Leong Keng Chiang LNS - 2021 - 1 - 659

[2021] 1 LNS 659 Legal Network Series
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY OF KUALA LUMPUR
[SUIT NO. WA-22NCvC-460-08/2020]
BETWEEN
LEONG KENG CHIANG … PLAINTIFF
AND
PREMA BONANZA SDN BHD … DEFENDANT
GROUNDS OF DECISION
Introduction
[1] The Plaintiff (“P”) filed an application vide Enclosure 5 (“Enc

5”) for summary judgment against the Defendant (“D”). Enc 5 is
made under Order 14 of the Rules of Court 2012 (“ROC”).
[2] D in turn filed an application vide Enclosure 26 (“Enc 26”) to

strike out P’s Writ of Summons and Statement of Claim (“SOC”). Enc
26 is made under Order 18 rule 19(1 )(b), (c) and (d) of the ROC.
[3] I dealt with both Enc 5 and Enc 26 together. I dismissed Enc 26
and did not allow the striking out by D. Instead I allowed Enc 5 and
entered summary judgment against D. These are the grounds of my
decision.
Background
[4] P entered into a sale and purchase agreement dated 9.7.2012

(“SPA”) with D for the purchase of a condominium unit Parcel No. A-
1
05-F (“Property”) in a housing project known as Sentral Residences

(“Housing Project”). D is the developer of the Housing Project. The
purchase price of the Property is RM1,535,000.
[5] The SPA signed between the parties was in the prescribed
statutory form under Schedule H (“Schedule H”) of the Housing
Development (Control and Licensing) Regulations 1989 (“HDR”).
The Schedule H contract of sale provides that vacant possession of the
Property and the common facilities shall be delivered within 36
months from the date of the SPA.
[6] D, however, had obtained an extension of time (“EOT”) for the

completion period of the Housing Project from 36 months to 54
months (“EOT Period”). The EOT was obtained on 16.12.2010, i.e.
before the SPA was entered into. As such, the SPA signed between the
parties reflected the 54 months EOT Period in clauses 25 and 27
thereof.
[7] On 25.1.2017, D issued the notice of delivery of vacant

possession to P. By virtue of clause 26(3) of the SPA, P is deemed to
have taken delivery of vacant possession of the Property on 8.2.2017.
Namely 14 days after the said notice.
Plaintiffs case
[8] P avers that the amendment of the time period for delivery of
vacant possession from 36 months to 54 months in the SPA is void.
By reason that such deviation of the prescribed statutory form sale
and purchase agreement in Schedule H contravenes the Housing
Development (Control and Licensing) Act 1966 (“HDA”) and the
HDR. P relies on the recent decision of the Federal Court in Ang Ming
Lee & Ors v. Menteri Kesejahteraan Bandar; Perumahan dan
2
Kerajaan Tempatan & Anor and other appeals [2020] 1 CLJ 162;
[2020] 1 MLJ 281; [2019] 6 MLRA 494 (“Ang Ming Lee”).
[9] Premised on the completion period of 36 months as stipulated in

the Schedule H contract of sale, P avers that vacant possession of the
Property was delivered late. Vacant possession ought to have been
delivered on or before 8.7.2015 (i.e. 36 months from the date of the
SPA). Thus, there was a delay of 550 days (from 9.7.2015 to
8.2.2017).
[10] P avers that D is liable to pay liquidated ascertained damages

(“LAD”) for late delivery of vacant possession of the Property.
(a) Pursuant to clause 25(2) of Schedule H, the LAD for late

delivery of vacant possession shall be calculated at the rate
of 10% per annum on the purchase price, from the due date
for delivery of vacant possession until the date P takes
vacant possession.
(b) Pursuant to clause 27(2) of Schedule H, the LAD for late

completion of the common facilities shall be calculated at
the rate of 10% per annum on the last 20% of the purchase
price.
[11] The LAD in the instant case was calculated by P as follows:
[12] In the SOC, P prayed for the following:
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(a) a declaration that any extension of time granted (from 36

months to 54 months) to D pursuant to regulation 11(3) of
the HDR for delivery of vacant possession of the Property,
and to complete the common facilities, is null and void
based on Ang Ming Lee;
(b) a declaration that D shall be bound to comply with

Schedule H to deliver vacant possession of the Property to
P, and to complete the common facilities, within a time
period of 36 months from the date of the SPA;
(c) an order that D pays to P the LAD for late delivery of

vacant possession of the Property and completion of the
common facilities in the sum of RM277,561.64.
Defendant’s case
[13] In respect of Enc 5, D submits that it has a meritorious defence

and that there are serious issues to be tried. The following arguments
were advanced by D:
(a) P failed to satisfy the parole evidence rule;
(b) P runs foul of limitation period;
(c) P has initiated the claim with the wrong mode;
(d) P has failed to particularise damages;
(e) P is guilty of delay;
(f) P has knowledge and consented to the SPA;
(g) P has no locus standi to initiate this action;
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(h) P, by accepting the settlement sums, is estopped from

filing this claim; and
(i) P is attempting, in its claim of inflated LAD against D, to

unjustly enrich himself.
[14] In respect of Enc 26, D submits that P’s suit is (i) frivolous and
vexatious, and (ii) an abuse of the court’s process. D advanced similar
arguments as mentioned above.
Decision
[15] lam satisfied that this is not a plain and obvious case for striking
out. I therefore dismissed Enc 26 and did not allow the striking out by
D. In my view, the SOC is not obviously unsustainable. On the
contrary, I find that the SOC discloses a reasonable cause of action.
[16] It is also my finding that D has failed to raise any triable issue. I
therefore allowed Enc 5 for summary judgment to be entered against
D. My reasons are as follows.
Completion period in the SPA cannot be varied
[17] The SPA signed between the parties was in the prescribed
Schedule H contract of sale. As the SPA is regulated by statute, D
cannot deviate or add or vary any of the terms in the said statutory
contract. I am guided by the following authorities.
[18] In Sentul Raya Sdn Bhd v. Hariram Jayaram & Ors and Other
Appeals [2008] 4 CLJ 618 at 626, the Court of Appeal said:
“[8] ... The contract which has fallen for construction in the
present cases is a special contract It is prescribed and
regulated by statute. While parties in normal cases of contract
5
have freedom to make provisions between themselves, a housing

developer does not enjoy such freedom. Hence, parties to a
contract in Form H cannot contract out of the scheduled form.
Terms more onerous to a purchaser may not be imposed. So too,
terms imposing additional obligations on the part of a purchaser
may not be included in the statutory form of contract. “
[19] In Veronica Lee Ha Ling & Ors v. Maxisegar Sdn Bhd [2009] 6
CLJ 232 at 236, the Federal Court said:
“[3] Now, cl. 23 is part of a statute based contract In this

country, the relationship between a house-buyer and a licensed
developer is governed by the Housing Developers legislation. Its
object is to protect house-buyers against developers. A
developer must execute the agreement set out in the schedule
to the relevant subsidiary legislation. He cannot add other
clauses in it. “
[20] Finally there is the recent case of Ang Ming Lee where the
Federal Court said at page 182-183, CLJ:
“[40] The Act being a social legislation designed to protect the

