successfully satisfied the threshold for adducing fresh existent evidence at the Appeal stage. We therefore, dismiss Enclosures 112 (Appeal 591), 67 (Appeal 592) 66 (Appeal 593), 68 (Appeal 594), 68 (Appeal 595) and 69 (Appeal 596) with costs of RM 10,000.00 to be paid to Sime Darby for each application, subject to allocatur. G. THE SIX SUBSTANTIVE APPEALS [47] We have perused the Amended Memorandums of Appeal, the Records of Appeal and all respective written submissions in all the six appeals and we must mention that although Sime Darby had listed out fifteen (15) principal grounds in its Amended Memorandum of Appeal in challenging the LJH’s decision, we **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 verily believe that all the six substantive Appeals can be determined by answering the following issues: a. Issue 1: Whether the LHJ was correct in finding that the Purchasers have successfully discharged their burden in proving on the balance of probabilities that the alleged defects existed in the bungalow units and that Sime Darby was liable for the alleged defects by breaching the Housing Developer’s Obligation (Materials) and Housing Developer’s Obligation (Good Workmanship) under the Statutory SPAs; b. Issue 2: Whether the Learned Judge was correct in finding that the Purchasers in suits 43, 44, 45 and 46 have discharged their burden of proof (on the balance of probabilities) that they had never signed the DRFs and FFs and that the signatures appearing on the DRFs and FFs were forged signatures; c. Issue 3: Whether or not the Learned Judge was correct in finding that Sime Darby had not satisfied the conditions under Regulation 11 (1B) of HDLR in suits 46 & 49 to allow it to contract out of the statutory form in Schedule I; d. Issue 4: Whether or not the Learned Judge was correct in finding the SPAs/statutory forms' DLP terms are applicable only as against PATENT defects which are discoverable during the 24 months' DLP Period and does not bar homeowners from claiming damages for LATENT defects for poor workmanship/materials which are only discoverable after the DLP period; and **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 e. Issue 5: Whether or not the Learned Judge was correct in finding that the Purchasers have successfully discharged their legal and evidential burden to prove the Rectifications Costs incurred based on the evidence of the Purchasers’ Expert Witnesses. [48] Before we proceed to deal with the above issues, it is only appropriate at this juncture for us to identify the actual defects allegedly found in the bungalow units which forms the basis of the Purchasers’ claim. [49] By and large, all of the Purchasers essentially claims a similar vein of defects in their respective SOCs in all the six (6) suits. For a base understanding of the Purchasers’ core complaints, we refer to the defects claimed in Suit 43 (Appeal 591) as a base example of the Purchasers’ claims. Paragraph 10 of the SOC in Suit 43 10. Kecacatan tersebut termasuk, tetapi tidak terhad kepada, yang berikut: The said defects include, but are not limited to the following: i. Penyediaan tanah yang kurang memuaskan di mana terdapat penempatan tanah yang berterusan di perkarangan belakang walaupun pemasangan telah dilakukan oleh defendan pada 21/11/2014; Poor ground preparation in which there are continuous soil settlement at the back compound despite nailing done on 21/11/2014 by the defendant; **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 ii. Hasil kerja paip yang buruk dan peralatan untuk sistem air tadahan hujan rosak; Poor piping and faulty equipment for rain water harvesting system; iii. Pemampat sistem penghawa dingin telah condong dan tidak beroperasi dengan baik; Compressor of air-conditioning system is tilting and not functioning properly; iv. Rekahan pada dinding dan siling sendi pada bahagian belakang rumah; Cracks on the walls and ceiling joints at the back portion of the house; v. Reka bentuk lif yang buruk; Poorly designed passenger lift; vi. Rekahan dan kesan pada dinding dan juga kerosakkan pada jubin lantai di semua bilik mandi, ruang tamu dan dapur; Cracks and stained wall as well as chipped floor tiles at all bathrooms, living rooms and kitchen; vii. "Lightning arrester" yang buruk telah mengakibatkan sistem CCTV dan sistem pintu automatik disambar kilat sebanyak dua kali; Poor lightning arrester resulting CCTV system and auto-gate system being struck by lightning twice; viii. Banjir di tingkat bawah tanah disebabkan oleh sistem perparitan yang buruk, Flooding in the basement due to poorly designed drainage system; ix. Sistem penapisan air yang buruk; **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 Faulty water filter systems; x. Kerja-kerja paip yang buruk telah mengakibatkan kebocoran di paip kemasukkan air dan paip dalaman di banyak kawasan; Poor plumbing works resulting burst in incoming and internal pipes in many areas; xi. Tiada "gutters" bumbung dipasang; No roof gutters were installed; xii. Kualiti wayar elektrik / kelengkapan yang buruk digunakan untuk sistem penghawa dingin, sistem penggera, lampu dan "power point"; Poor quality electrical wires/fittings used for air-conditioning system, alarm system, lighting and power points; xiii. Kalis air yang buruk di balkoni dan kolam ikan menyebabkan resapan air dan mengakibatkan kesan pada siling serta kerosakan pada kelengkapan lampu; dan Poor water proofing in balcony and fish pond causing water seepage and subsequently resulting stains in ceiling and damages to light fittings; and xiv. Reka bentuk jalan yang sempit menuju ke tempat letak kereta di bawah tanah. Poor design and very narrow driveway to the basement car park. [50] It must be noted that from the tabulated paragraph 10 above, the Purchasers in Suit 43 have essentially pleaded altogether fourteen to (xiv). The listed defects are as follows: **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 Defect (i) - Poor ground preparation in which there are continuous soil settlement at the back compound despite nailing done on 21/11/2014 by the defendant; Defect (ii) - Poor piping and faulty equipment for rain water harvesting system; Defect (iii) - Compressor of air-conditioning system is tilting and not functioning properly; Defect (iv)- Cracks on the walls and ceiling joints at the back portion of the house; Defect (v) - Poorly designed passenger lift; Defect (vi)- Cracks and stained wall as well as chipped floor tiles at all bathrooms, living rooms and kitchen; Defect (vii)- Poor lightning arrester resulting CCTV system and auto gate system being struck by lightning twice; Defect (viii)- Flooding in the basement due to poorly designed drainage system; Defect (ix) - Faulty water filter systems; Defect (x) - Poor plumbing works resulting burst in incoming and internal pipes in many areas; Defect (xi) - No roof gutters were installed; **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 Defect (xii) - Poor quality electrical wires/fittings used for air-conditioning system, alarm system, lighting and power points Defect (xiii) - Poor water proofing in balcony and fish pond causing water seepage and subsequently resulting stained in ceiling and damages to light fittings; and Defect (xiv) - Poor design and very narrow driveway to the basement car park. [51] It must be noted that from the LHJ’s GOJ, the LHJ had categorized all the alleged defects listed and pleaded by the Purchasers in all the six (6) suits into two (2) major categories of defects namely: a) the defects relating to the air-conditioning; and b) alleged other defects. [52] Following the categorization made by the LHJ, therefore the 14 defects pleaded by the Purchaser in Suit 43 in his SOC can be categorized follows: (a) Alleged defects (Air Conditioners): Defect (iii) - Compressor of air-conditioning system is tilting and not functioning properly Defect (xii) - Poor quality electrical wires/fittings used for air-conditioning system, alarm system, lighting and power points **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 Defect (i) - Poor ground preparation in which there are continuous soil settlement at the back compound despite nailing done on 21/11/2014 by the defendant; Defect (ii) - Poor piping and faulty equipment for rain water harvesting system Defect (iii) - Compressor of air-conditioning system is tilting and not functioning properly; Defect (iv) - Cracks on the walls and ceiling joints at the back portion of the house; Defect (v) - Poorly designed passenger lift; Defect (vi)- Cracks and stained wall as well as chipped floor tiles at all bathrooms, living rooms and kitchen; Defect (vii) - Poor lightning arrester resulting CCTV system and auto gate system being struck by lightning twice; Defect (viii) -Flooding in the basement due to poorly designed drainage system; Defect (ix) - Faulty water filter systems; Defect (x) - Poor plumbing works resulting burst in incoming and internal pipes in many