JCW

[Striking out — LAD for alleged invalid delivery of vacant possession — partial CCC (Form F1) — architect’s duty under statute vs developer’s contractual duty — settlement agreements / estoppel] Alvin (with Cheryl) acted as counsel for the Developer/Appellant (Cosmopolitan Avenue Sdn Bhd) in Civil Appeal No. B-02(IM)(NCvC)-1594-08/2022. Background: This appeal arises from a dispute between Cosmopolitan Avenue Sdn. Bhd. (the Developer), AR. Loo Chang Seng (the Architect) and Khong Yao Han & 57 others, who are purchasers of office units in a mixed commercial development project. The purchasers claimed Liquidated Ascertained Damages (LAD) on the basis that the Developer’s delivery of Vacant Possession (VP) was invalid because it was premised on a partial Certificate of Completion and Compliance (CCC) (Form F1). They contended that VP should only be delivered upon a full CCC (Form F) for the entire project, and that delay therefore continued beyond the partial delivery, entitling them to further LAD. Both the Developer and the Architect applied to strike out the purchasers’ claims under Order 18 rule 19 ROC 2012, but the High Court dismissed both striking-out applications. The Developer and the Architect appealed. Issues: 1. Whether the High Court was correct in finding that the purchasers had established a prima facie case of negligence and/or unlawful interference against the Architect for issuing a partial CCC (Form F1) instead of a full CCC (Form F). 2. Whether the High Court was correct in finding there were triable issues on the interpretation of the Sale and Purchase Agreements (SPAs) and the propriety of VP delivery by the Developer based on the partial CCC (Form F1). Legal Points / Grounds of Judgment: (1) The Court of Appeal held that the Architect’s duty to certify work progress / completion is a statutory and professional duty, and not the same as the Developer’s contractual duty under the SPAs to deliver VP within the contractual period. The purchasers cannot enforce the SPA delivery timelines against the Architect because the Architect is not a party to the SPAs. The Court further emphasized that the Architect’s certification duty is not subject to any contract** (including the SPAs) but is governed by applicable laws/by-laws/guidelines and local authority approvals, including LAM guidance on Form F1 issuance. (2) Relying on the Federal Court decision in Loh Kok Beng & 49 Ors v Loh Chiak Eong & Anor, the Court clarified that an architect’s scope of duty does not include ensuring that a building is certified so as to enable delivery of VP within the developer’s contractual period under the SPA. The purchasers’ remedy for delay/LAD lies against the developer, not the architect, and attempts to “disguise” a contractual LAD claim as a tort claim against the architect were rejected. (3) The Court held the SPAs clearly distinguished between “Parcel” and “Project”, and VP delivery was contractually tied to completion of the Parcel, not the entire Project. The term “Parcel” was expressly defined, leaving no scope for the purchasers’ interpretation that the whole project must be completed before VP delivery. The Court also relied on SPA provisions (including the clause acknowledging that construction of other parts of the Project may continue even after the Parcel receives CCC) to confirm the parties contemplated phased completion and delivery. Accordingly, the Court found the High Court erred in treating the issue as triable and requiring a trial. The contractual terms were clear and unambiguous, enabling summary disposal and striking out. (4) A large majority of purchasers had entered into full and final settlement agreements accepting LAD and agreeing to waive further claims. The Court held these settlement agreements should be honoured, and it would be unjust to allow the purchasers to reopen LAD issues that were unequivocally settled. They were therefore estopped from re-litigating the LAD claim. The Court observed that even if it were wrong on SPA interpretation, the claims would still be struck out because the settlement agreements independently barred the purchasers’ attempt to revive LAD claims. [Note: The purchasers subsequently obtained leave to appeal to the Federal Court against the Court of Appeal’s decision insofar as it concerned the Developer. The Federal Court allowed the appeal against the Developer and set aside the striking out order on a separate and distinct basis, namely that there remained an issue for trial in the High Court relating to the Developer’s alleged delay in procuring strata titles. The Court of Appeal’s decision in favour of the Architect remains undisturbed, as no appeal was pursued against that part of the judgment.]

