Utuh Sejagat Sdn Bhd v Valerie Kho Ik Lee (BA-12BNCvC-81-12/2024)

In this judgment, the parties shall be referred to as they were in the Sessions Court.

This is an appeal by the Defendant against the decision of the learned Sessions Court Judge (“SCJ”) on 9.12.2024 (after full trial) to allow the Plaintiff’s claim.

After perusal of the cause papers and after hearing submissions from the counsels, I have decided to dismiss the Defendant’s appeal with costs based on the reasonings which I shall explain hereafter.

The Defendant is the developer of a condominium known as BSP 21, Bandar Saujana Putra (“the Development”).

On 16.1.2015, the Plaintiff reserved a unit in the Development identified as Unit D-13A-09 (“the Initial Unit”).

However, the Plaintiff later changed her mind and wanted to cancel the reservation for the Initial Unit as she was suffering from knee conditions and had difficulty walking.

The Defendant’s sales agent (“Sales Agent”) however assured the Plaintiff that all buyers will be allocated a car park bay which will be located in the same floor or level corresponding to the unit which will be purchased. Hence, there will be no issues for the Plaintiff having to walk a long distance to get into her car.

Based on the representations and assurances made by the Sales Agent, the Plaintiff decided to continue with the purchase. However, the Plaintiff requested for a change of units, from Unit D-13A-09 to Unit B-03A-06 (“the New Unit”). The change of units was agreed by the Defendant.

The Plaintiff then signed the Sale and Purchase Agreement dated 27.4.2015 (“the SPA”) to purchase the New Unit from the Defendant at the purchase price of RM 277,900.00.

Prior to the delivery of vacant possession on 10.3.2018, the Plaintiff was required to sign an acceptance letter in respect of the designated car park (“the Car Park”).

The Plaintiff later discovered that the Car Park is actually located at Block C of the Development, whereas the New Unit purchased by the Plaintiff is located in Block B.

The Plaintiff claims that the location of the Car Park in Block C is in breach of the terms of the SPA.

Due to the Defendant’s breach, the Plaintiff has to endure pain and suffering in her daily commute to and from the Car Park due to her knee conditions. The Plaintiff also assert that the New Unit has suffered depreciation in value due to the wrongful allocation of the Car Park.

Hence, the Plaintiff sought the following reliefs: -

Declaration that the Defendant fraudulently and/or recklessly and/or negligently misrepresented to the Plaintiff as to the allocation of the Car Park;

An order for specific performance to reallocate the Car Park to Level 3A, Block B; and

Damages. Summary of the decision by the SCJ [15] The SCJ found that based on the First Schedule of the SPA (“the First Schedule”), the Car Park should have been allocated at Block B. [16] The SCJ found that the Defendant had breached the terms of the SPA by allocating the Car Park in Block C (instead of Block B). [17] Accordingly, the SCJ ordered for specific performance to re-allocate the Car Park to Block B. Summary of the Defendant’s case (in supporting the appeal) [18] The Defendant submits that the SCJ had erred in his findings (in fact and in law) on the following grounds: -

The SCJ had erred in holding that based on the First Schedule, the Car Park should be allocated at Block B;

The SCJ had erred in finding that the Defendant had breached the SPA when it allocated the Car Park at Block C;

The SCJ had wrongly found the Plaintiff’s evidence as more credible;

