LIM FANG JOON v MDSA VEDRO DEVELOPMENT SDN BHD

(FORMERLY KNOWN AS FUYUU GROUP SDN BHD)

CaseAnalysis
| [2023] MLJU 376

Lim Fang Joon v MDSA Vedro Development Sdn Bhd (formerly known as
Fuyuu Group Sdn Bhd) [2023] MLJU 376
Malayan Law Journal Unreported

HIGH COURT (MELAKA)

MOHD RADZI ABDUL HAMID J
CIVIL APPEAL NO MA-12BNCVC-10-09 OF 2021
28 February 2023

Ungku Ahmad Hafis bin Ungku Fathil (Chiong & Partners) for the appellant.
Chong Chui May (Chee Siah Lee Kee & Partners) for the respondent.

Mohd Radzi Abdul Hamid J:

GROUNDS OF JUDGMENTMATTER BEFORE THIS COURT

[1]This a decision on an appeal brought by the Plaintiff who was aggrieved by the decision of the Sessions Court in
dismissing his action against the Defendant to rescind 2 Sale and Purchase Agreements dated 16.4.2014 (‘SPAs’)
for the purchase of 2 commercial retail Units known as Units L1-122 and L1-076 (‘Units’) at a new commercial
development known as VEDRO, a repayment of the total purchase price for the 2 Units totaling RM509,000.00 paid
pursuant to the SPAs, a refund of the sum RM30,540 or any other amount to be determined by the Court for Sales
and Services Tax paid by the Plaintiff pursuant to the SPAs and general damages (‘Appeal’).
ISSUES

[2]This Appeal is broadly based on 3 main issues. Firstly, regarding the legal nature of representations made by the
Defendant in its sales promotional materials on the design of the VEDRO’s facade and whether a change in the
facade of the VEDRO development that departed from the facade represented in the promotional materials
amounted to a misrepresentation that entitled the Plaintiff to rescind the SPAs. Secondly whether there were
changes in the specifications of the Units’ walls that amounted to a breach of the SPAs entitling the Plaintiff to
rescind the agreements. Thirdly, whether the Plaintiff is estopped from rescinding the SPAs after having taken
possession of both the Units and accepting rental income under 2 tenancy agreements entered between the
Plaintiff and the Defendant.
BRIEF BACKGROUND FACTS

[3]Essentially the Plaintiff was attracted to the modern glass façade of the commercial building to be constructed by
the Defendant in the VEDRO property development project (‘Development’). VEDRO was located in Melaka
Tengah, Melaka. It was not a disputed fact that VEDRO was located in the Buffer Zone of the Melaka World
Heritage Historical Site.

[4]The glass facade design was displayed in the Development’s promotional and sales brochures. The
Development was touted as an “Avant Garde Water Front Retail Development’ and also described as “Vivid.
Vibrant Vogue”. It was also stated to be “first of its kind with a mark of innovation”, “a stylish gem of modernity” with
a “cutting edge architecture” and “avant garde design” within the vintage township of Bunga Raya, Melaka.
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[5]The Plaintiff claims that when he decided to purchase the Units the Plaintiff had made known to the Defendant’s
sales personnel that the architectural design of the modern glass facade of the Development was a major factor in
his decision. On that basis, according to the Plaintiff, the Defendant’s sales personnel agreed to include in the
columns at item 12 of each of the Sales Form dated 19.10.2013 and 9.11.2013 a remark that ‘full refund on booking
if SPA clauses is not favourable, site plan, building plan, master title and SPA are not read/available’. These
remarks were to reflect the Plaintiff’s wish and the Defendant’s agreement that if there were changes to the façade,
the Plaintiff would have the right to terminate the purchase of the Units.