[Balance purchase price — set-off / counterclaim for relocation costs, stamp duty, RPGT and legal fees — entire agreement clause — evidential discipline in cross-examination — unjust enrichment] Justin and Iris acted as counsel for the Defendant in this case. Background: This case involved the Plaintiff’s claim for the balance purchase price under a sale and purchase agreement (“SPA”) and supplemental SPA for a piece of land in Kuala Lumpur. The Defendant did not dispute the Plaintiff’s entitlement in principle, but asserted a set-off and filed a counterclaim for RM1,680,939.02 comprising sums allegedly expended on the Plaintiff’s behalf i.e. relocation costs, stamp duty, RPGT and legal fees. The Plaintiff’s central defence was that the Defendant’s payment of those items was “free” / gratuitous, said to be based on an alleged oral arrangement reached during negotiations. We highlight the following points: (i) The Court rejected the Plaintiff’s contention that relocation costs, stamp duty, RPGT and legal fees were given “for free”. Even assuming discussions occurred, the Court found the final SPA did not record such an arrangement, and the presence of an entire agreement clause (s 10.11 SPA) discounted any alleged pre-contract negotiations or arrangements. (ii) The Court discussed and adopted the English authority **Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] All ER (D) 1100, emphasizing, amongst others, that an entire agreement clause is intended to prevent a party from “threshing through the undergrowth” of negotiations to find some chance remark to found a collateral warranty claim; to avoid the peril and uncertainty of such a search; and to confirm the binding agreement is contained in the written document itself (i.e. the contractual terms are found in the document, not elsewhere). (iii) Balancing the alleged oral arrangement against the SPA and supplemental SPA, the Court held it was safe and reliable to rely on those written agreements which were specific and unambiguous, and entered into voluntarily by the Plaintiff without objection. (iv) The Plaintiff’s evidence was materially inconsistent as to who allegedly agreed to the arrangement and even as to the identity of a key person present at the relevant meeting(s). The Court held it could not ignore these confusing and conflicting facts. (v) Although the Plaintiff is a charitable organisation, the Court held this does not entitle it to blanket protection from performing obligations under the contract. If such preferential treatment was intended, it should have been reflected as a specific and vital contractual term, which it was not. (vi) A letter relied on by the Plaintiff in submissions could not be deployed as the Plaintiff failed to introduce it through its own witnesses. It only surfaced during cross-examination of the Defendant’s witnesses merely to ask if they were aware of it. The Court held there was no effective cross-examination on the nature/effect of the letter, and it was improper for the Plaintiff thereafter to run a full submission on it at closing, prejudicing the Defendant. (vii) The Court held there is no necessity for the Defendant to produce its audited accounts to maintain a counterclaim. The Plaintiff’s contention on this was overly simplistic. (viii) For relocation costs, the Court accepted that payment vouchers, purchase orders, receipts and payment certificates (Part B documents) supported the claim. It was impossible and unreasonable to call every person involved in the relocation process, as this would unduly delay trial. The real question was the weight of the documents. (xi) On evidential weight, the Court followed Chong Nge Wei v Kemajuan Masteron Sdn Bhd [2022] 3 MLJ 135 (FC), where the opposing party fails to provide contrary calculations/evidence, the proponent’s quotations/evidence should be taken into account, and bare assertions that the sum is excessive are insufficient. (x) The Court allowed the counterclaim also on unjust enrichment, reasoning that if the Plaintiff was not compelled to reimburse sums that were its obligations, the Plaintiff would have obtained the property without incurring those costs. The Court discussed the statutory/contractual basis and authorities including Siow Wong Fatt v Susur Rotan Mining Ltd and Dream Property Sdn Bhd v Atlas Housing Sdn Bhd, recognizing unjust enrichment as a developing but recognized area in Malaysia and affirming the restitutionary remedy to attain justice. Decision: The Court allowed the Plaintiff’s claim for the balance purchase price subject to the Defendant’s right of set-off, and allowed the Defendant’s counterclaim.

