Xtreme Meridian Sdn Bhd v Chow Chee Wah (WA-12ANCvC-41-04/2025)

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1 CIVIL APPEAL NO: WA-12ANCVC-41-04/2025 (Company No: 954493-X)

Lampiran

Lampiran A Jadual Wilayah Mahkamah Sesyen Mahkamah Sesyen Wilayah Mahkamah Sesyen (1) Kuala Lumpur Kuala Lumpur (20) Kuala Terengganu Besut Setiu Marang Kuala Brang Dungun Kemaman 18. The legal significance of these territorial limits was considered in Taman Rimba (Mentakab) Sdn Bhd v Sin Yew Poh Tractor Works [2002] 5 MLJ 321, where the High Court emphasised that Sessions Courts, unlike the High Court, do not enjoy concurrent territorial jurisdiction. The Court observed: S/N 4uqhFJBuKE4eszywwIvw “These areas designated to the Ipoh Sessions Court are certainly not the place where the cause or matter in this action arose. It was in either Mentakab or Kuala Lumpur. Unlike the High Court of Malaya sitting in various capital cities and towns in Peninsular Malaysia, the sessions courts throughout the country do not enjoy concurrent territorial jurisdiction of each other… … The subordinate courts have the restriction of local limits of jurisdiction assigned to them. When a cause or matter arises outside its local limits, then it has no jurisdiction to hear the substantive matter.” [Emphasis is mine] 19. The appellant submits that this principle applies with equal force where a Sessions Court Judge, having been transferred out of a particular court, thereafter purports to exercise judicial authority in respect of matters pending before that court. On this footing, the judgment delivered on 24 March 2025 is said to have been issued without jurisdiction and is therefore void. The Respondents’ Rebuttal of Jurisdictional Challenges 20. The respondents submit, in response to the appellant’s preliminary objections, that none of the matters relied upon disclose any excess or want of jurisdiction on the part of the Sessions Court. They contend that the objections rest upon a misconceived characterisation both of the nature of the S/N 4uqhFJBuKE4eszywwIvw proceedings and of the statutory framework governing the jurisdiction of the Sessions Court. Monetary Jurisdiction 21. In relation to monetary jurisdiction, the respondents characterise the proceedings as representative in nature, comprising multiple independent claims brought together for reasons of convenience and efficiency. On that footing, they submit that the jurisdictional inquiry must be undertaken by reference to the quantum of each individual claimant’s cause of action, rather than by reference to the aggregate sum ultimately reflected in the judgment. It is common ground, they say, that none of the individual claims for LAD exceeded the statutory ceiling of RM1,000,000 prescribed by section 65(1)(b) of the SCA. 22. Closely allied to this submission is the respondents’ reliance on the manner in which the claim was pleaded. They emphasise that the statement of claim particularised distinct and severable sums of LAD payable by the appellant to each purchaser. The relief sought, and ultimately granted, was therefore not a single undifferentiated award, but a series of discrete monetary obligations corresponding to each individual purchaser’s contractual entitlement. In ordering payment of those sums, the Sessions Court was, it is said, doing no more than giving effect to the pleadings as framed. The aggregate figure of the S/N 4uqhFJBuKE4eszywwIvw judgment is thus a matter of arithmetic consequence only, and is legally immaterial to the question of jurisdiction. Transfer of the Learned Judge 23. The respondents next address the challenge founded upon the administrative transfer of the learned Judge. They submit that the premise of the appellant’s argument is flawed. The judgment delivered on 24 March 2025 was not, they contend, the pronouncement of a fresh or independent decision, but the completion and clarification of a judgment which had been reserved following the conclusion of a full hearing conducted personally by the same judge. At the time of the transfer, the case had not been formally concluded and no perfected judgment had yet to be delivered. 24. In those circumstances, the respondents argue that the learned Judge retained the authority to complete and deliver her own decision. Her subsequent administrative transfer did not, they submit, divest her of that residual power. To hold otherwise would, in their submission, elevate form over substance and risk undermining the orderly administration of justice by requiring rehearing before a different judge in circumstances where the factual and legal issues had already been fully heard and considered. S/N 4uqhFJBuKE4eszywwIvw Territorial Jurisdiction 25. More fundamentally, the respondents challenge the very premise upon which the appellant’s territorial jurisdiction argument is constructed. They contend that a Sessions Court is confined to specific local limits only where such limits have been lawfully assigned by His Majesty the Yang di-Pertuan Agong (“the YDPA”) pursuant to section 59(2) of the SCA. In the absence of any such valid assignment, section 59(2) is said to operate so as to confer upon a Sessions Court jurisdiction to hear and determine any cause or matter arising in any part of Peninsular Malaysia. 26. In support of this proposition, the respondents state that they have conducted a careful examination of the relevant Government Gazettes. They submit that no instrument assigning territorial limits to the Sessions Courts has been located, save for the Federal Government Gazette P.U.