IN THE HIGH COURT OF MALAYA AT KOTA BHARU IN THE STATE OF KELANTAN DARUL NAIM, MALAYSIA CIVIL APPEAL NO: 12B-NCvC-11-02/2015 BETWEEN

Transcription

1 IN THE HIGH COURT OF MALAYA AT KOTA BHARU IN THE STATE OF KELANTAN DARUL NAIM, MALAYSIA CIVIL APPEAL NO: 12B-NCvC-11-02/2015 BETWEEN 1. PHUAH SING LAI (I.C. NO: / ) 2. CHUAH HANG CHOO (I.C. NO: / )... APPELLANTS AND LIAN LEE PROPERTIES SDN BHD (COMPANY NO: H)... RESPONDENT IN THE SESSIONS COURT AT KOTA BHARU IN THE STATE OF KELANTAN DARUL NAIM, MALAYSIA SUMMONS NO.: A /2014) BETWEEN 1. PHUA SING LAI (I.C. NO: / ) 2. CHUAH HANG CHOO (I.C. NO: / )... PLAINTIFFS AND LIAN LEE PROPERTIES SDN BHD (COMPANY NO: H)... DEFENDANT GROUNDS OF JUDGMENT The Plaintiffs Claim In this action by the Plaintiffs against the Defendant, the Plaintiffs are seeking the payment of RM125,128.77, being 1

2 damages for late delivery of vacant possession for the Plaintiffs three storey shophouse/office unit built on Title No: HSD 603, PT 5302 Mukim Kenor, District of Batu Mengekerang, Jajahan Kuala Krai, Kelantan that the Plaintiffs purchased from the Defendant. The Plaintiffs had purchased the said property for the price of RM440,000.00, after which as the Defendant had claimed, a discount of RM20, was given. For the hearing of this matter, three witnesses gave evidence. The First Plaintiff himself, Phuah Sing Lai was the sole witness for the Plaintiffs. For the Defendant, three witnesses testified. They are Lee See Yan, the Defendant s Manager (SD1) Wong Siew Chang, the Defendant s Project Co-ordinator (SD2) and Md Bakri bin Mat Adam, TNB Technician (SD3). At the end of the hearing, after all the witnesses had given evidence, the solicitors filed written submissions on behalf of the parties. Submissions of the Defendants Vide an agreement dated 12 September 2009 the Plaintiffs had purchased the property known as PT 5302, HSD 602, Mukim Kenor, District of Batu Mengkebang, Kuala Krai ( the Property ). The Defendant, vide a letter dated 28 January 2010 and payment voucher ( D10 ) made a repayment of RM20, back to the Plaintiffs, as discount on the purchase price, making the purchase price after deduction RM420, The Plaintiffs had given an acknowledgment ( D11 ) acknowledging receipt of the said payment. 2

3 The Plaintiffs claim against the Defendant is for late delivery of vacant possession, calculated until 17 July 2013, being the date of issuance of Certificate of Fitness for Occupation ( CF ). The Defendant argued that this is not the correct way of computing damages for late delivery of vacant possession. The Defendant said so since the Architect s Certificate of Practical Completion ( Architect s Certificate ) evincing that the property was fully completed was issued on 20 December 2011 ( D18 ). The Defendants had issued a notice for delivery of vacant possession as early as 24 December 2011, the receipt of which was acknowledged by the Plaintiffs ( P3 ). The Defendants said that they had fulfilled their obligations by connecting electricity supply to the property on 18 December 2011 ( D25 and D26 ) and that the Plaintiffs had made full payment of the purchase price to the Defendant on 21 April 2012 ( D19 ). Apart from the above facts, the Plaintiffs had by their actions shown that the Plaintiffs had knowledge of the fact that the property s construction was complete and that they were given vacant possession of the property since the Plaintiffs who had made visits to the property had made various complaints about defects to the property ( D20, D21, D22, and D23 ). The Defendants also reiterated that other purchasers in the same project had also received vacant possession at the same time but had not made any claims for late delivery calculated until the date of issuance of CF as the Plaintiffs had done. 3

