1. ) CHONG KOK SIONG 2. ) TEE AI LING 3. ) HON KAH SHIN 4. ) CHOW LAI LAI 5. ) SAH THIAM LEONG 6. ) LOW HUEY SUAN v MAWAR AWAL (M) SDN BHD

Case Significance

Illustrates summary judgment for statutory liquidated ascertained damages, where a Schedule H sale and purchase agreement establishes the developer's late-delivery liability and only the quantum of LAD remains to be determined.

This High Court decision at Kuala Lumpur concerns an application for summary judgment under Order 14 of the Rules of Court 2012 by a group of condominium purchasers against the developer of their project. The purchasers claimed liquidated ascertained damages (LAD) for the developer's late delivery of vacant possession and late completion of the common facilities of the condominium. Their purchases had been made under statutory sale and purchase agreements in the form prescribed by Schedule H to the Housing Development (Control and Licensing) Regulations 1989, which fixes both the developer's delivery obligations and the rate at which LAD accrues for delay.

Because the agreements were in the prescribed statutory form, the entitlement to LAD for late delivery followed from the contract itself, and the developer's liability in principle was not genuinely in dispute. The court applied the established summary-judgment principles: once the plaintiffs establish a claim to which there is no bona fide defence, the burden shifts to the defendant to show, on affidavit evidence amounting to more than bare denial, that there is a triable issue fit for trial. The court emphasised that denials in a defence are not themselves evidence; they are merely challenges to the other side to prove its case, and a defendant must put forward material on oath disclosing a defence.

Examining the affidavits, the court found that the only live question was the calculation of the LAD, namely which side's method of computing the damages was correct, rather than whether any LAD was owed at all. It held that this was a straightforward matter with no triable issue requiring a full trial, and it accepted that the developer's calculation had a proper basis. The court accordingly entered summary judgment in favour of the purchasers, awarding the LAD as computed together with interest at 5% per annum from the date of the claim until full payment, and costs. The judgment is a useful illustration of summary judgment for statutory LAD, where the developer's delay is established by the Schedule H agreement and only the quantum of damages remains to be fixed.