[quote=rmyk88,Jun 9 2017, 12:31 AM]
ATTENTION: SENTRAL RESIDENCE DIRECT OWNER

My client is looking for few small units to rent,
Prefer: one bedroom type & NOT FULLY furnished

NO RESTRAINTS ON HOMEBUYERS’ RIGHTFUL CLAIM FOR LAD!

INTRODUCTION

On 19.04.2021, the High Court vide two Judgments delivered by Quay Chew Soon JC in Leong Keng Chiang v Prema Bonanza Sdn Bhd [Suit No. WA-22NCvC-460-08/2020] and Lam Su See v Prema Bonanza Sdn Bhd [Suit No. WA-22NCvC-418-07/2020] (collectively referred to as “Prema Bonanza”) held as follows:


(a) That the completion period in a Sale and Purchase Agreement (“SPA”) pursuant to Schedule H of the Housing Development (Control and Licensing) Regulations 1989 (“HDR”) cannot be modified and varied.


(b) That the Federal Court decision in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals [2020] 1 CLJ 162 (“Ang Ming Lee”) has declared extensions of time pursuant to Sub-regulation 11(3) of the HDR, as illegal and void ab initio.


© That a homebuyer is not estopped from claiming Liquidated Ascertained Damages (“LAD”) even if that homebuyer has executed LAD waiver / settlement letters. As the SPA is a statutory contract, estoppel cannot operate against statutory provisions. A homebuyer is entitled to claim for his full LAD amount based on the 36 months completion period as provided by Schedule H of the HDR. Any settlement / waiver that takes away statutory rights of the homebuyer is of no legal effect. The law on waiver and estoppel cannot operate against the HDA.


(d) That the Housing Development (Control and Licensing) Act 1966 (“HDA”) and HDR are social legislations, therefore any unjust enrichment or waiver or estoppel cannot be relied upon to prevent a homebuyer from claiming what he is statutorily entitled to claim under Schedule H of the HDR.


(e) That the High Court is bound by the decision of Ang Ming Lee and the High Court added that it was in full agreement with Ang Ming Lee and did not hesitate to follow the same. Ang Ming Lee has retrospective effect and homebuyers can rely on the same to claim for LAD.



BRIEF FACTS OF PREMA BONANZA

The Plaintiffs in Prema Bonanza executed SPAs with the Defendant on 09.07.2012 for the purchase of condominium units in a housing development project known as Sentral Residences. The SPA was pursuant to Schedule H of the HDR.


The Defendant had obtained an extension of time (“EOT”) pursuant to Sub-regulation 11(3) of the HDR to modify the completion period of the SPA from 36 months to 54 months. The EOT was obtained on 16.12.2010, before the date of the SPA. The SPA reflected the 54 months completion period.


The Plaintiffs argued that the EOT was void, relying on the decision of Ang Ming Lee.


The Defendant argued, amongst others, as follows:


(a) That the Plaintiffs had knowledge and consented to the EOT;


(b) That the Plaintiffs are estopped from filing this claim as they had accepted LAD settlements sums vide LAD waiver and / or settlement letters;


© That the Plaintiffs are attempting to unjustly enrich themselves.



DECISION OF THE COURT

In relation to the completion period, the High Court stated that as the SPA is regulated by statute, the Defendant cannot deviate or add or vary any of the terms in the SPA. Reference was made to the Federal Court decision of Ang Ming Lee.


Any inconsistency or contradiction of the terms in the SPA that deviates from Schedule H of the HDR is of no legal purport and does not bind a homebuyer. As such, the Defendant was required to deliver vacant possession of the condominium units within 36 months in accordance to law (Schedule H of the HDR).


Any EOT is granted vide Sub-regulation 11(3) of the HDR and as the Federal Court in Ang Ming Lee declared Sub-regulation 11(3) of the HDR ultra vires the HDA, it must follow that EOTs are null and void.


The Defendant’s argument that the Plaintiffs had consented to the EOT when they executed the SPA was not accepted. The High Court held that it does not make a difference if the EOT was granted before or after the execution of the SPA or that the Plaintiffs ought to have knowledge of the EOT as nobody can consent or waive illegality.


The Defendant’s argument that the Plaintiffs had waived their rights to claim for LAD by reason of accepting settlement sums was also not accepted. The High Court stated that the Plaintiffs should not be deprived of his statutory entitlement to the full LAD amount under the law as the SPA is a statutory contract.


The LAD waiver / settlement letters were calculated based on the 54-month period. This was in violation of Schedule H of the HDR which provides for the formula for calculation based on the prescribed timeline of 36 months.


As such, any purported settlement that takes away the rights of the homebuyers is of no legal purport. A housing Developer cannot rely on such waiver or estoppel to preclude a house buyer from asserting the full extent of his rights as provided under the HDA and HDR. There can be no estoppel against statute. The law on waiver and estoppel cannot operate against the HDA.


The Defendant’s argument that the Plaintiffs are attempting to enrich themselves by claiming for an additional 18 months of LAD having accepted the LAD sums and executing the LAD waiver / settlement letters was not accepted. The HDA and HDR are social legislations. Unjust enrichment or waiver or estoppel cannot be relied upon to prevent a homebuyer from claiming what he is statutorily entitled to claim under Schedule H of the HDR.


