1. ) Tan Thun yang v 1. ) Menteri Perumahan dan Kerajaan Tempatan (WA-25-211-05/2024)

After reviewing the cause papers and submissions of the counsels, I find no merit in L.12 and dismissed it with no order as to costs.

Dissatisfied, the Applicants filed this appeal, and my reasons are as follows: 135 BRIEF FACTS [3] The brief facts discerned from the cause papers are as follows: 140 3.1 The applicants:

Are a group of house buyers in a housing project known as Residensi Bintang Bukit Jalil, developed by Puncak Gama Sdn Bhd (D3), the developer.

They entered into the various Sale and Purchase Agreements 145 (SPAs) with D3 for the purchase of a housing unit there.

Clause 25 of the SPAs had been amended with the approval of the Ministry of Housing and Local Government that the handover of vacant possession of the housing unit to the applicants shall be within fifty-four (54) months from the date 150 of the SPAs instead of the standard thirty-six (36) months.

3.2 It is the position taken by the applicants that:

D3 never informed them that approval had been obtained from the Ministry of Housing and Local Government to amend the standard form statutory SPAs completion period from thirty-six 155

months to fifty-four (54) months.

They claimed that a letter from D3 dated 04.12.2023, had informed them that under:

Section 35 of the Temporary Measures to Reduce the Impact of Coronavirus Disease 2019 (COVID-19) 2020, and 160

(ii) Section 38 of the Temporary Measures to Reduce the Impact of Coronavirus Disease (COVID-19) (Amendment) Act 2022, The Ministry of Housing and Local Government, by letters dated 30.03.2021 and 26.04.2022, exempted 289 days and 304 days, respectively, from the calculation of the time for the 165 handover of vacant possession under the SPA.

3.3 They alleged that the decision given by the Minister and/or the

Extend the period for handing over vacant possession under 170 the SPAs [Schedule H] from a period of thirty-six (36) months to fifty-four (54) months (if any), and

An Extension of Time under the Temporary Measures to Reduce the Effects of Disease Act Coronavirus 2019 (COVID- 19) 2020 and the Temporary Measures to Reduce the Impact 175 of Coronavirus Disease 2019 (COVID-19) Amendment Act 2022 are invalid and void for various reasons, among others, as they were unfair, inequitable, and breach of natural justice.

3.4 Consequently, they seek to challenge the foregoing decisions by 180 filing L.12 for leave to issue JR against the defendants. THE PARTIES ARGUMENTS [4] I had examined and considered the parties’ arguments as follows: 185

4.1 The AGC argued as follows (briefly):

Their appearance at the leave stage is allowed by O.53 RC

Upon being served with cause papers for the JR, the AGC can choose to appear or not to appear at the leave stage.

The rule intends to ensure that the AGC vets all judicial review applications to ascertain if the AGC’s participation is required. Whether the Attorney General elects to appear or not is solely his discretion, and if he chooses to appear, the court is bound to give a hearing: Kanawagi Seperumaniam v. Dato' Abdul 195 Hamid bin Mohamad [2004] 5 MLJ 495, cited and followed in Messrs Tai Choi Yu & Co, Advocates v. Arifin Zakaria & Anor [2020] 2 CLJ 508, CA.

The law does not require the AGC to file any affidavit in reply at the leave stage. At the leave stage, the AGC in this appeal 200 was served not in its capacity as a respondent, but in its capacity as the Attorney General under O.53 r.3(3) RC 2012.

In Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) [2019] 1 MLJ 307, CA, the Court 205 of Appeal held that the AG who is a party at this particular point, is not required by law to file an affidavit in opposition at the ex-parte leave stage. The court was not concerned with the merit of the application, as the leave stage was merely to sieve out frivolous applications and to see whether the 210 applicant had an arguable case.

The AGC’s objection during the leave application in the present proceeding is premised on the point of law, whether L.12 was filed out of time: Tan Sri Abdul Aziz bin Zainal (applying for himself and on behalf of Jawatankuasa 215 Sementara Permohonan Memansuhkan Akta Bank Rakyat) & Ors v Lembaga Pengarah Bank Kerjasama Rakyat Malaysia Bhd & Ors [2023] 6 MLJ 776, CA took the position that the time frame to launch a JR is trite, and any failure to comply with O.53 r.3(6) is fatal. 220

4.2 The AGC, strongly objected to L.12 and argued as follows:

The legal test in determining whether to grant or deny leave 225 for JR, which is well established.

A court hearing a judicial review application must determine whether ‘prima facie there is a genuine case for review’. It is accepted that the threshold requirement is low, for leave will only be refused where an application is:

Frivolous and vexatious or hopeless.

