FABULOUS RANGE SDN BHD HELENA A/P GNANAMUTHU

FABULOUS RANGE SDN BHD HELENA A/P GNANAMUTHU

Appeal allowed in part: plaintiff was not entitled to rescission because there was no total failure of consideration and the plaintiff had affirmed the agreements by taking vacant possession, submitting defect lists and continuing payment; misrepresentation was not established as to give rescission and the High Court erred in awarding rescission together with damages; High Court decision set aside except for award of LAD of RM62,232.90; matter remitted to High Court to assess damages arising from failure to rectify defects and comply with contractual conditions; parties permitted to call further witnesses only for damages assessment; costs ordered.

Citation
B-02(NCVC)(W)-828-04/2017 (Mahkamah Rayuan)
Parties
Appellant/defendant: Fabulous Range Sdn Bhd; Respondent/plaintiff: Helena A/P K. Gnanamuthu
Court
NCVC
Jurisdiction
Malaysia
Judgment Date
30 November 2020
Case Number
B-02(NCVC)(W)-828-04/2017 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Court of Appeal Judgment (appeal Heard and Judgment Delivered)
Outcome
Appeal allowed in part; High Court judgment set aside except for award of LAD RM62,232.90; matter remitted to High Court for assessment of damages.
Legal Topics
Rescission, Misrepresentation, Liquidated Damages, Affirmation of Contract, Total Failure of Consideration, Assessment of Damages, Lien
Source Language
Malay/English
Contract Law Property Law Equitable Remedies Rescission Misrepresentation Liquidated Damages Affirmation of Contract Total Failure of Consideration +2 more

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Parties

Fabulous Range Sdn Bhd

Appellant/defendant

Helena A/P K. Gnanamuthu

Respondent/plaintiff

Procedural Posture

Civil Appeal / Court of Appeal Judgment (appeal Heard and Judgment Delivered)

Legal Issues

  1. 1 Whether plaintiff entitled to rescind the Sale and Purchase Agreement and Supplemental Agreement
  2. 2 Whether there was actionable misrepresentation (fraudulent, negligent or innocent)
  3. 3 Whether there was a total failure of consideration going to the root of the contract

Ratio Decidendi

Appeal allowed in part: plaintiff was not entitled to rescission because there was no total failure of consideration and the plaintiff had affirmed the agreements by taking vacant possession, submitting defect lists and continuing payment; misrepresentation was not established as to give rescission and the High Court erred in awarding rescission together with damages; High Court decision set aside except for award of LAD of RM62,232.90; matter remitted to High Court to assess damages arising from failure to rectify defects and comply with contractual conditions; parties permitted to call further witnesses only for damages assessment; costs ordered.

Court Disposition

Appeal allowed in part; High Court judgment set aside except for award of LAD RM62,232.90; matter remitted to High Court for assessment of damages.

Orders

  • High Court decision set aside except for award of LAD in the sum of RM62,232.90 with interest as previously ordered
  • Matter remitted to the High Court for assessment of damages limited to failure to rectify defects and non-compliance with contractual conditions; parties may call further witnesses only for the purpose of assessing damages