PERRESIA RESOURCES (M) SDN BHD v PERSPEKTIF MASA SDN BHD

Case Significance

Confirms that a Deed of Settlement superseding the original sale agreements governs the parties' rights, so an LAD remedy not preserved in the deed cannot be revived — and that a purchaser who delays for years may be barred by laches and inordinate delay in any event.

This High Court decision at Klang, one of two suits concerns companion suits, heard and decided together, over a claim for liquidated ascertained damages (LAD) for the late delivery of vacant possession of two condominium units. The plaintiff was the purchaser of two units in a development in Ampang built by the defendant developer, under two Sale and Purchase Agreements both dated 22 February 2011. The purchase price was said to have been satisfied by third-party consideration — a debt the defendant owed to a quantity-surveying firm — reflected in a Deed of Settlement dated 29 August 2013 between that firm and the defendant. Under the SPAs vacant possession was to be delivered within 36 months, by 21 February 2014, and the plaintiff claimed LAD for the delay.

The court examined whether the plaintiff was entitled to the LAD it claimed, and the answer turned on the effect of the Deed of Settlement. The court found that the SPAs had been superseded by the Deed of Settlement, and that the terms and conditions of the Deed made no mention of any claim for LAD. In those circumstances the contractual foundation for the LAD claim had fallen away. The court further held that the plaintiff, and the quantity-surveying firm behind the third-party consideration, were in any event barred by laches and by an inordinate and inexcusable delay from pursuing the claim, having effectively slept on and acquiesced in the position for many years.

The court dismissed the plaintiff's claim and ordered the plaintiff to pay the defendant costs of RM25,000 in this suit. Read with its companion, the judgment illustrates two related principles: a settlement deed that supersedes the original sale agreements will govern the parties' rights, so that a remedy such as LAD not preserved in the deed cannot be revived; and a purchaser who delays for years before advancing a claim risks being shut out by laches and inordinate delay quite apart from the merits.