1. BRUCE ELWYN DAVEY (Passport No.: E1026197) 2. AMANDA JEAN PRIOR (Identity Card No.: 820921075802) BANDAR RAYA DEVELOPMENT BERHAD (Business Registration No.: 5521-A)

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA SUIT NO: WA-22NCVC-478-07/2019 BETWEEN 1. BRUCE ELWYN DAVEY (Passport No.: E1026197) 2. AMANDA JEAN PRIOR (Identity Card No.: 820921075802) «3/$,17,))S AND BANDAR RAYA DEVELOPMENT BERHAD (Business Registration No.: 5521-A) «'()(1'$17 Grounds of Judgment 1 A. Introduction Summary of the 3ODLQWLII¶V&ODLP. 1. The Plaintiffs¶ action against the Defendant pertains to the alleged breach of the Sale and Purchase Agreement dated 27-9- 2013. The issue pertains to the property known as Unit No. B2-02- 01 of Serai Bukit Bandaraya. The property was purchased for the sum of RM 6, 518, 700.00 from the Defendant. 2. The Plaintiffs further alleges that the Defendant had represented to them that: - (i) The Serai Bandar Raya Condominium will be constructed and completed as per the quality standards specification in Conquas (Construction Quality Assessment System) and Qlassic (Quality Assessment System in Construction). (ii) The Defendant will build a common facilities area i.e a green area landscaping and track. 2 3. The material terms of the Sale and Purchase Agreement are as follows: - (i) Clause 13 MATERIALS AND WORKMANSHIP TO CONFIRM TO DESCRIPTION The said Parcel together with all the common property shall be constructed in accordance with the description set out in the Fourth Schedule hereto and in accordance with the plans approved by the Appropriate Authority which description and plans have been accepted and approved by the Purchaser, as the Purchaser hereby knowledges. No changes thereto or deviations therefrom shall be made without the consent in writing of the Purchaser except such as may be required by the Appropriate Authority. The Purchaser shall not be liable for the cost of such changes or deviations and in the event that the changes or deviations Involve the substitution or use of cheaper materials or the omission of works originally agreed to be carried out by the Vendor, the Purchaser shall be entitled to a corresponding reduction in the Purchase Price herein or to damages, as the case may be, (ii) Clause 25 TIME FOR DELIVERY OF VACANT POSSESSION (1) Vacant possession of the said Parcel shall be delivered to the Purchaser in the manner as stipulated in Clause 26 within forty five (45) calendar months from the date of this Agreement. (2) If the Vendor fails to deliver vacant possession of the said Parcel in the manner as stipulated in Clause 26 within the time stipulated in sub- clause (1), the Vendor 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 date of the delivery vacant possession in sub-clause (1) until the date the Purchaser takes vacant possession of the said Parcel. Such liquidated damages shall be paid by the Vendor to the Purchaser immediately 3 upon the date the Purchaser takes vacant possession of the said Parcel. (iii) Clause 27 COMPLETION OF COMMON FACILITIES (1) The common facilities serving the said housing development shall be completed by the Vendor within forty-five (45) calendar months from the date of this Agreement. The Vendor's architect shall certify the date of completion of the common facilities. (2) If the Vendor fails to complete the common facilities in time the Vendor shall pay Immediately to the Purchaser liquidated damages to be calculated from day to day at the rate of ten per centum (10%) per annum of the last twenty per centum (20%) of the Purchase Price. (3) For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Vendor completes the common facilities. (iv) Clause 29 DEFECT LIABILITY PERIOD (1) Any defect, shrinkage or other faults in the maid Parcel or in the said Building or in the common property which shall become apparent within a period of twenty-four (24) calendar months after the date the Purchaser takes vacant possession of the said Parcel and which are due to defective workmanship or materials or the said Parcel or the said Building or the common property not having been constructed in accordance with the plans and description as specified in the First and Fourth Schedule as approved or amended by the Appropriate Authority, shall be repaired and made good by the Vendor at its own cost 4 and expense within thirty (30) days of the Vendor having received written notice thereof from the Purchaser. (2) If the said defect, shrinkage or other faults in the said Parcel or the said Building or in the common property have not been made good by the Vendor within the said period of thirty (30) days under sub-clause (1), the Purchaser shall be entitled to carry out the works to repair and make good the said defect, shrinkage or other faults himself and to recover from the Vendor the costs of repairing and making good the same and the Purchaser may deduct such costs from any sum which has been held by the Vendor's solicitor as stakeholder for the Vendor under Item 5 of the Third Schedule provided that the Purchaser shall, at any time after the expiry of the said period of thirty (30) days, notify the Vendor of the cost of repairing and making good the said defect, shrinkage or other faults before the commencement of the works and shall give the Vendor an opportunity to carry out the works himself within fourteen (14) days from the date the Purchaser has notified the Vendor of his Intention to carry out the said works and provided further that Purchaser shall carry out and commence the said works as soon as practicable after the Vendor's failure to carry out the said works within the said period of fourteen (14) days. In such an event, the Vendor's solicitors shall release such costs to the Purchaser from the stakeholder sum held by the Vendor's solicitors under Item 5. of the Third Schedule within fourteen (14) days after receipt by the Vendor's solicitors of the Purchaser's written demand specifying the amount of such costs. (3) Subject to sub-clause (2), where the Purchaser has, before the expiry of eight (8) months or twenty-four (24) months after the date the Purchaser takes vacant possession of the said Parcel as set out in Item 5(a).and Item 5(b) respectively of the Third Schedule, duly served on the Vendor's solicitors a copy of the written notice from the Purchaser to the Vendor under sub- clause (1) to rectify the said defect, shrinkage or other faults in the said Parcel or the said Building or the said common property, the Vendor's solicitors shall not release to the Vendor the relevant sum held by the Vendor's solicitors as stakeholder pursuant to Item 5/a) and/or item 5(b)of the Third Schedule, as the case may be, until the Vendor's solicitors shall have received 5 a certificate signed by the Vendor's architect certifying that the said defect, shrinkage or other faults in the said Parcel or the said Building or the said common property have been repaired and made good by the Vendor. 4. The Plaintiffs alleges that when the property was delivered to them, they discovered that the quality of the work, materials and workmanship to construct the said property was not satisfactory and contained the following defects: - 9. Plaintif-Plaintif telah memperolehi milikan kosong untuk Hartanah tersebut pada 06.02.2017. Setelah memerolehi milikan kosong, Plaintif-Plaintif mendapati bahawa kualiti kerja, bahan dan kemahiran kerja yang digunakan untuk membina Hartanah tersebut adalah cacat dan tidak memuaskan yang bertentangan dengan representasi dinyatakan oleh Defendan. Plaintif-Plaintif telah mendapati, antara lain, perkara-perkara berikut yang dibentangkan di bawah: - No. Particular Defects 1. Entrance Foyer (i). Main door dented Window (ii). glass scratch (iii). Paint stains on ceiling perimeters (iv). Chipped wall marble (v). Uneven grouting (vi). Scratches on marble floor 2. Foyer (i). Cracks on main door frame (ii). Scratches on the rear of the Main door 6 (iii). Cracks on the shadow line near to the ceiling (iv). Chipped skirting and uneven grouting (v). Defective painting work behind the main door and all area 3. Utility 2 (i). Wall skimming was badly done near the door frame (ii). Distribution box (DB) rubber was not installed properly (iii). Door frame groove line was not tidied (iv). Defective skirting 4. Powder Room (i). The wall and floor to be re polished (ii). Door stopper was not installed properly (iii). Uneven ceiling groove line (iv). Low water pressure (v). Visible hole on the corner of vanity top (vi). Poor/uneven marble grouting (vii). Chipped marbles (viii). Lipage on marbles (ix). Visible hole at door frame bottom 5. Living 1 (i). Cracked marbles (3x) (ii). Poor workmanship on the folding door especially the painting (iii). Folding door seal was defective (iv). Visible skirting scratches (v). Scratches on marble (vi). Chipped marbles (vii). Uneven grouting (viii). Dirty floor socket 7 6. Balcony (i). Hand rail was too rusty (ii). Wall and external perimeter to be repainted due to poor workmanship (iii). Marbles were too dirty 7. Dining (i). Visible stain on glass window ii). Defective silicon on the window frame (iii). Visible crack on shadow line of the ceiling (iv). Chipped, visible scratches and uneven grouting of marbles (v). Peeled off wall switching stickers 8. Living 2 (i). Cracked window glass and visible scratches (ii). Overlap paint between wall and/or window frame (iii). Visible hole on switch area (iv). Poor workmanship on skirting (vi). Chipped, visible scratches and uneven grouting of marbles 9. Dry Kitchen (i). Visible hole at side switches (ii). Dirty island hood (iii). Loose cabinet hinge clips (iv). visible scratches and uneven grouting below island hood (v). dirty coffee maker (vi). Termination of marbles and poor workmanship on the tiles (vii). Loose island skirting (viii). Stain on glass window 10. Wet Kitchen (i). Scratches on internal window (ii). Defective glass window silicon (iii). Stained dishwasher (iv). Uneven grouting (v). Rough walls (vi). Visible holes on cabinets 8 11. Pantry (i). Poor workmanship on grouting (ii). Dirty tiles 12. Yard (i). Chipped wall near the switches (ii). Scratches on glass window (iii). Dirty sink 13. Utility 1 (i). Termination window frame/wall (ii). Poor workmanship of skirting in all area 14. 0DLG¶V%DWK (i). Door frame needs repainting due to poor workmanship (ii). Poor finishing at the door frame bottom 15. A/C Ledge (i). Stain on glass door (ii). Wall to be repainted (iii). Dent on compressor 16. Mater Bedroom (i). Scratches on window glass (ii). Defective window silicon (iii). Uneven colour of timber and visible stain 17. Wardrobe (i). Touch up is required on the skirting (ii). Scratches on the sliding door 18. Master Bath (i). Chipped birdsmouth joint on vanity top (ii). Watermark inside the drawer (iii). Chipped marble below mirror (iv). Drawer to be repainted (v). Rusty stainless-steel door handle (vi). Defective glass door silicon 19 . Bedroom 1 (i). Door stopper panel to be repainted (ii). Wall to be repainted 9 (iii). Defective skirting behind the door (iv). Different tonality of timber (v). Dirty window frame (vi). Cracks on the shadowline of the ceiling (vii). Dirty cabinet panel 20. Bath 1 (i). Visible stain on the mirror (ii). Chipped and/or scratches on the marble below mirror (iii). Vanity top chipped and/or scratch (iv). Defective glass door hinges (v). Chipped, visible scratches and uneven grouting of marbles. 21. Bedroom 2 (i). Termination of marble (ii). Chipped door near the stopper (iii). Uneven timber floor that needs touch up (iv). Defective skirting (all area) (v). Wall to be repainted (all area) (vi). Stains on window 22. Bath 2 (i). Chipped marble at birdsmouth (ii). Dirty basin (iii). Chipped and scratches on vanity top (iv). Poor workmanship at ceiling shadowline (v). Faulty glass door hinges (vi). Chipped, visible scratches and uneven grouting of marbles. 23. Bedroom 3 (i). Dirty and/or stained window glass (ii). Faulty window silicon (iii). Gap visible on the timber flooring (iv). Gap visible between timber and/or cabinet space 24. Bath 3 (i). Faulty door frame top edge 10 (ii). Poor workmanship on top of the mirror shadowline (iii). Crack line on vanity top (iv). Rain shower not positioned properly (v). Defective silicon (vi). Dirty window glass (vii). Chipped marble near to the toilet (viii). Poor workmanship of marble grouting and visible scratches on the marbles 5. The Plaintiffs further alleges that the above defects were contrary to the representations made by the Defendant or its agents. As a result, the Plaintiffs states that they had submitted an inspection list with the required particulars of defects, shrinkage or faults on the 15-2-2017. 6. There were a series of inspections undertaken by the Plaintiffs and the Defendant on the condition of the property. These were undertaken inter alia on 20-3-2017 and 3-5-2017. 7. The Plaintiffs contend that the Defendant had failed to comply with their contractual obligation, in particular, had breached clause 13 and clause 29 of the said Sale and Purchase Agreement. 11 8. There was an attempt to resolve the dispute with the involvement of an architect known as Ar Low Ai Ling from PAM. She was appointed to conduct an inspection over the property and submit a report on the condition of the property. 9. However, during the inspection, parties had a dispute as to the terms of the reference and the appointment of Ar Low Ai Ling. The Plaintiffs allege that she was not qualified or experienced to undertake the inspection over the property. 10. Due to the above delay and failure to repair the defects, the Plaintiffs had appointed Cannan Building Inspection, an independent Building Surveying Company. 11. Cannan Building Inspection had inspected the property and produced an inspection report dated 15-5-2018 ³&DQDDQ5HSRUW´ . 12. As a result of the said Cannan Report, the Plaintiffs issued a GHPDQGWKURXJKWKHLUWKHQVROLFLWRUV0HVVUV5DMDQ1DYDUDWQDP¶V letter dated 12-11-2018, served a copy of the Canaan Report and a copy of the quotation for the sum of RM 440, 371.20 for the alleged repairs to be undertaken on the property by Superior Stone Sdn 12 Bhd. The Plaintiffs demanded that the Defendant to make good the defects within 14 days from the date of the letter failing which they will undertake the works and that the costs shall be borne by the Defendant. 13. The Defendant refused to bear the rectification costs as suggested by the Plaintiffs as stated at paragraph 12 earlier as seen in the letter dated 12-11-2018. 6XPPDU\RIWKH'HIHQGDQW¶V&ODLPDQG&RXQWHUFODLP 14. The Defendant denies that the Conquas and Qlassic were part and parcel of the terms of the Sale and Purchase Agreement. The Defendant however states that the development shall be guided by Conquas or the Green Building Index quality standard. The Defendant also denies that the green park area constitutes part and parcel of the sale and purchase agreement. 15. Therefore, the Defendant denies that the said representations either induced the Plaintiffs to enter into the Sale and Purchase 13 Agreement and that the same constitute terms incorporated either expressly or impliedly into the said Agreement. 16. The Defendant also denies that there were defects to the property as alleged by the Plaintiffs and that there were any delays to the delivery of the property and / or delay in the rectification works undertaken on the property. 17. On the issue of delivery of vacant possession, the Defendant contends that the property was delivered on 30-11-2016 i.e., 14 days from the date of the notice issued dated 16-11-2016 to the Plaintiffs to take delivery of vacant possession. This was supported by the certificate of completion and compliance issued on 7-10- 2016. 18. The Defendant further contends that the property was built in accordance with the specification of the Sale and Purchase Agreement. However, the Defendant admits having received the email dated 8-2-2019 with the Inspection list sent by the Plaintiffs. 19. I also note that the Defendant, despite denying the existence of the defects, admits that there was a delay in the completion of the 14 rectification works due to the non-availability of materials which they say were beyond its control. 20. The Defendant also alleges that it had issued a letter dated 15-5-2015 to the Plaintiffs requesting that they accept the completed rectification works and collect the rear entrance yard key. Reminders were sent on 29-5-2017, 18-7-2017 and 17-8-2017. 21. The Defendant further contends that it had the right to undertake repairs and make good all the alleged defects, if any, to the property in accordance with clause 29(2). 