HOYA HOLDING SDN. BHD. V. CHIA THIN HING
& ANOR.
HIGH COURT MALAYA, TAIPING
DATO' HJ. ABDUL MALIK B. HJ. ISHAK J.
[CIVIL APPEAL NO. 11-1-94 (T)]
20 AUGUST 1994
CONTRACT: Housing development - Sale and purchase agreement of
dwelling house - Terms of agreement - Delivery of vacant possession of house
to purchaser "with the connection of water and electricity supply to the
said building" - Whether water and electricity must be installed and
energized before vacant possession handed over to purchaser.
[Appeal dismissed with costs].
JUDGMENT
Dato' Hj. Abdul Malik b. Hj. Ishak J:
This is an appeal against the decision of the learned Magistrate,
Magistrate's Court, Taiping, Perak wherein the appellant/defendant was
ordered to pay RM1,431.51 with interest at the rate of 8% per annum
calculated from 26 May 1993 till the date of satisfaction to the
respondents/plaintiffs.
The facts were sufficiently set out in the statement of agreed facts that
were laid before the learned Magistrate and they were as follows:-
(1) the respondents/plaintiffs by an agreement dated 1 August 1990
had purchased a dwelling house for RM25,000 to be erected on plot no: PT
4630, Mukim of Kamunting, District of Larut and Matang, State of Perak from
the appellant/ defendant;
(2) by clause 20(1) of the standard sale and purchase agreement,
the appellant/ defendant had to deliver vacant possession to the
respondents/plaintiffs with the connection of water and electricity supply
to the dwelling house within 24 calendar months from the date of the
agreement;
(3) the physical installation of the water pipe to the dwelling
house was completed on or about 2 April 1992;
(4) the physical structure of the building to the dwelling house
was completed on or about July 1992;
(5) the physical installation of electrical wirings to the
dwelling house was completed on or about 30 July 1992;
(6) the keys to the dwelling house were handed to the
respondents/plaintiffs on 3 August 1992 and at that time water pipe and
electrical wiring were connected to the dwelling house and this was solely
to enable the respondents/plaintiffs to inspect the dwelling house;
(7) the certificate of fitness for occupation dated 2 February
1993 had been issued by the Yang Di Pertua, Majlis Perbandaran Taiping in
respect of the dwelling house;
(8) Tenaga Nasional Berhad had received RM60 from the
respondents/plaintiffs as deposit vide receipt dated 24 February 1993 for
the supply of electricity to the dwelling house;
(9) on 24 February 1993 electricity had been supplied to the
dwelling house;
(10)water had been supplied prior to or on 24 February 1993 to the
dwelling house; and (11)the solicitors for the respondents/plaintiffs sent a
notice of demand dated 26 May 1993 for RM1,431.51 to the appellant/defendant
as compensation payable under clause 20(2) of the agreement.
There is only one nagging issue to be decided by me and that is this:
Whether or not water and electricity meters must be installed and energized
before vacant possession of the dwelling house can be handed over to the
respondents/plaintiffs?
Clause 20 of the standard sale and purchase agreement reads as follows:
20 (1) The said building shall be completed by the vendor and vacant
possession, with the connection of water and electricity supply to the said
building, shall be handed over to the Purchaser within twenty four (24)
calendar months from the date of this Agreement.
(2) If the vendor fails to hand over vacant possession of the said
building, together with the connection of water and electricity supply to
the said building, in time, the vendor shall pay immediately to the
purchaser liquidated damages to be calculated from day to day at the rate of
ten per centum (10%) per annum of the purchase price.
The phrase "with the connection of water and electricity supply to the
said building" appearing in clause 20 of the standard sale and purchase
agreement is an exact replica of clause 20 appearing in schedule G of the
Hosing Developer (Control And Licensing) Act 1966 in particular Reg. 11(1)
of the Housing Developers (Control And
Licensing) Regulations 1989. The words in the phrase are by themselves
precise and unambiguous and effect must be given to those words in their
natural and ordinary sense. In short, this Court needs to do no more than to
give effect to those words. Tidal C.J. in Sussex Peerage Case [1844]
11 C.X. Fin 85 at page 142 in deciding the question whether the Royal
Marriages Act, 1772 extended to marriages celebrated outside England said:
....... the only rule for the construction of Acts of Parliament is,
that they should be construed according to the intent of Parliament which
passed the Act. If the words of the statute are in themselves precise and
unambiguous, then no more can be necessary than to expound those words in
their natural and ordinary sense.
The words themselves alone do, in such case, best declare the intention
of the law giver.
The literal approach of interpretation was also adopted by Cussen J. in
Kon Fatt Kiew v. PP [1935] MLJ 239 especially at page 240 where his
Lordship said:
This is admittedly not a technical or a scientific definition, so I must
give to the words and phrases used their ordinary meaning.
If I am in any doubt as to the ordinary meaning of a word, I can consult
any standard general dictionary.
I must take the sense, not only of particular words, but of a sentence,
or a clause as a whole.
When the meaning is plain and certain, that meaning must be given to the
language of the Enactment, even though the resulting construction may lead
to consequences that are surprising and unexpected, and such as one would
think could not have been intended.
In my judgment, the word in the phrase in their plain and ordinary
meaning must mean only one thing and it is this: there must be water and
electricity supplies actually running through the internal water pipes,
electric lines and power lines in the dwelling house before the question of
whether or not vacant possession has been delivered could even be
considered. Malaysian house buyers must surely insist and expect that the
handing over of vacant possession of completed houses can only be effected
if and only if the water and electricity meters have been installed and
energized within the completed houses. This seems to be the trend and the
thinking of the Malaysian Courts. Thus, in Syarikat Lean Hup (Liew
Brothers) Sdn. Bhd. v. Cheow Chong Thai [1988] 3 MLJ 221, Mustapha
Hussain J. decided that vacant possession had to include the connection of
water and electricity supplies to the building and the then Supreme Court
upheld this judgment. His Lordship Abdul Malek Ahmad J. in Voon Keng & 61
Ors. v. Sykt. Muzwina Development Sdn. Bhd. [1991] 3 CLJ 1904 in the
same vein said:
This would surely mean the connection of electricity from the mains to
the internal wiring of a particular house and not when electricity supply is
generally available to the relevant housing scheme.
See also Kandasamy a/1 Sreenivasagam v. Syarikat Muzwina Development
Sdn. Bhd. [1990] 1 MLJ 15 and Charles Muriel (f) V. Newacres Sdn. Bhd
[1994] 1 LNS 27. In compliance with clause 20(1) of the standard sale
and purchase agreement, the twenty four (24) months period for delivery of
vacant possession of the dwelling house should expire on midnight of 31 July
1992 calculated from 1 August 1990. And since vacant possession must include
connection of water and electricity supplies to the dwelling house and such
supplies were effected on 24 February 1993, there was therefore a delay of
approximately 6 months 23 days calculated from 1 August 1992. But in the
statement of claim, the respondents/ plaintiffs sought for RM1,431.51 with
interest to run from the date of the notice of demand (26 May 1993) that was
issued to the appellant/defendant till the date of satisfaction and learned
Magistrate acceded to this prayer and gave interest at 8% per annum instead
of 10% per annum as stipulated in clause 20(2) of the standard sale and
purchase agreement. I do not have any quarrel with the decision of the
learned Magistrate and, consequently, I dismissed the appeal with costs.
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