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

Recent Post

CIVIL PROCEDURE – STRIKE OUT UNDER ORDER 18 RULE 19(1)(A),(B) RULES OF COURT 2012 – EXTENSION OF TIME APPLICATION

In Badan Pengurusan Subang Parkhomes v Zen Estates Sdn Bhd [2025] MLJU 3591, the High Court reaffirmed that non-compliance with Order 37 Rule 1(5) of the Rules of Court 2012 does not automatically invalidate assessment of damages proceedings. The Court held that procedural rules must be read with the overriding objective of ensuring justice, and that the six-month time limit to file a Notice of Appointment is directory, not mandatory. Finding no prejudice to the defendant and noting active case management by the plaintiff, the Court dismissed the developer’s strike-out bid and allowed an extension of time for assessment to proceed. The decision underscores the judiciary’s commitment to substantive fairness over procedural rigidity in post-judgment proceedings.

Read More »
16 November ,2025 No Comments

TORT – PURE ECONOMIC LOSS BAR REAFFIRMED: MMC LIABLE FOR NEGLIGENCE BUT PROTECTED FROM LOST PROFIT CLAIMS

In Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2025] MLJU 3144, the High Court awarded over RM2 million in damages against the Malaysian Medical Council (MMC) for negligence, breach of statutory duty, and misfeasance during its accreditation of Lincoln University College’s medical programmes. While the court allowed direct financial losses such as survey costs, it barred claims exceeding RM550 million for lost profits, reaffirming the Federal Court’s rulings in Steven Phoa and UDA Holdings that pure economic loss is not recoverable from public or statutory bodies. The second defendant was further ordered to pay RM100,000 in exemplary damages for acting with targeted malice, marking a rare personal liability finding against a regulatory officer.

Read More »
16 November ,2025 No Comments

ERINFORD INJUNCTION – COURT OF APPEAL CLARIFIES: EX-PARTE ERINFORD INJUNCTIONS ARE THE EXCEPTION, NOT THE RULE

In Edisijuta Parking Sdn Bhd v TH Universal Builders Sdn Bhd & Anor [2025] 5 MLJ 524, the Court of Appeal clarified that ex parte Erinford injunctions at the appellate stage should only be granted in truly exceptional circumstances where giving notice would defeat the purpose of the order. Wong Kian Kheong JCA held that, under rule 50 of the Rules of the Court of Appeal 1994, such applications should generally be heard inter partes to ensure fairness and prevent abuse. Exercising powers under section 44(1) of the Courts of Judicature Act 1964, the Court granted a conditional interim Erinford injunction pending appeal, fortified by a RM200,000 deposit and an undertaking to pay damages. The ruling provides clear guidance on balancing urgency, procedural fairness, and judicial efficiency in appellate injunctions.

Read More »
16 November ,2025 No Comments

TOTAL FAILURE CONSIDERATION – FEDERAL COURT OVERRULES BERJAYA TIMES SQUARE: TOTAL FAILURE OF CONSIDERATION REDEFINED

In Lim Swee Choo & Anor v Ong Koh Hou @ Won Kok Fong [2025] 6 MLJ 327, the Federal Court unanimously overruled Berjaya Times Square Sdn Bhd v M Concept Sdn Bhd and clarified that the doctrine of total failure of consideration applies only to restitutionary relief, not to contractual termination. The Court held that the correct test is whether the promisor has performed any part of the contractual duties in respect of which payment is due, adopting Stocznia Gdanska SA v Latvian Shipping Co [1998] 1 WLR 574. Finding that the appellants had partly performed their obligations and the respondent had derived benefits, the Court rejected the respondent’s claim for restitution and restored the appellants’ contractual claim. The landmark decision restores clarity between contract and restitution, reinforcing commercial certainty in Malaysian law.

Read More »
16 November ,2025 No Comments

CONTRACT (BILL OF LADING) – NO DUTY TO DETECT FRAUD: COURT CLEARS MAERSK OF LIABILITY FOR FALSE CONTAINER WEIGHTS

In Stournaras Stylianos Monoprosopi EPE v Maersk A/S [2025] 2 Lloyd’s Rep 323, the English Commercial Court held that carriers are not liable for fraudulent misdeclarations by shippers where bills of lading are issued for sealed containers. The Court ruled that Maersk had no duty to verify or cross-check declared weights against Verified Gross Mass (VGM) data under the SOLAS Convention, as its obligation under the Hague Rules extended only to the apparent external condition of cargo. However, the judgment signals that a limited duty of care could arise in future where a carrier is put on notice of fraud. For now, carriers may rely on shipper declarations, but consignees must exercise commercial vigilance and due diligence when relying on bills for payment.

Read More »
16 November ,2025 No Comments

EXEMPLARY DAMAGES – STATUTORY BODY DUTY – DAMAGES – OBTAINING APPROVAL

In Big Man Management Sdn Bhd v Tenaga Nasional Bhd [2025] 5 MLJ 290, the Federal Court reinstated nearly RM3.56 million in special damages and awarded RM100,000 in exemplary damages against TNB for wrongfully disconnecting electricity to an ice factory. The Court ruled that “strict proof” of special damages does not mean a higher burden beyond the civil standard of proof and affirmed that TNB, as a statutory monopoly, breached its statutory duty by using disconnection as leverage to collect payment. The judgment underscores that public utilities cannot misuse statutory powers, and consumers wrongfully deprived of essential services may be entitled to punitive remedies in exceptional cases.

Read More »
16 November ,2025 No Comments
en_USEN
zh_TWZH ms_MYMY en_USEN
× Contact Us