areas; **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 Defect (xi) - No roof gutters were installed; Defect (xiii) - Poor water proofing in balcony and fish pond causing water seepage and subsequently resulting stained in ceiling and damages to light fittings; and Defect (xiv) - Poor design and very narrow driveway to the basement car park. H. Issue 1: Whether the LHJ was correct in finding that the Purchasers have successfully discharged their burden in proving on the balance of probabilities that the alleged defects existed in the bungalow units and that Sime Darby was liable for the alleged defects by breaching the Housing Developer’s Obligation (Materials) and Housing Developer’s Obligation (Good Workmanship) under the Statutory SPAs Issue 1(a) - the defects (Air Conditioners) [53] As we had mentioned earlier in our judgment, the LHJ had approached the issues of defects pleaded by the Purchasers in their SOCs by categorising the defects into two major defects namely: (i) Alleged defects (Air Conditioners); and (ii) Alleged Other defects. [54] Regarding alleged defects (Air conditioners), the LHJ at paragraph 61 of his GOJ had narrated the complaint by the Purchasers as follows: **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 Purchasers in suits 43, 44, 45, 46 and 47 Diffuser; and Purchaser in suit 49 There was condensation at the Air conditioners. [55] In determining whether Sime Darby was responsible and/or liable to the Purchasers regarding the myriads of problems with the Air-conditioners, the LHJ had posed the following questions: i. Sime Darby’s breach of the Housing Developers’s Obligation (Materials) and/or Housing Developer’s Obligation (workmanship); ii. not the Purchasers’ Renovation Works; iii. not the Purchasers’ Lack of Maintenance; and iv. not Ordinary Wear and Tear. **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 [56] The LHJ was of the mind that the Court would require the assistance of expert opinion for the Court to determine the above questions. This finding was clearly stated in paragraph 64 of his GOJ. [57] At the end of his analysis of the evidence of the expert witnesses called by the Purchasers and Sime Darby, the LHJ had accepted the evidence of SP13 and SP14 (expert witnesses of the Purchasers) and rejected the evidence of SD3 (expert witness of Sime Darby) and found that the Purchasers had successfully proven that there were indeed defects with the air conditioning in the bungalows. [58] It must also be noted that the LHJ also made the following findings of fact based on the evidence of SP13 and SP14: a) the causa causans of the Defects (Air Conditioners) was Sime Darby’s breach of Housing Developer's Obligation (Materials) and/or Housing Developer's Obligation (Good Workmanship) because Sime Darby had installed Air-Conditioners which were under-capacity in the 6 Bungalows. These under-capacity Air-Conditioners had caused Sweating at the Supply Diffuser (Air-Conditioners for the 5 Bungalows in Suits No. 43 to 47) and Condensation Problem (Air-Conditioners for the Bungalow in Suit No. 49) which should not have occurred especially considering the extravagant Purchase Prices paid by the Purchasers to Sime Darby. In respect of the pipe insulation problem, the LHJ found that Sime Darby had installed unsuitable Pipe Insulation (for Air Conditioners in 5 Bungalows in Suits No. 43 to 47). This problem also should **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 not have happened considering the extravagant Purchase Prices of the bungalow units. b) Sime Darby had breached the Housing Developer's Obligation (Good Workmanship) because: i. the air flow in the air ducts of the 5 Bungalows (Suits No. 43 to 47) was turbulent due to poor design and workmanship of the air ducts; and ii. there is no sufficient airflow in the Air Conditioners in Bungalow (Suit No. 49); c) As a matter of common sense, the causa causans of the Defects (Air Conditioners) was Sime Darby's breach of Housing Developer's Obligation (Materials) and/or Housing Developer's Obligation (Good Workmanship); d) the Defects (Air Conditioners) would not have occurred "but for” Sime Darby's breach of Housing Developer's Obligation (Materials) and/or Housing Developer's Obligation (Good Workmanship); e) As a matter of common sense, the causa causans of the Defects (Air Conditioners) could not have been caused by: i. the Purchasers' Renovation Works; ii. the Purchasers ' Lack of Maintenance (6 Bungalows); and **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 iii. Ordinary Wear and Tear (6 Bungalows); and f) the application of the "but for" test does not show that the causa causans of the Defects (Air Conditioners) to be - i. the Plaintiffs' Renovation Works; ii. the Plaintiffs' Lack of Maintenance (6 Bungalows); and iii. Ordinary Wear and Tear (6 Bungalows). [59] The findings of the LHJ in respect of the air conditioning defects was vigorously challenged by Sime Darby. Sime Darby had raised the following contentions: a) To succeed in their claims for air conditioning defects against Sime Darby, the Purchasers must establish that Sime Darby had breached the SPAs and the building by-laws. In this case, when the LHJ found Sime Darby’s liability in respect of the air conditioning defects, the LHJ did not make any finding that Sime Darby had breached the SPAs nor did Sime Darby was in breach of any obligations under the building by-laws; b) Further, the 2nd and 4th Schedule of SPAs did not specify that Sime Darby has the obligation to provide air-conditioners to the bungalows of a specific capacity. The 2nd Schedule (containing approved building plans) and the 4th Schedule (which describes Building Description) merely specified in item **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 laws that requires housing developers to provide air-conditioners of a certain specification; c) Despite the SPAs and the building by-laws do not provide the obligation on Sime Darby to provide air-conditioners (with certain capacity), the LHJ had found Sime Darby to be liable under Housing Developers’ Obligation (Materials) and/or Housing Developer’s Obligation (Workmanship) on the ground of common sense. In other words, common sense puts an obligation on the housing developer of luxury high end properties to provide air-conditioners of higher or suitable capacity and with suitable pipe insulation so as to ensure that the air-conditioners would not suffer sweating at the supply diffuser and condensation; d) The LHJ had clearly fallen into error when he imposes such obligation on Sime Darby and in doing so, the LHJ was actually rewriting the contract for the parties; and e) The LHJ had made an erroneous finding in respect of the air conditioning defects when he accepted the evidence of SP13 and SP14 (the Purchasers’ expert witnesses) and had rejected SD3 (Sime Darby’s expert witness) and found that Sime Darby had breached its good workmanship and materials obligation. [60] Firstly, we must state here that upon our close perusal of Schedule 2 and Schedule 4 of the SPAs, we are indeed minded that there were no specifications / descriptions regarding any specific **Note : Serial number will be used to verify the originality of this document via eFILING portal 48 capacity of air conditioning units or air conditioning system under these two Schedules. [61] Nonetheless, we are of the view that just because Schedule 2 and

Schedule 4 (under the SPAs) did not specifically describe the ‘capacity’ of air conditioners, it does not mean that Sime Darby was free to install any air-conditioners of any quality or capacity ‘out of their goodwill’ and ‘outside the ambit of the SPAs’. It is important to demystify Sime Darby’s reliance on Schedules 2 and 4 of the SPAs. [62] Now, Schedule 2 of the SPAs essentially appends the Approved Building Plans. It is typical of Building Plans that the Plans would not specifically itemize and indicate the electrical installations (such as light fittings, switches, and air-conditioning) within the Building Plans themselves. At best it is a typical feature of modern strata buildings for strata Building Plans to indicate the location or ‘ledge’ in which an air-conditioner’s outdoor unit can be installed. However, such strata features are not typical to landed properties that we are dealing with here. [63] Now, we certainly do not hesitate to disagree with Sime Darby’s insistence on ‘technical specificity’ considering the fact that schedule 4 of the SPAs were drafted by Sime Darby itself to be INTENTIONALLY BRIEF AND BROAD. Example being, schedule 4 does not explicitly mention any description of light fittings or even toilet bowls. The 4th Schedule only broadly refers to “(l) Electrical installation:” and “(k) Sanitary and plumbing fittings:”. Here it can be clearly seen that a colon symbol (:) follows after each description. It is universally and typically understood that a colon is **Note : Serial number will be used to verify