house buyers, the interests of the purchasers shall be the
paramount consideration against the developer. Parliament has
entrusted the Minister to safeguard the interests of the
purchasers and the Minister has prescribed the terms and
conditions of the contract of sale as per Schedule H. “
[21] In light of the aforesaid authorities, my opinion is that the SPA

must follow the prescribed form in Schedule H. Which provides a
completion period of 36 months. D is not permitted to change or vary
the completion period from 36 months to 54 months.
6
[22] To my mind, any amendments or variations made to the SPA

which is inconsistent or contradicts the terms in the Schedule H
contract of sale is of no legal effect and does not bind P. It follows
that D is required to deliver vacant possession of the Property within
36 months (not 54 months) in accordance with Schedule H.
[23] D avers that the EOT was granted by the Controller of Housing
(“Controller”) which allows a completion period of 54 months. The
EOT however, in my view, is null and void. That must be so as Ang
Ming Lee has held that regulation 11 (3) of the HDR, pursuant to
which the EOT was granted, is ultra vires the HDA. And that the
Controller has no power to waive or modify any provision in the
Schedule H contract of sale. The Federal Court said at page 188, CLJ:
“[60] On the above analysis, we hold that the Controller has no

power to waive or modify any provision in the Schedule H
Contract of Sale because s. 24 of the Act does not confer power
on the Minister to make regulations for the purpose of
delegating the power to waive or modify the Schedule H
Contract of Sale to the Controller. And it is not open to us to
read into the section an implied power enablin g the Minister to
do so. We consequently hold that regulation 11(3) of the
Regulations, conferring power on the Controller to waive and
modify the terms and conditions of the contract of sale is ultra
vires the Act’’
[24] D sought to distinguish Ang Ming Lee from the present case in
that:
(a) The extension of time in Ang Ming Lee was obtained after
the signing of the sale and purchase agreement. Whereas
the EOT in the present case was obtained before the
signing of the SPA.
7
(b) The sale and purchase agreements entered into by the

purchasers in Ang Ming Lee stipulated 36 months for
delivery of vacant possession. Whereas the SPA entered
into by P stipulated 54 months for delivery of vacant
possession.
(c) The EOT granted in the present case is reflected in clauses

25 and 27 of the SPA.
(d) The plaintiffs in Ang Ming Lee brought their action via a
judicial review. Whereas P in the present case initiated the
suit via a writ.
(e) The EOT was obtained not through Regulation 12 (Appeal

to the Minister) of the HDR.
[25] D contends that P has knowledge of the 54 months EOT Period

and consented to the same. As such, P is bound by the contractual
terms that he has signed. P, on the other hand, avers that he has no
knowledge of the EOT as D did not extend a copy of the EOT to him.
I note however that the 54 months EOT Period was reflected in the
SPA signed by P.
[26] In any event, I do not think it makes a difference that the EOT
was obtained before the signing of the SPA. Or that P ought to have
knowledge of the 54 months EOT Period since it was reflected in the
SPA. The outcome remains the same. Namely the EOT is unlawful.
One cannot waive or consent to illegality.
[27] D complains that P only raised objections to the 54 months EOT

Period after Ang Ming Lee, to unjustly enrich himself. I acknowledge
that P’s suit is triggered by Ang Ming Lee. But I think P is well within
his legal rights in invoking Ang Ming Lee to advance his cause. After
all, the Federal Court went to great lengths to explain that the HDA is
8
a social legislation designed to protect house buyers. And that the

interest of house buyers must be the paramount consideration against
housing developers. P here is one such house buyer who is to be
protected.
Plaintiff did not initiate action with the wrong mode
[28] D contends that P’s action ought to be struck out as it was filed
using the wrong mode. Reason being that P is challenging the validity
of the EOT, which is a decision granted by the Minister and therefore
within the sphere of public law. Thus, P’s action must be by way of
judicial review, and not a writ action. In which case, P has failed to
meet the 3 months’ deadline for filing a judicial review application.
(See Order 53 of the ROC).
[29] I disagree. By reason of Ang Ming Lee, the EOT is illegal and
void ab initio. As such, there is no decision to challenge. The fact that
P did not quash the EOT by way of a judicial review does not make
the EOT legal and valid. The effect of the EOT being void is that
there is no decision in the first place. Thus, there is nothing to
challenge.
[30] I find support in the Court of Appeal case of Chan Kwai Chun v.
Lembaga Kelayakan [2002] 3 CLJ 231 at 239-240 which said:
“Decision based on examination results as pronounced on 13

September 2001 which is void is not a decision. In this regard,
it is pertinent to refer to the article by Michael Akehurst in
Public Law (1982) at p. 619 which states:
A void decision is, strictly speaking , not a decision at all

and therefore does not need to be revoked. If a public
authority has taken a decision which is void, it is entitled
to ignore that decision and to consider the matter again as
9
if the original decision had never existed. In this cont ext, a

decision is regarded as void if it is ultra vires. ’’
[31] The above dictum was approved and applied in Tenaga Nasional
Bhd v. Bandar Nusajaya Development Sdn Bhd [2016] 8 CLJ 163 at
181 where the Federal Court said:
“[75] It was held by the Court of Appeal in Chan Kwai Chun v.

Lembaga Kelayakan [2002] 3 CLJ 231; [2002] 3 MLJ 550 that a
decision is regarded as void if it is ultra vires. A void decision
is no decision at all and ought to be disregarded.
[76] Applying the above principle, the State Authority had

acted without jurisdiction when it made the second decision. The
second decision is a nullity. It can have no legal effect.
Consequently, the full implementation of the second decision by
the appellant was therefore void.
[82] In view of the above, unlike court orders, administrative

decisions can be challenged in a collateral proceeding. The
above authority also determined that an administrative order
which is void “could be disobeyed with impunity without the
need for proceedings to set it aside”.”
[32] My view is that the EOT, being a void administrative decision,

is no decision at all. Thus, the EOT can be disregarded without the
need for judicial review proceedings to set it aside.
Declarations are within the ambit of Order 14 of the ROC
[33] D argues that the court does not have the power to grant the
declarations sought by P in a summary judgment application. D
submits that since Order 81 of the ROC does not include declaratory
decree among the relief that may be granted summarily, P’s
10
application under Order 14 of the ROC vide Enc 5 should fail.

