1. ) ABDUL HAZIQ BIN MATLAN 2. ) ABDULLAH SANI BIN SAAD & MIZALAWATI BINTI MUHARRUDIN 3. ) AZLINDAWATI BINTI PANDAK MAT YUSOP 4. ) BHARATHI A/L KRISHNAKUMAR 5. ) DANIAL FITRI BIN NORIZAM & SITI NOR ATIQAH BINTI AZIZAN 6. ) DEE DE FANDEE BIN

BA-22NCvC-235-06/2024 Kand. 91 13/08/2025 12:59:21 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO: BA-22NCvC-235-06/2024 ANTARA ABDUL HAZIQ BIN MATLAN & 76 YANG LAIN [Plaintif-Plaintif memulakan dan membawa tindakan perwakilan ini menyaman dalam kapasiti …PLAINTIF- peribadi dan sebagai seorang wakil kepada tujuh PLAINTIF puluh tujuh (77) Plaintif-Plaintif/Pembeli-Pembeli hartanah dalam Projek Pembagunan Perumahan yang dikenali sebagai “LOT19616 (FASA 1A) dan LOT19616 (FASA 1B) CLOVER TAMAN SEMARAK WARISAN”, DAERAH SEPANG, NEGERI SELANGOR menurut peruntukan undang-undang yang ditetapkan iaitu Aturan 15 Kaedah 12 Kaedah-Kaedah Mahkamah 2012] DAN 1. ZESTRAN SDN. BHD. (NO. SYARIKAT: 200201000280 (567943-T)) …DEFENDAN- DEFENDAN 1 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2. DELISPRINGS LAND SDN. BHD. (NO. SYARIKAT: 201101034540 (962673-T)) GROUNDS OF JUDGMENT Introduction 1. This is a claim by a group of 77 purchasers of 53 housing units in a development project known as “Lot 19616 (Fasa 1A) dan Lot 19616 (Fasa 1B) Clover Taman Semarak Warisan, Daerah Sepang, Negeri Selangor” (“Project”) for liquidated ascertained damages (“LAD”) for late delivery of vacant possession of the units they purchased. 2. The 1st Defendant is the licensed developer of the Project and the 2nd Defendant is the registered proprietor of the Project land, and both are parties to the sale and purchase agreements signed with the 77 purchasers (“SPAs”). 3. On 10-1-2025, the 2nd Defendant filed an application to strike out the Plaintiffs’ writ and statement of claim against the 2nd Defendant. With no objections by parties, order in terms by consent was recorded on 10-3-2025 with no order as to costs. Consequently, the claim against the 2nd Defendant was struck off and the action proceeded only against the 1st Defendant. 2 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal Issues in dispute 4. The SPAs were standard agreements prescribed under Schedule G of the Housing Development (Control and Licensing) Regulations 1989 (“HDR”). The facts of this case are largely undisputed and the issues in dispute are principally questions of law on how LAD should be computed as detailed below. Preliminary Objection 5. As a preliminary objection, the 1st Defendant argued that PW1 had no authority to give evidence on behalf of the co-plaintiffs in the action. This argument is rejected for the following reasons: (a) the basic undisputed facts of the case such as the identity of the Plaintiffs as purchasers, the units they purchased, the purchase price and discounts as well as the dates of booking deposit payments and SPAs are set out in the Statement of Agreed Facts that counsel have stipulated to (Enclosure 77) (b) in the interest of conducting an expedited trial, the issues in dispute were narrowed down and both counsels agreed during case management to limit the witnesses to be called to those with only factual disputes in issue namely, Plaintiffs No. 41 and 67. Counsel for the 1st Defendant did not give any notice that they need to cross examine every Plaintiff and for what purpose. 3 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) PW1 was Plaintiff No. 41 and he stated under oath that he was authorised in a meeting of the purchasers to represent all the Plaintiffs at the trial. (d) The action is also endorsed as a representative action with common issues among all the named plaintiffs (Chow Ye An & Ors V. Euroland & Development Sdn Bhd & Anor [2022] CLJU 2678) Accordingly, this Court accepted that PW1 was authorized to represent all the other Plaintiffs and nothing turned on the fact that only Plaintiff No. 41 and 67 took the stand. Start Date for Computation of LAD 6. Clause 24 of the SPAs provide that “(1) Vacant possession of the said Property shall be delivered to the Purchaser in the manner stipulated in clause 26 within twenty-four (24) months from the date of this Agreement. (2) If the Developer fails to deliver vacant possession of the said Property in the manner stipulated in clause 26 within the period stipulated in subclause (1), the Developer shall be liable to pay to the Purchaser liquidated damages calculated from day to day at the rate of ten per centum (10%) per annum of the purchase price from the expiry of the period stipulated in subclause (1) until the date the Purchaser takes vacant possession of the said Property” 4 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7. The Plaintiffs took the position that the statutory 24-month completion period under the SPAs ought to be computed from the date the purchasers paid their booking fee deposits. The 1st Defendant contended that the booking fee deposits were collected subject to the purchasers obtaining financing and to allow them to choose the units to be purchased in the meantime. The 1st Defendant presumably took the position that clause 24(1) of the SPAs should be read according to its literal terms, which is that “Vacant possession … shall be delivered to the Purchaser in the manner stipulated in clause 26 within twenty- four (24) months from the date of this Agreement.” 