[6]To further confirm that understanding, it was the Plaintiff’s case that the Defendant then issued a letter dated
4.4.2014 following a discussion held between the Plaintiff and a staff of the Defendant on 27.3.2014. This letter
serves as the crux of the Plaintiff’s claim against the Defendant. The letter was signed by Tan June Teng
Colin@Chen Junting who is a Director of the Defendant. In that letter the Defendant stated that in consideration of
the Plaintiff’s request and execution of the SPAs, the Deed of Mutual Covenants and other documents for the
purchase of the Units and after due consideration and as a gesture of goodwill the Defendant acknowledged and
confirmed that notwithstanding the provision of clause 10.3 of the SPAs, the Plaintiff shall be entitled to terminate
the SPAs and the Defendant shall refund any part of the Purchase Price free of interest in the event any alteration,
amendment or deviation made by the Defendant on the Building Plans, Layout and Floor Plan and/or Specifications
is not acceptable to the Plaintiff. In effect the letter did not obligate the Plaintiff as provided in clause 10.3 of the
SPAs to accept any such alteration, deviation or amendment and to waive any right to make a claim against the
Defendant arising therefrom.

[7]The SPAs for both the Units were then signed and dated 16.4.2014. Apart from the SPAs, the Plaintiff also on
the same date signed with the Defendant Tenancy Agreements for each of the Units that guaranteed a rental
income for the Units in the amount of RM 15,622.62 per annum for a period of 3 years commencing from the date of
issuance of the Certificate of Completion and Compliance or upon full commencement of the full business operation
of the Development whichever was the earlier (Tenancy Agreements’).

[8]Delivery of Vacant Possession letters dated 25.7.2017 were issued by the Defendant to the Plaintiff and
consequently vacant possession of the building was delivered to the Plaintiff on 8.8.2017.

[9]When the Plaintiff took possession of the Units the Plaintiff discovered that the Development did not have the
modern glass façade as advertised in the promotional and sale brochures. It appeared to the Plaintiff that the
Defendant had made changes to the building’s designs and specifications. It was the Defendant’s position that the
proposed modern glass facade was not approved by the authorities, namely the Malaysian Heritage Commission
on the grounds that the proposed facade was not in harmony with the surrounding buildings in the Buffer Zone of
the Melaka World Historical Heritage area. It was not disputed that the Heritage Commission did not give its
approval for the modern glass facade design to be incorporated into the Development.

[10]Following that, the Plaintiff engaged the Defendant over that issue and a series of communications via text
messaging and e-mails ensued in which the Plaintiff had protested to the change to the facade and insisted that the
original facade to the Development as advertised be restored. Notwithstanding that, the Plaintiff enjoyed the benefit
of receiving rental income from the Defendant under the respective Tenancy Agreements totaling RM43.980.12
over a span of 2 years. The fact that the Defendant did receive the rental income was not disputed.

[11]When it was clear to the Plaintiff that despite appeals made by the Plaintiff to the Defendant and the
assurances by the Defendant to follow up with the authorities on the issue, the facade would remain as it is the
Plaintiff then chose to rescind both the SPAs and seek, inter-alia, a refund of all the purchase price monies and
damages as set out in the Statement of Claim. The legal demand was dated 13.11.2019 and finally this action was
filed on 10.1.2020.

[12]The Plaintiff sought to also rely on another ground to rescind the SPAs. The Plaintiff alleged that the Defendant
had breached the SPAs when in completing both the Units, the Defendant had deliberately omitted to construct a
brick wall between both the Units. The Plaintiff alleged that the Defendant had failed to comply with the agreed
building specifications for both the Units.
DELIBERATIONSIssue of absence of brick wall
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[1]3] Dealing with this issue first, it was not disputed that the brick wall between the 2 Units were not constructed by
the Defendant. However, this Court does not find that the absence of the brick wall amounted to a breach of the
SPAs because the absence of the brick wall did not affect the subject matter of the SPAs in terms of the delivery of
the 2 Units, structural integrity, safety or floor area of the units. This Court accepts the evidence of DW1 that the
absence of the wall offered potential tenants the choice of larger floor space and that adds to the commercial and
utility value of the units. In addition, DW1 stated that the brick wall would be constructed when the units are handed
back to the Plaintiff at the end of the tenancy period. The Plaintiff did not suffer any damage or loss since despite
the absence of the brick wall the Plaintiff enjoyed rental income under both the Tenancy Agreements.