Alternatively, D submits that the relief sought by P is akin to a claim
for rescission of the SPA coupled with a claim for damages. In which
case, the proper recourse should be by way of Order 81, and not Order
14, of the ROC.
[34] D’s submission is misconceived. My opinion is that the court is

empowered to grant the declarations sought by P in the Order 14
application vide Enc 5. I rely on the Supreme Court case of Avel
Consultants Sdn Bhd & Anor v. Mohd Zain Yusof& Ors [1985] CLJ
(Rep) 37; [1985] 2 MLJ 209, where a declaration was allowed on an
Order 14 application. In Avel Consultants (supra), the plaintiffs sued
the defendants for breach of fiduciary duties and prayed for the
following declaration:
“the defendants be declared that they were trustees for Avel and
Emlec in respect of all professional charges received by them
and/or their firm Perunding AJZ from 30 November 1983 up to 1
March 1984”.
[35] The plaintiffs in that case applied for summary judgment. The
court below refused the application. In allowing the appeal, the
Supreme Court said at page 211, MLJ:
“... the case under appeal deals with a claim for account and
unliquidated damages. It is his submission, therefore, that once
a breach of fiduciary duties is proved and there is no defence to
this issue, the Court under O. 14 application should give the
declaratory judgment asked for and leave the question of
assessment of damages and rendering of accounts t o be dealt
with by the Registrar.
We are of the opinion that this submission is well -founded. ...
11
The order which emanates from this judgment is that:
(a) judgment is entered in favour of the appellants on their

claim that the respondents had acted in br each of their
fiduciary duties;”
[36] Furthermore, P is not claiming for a rescission of the SPA.

Instead P is claiming for LAD arising from late delivery of vacant
possession of the Property. Thus, Order 81 of the ROC is not
applicable to the present case. If Order 81 was applicable, Order 14
would not apply. Order 14 rule 1(3) of the ROC states that Order 14
does not apply to an action to which Order 81 applies.
[37] Under Order 81 of the ROC, summary judgment may be applied

for where the claim is for:- (i) specific performance of an agreement;
(ii) rescission of such an agreement; or (iii) the forfeiture or return of
any deposit made under such an agreement. In the present case, P’s
claim does not come within the ambit of Order 81. Vide Enc 5, P is
applying for summary judgment under Order 14, not Order 81, of the
ROC.
Settlement Letters
[38] D contends that P has waived his rights to claim for LAD, and is
estopped from filing the present action for LAD, by reason of a
settlement sum paid to P. D refers to two letters signed by P.
[39] The first is a letter dated 7.3.2017 (“1 st Settlement Letter”),

whereby P accepted a sum of RM 13,036.99 towards LAD. The 1 st
Settlement Letter reads:
“Payment for Liquidated and Ascertained Damages
12
We refer to the above matter.
We are pleased to enclose herewith our CIMB Bank Berhad

cheque no. 000363 dated 03 March 2017 for the sum of
RM13,036.99 being payment towards Liquidated Ascertained
Damages (“LAD”) in respect of the above Property as
calculated in the attachment.
By accepting the cheque, you hereby agree that the payment of

LAD amounting to RM13,036.99 shall represent the full and
final payment of the LAD due and payable to you pursuant to
clause 25(2) of the SPA and you shall not be entitled to make
any further claims, demand and/or institute any legal suit
orproceedings whatsoever in respect of the same against Prema
Bonanza Sdn Bhd.
Payment for Liquidated and Ascertained Damages
I/We Leong Keng Chiang (NRIC No: 790519-14-5249) hereby

acknowledge receipt of the CIMB Bank Berhad cheque no.
000363 dated 03 March 2017 for the sum of RM13,036.00 as full
and final payment of the LAD pursuant to Clause 25(2) of the
SPA.
Upon acceptance of the above payment, i/we hereby agree and

declare that l/we shall have no further claims, demand and/or
shall not institute any legal suit or proceeding in any court or
tribunal, whatsoever in respect of the LAD against Prema
Bonanza Sdn Bhd.”
[40] The second is a letter dated 12.5.2017 (“2 nd Settlement

Letter”), whereby P accepted a sum of RM76,759.19. The 2 nd
Settlement Letter reads:
13
“Settlement in respect of All Grievances relating to Unit No. A-

05-F
The above matter refers.
We refer to the discussion between you and our representative

held on 10 April 2017 wherein you have agreed to accept the
sum of RM76,759.19 as full and final settlement strictly on
goodwill basis in respect of all grievances lodged to us in
relation to the said Unit, save for claims in relation to defect
liability pursuant to clause 29 of the SPA.
In consideration of the above goodwill payment, the Purchaser

hereby releases and discharge Prema Bonanza Sdn Bhd
(“Developer”) from all liabilities in relation to the grievances
and further agree and declare that the Purchaser shall have no
further claims, demand whatsoever and shall not institute any
legal suit or proceeding against the Developer in any civil court
or tribunal or make any complaint to the Ministry of Urban
Wellbeing, Housing and Local Government.
Acknowledgement and Acceptance
I, Leong Keng Chiang (NRIC No. 790519 -14-5249) hereby

understand and unconditionally agree to the content of the
above letter and hereby disclaim any further clai ms, demand
and/or shall not institute any legal suit or proceeding
whatsoever in any court or tribunal in respect of the claims
against Prema Bonanza Sdn Bhd. However, our rights under
clause 29 of the Sale and Purchase Agreement dated 9 July 2012
shall remain,”
1 st Settlement Letter
14
[41] Based on the 1 st Settlement Letter, D contends that it has fully

paid to P the LAD for late delivery of vacant possession of the
Property in accordance with the terms of the SPA. I do not find that to
be so.
[42] It is undisputed that this first settlement sum was computed

based on a completion period of 54 months (not 36 months as required
by Schedule H). The total number of days of delay used in the
calculation is 31 days. This is borne out by the attachment to the 1 st
Settlement Letter. Which shows that this settlement sum was derived
as follows:
(a) SPA date: 9.7.2012
(b) Completion period 54 months: 8.1.2017
(c) Notice of vacant possession: 25.1.2017
(d) Deemed vacant possession (+14 days): 8.2.2017
(e) Number of days delayed (31 days):
9.1.2017 to
8.2.2017
(f) LAD paid for 31 days delay: RM13,036.99
[43] It is evident that the 1 st Settlement Letter is confined to LAD

calculated from the EOT Period of 54 months onwards. P’s claim for
LAD, however, is premised on a completion period of 36 months. P is
claiming for unpaid LAD in respect of the period between the 36 th
month to the 54 th month of the SPA, resulting in 550 days (i.e.
9.7.2015 to 8.2.2017). In short, D did not pay the full LAD amount
which P is entitled to receive under the law.
15
2 nd Settlement Letter
[44] P took objection to the fact that the 2 nd Settlement Letter was
not produced prior to the parties’ filing of the written submissions. It
was exhibited in affidavit evidence after parties had filed their
respective written submissions into Court, and without leave of the
Court.
[45] As directed, parties filed their respective written submissions on

