KC CHAN BROTHERS
DEVELOPMENT SDN BHD V. TAN KON SENG &
ORS
HIGH COURT MALAYA,
TEMERLOH
RAMLY ALI JC
[CIVIL APPEAL NOS:
11-1-2000 TO 11-26-2000]
7 SEPTEMBER 2001
CIVIL PROCEDURE:
Appeal - Jurisdiction to entertain -
Power of High Court to hear appeals from
subordinate courts - Question of law -
Whether substantially raised in notice
of appeal or memorandum of appeal -
Courts of Judicature Act 1964, ss. 27,
28
CONTRACT: Building contract -
Breach - Defects - No notice as per sale
and purchase agreement given to
developer to repair defects - Whether
purchasers may still sue developer for
breach of contract - Whether purchasers
estopped from bringing claim -
Protection of house buyers - Housing
Developers (Control & Licensing)
Regulations 1982
CONTRACT: Building contract -
Breach - Defects - Certificate of
fitness for occupation issued by local
authority - Whether purchasers precluded
from suing developer for breach of
contract - Whether specifications as per
sale and purchase agreement and building
plans met
CONTRACT: Building contract -
Sale and purchase agreement - Approved
building plans - Whether must be annexed
to agreement - Whether a mandatory
requirement - Whether may be deemed to
have been annexed to agreement - Whether
building plans part and parcel of
agreement - Rights and liabilities of
purchaser and developer - Housing
Developers (Control & Licensing)
Regulations 1982, reg. 12
CONTRACT:
Building contract -
Breach - Defects - Discovered after
12-month liability period - Whether
purchaser may still sue developer for
breach of contract under common law
Ramly Ali JC:
These are 26 appeals filed by the
same appellant/defendant against 26
decisions of the learned magistrate
Temerloh made on 29 January 2000 in
favour of 26 different
respondents/plaintiffs which arose from
26 separate civil suits. The
appellant/defendant had filed 26 Appeal
Notices on 10 February 2000 and later
followed by 26 Memorandum of Appeal in
respect of each decision.
Factual Background
All the respondents/plaintiffs were
house buyers for low-cost houses built
by the appellant/defendant at Taman
Seraya, Triang, Pahang Darul Makmur. For
that purpose, all the
respondents/plaintiffs had entered into
their respective agreements with the
appellant/defendant. Out of the 26
respondents/plaintiffs, 13 of them were
buyers for single-storey low-cost houses
while the other 13, were buyers for
double-storey low-cost houses. All the
respondents/plaintiffs filed their
claims separately against the
appellant/defendant in the Magistrate
Court Temerloh, claiming for
compensation on the ground that their
houses were not built in accordance with
the specifications provided in the
approved plans, which were part of the
agreements. They claimed that the
appellant/defendant had breached the
agreements between them.
For the single-storey houses, the
approved plan provides for the
followings:
(a) the height of the house shall
be 10 ft. from floor to ceiling;
(b) asbestos ceiling - to be
installed;
(c) water PCC Vent - 2 layers;
(d) Roof rafters shall be from
hardwood - size 2"x4";
(e) "hardcore" flooring;
(f) septic tank wall - 9 inches
thick.
On delivery of the said houses, the
respondents/plaintiffs found the
followings:
(a) the height of the house, from
floor to ceiling was only 9 feet;
(b) no asbestos ceiling installed;
(c) water PCC Vent - only 1 layer;
(d) roof rafters - were of various
sizes and not from hardwood;
(e) no "hardcore" flooring;
(f) septic tank wall - only 4 3/4
inches thick.
For the double-storey houses, the
approved plan provides for the
followings:
(a) the height of the house shall
be 20 ft. from floor to ceiling;
(b) asbestos ceiling to be
installed;
(c) septic tank wall - 9 inches
thick.
On delivery, the
respondents/plaintiffs found the
followings:
(a) the height of the house from
floor to ceiling was only 18 ft.;
(b) no asbestos ceiling installed;
(c) septic tank wall - only 4 3/4
inches thick.