Made by busybodies with misguided or trivial complaints of administrative errors.

Misconceived.

Unarguable or groundless.

Where there is a more appropriate alternative procedure, or

Where an application for judicial review is an inappropriate procedure. 240 Citing in support, WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2012] 4 MLJ 296 FC & Dato’ Sri Mohd Najib Tun Hj Abdul Razak v AG & Ors [2020] 3 MLJ 114, CA.

4.2 In the circumstances, the AGC’s objection based on two grounds:

L.12 was filed out of time, as provided in O.53 r.3(6) RC 2012:

Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145, FC, that had observed that when such an explicit procedure is created, then as a general rule, all 250 applications for such relief must adhere to the procedure prescribed under O.53 RHC, failing which the applications would be liable to be struck off for abuse of the process of court.

In Wong Kin Hoong & Anor v. Ketua Pengarah 255 Jabatan Alam Sekitar & Anor [2013] 4 CLJ 193, FC, the Federal Court observed that once the trial judge had rejected the explanation for the delay for extension of time to apply for judicial review, the court no longer has the jurisdiction to hear the application for leave for judicial 260 review. Whether the application has merits or not is irrelevant.

In Tang Kwor Ham & Ors v. Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 60 at p. 69, CA, it held that where the application is found to be frivolous and 265 vexatious which includes applications that are made out of time, leave must be refused.

The AGC argued that P Maradeveran Periasamy & Ors v. Suruhanjaya Pilihan Raya & Anor [2019] 6 CLJ 173, CA explained there is a vital difference between the date 270 “when the grounds of application first arose” and the date “when the decision is first communicated to the applicant” under order 53 rule 3(6) RC 2012. It provides for two different timelines for the filing of a JR application, which apply independently of each other.

In the circumstances, to establish their arguments that L.12 is out of time, the AGC tabulated the respective impugned dates that concerned the present application in L.12 by the applicants as follows: 280 Item The decision Date of document 1. Clause 25 (1) of the SPA (hereinafter referred to as the “1st Extension”) Between 3.2.2018 - 31.3.2019 2. Letter signed by YB Minister Datuk Hajah Zuraida binti Kamaruddin (ref: (352)KPKT//07/PS/828/2(01) Jld.4 for an exemption of 289 days from 18.3.2020 until 31.12.2020 (hereinafter referred to as the “ 2nd extension”)

30.3.2021 3. Letter dated 26.4.2022 signed by Dato’ N. Jayaselan (ref: (323)KPKT//07/PS/828/6 Jld 1) for an exemption of 304 days from 1.1.2021 until 31.10.2021 (hereinafter referred to as the “3rd

Extension”)

4.2022

The AGC further argued that the "date when the grounds of application arose” arises between 2018 and 2022. That would 285 mean that L.12 filed on 07.08.2024 is evidently out of time. The Applicants also could not rely on the second cut-off date of "When the decision is first communicated to the Applicant" because:

The applicants were aware of the extended time for delivery of 290 vacant possession of 54 months when they signed the SPAs on respective dates between 3.2.2018 and 31.3.2019: Applicants ' Affidavit-paragraph 5 & Exhibit TTY- 1, Applicants’ Additional Affidavit – paragraph 3 & Exhibits TTY- 1 – TTY-13.

(ii) L.12 was filed, approximately 5-6 years after the expiry of the time to 295 challenge the 1st Extension. The 1st Extension is out of time.

It was noted that when the purchasers executed the SPAs, they would have had legal counsel and should have enquired or raised 325 any doubts on the 54-month completion period before or when executing the SPA.

It was further observed that the judicial review application was filed outside the prescribed time, and the Court has no jurisdiction to hear the Application.

The Apex Court went on to rule unanimously that its earlier determination in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor [2020] 1 MLJ 281, FC, is applicable prospectively and not retrospectively.

Homebuyers cannot rely on the Ang Ming Lee as a "carte blanche" to 335 make financial gain against developers who had obtained EOT before that landmark decision.

A new declaration of the law should be applied prospectively, and this is to curb [homebuyers] from enjoying further financial gain.

The Apex agreed with the AGC’s submissions that to allow it 340 retrospectively would result in serious ramifications on the validity of the previous law and potentially lead to administrative chaos.

