COSMOPOLITAN AVENUE Sdn Bhd

On the court record

A commercial-property developer litigating liquidated-damages claims for late delivery of offices outside the Housing Development Act, and procedural contests over solicitor disqualification, summary judgment and discontinuance.

Cosmopolitan Avenue Sdn Bhd is a developer of commercial property, and it appears in the corpus in litigation over liquidated and ascertained damages for the late delivery of commercial offices and in the procedural contests that surround such a claim. It appears as appellant, defendant and plaintiff across the High Court and Court of Appeal.

The central dispute concerns late delivery and the character of the contract. At the Court of Appeal the matter concerned liquidated and ascertained damages for the late delivery of commercial offices, where the High Court had partly allowed the purchasers' claims, invalidated certain settlement letters and ordered LAD and a refund. The Court of Appeal held that the sale and purchase agreement was a commercial contract falling outside the Housing Development (Control and Licensing) Act — an important distinction, because the statutory protections and prescribed formulae that govern residential housing contracts do not automatically apply to a commercial sale, so that the parties' bargain is read on ordinary contractual principles.

The procedural strands reflect the tactical contest around the claim. In one matter the defendant applied to disqualify the plaintiff's legal firm from acting, on the ground that the firm's prior representation of the defendant in matters related to the same development project created a conflict of interest or a risk of the misuse of confidential information. In another the defendant sought, under Order 14 rule 5 of the Rules of Court 2012, to enter final judgment on its counterclaim by way of summary judgment against the plaintiff. In a further matter the plaintiffs applied to discontinue the suit with liberty to file afresh, the defendants objecting on the ground that the discontinuance would deprive them of an accrued advantage and was not bona fide, engaging the principle that a plaintiff who is dominus litis may not discontinue so as to secure a collateral advantage. The company's footprint is a study in commercial late-delivery litigation and the procedural manoeuvring — over conflicts, summary judgment and discontinuance — that accompanies it.