[Judicial Review — refusal of Universiti Malaya scholarship and paid study leave — time-barred, locus standi, non-amenability of “academic judgment”, and requirement for true judicial review prerogative reliefs] Justin acted as counsel for the Respondents in this judicial review application (High Court, Kuala Lumpur). Novel / Important Issues: Amongst others, we highlight that: 1. The case involves the novel issue whether a university’s refusal to grant a scholarship (to an academic staff applicant) is amenable to judicial review. 2. The Court decided that without the main judicial review remedies (e.g. certiorari and/or mandamus) being specifically prayed for, it is not a true judicial review application. The declaratory reliefs and damages are, at most, ancillary. Background (brief): The Applicant (a Universiti Malaya academic staff member) sought to challenge Universiti Malaya’s decisions rejecting her application for a Skim Latihan Akademik IPTA Tahun 2022 (“SLAI Scholarship”) and "Cuti Belajar Bergaji Penuh Tanpa Biasiswa" (“CBBPTB”)** (paid study leave without scholarship), and sought declarations and damages. Points of Law / Grounds of Judgment: The High Court dismissed the judicial review application and, amongst others, held as follows: (a) Out of time / time-barred: The judicial review was filed out of time. Although the Applicant contended there was an appeal process, the Court found there was no appeal process in reality and any “appeal” was assumed by the Applicant on her own terms. The rejection communicated on 31/5/2022 remained the final decision, and the filing on 27/9/2022 exceeded the 3-month statutory time limit. (b) No locus standi due to resignation: The Applicant had no locus standi and disabled herself from being able to seek the scholarship / study leave remedies because she resigned from UM (not forced to resign). Having resigned, she no longer held a position with UM and was no longer in a position to receive the benefits. (c) The Court held the prayers were academic. If the Applicant’s main purpose was to obtain damages, this became an abuse of process when she no longer had a right to the SLAI Scholarship / CBBPTB after resignation. (d) UM’s decision to prioritize another candidate for the scholarship was in accordance with the Human Talent Management (HTM) Policy and was not open to judicial review. The Court followed Sivapalan Govindasamy v Universiti Malaya [2020] 12 MLJ 354 (CA), holding that academic judgment / academic matters are generally not amenable to court supervision and this principle applies not only to conferment of a PhD but also to conferment of scholarships. (e) The CBBPTB application was assessed using the relevant application form and factors including manpower sufficiency, which were not open to judicial review. (f) The Court emphasized that "eligibility certainly does not equate to entitlement”. There was no taking away of an inherent right to the scholarship or study leave in the first place. (g) Order 53 requires main judicial review remedies. A judicial review application must comply with Order 53 rule 2(1) ROC, in which the application must seek reliefs in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (i.e. certiorari, mandamus, quo warranto, etc.). The Application sought declaratory reliefs and damages only. While declarations/damages may be ancillary under Order 53 r 2(2)–(3), this does not remove the requirement for main judicial review prayers. (h) The Court found the Applicant omitted certiorari/mandamus because she was not in a position to seek mandamus to compel UM to award SLAI Scholarship/CBBPTB after resigning. Any attempt to “include” such reliefs via a residual prayer was not bona fide and appeared to be an attempt to conceal that the main JR prayers were no longer relevant to her. (i) None of the persons allegedly making representations to the Applicant had the authority or power to decide on the success of her SLAI Scholarship / CBBPTB applications. (j) Damages were not proven, and the Court viewed the claim as effectively seeking UM to fund the Applicant’s private studies and pay future salary despite her resignation amounting to an unjust enrichment.

