EXCELENTE AMIGOS SDN BHD v MAH SING PROPERTIES SDN BHD

Case Significance

Illustrates the operation of a contractual extension of time for late delivery of vacant possession where the delay was caused by a public authority's incomplete utility works, the court upholding the developer's reliance on force majeure supported by the engineer's certification and dismissing the purchaser's liquidated-damages claim.

This High Court decision is an appeal from the Sessions Court concerning a purchaser's claim for liquidated agreed damages for the late delivery of vacant possession of a factory unit, and it turns on the validity of an extension of time for a delay caused by a public authority. The purchaser had bought a detached factory from the developer under a sale and purchase agreement requiring delivery of vacant possession within thirty-six months, subject to any extension of time under the contract for events beyond the developer's control, with liquidated agreed damages payable at 10% per annum for any unexcused delay. Before the completion period expired, the developer notified the purchaser of extensions of time due to incomplete utility works by the national electricity utility, supported by correspondence from the project engineer, and delivered vacant possession with the certificate of completion and compliance; the purchaser raised no objection at the time, but some four years later claimed liquidated damages for an alleged 150-day delay. The Sessions Court dismissed the claim, finding that the delay was caused by circumstances beyond the developer's control and that the extensions were valid under the contract. On appeal, the court applied the principle that it would not interfere with the trial court's findings of fact unless it had plainly gone wrong. It held that the developer had discharged the burden of proving the force-majeure event on the balance of probabilities, relying on contemporaneous documentary evidence — the architect's opinion, the engineer's certifications, the utility's correspondence, and numerous minutes of meeting — establishing that the delay was caused by the utility's incomplete external electrical infrastructure works. It rejected the purchaser's argument conflating the act of certification with its communication, holding that what mattered was that the extension had been certified by the engineer and communicated to the purchaser. Finding no error of law or fact, the court dismissed the appeal with costs. The judgment illustrates the operation of a contractual extension of time for delay caused by a public authority.