BEAUFORD BARU SDN BHD V. GOPALA KRISHNAN
V K GOPALAN
HIGH COURT [MELAKA]
LOW HOP BING, J
GUAMAN SIBIL NO. 11-19-20O2 & GUAMAN SIBIL NO. 11-6-2002
12 OCTOBER 2005
DALAM MAHKAMAH TINGGI DI MELAKA
DALAM NEGERI MELAKA, MALAYSIA
GUAMAN SIBIL NO. 11-19-20O2 & GUAMAN SIBIL NO. 11-6-2002
ANTARA
BEAUFORD BARU SDN BHD - PERAYU/DEFENDAN
DAN
GOPALA KRISHNAN A/L V.K GOPALAN - RESPONDEN/PLAINTIF
[ NO. 2 ] JUDGMENT
I. APPEALS
The appellant/ defendant ("the defendant") has lodged
two appeals against the decision of the learned magistrate who had:-
1. on 20 September 2000 given judgment with costs in favour
of the respondent ("the plaintiff") with damages to be assessed; and
2. on 18 January 2002 dismissed with costs the defendant's
application to set aside the damages of RM 15,000 assessed against the defendant.
As these two appeals are heard together and relate to
the same subject matter in which the issues are intertwined, I shall refer
to them as one single appeal only.
II. FACTUAL BACKGROUND
The defendant is a licensed housing developer for the
project known as Taman Pantai Mas. The plaintiff had on 27 March 1990 entered
into a sale and purchase agreement ("SPA") for the purchase of a corner
lot, Lot 260 in the approved layout plan, for the type of houses known as
"Pulau Undan" in the project.
For brevity and convenience, a reference hereinafter to
a clause and a schedule is a reference to the clause in and the schedule
to the SPA.
The First Schedule contains the approved layout plan for
intermediate lots on which were to be erected houses without any side porch,
while the house erected for the corner lot is with a side porch.
The Second Schedule contains the authorised building plan
for the house with a side porch for Lot 260 being a corner lot.
The catalogue for the intermediate lots and corner lots
stated the prices "from RM94,888" with an area of 22ft by 70ft i.e. 1540
sq ft.
In the SPA, the purchase price for Lot 260 was stated
as RM119,905 with an area of 212 sq metres, for which a refund of RM 13.50
per sq ft would be made by the defendant to the plaintiff in the event of
a shortfall in land area.
The house constructed on Lot 260 was without a side porch
and the land area was short of 132 sq ft.
The plaintiff has, vide a notice, demanded a sum of RM
15,000 from the defendant for not constructing the side porch, and a sum
of RM 1,782 (RM 13.50 X 132 sq ft) being the refund for the shortfall in
land area.
The defendant made a payment of RM2,500 allegedly as full
and final settlement which the plaintiff has allegedly accepted.
However, the plaintiff has subsequently commenced an action
in the magistrate's court for RM 15,000 for Lot 260 i.e. the corner lot
which was constructed without a side porch.
III. SIDE PORCH
It was submitted by learned counsel Miss Fatima Tahir
Ali for the defendant that:-
1. in the First Schedule, the approved layout plan has
set out the construction of the house as being without a side porch and
that the authorised building plan in the Second Schedule was a standard
plan which the plaintiff has never challenged and should be taken as the
truth, as in Wong Swee Chin v. Public Prosecutor [1981] 1 MLJ 212, at 213
FC; and
2. the plaintiff has failed to discharge the burden of
proving the defendant's breach of the agreement in order to obtain judgment,
on the basis of Tenaga Nasional Bhd v Perwaja Steel Sdn Bhd [1995] 4 MLJ
673 at 676 para 1 HC; and Selvaduray v Chinniah [1939] MLJ 253 CA.
Miss Anis Hasliza bt Ajis, plaintiffs learned counsel,
contended that there was a breach of the SPA by the defendant as the side
porch has not been constructed according to the SPA made under Reg. 11(1)
Schedule G to the Housing Development (Control and Licensing) Regulations
1989 ("1989 Regulations") to protect the interest of the purchasers and
that the schedules to the SPA form part of the SPA, relying on Kang Yoon
Mook Xavier v Insun Development Sdn Bhd [1995] 2 MLJ 91 HC.
