ASTINAS CONSTRUCTION & DEVELOPMENT SDN BHD GINMIT TRADING SDN BHD

ASTINAS CONSTRUCTION & DEVELOPMENT SDN BHD GINMIT TRADING SDN BHD

Clause 24 is clear: the 24-month delivery period is measured from the date of approval of the proposed building plan by the local authority (MBJB). The Sessions Court erred in applying estoppel and illegality to reframe the contractual timeline; commencing works without approval did not create an underlying assumption sufficient for estoppel nor a nexus rendering the defence unavailable. Accordingly the defendant delivered within the contractual period and the respondent's LAD claim fails.

Citation
JA-12BNCvC-11-06/2022 (Mahkamah Tinggi)
Parties
Appellant: Astinas Construction & Development Sdn Bhd; Respondent: Ginmit Trading Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
14 May 2023
Case Number
JA-12BNCvC-11-06/2022 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Sessions Court / Judgment on Appeal (allowing Appeal)
Outcome
Appeal allowed; Sessions Court judgment set aside; Respondent's claim dismissed with costs
Legal Topics
Contract Interpretation, Liquidated Ascertained Damages, Estoppel, Illegality / Ex Turpi Causa, Building Plan Approval, Indemnity
Source Language
Malay/English
Contract Law Construction Law Administrative Law Real Property Law Contract Interpretation Liquidated Ascertained Damages Estoppel Illegality / Ex Turpi Causa +2 more

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Parties

Astinas Construction & Development Sdn Bhd

Appellant

Ginmit Trading Sdn Bhd

Respondent

Procedural Posture

Civil Appeal From Sessions Court / Judgment on Appeal (allowing Appeal)

Legal Issues

  1. 1 Whether Clause 24 of the SPA requires calculation of the 24-month delivery period from the date of the SPA or from the date of local authority approval of the proposed building plan (MBJB)
  2. 2 Whether the defendant is estopped from relying on Clause 24 because it commenced construction without MBJB approval and did not inform the purchaser
  3. 3 Whether the defendant's alleged breach of statutory provisions renders it unable to rely on contractual defences or to avoid the liquidated damages clause

Ratio Decidendi

Clause 24 is clear: the 24-month delivery period is measured from the date of approval of the proposed building plan by the local authority (MBJB). The Sessions Court erred in applying estoppel and illegality to reframe the contractual timeline; commencing works without approval did not create an underlying assumption sufficient for estoppel nor a nexus rendering the defence unavailable. Accordingly the defendant delivered within the contractual period and the respondent's LAD claim fails.

Court Disposition

Appeal allowed; Sessions Court judgment set aside; Respondent's claim dismissed with costs

Orders

  • Appeal allowed
  • Set aside the decision of the Sessions Court