The defendant was a licensed housing developer. The defendant embarked on a housing project in Bandar Damansara. Pursuant to two sales agreements , the defendant sold two properties to the plaintiff. The defendant delayed in delivering vacant possession for the properties, and further delayed in completing the common facilities.
In other words, the defendant contended that the events constituted force majeure , which justified the completion time being extended for late-delivery charges to be avoided. As there was no agreement between the parties to the sale to include a force majeure clause in their contract, there could be no question of the events being beyond the control of the defendant so as to deny the plaintiff the right to late-delivery charges expressly stipulated in the SAs.
The court found that the plaintiff’s claim was plain and obviously premised on the SAs. Both parties were bound by the terms and conditions of the SAs, particularly as to the time for delivery of vacant possession and liquidated damages payable for late delivery.There are many similar cases. Some are reported, but many more are not. The facts are straightforward, and the claims are a simple breach of contract.
In the case of Guan Aik Moh Sdn Bhd & Anor v Selangor Properties Bhd, Gopal Sri Ram, who was then a Court of Appeal judge, identified three elements woven into the fabric of the doctrine of force majeure, one of which being, the event relied on as having frustrated the contract must have been one for which no provision has been made in the contract. If a provision has been made, then the parties must be taken to have allocated the risk between them.
However, during an exigency like the virus crisis, and given the magnitude of the effects caused by it, the government should introduce legislation, even if it is unprecedented.