TAN CHING CHING EKOVEST CAPITAL SDN BHD

TAN CHING CHING EKOVEST CAPITAL SDN BHD

The SPA, being a statutory Schedule H contract, cannot validly reflect a 48-month completion period because Regulation 11(3) is ultra vires; therefore the 36-month completion period in Schedule H applies, LAD is calculated from the booking fee date and the purchaser's right accrued on deemed delivery of vacant possession (16.5.2019), the defendant raised no triable issues, and summary judgment for the plaintiff in the sum RM155,302.67 with interest and costs was proper.

Citation
WA-12ANCVC-154-05/2021 (Mahkamah Tinggi)
Parties
Appellant / Plaintiff: Tan Ching Ching; Respondent / Defendant: Ekovest Capital Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
15 October 2021
Case Number
WA-12ANCVC-154-05/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal Re Summary Judgment in Housing Developer / Sale of Property Dispute / Appellate Judgment (re Hearing)
Outcome
Appeal allowed; decision of Sessions Court set aside; summary judgment entered for plaintiff
Legal Topics
Liquidated Damages, Schedule H Statutory Contract, Extension of Time (eot) Validity, Summary Judgment, Booking Fee, Parol Evidence Rule, Accrual of Cause of Action, Judicial Review Vs. Writ Proceedings
Source Language
Malay/English
Contract Law Housing Law Administrative Law Procedural Law Limitation Law Liquidated Damages Schedule H Statutory Contract Extension of Time (eot) Validity +5 more

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Parties

Tan Ching Ching

Appellant / Plaintiff

Ekovest Capital Sdn Bhd

Respondent / Defendant

Procedural Posture

Civil Appeal Re Summary Judgment in Housing Developer / Sale of Property Dispute / Appellate Judgment (re Hearing)

Legal Issues

  1. 1 Whether completion period in the prescribed Schedule H SPA can be validly varied from 36 to 48 months
  2. 2 Whether the Controller's EOT under Regulation 11(3) is lawful or ultra vires
  3. 3 Whether liquidated agreed damages (LAD) are to be calculated from date of payment of booking fee or date of SPA

Ratio Decidendi

The SPA, being a statutory Schedule H contract, cannot validly reflect a 48-month completion period because Regulation 11(3) is ultra vires; therefore the 36-month completion period in Schedule H applies, LAD is calculated from the booking fee date and the purchaser's right accrued on deemed delivery of vacant possession (16.5.2019), the defendant raised no triable issues, and summary judgment for the plaintiff in the sum RM155,302.67 with interest and costs was proper.

Court Disposition

Appeal allowed; decision of Sessions Court set aside; summary judgment entered for plaintiff

Orders

  • Set aside the Sessions Court decision and allow plaintiff's summary judgment application
  • Judgment entered for plaintiff against defendant in the sum of RM155,302.67