Cekap Mesra Development Sdn Bhd v Che Seman bin Abdullah [2021] 1MLJU 1292

CEKAP MESRA DEVELOPMENT SDN BHD v CHE SEMAN BIN ABDULLAH [2021] 1 MLJU 2292

High Court (Shah Alam)

Limitation Period

Facts

1.     On 6.3.2000 the Plaintiff and the Defendant (the developer) entered into a sale and purchase agreement (“the SPA”) for a double storey house located in Puchong (“the Property”) for the purchase price of RM 152,400.00.

2.     The construction of the Property was completed in 2002 and the vacant possession of the Property was delivered to the Plaintiff on 7.6.2002 (date of Vacant Possession).

3.     The Plaintiff discovered numerous defects in the Property after it was delivered to the Plaintiff and as for that made complaint to the Defendant.

4.     However the Plaintiff claimed that the defects continued to reoccur even after the Defendant fixed them and the Plaintiff since then kept voicing out his displeasure with the Defendant’s rectification works.

5.     Later in 2009 the Plaintiff hired a professional engineer to examine the recurrence of the defects.

6.     On 15.4.2009, the Plaintiff was informed by the engineer that the cause of recurrence of the defects were caused by the failure of structural support for the dead and live loads of the Property (“the Discovery”).

7.     The Plaintiff then lodged a complaint to the Ministry of Housing and several local authorities about those findings, but to no avail.

8.     The Plaintiff spent 10 years seeking asking the authorities to step in and take a further action.

9.     Subsequently, the Plaintiff filed an action against the Defendant based on the breach of the SPA.

Issue

1.    Whether the Plaintiff had brought the action within limitation period?

Ratios

1.    In the Plaintiff’s statement of claim, the Plaintiff failed to mention the cause of action against the Defendant.  Based on the submission made by the Plaintiff’s counsel, the claim was premised on the breach of the SPA.

2.   The Court referred to the case of Deepak Jaikishan Rewachand & Ors v Dato’ Seri Mohd Najib Tun Abdul Razak & Ors [2020] 6MLRH 558 where a cause of action has to be pleaded and disclosed in the statement of claim.

3.   According to the SPA, the Defendant was under the contractual obligation to rectify whatever defects complained by the Plaintiff during the defect liability period which ended on 7.12.2003.

4.   According to section 6(1) of the Limitation Act 1953-

“Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –

(a) actions founded on a contract or on tort;

(b) actions to enforce a recognisance;

(c) actions to enforce an award;

(d) actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture”.

5.   Therefore,  based on the SPA the Plaintiff has 6 years to bring an action towards the Defendant starting from the date where the cause of action accrued which is on 7.12.2003.

6.   However, the Plaintiff filed his action on January 2021, well passed the 6 years deadline.

7.   Section 6A of the Limitation Act 1953 states-

“(1) Notwithstanding subsection 6(1), this section shall apply to any action for damages for negligence not involving personal injuries, where the starting date for calculating the period of limitation under subsection (2) falls after the date on which the cause of action accrued.

(2) An action to which this section applies shall not be brought after the expiration of three years from the starting date if the period of three years expires later than the period of limitation prescribed in subsection 6(1)”.

8.   In this current case, even though the cause of defect was discovered by the Plaintiff on 15.4.2009,  the cause of action must have accrued-

(a) before the discovery of the defects which is on 7.6.2002 and will be ended in 7.6.2015 or

(b) counted from the end of the defect liability period, i.e 7.12.2003 and will be ended in 7.6.2018

(c)   The plaintiff’s action, which was brought in January 2021, is unquestionably time-barred by statute, regardless of whether it was based on a breach of contract, a tort claim, or both.

Decision

1.    The Court allowed the Defendant’s appeal and ordered the Plaintiff’s action to be strucked out and further ordered the Plaintiff to pay costs of RM 5,000.00 to the Defendant.

Key Take Away

1.     A developer can still be sued by a purchaser after the expiry of the defect liability period for the defects discovered later as long as the action was brought within the limitation period.

2.     It is settled law that the parties are bound by their pleadings.  The Plaintiff in this case submitted his claims based on the breach of the SPA by the defendant and not for negligence act.

3.     The amendment of Limitation Act came into force in 1.9.2019 where Section 6A was inserted and the limitation period has been capped to 15 years for an action under tort (claim for negligence not involving personal injuries) from the date the cause of action accrued –

“Section 6A of the Limitation Act 1953 states-

“(1) Notwithstanding subsection 6(1), this section shall apply to any action for damages for negligence not involving personal injuries, where the starting date for calculating the period of limitation under subsection (2) falls after the date on which the cause of action accrued.

(2) An action to which this section applies shall not be brought after the expiration of three years from the starting date if the period of three years expires later than the period of limitation prescribed in subsection 6(1)”.

(3) Notwithstanding subsection (2), no action shall be brought after the expiration of fifteen years from the date on which the cause of action accrued”.

4.     In this case, the defects were discovered on 15.4.2009 and the cause of action must have accrued in 7.6.2002 (the vacant possession) or at the end of defect liability period i.e. on 7.12.2003.  Applying section 6A(2) of the Limitation Act 1953 to both scenarios, the action brought by the Plaintiff is time-barred because it exceeded the 15 years limitation period.

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