Neoh v Trans-Intan Sdn Bhd [HCM]

www.ipsofactoJ.com/highcourt/index.htm [2003] Part 1 Case 1 [HCM]

Coram

AS Tee J

12 APRIL 2002

(i)	that the defendants whether by themselves, directors, servants, agents or nominees or howsoever do forthwith deliver to the plaintiff vacant possession of the property known as Parcel No 3, 19 Floor, Block D, Miami Green, Penang ("the property");
(ii)	that in the event the defendants fail to deliver vacant possession of the property within fourteen (14) days from the date of the order herein, the plaintiff and/or his servants, agents or nominees shall be entitled to apply reasonable force to enter the said property and the defendants shall be liable for all costs arising therefrom;
(iii)	that the defendants do pay the costs of this application to the plaintiff;
(iv)	that there be such further reliefs and/or orders as may be deemed just and necessary.

(a)	OUB cheque 018253 for a sum of RM11,294 made out to Messrs Anoop & See being the stakeholder's sum;
(b)	OUB cheque 018252 for a sum of RM2,300 made out to Belleview Bina Sdn Bhd being the balance outstanding for an additional package;
(c)	OUB cheque 018251 for a sum of RM8,427.15 made out to Trans-Intan Sdn Bhd, the defendants, being the final progressive payment less the liquidated damage due to the plaintiff (RM33,883.20 - [RM26,673.35 + RM5.334.67]).

Schedule of payments

(1)	The purchase price shall be paid by the Purchaser to the Vendor by instalments and at the time and in the manner as prescribed in the Third Schedule hereto.
(2)	Every notice referred to in the Third Schedule requesting for payment shall be supported by a certificate signed by the Vendor's Architect or Engineer in charge of the housing development and every such certificate so signed shall be proof of the fact that the works therein referred to have been completed.

Time essence of contract

Time shall be the essence of the contract in relation to all provisions of this Agreement.

Interests on late payments

Without prejudice to the Vendor's rights under clause 9 hereof, if any of the instalments set out in the Third Schedule hereto shall remain unpaid by the Purchaser at the expiration of the said period of fourteen (14) days, interest on such unpaid instalment or instalments shall commence immediately thereafter and be payable by the Purchaser, such interest to be calculated from day to day at the rate of ten per centum (10%) per annum.

Default by Purchaser and determination of Agreement

(1)

If the Purchaser:-

(a)	fails to pay any instalments payable under clause 4(1) in accordance with the Third Schedule hereto or any part thereof and any interest payable under clause 8; or
(b)	commits any breach of the terms or conditions contained in this Agreement or fails to perform or observe all or any of the Purchaser's covenants herein contained; or
(c)	before payment in full of the purchase price of the said Parcel, commits an act of bankruptcy or enters into any composition or arrangement with his creditors or being a company enters into liquidation whether compulsory or voluntary;

the Vendor may subject to sub-clause (2) hereof, annul the sale of the said Parcel and forthwith terminate this Agreement and in such an event:-

(i)

the Vendor shall be entitled to deal with or otherwise dispose of the said Parcel in such manner as the Vendor shall see fit as if this Agreement had not been entered into;

(ii)

the instalments previously paid by the Purchaser to the Vendor, excluding any interest paid, shall be dealt with and disposed of as follows:-

(a)

firstly, all interest calculated in accordance with clause 8 hereof owing and unpaid shall be paid to the Vendor;

(b)

secondly, an amount to be forfeited by the Vendor as follows:

(i)	where up to fifty per centum (50%) of the purchase price has been paid, an amount equal to ten per centum (10%) of the purchase price;
(ii)	where more than fifty per centum (50%) of the purchase price has been paid an amount equal to twenty per centum (20%) of the purchase price;

(c)

lastly, the residue thereof shall be refunded to the purchaser;

(iii)

neither party hereto shall have any further claim against the other for costs, damages, compensation or otherwise hereunder; and

(iv)

each party hereto shall pay its own costs in the matter.

(2)

If the Purchaser fails to comply with any of the terms of this Agreement or if any of such unpaid instalments and interest remain unpaid for any period in excess of twenty-eight (28) days after its due date, the Vendor shall give the Purchaser or his solicitors not less than fourteen (14) days' notice in writing by A.R. Registered post to treat this Agreement as having been repudiated by the Purchaser and unless in the meanwhile such default and/or breach alleged is rectified or such unpaid instalments and interest are paid, this Agreement shall, at the expiration of the said notice, be deemed to be annulled.

22.

Time for handing over of vacant possession

(1)	Vacant possession of the said Parcel to which water and electricity supply are ready for connection shall be handed over to the Purchaser within thirty-six (36) calendar months from the date of this Agreement;
(2)	If the Vendor fails to hand over vacant possession of the said Parcel, to which water and electricity supply are ready for connection to the said Parcel, in time, the Vendor shall pay immediately to the Purchaser liquidated damages to be calculated from day to day at the rate often per centum (10%) per annum of the purchase price.

23.

Manner of delivery of vacant possession

(1)

Upon the issuance of a Certificate by the Vendor's Architect certifying that the construction of the Parcel has been duly completed and water and electricity supply are ready for connection to the Parcel and the Vendor has applied for the issuance of the Certificate of Fitness for Occupation from the Appropriate Authority and the Purchaser having paid all monies payable under clause 4(1) in accordance with the Third Schedule and all other monies due under this Agreement and the Purchaser having performed and observed all the terms and covenants on his part under this Agreement the Vendor shall let the purchaser into possession of the said Parcel PROVIDED THAT such possession shall not give the Purchaser the right to occupy and the Purchaser shall not occupy the said Parcel until such time as the Certificate of Fitness for Occupation for the said Building is issued.

