1. ) ABDUL HAZIQ BIN MATLAN 2. ) ABDULLAH SANI BIN SAAD & MIZALAWATI BINTI MUHARRUDIN 3. ) AZLINDAWATI BINTI PANDAK MAT YUSOP 4. ) BHARATHI A/L KRISHNAKUMAR 5. ) DANIAL FITRI BIN NORIZAM & SITI NOR ATIQAH BINTI AZIZAN 6. ) DEE DE FANDEE BIN JAAFAR 7. ) FATIMAH BINTI MOHAMED TAJUDDIN 8. ) HAFI BIN HASAN & AMNI SYAZWANI BINTI ABDUL LATIFFE 9. ) HAMIMI ARIFF BIN SAFIE 10. ) HASNITA BINTI MAHMUDDIN & NAZARUL IZZAT BIN AHMAD SHUKRI 11. ) HAZRI HAFIZI BIN HALIM 12. ) IKHWAL NURAZZEMAN BIN IKHSAN 13...

Case Significance

Confirms that liquidated ascertained damages for the late delivery of vacant possession under a Schedule G agreement run from the date of the booking fee, the date of the bargain, and addresses the interaction of that rule with the Covid-19 extension of time and its exclusion period under section 38C(4).

This High Court decision concerns a representative action by house purchasers for liquidated ascertained damages for the late delivery of vacant possession, and the correct method of computing that entitlement. A group of purchasers of housing units in a development sued the licensed developer for liquidated ascertained damages under sale and purchase agreements in the statutory form prescribed by Schedule G of the Housing Development (Control and Licensing) Regulations 1989; the claim against the registered proprietor of the land was struck out by consent, and the action proceeded against the developer alone. The facts were largely undisputed and the issues were principally questions of law about how the damages should be computed. The central question was whether the period for the damages begins to run from the date of payment of the booking fee, being the date of the bargain, or from the later date of the sale and purchase agreement. The court also had to consider the effect of the extension of time granted under the temporary Covid-19 legislation, in particular the exclusion period under section 38C(4) and whether it applied only to purchasers who had paid a booking deposit before a specified date, and whether the damages should be calculated on the purchase price or on a discounted price. Following the settled approach, the court held that the liquidated ascertained damages run from the date of payment of the booking fee, the date of the bargain, and computed the purchasers' entitlement accordingly, taking into account the statutory development period and the extension of time. It granted declarations to that effect and ordered the developer to pay liquidated ascertained damages in a total sum exceeding RM1.3 million to the purchasers, with interest and costs. The judgment is a useful illustration of the principle that liquidated ascertained damages for late delivery run from the date of the booking fee, and of the interaction between that principle and the Covid-19 extension of time.