Yew Huoi, How & Associates | Leading Malaysia Law Firm

Menu

PROPERTY LAW – DELIVERY OF VACANT POSSESSION – VALIDITY OF THE EXTENSION OF TIME – LAD

A, a purchaser has entered into a sales and purchase agreement (“SPA”) with B, a developer. Due to the fact that developer B could not deliver vacant possession on time, developer B had obtained an extension of time from the Housing Controller (“the Controller”). As a result, the house was clearly not delivered on the stipulated date and A wanted to claim for liquidated ascertained damages (“LAD”) over delayed completion of the property purchased. He also sought to challenge the validity of the extension of time granted by the Controller.

Q: When does the LAD start?

A: The Federal Court decision in PJD Regency Sdn Bhd says the date for the calculation of the LAD starts from the date booking fee was paid. Not from the date of the SPA was signed. However in Toh Ai Shi the court distinguished PJD Regency Sdn Bhd. The court note that there was no booking fee paid but only payment of “stakeholder sum” to the lawyer. So, LAD starts from the date the SPA was signed.

Q: Can A challenge the extension of time granted by the Controller?

A: Yes. In Toh Ai Shi the court observed that A should challenge the Controller’s extension of time by way of judicial review. This is because according to Ang Ming Lee and Alvin Leong (See our earlier legal updates), the Controller does not have power to extend time for delivery of vacant possession.

Q: Can developer B rely on Regulation 11(3) of the Housing Development (Control and Licensing) Regulations 1989 (“HDR 1989”) to argue that the extension is valid?

A: No, Ang Ming Lee and Alvin Leong held that Regulation 11(3) HDR 1989 allows Minister to give extension of time. However, Controller does not have such power.

Q: What can A do if A wants to challenge the validity of the extension of time?

A: A shall file by way of judicial review application to the High Court to nullify the extension of time by the Controller first. Then can A claim LAD against developer B. In the latest decision of the High Court in Toh Ai Shi, the Plaintiff’s action was dismissed because he filed an Originating Summons against the developer and did not name the Controller as a party. However, it must be kept in mind, judicial review application has to be made within 90 days from the date the decision is made.

Cases in point:

  1. PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor And Other Appeals [2021] MLRAU 8
  2. Toh Ai Shi v Talent Team Sdn Bhd & Anor [2023] 7 MLJ 262
  3. Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Others Appeals [2019] 6 MLRA 494
  4. Alvin Leong Wai Kuan v Menteri Kesejahteraan Bandar [2020] 6 MLJ 191
Back to Latest Legal Updates

Sorotan Terkini

FAMILY LAW – CHILDREN’S CUSTODY – CUSTODY DISPUTES IN MALAYSIA: ESSENTIAL INSIGHTS ON CHILD WELFARE AND PARENTAL ROLES

In a recent custody dispute, the court emphasized the importance of child welfare, reaffirming the maternal custody presumption for young children unless strong evidence suggests otherwise. In high-conflict situations, the court favored sole custody over joint arrangements to minimize stress on the children. This case underscores that Malaysian parents should provide credible evidence for their claims and focus on practical, child-centered solutions.

Read More »
31 Oktober ,2024 Tiada Ulasan

BREACH OF CONTRACT – DAMAGES – FORESEEABILITY AND FAIRNESS IN FREIGHT LIABILITY CLAIMS

In JSD Corporation v Tri-Line Express [2024] 1 Lloyd’s Rep. 285, the court set a clear precedent on damages for property claims, ruling that only foreseeable and proportionate losses are recoverable. Applying principles akin to Hadley v Baxendale, the court allowed for repair costs if intent to remedy was evident but rejected double recovery, underscoring that damages must reflect actual loss without overcompensation. This decision serves as a guide for Malaysian courts, emphasizing fair and balanced recovery in line with foreseeable damages.

Read More »
31 Oktober ,2024 Tiada Ulasan

ADMIRALTY IN REM – SHIPPING — FUEL OR FREIGHT? COURT CLEARS THE AIR ON GLOBAL FALCON BUNKER DISPUTE

In a decisive ruling on the Global Falcon bunker dispute, the court dismissed Meck Petroleum’s admiralty claim for unpaid high-sulphur fuel, finding that the fuel was supplied not for operational purposes but as cargo. With the vessel lacking necessary equipment to use high-sulphur fuel and evidence pointing to its transfer to another vessel, the court determined that Meck’s claim fell outside admiralty jurisdiction, leading to the release of the vessel and potential damages for wrongful arrest.

Read More »
31 Oktober ,2024 Tiada Ulasan

COLLISION COURSE – COURT WEIGHS ANCHOR DRAGGING AND LIABILITY AT SEA

In a collision that underscores the high stakes of maritime vigilance, the court ruled that Belpareil bore the brunt of the blame for failing to control its dragging anchor and delaying critical warnings. Yet, Kiran Australia wasn’t off the hook entirely—apportioned 30% fault for its limited evasive action, the case serves as a stark reminder: in maritime law, all vessels share responsibility in averting disaster, even when one party’s errors loom large.

Read More »
31 Oktober ,2024 Tiada Ulasan

GENERAL AVERAGE – PIRATE RANSOM DISPUTE: SUPREME COURT RULES CARGO OWNERS LIABLE IN THE POLAR CASE

In the landmark case Herculito Maritime Ltd v Gunvor International BV (The Polar) [2024] 1 Lloyd’s Rep. 85, the English Supreme Court upheld the shipowner’s right to recover a USD 7.7 million ransom paid to Somali pirates under general average. The Court ruled that cargo interests, despite their arguments regarding charterparty terms and insurance obligations, were liable to contribute to the ransom payment. This decision reinforces the importance of clear contractual provisions when seeking to limit or exclude liability in maritime contracts particularly matter relating to general average.

Read More »
31 Oktober ,2024 Tiada Ulasan
ms_MYMY
en_USEN zh_TWZH ms_MYMY
× Hubungi Kami