Yap Wei Sheng v Sinerjuta Sdn. Bhd (WA-12ANCvC-154-08/2024)

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Jadual Beli Pertama ditandatangani 18 Januari 2016 3. Tarikh Penyerahan Pemilikan Kosong (VP) Sepatutnya 17 Januari 2020 4. Projek Siap Awal (Tarikh Perakuan Siap dan Pematuhan) 23 bulan (19 Mac 2018) 5. Tarikh dijangka Hakmilik Strata diberi 19 Mac 2019 3. Permohonan penyerahan pemilikan kosong tanpa hakmilik strata dan pemindahan hakmilik (Lampiran A dirujuk) DILULUSKAN UNTUK DUA BELAS (12) BULAN DARI TARIKH PENGELUARAN PERAKUAN SIAP DAN PEMATUHAN. 4. Pemaju perlu memaklumkan kelulusan kepada pembeli berdasarkan terma berikut: a) Penyerahan pemilikan kosong petak tersebut kepada pembeli hendaklah disertakan dengan sesalinan perakuan bertulis yang dikeluarkan oleh Pengawal Perumahan; dan b) Pematuhan kepada Klausa 28(2), Klausa 28(3) dan Klausa 28(4) Jadual H, Peraturan-peraturan Pemajuan Perumahan (Kawalan dan Pelesenan) 1989; 5. Tempoh kelulusan selama dua belas (12) bulan yang dipersetujui adalah dari tarikh pengeluaran perakuan siap dan pematuhan (CCC) yang dinyatakan dalam perenggan 3 dibenarkan untuk lanjutan selama sebulan dengan persetujuan oleh Pengarah Ukur. Permohonan lanjut tempoh tersebut perlu dikemukakan sebelum tamat tempoh dua belas (12) bulan yang diluluskan. 6. Pemaju hendaklah memaklumkan kepada pembeli status kemajuan setiap peringkat dalam usaha memperoleh hak milik strata, iaitu :- a) Kelulusan Sijil Formula Unit Syer (SIFUS) dan

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Jadual Petak; dan b) Penyerahan permohonan pengeluaran hakmilik strata kepada Pejabat Tanah dan Galian (PTG) sebaik sahaja perihal tanah selesai. 7. Kegagalan mematuhi syarat-syarat yang dinyatakan di atas akan menyebabkan kelulusan ini terbatal dan pemaju dikehendaki menanggung bayaran pampasan kelewatan penyerahan hakmilikan kosong kepada pembeli. …”. 10. On 20.5.2018, the Plaintiff signed a Key Acceptance Form. The keys to the Parcel were handed over without the strata title to the Parcel being ready to be transferred to the Plaintiff. 11. The Plaintiff was informed that the strata title to the Parcel was ready for transfer via the letter dated 1.9.2022 (‘1.9.2022 Letter’). 12. The Plaintiff alleged that the Defendant failed to comply with Clause 27(1)(b) of the SPA and has breached the SPA by delaying to deliver effective vacant possession to the Plaintiff despite the extension of time (‘EoT’) which was given by JPN. 13. According to the Plaintiff, based on JPN’s letter, he is eligible for liquidated ascertained damages (‘LAD’) which is to be calculated from the date of the SPA until the date the Plaintiff received the 1.9.2022 Letter. 14. The Plaintiff also claimed that the Defendant failed to construct the Parcel in accordance with the approved plan as set out in the SPA (‘Approved Plan’), namely – (a) ceramic tiles finishing for the corridor pathway whereby the Defendant did cement finishing instead; (b) roof on the water tank as no roof was built; (c) painting of the building in grey and white paint where the Defendant painted the building in white and cream paint; and (d) the height of the Parcel shall be 3,350 mm but the Defendant reduced the height to 3,050 mm. 15. The Plaintiff asserted that, based on the letter dated 4.12.2024 from the Architect of the Project, the Approved Plan was amended. These amendments were made without the written consent or approval of the Plaintiff. 16. In 2021, around 100 parcel owners of the Project had filed a claim at the Home Buyer Claims Tribunal (‘Tribunal’). On 21.1.2022, the President of the Tribunal awarded the sum of RM8,849.40 as damages for the claims associated with the Defendant’s failure to construct the parcels according to the Approved Plan (‘Award’). 17. The Defendant was dissatisfied with the Award and had filed an application for Judicial Review on 5.4.2022. The High Court in Kuala Lumpur held that the Award was valid but reduced the amount of damages to RM5,404.95 because the parcel owners failed to substantiate their claim in respect of the height of the parcels. 