- 买家在3.2.2012与发展商签署买卖协议，协议中的其中一项条款是发展商须在买卖协议签订之日起 36 个月内(2.2.2015)交空屋(Delivery of Vacant Possession)。如果发展商延迟交空屋，则其必须从 2.2.2015起赔偿买家购买价的10% 为赔偿金。
- 发展商在26.8.2020通知买家将在2020年9月交空屋。买家表示发展商已延迟一共2047天，因此通过法庭申请即使判决/summary judgment，向发展商索赔额索赔LAD/违约赔偿金。
- Property: RM1,668,800 x 10% x 2047/365 days = RM935,899.61
- Common Property: RM333,760 x 10% x 2047/365 days = RM187,179.92
- 即使判决/summary judgment是指当当事人对案件中的主要事实不存在真正的争议或案件仅涉及法律问题时，法官可以不经开庭审理而直接对案件作出有拘束力的判决。然而申请人必须遵守2012法院条规的多项要求，否则将导致此申请被驳回。比如被告可以通过提出其他必须进行审讯的理由，来驳回原告的申请。
- 该产业的实际购买价格：产业实际价格应该是SPA里的购买价格(RM1,668,800.00)，还是已回扣的价钱(RM1,501,920.00 )。发展商认为产业的实际购买价格，应该为RM1,501,920.00。
- 延迟交空屋的实际天数：发展商表示根据冠病临时法案第35条文，在18-03-2020 31-08 2020期间的迟交房屋赔偿金是需要被豁免的。
- 原告是否有权对被告提起此诉讼：…where a property purchaser has executed an absolute assignment in favour of a bank as security for a loan, the property purchaser does not have the locus standi and is not competent to commence the action against the developer. Nouvou Mont Dor (M) Sdn Bhd v Faber Development Sdn Bhd  2 MLJ 268
- 法庭表示由于发展商成功提出几项需要进行审讯的理由，法庭因此驳回买家即使判决/summary judgment的申请。法庭表示无法在未经审判下就买家对发展商的的索赔作出判决。
- This is the Plaintiffs’ application against the Defendant for a summary judgment under Order 14 of the Rules of Court 2012 (“ROC”) for:
(i) the sum of RM935,899.61 being the liquidated and ascertained damages (“LAD”) for late delivery of vacant possession of a property known as “Parcel NO. P08-057” with accessory parcel no. ACP08-057 in the project known as “Empire Residence” held under Hakmilik No. H.S.(D) 267032, PT 48042, Mukim Sungai Buloh, Daerah Petaling, Negeri Selangor (the “Property”), and
(ii) the sum of RM187.179.92 being the LAD for late delivery of the vacant possession of the common property at Empire Residence.
- The Plaintiffs had entered into a sale and purchase agreement on 3.2.2012 with the Defendant for the purchase of the Property for the purchase price of RM1,668,800.00 (“SPA”). It is a term of the SPA that the Defendant is to deliver vacant possession of the said Property and the common property within 36 months from the date of the SPA i.e. by 2.2015.
- The SPA states that:
(i) if the Defendant delivers vacant possession of the Property late, it has to pay the Plaintiffs LAD at the rate of 10% per annum on the purchase price from 2.2.2015 until the date of delivery of vacant possession; and
(ii) if the Defendant delivers vacant possession of the common property late, it has to pay the Plaintiffs LAD at the rate of 10% on the final 20% of the purchase price from 2.2.2015 until the date of delivery of vacant possession.
- The Defendant in a letter dated 26.8.2020 informed the Plaintiffs that the Property was ready for delivery (“Notice of Delivery of Vacant Possession”). Pursuant to the terms of the SPA, vacant possession of the Property and the common property took place 14 days after the said Notice of Delivery of Vacant Possession i.e. on 9.2020.
- It is the Plaintiffs’ case that the Defendant has delayed delivery of the vacant possession of the Property and the common property by 2047 days. For this reason, the Plaintiffs claim that they are entitled to LAD as calculated below for both the Property and common property:
Property: RM1,668,800 x 10% x 2047/365 days = RM935,899.61
Common Property: RM333,760 x 10% x 2047/365 days = RM187,179.92
- The Plaintiffs contend that the Defendant does not have any defence or any issues to be tried in respect of the their claim for LAD for the late delivery of vacant possession for the Property and the common property, and for this reason summary judgment should be entered for their claim against the Defendant.
