Leh Tijo v Menteri Perumahan dan Kerajaan Tempatan (WA-25-208-05/2024)

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LEE YAU MUN

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WONG YIP CHIEW

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LOW CHEE KOON ERIC CHAN WEN JUN S/N dZNcc1h2sUOgO0LihszfXw

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SUHANA BINTI AYOB @ HARON

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CHEN WAI HEONG CHEN WAI LOONG S/N dZNcc1h2sUOgO0LihszfXw

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CHOO YIN PING

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RITCHIE LEE ZHE ZIN LIM KEE RAY S/N dZNcc1h2sUOgO0LihszfXw

LOCK E CHEN S/N dZNcc1h2sUOgO0LihszfXw

PHANG CHING WEI …PEMOHON-PEMOHON

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PENGAWAL PERUMAHAN

PUNCAK GAMA SDN. BHD. (NO. SYARIKAT: 629571-W) …RESPONDEN-RESPONDEN

The present application filed by 94 Applicants, is for extension of time to file for leave to commence judicial review proceedings. A review is sought in respect of the decisions of the 1st and 2nd Respondents in granting several extensions of time for delivery of vacant possession of their parcels.

The application for leave was filed on 3.5.2024, well after the time stipulated in O. 53 r 3(6) of the Rules of Court 2012. In view of this, S/N dZNcc1h2sUOgO0LihszfXw the Applicants have sought for an extension of time pursuant to O. 53 r. 3(7) of the Rules of Court 2012.

O. 53 r.3(8) provide for the application to extend time to be served on the respondents and shall be heard inter partes. Hence, all parties cited are before me in respect of the application to extend time. Background facts

The material facts which are undisputed, are as follows:

The Applicants are purchasers of units in a development known as Residensi Bintang Bukit Jalil. They executed Sale and Purchase Agreements (SPA) with the 3rd Respondent (“R3”) between the periods from 26.11.2017 to 20.10.2019. These SPA were statutory contracts under the Housing

(ii) At the time of the execution of the SPA, there was already an extension of the time for delivery of vacant possession from 36 months to 54 months from the date of the SPA. This approval was given in a letter dated 03.11.2017 from the Ministry of Housing and Local Government (“HDR Extension”);

As a result of the COVID-19 pandemic, R3 obtained 3 exclusions of time under the Temporary Measures For Reducing The Impact Of Coronavirus Disease 2019 S/N dZNcc1h2sUOgO0LihszfXw (COVID-19) Act 2020 (“COVID Act”). These exclusions were contained in letters from the Ministry of Housing and

(ii) The 1st exclusion of time was granted on 5.11.2020 where 167 days were excluded from the computation of time for delivery of vacant possession under section 35 of the COVID Act (“1st COVID Exclusion”). The 1st COVID Exclusion is not disputed by the Applicants;

(iii) On 30.03.2021, R3 obtained another exclusion of 122 days section 35 of the COVID Act (“2nd COVID Exclusion”);

(iv) On 26.04.2022, pursuant to Section 38C of the COVID Act, the 3rd Respondent an exclusion of 304 days (“3rd COVID Exclusion”);

On 4.12.2023, R3 issued Notices Of Delivery Of Vacant Possession (“VP Notices”) to the Applicants at their respective contractual addresses in the SPAs to inform them to take delivery of vacant possession;

(vi) The VP Notices attached the approval letters in relation to the COVID Exclusions. Contention of the Respondents

All the Respondents contend the judicial review application was filed outside of the 3 months period stipulated in O. 53, rule 3(6). In S/N dZNcc1h2sUOgO0LihszfXw the circumstances, good reasons must be given for the delay. There are none given.

R3 also contend that the delay was too inordinate for the court to exercise its discretion as the Applicants had prior knowledge of the impugned decisions as follows:

the HDR extension was already known when the SPA were executed between 2017 and 2019; and

(ii) the 2nd and 3rd COVID Exclusions were known well before the filing of the leave application.

The Respondents further contend that no useful purpose will be served in granting the extension for the leave application as the merits of the Applicants’ case had already been determined by decided authorities. Analysis and decision

It leaves me now to consider if an extension ought to be granted.

The provisions of O. 53 r. 3(6) obliges the Applicants to apply for leave within three months from the date when the grounds of application first arose or when the decision is first communicated to the Applicants. S/N dZNcc1h2sUOgO0LihszfXw

In this regard, the knowledge of the Applicants is crucial as time starts running from when they first became aware of the impugned decisions.

The Applicants were aware of the HDR Extension when they executed their respective SPAs between 26.11.2017 and 20.10.2019. It is stated expressly in the SPA that vacant possession will be delivered 54 months from the date of the SPA. Since the Applicants are seeking to quash inter alia the HDR extension, the time for filing the challenge to the extension is 3 months from the date of execution of the respective SPAs.

