B.U. DEVELOPMENTS SDN BHD v 1. ) ADELINE TAN KEAN SIM 2. ) TRIBUNAL TUNTUTAN PEMBELI RUMAH

Case Significance

Applies the Federal Court's PJD Regency rule that liquidated ascertained damages for late delivery of vacant possession run from the date the booking fee is paid, not the date of the statutory sale and purchase agreement — so a developer cannot curtail its LAD exposure by delaying the agreement after taking a booking fee.

This Court of Appeal decision, in a judgment delivered by Lim Chong Fong JCA (sitting with Ahmad Zaidi Ibrahim and Azhahari Kamal Ramli JJCA), concerns the correct starting point for calculating liquidated ascertained damages (LAD) for late delivery of vacant possession of a residential unit under the statutory housing scheme. The appellant, B.U. Development Sdn Bhd, is a licensed housing developer under the Housing Development (Control and Licensing) Act 1966; the first respondent is the individual purchaser of an apartment, and the second respondent is the Tribunal Tuntutan Pembeli Rumah (the Homebuyer Claims Tribunal). The purchaser had paid a booking fee before signing the statutory sale and purchase agreement, and the Tribunal awarded RM50,000 in capped LAD for late delivery, calculating the delay period as running from the date the booking fee was paid. The developer challenged that award by judicial review, which the High Court dismissed, and then appealed.

The Court of Appeal held that the Tribunal and the High Court were correct. Following the Federal Court's decision in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah, it confirmed that the period for computing LAD begins from the date of payment of the booking fee, not from the date of the statutory sale and purchase agreement, so that a developer cannot shorten its exposure by delaying execution of the agreement after taking a booking fee. The court also reaffirmed the limited, review-only nature of its appellate function over a decision of this kind. It concluded that the calculation of LAD ran from the booking-fee payment and, for those reasons, dismissed the appeal and affirmed the decision below, ordering the appellant to pay the first respondent's costs. The judgment is a clear application of the PJD Regency rule protecting house purchasers, treating the booking fee as the effective start of the developer's delivery obligation for LAD purposes.