TAY YUAN YAN (mendakwa melalui TAY KHIM SENG (No. K/P. 601107016285) sebagai Pemegang Surat Kuasa Wakil) v JAKS ISLAND CIRCLE SDN BHD (Dalam Likuidasi)

Case Significance

Illustrates the summary quantification under Order 81 of a Schedule H purchaser's liquidated-damages entitlement after vacant possession has been given, applying the statutory COVID-19 exclusion to the delay period and allowing set-off against the final progress payment.

This decision of the High Court of Malaya at Kuala Lumpur is a companion application for summary judgment under Order 81 of the Rules of Court 2012 against the same housing developer, since in liquidation, brought by another purchaser (suing through the holder of a power of attorney) in respect of a service-apartment unit in the same development. The purchaser sought specific performance and a declaration of the right to set off the accrued liquidated ascertained damages (LAD) for late delivery against the final 20% progress claim under the statutory Schedule H sale and purchase agreement. The action had originated in the Shah Alam High Court and was transferred to the Kuala Lumpur High Court by an order made in January 2024. By the time of the hearing, vacant possession of the unit had already been delivered, so the issues left for determination were confined to the LAD and the set-off.

Bound by the doctrine of stare decisis to follow the established appellate authority on the computation of LAD under Schedule H, the court calculated the 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 167 days between March and August 2020 fell to be excluded under the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020, leaving a net period of 1,398 days on which the LAD was computed for the unit. Satisfied that the purchaser's entitlement to the LAD and to the set-off was clear and that the developer had no arguable defence, the court allowed the relevant prayers of the application with costs, entering summary judgment accordingly. The judgment illustrates the summary quantification of a Schedule H purchaser's LAD once vacant possession has been given, with the statutory COVID-19 exclusion applied and set-off allowed against the final progress payment.