the originality of this document via eFILING portal 49 a punctuation mark that usually precedes a list, or particulars. But in the Appeals before us, NOTHING WAS LISTED OR PARTICULARISED AFTER THE COLON SYMBOL. [64] So does that mean Sime Darby is free to not install light fittings and toilet bowls in the bungalows? Does that mean Sime Darby is free to install an in arbitrary number of light fittings or toilet bowls of any good or poor quality? Does that mean Sime Darby is free to install any arbitrary quality of plumbing infrastructure that may or may not be sufficient or suitable for a luxury development of PRIMO’s scale? The Business Common Sense rule of interpretation of commercial contracts undoubtedly would negatively answer all of these questions (additional to and aside from the statutory protection mechanism already in place within the HDA and the HDLR). [65] Even before we delve into the statutory protection mechanism of the statutory forms, we are beckoned to clarify and rectify the preposterous manner in which Sime Darby was interpreting the SPAs. Now, Sime Darby is hiding behind skirt of the SPA’s intentional ‘broadness’ and ‘vagueness’. Of course if the Courts were to take an extremely rigid and literal approach, it would lead to the absurd result that Sime Darby as a Developer and vendor would be free even refuse to install any light fittings and air-conditioners (let alone lighting and air-conditioners of proper quality and suitable specifications). When the LHJ applied the ‘common sense’ approach, the LHJ was not ‘re-writing’ the SPAs. Instead, the LHJ had applied the Business Common Sense approach of contractual interpretation (of which had seen increasing application and acceptance in Malaysia). The rule simply entails that even in **Note : Serial number will be used to verify the originality of this document via eFILING portal 50 the face of a clear and unambiguous contractual term, the Court must necessarily prefer an interpretation that makes commercial sense (or business common sense) so as to avoid a rigid interpretation that would lead to absurdity. (see FC in SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464; Prenn v Simmonds [1971] 3 All ER 237; Kuan Kong Hong v Ng Kim Cheong & Anor [2023] 5 MLJ 644; Davanam Constructions Sdn Bhd v THP Enstek Development Sdn Bhd (formerly known as TH-NSTC Sdn Bhd) [2024] MLJU 1280). [66] Now, under the same rule of business common sense interpretation, the Court may look into surrounding facts so as to ascertain the interpretation that yields to business common sense. In the six Appeals before us, we therefore must consider the fact that Sime Darby indeed supplied and installed air-conditioning systems as part of the development of the Project. This fact was also reflected in the PRIMO Homeowners Manual in which Sime Darby had listed the sub-contractors or suppliers in which Sime Darby had engaged to supply and install air-conditioning systems within the Bungalow units (being one Menang Engineering Sdn Bhd). Thus, it can only logically glean that it remains a critical term within the SPAs that Sime Darby was the party responsible to supply air-conditioning systems to the Purchasers’ bungalows. [67] With all these deliberations in mind, it is only reasonable and commercially sensible to interpret that Sime Darby was indeed under the contractual obligation to provide, supply, and install air-conditioning systems of specifications and capacities in which was suitable for the size and extravagant quality of the luxury development. It simply and utterly betrays all business common **Note : Serial number will be used to verify the originality of this document via eFILING portal 51 sense that Sime Darby hypothetically can be free to arbitrarily install any unsuitable air-conditioning system of a used 1.5 litres Proton Iswara, when the parties have conducted business in the context and pretense of a brand new 8 seaters top - specification 2.5 litres turbocharged Alphard (just because the SPAs might not expressly pen down the specification of the air-conditioning system in exactitude). [68] Apart from the appropriate interpretation of the SPAs, Sime Darby was also contractually bound to develop the Bungalows in a good material and workmanlike manner under Clause 13 of the STB SPAs (clause 15(1) in Schedule I for the BTS Purchasers): Materials and workmanship to conform to description 13. The said Building shall be constructed in a good and workmanlike manner in accordance with the description set out in the Fourth Schedule hereto and in accordance with the plans approved by the Appropriate Authority as in the Second Schedule, which description and plans have been accepted and approved by the Purchaser, as the Purchaser hereby acknowledges. No changes thereto or deviations therefrom shall be made without the consent in writing of the Purchaser except such as may be required by the Appropriate Authority. The Purchaser shall not be liable for the cost of such changes or deviations and in the event that the changes or deviations involve the substitution or use of cheaper materials or the omission of works originally agreed to be carried out by the Vendor the Purchaser shall be entitled to a corresponding reduction in the purchase price herein or to damages, as the case may be. **Note : Serial number will be used to verify the originality of this document via eFILING portal 52 [69] Whereas Clause 15 (1) Schedule I SPA (for the BTS Purchasers) similarly stipulates as follows: 15. Materials and workmanship to conform to description (1) The said Building shall be constructed in a good and workmanlike manner in accordance with the description set out in the Fourth Schedule and in accordance with the plans approved by the Appropriate Authority as in the Second Schedule, which descriptions and plans have been accepted and consented by the Purchaser, as the Purchaser hereby acknowledges. (2) No changes or deviations from the approved plans shall be made without the consent in writing of the Purchaser except such as may be required by the Appropriate Authority. (3) The Purchaser shall not be liable for the cost of such changes or deviations and in the event that the changes or deviations involve the substitution or use of cheaper materials or the omission of works originally agreed to be carried out by the Developer, the Purchaser shall be entitled to a corresponding reduction in the purchase price or to damages, as the case may be. [70] Thus, despite Schedule 2 and Schedule 4 of the SPAs were intentionally kept broad and non-specific, it remains incumbent upon Sime Darby to supply and install air-conditioning systems that is of good materials and workmanlike quality. The vague and general words used to describe the air-conditioning systems do not at all absolve Sime Darby of its good materials and workmanlike **Note : Serial number will be used to verify the originality of this document via eFILING portal 53 obligations. We reiterate that the bungalow units developed by Sime Darby are high end and premium bungalows extravagantly priced at more than RM4.5 million. It is neither a mystery nor rocket science for any reasonable person to understand and comprehend that a premium and luxury bungalow should be provided with air conditioners (of the appropriate capacity) to ensure that the Purchasers may enjoy their respective units in comfort and not be burdened by worry and hassle of under-capacity units destined for faults and defects. In the Appeals before us, the good materials and workmanlike duty to install air-conditioners to the broad description of schedule 4 need not necessarily be the highest or greatest capacity. But it is only commercially reasonable and sensible that the air-conditioners are of the capacity that is suitable to the heft and size of the Bungalow units in that the air-conditioners can perform and function with reasonable effectiveness and efficiency without running the risk of ‘sweating’ and ‘condensation’ due to the air-conditioning units being ‘overworked’ to desperately regulate the temperature of the bungalow units. [71] The LHJ had accepted the evidence of SP13 and SP14 and found that the under-capacity air conditioners installed by Sime Darby had caused the Sweating at Supply Diffuser (Air Conditioners in the Bungalows in Suits No. 43 to 47) and Condensation Problem (Air-Conditioners in the Bungalow in Suit No. 49). Whereas in respect of the improper pipe insulation issue, the LHJ had found that Sime Darby had installed unsuitable Pipe Insulation (Air Conditioners in the 5 Bungalows in Suits No. 43 to 47). **Note : Serial number will be used to verify the originality of this document via eFILING portal 54 [72] In view of all the above, we have no hesitation to find that the LHJ had appropriately considered all expert evidence and relevant facts before finding that Sime Darby had breached its good workmanship and materials obligations as to the defects