Sure Commerce Sdn Bhd v Soon Chin Chye & 24 Lagi (P-04(NCvC)(W)-63-02/2022)

BETWEEN

JOSEPH CHAI CHEONG KUI APPELLANTS AND SURE COMMERCE SDN BHD RESPONDENT 05/08/2025 12:38:52 P-04(NCvC)(W)-63-02/2022 Kand. 66 HEARD TOGETHER WITH IN THE COURT OF APPEAL MALAYSIA IN PUTRAJAYA (APPELLATE JURISDICTION) IN THE FEDERAL TERRITORY OF PUTRAJAYA CIVIL APPEAL NO.: P-04(NCVC)(W)-63-02/2022 BETWEEN SURE COMMERCE SDN BHD

Soon Chin Chye

Lee Peng Soon

Ng Thean Gin

Hu Shu-Feng

Tan Chean Pheen

Tan Hong Soon

Tan Chen Pheen

Lim Hee Hoon

Ooi Kuan Yong

Loh Yeok Chuan

Loh Bee Hoon

Toh Giap Chye

Sherine Foo Siew May

Loh Saw Hoon

Loh Yok Yeong

Eillian Loong

Yeoh Guan Peng

Yeoh Wan Cheang

Lee Ai Pin

Ooi Yeow Peng

Ooi Kim Beng

Tham Wooi Loon

Lee Heng Gee

Quah Juhui

Joseph Chai Cheong Kui In the Session Court at Georgetown, Pulau Pinang Civil Suit No.: PA-A52NCVC-122-08/17 Between Soon Chin Chye And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-123-08/17 Between Lee Peng Soon And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-124-08/17 Between Ng Thean Gin And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-125-08/17 Between Hu Shu Feng And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang

Tan Chean Pheen

Tan Hong Soon And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang

Tan Chean Pheen

Lim Lee Hoon And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-128-08/17 Between Ooi Kuan Yong And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-129-08/17 Between Loh Yeok Chuan And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-130-08/17 Between Loh Bee Hoon And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang

Toh Giap Chye

Sherine Foo Siew May And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-132-08/17 Between Low Saw Hoon And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-133-08/17 Between Loh Yok Yeong And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-134-08/17 Between Eillian Loong And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang

Yeoh Guan Peng

Yeoh Wan Cheang And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang

Lee Ai Pin

Ooi Yeow Peng And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-139-08/17 Between Ooi Kim Beng And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-141-08/17 Between Tham Wooi Loon And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang

Lee Heng Gee

Quah Juhui And Sure Commerce Sdn Bhd Consolidated with In the Session Court at Georgetown, Pulau Pinang Civil Appeal No.: PA-A52NCVC-192-08/17 Between Joseph Chai Cheong Kui And Sure Commerce Sdn Bhd CORAM SUPANG LIAN, JCA. LIM CHONG FONG, JCA. ALWI BIN ABDUL WAHAB, JCA. GROUNDS OF JUDGMENT INTRODUCTION [1] These appeals concern the late delivery of vacant possession of commercial accommodation suites, along with claims for indemnification related to the Goods and Services Tax ( ) and late payment interest arising from the sales and purchases of those commercial accommodation suites. [2] The Appellants in appeal no. P-04(NCVC)(W)-51- Appeal ) and Respondents in appeal no. P-04(NCVC)(W)-63-02/2022 ( ) were the plaintiffs in the Sessions Court and respondents in the High Court. They are individuals and the purchasers of the commercial accommodation suites in issue. [3] The Respondent in Appeal 51 and Appellant in Appeal 63 was the defendant in the Sessions Court and the appellant in the High Court. It is a private limited company that developed and sold the commercial accommodation suites in issue. [4] For convenience, we will hereinafter refer to them as the Purchasers and the Developer, respectively. [5] We heard the appeals on 13th January 2025 and thereafter adjourned the same to deliberate on rival contentions advanced before us. [6] Now having duly done so, we furnish below our decision together with the supporting grounds thereof. BACKGROUND [7] The Developer initiated a commercial development comprising a hotel known as the Jazz Hotel and commercial suites known as the Jazz Suites in Tanjung Tokong, Penang (collectively, the ). The master land title for the Jazz Project states as follows: Tanah yang diberimilik ini hendaklah digunakan untuk tujuan perniagaan sahaja. [8] Furthermore, the planning permission and building plans of the Jazz Project applied for by the Developer and approved by the Majlis Bandaraya Pulau Pinang, were premised on a commercial development. [9] Subsequently, the 19 Purchasers and the Developer respectively entered into a bespoke Sale and Purchase Agreements ( ) and Deeds of Mutual Covenants ( ) in respect of the sale and purchase of suites in the Jazz Suites. Seventeen (17) SPAs and DMCs were executed in August 2012, and the remaining two (2) were executed in 2013. [10] The SPA provides, inter alia, the following express terms:

Preamble The Vendor intend to develop the said Land as a Commercial Lots, Commercial Suites, Hotel and /or other type of development as the Vendor shall the Relevant Authority.

The Vendor is developing part of the Jazz into Commercial Suites (he [11] Furthermore, the DMC provides, inter alia, the following express term: By a sale and purchase agreement of even date made between the vendor or the one part and the purchaser on the other part the vendor sold and the purchaser purchased all that parcel of commercial space at Jazz Suites which is more particularly described in Section 3 of the First Schedule hereto upon the terms and conditions stated in the Sale and Purchase Agreement. [12] According to the SPA, the time for delivery of vacant possession of the Jazz Suites and completion of common facilities for the Purchasers comprising of the Appellants (other than the 23rd and 24th Appellants) in Appeal 51 and Respondents (other than the 23rd and 24th Respondents) in Appeal 63 is 36 months from completion of piling works as certified by the architect of the Jazz Project. [13] However, in the case of the Purchasers comprising the 23rd and 24th Appellants in Appeal 51 and the 23rd and 24th Respondents in Appeal 63, the time for the delivery of vacant possession of their respective suites is 36 months from the date of the SPA, while the time for completion of the common facilities is 36 months from the completion of piling works, as certified by the architect of the Jazz Project. [14] In respect of the remaining Purchasers namely, the Appellants (other than the 23rd and 24th Appellants) in Appeal 51, and the Respondents (other than the 23rd and 24th Respondents) in Appeal 63, the date of completion of piling works, as certified by the architect of the Jazz Project, is 24th July 2016. The actual delivery of vacant possession of their respective Jazz Suites, upon completion of the common facilities, took place on 16th August 2016, as likewise certified by the architect. However, the Certificate of Completion and Compliance was only obtained on 21st April 2017. [15] As for the other purchasers comprising the 23rd and 24th Appellants in Appeal 51 and the 23rd and 24th Respondents in Appeal 63, the actual delivery of vacant possession of their respective Jazz Suites, upon completion of the common facilities, occurred on 17th August 2016. Similarly, the Certificate of Completion and Compliance was only obtained on 21st April 2017. [16] Subsequently, due to disputes that arose between the Purchasers and the Developer, the Purchasers commenced the following Georgetown Sessions Court suits against the Developer : PA-A52NCVC-122-08/2017, PA-A52NCVC-123-08/2017,PA-A52NCVC-124-08/2017, PA-A52NCVC- 125-08/2017, PA-A52NCVC-126-08/2017, PA-A52NCVC-127-08/2017, PA-A52NCVC-128-08/2017, PA-A52NCVC-129-08/2017,PA-A52NCVC- 130-08/2017, PA-A52NCVC-131-08/2017, PA-A52NCVC-132-08/2017, PA-A52NCVC-133-08/2017, PA-A52NCVC-134-08/2017, PA-A52NCVC- 135-08/2017, PA-A52NCVC-137-08/2017, PA-A52NCVC-141-08/2017, PA-A52NCVC-155-08/2017 and PA-A52NCVC-192-11/2017 ( ) against the Developer. IN THE SESSION COURT [17] The Suits were consolidated and heard together. [18] Primarily, the Purchasers contended that the terms of the SPA in the Jazz Suites are subjected to the Housing Development (Control and Licensing) Act 1966 ( ) and the Developer failed to deliver vacant possession of the Jazz Suites within the time frame stipulated therein. Furthermore, the Purchasers contended that the Developer is not entitled to impose GST payment incurred by the Developer on them. [19] The Developer refuted the Purchasers contentions and counterclaimed outstanding GST payment as well as three (3) months deposit and three (3) months advance for service charges and sinking fund payments and their associated late payment interest against several of the respective Purchasers. Additionally, the Developer counterclaim for outstanding progress billings and their associated interest too in respect of one of the Purchasers. [20] The learned Sessions Court judge after trial on 14th January 2020 accepted the Purchasers contentions and hence ordered as follows: MAKA ADALAH PADA HARI INI DIHAKIMI seperti berikut:

