Contract : Damages - Liquidated and ascertained damages payable by housing developer - Cut-off date - Whether date of certificate of fitness issued for property or date purchaser took possession of keys to property

Land Law : Housing developers - Liquidated and ascertained damages payable by housing developer - Cut-off date - Whether date of certificate of fitness issued for property or date purchaser took possession of keys to property

Land Law : Delivery of vacant possession - Late delivery of vacant possession - Liquidated and ascertained damages payable by housing developer - Cut-off date - Whether date of certificate of fitness issued for property or date purchaser took possession of keys to property

In this appeal, the respondents were joint purchasers of an apartment unit ('the Uni') in a project developed by the 1st appellant developer wherein vacant possession was to be delivered within 36 months as stipulated in the sale and purchase agreement ('SPA') between the parties concerned. The date of the SPA was 29 June 2005 and so delivery of vacant possession was to be on or before 28 June 2008, failing which the respondents would be entitled to liquidated and ascertained damages ('LAD'). The 1st appellant being unable to deliver vacant possession to the respondents within the 36 months became liable to pay the LAD. The 1st appellant then attempted to deliver vacant possession by issuing a notice of delivery of vacant possession dated 16 November 2010 but that notice was not supported by a letter of confirmation from the appropriate authority as the 1st appellant had yet to submit the Form E prescribed in the Second Schedule to the Uniform Building By-Laws 1984 to the authority concerned. As such, the said notice was rendered invalid. It was only when the 1st appellant submitted the Form E on 13 May 2011 that the Certificate of Fitness for Occupation ('CF') was issued by the appropriate authority on 25 May 2011. The 1st appellant did not issue a new notice of delivery of vacant possession upon issuance of the CF but on 30 May 2011 notified the respondents about the issuance of the CF for the Unit. On 16 April 2014, the respondents wrote to the 1st appellant indicating their intention of taking vacant possession of the Unit. However, they only took actual possession of the Unit on 20 September 2016. The respondents commenced an action against the 1st appellant in the High Court, inter alia, for an order that they be allowed to claim continuous LAD from 28 June 2008 until they took actual possession on 20 September 2016. The learned judge, however, determined the cut-off date for the LAD as at 30 May 2011 being the date the CF was issued. On appeal to the Court of Appeal on the cut-off date, the appellate court extended the cut-off date from 30 May 2011 to 16 April 2014. The Court of Appeal relied on the decision in Sentul Raya Sdn Bhd v. Hariram Jayaram & Ors And Other Appeals ('Sentul Raya') where it was held that as the notice of delivery of vacant possession was invalid, the purchasers were entitled to continue to claim LAD until they took actual possession of their Unit. The appellants now appealed.