On last Friday，my assistant, Sim Kiat Leng, has successfully helped a normal house purchaser to secure a sweet victory against a housing developer in the High Court of Kuching and we obtained the order for the developer to make full payment of the late delivery damages.
Madam Pui bought her house from a developer in year 2015. There was delay in completion and delivery of the house by the Developer to her. She claimed for damages for late delivery in the Tribunal for Housing Purchaser Claims Sarawak and won against the Developer.
The Developer filed a case in the Kuching High Court to challenge the Tribunal’s decision by claiming that there was a “previous agreement” to extend the time for delivery.
The High Court Kuching yesterday ruled that no agreement can be valid to vary the rights of house purchasers to have their houses completed and delivered to them within 24 months from the date of the Agreement. As such, the so-called “previous agreement to extend time for delivery” wasruled invalid by the Court and the Developer was ordered to pay the late delivery damages.
When the legislator passed the Housing Development Ordinance to provide a 24-month period for the completion of a house by a housing developer, the legislators have taken into consideration the reasonableness of such a time for developer to complete its houses. The legislators have also taken into consideration the interest of a house purchaser, having paid substantial portion of the purchase price, should not be made to wait any longer than 24 months to have their houses completed without compensation.
In normal commercial transactions between parties, the intentions and agreed terms of the parties to an agreement will always be upheld by the Court. However, this is not the case when it comes to developers and house purchasers which was regulated by the Housing Development Ordinance.
Such preferential treatment of the law in favour of house purchasers is because an individual house purchaser in most circumstances has a much weaker bargaining power than a developer. Very often, individual house purchaser may, unknowingly or economically compelled to enter into certain unfavourable terms vis-à-vis a developer who has much stronger financial strength and legal team.
As such, the Housing Development Ordinance was enacted primarily to protect the interest of house purchasers.
Yesterday’s High Court judgement effectively nullify any private agreement purporting to vary the terms stipulated in the Housing Development Ordinance and to contract out the obligations imposed by the law. In the present case, the so-called “agreement” was to give the developer longer period of time to deliver the house. Such agreement was held to be invalid as it goes against the provision of the law and the developer was ordered to pay damages as if there was no such agreement.
In the interest of protection of a common house purchaser, we DAP Sarawak, are all in support of such a position taken by the Court. This judgment will enforce the full intention of the legislators to give protection to house buyers and stop all future attempts by any developer of taking advantage of their stronger market power at the expense of a normal house purchaser.