in air-conditioning which was the causa causans of the defects upon the Bungalows’ air-conditioning units. We also find that the LHJ had correctly found that this nature of defect had nothing to do with wear and tear, renovations or lack of maintenance on the part of the Purchasers. [73] We must also add that the findings made by the LHJ in respect of the defects of the air conditioners were substantially finding of facts. It is trite law that the appellate court ought not be too eager to interfere with the findings of fact made by the trial court. The duty of an appellate court to intervene only arises in cases where the trial court had acutely or fundamentally misdirected itself or misappreciated / misevaluated evidence before it and had therefore, arrived at a conclusion that cannot be reasonably justified. (see Zabariah Yusof FCJ in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 6): “[76] What is pertinent is that, the ‘plainly wrong’ test is not intended to be used by an appellate court as a mean to substitute its own decision for that of the trial court on the facts. … [148] Given the aforesaid, we form the view that rather than adopting a rigid set of rules to demarcate the boundaries of appellate intervention insofar as findings of fact are concerned, the ‘plainly wrong’ test as espoused in decisions of this court should be **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 retained as a flexible guide for appellate courts. As long as the trial judge’s conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate court feels like it might have decided differently is irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts.” [74] It was abundantly clear that the LHJ had agonizingly considered all of the expert evidence on both sides of the fence together with relevant facts, documentary evidence and the relevant principles of law before making his conclusion as to the issue of the air-conditioning defects. There was certainly nothing so repugnant or plainly wrong in the LHJ’s meticulous analysis that would offend common sense. Issue 1(b) - the alleged other defects [75] Indisputably, the alleged other defects would comprise of all the remaining defects other than defects relating to air-conditioners. In the Appeals before us, the LHJ had found that the Purchasers had proven the existence of the alleged other defects. In essence, the LHJ had accepted the Purchasers’ expert opinion and had found liability against Sime Darby for the alleged other defects. [76] From paragraph 79 of the GOJ, it appears that the LHJ’s findings of fact were made primarily on the following evidence and reasons: **Note : Serial number will be used to verify the originality of this document via eFILING portal 56 a) Evidence of SP1 to SP7. They (SP1 to SP7) had given oral evidence regarding the existence of the Alleged Other Defects (6 Bungalows); b) The oral evidence of SP1 to SP7 did not merely consist of bare allegations but instead, their oral evidence was supported by written complaints made by the Purchasers in their correspondence with Sime Darby, including the other Genuine DRFs/FFs (“The Purchasers' Written Complaints (Defects)”). The Purchasers ‘Written Complaints (Defects) were significantly relevant under section 157 Evidence Act 1950 (EA 1950) which provides: “In order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved." c) The Genuine DRFs/FFs (aside from the forged DRFs/FFs) were former statements made by the Purchasers and these genuine DRFs/FFs corroborated Purchasers testimonies of the alleged other defects; d) SD5, Sime Darby's own expert, had admitted that there existed certain Alleged Other Defects (6 Bungalows) (“SD5's Admission [Certain Defects (6) Bungalows]”). In this manner, SD5's Admission [Certain Defects (6 Bungalows)] corroborated the Oral Evidence (SP1 to SP7); **Note : Serial number will be used to verify the originality of this document via eFILING portal 57 e) The Oral Evidence (SP1 to SP7) is supported by the expert opinions of SP8 to SP10 [Expert Opinions (SP8 to SP10)]. There is no reason for SP8 to SP10 to sacrifice their professional reputation by providing inaccurate or false Expert Opinions (SP8 to SP10) in the 6 Suits; f) The oral evidence of SP1 to SP7and also the Expert Opinions of SP8 to SP10 supports the allegation that Sime Darby had breached the following provisions under the Selangor Uniform Building By-Laws 1986 (SUBBL) namely: i. by-law 107(1) SUBBL: "107 Handrails (1) Except for staircases of less than 4 risers, all staircases shall be provided with at least one handrail." For Bungalow (Suit No. 49), the staircase to the swimming pool therein did not have any handrail. As such, the Defendant did not comply with by-law 107(1) SUBBL with regard to the Bungalow (Suit No. 49). It is to be noted that a mandatory term "shall" is employed in by-law 107(1) SUBBL; ii. by-law 115(1) SUBBL: "115 Roof coverings and drainage with a rainwater harvesting and utilisation system (SPAH) (1) All roofs of buildings shall be so constructed as to drain effectually to suitable and sufficient channels, gutters, **Note : Serial number will be used to verify the originality of this document via eFILING portal 58 chutes or troughs which shall be provided in accordance with the requirement of these by-laws for receiving and conveying all water which may fall on and from the roof." An imperative term "shall" is used in by-law 115(1) SUBBL. The roofs of all the 6 Bungalows do not have gutters. Hence, the Defendant had breached by-law 115(1) SUBBL in respect of the 6 Bungalows; iii. by-law 116(1) SUBBL: "116 Accessible flat roofs, balconies, etc. Every flat roof, balcony or other elevated areas 1.8 metres or more above the adjacent where normal access is provided shall be protected along the edges with suitable railings, parapets or similar devices not less than 1 metre in height or other suitable means." By-law 116 SUBBL has mandatory effect due to the employment of the word "shall" in that provision. The verandah in Bungalow (Suit No. 49) is 3.150 metres above the lower ground floor of that building but the railing around the entrance foyer in the verandah is only 0.720 metre which is less than 1 metre (required by by-law 116 SUBBL). Accordingly, the Defendant has failed to comply with by-law 116 SUBBL regarding Bungalow (Suit No. 49). **Note : Serial number will be used to verify the originality of this document via eFILING portal 59 g) There is no reason for the Court to disbelieve the oral evidence of SP1 to SP7 because: i. SP1 to SP7 had withstood vigorous cross-examination by Mr. Rohan; and ii. it is inconceivable for SP1 to SP7 to give false evidence with regard to the existence of the Alleged Other Defects (6 Bungalows). [77] Sime Darby has strenuously challenged the findings made by the LHJ and contended that the LHJ had made errors in law and in fact that: a) allegedly the LHJ had erred in finding that the Purchasers had successfully proved each and every item of defects being complained of; b) allegedly the LHJ had wrongly applied the “but for” test in determining multiple causes of the alleged defects. Whereas, the “but for” test generally assumes a singular cause and not when there are multiple possible causes to the defects; c) allegedly the LHJ had wrongly found liability against Sime Darby for the alleged other defects, as he had arrived at findings by wholly relying on the expert testimonies without testing the evidence against Sime Darby’s documentary and expert evidence; **Note : Serial number will be used to verify the originality of this document via eFILING portal 60 d) allegedly the RRF and DRF / Feedback Forms did not corroborate the expert opinions; e) allegedly the Purchasers’ expert opinions were not backed by proof as some photos used by the expert witnesses were photos supplied by the homeowners themselves and not obtained by the expert witnesses from their investigation at the bungalows; f) allegedly the expert witnesses had failed to consider alternative causes that caused the defects such as renovation works by the purchasers themselves, poor maintenance; or wear and tear; and g) allegedly, the expert witnesses had admitted that some of defects had been rectified or were not actual defects. [78] Succinctly, Sime Darby’s challenge against the LHJ’s findings in respect of the alleged other defects was two-folds; (i) the Purchasers failed to prove each and every item of defects; and (ii) the “but for” test was wrongly applied as there maybe multiple cause for the alleged other defects. [79] In retort, the Purchasers argued that it was grossly incorrect for Sime Darby to contend that the Purchasers had failed to prove to the Court of the existence of the Alleged Other Defects. It was also submitted by the Purchasers that it is exceedingly wrong for Sime Darby to contend that the Purchasers had failed to prove to the Court of each and every items of the alleged other defects they