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

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of the Winding-Up Court on 13 April 2010 pursuant to section 226(3) of the Companies Act to pursue the present action against the first defendant. The first defendant and their counsel, however, were absent at the trial. They did not participate in the trial at all. At the trial before the High Court, the respondents were the plaintiffs (therefore, in this judgment, the respondents will be referred to as the ‘plaintiffs’). At the outset it is to be observed that the plaintiffs are not alleging any faulty design of the industrial buildings (that they purchased from the developer) or negligent supervision on the part of the defendants, as the architects of the project, resulting in personal injury to the plaintiffs or structural defects or damage to the industrial buildings purchased by the plaintiffs. The complaints of the plaintiffs are in regard to the performance of the defendants, as architects, in the carrying out of their duties as the 14
architects for the project, resulting in a long delay in the obtaining of the CFOs; and as a consequence the plaintiffs suffered financial loss. The crucial issue: Is there a duty of care owed by the defendants to the plaintiffs The essence of the plaintiffs’ claim is that the defendants owe them a duty of care to ensure that the CFOs for the industrial units purchased are obtained without undue delay. Thus, in our view, the crucial issue is this: As a matter of law, is there a duty of care owed by the defendants, as the architects of the project, to the plaintiffs, as purchasers, to ensure that the developer obtained the CFOs as stipulated under clause 7.03 of the SPA without undue delay. The present case concerns an important issue pertaining to judicial policy in the context of the law of negligence. With respect, this important judicial policy issue, unfortunately, was not properly addressed to by the learned High Court Judge in his grounds of 15
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 and 10: y the vendor failing which the vend
Page 11 and 12: developer proceeded to construct th
Page 13: (b) the refusal on the part of the
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

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