26.10.2020. Thereafter, D’s solicitors went on to file a further
affidavit affirmed on 27.10.2020 (“Further Affidavit”). Which
exhibited the 2 nd Settlement Letter. P argued that the 2 nd Settlement
Letter therefore ought to be disregarded. In support of his objection, P
cited the following authorities.
[46] In Lum Choon Realty Sdn Bhd v. Pewira Habib Bank Malaysia
Bhd [2003] 4 MLJ 409 at 422, the Court of Appeal said:
“We were wondering how the respondent was allowed to file and
use that affidavit It is to be noted that the proceedings of this
application are by way of affidavit evidence. As such in our view
when the parties begin their submission the evidence by way of
affidavits is deemed to be closed and the parties are only
allowed to submit on the evidence as found in the various
affidavits. ...It is obvious to us that the facts and figures were
available to the respondents before this application was made. It
is a matter of surprise to us when the learned judge allowed the
affidavit affirmed on 16 October 1995 despite the objection by
the appellant. In our view, the admission of that affidavit is
highly irregular especially taking into consideration that it was
done after the completion of the appellant’s submission. ”
16
[47] In Sagujuta (Sabah) Sdn Bhd v. Trane Malaysia Sales &

Services Sdn Bhd [2014] 5 MLJ 535 at 545-546, the Court of Appeal
said:
“[33] In the present case, the appellant had not applied for
leave or abridgement of time to file the said affidavit in reply.
Furthermore, the said further affidavit in reply in question was
served after the respondent had served on the appellant’s
solicitors their submissions and bundle of authorities in
respect of the summary judgment application. ...
[34] The learned High Court judge in the present case, had
correctly exercised his discretion in allowing the preliminary
objection raised by the respondent and consequently rejecting
the said further affidavit filed by the appellant. There is no
justification for us to interfere. “
[48] I acknowledge that the Further Affidavit was filed by D after P

had filed his written submission. However, in the interest of justice
and to enable D to fully ventilate its case, I permitted the Further
Affidavit to be used. Moreover, no prejudice was suffered by P. First,
the 2 nd Settlement Letter was pleaded in the Statement of Defence and
referred to in an earlier affidavit filed by D on 28.9.2020 in
opposition to Enc 5. D’s counsel explained that the 2 nd Settlement
Letter was inadvertently omitted from that earlier affidavit. So this is
not a case where P was caught by surprise. Second, P had the
opportunity to respond to the Further Affidavit. P in turn filed another
affidavit in reply affirmed on 30.10.2020. In the circumstances, P was
able to and did deal with the 2 nd Settlement Letter.
[49] In his affidavit, P explained that the 2 nd Settlement Letter

pertains to LAD calculated from the date the booking fee was paid to
the date of the SPA. P exhibited a copy of the booking form (Offer to
Purchase) dated 18.10.2011. This was not disputed by D.
17
[50] It is telling that the 2 nd Settlement Letter merely refers to “all

grievances” in broad terms. Notably absent is any mention or
calculation of LAD. This stands in stark contrast to the 1 st Settlement
Letter, which is expressly described as payment towards LAD and
attaches a calculation of the LAD. It is also noteworthy that the 2 nd
Settlement Letter pre-dates Ang Ming Lee, which decision was
delivered on 26.11.2019. This supports P’s averment that the period of
delay from the 36 th month to the 54 th month of the SPA, did not factor
into the 2 nd Settlement Letter.
[51] ! am satisfied that there is no duplicity of LAD claim by P. D

has never denied that it did not pay P any LAD in respect of the 54
months EOT Period. Accordingly, this is not a situation where P will
receive double compensation of LAD pertaining to the same period.
Plaintiff is not estopped from claiming LAD
[52] It is worth reiterating that the SPA signed between the parties is
a statutory contract regulated by the HDA and the HDR. No deviation
from Schedule H is permitted by law. Its object is to protect house
buyers. Thus, P (as a house buyer) should not be deprived of his
statutory entitlement to the full LAD amount under the law. I find
support in the following authorities.
[53] In Encony Development Sdn Bhd v. Robert Geoffrey Gooch &

Anor [2016] 1 CLJ 893, the Court of Appeal explained that the
provisions in the Schedule H contract of sale are statutory provisions
which have been imposed by law upon the parties. The Court said at
page 906:
“[41] The SPA between the respondents and the appellant, who
is a housing developer, is governed by a statutory form of
contract as prescribed in sch. H of the Housing Development
18
(Control and Licensing) Regulations 1989 [PU(A) 58/1989] ('the

regulations'). As such, the provisions in the SPA are not merely
contractual, but are in effect statutory provisions, as they are
actually provisions of sch. H of the Regulations, which have
been imposed bylaw upon the parties.”
[54] In Oxbridge Height Sdn Bhd v. Abdul Razak Mohd Yusof and
Anor [2015] 2 CLJ 252, the Court of Appeal agreed that the LAD
provision in the SPA cannot be contracted out of. The Court said at
page 264:
“[25] ...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. ...
[26] As a general statement of the position of the law in the

context of housing development legislation which exists to
protect the interests of purchasers of housing accommodation
and the public at large, the proposition could be agreed.”
[55] In the present case, the 54 months completion period (as

stipulated in the SPA) was in contravention of the 36 months’ timeline
(as provided in Schedule H). P is statutorily entitled to claim the full
LAD amount based on the completion period of 36 months as
provided in Schedule H. It is evident from the attachment to the 1 st
Settlement Letter that the settlement sum paid by D to P was for a
period of delay (of 31 days) calculated based on the 54 months EOT
Period. This is in violation of Schedule H which provides a formula
for calculation based on the prescribed timeline of 36 months. That D
has not paid P any LAD for the period of delay from the 36 th month to
the 54 th month of the SPA has never been denied by D.
19
[56] In Hedgeford Sdn Bhd v. Sri Gananatha a/I Sivanathan [2018] 1

LNS 1497, the High Court made the following observation with regard
to a settlement sum offered by a developer which is less than what the
purchasers were entitled to under the law:
“[134] This case demonstrates why the position is strict and

rigid when it comes to the rights of purchasers under a
statutory contract. Here is a case where there was delay in
delivery of vacant possession of the units (clause 25 of the SPA)
and in the delivery of common facilities (clause 21 of the SPA)
and the plaintiff took it upon themselves, apparently for the sake
of convenience, to prepare the LAD settlement letters, which
states the amount that the purchaser is supposed to be entitled
to under the SPA (which has been proven and acknowledged to
be incorrect as it did not factor in the LAD under clause 27
SPA) without stating how the figure was derived and purporting
to state that the amount represents the “amount relates to
monies due to me/us pursuant to the terms of the sale and
purchase agreement...” when in fact the amount due to the
purchasers are very much more than what is stated in the LAD
settlement letters, which PW1 and PW4 were ignorant of at the
material time.
[135] In those circumstances, even though there was no duress of

any sort, and even though the purchasers (D2 to D4) had ample
time and could have, but did not check with anyone a bout their
entitlement under clause 21 of the SPAs, it cannot be inferred
or assumed, merely because they signed on the relevant LAD
settlement letters or banked in the cashier’s orders, that they
had intentionally agreed to forgo their entitlement to LAD
under clause 21 of the SPAs.”
20
[57] My view is that any purported settlement, which has the effect
of diminishing or taking away the statutory rights of a house buyer, is
of no legal effect. A housing developer cannot rely on such waiver or
estoppel to preclude a house buyer from asserting the full extent of
his rights as provided for under the HAD and the HDR. There is no
estoppel against statute.
[58] In Hotel Ambassador (M) Sdn Bhd v. Seapower (M) Sdn Bhd
[1991] 1 CLJ (Rep) 174 at 179, the Supreme Court said:
“On the question of issue estoppel we agree with the learned