(A) 116/2021 dated 17 March 2021. That instrument, they point out, pertains only to Subordinate Courts (Constitution of Sessions Court & Magistrates’ Court for the Federal Territories and Labuan) Order 2021, and crucially assigns local limits of jurisdiction only to the Magistrates’ Courts in Kuala Lumpur and Labuan, and not to the Sessions Court. In the absence of any valid assignment under section 59(1), the respondents submit that the appellant’s territorial objection is without legal foundation. S/N 4uqhFJBuKE4eszywwIvw The Jurisdictional Challenges are Not Fatal 27. I turn now to the appellant’s jurisdictional objections. Each has been advanced with some force, but none withstands careful scrutiny. Having considered the submissions with care, I am unable to accept that any of them are fatal to the validity of the proceedings or the judgment of the Sessions Court. The proceedings before the Sessions Court were lawfully constituted, and the judgment impugned is not vitiated on any jurisdictional ground. Monetary Jurisdiction 28. The appellant’s primary contention is that the Sessions Court exceeded its monetary jurisdiction by reason of the aggregate sum awarded. That submission proceeds upon a false premise. The present proceedings were not founded upon a single indivisible cause of action, but upon multiple independent claims which, for reasons of procedural economy, were heard together. The jurisdiction of the Sessions Court must therefore be assessed by reference to each individual claim, not by arithmetical aggregation. 29. It is common ground that each claim for LAD fell comfortably below the statutory ceiling of RM1,000,000 prescribed by section 65(1)(b) of the SCA. Once that is accepted, the jurisdictional objection collapses unless aggregation is legally mandated. It is not. S/N 4uqhFJBuKE4eszywwIvw 30. This conclusion is strongly supported by the decision of the High Court in Koh Kien Hooi & Ors v Kepong Industrial Park Sdn Bhd [2022] 12 MLJ 440. Although the factual matrix there differed in that the plaintiffs sought to rely on aggregation to invoke the High Court’s jurisdiction, the legal analysis undertaken by the learned Judge on the relationship between joinder and jurisdiction is directly applicable to the present appeal. 31. The Court in Koh Kien Hooi affirmed that while procedural rules permit the joinder of multiple plaintiffs in a single action, such joinder does not alter the essential nature of the individual claims. Each claim retains its own cause of action, subject matter, and remedy. The learned Judge expressed the position in terms that admit of little ambiguity: “[13] I have no qualms about the plaintiffs’ consolidation and utilisation of O. 15 r. 4 in filing a single claim against the defendant. This however does not mean that the “amount in dispute or the value of the subject matter” exceeds RM1,000,000. Despite the consolidation in a single suit, each of the plaintiffs’ claims constitutes a separate cause of action against the defendant, each with its subject matter and each with its remedy claimable against the defendant. The defendant is entitled to the same right against each defendant as if the claim was brought separately against it. [15] One cannot forget that the cause of action by each plaintiff remains independent and each plaintiff is entitled to bring separate claims against the defendant. The fact that the claims are joined in S/N 4uqhFJBuKE4eszywwIvw one suit does not change the character of the claim and does not create an overall larger claim that falls outside of the jurisdiction of the Sessions Court. It is wrong for the plaintiffs to contend that this court should look at the total amount claimed and find that this exceeds the jurisdiction of the Sessions Court.” [Emphasis is mine] 32. Viewed through this prism, the appellant’s reliance on New Straits Times Press (supra) is therefore misplaced. That decision does not establish that jurisdiction is lost whenever the total of multiple awards exceeds the statutory limit. It is concerned with the impermissibility of granting, in substance, in a single composite action, a single award which itself exceeds the court’s jurisdiction. That is not the case here. 33. Here, the Sessions Court did not award a single global sum of RM1,488,471.81 in satisfaction of one composite claim. Instead, it adjudicated upon sixteen separate claims and awarded, in respect of each, a specific sum of LAD payable to the individual purchaser concerned. The aggregate figure is merely the mathematical consequence of those individual awards. It does not represent the “amount in dispute” in any jurisdictional sense. 34. To accept the appellant’s argument would be to impose an artificial and impractical constraint upon the joinder of claims. Parties with modest and otherwise uncontroversial claims S/N 4uqhFJBuKE4eszywwIvw would be driven into multiple parallel proceedings, at disproportionate cost and with needless duplication, solely to avoid the risk of exceeding an aggregate threshold. Such an outcome would undermine, rather than promote, the efficient and just disposal of disputes. 35. The substance of the matter is therefore this. Each individual claim fell squarely within the monetary jurisdiction of the Sessions Court, and the Court acted properly in giving effect to the pleadings by awarding each claimant the sum to which he or she was entitled. The judgment is not a single award exceeding the jurisdictional limit, but a collection of lawful individual awards. That distinction is critical and dispositive of the appellant’s first objection. 