On my part, it is appropriate to restate the principles
governing the interpretation of the SPA which is part of the housing legislation,
being a statutory form of contract contained in Schedule G i.e. SPA for
land and building under the 1989 Regulations made under s. 24 of the Housing
Development (Control and Licensing) Act 1966 as amended.
In Tan Tian Seng & Anor v Grobina Resorts Sdn Bhd (No.
2) [2005] 7 CLJ 70 at pp 77 & 78, I have the occasion to state that:-
1. The housing legislation is principally aimed at protecting
the interest of purchasers : see Malaysian Law on Housing Developers, 2nd
edn by Salleh Buang, 2002 pp. 7 and 8 : S.E.A. Housing Corporation Sdn.
Bhd. v. Lee Poh Choo [1982] CLJ 355; [1982] CLJ (Rep) 305 per Suffian LP
(as he then was); and Khau Daw You v. Kin Nam Realty Development Sdn. Bhd.
[1983] 1 MLJ 335 at 341 per VC George J (later JCA).
2. Statutes must be read as a whole (see:-
Kesultanan Pahang v. Sathask Realty Sdn Bhd [1998] 2 CLJ
559);
3. There are circumstances where the nature and purpose
of a particular legislation must be considered when construing its various
provisions so as not to defeat the intention of Parliament (see : Akberdin
Hj Abdul Kader & Anor v. Majlis Peguam Malaysia [2O02] 4 CLJ 689; S.E.A.
Housing Corporation Sdn. Bhd. v. Lee Poh Choo [1982] CLJ 355; [1982] CLJ
(Rep) 3O5); and
4. The 1996 Act as amended is a piece of social legislation
and hence its provisions should be given liberal and purposive interpretation
i.e. to promote the general legislative purpose underlying the provisions.
(See Tribunal Tuntutan Pembeli Rumah v. Westcourt Corporation Sdn Bhd &
Other Appeals [2004] 2 CLJ 617 CA, the judgment of Richard Malanjum JCA
(now FCJ) and s. 17A of the Interpretation Acts 1948 and 1967).
In Westcourt Corporation Sdn Bhd Iwn. Tribunal Tuntutan
Pembeli Rumah [20O4] 4 CLJ 2O3, the Federal Court through the judgment of
Ahmad Fairuz CJ Malaysia, in affirming the above decision of the Court of
Appeal, had indirectly approved the Court of Appeal's enunciation of the
above principles governing the interpretation of housing legislation.
Further, cl 27 where relevant expressly states as follows:-
"The First, Second schedules hereto shall form part of
the agreement and shall be read, taken and construed as an essential part
of this agreement."
A true construction of the First Schedule leads me to
the conclusion that the approved layout plan was for an intermediate house
without a side porch, while the house for the corner Lot 260 is with a side
porch. This must be read together with the Second Schedule thereto which
expressly provides for the house on Lot 260 to have a side porch.
The plaintiff's case is further fortified by the express
terms of the first part of cl 12 which merits reproduction as follows:-
"12. The said Building shall be constructed in a good
and workmanlike manner in accordance with the plans approved by the Appropriate
Authority as in the Second Schedule."
In the circumstances, I am of the view that there are
sufficient express provisions viz cl 12, the First and the Second Schedules
which when read conjunctively reflect the intention of the parties thereto
i.e. the sale and purchase of a house with a side porch for Lot 260. (See
also Kang Yoon Mook Xavier, supra, at pp. 99C-G per Abdul Malik Ishak J).
There can be no doubt that the plaintiff has discharged
the burden of proof cast on him under s. 101 of the Evidence Act 1950 which
was considered and applied by me in Tenaga Nasional Bhd, supra.
That being the case, the Federal Court judgment delivered
by Raja Azlan Shah CJ(M) (now HRH Sultan of Perak) in Wong Swee Chin, supra,
and the judgment of Terrell Ag CJ in Selvaduray, supra, in the Court of
Appeal, can be of no assistance to the defendant.