Satu deklarasi bahawa tarikh pengiraan 36 bulan untuk menyampaikan milikan kosong petak-petak (parcels) Plaintif-Plaintif bermula daripada tarikh Perjanjian Jual Beli;

Satu deklarasi bahawa tarikh Defendan menyampaikan milikan kosong petak-petak (parcels) Plaintif-Plaintif kepada Plaintif-Plaintif adalah pada 21.4.2017;

Satu deklarasi bahawa menurut Klausa 25 Perjanjian Jual Beli, Defendan daripada Plaintif-Plaintif;

Satu deklarasi bahawa apa-apa bayaran yang dibuat di bawah GST yang telah dibayar oleh Plaintif-Plaintif kepada Defendan hendaklah dikembalilkan oleh Defendan kepada Plaintif-Plaintif;

Defendan hendak membayar kepada Plaintif-Plaintif ganti rugu jumlah tert milikan kosong petak-petak (parcels) kepada Plaintif-Plaintif bagi jangka masa 36 bulan dari tarikh Perjanjian Jual Beli sehingga 21.4.2017;

Defendan hendak membayar kepada Plaintif-Plaintif LAD bagi kelewatan oleh Defendan dalam menyampaikan milikan kosong kemudahan bersama (common facilities) kepada Plaintif-Plaintif bagi jangka masa 36 bulan dari tarikh Perjanjian Jual Beli sehingga 30.11.2017;

Defendan hendak mengira semula deposit 3 bulan dan pendahuluan (advance) 3 bulan dengan mengambil kira tarikh pengiraan 36 bulan untuk menyampaikan milikan kosong petak-petak (parcels) Plaintif-Plaintif yang bermula daripada tarikh Perjanjian Jual Beli dan tarikh penyampaian milikan kosong petak-petak (parcels) Plaintif Plaintif oleh Defendan kepada Plaintif-Plaintif adalah pada 21.4.2017;

Plaintif-Plaintif hendaklah dijemput oleh Defendan untuk menelitu proses pengiraan oleh Defendan, mengenai pengembalian wang bagi pembayaran GST, LAD bagi kelewatan dalam penyampaian milikan kosong petak-petak (parcels), LAD bagi kelewatan dalam penyampaian milikan kosong bagi kemudahan bersama (common facilities) dan pengiraan semula deposit 3 bulan dan pendahuluan (advance) 3 bulan;

Faedah pada kadar 5% setahun atas jumlah penghakiman sehingga tarikh penyelesaian penuh;

Kos sebanyak RM 10,000.00 hendaklah dibayar oleh Defendan kepada setiap satu Plaintif dalam setiap satu kes masing-masing;

Tuntutan balas Defendan ditolak dengan kos sebanyak RM 5,000.00 yang hendak dibayar oleh Defendan kepada setiap satu Plaintif dalam setiap satu kes masing-masing. [21] The Developer is dissatisfied with the decision of the Sessions Court and has on 22nd January 2020 appealed to the High Court. IN THE HIGH COURT [22] The parties essentially reiterated in the High Court the arguments and contentions previously advanced before the Sessions Court. [23] Upon review, the learned High Court judge as on 26th January 2022 ing orders ( ): DENGAN INI DIPERINTAHKAN PADA HARI INI bahawa rayuan Perayu dibenarkan secara separuh seperti berikut: - a. yang dimasuki antara Perayu dan Responden-Responden masing-masing - -Responden hanya berhak kepada gantirugi tertentu berdasarkan Perjanjian-Perjanjian tersebut dan bukan berdasarkan Akta tersebut. Perenggan (a), (b), (e), (f), (g), (h) dan