(2)

Upon the expiry of fourteen (14) days from the date of a notice from the Vendor requesting the Purchaser to take possession of the said Parcel, whether or not the Purchaser has actually entered into possession or occupation of the said Parcel, the Purchaser shall be deemed to have taken delivery of vacant possession.

24.

Completion of common facilities

(1)	The common facilities serving the said housing development shall be completed by the Vendor within thirty-six (36) calendar months from the date of this Agreement.
(2)	If the Vendor fails to complete the common facilities in time the Vendor shall pay immediately to the Purchaser liquidated damages to be calculated from day to day at the rate often per centum (10%) per annum of the last twenty per centum (20%) of the purchase price.

The essential facts may be shortly stated. The agreement was dated December 12, 1984 and by Clause 18 thereof, it was provided as follows:

18.	(1)	The said building shall be completed by the vendor and vacant possession delivered to the purchaser within twenty-four (24) calendar months from the date of this agreement.
	(2)	If the vendor fails to deliver vacant possession of the said building in time the vendor shall pay immediately to the purchaser liquidated damages to be calculated from day to day at the rate of ten per centum (10%) per annum of the purchaser price.

....

In giving judgment for the purchaser, the Judge relied heavily on the Malaysian Privy Council decision in Loh Wai Lian v SEA Housing Corporation Sdn Bhd [1987] 2 MLJ 1. It follows that the point of central importance to this appeal is whether the present case is governed by the judgment of the Privy Council in Loh Wai Lian, as the Judge thought.

It is obvious from the judgment of the Privy Council in Loh Wai Lian that but for the unusual language of Clause 17 of the contract of sale, which had provided a formula for the computation of damages payable by the developer to the buyer for delay, by defining not merely the terminus a quo (the opening date) required under Rule 12(r) of the 1970 Rules but also the terminus ad quem (the closing date) - not required under Rule 12(1)(r) - the case would have been differently decided, for Their Lordships said this:

If the question is asked 'in the absence of such an express provision when would the purchaser's right of action for damages for breach of contract accrue?' the answer is plainly the date on which the breach occurred. But parties to a contract are, of course, entitled to regulate or modify their rights in the event of breach in any way that they think fit and the accrual of any cause of action then becomes a matter of the correct construction of what they have provided. This appeal raises no point of principle but simply a question of what is the true construction of the contract in which the parties entered.

In our view, for the reasons stated Loh Wai Lian is, therefore, readily distinguishable from the present case and accordingly, the judge was, with respect, wrong in holding that it was of decisive importance to the question which arose for decision.

It follows, therefore, that our answer to the crucial question aforesaid is: because the agreement by Clause 18(2) had provided for a formula for the calculation of liquidated damages which defined the terminus a quo (the 20 opening date) but not the terminus ad quem (the closing date), the purchaser's right of action for damages for breach of contract - following the general rule - accrued on the date of the breach which, in this case, was the day after the time limited under Clause 18(2) for the delivery of vacant possession, that is to say, on December 12, 1986. Accordingly, the purchaser, having commenced proceedings only on July 31, 1993, was more than seven months out of time. We are thus driven to the inevitable conclusion that the purchaser's claim was statute-barred under the provisions of s 6(1) of the Limitation Act 1953.

Three issues arises before us in the appeal:

(1)	Is Clause 32 of the agreement valid?
(2)	If so, was the learned Judicial Commissioner right in holding that the acute shortage of cement, etc; did not come within Clause 32 such that the defendant is not liable for the delay? and
(3)	Did the plaintiff in withholding payment of the last instalment due commit breach of the agreement?

As regards the third issue we are of the opinion that the plaintiff did not breach the agreement when she withheld payment of the money demanded by the defendant.

....

The plaintiffs cross-claim and the defendant's claim arises out of the same transaction and are closely connected with each other. The plaintiff s cross-claim is so closely connected with the defendant's demand that it would be manifestly unjust to allow the defendant to enforce payment without taking into account the plaintiffs cross-claim.

(a)	OUB cheque 018253 for a sum of RM 11,294 made out to Messrs Anoop & See being the stakeholder's sum;
(b)	OUB cheque 018252 for a sum of RM2,300 made out to Belleview Bina Sdn Bhd being the balance outstanding for an additional package;
(c)	OUB cheque 018251 for a sum of RM8,427.15 made out to Trans-Intan Sdn Bhd, the defendants, being the final progressive payment less the liquidated damages due to the plaintiff (RM33,883.20 - [RM26.673.35 + RM5,334.67]).

In any event, the court will not generally deny a plaintiff an interlocutory injunction to which he would otherwise be entitled simply on the ground that his cross-undertaking in damages would be of limited or of no value. So, for example, in Allen v Jambo Holdings Ltd [1980] 2 All ER 502 the Court of Appeal held, when granting a Mareva injunction, that a cross undertaking was acceptable from the plaintiffs although he was legally aided. The rationale behind this was that questions of financial ability ought not to affect the position in regard to what is the essential justice of the case.