22. For this purpose, the Defendant had forwarded to the RSP Architects Sdn Bhd on 23-11-2018 the Cannan Report. The Defendant also alleges that it had informed the Plaintiffs of their intent to undertake the repair works, on a without prejudice basis, which will be complied within 3 months to the satisfaction of the said architects. The Defendant is willing and able to undertake the repair works and rectify the alleged defects upon given consent by the Plaintiffs to do so. 15 23. However, the Defendant contends that the Plaintiffs have simply refused to allow them to complete the works and have instead filed this suit wrongfully. The Defendant opines that this suit was intended to embarrass it and force it to purchase the property back from the Plaintiffs. B. Remedies claimed 24. At the outset of the trial, WKH3ODLQWLIIV¶FRXQVHOKDGLQIRUPHG this Court that it only intends to seek the following prayers against the Defendant: - RELIEF DITUNTUTKAN (b) Satu Deklarasi bahawa Defendan telah gagal membina Hartanah tersebut dengan baik dan cara kerja yang baik dan bahawa kecacatan, penyusutan atau kesalahan lain-lain Hartanah menjadi penting (significant") dalam tempoh 24 bulan kalendar selepas tarikh milikan kosong Hartanah tersebut (c) Satu Deklarasi bahawa Defendan telah gagal, enggan dan / atau cuai untuk membetulkan kecacatan, penyusutan dan atau kesalahan Hartanah tersebut atau mana-mana bahagian kecacatan, penyusutan dan / atau kesalahan Hartanah tersebut setelah notis menurut klausa 29 Perjanjian tersebut diberikan kepada Defendan; (e) Secara alternatif. Defendan membayar balik kos yang ditanggung oleh Plaintif-Plaintif untuk membaik pulih dan/atau membaiki 16 kecacatan, penyusutan dan/atau kesalahan tersebut kepada Plaintif-Plaintif (f) Jumlah sebanyak RM 10,388.00 yang merupakan fi perunding dibayar oleh Plaintif-Plaintif untuk perlantikan Canaan Bangunan Inspection Sdn. Bhd adalah dibayar oleh Defendan kepada Plaintif-Plaintif, (g) Faedah 5% daripada jumlah RM6.518,700.00 yang akan dikira dari tarikh pemfailan Writ dan Penyata Tuntutan sehingga tarikh penghakiman (h) Bahawa Defendan membayar Plaintif sebanyak RM 504,000.00 sebagai ganti rugi untuk (1) penggunaan Hartanah: (ii) menafikan Plaintif-Plaintif dari menikmati penggunaan Hartanah; (ii) kesukaran yang disebabkan oleh Plaintif-Plaintif (i) Bahawa Defendan untuk membayar ganti rugi khas di mana kuantum adalah ditentukan semasa perbicaraan. (j) Faedah atas jumlah penghakiman pada kadar faedah 5% setahun yang dikira dan tarikh penghakiman sehingga tarikh realisasi: (k) Gantirugi umum yang akan dinilai oleh Mahkamah Yang Mulia ini (l) Gantirugi teladan: (m) Kos (n) Gantirugi teruk (0) Relif lain dan selanjutnya yang dianggapkan sesuai diberikan Mahkamah Yang Mulia ini 25. The Defendant on the other hand seeks to defend the suit and proceed with its Counterclaim against the Plaintiffs. 17 C. Issues to be determined by this Court. 26. I am of the view that this Court must determine the following questions based on the pleadings, documents, and oral evidence presented to this Court: - (i) Whether the Defendant had represented to the Plaintiffs that the Seri Bandar Raya property will be constructed and completed as per the quality standards specification in Conquas (Construction Quality Assessment System) and Qlassic (Quality Assessment System in Construction). (ii) Whether the Defendant had represented to the Plaintiffs that the Seri Bandar Raya project will include a green area landscaping and track. (iii) Whether the Plaintiffs were induced to enter into the Sale and Purchase Agreement as a result of the representations. 18 (iv) Whether the Defendant had failed to deliver the property in accordance with the terms of the sale and purchase agreement. (v) Whether the Defendant had delivered a property that was littered with defects as alleged at paragraph 29 of the Statement of Claim. (vi) Whether the Defendant had breached clause 29 of the Sale and Purchase Agreement. (vii) Whether the Plaintiffs had suffered damages as a result of the said breach. (viii) Whether the suit was bona fide and was intended for a collateral purpose to force a settlement between the parties. 19 D. Decision by this Court. (I) Whether the Defendant is bound by the alleged representations as alleged by the Plaintiffs. 27. The Plaintiffs allege that they were induced by the representations made by the Defendant or its agents to enter into the Sale and Purchase Agreement. These representations allegedly appeared in the advertisement and the promotional brochure of the Defendant. The alleged representations were supposedly contained the following words: - (i) This Condominium is slated to challenge the conventional expression of luxury. (ii) Luxury is in details (iii) Serai is posed to take your breath away with a treasure trove of thoughtful, well-designed luxuries. (iv) Serai is guided by Conquas. 28. 7KH3ODLQWLIIV¶ZLWQHVVWKH)LUVW3ODLQWLIIKLPVHOIDOOXGHGWRWKLV allegation in his witness statement and referred to the brochure as 20 weOO DV WKH DGYHUWLVHPHQW FRQWDLQHG LQ WKH 'HIHQGDQW¶V ZHEVLWH dated1-6-2020. 29. As stated earlier, the Plaintiffs further allege that they were represented that the Defendant shall also build a common facilities area that will include a green area with landscaping and track. 30. I have considered the brochure and the alleged website as alluded to by the Plaintiffs witnesses. I find that the said statements PDGH WKHUHLQ DUH ZKDW LV UHIHUUHG WR DV ³PHUH SXII´ DQG RQO\ constitute what a reasonable person would take as mere sales talk and therefore cannot amount to a misrepresentation of fact. 31. In this regard, I refer to the leading authority on this issue, the decision of Lindley LJ in Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256. I shall not repeat the facts of that case as it would be familiar to most common law practitioners and Judges. 32. Lindley LJ stated: ³We, therefore, find here all the elements which are necessary to form a binding contract enforceable in point of law, subject to two 21 observations. First of all it is said that this advertisement is so vague that you cannot really construe it as a promise ² that the vagueness of the language shews that a legal promise was never intended or contemplated. The language is vague and uncertain in some respects, and particularly in this, that the 100l. is to be paid to any person who contracts the increasing epidemic after having used the balls three times daily for two weeks. It is said, When are they to be used? According to the language of the advertisement no time is fixed, and, construing the offer most strongly against the person who has made it, one might infer that any time was meant. I do not think that was meant, and to hold the contrary would be pushing too far the doctrine of taking language most strongly against the person using it. I do not think that business people or reasonable people would understand the words as meaning that if you took a smoke ball and used it three times daily for two weeks you were to be guaranteed against influenza for the rest of your life, and I think it would be pushing the language of the advertisement too far to construe it as meaning WKDW«´ 33. I also refer to the decision of Awang Armadaya Jaya Awang Mahmud JC in 0XVULQ 0D¶URI DQG  RUV Y &RXQWU\ *DUGHQ Danga Bay Sdn Bhd [2019] 1 LNS 2141 where he stated: - Since the days of CARLIL v. CARBOLIC SMOKE BALL CO. [1892] 2 QB 484, the law on "invitation to treat" has come a long way. 22 Earlier, the case of DIMMOCH v. HELLETT [1866] 2 CH APP 21, follows the maxim "Simplex Commendation Obligate " (the simple commendation do not create obligation). Essentially, Brochures and advertisements are commendations which at its highest, is an invitation to treat. The actual offer and acceptance and the intention to create a legal relationship are all culminated in the Sale and Purchase Agreement. Parties are duly bound to scrutinise the terms (small prints included) and do due diligence (if necessary). ,IEURFKXUHVDUHELQGLQJWKHQDFRQWUDFWWRWKHZRUOGLVYDOLG´ 34. Although, the case concerns an application for discovery, I am of the opinion that his statements are persuasive and are applicable based on the facts of this case. 35. I am of the opinion that the statements referred to by the Plaintiffs were so vague that a reasonable person when reading the said brochures and hearing the said representations, even by the sales agents, would understand that these were mere sales talk. These statements are uncertain and capable of having various meanings that they could not be taken seriously by a reasonable person. 23 36. I note that the gist of the Plaintiff¶s claim concerns the alleged failure that the property was not built to the Conquas standards. The words that were used in the said brochure are ³JXLGHGE\&RQTXDV´ and that is vague and uncertain. The statement can have various meanings and does not mean that the Conquas standards as adopted in Singapore will apply to the project and the property at issue. 37. When I peruse the said brochures, I find that the statements when read do not indicate that the Conquas standards as adopted in Singapore will be applicable. This requirement also does not appear in the Sale and Purchase Agreement, in particular Schedule 4 of the said agreement. I also do not find any evidence that the Plaintiffs were aware of what these Conquas standards were at the time when they entered the contract. No form of discussion was VKRZQ DV WR ZKDW WKHVH DOOHJHG EHLQJ JXLGHG E\ ³&RQTXDV VWDQGDUGV´ ZHUH WR PHDQ DQG KRZ WKH\ ZHUH WR EH DSSOLHG 1R evidence was presented by the Plaintiffs to show that they understood what these standards were at the time the brochures and the Sales and Purchase Agreement were executed. This issue only came to light when the Plaintiffs were unhappy with the property delivered to them. 24 38. If indeed this is an essential term of the said agreement, this requirement would have appeared in the agreement or at very least would have been mentioned by the Plaintiffs at the time the said agreement was being executed. There is no evidence that the Plaintiffs had requested or demanded that this alleged representation appears in Schedule 4 of the Sale and Purchase Agreement. 