[Enforcement of foreign judgment (Shanghai, PRC) at common law — contractual submission to jurisdiction — public policy defence — proof/admissibility requirements under Evidence Act 1950] Justin (with Chooi Peng and Ko Xin) acted as counsel for the Defendant in this case. In this case, the Plaintiff sought to enforce two Shanghai judgments (first instance and appellate) ordering the Defendant to repay a RMB14 million loan with interest and fees. Both parties are Malaysians residing in Kuala Lumpur. The Defendant (then the Plaintiff’s employee) received the RMB14 million via instalments and bank transfers, and the parties executed a loan agreement providing that disputes would be resolved in the Putuo District Court, Shanghai, with Chinese law as governing law. When the Defendant did not repay, the Plaintiff sued in Shanghai and succeeded at first instance and on appeal (“Shanghai judgments”). The Plaintiff then applied to enforce the Shanghai judgments in Malaysia, alleging the Defendant had assets here. The Defendant opposed the application on, amongst others, the basis that China is not a First Schedule country under the Reciprocal Enforcement of Judgments Act 1958 (REJA), that the Shanghai Courts were not “courts of competent jurisdiction” under Malaysian common law and that enforcement should be refused on public policy / natural justice / alleged fraud grounds. The High Court addressed three main questions: 1. Whether the Shanghai Courts were courts of competent jurisdiction for common law enforcement purposes notwithstanding no reciprocity under REJA and differences between legal systems. 2. Whether the Defendant’s public policy objections (including alleged procedural prejudice, alleged illegal moneylending, and interest rates) were sustainable. 3. Whether the Shanghai judgments (as exhibited) were admissible/proved in accordance with the Evidence Act 1950, such that the enforcement application could succeed. On jurisdiction, the Court held that the parties had contractually submitted to the Shanghai forum and governing law, and in the absence of vitiating factors or exceptional circumstances, Malaysian courts generally hold parties to their bargain on jurisdiction clauses. The lack of reciprocity between China and Malaysia was not fatal because common law recognition of foreign judgments does not depend on reciprocity. On public policy, the Court held that the Defendant did not meet the high threshold to refuse enforcement. Procedural differences between inquisitorial and adversarial systems did not, without more, amount to denial of natural justice. The Defendant had the opportunity to present his case and appeal in Shanghai, and the Malaysian court would not reopen merits. The moneylending allegation failed for lack of evidence that the Plaintiff was carrying on a moneylending business. The interest rates awarded were not so exorbitant as to “shock the conscience” and did not justify refusal on public policy. The Court also rejected the fraud/natural justice objections on the facts. However, the application ultimately failed on proof/admissibility. The Court held that, following the Federal Court’s guidance on proving foreign judgments, the Shanghai judgments (produced as copies) had to comply with Section 78(1)(f) of the Evidence Act 1950 (certified copy with the required certification and proof of character according to foreign law) or alternatively satisfy Section 86 of the Evidence Act 1950. The copies exhibited did not satisfy either provision. In the absence of properly proved Shanghai judgments, the enforcement application could not be allowed and was dismissed with costs.

[Constructive Dismissal – pregnancy / work-from-home arrangement / employer conduct amounting to breach of trust and confidence] Iris acted as counsel for the Employee/Claimant in this case. This was a reference under section 20(3) of the Industrial Relations Act 1967 arising from the Claimant’s allegation that she was constructively dismissed. The Claimant commenced employment with the Company as an Assistant Office Administrator. During the COVID-19 surge, the Company’s employees worked from home, and later attended the office on rotation. While pregnant and initially unvaccinated, the Claimant’s doctor advised her to work from home for the remainder of her pregnancy to minimize COVID-19 exposure. The Industrial Court found that the Company had agreed to this WFH arrangement for the duration of pregnancy, but later reneged and required office attendance. After the Claimant conveyed her doctor’s written advice, she was asked to resign, her access to work email/IT resources was blocked, and she was removed from the Company’s WhatsApp group. The Claimant, through solicitors, issued a complaint letter seeking clarification, and the Company replied by maintaining she remained an employee. The Claimant claimed constructive dismissal. The Court restated the established principles on constructive dismissal, including that the proper inquiry is whether the employer committed a fundamental breach going to the root of the contract or evinced an intention not to be bound, and that where dismissal is disputed, the burden lies on the employee to prove dismissal. On the facts, the Industrial Court found the Company had employed tactics designed to force the Claimant out, and that reneging on the agreed WFH arrangement (especially in light of the doctor’s advice), coupled with cutting off work access and pressuring resignation, amounted to a breach of mutual trust and confidence and a fundamental breach of the employment contract. The Court also drew adverse weight from the Company’s failure to call key personnel involved in communications with the Claimant (particularly her immediate superior), and rejected the Company’s assertion that the Claimant had abandoned her employment. Accordingly, the Court held that the Claimant was constructively dismissed without just cause or excuse. Reinstatement was found unsuitable (among others because the Claimant obtained new employment), and the Court awarded backwages of 9 months and compensation in lieu of reinstatement of 2 months (less statutory deductions, if any).