[14]In this Court’s view, the fact that the Plaintiff opted to continue with the Tenancy Agreements despite the
changes amounted to an acceptance by the Plaintiff of the changes in the design of the Units. The Plaintiff cannot
complain after enjoying more than RM20,000 income from each of the Tenancy Agreements that the Units were
delivered in breach of the terms of the SPAs. Had the Plaintiff believed that the changes were material and
prejudicial to his interests as owner of the Units he should have sought to first suspend or delay the commencement
of the Tenancy Agreements until the brick wall was built or sought to rescind both the SPAs when the absence of
the brick wall was first discovered. The Plaintiff did neither. Under that circumstances, in this Court’s view, the
Plaintiff had accepted vacant possession of the 2 Units unconditionally and without any qualification. The Plaintiff’s
remedy against the Defendant would be to request the Defendant to restore the Units to the original design at the
end of the tenancy period.
Issue of effect of advertisements

[15]Dealing now with the issue of the advertisements, this Court will first make a determination on the legal effect of
the various sales and promotional materials for the VEDRO Development in particular regarding the modern glass
façade that the Development was to have.

[16]Guided by the Court of Appeal decision in Bounty Dynamics Sdn Bhd v Chow Tat Ming & 175 Ors [2016] 1
MLJ 507 this Court finds that all those materials were just an invitation to treat and not an offer. The brochures in
exhibits D1 and D2 contained the usual exemption clauses stating to the effect that all renderings are artistic
impressions only and subject to approval of the relevant authorities. It was held in Bounty Dynamics:

As for the legal bindingness of the representation in the advertisement brochure as a pre-contractual document, it was
common ground that there existed an exemption clause, no doubt in the customary small print. As such the representations
made should be read as mere ‘puffs’ and not binding promises. At most, these were in the nature of an invitation to treat
(Eckhardt Marine GMBH v Sheriff, High Court of Malaya, Seremban & Ors). In this connection, the learned JC had also
failed to evaluate this exemption clause leading to an error of law which again invited appellate intervention on our part.

[17]It cannot be denied that purchasers are usually drawn to the designs represented in promotional and sales
brochures, materials and miniature scale models of the developments and the decision to purchase any property is
largely influenced by architectural designs and concepts. Nonetheless, whilst any developer strives to deliver to the
purchaser the same property as represented in their promotional and sales brochures and materials, they reserve
the right to make changes to the actual construction of the property. These changes may come about because of
unexpectedly rising costs, architectural or engineering issues, unavailability of materials or the approvals of the
relevant authorities.

[18]The Plaintiff’s complaint is that the completed VEDRO Development deviated from the modern glass facade
designs that was represented to him. That change is not disputed by the Defendant. The Defendant blamed the
authorities in particular the Heritage Commission for not approving the designs while the Plaintiff argued that the
Defendant knew that the proposed development sat in a heritage sensitive area and therefore the Defendant had a
duty of care to ensure that the designs would be compatible with the fact that the proposed development sat in the
Heritage Area Zone. By presenting to the Puchaser the modern facade designs without first obtaining the approval
of the Heritage Comission the Defendant was led to believe that the designs were approved and would be
incorporated in the VEDRO Development. In addition, it was argued that the Defendant had willfully misrepresented
the Plaintiff when the Defendant had stated in a letter dated 20.2.2014 that the requisite approval had been issued
by the relevant authority when it had not.

[19]Now, the exclusion notices/exemption clauses in exhibits D1 and D2 stated, albeit in small prints, that all
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information and items described in the advertisements and materials were subject to any changes as required by
the authorities. Although the authorities were not defined, the meaning is plain and clear. The authorities are the
authorities having the power to approve or disapprove any development proposals and plans and those authorities
must also include the Heritage Commission in this case. This Court does not find any provision in the National
Heritage Act 2005 and its guidelines that obligates any developer to first obtain the prior approval of the Heritage
Commission on any advertisement materials that it intends to offer to the public for any proposed development
within a heritage area. On that basis, the Defendant could not be put at fault for not having secured such prior
approval. This Court finds that there is nothing in the letter dated 20.2.2014 that makes any specific mention of
approvals by the Heritage Commission on the facade designs. Therefore, it cannot be construed any more than
what is apparent on its face.