39. This also applies to the allegation that there would have been an alleged green area or landscaping area or track as part and parcel of the said Project or property. I do not find that this forms part and parcel of the said Sale and Purchase Agreement. Schedule 4 of the said Agreement and the terms therein do not mention that there was to be built or constructed either within or external of the Project any form of landscaping area or green area as alleged by the Plaintiffs. 40. The Plaintiffs attempted to explain that this is due to the standard form utilized in the Sale and Purchase Agreement and that Form H of the Housing Development Act was utilized in this case. I note the evidence presented by the First Plaintiff during cross- examination on this issue. However, I do not believe that this 25 provides justification for incorporation of such term or that the Plaintiffs were induced by these alleged representations. If indeed that these were material, surely an attempt would have been made by the Plaintiffs to have these terms incorporated into Schedule 4 at the very least. 41. I am also of the opinion that the Plaintiffs are attempting to add new terms and conditions that do not appear in the written instrument. Clause 13 of the Sale and Purchase Agreement states that the said property and the materials provided in its construction shall be in accordance with the items laid down in the Fourth Schedule. The alleged representations do not appear in the Fourth 6FKHGXOH,I,ZHUHWRDJUHHZLWKWKH3ODLQWLIIV¶FRQWHQWLRQWKHQWKLV Court will be rewriting the terms of the agreement to include items that were never agreed upon or included in the said Sale and Purchase Agreement. 42. It is trite law that it is not for this Court to rewrite the terms of the bargain as contained in the written instrument. I refer to the decision of the Court of Appeal in Bank Islam Malaysia Bhd v Lim Kok Hoe & Anor and other appeals [2009] 6 CLJ 22 where Raus Sharif JCA (as he then was) stated: - 26 ³"It is trite law that the Court should not rewrite the terms of the contract between the parties that it deems to be fair or equitable. This principle has been clearly expressed in numerous cases. (See SHELL MALAYSIA TRADING SDN BHD v. LIM YEE TECK ORS [1982] 1 LNS 11; WONG PA HOCK v. AMERICAN INTERNATIONAL ASSURANCE CO LTD & ANOR [2002] 2 CLJ 267; M. PAKIAM v. YP DEVATHANJAM [1952] 1 LNS 60; [1952] MLJ 58; and CHARTER REINSURANCE CO. LTD v. FAGAI [1996] 2, All ER 46." I also refer to Sections 91 and 92 Evidence Act 1950. 43. Finally, I also find that the fine print appearing in the said instrument explains clearly that the said brochure and representations are not binding on the Defendant. It was clearly stated: - ³$OO LQIRUPDWLRQFRQWDLQHGKHUHLQ LQ UHVSHFWRI %'5%¶V SURSRVHG development is strictly private and confidential and serves as information to the recipient only. It is not intended and shall not be treated as an offer for sale to the recipient and shall not be binding 27 on BDRB. The contents of all information contained herein may be VXEMHFWWRFKDQJH´ Therefore, these representations would not be binding on the Defendant. (II) Whether the Statements were relied upon 44. Even if I am wrong on the above, I also find that the statements referred to by the Plaintiffs were not the material reasons that lead to the Plaintiffs agreeing to enter into the Sale and Purchase Agreement. Other material factors caused the Plaintiffs to agree to purchase the said property. 45. Under cross-examination, the First Plaintiff, Mr. Bruce, agreed that there were other factors at play that led to the decision to purchase the said property. These factors could be summarized as follows: (i) The property is situated in Bangsar; (ii) The property would be close to the 2nd 'HIHQGDQW¶VIDPLO\ 28 (iii) The Plaintiffs were impressed with the previous unit bought by the Plaintiffs from the Defendant. (iv) Bangsar is a highly sought area. 46. These allegations were shown by the evidence carefully DGGXFHGE\WKH'HIHQGDQW¶VFRXQVHO during the cross-examination of the First Plaintiff which I reproduced herein: - 29 47. I refer to the decision of Gopal Sri Ram JCA in Sim Thong Realty Bhd v Teh Kim Dar [2003] 3 CLJ 227 where he stated: 30 ³Now the elements of an actionable misrepresentation are well settled. They are set out as follows in Professor McKendrick's Contract Law, 3rd edn, a leading work on the subject: A misrepresentation may be defined as an unambiguous, false statement of fact which is addressed to the party misled and which materially induces the contract. This definition may be broken down into three distinct elements. The first is that the representation must be unambiguous false statement of fact, the second is that it must be addressed to a party misled and third is that it must be material LQGXFHPHQWWRHQWU\LQWRWKHFRQWUDFW´ 48. I also refer to the decision of the Court of Appeal in Low Choon Chuan and ors v Majupadu Realty Sdn Bhd [2012] 1 LNS 940 and the decision of the Federal Court in Admiral Cove Development Sdn Bhd v Balakrishnan Devaraj [2011] 9 CLK 133. 49. I am aware that these decisions of the Superior Courts are fact-sensitive. However, having taken into account the evidence presented by the First Plaintiff and the evidence tendered during cross-examination referred to earlier, I find that these statements were not the material statements that were relied upon by the 31 Plaintiffs. I am of the opinion that other material considerations were taken into account by the Plaintiffs. This is more so when one considers that the characteristics of the statements contained in the brochure referred to by the Plaintiffs that is vague and uncertain. A reasonable person would have considered these vague statements as being mere sales talk. 50. Therefore, having considered the above, I reject the 3ODLQWLII¶V claim for misrepresentation against the Defendant. I find that these representations, even if they were made, were not material and do not form part and parcel of the said Sale and Purchase Agreement. The facts show that other material considerations were considered by the Plaintiffs, and these were mere ³VDOHV WDON´ WKDW ZRXOG QRW have been taken seriously by them. (III) Whether the Defendant did breach clause 13 and clause 29 of the Sale and Purchase Agreement Clause 29 of the Sale and Purchase Agreement 51. The above finding does not however absolve the Defendant from fault. I find that the Defendant did fail to comply with clause 29 32 of the Sale and Purchase Agreement. For ease of reference, I refer again to clause 29 of the said Sale and Purchase Agreement. DEFECT LIABILITY PERIOD (1) Any defect, shrinkage or other faults in the maid Parcel or in the said Building or in the common property which shall become apparent within a period of twenty-four (24) calendar months after the date the Purchaser takes vacant possession of the said Parcel and which are due to defective workmanship or materials or the said Parcel or the said Building or the common property not having been constructed in accordance with the plans and description as specified in the First and Fourth Schedule as approved or amended by the Appropriate Authority, shall be repaired and made good by the Vendor at its own cost and expense within thirty (30) days of the Vendor having received written notice thereof from the Purchaser. (2) If the said defect, shrinkage or other faults in the said Parcel or the said Building or in the common property have not been made good by the Vendor within the said period of thirty (30) days under sub-clause (1), the Purchaser shall be entitled to carry out the works to repair and make good the said defect, shrinkage or other faults himself and to recover from the Vendor the costs of repairing and making good the same and the Purchaser may deduct such costs from any sum which has been held by the Vendor's solicitor as stakeholder for the Vendor under Item 5 of the Third Schedule provided that the Purchaser shall, at any time after the expiry of the said period of thirty (30) days, notify the Vendor of the cost of repairing and making good the said defect, shrinkage or other faults before the commencement of the works and shall give the Vendor an opportunity to carry out the works himself within fourteen (14) days from the date the Purchaser has notified the Vendor of his Intention to carry out the said works and provided further that Purchaser shall carry out and commence the said works as soon as practicable after the Vendor's failure to carry out the said works within