[Strata Management Act/Whether the AGM or EGM of a Management Corporation can be injuncted and/or postponed by the Court – whether it is an offence and/or holding of AGM or EGM (when called) is mandatory, jurisdiction of the Court ; whether prevention of voting rights in an AGM or EGM in respect of sub-judice matters and/or disputed charges is proper] Justin was the counsel for the Appellants in all 3 Appeals herein. The Court of Appeal allowed all 3 Appeals. The said Court of Appeal decision is of significance and/or importance where amongst others :   (i)     It deals with the issue as to whether the Court has power to injunct and/or postpone an AGM which ought to be held annually under the Strata Management Act 2013  (SMA) and also an EGM which ought to be held when properly requisitioned by proprietors.   (ii)    The Court examined paragraphs 10 and 11 of the 2nd Schedule of the SMA and also Regulations 34 (1) and (2) of the Strata Management (Maintenance and Management) Regulations 2015(SMR) and held that :   “Based on the provisions provided in the SMA and the Schedule, we are  of the considered view that there is no express provision in the SMA to allow for the AGM and/or EGM to be postponed or a blanket prohibition of any AGM or EGM until full and final disposal of the Suit below”   (iii)   The Court of Appeal also referred to the previous High Court decision in Perbadanan Pengurusan Anjung Hijau v Pesuruhjaya Bangunan Dewan Bandaraya Kuala Lumpur [2017] 11 MLJ 554 which held that even if a statutory provision is mandatory, the Court may still be able to extend time under paragraph 8 of the Schedule of the Courts of Judicature Act 1964 and held that this decision could no longer be relied on by the 1st Defendant as it had been reversed by the Court of Appeal  and instead “clearly shows the opposite that no such power or jurisdiction exists”.   (iv)   The Court of Appeal also held that a perusal of the alleged causes of action of both the Statement of Claim and the 1st Defendant’s Co-Defendant Action clearly show that the alleged causes of action have got nothing to do with any alleged issue of AGM and/or EGM. In fact, the Plaintiffs can still pursue their claim against the Defendants even if the AGM and/or EGM is called. The Court also held that “there can be no serious issues relevant for the injunctions ordered by the Learned High Court Judge”   (v)     The Court of Appeal further held that the excuse given by the 1st Defendant that they are unable to prepare proper accounts for the AGM is without basis and the records show that the Report and Financial Statements of Jaya One Management Corporation as at 31/12/2020 have been finalised since on or about 30/8/2021 and  even if the financial report was not fully ready at the material time, the management account is sufficient enough for an AGM (see paragraph 7 of COB’s letter dated 15/11/2021).   (vi)   The Court of Appeal further stated that since 15/12/2021(High Court Orders) until today, there was no AGM held for the Jaya One Development which consists of about 908 parcel proprietors and neither can any parcel proprietors call for any EGM to address any issues concerning the development which may not even concern the Suit.   (vii)  The Court further took the view that it is the statutory duty of the 1st Defendant to hold the AGM yearly and to also hold the EHM required by parcel owners , instead of acting against its duty.   (viii) On the separate issue of an injunction filed by the 2nd Defendant (Appellant) against the dismissal of the said injunction to injunct the 1st Defendant from voting in the AGM by reason of disputed Invoices for sewerage charges imposed by the 1st Defendant, the Court held that the injunction ought to be allowed against the 1st Defendant.   (ix)    The Court of Appeal held that it is not proven that there are such sewerage charges in arrears as the 1st Defendant’s claim is still before the Court and pending determination before the Court. The Court agreed with the 2nd Defendant’s counsel’s submission that the 1st Defendant cannot rely on Paragraph 21(2) of the Second Schedule of the SMA to prevent the 2nd Defendant from voting when the sums due under the purported sewerage charges are disputed and sub-judice pending Court proceedings.   (x)     The Court of Appeal further held that there was no Invoice issued to the 2nd Defendant before the Suit was filed by the Plaintiffs and certainly before the said 1st Defendant’s Notice of Claim was filed and it is trite law that the 1st Defendant cannot improve their claim with facts that transpire after the date of pleading.   (xi)    The Court of Appeal also held that the 1st Defendant’s action shows that the 1st Defendant intends to use such purported outstanding sewerage charges to prevent the 2md Defendant from voting in the AGM and/or any general meeting of the MC and that :   “The aforesaid conduct by the 1st Defendant shows that their Co-Defendant’s Action is wrong and premature without Invoices and it was not bona fide” (xii) The Court of Appeal held that it will cause more prejudice and injustice to the 2nd Defendant by preventing the 2nd Defendant from voting by reason of the alleged sewerage charges which would be irreparable and cannot be adequately compensated by damages. (xiii) The 2nd Defendant also offered to deposit the disputed claim of outstanding sewerage charges into Court pending the disposal of the 1st Defendant’s Co-Defendant claim and there were bona fide issues to be tried and balance of convenience clearly favours the grant of an injunction in favour of the 2nd Defendant.

