Cemerlang Land Sdn Bhd … Perayu v Ali Bin Saat (W-01(A)-412-10/2016)

ALI BIN SAAT [NO. K.P: 600928-08-6075]

TRIBUNAL TUNTUTAN PEMBELI RUMAH … RESPONDEN-DI DENGAR BERSAMA [RAYUAN SIVIL NO.: W-01(A)-415-10/2016] CEMERLANG LAND SDN BHD …

ABDUL RAHIM BIN KHAIRULDIN [NO. K.P: 521104-01-5519]

NORAZMAN BIN ABDUL RAHIM [NO. K.P: 880410-01-5829] … RESPONDEN- 2 [RAYUAN SIVIL NO: W-01(A)-417-10/2016] CEMERLANG LAND SDN BHD … PERAYU

SITI AMAH BT JA’AFAR [NO. K.P: 550817-01-5298]

TRIBUNAL TUNTUTAN PEMBELI RUMAH … RESPONDEN-Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Rayuan dan Kuasa-Kuasa Khas) Permohonan Untuk Semakan Kehakiman No: 25-66-04/2015 Antara Cemerlang Land Sdn Bhd … Pemohon Dan

Ali Bin Saat [No. K.P: 600928-08-6075]

Tribunal Tuntutan Pembeli Rumah … Responden-Responden Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur (Bahagian Rayuan dan Kuasa-Kuasa Khas) Permohonan Untuk Semakan Kehakiman No: 25-66-04/2015 3 Antara Cemerlang Land Sdn Bhd … Pemohon Dan

Abdul Rahim Bin Khairuldin [No. K.P: 521104-01-5519]

Norazman Bin Abdul Rahim [No. K.P: 880410-01-5829] … Responden-Responden Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur (Bahagian Rayuan dan Kuasa-Kuasa Khas) Permohonan Untuk Semakan Kehakiman No: R2-25-67-04/2015 Antara Cemerlang Land Sdn Bhd … Pemohon Dan

Siti Amah Bt Ja’afar [No. K.P: 550817-01-5298]