the said period of fourteen (14) days. In such an event, the Vendor's solicitors shall release such costs to the Purchaser from the stakeholder sum held by the Vendor's solicitors under Item 5. of the Third Schedule within fourteen (14) days after receipt by the Vendor's solicitors of the 33 Purchaser's written demand specifying the amount of such costs. (3) Subject to sub-clause (2), where the Purchaser has, before the expiry of eight (8) months or twenty-four (24) months after the date the Purchaser takes vacant possession of the said Parcel as set out in Item 5(a).and Item 5(b) respectively of the Third Schedule, duly served on the Vendor's solicitors a copy of the written notice from the Purchaser to the Vendor under sub- clause (1) to rectify the said defect, shrinkage or other faults in the said Parcel or the said Building or the said common property, the Vendor's solicitors shall not release to the Vendor the relevant sum held by the Vendor's solicitors as stakeholder pursuant to Item 5/a) and/or item 5(b)of the Third Schedule, as the case may be, until the Vendor's solicitors shall have received a certificate signed by the Vendor's architect certifying that the said defect, shrinkage or other faults in the said Parcel or the said Building or the said common property have been repaired and made good by the Vendor. 52. The evidence produced in this proceeding indicates that the Defendant did fail to complete the repair or remedial works on the property within the 30 days period required under the terms of the Sale and Purchase Agreement. 53. I find that the following dates are material to the facts of this case: - (i) The Notices issued by the Defendant to the Plaintiffs to take vacant possession of the property dated 16-11-2017. (ii) Plaintiffs taking physical vacant possession of the property on 6-2-2017. 34 (iii) The First Joint Inspection on 8-2-2017 and the inspection list prepared by Messrs Henry Butcher Malaysia dated 8-2-2017. (iv) The Second Joint Inspection on 14-2-2017 and the inspection list prepared by the Plaintiffs dated 15-2-2017. (v) The email dated 7-3-2017 from Mr Zulkifli of Messrs Henry Butcher Malaysia informing the Plaintiffs that rectification works were being undertaken. (vi) Third Joint Inspection on 20-3-2017 in the attendance of Messrs Henry Butcher Malaysia. (vii) The email dated 21-3-2017 from Mr Zulkifli or Messrs Henry Butcher informing the Plaintiffs that the works were being done undertaken to complete the rectification works. (viii) The letter of demand issued by Messrs Ravindran 27-3-2017 to the Defendant. (ix) 7KH 'HIHQGDQW¶V OHWWHU GDWHG -4-2017 requesting a Joint Inspection. (x) The Fourth Joint Inspection was undertaken on 3-5-2017. (xi) The letters issued by Messrs Henry Butcher dated 15-5-2017 and 29-5-2017. (xii) The second letter of demand dated 30-5-2017 to the Defendant insisting that the rectification work is to be completed and that the Defendant had failed to do so to date. (xiii) The Fifth Joint Inspection, in the attendance of Miss AR Low Ai Ling, the appointed architect, on 4-12-2017. This meeting however had to be cancelled as there was a disagreement between parties on the qualification of the appointed architect. 35 (xiv) The Quality Inspection Report No. CQ12-210618 by Canaan Building Inspection Sdn Bhd based on the inspection done by WKH3ODLQWLIIV¶ILUVWZLWQHVV (xv) The demands issued by Messrs Rajendran dated 14-4-2017 and 12-11-2018. 54. After hearing the evidence presented by parties during cross- examination of witnesses, the witness statements and the documents tendered herein, I find that the Plaintiffs did prove that the Defendant had failed to undertake the repairs to the defects appearing in the property within 30 days as stipulated in clause 29 of the Sale and Purchase Agreement. 55. The Plaintiffs have shown that the property had suffered some defects that needed rectification by the Defendant within the time frame stipulated in the Sale and Purchase Agreement. Having notified the Defendant as early as 8-2-2017, these repairs should have been undertaken fully within the stipulated time. I also note that the clause does not provide for an extension of time and neither did the Plaintiffs agree to any form of extension of time for the Defendant to undertake the said repairs. 36 56. This was also admitted by the 'HIHQGDQW¶V)LUVW:LWQHVVXQGHU cross-examination. He admitted that there was a technical breach of clause 29 as they needed time to obtain the marble and the other parts necessary to undertake the repairs based on the list of defects prepared by the Plaintiffs. This can be seen in the following excerpts from the notes of evidence: - 37 57. , DOVR DFFHSW WKH HYLGHQFH SUHVHQWHG E\ WKH 3ODLQWLII¶V )LUVW Witness that based on his inspection various defects are apparent in the marble supplied and installed in the unit. These needed to be rectified by the Defendant and as of the date of his inspection these were not undertaken by the said developer. 58. I note that the Defendant attempted to present to this Court that the said defects appeared or were caused by the failure to maintain the property and that it could have occurred due to either wear and tear or due to the afflictions caused by the lack of residents at the property before the property was inspected by Canaan. 59. However, having considered the evidence presented by parties, I reject the said arguments as being improbable. The said witness did explain that the defects to the marbles i.e., chipping, being jagged and having bad grouting would not have occurred due to the lack of maintenance. These would only arise as a result of lackadaisical installation by contractors of these marbles or other items within the property. These would not be an inherent part of the marbles. 60. However, I do not believe that the whole of the works was not rectified by the Defendant. As admitted by the First Plaintiff when 38 inquired by this Court, the remaining items left to the unit that needed repairs were the marbles installed in the property and the glass balcony that was not to their satisfaction. The First Plaintiff agreed that the remainder of the works were undertaken by the Defendant. 61. The evidence indicates that the Defendant did breach clause 29 of the Sale and Purchase Agreement. I refer WRWKH'HIHQGDQW¶V FRXQVHO¶VFRQFHVVLRQZKHQ,UHTXHVWHGWKDWKHSURYLGHKLVFOLHQW¶V position on the said issue: - 39 62. Therefore, based on the above evidence I find that the Defendant did breach clause 29 of the Sale and Purchase Agreement. Clause 13 of the Sale and Purchase Agreement 63. I am however of the opinion that the Defendant did not breach clause 13 of the Sale and Purchase Agreement. Clause 13 requires that the property and the project are to be constructed following the description as set out in the Fourth Schedule and accordance with the plans approved by the authorities. The Plaintiffs have failed to show to this Court the changes or any deviations to the approved plan or according to the Fourth Schedule were undertaken by the Defendant. 64. The Plaintiffs attempted to link the breach to clause 29 to clause 13 of the Sale and Purchase Agreement. However, I am of the opinion that clause 29 concerns any defects, shrinkage or other faults that may appear in the property as a result of the construction process. Defects during the construction process are common in any development and the said clause 29 is intended to ensure that 40 the developer makes good the said defects. Whereas clause 13 deals with the whole building and the development project. 65. My views are further reinforced by the existence of the Certificate of Completion in Form F was issued by the RSP Architects Sdn Bhd dated 7-10-2016. This was shown to this Court and its existence is not in dispute. 66. I also refer to the report prepared by Canaan Sdn Bhd on the existence of the defects on the marble to the property. As I have stated earlier, there were defects to the property and that the Defendant did fail to make good to the defects within the required 30 days period. However, I am of the opinion that the report prepared by Canaan did not indicate that the property was not built to specification. There were defects but this only exists at the most to 10% to 20% of the marble. The remaining part of the property was not shown to be built to specification. Even the defective marble could be rectified or repaired. Therefore, I find that on the balance of probabilities that the Plaintiffs failed to show to this court that the Defendant had breached clause 13 of the said Sale and Purchase Agreement. 