Court rejects builder’s appeal

The Star 20/03/2002 By K. Kasturi Dewi

A developer failed to overturn a lower court decision allowing a house buyer to strike out the developer’s statement of defence in a suit for damages for late delivery of vacant possession.

High Court Justice R.K. Nathan dismissed with costs the appeal by Kembang Jaya Sdn Bhd Development against Chin Swee Leng whose application in a Sessions Court to strike out the developer’s defence, was allowed.

Chin, represented by Kek Boon Wei, had applied under Order 14 Rule 21(1)(d) of the Subordinate Court Rules 1980, to strike out the statement on the grounds the document was an abuse of the process of the court.

Chin, in her 40’s, had entered into a written agreement on June 10, 1996 with the developer to purchase a two-storey terrace house in Jalan Permatang Damar Laut, near Bayan Lepas.

A particular clause in the agreement stated that the completion period was 24 months from the date of the signing of the agreement, and that the developer was to, within that time, give vacant possession.

In the event of default by the developer, the agreement stipulated that it would have to pay the house buyer liquidated damages calculated daily at 10% per annum based on the purchase price of RM175,000.

Since the developer only delivered vacant possession on July 14, 2000, there was admittedly a delay of 765 days and Chin, therefore, claimed RM36,675.08 in damages.

The developer, in its defence, stated that it had to apply to the Ministry of Housing for extension of time for the completion of the project, as the relevant authorities had required that certain infrastructure be completed.

Chin, meanwhile, applied in a Sessions Court for the defence to be struck out and this was allowed.

Justice Nathan held that since the developer’s counsel Sunny Khoo agreed in court to the mode of calculation, there was no longer any dispute on the damages.