JCW

[Judicial Review – initial sum paid to the Stakeholder to make offer to purchase and LAD] Justin was counsel for the Applicant for Judicial Review, Southville City Sdn Bhd. In this case, the first respondent appointed Messrs Khairin Nisa & Co as a stakeholder to represent him to make an irrevocable offer (“IO”) to the applicant to purchase a unit in a housing project (“the project”) to be developed by the applicant. The first respondent then placed a sum of RM3,000.00 (“the stakeholder sum”) with the stakeholder with instruction to release the same to the Applicant once there is acceptance by the applicant of the first respondent’s offer to purchase. The first respondent subsequently entered into a sale and purchase agreement (“the SPA”) with the applicant on 27/3/201 and vacant possession was delivered by the applicant on 29/3/2018. The first respondent thereafter filed a claim against the applicant for liquidated damages for late delivery of vacant possession. The Court in allowing the Applicant’s judicial review application inter-alia :- (i)Based on clause 1.2 of the IO, the first respondent was aware that the applicant was under no obligation to collect any payment before the property was opened for sale and pursuant to clause 3 of the IO the stakeholder was instructed to release the monies to the applicant upon the applicant’s confirmation that project was open for sale and acceptance of the first respondent’s offer to purchase and towards settlement of the first 10% of the purchase price. On the facts the stakeholder sum was only released to the applicant on 27/3/2014 after the SPA was signed by both parties. Thus, the stakeholder sum cannot be constituted as “booking fee” and/or “deposit” towards the sale and purchase of the project. Even if the court were to accept that the stakeholder sum is a booking fee or a deposit, the sum was received by the applicant on 27/3/2014 and not 28/9/2013. (ii)There was no agreement or SPA between the applicant and the first respondent on 28/9/2013. For the applicant to accept payment before the contract of sale would contradict reg 11(2) of the Housing Development (Control and Licensing) Regulations 1989 which prohibits any parties from collecting any payment as stakeholder. There is no evidence to show that Messrs. Khairin Nisa & Co had acted as the agent or panel lawyer for the applicant to collect the stakeholder sum. (iii)Clause 25 and 27 of the SPA specifically mentions that delivery of vacant possession shall be within 48 calendar months from the date of the SPA, whereas clause 27 states that the completion of common facilities shall be completed within 48 calendar months from the date of the SPA. The SPA does not provide that the delivery of vacant possession and completion of common facilities must be completed from any other date. On the facts, the SPA is in accordance with Schedule H of the Regulation 1989 and the terms thereof are to be strictly followed and cannot be contracted out of. (iv)No binding contract was formed on 28/9/2013 as there was no consideration, no acceptance and no intention to create legal relations between the applicant and the first respondent. The second respondent thus had erred in holding that the date of ascertaining the delivery of vacant possession should be 28/9/2013. (v)The Tribunal had committed jurisdictional errors and/or Anosminic errors and acted on incorrect basis in fact. The award therefore ought to be quashed for being tainted with illegality and unreasonableness. (vi)The liquidated damages payable for late delivery of the vacant possession of the property and late completion of the common facilities should have been calculated from date of the SPA and not from the date of the stakeholder sum was deposited with the stakeholder.