36. I am accordingly satisfied that the Sessions Court did not exceed its monetary jurisdiction. The first jurisdictional challenge is therefore dismissed. Territorial Jurisdiction 37. I turn then to the appellant’s challenge founded upon territorial jurisdiction. In resolving this issue, the decision of the Court of Appeal in Public Prosecutor v Abul Hassan bin Mohamed Rashid [2022] 5 MLJ 40 is of central importance. This case is directly on point and provides a conclusive answer to the argument advanced by the appellant. The Court observed: S/N 4uqhFJBuKE4eszywwIvw “Whether Kuala Lumpur Sessions Court was assigned with its local limits of jurisdiction [61] We find, that this is an important issue for determination and our findings will have consequences on the application of Practice Direction No 2 of 2008 (PD 2/2008) issued by the Chief Justice of Malaya with effect from 5 September 2008. The directive under PD 2/2008, inter alia, is that all Security Commission cases be heard and tried at the Kuala Lumpur Sessions Court. [62] One of the provisions of law to look at in determining this issue is s 59 of the Subordinate Courts Act 1948 (‘the SCA 1948’) which provides: 59 Constitution and territorial jurisdiction of Sessions Courts (1) The Yang di-Pertuan Agong may, by order, constitute so many Sessions Courts as he may think fit and shall have power, if he thinks fit, to assign local limits of jurisdiction thereto. (2) Subject to this Act or any other written law, a Sessions Court shall have jurisdiction to hear and determine any civil or criminal cause or matter arising within the local limits of jurisdiction assigned to it under this section, or, if no such local limits have been assigned, arising in any part of Peninsular Malaysia. (3) Each Sessions Court shall be presided over by a Sessions Court Judge appointed by the Yang di-Pertuan Agong on the recommendation of the Chief Judge. S/N 4uqhFJBuKE4eszywwIvw (4) Sessions Courts shall ordinarily be held a such places as the Chief Judge may direct, but should necessity arise they may also be held at any other place within the limits of their jurisdiction. [70] Hence, the 1955 order which was made by the High Commissioner, firstly, is not an order that assigned local limits of jurisdiction to the Kuala Lumpur Sessions Court, and secondly, not the order for assignment of local or territorial jurisdiction by the YDPA as envisaged under s 59(1) of the SCA 1948.” [Emphasis is mine] 38. In that case, the Court of Appeal undertook a detailed examination of section 59 of the SCA, which governs the constitution and territorial jurisdiction of the Sessions Courts. The statutory scheme establishes a clear hierarchy of authority. Under section 59(1), the YDPA may constitute Sessions Courts and may assign local limits of jurisdiction. Section 59(2) then provides, in express terms, that where no such local limits have been assigned, a Sessions Court shall have jurisdiction to hear and determine any cause or matter arising in any part of Peninsular Malaysia. 39. The Court of Appeal held unequivocally that the 1955 Order made by the High Commissioner under the repealed Courts Ordinance 1948 does not constitute a valid assignment of territorial jurisdiction for the purposes of section 59 of the SCA. It was made under a legislative regime that has since been repealed, by an authority that no longer exists, and cannot S/N 4uqhFJBuKE4eszywwIvw satisfy the express statutory requirement that any assignment be made by the YDPA. 40. That finding is fatal to the appellant’s reliance on the 1955 Order. It cannot operate to limit the territorial competence of the Sessions Court under the present statutory framework. 41. The appellant’s further reliance on Practice Direction No. 4 of 1993 fares no better. A Practice Direction is an administrative instrument intended to regulate court administration and case management. It does not have the force of law and cannot confer, restrict, or extinguish jurisdiction which is conferred by statute. It may regulate where proceedings are to be heard, but it cannot operate as a substitute for a lawful assignment of jurisdiction under section 59(1). 42. Indeed, paragraph 2 of the Practice Direction No. 4 of 1993 expressly contemplates that cases partly heard by a Session Court Judge who has been transferred are to be sent to that judge for completion. Far from supporting the appellant’s argument, this provision reinforces the administrative, rather than jurisdictional, nature of the Practice Direction. The relevant portion of the direction provides: S/N 4uqhFJBuKE4eszywwIvw ARAHAN AMALAN (HC) NO. 4 TAHUN 1993 WILAYAH MAHKAMAH SESYEN 1. Y.A.A. Hakim Besar Malaya mengarahkan bahawa mulai daripada 1hb Jun 1993, Wilayah Mahkamah-Mahkamah Sesyen di Semenanjung Malaysia adalah sepertimana yang terdapat dalam Jadual Wilayah Sesyen di Lampiran A. 2. Kes-kes yang telah dibicarakan oleh Hakim Mahkamah Sesyen yang telah berubah wilayahnya hendaklah dihantar kepada beliau untuk diselesaikan. Kes-kes yang belum diselesaikan pula hendaklah dihantar ke Wilayah Mahkamah Sesyen seperti Arahan Amalan ini. [Emphasis is mine] 43. The legal position is therefore clear. In the absence of a valid assignment of local limits of jurisdiction by the YDPA under section 59(1), the default provision in section 59(2) applies. By operation of law, the Sessions Court has jurisdiction to hear and determine any cause or matter arising anywhere in Peninsular Malaysia. 