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

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It is not for the court to help a party, after the event, to improve his commercial bargain. Bumi does not deserve any help. Bumi had made its bargain and must live with it. Taking the policy line advocated by Lord Denning MR in Dutton, it would not be just and reasonable in all the circumstances here to impose the duty on MBS or MBUK. There is every reason that the loss should fall on Bumi. Although the facts of our case are different from the facts of the above-quoted case, nevertheless, we find the above dicta to be of some guidance for the purpose of the present case. In our judgment, an important fact to note is that the present case is not a case of alleged carelessness on the part of the architects/defendants in the carrying out of their responsibilities as architects of the project resulting in personal injury to the plaintiffs or structural defects in the industrial buildings purchased by the plaintiffs or damage to the same. In the instant case, except for the High Court case of Steven Phoa Cheng Loon & Ors v. Highland Properties Sdn Bhd & Ors [2000] 20
4 CLJ 508 (but see now the Federal Court judgment of Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 CLJ 1), no other judicial authority was cited by the plaintiffs for their proposition that the defendants as the architects of the project owe a duty of care to the purchasers to ensure that the CFOs of the buildings were obtained without undue delay by the developer. With respect, we observe that the plaintiffs, in relying on the judgment of James Foong J (as he then was) in Steven Phoa, had failed to appreciate that that case is totally irrelevant for the purpose of the present case, as the claims in that case involved faulty design and negligent supervision on the part of the architects resulting in death and injury to persons and damage to property. At the outset it must be appreciated that in the present case the defendants, as the architects of the project, are not the agents of the plaintiffs, the purchasers. They are the agents of their employer – the developer (Merger Acceptance). In Building Contracts by Donald Keating (4 th edn.) the learned author states (at p. 200): 21
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 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: … speak, short circuiting the con
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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