complained of. **Note : Serial number will be used to verify the originality of this document via eFILING portal 61 [80] The Purchasers contended that the LHJ had correctly found the that alleged other effects existed and the same had been successfully proved by oral testimonies and documentary evidence of the Purchasers themselves. In addition, the existence of alleged other defects was strongly corroborated by the testimonies of expert witnesses (expert opinions), the genuine DRFs/FFs submitted by the Purchasers as well as the correspondence between the Purchasers and Sime Darby’s officers through various emails. [81] The Purchasers further argued that the complaints that were stated in the DRFs/FFs forms were general complaints that have existed in the bungalow units even during the Defect Liability Period. In fact, even Sime Darby’s own expert had as a matter of fact found that the defects had actually existed. Thus, Sime Darby’s own expert witness corroborated the Purchasers’ oral evidence relating to the existence of the alleged other defects. [82] As to the LHJ’s application of the “but for” test, the Purchasers contended that LHJ had thoroughly considered all the possible causes including renovation works, maintenance, wear and tear. Thus, having considered all those causes, the LHJ had reasonably concluded that they were not the cause of the other alleged defects. In this respect, it was argued by the Purchasers that the LHJ’s findings was not simply or merely based on the “but for test” but after the LHJ’s consideration of all evidence and testimonies presented before him. **Note : Serial number will be used to verify the originality of this document via eFILING portal 62 [83] Having thoroughly examined the record of appeal, and having considered the submissions put forth by the parties as well as the LHJ’s GOJ, we are in agreement with the LHJ that the Purchasers had successfully proven their claims for the alleged other defects. [84] The extensive length and breadth of paragraph [79] of the LHJ’s GOJ clearly reflected that the LHJ had undertaken an in-depth appreciation upon all of the parties’ oral testimonies, expert evidence, various contemporaneous documents (inclusive of the Genuine DRFs / FFs, forged DRFs / FFs and email correspondence) as well as admissions by Sime Darby’s own expert on certain defects before making his finding that the Purchasers had discharged their burden of proof to prove the alleged other defects. [85] It was apparent from a proper reading of the LHJ’s GOJ that the LHJ had holistically considered the expert evidence, documentary evidence, and even the mannerisms of viva voce witnesses upon being put to vigorous cross-examination. It clearly gleans from the LHJ’s GOJ that he had agonized over the evidence, testimonies and assigning the proper weight upon testimonies as well as arguments in the case before painstakingly concluding his judgment. We remind ourselves that our appellate jurisdiction ought not be too readily imposed against a trial Court’s decision which had the benefit of hearing and closely analyzing viva voce testimonies and the witnesses’ mannerisms and demeanor during the heat of cross-examination. There was nothing so patently or repugnantly wrong in the LHJ’s analysis which would sorely necessitate our appellate intervention. **Note : Serial number will be used to verify the originality of this document via eFILING portal 63 [86] As to the appropriateness of the ‘but for test’ in determining the causa causans of the defect, we are minded that the LHJ had applied the test in reliance of the UK Court of Appeal case of Galoo Ltd (in liquidation) v Bright Grahame Murra [1994] 1 WLR 1360 (as locally applied in Tropicana Golf & Country Resort Bhd v Loke Wei Kuen & Anor and other cases [2022] MLJU 1969). In these precedents, the Courts were of the same mind that the issue of ‘causation’ and remoteness of damages in tort, is of the same nature of causation of remoteness of damages to contractual breach in the realm of contract law. We find no legal or logical reason to disagree with the same finding and analysis. [87] The issue of damages is universal across numerous fields of law. In contract law, the damages suffered must be that naturally flows from the act of breach or delinquency against a contract. In the realm of tort, the damages suffered must be that was foreseeably caused by the tortious conduct. To date, there has not been any definitive caselaw to determine that the ‘but for test’ is totally unsuitable or inappropriate in cases where there might be a multitude of causes to one singular damage. To our mind, whether the ‘but for test’ was suitable or otherwise is not merely a legal or theoretical issue but instead is also an evidential issue. [88] Typical of any case of contractual breach (and even tort), the Defendant would contend a hundred and one other causes which might have caused or ‘contributed’ to the damage. Even so, the pleading or contending of multiple causes should not deem the ‘but for test’ unsuitable in limine. Even in a case where parties might staunchly debate on a multitude of causes, it remains well within the Court’s discretion to apply the ‘but for test’ if the Court was **Note : Serial number will be used to verify the originality of this document via eFILING portal 64 satisfied that there was sufficient evidence to conclude that the damage had been caused by one distinct contractual breach (or tortious conduct). Alike in the six Appeals before us, the LHJ was of the mind that there was sufficient evidence to conclude that the defects conclusively must not have been caused by the Purchasers’ renovation works, lack of maintenance, and ordinary wear and tear of the bungalows (and was of the mind that the defects were caused by Sime Darby’s breach of its statutory good materials and workmanlike obligations). [89] In view of all the aforementioned findings and deliberations under this Heading, we hereby answer issue 1 in the POSITIVE. The LHJ was certainly correct in finding that the Purchasers have successfully discharged their burden in proving on the balance of probabilities that the alleged defects indeed existed in the bungalow units and that Sime Darby was liable for the alleged defects by breaching the Housing Developer’s Obligation (Materials) and Housing Developer’s Obligation (Good Workmanship) under the Statutory SPAs. I. Issue 2: Whether the Learned Judge was correct in finding that the Purchasers in suits 43, 44, 45 and 46 have discharged their burden of proof (on the balance of probabilities) that they had never signed the DRFs and FFs and that the signatures appearing on the DRFs and FFs were forged signatures [90] It is safe to say that Sime Darby’s contention and reliance on the impugned DRFs and FFs was one of Sime Darby’s intended ‘complete defence’ to thwart the Purchasers’ claims in toto. The **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 intended narrative was simply that even if the Purchasers successfully proven defects and liability for defects against Sime Darby, the impugned DRFs and FFs would have effectively proven that the Purchasers had admitted that the same defects had already been rectified by Sime Darby. [91] Sime Darby submitted that it was wrong for the LHJ to disregard the DRFs and FFs as the forms would effectively prove that Sime Darby had already rectified some of the defects complained of by the Purchaser during and after the DLP period. [92] Sime Darby further contended that the LHJ should disregard the issue of forgery as the word ‘forgery’ was never pleaded by the Purchasers in their SOCs. In addition, Sime Darby submitted that the LHJ had erred when he allegedly solely relied upon the oral evidence of the Purchasers without corroboration of a handwriting expert to support the Purchasers’ assertion. [93] As against Sime Darby’s contention on insufficient pleading, we duly find that the LHJ was correct in finding that the word 'forgery' itself need not be expressly pleaded so long as the material facts pleaded is sufficient to justify the plea of forgery. (see FC in Setiakon Engineering Sdn Bhd v Mak Yan Tai & Anor [2024] 5 MLJ 460: “[85] It is trite law that while the words ‘fraud’ or ‘forgery’ need not necessarily be expressly specified in a pleading, there must be sufficient material facts set out to justify a plea of fraud or forgery being inferred. The mere use of these words without sufficient material particulars is insufficient to prove fraud. **Note : Serial number will be used to verify the originality of this document via eFILING portal 66 Conversely too, insufficient evidence to meet the threshold of establishing fraud on a balance of probabilities does not give life to a plea of fraud, no matter how often the term is repeated.” [94] Regarding the ‘absence’ of a handwriting expert for the Purchasers, we are of the view that the non-calling of expert opinion is not automatically