CASE UPDATE: CHIN KOK WOO & ORS v. SKY PARK PROPERTIES SDN BHD [2022] 4 CLJ 716
FACTS:
The Plaintiffs are the purchasers of units in a development area known as Skypark @ Cyberjaya. The purchasers claimed against 3 different defendants as follows:
DECISION OF THE HIGH COURT:
The court decided against the purchasers and struck out all 3 claims filed by them.
Claim against the Architect:
- With respect to the issue of whether CCC is required, the court held that there is no cause of action with respect to the tort of negligence and unlawful interference by the purchasers against the architect for failure to deliver a full CCC.
- The architect is entitled to issue a partial CCC in accordance with its duties under the Street, Drainage and Building Act 1974 (“the Act”) and Selangor Uniform Building By-Laws 1986 (“UUKBS 1986”).
- In any case, the sale and purchase agreement (“SPA”) and Schedule H of Housing Development (Control and Licensing) Regulations 1989 (“HDR”) provide remedies for late delivery actionable by the purchasers against the developers.
Claim against the Developer:
- With respect to the issue of CCC against the developer, it was held that the court must ascertain not merely on the title of the form. The question is whether developer has shown that all requirements of the by-laws 25 to 28 of UUKBS 1986 and clause 26 of the SPA are fulfilled.
- In this case the court found, based on evidence that the developer has shown that the architect has certified the building was built in accordance with the requirements of by-laws of the UUBKS 1986. This is notwithstanding that the title of the form used is Form F1.
- It was also held in this case that vacant possession has been delivered to the purchasers because:
- Joint Management Body has been established pursuant to Section 17 of the Strata Management Act 2015 and endorsed by the Sepang Municipal Council;
- Some purchasers have managed to claim for LAD in the housing tribunal, which is only possible when vacant possession was given to them and not before then.
- The purchasers have admitted to the same.
- With respect to the issue of extension of time (“EOT”) given by the Housing Controller to extend the time period for delivery of vacant possession by the developer, the court held that the extended time frame for delivery (54 months) as provided in the SPA applies to them. The court also gave effect to the settlement agreements entered into earlier by the purchasers with the developer and rejected the LAD claims calculated from the date of the booking fee/ deposit.
Claim against the Landowner:
The court held that there is no complete and valid cause of action against the landowner in this case. No specific remedy was prayed for against the landowner. The obligation to deliver the property within the contractual time frame lie with the developer.
TAKEAWAY:
The title of Form F /CCC is not a straitjacket which a purchaser can hold against an architect or a developer. In other words, the court will look at the substance of the form and not the label attached to it.
Nonetheless, it must be noted that the High Court did acknowledge that a developer is only entitled to deliver vacant possession when a CCC is issued and not when there is a partial completion. Given that, the onus lies with the developer to ensure that all the requirements in the Act, UUKBS 1986 and approved plans are complied with prior to the delivery of vacant possession to the purchasers.
