Case:

Brief Facts:

• The purchaser (Chrishanthini) and the developer (View Esteem Sdn Bhd) entered into a Sale and Purchase Agreement (“SPA“).
  
  
• After taking possession of the unit in dispute, the Chrishanthini discovered numerous defects and duly informed the View Esteem.
  
  
• View Esteem failed to rectify the defects even after two years had passed. Chrishanthini sued for, among other things, rectification of defects and general damages for stress and anxiety.
  
  
• View Esteem contended that clause 29 of the SPA provided a contractual remedy for the purchaser within a 24-months defects liability period.
  
  
• View Esteem argued that, having failed to comply with certain conditions of the SPA clause, including the requirement to give 14 days’ notice to View Esteem to allow them a further opportunity to rectify the defects, Chrishanthini’s claim should not be allowed and Chrishanthini’s claim should be considered as a premature claim.
  
  
• View Esteem relied on principles of contractual interpretation where express words in a contract (SPA) should be given their natural and ordinary meaning.
  
  
• In contrast, Chrishanthini contended that clause 29 of the SPA could not be interpreted to limit or bar her rights to pursue a claim under common law against View Esteem.

THE DECISION OF HIGH COURT

• The whole claim was dismissed.
  
  
• Aggrieved with the decision, Chrishanthini appealed to the Court of Appeal.

THE DECISION OF COURT OF APPEAL

• The Court of Appeal held that home buyers can seek to recover costs of rectification of defects and general damages under common law notwithstanding the co-existence of a prescribed contractual remedy under the SPA.
  
  
• This would mean that unless otherwise expressly stated, the existence of SPA between the purchaser and developer does not act as a bar to prevent any claim by the purchaser under common law.
  
  
• The Court of Appeal held that a purchaser retains the common law right to sue the developer for damages in respect of any defects discovered during the defect liability period, in addition to its contractual right to demand that the developer remedies the said defects.
  
  
• The purchaser in the present case was awarded the following damages :-

1. Cost of Rectification – RM127,000.00;
2. Cost of Accommodation for the period of rectification – RM9,720.00; and
3. General damages for stress and anxiety – RM50,000.00.