ERA UNIVERSE DEVELOPMENT SDN BHD v 1. ) LIM KENNY 2. ) LIM PEI LAI

Case Significance

Upholds a summary judgment for liquidated ascertained damages against a housing developer for late delivery of vacant possession, confirming the proper treatment of the 289-day COVID-19 exclusion of time under Act 829 and rejecting a claim for further extension.

This High Court decision at Johor Bahru concerns a developer's appeal against a Sessions Court judgment entering summary judgment under Order 14 of the Rules of Court 2012 in favour of house purchasers. The respondents were the purchasers of a double-storey terrace house under a statutory sale and purchase agreement (Perjanjian Jual Beli — sale and purchase agreement) in Schedule G form dated 14 August 2018, and the appellant was the developer of the project. The Sessions Court had allowed the purchasers' claim for liquidated ascertained damages (LAD) for late delivery of vacant possession, ordering the developer to pay RM211,478.49 together with costs of RM3,000. On appeal, the developer raised several points, including whether the LAD should be computed on the full purchase price or on the price after a 9% rebate, whether it was entitled to a further extension by reason of a corporate management restructuring, and whether it could claim an additional exclusion of time under section 35 of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 (Act 829). The Court noted that the Sessions Court had already taken into account an exclusion of 289 days, covering the period from 18 March to 31 December 2020, consistent with the relevant gazette notification, and had excluded that period from the LAD computation. Reviewing the record, the Court was satisfied that the Sessions Court had not misdirected itself in law or fact: the arguments on management restructuring, the rebate-based computation and any further extension under Act 829 had all been properly and fully addressed. The Court reiterated that summary judgment is appropriate where a defendant raises no triable issue, and that the developer's points, having been fully ventilated below, disclosed no arguable defence to the statutory claim for late-delivery damages. Finding no error in the decision, the Court dismissed the appeal with costs, leaving the award of liquidated damages to the purchasers intact.