HARIRAM JAYARAM & ORS V. SENTUL RAYA SDN BHD

LAND LAW:Housing developers - Sale and purchase agreement - Non-delivery of vacant possession - Damages - Claim for - Whether purchasers prevented from claiming damages - Whether to rescind contract before making claim - Contracts Act 1950, s. 56(3)- Whether claim allowed under Housing Developers (Control and Licensing) Act 1966
STATUTORY INTERPRETATION:Cannons of construction - Generalia specialibus non derogant - Sale and purchase of land agreement - Whether Contracts Act 1950applicable - Whether Housing Developers (Control and Licensing) Act 1966governing statute - Whether specific laws ought to be applied as opposed to general legislation
CONTRACT:Housing development contract - Breach - Non-delivery of vacant possession - Damages - Claim for - Notice to claim compensation - Absence of - Whether purchasers prevented from claiming damages - Whether to rescind contract before making claim - Contracts Act 1950, s. 56(3)- Whether applicable

The defendant, a housing developer, entered into a sale and purchase agreement with the plaintiffs for the purchase of condominium units. The plaintiffs claimed that the defendant had breached this agreement when it failed to deliver vacant possession of the said units on the respective dates. They applied to this court videencl. 1 for liquidated ascertained damages for non-delivery of vacant possession.

Relying upon s. 56(3) of the Contracts Act 1950, the defendant argued that the plaintiffs could not claim for damages as they did not give the defendant any notice regarding their claim.

Held:

[1] Where there are two provisions of written law, one general and the other specific, then whether or not the specific legislation came into existence subsequent to the general legislation or vice versa, the specific legislation or the special provision in the specific legislation would exclude the operation of the general legislation. The Contracts Act 1950is a piece of legislation of a general nature setting out the general law governing contracts between parties, whereas the Housing Developers (Control and Licensing) Act 1966 specifically governed the sale of houses by a licensed developer. The plaintiffs' claims were based, not on general contract but on the standard sale and purchase agreements in accordance with Schedule 'H' to the Housing Developers (Control and Licensing) Regulations 1989 which were made under the Housing Developers (Control and Licensing) Act 1966. Being a specific piece of local legislation, enacted solely to protect house buyers from unscrupulous developers, the standard sale and purchase agreements signed by the plaintiffs must take precedence over the Contracts Act 1950 and must be given effect accordingly. (pp 814 a-d, 816 f-h & 823 e-f)

[2] A purchaser is not obliged to refer to the Contracts Act 1950before deciding to claim for liquidated ascertained damages against the developer for non-delivery of vacant possession at the original completion date. It would be certainly erroneous in the extreme to burden the purchasers with the requirement of s. 56(3) of the Contracts Act 1950when the Housing Act and the Housing Regulations do not impose such a burden. Such attempts would taint and remove the very protection afforded by the relevant laws enacted by Parliament. (p 818 c-e & g-h)

[2a]Section 56(3) of the Contracts Act 1950would apply only where the plaintiffs as the purchasers had indicated to the defendant developer when the contracts became voidable and that would be on the original completion dates or soon thereafter. Here, there was no evidence of any indication by the plaintiffs and for that reason the said section would not apply. The terms of the sale and purchase agreement were clear and unambiguous which accorded the plaintiffs with the right to sue for liquidated ascertained damages without the need to rescind the said agreement. (p 821 a-b)

[3] Ought a developer intend to absolve itself from liability arising from late delivery, reg. 11 of the Housing Regulations provides that an application could be made to the Controller of Housing to detract from the express provisions of the sale and purchase agreement, owing to some special circumstances or hardship. Whilst such an avenue was open to the defendants in the present case, they did not attempt to pursue it. (p 820 d)

Case(s) referred to:

Ashmore v. Corp of Lloyd's (No 2) [1992] 2 Lloyds Rep 620 (refd)
Australian Meat Industry Employees' Union v. Frugalis Pty Ltd [1990] 2 Qd R 201 (refd)
Australian Mutual Provident Society v. 400 St Kilda Road Pty Ltd [1991] 2 VR 417 (refd)
Bell v. Lever Bros Ltd [1932] AC 161 (refd)
Blacktown Municipal Council v. Doneo [1971] 1 NSWLR 157 (refd)
Buche v. Box Pty Ltd [1993] 31 NSWLR 368 (refd)
City Investment Sdn Bhd v. Koperasi Serbaguna Cuepacs Tanggungan Bhd [1985] 1 CLJ 131; [1985] CLJ (Rep) 77(refd)
City Investment Sdn Bhd v. Koperasi Serbaguna Cuepacs Tanggungan Bhd [1987] 1 LNS 62; [1988] 1 MLJ 69 (refd)
David Leahey (Aust) Pty Ltd v. McPherson's Ltd [1991] 2 VR 367 (refd)
Dickstein v. Kanevsky [1947] VLR 216 (refd)
Federation Insurance Ltd v. Wasson [1987] 163 CLR 303 (refd)
Folin & Brothers Sdn Bhd v. Wong Foh Ling & Wong Swee Lin & Ors [2001] 1 CLJ 604(refd)
GSA Group Pty Ltd v. Siebe Plc [1993] 30 NSWLR 573 (refd)
Heimann v. Commonwealth [1938] 38 SR (NSW) 691 (refd)
Hindustan Construction Co v. The State of Bihar AIR [1963] Patna 254 (refd)
Himbleton Pty Ltd v. Kumagai (NSW) Pty Ltd [1991] 29 NSWLR 44 (refd)
Hock Huat Iron Foundry (suing as a firm) v. Naga Tembaga Sdn Bhd [1999] 1 CLJ 89(refd)
Hospital Products Ltd v. United States Surgical Corp [1984] 156 CLR 41 (refd)
Hughes v. Greenwich London Borough Council [1994] 1 AC 170 (refd)
Hughes v. Western Australian Cricket Assn (Inc) [1986] 19 FCR 10 (refd)
Ian Delbridge Pty Ltd v. Warrabdyte High School Council [1991] 2 VR 545 (refd)
Kang Yoon Mook Xavier v. Insun Development Sdn Bhd [1995] 2 CLJ 471(refd)
Khau Daw Yau v. Kin Nam Realty Development Sdn Bhd [1982] 1 LNS 81; [1983] 1 MLJ 335 (refd)
Lewis v. Bell [1985] 1 NSWLR 731 (refd)
Liverpool City Council v. Irwin [1977] AC 239 (refd)
Luxor (Eastbourne) Ltd v. Cooper [1941] AC 108 (refd)
Nutting v. Baldwin [1995] 2 All ER 321 (refd)
Peters American Delicacy Co Ltd v. Champion [1928] 41 CLR 316 (refd)
Prime Holdings Pty Ltd v. Kanemary [1992] 7 WAR 308 (refd)
PP v. Chew Siew Luan [1982] CLJ 354; [1982] CLJ (Rep) 285(refd)
Re Wong Chong Siong; ex p Arab Malaysian Finance Bhd [1999] 1 CLJ 222(refd)
Reigate v. Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592 (refd)
Sakinas Sdn Bhd v. Siew Yik Hau & Anor [2002] 3 CLJ 275(refd)
SEA Housing Corporation Sdn Bhd v. Lee Poh Choo [1982] CLJ 355; [1982] CLJ (Rep) 305 (refd)
Stock v. Frank Jones (Tipton) Ltd [1978] 1 WLR 231 (refd)
Sun Alliance Pensions Life & Investments Services Ltd v. RJL [1991] 2 Lloyds Rep 410 (refd)
Wasson v. Commercial and General Acceptance Ltd [1985] 2 NSWLR 206 (refd)

Legislation referred to:

Companies Act 1965, s. 176
Contracts Act 1950, s, 56(1), (3)
Housing Developers (Control and Licensing) Act 1966, ss. 3, 11, 12, 24, 65
Housing Developers (Control and Licensing) Regulations 1989, reg. 11(3)
Interpretation Acts 1948 and 1967, ss. 17A, 87(d), Part II
Contract Act [India], s. 55

Other source(s) referred to:

FAR Bennion, Statutory Interpretation, "A Code",3rd edn, p 174
For the plaintiffs - NV Sree Harry; M/s Sri Ram & Co
For the defendant - Michael KT Chow; M/s Logan Sabapathy & Co
Reported by M Maheswaran