1. ) Stefanie Jean Yii v 1. ) Menteri Kementerian Pembangunan Kerajaan Tempatan (Dahulunya Dikenali Sebagai Kementerian Perumahan dan Kerajaan Tempatan) (BA-25-14-03/2023)

Tempatan dan surat-surat bertarikh 3.3.2021,

10.2021 dan 11.10.2022 yang ditandatangani oleh Ketua Pengarah, Jabatan Perumahan Negara Kementerian Pembangunan dan Kerajaan Tempatan memberi pengecualian 654 hari untuk pengiraan masa bagi penyerahan pemilikan kosong dalam suatu perjanjian jual beli yang ditandatangani antara Wadah Berkat Sdn. Bhd. Dan pembeli-pembeli Hijauan Selayang. 29/05/2025 13:54:20 Kand. 45

STEPHANIE JEAN YII

LIM KAI YI

GENEVIE WAN ANYIE

NGAN SIN YEE

SIVARAMAN A/L MANIAM

ANURATHA A/P LETCHIMANIAM

WONG BOON PIN

CHAM CHEN LEA

CHIA HENG KIANG

SEAH LEE FONG

KAW HENG KEE @ LAW HENG KEE

MOK EE ANN

CHIA CHIN HOW

CHIA ZHENG LUN

CHIA LEE KIAU

TEOH KIM HAN

CHANG KAH MUN

LIM KIAN HSIA

NG KIAN KIM

CHONG CHA WEI

SEOK KAR YEAI

LEE CHUN YI

LEE KAE YIN

HO PUI YEE

YEE KOK SEONG

CHAN PIK WAN

LIEW KOK MUN

YONG VEI

TAN LAY HOON

WONG TSUNG MUN

YONG WEI YIH

TAN AH KOW

TAN ERN KHAI

NUR ADELINA LEONG BINTI ABDULLAH

NG HANG SENG

NG ZHI LING

ONG SHIN HOOI

ONG SHIN MIN

RAY ONG

MOHD. FAIZAL BIN AHMAD

LEE DEMENN

CHAN KAI LING (NO. K/P: 821020-14-5716) APPLICANTS

MENTERI KEMENTERIAN PEMBANGUNAN KERAJAAN TEMPATAN (Dahulunya Dikenali Sebagai Kementerian

KETUA PENGARAH, JABATAN PERUMAHAN NEGARA KEMENTERIAN PEMBANGUNAN KERAJAAN TEMPATAN (Dahulunya Dikenali Sebagai Kementerian

WADAH BERKAT SDN. BHD. (NO. SYARIKAT: 199801005453 (461580-U)) RESPONDENTS GROUNDS OF JUDGMENT [1] In this judicial review application, the Applicants seek to challenge the decision of the First Respondent and/or Second Respondent in granting:

the First Exemption (18 March 2020 to 31 August 2020) via a letter dated 3 October 2021;

(ii) the Second Exemption (1 September 2020 to 31 December 2020) via a letter dated 4 October 2022 of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020 [“Act 829”]; and

(iii) the Third Exemption of 365 days for the period from 01 January 2021 to 31 October 2021 pursuant to section 38C of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Amendment Act 2022 [“Act A1641”] via letter dated 25 January 2022, wherein the said 365 days in that period would be excluded in the calculation of the time period for delivery of vacant possession and completion of common facilities. [Act 829 and Act A1641 collectively referred to as Covid-19 Act] Reliefs Sought [2] The main reliefs sought by the Applicant are:

a declaration that the First Exemption, Second Exemption and Third Exemption are null and void; and

(ii) an order of certiorari to quash the First Exemption, Second Exemption and Third Exemption. Factual Background [3] The facts of this application has been gleaned from documents filed by parties. [4] The First Respondent is the Minister responsible for housing matters under the Housing Development (Control and Licensing) Act 1966 (“HDA”) and its Regulations. The Second Respondent is Director General of Jabatan Perumahan Negara. [5] The Third Respondent is the licensed housing developer of the project, operating under the HDA. [6] The Third Respondent entered into Sale and Purchase Agreements (“SPAs”) with the Applicants, who are the buyers of units in the development. [7] These SPAs follow Schedule G and Regulation 11(1) of the Housing Development (Control and Licensing) Regulations 1989. Clause 24 of the SPAs requires vacant possession to be delivered within 24 months. [8] The Third Respondent submitted letters dated 10 December 2020 to apply for an exemption of time for delivery of vacant possession under section 35 of Act 829. The Second Respondent, in accordance with subsection 35(1) of the Covid-19 Act, approved the First Exemption. [9] The First Exemption was allowed with the following conditions imposed by the Second Respondent: “(i) Pemaju memaklumkan kepada Pembeli berkenaan kelulusan ini secara bertulis dan melampirkan surat pemakluman kelulusan;

