1) GAN TECK KHUN 2) GENAP INDAH SDN BHD 1) CHAN KOI HONG @ CHANG KOUI FANG 2) CHAN KOI HONG @ CHANG KOUI FANG (berniaga atas gaya dan nama Chang San Construction)

1) GAN TECK KHUN 2) GENAP INDAH SDN BHD 1) CHAN KOI HONG @ CHANG KOUI FANG 2) CHAN KOI HONG @ CHANG KOUI FANG (berniaga atas gaya dan nama Chang San Construction)

The court accepted the qualifications and evidence of SP1 and SP2 and found plaintiffs proved defects requiring rectification; the tender estimate and supporting payments were reasonable in the absence of contrary evidence; possession was delayed beyond the contractual period entitling plaintiffs to LAD; adverse inference arguments and registration objections did not displace the evidence. Therefore the Deputy Registrar's assessment awarding rectification costs, LAD and associated costs was correct and the appeal was dismissed.

Citation
22-141-07/2011 (Mahkamah Tinggi)
Parties
Plaintiff/respondent: Gan Teck Khun; Plaintiff/respondent: Genap Indah Sdn Bhd; Defendant/appellant: Chan Koi Hong @ Chang Koui Fang; Defendant/appellant: Chan Koi Hong @ Chang Koui Fang (trading as Chang San Construction)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
26 October 2021
Case Number
22-141-07/2011 (Mahkamah Tinggi)
Procedural Posture
Civil Suit (construction/contract Dispute) / Appeal to Judge in Chambers Against Deputy Registrar's Assessment Arising From Consent Judgment
Outcome
Appeal dismissed; decision of Deputy Registrar dated 6 February 2020 upheld
Legal Topics
Rectification Costs for Defective Works, Liquidated Ascertained Damages, Qualification and Weight of Expert Evidence, Adverse Inference for Non‑calling Witnesses, Assessment of Costs and Interest
Source Language
Malay/English
Construction Law Contract Law Civil Procedure Evidence Law Rectification Costs for Defective Works Liquidated Ascertained Damages Qualification and Weight of Expert Evidence Adverse Inference for Non‑calling Witnesses +1 more

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Parties

Gan Teck Khun

Plaintiff/respondent

Genap Indah Sdn Bhd

Plaintiff/respondent

Chan Koi Hong @ Chang Koui Fang

Defendant/appellant

Chan Koi Hong @ Chang Koui Fang (trading as Chang San Construction)

Defendant/appellant

Procedural Posture

Civil Suit (construction/contract Dispute) / Appeal to Judge in Chambers Against Deputy Registrar's Assessment Arising From Consent Judgment

Legal Issues

  1. 1 Whether plaintiffs proved defects and entitlement to rectification costs
  2. 2 Whether plaintiffs entitled to liquidated ascertained damages from defendants/developer and whether claim was time‑barred
  3. 3 Admissibility and weight of reports by unregistered architect and quantity surveyor and whether signed confirmations suffice

Ratio Decidendi

The court accepted the qualifications and evidence of SP1 and SP2 and found plaintiffs proved defects requiring rectification; the tender estimate and supporting payments were reasonable in the absence of contrary evidence; possession was delayed beyond the contractual period entitling plaintiffs to LAD; adverse inference arguments and registration objections did not displace the evidence. Therefore the Deputy Registrar's assessment awarding rectification costs, LAD and associated costs was correct and the appeal was dismissed.

Court Disposition

Appeal dismissed; decision of Deputy Registrar dated 6 February 2020 upheld

Orders

  • Defendants' appeal dismissed and Deputy Registrar's decision of 6.2.2020 upheld
  • Defendants to pay plaintiffs RM622400 for rectification costs