judge that on the facts of this case the appellants cannot invoke
the doctrine of issue estoppel. There can be no estoppel as
against statutory provisions. “
[59] In Powernet Industries Sdn Bhd v. Golden Wheel Credit Sdn Bhd
[2020] 10 CLJ 374 at 392-395, the Court of Appeal, dealing with the
Moneylenders Act 1951, said:
“[68] The jurisprudence on this area of law is quite settled and

there can be no estoppel against statutory provisions. ...
[73] Thus, as a general rule, there can be no estoppel against a

statutory provision except perhaps where it involves procedural
provisions (Sia Siew Hong (supra)) or does not involve public
interest or social policy. Thus, estoppel cannot operate in
respect of a statute which is intended to protect a class of
persons, namely borrowers who borrow from licensed
moneylenders.
21
[80] In our view, if waiver is allowed, then it will defeat the

operation of s. 16 of the Act or any other provision of the Act
and this will open the proverbial floodgates for a court
sanctioned breach of the Act. It is not far-fetched to say that
disingenuous and unscrupulous moneylenders will be able to
prevail upon desperate borrowers to put it in writing that they
(the borrowers) are waiving their rights with respect to the
statutory provisions of the Act.
[81] The reality is that desperate borrowers will acce de to

anything that is asked of them by moneylenders. Because of their
dire straits, they will sign anything that is placed before them.
Thus, it will take very little to persuade the borrower who will
be more than willing to sign away his rights as provid ed for
under the Act. Therein lies the obvious mischief or danger. And,
it is because of this danger, that we are impelled to the view that
there can be no waiver/estoppel against the provisions of the
Act, which was enacted pre-eminently to regulate the business of
moneylending and to protect the borrowers.
[82] It is relevant in this context to note that a party may not

contract out of the protection which Parliament had intended
that they should have. “
[60] In PhileoAllied Bank (M) Bhd v. Bupinder Singh a/l Avatar

Singh & Anor [1999] 3 MLJ 157 at 185-186, the Court of Appeal said:
“The authorities are unanimous upon the proposition that

whether it is permissible for a litigant to waive or contract out
of the provisions of a written law depends upon the language of
the particular statute. And where the language is unclear, it
depends upon the purpose of the statute and upo n whether its
overall purpose would be defeated by permitting a waiver or
contracting out. ...
22
... Although there is a general principle that a person may waive

any right conferred on him by statute ..., difficulties arise in
determining whether the right is exclusively personal or is
designed to serve other more broad public purposes. In the
latter situation, public policy would require that the right be
treated as mandatory and not be waivable by the party for
whose benefit it operates. Whether a statutory right is waivable
depends on the overall purpose of the statute and whether this
purpose would be frustrated by permitting waiver. “
[61] In the present context, the HDA (and its subsidiary legislation
the HDR) are a social legislation enacted with the purpose to protect
house buyers. Thus, the law on waiver or estoppel cannot operate
against the HAD and the HDR. If waiver or estoppel is allowed to
operate, it will defeat the object and purpose of the HAD and the
HDR.
[62] It is a truism that there is an inequality of bargaining power

between developers and house buyers. It is conceivable that in some
cases, a developer might not disclose to a house buyer, his or her full
entitlement to claim for LAD under the law. In such instance, it may
not take very much for a developer to persuade a house buyer to sign
away his or her statutory rights under the HAD and the HDR. I
therefore think there can be no waiver or estoppel against the HAD
and the HDR.
[63] My conclusion is that D cannot be allowed to rely on any waiver

or estoppel to preclude P from asserting his statutory rights to claim
for full LAD pursuant to Schedule H based on the completion period
of 36 months (instead of 54 months).
No unjust enrichment
23
[64] D complains that P is attempting to unjustly enrich himself.

Firstly, by claiming for an additional 18 months of LAD (i.e. from the
36 th month to the 54 th month of the SPA) more than 6 years after
agreeing to the 54 months EOT Period. Secondly, by claiming for an
additional 18 months of LAD after accepting the sums paid by D
under the 1 st Settlement Letter and the 2 nd Settlement Letter.
[65] My answer is this. The HDA and the HDR are social legislation
enacted to protect house buyers. Therefore, neither unjust enrichment
nor waiver nor estoppel can be relied upon by D to prevent P from
claiming what he is statutorily entitled to claim premised on the
prescribed Schedule H contract of sale. Otherwise, the intent of
Parliament to protect house buyers would be defeated.
[66] In my view, there is no issue of unjust enrichment or waiver or

estoppel as the HDA and the HDR are social legislation. I am guided
by the even more recent Federal Court case of PJD Regency Sdn Bhd
v. Tribunal Tuntutan Pembeli Rumah & Anor And Other Appeals
[2021] 2 CLJ 441. Which held that the calculation of LAD begins
from the date of payment of the booking fee, and not from the date of
the statutory sale and purchase agreement. The Court explained that
this point is further cemented by the nature of the HDA and the HDR
being social legislation.
[67] In PJD Regency (supra), the Federal Court said:
“[1] The phrase “social legislation” attached to the Housing

Development (Control and Licensing) Act 1966 ( “HDA 1966”)
and its ensuing subsidiary legislation ie, the Housing
Development (Control and Licensing) Regulations 1989 ( “HDR
1989”) is not merely a fanciful label. In disputes between home
buyers and housing developers, its significance lies in the
approach taken by the courts to tip the scales of justice in
24
favour of the home buyers given the disparity in bargaining

power between them and the housing developers .
[27] That the HDA 1966 and its subsidiary legislation are
social legislation is settled beyond dispute. ...
[31] A social legislation is a legal term for a specific set of

laws 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.
...
[33] … When it comes to interpreting social legislations, 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 b e
rendered nugatory and illusory.
….
[124] . The concept behind LAD is to compensate a purchaser

for the developer’s failure to comply with the statutorily
prescribed timeline. ...
[125] The LAD prescribed by law is a statutory remedy afforded

to the purchasers. There can therefore be no question of unjust
25
enrichment upon an innocent party’s right to enforce his

statutory remedy against the party in breach. ...
[ 126] We therefore answer the question of whether the award

of the Housing Tribunal results in the purchasers being
unjustly enriched in the negative. ’’
[68] I note the explicit statement by the Federal Court that the LAD
prescribed by law (in this case, the HDA and the HDR) is a statutory
remedy afforded to purchasers. And there can therefore be no question
of unjust enrichment upon a purchaser’s right to enforce his statutory
remedy against the housing developer. I readily embrace that
statement. I therefore conclude that there is no question of unjust
enrichment on the part of P in claiming LAD in the instant suit.
Plaintiffs claim is not barred by limitation
[69] D submits that P’s claim is barred by the limitation period

