Liquidated Ascertained Damages (LAD) is counted due to delay in delivery of completed residential home. The law has been decided by Federal Court judgment PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeals which is from the BOOKING Date. However, there is a turn in the judgment in Kuching RJ Realty Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor on 24 Mar, 2022 that the High Court decided otherwise. Clarify the confusion.
The below write-up is extracted from Dayakdaily.com by Dorcas Ting.
Read further on the argument here.
KUCHING, March 24: The Kuching High Court has ruled that the Federal Court's decision in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeals is not applicable to Sarawak and Sabah.
RJ Realty Sdn Bhd had applied for a judicial review in the Kuching High Court for cases where the Sarawak Housing Tribunal have been following the Federal Court's decision in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeals in awarding Liquidated Ascertained Damages (LAD) for late delivery of houses/apartments from the date of booking, and not from the date of the Sale & Purchase Agreement (SPA).
This has severely affected all the housing developers in Sarawak.
High Court Judicial Commissioner Alexander Siew How Wai today in his ruling held that PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeals were decided under the West Malaysian Housing Development (Control and Licensing) Act 1966 and Regulations, which is not applicable in Sarawak.
JC Alexander also held that although there are similarities in the wordings, the Sarawak Housing Development (Control & Licensing) Ordinance 2013 are not in pari materia (on the same subject matter) with the West Malaysian Housing Act.
In the landmark case, the Federal Court held that when the interested purchaser signs a booking form, an agreement has been formed. However, JC Alexander held that in Sarawak, when an interested purchaser signs a booking form, no agreement was formed.
He said all that happened was that the developer has granted an option to the interested purchaser to purchase. If the interested purchaser exercises the option and signs the SPA and pays the 10 per cent purchase price, then only does a valid Sale & Purchase transaction been entered into.
JC also held that Housing Tribunal has exceeded its jurisdiction as the award granted was in excess of RM150,000.00.
Based on the above, the JC held that the Sarawak Housing Tribunal has committed an error of law.
As such, he granted an Order of Certiorari and quashed the whole Award in the first case (RJ Realty Sdn Bhd and Tribunal Tuntutan Pembeli Rumah and Tiong Kwong Ngo), and as for the second case (RJ Realty Sdn Bhd and Tribunal Tuntutan Pembeli Rumah and Anna Chin Kui Len) and third case (RJ Realty Sdn Bhd and Tribunal Tuntuan Pembeli Rumah and Liew Khing Ann), a partial Order of Certiorari was granted to quash the award from booking date to the SPA date, so as to render the LAD to run from the expiry of the SPA dates.
RJ Realty Sdn Bhd was represented by Counsels Dato' Bong Ahloi, Allan Lao, Samuel Bong and Jocelyn Phua, while the Housing Tribunal of Sarawak was represented by Counsels from State Legal Counsel, whereas McWillyn Jiok and Syed Rezif, Counsels Daling and Jackson Ngu acted for the house purchasers, Tiong Kwong Ngo, Anna Chin Kui Len and Liew Khing Ann. - DayakDaily.