8. The HDR schedules have been litigated extensively and there is a good body of law and precedent on the interpretation of the above clauses in the SPAs. In PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60 (“PJD Regency”), the Federal Court has held that where developers have chosen to bypass the statutory prohibition against the collection of booking fees in Regulation 11(2) of the HDR on the collection of any payment except as prescribed by the contract of sale, a bargain is made when the booking fee is paid and the signing of the SPA is a mere formality. 9. As explained by PW1 in this case: “Setelah saya dan Plaintif-plaintif lain menyatakan minat untuk membeli unit rumah di projek tersebut, kami terlebih dahulu telah diminta untuk memilih unit yang diingini. Setelah pemilihan 5 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal unit dibuat, kami telah diarahkan untuk membuat bayaran wang tempahan sebanyak Ringgit Malaysia: Dua Ribu (RM2,000.00) bagi tujuan mengesahkan minat serta komitmen kami terhadap pembelian unit tersebut. Setelah bayaran dibuat, kami telah diberikan resit rasmi sebagai bukti pembayaran.” 10. Thus, where there is a delay in the delivery of vacant possession by a developer to the purchaser in respect of standard SPAs under regulation 11(1) of the HDR as asserted by the Plaintiffs in this case, PJD Regency has held as follows: “[49] Given the clear legislative intent, it follows that we are unable to read the scheduled contracts in these appeals literally. The legislative aim here is that any payment collected must be in accordance with the terms of the statutory contract of sale. Accordingly, to give effect to this legislative intent and in light of the collective status of the HDA 1966 and HDR 1989 as social legislation, it follows that where this illegal practice of booking fee is afoot, the date of the contract cannot be taken to mean the date printed in the scheduled contracts. Otherwise, this court would be condoning the developers' attempt in this case to bypass the statutory protections afforded to the purchaser by the legislative scheme put in place.” 6 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11. Consequently, the date for calculation of LAD begins from the date of payment of deposit/booking fee/initial fee/expression by the purchaser of his written intention to purchase and not from the date of the sale and purchase agreement literally. 12. The booking fee payment dates for all 53 units have been agreed upon save in respect of Plaintiff No. 41 (Mohd Shahrul Razman bin Ibrahim) and No. 67 (Shaminy a/p Ravee). For these 2 purchasers, the 1st Defendant contend that the booking fee payment dates were later than the dates claimed for the following reasons: (a) Plaintiff No. 41 claimed that the RM500.00 booking fee had been paid out of his wife’s bank account on 7-10-2021 and the further RM1,500.00 was paid out on 4-2-2022, while the 1st Defendant’s Statement of Account stated that the RM500.00 was only paid on 12-1-2022. (b) Plaintiff No. 67 paid a booking fee of RM1,000.00 on 13- 5-2020 for Unit 461, but it was refunded on 13-8-2020 because she changed her choice unit to Unit 479(1b) and had to pay a new booking fee of RM2,000.00. Of this, she paid RM500.00 on 27-3-2021 and the further RM1,500.00 on 27-7-2021. However, her financing fell through and she again changed her pick to a cheaper unit, Unit 391 (1a), which was booked using the same deposit already held by the 1st Defendant. 7 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13. In the case of Plaintiff No. 41, this Court reviewed the bank statement of PW1’s wife and the clear transfer of RM500.00 to the 1st Defendant on 7-10-2021 with the remark “Booking D/Storey.” The 1st Defendant did not produce any evidence to the contrary, save for Plaintiff No. 41’s statement of account: 14. This Court considers the date when the RM500.00 was paid out of the Plaintiff’s bank account as more cogent proof of when payment was made compared to the 1st Defendant’s self- generated statement of account. The date when the 1st Defendant issued a receipt can be entirely arbitrary and do not necessarily reflect when the transaction took place. On a balance of probabilities, the indicative date of the bargain reached between Plaintiff No. 41 and the 1st Defendant is 7-10- 2021. 