Sime Darby Property (Bukit Jelutong) Sdn Bhd v Shaiful Hamidi Bin Basirdin

Case Significance

Reinforces that the Housing Development Act 1976 is protective social legislation under which a developer cannot contract out of liability for latent defects surfacing beyond the defect-liability period; the developer's appeal against an individual purchaser was dismissed with costs, the trial judge's expert-evidence findings undisturbed.

This Court of Appeal decision is one of six related housing-defect appeals, heard together, in which the developer Sime Darby Property Berhad (with Sime Darby Property (Bukit Jelutong) Sdn Bhd substituted as appellant) challenged High Court decisions that had allowed purchasers' claims for defective luxury homes. In this appeal the respondent is an individual purchaser, a natural person referred to here by role. The particular value of the case for this respondent lies in how the court approached the distinction between latent and patent defects and the scope of the defect-liability period (DLP).

The consolidated appeals concerned the developer's obligations of good workmanship, quality materials and luxury housing standards under the Housing Development (Control and Licensing) Act 1976, and the limits on contracting out imposed by Regulation 11(1B) of the 1989 Regulations. Central to the analysis was whether particular defects were latent — not reasonably discoverable within the DLP — or patent, and whether the rectification of each was recoverable. The court also weighed the evidentiary treatment of defect-rectification and final-inspection forms, including allegations of forgery and the incidence of the burden of proof, together with causation on the "but for" test where multiple causes were in play and the apportionment that may follow.

On the merits the court found no reason to disturb the trial judge's findings. It held there was "no manifest error in the High Court's appreciation of evidence", that the judge's preference for the purchasers' expert witnesses was "sound and reasonable", and that the purchasers had "successfully discharged their legal and evidential burden to prove the Rectification Costs incurred". Concluding that there were "no merits whatsoever" in the developer's six appeals, the court dismissed them all, affirmed the High Court and ordered costs of RM30,000 to the respondent in each appeal.

The judgment reinforces that the Housing Development Act operates as protective social legislation, that a developer cannot contract out of its statutory obligations for latent defects surfacing beyond the defect-liability period, and that appellate courts defer to a trial judge's reasoned preference among competing expert opinions on construction defects.