4 The Defendants raised two issues for the determination of this Court. The first issue is whether the purchase price of the property was RM420, The second issue was the date of delivery of vacant possession of the property by the Defendant to the Plaintiffs. On the first issue, the Defendant said that by exhibits D10 and D11, the Defendant had proven that the Plaintiffs had received RM20, from the Plaintiff as discount on the initial price of RM440,000.00, making the purchase price RM420, The First Plaintiff had during Cross-Examination admitted to acknowledging receipt of the Defendant s payment of RM20, and had further admitted that the purchase price of the property was RM420,000.00, after deducting the said payment of RM20,000.00, being discount on the initial purchase price. The First Plaintiff had in his evidence admitted that the Plaintiffs claim for damages was based on the wrong purchase price. On the second issue the Defendant said that it had issued a notice for delivery of vacant possession dated 24 December 2011 that the Plaintiffs had acknowledged receipt ( P3 ). The Defendant referred to the Sale and Purchase Agreement ( P1 ) at page 9 of the Plaintiffs Bundle of Documents, specifically under clause 21(2) that upon expiry of 14 days from the date of receipt of such notice of delivery of vacant possession, the purchaser is deemed to have accepted vacant possession, regardless of whether the purchaser had been in possession or had occupied the property or otherwise. 4

5 The Defendant s solicitors referred to the case of IJM Corp Sdn Bhd v Zamri bin Hj Ibrahim & Anor [2014] 2 MLJ 335, a Court of Appeal case, where the Court referred to a clause in the Sale and Purchase Agreement, similar to the on in this case. Thus the Defendants submitted that since the Plaintiffs had failed to prove otherwise, the Plaintiffs are deemed to have taken vacant possession of the property on 8 December 2012, upon expiry of 14 days from the date of the notice of delivery of vacant possession. In addition to the above the Defendant submitted that the Defendant had proven that delivery of vacant possession was made on 8 January 2012 when the Architect s Certificate was issued on 20 December 2011 and connection of water and electricity was also done on 20 December The Defendant referred to Clause 21(1) of the Hire and Purchase Agreement that delivery of vacant possession is effected upon the issuance of the Architect s Certificate and connection of water and electricity to the building. The Plaintiffs had argued that the Architect s Certificate is not valid and that electricity supply had not been connected to the property. SD2 who was the project co-ordinator and was responsible for the issuance of the Architect s Certificate was called by the Defendants to give evidence on this point. The Defendants cited two cases on the manner in which delivery of vacant possession to purchaser is to be effected, i.e. by the way of issuance of a certificate by the Architect. The cases were Lim Chon Jat & Ors v Yusen Jaya Sdn Bhd [2011] 5 MLJ 239 and Chong By Sam Anor v Soon Teik Development Sdn Bhd [2009] 2 MLJ 906, where a clause in the Sale and Purchase 5

6 Agreement stipulated that even when delivery of vacant possession was effected in that manner, purchasers were not allowed to occupy their unit unless the certificate of fitness for occupation was issued by the local authority. A similar clause in the present case, clause 21(1) was referred to. Referring to the Plaintiffs contention that the Defendant had not delivered vacant possession since it had failed to connect electricity to the property, the Defendant referred to the cases of Tee Ah Kow v Wisma Enhua Realty Sdn Bhd [2004] 4 MLJ 532 and Intan Payong Sdn Bhd v Goh Saw Chan Sdn Bhd [2005] 1 MLJ 311 where it was stressed that Sale and Purchase Agreement must be read as a whole to construe the true intention of the parties and that a plaintiff could not just rely or pick a particular clause from the Agreement. The Defendants also pointed out that in the above cases, it was decided that the issue regarding delivery of vacant possession is distinct from the issue of fitness for occupation. The Defendant further referred to the case of Tay Chan Kong Seong v Bumibakti Development Sdn Bhd [1994] 3 CLJ 256 where it was decided that what is meant by connection of electricity to the property is connection of electricity to the Defendant s sub-station and that the Defendant had performed its obligation under the agreement by energising the sub-station. In our case the Defendant submitted that the Defendant had not only connected electric supply to the sub-station, but it had proven that electricity was connected to the property. What is left for the 6