The appellant/defendant disputed the
claim. The first case went on for full
trial where the respondent/plaintiff (in
that case) has called 16 witnesses. At
the end of the respondents/plaintiff's
case (in that case) both counsels for
the respondents/plaintiffs and counsels
for the appellant/defendant agreed that
the facts and evidence adduced in the
first case be also applicable to the
other 25 cases. Along that line, the
defence who has called three witnesses
in the first case, was also to be
applicable to all the other 25 cases as
agreed by the parties.
At the end of the trial, the learned
magistrate decided infavour of all the
respondents/plaintiffs and found that
the appellant/defendant was in breach of
the respective agreements. In respect of
the single-storey houses, the respective
respondents/plaintiffs were awarded a
sum of RM8,400 as compensation together
with costs and interests (for each of
them). While in respect of the
double-storey houses, each of the
respective respondents/plaintiffs were
awarded a sum of RM4,5000 as
compensation together with costs and
interests.
The appellant/defendant, not being
satisfied with all the 26 decisions,
appealed to this court against all the
26 decisions separately and thus had
filed 26 notices of appeal.
At the hearing of this appeal, both
parties agreed to submit their written
submissions which would be applicable
for all the 26 appeals, as all the
appeals involved the same set of facts
and issues.
Whether The Said Decisions Are
Appellable - Section 28(1), Courts Of
Judicature Act 1964
It is not disputed that each and
everyone of the 26 decisions involved
award of less than RM10,000.
The amount in dispute or the value of
the subject matter is less than
RM10,000.
The appellate civil jurisdiction of
the High Court in respect of appeals
from subordinate courts is governed by
s. 27and 28 of the Courts of Judicature
Act 1964. Section 27 of the Act
provides:
27. The appellate jurisdiction of
the High Court shall consist of the
hearing of appeals from subordinate
courts as hereinafter provided.
Section 28(1) of the same Act
provides:
28(1). Subject to any other written
law, no appeal shall lie to High Court
from a decision of a subordinate court
in any civil cause or matter where the
amount in dispute or the value of the
subject-matter is ten thousand ringgit
or less except on a question of law.
For the purpose of s. 28(1). The
amount in dispute or value of the
subject matter shall not include
interests and costs. It only refers to
the main award. This finding is
supported by the decision of Penang High
Court in Kannaya & Anor v. Teh Swee
Eng[1994] 3 CLJ 54, where it was
held that:
The value of the subject matter
referred to in s. 28(1) of the Actdoes
not include interest and costs. To
interprete otherwise would be to place
on unnecessary burden on Plaintiff who
would have to decide in the first
instance in which court to institute
proceedings and further to guess as to
when his case would be disposed of and
its outcome. It cannot have been the
intention of the legislature to have
enacted this provision to invite the
Plaintiff to first indulge in a
guesing game as to the ultimate
outcome of his action for the purpose
of deciding in which court to
institute proceedings.
Thus, based on the above finding, it
is clear that the amount in dispute or
the value of the subject matter in all
the 26 appeals before this court is
below RM10,000. It is also clear that by
virtue of ss. 27and 28(1) of the Courts
of Judicature Act 1964, the High Court
has no jurisdiction to hear these
appeals except on a question of law.
This is a question of jurisdiction which
must be complied with strictly. It goes
to the very core of the court's power in
dealing with the appeal. Non-compliance
with the provisions is fatal and would
nullify the appeal. It is not a mere
irregularity which can be cured by any
other existing rules. It is a vital
question to be determined and decided by
the court at the beginning of the
proceeding whether or not the respondent
or any other party has raised it. The
fact that the respondent does not raise
the issue at the beginning of the
proceeding does not mean that the court
has the jurisdiction to hear the appeal
even though the conditions set under s.
28(1) of the Actare not fulfilled.
That being the case, it is necessary
at this stage for this court to be
satisfied that the appeal is only on a
question of law - ie, it involves issue
on question of law raised by the
appellant/defendant to be determined and
decided by this court. It only covers
issues on questions of law alone,
nothing else.