41 67. Even the First Plaintiff accepts when asked by this Court whether the property was rectified. He stated that most of the works complained have been repaired but he was unhappy with the state of the marble and the balcony. Therefore, this would indicate that clause 13 was not breached by the Defendant. The issue as to the marble and the alleged defects appearing in the unit will have to be rectified and dealt with under clause 29. In the circumstances, I find that the Plaintiffs have failed to prove that the Defendant did breach the said clause. (IV) Remedies available to the Plaintiffs 68. I reproduce the remaining remedies that are prayed for by the Plaintiffs. (b) Satu Deklarasi bahawa Defendan telah gagal membina Hartanah tersebut dengan baik dan cara kerja yang baik dan bahawa kecacatan, penyusutan atau kesalahan lain-lain Hartanah menjadi penting (significant") dalam tempoh 24 bulan kalendar selepas tarikh milikan kosong Hartanah tersebut (c) Satu Deklarasi bahawa Defendan telah gagal, enggan dan / atau cuai untuk membetulkan kecacatan, penyusutan dan atau kesalahan Hartanah tersebut atau mana-mana bahagian kecacatan, penyusutan dan / atau kesalahan Hartanah tersebut setelah notis menurut klausa 29 Perjanjian tersebut diberikan kepada Defendan; (e) Secara alternatif. Defendan membayar balik kos yang ditanggung oleh Plaintif-Plaintif untuk membaik pulih dan/atau membaiki 42 kecacatan, penyusutan dan/atau kesalahan tersebut kepada Plaintif-Plaintif (f) Jumlah sebanyak RM 10,388.00 yang merupakan fi perunding dibayar oleh Plaintif-Plaintif untuk perlantikan Canaan Bangunan Inspection Sdn. Bhd adalah dibayar oleh Defendan kepada Plaintif-Plaintif, (g) Faedah 5% daripada jumlah RM6.518,700.00 yang akan dikira dari tarikh pemfailan Writ dan Penyata Tuntutan sehingga tarikh penghakiman (h) Bahawa Defendan membayar Plaintif sebanyak RM 504,000.00 sebagai ganti rugi untuk (1) penggunaan Hartanah: (ii) menafikan Plaintif-Plaintif dari menikmati penggunaan Hartanah; (ii) kesukaran yang disebabkan oleh Plaintif-Plaintif (i) Bahawa Defendan untuk membayar ganti rugi khas di mana kuantum adalah ditentukan semasa perbicaraan. (j) Faedah atas jumlah penghakiman pada kadar faedah 5% setahun yang dikira dan tarikh penghakiman sehingga tarikh realisasi: (k) Gantirugi umum yang akan dinilai oleh Mahkamah Yang Mulia ini (l) Gantirugi teladan: (m) Kos (n) Gantirugi teruk (0) Relif lain dan selanjutnya yang dianggapkan sesuai diberikan Mahkamah Yang Mulia ini 69. In this case, I find that despite successfully showing that the Defendant had committed a breach of clause 29, I am of the view 43 that the Plaintiffs have failed to show that they have suffered all their alleged damages for reasons stated below. 70. As seen in the series of correspondence between the Plaintiffs and the Defendant, including the letters between solicitors, the Defendant has shown a willingness to undertake the repair over the alleged defects. Attempts were made but the Plaintiffs believed the said works undertaken were not to the standards expected based on the purchase price paid. The Defendant did try to accede to the demands made by the Plaintiffs, even to the extent of appointing an architect from Persatuan Architect Malaysia to review the property and provide an independent report of the alleged defects on the property. However, this attempt failed as parties could not agree on the terms of the appointment. 71. The Plaintiffs then appointed Canaan Sdn Bhd to undertake a review of the property, which lead to the report. As I have referred to earlier, the Plaintiffs solicitors then issued a demand to the Defendant seeking that the defects be repaired by removing the whole marble floor in the said property based on the quotation provided by Superior Stone Industries Sdn Bhd. This demand was not acceded to by the Defendant, but they again indicated that they 44 were willing and able to undertake the repairs to the property as seen in the letters issued by Messrs Ariff & Associates on behalf of the Defendant dated 26-11-2018 and 7-3-2019. The Plaintiffs however disagreed and refused to allow the Defendant to undertake the said repair. 72. I also note that as of to date, the Plaintiffs have yet to undertake any repair work on the property. I had asked the First Defendant during the trial as to whether the Plaintiffs had undertaken any repair works on the property to make good the said defects. He confirms that the defects remain and that they have not made any repairs to the marbles or any part of the alleged defects. The Plaintiffs position has not changed till today. They have refused all overtures made by the Defendant to make good the defects. 73. After reviewing clause 29 of the Sales and Purchase Agreement, I find that even if the Defendant had failed to complete the repair works within the stipulated time, it is for the Plaintiffs to make good the said defects and then claim the same from the Defendant. It is not for the Plaintiffs to complain of the same and merely provide a quotation for the said damages and not undertake any work. In our case, as no work was undertaken and there only 45 remains a quotation, I am of the opinion that the Plaintiffs have not suffered any damages that arose as a result of the said breach by the Defendant save for the sums paid to Canaan Building Inspection Sdn Bhd. The detailed reasons for coming to this decision are stated in the following paragraphs 74. I note that the Plaintiffs did plead the following items that were claimed against the Defendant: - (i) The sum of RM 10, 388.00 being the consultation fee paid to Canaan Building Inspection Sdn Bhd. (ii) The sum of RM 504,000.00 being damages for use of the property, deprivation of the use of the property and hardship caused to the Plaintiffs. (iii) Special Damages to be determined at trial. (iv) General Damages and Aggravated Damages 75. On these claims, I find that the Plaintiffs have failed to prove that they have suffered these damages save for the sum of RM 10, 388.00 paid to Canaan Building Inspection Sdn Bhd. 46 76. Firstly, on the issue of special damages, I note that the particulars of special damages were not specifically pleaded. This is contrary to the requirement of pleadings save for the sum of RM 10, 388 paid to Canaan Building Inspection Sdn Bhd. 77. Therefore, during the course of the trial, I did not allow evidence concerning the costs of the flights incurred by the Plaintiffs and the related taxes and maintenance fees to the property. Such evidence was objected to by Counsel for the Defendant and based on the following authorities, I agree that such evidence is inadmissible: - I refer to the following authorities: - (a) Tan Chong & Son Motor Co (Sdn) Bhd v Alan Mcknight [1983] 1 MLJ 220 (b)Siew Ong Engineering Works (sued as a firm) v Lian Yit Engineering [1993] 2 SLR 505 (c) Sambaga Valli K R Ponnusamy v Datuk Bandar Kuala Lumpur [2017] 1 LNS 500 78. On the issue of the consultation fees paid to Canaan Building Inspection Sdn Bhd, I find that as this sum has been pleaded and 47 proved by the Plaintiffs, I allow the same. The Plaintiff are entitled to claim the sum of RM 10, 388.00 that was incurred because of the need to appoint an expert to analyze the defects to the marble at the said property. This expense arose naturally because of the said breach and the failure of the Defendant to comply with clause 29 of the said Sale and Purchase Agreement. This became necessary in the circumstances of this case as the parties were at loggerheads as to whether there were defects in the marble and whether there was a need to undertake repairs. As indicated earlier, parties disagreed as to the nomination of the chosen architect from PAM. Therefore, the appointment of Canaan Building Inspection became necessary and would have been reasonably expected in the circumstances. 79. Regarding the alleged loss of the use of the property, I find that the Plaintiffs had failed to plead such damage specifically as required under the rules and as such failed to discharge their burden to prove that they had incurred such damage of such nature. Even if I were to entertain the said claim irrespective of the pleadings, I also find that the Plaintiffs have not shown any evidence of any rentals paid by them of any property used in the interim or any form of loss in any form whatsoever. 48 80. It is not for the Plaintiffs to merely throw to this Court a list of the damages claimed in the Statement of Claim without providing evidence of the same. I refer to the decision of Edgar Joseph Jnr J (as he then was) in Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd [1990] 2 CLJ Rep 635 and the decision of the Court of Appeal in Kerajaan Negeri Kelantan Darul Naim v Syarikat Kemajuan Timbermine Sdn Bhd [2013] 1 CLJ 537. 