ASTINAS CONSTRUCTION & DEVELOPMENT SDN BHD GINMIT TRADING SDN BHD

JA-12BNCvC-11-06/2022 Kand. 31 18/04/2024 11:33:18 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA RAYUAN SIVIL NO: JA-12BNCvC-11-06/2022 ANTARA ASTINAS CONSTRUCTION & DEVELOPMENT SDN BHD (No. Syarikat: 419749-V) ... PERAYU DAN GINMIT TRADING SDN BHD (No. Syarikat: 91523-U) ... RESPONDEN [DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN SIVIL NO: JA-A52NCVC-154-05/2019 ANTARA GINMIT TRADING SDN BHD (No. Syarikat: 91523-U) ... PLAINTIF DAN ASTINAS CONSTRUCTION & DEVELOPMENT SDN BHD (No. Syarikat: 419749-V) ... DEFENDAN] GROUNDS OF JUDGMENT 1 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal Introduction [1] This is an appeal from the Sessions Court of Johor Bahru after full trial in which the learned Sessions Court Judge (“SCJ”) allowed the Respondent’s claim for liquidated ascertained damages (“LAD”) against the Appellant for the sum of RM 228,297.80 together with interests and costs. [2] On 14.5.2023, after hearing full arguments by counsel for both parties this Court allowed the Appellant’s appeal, set aside the SCJ’s decision and dismissed the Respondent claim against the Appellant with costs. [3] The Respondent had since filed an appeal to the Court of Appeal against this Court’s decision. [4] The followings are the grounds for the said decision. Both the Appellant and Respondent will hereinafter be referred to respectively as Plaintiff and Defendant as per their original position at the Session Court. The factual background [5] Vide a Sale and Purchase Agreement dated 19.10.2011 (“the SPA”), the Appellant had agreed to purchase and the Respondent had agreed to sell a piece of land known as Lot 14 together with a 3 storey semi-detached factory to be erected thereon (“the said land and the 3 storey semi-detached factory will hereinafter be referred to collectively as “the property” or may also be referred to singularly 2 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal as either “the land” or “the factory” according to the context that it requires) at the purchase price of RM 3,607,302.60. [6] Among the terms in the SPA are that the delivery of vacant possession of the property must be made within twenty-four (24) months from the date of the approval of the proposed building plan for the factory by the local authorities or from the date of the SPA, whichever is later. If the property was delivered beyond the 24 months period, the Defendant will have to pay LAD to the Plaintiff according to an agreed calculation formula. The said period of delivery of vacant possession and the LAD formula are both provided in a single clause in the SPA, namely Clause 24. [7] It was not in dispute that the application for the proposed building plan for the factory was made by the Defendant on 16.8.2011 and the same was only approved by the relevant authority namely Majlis Bandar Raya Johor Bahru (“MBJB”) on 4.10.2013. [8] It was also undisputed that the Defendant had commenced the construction works for the factory since 23.12.2011 which was before the approval of the proposed building plan for the factory by MBJB. The Defendant had also made claims for the works done in tandem with the stages of construction of the factory and had been paid accordingly by the Plaintiff through the Plaintiff’s financier. [9] The stages for the construction works, the claims made by the Defendant and the payments made thereto by the Plaintiff have been neatly itemized by the Plaintiff’s counsel in his written submission, reproduced below as follows: - 3 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal Stage Particulars Date Jumlah Immediately upon signing of this 1 Agreement 19/10/2011 RM 360,730.26 (rujuk kepada pdf pg 79, Lamp. 7) Commencement of the earthworks 23/12/2011 RM 180,572.34 of the said Building 2(a) (rujuk kepada pdf pg 80 & 83 Lamp. 21/02/2012 RM 180,157.92 7) (Financier) Commencement of foundation 21/02/2012 2(b) works of the said building RM 721,460.52 (Financier) (rujuk kepada pdf pg 83, Lamp. 7) Completion of reinforced concrete 24/02/2012 2(c) framework of the said building RM 721,460.52 (Financier) (rujuk kepada pdf pg 86, Lamp. 7) Completion of the walls of the 02/04/2012 2(d) said building RM 541,095.39 (Financier) (rujuk kepada pdf pg 89, Lamp. 7) Completion of roofing/ceiling, electrical wiring, plumbing (without 19/07/2012 2(e) RM 360,730.26 fittings) of the said building (Financier) (rujuk kepada pdf pg 93, Lamp. 7) Completion of the internal and external plastering of the said 26/09/2012 2(f) RM 180,365.13 building (Financier) (rujuk kepada pdf pg 96, Lamp. 7) Completion of the roads, drains and 16/09/2013 2(g) sewerage works of the said building RM 180,365.13 (Financier) (rujuk kepada pdf pg 107, Lamp. 7) On handing over of vacant possession as in 16/05/2014 3 RM 180,365.13 Clause 24 (Financier) (rujuk kepada pdf pg 100, Lamp. 7) 4 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal [10] Finally, it was also not in dispute that vacant possession of the property was delivered by the Defendant to the Plaintiff on 22.5.2014. The Issue [11] The sole issue before the