provided in section 6(1 )(a) of the Limitation Act 1953 which reads:
“(1) Save as hereinafter provided the following actions shall not

be brought after the expiration of six years from the date on
which the cause of action accrued, that is to say-
(a) actions founded on a contract or on tort;”
[70] D contends that P’s cause of action, which is founded on a

contract, arises from the SPA that is entered into between the parties.
Since the SPA is dated 9.7.2012, the 6 years limitation has set in on
9.7.2018. As the SOC was filed on 7.8.2020, there was a delay of
about 2 years in pursuing the action. D submits that P provided no
explanation regarding the delay in the filing of the suit and no
extension of time is sought by P.
26
[71] D’s contention is devoid of merit. In my opinion, P’s right to

claim for LAD pursuant to Schedule H arises on the date P takes
delivery of vacant possession. Because that is the time when D must
pay the LAD, if any. This is stipulated in clause 25(2) of the SPA
which reads:
“Such liquidated damages shall be paid by the Vendor to the

Purchaser immediately upon the date the Purchaser takes
vacant possession of the said Parcel
[72] Moreover, this is made clear in clause 25(3) of the SPA which
reads:
“For the avoidance of doubt, any cause of action to claim for

liquidated damages by the Purchaser under this clause shall
accrue on the date the Purchaser take vacant possession of the
said Parcel.”
[73] In the instant case, P is deemed to have taken delivery of vacant

possession of the Property on 8.2.2017. Thus, P’s cause of action to
claim. For the LAD accrued on that date. The 6 years limitation
period will expire on 7.2.2023. P’s action herein was filed on
7.8.2020, which is well within the limitation period. It is therefore my
finding that P’s claim is not barred by limitation.
Parole evidence rule
[74] D contends that P failed to satisfy the parole evidence rule. That
extrinsic evidence cannot be used to vary the terms of the SPA signed
by both parties. D refers to sections 91 and 92 of the Evidence Act
1950. And says that the contract between the parties has been reduced
to the form of a document i.e. the SPA. As such, no other evidence
can be given to contradict, vary, add to or subtract from the terms of
the SPA.
27
[75] D argues that P cannot make a claim based on something not

within or outside the scope of the SPA. P has no right to claim LAD
outside the scope of the SPA as the 36 months is nowhere to be found
in the SPA. There is no concluded contract in respect of 36 months for
the delivery of vacant possession of the Property. Allowing P to claim
LAD outside the scope of the SPA would open up floodgates and
create disruptive effects to the whole of the housing industry.
[76] This argument is misconceived. P is not seeking to contradict,

vary, add to or subtract from the terms of the SPA. P is simply saying
that the variation of 36 months to 54 months in the SPA is invalid.
And that the EOT, which forms the basis of the variation, is void. P is
therefore claiming LAD on the premise that the LAD ought to be
calculated based on 36 months, in line with the Schedule H contract of
sale.
[77] P’s claim for LAD springs from the Ang Ming Lee decision. That
is stated as such in the SOC. D describes P as an opportunist. But I
cannot fault P for taking advantage of the Ang Ming Lee decision. It is
within his legal rights to do so, I would not describe P’s conduct as
greedy or mercenary. In any event, we are a “court of law and not a
court of morals”. As observed by the Federal Court in Co-operative
Central Bank Ltd (In receivership) v. Feyen Development Sdn Bhd
[1995] 3 MLJ 313 at 321. So if P is correct in his contention on the
law, he is entitled to succeed.
[78] D alleges that allowing the claim for LAD would create a
disruptive effect to the housing industry. D points to numerous suits
filed by other purchasers against D and other housing developers
based on similar facts and arguments. But no evidence is adduced of
any actual disruption to the housing industry. Even if that is true, it
seems to me that the LAD claim is a consequence of Ang Ming Lee. I
cannot ignore a binding Federal Court decision. Under the doctrine of
28
stare decisis, I am bound by Ang Ming Lee. That said, I am in full

agreement with Ang Ming Lee and have no hesitation following the
same.
[79] It is noteworthy that the apex court in Ang Ming Lee did not
declare its decision to be prospective in effect. Thus, the general
principle of retrospective effect applies.
[80] It is a fundamental principle that all judgments of a court are

retrospective in effect. (See Abiilah Labo Khan v. PP [2002] 3 CLJ
521 at 527). The exception is if there is a specific direction of
prospectivity expressed in the judgment itself. (See Semenyih Jay a
Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case
[2017] 5 CLJ 526 at 566; [2017] 3 MLJ 561 at 600).
[81] It is said that the 'retrospective’ effect of a change in the law

might potentially have disruptive and seemingly unfair consequences.
‘Prospective overruling’ is a judicial tool fashioned to mitigate these
adverse consequences. It is a practical solution for alleviating the
inconveniences which may result from a decision declaring a law to
be void. So that previous decisions would remain undisturbed and not
be affected.
[82] In the present context, the Federal Court in Ang Ming Lee has
seen it fit not to express a specific direction of prospectivity in its
judgment. As a result, Ang Ming Lee has retrospective effect and can
be relied upon by P in his claim for LAD.
Not necessary for Plaintiff to particularise damages
[83] D contends that P cannot rely on the LAD clause and that he
must strictly prove his loss like in any ordinary contract of sale. This
contention is without substance.
29
[84] As pointed out by the Court of Appeal in Sentul Raya (supra),

the SPA is a ‘special contract’, it is not an ordinary contract of sale
but a statutory contract which is ‘prescribed and regulated by statute’.
The Court of Appeal held that the LAD formula in the SPA is
prescribed by law. As such, there is no need for a purchaser to prove
his loss. The Court said at page 628:
“[14] The third ground raised by the appellant is that the

respondents are under a duty to prove the damages, if any that
they have suffered. This they have not done, and their claims
should therefore be disallowed. A short answer to this
submission is to be found in cl. 22(2) itself. The damages are
liquidated and calculated in accordance with the formula
prescribed by the clause. No further onus lies upon the
respondents in the appeals before us.”
[85] In the present case, the formula for calculation of the LAD is set
out in clauses 25(2) and 27(2) of the SPA. P’s claim for the LAD is in
accordance with the prescribed formula. There is no further onus on P
to prove damages.
[86] D refers to section 75 of the Contracts Act 1950 and the Federal
Court case of Selva Kumar a/I Murugiah v. Thiagarajah a/I
Retnasamy [1995] 1 MLJ 817; [1995] 2 CLJ 374. To support its
argument that P must prove actual damages or reasonable
compensation when making a claim for LAD. However, I note that the
Federal Court in Cubic Electronics Sdn Bhd v. Mars
Telecommunications Sdn Bhd [2019] 1 AMR 737; [2018] MLJU 1935;
[2019] 2 CLJ 723 has reviewed, if not departed from, Selva Kumar
(supra).
[87] In Cubic Electronics (supra), the Federal Court said at page 750,
CLJ:
30
“[64] ... does this then mean that for every case where the
innocent party seeks to enforce a clause governing the
consequences of breach of a primary obligation , it invariably
has to prove its actual loss or damage? Selva Kumar (supra)
and Johor Coastal (supra) seem to answer in the affirmative,
unless the case falls under the limited situation where it is
difficult to assess actual damage or loss.
[65] With respect and for reasons we shall set out below, we
are of the view that there is no necessity for proof o f actual
loss or damage in every case where the innocent party seeks to
enforce a damages clause. Selva Kumar (supra) and Johor
Coastal (supra) should not be interpreted (as what the
subsequent decisions since then have done) as imposing a legal
straight jacket in which proof of actuate loss is the sole
conclusive determinant of reasonable compensation.
Reasonable compensation is not confined to actual loss,
although evidence of that may be a useful starting point. “
[88] The Federal Court went on to revisit or restate the principles of

