AR. LOO CHANG SENG KHONG YAO HAN & 57 ORG

AR. LOO CHANG SENG KHONG YAO HAN & 57 ORG

Allow appeals and strike out plaintiffs' claims because (1) architect owed no duty to purchasers to issue Full CCC to enable delivery of vacant possession and therefore there was no prima facie tortious case against the architect; (2) the SPAs unambiguously permitted delivery of vacant possession of individual Parcels based on Partial CCC (Form F1) and did not require Full CCC for the entire project; and (3) many purchasers had executed full and final settlement agreements accepting LAD and were estopped from claiming additional LAD.

Citation
B-02(IM)(NCvC)-1654-09/2022 (Mahkamah Rayuan)
Parties
Appellant/developer: Cosmopolitan Avenue Sdn. Bhd.; Appellant/architect: Ar. Loo Chang Seng; Respondents/plaintiffs: Khong Yao Han & 57 Lagi
Court
IM
Jurisdiction
Malaysia
Judgment Date
23 January 2024
Case Number
B-02(IM)(NCvC)-1654-09/2022 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Court of Appeal Determination of Striking Out Applications Arising From High Court Suit BA 22 Ncv C 89 02/2021
Outcome
Appeals allowed; High Court's dismissal of striking out applications set aside; Plaintiffs' claims against both defendants struck out.
Legal Topics
Liquidated Ascertained Damages, Vacant Possession, Certificate of Completion and Compliance (form F and Form F1), Duty of Care of Architects, Estoppel and Settlement Agreements, Interpretation of Sale and Purchase Agreements
Source Language
Malay/English
Contract Law Tort (negligence) Construction/building Regulation Civil Procedure (strike Out) Property Law Liquidated Ascertained Damages Vacant Possession Certificate of Completion and Compliance (form F and Form F1) +3 more

Case Brief

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Parties

Cosmopolitan Avenue Sdn. Bhd.

Appellant/developer

Ar. Loo Chang Seng

Appellant/architect

Khong Yao Han & 57 Lagi

Respondents/plaintiffs

Procedural Posture

Civil Appeal / Court of Appeal Determination of Striking Out Applications Arising From High Court Suit BA 22 Ncv C 89 02/2021

Legal Issues

  1. 1 Whether the architect owed a duty of care to purchasers to ensure issuance of a Full CCC (Form F) so as to enable vacant possession within SPA timelines
  2. 2 Whether the SPAs required Full CCC of entire project before delivery of vacant possession or allowed delivery based on Partial CCC (Form F1) for individual parcels
  3. 3 Whether prior full and final settlement agreements precluded purchasers from re‑litigating claims for additional LAD

Ratio Decidendi

Allow appeals and strike out plaintiffs' claims because (1) architect owed no duty to purchasers to issue Full CCC to enable delivery of vacant possession and therefore there was no prima facie tortious case against the architect; (2) the SPAs unambiguously permitted delivery of vacant possession of individual Parcels based on Partial CCC (Form F1) and did not require Full CCC for the entire project; and (3) many purchasers had executed full and final settlement agreements accepting LAD and were estopped from claiming additional LAD.

Court Disposition

Appeals allowed; High Court's dismissal of striking out applications set aside; Plaintiffs' claims against both defendants struck out.

Orders

  • Set aside High Court decision dismissing Enclosures 12 and 14
  • Allow Enclosures 12 and 14 (striking out applications) and strike out entirety of Plaintiffs-Respondents' claims against both Defendants-Appellants