Four EkoCheras house buyers lose bid for extra late damages

The Court of Appeal has overturned a High Court’s decision that allowed four EkoCheras homebuyers to claim additional liquidated ascertained damages (LAD) for the late delivery of vacant possession.

A three-member bench comprising judges Azizul Azmi Adnan, Ong Chee Kwan and Nadzarin Wok Nordin yesterday allowed the appeals by Ekovest Capital Sdn Bhd, formerly known as Prompt Capital Sdn Bhd, the developer of the EkoCheras mixed development in Kuala Lumpur.

Delivering the court’s unanimous decision, Ong said settlement letters signed by purchasers constituted “a complete accord and satisfaction” and amounted to full and final discharge of Ekovest’s liability for LAD relating to both the housing units and common facilities.

He said the subsequent claims for additional LAD, including claims based on calculated compensation from the booking fee instead of the sale and purchase agreement, or extending the completion period until the issuance of the full Certificate of Completion and Compliance (CCC), were covered by the settlement reached between the parties.

He said the protection of the purchasers under the Housing Development Act (HDA) was not directed by the settlement letters, adding that the purpose of the settlement letters is merely to compromise accrued rights under the HDA, and that the purchaser is at liberty to settle the matter.

The court ordered the homebuyers to pay a total of RM60,000 in costs.

The four homebuyers - Tan Tiong Hwa, Lim Swee Pei, Chong Sew May and Chong Chee Sien - had sought additional LAD arising from Ekovest’s late delivery of their units and common facilities.

No further claims

Both the Sessions Court and High Court had previously ruled in favour of the homebuyers, holding that they were entitled to claim additional LAD.

The homebuyers claimed that among the terms of the Sale and Purchase Agreements (SPA) was a provision that vacant possession would be delivered upon the expiry of 48 calendar months, as Ekovest had obtained an extension of time on Oct 18, 2013, before the parties executed their respective SPA.

They claimed Ekovest extended the period for the delivery of vacant possession and the completion of the common facilities from 36 months to 48 months by incorporating such a provision into the SPA, instead of adhering to the original period prescribed under the Housing Development (Control and Licensing) Regulations 1989.

They contended that LAD should be calculated from the dates they paid their booking deposits.

Ekovest, however, argued that the purchasers had voluntarily accepted the settlement payments as full and final settlement of their claims, thereby preventing any further claim for LAD.

At the Court of Appeal proceeding, lawyers Shamesh Jeevaretnam and Dashprit Kaur represented Ekovest, while lawyers Cecilia Tan Shee Shia and Fatin Izyan Fadzil represented the house buyers.

- Bernama

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