[20]In addition, clause 10 of the Offer to Purchase forms dated 19.10.2013 clearly stated that the purchaser agrees
that the Developer has the right to make any amendments, deviations and alterations to the plans, specifications
and the purchaser is deemed to have consented to such changes.

[21]As a result, the Defendant was free to present to the public any proposed designs that it deemed appropriate
and commercially viable at the material time. The Developer is entitled to believe that a modern design is
compatible with the proposed development location within the heritage area. In the end, it is up to the relevant
authorities to determine whether they share the same belief. This Court finds that the Defendant had made
repeated appeals to preserve the modern glass façade design and proposed alternative designs but were still
rejected. On that basis this Court does not find that the Defendant had fraudulently or innocently misrepresented
the Plaintiff when it chose to depict a modern glass facade design for the VEDRO Development.

[22]It must also be emphasized that the design of the VEDRO Development, in particular the modern glass facade,
was not incorporated into the SPAs. The SPAs did not include façade designs as part of the definition of
Specifications. In the SPAs the word “Specifications” was defined under clause 1.1 as “list of specifications of the
Commercial Unit annexed and marked as the Fifth Schedule”. A reading of the Fifth Schedule clearly shows that
there is no reference to the design or facade of the VEDRO Development. Therefore, it must only mean that the
facade design was not intended to be part of the SPAs. By signing the SPAs without inclusion of the facade designs
as a term, the purchase of the Units by the Plaintiff cannot be said to be conditional upon the inclusion of the facade
designs in the Development.

[23]It was contended by the Plaintiff that by a letter dated 4.4.2014 the Defendant had acknowledged the Plaintiff’s
request to ensure that the VEDRO Development would have a modern glass facade design. Since the letter was
signed by a Director of the Defendant after a request for assurances was made by the Plaintiff on the facade
design, that letter amounted to a guarantee that must be read into or included with the SPAs. Reference was also
made to the 2 Sales Forms where at the Remarks column, it was stated that a full refund of the booking fee will be
made if the SPA clauses are not favourable and if the site plan, building plan, master titles and SPA are not read or
available.

[24]After considering the contents of the Sales Forms, the said letter dated 4.4.2014 and the earlier letter dated
20.2.2014 issued by the Defendant to the Plaintiff, this Court does not find anywhere in those documents that
amounted to an express acknowledgement and guarantee that the modern glass façade design will be incorporated
into the SPAs or that the facade design will not be changed. The letter dated 4.4.2014 made reference to the
Building Plans, Layout and Floor Plan and Specifications typed in uppercase and that must refer only to those
words or terms used in the SPAs.

[25]The term “Building Plan” was defined under clause 1.1 of the SPAs to mean “plans, drawings and specifications
submitted by the Developer and approved or to be approved by the Appropriate Authority for the construction and
erection of the Building and all such amendments alterations and modifications as may from time to time be made
or stipulated by the Developer and/or required by the Developer’s Architect and approved by the Appropriate
Authority”. The term “Layout and Floor Plan” was defined as “the plan annexed hereto and marked as the Third
Schedule hereto showing the development comprised in the Building of which the Commercial Unit forms part
thereof and included such amendments as may from time to time be made by the Developer and approved or to be
approved by the Appropriate Authority”. Finally, the word “Building” was defined as “development project called
“VEDRO” or any other name to be approved by the Appropriate Authority, consisting of commercial retail lots, car
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parks and such other further development(s) that may be required or as amended by the Developer from time to
time”.

[26]What is to be noted from all these definitions and the Third Schedule is that none of these definitions and the
schedule make reference to any facade designs.