44. It follows that the Sessions Court which delivered judgment on 24 March was acting within jurisdiction. The administrative transfer of the learned Judge does not render the judgment a nullity, nor does it affect the territorial competence of the court itself. S/N 4uqhFJBuKE4eszywwIvw 45. In short, the authority of Public Prosecutor v Abul Hassan (supra) decisively disposes of the appellant’s territorial jurisdiction argument. That challenge must likewise fail. 46. I turn then to the substantive merits of the appeal. The Appellant’s Substantive Contentions The Payment Under the Letter of Intent Was Not a Booking Fee 47. The appellant's principal substantive complaint concerns the characterisation of the RM10,000 payment made pursuant to the LOI. It is submitted that the learned Sessions Court Judge erred in law in treating this payment as a booking fee for the purposes of computing LAD. The appellant submits that this conclusion rests on a misapplication of the decision in PJD Regency (supra) and a failure to appreciate the materially different factual matrix of the present case. 48. The appellant emphasises that, at the material time when the LOI was executed, the development had not yet been launched. The developer had expressly acknowledge that it was neither offering the property for sale nor accepting payment from any potential purchaser. Reliance is placed on the explicit wording of the LOI, which is said to admit of no ambiguity. In particular clause 1 and clause 2(b), which is reproduced as follows: S/N 4uqhFJBuKE4eszywwIvw Clause 1: ... but we understand that Developer has not launched the project (as the approvals by the relevant authorities are still pending in respect of the development order, the layout plan, the building plan, the layout plan and the developers license and advertisement permits collectively “the approvals) and is currently not offering the property for sale and not accepting any payment from any potential purchaser. Clause 2b: To ask from me/us the sum of RM10,000.00 (“the stakeholder sum”) as Stakeholder to be placed in a client account maintained by your firm with a licensed bank located in Kuala Lumpur of your choice pending the launching of the project by the Developer. Provided that if the stakeholder sum is paid by way of cheque, payment shall only be deemed made upon the clearance of the cheque. [Emphasis is mine] 49. On the appellant case, these provisions are determinative. The RM10,000 was not paid to the developer, but to a third-party solicitor, to be held strictly as stakeholder. It was not consideration flowing to the developer under a contract of sale, nor was it intended to secure or reserve any contractual right to purchase. It did not give rise to any binding contractual obligation on the part of the developer. The appellant argues that the contractual relationship between the parties only came into existence upon the execution of the SPA, and that it is therefore that date, and no earlier, which can anchor the commencement of LAD. S/N 4uqhFJBuKE4eszywwIvw 50. In support of this distinction, the appellant relies on the High Court decision in Toh Ai Shi v Talent Team Sdn Bhd & Anor [2022] MLJU 1568, where the Court drew a clear and principled distinction between a booking fee paid to a developer and a stakeholder sum paid to solicitors pending execution of the SPA. The Court held: “[19] The effect of this is that the sum of RM5,000.00 was agreed by both the Appellant and the 1st Respondent as the stakeholder sum and thus the manner to treat the sum is subjected to the provisions of clauses 30(2) and (3) of the SPA. It was never a booking fee, nor was it paid to the 1st Respondent for such purpose. [20] The 1st Respondent also correctly pointed out that there is nothing in the SPA that provides that a booking fee is to be collected prior to the signing of the SPA. [21] These two facts when taken together make it clear that the judgment of Southville City Sdn Bhd (supra) is applicable and relevant to this Appeal. Therefore, it cannot be said that a booking fee has been paid by the Appellant to the 1st Respondent. Rather, the payment of RM5,000 was paid to Messrs. Soh Hayati & Co as stakeholder. It is clearly stated in receipt that the sum of RM5,000.00 was payment of stakeholder sum. [22] In the absence of a booking fee being paid by the Appellant to the 1st Respondent, the judgment of GJH Avenue (supra) is more relevant to the facts of this Appeal. Thus, our present case is factually distinguishable from the case of PJD Regency (supra). I am thus not bound by the decision in PJD Regency (supra), and it is my S/N 4uqhFJBuKE4eszywwIvw judgment that for the purpose of the calculation of the LAD, the time commences from the date of the SPA on 01.10.2015.” [Emphasis is mine] 51. The appellant submits that the reasoning in Toh Ai Shi applies squarely to the present facts. As in that case, the payment was expressly labelled and treated as a stakeholder sum, paid to solicitors, and made at a time when no sale was being offered and no contract existed. The learned Sessions Court Judge is therefore said to have erred in law in extending the principle in PJD Regency (supra) to a situation in which its foundational assumptions, namely, a payment made to the developer in contemplation of an imminent sale, was absent. LAD Should Have Been Calculated on the Net Price After Rebates 52. The appellant further challenges the quantum of LAD awarded. It is submitted that the learned Sessions Court Judge erred by calculating LAD on the gross SPA price, without taking into account the rebates granted to the purchasers. The appellant contends that these rebates were not collateral marketing incentives, but formed an integral part of the contractual bargain, reducing the purchaser’ actual financing obligation. 