BANDA INDUSTRIES SDN BHD 1. ) CHIN SUET FAN 2. ) CHIN WOON FUI

BANDA INDUSTRIES SDN BHD 1. ) CHIN SUET FAN 2. ) CHIN WOON FUI

The High Court upheld the Magistrate's grant of summary judgment: LAD is to be calculated from the booking/deposit date; the Incentive Agreement cannot wholly oust the statutory right to LAD under the housing development legislation, but the quantifiable monetary value of incentives received (RM23,830) is to be...

Source-derived case information.

Citation
BA-11ANCvC-52-12/2022 (Mahkamah Tinggi)
Parties
Appellant/defendant: BANDA INDUSTRIES SDN BHD; Respondent/plaintiff: CHIN SUET FAN; Respondent/plaintiff: CHIN WOON FUI
Court
High Court
Jurisdiction
Malaysia
Judgment Date
30 March 2023
Case Number
BA-11ANCvC-52-12/2022 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Magistrate (order 14 Summary Judgment) / High Court (appeal Hearing)
Outcome
Appeal allowed in part: Magistrate's summary judgment otherwise upheld but LAD to be reduced by deduction of incentives; costs awarded to appellant in part
Legal Topics
Liquidated Ascertained Damages (lad), Summary Judgment Under Order 14, Incentive Agreement Vs Statutory Rights, Appellate Intervention/plainly Wrong Test, Covid 19 Exclusion Period (s35)
Contract Property Housing Development / Consumer Protection Civil Procedure Liquidated Ascertained Damages (lad) Summary Judgment Under Order 14 Incentive Agreement Vs Statutory Rights Appellate Intervention/plainly Wrong Test +1 more

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Parties

BANDA INDUSTRIES SDN BHD

Appellant/defendant

CHIN SUET FAN

Respondent/plaintiff

CHIN WOON FUI

Respondent/plaintiff

Procedural Posture

Civil Appeal From Magistrate (order 14 Summary Judgment) / High Court (appeal Hearing)

Legal Issues

  1. 1 Whether summary judgment under Order 14 was appropriate
  2. 2 Proper commencement date for calculation of LAD
  3. 3 Whether the Incentive Agreement can oust or alter statutorily protected right to LAD under the Housing Development legislation

Ratio Decidendi

The High Court upheld the Magistrate's grant of summary judgment: LAD is to be calculated from the booking/deposit date; the Incentive Agreement cannot wholly oust the statutory right to LAD under the housing development legislation, but the quantifiable monetary value of incentives received (RM23,830) is to be deducted from the LAD awarded; Covid-19 exclusion period s35 did not apply because the developer's breach pre-dated the Act; interest at 5% p.a. to run on the LAD after deduction from the Magistrate's judgment date until full settlement.

Court Disposition

Appeal allowed in part: Magistrate's summary judgment otherwise upheld but LAD to be reduced by deduction of incentives; costs awarded to appellant in part

Orders

  • Allow appeal in part with costs to the appellant of RM3000.00 (subject to taxation)
  • Deduct RM23,830.00 from the liquidated ascertained damages awarded by the Magistrate