1. ) BANDAR SUBANG SDN BHD 2. ) MAJU SERIBU SDN BHD 1. ) NORAZILA BINTI KUSHAIRI 2. ) KAMARUDDIN BIN MOHAMED BAKHARI

1. ) BANDAR SUBANG SDN BHD 2. ) MAJU SERIBU SDN BHD 1. ) NORAZILA BINTI KUSHAIRI 2. ) KAMARUDDIN BIN MOHAMED BAKHARI

On the balance of probabilities the demolition order issued by the State/MBSA was a supervening event outside the developer's control which prevented delivery of vacant possession and frustrated the sale agreement; force majeure applied. Given the evidence, the purchasers proved limited monetary loss entitling them to return of deposit and payment of outstanding bank loan as quantified; other heads of relief were not proved and were dismissed.

Citation
BA-22NCC-52-08/2018 (Mahkamah Tinggi)
Parties
Plaintiff (ncc 52); Defendant (ncv C 113): Bandar Subang Sdn. Bhd.; Plaintiff (ncc 52); Defendant (ncv C 113): Maju Seribu Sdn. Bhd.; Defendant (ncc 52); Plaintiff (ncv C 113): Norazila binti Kushairi; Defendant (ncc 52); Plaintiff (ncv C 113): Kamaruddin bin Mohamed Bakhari
Court
High Court
Jurisdiction
Malaysia
Judgment Date
29 September 2022
Case Number
BA-22NCC-52-08/2018 (Mahkamah Tinggi)
Procedural Posture
Civil: Sale of Land / Contract Dispute (specific Performance and Damages) / Judgment After Full Trial (consolidated High Court and Sessions Matters)
Outcome
Judgment found the sale agreement frustrated by government/MBSA demolition order (force majeure). Limited monetary relief awarded to purchasers; other claims dismissed.
Legal Topics
Frustration of Contract, Force Majeure, Specific Performance, Damages, Demolition Order, Certificate of Fitness for Occupation (cfo)
Source Language
Malay/English
Contract Property Law Administrative Law Civil Procedure Evidence Frustration of Contract Force Majeure Specific Performance +3 more

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Parties

Bandar Subang Sdn. Bhd.

Plaintiff (ncc 52); Defendant (ncv C 113)

Maju Seribu Sdn. Bhd.

Plaintiff (ncc 52); Defendant (ncv C 113)

Norazila binti Kushairi

Defendant (ncc 52); Plaintiff (ncv C 113)

Kamaruddin bin Mohamed Bakhari

Defendant (ncc 52); Plaintiff (ncv C 113)

Procedural Posture

Civil: Sale of Land / Contract Dispute (specific Performance and Damages) / Judgment After Full Trial (consolidated High Court and Sessions Matters)

Legal Issues

  1. 1 Whether the sale agreement dated 25-11-2002 was frustrated by MBSA/state demolition order
  2. 2 Whether the developer was prevented from performing obligations under the sale agreement
  3. 3 Whether the developer breached the agreement or failed to obtain CFO through its own fault

Ratio Decidendi

On the balance of probabilities the demolition order issued by the State/MBSA was a supervening event outside the developer's control which prevented delivery of vacant possession and frustrated the sale agreement; force majeure applied. Given the evidence, the purchasers proved limited monetary loss entitling them to return of deposit and payment of outstanding bank loan as quantified; other heads of relief were not proved and were dismissed.

Court Disposition

Judgment found the sale agreement frustrated by government/MBSA demolition order (force majeure). Limited monetary relief awarded to purchasers; other claims dismissed.

Orders

  • Return deposit to purchasers: RM19,883.40 payable to Norazila binti Kushairi and Kamaruddin bin Mohamed Bakhari
  • Payment of outstanding housing loan to Public Islamic Bank Berhad: RM442,496.29