Malaysia Case Law: Decisions & Judgments

Topic

Time of essence

Legal area

Court

5 Apr 2024

LYE YOONG HON CONSTRUCTION (M) SDN BHD BAGAN KURNIA DEVELOPMENT SDN BHD

Citation

NA-22C-2-07/2020 (Mahkamah Tinggi)
Court

High Court
Case number

NA-22C-2-07/2020 (Mahkamah Tinggi)

Clause 22(iv) of the Letter of Award expressly empowered Defendant to issue written notices and to terminate if defaults continued for seven days; the court found the 24.2.2020 letter constituted the written notice fixing time and the 9.3.2020 termination complied with the seven-day requirement; Plaintiff was in persistent default (delay, defects, failure to follow instructions) such that time and compliance were conditions of the contract; Plaintiff's independent QS valuation was rejected for failing to comply with requirement of joint inspection and because MCO justified Defendant's refusal…
6 Mar 2024

Mohamad @ Md Nor bin Zakaria 1. ) Nasarudin bin Zamin 2. ) Irphan bin Abd Aziz

Citation

DA-22NCvC-60-12/2020 (Mahkamah Tinggi)
Court

High Court
Case number

DA-22NCvC-60-12/2020 (Mahkamah Tinggi)

The court found the sale agreement was valid and remained subsisting because time for payment was not 'of the essence', Defendant 1 failed to give the requisite notice or to return the deposit, and evidence did not prove Defendant 2 paid full consideration or acquired as a bona fide purchaser; accordingly specific performance was ordered compelling transfer to Plaintiff upon payment of the balance and costs were awarded to Plaintiff.
3 Nov 2023

LIEW HOI HING 1. ) WONG QUAN EE 2. ) WONG WEI EE

Citation

CB-24NCvC-187-12/2020 (Mahkamah Tinggi)
Court

High Court
Case number

CB-24NCvC-187-12/2020 (Mahkamah Tinggi)

The supplementary agreement dated 25.10.2019 formed part of the contract and made the total purchase price RM1.6 million; time was made of the essence and the agreed extension expired on 01.11.2020; plaintiffs failed to pay the full balance by that date and therefore the defendant was entitled to terminate the agreement lawfully; plaintiffs' claim for specific performance was dismissed and the defendant's counterclaim (para 110(d)) was allowed.
22 Aug 2023

Ultra Racing (M) Sdn Bhd Hai Soon Leong Sdn Bhd

Citation

B-02(NCvC)(A)-942-05/2022 (Mahkamah Rayuan)
Court

NCvC
Case number

B-02(NCvC)(A)-942-05/2022 (Mahkamah Rayuan)

Clause 4 of the SPA unambiguously provided for automatic termination upon failure to pay the balance purchase price; the defendant failed to pay and that breach went to the root of the contract, time remained the essence of the SPA, therefore the plaintiff validly terminated the SPA and the High Court orders in OS1031 and OS1485 are set aside and reliefs to the plaintiff are granted.
20 Mar 2023

KSR CAPITAL SDN BHD 1. ) CSEM LAND SDN BHD 2. ) KUMARAGURU A/L THURAIRATNAM 3. ) K.THANARAJAH A/L A. KANAGARATNAM

Citation

WA-22NCvC-72-02/2020 (Mahkamah Tinggi)
Court

High Court
Case number

WA-22NCvC-72-02/2020 (Mahkamah Tinggi)

Court found Plaintiff had annexed approvals to the DA and did not misrepresent; Defendants bore responsibility to verify approvals. The LOU constituted an admission and confirmed time remained of the essence; Defendants breached the LOU and DA by failing to complete and failing to pay. Therefore Plaintiff was entitled to damages for late completion and Defendants' counterclaim was dismissed.
1 Feb 2023

TOSHIBA ELEVATOR (MALAYSIA) SDN BHD LACE (R.O) HOLDING SDN BHD

Citation

JA-A72NCvC-791-07/2022 (Mahkamah Majistret)
Court

Magistrates' Court
Case number

JA-A72NCvC-791-07/2022 (Mahkamah Majistret)

The counterclaim was struck out because on its face it disclosed no reasonable cause of action: the Second Agreement replaced the First Agreement, defendant produced no evidence of loss, defendant accepted the completed and certified lifts thereby waiving rights to treat time as of the essence, and allowing the counterclaim would result in unjust enrichment and be an abuse of process; summary dismissal under Order 18 r.19 was therefore appropriate.
CHAI LAI FOOK

Citation

CHAI LAI FOOK
Court

Malaysian court

The court held that the specific statutory scheme (Housing Act and Schedule H sale agreements) and clear contractual wording (Clauses 22(2) and 24(2)) give purchasers an immediate right to liquidated damages without the notice requirement of s56(3) Contracts Act 1950; the defendant's frustration defence failed particularly because the Controller of Housing refused the Regulation 11(3) extension and the court will not create an additional escape route for the developer; accordingly the originating summons was granted in the terms sought, with liquidated damages calculated to the limited date s…
THOMAS IRUTHAYAM & ANOR V. LSSC DEVELOPMENT SDN BHD

Citation

THOMAS IRUTHAYAM & ANOR V. LSSC DEVELOPMENT SDN BHD
Court

Malaysian court

The defendant breached the S&P by failing to deliver vacant possession (water/electricity not connected and certificate of fitness not delivered) by the contractual date; cl.18(h) made time of the essence so s.56 Contracts Act rendered the contract voidable; cl.12(b) permitted plaintiffs to elect rescission; plaintiffs validly rescinded on 21 July 1998 and are entitled to repayment of monies paid plus incidental charges, interest and costs.
GAN HWA KIAN & ANOR v. SHENCOURT SDN BHD

Citation

GAN HWA KIAN & ANOR v. SHENCOURT SDN BHD
Court

Malaysian court

Time was expressly of the essence; defendant failed to deliver vacant possession by the contractual date so plaintiffs validly elected to rescind under s.56(1) and s.76 Contracts Act; plaintiffs were entitled to refund of monies paid, damages for delay and reimbursement of interest and insurance premium because those losses were within the reasonable contemplation of the defendant and Malayan Banking Berhad had consented to the plaintiffs proceeding; plaintiffs’ claim for liquidated damages did not waive right to rescind.