Sime Darby Property (Bukit Jelutong) Sdn Bhd v 1. ) NITT SDN BHD 2. ) Susilawati Binti Ahmad

Case Significance

Confirms that the Housing Development Act 1976 protects corporate and individual purchasers alike, that a developer's own inspection and rectification records carry only the weight a trial court assigns them, and that forgery allegations must be proved on the civil standard; the developer's appeal was dismissed with costs.

This Court of Appeal decision is one of six 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 allowing purchasers' claims for defective luxury homes. In this appeal the respondents are a corporate purchaser, Nitt Sdn Bhd, together with an individual co-purchaser (a natural person referred to here by role). A theme especially relevant to this appeal is the evidentiary treatment of the developer's inspection and rectification records, and the allegations of forgery surrounding them.

Across the appeals the court addressed 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 under Regulation 11(1B) of the 1989 Regulations. It gave particular attention to the evidentiary weight of defect-rectification forms and final-inspection forms, the allegations that certain such documents were forged, and where the burden of proof lay on those allegations — questions to be resolved on the civil standard, weighing oral against expert evidence. It also considered contractual interpretation informed by business common sense and implied terms, and the quantum of rectification costs under section 74 of the Contracts Act 1950.

On the merits the court found no basis to interfere. 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 that the purchasers had "successfully discharged their legal and evidential burden to prove the Rectification Costs incurred". Finding "no merits whatsoever" in the developer's appeals, it dismissed all six, affirmed the High Court, and ordered costs of RM30,000 to the respondents in each appeal.

The judgment confirms that the Housing Development Act's protections apply whether the purchaser is a company or an individual, that a developer's own inspection and rectification records carry only such evidentiary weight as the trial court assigns them, and that allegations of forgery must be proved on the civil standard by the party asserting them.