7 Plaintiffs to do is pay deposit to TNB in order that the TNB meter could be installed. The Defendant had called SD3 to refute the Plaintiffs allegation that electricity was not installed to the property. SD3 had given evidence that electricity was installed and that what is left is for the Plaintiffs as owner of the property is to make payment to TNB for the TNB meter to be installed. SD3 said that only the Plaintiffs, as owners of the property can make such payment. The Defendant submitted that the Plaintiffs has knowledge that vacant possession had been given to them since they had made a visit to the property before 8 May 2012, much earlier than 17 July 2013, the date that the Plaintiffs had alleged the Defendants had given vacant possession. The Defendant further submitted that the fact that the Plaintiffs had made full payment of the purchase price on 21 April 2012 ( D19 ) shows that they have knowledge that vacant possession had been given since the Third Schedule of the Sale and Purchase Agreement stipulated that the full purchase price is payable upon delivery of vacant possession. The Defendant referred to the case of IJM Corp Bhd v Zamri bin Hj Ibrahim & Anor [2014] 2 MLJ 335 on this point. Submissions of the Plaintiffs There are two issues that the Plaintiffs had raised, firstly on the date of delivery of vacant possession and secondly on the purchase price of the property. 7

8 On the first issue the Plaintiffs submitted that vacant possession had not been delivered to the Plaintiffs on 8 January 2012 as the Defendant had alleged, i.e. two weeks from the date of the notice of delivery of vacant possession since water and electricity had not been connected to the property and Certificate of Fitness for Occupation ( CF ) had not been issued at that time. The Plaintiffs referred to the evidence of the Defendant s witnesses, SD1 and SD2, that the Defendant as developer has no obligation to connect electricity to the property and that it is the purchaser who should make the necessary deposit payment to TNB in order that electricity could be supplied to the building. The evidence of SD3 was that the developer is not authorised to make the said deposit payment on behalf of the owner for the supply of electricity to the property. The Plaintiffs submitted that SD3 who is a TNB Technician had admitted that the Defendant, being the developer of the project can apply and make the required deposit payment on behalf of the owner, with the owner s consent, in order that the property can be supplied with electricity. The Plaintiffs referred to the Defendant s letter to the Plaintiffs dated 23 July 2013 ( P7 ) where the Plaintiffs were asked to present a cheque of RM for the payment of deposit by the Defendant for water supply. The Plaintiffs submitted that if this could be done by the Defendant, they could have done the same with TNB in order that electricity could be supplied to the property. The Plaintiffs submitted that the evidence of the Defendants witnesses contravenes the provisions of clauses 17(1), (2) and 8

9 21(1) of the Sale and Purchase Agreement in that their evidence had stated that their obligation is only to get electricity and water ready to be connected to the property and that the owner of the building should make the requisite deposit payment to TNB in order that electricity could be supplied to the property, whereas the said clauses stipulate that electricity and water supply must have already been connected to the building. On the issue of connection of water and electricity to the building, the Plaintiffs referred to the Court of Appeal case of Syarikat Kemajuan Perumahan Negara Sdn Bhd v Lee Cheng & Anor [2006] 1 MLJ 150 where the Court of Appeal decided that at the time of delivery of vacant possession of the building, the developer must ensure that there is supply of water and electricity ready for tapping into the building, not the mere laying of pipes and cables for electricity to and water to connect the said building to the sub-station or water mains. Based on the above case, the Plaintiffs submitted that it is the Defendant s obligation to supply water and electricity to the building and that it is not sufficient for the Defendant to merely lay pipes and cables to the electricity sub-station or water mains to connect water and electricity. The Plaintiff said that the Defendants must ensure that at the time of delivery of vacant possession, there is water and electricity in the building, such that when the owner enters the building, such that when the light bulbs are fixed and switches are flicked, the building will be illuminated. The Plaintiffs submitted that based on the said provisions of the Sale and Purchase Agreement and the above case law, it is the Defendant s 9