(ii) Pemaju hendaklah memastikan bahawa tempoh liability kecacatan mengambil kira pengecualian tempoh dari 18.3.2020 hingga 31.8.2020;

(iii) Pemaju memaklumkan kepada pembeli sebarang denda lewat bayar yang dikenakan dari 18.3.2020 hingga 31.8.2020 adalah dikecualikan dan tidak akan dikenakan kepada Pembeli; dan

(iv) Pemaju menyelesaikan sebarang denda (“LAD”) sekiranya Pemaju gagal menyiapkan unit dalam tempoh pelanjutan yang ditetapkan.” [See: 2nd Respondent’s Affidavit – paragraph (17)] [10] The Third Respondent submitted letters dated 3 January 2021 and 23 May 2022 seeking a Second Exemption of time for the delivery of vacant possession under section 35 of Act 829. Included in the submission was a letter from the project architect, Archi-Invent Architect, dated 31 January 2022, in support of the application.

No person shall be deprived of property save in accordance with law.

No law shall provide for the compulsory acquisition or use of property without adequate compensation.” [20] In relation to Article 13(1) of the Federal Constitution, the provision permits a person to be deprived of property, provided that such deprivation is carried out in accordance with the law. The term "law" in this context refers to legislation that is validly enacted by a competent legislature acting within the scope of its legislative authority. [See: Arumugam Pillai v. Government of Malaysia [1975] 2 MLJ 29; Government of Malaysia & Anor v Selangor Pilot Association [1977] 1 MLJ 133] [21] Pertaining to Article 13 of the Federal Constitution, this court agrees with the submission by learned Senior Federal Counsel that the right to claim liquidated ascertained damages (LAD) under Clause 25 of the SPAs, is a contractual right to seek compensation in the event of a default or breach. As such, the LAD does not fall within the definition of "property" as intended under Article 13 of the Federal Constitution. In other words, a contractual right to claim damages is not considered "property" under Article 13 of the Federal Constitution. Hence, this court is satisfied that sections 35 And 38 of the Covid-19 Act are not in contravention of Article 13 of the Federal Constitution and are not unconstitutional. First Exemption: 18 March 2020 to 31 August 2020 (167 days) [22] The Third Respondent, the project developer, submitted a letter dated 10 December 2020 applying for an extension of time to deliver vacant possession under Section 35 of Act 829. To support the application, the developer enclosed a letter from its architect, Archi-Invent Architect, dated 11 December 2020. [See: Second Respondent’s Affidavit at paragraph 15 and Exhibit J- 5] [23] On 23 October 2020, the Covid-19 Act was gazetted. Part XI of the Covid-19 Act, includes sections 32 to 38 which introduces modifications to the HDA. Under Section 32, Part XI is deemed to have come into effect retroactively from 18 March 2020. [See: Second Respondent’s Affidavit at paragraph (10)] [24] Section 35 of the Covid-19 Act addresses matters related to the delivery of vacant possession and liquidated damages. Specifically, subsection 35(1) states that, regardless of the terms agreed between the purchaser and developer, the period from 18 March 2020 to 31 August 2020 is to be excluded when calculating the time frame for delivery of vacant possession and any liquidated damages for delays. [See: Second Respondent’s Affidavit at paragraph

(11)] [25] Founded on subsection 35(1), the Second Respondent approved the First Exemption, which was then communicated to the Third Respondent through a letter issued by the Deputy Controller of Housing dated 3 March 2021. [26] In this regard, subsection 35(1) of the Covid-19 Act reads: “35. (1) Notwithstanding any agreement entered into between the purchaser and the developer, the period from 18 March 2020 to 31 August 2020 shall be excluded from the calculation of—

the time for delivery of vacant possession of a housing accommodation; and

the liquidated damages for the failure of the developer to deliver vacant possession of a housing accommodation.” [27] It is clear from a reading of subsection 35(1) of the Covid-19 Act that regardless of any agreement made between the purchaser and the developer, the period from 18 March 2020 to 31 August 2020 shall be excluded from the calculation of:

the time frame for delivering vacant possession of a housing unit; and

any liquidated damages arising from the developer’s failure to deliver vacant possession within the agreed time. [28] In other words, the period of 18 March 2020 to 31 August 2020 is excluded from the calculation of liquidated damages. This provision applies, in the considered view of this court, automatically in that the developer need not apply for an exemption. The exemption is provided for statutorily in section 35 (1) of the Covid-19 Act. [29] Hence, this court opines the period of 18 March 2020 to 31 August 2020 is excluded from the exemption without the need for the developer to apply or request for an exemption. This exemption, in the considered view on this court, cannot be illegal as it is provided for by statute. Second Exemption (1.9.2020 to 31.12.2020) [30] The Third Respondent, as the developer of the project, submitted letters dated 3 January 2021 and 23 May 2022, along with supporting documents, to apply for a second extension of time for delivering vacant possession under Section 35 of Act 829. The application was also supported by a letter from the developer’s architect, Archi-Invent Architect, dated 31 January 2022. [See: Second Respondent’s Affidavit at paragraph (11)] [31] In accordance with subsection 35(1) of the Covid-19 Act, the 2nd Respondent approved the second extension on 14 July 2022, granting an additional 167 days. [See: Second Respondent’s Affidavit at paragraph (24)] [32] The Third Respondent was notified of this Second Extension through a letter from the Deputy Controller of Housing, dated 4 October 2022. [33] The Applicants argue that the process of granting the Second Exemption was flawed due to an inconsistency. The Applicants point out that the Third Respondent submitted the application on 3 January 2021, which was prior to the approval of the First Exemption on 18 February 2021. Based on this, the Applicants contend that the First Respondent and the Second Respondent acted inconsistently in approving the Second Exemption and assert that the decision was irrational, unreasonable, and unfair. [34] The second exemption was made pursuant to subsection 35(2) of the Covid-19 Act. For ease of reference, subsection 35(2) of the Covid-19 Act is reproduced below: “(2) The developer may apply to the Minister for an extension of the period referred to in subsection (1).

Upon considering the application under subsection (2), the Minister may, if the Minister is satisfied that additional time is required by the developer to deliver vacant possession, by written direction grant to the developer an extension period of up to 31 December 2020 to deliver vacant possession and such extension shall have the same effect as the period excluded in subsection (1).” [35] Founded on the provision cited, it is clear that the Second Exemption is available to the Third Respondent at the satisfaction of the Minister that additional time is required by the Third Respondent to deliver vacant possession. [36] The Applicants argued that the First Respondent and Second Respondent failed to provide their rationale for approving the exemption. The First respondent, Puan Zuraida binti Kamaruddin averred in Enclosure 33 particularly in paragraphs (6) and (7) as reproduced below: “6. Saya sesungguhnya menyatakan bahawa, susulan keputusan kerajaan melaksanakan Perintah Kawalan Pergerakan (‘PKP’) bagi kawalan wabak Covid-19 yang berkuatkuasan daripada 18.3.2020, pada 23.10.2020 Kerajaan telah mewartakan dan melaksanakan pemakaian Akta Langkah-Langkah Sementara bagi Mengurangkan Kesan Penyakit Koronavirus 2019 (Covid-19) 2020 (‘Akta 829’) untuk mengubahsuai peruntukan obligasi Perjanjian Jual Beli di bawah Akta Pemajuan Perumahan (Kawalan dan Pelesenan) 1966 (‘Akta 118’).