fatal. We find that the LHJ was indeed correct in finding that proving forgery need not necessarily require the tendering of a handwriting expert. The law only requires the testimony of persons acquainted with the handwriting. Moreover, it is trite law that adverse inference cannot be drawn for not furnishing a handwriting expert (see: Section 73 Evidence Act 1950; FC in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697) [95] We also find that LHJ had not been ‘plainly wrong’ in opting not to follow Sime Darby's handwriting expert report as the report only made comparisons between Photostat copies of the signatures without any comparison with the hand-signed original documents. Sime Darby also had not furnished any reason or justification for its reluctance to have its expert to make the proper comparison with the original hand-signed documents (which should also be within Sime Darby’s possession and if not, could have been requested or applied for from the Purchasers) (see: CA in Bumiputra-Commerce Bank Bhd v Augusto Pompeo Romei & Anor [2014] 3 MLJ 672 ; CS Petroleum (M) Sdn Bhd v Public Bank Bhd & Other Cases [2011] 1 LNS 1349). **Note : Serial number will be used to verify the originality of this document via eFILING portal 67 [96] In view of all of the above under this Heading, we hereby answer issue 2 in the POSITIVE. The Learned Judge was certainly correct in finding that the Purchasers in suits 43, 44, 45 and 46 have discharged their burden of proof (on the balance of probabilities) that they had never signed the DRFs and FFs and that the signatures appearing on the DRFs and FFs were forged signatures. J. Issue 3: Whether or not the Learned Judge was correct in finding that Sime Darby had not satisfied the conditions under Regulation 11 (1B) of HDLR in suits 46 & 49 to allow it to contract out of the statutory form in Schedule I [97] We are of the view that despite the fact that Regulation 11 (1B) of HDLR might be one of the extremely limited statutory exceptions where parties may contract out of the statutory forms of the HDA/HDLR, we believe that the manner in which Sime Darby seeks to exert this exception was far too excessive to the extent that it entirely defeats the class protection mechanism of the HDA as a social legislation. We must bear in mind that Sime Darby here was insisting that the exception should allow a Developer to take such liberties to the extent of absolving itself from the very rudimentary and fundamental good materials and workmanlike obligation (in substitution with an ‘as is where is’ terms of sale) despite the fact that: a) The Parliament had intended that the same good materials and workmanlike obligation shall apply across the board for both STB sale (under Schedule G) as well as BTS sale (under Schedule I) **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 considering both schedules still contain the same good materials and workmanlike obligation clause; b) The extravagant price paid by the BTS purchasers were still within the same high end price range between RM4.5million to RM5million that is similarly applied against the STB purchasers (whom still are protected by the good materials and workmanship obligation under Schedule G). Thus it is far too unfair and oppressive against the BTS purchasers to be deprived of the protection mechanism of the good materials and workmanlike obligations despite having no other option but to pay the same extravagant prices as the STB Purchasers (without any reasonable haircut to the price); c) although the BTS purchasers were given the opportunity to inspect the bungalows prior to their purchases, the BTS purchasers as the weaker party still remains at the mercy and reliance on Sime Darby’s expertise and skills as Developer to deliver high end and luxury bungalows that PRIMO was marketed and described to be; and d) it is altogether oppressive and unreasonable to apply the exception in such a liberal manner to the extent that the BTS purchasers are barred from relying on the Developer’s good and workmanlike obligations when the BTS purchasers had purchased the bungalows on the clear context, pretense, and legitimate expectation of a high end and luxurious piece of real estate. This was certainly not a simple case of the sale of an old warehouse or an aged commercial or residential unit where the ‘antiquated’ state of the property would necessitate the operation of a caveat emptor **Note : Serial number will be used to verify the originality of this document via eFILING portal 69 (buyer’s beware) clause. To put the very notion of ‘buyer’s beware’ beside a newly completed high end luxury bungalow development was exceedingly preposterous, and oppressive against the BTS Purchasers. [98] Hence the reason the law and the Courts have long accepted and applied that any notion or exception that would allow ‘contracting out’ of the statutory forms, should only be allowed when the substituted contract was MORE favorable to the purchasers and NOT when the substituted contract was more ONEROUS against the purchasers (effectively betraying the HDA as a social legislation to protect the class of homebuyers). We laud and agree with the LHJ’s reference to the Federal Court decision in SEA HOUSING CORPORATION SDN BHD v LEE POH CHOO [1982] 2 MLJ 31: “Thus it is clear that only terms and conditions designed to comply with the requirements of the rules that may be inserted in a contract of sale of land that is governed by the Act and rules, and that on the contrary TERMS AND CONDITIONS WHICH PURPORT TO GET ROUND THE ACT AND RULES SO AS TO REMOVE THE PROTECTION OF HOME BUYERS MAY NOT BE SO INSERTED. With respect, the provisions in question here are similar to those in Johnson v Moreton [1978] 3 All ER 37, a House of Lords decision, whereat page 49 Lord Hailsham said: **Note : Serial number will be used to verify the originality of this document via eFILING portal 70 “The policy of the law has been repeatedly used to protect the weaker of two parties who do not contract from bargaining positions of equal strength. (line a). The truth is that it can no longer be treated as axiomatic that, in the absence of explicit language, the courts will permit contracting out of the provisions of an Act of Parliament — as was attempted here — where that Act, though silent as to the possibility of contracting out, nevertheless is manifestly passed for the protection of a class of persons who do not negotiate from a position of equal strength, but in whose well-being there is a public as well as a private interest.” (lined onwards). It would appear that only “contracting out” in favour of the weaker party — i.e. the purchaser — might be countenanced by the courts.” [99] It is not that we are blind or ignorant to the utility of an ‘as is where is’ clause. Nor are we whimsically impeding or intruding into parties’ contractual autonomy. But here lies a situation where the intended departure from the statutory forms effectively removes the exact protection mechanism which was put in place via the statute. And we cannot pretend to ignore the glaring reality that the bargaining power between the Developer and the BTS Purchasers are unequal. The Developer is the expert with all the skills, expertise, know-how and even the benefit of full insight and insider knowledge as to the design, execution, and even exact materials used in the construction of the luxury bungalows. Compared to the layperson BTS Purchaser, the layperson could only perceive and **Note : Serial number will be used to verify the originality of this document via eFILING portal 71 inspect the unit to the best capability of a non-expert layperson (without the same level of expertise, insights, and insider knowledge of the Developer). [100] It is painstakingly clear that the Purchasers were in the weaker position that was entirely vulnerable to the Developer’s upper-hand. Sime Darby cannot in good and fair conscience, absolve itself from its statutory good materials and workmanlike obligations by ‘relying’ on the Purchasers’ lack of special knowledge as laypersons. This is especially so considering statute law had already expressly identified homeowners or purchasers as a protected class of persons. (see also COA in Loh Tina & Ors v Kemuning Setia Sdn Bhd & Ors and another appeal [2020] 6 MLJ 191 which have restated the same principle in SEA Housing) [101] The above considered, we are of the mind that it was not necessary for us to consider whether or not Sime Darby had fulfilled the threshold of Regulation 11 (1B) of HDLR as the nature of ‘amendment’ or ‘contracting out’ that Sime Darby was insisting was already the kind that cannot be countenanced by the Court (for clearly defying and defeating the protection mechanism specifically put in place under the HDA/HDLR). Even if Sime Darby had successfully satisfied Regulation 11 (1B) of HDLR, existing and prevailing rules of housing development laws would necessarily bar the parties’ departure from the protection mechanism prescribed under the statutory forms. **Note : Serial number will be used to verify the originality of this document via eFILING portal 72 [102] All of the above considered under this Heading, we hereby answer issue 3 in the POSITIVE (albeit from the context and aspect of the unlawful nature of the intended departure from the statutory form and not the threshold of Regulation 11 (1B) of HDLR). The Learned Judge was certainly correct in finding that Sime Darby ought not to be allowed to contract out of the statutory form in Schedule I. K. issue 4: Whether or not the Learned Judge was correct in finding the SPAs/statutory forms' DLP terms are applicable only as against PATENT defects which are discoverable during the 24 months' DLP Period and does not bar homeowners from claiming damages for LATENT defects for poor workmanship/materials which are only discoverable after the DLP period [103] We are of the view that the LHJ was entirely correct when he held that the SPAs/statutory forms' DLP terms are applicable only as against PATENT defects which are discoverable during the 24 months' DLP Period. We must emphasise that the statutory forms do not operate to bar homeowners from claiming damages for LATENT defects for poor workmanship/materials which are only discoverable after the DLP period. It was still up to the parties to argue and prove whether or not any nature of defect was either a Latent defect (that was not discoverable within DLP period) or a Patent defect (that should be reasonably discoverable upon reasonable inspection and be reported during DLP Period). (see decisions in Sigma Elevator (M) Sdn Bhd v Isyoda (M) Sdn Bhd & Anor [2016] 10 MLJ 635; Dua Residency Management Corporation v Edisi Utama Sdn Bhd & Anor [2021] MLJU 140; **Note : Serial number will be used to verify the originality of this document via eFILING portal 73 Raja Lob Sharuddin Raja Ahmad Terzali & Ors v Sri Seltra Sdn Bhd [2008] 2 CLJ 284). [104] In any case, we have perused the Appellant’s written submissions and have failed to specifically identify which matter or branch of defects in which the Appellant was contending to be patent defects that should have been discoverable and reported during the DLP. The Appellant only argued to the vague and general extent that the Purchasers’ expert witness had not identified the manner of defects that were latent defects. Res ipsa an Appeal, the burden to prove and satisfy the ‘plainly wrong’ test lies solely on the Appellant. Thus, it does not lie upon the Appellant to simply contend that the LHJ had failed in his judicial appreciation of evidence without the Appellant undertaking the proper examination and scrutiny into the matters in which the Appellant so contend the LHJ was plainly wrong about. It rests solely upon the Appellant to prove the plain and repugnant error of the LHJ that would necessitate our Appellate intervention. The Appellant cannot just lie down and merely ‘await’ the Respondent’s submission to prove the correctness of the trial court’s decision. [105] On the same note, the Appellant cannot come before the Appellate Court with general and broad contentions and expect the Court of Appeal to undertake the laborious exercise to put the flesh onto the bones of the Appellant’s bare complaints. Thus, in absence of any substantive challenge as to the LHJ’s analysis as to the latent defects, we cannot find any manifest error in the High Court's appreciation of evidence. Considering the 134 pages' decision by the LHJ, it was apparent that the LHJ had meticulously agonized **Note : Serial number will be used to verify the originality of this document via eFILING portal 74 and analyzed the evidence presented before him during trial in respect of the pleaded defects (both latent and patent). [106] In view of all the aforementioned deliberations under this Heading, we hereby answer issue 4 in the POSITIVE. The Learned Judge was indeed correct in finding that the SPAs/statutory forms' DLP terms are applicable only as against PATENT defects which are discoverable during the 24 months' DLP Period and does not bar homeowners from claiming damages for LATENT defects for poor workmanship/materials which are only discoverable after the DLP period. L. issue 5: Whether or not the Learned Judge was correct in finding that the Purchasers have successfully discharged their legal and evidential burden to prove the Rectifications Costs incurred based on the evidence of the Purchasers’ Expert Witnesses [107] In the early part of our judgment, we have set out the quantum of monetary compensation (by way of rectification costs) that the LHJ had awarded to each of the Purchasers in respect of the two categories of the defects founds in the bungalow units. Par the course, Sime Darby as the Appellant had mounted several grounds to seriously challenge the LHJ’s decision as to quantum of damages. [108] Before we delve into Sime Darby’s challenge against the LHJ’s award of rectification costs, it is only appropriate for us to first briefly **Note : Serial number will be used to verify the originality of this document via eFILING portal 75 set out the principle of law relating to the award of damages in cases of contractual breach. [109] In the realm of contract law, the measure of damages following a breach of contract is governed by section 74 of the Contracts Act 1950 which reads as follows: (1) When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. (2) Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. (3) When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default as if the person had contracted to discharge it and had broken his contract. [110] This Court takes cognisance that section 74 above uses the word 'compensation' and not 'damages’. With regard to the meaning of the word “compensation” a reference to the Indian Contract and Specific Relief Acts by Pollock & Mulla (11th Ed) Vol II would be a useful guide. The authors of Pollock & Mulla in their commentary with regard to the operation of section 73 of the Indian Contract Act (which is equivalent to ours section 74) had stated as follows: **Note : Serial number will be used to verify the originality of this document via eFILING portal 76 “The general principle for the assessment of damages is compensatory, i.e. the innocent party is to be placed, so far as money can do, in the same position as if the contract had been performed.” [111] Sime Darby contended that the alleged defects rectification costs have not been incurred by the Purchasers and that the Purchasers bear the burden of proving exactly the amount of rectification costs that were incurred to rectify the defects. [112] Now, the burden of proof required to be discharged by a party alike the Purchasers in seeking redress in the form of monetary compensation (damages) has been succinctly explained by Ramly Ali J (later FCJ) in PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681. At page 697, his Lordship had summarised it in the following excerpts: “(a) the burden of proof is on the party seeking the claim to prove the facts and the amount of damages (Hock Huat Iron Foundry (suing as a firm) v Naga Tembaga Sdn Bhd [1999] 1 MLJ 65 (CA); Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177; Popular Industries Limited v Eatern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360 and Sony Electronics (M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 2 MLJ 229 (CA)); and (b) the damages must be proved with real or factual evidence. Mere particulars, summaries, estimations or general **Note : Serial number will be used to verify the originality of this document via eFILING portal 77 conclusions will not suffice (Ler Sau Kong v Leow Cheng Chiang [1961] 1 MLJ 17 (CA)).” (See also Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1993] 3 MLJ 360) [113] Sime Darby’s challenge against the LHJ’s findings on quantum was manifold. Firstly, Sime Darby argued that the LHJ had taken a broad brush stroke and made a wholesale finding that Sime Darby was entirely liable for the whole amounts proposed by the Purchasers’ experts (SP9, SP10, SP13, SP14 and SP16) costs to rectify the defects to the air conditioners and the alleged other defects. Secondly, Sime Darby alleged that the LHJ had awarded the rectification costs for both categories of defects without assessing each individual defect. Thirdly, it was further alleged that the LHJ did not assess whether the Purchasers have proven their claim for damages for each item of defects. Fourth, Sime Darby argued that the LHJ had not sufficiently appraise and appreciate the evidence presented before him in arriving to his decision in respect of the quantum of rectification costs. issue 5(a): Rectification costs in respect of defects (Air-conditioners) [114] It must be noted that the LHJ had awarded the Purchasers in suits 43, 44, 45, 46 and 47 rectification costs for defects (Air-conditioners) between the