Session Court appears to have been, on the correct interpretation of Clause 24 of the SPA, whether the date of delivery of vacant possession ought to be calculated from the date of the SPA or from the date MBJB gave its approval to the proposed building plan submitted by the Defendant. [12] The Plaintiff took position that the correct calculation has to be from the date of the SPA and as such, there was a delay of 231 days in the delivery of vacant possession. The Defendant therefore should be made liable to pay LAD to the Plaintiff in a sum of RM 228,297.80. [13] The Defendant on the other hand contended that the said calculation ought to start from the date MBJB gave its approval to the proposed building plan. Since MBJB’s approval was given on 4.10.2013, the delivery of vacant possession on 10.5.2014 ought to be taken to be well within the 24 months period under Clause 24 of the SPA. The SCJ’s decision [14] In allowing the Plaintiff’s claim, the SCJ made a finding that since the Defendant never informed the Plaintiff about the date of approval of the proposed building plan and that the Defendant had 5 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal commenced construction works before MBJB’s approval as well as making payment claims thereof, hence the 24 months period must be calculated from the date of the SPA and the Defendant is estopped by its own conduct from asserting otherwise. However, this Court noted that there was no detail explanation by the learned SCJ on why such failure to inform and construct without approval had influenced the SCJ to apply maxim estoppel against the Defendant. [15] Next, I take note that the SCJ also agreed with the Plaintiff counsel’s submission that since constructions of the building had commenced without MBJB approval, the Defendant must have committed certain acts that were contrary to law during the undertaking of the works which includes the making of claims for the works and receiving payments for same from the Plaintiff. To that end, the learned SCJ further hold that the Defendant cannot be allowed to benefit from its own wrong and thus liable to pay LAD for late delivery of vacant possession which is to be calculated from the date of the SPA. [16] On the aforesaid premise, the SCJ allowed the Plaintiff’s claim as follows: - (a) liquidated ascertained damages for 231 days delay in the delivery of vacant possession totaling the sum of RM 228,297.80; (b) interests; and (c) costs. 6 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal Analysis and decision [17] After perusing the Records of Appeal including the Grounds of Judgment by the learned SCJ, and after reading and hearing submissions by counsel for both parties, I am of the view that the appeal before me mainly concerns with interpretation of contract clauses in the SPA. [18] To begin with, perhaps it would be better for me to firstly remind myself on the fundamental principle in construing contract clauses; that the Court must interpret the contract holistically, i.e. no term in the contract is to be taken or interpreted in isolation (see: SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464, FC). [19] A more detailed expositions of law relating to the said principle can be found in Lucy Wong Nyuk King (F) & Anor v Hwang Mee Hiong (F) [2016] 3 MLJ 689 where the Federal Court had held as follows (at pg. 700): - “[34] … it is an established principle of construing a contract that, among others, a contract must be construed as a whole, in order to ascertain the true meaning of its several clauses, and also, so far as practicable, to give effect to every part of it. Each clause in an ordinary commercial contract should be so interpreted as to bring them into harmony with the other clauses of the contract (see National Coal Board v Wm Neill & Son (St Helens) Ltd [1984] 1 All ER 555 which was cited in Royal Selangor Golf Club v Anglo- Oriental (M) Sdn Bhd [1990] 2 MLJ 163; [1990] 3 CLJ Rep 37 and Mulpha Pacific Sdn Bhd v Paramount Corp Bhd [2003] 4 MLJ 357). In Australian Broadcasting Commission v Australasian Performing 7 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal Right Association Limited (1973) 129 CLR 99, it was held that the whole of the contract has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. [35] Professor McMeel in The Construction of Contracts (Interpretation, Implication and Rectification) (2nd Ed, 2011) explains in clear words this long- standing canon of construction at para 1.73 as follows: Both the traditional and the modern approaches to construction stress the importance of having regard to the instrument as a whole. It is important not to fixate on one particular word or phrase and thereby neglect the overall purpose of the document or to give disproportionate importance to one phrase or clause. This is a long-standing rule. [36] As stated by Lewison in The Interpretation of Contracts (5th Ed) at para 7.02 that in order to arrive at the true interpretation of a document, a clause must not be considered in isolation, but must be considered in the context of the whole of the document. In Chamber Colliery Co Ltd v