The SCJ failed to consider that specific performance for the relocation of the Car Park is no longer possible. [19] The Defendant argues that the Plaintiff’s claim revolves on the representations made by the Sales Agent during the events of the reservation of the Initial Unit (“the Representations”). [20] The Defendant said that the Representations eventually led to the breach of the SPA. [21] The Defendant states that they have no knowledge of the Plaintiff’s medical condition and are not aware of the Representations that were made by the Sales Agent to the Plaintiff. [22] The Defendant then points out that the SCJ had already dismissed the issue of the Representation. Paragraph (31) of the SCJ’s grounds of judgment (“the GOJ”) states as follows: - “35. Mahkamah ini tidak membenarkan tuntutan Plaintif bagi perenggan 15.1 pernyataan tuntutan Plaintif kerana tiada isu representasi yang tidak benar dan/atau dibuat secara lalai atau abai kepada Plaintif tentang tempat letak kereta bagi Unit tersebut telah berlaku serta Plaintif tidak membuktikan ganti rugi yang perlu ditaksirkan bagi perenggan 15.3 dan 15.4 pernyataan tuntutan Plaintif.” [23] The Defendant submits that as the issue of the Representation has already been dismissed by the SCJ, therefore there is also no breach of the SPA as the alleged resulting breach is premised on the Representations. [24] The Defendant also points out that the SPA is a statutory agreement pursuant to the Housing Development (Control & Licensing) Act 1966 and Housing Development (Control & Licensing) Regulations 1989. Hence, there can be no modifications made to the SPA and no other terms can be implied into it. [25] The Defendant also argues that there are no express terms in the SPA which stipulates that the Car Park must be allocated at the same floor and building as the New Unit. Therefore, there is no contractual obligations on the Defendant to allocate the Car Park in Block B. [26] The Defendant also argues that the plans annexed in the First Schedule were solely for the purpose of identifying the New Unit, and not to be used to identify or particularise the location of the Car Park. [27] The Defendant also argues that the SCJ had erred in accepting the Plaintiff’s evidence as credible. [28] Lastly, the Defendant submits that specific performance should not be granted as it is no longer possible to re-allocate the Car Park. All the car parks (including those located at Block B) has been fully allocated. There are no more vacant car parks available. Furthermore, before any reallocation can be carried out, the Defendant would have to obtain prior permission from the authorities. As such, reallocation is impossible and cannot be performed. Summary of the Plaintiff’s case (in opposing the appeal) [29] The Plaintiff states that the SPA has defined the term “accessory parcel” under Clause 35(a) and the Sixth Schedule of the SPA (“the Sixth Schedule”). [30] The Plaintiff’s position is that Clause 35(a) of the SPA must be interpreted in conjunction with the First Schedule. Reading both of the provisions together, it is clear that the accessory parcel is required to be identified and reflected in the site plan, storey plan and accessory parcel plan as provided in the First Schedule. [31] The Plaintiff states that the SCJ had made the correct decision to conclude that the Plaintiff is entitled to the Car Park to be located in accordance with the plans. The plans form an integral part of the SPA and has specifically designated the location of the accessory parcel. [32] Accordingly, the Plaintiff submits that the Car Park must be provided as per the plans, which is to be located within the podium parking area serving both Blocks A and B. Findings by the Court [33] The purchase of the New Unit comes together with the accessory parcel. Preamble (5) of the SPA states that: - “AND WHEREAS the Vendor has agreed to sell and the Purchaser has agreed to purchase a parcel with vacant possession which is delineated and shaded GREEN in the Storey Plan with the building which is in turn delineated and shaded RED in the Site Plan (hereinafter referred to as “the said Building”) with accessory parcel with vacant possession more particularly described in Section 3 of the Sixth Schedule annexed hereto (hereinafter referred to as “the said Parcel”) subject to the terms and conditions hereinafter contained.” [34] The term “accessory parcel” has been defined in Clause (35)(a) of the SPA as follows: - “accessory parcel” means any parcel shown in the Site Plan and Storey Plan and Accessory Parcel Plan as an accessory parcel which is used or intended to be used in conjunction with the said Parcel;” [35] Section 3 of the Sixth Schedule refers or describes the accessory parcel as “1 Single Lot Car Park”. [36] In this respect, the First Schedule of the SPA consists of the following plans: -

A site plan to show an overall of the Development, including its buildings, structures and roads (“the Site

A layout plan to illustrate the arrangement of all the condominium units located at Level 3A of Block B (“the