10 duty to apply and obtain the necessary permission from the Plaintiffs in order that they could apply to TNB on behalf of the Plaintiffs for electricity to be supplied to the property. The Plaintiffs submitted that the Architect s Certificate ( D18 ) is not valid by virtue of the reason that the Architect in D18 had stated that electricity and water is ready for connection when clauses 17(1), (2) and 21(1) of the Sale and Purchase Agreement stipulates that at that point of time electricity and water must already have been connected to the property. On this point, the Plaintiffs referred to the case of Soon Teik Development Sdn Bhd v Liew Tuo Chee & Ors [2011] 6 MLJ 350 where the Court of Appeal decided that in the absence of a proper certificate of practical completion, the building is presumed to not have been completed until the issuance of the CF. The Plaintiffs submitted that by virtue of the above argument and case law, the Defendant s notice of delivery of vacant possession dated 24 December 2011 to the Plaintiffs is not valid since it is based on an Architect s Certificate of Practical Completion that did not comply with the provisions of clauses 17(1), (2) and 21(1) of the Sale and Purchase Agreement. The Plaintiffs referred to the letters from IMS to TNB dated 25 July 2011 where an application for domestic electrical supply was made by IMS Consultants on behalf of the Defendant for the project, but PT 5302, the Plaintiffs Lot was not included in the application and was not in the list of units in urgent need of electrical supply from TNB. TNB s letter to the Defendant, dated 11 October 2011 was also referred to, where again, the Plaintiffs Lot, 10

11 PT 5302 was not included in the list of building units allocated for supply. Since the Plaintiffs Lot was not in the list, there would not have been any connection of electricity to the Plaintiffs unit at the time the Defendant had sent the notice of delivery of vacant possession dated 24 December 2011 to the Plaintiffs and there could not have been any delivery of vacant possession 14 days after the expiry of the notice, on 8 January The Plaintiffs referred to clause 22 of the Sale and Purchase Agreement, regarding the provision that the vendor must obtain the Certificate of Fitness for Occupation ( CF ). It says that the Vendor must according to clause 21(1), at his own costs and expenses comply with the requirements of the relevant authority that is necessary for the issuance of the CF for the building. The Plaintiffs referred to clause 21 (1) of the Sale and Purchase Agreement where it was provided that possession does not give the owner the right of occupation to the purchaser until the CF for the building is issued. The Plaintiff submitted that by virtue of this provision, vacant possession can only be delivered after the CF is issued. In the present case it was only issued on 17 July The Plaintiffs referred to the cases of Thomas a/l Iruthayam & Anor v LSSC Development Sdn Bhd [2005] 4 MLJ 262, Intan Payong Sdn Bhd v Goh Saw Chan Sdn Bhd [2005] 1 MLJ 311 and Alexander John Shek Kwok Bun v Rich Avenue Sdn Bhd [2008] 2 MLJ 481, all High Court decisions, where it was decided that delivery of vacant possession is the date when certificate of fitness is issued, with water and electricity supplied to the building. The Plaintiffs submitted that the date of delivery of vacant 11

12 possession to the Plaintiffs should be on or after the issuance of the CF dated 17 July 2013 and that it cannot be on January 2012, two weeks after the Defendant s notice of delivery of vacant possession dated 21 December On the second issue, the Plaintiffs submitted that the calculation for late delivery of vacant possession should be based on the purchase price of RM440, as stated in the Sale and Purchase Agreement and not on the discounted price of RM420, as alleged by the Defendant. The Plaintiffs referred to Clause 20 (1) and (2) of the Sale and Purchase Agreement where it was provided that liquidated ascertained damages are calculated at the rate of 10% of the purchase price. The Plaintiffs submitted that there was no mention of any discounted price in the Sale and Purchase Agreement and that the said Agreement must be construed within its four corners. The Plaintiffs further submitted that the period of late delivery of vacant possession should be calculated from 12 September 2010, the expiry of 24 months from the date of the Agreement until 17 July 2013, the date of issuance of the CF and delivery of vacant possession bringing the amount of damages claimed to RM1255,12.77 (1038 days/ 365 days X RM440, X 10%) and not RM55, as the Defendant had claimed. Decision of the Court After hearing the evidence of witnesses in this case and upon reading the written submissions filed by the parties, the Court held on a balance of probabilities that vacant possession was delivered to the Plaintiffs on 8 January 2012, the date when the 12

