JCW

[CCC , vacant possession, LAD & force majeure] Justin & Chooi Peng were the counsel for the Appellant in this case. The Court inter-alia held that : (i) The architect’s letters did not qualify as valid certificates of extension of time which would justify the first respondent’s delay in delivering the vacant possession of the said properties to the appellant because: (a) the letters made no mention of the SPAs and specifically cl 13.1.1 of the SPAs which the first respondent relied heavily upon; (b) the letters did not state that in the opinion of the architect, the events in the said letters were events beyond the developer’s control ;and (c) the letters did not state any opinion at all and merely state that there would be delays in the completion of the construction works . (ii) The breaches caused by the main contractor’s restructuring exercise were not force majeure events and were not beyond the first respondent’s control in the said project under cl 13.1.1 of the SPAs. Contractors were under the control of their employers, and the employer such as the first respondent could not utilise their contractor’s breaches or defaults, to gain extension of time (iii)Pursuant to cl 13.2.2 of the SPAs, the appellant would be deemed to have taken the possession of the said properties within 14 days from the date of the first respondent’s letter, which would be on 13 January 2016. The parties had voluntarily entered into the SPAs and had conducted their affairs in accordance with the terms and conditions of the SPAs. The sanctity of the contract entered between parties should be preserved. There was merit in the first respondent’s contention that cl 13 of the SPAs merely required the first respondent to physically complete works and provide a certificate of practical completion by the architect as sufficient to provide vacant possession and that it would matter not, if the said properties was not connected with the essential utilities (iv)Whether the damage was quantifiable or otherwise, the court had to adopt a common-sense approach by considering the genuine interest which an innocent party may have and the proportionality of a damages clause in determining reasonable compensation. Section 75 of the Contracts Act 1950 provided that reasonable compensation must not exceed the amount so named in the contract. Consequently, the impugned clause that the innocent party sought to uphold would function as a cap on the maximum recoverable amount.

[CCC , vacant possession, LAD & force majeure] Justin & Chooi Peng were the counsel for the Appellant in this case. The Court of Appeal inter-alia held that vacant possession is not synonymous with the right of occupation where, amongst others : (i)The High Court found that it was the obligation of the appellant to ensure the availability of permanent access road, the mains for the electricity supply and the water supply to connect them to the shop office (‘essential amenities’) and the CCC was issued to the respondent before the appellant could deliver vacant possession of the shop office. (ii)The definition of the manner of vacant possession was clearly defined in cl 13.2 of the SPA, which stated that upon issuance of a certificate by the first defendant’s architect certifying that the construction of the shop office had duly competed, the purchaser having paid all monies payable under the SPA and having performed and observed all terms and conditions on the plaintiff under the SPA, the first defendant shall let the plaintiff into possession of the shop office, however, such possession shall not give the plaintiff, the right to occupy and the plaintiff shall not occupy the shop office or to make any alterations additions or otherwise to the said shop office until such time as the CCC for the office shop was issued. (iii) Vacant possession and the issuance of the CCC under the SPA were totally separate events and catered for different situations. There was no statutory prohibition against the segregation of these two events. The Court of Appeal also held that the main contractor’s restructuring exercise were not force majeure events and not beyond the Appellant’s control

(Injunction to restrain holding of AGM and/or any EGM] Justin acted as counsel for 2nd, 3rd and 7th Defendants in this case. The 1st Defendant (Management Corporation) filed respectively applications to injunct themselves from holding and/or convening the AGM and any EGM and the High Court allowed the same and also held that there are serious issues to be tried to support the same. Issues that were raised include the jurisdiction of the Court to grant such injunction and also the right/locus standi of the MC to file for the same. {Note : the aforesaid High Court decision was reversed by the Court of Appeal on Appeal vide amongst others Civil Appeal No W-02(IM)(NCVC)-73-01/2022 & W-02(IM)(NCVC)-73-01/2022, where the Court of Appeal amongst others held that the holding of the AGM and EGM are mandatory and/or required under the Strata Management Act/laws}