Twyerould (1893) [1915] 1 Ch 268n (which was cited by Lewison), Lord Watson said: I find nothing in this case to oust the application of the well known rule that a deed ought to be read as a whole, in order to ascertain the true meaning of its several clauses; and that the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible.” [20] The next important reminder that I have to give to myself is that if the words used in a contract are plain, clear and unambiguous, the 8 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal Court must give effect to those words in their ordinary meaning and natural sense, and that should be all about it (see: Perbadanan Kemajuan Negeri Selangor v Selangor Country Club Sdn Bhd [2017] 2 MLJ 819). [21] Now, the issue before this Court remains the same as at the Sessions Court below. It revolves around the interpretation of Clause 24 of the SPA which provides for the time line for handing over vacant possession of the property and the consequences that will follow should the time line is breached. For ease of reference, Clause 24 of the SPA is reproduced in full as follows: “TIME FOR HANDLING OVER OF VACANT POSSESSION 24. Subject to any extensions of time as may be allowed by the Vendor’s Architect and provided that the Purchaser shall have paid to the Vendor all instalments of the Purchase Price and other sums under this Agreement when due and payable, the said building, without any alterations and/or additions as stipulated under Clause 15 hereof, shall be practically completed (as certified by the Vendor’s Architect) and be ready for delivery of vacant possession to the Purchaser within twenty four (24 months) from the date of the proposed building plans by the local authorities or the date of this agreement, whichever shall be later. In the event that the vendor shall delay the completion of the said Building and the delivery of vacant possession of the said building beyond the aforesaid period, the Vendor shall pay to the Purchaser agreed damages calculated from day to day at the rate of ten per centum (10%) per annum on the Purchase Price of the said Property from such aforesaid date to the date of actual or deemed delivery of vacant possession of the said Building to the Purchaser as hereinafter provided, whichever date shall be the earlier. PROVIDED ALWAYS that if in the opinion of the Vendor’s Architect completion of delivery of vacant possession of the said Building is delayed: - 9 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) Due to the delay by the Appropriate Authority or in granting approval to the Proposed Building Plan for any reason whatsoever; (b) Resulting from any amendments to the Building Plan (whether required by the Appropriate Authority or otherwise); or (c) Due to any force majeure referred in Clause 38 hereof, then and in any of such cases, the Vendor’s Architect shall make a fair and reasonable extension of time for completion and delivery of vacant possession of the Said Building which decision shall be final and binding on the parties hereto.” (emphasis added) [22] In my view, the above clause appears to have no ambiguity nor uncertainty in its terms. It means what it says. Thus, if Clause 24 is to be applied to the facts in the instant matter, the said clause must effectively mean that the delivery of vacant possession of the property shall be within 24 months from the date the proposed building plan was approved by MBJB (4.10.2013) and not from the date of the SPA (12.10.2011). [23] The basis for my view is that Clause 24 was drafted in a way that the 24-months period for delivery of vacant possession is tied with certain ‘proviso’ that directly relates to the approval from MBJB of the proposed building plan, i.e. should there be any delay on part of MBJB in giving the said approval, the Vendor’s Architect is authorized to extend the 24 months period to a new date that is reasonable and fair to be fixed for actual delivery of vacant possession. For ease of reference, the said proviso in Clause 24 is again reproduced, with emphasis underlined and in bold, as follows:- 10 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal “PROVIDED ALAWAYS that if in the opinion of the Vendor’s Architect completion of delivery of vacant possession of the said Building is delayed: - (a) Due to the delay by the Appropriate Authority or in granting approval to the Proposed Building Plan for any reason whatsoever; (b) Resulting from any amendments to the Building Plan (whether required by the Appropriate Authority or otherwise); or (c) Due to any force majeure referred in Clause 38 hereof, then and in any of such cases, the Vendor’s Architect shall make a fair and reasonable extension of time for completion and delivery of vacant possession of the Said Building which decision shall be final and binding on the parties hereto.” [24] Thus, my reading and interpretation of Clause 24 of the SPA is simply linear, the 24 months period must be calculated from the date of approval of the building plan by MBJB that was 4.10.2013 and as such, the Defendant was well within the 24 months period by handing over vacant