Issues involving question of fact or
that relate to the application of the
law to the facts are clearly outside the
jurisdiction of this court. (See
Mohamad Safuan Wasidin & Anor v. Mohd
Ridhuan Ahmad (an infant)[1994] 1
LNS 186; [1994] 2 MLJ 187; and Tiang
Kwong Ee v. Ing Kai Hong (S) Sdn Bhd[2000]
1 LNS 227; [2000] 5 MLJ 756.)
For that purpose, the court has to
scrutinise the notice of appeal as well
as the memorandum of appeal to see
whether any question of law has been
raised by the appellant. There must be
same form of indication (ie, general
indication) in the notice of appeal as
well as the memorandum of appeal that a
question of law has been raised. It need
only be in general and need not be
specific. In Sulaiman Mohamad v.
Malayan Banking Bhd[1991] 1 LNS 39;
[1992] 2 MLJ 116, Lamin J (as he then
was) held:
I am of the view that in the case
of an appellant intending to appeal on
a question of law, the notice of
appeal in Form 140 must state at least
in general form the question or
questions of law that he wishes to
appeal on.
In another case, Mohamad Safuan
bin Wasidin (supra), Abdul Malik
Ishak JC (as he then was) has also
ruled:
In my judgment, in the case of an
appellant intending to appeal from the
decision of the subordinate court
where the quantum is less than
RM10,000.00, the notice of appeal in
Form 140 must state generally the
question or questions of law that he
wishes to appeal on. Any failure to
conform to this basic statutory
requirement would strike at the very
core of the appeal and, consequently,
would nullity the appeal. For the
reasons adumbrated above, I dismissed
the appeal with costs.
The same ruling was also made by Tee
Ah Sing J in Ting Kwong Eee v. Ing
Kai Hong (S) Sdn. Bhd. (supra). In
that case he concluded:
The failure to state in the notice
of appeal in Form 140 the question or
questions of law involved was fatal
and would nullity the appeal.
In that case, the judge dismissed the
appeal with costs on the ground that the
appellant's notice of appeal did not
state generally the question or
questions of law that he wishes to
appeal on.
In what format then, the question of
law need to be stated in the notice of
appeal? All the above authorities have
stated that the question of law must be
stated, at least in general form in the
notice of appeal, but none has touched
on the format of the statement. Form 140
itself does not help in this matter. The
counsel for the respondents/plaintiffs
contended the question of law must be
formulated in the form of "question" to
be answered by the court by using the
opening word "whether ...". He further
contended that the questions of law
should not be in the form of a statement
which says that "The learned magistrate
has erred in law ..." or "The learned
magistrate did not take into
consideration issues and question of law
...".
Since there are no specific
provisions or guidelines as to how a
question of law need to be stated in the
notice of appeal, then the court has to
peruse the notice of appeal as well as
the memorandum of appeal in detail in
order to be satisfied that in substance
a question of law alone has been raised.
How and in what format the question was
raised or stated is not that important.
The substance is what matters. In this
regard, I am in full agreement with
Selventhiranathan JC (as he then was) in
Kanaya's case (supra)where
at p. 513 he said:
I also found that the second ground
of objection to the appeal by learned
counsel for the respondent has merit.
I have perused the memorandum of
appeal in detail and compared it with
the grounds of judgment of the learned
Magistrate. Having done so, I am
satisfied that all the grounds of
appeal in the memorandum at best
relate to the application of the law
to the facts and do not involve any
question of law alone for decision.
Labelling the grounds of appeal as
involving questions of law does not
metamorphose what are essentially
question of fact into question of law.
The substance is what matter, not the
label.