13 Architect s Certificate of Practical Completion was issued and water and electricity was connected to the property and not date of issuance of the Certificate of Fitness for Occupation on 1 July Therefore damages for late delivery of vacant possession is 44 days/ 365 days X RM420, X 10% = RM55, The Plaintiffs claim was allowed at RM55, with interest at 5% p.a. and costs of RM4, The Plaintiffs were not satisfied with the above decision of the Court and filed a Notice of Appeal to the High Court. Herein below are the Court s reasons for the said decision. Grounds of Decision There are two issues for the determination of this Court as both sides had suggested, they are: I. When was vacant possession delivered by the Defendant to the Plaintiffs; II. How much was the purchase price. The Court had scrutinised the said issues, based on the evidence adduced and submissions of the parties, coupled with authorities forwarded, and had found as follows: I. When was vacant possession delivered by the Defendant to the Plaintiffs 13

14 As for the issue of late delivery, there is no dispute. The Defendant does not seem to dispute that there is late delivery of vacant possession of the property to the Plaintiffs. What is in dispute is the computation of time from the 24 months after the date of signing of the Sale and Purchase Agreement to the date of delivery of vacant possession. Was vacant possession delivered 14 days from the date of the notice of delivery of vacant possession sent by the Defendants, the Architects Certificate of Practical Completion ( Architect s Certificate ) and connection of electricity and water supplies or was it on or after the date of issuance of Certificate of Fitness for Occupation ( CF )? The Court is mindful that this is a legal issue, as well as a factual one. It involves interpretation of the law, the provisions of the Sale and Purchase Agreement that bound the parties and case law. As the authorities submitted by the parties had shown, the law on late delivery of vacant possession is by no means trite. There is much debate about it going on and there is still room for argument as the parties submissions had shown. The Plaintiffs had relied on the Court of Appeal decision of Soon Teik Development Sdn Bhd v Liew Tuo Chee & Ors [2011] 6 MLJ 350 to support its argument that the date of delivery of vacant possession should be on or after the date of issuance of CF by the relevant authorities. This decision, being a decision of the Court of Appeal should be binding on this Court. There is no doubt about it. However, going a step further, if we are to read the whole decision of the Court of Appeal in that case, there was the issue of the Architect s Certificate being very vague and 14

15 inconclusive such that it falls short of the requirement of certifying the practical completion of a property. It was with that scenario that the Court of Appeal held that in the absence of a proper certificate of practical completion pursuant to clause 25 of the Agreement in that case being issued, the property must presumed to have not been completed until the issuance of the CF or any time before. The Plaintiffs had equated the Architect s Certificate in our case with the one in Soon Teik Development. The particular provision in the Architect s Certificate that the Plaintiffs referred to was Item No. 3 where the Architect states: 3) Semasa serahan kosong bangunan tersebut dengan bekalan air dan elektrik sedia untuk penyambungan. The Plaintiffs said that this particular provision contravenes clauses 17(1), (2) and 21(1) of the Sale and Purchase. On this the Court refers to the case of Tee Ah Kow v Wisma Enhua Realty Sdn Bhd where the court decided that: The plaintiff could not pick a particular clause, but must accept the agreement as they find it. In Intan Payong Sdn Bhd v Goh Saw Chan Sdn Bhd, another case on this point that was referred to by the Plaintiffs solicitors, the court stated: It is an established principle that in construing an agreement, the various clauses in the agreement must be considered as a whole and not singly or independently of one another in order to construe the true intention of the parties to the same. 15