53. On the appellant’s case, the "purchase price" for the purposes of calculating LAD must reflect the economic reality of the transaction, namely the net price actually payable after rebates. S/N 4uqhFJBuKE4eszywwIvw To calculate LAD on the undiscounted SPA price, it is argued, produces an unjust outcome, compensating purchasers on sums they were never required to pay and thereby conferring an unwarranted windfall. 54. Reliance is placed on the decision of the High Court in Khoo Soon Lee Realty Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah [2020] MLJU 982, where the Court rejected a similar attempt to ignore discounts when assessing the financial consequences arising from a housing transaction. The Court observed that to calculate monetary entitlements on the pre-discounted price would result in manifest unfairness and unjust enrichment: “[78] Notwithstanding that the contracted sum was the price before discounts, the actual sum paid is the one calculated after discounts. [79] In the event, that the Agreement was met with frustration, what would be the amount due for repayment? [80] If the sum is the contracted sum (i.e. before discounts) then the purchaser would make an instant profit without lifting a finger. That would be grossly unfair because the profit earned by the Developer will be insufficient to cover the sum of monies paid. [81] Without denying the responsibility of protecting home buyers, I find such interpretation unconscionable. S/N 4uqhFJBuKE4eszywwIvw [82] Sauce for the goose is sauce for the gander. [83] The rights of parties must be determined by fairness after having met the purpose and objective of the Act. [84] I am, of the considered view that any calculation for late delivery penalty must be on the basis of the discounted price and not the actual price earlier.” [Emphasis is mine] 55. The appellant submits that the same reasoning applies with equal force in the present case. Its purpose is to place the purchaser in the position he or she would have been in, had the contract been performed on time, not to confer a windfall. By calculating LAD on the gross SPA price, the learned Sessions Court Judge is said to have departed from this fundamental principle. 56. For these reasons, the appellant contends that the learned Sessions Court Judge erred in law in the assessment of LAD, and that the awards cannot be allowed to stand. The Respondents’ Substantive Contentions The Payment Made Under the Letter of Intent Constituted a Booking Fee S/N 4uqhFJBuKE4eszywwIvw 57. The respondents submit that the learned Sessions Court Judge was plainly correct in holding that the calculation of LAD commenced on 8 December 2014, being the date on which the initial payment was made pursuant to the LOI. In substance and effect, they contend, that the payment constituted a booking fee paid to secure the purchase of the respective units, notwithstanding that it was initially held by solicitors as stakeholder. 58. The respondents emphasise that it is common ground that the appellant acknowledged the receipt of the payment and thereafter proceeded to execute the SPA with the respondents. The payment was not refunded, repudiated, or treated as abortive. On the contrary, it formed part of a continuum of dealings which culminated in the execution of the statutory SPA. The respondents submit that this sequence of events demonstrates that the payment was accepted as consideration for the purchase, albeit at an early stage of the transaction. 59. The respondents place primary reliance on the decision of the Federal Court in PJD Regency (supra). They submit that the principle articulated in that case is not confined to payments made directly to a developer, but extends to any payment made for the purpose of securing a unit, which the developer ultimately accepts by proceeding with the sale. The focus, they argue, is on substance rather than form. S/N 4uqhFJBuKE4eszywwIvw 60. The respondents further submit that the HDA is a social legislation and must be interpreted purposively in favour of homebuyers. From a commercial and practical standpoint, their funds were committed as early as December 2014. From that date onwards, they were deprived of the use of their money and were awaiting delivery of their homes. To permit the developer to anchor the commencement of LAD to a later SPA date would, they submit, undermine the protective objective of the statutory scheme and reward form over substance. LAD Must Be Calculated on the Purchase Price Stated in the SPA 61. The respondents next address the appellant’s contention that LAD ought to be calculated on a net price after rebates. They strongly support the learned Sessions Court Judge's decision to base the calculation on the full purchase price as expressly stated in the SPA. In their submission, this approach is compelled by both binding authority and settled principle. 