UTUH SEJAGAT SDN BHD v VALERIE KHO IK LEE

Case Significance

Illustrates the contractual force of the schedules to a sale and purchase agreement in fixing a developer's obligation to allocate a car park to its agreed location, and the availability of specific performance to compel the developer to honour that obligation.

This High Court decision at Shah Alam is an appeal by a developer against a Sessions Court decision, given after a full trial, allowing a purchaser's claim over the allocation of a car park. The developer had built a condominium, and the purchaser had bought a unit under a sale and purchase agreement. The dispute concerned the location of the car park allocated to the purchaser's unit, which differed from the location provided for in the agreement. The purchaser sought specific performance to compel the developer to allocate the car park to its intended location. On appeal the developer challenged the Sessions Court's decision. The court held that the schedules to the sale and purchase agreement, which identified the car park and its location, formed an integral part of the agreement, and that the developer was therefore under a contractual obligation to allocate the car park to the location specified in it. Because the car park had been allocated in a different location, the developer was in breach of that obligation, and the Sessions Court had rightly ordered it to comply with the terms of the agreement in respect of the purchaser's car park. Finding no error in the decision below, the court dismissed the developer's appeal with costs fixed at RM10,000. The court's approach shows that everything a developer promises in the schedules and plans annexed to a sale and purchase agreement is as much a part of the bargain as the clauses in the body of the document, so that a purchaser given a car park in a location other than the one agreed is entitled to hold the developer to the agreement, and that specific performance, rather than damages alone, is an appropriate remedy where what the purchaser bargained for was a particular parking bay in a particular place. The judgment is a useful illustration of the contractual force of the schedules to a sale and purchase agreement in fixing a developer's obligation to allocate a car park to its agreed location, and of the availability of specific performance to enforce that obligation.