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SUCCESSFUL MALAYSIA LIQUIDATED ASCERTAINED DAMAGES (LAD) CASES IN FAVOUR OF HOMEBUYERS

By:

Bryan Lui (Co-Managing Partner) [bryanlui@luibhullar.com]

Harneshpal Karamjit Singh (Co-Managing Partner) [harnesh@luibhullar.com]

Chandni Anantha Krishnan (Partner) [chandni@luibhullar.com]



Since the coming of the Federal Court decision in the case of Ang Ming Lee, the series of cases pertaining to Liquidated Ascertained Damages in regard to housing developments governed under Schedule H (High rise) and G (Landed) have been in the limelight of homebuyer’s attention.


In regard to the collection of booking fees, the case of PJD Regency addressed this issue wherein the Federal Court stated that collection of booking fees is prohibited under the Housing Development Act and if developers practice a collection of the booking fee, the time of delivery of vacant possession starts from the time booking fees were paid.


Cases wherein purchasers were successful in their pursuit of LAD and substantiated on various legal suits in addition to Ang Ming Lee and PJD Regency are as follows:-

1. The Federal Court in Prema Bonanza Sdn Bhd v Lam Su See– refusing leave to the Developer Defendant to overturn the decisions of the Court of Appeal and High Court


2. The Court of Appeal in Prema Bonanza Sdn Bhd v Lam Su See – affirming the decision of the High Court


3. The Court of Appeal in Prema Bonanza Sdn Bhd v Leong Keng Chiang – affirming the decision of the High Court


4. The Court of Appeal in Prema Bonanza Sdn Bhd v Ee Ching Ching & 2 Ors – affirming the decision of the High Court.


5. The Court of Appeal in Prema Bonanza Sdn Bhd v Galeri Bersatu Sdn Bhd – affirming the decision of the High Court


6. The Court of Appeal in Prema Bonanza Sdn Bhd v How Hoe Lian @ Law Hoe Lian & Anor – affirming the decision of the High Court


7. The Court of Appeal in Michael Erroll Hyde v Prema Bonanza Sdn Bhd – overruling the decision of the High Court


8. The Court of Appeal in Vignesh Naidu A/L Kuppusamy Naidu v Prema Bonanza Sdn Bhd – overruling the decision of the High Court


9. The Court of Appeal in UE E&C Sanjia (M) Sdn Bhd v Lee Jeng Yuh & Anor And Another Appeal – affirming the decision of the High Court


10. The Court of Appeal in Sri Damansara Sdn Bhd v Voon Kuan Chien & Anor – affirming the decision of the High Court


11. The Court of Appeal in Sri Damansara Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Ors – affirming the decision of the High Court


12. The High Court in PJD Regency Sdn Bhd v Lee Kok Seng & Ors – affirming the decision of the Sessions Court


13. The High Court in Muhammad Muaz Abdul Malek v Modal Ehsan Sdn Bhd


14. The High Court in Toh Shu Hua & Ors v Wawasan Rajawali Sdn Bhd & Anor


15. The High Court in Lakefront Residence Sdn Bhd v Lam Keng Fong


16. The High Court in Eco Green City Sdn Bhd v Hou Zhou Yee & Ors


17. The High Court in Regency Land Sdn Bhd v Norismail Haji Isman & Anor


18. The High Court in PJD Landmarks Sdn Bhd v Cheng Fui Chin & Ors – affirming the decision of the Sessions Court


19. The High Court in Ng Sook Foon & Ors v Marimo Land Sdn Bhd


20. The High Court in EUPE Bangsar South Development (JV) Sdn Bhd v Lam Sai Yih – affirming the decision of the Sessions Court


21. The High Court in Kaisar Maxim Sdn Bhd v Cheah Poh Hin - affirming the decision of the Sessions Court


22. The High Court in Tan Ying Yee & Ors v Mayfair Ventures Sdn Bhd


23. The High Court in Kok Sue Lynn & Ors v Mayfair Ventures Sdn Bhd


24. The High Court in Rajoo A/L Pariasamy v Prema Bonanza Sdn Bhd


25. The High Court in Yvonne Chow Shih Sze v MRCB Seputeh Land Sdn Bhd & Ors


26. The High Court in Ong Chin Hsiun & Ors v Aspire Causeway Sdn Bhd


27. The High Court in Reinier Jacobus Bernardus Bouwmeester & Ors v MRCB Seputeh Land Sdn Bhd


28. The High Court in Tan Ching Ching v Ekovest Capital Sdn Bhd – overruling the decision of the Sessions Court


29. The High Court in Ekovest Capital Sdn Bhd v Low Yip Meng – affirming the decision of the Sessions Court


30. The High Court in Aminnudin Rezal Bin Jaafar & Ors v Prema Bonanza Sdn Bhd


31. The High Court in Leong Keng Chiang v Prema Bonanza Sdn Bhd


32. The High Court in Lam Su See v Prema Bonanza Sdn Bhd


33. The High Court in Kok Chay Har & Ors v BH Realty Sdn Bhd


34. The High Court in Murugan A/L Supermmuniam v Southkey City Sdn Bhd – overruling the decision of the Magistrates Court


35. The High Court in Teo Siang Hian John & Anor v Southkey City Sdn Bhd– overruling the decision of the Magistrates Court


36. The High Court in Sri Damansara Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Ors


37. The High Court in Chin Yongqin v Prosper Plus Industry Sdn Bhd – overruling the decision of the Magistrates Court


38. The High Court in Teh Hooi Peng v Southkey City Sdn Bhd – overruling the decision of the Magistrates Court


39. The High Court in Cheang Chee Kong & Anor v Mayfair Ventures Sdn Bhd – overruling the decision of the Sessions Court


40. The High Court in Chong Eng Neo v Mammoth Empire Land Sdn Bhd


41. The High Court in DSara Sentral Sdn Bhd lwn Tribunal Tuntutan Pembeli Rumah dan Satu Lagi


42. The High Court in Shanggari Mariarsu & Ors v Zubicon Sdn Bhd


43. The High Court in Zubicon Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor



To sum up the position, the Court of Appeal in the case of Vignesh Naidu A/L Kuppusamy Naidu V Prema Bonanza Sdn Bhd [2023], has stated a few points:

1. The Housing Development Act 1966 is a social legislation with its main intent to protect the interest of home buyers.


2. Pursuant to the Federal Court’s decision in Ang Ming Lee V Menteri Kesejahteraan Bandar, Perumahan & Kerajaan Tempatan [2020] (‘Ang Ming Lee’), the Court of Appeal reaffirms the position that extension of time (‘EOT’) granted by the Housing controller is null and void. The Housing controller has no powers to waive or modify the 36 months period stipulated under the statutory contract.


3. Vacant Possession for Housing Developments, mainly under Schedule H shall be delivered within 36 months.


4. The principles laid down in Ang Ming Lee are to be retrospectively applied, which is to say that it applies to past and future cases.


5. Estoppel is not applicable against Statutory Rights. The argument that purchasers have accepted a token sum from the developer to waive their rights to pursue a further claim is not applicable as this would defeat the purpose of the social legislation. An agreement cannot operate against a Statutory Right to claim for LAD.


6. The Limitation Period of 6 years starts from the time Vacant Possession is supposedly given under Schedule H.


7. A Writ action is the correct mode to pursue the claim for Liquidated Ascertained damages (‘LAD’).






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