Chan Yew Mun v Faber Union Sdn Bhd [2015] MLJU 274, HC

 The defendant is the developer of a housing development project. By a Sale and Purchase
Agreement, the defendant sold a housing unit to the plaintiffs who are husband and wife.
 On 16.1.2013, the plaintiffs took vacant possession of the Property and discovered that
the length of the car porch was shorter than that reflected in the SPA. The plaintiffs then
verbally complained about this shortage to the defendant's staff.
 Subsequently, on 20.6.2013, the plaintiffs submitted a defect list form to the defendant to
raise complaints about defects to the Property, including the length of the car porch. The
plaintiffs engaged an architect to advise whether the car porch could be extended. At the
same time the plaintiffs proceeded to carry out renovation works on the Property.
 In response to the plaintiffs' complaints, on 5.7.2013, the defendant wrote to the plaintiffs
stating that the shortening of the length of the car porch had been agreed to by the
plaintiffs and that this agreement to amend is evidenced by the plaintiffs having signed on
the amended Floor Plan given to the plaintiffs on 24.3.2011, during the course of
construction of the Property.
 On 25.10.2013, the plaintiffs wrote to the defendant alleging that the defendant had
breached the SPA and gave notice terminating the SPA as well as seeking damages from
the defendant.
 The plaintiffs called two witnesses, whilst the defendant called one. From the evidence
adduced the Judge found that the defendant had:
o made pre-contractual representations to the plaintiffs as to the length of the car
porch, which was stated to be about 32 feet in length and that the car porch would
accommodate four cars; and
o that the aforesaid representation is also a term of the contract between the parties
as can be seen from the building floor plans in the First Schedule to the SPA,
which by virtue of clause 34 of the SPA are to be construed as part of the
agreement.
 The 1st plaintiff confirms receiving a copy of the Amended Floor Plan and had put down
his initial in the Amended Layout Plan as an acknowledgment of receipt of the aforesaid
 plan and not as giving his consent to any amendment to the Floor Plan; and not least of
all to the shortening of the car porch length.
 The Judge found that the evidence adduced by the defendant does not show that the
plaintiffs had consented to or agreed to the shortened car porch. Clause 13 of the SPA
provides that the defendant shall construct and deliver the Property in accordance to the
plans accepted and approved by the plaintiffs as in the SPA and no changes shall be made
without the prior consent of the plaintiffs in writing. The Court of Appeal in Capping
Corp Ltd & Ors v Aquawalk Sdn Bhd & Ors [2013] 6 MLJ 579 had reaffirmed the
principle that when:

“there is a written agreement, any variation or termination of the same should be also in
written form and in very clear language.”

 The judge found that there is no agreement in writing by the plaintiffs to vary the SPA to
shorten the car porch. The mere initial or signature of the 1st plaintiff on the Amended
Floor Plan, without anything more, cannot be taken as signifying the plaintiffs' consent to
amend the SPA and shorten the length of the car porch.
 There was a clear breach of a fundamental term of the SPA as well as a breach of the pre-
contractual representations of the defendant. The plaintiffs, being the innocent parties to
the breach, had the right of election, then and there, to either terminate the contract or
affirm the contract. [Section 40 of Contracts Act 1950]
 However, the plaintiffs did not elect to terminate the contract upon discovery of the
shortage of the car porch length when vacant possession was delivered on 16.1.2013. To
the contrary, the plaintiffs engaged the services of an architect to carry out renovation
works to the Property and had in fact carried out renovation works to the Property with
the intention of using it as their family home. This to the judge’s mind amounts to
affirmation of the contract by conduct and the plaintiffs have by conduct elected not to
rescind the contract.
 Having made this election, the plaintiffs will no longer be entitled to rescind the contract
on the basis of breach of contract or misrepresentation. The plaintiffs would have to live
with that election and would only be entitled to damages for breach of contract and not
rescission of the contract.
Davie S Vive Kananda v Pegalu Sdn Bhd [2012] MLJU 124, HC