[Consequential Order to extend time after first order given by the Court of Appeal was breached] Justin was the counsel for the Defendants/Appellants in this case. In this case, pursuant to the Defendants’ 1st Appeal (CA), the following order was made by CA on 25.8.2021 [CA’s Order (25.8.2021)], among others: (1)the Defendants’ 1st Appeal (CA) was dismissed {Paragraph (a) [CA’s Order (25.8.2021)]}; and (2)the HC’s Dismissal (Defendants’ Striking Out Application) was varied wherein the Plaintiffs were required to join Mr. Soo and Ms. Lim as co-plaintiffs or co-defendants in the Suit within 14 days from the date of CA’s Order (25.8.2021) {14 Days Period [Paragraph (b)]} and if the Plaintiffs fail to do so, the Suit shall stand as struck off {Paragraph (b) [CA’s Order (25.8.2021)]}. Pursuant to Paragraph (b) [CA’s Order (25.8.2021)], on 2.9.2021 the Plaintiffs filed an application to join Mr. Soo and Ms. Lim as parties in the Suit [Plaintiffs’ Joinder Application (HC)]. The Plaintiffs’ Joinder Application (HC) was supported by an affidavit purportedly affirmed on 2.9.2021 by the second plaintiff (2nd Plaintiff) before a Commissioner for Oaths, Tengku Fariddudin bin Tengku Sulaiman (CFO). The Defendants objected to the Plaintiffs’ Joinder Application (HC) on the ground that, among others, the 2nd Plaintiff’s affidavit had not been affirmed before the CFO. The learned HC Judge struck out the Plaintiffs’ Joinder Application (HC) with - (1)no order as to costs; and (2)liberty to file a fresh Plaintiffs’ Joinder Application (HC) subject to “direction” (arahan) which may be obtained by the Plaintiffs from the CA with regard to the 14 Days Period [Paragraph (b)] (time period for the Plaintiffs to join Mr. Soo and Ms. Lim as parties in the Suit) The following three questions shall be decided in this judgment: (1)whether the CA is functus officio and cannot extend the 14 Days Period [Paragraph (b)]. This issue discusses the CA’s discretionary power under r 93 read with r 1A of the Rules of the Court of Appeal 1994 (RCA); (2)can the CA vary Paragraph (b) [CA’s Order (25.8.2021)] and order the Plaintiffs to file an application in the HC to join all relevant parties in the Suit within 14 days from the date of the order of this CA on 18.4.2023 (instead of the requirement for the Plaintiffs to obtain an order from the HC to join Mr. Soo and Ms. Lim in the Suit)? This concerns an interpretation of the purpose of CA’s Order (25.8.2021); and (3)whether the CA can vary Paragraph (b) [CA’s Order (25.8.2021)] pursuant to - o(a)r 105 RCA; and o(b)s 69(4) and (5) of the Courts of Judicature Act 1964 (CJA); without any appeal or application by the Plaintiffs to the CA. The Court stated that they were not able to find any previous Malaysian case which has decided on the above questions. The Court inter-alia allowed the variation of the Court Order and amongst others ordered that the Plaintiffs shall file an application to join all relevant parties in the HC within 14 days from the date of this order of CA (18.4.2023) and upon such a failure, the Suit shall be struck out

[Assessment of Damages – effect of previous consent order, abandoned medium costs apartment replaced by high end condominium, unjust enrichment, etc] This is an Appeal emanating from an assessment of damages, where the Court of Appeal dismissed the Appeal against the High Court decision where the Learned High Court Judge agreed with the respondent's/defendant's expert valuation report and rejected the appellant's /plaintiff's expert valuation report and the High Court also dismissed the appellant's/plaintiff's claim for liquidated ascertained damages (LAD) or alternatively loss of rental. After a series of litigation and appeal leading to the Federal Court , the Plaintiff did not succeed on specific performance and merely obtained damages against the Defendants The Grounds of Judgment of the Court of Appeal involves the important consideration of the question of law as to amongst others : (i)the effect of a Consent Order earlier entered by parties on the assessment of damages and whether it has now become academic and/or superseded (ii) unjust enrichment and whether the valuation