Penghakiman Mahkamah Sesyen yang bertarikh 14 Januari 2020 diketepikan; b. Responden-berdasarkan Perjanjian-Perjanjian tersebut adalah seperti berikut :- No. Guaman Sivil Jumlah LAD untuk Parcel Jumlah LAD untuk Common Facilities Jumlah Keseluruhan i. PA-A52NCVC- 122- 08/2017 Parcel 1: RM8,052.30 Parcel 2: RM5,788.72 Parcel 1: RM1,610.46 Parcel 2: RM1,157.74 RM16,609.22 ii. PA-A52NCVC- 125- 08/2017 Parcel 1: RM5,797.32 Parcel 2: RM5,797.32 Parcel 1: RM1,159.46 Parcel 2: RM1,159.46 RM13,913.56 iii. PA-A52NCVC- 08/2017 RM5,780.12 RM1,156.02 RM6,936.14 iv. PA-A52NCVC- 127- 08/2017 RM5,702.71 RM1,140.54 RM6,843.25 v. PA-A52NCVC- 128- 08/2017 - RM1,209.33 RM1,209.33 vi. PA-A52NCVC- 129- 08/2017 RM5,745.72 RM1,149.14 RM6,894.86 vii. PA-A52NCVC- 130- 08/2017 - RM1,644.78 RM1,644.78 viii. PA-A52NCVC- 132- 08/2017 - ix. PA-A52NCVC- 133- 08/2017 Parcel 1: RM8,174.86 Parcel 2: RM5,831.73 Parcel 3: RM8,211.63 Parcel 1: RM1,634.97 Parcel 2: RM1,166.35 Parcel 3: RM1,642.33 RM26,661.87 x. PA-A52NCVC- 134- 08/2017 RM5,711.31 RM1,142.26 RM6,853.57 xi. PA-A52NCVC- 137- 08/2017 RM5,651.10 RM1,130.22 RM6,781.32 xii. PA-A52NCVC- 141- 08/2017 RM5,711.31 RM1,142.26 RM6,853.57 xiii. PA-A52NCVC- 155- 08/2017 - RM1,973.24 RM1,973.24 xiv. PA-A52NCVC- 192- 11/2017 RM5,814.53 RM6,977.44 c. Perenggan (c) dan (d) Penghakiman Mahkamah Sesyen yang bertarikh 14 Januari 2020 dikekalkan. Perayu hendaklah bayar balik GST yang telah dibayarkan seperti dituntut oleh Responden-Responden di bawah:- i. Guaman Sivil PA-A52NCVC-122-08/2017 berjumlah RM63,890.02; ii. Guaman Sivil PA-A52NCVC-123-08/2017 berjumlah RM33,218.64; iii. Guaman Sivil PA-A52NCVC-124-08/2017 berjumlah RM33,267.80; iv. Guaman Sivil PA-A52NCVC-126-08/2017 berjumlah RM33,022.08; v. Guaman Sivil PA-A52NCVC-127-08/2017 berjumlah RM27,149.86; vi. Guaman Sivil PA-A52NCVC-128-08/2017 berjumlah RM34,544.71; vii. Guaman Sivil PA-A52NCVC-129-08/2017 berjumlah RM27,354.60; viii. Guaman Sivil PA-A52NCVC-130-08/2017 berjumlah RM46,983.43; ix. Guaman Sivil PA-A52NCVC-131-08/2017 berjumlah RM33,316.93; x. Guaman Sivil PA-A52NCVC-132-08/2017 berjumlah RM22,145.76; xi. Guaman Sivil PA-A52NCVC-133-08/2017 berjumlah RM111,330.90; xii. Guaman Sivil PA-A52NCVC-134-08/2017 berjumlah RM21,752.64; xiii. Guaman Sivil PA-A52NCVC-135-08/2017 berjumlah RM27,395.51; xiv. Guaman Sivil PA-A52NCVC-137-08/2017 berjumlah RM21,523.34; xv. Guaman Sivil PA-A52NCVC-139-08/2017 berjumlah RM24,612.00; xvi. Guaman Sivil PA-A52NCVC-141-08/2017 berjumlah RM21,752.64; dan xvii. Guaman Sivil PA-A52NCVC-155-08/2017 berjumlah RM37,577.42. d. Perenggan (k) Penghakiman Mahkamah Sesyen yang bertarikh 14 Januari 2020 berkenaan penolakan Tuntutan-Tuntutan Balas Perayu diketepikan secara separuh seperti di bawah:- i. Tuntutan Balas Perayu berkenaan dengan pembayaran caj perkhidmatan dan sinking fund dibenarkan:- a. Responden dalam Guaman Sivil No. PA-A52NCVC-125- 08/2017 hendaklah membayar kepada Perayu jumlah RM1,951.35 bersama faedah pada kadar 10% setahun dari 24.08.2016 sehingga tarikh penyelesaian penuh; dan b. Responden dalam Guaman Sivil No. PA-A52NCVC-192- 11/2017 hendaklah membayar kepada Perayu jumlah RM1,951.35 bersama faedah pada kadar 10% dari 24.08.2016 sehingga tarikh penyelesaian penuh; ii. Tuntutan Balas Perayu berkenaan dengan faedah pembayaran lewat terhadap caj perkhidmatan dan sinking fund dan bil kemajuan 2(a), 2(b) dan 2(c) dibenarkan:- a. Responden dalam Guaman Sivil No. PA-A52NCVC-122- 08/2017 hendaklah membayar kepada Perayu faedah pembayaran lewat terhadap caj perkhidmatan dan sinking fund berjumlah RM1,047.49; b. Responden dalam Guaman Sivil No. PA-A52NCVC-129- 08/2017 hendaklah membayar kepada Perayu faedah pembayaran lewat terhadap caj perkhidmatan dan sinking fund berjumlah RM 251.27; c. Responden dalam Guaman Sivil No. PA-A52NCVC-133- 08/2017 hendaklah membayar kepada Perayu faedah pembayaran lewat terhadap caj perkhidmatan dan sinking fund berjumlah RM 850.02; d. Responden dalam Guaman Sivil No. PA-A52NCVC-134- 08/2017 hendaklah membayar kepada Perayu faedah pembayaran lewat terhadap caj perkhidmatan dan sinking fund berjumlah RM 221.87; e. Responden dalam Guaman Sivil No. PA-A52NCVC-141- 08/2017 hendaklah membayar kepada Perayu faedah pembayaran lewat terhadap caj perkhidmatan dan sinking fund berjumlah RM 217.05; dan f. Responden dalam Guaman Sivil No. PA-A52NCVC-192- 11/2017 hendaklah membayar kepada Perayu faedah pembayaran lewat terhadap bil kemajuan 2(a), 2(b) dan 2(c) berjumlah RM5,751.46. iii. Keputusan Mahkamah Sesyen yang menolak Tuntutan Balas Perayu berkenaan dengan bayaran GST dan faedah pembayaran lewat GST terhadap Responden-Responden dalam kesemua Guaman adalah dikekalkan. e. Pihak-Pihak menanggung kos masing-masing dalam Rayuan ini dan prosiding di Mahkamah Sesyen. [24] The learned High Court judge, in justifying the Decision, stated the following in the grounds of judgment, which are reported in Sure Commerce Sdn Bhd v. Soon Chin Chye & Ors [2022] 5 MLRHU 540 ( ): It was submitted by the learned counsel for the defendant that the learned SCJ applied the wrong burden of proof. According to the learned counsel the plaintiff should bear the burden in proving the claim that the suites are of residential category. [7] In dealing with the issue of burden the learned SCJ was addressing the issue of the SPAs where four plaintiffs were offered housing loan by the bank as opposed to commercial loan offered to the rest of the plaintiffs. The learned SCJ opined that the burden was on the defendant to prove that despite being offered housing loans the loans were actual commercial in nature. He concluded that the defendant failed to discharge this burden and concluded that as there was a lacuna the suites purchased by the four plaintiffs were of housing accommodation or housing development subjected to the Act. [8] It was the plaintiffs' pleaded case that the suites are residential and not commercial and that the HDA is applicable. Clearly the burden was on the plaintiffs to discharge. Once discharged the burden will shift to the defendant to prove otherwise. I suppose when he said that there was a lacuna the learned SCJ must have meant that the evidence was wanting from the defendant to show that the housing loans offered to the four plaintiffs were in fact commercial loan. But what about the fifteen other plaintiffs who signed up for commercial loans? To my mind when the learned SCJ concluded that there was a lacuna, he was not entitled to decide in favour of the plaintiffs. [9] The learned counsel for the defendant further submitted that the learned SCJ was wrong to hold that the HDA was applicable regardless of whether the development was commercial or residential. He argued that the suites were not residential as they were categorised as commercial units, thus the HDA has no application. He referred to the Approved Planning Permission and Building Plans which described the development as a commercial development. Further reference was made to the preambles of the SPAs and the Deed of Mutual Covenants ("DMC") which described the suites as commercial suite and commercial space respectively. [10] The learned counsel for the plaintiffs submitted that the development has more than four units of housing accommodation and it was partly for human habitation and partly for business premises. Therefore, the learned SCJ was not in error in applying the definitions of housing accommodation and housing development under s 3 of the HDA. [11] It is not a disputed fact that the assessment tax, water rate and sewerage are chargeable according to commercial rates and not residential. Housing accommodation under s 3 of the HDA is defined to include building constructed partly for human habitation and partly for business premises. At first glance it appears that the suites are residential but when the rates chargeable for the utilities and assessment tax are at commercial rates l do not think the suites fall within s 3 of the HDA. [12] The interpretation of s 3 by the learned SCJ was flawed in that he misunderstood the explanation given during the debate in the Dewan Rakyat. The correct interpretation of s 3, to my mind, is found in the case of Ho, Christopher Wen Jinn v. Berjaya Times Square Sdn Bhd [2011] 7 MLRH 720. The plaintiff sought the court to declare that the commercial unit he purchased as housing accommodation therefore subject to the HDA. Mohamad Ariff Md Yusof J (as he then was) at p 722 said: "With respect, the Plaintiffs interpretation of s 3 is a strained one, nor is it a reasonable construction bearing in mind the purpose of the amendment. Even the literal rule of interpretation cannot be allowed to result in an absurd conclusion. I have borne in mind what was said in the Dewan Rakyat by the then Minster of Housing and Local Government in moving the amendment bill: '... Kerajaan juga menyedari masalah pemajuan service apartment rumah kedai yang dibangunkan di atas tanah komersial dan tidak tertakluk kepada mana-mana perundangan yang berkuatkuasa manakala perjanjian jual beli tidak terikat dengan mana-mana format yang