Citing in support, the Court of Appeal in Bluedream City Development Sdn Bhd v Kong Thye & Ors and other appeals [2022] 2 MLJ 241, CA, which leave to appeal was 300 denied by the Federal Court, observed that Judicial review would be utilised to strike down a decision of the authority when the decision does not comport with the principle of fairness, reasonableness, and proportionality, which was not the case here. The Minister exercised the EOT and not the 305 Controller. There is no express requirement under the Act for the purchasers, whether individually or collectively, to be given a right to be heard before the Minister grants an extension of time; in light of the observation of the majority judges in the Federal Court’s decision in Maria Chin Abdullah v Ketua 310 Pengarah Imigresen & Anor [2021] 1 LNS 7, it suffices that the Minister acts fairly and takes into consideration the interest of the purchasers whose rights is entrusted under the Act to safeguard. 315

The Court of Appeal observed that the first extension would have been made known to the purchasers when they executed the SPAs, for the SPAs were executed after the grant of the first extension. Determining the time frame under the Rules is crucial, as it pertains to the court's jurisdiction.

The Federal Court in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd and other appeals [2024] 5 MLJ 897, FC:

The Federal Court in Mersing Omnibus Co. Sdn. Bhd. V. The Minister of Labour & Manpower & Anor [1983] 2 CLJ 7, FC, 345 determined that leave should not have been granted to the appellant to apply for certiorari without the time prescribed in O.53. Neither did they sought an extension of time nor accounted for the delay to the satisfaction of the learned Judge within its explicit requirements.

There’s no valid justification to grant an extension of time (EOT) for the Applicants to file L.12:

The applicants failed to make any proper and formal application for an EOT to proceed with L.12. They instead 355 immediately filed for leave to apply for judicial review rather than first addressing an abridgement of time. There was no proper justification or evidence to support the delay in filing the JR Application offered by the applicants: Tan Siew Peng v. OCBC Bank (M) Bhd [1998] 2 MLJ 360 420, CA, it was observed by the Court of Appeal that after hearing arguments, it must be concluded that the respondent's objection was well founded. There is no doubt that this court has power, exercisable at its discretion, to extend the time limited for the filing or 365 service of any document or the doing of any act under the Rules of the Court of Appeal 1994 (the Rules). And it is trite that the burden is upon an applicant who seeks an extension of time to make available sufficient material upon which this court may exercise discretion in his 370 favour. There was insufficient material placed before the court to warrant the exercise of discretion in the appellant's favour. The reasons advanced by the appellant in his affidavit are wholly inadequate.

The AGC submitted that L.12 should be dismissed as the 375 applicants fail to apply for an extension of time and fail to explain the delay in filing the leave application for judicial review. In the circumstances, it is prayed that L.12 be dismissed for non-compliance with legal requirements on time. 380 The Applicants [5] The applicants argued as follows (briefly):

5.1 It was inappropriate for the Court to entertain the AGC’s oral objection in the absence of an affidavit evidence to oppose L.12 385 from securing leave to commence JR. They relied on Teh Guat Hong v Perbadanan Pendidikan Tinggi Nasional [2015] MLJU 213, CA that had observed when there is no affidavit in opposition, preliminary objection relating to facts and law ought not be entertained as it will compromise the integrity of decision-making 390 process as well as infringe on rules of procedure relating to affidavits:

They agreed that the AGC’s have the discretion whether to appear or not at the hearing of the leave application, and if they do appear, the Court is bound to hear the AGC. It was argued, 395 however, that it is unsafe and misleading to infer that the AGC are not duty-bound to submit an affidavit to oppose the affidavit in support of the application, and its absence does not amount to an admission of the averments. 400

They took the position that the ruling in Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Sen Thuan) [2019] 1 MLJ 307, CA that opined the AGC need not file an affidavit at the leave stage is applicable if only questions of law 405 are involved but not when facts are also in dispute. In the circumstances, the AGC is still required to file an affidavit at the leave stage as the objection raised is a mixed point of law and fact. It was not just the law alone. 410

They argued that L.12 was filed very much within time. Since the parties disagree on the two separate computations regarding the commencement of time in determining the three months, it would require the AGC to file an affidavit to oppose L.12 rather than making arguments from the Bar.

They cited Ng Hee Thong & Anor v Public Bank Bhd [1995] 1 MLJ 281, CA, it is a principle fundamental to our system of adversarial litigation that evidence upon a matter must be given on oath. The practice of counsel providing evidence from 420 the Bar, as was done in this case, is to be deprecated. Also cited was Lie Kok Keong v Tang Container & Services Sdn Bhd [2004] 1 MLJ 373, CA, which expressed the view that where the statement is merely from the bar, it is not evidence and should not have been accepted as evidence. 425

This ex-parte leave application, is in compliance with the law, made full and frank disclosure of all material facts in their affidavits filed for the Court to determine if they had filed L.12 within time or not: Tuan Haji Sarip Hamid & Anor v Patco 430 Malaysia Berhad [1995] 3 CLJ 627 at 631, SC. They assert that they have good reason or valid justification for an EOT.

