Vistana Heights – My story (Part 1)

 

My son, Faisal Luqman signed the Sales and Purchase Agreement with the developer, Topwira Corporation Sdn Bhd on 13.1.2014 to purchase a semi-detached house marked as S9 on the development plan attached to the Sales and purchase agreement.

The name of the project is Taman Puncak Vistana Phase 1. The land owner is Lembaga Pembangunan Perumahan Dan Bandar (LPPB)

 

Below are some important paragraphs from the Housing Development (Controlling and Licensing) Rules 2008. You may read the complete rules here.

Extracts of the HOUSING DEVELOPMENT (CONTROL AND LICENSING) RULES 2008

Proprietor to be a party to a contract of sale

1. No licensed housing developer who is not the proprietor of the land upon which a housing development is carried out shall enter into any contract of sale of any housing accommodation in that housing development unless the proprietor of the land is also a party to such contract of sale and agrees to the sale of the land for the purposes specified in such contract of sale.

Made 15 October 2008.

DATUK HAJI HAJIJI HAJI MOHD. NOOR,

Minister of Local Government and Housing.

My comment: From the above I understand that LPPB who is the owner of the land is a party to the contract. In addition, yesterday (25.11.2022), a lawyer acting for two officers of LPPB said that there is a joint venture agreement between LPPB and Topwira Corporation Sdn. Bhd.   As such, I believe, LPPB is answerable to deviations from the Sales and Purchase Agreement.

1.8 Copy of agreement:

1.8.1 If the housing developer is the proprietor of the land, a copy of the sale and purchase agreement between the house purchaser and the developer

OR

1.8.2 If the housing developer is NOT the proprietor of the land,

1.8.2.1 the tripatriate sale and purchase agreement between the land owner, the housing Developer and the house purchaser, and

1.8.2.2 a copy of the agreement between the land owner and the developer to develop the land into housing development.

My comment: If I remember correctly, when Pekway Corporation Sdn. Bhd developed Austral Park, all agreements were co-signed by LPPB. Why the agreements between the buyers and Topwira are not signed by LPPB is beyond me. Have the Housing Development Rules of 2008 been amended?

1.14 Approved Development Plan and Building Plan (copy endorsed by the appropriate local

authority) together with the approval letter.

My comment: How important is the Approved Development Plan (ADP)? Questions on the ADP and the construction that has deviated from the APD has been avoided by the developer, the engineers, the architects, DBKK and LPPB.

The engineers and architect point their fingers at DBKK and state that DBKK had approved the Amended Development Plan and issued the occupancy certificate.

An officer/ engineer at DBKK, on the other hand, says that DBKK approved the development plan based on clearance by Fire Department, Water department, the consultants etc. But what in the world did DBKK do when they inspected the site on 21 Mac 2019:

    DBKK earthwork department has conducted its necessary inspection.

    DBKK Road/traffic department has conducted their inspection at 9.20am.

 

2. I/We further hereby agree that I/We shall jointly and severally indemnify the purchasers of the houses against all loss or damage caused to them or any of them arising or resulting from any breach of obligations by the said company, housing developer, or failure to complete the said housing development within the stipulated time of completion.

My comment: The house was not completed in the stipulated time of completion. Liquidated Ascertained Damage was promised to be paid by the director, Jessie Lee, in her email exchange with my son, Faisal Luqman.

Faisal’s lawyer sent a letter of demand for payment of LAD in October 2019.

The lawyer acting for Topwira requested for 3 months to propose the manner and method for the amicable settlement of the LAD. This was accepted by Faisal’s lawyer.

Monica Lee in December 2019, handed me, Luqman Michel, a signed computation of the LAD and promised to pay the amount. She also handed me the keys to the house and a copy of the occupancy certificate.

In June 2020 a writ of summons was issued to Topwira Corporation Sdn. Bhd.

Mrs. Monica Lee promised me that she will settle the LAD soon after she receives funds from sale of a piece of land. However, after receiving the funds from the sale of her land, she refused to honour her words.

