Please do not mislead the others by your personal opinion, any form of brochure, advertisement are deemed to be fulfil by the developer, refer to the case study below;
Brochure is considered as one of the form of advertisement as defined in Section 2 of the HDR:
“Advertisement” means any notification or intimation of housing development —
(a) published in any newspaper, journal or magazine, or in the form of a brochure or in any other form; or
(b) displayed on any hoarding, boarding, roof, wall, piling, fence, frame, signboard, plate, cloth, bar, pillar, post, wire-casting or other erection, structure or contrivance; or
© conveyed by means of films or communications; or
(d) conveyed by other means oral or written and whether of the same kind or not as set out in paragraphs (a) to ©.
HDR does not only control the types of advertisements but also the contents of such advertisements. It is statutorily mandatory for particulars stated in Regulation 6 of the HDR to be inserted in any advertisement (other than those conveyed by means of broadcast sound receivers or through television receivers) made by any licensed housing developer.
Further, under Regulation 5 of the HDR, any advertisement and sale material that is used to make the sale must first be submitted in its final content and form -including all disclaimers- for approval by the Controller. Should there be any changes or deviations from the first proposed materials, these should be approved by the Controller as well, or they would be deemed invalid.
JUDICIAL ATTITUDE
In the case of Lim Sew Lan v Pembangunan Hysham Sdn Bhd & Anor [1999] 4 CLJ 701, the court held that the plaintiff had been induced to enter into the agreement by the defendants’ representations contained in its sales brochure. Where a statement is represented in such a way as to represent a fact which induces the representee to enter into a contract, then such statement intends to have contractual force and is thus a contractual term.
In the case of Cheong Bee Yong v Mbf Finance Bhd & Anor [2001] 5 MLJ 396, the second defendant, MBf Property Services Sdn Bhd, was managing certain property developers, which included Kabra Holdings Sdn Bhd. The latter was the developer of Ampang Hilir Condominium. The plaintiff purchased a unit of the condominuim from Kabra Holdings Sdn Bhd on the basis of an attractive offer advertised by the second defendant in a brochure. The brochure stated that no loan interests need to be paid until the issuance of the certificate of fitness. As no certificate of fitness of occupation (‘CF’) had been issued by the relevant authorities, the plaintiff sought a declaration that he need not pay back any loan interests to the first defendant until the CF has been issued.
The Court in granting the application with costs borne by the first defendant said that in the circumstances it would be grossly unethical and certainly most unfair for the first defendant to ask the plaintiff to pay whatever interest accruing to the first defendant before the CF is issued, because such expenses would have to be borne by the developer, as had been unequivocally stated by their manager, the second defendant, in the brochure. The way the brochure was worded, it must be regarded as an undertaking to pay whatever expenses that arose before the issuance of the CF and the plaintiff had acted by purchasing a unit on the strength of such undertaking.
The above case referred to the case decided by Gopal Sri Ram JCA in the case of MBF Property Services & Anor v Balasubramaniam a/l K Arumugam [2000] 2 MLJ 267, in which the judge in this case look at the similarities of the facts.
“The three documents; the sale and purchase agreement the agreement with the first appellant and the loan agreement with the second appellant, must be read together as they form part of the same transaction …
When the three documents are read as a whole, their effect is this. In the first place, the respondent shall purchase the property from the developer at a specified price and terms provided under the sale and purchase agreement. Thereafter, the first appellant shall keep the respondent indemnified and harmless in respect of any monetary payments due to the second appellant until the certificate of fitness of occupation is issued. Secondly, the second appellant will lend money to the respondent to pay for the purchase upon the mutual covenants contained in its letter of offer subject to the condition that the interest will be paid by the first appellant during the relevant period.”
The court further emphasis that the promotional materials are not trivial promotional materials, but are a solemn effort to convey a distinct mental image to the prospective buyer to persuade him to make not any mere booking but a commitment to purchase by payment of a non-refundable deposit in Ammer Ali Mohamad Yussof & Anor v Sunrise Bhd [2008] 1 LNS and whatever date that is mentioned in the brochure and all other promotional materials will prevailover date in the Sale and Purchase Agreement as held in Faber Union Sdn Bhd v Tribunal Tuntutan Pembeli Rumah [2011] 7 CLJ 37.
In the latest case of Malaysia Land Properties Sdn Bhd v Waldrof & Windsor Joint Management Body [2014] 3 MLJ 467 the court held that the appellant was bound by the sales brochure read together with the sale and purchase agreement. The law is to uphold what had been originally planned and approved namely, that the disputed area is common property. Once the purchasers had been given vacant possession of their respective parcels the performance of the sale and purchase agreements was complete. The appellant cannot be seen to be allowed to have any reservation of rights to be exercised ‘from time to time’ subsequently for its own benefit. In other words, the Developer has to honour the information contained in its brochure.
Wow thanks..i learn something new today...i always thought SPA is the only agreement we can refer back 2
Nov 26 2017, 10:22 PM
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