Tribunal Tuntutan Pembeli Rumah … Responden-Responden Judicial Review — Decisions of the President of Tribunal for House-Buyers’ Claims — Damages for late delivery of vacant possession — Revived housing project under PR1MA Scheme — A new sale and purchase agreement was drawn up and executed between Appellant and Respondent — By the Deed of Revocation the Respondent had agreed to revoke and rescind the 1st Agreement — Benefit enjoyed by Respondent — Respondent was given vacant possession of the unit which he bought under the 2nd Agreement with the same purchase price and deposit paid under the 1st Agreement was 4 refunded — Deed of Revocation and 2nd Agreement were not in accordance to the prescribed forms — Whether tribunal acts within the proper scope of its statutory function — Whether decision of tribunal may be reviewed on the grounds of illegality, irrationality and proportionality — Whether courts are permitted to scrutinize such decisions not only for process but also for substance — Order of the High Court was set aside — Appeal is allowed — Housing Development (Control and Licensing) Act 1966 [Act 118], section 8A, section 16 N (2); Housing Development (Control and Licensing) Regulations, 1989 [P.U.(A) 58/89], Regulation 11, Schedule G & H CORAM: TENGKU MAIMUN BINTI TUAN MAT, JCA VERNON ONG LAM KIAT, JCA HASNAH BINTI DATO’ MOHAMMED HASHIM, JCA JUDGMENT INTRODUCTION [1] There were three appeals before us arising from three applications for judicial review in the High Court emanating from one judgment of the learned Judicial Commissioning. They involved different Respondents but the same Applicant (Appellant) and were all heard together. The three appeals were against the decision of the learned Judicial Commissioner dismissing the Appellant's application for judicial review. The Appellant had applied for an order of certiorari to quash the decision of the President of the Tribunal 5 Tuntutan Pembeli Rumah (“the Tribunal”) made on 26.1.2015 (‘the Award’). The Tribunal had on the said date awarded the Respondents damages for late delivery of vacant possession by the Appellant. The Appellant, dissatisfied with the decision of the learned Judicial Commissioner appealed to this Court. [2] We heard the appeal on 27.3.2017. After due deliberation and having carefully considered the submissions of both parties we found that there are merits in the appeals and allowed all the appeals with costs. We propose to give reasons for our decisions with respect to all the appeals in one common judgment. Since the facts are common for all the three appeals, for purposes of this judgment, we will only be referring to the facts in Appeal No. W-01(A)- 412-10/2016, which parties had agreed to refer in their submissions. MATERIAL FACTS [3] The background facts are important to understand the context in which these appeals were brought. The Appellant, is a company incorporated in Malaysia and is a housing developer previously known as Genting Unggul Sdn. Bhd. The Respondent entered into a Sale and Purchase Agreement dated 25.6.2002 ("the 1st Agreement") with the Appellant to purchase one apartment unit described as No. AC-03-02 at Amber Court, Desa Larkin, 6 Johor (‘Amber Court Project’). The purchase price of the said unit was RM25,000.00. Clause 22 of the 1st Agreement stipulates that the handing over of vacant possession of the unit shall be within thirty-six (36) months from the date of the aforesaid agreement. [4] The Amber Court Project consists of five blocks of 700 units of low cost flats i.e Blocks A-E. Under the 1st Agreement the Respondent‘s unit was located on the 3rd floor Block C. Unfortunately, the Amber Court Project could not be completed within the period stipulated in the said agreement. On 31.12.2005 the Jabatan Perumahan Negara declared and classified the Amber Court Project as an abandoned project. [5] However, steps were undertaken by the authorities to revive the abandoned project. Subsequently a new development order was issued to revive the project and to build “…179 Unit Rumah Teres 2 ½ Tingkat di atas Lot 20203, Jalan Merak dan 3 Blok Rumah Pangsa 5 Tingkat (248 Unit Rumah Kos Rendah 650 kaki persegi di atas Lot PTB 20184, Jalan Rajawali, Mukim Larkin, Johor.’ In 2014 the Jabatan Perumahan Negara after having classified the housing project as ‘Projek Perumahan Bermasaalah di Negeri Johor’ took steps to revive the housing project 7 under the PR1MA Scheme. The Appellant was appointed as the developer of the said project by the relevant authorities. [6] The original purchasers of the abandoned project (including the Respondent) were offered by the Appellant to participate in the said revived project. Sometime in 2010 the Respondent was offered by the Appellant to purchase one unit of the low cost flat known as Project Larkin Court 1 i.e Unit A-2-1 Blok A Tingkat 2 Rumah Pangsa No.1. By a letter of acceptance the Respondent accepted the offer and agreed to revoke the 1st Agreement. [7] A Deed of Revocation dated 9.7.2013 was executed between the parties whereby it was mutually agreed to revoke and rescind the 1st Agreement and to treat the said agreement as null and void, “1. In consideration of the premises herein the parties hereto mutually agree to revoke and rescind the sale and Purchase Agreement as null and void.” [8] A new sale and purchase agreement dated 9.7.2013 was drawn up and executed between the Appellant and the Respondent (“the 2nd Agreement’). The purchase price of the new unit remained at RM25,000.00 8 and the completion date as stipulated in the said agreement is within 3 months from the date of the said 2nd Agreement. [9] The said revived project was completed and vacant possession of the unit was duly handed over to all the purchasers including the Respondent within the time stipulated in the aforesaid 2nd Agreement. [10] Sometime in 2014 the Respondent filed a claim against the Appellant with the Tribunal for late delivery of the unit he purchased under the 1st Agreement. The Tribunal awarded to the Respondent compensation for late delivery of vacant possession. Dissatisfied with the decision of the Tribunal the Appellant filed the judicial review in the High Court. The Tribunal [11] The decision of the President can be found at pages 295-335 of the Appeal Records. He concluded that the 2nd Agreement together with the Deed of Revocation were executed without the approval of the Jabatan Perumahan Negara and that the 2nd Agreement executed by the parties was not in accordance to the agreement as prescribed in Schedule H of the Housing Development (Control and Licensing) Regulations, 1989 (‘HDR’). Regulation 11 of HDR provides as follows: 9 “Every contract of sale for the sale and purchase of a housing accommodation together with the subdivisional portion of land appurtenant thereto shall be in the form prescribed in Schedule G and where the contract of sale is for the sale and purchase of a housing accommodation in a subdivided building in the form of a parcel of a building or land intended for subdivision into parcels, as the case may be, it shall be in the form prescribed in Schedule H.” [12] The President of the Tribunal opined that the 1st Agreement can only be terminated in accordance to section 8A of the Housing Development (Control and Licensing) Act 1966 (“the Act”) and concluded that the revocation of the 1st Agreement as well as the execution of the 2nd Agreement were null and void as they were not in accordance with the requirement of the law. The Appellant was therefore still bound by the terms and conditions of the 1st Agreement. Furthermore, the Appellant failed to obtain the approval of the Jabatan Perumahan Negara as required under Regulation 11(3) HDR. He explained in his written findings as follows: “52. Selaras dengan dapatan Tribunal keatas Isu-Isu (i), (ii) dan (iii) diatas, Tribunal mendapati bahawa penghujahan-penghujahan yang 10 dikemukakan oleh Responden seperti dinyatakan dalam perenggan 26

(i), (ii) dan (vi) di atas adalah tidak berasas dan adalah ditolak atas alasan bahawa –

(i) Responden tidak boleh menamatkan sesuatu perjanjian jual beli rumah melainkan selaras dengan peruntukan 8A Akta 118 dan Peraturan dibawahnya;

(a) mengikut autoriti kes Law Pang Ching & Ors v. Tawau Municipal Council, oleh kerana pihak pemohon sebagai pemaju projek perumahan telah melanggar terma kontrak-kontrak yang diikat pada tahun 2002, mahkamah ini tidak akan melaksanakan budi bicaranya bagi membantu pemohon, sekalipun jika terdapat kekhilafan undang-undang pada keputusan Presiden yang terpelajar; dan