possession of the property to the Plaintiff on 22.5.2014. [25] However, the learned SCJ seemed to have been persuaded by the Plaintiff that failure of the Defendant to inform the Plaintiff about the approval of the building plan and the Defendant’s own act in commencing the construction works even without MBJB approval had led the Plaintiff to believe that the Defendant had had the necessary approval for the building plan and upon such believe had paid the progress payments to the Defendants. Premised on such findings, the learned SCJ concluded that the Defendant by its own conduct is estopped from asserting otherwise than to accept its 11 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal obligation to deliver vacant possession of the property within 24 months from the date of the SPA. [26] Was the learned SCJ right in coming to the said decision? Of course, the Plaintiff answered this in the affirmative and for the Defendant the opposite. In any event, I have to thank both counsel for their extensive preparation in their written submissions and forceful oral arguments which had lend great assistance to me in dealing with the present appeal. [27] To begin with, it is quite common that the type of Sale And Purchase Agreement used for commercial properties such as the instant SPA is different from the Sale And Purchase Agreement that are used for residential properties developed and sold by developers under the purview of the Housing Development Act 1966 (“HDA”). [28] The statutory Sale And Purchase Agreement under the HDA which are known as ‘Schedule G’ for landed properties and ‘Schedule H’ for high rise properties appears to have a specific clause embedded in both agreements which reflects the necessity for the developer to obtain approval for the building plan first before the property can be sold to public. The said obligation can be inferred from one of the ‘Preambles’ in both Schedule G and Schedule H, reads as follows: - Schedule G: “AND WHEREAS the Vendor has, at its own cost and expense, obtained the approval of the building plans (hereinafter referred to 12 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal as “the Building Plan”) from the Appropriate Authority, a copy of which is annexed as the Second Schedule;” Schedule H: “AND WHEREAS the Vendor has, at its own cost and expense, obtained the approval of building plans (hereinafter referred to as “the Building Plan”) from the Appropriate Authority (A copy of the Floor Plan, Storey Plan and Site Plan as certified by the Vendor’s architect are annexed in the First Schedule) [see: regulation 11(1) Housing Development (Control and Licensing) Regulations 1989] [29] Being one which is not governed under the HDA or any other law for that matter, parties to the agreement are indeed free to negotiate, draw and finalise their own terms and conditions to be incorporated into the agreement which was what the Plaintiff and Defendant appears to have done here in the SPA. [30] Thus, upon perusing the SPA particularly paragraph ‘E’ and ‘F’ under the ‘Preamble’, it is obvious that at the time of execution of the SPA, parties were aware that the approval of the proposed building plan (annexed as Second Schedule in the SPA) had yet to be obtained by the Defendant when it is stated in the said paragraph ‘E” that “The vendor will at its own cost and expense, apply and obtain the approval of the building plans…” as opposed to the statutory wordings “the Vendor has, at its own cost and expense, obtained the approval of building plans...” in both Schedule G and Schedule H agreement. The said Preambles ‘E” and ‘F’ in the SPA are reproduced below as follows: - 13 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal [31] Next, this Court also finds that there is nowhere in the SPA which imposes obligation or duty to the Defendant to inform the Plaintiff about the approval of the proposed building plan prior to the commencement of the construction works or to the making of any payment claim for any or all of the works done. In this regard, I agree with the Defendant counsel’s submission that the learned SCJ had fallen into error in imposing such obligation when no duty for such is prescribed in the SPA (see also: Low Keang Guan v Sin Heap Lee- Marubeni Sdn Bhd [2005] 1 MLJU 286). [32] On the other hand, the Plaintiff’s duty to make payment appears to be based solely on the construction works done which is independent from any condition for MBJB approval. Reference is made to Clause 6 of the SPA which reads as follows: - “6. Schedule of Payment 1. The Purchase Price shall be paid by the Purchaser to the Vendor by instalments and at the time and in the manner as prescribed in the Third Schedule thereto. Each and every instalment payment shall be paid by the Purchaser to the Vendor within Fourteen (14) days commencing from the date of the written notice from the Vendor requesting for such payment. 