18. In the SoC, apart from interest and costs, the Plaintiffs sought the following reliefs: (a) a declaration that the JPN’s letter is null and void; (b) a declaration that the effective date for delivery of vacant possession by the Defendant is on 1.9.2022 i.e. the date of the 1.9.2022 Letter that the strata title is ready to be transferred to the Plaintiff; (c) LAD in the sum of RM52,712.32 or any part thereof; and (d) damages for breach of the SPA in the sum of RM8,849.40 or any part thereof. The Legal Principles 19. The Plaintiff cited the oft-quoted cases of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 and Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 for the legal principles that – (a) it is only in plain and obvious cases that recourse should be had to the summary process under O. 18, r. 19(1) RC 2012; (b) this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable - it cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence; and (c) so long as the pleadings disclose some cause of action or raise some question fit to be decided by the judge, the mere fact that the case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out. Grounds of Appeal 20. The Plaintiff submitted that the SCJ has erred in allowing the Defendant’s striking out application as the pleadings disclose a cause of action and the Plaintiff has raised questions fit to be decided by the judge in a full trial. 21. The gist of the Plaintiff’s arguments on why the appeal should be allowed is set out below: (a) the SCJ erred by not considering the Parliament’s intention in enacting the HDA 1966 and its subsidiary legislation. In allowing the Defendant’s striking out application, the SCJ has hindered the Plaintiff’s statutory right to obtain LAD and damages for the Parcel, which was not built in accordance with the Approved Plan. The SCJ’s decision sets a dangerous precedent as any developer can disregard the stringent requirement of providing an effective delivery of vacant possession without repercussions. This undermines the Parliament’s intention of safeguarding the interests of purchasers, rendering the relevant legislation to be nugatory and illusory; (b) the Defendant is not entitled to rely on the principle of estoppel because the Defendant does not come with clean hands by failing to deliver an effective vacant possession according to the SPA and to build the Parcel as per the Approved Plan; and (c) the SCJ erred in judgment as the Plaintiff’s pleadings disclose a cause of action which raises points of law and is not obviously unsustainable. 22. In response, the Defendant submitted that there are no merits in the grounds of appeal for the following reasons: (a) although the SPA is a statutory contract, it cannot be assumed that there would automatically be an inequality of bargaining power merely because the contract was made between a purchaser and a developer. The generic principles of statutory interpretation as expressed in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeals [2021] 2 CLJ 441 and S.E.A. Housing Corporation Sdn Bhd v Lee Poh Choo [1982] CLJ (Rep) 305 have no bearing to the instant suit because it was never the Plaintiff’s case that there was payment of deposit or booking fee made to the Defendant; (b) the principle of estoppel operates against the Plaintiff since he is dishonest when he relied on facts relating to the Tribunal and Judicial Review proceedings whereas he was never a part of these proceedings; (c) there was no late delivery of vacant possession to the Plaintiff. Vacant possession was delivered to the Plaintiff together with the Certificate of Completion and Compliance in accordance with Clause 28 of the SPA and much earlier than the required period of 48 months from the date of the SPA; (d) the Plaintiff had ample opportunity to object to the delivery of vacant possession either on the date of actual vacant possession i.e. on 20.5.2018, or the date of the expiry of the EoT granted i.e. 20.3.2019, but instead he took 1,857 days (5 years 30 days) to raise the same. The Plaintiff is estopped from claiming LAD as he has admitted to accepting the vacant possession unequivocally and has enjoyed the use of the Parcel since 20.5.2018; (e) the Plaintiff sought for a declaration that JPN’s