should be based on a medium costs apartment (project abandoned) or a high end condominium ( built) (iii) effective date of valuation i.e. whether it should be based on the date of breach of contract or the Federal COurt decision binding parties (iv) whether the Plaintiff can still claim for LAD and/or rental when they are not entitled to specific performance The Court of Appeal held amongst others as follows :  (1)  Upon analysing the contemporaneous matters of the Court of Appeal Grounds of Judgment in Antara Vista Sdn Bhd v Rumaya Properties Sdn Bhd [2017] MLJU 1964; the Broad Grounds of the Federal Court decision and also the terms of the Consent Order, the Court is of the considered view that the Court of Appeal Order which was affirmed by the Federal Court should be the basis of assessment of damages before the High Court. (2) Based on the Court of Appeal Grounds of Judgment, the Court agree with learned counsel for the defendants' submission that the Court of Appeal  had directly ruled and held that "a monetary compensation would be the appropriate remedy to be awarded to the plaintiff in relation to the 18 units of medium-costs apartments that formed the subject matter of the 18 principal agreements". By this specific reference, the only inference that can be drawn is that the Court of Appeal is of the view the damages to be assessed should be based on the value of the medium- cost apartment in Vista Damansara and not the high -end condominium in Boulevard Residence. (3) It is pertinent to note that the Court of Appeal in Antara Vista did consider the issue of unjust enrichment and the differences between the development of Vista Damansara and Boulevard Residence. From the excerpt of the  of the Federal Court's Broad Grounds, the Federal Court took into account relevant factors to award damages in lieu of specific performance to the Plaintiff including amongst others "the present status of the subject matter" and "the element of unjust enrichment" (4) As to the element of "unjust enrichment"  it is crystal clear that the order of specific performance would unjustly enrich the Plaintiff. From the undisputed facts, the plaintiff paid a total sum of RM2,657,950 under the SPAs to purchase the medium costs apartments and If the order of specific performance is allowed, the value of 18 high end condominium as certified by the Plaintiff's valuer is in the whopping sum of RM12,822,0000 a nearly five fold increase comparing to the transacted value. (5) The Consent Order should be read in a purposive manner. From the choice of words used in the Consent Order, it's obvious that the 1st defendant desires to proceed with the development of Boulevard Residence and at the same time agreed to preserve the Plaintiff's right to make a claim against the 2nd defendant. Based on the scheme the intention was to preserve the status quo in the event that the Plaintiff succeeds in getting the specific performance order of the SPAs (6) Once the Court of Appeal and the later Federal Court disallowed the Specific Performance Order to the Plaintiff, the purpose of the Consent Order  can no longer stand. It has became academic or superseded by the apex court's decision. The Consent Order is no longer enforceable in the assessment of damages since the purpose of the order is overtaken by event or in other words became obsolete. (7)  The effective date of valuation for the assessment of damages should be as at the date the contract is lost i.e. the date when the land was transferred on 11/3/2008 and not the date of the Federal Court decision on 28/8/2019 (9) The Plaintiff's claim for LAD and/or alternatively rental of the 18 medium costs apartment do not arise at all in view of the fact that the plaintiff is not entitled to specific performance of the units. In other words, the claim for LAD or loss of rental is only possible if the Plaintiff is entitled to physical possession of the units and there is a delay in the delivery of vacant possession, which is not the case here. It is not disputed the 2nd defendant has abandoned Vista Damansara's development and no longer has the ability to deliver vacant possession of units to the Plaintiff under the SPAs.