Defendant’s Defence and Issues to be Tried
- The Defendant raised a few issues to be tried in respect of the Plaintiffs’ claim for summary judgment, namely:
(i) Actual purchase price of the Property;
(ii) Number of days of delay of delivery of vacant possession; and
(iii) Whether the Plaintiffs have locus to bring this action against the Defendant.
(i) Actual purchase price of the Property
- The first issue raised by the Defendant is what is the purchase price that the LAD be computed on: whether it should be RM1,668,800.00, which is the purchase price in the SPA (“SPA purchase price”), or should it be RM1,501,920.00, which is the actual purchase price paid by the Plaintiffs i.e., the SPA purchase price less the rebate given to the Plaintiffs (“the actual purchase price”).
- The Defendant contends the LAD should be calculated based on the actual purchase price paid by the Plaintiffs for the Property of RM1,501,920.00 since the Plaintiffs were given a rebate of RM166,880.00 from the SPA purchase price.
(ii) Number of days of Delay of Delivery of Vacant Possession
- The second issue raised by the Defendant is whether Section 35 of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid -19) Act 2020 (the “Covid-19 Act”) applies for the computation of the LAD for late delivery of vacant possession of the Property and Common Property. If the answer is in the affirmative, the period between 03.2020 to 31.08.2020 shall be excluded from the computation of the LAD.
- Section 35 of the Covid-19 Act states:
“35. Delivery of vacant possession and liquidated damages
(1) Notwithstanding any agreement entered into between the purchaser and the developer, the period from 18 March 2020 to 31 August 2020 shall be excluded from the calculation of-
(a) the time for delivery of vacant possession of a housing accommodation; and
(b) the liquidated damages for the failure of the developer to deliver vacant possession of a housing accommodation.
(2) The developer may apply to the Minister for an extension of the period referred to in subsection (1).
(3) Upon considering the application under subsection (2), the Minister may, if the Minister is satisfied that additional time is required by the developer to deliver vacant possession, by written direction grant to the developer an extension period of up to 31 December 2020 to deliver vacant possession and such extension shall have the same effect as the period excluded in subsection (1).
(4) Notwithstanding any agreement entered into between the purchaser and the developer, if the purchaser is unable to enter into possession of occupation of a housing accommodation from the date of service of a notice to take vacant possession from the developer during the period from 18 March 2020 to 31 August 2020 or any extension period granted under subsection (3), the purchaser shall not be deemed to have taken such vacant possession.”
- The Defendant contends that if the Covid-19 Act is applicable, 166 days should not be computed in the calculation to the LAD under the SPA.
- The next issue raised by the Defendant as regards the period of delay is that the Ministry of Urban Wellbeing, Housing and Local Government (the “Housing Ministry”) had, on 11.08.2014, given the Defendant an extension of 6 months to deliver vacant possession of the Property and common property subject to the conditions stipulated in the letter of extension. One of the conditions for the extension is that the Defendant must enter into a supplementary agreement with the Plaintiffs (“Supplementary Agreement”). The Defendant says that despite its repeated attempts to get the Plaintiffs to enter into the Supplementary Agreement, the Plaintiffs refused to do so.
- Because of the Plaintiffs’ refusal to sign the Supplementary Agreement, the Defendant raises the issue of whether there was a valid extension of time by the Housing Ministry. The Defendant argues that the Plaintiffs is not entitled to refuse to execute the Supplemental Agreement and that their refusal does not affect the validity of the extension granted by the Housing Ministry.
- The Defendant raises the issue of what is the correct computation of the LAD for late delivery of vacant possession given the extension of time given by the Housing Ministry and the Covid-19 Act.
(iii) Does Plaintiff have locus standi to bring this action?