The High Court also noted that it was bound by the Federal Court decision of Ang Ming Lee and that Ang Ming Lee had retrospective effect. The High Court referred to the Court of Appeal decision in Abdillah Bin Labo Khan v Public Prosecutor [2002] 3 MLJ 298 wherein it is a fundamental principle that all judgments of a court are retrospective in effect.



CONCLUSION

The major takeaway from the decision of Prema Bonanza is that the Courts are “courts of law and not court of morals”. The Defendant in Prema Bonanza described the Plaintiffs as opportunists. The High Court did not view the Plaintiffs conduct as greedy or mercenary.


If a homebuyer is correct in his contention of the law, he is entitled to succeed. The High Court in Prema Bonanza awarded LAD to the Plaintiffs.


As our title suggests, it seems to flow that since the decision of the Federal Court in Ang Ming Lee, there are no restraints for a rightful LAD claim for homebuyers.



EPILOUGE

If you realize that your SPA does not conform to the statutory 36-month completion period, feel free to use Lui & Bhullar’s LAD calculator at https://www.luibhullar.com/ladcalculator


The LAD calculator will assist you in calculating your rightful LAD claim.


Alternatively, do get in touch with us at admin@luibhullar.com for any queries regarding this Write-Up.


https://www.luibhullar.com/post/no-restrain...l-claim-for-lad

Bringing up old thread, anyone living in this property? Mind to share the pros and cons (apart from convenient public transport)?

Geez what’s happened to the rental market here?

Selling 1200 psf but rental is barely breaking 3k for a 1k sf unit.

I think mostly layout problem, 1k sq.ft only have 1+1 bedroom lehh, rental sure low lohh

But but this is super premium with a private lift, marble tiles and maybe a happy ending.

Makes sense. But the bigger units should be doing better right.

All those marble floor, private lift only syiok when you purchase. After VP not much market for such products.

Private lift area is around 100 sqft so you pay 120k for that entrance experience.

Yea number of rooms do matter nowadays or rather efficient layouts.

Court orders firm to pay 122 house buyers for misrepresentation

The High Court here today allowed the legal action taken by 122 house buyers at a development in Cyberjaya against the construction company, Wawasan Rajawali Sdn Bhd.

Lawyer V. Rajadevan, who is representing 122 buyers said Judge Datuk Akhtar Tahir allowed the suit after agreeing with the house buyers' contention that Wawasan Rajawali as the defendant had misrepresented in the brochures to the house buyers that the project is a mixed development comprising residences, hotel, shopping mall and central park described as 'Your World In One Place' but was not delivered to the house buyers.

The lawyer said, Wawasan Rajawali, a wholly owned subsidiary of OSK Property Holdings Sdn Bhd, was ordered to pay RM50,000 to each house buyer for the misrepresentation.

"The judge also ordered damages for late delivery amounting to RM1,351,797 for affected house buyers. Aggravated damages of RM2 million were also awarded to the house buyers. Wawasan Rajawali was also ordered to rectify the defects in the affected properties within three months from today," Rajadevan said when contacted.

Today's decisions were conducted via online proceedings after a full trial which saw four plaintiff witnesses and four defence witnesses testifying during the trial.

All the individuals, as the plaintiffs, filed the suit in May 2019, claiming Wawasan Rajawali had offered a mixed development project that included serviced apartments/condominiums in Cyberjaya through brochures distributed to house buyers.

The house buyers' contention was that Wawasan Rajawali as the defendant had misrepresented in the brochures to the house buyers that the project is a mixed development comprising residences, hotel, shopping mall and central park described as 'Your World In One Place' but was not delivered to the house buyers.

Upon completion of their apartment/condominium units and the keys to their vacant units handed over by the developer, there was no hotel or commercial development as claimed in the brochures.

The plaintiffs in their claim said the developer had not fulfilled the promises made in the brochures given to them before they bought the units.

www.freemalaysiatoday.com/category/nation/2022/11/03/court-orders-firm-to-pay-122-house-buyers-for-misrepresentation/

Why you post this? What does it have to do with this condo

stayed there before. love it. the layout could be better but no complain....

still syiok to me...


the private lift and entrance gives it a really nice touch...



i have been to many condos, tell me which condo can compete with this....in terms of quality, design, facilities, and location. price also not too bad.

When people comment like this, it usually means they’ve already made the purchase and are looking for affirmation or have some kind of vested interest. Asking me to name random crap for you means you haven’t done the research. Congratulations on your purchase or sale for that matter.

People can see right through your words you know. There are so many “luxuriously built” condos around that the primary differentiator becomes location and price.

Not sure what you mean here. I don't own a unit here and I still can't find one that is good in terms of price and location.

Hence me asking which other condo is comparable to this condo.

You can name me st. Regis or condos at klcc. But they don't win in terms of price and location.

Again. If you do. Pls recommend me. I'd really like to have a look.

And at the current market, it's better to rent than paying 5.5k a mth.

You didn’t provide context so of course it comes across as “this is the best I’ve seen so it must be the best.” 1k psf gives many options - it just depends what is important to each individual.

yeah, i consider not having a car at all, and transportation hub, and condo itself is good. and freehold.

titiwangsa is another choice... but the freehold one is old, and the leasehold one is in bad quality.

bukit bintang and chulan is noisy, transportation wise not the best.

putting that into consideration, not many options at all.

hope you see it from my perspective. thanks.