Ang Kee Sim v Kembang Jaya Development Sdn Bhd

Ang Kee Sim v Kembang Jaya Development Sdn Bhd

The defendant's application for extension under reg 11(3) was made after the contractual expiry (over three years late) and thus fell within the proviso that disallows approval of after-expiry applications; the defendant had conceded the liquidated damages clause; therefore the plaintiff was entitled to set off RM29,000 against RM32,297.26 and recover RM3,297.26 plus interest and vacant possession.

Citation
Ang Kee Sim v Kembang Jaya Development Sdn Bhd
Parties
Plaintiff / Purchaser: Ang Kee Sim; Defendant / Vendor: Kembang Jaya Development Sdn Bhd
Court
Malaysian court
Jurisdiction
Malaysia
Procedural Posture
Civil Suit Specific Performance (sale and Purchase Agreement) / High Court Judgment (rk Nathan J, 27 June 2001)
Outcome
Judgment for the plaintiff: declaration of indebtedness, set-off allowed, payment ordered, delivery of vacant possession ordered, interest and costs awarded.
Legal Topics
Specific Performance, Liquidated Damages, Extension of Time, Set Off, Time Is of the Essence, Housing Developers Regulations 11(3), Contracts Act 1950 S75
Source Language
en
Contract Property Housing Law Civil Procedure Specific Performance Liquidated Damages Extension of Time Set Off +3 more

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Parties

Ang Kee Sim

Plaintiff / Purchaser

Kembang Jaya Development Sdn Bhd

Defendant / Vendor

Procedural Posture

Civil Suit Specific Performance (sale and Purchase Agreement) / High Court Judgment (rk Nathan J, 27 June 2001)

Legal Issues

  1. 1 Whether clause 20 (liquidated damages) of the sale agreement is effective and applicable
  2. 2 Whether s.75 of the Contracts Act 1950 affects the clause (conceded)
  3. 3 Whether the developer's application for extension of time under reg 11(3) was made in time

Ratio Decidendi

The defendant's application for extension under reg 11(3) was made after the contractual expiry (over three years late) and thus fell within the proviso that disallows approval of after-expiry applications; the defendant had conceded the liquidated damages clause; therefore the plaintiff was entitled to set off RM29,000 against RM32,297.26 and recover RM3,297.26 plus interest and vacant possession.

Court Disposition

Judgment for the plaintiff: declaration of indebtedness, set-off allowed, payment ordered, delivery of vacant possession ordered, interest and costs awarded.

Orders

  • Declaration that the defendant is indebted to the plaintiff in the sum of RM32,297.26 being damages arrived between 17 May 1996 to 8 August 2000.
  • That the plaintiff is entitled to set off from the sum of RM32,297.26 the sum of RM29,000 due and owing from the plaintiff to the defendant as final progress payment.