16 In the present case, the Defendants had called SD2 who was responsible for the preparation of the Architect s Certificate. SD2 had stated in his evidence that the property was practically completed at the time the Architect s Certificate was issued on 20 December 2011 and this evidence was unchallenged. The situation in this case is not the one envisaged in Soon Teik Development. The Architect s Certificate in the present case is by no means vague and conclusive. Thus the issuance of the Architect s Certificate complies with the provisions of the Sale and Purchase Agreement as to the manner in which delivery of vacant possession to the Plaintiffs is to be effected by the Defendant, i.e. by way of the issuance of a certificate by the Defendant s Architect certifying that the construction of the Plaintiff s unit had been practically completed. Since there is a valid Architect s Certificate, the presumption in Soon Teik Development that the building had not been completed unless CF is issued, had not been triggered. Soon Teik Development did not say that the date of delivery of vacant possession should be on or before the date of issuance of the CF in all cases. What was said was that in the absence of a valid Architect s Certificate, delivery of vacant possession is not deemed to have taken place until the issuance of CF. If there is a valid Architect s Certificate, then the date of delivery of vacant possession should be from the date of issuance of the Architect s Certificate, coupled with the connection of water and electricity to the property. Indeed, it is not the law that delivery of vacant possession could only be effected upon issuance of the CF. 16

17 The issue of issuance of CF and connection of water and electricity are two separate and distinct issues. As stated in the case of Syarikat Lean Hup (Liew Brothers) Sdn Bhd v Cheow Chong Thai [1988] 3 MLJ 221, the CF was not a sine qua non for the connection of water and electricity supplies and was distinct and separate from the issue of vacant possession. It was stated in that case that upon issue by the vendor s architect of a certificate certifying that the construction of the said building has been duly completed and the purchaser having paid all the monies payable, the vendor shall let the purchaser into possession. However such possession shall not give the purchaser the right to occupy until such time as the CF is issued. The provisions of the Sale and Purchase Agreement in the said case is similar to the one in ours. The Court finds that the evidence of SD3, an officer from TNB on the connection of electricity to the property is sufficient to rebut the Plaintiffs allegation that there was no connection of electricity to the building. SD3 had given evidence that the Defendant had made payment to TNB on 14 December 2011 and 1 August 2011 and electricity supply was connected to the property on 18 December On the Plaintiffs contention that the connection of electricity to the property would mean more than merely connection to the Defendant s sub-station, the Court refers to the case of Tay Chan Kok Seong v Bumibakti Development Sdn Bhd, where it was decided that: Connection of electricity to the property must necessarily mean only connection of electricity to the defendant s sub-station. The defendant having energised the sub-station on 18 February 198, has performed his obligation under the Sale & Purchase Agreement.. 17

18 Section 39(1) of the Electricity Act 1949 legally prohibits the defendant from installing meters at the houses within the projects, even if the defendant wished to do so. Only the LLN (now TNB) can install the meters and connect electricity to the houses. The issues in the above case bears much similarity with the ones now before the Court. The Defendant did not merely lay the cables but had energised the sub-stations such that the only thing left for the Plaintiffs to do is pay the necessary deposit to TNB in order that the meter could be installed. The Court refers to Tay Chan Kong Seong again: As the developer, the defendant had to build a sub-station for the supply of electricity to all houses in the project. The sub-station had been energised. What was left to be done was for meters to be installed at the houses within the project. This the defendants could not do even if they wanted to. The connection of electricity to each and individual house within the housing project was something outside the control of the defendants. Connection of electricity to the building must necessarily mean only connection of electricity to the defendant s sub-station, namely 18 February This is a clear proposition of the law and it had not been overruled by a decision of the apex Court. The cases cited by the Plaintiffs, Thomas Iruthayam & Anor v LSSC Development Sdn Bhd, Intan Payong Sdn Bhd v Goh Saw Chan Sdn Bhd and Alexander John Shek Kwok Bun are all High Court cases. Hence the law in Tay Chan Kong Seong is still good law. 18