In the present case, after going
through the notices of appeal as well as
the memorandums of appeal in detail, I
am satisfied that, in substance, there
are questions of law raised by the
appellant/defendant for court's
decision. The issues are as follows:
(a) whether the
respondents/plaintiffs must have
complied with the provisions of cl. 23
of the sale and purchase agreement
first before initiating their claims
in court;
(b) whether the magistrate can
award compensation exceeding the
maximum amount specified in the
statement of claim;
(c) whether, based on the
interpretation of reg. 11(1) of the
Housing Developers (Control and
Licensing) Regulations 1982, a copy of
the approved building plan must be
attached/annexed to the sale and
purchase agreement; and
(d) whether, upon issuance of the
Certificate of Fitness for Occupation
(CFO), the respondents/plaintiffs are
entitled to claim compensation from
the appellant/defendant for
non-compliance with the specifications
or any other defect to the house.
The appellant/defendant has listed 12
issues in the notice of appeal and 21
issues in the memorandum of appeal.
Except for the four issues which I have
listed above that involved questions of
law alone, all the other issues raised
by the appellant/defendant do not
involve any question of law alone for
decision. At best, those issues relate
to the application of the law to the
facts on the case. To my mind all those
issues involve question's of fact which
were decided by the learned magistrate
after having heard all the witnesses.
Whether to accept or reject their
evidence, is a matter clearly within his
province as long as he had valid reasons
to do so. So, by vitue of
s. 27and 28(1) of the Courts of
Judicature Act 1964, this court has no
jurisdiction to entertain and to
consider those issues. For the purpose
of these appeals, I shall only deal with
the four issues which I have cited
above.
First Issue: Whether The
Respondents/Plaintiffs Must Have
Complied With The Provisions Of Clause
23 Of The Sale And Purchase Agreement
First Before Initiating Their Claims In
Court.
Clause 23 deals with defect liability
period. In full, cl. 23 provides:
23. Any defects shrinkage or other
faults in the said Building which
shall become apparent within a period
of twelve (12) calendar months after
the date of handing over of vacant
possession, with connection of water
and electricity supply to the said
Building, to the Purchaser and which
are due to defective workmanship or
materials or the said Building not
having been constructed in accordance
with the plans and description as
specified in the Second and Fourth
Schedule as approved or amended by the
Appropriate Authority, shall be
repaired and made good by the Vendor
at its own cost and expenses within
thirty (30) days of its having
received written notice thereof from
the Purchaser and if the said defects,
shrinkage or other faults in the said
Building have not been made good by
the Vendor, the Purchaser shall be
entitled to recover from the Vendor
the cost of repairing and making good
the same and the Purchaser may deduct
such costs from any sum which has been
held by the Vendor's solicitor as
stakeholder for the Vendor:
PROVIDED THAT the Purchaser
shall, at any time after expiry of
the said period of thirty (30) days,
notify the Vendor of the cost of
repairing and making good the said
defects, shrinkage or other faults
before the commencement of the works
and shall give the Vendor an
opportunity to carry out the works
himself within fourteen (14) days
from the date the Purchaser has
notified the Vendor of his intention
to carry out the said works.
Ground (c) of the Notice of Appeal
states that:
Keputusan Tuan Majistret tidak
mengambil kira isu tentang kegagalan
Plaintif/Responden atas Fasal 23
Peijanjian dan soal undang-undang
samada Plaintif berhak menuntut
gantirugi tanpa mematuhi Fasal 23
tersebut.
I have studied the grounds of
decision by the learned magistrate (at
pp. 508-535 of the Appeal Records) and
fully satisfied that the learned
magistrate has appropriately considered
the issue relating to cl. 23 and has
ruled that the respondents/plaintiffs
need not issue the said notice under the
clause, before taking their actions to
court. The appellant/defendant also
argued that all the
respondents/plaintiffs have failed to
give any notice to the
appellant/defendant under cl. 23, thus
they are estopped from taking any action
against the appellant/defendant in
court. With respect I cannot agree with
this argument.
