1. ) ASTER BINA SDN BHD 2. ) TEE KIM HOCK 3. ) Tee Ah Seng, Dato LEBAR DAUN DEVELOPMENT SDN BHD

1. ) ASTER BINA SDN BHD 2. ) TEE KIM HOCK 3. ) Tee Ah Seng, Dato LEBAR DAUN DEVELOPMENT SDN BHD

The Court allowed the appeals: the entire agreement clause excluded prior as‑is correspondence; the architect's 23 Feb 2018 confirmation was untrue and thereby breached the express contractual representation in clause 10.1(j); clause 11.2 expressly entitled the purchaser to terminate for such breach; section 19 Contracts Act 1950 did not bar termination because it concerns pre‑contract misrepresentations not contractual terms; liquidated damages clause capped recovery; accordingly the SPA was validly terminated and the vendor must refund sums and pay liquidated damages.

Citation
B-02(NCvC)(W)-1960-10/2022 (Mahkamah Rayuan)
Parties
Appellant/perayu: Aster Bina Sdn Bhd; Appellant/perayu: Tee Kim Hock; Appellant/perayu: Tee Ah Seng, Dato'; Respondent/plaintiff: Lebar Daun Development Sdn Bhd
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
22 April 2024
Case Number
B-02(NCvC)(W)-1960-10/2022 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Court of Appeal Judgment (appeal From High Court)
Outcome
Appeals allowed; High Court orders set aside in material part; plaintiff's claim for balance purchase price dismissed; claims against directors dismissed.
Legal Topics
Misrepresentation, Conditions Precedent, Entire Agreement Clause, Termination/rescission, Specific Performance, Liquidated Damages, Piercing Corporate Veil/alter Ego, Judicial Notice of Subsidiary Legislation
Source Language
Malay/English
Contract Law Property Law Civil Procedure Evidence Misrepresentation Conditions Precedent Entire Agreement Clause Termination/rescission +4 more

Case Brief

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Parties

Aster Bina Sdn Bhd

Appellant/perayu

Tee Kim Hock

Appellant/perayu

Tee Ah Seng, Dato'

Appellant/perayu

Lebar Daun Development Sdn Bhd

Respondent/plaintiff

Procedural Posture

Civil Appeal / Court of Appeal Judgment (appeal From High Court)

Legal Issues

  1. 1 Whether the sale was on an as‑is where‑is basis and whether prior correspondence formed part of the contract
  2. 2 Whether the condition precedent (architect's confirmation) was fulfilled or waived
  3. 3 Whether the architect's confirmation was untrue and breached an express contractual representation

Ratio Decidendi

The Court allowed the appeals: the entire agreement clause excluded prior as‑is correspondence; the architect's 23 Feb 2018 confirmation was untrue and thereby breached the express contractual representation in clause 10.1(j); clause 11.2 expressly entitled the purchaser to terminate for such breach; section 19 Contracts Act 1950 did not bar termination because it concerns pre‑contract misrepresentations not contractual terms; liquidated damages clause capped recovery; accordingly the SPA was validly terminated and the vendor must refund sums and pay liquidated damages.

Court Disposition

Appeals allowed; High Court orders set aside in material part; plaintiff's claim for balance purchase price dismissed; claims against directors dismissed.

Orders

  • Lebar Daun Development Sdn Bhd ordered to refund RM2,800,000 to Aster Bina Sdn Bhd
  • Aster Bina Sdn Bhd awarded RM1,380,000 as agreed liquidated damages pursuant to clause 11.2.1(b)(ii) of the SPA