JUDGMENT

Abdul Rahman Sebli FCJ:

[1] This appeal arose from the decision of the Court of Appeal allowing the respondent's appeal against the decision of the learned Judicial Commissioner (JC) who affirmed the decision of the learned Senior Assistant Registrar (SAR) to award damages in the sum of RM380,500.00 to the appellants for breach of contract.

[2] The question of law for which the appellants had been granted leave to appeal is as follows:

"Whether a claim for damages for the purpose provided in Clause 12 of the statutory sale and purchase contract under Schedule H of the Housing Developers (Control and Licensing) Regulations 1989 requires proof of actual loss to be shown before damages could be awarded?"

[3] For the facts of the case, we are taking the liberty to replicate those that the Court of Appeal had set out in its judgment, with the necessary modifications. They are as follows. The seven appellants, two of whom are husband and wife, were purchasers of six apartment units of a housing project known as Golden Heights of Taman Mas Sepang, Phase 3 which was developed by the respondent. The sale and purchase agreements (SPAs) entered into between the appellants and the respondent were statutory contracts of sale under the Housing Development (Control and Licensing) Act 1966.

[4] Delivery of vacant possession was to be within 36 months from the date of the SPAs failing which the respondent would have to pay liquidated and ascertained damages (LAD) under clause 22. If the respondent failed to complete the common facilities within the same time frame, it must pay LAD under clause 24.

[5] As it turned out, the respondent not only failed to deliver vacant possession but also failed to complete the common facilities within the stipulated time. Despite that, it refused to pay LAD.