15. In the case of Plaintiff No. 67 who testified as PW2, it must be deemed that the bargain on the purchase of Unit 479(1b) was frustrated when her financing fell through. Instead of refunding the deposit, a new bargain was made on 11-8-2021 when she changed the subject of her purchase to Unit 391(1a) as evidenced by a “Changes Form” she signed. 8 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16. Based on the principle accepted in PJD Regency that the date of payment of the booking fee reflects the date of the bargain, the relevant date for calculation of LAD should be 11-8-2021 in this case, since the earlier bargain had been frustrated. The earlier booking fee paid was not refunded, but left on credit and deemed to have been paid on 11-8-2021. The 1st Defendant conceded for purposes of the Statement of Agreed Facts, that the booking fee payment date for Plaintiff No. 67 is 3-6-2021. There is a 69-day difference in the computation based on 3-6- 2021 that should in principle, be revised in the 1st Defendant’s favour. End Date for Computation of LAD 17. Clauses 26(1)(a) and (2) of the SPAs provide that “(1) the Developer shall let the Purchaser into possession of the said Property upon the following: (a) the issuance of a certificate of completion and compliance” and “(2) The delivery of vacant possession by the Developer shall be supported by a certificate of completion and compliance and includes the handing over of the keys of the said Building to the Purchaser” 18. Based on the above, the Plaintiffs contended that the end date for the computation of LAD is the date of the notice of delivery of vacant possession accompanied by the Certificate of Completion and Compliance on 18-3-2024. This point does not 9 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal appear to be seriously disputed as it was also a point decided in PJD Regency. Suspension of LAD due to Covid-19 19. The Project was affected by the Covid-19 pandemic and according to the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 (“Covid-19 Act”), the 1st Defendant applied for an extension of time to deliver vacant possession of the housing units in the development to its purchasers. Section 38C of the Covid-19 Act provided as follows: “(1) In relation to a housing development, notwithstanding any agreement entered into between a developer and a purchaser, the developer may apply to the Minister for any period from 1 January 2021 to 31 December 2021 to be excluded from the calculation of the time for delivery of vacant possession of a housing accommodation or completion of common facilities, as the case may be, in the housing development. (2) Upon considering the application under subsection (1), the Minister may exclude any period from 1 January 2021 to 31 December 2021 from the calculation of time for delivery of vacant possession of a housing accommodation or completion of common facilities if the Minister is satisfied that due to measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act 1988 to control or prevent the 10 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal spread of COVID-19, the developer was unable to deliver vacant possession of a housing accommodation or complete the common facilities in accordance with the agreement. (3) The Minister shall not consider an application under subsection (1) if the application is made after the expiry of the time for delivery of vacant possession or the completion of common facilities specified under the agreement. (4) Subsection (1) applies only to a developer of a housing development for which its first agreement was entered into before 31 May 2021. (5) For the purposes of assessing the liquidated damages due to the failure of the developer to deliver vacant possession of a housing accommodation or complete the common facilities, the period excluded by the Minister under subsection (2) shall not be taken into account.” 20. On 27-4-2022, the 1st Defendant was granted a 153-day extension of time (“EOT”) to handover vacant possession in that it was allowed to exclude the period from 1-6-2021 to 31- 10-2021 from the reckoning of time for completion of common facilities and handover of vacant possession of the housing units to its purchasers. 11 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal 21. The Plaintiffs argued based on section 38C(4) of the Covid-19 Act, that the exclusion only applied to those purchasers who paid a booking deposit before 31-5-2021, and that purchasers who did so after 31-5-2021 are entitled to full LAD for delay in delivery of vacant possession beyond the statutory 24 months. 22. The 1st Defendant argued that the computation of LAD should exclude the 153-day EOT granted for all SPAs in the Project. In its notification to purchasers dated 1-8-2022, the 1st Defendant explained that the date of delivery of vacant possession would accordingly be extended to 24 months + 153 days from the date of the SPA without distinguishing between the dates when the purchasers entered into their individual SPAs. 23. On a plain reading of section 38C(4) of the Covid-19 Act, this Court agrees with the 1st Defendant’s interpretation of “a housing development for which its first agreement was entered into before 31 May 2021” as a reference to a housing development project as a whole, in which the first agreement for sale was made before 31-5-2021. 