At this juncture it is my observation that, I am unconvinced by the applicant's interpretation of the legal position concerning 435 the purported requirement for the AGC to file an affidavit at the ex parte leave stage. I am bound by the case of Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Sen Thuan) [2019] 1 MLJ 307, CA that makes it clear that 440 there is no such requirement, and all the more so as what the AGC raised is only a point of law on the compliance with the legal requirement of the period.

I have examined L.12 and the two supporting affidavits filed by 445 the applicants. As rightly pointed out by the AGC, the applicants did not formally apply for an abridgement of time to proceed with L.12, although it is undoubtedly out of time.

Under O.53 r.3(7), the Court may, upon an application, extend 450 the time specified in rule 3 (6) if it considers that there is a good reason for doing so. In the present case, there is none for the Court to consider. It is not the Court’s duty to shepherd the applicants’ case. It is further provided under the newly introduced r.3(8) that the application to extend time must be 455 served on all respondents and shall be heard inter partes.

5.2 The three-month period prescribed under the rules begins either from the date the grounds of application arise or from the date the decision is first communicated to the applicants:

They cited DKL Sunshine Sdn Bhd v Kerajaan Negeri Pulau 460 Pinang & Anor [2019] 3 MLJ 6711, which observed that the application for judicial review must be filed within three months from the service of Form E upon the appellant on 26.11.2014, where the decision was first communicated to the appellant, or after the second respondent handed down his order/decision 465 upon conclusion of the enquiry.

In the present case, the applicants took the position that the decision to extend the completion period under the SPAs from 36 months to 54 months was not communicated to them in a 470 timely and transparent manner.

They claim to have only become aware of the decision upon receiving the letter on 06.02.2024, which, in my considered observation, I am disinclined to believe:

As parties executing the SPAs, they would have been informed at a certain point in time of the amendment to clause 25 thereof.

To claim complete ignorance in such circumstances is not probable with the presence of attending lawyers during 480 the execution of the SPAs and other related documents at the point of purchase:

The role of an advocate and solicitor who is appointed to act 485 for a licensed housing developer in respect of the latter’s sales of housing accommodations in its housing project bears a professional duty to prepare and forward, to a potential purchaser’s retained advocate and solicitor copies of the standard schedule agreement of sale and purchase for vetting 490 and execution by that purchaser.

(ii) It comes with a concomitant professional duty to diligently prepare, check, and recheck the sale and purchase documents to ensure that the documents have been correctly prepared based on the available data supplied to the 495 appointed lawyer by their client, the licensed housing developer.

(iii) Disclosure of material facts that will unduly influence a purchaser’s decision to buy or not to buy, much to his, her or its economic disadvantage, is required. The West Malaysian 500 Housing Act has been designed to prevent any economic disadvantage from affecting groups of vulnerable purchasers who lack equal bargaining power when purchasing the houses of their choice. There must be material disclosure from the point of sale, commencement of construction to completion, 505 the delivery of vacant possession, and issuance of the IDT/Strata Title.

5.3 To support their arguments that L.12 was filed within time, the applicants:

Referred to several correspondences in 2024 in exhibit TTY-3 and argued that they only became aware of the effect of the extensions under Covid-19 measures taken by the government.

They cited the Federal Court observation in Tunku Yaacob 515 Holdings Sdn Bhd v Pentadbir Tanah Kedah & Ors [2016] 1 MLJ 2002, FC that observed that the term "communicated" requires actual, not constructive, knowledge. A decision is deemed communicated only when it is brought to the exact knowledge of the party affected, enabling the party to exercise 520 its rights effectively.

On the foregoing basis they submitted that D3 did not inform them on the existence of the approval granted by the Ministry of Housing and Local Government to D3 concerning the amendment made on statutory period of thirty-six (36) months 525 to fifty-four (54) months as stated in the SPAs of until 06.02.2024. This lack of communication constitutes a procedural failure on the part of the Respondents. In light of the foregoing, applicants pray for an order in terms of L.12. 530 THE LAW [6] In a nutshell:

6.1 Leave for JR: O 53 r 3 RC 2012

An application under this Order shall not be made unless leave therefor has been granted in accordance with this rule.

An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.

The applicant must give notice of the application for leave not later than 540 three days before the hearing date to the Attorney General’s Chambers and must at the same time lodge in those Chambers copies of the statement and affidavits.