Susulan syarat PKP ini, pihak pemaju dan pembeli gagal untuk melaksanakan obligasi yang diperuntukkan di bawah Perjanjian Jual Beli kerana operasi syarikat pemaju, pembinaan, perbankan, guaman dan industri yang menyokong sektor pemajuan perumahan telah diarahkan untuk berhenti beroperasi. Kegagalan melaksanakan obligasi atas sebab ‘force majeure’ akibat penularan pendemik adalah tidak tertakhluk dan tidak diperuntukkan di bawah Perjanjian Jual Beli seragam di bawah Akta 118. Maka, Akta 829 bertujuan untuk mengubahsuai peruntukan dalam Perjanjian Jual Beli selaras dengan Akta 118 yang bertujuan untuk memberi perlindungan sementara kepada kedua-dua pemaju dan pembeli rumah akibat insiden ‘force majeure’ tersebut.” [37] The Covid-19 pandemic that engulfed the world required measures to be taken to protect and preserve public health. In Malaysia, the construction industry was not an essential industry. As a result, the construction industry was affected by the Covid-19 pandemic. The introduction of the Covid-19 Act was necessary to ensure both the developers and the house purchasers were protected as a result of the pandemic and the movement control order imposed by the Government. [38] The facts reveal that at the time the initial application for the Second Exemption was submitted, it fell under the authority of the then First Respondent, YB Puan Zuraida Kamaruddin. However, the subsequent application letters dated 19 May 2022 and 27 June 2022 were submitted during the tenure of YB Dato’ Sri Reezal Merican Naina Merican. These letters were served as supporting documents for the exemption request, as the First Respondent was obligated to consider the prevailing circumstances at the time of the application. [39] The First Respondent and the Second Respondent had, this court finds, discharged their duties for the exemption as per the provisions of the Covid -19 Act. There was no provision for the requirement to provide a rationale for the decision to allow the Third Respondent an exemption. The Covid-19 Act in subsections 25 (2) and (3) makes provision for this. There is, in the considered view of this court, nothing illegal or irrational in the conduct of the First Respondent and Second Respondent. [40] Moreover, the subsection 35(3) of the Covid-19 Act provides “the Minister is satisfied that additional time is required by the developer to deliver vacant possession, by written direction grant to the developer an extension period of up to 31 December 2020”. This provision requires the Minister to be satisfied. So long as the Minister is satisfied, there is no need for the Minister to provide a rationale for his or her decision. [41] This court takes notice that the Covid-19 pandemic was unprecedented, and hence there was a need to mitigate the effects of the pandemic to ensure all parties would financially survive the pandemic. This court therefore finds no illegality or irrationality in the decision for the second exemption. Third Exemption 1 January 2021 to 31 December 2021 [42] The Third Respondent, as the developer of the project, submitted an email dated 25 January 2022 and letters dated 10 February 2022 to apply for an extension of time for the delivery of vacant possession under subsection 38C (1) of Act A1641. The application included Form A, outlining the challenges faced and the necessity for a third exemption of 365 days, along with supporting documents. [43] Pursuant to subsection 38C (1) of the Covid-19 Act, the Second Respondent approved the Third Exemption on 11 October 2022, granting an extension of 365 days. [See: Second Respondent’s Affidavit at paragraph (24)] [44] The Third Respondent was notified of this approval via a letter issued by the Deputy Controller of Housing, also dated 11 October

[See: Second Respondent’s Affidavit at paragraph (44) and Exhibit J-3] [45] The Applicant contended that in allowing the Third Exemption, the First Respondent and/or Second Respondent failed to take into account that the Third Respondent had only applied for an exemption from 1 June 2021 to 31 October 2021. It was hence submitted that the Third Exemption is ultra vires Act 829 and is invalid, null and void. Reference was made to the case of Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991] 1 MLJ 417. [46] Exhibit “J-9” in the Second Respondent’s affidavit clearly shows that an application form for exemption under subsection 38C (1) of Act A1641 was submitted via email dated 25 January 2022. Additionally, paragraphs (32) and (33) of the Second Respondent’s Affidavit in Reply, affirmed by Dato’ Jayaseelan a/l K. Navaratnam, confirm that the application was indeed submitted and forwarded to the Ministry, accompanied by the required supporting documents. [47] Section 38C of Act A1641 on the other hand extends the same treatment [per Section 38C(5) of Act A1641] for a further period from 01 January 2021 to 31 December 2021 [per subsection 38C(1) of Act A1641] [48] Based on the wording of subsection 35(3) of Act 829 and section 38C of Act A1641 of the Covid-19 Act, an extension of time can only be granted if the Minister is satisfied that the Developer genuinely requires additional time to deliver vacant possession. In line with the intent and purpose of the Covid-19 Act and the related modifications to the HDA, this need for extra time must be attributable to the impact of Covid-19. [49] In assessing the Minister’s satisfaction under subsection 35(3) of Act 829 and section 38C of Act A1641, the key issue for determination is whether a reasonable Minister, fully informed of the relevant facts, would be objectively satisfied that the Developer requires additional time to deliver vacant possession due to the impact of Covid-19. This standard, known as the objective test, was established by the Federal Court in Merdeka University Berhad v. Government of Malaysia [1982] 2 MLJ 243. [50] The fact is that when the Third Respondent applied for the Third Exemption on 25 January 2022, vacant possession had not been delivered by the Third Respondent to the Applicants. [51] The Third Respondent was prohibited from exercising its’ right to terminate and/or impose any penalty in the form of LAD against its main contractors and/or subcontractor for the period between 18 March 2020 until 22 October 2022. [52] The restrictions on the Third Respondent until 22 October 2022, reflects the government's acknowledgment that the impacts of Covid-19 measures persisted until that date. Given this official recognition, it is unreasonable to argue that the Third Respondent could not impose liquidated damages on its contractors for delays, yet was not entitled to seek retrospective relief under Section 38C of Act A1641. This, in the considered view of this court, would result in an absurdity. [53] Hence, this court finds no illegality, irrationality, and/or unreasonableness in the granting of the Third Exemption. Right to be heard [54] The Applicants alleged there was a denial of right to be heard and not obtaining their consent prior to the exemption. In Bludream City Development Sdn Bhd v Kong Thye & Ors [2022] 2 MLJ 241 the Court of Appeal stated:

