THE PALACE OF JUSTICE CIVIL APPEAL NO. P-02-2074-2011 ...

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The plaintiffs, as the purchasers, had full knowledge that the construction of the CEITS was an integral part of the project. Pursuant to an application made by the developer to the DOE, the latter, by its approval letter of 12 August 1997, made it a mandatory requirement that a CEITS – (a) be designed by a specialist licensed by the DOE; (b) be built according to prescribed specifications; and (c) be functioning and operational to the satisfaction of the DOE before the application for the issuance of the Certificate of Fitness for Occupation (CFO) for the project can be made, to ensure that hazardous effluents would not be discharged into the environment. Accordingly, the developer arranged for the CEITS of the project to be designed by a specialist licensed by the DOE; and, thereafter, the 10
developer proceeded to construct the CEITS. However, the CEITS that was constructed by the developer did not function according to the satisfaction of the DOE, and as a consequence the DOE refused to issue its certification of approval. By reason of the absence of the certification of approval by the DOE, the appellants, as the architects of the project, refused to apply for the CFOs notwithstanding the instruction of the developer for them to do so. Subsequently, the appellants, by reason of their refusal to follow the instruction, resigned as the architects for the project on 13 June 2005. At the time of their resignation, the developer has yet to obtain the CFOs from the local authority. As a consequence, there was a delay in the application for the CFOs. The CFOs for the industrial buildings were issued only on 4 July 2005. Therefore there was a delay of some 8 years before the purchasers could lawfully occupy the industrial buildings. The respondents alleged that this delay in the obtaining of the CFOs had 11
Page 1 and 2: IN THE COURT OF APPEAL OF MALAYSIA
Page 3 and 4: Introduction Defendants (1) Rakyat
Page 5 and 6: (Rakyat Corporation Sdn Bhd) to be
Page 7 and 8: The Vendor shall do all acts and th
Page 9: y the vendor failing which the vend
Page 13 and 14: (b) the refusal on the part of the
Page 15 and 16: architects for the project, resulti
Page 17 and 18: CFOs under the SPA. As the learned
Page 19 and 20: … speak, short circuiting the con
Page 21 and 22: 4 CLJ 508 (but see now the Federal
Page 23 and 24: The above proposition was cited wit
Page 25 and 26: From the evidence in this case, I f
Page 27 and 28: consequences. The case law authorit
Page 29 and 30: First one has to ask whether, as be
Page 31 and 32: which ought to negative, or to redu
Page 33 and 34: contemplate would be affected by hi
Page 35 and 36: ‘neighbourhood’ and that the si
Page 37 and 38: certainly owe a duty of care to the
Page 39 and 40: 128 ALR 163), New Zealand (for exam
Page 41 and 42: that the layout plan necessitated e
Page 43 and 44: Peculiarity of High Court’s Order
Page 45: Date of decision: 5 January 2012 Da

THE PALACE OF JUSTICE CIVIL APPEAL NO. P-02-2074-2011 ...

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