Schedule
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 S/N jsaV187zX0i6YP4fwZychA 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 S/N jsaV187zX0i6YP4fwZychA 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 S/N jsaV187zX0i6YP4fwZychA 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. S/N jsaV187zX0i6YP4fwZychA [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 S/N jsaV187zX0i6YP4fwZychA 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). S/N jsaV187zX0i6YP4fwZychA [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 S/N jsaV187zX0i6YP4fwZychA 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: S/N jsaV187zX0i6YP4fwZychA 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); S/N jsaV187zX0i6YP4fwZychA 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, S/N jsaV187zX0i6YP4fwZychA 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). S/N jsaV187zX0i6YP4fwZychA 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; S/N jsaV187zX0i6YP4fwZychA 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. S/N jsaV187zX0i6YP4fwZychA [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. S/N jsaV187zX0i6YP4fwZychA [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. S/N jsaV187zX0i6YP4fwZychA [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 S/N jsaV187zX0i6YP4fwZychA 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 S/N jsaV187zX0i6YP4fwZychA 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. S/N jsaV187zX0i6YP4fwZychA 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). S/N jsaV187zX0i6YP4fwZychA [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) S/N jsaV187zX0i6YP4fwZychA 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 S/N jsaV187zX0i6YP4fwZychA (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: S/N jsaV187zX0i6YP4fwZychA “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 S/N jsaV187zX0i6YP4fwZychA 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. S/N jsaV187zX0i6YP4fwZychA [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; S/N jsaV187zX0i6YP4fwZychA 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 S/N jsaV187zX0i6YP4fwZychA 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 S/N jsaV187zX0i6YP4fwZychA 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: S/N jsaV187zX0i6YP4fwZychA “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 S/N jsaV187zX0i6YP4fwZychA 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. S/N jsaV187zX0i6YP4fwZychA [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. S/N jsaV187zX0i6YP4fwZychA [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 S/N jsaV187zX0i6YP4fwZychA 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 S/N jsaV187zX0i6YP4fwZychA 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. S/N jsaV187zX0i6YP4fwZychA [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. S/N jsaV187zX0i6YP4fwZychA 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 S/N jsaV187zX0i6YP4fwZychA