I therefore hold that the house which the plaintiff has
purchased from the defendant consists of a side porch as an essential part
of the SPA and the absence of the side porch is clear evidence of a breach
of the SPA by the defendant.
IV. DAMAGES OF RM 15.OO0
Without prejudice to the earlier submission, it was argued
for the defendant that:-
1. the plaintiff is not entitled to the sum of RM 15,000
by way of liquidated damages as it was not contained in the SPA, referring
to Mohamed Said v. Haji Omar [1966] 1 MLJ 5O;
2. the court below had no power to grant the said sum
by way of general damages which had not been pleaded. Support was sought
in Anjalai Animal & Anor v. Abdul Kareem [1969] 1 MLJ 22 FC; Salih bin Mohamed
v. Loh Kim Foon [1982] 2 MLJ 292; The Chartered Bank v. Yong Chan [1974]
1 MLJ 157 FC; and
3. at most the plaintiff was entitled to damages under
s. 74 of the Contracts Act 1950.
1. The stand taken for the plaintiff is premised on the
difference in the price of the houses for the intermediate lot and the corner
lot with additional land, and also on the basis of cl 12.
In my judgment, there can be no dispute that parties are
bound by their pleadings and the trial court must decide on issues raised
in the pleadings. This is trite law : see e.g. Anjalai Ammal, supra; Salih
bin Mohamed, supra; and The Chartered Bank, supra.
Upon a proper perusal of the statement of claim and the
defence in the appeal record, it is abundantly clear to me the SPA and the
breach thereof by the defendant had been specifically pleaded by the plaintiff.
That being the case, the clauses in the SPA would form the foundation for
the assessment of damages.
In this regard, it is pertinent to refer to the second
part of cl 12 which, where relevant, reads as follows:-
"12. No changes thereto or deviation therefrom shall be
made without the consent in writing of the Purchaser The Purchaser shall
not be liable for the cost of such changes or deviations and in the event
that the changes or deviations involve the omissions of works originally
agreed to be carried out by the Vendor, the Purchaser shall be entitled
to a corresponding reduction in the purchase price herein or to damages
in respect thereof."
As the defendant (vendor) has failed to construct the
house in accordance with the plan approved by the appropriate authority
as expressly stated in the first part of cl 12, as well as the First and
Second Schedules, the plaintiff is entitled to a corresponding reduction
in the purchase price or to damages pursuant to cl 12 thereof.
The sum of Ml5,000 has been arrived at as follows:-
Lot 260 (Corner Lot) Intermediate Lot
Area of land 212 sq m
Built-up area 143 sq m 143 sq m
of house
Area of extra 212-143
Land for corner = 69 sq m
lot = 742 sq ft
Cost of extra 742 x RM 13.50
land = RM10,017.00
Purchase price RM119,905 RM94,888
Corresponding RM119,905 - (94,888 + 10,017)
reduction = RM 15,000
in the purchase
price
In the circumstances, I am unable to see any error in
the calculation of the sum pursuant to cl 12.
V. PAYMENT OF RM2,50O
The third and final issue raised for the defendant was
that the plaintiff is now estopped from claiming the sum of RM 15,000 as
damages after having allegedly accepted RM2,500 as full and final settlement
inclusive of the side porch, adding that the claim for RM 15,000 has never
been pleaded. Support was sought in Mohamad Safuan bin Wasidin & Anor v
Mohd Ridhuan bin Ahmad (an infant) [1994] 2 MLJ 187.
The plaintiffs response is that the sum of RM2,500 was
for "shortage of land area" as stated in the plaintiff's two letters of
demand and receipt and so it was not for full and final settlement.
In the earlier part of my judgment, I have comprehensively
considered the pleading point and so would not risk any repetition here.
Next, the subject matter for which the plaintiff has received
the sum of RM2,500 is to be ascertained by reference to the parties' contemporary
documents viz defendant's letter exhibit D9 p. 80 and plaintiffs receipt
at p.81 respectively of the appeal record which stated that the payment
was for "shortage of land area" i.e. shortfall in land area.
