Khor Beng Chong (No. KP: 770302-07-5907) Amanvida Development Sdn Bhd (No. Syarikat: 1012177-X)

Khor Beng Chong (No. KP: 770302-07-5907) Amanvida Development Sdn Bhd (No. Syarikat: 1012177-X)

On the facts the booking fee paid on 6.5.2015 was held by solicitors as stakeholder in the client account and was not paid to the developer until 29.1.2016; a stakeholder holding of funds does not constitute formation of contract. Therefore the contract for the purposes of clauses fixing time for delivery and completion came into existence on 29.1.2016 when the stakeholder sum was released and received by the developer, and time for calculating liquidated damages runs from that date. Vacant possession was properly found to have been taken on 4.7.2019; completion of common facilities occurred on 3.6.2019; the Sessions Court orders were varied accordingly.

Citation
PA-12ANCvC-29-09/2020 (Mahkamah Tinggi)
Parties
Appellant / Purchaser / Plaintiff: Khor Beng Chong; Respondent / Developer: Amanvida Development Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
18 January 2021
Case Number
PA-12ANCvC-29-09/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (housing / Sale and Purchase) / High Court Judgment on Appeal From Sessions Court Decision
Outcome
appeal allowed in part; Sessions Court decision varied
Legal Topics
Liquidated Damages, Formation of Contract, Stakeholder Funds, Standard Form Schedule H, Doctrine of Stare Decisis
Source Language
Malay/English
Contract Law Housing Development Law Statutory Interpretation Civil Procedure Liquidated Damages Formation of Contract Stakeholder Funds Standard Form Schedule H +1 more

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Parties

Khor Beng Chong

Appellant / Purchaser / Plaintiff

Amanvida Development Sdn Bhd

Respondent / Developer

Procedural Posture

Civil Appeal (housing / Sale and Purchase) / High Court Judgment on Appeal From Sessions Court Decision

Legal Issues

  1. 1 Whether time for calculation of liquidated damages runs from booking fee payment, payment of 10% deposit, or date of the dated sale and purchase agreement
  2. 2 Whether payment to a stakeholder solicitors' client account constitutes formation of contract
  3. 3 How to construe 'from the date of this agreement' in Schedule H clauses for vacant possession and completion

Ratio Decidendi

On the facts the booking fee paid on 6.5.2015 was held by solicitors as stakeholder in the client account and was not paid to the developer until 29.1.2016; a stakeholder holding of funds does not constitute formation of contract. Therefore the contract for the purposes of clauses fixing time for delivery and completion came into existence on 29.1.2016 when the stakeholder sum was released and received by the developer, and time for calculating liquidated damages runs from that date. Vacant possession was properly found to have been taken on 4.7.2019; completion of common facilities occurred on 3.6.2019; the Sessions Court orders were varied accordingly.

Court Disposition

appeal allowed in part; Sessions Court decision varied

Orders

  • Time for calculating liquidated damages begins on 29.1.2016 (date stakeholder sum was paid to developer)
  • Vacant possession ought to have been delivered on 28.1.2019 and was delivered on 4.7.2019; completion of common facilities was 3.6.2019