seragam. Oleh itu pihak pembeli tidak ada tempat mengadu apabila pemaju tersebut bermasalah. Bagi mengatasi masalah ini, takrif "housing accommodation" di bawah s 3 dipinda meliputi pemajuan perumahan di atas tanah komersial yang mana selama ini Akta 118 hanya terhad kepada tanah lot perumahan dan bangunan sahaja.' The stress is on housing accommodation throughout, not commercial development. It is evident that the Act protects residential units, not commercial units, and it will be an unnatural strain on statutory language to construe housing accommodation to include commercial premises. The Plaintiff is not the occupant of residential premises at all. Indeed, he is contractually prevented from using the premises for residential purposes. The mischief sought to be prevented by the amendment is the previous defect in the law whereby if any housing accommodation is constructed on commercial land, and where in such a case, the development is a mixed development, the residential units (apartment rumah kedai, in particular) are not protected by Act. It cannot be the statutory intention to include commercial premises within the scope of protection.". [13] Likewise here, I have no doubt that notwithstanding that the suites were for human habitation but for all intent and purposes they do not fall within the definition of housing accommodation. This development was not a mixed development as envisaged in the amendment. The approval by the authorities clearly described it as commercial development. More so when the rates chargeable for the utilities and assessment tax are commercial rates. [14] I agree with the learned counsel for the defendants that the learned SCJ ignored the contemporaneous documents in arriving at his conclusion and this amounts to an appealable error (see Quart Teik Sdrt Bhd v. Hj Mohd Noor Hj Yaacob & Ors [2000] 1 MLRA 617; [2000] 4 MLJ 433; [2000] 4 CLJ 324 and Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 MLRA 247; [2015] 2 MLJ 441; [2015] 2 CLJ 453; [2015] 2 AMR 601). [15] Therefore, to my mind there is no significance as regards the issue of the housing loan offered to the four plaintiffs as opposed to commercial loan for the rest. Furthermore, the type of loan offered was between the four plaintiffs and the bank which cannot be a determinative factor whether the development was residential or commercial. Therefore, I agree with the defendants that the learned SCJ was in error in concluding that the SPAs were subject to the FIDA and that cls 26, 27 and 28 of the SPAs were illegal and in contravention of the law. [16] Thus, it is my judgment that the vacant possession for the suites and the common facilities in respect of the all suits except Suit 155 should be delivered within 36 months from the date of completion of piling works. As regards Suit 155 vacant possession of the suite should be delivered within 36 months from the date of the SPA and 36 months from the date of completion of piling works for the common facilities. In short, the claim for LAD should be in accordance with the provisions of the SPAs which are not governed by the HDA. [17] It was further submitted that the learned SCJ erred in not allowing the defendant's counterclaim to claim for GST against the plaintiffs. The plaintiffs relied on cl 25 of the SPAs. The learned counsel for the defendant submitted that the learned SCJ erred in concluding that cl 25 prevented the defendant from being indemnified by the plaintiffs for the GST. [18] In this regard I agree that the plaintiffs can seek refuge under cl 25. It was pointed out that defendants sought to be indemnified on the purchase price therefore it was argued that cl 25 has no application. The case of Mandarin Pavilion Sdn Bhd v. Chang Vui Lun & Anor [2019] 2 SSLR 352; [2019] 3 MLJ 395; [2019] 2 CLJ 22; [2018] 8 AMR 670 was referred to by the learned counsel for the plaintiffs in contending that the defendant cannot be indemnified. [19] Clause 25 reads: "The purchaser shall not be liable to indemnify the Vendor in the event of an introduction of new laws or the amendment of existing laws which shall impose on the vendors additional fees, charges or taxes, the payment of which shall be necessary for continuing and completing the development of the said development or of any part or parts thereof in accordance with the Building Plan and description therein referred to and the due observance and performance by the Vendor of its obligation and liabilities hereunder.". As decided by the Court of Appeal in Mandarin Pavilion (supra) GST was imposed on the developer and they cannot make the purchasers to pay for the same nor be indemnified as it was not provided for in the sale and purchase agreement. Therefore, it my view that the defendant is not entitled to be indemnified and whatever payments that they had collected from the plaintiffs must be refunded. I do not see any difference in arguing that the claim was for GST on the purchase price. For all intents and purposes, it is necessary for continuing and completing the development, howsoever described. [20] As regards outstanding service charges and sinking fund against plaintiffs in Suits 125 and 192; late payment interest on service charges and sinking fund against plaintiffs in Suits 122, 129, 133 - 134 and 141; and late payment interest on progress billings against plaintiff in Suit 192 I agree that these claims have nothing to do with GST. They are independent payments that the plaintiffs need to pay in accordance with the provisions of the SPAs. The learned SCJ was wrong in tying up these payments with the GST issue. Therefore, I allow the defendant's counterclaim for these outstanding charges and late payment interest on the service charges and sinking fund as well as on the progress billings against the respective plaintiffs. [21] The plaintiffs in Suits 123, 124, 128, 130, 131, 132, 135 and 139 had entered into settlement agreements therefore, they are barred from initiating this action against the defendant (see Oxbridge Height Sdn Bhd v. Abdul Razak Mohd Yusof & Anor [2015] 3 MLRA 59 [25] Both the Purchasers and the Developer were dissatisfied with the parts of the Decision adverse to them and, on 16th February 2022 and 24th February 2022 respectively, filed Appeal 51 and Appeal 63 to the Court of Appeal. FINDINGS OF THIS COURT [26] Both Appeal 51 and Appeal 63 were originally heard by a different panel of this Court and were decided on 22nd March 2023. [27] Subsequently, the Developer applied for a review of the aforesaid decision of this Court dated 22nd March 2023. On 11th September 2024, this Court allowed the review application and ordered that the appeals be re-heard de novo by a newly constituted panel. [28] Pursuant thereto, the parties appeared before us on 13th January 2025 and re-submitted their respective arguments, which were substantially similar to those advanced before the Sessions Court and the High Court. Both appeals were heard together before this panel. [29] Our function here is however merely that of review based on the record of appeal. In Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] CLJU 1416 (CA), Abdul Wahab Patail JCA held as follows with emphasis added by us: "[4] Both parties began their submissions with the clear understanding that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts in the trial judge. They cited this court in Sivalingam Periasamy v. Periasamy & Anor [1996] 4 CLJ 545 CA; [1995] 3 MLJ 395 CA. This general principle was adopted by this court in Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 and other cases. It is clear it is a general principle and that there are exceptions when appellate intervention is necessary to ensure justice is done. In the cases regularly cited, the terms "intervene" and "interfere" are used interchangeably. A more precise use of terminology would remove much unnecessary confusion and argument. It is more precise to say that an appellate court will intervene to correct an injustice when it is shown to have occurred in the trial court, but it would be an interference otherwise. ... [7] There is almost no limit to the range within which cases in court may vary. At one end there are cases that involve solely questions of law, and no facts are disputed. On the other there are cases that involve no law but all the facts are disputed. Within these cases there may be cases with disputed facts that involve solely interpretation and inferences leading to a conclusion on a finding on the disputed fact, and there may be other cases with disputed facts that involve solely oral evidence and the finding depends entirely upon an assessment of the credibility of witnesses who testified and were tested before the trial judge. [8] Hence, the proper approach is that if (a) it is shown that the judgment cannot be explained or justified by the special advantage enjoyed by the trial judge by reason of having seen and heard the witnesses testify and being tested before him, and (b) an injustice is demonstrated to have been occasioned by any error by the trial judge, for example:

the judgment is based upon a wrong premise of fact or of law;

there was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him;

the trial judge has completely overlooked the inherent probabilities of the case;

that the course or events affirmed by the trial judge could not have occurred;

the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or

the trial judge had so fundamentally misdirected himself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion; an appellate court will intervene to rectify that error so that injustice is not occasioned." See also Ng Hoo Kui & Anor v. Wendy Tan Lee Pheng, Administrator of the Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1 (FC). Applicability of the HDA 1966 [30] First and foremost, the primary issue between the parties is whether the Purchasers are entitled to rely on the provisions of the standard contract of sale set out in Schedule H of the HDA 1966 in support of their claim for liquidated damages against the Developer for the late delivery of vacant possession of the Jazz Suites. [31] In this regard, the Purchasers contended and the Sessions Court accepted that the Jazz Suites were offered for sale by the Developer as housing accommodation, notwithstanding that the Jazz Project was approved and developed on a commercial basis by the local authority. Reliance was placed on s. 3 of the HDA 1966, particularly the proposed amendment introduced by the HDA (Amendment) Bill 2006, and the following speech by the Minister of Housing and Local Government when moving the amendment in Parliament: yang dibangunkan di atas tanah komersial dan tidak tertakluk kepada mana-mana perundangan yang berkuatkuasa manakala perjanjian jual beli tidak terikat dengan mana-mana format yang seragam. Oleh itu pihak pembeli tidak ada tempat mengadu apabila pemaju tersebut bermasalah. Bagi mengatasi meliputi pemajuan perumahan di atas tanak komersial yang mana selama ini As a result, the Purchasers relied on the subsequent case of ABT Construction Sdn Bhd & Anor v. Tribunal Tuntutan Pembeli Rumah & Ors [2013] 9 MLJ 195. [32] Furthermore, according to the Purchasers, the Jazz Suites are unmistakably housing accommodation, as evidenced by the inclusion of bathrooms specifically, a bathtub in Room 1 of every suite as shown in the floor plans of the Jazz Project. In addition, certain clauses in the DMC, such as clause 2.5 (relating to the keeping of animals) and clause 7.6.3 (pertaining to the hanging of clothes), clearly contemplate residential use, thereby reinforcing their contention that the Jazz Suites were intended for residential purposes. [33] As such, the Purchasers maintain that the Jazz Suites constitute housing accommodation and are therefore subject to the provisions of the HDA 1966. [34] The Developer, on the other hand, contends that the Jazz Project including the Jazz Suites constitutes a commercial development intended for use as business premises. This, the Developer argues, was made clear to the Purchasers through the preamble to the SPA and the provisions of the DMC. The master title of the land on which the Jazz Project is situated expressly states that the alienated land, under s.120 of the National Land Code 1965, is designated for commercial use only. Furthermore, the planning approval for the Jazz Project was granted for commercial development in accordance with the Master Structure Plan No. JPBD/P2/TANJUNG PINANG/221208, issued under the Town and Country Planning Act 1976. The Developer also highlighted that land assessment rates and utility charges for water and sewerage are imposed at commercial rates. The Developer specifically relied on the case of Quah Eng Hai & Anor v. Cosmopolitan Avenue Sdn Bhd & Ors [2019] 8 MLJ 194, in which the court held that a development approved as a commercial project is not subject to the HDA 1966. Additional reliance was placed on Perbadanan Pengurusan Sunrise Garden Kondominium v. Sunway City (Penang) Sdn Bhd & Ors and Another Appeal [2023] 2 CLJ 333 (FC), and Perbadanan Kemajuan Negeri Selangor v. Selangor Country Club Sdn Bhd [2016] 8 CLJ 221 (CA), to bolster the stance. [35] The Developer further submitted that 15 out of the 19 Purchasers had obtained commercial loans to finance the purchase of their respective Jazz Suites. [36] Accordingly, the Developer contends that the HDA 1966 is inapplicable, as the Jazz Project including the Jazz Suites is a commercial, and not a housing development. [37] We are of the view that the decisive outcome here is one of statutory interpretation. It is thus germane to expressly set out the following relevant provisions in the HDA 1966:

