Case:

Brief Facts:

• The appellant, Ms Christhanthini, was the purchaser of a service suite unit developed by the respondent.
  
  
• The respondent, View Esteem Sdn Bhd, is a property developer of the development known as Regalia (herein after referred to as ‘the Developer’).
  
  
• On 26 October 2010, Ms Christhanthini and the Developer had entered into a sale and purchase agreement (‘SPA’), whereby the SPA is in the statutory form as provided in Schedule H of the Housing Development (Control and Licensing) Act 1966 (‘the HDA 1966’) and the Housing Development (Control and Licensing) Regulations 1989 (‘the Regulations’).
  
  
• When the unit was completed and Ms Christhanthini collected the key on 24.10.2012, many defects were found and the Developer retained a set of keys to carry out rectification work.
  
  
• On 2.5.2013, the Developer returned the keys it retained, but the defects were not rectified and fresh damage was caused.
  
  
• Subsequently, new defects were apparent and notified to the Developer by various defect lists and by two letters.
  
  
• With no action being taken by the Developer, this suit was filed on 23.9.2016 to claim, inter alia, damages for breach of contract arising from the defects and additional damage to the unit.
  
  
• The Developer contended that the defect liability period clause (i.e. clause 29) operated as a bar to Ms Christhanthini’s claim because Ms Christhanthini had earlier invoked the clause and is hence obliged to comply with the steps outlined in the aforesaid clause.
  
  
• Hence, the Developer submitted that Ms Christhanthini’s claim was premature as it failed to satisfy the condition precedent in the defect liability period clause.

THE DECISION OF HIGH COURT

• The High Court dismissed Ms Christhanthini’s claim.
  
  
• As there are no grounds of judgment prepared by the High Court Judge (‘HCJ’) before the HCJ retired, the reasoning of the HCJ in dismissing the claim is unknown.

THE DECISION OF COURT OF APPEAL – APPEAL ALLOWED

• The Court of Appeal allowed Ms Christhanthini’s appeal and awarded damages for failure to rectify defects and additional damage caused.
  
  
• A careful consideration of the defect liability period clause under the statutory SPA would show that it is not intended to bar a purchaser from asserting the common law rights to claim for damages under the SPA.
  
  
• There is no provision embedded in the defect liability clause to bar the purchaser from looking to common law for relief, even when the purchaser had initially invoked the operation of the clause.
  
  
• This is especially so when the rectification work was not to Ms Christhanthini’s satisfaction, despite Ms Christhanthini’s various notices to the Developer to rectify the defects.
  
  
• As the HDA 1966 and its Regulations are social legislations, the clause in question could not be construed and applied against the house buyers given that its clear intention was to be an additional protection and could not possibly limit the rights of house buyers under common law.