[LAD- Ang Ming Lee issue- Estoppel] Justin acted for the Defendant in relation to a claim for LAD against the Defendant as the developer based on the Federal Court case of Ang Ming Lee. The Court held amongst others as follows : (i) The preliminary objection that the defendant's application is premised on Order 18 rule 19(1) (a) or (b) or (d) of the Rules of Court 2012 is dismissed where each limb is disjunctive and where under paragraph (a) the Court will look at the pleadings only and for other paragraphs, the Affidavits will also be looked at. (ii) Distinguished Ang Ming Lee based on the crucial fact that the request for extension of time was made after the commencement of the project and the execution of the sale and purchase agreements; (iii) In contradistinction with Ang Ming Lee, in this case, the defendant obtained approval from the Housing Controller for the extension of time from 36 months to 48 months  for the delivery of vacant possession and completion of common facilities for The Link 2 @ Bukit Jalil housing development project (iv) Further reinforced the case Alpine Return Sdn Bhd v Matthew Ng Hock Sing and the doctrine of estoppel therein, where estoppel should apply herein based on the conduct of the plaintiff and the defendants before or after the execution of the SPAs, where parties acted based on the extended period and the period of 36 months never featured in the relationship of parties before Ang Ming Lee. Therefore, it would be extremely unjust for the defendants to claim for vacant possession within 36 months  (v) Limitation of 6 years under Section 6 of the Limitation Act 1953 has also set in where cause of action would have arisen when the plaintiffs signed the SPAs in 2014 as this is the date of the alleged breach and the suit was filed in 2021 i.e. 7 years later 

[Dispute as to land boundaries and measurement- National Land Code- provisional title & Final Title] Justin, Alvin & Pei Sin were the counsel for the 4th Appellant. This case is about the competing claims on the area/size of lands by reason of the measurement by the authorities in respect of Qualified Titles of Land and the subsequent issuance of a Final Title. The Court of Appeal in allowing the Appeal held amongst others as follows : (i) Discussed the law and provisions relating to the Qualified Title and Final Title and held that the indefeasibility of a registered proprietor's title would only become fully operative upon the issuance of final title as provided in Section 92(1) of the National Land Code (ii)In view of the specific remedy under Section 84 of the NLC, the learned JC of the High Court erred in ordering a resurvey by the 3rd Appellant of the whole of Lots PT1 and PT853 notwithstanding the finality of the approved plan by the  Director of Survey and Mapping for the purpose of issuance of Final Title. Nowhere in the NLC or any other law that in carrying out the Final Survey is there any requirement to take into consideration the date of the alienation of land concerned (iii) Pursuant to Section 83 (4) of the NLC, persons to whom the land is alienated under NLC are barred from making any claim against the State Authority on the ground that there is a shortfall in the land area (iv) As for the 4th Appellant ( owner of Lot PT1), the learned JC erred in principle in not appreciating that the Respondent's claim against the 4th Appellant had been struck out on the merits before the Trial began and there should not be any relief granted against the 4th Appellant i.e. the doctrine of res judicata applies. (v) The 4th Appellant had not been heard on the reliefs/ remedies and it is settled law that being no longer a party in the instant suit, any order or rectification of the Land Register should not deprive them of their land which they purchased bona fide and not order should be made affecting them adversely, in their without being given the opportunity of being hear or defend themselves. (vi) The doctrine of res judicata also applies between different stages of the same litigation (vii) The Final Title obtained by the 4th Appellant cannot be set aside or impeached save in the limited circumstance provided in Section 340(2) NLC.