The Judge may, in granting leave, impose such terms as to costs and as to the giving of security as he thinks fit.

The grant of leave under this rule shall not, unless the Judge so directs, operate as a stay of the proceedings in question.

An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.

The Court may, upon an application, extend the time specified in rule 3(6) if it considers that there is a good reason for doing so.

An application to extend time must be served on all respondents and shall be heard inter partes. 555

6.2 Time by O.53 is jurisdictional:

The time limit requirement serves as an essential public purpose, that is, that challenges to the decisions of public 560 authorities should be brought to a resolution one way or the other speedily in the interests of justice and of good administration.

Unless an extension is sought and obtained, the court has no jurisdiction to entertain the substantive motion (Mersing 565 Omnibus Co Sdn Bhd v Minister of Labour & Manpower & Anor [1983] 2 MLJ 54).

The Court of Appeal in Abdul Rahman Abdullah Munir & 67 Ors v Datuk Bandar Kuala Lumpur & Anor [2008] 5 AMR 573; [2008] 6 CLJ 805, CA, under r 3(7), where an applicant 570 applies for an extension of time on a leave application, the High Court may undertake a closer scrutiny of the merits of the judicial review application and test the preliminary finding against other issues, including the public interest and the conduct of the respondent (Tang Kwor Ham & 2 Ors v 575 Pengurusan Danaharta Nasional Bhd & 5 Ors [2005] 1 LNS 179). The court may refuse leave if in its opinion the granting of the relief sought would be likely to cause hardship or prejudice or would be detrimental to good administration.

The decision of whether an extension of time should be 580 granted is a matter of discretion. It will only be interfered with by the appellate court in limited circumstances: P Maradeveran Periasamy & Ors v Suruhanjaya Pilihan Raya & Anor [2019] 6 CLJ.

It is further provided under the newly introduced r 3(8) that the 585 application to extend time must be served on all respondents and shall be heard inter partes. FINDINGS [7] I have examined all-cause papers, the evidence, the parties' 590 respective submissions, and my observations in paragraphs [4]-[5], and it is my considered judgment that:

In light of the foregoing observations, I find that the applicants failed to comply with the time requirements to pursue JR 595 proceedings against the respondents. I agree with the arguments by the SFC’s that L.12 by the applicants was filed out of time. They sat on their rights, and the Court will not assist indolent litigants. In Tang Kwor Ham & Ors v. Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 600 60 at p. 69, CA, where the application is found to be frivolous and vexatious, which includes applications that are filed out of time, leave must be refused.

From the facts before me, undoubtedly, L.12 is barred by time 605 under O.53 r.3(6) RC 2012. The Federal Court made it clear in Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayan & Kesenian Johor & Ors [2010] 3 MLJ 145, FC, when such an explicit procedure is created, all applications must adhere to the procedure prescribed, failing which the 610 applications would be barred by time, and will be struck off for abuse of the process of the court. The Federal Court in Wong Kin Hoong & Anor v. Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 CLJ 193, FC, that once the explanation for the delay is rejected the court no longer has 615 the jurisdiction to hear the application for leave for judicial review irrespective of merits or otherwise.

It is also my considered finding that the applicants failed to apply for or incorporate an EOT to pursue L.12 as provided for 620 in O.53 r.3(7) and (8). [8] Concerning the issue, when the decision was first communicated to the applicants. I agree with the arguments set out by the SFC:

The 1st extension was between 2018 and 2022 (which the 625 Applicants were aware of when they signed the SPAs between those years).

The 2nd extension letter was signed by the Minister on 30.03.2021.

The 3rd extension was signed by Dato’ N. Jayaselan on 630 26.04.2022. The SFC correctly pointed out that the "date when the grounds of application arose," specifically the date of the challenged letters and SPA, falls within the period from 2018 to 2022. Consequently, the 635 present JR, evidently exceeds the prescribed three-month limitation period. For the reasons explained by the SFC, the applicants could not rely on the second cut-off date of "When the decision is first communicated to the Applicant" because they were aware of the extended period for delivery of vacant possession, which was 54 640 months, when they signed the said SPAs. 645 CONCLUSION [9] All things considered, grounded on the foregoing paragraphs, I 650 find that the application in L.12 has no merit and is dismissed with no order as to costs. Dated 05.06.2025 655 HAYATUL AKMAL ABDUL AZIZ 660 JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 665 670 Counsels: Lim Meng Guan together with Muhd Luqman b. Ismail Zawawi Messrs Zi & Associates for the Applicants 675 Nur Idayu Amir Senior Federal Counsel, Attorney General Chambers 680