 The Plaintiffs cause of action is based upon the sale and purchase agreement of a
bungalow lot between Plaintiff and Defendant. During the construction of the house,
certain issues raised with regard to the stability of the retaining wall i.e. hairline cracks
and water leakage on the said retaining wall. Plaintiff made complaints to Defendant and
to which the Defendant replied that the defects will not affect the stability of the retaining
wall.
 Issue: whether the retaining wall is structurally unstable?
 At the outset it must be observed that the Plaintiffs case was not based upon a "total
failure of consideration", neither had the Plaintiff contended that the house is not fit for
occupation. Upon the careful perusal of the affidavits, what had been contended by the
Plaintiff was that were defects in the said retaining wall and the Defendant had failed to
rectify the defects. Both parties have appointed their own experts and submitted their
respective reports.
 In assessing the quality of the experts' evidence especially when they are in conflict the
Judge have endeavoured to follow the principles laid down in the following cases:
o Dato'MokhtarHashim v PP; Singapore Finance Ltd. v Lim Kah Ngam (S'pore) Pte
Ltd; Muhammad Jeffrey v PP; Sek Kim Wah v PP.
 The judge able to accept the conclusion of the Defendant’s expert. The wall was
physically completed since March 2003, and until today it has performed as intended as
the earth retaining structure. As rightly pointed out by the Defendant's expert, there is no
sign of any structural or geotechnical distress since completion. Furthermore, the local
authority has issued the certificate of fitness for occupation.
 However, the Judge do not accept the Defendant's submission that as regards to the
Housing Developers Regulations 1989 and clause 23 of the Sales and Purchase
Agreement. The Defendant, relying on the case of Chinaya Ganggaya v Sentul Raya Sdn
Bhd [2008] 3 CLJ 23 submits that the Plaintiff does not have the right to claim any other
remedy other than as is provided by Clause 23 of the said Agreement.
 Rule 12(1)(q) of the Housing (Control and Licensing Of Developers) Rules 1980
which states as follows:
 "Every contract of sale shall be in writing and shall contain within its terms and
conditions provisions to the following effect, namely:
(q) provisions binding on the licensed housing developer that he shall undertake to
remedy any defect, shrinkage or other fault in the housing accommodation erected for
the purchaser which defect, shrinkage or other fault may become apparent within a
period of six calendar months after the date of delivery of vacant possession to the
purchaser by the licensed housing developer;”
 Clause 23 does not take away the Plaintiffs right to sue in respect of such defects. The
Judge’s reason is based upon the case of Raja Lob Sharuddin Raja Ahmad Terzali & Ors
v Sri Seltra Sdn Bhd [2008] 2 CLJ 284 where Azmel Maamor JCA in delivering
judgment said as follows:-
“…Regulation 12(1) further provides that no amendment to any such contract of safe
shall be made except on the ground of hardship or necessity and with the prior approval
of the Controller. In other words, all the provisions in the sale and purchase agreements
are actually statutory requirements which must be strictly complied with. Clause 23, in
particular, is meant to be an additional protection for house buyers, without affecting or
limiting their rights under the common law…But the Act of 1966 and the Rules were
designed to improve and supplement common law remedies and do not expressly or by
implication deprive a litigant of a contractual remedy which is not dealt with under the
Rules…”
 Even though they said retaining wall is fit for its purpose, the Defendant is still liable for
the defects. The Judge thus ordered that the Defendant to rectify within 3 calender
months from the date of this decision the following defects on the retaining wall:-
o Waterproof cement used to give sufficient cover to the hairline cracks;
o The honeycomb wherever it may be found to be repaired by cement mortar or
grouting;
o To cover up the wall to prevent further water leakage.
o Other defects (based upon the correspondence) identified by the parties.
Fong Wan Realty Sdn Bhd v PJ Condominium Sdn Bhd [2009] MLJU 1428, HC