A number of other house owners too took legal action against Topwira and all of them obtained summary judgements.

Topwira appealed against the decision and again lost in their appeal.

Meanwhile, the house owners decided to take action to wind up the company. A winding up order was made up by the High Court in July 2022.

Topwira’s lawyer filed for a stay of execution which was granted by the court.

In October 2022 LAD and statutory interest calculated to 14.7.2022 was paid. This was despite the fact that the court order was to pay interest from day of judgment to date of payment which was in October 2022.

SCHEDULE C

APPLICATION FOR RENEWAL OF HOUSING DEVELOPMENT LICENCE

To,

The Controller of Housing,

Ministry of Local Government and Housing,

88999 KOTA KINABALU.

*I/We the undersigned hereby apply for the renewal of the licence numbered ...............................

.......................... and granted on ................................................................................. in accordance with the provisions of the Housing Development (Control and Licensing) Enactment 1978 and the Housing Development (Control and Licensing) Rules 2008, and for the purpose of complying with such provisions, *I/We submit the following particulars:

(m) Letter of undertaking to compensate the Purchaser for the late delivery of houses, if any

11. And *I/We declare to the best of *my/our knowledge that the particulars given above are true.

*I/We understand that any misrepresentation of the above particulars is an offence under the Housing Development (Control and Licensing) Rules 2008.

My comment: Is not compensating the purchasers for the late delivery of houses, and settling the amount only after suing the developer, an offence under the Housing Development Rules 2008? It may be time to find out from the Housing Minister himself.

Another question that arises is why is statutory interest calculated from the date of judgment and not from the date LAD is due?

The Sales and Purchase Agreement:

The sales and purchase agreement is copied verbatim from the Housing Development Rules 2008. The following is from the S&P.

The Schedules are an essential part of this Agreement. Schedule A, among others, states the following:

h) Plans approved and cannot be changed.

The plans for the Project and the property has been duly approved by the Appropriate Authority and no alterations to the approved plans shall be made or carried out except as may be required by the Appropriate Authority.

(i) Good workmanlike manner in accordance with plans and specifications

The property shall be constructed in a good workmanlike manner in accordance with the specifications and plans approved by the Appropriate Authority and agreed to by and between the Purchaser and the Developer. No change thereto or deviation therefrom shall be made without the consent in writing of the Purchaser except as may be required by the Appropriate Authority. The Purchaser shall not be liable for the cost of such changes or deviations and in the event that the changes or deviations involve the substitution or use of cheaper materials or the omission of works originally agreed to be carried by the Developer, the Purchaser shall be entitled to a corresponding reduction in the purchase price herein or to damages, as the case may be.

The Original Approved Plan shown on the S&P is DP/002/11.06 approved by DBKK and signed by the mayor on 27.11.2006. The DP was prepared by and signed by Mr. Lee Yik Soon of Arkitek LYS. The DP was signed as owners by Topwira Corporation Sdn. Bhd and LPPB.

The questions that I have in my mind are:

i.                     Were the alterations, made to the original Development Plan, submitted to DBKK prior to commencement of work?

ii.                   Was the architect even aware of the alterations made?

iii.                 Why were the platform heights and road heights on the original Development Plan changed?

iv.                 Did DBKK (the Appropriate Authority) order changes or deviations from the Original Development Plan?

v.                   Why was no written consent requested from the purchasers?

vi.                 What is the purpose of the S&P agreement if developers and owners of land can deviate from the Original Development Plan?

vii.                What safeguards do house buyers have when the authorizing authorities approve amended development plans without taking into consideration whether house purchasers can access their houses using standard Malaysian cars?

Notes added at 7.30 am on 27.11.2022

On 22.11.2022 I telephoned the PA, Puan Justina (a very helpful lady) of Puan Della and asked her to make an appointment with Puan Della at a time convenient to Paun Della.

On 23.11.2022 I again telephoned Puan Justina to find out about my requested appointment. She replied that Puan Della had informed her that there is nothing further to discuss. She added that Della is busy until the 5th after which she will be on holiday till the end of the year. 

To be continued…