81. Therefore, I dismiss the claim for special damages as prayed for in the Statement of claim, save that of the sum paid to Canaan Building Inspection Sdn Bhd of RM 10, 388.00. As I have stated earlier, this special damage was pleaded by the Plaintiffs whereas none of the other claims appears LQ WKH 3ODLQWLII¶V 6WDWHPHQW RI &ODLP,UHSURGXFHWKHRQO\SDUWRIWKH3ODLQWLII¶VFODLPZKHUHVSHFLDO damages were stated (even then the items were not particularized): - 49 82. Regarding the claim for aggravated and general damages, I do not find that there is no evidence to support the contention justifying any award for these damages. I am guided by the decision of the Court of Appeal in Sambaga v Datuk Bandar Kuala Lumpur (supra). As I have stated earlier, despite the breach of clause 29, the Defendant has shown it was willing and able to complete the works to repair the defects. However, the Plaintiffs were unhappy with their standards and there appears to be a strained relationship between parties. 83. Despite the clear strenuous relationship, I find that the 'HIHQGDQW¶V FRUUHVSRQGHQFH LQGLFDWHV D ERQD ILGH LQWHQWLRQ WR undertake the repairs. I believe that the Plaintiffs should have allowed the Defendant a final opportunity to repair and if the works were still not to the standard expected, then they could then undertake their repairs and claimed for the sums incurred. Even to this date, the property has not been repaired by the Plaintiffs. As such, there is no basis justifying the exercise of my powers to grant exemplary, aggravated or general damages as prayed for by the Plaintiffs. 50 84. I am further of the opinion that the conduct of the Plaintiffs is unreasonable in the circumstances of this case. If indeed the quality of the workmanship of the property is not to their satisfaction, then the Plaintiff should have undertaken the repairs and claim the costs of making those repairs from the Defendant. This is provided for in clause 29 of the said Sale and Purchase Agreement. The Plaintiffs should not have left the property in the same state until the date of the trial. Nothing was done by the Plaintiffs to repair the alleged defects save that they had obtained a quotation from a third party without any further steps taken thereafter. 85. The said third party, Superior Stone, was not even called to give evidence to explain the contents of the said quotation. I find that this renders the whole quotation inadmissible. I refer to the judgment of the Court of Appeal in 'DWR¶6UL0RKG1DMLEE+M$EG Razak v PP [2021] MLJU 2485: - 51 86. I am also guided by the decision of the Federal Court in Lim Guan Eng v Ruslan Kassim and anor [2021] 4 CLJ 155 where Harminder Singh Dhaliwal FCJ stated: ³>@ With respect, aggravated damages are not confined to cases involving high handedness or oppressive actions which are more reminiscent of actions for damages for unlawful imprisonment or against other unlawful governmental actions. On the contrary, there are a variety of circumstances where aggravated damages can be justified as alluded to earlier. As a further example, the Court of Appeal in Sambaga Valli 52 K R Ponnusamy v. Datuk Bandar Kuala Lumpur & Ors And Another Appeal [2017] 1 LNS 500; [2018] 1 MLJ 784 through the judgment of Mohd Zawawi Salleh JCA (now FCJ) noted as follows: [32] Now, aggravated damages are classified as a species of compensatory damages, which are awarded as additional compensation where there has been intangible injury to the interest of personality of the plaintiff, and where this injury has been caused or exacerbated by the exceptional conduct of the GHIHQGDQW´ 87. Although the case concerns a defamation claim, I am of the opinion the principles enunciated therein apply to this case. As I could not find any evidence of high-handed conduct by the Defendant or any circumstances justifying the invocation of the said powers in favor of the Plaintiffs, I do not believe that this is an appropriate case for the grant of such damages. 88. This Court must point out that in any breach of contract, it is still the duty of the innocent party to mitigate its losses. A Plaintiff cannot sit on his or her laurels and claim damages alone. He or she must take all reasonable steps to reduce such damage. The leading case on this is Malaysian Rubber Development Berhad v Glove Seal [1994] 4 CLJ 783, where Dzaiddin FCJ (as he then was), stated: - 53 "The second misdirection relates to the question of mitigation of damages. It is settled principle that the plaintiff is under a duty to take reasonable steps to mitigate the loss consequent to the defendant's wrong and he will not get damages in respect of any part of the loss which is due to his neglect to take such steps (British Westinghouse Co. v. Underground Ry [1912] AC 673; Pasuma Pharmacal Corporation v. Mcalister & Co. Ltd [1964] 1 LNS 132). In the sale of goods, the principle of mitigation is a foundation of the normal rule for the measure of damages which requires the innocent party to act immediately upon the breach, to buy or sell in the market, if there is an available market. Even in the absence of an available market, the innocent party must act reasonably to mitigate his loss (Benjamin's Sale of Goods, supra, para 16-044). The question what is reasonable or whether the plaintiff has acted reasonably in mitigation of his damages in every case is a question of fact and not law (Payzu Ltd. v. Saunders [1919] 2 K.B. 581, 588; The Solholt [1983] 1 Llyods Reports 605 CA)." 89. I note that the Plaintiffs did attempt to distinguish this principle of law based on Chase Perdana Sdn Bhd (formerly known as Chew Piau Bhd) v CIMB Bank Bhd [2010] 1 MLJ 685. However, the facts appearing, in that case, are distinguishable from the facts at hand. In that case, there was a clause that provides liquidated damages thus entitling the Plaintiffs to institute its claim fully based on the clause against the Defendant. In our case, clause 29 54 specifies that the Plaintiffs must undertake works to make any repairs that the Defendant had failed to undertake within the stipulated time. 90. As the Plaintiffs did fail to mitigate their losses and that the Defendant did act reasonably in making offers to repair the alleged defects, which were rejected by the Plaintiffs, I do not find any basis for the Plaintiffs to claim any exemplary damages against the Defendant. As such I find that the Plaintiffs had failed to act reasonably in the circumstances of this case and should have mitigated its damage in accordance with clause 29 of the said Sale and Purchase Agreement. 91. I repeat that the Plaintiffs are merely relying on a quotation to repair the defects. They did not undertake the repairs despite complaining that the property was not to their satisfaction. I reiterate that Clause 29 of the agreement requires the Plaintiff to undertake the repairs and claims such expense when the Defendant fails to do so. This is what would have been expected under the law from a reasonable Plaintiff. He or she must undertake all steps necessary to mitigate its damage. A plaintiff cannot merely complain and then file a suit to claim damages without any attempt to reduce its losses. 55 92. I note that the Plaintiffs have attempted to claim for the sinking funds, assessment for quit rent paid, and the travelling expenses incurred by them to travel to Malaysia for 6 months as part of their damages. As I have said earlier, these claims were not specifically pleaded by the Plaintiffs in their statement of claim. I have disallowed such evidence at trial, and I repeat my earlier findings. 93. Even if I am wrong on the requirement to plead special damages, I am of the opinion that the 3ODLQWLIIV¶claim for quit rents, sinking fund, utilities, charges and the alleged travelling expenses do not arise naturally as a result of the said defect. These expenses, especially that of the quit rents, sinking funds, utilities, and other similar charges, are those that will arise because of ownership of the property. They do not arise because of the breach of clause 29. 94. Therefore, I find that even if I am wrong on the issue of pleadings, the said claims should not be allowed by this Court. 