range of RM 70,000.00 to RM 79,400.00. Whilst the Purchaser in suit 49 was awarded RM33,000.00 to rectify the defects in the air-conditioners. **Note : Serial number will be used to verify the originality of this document via eFILING portal 78 [115] Against these rectification costs awarded, Sime Darby had contended that the LHJ had failed to properly appraise and appreciate the evidence presented before him as the LHJ had wholly relied on the quantum proposed by Purchasers’ expert opinion namely; SP13 and SP14. [116] We observed that SP13 had testified as expert witness for defects (Air conditioners) for the Purchaser in Suit 49, whereas SP14 had testified as expert witness for defects (Air-conditioners) for the Purchasers in suits 43, 44, 45, 46 and 47. Sime Darby argued that both SP13 and SP14 had given contradicting evidence as to the estimate cost of rectifying the defects to the air-conditioners. As for the bungalow units in suits 43, 44, 45, 46 and 47, SP14 had estimated that the rectification costs were in the range of RM70,000,00 to RM80,000.00. However, SP13 had estimated costs to rectify the defects (Air Conditioners) for Purchaser in suit 49 was only RM 33,000.00. The difference in the estimation of SP13 was more or less half from the estimation of SP14. [117] In this regard, Sime Darby argued that since there were clear discrepancies in the rectification costs for defects (Air conditioners) proposed by SP13 and SP14, the LHJ ought not to rely on the evidence of SP13 and SP14. Sime Darby also argued that since there was conflicting evidence between SP13 and SP14, it is therefore incumbent upon the LHJ to assess and to test the evidence of SP13 and SP14, and thereafter determine whether to accept the evidence of SP13 or SP14 in respect of the rectification costs. **Note : Serial number will be used to verify the originality of this document via eFILING portal 79 [118] Unfortunately, Sime Darby’s complaint as to the difference in cost estimation to rectify the defects (Air Conditioners) between SP13 and SP14 was not addressed by the LHJ. Our own perusal upon the two expert reports, revealed that the difference in the estimated costs between SP13 and SP14 can indeed be explained. The air-conditioners installed in the bungalow units purchased by the Purchasers in suits 43, 44, 45, 46 and 47 were found to be sweating at the Supply Diffuser and had utilized an unsuitable material used to insulate the air-conditioners’ piping. On the other hand, the problem faced by the air-conditioners in suit 49 was ONLY condensation. SP13 in his report at paragraphs 5 and 6 under Item “Recommendations” had proposed RM33,000.00 as the estimated costs to the rectify the SINGULAR problem of condensation to the air conditioners. In contrast, the defects (Air-conditioners) in suits 43, 44, 45, 46 and 47 were A DUALITY (of sweating (condensation) AND improper piping insulation, which stands to good reason for SP14 to propose a higher estimated costs of rectification in paragraph 4.0 Cost Estimation of his expert report. It is not manifestly and repugnantly wrong for the LHJ to conclude that a duality of defects can effectively double the rectification costs as compared to a singular defect. [119] Furthermore, the LHJ had the benefit of hearing and appreciating all the expert witnesses’ mannerisms and demeanor when put through the wringer of all the examinations and cross-examinations by both parties. In fact, the LHJ had expressly explained that he preferred SP13 and SP14 over Sime Darby’s expert witness (SD3) considering SP13 and SP14’s more extensive working experience with air-conditioners as compared to SD3. These are all **Note : Serial number will be used to verify the originality of this document via eFILING portal 80 reasonable and justifiable factors for the LHJ to consider in making his final decision. [120] All of the above under this sub-Heading, we accordingly find that there is no manifest or plain error, or failure of judicial appreciation of evidence to warrant our appellate intervention to disturb the LJH’s final award for rectification costs for defects (air-conditioners). issue 5(b): Rectification costs in respect of alleged other defects [121] The LHJ having placed full reliance on SP9, SP10 and SP16’s evidence (the Purchasers’ expert witnesses for alleged other defects), had awarded rectification costs for alleged other defects within the range of RM500,00.00 to RM850,000.00 to the Purchasers. Against these sums, Sime Darby argued that the LHJ was wrong in wholly adopting and placing full reliance on the Purchasers’ experts as to quantum i.e. SP9 (Encik Adifazli bin Ahmad) and SP10 (Encik Mushahar bin Mohamed Suki). [122] Sime Darby’s argument against the full reliance of the evidence of SP9 and SP10’s by the LHJ was two-pronged. Firstly; Sime Darby alleged that the LHJ had failed to appreciate that SP9 and SP10 cannot be considered as experts in quantum as both of them were basically architects by profession. According to Sime Darby, both SP9 and SP10 were not persons who have special skills in respect of quantum assessment in respect of all the alleged other defects. Secondly, Sime Darby further argued that despite SP9 and SP10 **Note : Serial number will be used to verify the originality of this document via eFILING portal 81 not being experts in quantum, the LHJ had totally relied on their evidence and held that both SP9 and SP10 as qualified and practicing architects would have sufficient knowledge to proffer their views on quantum. Sime Darby instead contends that proper witness to enlighten the Court regarding costs for rectification of the must be a quantity surveyor (or anyone of equivalent expertise). It is intriguing to note that SP16 (also one of the Purchasers’ experts that the LHJ had placed reliance upon) was also a quantity surveyor. [123] We have no hesitation to agree with the LHJ that both SP9 and SP10 were qualified to give their expert opinion on quantum for rectification of defects. We also agree with the LHJ that SP9 and SP10 as qualified and practicing architects would have sufficient knowledge and experience in the construction industry to proffer their expert views on the quantum for rectification of defects. Therefore, SP9 and SP10 would qualify as competent experts under section 45(1) Evidence Act 1950 to assist the court to decide on the quantum for rectification of defects. [124] The LHJ had aptly explained his preference for the Purchasers’ experts over Sime Darby’s expert (SD13) in para 108(4) of the GOJ. The LHJ considered the fact that SD13 had never personally conducted an on-site inspection of any of the Bungalow units. Thus, distinct from the Purchasers’ expert witnesses, SD13 had no first-hand or actual knowledge as to the defects complained. The LHJ also appropriately considered the fact that the figures stated in SD13’s expert report were rates and prices in the year 2018 which had not accounted for inflation over a long passage of time. **Note : Serial number will be used to verify the originality of this document via eFILING portal 82 [125] It was altogether clear to us that there were no appealable errors whatsoever in the LHJ appreciation of the facts, the prevailing laws, and the evidence that were tendered before the High Court. There was no manifest error in the High Court's appreciation of evidence and the considerations that the LHJ had factored into to prefer the Purchasers’ expert witnesses were indeed sound and reasonable considerations. [126] In view of all of the above under this Heading, we hereby answer issue 5 in the POSITIVE. The Learned Judge was certainly correct in finding that the Purchasers have successfully discharged their legal and evidential burden to prove the Rectifications Costs incurred based on the evidence of the Purchasers’ Expert Witnesses. M. OUR DECISION [127] All of the above deliberations (and positive answers across issues 1 to 5) considered, we find that there were NO MERITS whatsoever in all of the Appellant’s six Appeals against the Learned Judge’s decision to allow the six Purchasers’ respective claims. Thus, we HEREBY DISMISS the Appellant’s six Appeals and accordingly AFFIRM and MAINTAIN the Learned Judge’s decision dated 30.3.2023 [128] We also accordingly order costs of RM30,000.00 to be paid by Sime Darby – Appellant to the Respondents in each appeal, subject to allocatur. **Note : Serial number will be used to verify the originality of this document via eFILING portal 83 Dated 30th January 2026 SGD -------------------- (AZIMAH BINTI OMAR) now, JUDGE FEDERAL COURT OF MALAYSIA For the Appellant - Messrs. Harold & Lam Partnership (Kuala Lumpur) 1. Dato’ Nitin Nadkarni 2. Rohan Arasoo Yeyabalah 3. Pan Yan Teng 4. Stephanie Lim Shu Jun For the Respondents - Messrs. Goh Wong Pereira (Kuala Lumpur) 1. Colin Andrew Pereira 2. Jeslyn Ling Li Gin **Note : Serial number will be used to verify the originality of this document via eFILING portal