Expat couple wins RM500k lawsuit over Mont Kiara condo defects

KUALA LUMPUR: A Singaporean-American couple hoping to settle into a tranquil life under the Malaysia My Second Home (MM2H) programme were left disappointed after purchasing a RM2.66 million condo in Mont Kiara.

This is after their unit in Agile Mont Kiara Condominium was deemed uninhabitable due to severe defects, including leaks, cracked walls, and mould infestation since 2021.

The couple, Ho Yui Luen and Ho Shuang Li (plaintiffs) then sued the developer Agile PJD Development Sdn Bhd (defendant) after enduring more than four years of stress, hotel stays, storage fees, and endless defect rectification work.

According to the court document, the plaintiffs conducted an inspection of the parcel right after they got the key on Feb 4, 2021, and discovered that the property was riddled with severe defects that rendered it unfit for occupation.

Among the issues identified were water leakages, structural wall cracks, incomplete finishes due to poor workmanship, and inadequate waterproofing.

The plaintiffs decided to move in on Nov 6, 2021, after the defendant had carried out several rounds of rectification works on the rooftop, including hacking, applying cement, installing a torch-on membrane, and re-flooring.

However, the couple claimed that the defects remained unresolved and, in some instances, recurred which have further impacted their ability to enjoy the parcel.

Yui Luen, in his testimony, said the issue had severely disrupted his life due to constant interruptions by the defendant's workers carrying out rectification works, the stress of recurring defects, and the need to repeatedly move in and out of the unit.

He said his daughter suffered frequent headaches due to mould growth, which affected her health and social life.

The father also testified that his daughter often complained of "living in a storage room" due to packed boxes and hanging racks in her bedroom.

Meanwhile, the developer argued that they had delivered the vacant possession notice to the plaintiff together with amongst other, Certificate of Completion and Compliance (CCC) certifying that the parcel is safe and fit to be occupied.

The company said the plaintiffs did not, at any material time, challenge the validity of the CCC or the manner of the delivery of the vacant possession and the alleged defects were minor.

High Court (Construction) Judge Nadzarin Wok Nordin, in his judgment, disagreed with the defendant's claim, stating that during his site visit, he found the dampness to be severe and the unit uninhabitable.

"I found that the defects persisted on the day of the visit and the dampness was sufficiently visible to the naked eye.

"In my opinion, the defects were sufficiently serious to render the parcel uninhabitable — all the more so as it was marketed as a high-end condominium.

"The defects especially the water leakage is, in my view, severe and significant, and demonstrate the defendant's failure to construct the parcel in a good and workmanlike manner," the judge said in his ground of judgment recently.

Nadzarin said the defendant had also breached the Sale and Purchase Agreement (SPA) by failing to construct the parcel using good materials or in a workmanlike manner.

"The parcel has numerous defects, including, but not limited to dampness, water leaks, water ingress, a waterproofing system which has failed, wall cracks, flooring issues, and incomplete finishing work which has yet to be remedied properly.

"The defendant failed to follow standard practice in carrying out the rectification works properly and diligently, particularly by not engaging qualified experts to conduct thorough inspections using specialised equipment to detect water leakages," he said.

The court then awarded RM189,538.15 in special damages, RM200,000 in general damages, RM100,000 in exemplary damages, and RM20,426.84 in liquidated ascertained damages (LAD).

Nadzarin also ordered the defendant to issue a letter of guarantee and indemnity to rectify the defects within six months from the date of the judgment.

Lawyers San Peggy, Chin Yu Yen, and Lee Yen Jia appeared for the plaintiffs while the defendant was represented by Lee Pay Wen and Vivian Than On Yee.

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