Contract - Whether Right For Purchasers To Resile From Their Promise Not To Sue And Claim Damages For Late Delivery

Author:Jayadeep Hari & Jamil
Profession:Jayadeep Hari & Jamil
 
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CASE:

Oxbridge Height Sdn Bhd v Abdul Razak Mohd Yusof & Anor [2015] 3 MLRA 59

BRIEF FACTS:

The appellant ("Oxbridge") was a housing developer for a housing project ("the project"). The respondents ("the purchasers") purchased a unit from Oxbridge through a sale and purchase agreement ("SPA") dated 17 April 2006. Clause 23 of the SPA required Oxbridge to deliver vacant possession to purchasers within 24 months from the date of the SPA. Failing to follow Clause 23 would make Oxbridge liable to pay the purchasers liquidated and ascertained damages ("LAD"). Due to the flooding between December 2006 and early 2007, the project suffered financial difficulties and stalled. The project was classified as a "projek lewat" and "projek sakit" by the JPN, which reported that the project suffered delays because Oxbridge faced a force majeure (i.e. the flooding). Oxbridge and the purchasers subsequently entered into a settlement agreement ("SA") dated 10 October 2011. The SA provided that: the vendor (i.e. Oxbridge) has requested for an extension of time to complete the project; the purchasers are to waive the LAD for late delivery until the "New Completion Date" which is 12 months from the date of the SA; and the purchasers can make a claim for LAD if vacant possession could not be delivered by the new completion date. Oxbridge delivered vacant possession of the purchasers' unit well within 12 months from the date of the SA. However, the purchasers filed a claim in the House-buyers Tribunal ("the Tribunal") against Oxbridge for payment of LAD based on the supposed delivery date in the SPA. The Tribunal decided in favour of the purchasers. Oxbridge sued the purchasers for, inter alia, breach of the SA in the High Court but the claim was dismissed. Oxbridge appealed...

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