In a landmark ruling, Justice Ahmad Shahrir Salleh allowed purchaser Daniel Ong’s appeal and ordered Alpine Return Sdn Bhd to pay him RM309,255.61 in damages.

He also ordered the developer to pay Ong RM20,000 in costs.

Delivering his broad grounds of judgment, Shahrir held that vacant possession without the right to occupy is against public policy and contravenes Section 24(e) of the Contracts Act 1950.

“The court took into account that the bargaining power between purchasers of properties and developers is unequal.

“Although parties are bound by the contractual terms and the court should be slow in interfering with such a contract, this does not hinder the court from determining whether a contract or contractual term is valid in law and in line with public policy at large,” Shahrir said.

Under the sale and purchase agreement (SPA), the developer had contracted to deliver to Ong vacant possession of the unit in Star Boulevard KLCC within 48 months of the approval of development plans for the project.

However, the SPA said vacant possession could be delivered without the purchaser being given the right to occupy.

On July 22, 2018, Ong was given vacant possession but without access to the unit.

Ong then brought a suit against the respondent in the Kuala Lumpur sessions court, which in March this year dismissed the claim.

“Alpine Return’s conduct in obstructing the plaintiff’s right of occupancy for the said unit clearly amounts to a failure to deliver vacant possession to the plaintiff as agreed under the SPA,” said Shahrir when allowing the appeal.

Ong was represented by Sachpreetraj Singh Sohanpal, Rajesh Nagarajan and Ambbi Balakrishnan. Alpine Return was represented by Cecilia Tan and Fatin Izyan Fadzil.