ANG MING LEE & ORS v. MENTERI KESEJAHTERAAN BANDAR, PERUMAHAN DAN KERAJAAN TEMPATAN & ANOR AND OTHER APPEALS

[2019] 6 MLRA 494

ANG MING LEE & ORS v. MENTERI KESEJAHTERAAN BANDAR, PERUMAHAN DAN KERAJAAN TEMPATAN & ANOR AND OTHER APPEALS
Federal Court, Putrajaya
Tengku Maimun Tuan Mat CJ, Azahar Mohamed CJM, Alizatul Khair Osman Khairuddin, Idrus Harun, Nallini Pathmanathan FCJJ
[Civil Appeal Nos: 01(f)-38-10-2018(W), 01(f)-41-10-2018(W), 02(f)-95-10-2018(W), 02(f)-96-10-2018(W), 02(f)-97-10-2018(W) & 02(f)-98-10-2018(W)]
26 November 2019

JUDGMENT

Tengku Maimun Tuan Mat CJ:

Introduction

[1] There were six related appeals before us which were heard together. Four (4) appeals were filed by the purchasers of individual condominium units in Sri Istana Condominium ("the project"). The other two appeals were filed by the developer of the project, BHL Construction Sdn Bhd. The issue in these appeals concerns reg 11(3) of the Housing Development (Control and Licensing) Regulations 1989 ("the Regulations").

Background Facts

[2] By a Sale and Purchase Agreement dated 3 May 2012 ("the SPA"), entered into between the developer and the purchasers, it was agreed that the delivery of vacant possession of the units shall be 36 months from the date of signing of the respective SPAs. The SPAs were made pursuant to the statutorily prescribed form under Schedule H of the Regulations. Subparagraph 25(2) of Schedule H provides that if the developer fails to deliver vacant possession within 36 months, the developer shall be liable to pay the purchaser liquidated damages ("LAD").

[3] Vide a letter dated 20 October 2014, the developer applied for an extension of time for the delivery of vacant possession of the units to the purchasers. The application for the extension of time was made to the Controller of Housing ("the Controller"), pursuant to reg 11(3) of the Regulations, which reads:

"(3) Where the Controller is satisfied that owing to special circumstances or hardship or necessity compliance with any of the provisions in the contract of sale is impracticable or unnecessary, he may, by a certificate in writing, waive or modify such provisions:

Provided that no such waiver or modification shall be approved if such application is made after the expiry of the time stipulated for the handing over of vacant possession under the contract of sale or after the validity of any extension of time, if any, granted by the Controller."

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