1. ) Ho Yui Luen 2. ) Ho Shuang Li v Agile PJD Development Sdn Bhd

Case Significance

Illustrates a purchaser's remedies against a developer for a condominium parcel not built in a good and workmanlike manner or reasonably fit for human habitation: the court found for the purchasers, ordered the developer to indemnify their losses (including alternative-premises rental on production of receipts), awarded costs on a solicitor's indemnity basis and interest, and considered exemplary damages.

This High Court decision at Kuala Lumpur (Construction Court), delivered by Judge Nadzarin Wok Nordin, concerns a claim by purchasers against a developer over defects in a luxury condominium parcel they had bought intending to make it their home in Malaysia. The plaintiffs, a husband and wife who were American-Singaporean expatriates participating in the Malaysia My Second Home (MM2H) programme, had purchased the parcel and, through no fault of their own, were put to considerable hassle and inconvenience by problems with the property. Under their sale and purchase agreement, liquidated ascertained damages for late delivery were payable at 10% of the purchase price, amounting to RM729.54 per day of delay, and after a wait of some four years they were informed of further difficulties with delivery of the parcel.

The court found in the purchasers' favour. It held that the developer had failed in its duty to construct the parcel in a good and workmanlike manner, to supply proper materials, and to ensure that the parcel would be reasonably fit for human habitation, and it characterised the developer's conduct as calculated to make a profit for itself without regard to the consequences for the purchasers. Considering the principles governing exemplary damages, as explained in appellate authority such as Tradewinds Properties Sdn Bhd v Zulhkiple bin A Bakar, the court addressed whether the developer's conduct warranted an award beyond compensatory damages. It ordered the developer to indemnify the purchasers for the losses they would incur, including the rental of alternative premises up to their previous rental rates on production of original receipts, awarded costs on a solicitor's indemnity basis, and awarded interest as claimed. The judgment illustrates a purchaser's remedies against a developer for a parcel that is not fit for habitation, including the availability of indemnity-basis costs and the court's consideration of exemplary damages.