All the relevant sale and purchase
agreements in these appeals were signed
between the respondents/plaintiffs and
the appellant/defendant in 1990. These
agreements were governed by the
provisions of the Housing Developers
(Control and Licensing) Act 1966 and the
regulations made thereunder. At that
time (1990), the relevant regulations
were the Housing Developers (Control and
Licensing) Regulations 1982 (the 1989
Regulations only come into force after
1990). Regulation 12(1) of 1982
Regulations provides that every contract
of sale for the sale and purchase of a
housing accomodation together with the
subdivisional portion of land
appurtenant there to shall be in the
form prescribed in Schedule E.
Regulation 12(2) further provides that
no amendment to any such contract of
sale shall be made except on the ground
of hardship or necessity and with the
prior approval of the Controller. In
other words, all provisions in the sale
and purchase agreement are actually
statutory requirements which must
strictly be complied with cl. 23,
particularly is meant to be as an
additional protection for house buyers,
without effecting or limiting their
rights under the common law. This
finding was clearly confirmed by the
Privy Council in City Investment Sdn
Bhd v. Koperasi Serbaguna Cuepacs
Tanggungan Bhd[1987] 1 LNS 62;
[1988] 1 MLJ 69 where Lord Templeman has
expressed (at p. 72):
But the Act of 1966 and the Rules
were designed to improve and
supplement common law remedies and do
not expressly or by implication
deprive a litigant of a contractual
remedy which is not dealt with under
the Rules.
The same cl. 23, has been dealt with
by Peh Swee Chin FCJ in Teh Khem On
v. Yeoh & WU Development Sdn Bhd[1996]
2 CLJ 11055 where he has said:
I share the view espoused by Lord
Denning in Hancock & Ors. v. BW
Brazier Ltd. [1966] 2 All ER 901;
[1966] 1 WLR 1317, to the effect that
such clause similar to cl. 23 in our
instant appeal about making good
structural defects discovered within 6
months, would not take away the right
to sue in respect of such defects
which were not discoverable within
such six months, and that further in
regard those defects discovered within
the six months, the provision of an
express remedy of making good the same
defects will not ipso factotake
away the rights of any purchaser which
normally follow at common law in the
case of a breach of contract. It is
pertinent to mention that our cl. 23
provides for 12 months instead of six
months. The same principle would
apply. Thus the said line of defence
also fails.
On those authorities, I am of the
view that the failure on part of the
respondents/plaintiffs as house-buyers
to issue any notice under cl. 23 of the
sale and purchase agreements did not
preclude them from initiating their
civil claim under the common law for
breach of contract against the
appellant/defendant in court.
Consequently, the question of estoppel
as raised by the appellant/defendant
does not arise.
Second Issue: Whether The
Magistrate Can Award Compensation
Exceeding The Maximum Amount Specified
In The Statement Of Claim
Originally, all the
respondents/plaintiffs had limited their
claim to not more than RM5,000 as stated
in their respective statements of claim.
Thus on that ground, the
appellant/defendant contended that the
magistrate cannot award compensation
exceeding the amount. The
appellant/defendant further submitted
that the magistrate has erred in law
when he awarded a sum of RM8,460 as
compensation to each of the 13
respondents/plaintiffs who are house
buyers in respect of single-storey
houses. I have scrutinised the notes of
evidence as well as the grounds of
decisions of the learned magistrate and
the pleadings, and I found out that
eventhough intially all the
respondents/plaintiffs have limited
their claim to not more than RM5,000
each, however, in para. 5 of the amended
statements of defence, the
appellant/defendant has stated that the
respondents/plaintiffs have no right to
limit their claim as specified in para.
8 of their statements of claim. On that
ground, the counsel for the
respondents/plaintiffs, at the
Magistrate Court stage, admitted and
agreed that the respondents/plaintiffs
have no right to limit the amount of
their compensation and submitted that
the court then should be at a liberty to
consider the amount of compensation
based on the civil jurisdiction of a
Magistrate Court to make an award of up
to RM25,000, if damages are proven. In
the premise, the limit initially stated
by the respondents/plaintiffs in para. 8
of their respective statements of claim,
has been abandoned and of no effect.