A floor plan to illustrate the structural layout of the New

A storey plan to illustrate the layout of Block B (“the

An accessory parcel plan to identify the specific areas and location in respect of the car parks (“the Accessory Parcel Plan”). [37] The diagrammatic section of the Accessory Parcel Plan has clearly identified the location of the car park lots. The car park lots are to be located in the podium parking in between Block A and Block B. In particular, the levels that has been designated are Level 1, Level 2, Level 3 and Level 3A. Therefore, it is clear that the car park lots are to be specifically located in the designated levels shared by both Block A and Block B respectively. [38] Therefore, in construing the provisions of the SPA as a whole (namely Preamble (5), Clause (35)(a), the First Schedule, the Sixth Schedule and, in particular, the Accessory Parcel Plan), it is plain and clear that the Car Park is to be located at Level 1, Level 2, Level 3 and Level 3A of the podium parking of Block A and Block B only. There are no provisions to entitle the Defendant to designate and locate the Car Park in Block C. [39] The Accessory Parcel Plan, which is in the First Schedule, forms an integral part of the SPA and specifically designates the location of the car park lots. Clause 34 of the SPA states that: - “The First, Second, Third, Fourth, Fifth and Sixth Schedule hereto shall form part of this Agreement and shall be read, taken and construed as an essential part of this Agreement.” [40] In Chan Yew Mun v Faber Union Sdn Bhd [2015] MLJU 274, the High Court found that the First Schedule of the Sale and Purchase Agreement forms part of the contract and is binding on the parties: - “[14] The fact that the aforesaid representation was made to the plaintiffs is fortified by the terms of the SPA. The First Schedule to the SPA among others contains the Floor Plan for the Property (page 3d of Bundle A). By virtue of the provisions of clause 34 of the SPA, the First Schedule is to be read, taken and construed as an essential part of the agreement. The Floor Plan clearly states that the length of the car porch is 9981 mm. Therefore, it is a contractual term of the SPA that the length of the car porch is 9981 mm and accordingly the defendant is contractually bound to deliver a car porch of such length.” [41] In interpreting any contract, the express wording must be given effect. Where the language is plain and unambiguous, the term must be given effect to as expressed. In SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464, Zainun Ali FCJ held: - “[55] As a relevant addendum, the relationship between interpretation and implication are considered in this discussion of the principles of construction. According to Lord Hoffman in Attorney General for Attorney General of Belize and Others v Belize Telecom Ltd and Another [2009] UKPC 10; [2009] 1 WLR 1988 (PC) this characterisation can be traced back to the speech of Lord Pearson in Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601 (HL), where His Lordship had warned: “The court does not make a contract for the parties. The court will not even improve the terms which the parties have made for themselves, however desirable the improvement might be. The court’s function is to interpret and apply the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made between different possible meanings: the clear terms must be applied even if the court thinks some other terms would have been suitable. An unexpressed term can be implied if and only if courts finds that the parties must have intended that term to form part of their contract.” [42] Instead of providing the location of the Car Park as stipulated in the SPA, the Defendant had allocated the Car Park in a completely different building. This constitutes a clear deviation of the express terms in the SPA. [43] In Tan Tien Seng & Anor v Grobina Resorts Sdn Bhd [2005] 7 MLJ 590, the Court found that the defendant’s failure to deliver the unit amounted to a fundamental breach of contract: - “[44] By way of elaboration, the First and the Fourth Schedules expressly incorporate the Storey Plan of the Condo Project and identify the unit as the highest unit on the South Wing. In my view, the defendant’s failure or inability in delivering the unit on the highest floor of the condo project as a breach going to the root of the contract and constitutes a fundamental breach. … [49] Within our shores, in Hwa Chea Lin, a developer-defendant and the purchaser-plaintiff entered into a sale and purchase agreement in respect of a single storey terrace house (‘the building’). When the defendant sent a notice to the plaintiff to take delivery of the building, the plaintiff orally complained to the defendant regarding defects found in the building, for which the defendant carried out remedial works, but in an unsatisfactory manner. Further remedial works were also carried out. Being further dissatisfied, the plaintiff through solicitors sent a letter rescinding the SPA. On the issue whether a fundamental breach existed to justify the rescission, Suriyadi J held that a fundamental breach had occurred as the building that was delivered to the plaintiffs was not what they had bargained for, being not what had been agreed