[Assessment of damages – different valuation – one based on medium costs apartment and the other based on a high end condominium- date of valuation – whether previous consent order relevant] Justin , Alvin and Pang Kwong Hang were the counsel for the Defendants. In this case, the High Court was tasked with assessment of damages as ordered by the Federal Court in respect of a medium costs project (Vista Damansara) which was abandoned and in its place a high end condominium (Boulevard Residence) was built. One year before the date of delivery of vacant possession, the 2nd Defendant sold the land on which there were 18 SPAs signed with the Plaintiff to the 1st Defendant in respect of the Vista Damansara project. Before the Trial commenced, parties recorded a Consent Order agreeing that the interest of the Plaintiff is to be preserved pending the Trial and the 1st Defendant may proceed with the development of Boulevard Residence.  The 1st Defendant proceeded to build Boulevard Residence. The Court of Appeal and the Federal Court decided against the Plaintiff and declined to order specific performance of the 18 SPAs and the Federal Court ordered damages to be assessed and paid by both defendants jointly and severally to the Plaintiff. There was a Trial on assessment of damages which include market value, LAD and/or rental. Amongst others the Court held as follows : (i) The Court held that the real problem lies in determining the property's market value since the initial medium costs apartment under Vista Damansara never materialized. (ii) The Plaintiff provided valuation premised on the Consent Order and market value of Boulevard Residence i.e RM12,822,000 where the valuation based on the date of the Federal Court Order on 28/8/2019. The Defendants' valuation is premised on 18 medium cost apartment valued as at the date the SPAs were lost i.e. 11/3/2008 when the land was sold i.e RM2,885,000. (iii) The Court held that the Consent Order is not applicable to assess damages the Plaintiff's position would be against the findings of the Court of Appeal [ reported in [2019] 7 AMR 229] that " a monetary compensation would be the appropriate remedy to be awarded to the Plaintiff in relation to the 18 units of medium-cost apartments that formed the subject matter of the 18 principal agreements". Further, inter- alia the whole purpose of the Consent Order was to preserve the status quo of the Plaintiff pending the trial and to ensure the transfer of 18 units to the plaintiff in the event specific performance is ordered. (iv) The Plaintiff's valuation report was misconceived as it was prepared on the wrong premise and hence should be rejected. (v) The effective  date of assessment of damages shall be the date when the SPAs were lost because the project never materialized, and the land was sold to a third party before the date of delivery of vacant possession. (vi) The Plaintiff's claim for LAD is only possible if the Plaintiff is entitled to the physical possession of the 18 units and here there can be no actual delivery when the project never materialized. (vi) The alternative claim for loss of rental based on rates found on the internet pertaining to Boulevard Residence is speculation at best and disallowed.

(Vacant possession of bungalow lots- whether basic infrastructural works had been completed) Justin & Christina were the counsel for the defendant The plaintiffs were purchasers of bungalow lots from the defendant and filed a claim on the basis amongst others that the defendant did not complete the infrastructural works and that vacant possession were not property given and for damages. The issues involve the issue of the extent of the Developer's duty to construct Basic Infrastructural Works in respect of the sale of a vacant Bungalow Land vis-a vis the Purchaser where the  Purchaser has the obligation to build the bungalow, as well as the interpretation of the Sale & Purchase Agreements ("SPAs") in respect of the same. The Purchasers here also claimed for Liquidated Damages (LAD) by challenging that vacant possession had not been properly given to them. In this case, the Plaintiffs as the purchasers of various Bungalow Lots alleged that the Defendant ( developer) had breached the SPAs, specifically by failing to provide the Basic Infrastructural Works and without the Basic Infrastructural Works, the Plaintiffs claimed that they have not been able to commence the construction of their bungalows. The Court held amongst others as follows in dismissing the Plaintiffs' claim : (i) The Certificate of Practical Completion ("CPC") is sufficient to confirm that that Basic Infrastructural Works has been completed based on the phrase "..in accordance with the requirements and standards of the Vendor's engineer" in Clause 1.1(c) and Clause 10.1 (a) in the SPAs (ii) Vide the letters dated 3/3/2013 and 9/7/2013 issued by M/s Ng & Ng Consult, these letters are the CPCs for the Basic Infrastructural Works pursuant to the SPAs accepted by the Court. The Court also distinguished the case laws of Chong By Sam v Soon Teik Development Sdn Bhd [2009]1 MLJ 906 and Uniphone Telecommunications Berhad v Bridgecon Engineering Sdn Bhd [2011] MLJU 504 cited by the Plaintiffs to challenge the said letters as CPCs. (iii) In respect of the argument by the Plaintiffs that the CPCs cannot be conclusive proof that the Basic Infrastructural Works has been completed as it must be completed in compliance with the requirements of the Appropriate Authority, the Court held that this reference to the Appropriate Authority is only relevant to the second part of Clause 10.1 (a) of the SPAs, which provided that if the construction of the bungalows result in additional conditions and impositions by the Appropriate Authority, which is in addition to the Basic Infrastructural Works and these must be solely borne by the Plaintiffs. (iv) In any event, the Defendant have shown that the Basic Infrastructural Works had been completed with reference to the testimony of the Defendant's Engineer and his Rebuttal Report and also confirmations by. the Plaintiffs' own expert/Architect (v)   The Court further held that the Plaintiffs have misconceived the scope of Basic Infrastructural Works during the Trial. Although the Plaintiffs argued that the Defendant attempted to draw a distinction between a "temporary" supply of Basic Infrastructural Works ( i.e. for purpose of construction) and the "permanent supply" ( i.e post- construction), the Court held that this distinction is set out in Clause 10.1 (a) of the SPAs where the first part refers to the definition of Basic Infrastructural Works according to the Engineer which would apply before the construction of bungalows and the second part would trigger once the construction commences. (vi) The Court further held that as the Plaintiff have yet to commence construction of the bungalows the first part of Clause 10.1(a) would apply (vii) The Court also held that the second part of Clause 10.1 (a) also requires any substations post -construction to be built at the costs of the plaintiff and the reason is that the need of a sub-station would depend on the need of each bungalow, which was clearly established during the cross- examination of the witness from TNB. (viii) The Court that by the letters issued by the Defendant to the respective Plaintiffs between October 2013 and February 2014, the Defendant informed the Plaintiffs that vacant possession of the Bungalow lots was ready and the defendant's position is that no keys were handed due to the vacant Bungalow lots and vacant possession was given based on the deeming provision of Clause 7.2 (b) of the SPAs.  (ix) The Court further held that the CPCs need not be attached to the letters for vacant possession as the CPCs were issued before the said letters and there had been no complaints raised by the Plaintiffs on the lack of CPCs in the letters of vacant possession. (x) The Court finds that the PLaintiff have failed to prove that (a) the Basic Infrastructural Works were not provided in accordance with the SPAs, (b) the Defendant had not delivered vacant possession in accordance with the SPAs and (c) the Defendant had breached the SPAs. 

