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

Case Significance

Demonstrates that LAD and unjust-enrichment claims for late delivery cannot survive where a later Deed of Settlement supersedes the sale agreements and omits the remedy sought, and where the claimant has delayed unconscionably before enforcing its asserted rights.

This High Court decision at Klang is the second of two companion 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 decisive issue was the standing and contractual basis on which the LAD could be claimed. The court addressed questions of locus standi and of who was the rightful owner or merely a nominee, noting the principle that an agent cannot sue or be sued on contracts entered into on behalf of a principal. It then found that the two SPAs had been superseded by the Deed of Settlement, and that the Deed contained no provision preserving any entitlement to LAD. With the sale agreements displaced by a later settlement silent on LAD, there was no contractual right on which the claim could rest. The court additionally held the claim to be defeated by laches and by inordinate and inexcusable delay, the plaintiff having acquiesced in the position for well over a decade.

The court dismissed the plaintiff's claim and ordered the plaintiff to pay the defendant costs of RM25,000 in this suit. Taken together with its companion, the decision demonstrates that unjust-enrichment and LAD arguments cannot survive where a subsequent settlement deed governs the transaction and omits the remedy sought, and where the claimant has delayed unconscionably before enforcing whatever rights it asserts.