BJ HOMES DEVELOPMENT SDN BHD (NO. SYARIKAT: 623575-W) LIM LAY IMM (No. K/P: 610521-02-5202)

BJ HOMES DEVELOPMENT SDN BHD (NO. SYARIKAT: 623575-W) LIM LAY IMM (No. K/P: 610521-02-5202)

The High Court held the Sessions Court was not plainly wrong: the developer failed to deliver vacant possession within the contractual period, thereby incurring LAD; the purchaser was entitled to set-off LAD against outstanding instalments because the cross-claim arose from the same transaction and it would be manifestly unjust to ignore it; the asserted 9% discount was unilateral and not part of the SPA; the developer's termination was wrongful; accordingly the appeal was dismissed and the lower court's orders were upheld.

Citation
WA-12BNCvC-37-03/2020 (Mahkamah Tinggi)
Parties
Appellant/defendant: BJ Homes Development Sdn Bhd; Respondent/plaintiff: Lim Lay Imm
Court
High Court
Jurisdiction
Malaysia
Judgment Date
4 February 2021
Case Number
WA-12BNCvC-37-03/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (housing Development/contract) / Appeal to High Court From Sessions Court Judgment (hearing on Merits)
Outcome
Appeal dismissed; Sessions Court judgment affirmed.
Legal Topics
Liquidated Damages, Set Off/cross Claim, Termination of Contract, Statutory Contract, Vacant Possession, Estoppel, Appellate Intervention/standard
Source Language
Malay/English
Contract Law Property Law Housing Development/regulatory Law Civil Procedure (appeal) Liquidated Damages Set Off/cross Claim Termination of Contract Statutory Contract +3 more

Case Brief

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Parties

BJ Homes Development Sdn Bhd

Appellant/defendant

Lim Lay Imm

Respondent/plaintiff

Procedural Posture

Civil Appeal (housing Development/contract) / Appeal to High Court From Sessions Court Judgment (hearing on Merits)

Legal Issues

  1. 1 Whether purchaser entitled to set-off liquidated ascertained damages (LAD) against outstanding purchase instalments
  2. 2 Whether developer validly terminated the sale and purchase agreement
  3. 3 Whether a unilateral discount (9%) can be applied to reduce LAD or purchase price

Ratio Decidendi

The High Court held the Sessions Court was not plainly wrong: the developer failed to deliver vacant possession within the contractual period, thereby incurring LAD; the purchaser was entitled to set-off LAD against outstanding instalments because the cross-claim arose from the same transaction and it would be manifestly unjust to ignore it; the asserted 9% discount was unilateral and not part of the SPA; the developer's termination was wrongful; accordingly the appeal was dismissed and the lower court's orders were upheld.

Court Disposition

Appeal dismissed; Sessions Court judgment affirmed.

Orders

  • Appeal dismissed
  • Sessions Court judgment affirmed: defendant (BJ Homes Development Sdn Bhd) to refund RM134,982.75 to plaintiff and to pay LAD and interest and other reliefs as per Sessions Court orders