upon, as a result of which the breach by the defendant was a breach that went into the root of the contract. Section 40 was also invoked. [50] In Lim Sew Lan v Pembangunan Hysham Sdn Bhd & Anor, the SPA provided for the purchase of one unit of shop office consisting of ground, first and second floors within six blocks of five to seven storey ground office and service suites. Recital C to the SPA had also confirmed this. However, the defendants constructed only three storey shop office without service suites. Kamalanathan Ratnam J (as he then was) in granting rescission of the SPA held that the defendants had been in breach of s 40, having gone into the very substance and root of the contract.” [44] On the issue of specific performance, I do not accept the Defendant’s argument that specific performance should not be granted as it is no longer possible to do so. The Defendant had contended that they are unable to re-allocate the Car Park as the allocation process has already been completed and the application for the strata title has already been submitted. The Defendant also asserted that as all the car park spaces have been fully allocated, there are no more remaining vacant spaces. [45] I find it hard to accept such a simplistic contention. The Defendant had failed to demonstrate their inability to re-allocate the Car Park or to substantiate and support their assertion that the all the car park space has been fully allocated. [46] In Loh Koon Moy & Anor v Zaibun SA binti Syed Ahmad [1978] 2 MLJ 29, where the following was said with regard to the availability of specific performance as a remedy: - “There is something more, a presumption in favour of specific performance of a contract to sell land, which is statutorily provided in section 11(2) Specific Relief Act which reads as follows: “(2) Unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money.” The burden of rebutting this presumption lay on the respondent. Suffice it to say that the respondent had not in any way rebutted it. She had not even sought to rebut it. There existed therefore no grounds for the exercise by the learned judge of his discretion.” [47] Similarly, in Loh Tina & Ors v Kemuning Setia Sdn Bhd & Ors and another appeal [2020] 6 MLJ 191, where a developer makes unapproved changes to the statutory standard form contract, the purchaser is entitled to enforce the agreement: - “[112] Where a developer makes changes to Schedule G SPA that are not approved by the Controller, the purchaser would have a right to enforce the SPA in Schedule G as prescribed as if unamended and unmodified. [113] This is not a case of the court rewriting the contract of sale for the parties but rather one in which the developer had not followed the statutory standard form contract for the SPA and what the court would do is to allow the purchasers to enforce their rights as if Schedule G had been followed to the letter. [114] The statutory prohibition against modifying Schedule G contract of sale and the protection that affords to purchasers would be lost altogether if the purchasers cannot enforce what would have been their entitlement under a Schedule G SPA — a sale and transfer to them of the whole of the freehold title to the land upon which their housing accommodation had been built.” [48] On the issue of the Representation made by the Sales Agent, I do not accept the Defendant’s argument that the Plaintiff’s claim hinges on the Representation, and since the issue of the Representation has been dismissed by the SCJ, therefore there is also no breach of the SPA. [49] The Plaintiff’s claim against the Defendant is pursuant to the breach of the SPA. The events surrounding the Initial Unit and the Representation actually has no effect on the Plaintiff’s claim. All of these issues have been overtaken by events (i.e. by the Plaintiff purchasing the New Unit). As such, it would be irrelevant to dwell on the issue as the Plaintiff’s claim is strictly grounded on the SPA. The Plaintiff’s claim has got nothing to do with the background events. [50] This is also evident from the GOJ, where the SCJ had stated: - “(33) Berhubung dengan isu Defendan tidak pernah membuat sebarang representasi yang tidak benar dan/atau dibuat secara lalai atau abai kepada Plaintif tentang tempat letak kereta bagi Unit tersebut, Mahkamah mendapati isu ini tidak berkaitan kerana isu utama dalam kes in adalah sama ada tempat letak kereta Unit tersebut diperuntukkan dalam PJB dan sama ada Defendan telah mematuhi terma PJB tersebut bagi tempat letak kereta Plaintif bagi Unit tersebut”. Conclusion [51] Accordingly, for the reason above, the Defendant’s appeal is dismissed with costs fixed at RM 10,000.00. Dated the 9th day of February 2026. (SEOW HOCK PENG) JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsel: For the Appellant/Defendant : Wilson Lim Mao Shen (Messrs Wilson Lim) For the Respondent/Plaintiff : Nandakumar S. Haridas (Messrs Thomas Philip)

Chan Yew Mun v Faber Union Sdn Bhd [2015] MLJU 274

SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 3. Tan Tien Seng & Anor v Grobina Resorts Sdn Bhd [2005] 7 MLJ 590 4. Loh Koon Moy & Anor v Zaibun SA binti Syed Ahmad [1978] 2 MLJ 29 5. Loh Tina & Ors v Kemuning Setia Sdn Bhd & Ors and another appeal [2020] 6 MLJ 191