Interpretation includes any building, tenement or messuage which is wholly or principally constructed, adapted or intended for human habitation or partly for human habitation and partly for business premises and such other type of accommodation as may be prescribed by the Minister from time to time to be a housing accommodation pursuant to section 3A; means to develop or construct or cause to be constructed in any manner whatsoever more than four units of housing accommodation and includes the collection of moneys or the carrying on of any building operations for the purpose of erecting housing accommodation in, on, over or under any land; or the sale of more than four lots of land or building lots with the view of constructing more than four units of housing accommodation; [38] In the Concise Oxford English Dictionary, has been defined as . Furthermore has been defined as . [39] Furthermore, in the online Law Insider, means t of occupying a structure as a dwelling or sleeping place, whether . [40] It is not in dispute between the parties that in respect of the development of the Jazz Project, the Jazz Hotel is not for sale but operated as a hotel by the developer or its nominees whereas the Jazz Suites are sold to purchasers on basis for use as service apartments by themselves or let out to occupants either on short-or long-term tenure. [41] We have carefully reviewed the submissions of the parties and the documentary evidence before us, especially the plans of the Jazz Suites and we conclude and find that the Jazz Project is meant for human accommodation. Since the Jazz Suites are intended for sale to purchasers, we further find, by virtue of the definition of housing development and housing accommodation in s. 3 of the HDA 1966, the development of the Jazz Suite is subject to the HDA 1966. [42] We are nonetheless mindful it is indisputable that the land use, as well as the planning permission obtained for the Jazz Project, is based on commercial development, but this does derogate from the fact that the development of the Jazz Hotel and Jazz Suites is ultimately for human habitation albeit commercially. There is the inescapable element of human habitation that is paramount and overriding. [43] We further noticed that there is no exclusion in the HDA 1966 that commercial/business profit-making human habitation is excluded from the operation of the statute. Instead, we objectively construe the phrase of in the HDA 1966 befits the use of the Jazz Suites here. It need not necessarily only be for a mixed development whereby there are distinct housing and non-housing business units built on the same land. That notwithstanding, there is also no prohibition seen in the National Land Code 1965 as well as the Town and Country Planning Act 1976 that housing accommodation cannot be developed on commercially zoned land. [44] It is also trite that the HDA 1966 is a social legislation. In PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor and other Appeals [2021] 1 MLRA 506 (FC), Tengku Maimun Tuan Mat CJ held as follows with emphasis added by us: [27] That the HDA 1966 and its subsidiary legislation are social legislation is settled beyond dispute (see the decisions of the Federal Court in: Veronica Lee Ha Ling & Ors v. Maxisegar Sdn Bhd [2009] 2 MLRA 408; [2011] 2 MLJ 141; [2009] 6 CLJ 232 and Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals [2019] 6 MLRA 494; [2020] 1 MLJ 281; [2020] 1 CLJ 162; [2019] 8 AMR 297). [29] The social significance of the statute is further borne out by the words of Suffian LP in SEA Housing Corp Sdn Bhd v. Lee Poh Choo [1982] 1 MLRA 148; [1982] 2 MLJ 031; [1982] CLJ 305 ('SEA Housing'): "It is common knowledge that in recent years, especially when government started giving housing loans making it possible for public servants to borrow money at 4% interest per annum to buy homes, there was an upsurge in demand for housing, and that to protect home buyers, most of whom are people of modest means, from rich and powerful developers, Parliament found it necessary to regulate the sale of houses and protect buyers by enacting the Act. That was why r 12 was enacted and in particular paragraphs (o) and (r) thereof. With respect we do not agree with Mr Chelliah that it was open to a developer to get around these paragraphs by the inclusion of such a clause as cl 32 in this agreement.". [30] It appears that even since 1982, housing developers have continued to devise ingenious, and if we may say so, devious schemes to overcome the protections afforded to purchasers by the scheme of the HDA 1966. We would say here that booking fees are one such invention. How is the concept of social legislation relevant to the weeding out of such practices? [31] All legislations are social in nature as they are made by a publicly elected body. That said, not all legislation is 'social legislation'. A social legislation is a legal term for a specific set of law passed by the legislature for the purpose of regulating the relationship between a weaker class of persons and a stronger class of persons. Given that one side always has the upper hand against the other due to the inequality of bargaining power, the State is compelled to intervene to balance the scales of justice by providing certain statutory safeguards for that weaker class. A clear and analogous example is how this court interpreted the Industrial Relations Act 1967 in Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor [1995] 1 MELR 1; [1995] 2 MLRA 435; [1995] 3 MLJ 369; [1996] 4 CLJ 687; [1996] 3 AMR 3693 ('Hoh Kiang Ngan eLaw Citation: [2021] 1 MLRA 506 [33] When it comes to interpreting social legislation, the State having statutorily intervened, the courts must give effect to the intention of Parliament and not the intention of parties. Otherwise, the attempt by the legislature to level the playing field by mitigating the inequality of bargaining power would be rendered nugatory and illusory. [34] We find considerable support for this assertion in the judgment of this Court in Hoh Kiang Ngan (supra): "Now, it is well settled that the Act is a piece of beneficent social legislation by which Parliament intends the prevention and speedy resolution of disputes between employers and their workmen. In accordance with well settled canons of construction, such legislation must receive a liberal and not a restricted or rigid interpretation.". See also Loh Tina & Ors v. Kemuning Setia Sdn Bhd & Ors and Another Appeal [2020] 4 MLRA 450 (CA). [45] Thus, and since the HDA 1966 has been designed to protect the weaker party such as the Purchasers here, it is our view that both on the literal as well as purposive interpretation of the HDA 1966, the SPA of the Jazz Suites must conform to Schedule H of the HDA 1966 and any provision in the SPA which is inconsistent thereto is void to the extent of the inconsistency. It is obvious here that the provisions on delivery of vacant possession of the suites and the associated computation of liquidated damages for late delivery in the SPA are unfavourable to the Purchasers when compared to the equivalent provisions in the HDA 1966. [46] It follows therefore that the case of Quah Eng Hai & Anor v. Cosmopolitan Avenue Sdn Bhd & Ors (supra) relied by the Developer as well as the case of Ho, Christopher Wen Jinn v. Berjaya Times Square Sdn Bhd [2011] 7 MLRH 720 relied by the learned High Court judge are distinguishable. We are instead of the view that the learned Sessions Court judge below is correct when the case of ABT Construction Sdn Bhd & Anor v. Tribunal Tuntutan Pembeli Rumah & Ors (supra) was followed. The learned Sessions Court judge rightly held as follows: and/or Schedule H of the Act, the Plaintiffs were not estopped from challenging the provisions under the SPA particularly Clause 26(1), Clause 27(1) and [47] appellate intervention here. The learned High Court judge fell into error as so decided in paragraphs (13) to (16) of the GOJ. [48] We therefore find and hold that for purposes of delivery of vacant possession of the Jazz Suites, the period is 36 months from the date of signing of the SPA. Thereafter, the Developer shall be liable to pay the respective Purchasers liquidated damages till 21st April 2017 when the Certificate of Completion and Compliance has been obtained as envisaged in the Schedule H contract. Refund of GST payment [49] Next and moving on to the Purchase Developer of the GST payments charged to them, the Purchasers basically relied on clause 25 of the SPA which provides as follows: The Purchaser shall not be liable to indemnify the Vendor in the event of an introduction of new Laws or the amendment of existing laws which shall impose on the Vendors additional fees, charges or taxes, the payment of which shall be necessary for continuing and completing the development of the said development or any part thereof in accordance with the Building Plan and description therein referred to and the due observance and performance by the Vendor of its obligation and liabilities hereunder. as well as s. 9(3) of the Goods and Services Tax Act 2014 ( ). [50] Towards this end, the Purchasers principally relied on the case of Mandarin Pavilion Sdn Bhd v. Chang Vui Lun & Anor [2019] 2 CLJ 22 (CA) in support of their proposition that the Developer must indemnify them and refund the GST charged. [51] However, the Developer drew to our attention that the case of Mandarin Pavilion Sdn Bhd v. Chang Vui Lun & Anor (supra) has been reversed by the Federal Court on appeal in Civil Appeal no. 02(f)-41- 05/2018 as mentioned in the case of Cham Yit Kiong & Anor v. Mandarin Pavilion Sdn Bhd [2021] 1 LNS 958. [52] That notwithstanding, the Developer also contended that the derived from ss. 9(2), 33(1) and 188(1) of the GSTA 2014 and Regulation 22 of the Goods and Services Tax Regulations 2014 ( ). [53] Moreover, the Developer contended that clause 25 of the SPA applied only to input service tax but not output service tax. The GST payment in issue here pertains to the output service tax of the Developer. [54] It is thus again apt and germane for us to expressly set out the following relevant provisions in the GSTA 2014 and GSTR 2014:

GSTA 2014 Imposition and scope of tax

A tax to be known as goods and service tax, shall be charged and levied on-

any supply of goods or services made in Malaysia, including anything treated as a supply under this act; and

any importation of goods into Malaysia.

Except as otherwise provided in subsections 13(3) and 72(5), tax shall be charged on any supply of goods or services made in Malaysia where it is a taxable supply made by a taxable person in the course or furtherance of any business carried on by him.

Except as otherwise provided in subsections 65(4) and 65(5), tax chargeable on any supply of goods or services is a liability of the person making the supply and subject to Part V, becomes due and payable at the time of supply.

tax on any importation of goods into Malaysia shall be charged, levied and payable as if it were a customs duty or excise duty and as if the imported goods are dutiable and liable to customs duty or excise duty.

Where any registered person displays, advertises, publishes or quotes in any manner the price of any supply of goods or services he makes or intends to make, such price shall include the tax that is chargeable on the supply unless the Director General approves otherwise under subsection (7).

Any registered person may apply to the Director General in the form and manner as the Director General may determine to be exempted from displaying, advertising, publishing or quoting in any manner the price inclusive of tax which is chargeable on the supply of goods or services he makes or intends to make.

The Director General may approve in writing an application made under subsection (6) and where an approval has been granted, the registered person shall display, advertise, publish or quote the price exclusive of tax with the words "Price payable is exclusive of GST".

Any registered person who contravenes subsection (5) or (7) commits an offence.

For the purposes of this act, "supply of goods or services made in Malaysia" shall be treated as goods or services supplied in Malaysia.

Issuance of tax invoice

Except as otherwise provided in this section, every registered person who makes any taxable supply of goods or services in the course or furtherance of any business in Malaysia shall issue a tax invoice containing the prescribed particulars in respect of the supply.

Any registered person who-

fails to issue a tax invoice; or

issues a tax invoice which does not contain any of the prescribed particulars, commits an offence.

