Contract - Whether SPA Only Obliged Developer To Deliver Vacant Possession And Not To Give 'Right Of Occupation' To Buyer Within 24 Months

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

BODCO Engineering and Construction Sdn Bhd v Christopher ak Matthew Mattius & Anor and other applications [2016] 7 MLJ 275

BRIEF FACTS:

The 1st respondent ("Christopher") entered into a sale and purchase agreement ("SPA") with the applicant ("BODCO") to buy a building constructed by BODCO. Under cl 17(1) of the SPA, BODCO contracted to deliver vacant possession of the property to Christopher within 24 months of the date of the SPA. BODCO agreed to pay Christopher pre-estimated liquidated damages ("LAD") computed until the date of completion of the building in case of failure to duly deliver vacant possession. Clause 19(1) of the SPA stipulated that the construction of the building shall be deemed complete when it is certified by BODCO's architects. Going by the 24-month time-frame stipulated in cl 17(1) of the SPA, vacant possession of the building should have been delivered to Christopher on 17 September 2008. The building was, however, only completed on 20 April 2010 as certified by BODCO's architect. In late April 2010, BODCO issued a notice to Christopher to take vacant possession and he was deemed to have done so on 5 May 2010. The certificate of fitness for occupation was only issued by the local authority on 19 October 2012. Christopher subsequently filed a claim with the Tribunal for Housing Purchaser Claims ("the Tribunal") claiming LAD for late delivery of vacant possession. Christopher's claim for the LAD was calculated from the completion date under the SPA until the date vacant possession was delivered to him. The Tribunal, however, granted Christopher LAD calculated from the completion date until the date the certificate of fitness for occupation was issued by the local authority. BODCO filed the instant application for judicial review to quash the Tribunal's decision. BODCO sought a declaration that the LAD should only have been computed from the expiry of the completion date under the...

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