Country Garden Danga Bay Sdn Bhd v Tribunal Tuntutan Pembeli Rumah (J-01(A)-22-01/2019)

HO CHEE KIAN … RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya di Johor Bahru Dalam Negeri Johor Darul Takzim, Malaysia Permohonan bagi Semakan Kehakiman No.: JA-25-42-07/2018 Dalam perkara mengenai permohonan untuk satu perintah certiorari untuk membatalkan Award Tribunal Tuntutan Pembeli Rumah Johor Bahru bertarikh 7.6.2018 dalam No. Tuntutan TTPRZS/J/0001(T)/18 Dan Dalam perkara Aturan 53 Kaedah-kaedah Mahkamah 2012 Dan Rayuan Sivil No: J-01(A)-22-01/2019 2 Dalam perkara Seksyen 25 dan Jadual Akta Mahkamah Kehakiman 1964 Dan Dalam perkara Akta Pemajuan Perumahan (Kawalan dan Perlesenan) 1966 dan Peraturan-peraturan Pemajuan Perumahan (Tribunal Tuntutan Pembeli Rumah) 2002 Antara Country Garden Danga Bay Sdn Bhd (No. Syarikat: 1021190-K) ... Pemohon

Tribunal Tuntutan Pembeli Rumah

Ho Chee Kian ... Responden-Responden] CORAM: KAMARDIN HASHIM, JCA HARMINDAR SINGH DHALIWAL, JCA HANIPAH FARIKULLAH, JCA JUDGMENT OF THE COURT Introduction [1] This is an appeal against the decision of the learned Judicial Commissioner (‘the learned JC’) dated 27.12.2018 in dismissing the appellant’s application for judicial review. The appellant’s application was Rayuan Sivil No: J-01(A)-22-01/2019 3 for an order of certiorari to quash the decision of the Tribunal Tuntutan Pembeli Rumah (‘the Tribunal’) made in favour of the second respondent on 7.6.2018 (‘the impugned Award’). The Tribunal had allowed the second respondent’s claim for damages for breach of the Sales and Purchase Agreement entered into between the appellant and the second respondent on 23.8.2013. Dissatisfied with the decision of the learned JC, the appellant appealed to this Court. [2] We heard the appeal on 11.12.2019. After due deliberation and having carefully considered the submissions of all parties, we unanimously found that there is no merits in the appeal. Thus, the appeal was dismissed with costs. These are our reasons in dismissing the appeal. Background Facts [3] The appellant is a licensed housing developer under the Housing Development (Control and Licensing) Act 1966 (‘the Act’), and a developer for a project known as Country Garden Danga Bay (‘the Project’). The second respondent is one of the home buyer for one unit apartment of the Project. The second respondent signed the Sale and Purchase Agreement on 23.8.2013 (‘the original S&P’) with the appellant to purchase a unit described as parcel Block 11-A-3402 on the 34th storey with a purchase price of RM1,639,861.00 (‘the said unit’). The original S&P was subsequently dated on 30.12.2012. Delivery of vacant possession of the said unit within 36 months from the date of the original S&P, which is on or before the 22.8.2016. [4] However, vacant possession was only handed over on 25.9.2017. The said unit, according to the second respondent should have a covered Rayuan Sivil No: J-01(A)-22-01/2019 4 balcony but when vacant possession been delivered, the balcony was not covered. The second respondent lodged a complaint to the appellant vide letter dated 4.12.2017. The second respondent filed a claim with the 1st respondent. The second respondent claiming for RM50,000.00 as compensation for the wrong unit that was given to him. [5] The Tribunal found in favour of the second respondent and awarded a damages in the sum of RM50,000.00, being the maximum award per cause of action which can be handed by the Tribunal. [6] The appellant sought the following reliefs from the High Court:

that the Applicant be granted leave to apply for an order for certiorari to quash the Johor Bahru Tribunal for Homebuyer Claims’ Award dated 7.6.2018 in Claim No.

that an order for certiorari be granted by this Honourable Court to quash the Award;

that the enforcement of the Award be stayed pending the full and final disposal of this judicial review application before this

that this Honourable Court makes a finding that the Tribunal for Homebuyer Claims’ decision to grant the Award was tainted with illegality, irrationality or procedural impropriety; Rayuan Sivil No: J-01(A)-22-01/2019 5

the costs of and/or occasioned by this application be cost in the cause; and

such further orders and/or other directions as may be given or made as this Honourable Court deems fit and proper in the circumstances. [7] The grounds of the appellant in support of the judicial review as listed in the Statement to Order 53 rule 3(2) of the Rules of Court 2012 are as follows:

The grounds on which the reliefs set out in paragraph 4 above are sought by the Applicant are set out in the Affidavit of Loh Yen Zin which is filed herein to support the Applicant’s Application for Judicial Review. A summary of the grounds relied on by the Applicant are set out below;

The 1st Respondent had erred in law and in fact when the 1st Respondent awarded the sum claimed by the 2nd Respondent without stating any reasons or supporting grounds in the Award;

The 1st Respondent had erred in law and in fact when the 1st Responden failed to consider the fact that the Technical Report concludes that the unit delivered by the Applicant to the 2nd Respondent is in order and in compliance with the sale and purchase agreement;

The 1st Respondent had erred in law and in fact when the 1st Respondent failed to consider the fact that there was not an iota Rayuan Sivil No: J-01(A)-22-01/2019 6 of evidence on the quantum of damages suffered by the 2nd Respondent adduced before the 1st Respondent throughout the proceedings of the Tribunal for Homebuyer Claims between the Applicant and the 2nd Respondent (“Tribunal Proceedings”);

The 1st Respondent had erred in law and in fact when the 1st Respondent failed to consider the fact that its jurisdiction is limited to cause(s) of action arising from the sale and purchase agreement entered into between the Applicant and the 2nd

The 1st Respondent had erred in law and in fact when the 1st Respondent failed to confine the scope of the Tribunal Proceedings within the 2nd Respondent’s Statement of Claim in Form 1 pursuant to the Housing Development (Tribunal for

The 1st Respondent had erred in law and in fact when the 1st Respondent failed to consider the fact that the statements made by the 2nd Respondent in the course of the Tribunal Proceedings are baseless allegations unsubstantiated by cogent evidence;

The 1st Respondent had erred in law and in fact when the 1st Respondent allowed the 2nd Respondent to produce a photocopied sale and purchase agreement, the source of which is highly suspicious, and to render the same admissible as evidence in the Tribunal Proceedings; Rayuan Sivil No: J-01(A)-22-01/2019 7

No reasonable President of the Tribunal for Homebuyer Claims in similarly circumstance would have decided to allow the 2nd Respondent’s claim against the Applicant; and

At the substantive hearing of the Application for Judicial Review, the Applicant will also rely on the grounds set out in length as stated in the Affidavit of Loh Yen Zin filed herein. [8] The second respondent in his Affidavit in Reply averred that he signed the original S&P on 23.8.2013 but he received S&P which was full of deletion, alterations and amendments sometimes in June 2014 which was dated as 30.12.2013. The respondent further averred that he was given a wrong unit as the unit he was given is without a covered balcony. At the Tribunal [9] After considering the facts and evidence, and the submissions of the parties, the President of the Tribunal decided that the appellant was liable to pay the second respondent the sum of RM50,000.00 as compensation. The learned President found that there was sufficient evidence to support the second respondent’s claim that there was unauthorised changes to the specifications in the original S&P to which caused losses to the second respondent for exceeds the jurisdiction of the Tribunal. [10] The learned President relied on the decision of this Court in the case of Dr. S T Singham v. Lee Siew Leong [2007] 1 MLJ 1 where it was ruled that in a case where unauthorised alteration of a contract made by a party after it was signed by the other party is fatal for its validity. It was held: Rayuan Sivil No: J-01(A)-22-01/2019 8 “When a document or an instrument, on its production, appears to have been altered, it is the general rule that the party offering it in evidence must explain the alteration. Any material alteration in a written document or instrument, whether made by a party or a stranger is fatal to its validity, provided it was made after the document was executed and without the privity of the party to be effected by it and with the additional proviso that the alteration was made while the document was in the possession or in the control or the supervision of the party seeking to enforce it. As such the law on the material alteration of a document or deed is well settled in that a party who has the custody of an instrument or document made for his benefit is bound to preserve it in its original state and any material alteration of it will vitiate the instrument, if it was done without the consent of the other party. As that had actually taken place in this case, the unilateral alteration in itself is sufficient to enable the landlord to treat D9 as being non-binding on him.” At the High Court [11] The learned Judicial Commissioner (‘the learned JC’) dismissed the application for judicial review by the appellant with costs. The learned JC agreed with the findings and decision of the learned President of the Tribunal. [12] The learned JC was of the view that the learned President of the Tribunal was not in breach of the rules of natural justice as alleged by the appellant. The learned JC also of the view that there was no element of irrationality occurred in this case up till the eventual award. In the learned JC grounds, his Lordship said, at pages 124-125 Appellant’s Core Bundle of Documents: “22. In effect, the Sale and Purchase Agreement produced by the said witness of the 2nd Respondent had shown that the number of levels Rayuan Sivil No: J-01(A)-22-01/2019 9 of carpark had differed, where one had 7 levels and the other had 6 levels. This would validate the complaints of the 2nd Respondent that due to an amendment of the building plans by the Applicant, the unit that the 2nd Respondent had eventually received was one without a covered balcony due to a reduction in the levels of carpark.