62. Once again, reliance is placed on PJD Regency (supra). The respondents submit that the Federal Court was unequivocal in its condemnation of attempts by developers to rely on rebates or discounts in order to diminish their statutory LAD liability. The Court’s reasoning is encapsulated in the following passage: “[124] A rebate is essentially an ex post facto discount. It amounts to refund of monies already paid by the purchaser. The concept behind LAD is to compensate a purchaser for the developer’s S/N 4uqhFJBuKE4eszywwIvw failure to comply with the statutorily prescribed timeline. It would defeat the purpose of the protection guaranteed by the law if a developer is allowed to cut his losses incurred by the LAD by offsetting it using the purchaser’s own money. In our view, such an act amounts to nothing more than an act to manipulate the purchase price for the collateral purpose of having to pay LAD.” [Emphasis is mine] 63. The respondents further rely on the decision of the Court of Appeal in Sri Damansara Sdn Bhd v Voon Kuan Chien & Anor [2020] MLJU 333, which authoritatively considered the meaning of “purchase price” within the statutory SPA. The Court held: “[71] The meaning of “purchase price” in the SPA is as stated in Clause 3 thereof as: “The purchase price of the said Parcel is as stated in Section 7 of Schedule A and shall be payable in the manner hereinafter provided.” The whole landscape of the Schedule H SPA and the HDA as well as the Regulations does not countenance a different category or classification of “purchase price” be it a “discounted purchase price” or a “reduced purchase price” or “actual purchase price.” [72] If the purchase price had been discounted there would have been no need for a credit note to be issued. The issuance of a credit note is such that the “purchase price” remained the same but that the purchaser effectively had settled the balance of the S/N 4uqhFJBuKE4eszywwIvw 10% deposit of RM73,108.00 being made up of RM10,000.00 booking fee and the credit note of RM63,108.00. [84] The developer cannot accept the good in the property having been sold and not the bad in not accepting that the purchase price is as stated in the Schedule to the SPA. Indeed the developer is estopped from contending otherwise.” [Emphasis is mine] 64. In similar vein, the respondents submit that “purchase price” is a defined and immutable term under the statutory SPA. It cannot be altered by side arrangements, rebates, or subsequent conduct. Any attempt to calculate LAD on a basis other than the purchase price expressly stated in the SPA is said to amount to an impermissible contracting out of the statutory regime. 65. In support of this proposition, the respondents cite Chong Eng Neo v. Mammoth Empire Land Sdn Bhd [2021] MLJU 2612, where the Court held: “[38] Any attempt to compute the Liquidated Damages under the Schedule H Sale and Purchase Agreement by using a discounted purchase price which is not the Purchase Price expressly stated in the said agreement is tantamount to contracting out of the statue and is therefore null and void.” [Emphasis is mine] S/N 4uqhFJBuKE4eszywwIvw 66. The respondents accordingly submit that the learned Sessions Court Judge was correct in principle and in law in calculating LAD on the full purchase price stated in the SPA, and that the appellant’s attempt to rely on rebates must be rejected. Analysis and Findings of the Court on Substantive Merits of the Appeals Whether the Payment Under the Letter of Intent Constituted a Booking Fee 67. The central issue arising from the parties’ submissions is whether the RM10,000 paid pursuant to the LOI on 8 December 2014 can properly be characterised as a booking fee for the purposes of calculating LAD. The appellant urges a strict and formal distinction between a stakeholder sum and a booking fee, whereas the respondents invite the Court to adopt a purposive and substantive approach consonant with the protective object of the housing legislation. 68. In resolving this issue, it is necessary to begin with the principles that, the HDA and the regulations made thereunder are well recognised as social legislation enacted for the protection of homebuyers. As the Federal Court made clear in PJD Regency (supra), the interpretation of such legislation is not governed by literalism alone. The Court held: S/N 4uqhFJBuKE4eszywwIvw “[36] From the above, we would summarise the principles on the interpretation of social legislation as follows: (i) Statutory interpretation usually begins with the literal rule. However, and without being too prescriptive, where the provision under construction is ambiguous, the courts will determine the meaning of the provision by resorting to other methods of construction foremost of which is the purposive rule (see the judgment of this court in All Malayan Estates Staff Union v. Rajasegaran & Ors [2006] 4 CLJ 195; [2006] 6 MLJ 97). (ii) The literal rule is automatically displaced by the purposive rule when it concerns the interpretation of the protective language of social legislation. (iii) For the avoidance of doubt, it is important to emphasise that even where a term or provision of a social legislation or a statutory contract enacted thereunder is literally clear or unambiguous, the court no less shoulders the obligation to ensure that the said term or provision is interpreted in a way which ensures maximum protection of the class in whose favour the social legislation was enacted.” [Emphasis is mine] 69. It follows that the characterisation of a payment for LAD purposes is not determined solely by the label affixed to it, nor by the identity of the immediate recipient. The inquiry is a substantive one, directed at the true nature and function of the payment within the statutory and contractual framework governing the transaction. S/N 4uqhFJBuKE4eszywwIvw 70. The appellant places considerable emphasis on the express wording of the LOI, which describes the RM10,000 as a “stakeholder sum” held by solicitors pending the launch of the project. I accept that, as a matter of form, the payment was not made directly to the developer, and that at the time of payment no statutory sale and purchase agreement had yet to be executed. However, these features are not determinative of the issue. 