Liquidated ascertained damages ('LAD') is a contractually ascertained damages that are claimable by the affected party in an event of a breach of contract.

The statutory template agreement of Schedule H (high rise projects) and G (landed projects) of the Housing Development (Control and Licensing) Act 1966 and the Housing Development (Control and Licensing) Regulation 1966 provides that the developer ought to pay LAD to purchasers in the event of a delay in providing Vacant Possession ('VP').

the Federal Court decision in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals [2020] 1 CLJ 162 (“Ang Ming Lee”) has declared extensions of time pursuant to Sub-regulation 11(3) of the HDR, as illegal and void.

In simpler terms, that means any extensions given by the Housing Controller to extent the period prescribed under Schedule H (36 months) and Schedule G (24 months) is of no legal effect.

In such cases, the purchasers are entitled to claim for LAD based on the period prescribed under Schedule H and G respectively.

Pursuant to the case of PJD Regency , purchasers are entitled to calculate their respective LAD from the time booking fees were paid.

Housing Development (Control and Licensing) Regulation clearly prohibits the collection of any prior payment before the signing the SPA, in reality, collections of booking fee / deposit do occur.

As the Housing development (Control and Licensing) Act is a social legislation and the judiciary ought to consider the protection of the home buyers, it would only be appropriate to consider the date of collection of the booking as the date of the Sale and Purchase Agreement ('SPA'), as the SPA would have been formed when the booking fee / deposit was collected.

Schedule G

Booking fees + 24 months = legally prescribed time of delivery of Vacant Possession (Legal VP)

(Legal VP) to (Actual Date VP Notice was delivered to the purchasers) = Days of delay

Schedule H

Booking fees + 36 months = legally prescribed time of delivery of Vacant Possession (Legal VP)

(Legal VP) to (Actual Date VP Notice was delivered to the purchasers) = Days of delay

Formula To Calculate Liquidated Ascertained Damages ('LAD'):

Purchase price x LAD for parcel (10%) x days of delay Divided by 365 days

= LAD for Parcel (Schedule G and H)

Purchase price x LAD for parcel (2%) x days of delay Divided by 365 days

= LAD For Common Area (Schedule H)