95. I refer to section 74 of the Contracts Act and the decision of the Court of Appeal in Cahaya Berlian Sdn Bhd v Bandar Kuala Lumpur [2021] 1 LNS 839, where Nor Bee Ariffin JCA stated: - 56 [25] Section 74 of the Contract Act 1950 governs the law on compensation for loss or damage caused by breach of contract ( Toeh Kee Keong v. Tambun Mining Company Ltd [1967] 1 LNS 197; [1968] 1 MLJ 39; The Supreme Court case of Bank Bumiputra Malaysia Bhd. Kuala Terengganu v. Mae Perkayuan Sdn. Bhd. & Anor [1993] 2 CLJ 495; Malaysian Rubber Development Corporation Berhad v. Glove Seal Sdn Bhd [1994] 4 CLJ 783; Nikmat Masyhur Sdn Bhd v. Kerajaan Negeri Johor Darul Ta'zim [2008] 9 CLJ 46)). [26] In Malaysian Rubber Development Corporation Berhad, supra, the Supreme Court held that at page 790 ± ".... It is important to bear in mind that the normal measure of damages for breach of contract in this country is prescribed by s. 74(1) of the Contracts Act 1950, which is the statutory enunciation of Hadley v. Baxendale [1854] 9 Exch. 341: (Toeh Kee Keong v. Tambun Mining Company Ltd [1967] 1 LNS 197; [1968] 1 MLJ 39; Bank Bumiputra Malaysia Bhd. Kuala Terengganu v. Mae Perkayuan Sdn. Bhd. & Anor [1993] 2 CLJ 495 SC. In essence, the section states that the party may recover any loss or damage for any breach which (a) naturally arose in the usual course of things or (b) which the parties knew, when they made the contract, to be likely to result from the breach of it. For the sake of completeness, it should be mentioned that our Courts have treated the position under the second limb of the section to be similar to the second limb of Hadley v. Baxendale, which is, the party may recover damages 57 which may "reasonably be supposed to have been in contemplation of both the parties, of the time they made the contract"...". [27] In Nikmat Masyhur Sdn Bhd, supra, Vernon Ong Lam Kiat JC (as he then was ) explained at page 54 ± "[7] In short, the common law rule in the assessment of damages consists of two limbs. The first limb concerns damages flowing naturally, ie, in the normal course of things from the breach. The second limb concerns the damages that the parties at the time of the making of the contract may reasonably be supposed to have contemplated, as the probable result of the breach. This court is also mindful that in the assessment of damages for breach of contract, the general rule is that the aggrieved party be put in the same as if the contract had been performed; so that normally he is entitled to recover from the contract breaker his loss of profits, or the benefit of the bargain, as it is often called,(see Central Malaysia Development Company Ltd v. Chin Pak Chin [1967] 1 LNS 15.)" [28] It is elementary that the burden of proving damages or the loss claimed lies with the appellant (see Guan Soon Tin Mining Company v. Wong Fook Kum [1968] 1 LNS 43; [1969] 1 MLJ 99; Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd [1995] 1 CLJ 15; Popular Industries Limited v. Eastern Garment Manufacturing Sdn Bhd [1990] 2 CLJ Rep 635; [1990] 1 CLJ 133; [1989] 3 MLJ 360). 58 [29] It must also be borne in mind that it is trite law that in event the appellant failed to adduce sufficient evidence to sustain the appellant's case on the appropriate quantum, the appellant ought to be awarded QRPLQDOGDPDJHV´ 96. Even if the Defendant did not commit the breach of clause 29, the Plaintiffs would still be required to pay the quit rents, assessments, sinking fund, utilities, and such related charges. These expenses do not arise because of the breach of clause 29 EXWDULVHGXHWRWKH3ODLQWLII¶VRZQHUVKLSRIWKHSURSHUW\7KHUHIRUH if I am wrong on the issue of pleadings, I rule that these expenses are not claimable by the Plaintiffs against the Defendant. 97. The PlaintiffV¶ FRXQVHO also argued that as these damages were not cross-H[DPLQHGE\WKH'HIHQGDQW¶VFRXQVHOWKHQWKHVDLG damages are deemed to have been admitted and accepted. I do not believe that there was a need to cross-examine on unpleaded evidence that was ruled to be inadmissible. Furthermore, this is an issue of law of whether the requirement of section 74 of the Contracts is fulfilled by the Plaintiffs to enable them to claim for such damages against the Defendant. As such, I rule on this issue in favour of the Defendant. 59 98. Given the above,GLVPLVVWKH3ODLQWLII¶VFODLPIRUVXFKORVVHV as (i) they were not pleaded and (ii) they do not arise naturally because of the said breach of clause 29 by the Defendant. Nonetheless, as there has been a breach of clause 29 without any evidence of any special damages, save for the fees paid to Canaan, I, grant the following damages to the Plaintiffs: - (i) Fees of Canaan of RM 10, 388.00; and (ii) nominal damages to the sum of RM 10,000. E. Counterclaim by the Defendant 99. I note that the Defendant has filed a Counterclaim alleging that the Plaintiffs have instituted these proceedings for a collateral purpose and as such the proceedings were an abuse of process of this Court. 100. The leading case on the tort of abuse of process in Malaysia is Building Society Bhd v Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340. In that case, Gopal Sri Ram JCA (as he then was) stated: - 60 ³Every person who is aggrieved by some wrong he considers done him is at liberty to invoke the process of the court. Equally may a litigant invoke the process to enforce some claim which he perceives he has against another. When however, the process of the court is invoked, not for the genuine purpose of obtaining the relief claimed, but for a collateral purpose, for example, to oppress the defendant, it becomes an abuse of process. Where the court's process is abused, the proceedings complained of may be stayed, or if it is too late to grant a stay, the party injured may bring an action based on the tort of collateral abuse of process. The position has been neatly summed up by Lord Denning MR in his dissenting judgment in Goldsmith v. Sperrings Ltd & Ors [1977] 1 WLR 478, where at p 489 he said: In a civilized society, legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer. Though a dissenting judgment, the principle enunciated by the Master of the Rolls has been accepted as authoritative of what constitutes an abuse of process. Because it has been developed on a case by case basis as other common law wrongs have, the tort of abuse of process, its entry into the law of torts, has undergone change through history. The essential elements of the tort in present day context have been set out in the instructive judgment of the High Court of Australia in Williams v. Spautz 107 ALR 635. ...In my judgment, the essential elements of the tort of abuse of process are these: (1) The process complained of must have been initiated; (2) The purpose for initiating that process must be some purpose other than to obtain genuine redress which the process offers. In other words, the dominant purpose for which the process was invoked must be 61 collateral, that is to say, aimed at producing a result not intended by the invocation of the process; and (3) The plaintiff must have suffered some damage or injury in consequence. It is to be stressed that neither malice nor the termination of the proceedings in the plaintiff's favour are necessary elements of the tort. To put it plainly, a plaintiff in an action for abuse of process need not prove that the defendant had invoked the process of the court maliciously. Neither does he have to prove that the proceedings terminated in his favour. It is only upon proof of the elements that go to make up the tort of collateral abuse of process, that a plaintiff is entitled to an award of damages." 101. In this case, I find that the Defendant has failed to show that the dominant purpose of the suit was for a collateral purpose. The Plaintiffs had a genuine grievance against the Defendant. I am of the opinion that the weight of the evidence presented to me does not indicate that there was any collateral intent to force the Defendant to purchase the property. There is no attempt to extort or exert pressure to lead to any improper end. All litigations are pressure points that are undertaken to ensure that parties¶ULJKWV are eventually determined. What is important is whether the litigation is abusive. 62 102. However, I find that the Plaintiffs have been unreasonable in the circumstances of this case. If one considers the pleadings, their original intention was to seek a rescission of the contract and demand the full sums paid for the project. This only changed on the GDWHRIWKHWULDODQGWKLVUHPHG\ZDVQRWSXUVXHGE\WKH3ODLQWLIIV¶ counsel. 103. As I have indicated earlier, the Plaintiffs should have undertaken all reasonable steps to repair the defects to the property and then claim for the same from the Defendant. The steps taken to claim rescission for the breach of clause 29 were not reasonable. The Defendant was willing to make the repairs but despite such overtures, the Plaintiffs refused to allow the same. Notwithstanding that, they did not make any such repairs till today. I have taken this into account in the determination of costs in both the Main Claim and Counterclaim. 104. In the circumstances, ,GLVPLVVWKH'HIHQGDQW¶VFRXQWHUFODLP with no order as to costs. 63 F. Orders of this Court 105. For the above reasons, I make the following orders: - (1) For the Main Claim; The Defendant is directed to pay damages of RM 20, 388.00 to the Plaintiffs for breach of contract. (2) The counterclaim is dismissed. (3) Each party bear their own costs. Dated 20th December 2021 so 'DWR¶,QGHUD0RKG$ULHI(PUDQELQ$ULILQ Judicial Commissioner High Court Malaya Kuala Lumpur NCvC 8 64 Joshua Kevin together with William Lee Jing Yao for the Plaintiff Messrs. Kevin & Co. (Kuala Lumpur) Advocates & Solicitors Amir Feisal Ariff together With Ahmad Sayuty Muda for Defendant Messrs. Ariff & Associates (Petaling Jaya) Advocates & Solicitors 65