law on damages clause as follows (at page 752-753, CLJ):
[74] In summary and for convenience, the principles that may

be distilled from hereinabove are these:
(iv) In determining what amounts to “reasonable

compensation” under s. 75 of the Act, the concepts of
“legitimate interest” and “proportionality” as enunciated
in Cavendish (supra) are relevant.
(v) A sum payable on breach of contract will be held to be

unreasonable compensation if it is extravagant and
31
unconscionable in amount in comparison with the highest

conceivable loss which could possibly flow from the
breach. In the absence of proper justificati on, there should
not be a significant difference between the level of
damages spelt out in the contract and the level of loss or
damage which is likely to be suffered by the innocent
party.
(vi) Section 75 of the Act allows reasonable compensation to

be awarded by the court irrespective of whether actual
loss or damage is proven. Thus, proof of actual loss is not
the sole conclusive determinant of reasonable
compensation although evidence of that may be a useful
starting point.
(vii) The initial onus lies on the party seeking to enforce a

damages clause under s. 75 of the Act to adduce evidence
that firstly, there was a breach of contract and that
secondly, the contract contains a clause specifying a sum
to be paid upon breach. Once these two elements have
been established, the innocent party is entitled to receive
a sum not exceeding the amount stipulated in the
contract irrespective of whether actual damage or loss is
proven subject always to the defaulting party proving the
unreasonableness of the damages clause including the
sum stated therein, if any.
(viii) If there is a dispute as to what constitutes reasonable

compensation, the burden of proof falls on the defaulting
party to show that the damages clause including the sum
stated therein is unreasonable. “
[89] In the instant suit, the LAD formula in the SPA is prescribed by
law. As such, no further onus lies on P to prove damages. Even if that
32
were not so, applying Cubic Electronics (supra) to the present case,
my finding is as follows:
(a) Reasonable compensation may be awarded to P

irrespective of whether actual loss is proven.
(b) In seeking to enforce the LAD clause under the SPA, P has
successfully adduced evidence that:
(i) there was a breach of the SPA, i.e. in relation to late

delivery of vacant possession of the Property; and
(ii) the SPA contains a clause specifying a sum to be

paid upon breach, i.e. clauses 25(2) and 27(2) of the
SPA.
(c) As those two elements have been established, P is entitled

to receive a sum not exceeding the LAD amount stipulated
in the SPA, irrespective of whether actual damage is
proven. Subject always to D proving the unreasonableness
of the LAD clause.
(d) Since D disputes the reasonable compensation payable to

P, the burden of proof falls on D to show that the LAD
clause is unreasonable. Which D has failed to do.
Plaintiff has locus standi
[90] D contends that P does not have locus standi to initiate an action
for the LAD. By reason that P took a loan from a bank (“Bank”) and
entered into a Deed of Assignment. The Deed of Assignment assigns
all rights, title and interest of P under the SPA to the Bank.
33
[91] This contention is without merit. P has locus standi to initiate

this action against D by virtue of section 22C of the HDA which
reads:
“Notwithstanding anything contained in any written law or any

rule of law, agreement, assignment or charge lawfully entered
into between a homebuyeras defined in section 16A and his
financier, a homebuyer shall be entitled on his own volition
and in his own name to initiate, commence, institute and
maintain in any court or tribunal any action, suit or proceeding
against a housing developer or any other person in respect of
any matter arising out of the sale and purchase agreement
entered into between the homebuyer and the housing developer
provided the homebuyer’s financier under a deed of absolute
assignment is notified in writing either before or within
fourteen days after the action, suit or proceeding against the
housing developer has been filed before any court or tribunal. ’’
[92] In the instant case, notice has been given to the Bank in
accordance with section 22C of the HDA. The Bank was notified of
the present claim filed by P. The said notice dated 11.8.2020 is
exhibited in ‘Exhibit B’ annexed to P’s affidavit affirmed on
8.9.2020.
High Court has jurisdiction to hear the case
[93] In paragraph 15 of its Defence, D pleaded that the monetary

jurisdiction for a sum of not more than RM1 million falls within the
jurisdiction of the Sessions Court, and not of the High Court. In
paragraph 16 of its Defence, D pleaded that it is an abuse of process
on the part of P to institute this suit in the High Court.
34
[94] In his Reply, P avers that this suit was filed in the High Court as
the Sessions Court has no jurisdiction to hear and determine the
matter. By reason that the reliefs prayed for in the SOC includes
declaration. P refers to section 69(g) of the Subordinate Courts Act
1948 which reads:
“Sessions Court shall have no jurisdiction in actions, suits or

proceedings of a civil nature-
(g) for declaratory decrees except in making a declaration

under paragraph 65(5)(b) and interpleader proceedings u nder
section 73”
[95] P submits that this is not a case where he is seeking for a

declaration under section 65(5)(b) of the Subordinate Courts Act 1948
which reads:
“(5) A Sessions Court may, in respect of any action or suit

within the jurisdiction of the Sessions Court, in any proceedings
before it-
(a) grant an injunction; and
(b) make a declaration,
whether or not any other relief, redress or remedy is or could be

claimed. “
[96] I disagree. It seems to me that the quantum of P’s claim (i.e. the
LAD amount of RM277,561.64) falls within the jurisdiction of the
Sessions Court. In respect of such action, the Sessions Court has the
power to grant or make the declarations sought by P.
35
[97] Nevertheless, I proceeded with the hearing in order to avoid

protracting the matter, i took the position that there is no prejudice or
miscarriage of justice caused to the parties. The High Court has
unlimited jurisdiction to try all civil claims, including claims that may
be made in the Sessions Court and the Magistrate’s Court. (See Bank
Negara Malaysia v. Gerald Glesphy G.M. Perara & Ors [1992] 1 CLJ
(Rep) 10 at 12).
Conclusion
[98] For the reasons above, I dismissed Enc 26 and did not allow the
striking out by D. instead I allowed P’s application for summary
judgment vide Enc 5. I granted the declarations sought by P and
entered judgment against D in the sum of RM277,561.64. I awarded
interest on the said judgment sum at the rate of 5% per annum from
the date of judgment to the date of payment. I ordered D to pay costs
of RM3,000 to P in respect of each enclosure.
Dated: 19 APRIL 2021
(QUAY CHEW SOON)