[27]Therefore, when the Plaintiff accepted the letter in its form from the Defendant the Plaintiff was bound by it and
could not later offer his own interpretation that these letters actually referred to an assurance or guarantee from the
Defendant that the facade designs would not be changed. It was the Plaintiff’s duty to ensure that those letters and
documents expressly meant what the Plaintiff sought to mean.

[28]Of most important consideration is the fact that the SPAs were executed on 16.4.2014, some 2 months after the
2 letters were signed. It was opportune at that time for the Plaintiff to have requested for special conditions on the
facade designs to be included by reference to the 2 letters but that was not done. Ultimately the Plaintiff signed the
SPAs with all terms and conditions remaining intact as prepared by the Defendant without any exceptions or
inclusions on special conditions and this included clause 39 which stated that the SPAs constituted the sole and
entire agreement between the parties and it shall supersede all prior agreements and understanding whether oral or
written. This clause had effectively rendered the remarks in the Sales Forms, the 2 letters and all discussions
leading to it not effective and not binding on the Defendant. As held by the Court of Appeal in Master Strike Sdn.
Bhd. v Sterling Heights Sdn. Bhd. [2005] 3 MLJ 585:

Clause 24 is an entire agreement clause that constitutes a binding agreement between the appellant and the respondent
with regard to all the matters mentioned in the contract and therefore, in our judgment, the contract does not permit any
term to be implied or import any other considerations not in the contract In Innterpreneur Pub Co v East Crown Ltd [2000] 3
EGLR 31 at p 32K-L right a somewhat similar provision to cl 24 is set out In his judgment, Lightman J opined on the
purpose and the effect of an entire agreement where at p 33A-B left he said:

The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the
undergrowth and finding, in the course of negotiations, some (chance) remark or statement (often long forgotten or difficult
to recall or explain) upon which to found a claim, such as the present, to the existence of a collateral warranty. The entire
agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need that
may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties
that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that,
accordingly, any promises or assurances made in the course of the negotiations (which, in the absence of such a clause,
might have effect as a collateral warranty) shall have no contractual force, save in so far as they are reflected and given
effect in that document...

9 The principle on the entire agreement clause in Innterpreneur Pub was followed by Abdul Aziz J (as he then was) in
Macronet Sdn Bhd v RHB Bank Sdn Bhd [2002] 3 MLJ 11. There he ruled that the entire agreement clause precluded
variation by oral agreement At p 25G the learned judge said:

My opinion is simply this. The entire agreement clause was an agreement between the plaintiffs and the defendants. In
agreeing to the clause, the parties must be presumed to have known of the existence of s 92 and of the exceptions in it and
to have intended what the clause intended, that is to exclude any attempt to vary the agreement by an oral agreement or
statement, which attempt can only be made through the exceptions in s 92. By agreeing, therefore, to the entire agreement
clause, the plaintiffs agreed not to resort to any of the exceptions in s 92. They cannot, therefore, be allowed to prove the
second precontractual representation or the oral agreement and to rely on them.

[29]On the totality of the evidence, this Court finds that the façade design was not made a term or condition of
either the SPAs and that the departure in the design did not entitle the Plaintiff to rescind the agreements. This
Court does not find that there was a willful, fraudulent or innocent misrepresentation by the Defendant in inducing
the Plaintiff to purchase the Units. The description of the modern glass facade was not made with any intention to
deceive prospective purchasers, in particular the Plaintiff nor was it made carelessly. Of crucial significance is that
the Plaintiff neglected to include any exceptions and special conditions into the SPAs to preserve any
understanding or agreement that may have been reached between the Plaintiff and the Defendant prior to the
signing of the SPAs.
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On the issue of whether the Plaintiff is estopped from rescinding the SPAs

[30]On the third issue it was contended by the Plaintiff that he had raised repeated complaints and protests with the
Defendant on the façade designs after he accepted delivery of the Units. Thus, his acceptance of the delivery of the
Units were qualified notwithstanding that he enjoyed the benefit of receiving rentals from the Defendant under both
the Tenancy Agreements.

