Toh Ai Shi 1. ) Talent Team Sdn Bhd 2. ) Tetuan Sidek Teoh Wong & Dennis

Toh Ai Shi 1. ) Talent Team Sdn Bhd 2. ) Tetuan Sidek Teoh Wong & Dennis

RM5,000 was a stakeholder sum not a booking fee so LAD calculation begins from the SPA date; the Housing Controller validly granted extensions of time which could not be invalidated in this originating summons (challenge requires judicial review in the High Court); solicitors holding stakeholder sums cannot be ordered to release them contrary to clause 30(3) of the SPA and section 22E HDA 1966 because doing so would breach statutory, fiduciary and professional duties; therefore delivery occurred within the approved time and LAD claims and the order to release stakeholder funds fail.

Citation
WA-12ANCvC-108-03/2020 (Mahkamah Tinggi)
Parties
Appellant/plaintiff: Toh Ai Shi; 1st Respondent/developer: Talent Team Sdn. Bhd.; 2nd Respondent/developer's Solicitors and Stakeholders: Tetuan Sidek Teoh Wong & Dennis
Court
High Court
Jurisdiction
Malaysia
Judgment Date
25 October 2021
Case Number
WA-12ANCvC-108-03/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (appeal From Sessions Court) / Rehearing of Appeal Under Order 55 Rule 2 Rules of Court 2012
Outcome
Appeal dismissed
Legal Topics
Liquidated Damages, Stakeholder Sums and Trusteeship, Extension of Time Under Housing Development Act, Judicial Review Vs Private Action, Professional and Fiduciary Duties of Solicitors
Source Language
Malay/English
Contract Law Housing Law Administrative Law Equity and Trusts Civil Procedure Liquidated Damages Stakeholder Sums and Trusteeship Extension of Time Under Housing Development Act +2 more

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Parties

Toh Ai Shi

Appellant/plaintiff

Talent Team Sdn. Bhd.

1st Respondent/developer

Tetuan Sidek Teoh Wong & Dennis

2nd Respondent/developer's Solicitors and Stakeholders

Procedural Posture

Civil Appeal (appeal From Sessions Court) / Rehearing of Appeal Under Order 55 Rule 2 Rules of Court 2012

Legal Issues

  1. 1 Whether the date for calculating liquidated ascertained damages (LAD) is the booking fee payment date or the date of the Sale and Purchase Agreement (SPA)
  2. 2 Whether the RM5,000 payment was a booking fee or a stakeholder sum held by solicitors
  3. 3 Whether the Housing Controller's extensions of time were valid and capable of being challenged in this originating summons

Ratio Decidendi

RM5,000 was a stakeholder sum not a booking fee so LAD calculation begins from the SPA date; the Housing Controller validly granted extensions of time which could not be invalidated in this originating summons (challenge requires judicial review in the High Court); solicitors holding stakeholder sums cannot be ordered to release them contrary to clause 30(3) of the SPA and section 22E HDA 1966 because doing so would breach statutory, fiduciary and professional duties; therefore delivery occurred within the approved time and LAD claims and the order to release stakeholder funds fail.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs
  • Intitulement amended to exclude the Appellant's proposed counterclaim