Soon Chin Chye & Ors v Sure Commerce Sdn Bhd

Appellant(s): Soon Chin Chye & 24 Lagi

Respondent(s): Sure Commerce Sdn Bhd

• YA Datuk Supang Lian
• YA Dato' Lim Chong Fong
• YA Dato Alwi Bin Abdul Wahab

• The appeals concerned disputes between numerous purchasers and a developer regarding the late delivery of vacant possession of commercial accommodation suites (Jazz Suites), claims for Goods and Services Tax (GST) indemnification, and late payment interest.
• The Sessions Court initially ruled in favour of the purchasers, applying the Housing Development (Control and Licensing) Act 1966 (HDA 1966) to the Sale and Purchase Agreements (SPAs), ordering liquidated ascertained damages (LAD) and GST refunds, and dismissing the developer's counterclaims.
• The High Court partially allowed the developer's appeal, holding that the HDA 1966 was inapplicable, thus calculating LAD based on the SPAs, but upheld the GST refund and allowed some of the developer's counterclaims for outstanding charges.

• Whether the HDA 1966, particularly the definitions of "housing accommodation" and "housing development" in Section 3, applied to the commercial accommodation suites, thereby subjecting the bespoke SPAs to its statutory provisions.
• Whether the developer was entitled to impose or claim GST payments from the purchasers, considering the indemnity clause in the SPA and relevant provisions of the Goods and Services Tax Act 2014.
• The validity and enforceability of settlement agreements entered into by some purchasers, given the Court's finding on the applicability of the HDA 1966 to the underlying SPAs, and the prematurity of the developer's counterclaims for service charges and interest.

• The Court of Appeal unanimously allowed the purchasers' appeal and dismissed the developer's appeal, holding that the HDA 1966 applied to the Jazz Suites. The Court emphasized the social legislation nature of the HDA 1966, concluding that the suites, despite commercial zoning, were for human habitation, falling within the HDA's scope.
• The Court affirmed the High Court's decision that the developer was obliged to refund the GST payments to the purchasers, based on Clause 25 of the SPA which indemnified the purchasers from new taxes.
• The Court declared the settlement agreements void for illegality under Section 24 of the Contracts Act 1950, as they were premised on SPAs that contravened the HDA 1966; it also found the developer's counterclaims for service charges, sinking fund, and late payment interest were prematurely claimed before the Certificate of Completion and Compliance (CCC) was obtained.