Thus, the learned magistrate, after
being satisfied that damages have been
proven, was entitled to make an award of
up to RM25,000. Therefore, the
allegation that the learned magistrate
has given awards of compensation
exceeded the amount specified in the
statements of claim should not arise at
all.
Third Issue: Whether, Based On The
Interpretation Of Regulation 11(1) Of
The Housing Developers (Control and
Licensing) Regulations 1982, A Copy Of
The Approved Building Plant Must Be
Annexed To The Sale And Purchase
Agreement
In this issue, the
appellant/defendant cited reg. 11(1) of
the Housing Developers (Control and
Licensing) Regulations 1989 as the basis
of the argument. In actual fact, the
1989 Regulations only came into force
after 1990 ie, after all the relevant
sale and purchase agreements were duly
signed by all the parties. Thus the 1989
Regulations were not applicable to those
sale and purchase agreements. The
relevant Regulations that were
applicable at the time when those sale
and purchase agreements were signed,
were the 1982 Regulations, ie, the
Housing Developers (Control and
Licensing) Regulations 1982. However the
provisions of reg. 11(1) of the 1989
Regulations which was cited by the
appellant/defendant, was in effect, the
same with reg. 12(1) of the 1982
Regulations; and the form of the sale
and purchase agreement as prescribed in
Schedule G in the 1989 Regulations is
the same with the form of the sale and
purchase agreement as prescribed in
Schedule E in the 1982 Regulations.
By virtue of reg. 12(1) of the 1982
Regulations, every contract of sale for
the sale and purchase of a housing
accommodation shall be in the form
prescribed in Schedule E. Thus the sale
and purchase agreements are not merely
private contract between the developer
and the house buyers, but are contracts
in statutory form, containing statutory
requirements which must be fully and
strictly complied with; and as provided
under reg. 12(2), no amendment to any
such contract of sale shall be made
except on the ground of hardship or
necessity and with prior approval in
writing of the Controller. Regulation 14
of the 1982 Regulations further provides
that any person who contravenes any of
the provisions of the Regulations shall
be guilty of an offence and shall be
liable on conviction to a fine not
exceeding RM5,000 or to a term of
imprisonment not exceeding three years
or both. In the present case, there is
no evidence to show that the Controller
has given his written prior approval to
amend the form of the sale and purchase
agreement as prescribed in Schedule E.
Thus, the original Schedule E is
applicable. One of the recitals to the
said Schedule E states:
AND WHEREAS the Vendor has obtained
the approval of the building plans
(hereinafter referred to as "the
Building Plan") from the Appropriate
Authority, a copy of which is annexed
as the Second Schedule;.
From this recital, it is clear that
the approved building plan must be
attached or annexed to the sale and
purchase agreement and forms part of the
agreement as Second Schedule. It is a
mandatory requirement. RK Nathan J in
dealing with reg. 11(1) of the 1989
Regulations (which in effect is the same
with reg. 12(1) of the 1982 Regulations)
in Chua Eng Hong & Anor v. Palm
Springs Development Sdn Bhd[2001] 6
CLJ 298has made the same ruling ie, that
the sale and purchase agreement was in
the statutory form and must be compiled
with and cannot be waived or modified
except with the approval in writing from
the Controller.
Since the sale and purchase agreement
was in the statutory form and by law,
the approved building plan need to be
annexed to the sale and purchase
agreement, therefore the said approved
building plan must be deemed to have
been annexed and incorporated into the
sale and purchase agreement although in
actual fact the plan was not annexed to
the sale and purchase agreement at all.
Thus the provisions and specifications
contained in the approved building plan
must be deemed to form part of the
agreement and bind the parties
concerned.
Hence, the maxim "equity treats as
done that which ought to have been done"
must apply to the present case. This was
supported by Shanker J in Tan Yang
Long & Anor v. Newacres Sdn Bhd[1992]
3 CLJ (Rep) 666; [1992] 1 CLJ 211 when
he said:
There was an immediate legal duty
upon the part of Metroplex to reassign
their rights under the agreement which
they failed to do. Equity in this
respect must regard that as done which
ought to have been done.