Consequently, even taking the latest date of execution of the SPA, the application for leave filed on 3.5.2024 is clearly well out of time by more than 5 years.

In respect of the COVID Exclusions, only 2 decisions are impugned. The 2nd COVID Exclusion was dated 30.3.2021, and the 3rd COVID Exclusion was dated 26.4.2022. The leave application to challenge these decisions were 3 years and 3 months and 2 years and 7 days after the respective exclusions.

Even if it can be considered that the Applicants were not aware of the exclusions when they were made, it is in evidence that between 27.5.2022 and 4.12.2023, the 3rd Respondent had by their letters, notified the Applicants of the COVID Exclusions, and enclosed the approval letters. The Applicants thus had actual knowledge of the COVID Exclusions between 2022 and 2023. Having examined the letters, I find the fact of their knowledge established. S/N dZNcc1h2sUOgO0LihszfXw

The Applicants were again made aware on 4.12.2023, when the 3rd Respondent sent the VP Notices to the Applicants. The VP Notices made express references to the COVID Exclusions. Again, the relevant approval letters for the exclusions were enclosed. By this time, the Applicants cannot deny actual knowledge of the COVID Exclusions.

The question that follows next is whether good reasons have been shown for this court to grant an extension. The affidavit filed on behalf of the Applicants is bereft of any explanation save to reiterate that they were not made aware of the impugned decisions until after 06.02.2024. In view of the telling omission, I am compelled to conclude no reasons have been given. Consequently, the extension cannot be granted.

On this ground alone, the application for an extension to file the leave application ought to be dismissed.

However, for the sake of completeness, I shall deal with another ground advanced by the Respondents. The Respondents contend that the grant of extension would be a mere exercise in futility. The outcome of the Applicants’ challenge to the impugned decisions is a foregone conclusion as the ground for challenge has already been decided by the Courts.

In essence, the Applicants’ main grounds for judicial review are that: S/N dZNcc1h2sUOgO0LihszfXw

The Applicants were not heard before the impugned decisions to grant extensions, were made;

(ii) The Minister cannot delegate its power under the Housing Development Act to other parties including the Controller of Housing;

(iii) Rule 11(3) of the HDR Regulations that empowers the Controller to exercise is ultra vires the parent Act;

(iv) The 2nd Respondent was not empowered to sign the approval letters for the exclusions under the COVID Act.

Issue (i) has been decided in Bludream City Development Sdn Bhd v. Kong Thye & Ors And Other Appeals [2022] 2 MLJ 241. The Court of Appeal held that there is no requirement for all purchasers to be heard before the Minister makes a decision. The relevant portion of the judgment reads: [66] Whereas here, there is no express requirement of a right to be heard that must be given to the purchasers, what is important is that the Minister must act fairly, taking into consideration that the purchasers here, being purchasers, are not obliged to consent to any extension of time implored by the developer. The Minister is thus entitled to proceed on the assumption that the purchasers would not agree to any extension of time. [67] The Minister, in discharging his duty under the Act, would have to take the interest of the purchasers into consideration as he is entrusted under the HDA to safeguard the rights of the purchasers under s. thereof... S/N dZNcc1h2sUOgO0LihszfXw [68] There is thus no need to hear the purchasers individually or independently unless he has some doubts as to how the purchasers' interest may best be safeguarded as in various options and permutations open to the purchasers...

In relation to issues (ii) and (iii), the Applicants are obviously relying on the Federal Court decision in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor [2020] 1 MLJ 281 which held that Regulation 11(3) of the HDR Regulations is ultra vires and that the Minister cannot delegate its powers under the Housing Development Act.

However, the effect of Ang Ming Lee has since been whittled down after the Federal Court case of Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd and other appeals [2024] 5 MLJ 897 which held that the decision in Ang Ming Lee does not have retrospective effect.