(b) mengaplikasikan formula yang digubal oleh Lord Woolf MR dalam kes exparte Douglas-Williams (supra), suatu perintah certiorari tidak menjadi wajar atau perlu demi kepentingan keadilan, kerana dalam kes ini, responden-responden tiada remedi lain terhadap perlanggaran kontrak oleh pihak pemohon berkenaan dengan persetujuan tahun 2002, seperti yang pihak pemohon sendiri akui. Jika 13 perintah certiorari diberikan kepada pemohon, ini akan bermakna bahawa pemohon tidak perlu menanggung akibat perlanggaran kontraknya sendiri.” The Appeal [15] Before us, learned counsel for the Appellant submitted that the Award made by the President of the Tribunal was wrong and could not be sustained in law and that the learned Judicial Commissioner had erred in upholding the said Award. It was submitted that in the light of the facts and the circumstances of the case put forth before the Tribunal, the decision arrived at was tainted with illegality and irrationality. The President had taken into account irrelevant considerations, failed to take into account relevant considerations and material facts and had acted against the weight and totality of the evidence. [16] The Federal Court case of R. Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 and the case of Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629; [2010] 6 MLJ 1 held that the decision of the inferior tribunal may be reviewed on the grounds of illegality, irrationality and possibly 14 proportionality and the courts are permitted to scrutinize such decisions not only for process but also for substance. [17] It is trite law that courts should not reverse an award of a tribunal unless there is proven a clear jurisdictional error. A jurisdictional error can arise when a tribunal does not act within the proper scope of its statutory function such as whether it has acted without sufficient evidence or on no evidence, or has misconstrued the law on an issue on which its decision is founded. (Re: Syarikat Kenderaan Melayu Kelantan Bhd v. Transport Workers' Union [1995] 2 CLJ 748; [1995] 2 MLJ 317). [18] As Gopal Sri Ram, JCA (as he then was) said in Datuk Bandar Kuala Lumpur v. Zain Azahari Zainal Abidin [1997] 2 CLJ 248 at page 269 : "... where the exercise of a decision is challenged on grounds of vires that is illegality, or unreasonableness, the Court is not confined merely to the decision-making process, but may examine the merits of the decision itself." [19] We are further guided by what was stated in the Federal Court case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd and Another Appeal [1995] 3 CLJ 344 at page 348: 15 "In exercising judicial review, the High Court was obliged not to interfere with the findings of the Industrial Court unless they were found to be unreasonable, in the sense that no reasonable man or body of men could reasonably come to the conclusion that it did, or that the decisions of the Industrial Court looked at objectively, are so devoid of any plausible justification that no reasonable person or body of persons could have reached them (see Lord Denning's judgment in Griffiths (Inspector of Taxes) v. J.P Harrison (Watford) Ltd [1962] 1 AER 909 at 916, and judgment of Lord Diplock in Bromley London Borough Council v. Greater London Council and Anor [1983] 1 AC 768 at 821)." [20] It is trite law that certiorari will lie to quash a decision made by a public authority in excess or abuse of jurisdiction or contrary to the rules of natural justice or where there is an error of law on the face of the decision of the public authority. For a decision to be quashed on judicial review, there must first be a decision by a decision maker, and the said decision affected the aggrieved party by either altering the rights or obligations or depriving him of the benefits which he has been permitted to enjoy. [21] The court must review the decision in order to determine the basis of a material mistake of fact on the part of the person who made the decision or 16 where the decision was arrived at arbitrarily, capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper process, or where the functionary misconceived the nature of the discretion conferred upon him and took into consideration irrelevant issues or ignored relevant ones. [22] In the instant appeal the functions, powers and jurisdiction of the Tribunal are spelt out in the Act. Section 16 N (2) of the Act provides for the limitation to the jurisdiction of the Tribunal as follows: “(2) The jurisdiction of the Tribunal shall be limited to a claim that is based on a cause of action arising from the sale and purchase agreement entered into between the homebuyer and the licensed housing developer which is brought by a homebuyer not later than twelve months from-

(a) the date of issuance of the certificate of completion and compliance for the housing accommodation or the common facilities of the housing accommodation intended for subdivision, whichever is later; 17

(b) the expiry date of the defects liability period as set out in the sale and purchase agreement; or

(c) the date of termination of the sale and purchase agreement by either party and such termination occurred before the date of issuance of the certificate of completion and compliance for the housing accommodation or the common facilities of the housing accommodation intended for subdivision, whichever is later.” [23] Section16N (2) of the Act requires the Respondent as a house buyer to file the complaint 12 months from the date of termination of the sale and purchase agreement which would be the 1st Agreement. The essential facts to be considered is that under the 1st Agreement dated 25.6.2002 it was clearly provided by clause 22 of the said agreement, as follows: “22(1) Vacant possession of the said Parcel to which the water and electricity supply are ready for connection shall be handed over to the Purchaser within thirty-six (36) calendar months from the date of this Agreement; and