SHAH ALAM (Oct 25): The High Court on Thursday has dismissed a claim made by 48 house buyers of Serene Heights in Bangi, Selangor, who are claiming liquidated agreed damages (LAD) from housing developer Symphony Hills Sdn Bhd, following the late delivery of vacant possession of the project by 177 to 668 days.

Symphony Hills is a subsidiary of UEM Sunrise Bhd (KL:UEMS).

The house buyers signed the sale and purchase agreement (SPA) between Sept 19, 2017, and March 31, 2019, and in the SPA it is stipulated that vacant possession would be delivered within 36 months from the date of the SPA.

They filed the suit in 2021 following a delay in delivery of vacant possession.

Judicial Commissioner (JC) Elaine Yap Chin Gaik dismissed the house buyers’ claim after accepting the defence by the developer, following this year’s landmark Federal Court decision in the Obata-Ambak Holdings Sdn Bhd case — that the extension of time (EOT) is declared void without the minister’s approval has to be applied prospectively after the Ang Ming Lee Federal Court case in 2019, and not retrospectively.

In Ang Ming Lee, the apex court, in Chief Justice Tun Tengku Maimun Tuan Mat’s decision in November 2019, ruled that the minister must sign the EOT, and this power cannot be delegated to the controller of housing as done before this.

And as in Ang Ming Lee, the Federal Court determined that for Obata-Ambak, too, the EOT is to be applied prospectively and not retrospectively, to curb house buyers from claiming LAD for unjust enrichment.

Yap ruled that the EOT granted by the Ministry of Housing and Local Government Controller prior to Ang Ming Lee was valid.

She said the defendant had applied and was granted a 12-month EOT to deliver vacant possession, via an approval letter dated June 6, 2017 (before Ang Ming Lee).

In addition to the 12-month extension of time, the JC said the developer obtained a further 167 days’ extension from the ministry on Nov 25, 2020, under the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020, and this was not disputed by both sides.

“The defendant delivered vacant possession of the units purchased by the house buyers on Dec 28, 2020, and Sept 24, 2021, within the contractual period of 36 months from the date of the SPA, as further extended due to Covid-19,” Yap added.

The court said EOTs granted by the Housing Controller before Ang Ming Lee are not ultra vires (beyond the powers) of Housing Development Act (HDA), as in this case, it was granted before Ang Ming Lee/Obata-Ambak, as extensions granted by the Housing Controller before Ang Ming Lee are not ultra vires the HDA.

“The EOT in this case was granted before Ang Ming Lee, in accordance with the prevailing law at the time. Based on the clarification in Obata-Ambak, the answer to the EOT of 12 months approved by the Housing Controller on June 13, 2017, is deemed lawful,” Yap said.

Accordingly, Yap said the developer is covered in the full defence of the suit filed by the house buyers for LAD, and she dismissed the suit by the house buyers.

She also ordered the house buyers to pay costs of RM42,000 to Symphony Hills.

The developer was represented by Leonard Yeoh, who appeared with Caleb Sio and Chen Moi Yan from Messrs Tay & Partners, while the house buyers were represented by Nashitoh Kassim with Aishah Mat Nor, from Messrs Nashitoh Kassim & Associates.

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