In the present case, there was no
evidence to show that the approved
building plan, which was prepared by the
appellant/defendant's Architect, has
been annexed to the sale and purchase
agreements. The appellant/defendant may
have committed an offence under reg. 14
of the 1982 Regulations. Thus, the
appellant/defendant should not be
allowed to take advantage of his own
wrong doing. In any event it is the law
that no man can take advantage of his
own wrong doing: "nullus commodum
capere potest defendant injuria sua
propria"(see Hock Hua Bank (Sabah)
Bhd v. Lam Tat Ming & Ors[1995] 1
LNS 80; [1995] 4 MLJ 328).
Fourth Issue: Whether, Upon
Issuance Of The Certificate Of Fitness
For Occupation (CFO), The
Respondents/Plaintiffs As House-buyers,
Are Entitled To Claim Compensation From
The Appellant/Defendant For
Non-compliance With The Specifications
Or Any Defect To The Houses
The appellant/defendant argued that
since the CFO to those houses were
issued by the relevant authority,
certifying that the houses were fit for
occupation, the respondents/plaintiffs
are not entitled to claim that the
houses were defective for non-compliance
with the specifications, and also not
entitled to claim compensation from the
appellant/defendant. However, the
appellant/defendant did not cite any
authorities to support this argument.
With respect, I cannot agree with
this argument. I am of the view that the
CFO, which in the present case, was
issued by the relevant authority on 30
April 1991 (according to PW4), is to
certify that the house in question is
deemed fit for occupation. It is issued
upon completion of the house by the
developer and after the relevant
authority is satisfied that the relevant
provisions of the Uniform Building
By-Laws 1984 (GN5178/85) (UBBL) have
been complied with. The UBBL sets the
minimum standards and specifications for
the houses in question. However, the
sale and purchase agreements together
with the approved building plan are
separate documents. The specifications
to the houses as contained in the sale
and purchase agreement and the approved
building plan may be different (but
shall not be less favourable) compared
to the Specifications in the UBBL. So,
if the developer has satisfied the
specifications in the UBBL, it does not
necessarily mean that he has also
satisfied or fulfilled the
specifications in the sale and purchase
agreement and the approved building
plan.
The rights of the house-buyers to
claim compensation for any defect or
non-compliance with the specifications,
do not depend on the issuance of the
CFO. These rights are provided under cl.
23 to the sale and purchase agreement as
well as under the common law for breach
of contract. Clause 23 provides for
defect liability period of (12) months
after the date of delivery of vacant
possession to the house buyers. Manner
of delivery of vacant possession is
provided under cl. 19 ie, upon the issue
by developer's Architect of a
certificate certifying that the
construction of the building has been
duly completed and the purchaser having
paid all monies payable and performed or
observed all the terms and covenants on
his part under the sale and purchase
agreement. However, such possession
shall not give the purchaser the right
to occupy and the purchaser shall not
occupy the said house until such time as
the CFO is issued. It is the duty of the
developer to procure the issue of the
CFO from the appropriate authority as
provided under cl. 20 of the sale and
purchase agreement. In reality, some
defects or non-compliance of
specifications can only be discovered
when the purchaser has occupied the
house for sometimes. That is why, cl. 23
gives a grace period of 12 months for
the purchaser to discover the defects
and non-compliance of specifications.
After that 12 months period, purchaser
may still enforce their rights under the
common law for breach of contract. If
the appellant/defendant's argument is to
be accepted, then the rights and
protection granted to house buyers under
cl. 23 as well as under the relevant
laws (particularly the Housing
Developers (Control and Licensing)
Regulations 1982 (now as amended in
1989) and the common law for breach of
contract, would be useless and serve no
purpose at all.
Conclusion
In view of the foregoing, I dismiss
all the 26 appeals against all the
respondents/plaintiffs with costs.
Decisions of the learned magistrate in
all the 26 cases are upheld. |