“Section 32 of the Limitation Act 1953 "permits the equitable defence of laches to defeat the common law remedy of damages". By reason of laches, the equitable relief (i.e. specific performance) as prayed for by the remaining plaintiffs … ought to be disallowed.”
- Per Quay Chew Soon J.
In the recent case of
Yeoh Weoi Leong & 44 Ors v BM City Realty & Construction Sdn Bhd & Anor [2023] 8 AMR 978, the High Court struck out a claim brought by several purchasers of executive suites against a housing developer for breach of contract, breach of duty, fraudulent misrepresentation, and unjust enrichment due to delays in bringing legal action.
Relevant Facts
The first defendant (“
D1”) is a housing developer for a project named as the “BM City Complex” located in Penang. After the certificate of completion and compliance was issued certifying that the BM City Complex was safe to be occupied and has been built according to the applicable standards and building plan, D1 sent a notice to the purchasers requesting them to collect the keys of their respective units and take vacant possession of the said units. Pursuant to the sale and purchase agreements entered into between D1 and the purchasers, the purchasers were deemed to have taken vacant possession of their respective units upon the expiry of 14 days from the date of the said notice.
The plaintiffs’
1 claim against D1 was based on four grounds, namely breach of contract (including liquidated ascertained damages for late delivery of vacant possession), breach of duty of care, fraudulent misrepresentation and unjust enrichment. In particular, the plaintiffs sought orders for specific performance in sub-paragraphs (b) to (g) of paragraph 36 of their amended statement of claim. D1 applied to strike out the plaintiffs’ claim against them.
The High Court’s Decision
The High Court observed that the cause of action for alleged breach of contract, alleged breach of duty of care and alleged unjust enrichment accrued on the date on which vacant possession of the units was deemed to be taken by the plaintiffs i.e. on 4 October 2016. The Court also observed that although the suit was filed on 8 September 2022, which was before the expiry of the six years’ limitation period under section 6(1)(a) of the Limitation Act 1953
2, there was a delay of at least
five years by the plaintiffs in filing the suit from the date of the accrual of the cause of action.
Notwithstanding the fact that the plaintiffs’ suit was filed within the statutory limitation period, the Court found that the plaintiffs’ delay of at least five years in bringing the claim was sufficient ground to refuse the plaintiffs’ claims for specific performance pursuant to section 32 of the Limitation Act 1953 which reads:
“32. Acquiescence
Nothing in this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise.”
According to the learned Judge, “
Section 32 of the Limitation Act 1953 "permits the equitable defence of laches to defeat the common law remedy of damages". By reason of laches, the equitable relief (i.e. specific performance) as prayed for by the remaining plaintiffs at paragraphs 36(b) to (g) of the amended statement of claim ought to be disallowed.”
In arriving at its decision, the Court found support in the case of
Saad Marwi v Chan Hwan Hua & Anor [2001] 2 AMR 2010 where the Court of Appeal, citing the Supreme Court decision of
M Ratnavale v S Lourdenadin [1988] 2 MLJ 371, held that the respondents' delay or laches of at least 19 months in bringing their claim was a sufficient ground to dismiss their claim grounded on the common law relief of damages.
Key Takeaway
This decision underscores the importance of taking swift action when a claim is founded on equitable remedies. As evident from this case and
Saad Marwi and
M Ratnavale, laches may result in the claim being defeated even though the proceedings have been filed within the statutory limitation period.
Case Note by Karen Tan (Senior Associate) of the Dispute Resolution Practice of Skrine.