JCW

[Housing Developers, LAD and CCC issue] Justin, Alvin and Pei Sin were counsel for the 1st and 2nd Defendants in t this case In this case the plaintiffs were buyers of residential units in a housing project that was developed by the first defendant on land owned by the second defendant and in which project the third defendant was the architect. All the plaintiffs had complained, inter alia, that vacant possession of their units had not been delivered to them in accordance with the terms of their respective sale and purchase agreements and the architect had been negligent in not issuing a full certificate of completion and compliance (‘CCC’) in Form F to enable the delivery of vacant possession to take place but had only issued a partial CCC in Form F1 and that his actions had thereby interfered with the due performance of the SPAs. Some of the plaintiffs had their claims resolved before the Housing Tribunal and therefore dropped their claims in the instant suit, while the remaining plaintiffs entered into settlement agreements with the first defendant as to payment of liquidated and ascertained damages (‘LAD’) after vacant possession was delivered to them/ The High Court in this case struck out the plaintiffs' claim based on Order 18 rule 19 of the Rules of Court 2012 and provided extensive Grounds of Judgment for the same. The Court held amongst others as follows, CCC Issue (i) Although the title of the Form was "Form F1", the Architect has certified that Menara Tower 1 was built in accordance with the requirements of Sections 25 to 28 of YYBKS 1986 ( Selangor Uniform By Laws), He has certified that the building is fit and ready for occupation (paragraph 69 of GOJ) (ii) Based on Clause 25(3) of the SPA ( which provides that any cause of action for LAD shall accrue on the date the Purchaser takes vacant possession), the right of the plaintiffs to institute their claim only arise when vacant possession has been given to them. As they themselves are attempting to  re-open the issue of late delivery, they have surely admitted that vacant possession of the units had been given. They cannot blow hot and cold at the same time ( paragraphs 73 and 74 of the GOJ). (iii) Vacant possession had also been given as the Joint Management Body was set up vide Section 17 of the Strata Management Act (paragraph 71 of the GOJ) Housing Tribunal Issue (iv) Having started proceedings before the Housing Tribunal and finalizing the claims in those proceedings, the plaintiffs cannot pursue any further claims and re-open the disputes as the law in PJD/Ang Ming Lee ought not to apply retrospectively (paragraphs 22, 23 and 24 of the GOJ) Settlement Agreement (v) The Learned Judge held that the decision in Pinpoint Consortium [2020] 5 CLJ 281 and Obata Ombak [201] 10 CLJ 596 ought to be preferred to Leong Keng Chiang [2021] MLJU 714 on this point and the Settlement Agreement is binding on the plaintiffs and therefore bars the plaintiffs from making further claims for LAD ( paragraph 58 of the GOJ).  (vi) The PJD case issue of booking fee and Ang Ming Lee case issue of an extension by the controller is overtaken by the settlement agreement (vii) The Court is aware that HDA is a social legislation but this does not mean the Court can disregard any settlement agreement and "the sword of Justice" cuts both ways (paragraphs 76 and 777of the GOJ). Ang Ming Lee distinguished (vi) As the Controller had granted the amendment to the SPA before the contract is concluded , the decision of Ang Ming Lee do not apply to the facts here ( paragraph 50 of the GOJ)