- The third issue raised by the Defendant is whether the Plaintiffs have the necessary locus standi to commence and maintain the action against the Defendant given that they have irrevocably and unconditionally assigned their benefits, rights, title and interest in and to the SPA and in the Property to United Overseas Bank (Malaysia) Bhd (the “Bank”) pursuant to a Loan Agreement Cum Assignment dated 27.04.2012 between the Bank and the Plaintiffs (the “LACA”).
- The Defendant argues that the proper party to commence this present action is the Bank and not the Plaintiff. Section 4(3) of the Civil Law Act 1956 states:
“(3) Any absolute assignment, by writing, under the hand of the assignor, not purporting to be by way of charge only, ………shall be, and be deemed to have been, effectual in law, ……….. to pass and transfer the legal right to the debt or chose in action, from the date of the notice, and all legal and other remedies for the same, ……….”
- The Federal Court in Nouvou Mont Dor (M) Sdn Bhd v Faber Development Sdn Bhd  2 MLJ 268 held that where a property purchaser has executed an absolute assignment in favour of a bank as security for a loan, the property purchaser does not have the locus standi and is not competent to commence the action against the developer. The Court also held that whether or not an assignment is an absolute on (not purporting to be by way of charge only) is to be gathered from the four corners of the assignment.
- Alternatively, the Defendant argues that the Plaintiffs should have obtained a reassignment from the Bank prior to commencing this writ action against the Defendant. The Court of Appeal in Araprop Development Sdn Bhd v Leong Chee Kong & Anor  1 MLJ 783, recognised that a “Deed of Conditional and Partial Reassignment” executed by the assignee bank before the commencement of the action against the developer in that case was sufficient to clothe the purchase with the locus standi to sue the developer. Abdul Malik Ishak J in Chan Min Swee v Melawangi Sdn Bhd  7 MLJ 111, held that if the assignment to the bank is an absolute assignment, the plaintiff must be the bank; and even where the assignment was not absolute, the bank must be a party to the action.
Analysis and Findings of this Court
- The law on summary judgment is trite. If the defendant has a defence to the Plaintiff’s claim or raises even a single bona fide issue to be tried by affidavit or otherwise, a Court does not have the discretion to enter judgment summarily for the plaintiff’s claim against the defendant. See Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors  1 MLJ 400; SC; Noh Hyoung Seok v Perwira Affin Bank Bhd  2 MLJ 203; CA.
- The Plaintiffs’ claim against the Defendant is for LAD for late delivery of vacant possession of the Property and the common property. The amount of the LAD is calculated based on a percentage of the purchase price and the number of days of delay in the delivery of the vacant possession.
- The Defendant has raised two issues that goes to the crux of the calculation of the amount of LAD claimed by the Plaintiff, namely:
(a) the purchase price of the Property: whether the percentage is based on the purchase price stated in the SPA or the actual purchase price paid by the Plaintiffs for the Property taking into account the 10% rebate of SPA purchase price given by the Defendant to the Plaintiffs; and
(b) the number of the days of delay: whether the number of days of delay in delivering vacant possession are as pleaded by the Plaintiffs; or are the number of days of delay less after taking into account:
(i) the 6 months extension given by the Housing Ministry; and
(ii) section 35 of the Covid-19 Act, which expressly provides that the period from 18 March 2020 to 31 August 2020 shall be excluded from the calculation of the time for delivery of vacant possession of a housing accommodation and the LAD for any delay in delivery of vacant possession.
- Another bona fide issue raised by the Defendant is whether the Plaintiffs have locus standi to bring this writ action against the Defendant given that they have absolutely assigned their rights and interests under the SPA to the Bank pursuant to the LACA. In the absence of a reassignment by the Bank to the Plaintiffs in this case, the issue is whether it is the Bank, and not the Plaintiffs, that should have brought this writ action against the Defendant. D. Decision
- By reason of the bona fide triable issues raised by the Defendant, this Court may not enter judgment summarily without a trial in respect of the Plaintiffs’ claim against the Defendant.
- Accordingly, the Plaintiffs’ application for summary judgment is dismissed.
Source: Chin Hong Lip & Anor v Mammoth Empire Land Sdn Bhd  MLJU 1276. Shah Alam High Court. Faizah Jamaludin J.
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