JASON YAP WEI KIAN PNSB ACMAR SDN BHD

JASON YAP WEI KIAN PNSB ACMAR SDN BHD

Section 37(1) operates as a saving clause protecting claims for liquidated damages where proceedings were instituted before the Act was gazetted; the Magistrate erred in not applying section 37(1) on the ground it was not pleaded because the pleadings contained the relevant facts and a party may raise points of law; therefore calculation of LAD must include the period 18.3.2020–15.7.2020 for this claimant.

Citation
BL-11ANCVC-2-02/2021 (Mahkamah Tinggi)
Parties
Applicant/plaintiff: Jason Yap Wei Kian; Respondent/defendant: PNSB Acmar Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
12 July 2021
Case Number
BL-11ANCVC-2-02/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Magistrate's Court / Judgment on Appeal
Outcome
Appeal allowed in part; Magistrate's calculation as to liquidated damages set aside and recalculation ordered to include period 18.3.2020–15.7.2020; costs awarded to Applicant.
Legal Topics
Liquidated Damages, Commencement and Saving Clauses, Exclusion of Period From Damage Calculation, Pleading Requirements
Source Language
Malay/English
Contract Law Housing Development Law Statutory Interpretation COVID 19 Emergency Legislation Liquidated Damages Commencement and Saving Clauses Exclusion of Period From Damage Calculation Pleading Requirements

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Parties

Jason Yap Wei Kian

Applicant/plaintiff

PNSB Acmar Sdn Bhd

Respondent/defendant

Procedural Posture

Civil Appeal From Magistrate's Court / Judgment on Appeal

Legal Issues

  1. 1 Whether section 37(1) of the Temporary Measures Act (Covid 2020) preserves claims for liquidated damages accrued during 18 March 2020 to date of gazette
  2. 2 Whether the Magistrate erred in refusing to apply section 37(1) because it was not specifically pleaded
  3. 3 Whether sections 32 and 35 exclude the period 18.3.2020–31.8.2020 from calculation of liquidated damages

Ratio Decidendi

Section 37(1) operates as a saving clause protecting claims for liquidated damages where proceedings were instituted before the Act was gazetted; the Magistrate erred in not applying section 37(1) on the ground it was not pleaded because the pleadings contained the relevant facts and a party may raise points of law; therefore calculation of LAD must include the period 18.3.2020–15.7.2020 for this claimant.

Court Disposition

Appeal allowed in part; Magistrate's calculation as to liquidated damages set aside and recalculation ordered to include period 18.3.2020–15.7.2020; costs awarded to Applicant.

Orders

  • Set aside Magistrate's decision insofar as it excluded the period 18.3.2020–15.7.2020 from LAD calculation
  • Order that calculation of liquidated damages shall include the period 18.3.2020–15.7.2020