The Federal Court in Obata-Ambak held: [160] In Ang Ming Lee this Court declared that reg 11(3) of the HDR ultra vires the HDA, and thus, the extension granted by the Controller was invalid. Ang Ming Lee, however, is silent as to whether the effect of declaring reg 11(3) of the HDR ultra vires would apply retrospectively or prospectively. This means that any extension granted by the Controller would be invalid prior to Ang Ming Lee and house buyers would be entitled to LAD to be calculated up to Ang Ming Lee notwithstanding the fact that they may have been paid LAD and vacant possession have been delivered. This cannot be so, as it will result in substantive injustice as it will impair the rights of the parties involved. At the time the extension was granted the law, that is reg 11(3) of the HDR was valid and reliance S/N dZNcc1h2sUOgO0LihszfXw was placed based not only on the statutory regime at that time allowing such extension to be granted and extending the prescribed 36 months completion period but also the terms of the executed SPAs were based on the approved extension as required by the law. … [167] We have given our utmost consideration on the facts and the law and we are of the view that if Ang Ming Lee is to have retrospective effect there would be serious ramifications and repercussions to the housing developers that had placed reliance on the existing law and diligently complied with the laws which were at that time valid. [168] Therefore, based on the reasons we have stated above and the exceptional circumstances involved, the decision of Ang Ming Lee is prospective. To say otherwise that Ang Ming Lee applies retrospectively will result in great injustice and devastating consequences to the housing industry that had diligently complied with the laws before Ang Ming Lee. Thus, the principles enunciated in Ang Ming Lee will not apply to extensions granted by the Controller before Ang Ming Lee.

Ang Ming Lee was decided on 26.11.2019, years after the HDR Extension was granted on 03.11.2017. Following the Federal Court case of Obata-Ambak, the HDR Extension remains valid and effectual. The Applicants’ challenge is futile.

As for issue (iv), I refer to the decision of the High Court in Chong Yuong Wee & Ors v. Menteri Perumahan Dan Kerajaan Tempatan, Kementerian Perumahan Dan Kerajaan Tempatan & Ors [2025] 1 CLJ 111. A similar argument to the Applicants’ on the delegation of the Minister’s powers under the COVID Act was advanced. The High Court held as follows: S/N dZNcc1h2sUOgO0LihszfXw [43] The applicants relied on the Federal Court case of Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals [2020] 1 CLJ 162; [2019] 6 MLRA 494; [2020] 1 MLJ 281; [2019] 8 AMR 297 which made it clear that should the Minister be empowered by any written law to exercise any powers or perform any duties, he may, by notification in the Gazette delegate such powers or duties. [44] However, the argument raised by the applicants was devoid of merit. I find this point was answered by the Federal Court as question [4] in Ang Ming Lee (supra). There, the Federal Court held that: (i) generally, a Minister need not sign a letter personally; (ii) what is crucial is not whether the Minister signed the letter personally, but whether the decision conveyed in the letter was made by the Minister and whether the letter was in fact signed by the officer on behalf of the Minister; and

(iii) the Minister may explain by affidavit whether he had in fact made the decision conveyed in a letter signed by his officer, and the officer was conveying the decision on his behalf. … [46] The content of the first respondent's decision is repeated herein below: Para 3. Berdasarkan Bahagian XIA, Subseksyen 38C(1) dan Subseksyen 38C(2) di bawah Akta tersebut, dimaklumkan bahawa permohonan pihak Tuan bagi pemajuan yang telah dilesenkan seperti di atas telah pun dipertimbangkan dan diluluskan oleh YB Menteri melalui minit bebas no rujukan: KPKT/07/PS/828/6 Jld. 1(108)... (emphasis added) [47] The important phrase in para. 3 is "... telah pun dipertimbangkan dan diluluskan oleh YB Menteri..." wherein it is clear that the decision referred in the EOT is a decision made by the Minister. … [50] Given the above, this court views that the contents of the said letter itself clearly mentioned that the third exemption was a decision by the S/N dZNcc1h2sUOgO0LihszfXw first respondent and the second respondent was only instructed to convey the said decision on behalf of the first respondent.

I agree with the views expressed by the learned High Court Judge therein.

In the current case, the approval letter for the 2nd COVID Exclusion was signed by the Minister herself. As for the letter conveying the decision of the 3rd COVID Exclusion, this letter is on all fours with the letter in Chong Young Wee, indicating that the approval was considered and given by the Minister and that the 2nd Respondent was merely instructed to convey the decision on her behalf.

Premised on the above, the Applicants’ challenges are bound to fail, and it no useful purpose would be served by granting the extension. The Respondents ought not to be put to unnecessary time and use of its resources to defend the Applicants’ case.

Premised on the foregoing reasons, the application for extension of time is dismissed. As a consequence thereof, the leave application in enclosure 1 is struck out. Dated: 19th June 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur S/N dZNcc1h2sUOgO0LihszfXw Counsel for Applicant: En. Lim Meng Guan (Muhammad Luqman bin Ismail Zawawi together with him) Tetuan Zi & Associate Counsel for 1st & 2nd Respondents: En. Mohd Faisal bin Md Noor Senior Federal Counsel Jabatan Peguam Negara Counsel for 3rd Respondent: Pn. Yee Mei Ken (Pn. Melvin Moi Kai Sen together with her) Tetuan Shearn Delamore & Co. S/N dZNcc1h2sUOgO0LihszfXw