[CIPAA- jurisdiction of Adjudicator – claim filed different from interim claims without being rectified first] Alvin was the counsel for the Respondent. This case involves the question of law whether the Adjudicator exceeded his jurisdiction for having adjudicated on Mersing’s payment claim which included rectified claims i.e. amount of claim in the interim claim had been amended unilaterally by Mersing without re-submitting the rectified claim to Puncak Niaga for rectification/certification before the payment claim is served on Puncak Niaga pursuant to CIPAA 2012. The Court of Appeal dismissed the Appeal and inter-alia held that:- [60] For the reasons stated above, we are impelled to the view that the rectified Claims which were part of the Payment Claim are not new claims. Indeed, Puncak Niaga does not even contend that the Rectified Claims are new claims. They are plainly and patently part of previous monthly claims which Puncak Niaga chose not to verify and certify. These are in any event, interim claims, and are by definition, “not final”. Hence, they are capable of adjustment, refinement and pruning. [61] We agree that a Payment Claim which consists of a premature claim or a in futuro claim is not one which complies with ss.4 and 5 CIPAA. But that is not the case here. The fact that Mersing did not re-submit the Rectified Claims through the route of clause 8.1 LOA is not an impediment to the impugned items being submitted as part of the Payment Claim because the claims are in fact, for work done under a Construction Contract and the claims had already been submitted previously to Puncak Niaga and all that has happened is that these same claims have been “refined” or “pruned” by way of discarding erroneous amounts before being submitted as a Payment Claim. [62] Indeed, instead of refining or pruning the amounts, Mersing could well have chosen to leave the original amounts pertaining to the impugned items intact and not make any refinement or pruning prior to the submission of the Payment Claim. What would have then happened is that during the Adjudication Proceedings, Mersing could have dropped or abandoned that part of the impugned items which they concede as being erroneous. If they could do it during the Adjudication Proceedings, we see no reason why the refinement or pruning cannot be done earlier and be made as part of the Payment Claim. [63] Further, the Adjudication had the requisite statutory power to determine the correctness of the amounts which are due and payable after taking intoaccount the Adjudication Response and submission of the parties in the Adjudication Proceedings. [64] Thus, at first blush, Puncak Niaga’s objection appeared to be attractive and worthy of consideration. However, upon further reflection especially in light of the principles enunciated by the cases referred to earlier, we are of the view that a mere refinement or pruning of a claim under a construction contract which had been previously submitted to the employer, and being then included as part of the Payment Claim, does not constitute a new claim, or pre-mature claim, or in future claim, such that it affects the Adjudicator’s jurisdiction. In the result, we find that Puncak Niaga’s objection vis-à-vis the Rectified Claims is highly technical and tactical, to say the least. We find no merits in the stand that was taken by Puncak Niaga