EKOVEST CAPITAL SDN. BHD. (DAHULU DIKENALI SEBAGAI PROMPT CAPITAL SDN. BHD.) v 1. ) Choo Teik Shiong 2. ) GOH SEE KWONG 3. ) NG YIN CHING 4. ) YAP PEI LEE 5. ) TAN SUET FONG 6. ) YAP CHEE WEE

Case Significance

Illustrates how the recent appellate reformulation of the starting date for liquidated ascertained damages in housing cases feeds through to the recalculation of a developer's liability to purchasers on appeal.

This High Court decision at Kuala Lumpur concerns an appeal by a housing developer against a Sessions Court judgment awarding house purchasers liquidated ascertained damages for late delivery, and it turns on the correct date from which such damages run following recent appellate authority. The purchasers had sued the developer and the Sessions Court had ordered it to pay each of them sums of liquidated ascertained damages, together with interest at 10 per cent per annum calculated from a specified date and costs. The developer appealed, contending among other things that the purchasers' claim was time-barred under section 6 of the Limitation Act 1953, that the principles in the well-known Federal Court decision in Ang Ming Lee were distinguishable on the facts, that the purchasers had failed to challenge an extension of time by judicial review, that they were estopped and would be unjustly enriched by claiming additional damages, and that they had not satisfied the parol evidence rule under section 91 of the Evidence Act 1950. The central issue that determined the appeal, however, was the correct starting point for the calculation of the liquidated ascertained damages. During the hearing the parties' submissions addressed the impact of recent Federal Court authority on the point, and the developer's counsel ultimately conceded that the damages should be calculated in accordance with the position reflected in that authority, which fixed the relevant starting point by reference to the date of the booking fee. The court, being inclined to the view that the purchasers' revised computation reflected the correct legal position following the recent decisions and there being no submission to the contrary, allowed the developer's appeal and varied the Sessions Court's order, substituting reduced sums payable to each of the purchasers. No order was made as to costs. The judgment is a useful illustration of how the recent appellate reformulation of the starting date for liquidated ascertained damages in housing cases feeds through to the recalculation of a developer's liability on appeal.