71. What is critical is the purpose for which the payment was made and the manner in which it was subsequently treated. The RM10,000 was paid for the specific purpose of securing the allocation of a unit. It was neither refunded nor rejected. On the contrary, the developer proceeded to execute the statutory SPA with the respondents and retained the benefit of that payment. The payment therefore formed part of a continuum of transactions culminating in binding contracts of sale. In substance, it represented the purchasers’ first financial commitment to the acquisition of their homes. 72. The Federal Court in PJD Regency (supra) made clear that the commencement of LAD is anchored not to formalistic milestones, but to the point at which the purchaser’s money is committed in furtherance of the purchase. The Court stated unequivocally that where vacant possession is delivered late, LAD is to be calculated from the date of payment of the booking fee and not from the date of the statutory agreement. S/N 4uqhFJBuKE4eszywwIvw 73. While PJD Regency (supra) concerned payments made directly to developers, I do not accept that its ratio is so narrowly confined. The Federal Court’s reasoning is grounded in substance upon legislative purpose, not in the mechanics of payment. To limit the principle only to payments made directly to developers would permit easy circumvention of statutory protection through the interposition of stakeholder arrangements, a result plainly inconsistent with the object of the HDA. The following passage from the judgment is instructive: “[47] The recent amendment to the HDR 1989 vide PU(A) 106/2015, to our minds, further cements the notion that the legislative framework has been further tightened to abrogate this practice of booking fees. Regulation 11(2) was amended to even stricter terms: everyone, not just developers, is prohibited from collecting booking fees. The new reg. 11(2) of the HDR 1989 reads: (2) No person including parties acting as stakeholders shall collect any payment by whatever name called except as prescribed by the contract of sale. [48] In our view, the intention of Parliament is unequivocal. From the Hansard in 1966, to the change in the subsidiary legislation up to the amendment to the HDR 1989 in 2015, the written law in force has made it crystal clear that the collection of booking fees is to be absolutely prohibited. [49] Given the clear legislative intent, it follows that we are unable to read the scheduled contracts in these appeals literally. The legislative aim here is that any payment collected must be in accordance with the terms of the statutory contract of sale. Accordingly, to give effect to S/N 4uqhFJBuKE4eszywwIvw this legislative intent and in light of the collective status of the HDA 1966 and HDR 1989 as social legislation, it follows that where this illegal practice of booking fee is afoot, the date of the contract cannot be taken to mean the date printed in the scheduled contracts. Otherwise, this court would be condoning the developers’ attempt in this case to bypass the statutory protections afforded to the purchaser by the legislative scheme put in place.” [Emphasis is mine] 74. The Federal Court’s observations on the amendment to regulation 11(2) of the Housing Development (Control and Licensing) Regulations 1989, which now expressly prohibits the collection of any payment “by whatever name called”, including by parties acting as stakeholders. The Court observed that Parliament’s intention was unequivocal. The collection of booking fees, whether directly or indirectly, was to be eradicated. To allow developers to rely on the printed date of the SPA in such circumstances would be to condone an evasion of the statutory scheme. 75. Viewed purposively, and in light of the social and protective nature of the HDA, I am satisfied that the learned Sessions Court Judge was correct to hold that the RM10,000 payment under the LOI constituted a form of booking fee. The calculation of LAD from 8 December 2014 was therefore consistent with binding Federal Court authority and with the statutory objective of protecting homebuyers against delay. S/N 4uqhFJBuKE4eszywwIvw Whether LAD Should Be Calculated on the Net Price After Rebates 76. The second substantive issue concerns the proper basis for calculating LAD. Whether it should be computed on the full purchase price stated in the SPA, or on a net price after taking into account rebates granted to the purchasers. 77. In my judgment, this issue admits of little doubt. The purchase price in a statutory sale and purchase agreement is not a flexible or negotiable concept. It is a defined term, expressly stipulated in the agreement prescribed under the HDA. The statutory framework does not recognise multiple variants of purchase price, whether described as discounted, net or actual. 