In Robophone Facilities Ltd v Blank  3 All ER 128, Diplock LJ said of liquidated damages clauses: “I see no reason in public policy why the parties should not enter into so sensible an arrangement under which each knew where they stand in the event of a breach by the defendant and can avoid the heavy costs of proving the actual damage if litigation ensues.” However, Malaysian courts chose to travel a different path — one trodden by Indian courts — by not recognising such clauses and equating them with penalties under which damages have to be proved in the usual way, except that the stipulated sum operates as a ceiling on recoverable damages.
Then along came the recent case of Cubic Electronics Sdn Bhd (in Liquidation) v Mars Telecommunications Sdn Bhd  6 MLJ 15, which sought a formula applicable to both liquidated damages and deposits that reconciles with the latest English position. That formula is perceived to be more precise, easier to apply, makes better commercial sense, of more universal application, and cuts down on the uncertainties of the exercise of the court’s discretion. Has the Federal Court succeeded in achieving the desired objectives?
At the heart of this matter is the construction of section 75 of the Contracts Act 1950 which has perplexed many a judicial mind. Does this section also prevail over the liquidated damages clauses for late delivery of vacant possession by the developer and late payment interest imposed on the purchaser in the statutory sale and purchase agreements under the housing legislation?
These issues will be discussed in this CPD Live webinar.
- Understand the nature of liquidated damages, penalties and deposits;
- Gain better perspective and awareness of the evolution of the law on these issues in Malaysia as well as in the relevant jurisdictions of England and India;
- Know the current law on these issues in Malaysia;
- Comprehend these issues pertaining to contracts under housing legislation;
- Know the prevailing uncertainties and controversies; and
- Able to identify the best course to adopt when faced with these issues.
Dr Teng Kam Wah holds a PhD in construction law from the University of Malaya. He obtained both his LLB (Honours) and LLM degrees from the University of London. He first graduated with a science degree from the University of Malaya, where he was awarded the University of Malaya Book Prize. He is a Fellow of the Chartered Institute of Arbitrators and was, for a brief period, the Group Legal Manager of one of the largest construction, infrastructure and property development companies in Malaysia where he gained industry experience. He was the 1st-prize winner of the Vincent Powell-Smith Competition in construction law. He has more than 20 law articles published in journals and is the author of the book Construction Defect Claims in Malaysia (Sweet & Maxwell, 2019). He has taught law part-time at the University of Malaya, and now practises in construction dispute resolution under his own law firm as counsel, adjudicator, and arbitrator.
Terms and Conditions
A Step-By-Step Guide to Join the CPD Live Webinar
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Screen recording, sharing the webinar ID and password links, reproducing the content of the CPD Live Session on any platform are strictly not allowed.
Any unregistered person may be removed without prior notice, and no CPD point will be awarded. Failure to adhere to this may result in disciplinary action by the Bar Council.
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If you have failed to inform the organiser on your cancellation for three consecutive times, you may be blacklisted for future events.
Refunds will be processed after the event is completed. This may take up to 30 business days. The conditions for refunds are as follows:
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