14 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2. Each written notice referred to in the Third Schedule hereto requesting for payment shall be supported by a certificate signed by the Vendor’s Architect or Engineer in charge of the Development (as the case may be) and every such certificate to signed shall be proof of the fact that the works therein referred to have commence” [33] In respect of the Defendant’s obligations relating to the construction of the building, the same has been specified in Clause 14 SPA which reads as follows: - “14. Construction of the said Property (1) The Vendor shall cause to be constructed the said property in a good and workmanlike manner in compliance with generally recognized building standards and practices, in accordance with the proposed building plan as duly approved by the Appropriate Authorities and in accordance with the specifications annexed hereto as the Fourth Schedule (hereinafter referred to as “the specification”) and the Proposed Building Plan and the specifications have been accepted by the Purchaser who hereby acknowledges and confirms the same.” [34] Although I have to admit that on plain reading of Clause 14, there is no doubt the Defendant is under duty to construct the building as per the proposed building plan approved by MBJB. However, when Clause 6 is read together with the ‘Proviso’ in Clause 24 and Preamble ‘E’ as discussed earlier, it is more consonant and harmony to hold that the phrase ‘in accordance with the proposed building plan as duly approved by the Appropriate Authorities’ in Clause 14 refers to MBJB’s approval as it is expected to be obtained in the future which at the time of the execution of the SPA was still pending. 15 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal [35] Thus, since it is trite that a contract must be construed as at the date it was made and not in the light of what happened later, I hold that combined effect of the aforesaid clauses would lead to a single conclusion; that the approval of the proposed building plan from MBJB is to be the deciding factor in determining the effective period for actual or deemed delivery of vacant possession of the property in so far as Clause 24 of the SPA is concern. [36] In this regard, it must be recapped from the earlier part of my judgment that there is no detail explanation by the SCJ on what bearing that such failure to inform and construct without approval had influenced the SCJ in coming to his decision. Be that as it may and in view of my aforesaid findings, I have to say with due respect, that the SCJ had committed his first error of law in construing the SPA in the way that he did. [37] Next, although it is not disputed that the Defendant had commenced construction works without waiting for MBJB’s approval, that by itself in my view cannot be construed to mean the Defendant had represented to the Plaintiff that the said approval had been duly obtained when the Defendant started to commence the construction works. Such proposition of fact has even gone too far from its truest sense when the SCJ ultimately decided to invoke estoppel against the Defendant when the so-called constructions without approval was neither the cause nor reason that induced the Plaintiff to enter into the SPA with the Defendant. [38] The width of the doctrine of estoppel as has been summed up by Lord Denning in the Amalgamated Investment case [1981] 3 All ER 577 16 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal and applied in our shores vide Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 are as follows: - “…When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.” [39] Thus, when preambles (E) and (F), Clause 6 and Clause 14 referred to earlier have been incorporated into the SPA, the Plaintiff cannot later turn around and say that that there was an ‘underlying assumptions’ that MBJB approval had been obtained by the Defendant at the time the Defendant started to commence the construction works on the property. In this regard, I have to say with due respect again, that the SCJ had committed another error of law, this time for invoking the maxim estoppel on a set of facts that do not justify for estoppel to be imposed... [40] To my mind, the learned SCJ must have been laying too much concern over the fact that the construction works were commenced without first obtaining approval from MBJB which is the relevant authority in the instant matter under the Town & Country Planning Act 1976 (“TCPA”) and Street, Drainage and Building Act 1974 (“SDBA”). In this regard, I am of further view that although the Defendant’s action in commencing construction works without MBJB approval may have violated TCPA or SDBA as submitted by the 17 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal Plaintiff’s counsel, to hold that since such action is illegal, thus the maxim ex turpi causa (one cannot benefit from one’s wrong) must be injected in construing Clause 24 so as to militate against the Defendant’s defence is clearly misplaced. [41] Our Courts have been consistent in holding that not all actions by a party to a contract that violated the law would result in illegality of the said contract. Suffice to cite Beca (M) Sdn Bhd v Tan Choong Kuang & Another [1986] 1 MLJ 390 as an authority for that proposition of law, it was held by the Supreme Court then that - “… Not every breach of a statutory prohibition would render an agreement illegal or void though such breach may attract criminal penalty. The fundamental question is whether the Enactment means to prohibit the agreement. It is important that the courts should be slow to imply the statutory prohibition of agreement, and should do so only when the implication is clear. Whether an agreement is implicitly forbidden depends upon the construction of the statute, and for this purpose no one test is decisive. Persons who deliberately set out to break the law cannot expect to be aided in a court of justice. It would be a different matter when the law is unwittingly broken. An agreement for the sale of, say, frozen food, is not to be considered illegal or void merely because the premises in which the frozen food is sold does not comply with the law. We recognise that each case must be decided by reference to the relevant statute.” [42] Although it was not the Plaintiff’s case here that the SPA ought to be declared as illegal, but the legal effect the Plaintiff was trying to impose towards the Defendant’s so-called illegal action is somewhat similar, in that the Defendant cannot be allowed to benefit from its own wrong. The question then is, what wrong have the Defendant 18 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal committed against the Plaintiff by commencing the construction works without first obtaining approval from MBJB? [43] Based on the facts and circumstances of the instant matter, my straight answer to that question is ‘nothing’. I am even prepared to hold further that even if such action by the Defendant may attract criminal penalty under TCPA or SDBA, there is still no sufficient nexus between the Defendant’s criminal penalty and the Defendant’s breach of contractual obligations in the SPA. [44] Finally, by incorporating indemnity clause as per Clause 21 in the SPA that the Defendant would indemnify the Plaintiff against all fines, penalties or losses in the event of non-compliance of any laws relating to the work constructions, I hold that the said clause is not just mere ornaments. It was the last straw that breaks the camel’s back to the Plaintiff. Clause 21 forms an acknowledgement on the part of the Plaintiff that matters relating to MBJB’s approval is actually not of the Plaintiff’s concern right from the beginning. Perhaps it will not be harsh for me to evenly conclude that it is the Plaintiff who should be estopped from now raising the issue of such non- conformity of law in order to gain unfair advantage against the Defendant under the purported late delivery claim. For the sake of completion, Clause 21 of the SPA is reproduced below as follows: - “Compliance with written laws (1) The vendor shall in relation to the said Property to be erected, conform to the provisions and requirements of any written law for the time being in force affecting the Development and shall keep the purchaser indemnified against all fines, penalties or losses incurred by 19 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal reason of any breach of the provisions of any written laws from the Vendor.” [45] Defendant in fact had paid its dues to MBJB for the said non- compliance in the sum of RM 95,542.68. The Plaintiff had knowledge about it and never disputed it. [46] Thus, based on the overall assessment of evidence and after revisiting the approach taken by the SCJ in construing contract clauses vis-a-vis the SPA, I am satisfied that the learned SCJ had fallen into error in his interpretation of Clause 24 and other relevant clauses in the SPA that had resulted with his conclusion to be plainly wrong in law, and so I hold accordingly. Conclusion [47] Based on the reasons as adumbrated above, I allowed the appeal by the Defendant, set aside the decision of the SCJ and finally dismissed the Plaintiff’s claim against the Defendant with costs. Dated: 15 th APRIL 2024 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judicial Commissioner High Court, Johor Bahru 20 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsels for Appellant Mr Christopher Yeo W ee Choon together with Ms Angie Tan Yi Chuin Messrs Christopher Yeo & KP Chang Kuala Lumpur Counsels for Respondent Mr Kuthubul Zaman bin SNS Bukhari together with Ms Anis Syarizad binti Kuthubul Zaman Messrs Syarizad Zaman & Seah Johor Bahru Cases referred to: 1. SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 2. Lucy Wong Nyuk King (F) & Anor v Hwang Mee Hiong (F) [2016] 3 MLJ 689 3. Perbadanan Kemajuan Negeri Selangor v Selangor Country Club Sdn Bhd [2017] 2 MLJ 819 4. Low Keang Guan v Sin Heap Lee-Marubeni Sdn Bhd [2005] 1 MLJU 286 5. Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 6. Town & Country Planning Act 1976 (“TCPA”) and Street, Drainage and Building Act 1974 7. Beca (M) Sdn Bhd v Tan Choong Kuang & Another [1986] 1 MLJ 390 Legislation referred to: 1. Housing Development Act 1966 2. Town & Country Planning Act 1976 3. Street, Drainage and Building Act 1974 21 S/N HYJ9UfETGkWVmluyVZgWg **Note : Serial number will be used to verify the originality of this document via eFILING portal