ALFRED CHUA CHENG JUN v JAKS ISLAND CIRCLE SDN. BHD. (Dalam Likuidasi)

Case Significance

Illustrates the summary enforcement under Order 81 of a housing purchaser's liquidated-damages entitlement for late delivery of a Schedule H unit — including the statutory COVID-19 exclusion from the delay period — and the right to set the LAD off against the final progress payment.

This decision of the High Court of Malaya at Kuala Lumpur concerns an application by a purchaser for summary judgment under Order 81 of the Rules of Court 2012 against a housing developer, since placed in liquidation, arising from delay in delivering a service-apartment unit. The purchaser had bought the unit under a statutory sale and purchase agreement in the Schedule H form prescribed under the housing development legislation, and sought specific performance requiring delivery of vacant possession of the unit, together with a declaration of his right to set off the accrued liquidated ascertained damages (LAD) for late delivery against the final instalment of the purchase price (the last 20% progress claim). The suit had been filed before the developer's voluntary winding up.

Applying the settled principles governing Schedule H contracts, and bound by appellate authority on the computation of LAD, the court calculated the period of delay from the contractual delivery date to the issue of the certificate of completion and compliance. It found a gross delay of 1,565 days, from which, applying the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020, a period of 167 days between March and August 2020 fell to be excluded, leaving a net period on which the LAD was computed. Order 81 permits summary judgment in specific-performance and related claims where the defendant has no arguable defence, and the court was satisfied that the purchaser's entitlement to LAD and to the set-off was clear. It allowed the relevant prayers of the application with costs, entering summary judgment that quantified the total LAD at RM245,802.86. The court's willingness to dispose of the claim summarily reflects that, once the contractual delivery date and the actual date of completion are established from the documents, the computation of LAD under a Schedule H contract is largely a matter of arithmetic governed by binding authority, leaving no triable issue on which the developer could resist judgment. The judgment illustrates the summary enforcement of a housing purchaser's LAD entitlement, including the statutory COVID-19 exclusion, and the availability of set-off against the final progress payment.