24. The Plaintiffs’ interpretation that section 38C(4) of the Covid-19 Act only applies to individual agreements for sale in a housing development project that pre-dated 31-5-2021 is counter- intuitive and does not serve the purpose of the Covid-19 Act in that: 12 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) Purchasers do not typically sign multiple agreements for each purchase (b) Developers do not build housing units and common facilities in a housing development project at an individual pace. (c) In this case, all the housing units in the Project are collectively affected by Covid-19 related delays and would otherwise be subject to the imposition of LAD during the period 1-6-2021 and 31-10-2021. 25. The intention of the EOT is to give developers reprieve if their housing development projects are affected by exigent circumstances caused by Covid-19 lockdowns. The 1st Defendant is accordingly entitled to exclude the 153 days from the computation of LAD across the Project. Rebate in Purchase Price 26. The final issue in dispute revolves around the fact that all Plaintiffs received a discount or rebate on the Purchase Price for the housing units in the Project. The discount was 10% save for Plaintiff No. 51 (Norashikin Binti Aziz) who only received a 5% discount. 27. The Plaintiffs argued that LAD should be computed based on the Purchase Price as stipulated in the SPAs and not the discounted sale price, whereas the 1st Defendant said that the 13 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal discounted price should be used instead. This is an issue that has also been litigated and the position established in PJD Regency is as follows: “[124] A rebate is essentially an ex post facto discount. It amounts to refund of monies already paid by the purchaser. The concept behind LAD is to compensate a purchaser for the developer’s failure to comply with the statutorily prescribed timeline. It would defeat the purpose of the protection guaranteed by the law if a developer is allowed to cut his losses incurred by the LAD by offsetting it using the purchaser’s own money. In our view, such an act amounts to nothing more than an act to manipulate the purchase price for the collateral purpose of having to pay LAD” 28. In Villa Acres Development Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah &Ors [2024] MLRHU 207 numerous other authorities have also been cited that have applied the principle that liquidated damages for late delivery shall be calculated on full purchase price and not the discounted price. Conclusions 29. For the above reasons, this Court allows the Plaintiffs’ claims in part as follows: (a) Satu deklarasi bahawa Plaintif-Plaintif berhak mendapat bayaran-bayaran “Liquidated Ascertained Damages” 14 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal (“Gantirugi LAD”) yang dikira pada kadar 10% setahun daripada Harga Belian dalam SPA tersebut; (b) Satu deklarasi bahawa Plaintif-Plaintif berhak untuk mengira dan menuntut Gantirugi LAD bermula dari tarikh pembayaran fi tempahan (“booking fee”) /deposit, dengan mengambil kira tempoh pembangunan berkanun iaitu 24 bulan dan lanjutan masa sebanyak 153 hari, dan berakhir pada tarikh pengeluaran Perakuan Siap dan Pematuhan – Borang F (CCC) bagi unit kediaman dan Kemudahan Bersama; (c) Satu deklarasi bahawa Perakuan Siap dan Pematuhan – Borang F (CCC) bertarikh 18-3-2024 adalah perakuan betul dan sah bagi pengeluaran notis penyerahan milikan kosong di bawah Projek Pemajuan Perumahan tersebut; (d) Plaintif-Plaintif berhak kepada bayaran Gantirugi LAD dalam jumlah-jumlah yang tertera di lajur (e), mukasurat 14-16 Lampiran 77, di mana Plaintif No. 41 dan 67 adalah berhak kepada jumlah Gantirugi LAD sebanyak RM1,451.78 and RM8,217.53 masing-masing; (e) Defendan Pertama hendaklah membayar jumlah Gantirugi LAD sebanyak RM1,330,078.65 kepada Plaintif-Plaintif; (f) Faedah ke atas semua jumlah yang perlu dibayar oleh 15 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal Defendan Pertama kepada Plaintif-Plaintif pada kadar 5% setahun dari 18-3-2024 sehingga bayaran penuh; dan (g) Kos sebanyak RM1,000.00 untuk setiap Plaintif/pasangan Plaintif berhubung dengan 53 SPA yang berkenaan. Bertarikh : 13 Ogos 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak plaintif- Zainurin Mohd Dom (bersama Plaintif: Fadzil Noor Shah) Tetuan Fadzil Noor & Associates Peguam bagi pihak Defendan Sui Yoke Kuen Pertama: Tetuan Srileena & Sui 16 S/N ILhq7iYIckqVSJFm6qCCiw **Note : Serial number will be used to verify the originality of this document via eFILING portal