letter is null and void. However, the issue on the validity of the EoT is a question of public law which can only be challenged vide judicial review proceedings, which was never filed by the Plaintiff. The time for the Plaintiff to mount a challenge of by way of judicial review proceedings has expired. The Plaintiff has commenced the wrong mode of action and his claims are a clear abuse of the process of the court, scandalous, frivolous and/ or vexatious; and (f) the Plaintiff has failed to plead any loss or damage suffered as a result of the alleged late delivery of strata title. It is not possible for the Plaintiff to suffer any losses because the express condition of the title shows that the moratorium imposed prohibits the Plaintiff from selling the Parcel for a period of 10 years. Findings of the Court 23. After having considered the Record of Appeal and submissions by the parties, including the SoC which shows that the Plaintiff's cause of action is essentially for breach of the SPA, it is my finding that the issue of the wrong mode of commencement of the proceedings does not arise at all. 24. The Plaintiff averred in subparagraph 12(a) of his Affidavit in Reply (‘AIR’) that he did not file any judicial review application to challenge the EoT as he is not challenging the decision made by the Deputy Controller of Housing and/ or the Ministry of Housing. 25. I also held the view that, premised on the Plaintiff’s pleadings in paragraphs 9 - 21 of the SoC and his affirmations in subparagraphs 12(b), (c) and (d) of his AIR, the Plaintiff has a cause of action that cannot be said to be obviously unsustainable in that the delivery of vacant possession was purportedly not in compliance with the SPA as there was no strata title ready to be transferred to the Plaintiff at the material time. 26. According to Clause 25(1) of the SPA, vacant possession of the Parcel shall be delivered to the Plaintiff in the manner stipulated in Clause 27. One of the requirements under Clause 27(1) is as provided in paragraph (b), namely, for the separate strata title relating to the Parcel has been issued by the Appropriate Authority. Paragraph (d) ends with the word “and”, suggesting that paragraphs (a) to (e) are to be read cumulatively. 27. The Defendant has never denied the existence of the 1.9.2022 Letter. Hence, there is no dispute between the parties that the strata title was transferred by the Defendant to the Plaintiff only on 1.9.2022. 28. The Plaintiff contended that the Defendant had breached the terms of the 1.9.2022 Letter by failing to update the Plaintiff regarding the status of strata title. It was also contended that there is late delivery of effective vacant possession as per the SPA and the 1.9.2022 Letter. 29. Hence, the failure to comply with the terms in the 1.9.2022 Letter caused the EoT to be void pursuant to its own terms and the Plaintiff has the right to claim LAD due to the late delivery of effective vacant possession. 30. In these circumstances, the true import of paragraph 7 in the 1.9.2022 Letter which states that “Kegagalan mematuhi syarat-syarat yang dinyatakan di atas akan menyebabkan kelulusan ini terbatal dan pemaju dikehendaki menanggung bayaran pampasan kelewatan penyerahan hakmilikan kosong kepada pembeli.” is a question which is fit to be decided by the SCJ. 31. In addition, the Plaintiff has pleaded another purported breach of the SPA in that there is a failure to construct the Parcel in accordance with the Approved Plan (see paragraphs 30 - 32 of the SoC). Similarly, this is a question befitting for deliberation in a full trial rather than to be summarily struck out. Conclusion 32. Based on the abovesaid considerations, I found that the SCJ had erred in allowing the Respondent’s application to strike out the Writ and SoC. The Appellant’s appeal was therefore allowed with costs of RM5,000.00, subject to allocatur. The case was remitted to the Sessions Court for trial before another SCJ. Dated: 20 August 2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Solicitors for the Appellant: Badrina Ibtisam Binti Badrul Hisham Messrs. Rodney & Co. Solicitors for the Respondent: Loh Suk Hwa Messrs. Joshua Aaron Keet