[31]In response to that contention, the Defendant relied on the decisions in Admiral Cove Development Sdn Bhd v
Balakrishnan Devaraj & Anor [2011] 9 CLJ 133; Bounty Dynamics Sdn Bhd v Chow Tat Ming & 175 Ors [2016] 1
MLJ 507 and Sandakan Crocodile Farm Sdn. Bhd. v. Sagajuta (Sabah) Sdn Bhd [2014] 1 LNS 1894 to argue that
the Plaintiff should not have taken delivery of the Units but acted to rescind the SPAs instead of taking delivery of
the same and choosing to enjoy the rental income from the Defendant for a period of 2 years before taking that
action. Since conveyance of the 2 Units was completed and the purchase price fully paid, it was not open for the
Plaintiff to seek to restore his position.

[32]In Admiral Cove, the Federal Court held as follows:

[27] We do not think that the sale and purchase agreement for the property in the instant appeal can be set aside for
innocent misrepresentation after it has been completed by conveyance and payment of the purchase money. On the part of
the appellant as vendor, it had conveyed the property with a good title and has delivered up actual possession or enjoyment
thereof The respondents as purchasers had accepted the conveyance of the property by taking possession and paying the
price. Innocent misrepresentation is no ground for setting aside an executed contract What has been performed is what
was agreed to be performed.

[28] The facts showed that after accepting the keys to the property, the respondents commenced paying the necessary
charges payable when one purchases a unit in a condominium, eg, covered carpark charges, fire insurance premium, basic
furnishing package, service charges and sinking fund deposit, payments due to Indah Water and assessment due to the
Majlis Perbandaran Port Dickson. They even paid for the Admiral Marina Club membership amounting to RM14,000 and
the ancillary charges payable thereto. These payments totalled RM505,313.27 which was the sum that they claimed from
the appellant including the club membership as loss and expense as ‘the said unit cannot be used and lost its purpose for
which the Plaintiffs purchased the same’.

[29] We are of the view that such conduct of the respondents discussed above established on their part an election to affirm
the agreement The long lapse of time without complaint showed an intention to affirm the contract and is a[2011] 5 MLJ 309
at 324strong indication that they were not really persuaded by whatever was said by the appellant’s servant or agent as
alleged and hence did hot amount to misrepresentation inducing the contract. They even had the temerity to join the
Admiral Marina Club which we would have thought was an optional thing and has nothing to do with the agreement Further,
they even wanted to sell the property after vacant possession was granted which would suggest that they had viewed the
property much earlier as opposed to their claim that they only visited the property for the first time in August 2002. We also
noted that the respondents never introduced any evidence to show that the first respondent was unwell after vacant
possession was granted, ie, on 30 June 1998 and consequently was unable to travel to Port Dickson to visit the property.
The property was purchased in their joint names and no reason was canvassed as to why the second respondent was also
unable to visit the property after vacant possession was granted. That being the position, we would say that the claim by
the first respondent that he was not well and did not visit the said property until August 2002 when he made certain
discoveries about access to the beach, a claim which the Court of Appeal paid great attention thereto and consequently
sought to assail the decision of the learned judicial commissioner by ruling that she failed to judicially appreciate the fact’ he
was ‘too sick to travel’, has no bearing upon the respondents’ case and would be irrelevant as the property had by then
been transferred and the agreement was completed.