Notwithstanding subsection (1), the Director General may, upon request in writing and subject to conditions as he deems fit to impose, approve-

any one or more of the prescribed particulars not to be contained on a tax invoice; or

a tax invoice not to be issued if he is satisfied that it will not be appropriate for the registered person to issue a tax invoice: Provided that in the case of paragraph (a), the registered person shall include the recipient's name and address in the tax invoice upon request by the recipient.

Any registered person under subsection (3) who issues a tax invoice which does not contain any of the prescribed particulars as approved by the Director General under paragraph (3) (a) or refuses to issue a tax invoice containing recipient's name and address upon request by the recipient commits an offence.

Where a recipient who is a registered person provides a document to himself namely a self-billed invoice in respect of a supply of goods or services to him by another registered person, the recipient may apply in writing to the Director General for such self-billed invoice to be treated as a tax invoice if-

the value is not known by the supplier at the time of making the supply;

the supplier and the recipient are both registered persons;

the supplier and the recipient agree in writing to a self-billed invoice; and

the supplier and the recipient agree that the supplier shall not issue a tax invoice in respect of any supply to which this section applies, and upon approval, the self-billed invoice shall contain prescribed particulars and the Director General may impose any of the prescribed conditions.

Any recipient referred to in subsection (5) who-

issues a self-billed invoice without the approval of the Director

issues a self-billed invoice which does not contain any of the prescribed particulars; or

fails to comply with any prescribed condition imposed on him, commits an offence.

In the case where the self-billed invoice is issued before the time applicable under paragraph 11(2)(a) or (b) or subsection 11(3), the self-billed invoice shall be issued with payment and failing which, the recipient commits an offence.

Where goods described in subsection 65(4) or subparagraph 5(7) of the First schedule are sold by auction or otherwise than by auction, the auctioneer or the person selling the goods shall issue a document containing the prescribed particulars of the tax chargeable and the document issued to the buyer shall be treated as a tax invoice provided by the taxable person by whom the goods are deemed to be supplied in accordance with subsection 65(4) or subparagraph 5(7) of the First schedule.

Any auctioneer or person selling the goods referred to in subsection (8) who fails to issue a document or issues a document without the prescribed particulars of the tax chargeable to the buyer commits an offence.

No invoice showing an amount which purports to be a tax shall be issued by any registered person:

on any supply of goods or services which is not a taxable supply; or

on any zero-rated supply.

Any person who is not a registered person, except the persons mentioned in subsections 65(4) and (5), shall not issue:

an invoice showing an amount which purports to be a tax or an amount inclusive of tax; or

an invoice which purports to be a tax invoice with or without tax.

Any person who contravenes subsection (10) or (10A) commits an offence and shall, on conviction, be liable to a fine not exceeding thirty thousand ringgit or to imprisonment for a term not exceeding two years or to both and a penalty of two times the amount of tax.

A tax invoice under subsection (1) is not required to be issued where a registered person makes the following supply:

a zero-rated supply; or

a supply made without consideration on which tax is charged.

Notwithstanding subsection (1), no tax invoice shall be issued for-

any supply of second-hand goods under section 59;

any supply of imported services; or

any supply of treated or processed goods which is deemed to have been supplied by the recipient under section 72.

Any person who issues a tax invoice in contravention of subsection (13) commits an offence.

Progressive or periodic supply

Where any supply is made under an agreement for a period or progressively over a period whether or not at regular intervals and that period begins before the effective date and ends on or after the effective date, the proportion of the supply which is attributed to the part of the period on or after the effective date shall be chargeable to tax.

Where the supply under subsection (1) is a supply of services, the supply shall be taken to be made continuously and uniformly throughout the period of that agreement.

Notwithstanding subsection (1), where the supply is made under a warranty that relates to goods or services whether expressed, implied or required by law and the value of the warranty is included in the price of the goods or services, no tax shall be charged on such supply.

Subsections (1) and (2) shall not apply to-

a sale of goods where sales tax has been paid on the sale of the goods to the extent covered by the invoice;

a provision of services where service tax has been paid on the services to the extent covered by the payment or invoice; or

any contract with no opportunity to review under section 187.

GSTR 2014 Contents of tax invoice A registered person issuing a tax invoice shall state thereon the following particulars:

invoice" in a prominent place;

the tax invoice serial number;

the date of the tax invoice;

the name, address and identification number of the supplier;

the name and address of the person to whom the goods or services are supplied;

a description sufficient to identify the goods or services supplied;

for each description, distinguish the type of supply for standard rate, zero rate and exempt, the quantity of the goods or the extent of the services and the amount payable, excluding tax;

any discount offered;

the total amount payable excluding tax, the rate of tax and the total tax chargeable shown as a separate amount;

the total amount payable inclusive of total tax chargeable; and

any amount referred to in paragraphs (i) and (j) expressed in a currency other than ringgit shall also be expressed in ringgit in accordance with paragraph 5 of the Third Schedule of the act. [55] We have carefully considered rival contentions of the parties and it does not seem in dispute that the Developer made the GST payment to the customs pursuant to the GSTA 2014 for the services of continuing and completing the development of the JAZZ Suites. [56] The critical question here is whether by virtue of clause 25 of the SPA, the Purchasers are bound to indemnify the Developer of the GST payment. Upon our construction of the SPA, we are of the view that clause 25 is clear and wide enough to indemnify the Purchasers from the see there is a distinction made in clause 25 as to whether the GST payment was attributed to input or output tax contrary to that as alluded by the Developer. Additionally, we are not satisfied that the provisions in ss. 9(2), 33(1) and 188(1) of the GSTA 2014 and Regulation 22 of the GSTR 2014 relied by the Developer provided a defence for the Developer. [57] warrant appellate intervention. The learned High Court judge is correct in paragraph (18) of the GOJ to the extent His Lordship held as follows: In this regard I agree that the plaintiffs can seek refuge under cl 25. It was pointed out that defendants sought to be indemnified on the purchase price [58] Nonetheless, we wish to make it clear that in so finding, we have independently construed clause 25 of the SPA without taking into consideration that the decision of this Court in Mandarin Pavilion Sdn Bhd v. Chang Vui Lun & Anor (supra). In any event, we are also unable to discern as to how the Federal Court in Civil Appeal no. 02(f)-41-05/2018 reversed the finding of this Court without the grounds of judgment made available. Outstanding service charges, sinking fund payments, progress billing and associated late payment interest. [59] s appeal on its counterclaim for service charges and sinking fund payment are against the 4th and 25th Respondents in Appeal 63. In respect of late payment interest of the service charges and sinking fund payment, they are against the 1st, 10th, 15th, 16th, and 22nd Respondents in Appeal 63. Finally, as to the late payment interest on progress billings, it is against the 25th Respondent in Appeal 163. These are set out in paragraph (20) of the GOJ. [60] The respective Purchasers contention is that the Developer prematurely claimed against them in breach of clause 19(2) of the SPA and clause 8.1 of the DMC. [61] It is provided as follows in clause 19(2) of the SPA:

19.2 From the date the Purchaser takes vacant possession of the said parcel, the Purchaser shall pay a fair and justifiable proportion of the costs and expenses for the maintenance and management of the common property and for the services provided. Such amount payable shall be determined accordingly to the provisional share units assigned to the said Parcel by the sufficient for the actual maintenance and management of the common property. The Purchaser shall pay three (3) months deposit and three (3) months advance in respect of the service charges and any payment thereafter shall be payable quarterly in advance. Further clause 8.1 of the DMC provides as follows: The Purchaser shall from the date of taking over vacant possession of the said parcel pay the Vendor services charges, being the amount determined according to the provisional share units assigned to the said Parcel by the Purchase Agreement for expenses in the sum stated in Section 4 of the First Schedule incurred or payable and as may be incurred or payable by the Vendor or for and in connection with and incidental or ancillary to the management, administering of the Common Property by the Vendor. [62] The respective Purchasers contended that the Developer is only entitled to rely on clause 19 of the SPA when they take actual vacant possession of the Jazz Suites. This is on 21st April 2017 when the Certificate of Completion and Compliance of the Jazz Suites has been issued. However, the Developer has already claimed for the same against them on 15th August 2016 which is wrongful. [63] The learned Sessions Court judge found in favour of the respective Purchasers but the learned High Court judge reversed the same for the reason set out in paragraph (20) of the GOJ. In gist, the learned High Court judge took the view that these counterclaims of the Developer are separate and independent from the GST payment counterclaim and must thus succeed notwithstanding that GST payment counterclaim. [64] Upon our review, w ing inexplicable and thus an erroneous misdirection that justify appellate premature and cannot therefore be allowed particularly based on our finding in paragraph [48] hereinabove. Settlement agreement made between Purchasers and Developer [65] Prior to the commencement of the various suits in the Sessions Court, several Purchasers, to wit, the 2nd, 3rd, 9th, 11th-14th,17th, 18th and 21st Appellants in Appeal 51 have undergone negotiation with the Developer to settle the amount of liquidated damages for late delivery of vacant possession of the Jazz Suites. As the result, there was a settlement agreement reached between each respective Purchaser and the Developer ( ). [66] These Purchasers contended that the Settlement Agreement is void because it is illegal by reason that the contractual provision on liquidated damages in the SPA is void in contravention of the HDA 1966. They relied on the case of Oxbridge Height Sdn Bhd v. Abdul Razak Mohd Yusof & Anor [2015] 2 CLJ 252 (CA) wherein Ariff Yusof JCA held as follows with emphasis added by us: In our view, the substance of the appeal turned on the validity of the settlement agreement. It seemed to us obvious on the evidence that the respondents (especially the first respondent) had expressly agreed to waive the LAD claimable under the SPA. It could not be said this waiver was a mere suggestion. Why would the respondents execute the settlement agreement except to agree to waive the earlier LAD and to accept the new completion date? In our view, the learned High Court Judge had materially erred in his assessment of the evidence and had failed to address the course of negotiations and meetings between the developer, the house buyers and the JPN in the context of the development being a "projek sakit" which was unfortunately delayed by force majeure. The developer made it plain it could not continue with the project unless the LAD claims were waived in view of its financial difficulties resulting from the force majeure. The larger majority of house buyers, including the respondents, agreed to a waiver, had their houses completed and delivered by the appellant as developer/vendor within the new completion date as agreed under the settlement agreement. Despite agreeing to the waiver, the respondents still proceeded to file a claim with the tribunal and obtained the award of RM50,000 in their favour for LAD calculated from the initial period of delay under the SPA. This action constituted a clear breach of the settlement agreement on the facts. [24] On the law, the signing of the settlement agreement would fall within the terms of s. 64 of the Contracts Act 1950 which deals with the "dispensation" of a promise made to a promisee:

Promisee may dispense with or remit performance of promise. Every promise may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit. [25] The appellant's claim could only be defeated if the settlement agreement was illegal and flouted s. 24 of the Contracts Act 1950, as either an agreement forbidden by law, or of such a nature as would defeat any law, or would be opposed to public policy. In this appeal, the respondents took a firm view on the effect of the Housing Development (Control and Licensing) Act 1966 and reg. 11(1) of the Housing Development (Control and Licensing) Regulations 1989, in effect arguing that the LAD provision in the Schedule G standard form SPA could not be contracted out. [67] The Developer however took a contrary stance in that the Settlement Agreement were entered into with the free consent of the parties including these respective Purchasers. In this regard, there was already a dispute between the Developer and them on whether the SPA is subjected to the HDA 1966. However, a compromise was still achieved eventually and reduced into the respective Settlement Agreement made between the parties. [68] The learned High Court judge in paragraph (21) of the GOJ upheld all the Settlement Agreements principally because His Lordship, a priori, held that the SPA is not subjected to the HDA 1966. [69] Upon our review and particularly in view of our finding hereinabove that the SPA contravened the HDA 1966 in respect of the provision on time of delivery of vacant possession of the Jazz Suites, we cannot therefore sanction the sanctity of the Settlement Agreement that has been premised upon an illegal substratum. The Settlement Agreements are thus void for illegality on having flouted s. 24 of the Contracts Act 1950 following the decision of this Court in Oxbridge Height Sdn Bhd v. Abdul Razak Mohd Yusof & Anor (supra) that is binding on us based on stare decisis. There is nothing per incuriam therein to justify us departing from it. [70] justify appellate intervention too. In this regard, we treat the Settlement Agreements void ab initio. The learned High Court judge is plainly wrong by holding that the Settlement Agreements are binding to the detriment of the Purchasers concerned. CONCLUSION [71] For the foregoing reasons, we unanimously allow Appeal 51 and dismiss Appeal 63. The Decision of the High Court is set aside save on the finding in respect of the GST payment and we reinstate the order of the Sessions Court. [72] The Developer shall pay costs to the Purchasers of RM 30,000.00 for Appeal 51 and RM 20,000.00 for Appeal 63 here and the High Court below subject to allocator. Dated this 22nd April 2025 Sgd. LIM CHONG FONG COURT OF APPEAL JUDGE

Ung Chirt Kye

Ng Giap Seng Solicitors for the Appellants in Appeal 51 & Respondent in Appeal 63 MESSRS. PHEE, CHEN & UNG Advocates & Solicitors, 11B, Jalan Tavoy, 10050 Pulau Pinang Counsel for the Respondent in

Karin Lim Ai Ching

Lim Hock Siang

Daniel Khoo Kelvin Solicitors for Respondents in Appeal 51 And Appellant in Appeal 63 MESSRS. PRESGRAVE & MATTHEWS Advocates & Solicitors, 1st Floor, No.2, Beach Street, 10300 Pulau Pinang. STATUTE/LEGISLATION REFERRED TO: s. 3 of Housing Development (Control and Licensing) Act 1966; s.120 of the National Land Code 1965; ss. 9(2), 9(3), 33(1) and 188(1) of the Goods and Services Tax Act 2014; Regulation 22 of the Goods and Services Tax Regulations 2014; and s. 24 of the Contracts Act 1950. CASES REFERRED TO: Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] CLJU 1416; Ng Hoo Kui & Anor v. Wendy Tan Lee Pheng, Administrator of the Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1; ABT Construction Sdn Bhd & Anor v. Tribunal Tuntutan Pembeli Rumah & Ors [2013] 9 MLJ 195; Perbadanan Pengurusan Sunrise Garden Kondominium v. Sunway City (Penang) Sdn Bhd & Ors and Another Appeal [2023] 2 CLJ 333; Perbadanan Kemajuan Negeri Selangor v. Selangor Country Club Sdn Bhd [2016] 8 CLJ 221; PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor and other Appeals [2021] 1 MLRA 506; Loh Tina & Ors v. Kemuning Setia Sdn Bhd & Ors and Another Appeal [2020] 4 MLRA 450; Ho, Christopher Wen Jinn v. Berjaya Times Square Sdn Bhd [2011] 7 MLRH 720; Mandarin Pavilion Sdn Bhd v. Chang Vui Lun & Anor [2019] 2 CLJ 22; Cham Yit Kiong & Anor v. Mandarin Pavilion Sdn Bhd [2021] 1 LNS 958; and Oxbridge Height Sdn Bhd v. Abdul Razak Mohd Yusof & Anor [2015] 2