However, it must be stated that the plaintiffs claim for
the shortfall in land area was in the sum of RM 1,782 and not RM2,500, which
means that there is an excess of RM718. There must be no unfair enrichment
in favour of the plaintiff in so far as this excess is concerned. Hence,
in equity, the plaintiff must account for it by way of restitution, either
as money had and received, or as money paid by mistake under s. 73 of the
Contracts Act 1950 which where relevant reads as follows:-
"73. A person to whom money has been paid by mistake must
repay or return it." (see e.g. Seek v Wong & Lee [1940] MLJ Rep 146 per
Terrell Ag CJ. High Court of Singapore)
In the circumstances, the excess of RM718 must be off-set
against the plaintiffs claim for RM 15,000 in relation to the side porch.
VI. CONCLUSION
On the foregoing grounds, I allow this appeal in part
so that the sum of RM718 is to be deducted from the judgment sum of RM 15,000,
in which case judgment is therefore given in favour of the plaintiff in
the sum of RM 14,282 only with interest at 8% per annum from the date of
judgment in the magistrate's court i.e. 20 September 2000 to the date of
realisation and costs in the court below. For this appeal, I make an order
of fixed costs of RM2,500 in favour of the plaintiff.
( DATUK WIRA LOW HOP BING ) - Judge High Court Malaya,
Melaka
12th October 2005
SOLICITOR:-
Miss Fatima Tahir Ali for the defendant, Advocates & Solicitors,
No. 85A, Jalan Melaka Raya 24 Taman Melaka Raya 1 75000 Melaka.
Miss Anis Hasliza bt Ajis learned counsel for the plaintiff
Advocates & Solicitors, Messrs J. Azmi & Associates, 232, Taman Melaka Raya
1, 75000 Melaka.
REFERENCE:-
Wong Swee Chin v. Public Prosecutor [1981] MLJ 212, at
213
Tenaga Nasional Bhd v Perwaja Steel Sdn Bhd [1995] 4 MLJ
673
Selvaduray v Chinniah [1939] MLJ 253
Kang Yoon Mook Xavier v Insun Development Sdn Bhd [1995]
2 MLJ 91
Tan Tian Seng & Anor v Grobina Resorts Sdn Bhd (No. 2)
[2005] 7 CLJ 70
S.E.A. Housing Corporation Sdn. Bhd. v. Lee Poh Choo [1982]
CLJ 355; [1982] CLJ (Rep) 3O5
Khau Daw You v. Kin Nam Realty Development Sdn. Bhd. [1983]
1 MLJ 335
Kesultanan Pahang v. Sathask Realty Sdn Bhd [1998] 2 CLJ
559
Akberdin Hj Abdul Kader & Anor v. Majlis Peguam Malaysia
[2OO2] 4 CLJ 689
S.E.A. Housing Corporation Sdn. Bhd. v. Lee Poh Choo [1982]
CLJ 355; [1982] CLJ (Rep) 305
Tribunal Tuntutan Pembeli Rumah v. Westcourt Corporation
Sdn Bhd & Other Appeals [2004] 2 CLJ 617
Westcourt Corporation Sdn Bhd Iwn. Tribunal Tuntutan Pembeli
Rumah [2004] 4 CLJ 2O3
Seck v Wong & Lee [1940] MLJ Rep 146 Mohamed Said v. Haji
Omar [1996] 1 MLJ 50
Anjalai Animal & Anor. v. Abdul Kareem [1969] 1 MLJ 22
Salih bin Mohamed v. Loh Kim Foon [1982] 2 MLJ 292
The Chartered Bank v. Yong Chan [1974] 1 MLJ 157
Mohamad Safuan bin Wasidin & Anor v Mohd Ridhuan bin Ahmad
(an infant) [1994] 2 MLJ 187
Malaysian Law on Housing Developers, 2nd edn by Salleh
Buang, 2002 pp. 7 and 8
s. 17A of the Interpretation Acts 1948 and 1967 s. 73
of the Contracts Act 1950