[30] On the whole we are of the unanimous view that it is clear that the agreement was executed (as opposed to the
position in Sim Tong Realty Sdn Bhd where the transaction was never completed) and that in equity, rescission for innocent
misrepresentation is not an available remedy under such circumstances. The transaction was a fully completed one and
therefore rescission cannot be granted unless the misrepresentation was fraudulent

[33]In Sandakan Crocodile Farm, the Court held:

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I also find that even if there was fraudulent misrepresentation or innocent misrepresentation on the part of the defendant,
the plaintiff cannot seek the remedy of rescission or damages. My reasons are as follows. In the instant case, it is not
undisputed that the sale and purchase agreement was executed in 2007 and the shop lots were delivered in 2008. The
instant suit was instituted only five years later on 30 July 2012. Therefore, the plaintiff must be deemed to have affirmed the
contract and had relinquished any potential right to the remedy of rescission. In my opinion, the Federal Court authority
cited by counsel for the defendant to support his argument that the plaintiff was guilty of laches in pursing this action is on
point In the case of Admiral Cove Development Sdn Bhd v Balakhshnan a/l Devaraj & Anor [2011] 5 MLJ 309, the
purchasers of a property had sued the developer for rescission and damages on the ground that the condominium property
did not have direct access to the beach as represented by a miniature model and printed brochure of the project that
showed (a sandy beach front, umbrellas, relaxing easy chairs and sail boats close to the beach’. The Federal Court held as
follows:

[22] We would reiterate that the legal position in Malaysia is that a representee who has been induced by an innocent
misrepresentation may sue for rescission and consequent restitution. Be that as it may, there are authorities which seem to
suggest that to rescind a contract may be rather a drastic step, particularly where the contract has been performed. In such
a scenario, the right to rescind could be lost.

[23] In the instant appeal, it is a case of a contract for the purchase and sale of property and the contract was completed
when the purchaser, ie, the respondents received an executed conveyance and made payment for the purchase price.
Since the conveyance has been properly executed by both the appellant and the respondents, we do not think that the
latter can recover the purchase monies. Further, there was a delay of more than four years before the respondents decided
to pursue the action for rescission.

[34]This Court finds no cause to depart from the decisions in Admiral Cove and Sandakan Crocodile Farm. This
Court agrees that there was a failure by the Plaintiff to act expediently when he received vacant possession of the
Units on 25.7.2017. It was not open for the Plaintiff to claim that he did not inspect the Units or was not given the
opportunity to inspect the Units as the core complaint regarding the glass façade is not about a feature or
specification intrinsic within the development building but was something on the external walls of the development.
A building facade is something that is open to public viewing and is not concealed. In fact, the Plaintiff agreed in
cross-examination that he did inspect the Units sometime in August. He should have acted by that time but he did
not. Referring again to the decision of the Federal Court in Bounty Dynamics:

[26] Being a claim founded on contract, the principle of law is that a claim for breach of contract has to be commenced at
the earliest possible time when the innocent party becomes aware of the breach.

In the context of a sale and purchase of property in a development, the critical date will be the date of delivery of vacant
possession, as defined in the relevant sale and purchase contract.

[35]Of crucial importance is that not only the Plaintiff accepted vacant possession of the Units, he then proceeded
to enjoy the rental income under each of the Tenancy Agreements. This Court does not agree that the continued
complaints by the Plaintiff and the opportunities given to the Defendant to win approval from the authorities to
reinstate the modern glass facade design had preserved the Plaintiff’s right to rescind the SPAs. Any qualification or
reservation of rights should be in the form of an expressed written notice to the Defendant on the date vacant
possession was delivered. This was not done and therefore the Plaintiff must be taken to have affirmed both the
SPAs.

[36]The conveyance of both the Units was completed by the Defendant and the Plaintiff further enjoyed rental
income from his property. To act some 2 years after taking possession of the Units and pocketing RM43,980.12
from the Defendant and to seek a rescission of the SPAs amounts to having the cake and eating it whole. On this
ground alone this appeal should be dismissed.

[37]In addition and for the sake of brevity, this Court concurs with the finding of the trial court that the Plaintiff had
failed to prove any actual loss suffered by the Plaintiff directly arising from the change in the facade of the VEDRO
Development.
DECISION
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[38]In conclusion, this Court finds that the Learned Sessions Court Judge had not erred in dismissing the Plaintiff’s
claim against the Defendant. The Appeal is hereby dismissed. Cost of this Appeal in the amount of RM 10,000 is
ordered to be paid by the Plaintiff.

End of Document