there was no explicit requirement for purchasers to be granted a right to be heard in the exemption process;

what mattered was that the Minister acted fairly, bearing in mind that purchasers were under no obligation to consent to any extension of time requested by the developer;

the Minister was entitled to assume that purchasers would not agree to an extension of time; [55] In this current judicial review, the relevant considerations and competing interests, as highlighted in the Bludream case, were presented to the First Respondent, who did in fact take them into account before making a decision [See paragraphs [24] to [26] of Enclosure (21)). [56] There is no express provision under Act 829 and Act 1641 on that right to be heard must be given to the Applicants. [57] While it could be argued that the right to be heard is a natural justice right which need not be legislated, it must be borne in mind that the purpose of the Covid-19 Act was to mitigate the impact of the corona virus in our country. This was a time when public health and public safety was paramount. To expect the First Respondent to give each purchaser of a property an opportunity to be heard prior to allowing the exemption, in the view of this court is implausible to be carried out. During the pandemic, there was a need to act quickly, as lives were at risk. To expect the First Respondent to give a right to be heard to all the purchasers, in the view of this court, is unconceivable. It would be challenging, if not impossible to be carried out, given the situation and circumstance at that time. [58] At the time the Third Exemption was granted, it coincided with the enforcement of the Movement Control Order (MCO). Given the circumstances, it would have been practically unfeasible for the Minister or the Ministry to individually notify, obtain consent from, or hear submissions from the purchasers. This was not due to any unwillingness on their part, but rather because construction and development activities were halted, as they were not deemed essential services by the Government during that period. [59] Moreover, in Bludream City Development (supra) the Court of Appeal stated: “[61] Where the right to be heard is not expressly stated in the statute or regulation, then whether the Minister had taken the interest of the purchasers into account must depend on the particular and peculiar circumstances of each case. Here we are dealing with some 270 purchasers and one can imagine the colossal task involved in hearing everyone of them when a quick decision has to be made. [62] The majority in the Federal Court in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 LNS 7 held that the real meaning of the right to be heard depends on the circumstances and nature of each case. Mary Lim FCJ observed astutely that “[348] Ultimately what is the real meaning and what amounts to an opportunity to be heard depends on the circumstances and nature of each case – see also Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149 FC; [2012] 3 CLJ 577.” [63] The learned High Court Judge in quashing the decision of the Minister on ground of breach of natural justice had relied on the Court of Appeal’s decision in Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor v Ang Ming Lee & Ors and Other Appeals [2018] 4 MLJ 545 where was remarked as follows: [24] The final issue raised before us in arguments was whether the purchasers ought to have been given a right of hearing prior to the decision made by the Controller and/or Minister. In this respect, we note that the purpose of the Act was to protect the interest of the purchasers. As the rights of the purchasers to claim damages in the event of delay would be adversely affected or even extinguished, we agree that the purchasers must be given an opportunity to be heard prior to any decision made. [25] As the purchasers comprise a group which can easily be ascertained, they should at least be notified of the developer’s application for any extension of time to complete the project and be given a reasonable period of time to state their views before any such decision is taken. As no such right to be heard was afforded to the purchasers, it is our judgment that the decision made in this case, whether by the Controller or Minister, was null and void and of no effect and should accordingly be set aside.” (emphasis added) [64] The strictures set out by the Court of Appeal must now be read in the light of the majority’s observation in the Federal Court’s case of Maria Chin (supra).” Conclusion [60] For the aforementioned reasons, this court finds no illegality, irrationality, and/or unreasonableness which would move this court to allow this application for judicial review. This application for judicial review is hereby dismissed. Costs of RM3000 to the First Respondent and the Second Respondent, cost of RM5000 to the Third Respondent subject to allocator. Date: 29 May 2025 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsels: For the 1st - 42nd Appellants Chan Shieh Chin Messrs Lui & Bhullar Advocates & Solicitors Suite J-7, 8, Jalan Solaris, Solaris Mont Kiara, 50480 Kuala Lumpur. For the 1st & 2nd Respondents: SFC Shahidah Nafisah binti Leman Attorney General Chamber Civil Division, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya. For the 3rd Respondent: Azhar bin Arman Ali Messrs A. Arman & Co Advocates & Solicitors No. 3-5, Jalan 15/48A, Sentul Boulevard, Off Jalan Sentul, 51000 Kuala Lumpur.