78. The Federal Court in PJD Regency (supra) was unequivocal in rejecting attempts by developers to rely on rebates to reduce their LAD liability. The Court characterised rebates as ex post facto discounts and made clear that permitting developers to offset LAD by reference to rebates would amount to manipulating the purchase price for a collateral purpose. Such conduct was rightly condemned as incompatible with the protective intent of the statutory scheme. The Court's reasoning, which this Court adopts, is sound: “[124] A rebate is essentially an ex post facto discount. It amounts to refund of monies already paid by the purchaser. The concept behind LAD is to compensate a purchaser for the developer’s failure to comply with the statutorily prescribed timeline. It would defeat S/N 4uqhFJBuKE4eszywwIvw the purpose of the protection guaranteed by the law if a developer is allowed to cut his losses incurred by the LAD by offsetting it using the purchaser’s own money. In our view, such an act amounts to nothing more than an act to manipulate the purchase price for the collateral purpose of having to pay LAD. [125] The LAD prescribed by law is a statutory remedy afforded to the purchasers. There can therefore be no question of unjust enrichment upon an innocent party’s right to enforce his statutory remedy against the party in breach. This is especially so considering the developer’s own contravention of the law by collecting an initial fee from the purchaser in express contravention of reg. 11(2) of the HDR 1989.” [Emphasis is mine] 79. The reasoning of the Court of Appeal in Sri Damansara (supra) reinforces this conclusion. The Court held that the purchase price is that which is stated in the Schedule to the SPA, and that the issuance of credit notes or rebates does not alter that price. To hold otherwise would be to allow developers to accept the benefits of the statutory contract while disavowing its burdens, a position the law does not permit. The following passage of the judgment is instructive: “[66] Learned counsel for the appellant argued that with the credit note of RM63,108.00 given to the purchaser, there was effectively a discount given to the purchaser such that the purchase price is RM667,972.00 (though claimed as RM668,778.90 before the Tribunal). S/N 4uqhFJBuKE4eszywwIvw [82] How can it benefit the purchaser when the “purchase price” is not as stated but a “reduced”, “discounted” or “rebated” amount using the fictional device of a credit note? [83] Whatever may be the economic and financial benefit to the developer and the purchaser with this seemingly “win-win” device of a credit note, there does not appear to be any cogent reason to deviate from the meaning of “purchase price” for the purpose of calculating the late delivery claim under Clause 25(2) of the SPA based as it is on “10% of the purchase price”. [84] The developer cannot accept the good in the property having been sold and not the bad in not accepting that the purchase price is as stated in the Schedule to the SPA. Indeed the developer is estopped from contending otherwise.” [Emphasis is mine] 80. I am unable to accept the appellant’s submission that calculating LAD on the gross SPA price results in unjust enrichment. LAD is neither restitutionary nor discretionary. It is a statutory and compensatory remedy, designed to sanction delay and to protect purchasers against the consequences of late delivery. Once the purchase price is fixed in the statutory SPA, the statute does not permit its recalibration for LAD purposes by reference to collateral arrangements. 81. Further, as held in Chong Eng Neo (supra), any attempt to compute LAD by reference to a discounted purchase price amounts to an impermissible contracting out of the statutory S/N 4uqhFJBuKE4eszywwIvw regime and is null and void. That principle applies with full force to the present appeal. 82. Accordingly, I find that the learned Sessions Court Judge was correct in law and in principle in calculating LAD on the full purchase price as stated in the SPA, without deduction for rebates. Conclusion 83. The appeals before this Court represent an attempt by the developer to unravel a judgment that is, in all material respects, sound in law and in principle. The learned Sessions Court Judge meticulously applied the binding authorities of the Federal Court, so as to give full effect to the protective mantle of the HDA. 84. The appellant's substantive complaints amount, in substance, to an invitation to re-litigate questions that have already been conclusively settled by the apex court. Its jurisdictional objections, while articulated with some ingenuity, do not disclose defects of such gravity as to undermine the validity of the proceedings or to vitiate a decision that is otherwise just, coherent, and legally correct. S/N 4uqhFJBuKE4eszywwIvw 85. For the reasons set out above, I am satisfied that none of the grounds advanced by the appellant disclose any error of law or principle on the part of the learned Sessions Court Judge. The judgment appealed against reveal no misdirection, no failure to take into account relevant considerations, and no excess or want of jurisdiction warranting appellate intervention. 86. Accordingly, the appeal is dismissed in its entirety. The orders and judgment of the Sessions Court dated 26 November 2024 and 24 March 2025 are hereby affirmed. Cost of this appeal in the sum of RM15,000 are awarded to the respondents, subject to allocatur. Dated the 27th day of February 2026 … SGN … ……………………………………………….. MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA S/N 4uqhFJBuKE4eszywwIvw Counsel for the Appellant : Zaitul Naziah Binti Mohd Soib Messrs Andrew Davis & Co Counsel for the Respondents : Eugene Khoo Yean Shern, Kum Hui Min and Hong Shu Han Messrs Yeoh Shim Siow & Lay Kuan S/N 4uqhFJBuKE4eszywwIvw