Apartment Owners Win Rm3mil Suit Against Developer Over Missing Rooftop Garden

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The High Court ordered the developer of Midori Green Apartments in Johor Bahru to pay compensation and damages to all the owners, and pay late delivery charges to 39 of them.
Fifty homebuyers filed a suit against property developer Austin Heights Sdn Bhd for failing to build a rooftop garden at Midori Green Apartments. (Residents association pic)JOHOR BAHRU: After nine years, 50 apartment owners have won a case against the property developer for not constructing a rooftop garden on the building, as represented in the sale and purchase agreement
The High Court here ruled on Friday that Austin Heights Sdn Bhd, the developer for Midori Green Apartments, had failed to adhere to the terms in the agreement, which specified the construction of the garden.
Justice Nurulhuda Nur’aini Nor, in delivering her oral judgment, ordered the payment of a total of RM2.7 million to 50 purchasers in compensation and damages in lieu of specific performance amounting to 10% of each apartment’s purchase price.
As for the late delivery of vacant possession to 39 of the plaintiffs, the judge ordered the developer to pay them a total compensation of RM443,641. She also allowed interest at 5% per annum as well as costs of RM50,000.
In their suit, the apartment owners contended that not only was the rooftop garden missing, but the defendant had no intention of ever constructing it, as the approved building plan provided only for a reinforced concrete slab.
In their statement of claim, they said the company drafted the sales and purchase agreement, inserted the list of common facilities, and represented to purchasers that a rooftop garden existed.
“Having done so, the defendant cannot escape liability by asserting after the fact that the facility was impractical, omitted from the plan, or misunderstood,” the owners said.
They also said that a rooftop garden was shown to be part of the common facilities in the agreement, brochures, and marketing catalogue.
The homebuyers argued that the company’s duty to construct the rooftop garden was a promise within the meaning of the Contract Act and it was not absolved from performing this obligation.
NG Vinod and Jackson Daniel appeared for the plaintiffs while K Rajasegaran and A Shymala represented the developer. - FMT

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