19 So are the cases of Chong By Sam & Anor v Soon Teik Development Sdn Bhd, Syarikat Lean Hup (Liew Brothers) Sdn Bhd v Cheow Chong Thai. They still provide invaluable guidance in determining the issue of delivery of vacant possession. From the above reasons, it can be surmised that the date of delivery of vacant possession was on 8 January 2012, i.e. 14 days after the date of the notice of delivery of vacant possession and after the issuance of the Architect s Certificate and water and electricity is connected. The Court observes that the Plaintiffs are aware of the delivery of vacant possession since the First Plaintiff ( SP1 ) had given evidence that he had received the said notice and had thereafter paid the purchase price and had visited the property. His visit was on 8 May 2012, much earlier than the purported later date of delivery that was on the same day that CF was issued, on 17 July The Court refers to the case of IJM Corp Sdn Bhd v Zamri bin Hj Ibrahim & Anor [2014] 2 MLJ 335 cited by the Defendant on subsequent conduct of the purchase. Just as in IJM Corp, the Plaintiff in our case had also paid the purchase price of the property, much earlier than the purported date of delivery on 17 July II. How much was the purchase price The Plaintiffs submitted that the purchase price should be RM440, as stated in the Sale and Purchase Agreement and not the discounted price of RM420, alleged by the Defendants. The payment of RM20, as discount on the 19

20 purchase price was proven by the Defendants letter to the Plaintiffs dated 28 January 2010 ( D10 )n and the Defendant s payment voucher was marked as D11. The Court finds that these are sufficient unrebutted proof that there is a discount on the initial purchase price and that this discounted price should be used in the computation of damages for late delivery. Thus, taking 24 months from the date of the Sale and Purchase Agreement until 8 January 2012 (14 days after the issuance of the Notice of Delivery of Vacant Possession) the number of days of late delivery is 484 days, divided by 365 days, multiplied by RM420,000.00, further multiplied by 10% of the said purchase price of RM55, Thus the Court allowed the Plaintiff s claim based on this computation together with interest of 5% per annum with interest and costs. Prepared on 2 APRIL 2015 by: (ADLI BIN ABD GHALIB) Sessions Court Judge Kota Bharu, Kelantan (Decision on 2 February 2015) 20

21 CASES REFERRED TO: 1. IJM Corp Sdn Bhd v Zamri bin Hj Ibrahim & Anor [2014] 2 MLJ Lim Chon Jat & Ors v Yusen Jaya Sdn Bhd [2011] 5 MLJ Chong By Sam Anor v Soon Teik Development Sdn Bhd [2009] 2 MLJ Tee Ah Kow v Wisma Enhua Realty Sdn Bhd [2004] 4 MLJ Intan Payong Sdn Bhd v Goh Saw Chan Sdn Bhd [2005] 1 MLJ Tay Chan Kong Seong v Bumibakti Development Sdn Bhd [1994] 3 CLJ Syarikat Kemajuan Perumahan Negara Sdn Bhd v Lee Cheng & Anor [2006] 1 MLJ Soon Teik Development Sdn Bhd v Liew Tuo Chee & Ors [2011] 6 MLJ Thomas a/l Iruthayam & Anor v LSSC Development Sdn Bhd [2005] 4 MLJ Intan Payong Sdn Bhd v Goh Saw Chan Sdn Bhd [2005] 1 MLJ Alexander John Shek Kwok Bun v Rich Avenue Sdn Bhd [2008] 2 MLJ

22 FOR THE PARTIES: Teo Poh Oon for the Plaintiffs, Messrs Teo & Chew Advocates and Solicitors 2835, Tingkat 1 & 2, Jalan Temenggong Kota Bharu, Kelantan Darul Naim Mohammad Rafaie bin Adnan for the Defendants Messrs Rafaei & Co. Advocates and Solicitors No. 781-D, Tingkat 2 Jln Gajah Mati Kota Bharu, Kelantan Darul Naim 22