Judicial Commissioner
High Court of Malaya, Kuala Lumpur
Civil Division NCvC 10
COUNSEL:
For the plaintiff - KL Wong & Wong Renn Xin; M/s KL Wong
For the defendant - Lai Chee Hoe & Ooi Xin Yi; M/s Chee Hoe & Associates
36
Case(s) referred to:
Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar; Perumahan dan
Kerajaan Tempatan & Anor and other appeals [2020] 1 CLJ 162; [2020] 1
MLJ 281; [2019] 6 MLRA 494
Sentul Raya Sdn Bhd v. Hariram Jayaram & Ors and Other Appeals [2008] 4
CLJ 618 at 626
Veronica Lee Ha Ling & Ors v. Maxisegar Sdn Bhd [2009] 6 CLJ 232 at 236
Chan Kwai Chun v. Lembaga Kelayakan [2002] 3 CLJ 231 at 239-240
Tenaga Nasional Bhd v. Bandar Nusajaya Development Sdn Bhd [2016] 8 CLJ
163 at 181
Avel Consultants Sdn Bhd & Anor v. Mohd Zain Yusof& Ors [1985] CLJ (Rep)
37; [1985] 2 MLJ 209
Lum Choon Realty Sdn Bhd v. Pewira Habib Bank Malaysia Bhd [2003] 4 MLJ
409 at 422
Sagujuta (Sabah) Sdn Bhd v. Trane Malaysia Sales & Services Sdn Bhd [2014]
5 MLJ 535 at 545-546
Encony Development Sdn Bhd v. Robert Geoffrey Gooch & Anor [2016] 1 CLJ
893
Oxbridge Height Sdn Bhd v. Abdul Razak Mohd Yusof and Anor [2015] 2 CLJ
252
Hedgeford Sdn Bhd v. Sri Gananatha a/I Sivanathan [2018] 1 LNS 1497
Hotel Ambassador (M) Sdn Bhd v. Seapower (M) Sdn Bhd [1991] 1 CLJ (Rep)
174
Powernet Industries Sdn Bhd v. Golden Wheel Credit Sdn Bhd [2020] 10 CLJ
374
PhileoAllied Bank (M) Bhd v. Bupinder Singh a/l Avatar Singh & Anor [1999] 3
MLJ 157
37
PJD Regency Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor And Other
Appeals [2021] 2 CLJ 441
Co-operative Central Bank Ltd (In receivership) v. Feyen Development Sdn Bhd
[1995] 3 MLJ 313
Abiilah Labo Khan v. PP [2002] 3 CLJ 521
Semenyih Jay a Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another
Case [2017] 5 CLJ 526 at 566; [2017] 3 MLJ 561
Selva Kumar a/I Murugiah v. Thiagarajah a/I Retnasamy [1995] 1 MLJ

817; [1995] 2 CLJ 374
Cubic Electronics Sdn Bhd v. Mars Telecommunications Sdn Bhd [2019] 1

AMR 737; [2018] MLJU 1935; [2019] 2 CLJ 723
Bank Negara Malaysia v. Gerald Glesphy G.M. Perara & Ors [1992] 1 CLJ
(Rep)
Legislation referred to:
Housing Development (Control and Licensing) Act 1966, s. 22C
Limitation Act 1953, s. 6(1)(a)
Evidence Act 1950, ss. 91, 92
Contracts Act 1950, s. 75
Subordinate Courts Act 1948, ss. 65(5)(b), 69(g)
Rules of Court 2012, O. 14, O. 18 r. 19(1)(b), (c), (d), O. 53, O. 81
Housing Development (Control and Licensing) Regulations 1989, reg. 11 (3),

Schedule H
38

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[2021] 1 LNS 659 Legal Network Series

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

LEONG KENG CHIANG … PLAINTIFF

PREMA BONANZA SDN BHD … DEFENDANT

[1] The Plaintiff (“P”) filed an application vide Enclosure 5 (“Enc

[2] D in turn filed an application vide Enclosure 26 (“Enc 26”) to

[4] P entered into a sale and purchase agreement dated 9.7.2012

05-F (“Property”) in a housing project known as Sentral Residences

[6] D, however, had obtained an extension of time (“EOT”) for the

[7] On 25.1.2017, D issued the notice of delivery of vacant

[9] Premised on the completion period of 36 months as stipulated in

[10] P avers that D is liable to pay liquidated ascertained damages

(a) Pursuant to clause 25(2) of Schedule H, the LAD for late

(b) Pursuant to clause 27(2) of Schedule H, the LAD for late

[11] The LAD in the instant case was calculated by P as follows:

[12] In the SOC, P prayed for the following:

(a) a declaration that any extension of time granted (from 36

(b) a declaration that D shall be bound to comply with

(c) an order that D pays to P the LAD for late delivery of

[13] In respect of Enc 5, D submits that it has a meritorious defence

(a) P failed to satisfy the parole evidence rule;

(b) P runs foul of limitation period;

(c) P has initiated the claim with the wrong mode;

(d) P has failed to particularise damages;

(e) P is guilty of delay;

(f) P has knowledge and consented to the SPA;

(g) P has no locus standi to initiate this action;

(h) P, by accepting the settlement sums, is estopped from

(i) P is attempting, in its claim of inflated LAD against D, to

Completion period in the SPA cannot be varied

have freedom to make provisions between themselves, a housing

“[3] Now, cl. 23 is part of a statute based contract In this

“[40] The Act being a social legislation designed to protect the

[21] In light of the aforesaid authorities, my opinion is that the SPA

[22] To my mind, any amendments or variations made to the SPA

“[60] On the above analysis, we hold that the Controller has no

(b) The sale and purchase agreements entered into by the

(c) The EOT granted in the present case is reflected in clauses

(e) The EOT was obtained not through Regulation 12 (Appeal

[25] D contends that P has knowledge of the 54 months EOT Period

[27] D complains that P only raised objections to the 54 months EOT

a social legislation designed to protect house buyers. And that the

Plaintiff did not initiate action with the wrong mode

“Decision based on examination results as pronounced on 13

A void decision is, strictly speaking , not a decision at all

if the original decision had never existed. In this cont ext, a

“[75] It was held by the Court of Appeal in Chan Kwai Chun v.

[76] Applying the above principle, the State Authority had

[82] In view of the above, unlike court orders, administrative

[32] My view is that the EOT, being a void administrative decision,

Declarations are within the ambit of Order 14 of the ROC

application under Order 14 of the ROC vide Enc 5 should fail.

[34] D’s submission is misconceived. My opinion is that the court is

We are of the opinion that this submission is well -founded. ...

The order which emanates from this judgment is that:

(a) judgment is entered in favour of the appellants on their

[36] Furthermore, P is not claiming for a rescission of the SPA.

[37] Under Order 81 of the ROC, summary judgment may be applied