I do not find there to be any excess of jurisdiction, as the tribunal had awarded RM50,000.00 which was what was sought by the 2nd Respondent and nothing was argued for the setting aside the Sale and Purchase Agreement. The 2nd Respondent had renovated the unit, and was not seeking to rescind the sale. Instead, compensation RM50,000.00 for receiving the wrong unit had been sought, which the 1st Respondent had seen fit to award.

It did not seem to be the case that the 2nd Respondent had claimed to have spent RM50,000.00 for renovation leading to the maximum award within the jurisdiction of the 1st Respondent of RM50,000.00 being awarded. That may have been a valid complaint to have been made, but did not appear to be the case here.

I cannot detect any element of irrationality as the structure of the claim had been consistent up till the eventual award.

As to the lack of natural justice, I find that procedurally, parties have had their opportunity to make out their case and defence, where no failure had arisen. The informal manner of production and admissibility of documents cannot be faulted in a tribunal hearing. No unfairness could be detected.” [13] The learned JC relied on the case of R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 MLJ145; [1997] 1 CLJ 147 where in turn cited with approval the decision of Lord Diplock in Council of Civil Rayuan Sivil No: J-01(A)-22-01/2019 10 Service Unions & Ors v. Minister for the Civil Service [1985] AC 374 on the principle of judicial review. The learned JC also cited the case of Ketua Pengarah Hasil Dalam Negeri v. Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 1 MLJ 563 and the case of Telekom Malaysia Bhd v. Tribunal Tuntutan Pengguna & Anor [2007] 1 CLJ 300 on the governing principles of law applicable to the process of judicial review. Our Decision [14] Although the memorandum of appeal contains several grounds of appeal, before us, counsel for the appellant canvassed the following two grounds of appeal, i.e. (i) that there was a breach of the rules of natural justice by the President of the Tribunal in handling the 2nd respondent’s claims; and (ii) procedural unfairness. [15] Learned counsel for the appellant, Dato’ Seri Gopal Sri Ram main complaint was that the decision making process was flawed due to the above two issues. On the issue of natural justice, it was submitted that there was insufficient time for the appellant’s representative to prepare her case given the voluminous exhibits and documents. Upon receiving all the relevant materials, the appellant’s representative at the Tribunal’s hearing was not given sufficient time or adequate opportunity to prepare her case. The learned President only gave 15 minutes for her to prepare which was not sufficient for the appellant to make informed representations. Therefore, learned counsel argued that the appellant was not given a fair opportunity to meet the case. [16] On the issue of procedural unfairness, learned counsel submitted that anything restricting or appears to restrict the other party’s ability to present Rayuan Sivil No: J-01(A)-22-01/2019 11 his case may be treated as procedural unfairness which warrants a judicial review. This includes the right to access to all documents in a proceeding. The appellant’s complaint was that the Technical Inspection Report was not supplied to the appellant. [17] The Federal Court in R Rama Chandran’s case held that the decision of the interior tribunal may be reviewed on the grounds of illegality, irrationality and possibly proportionality. In a recent Federal Court case of Akira Sales & Service (M) Sdn Bhd v. Nadiah Lee bt. Abdullah and another appeal [2018] 2 CLJ 513; [2018] 2 MLJ 537, the position of the law on judicial review was extended that the court not only can review the decisions making process but also merit of the decision. The courts are permitted to scrutinise such decisions not only for the process but also for the substance [see also: Datuk Bandar Kuala Lumpur v. Zain Azahari Zainal Abidin [1997] 2 CLJ 248 per Gopal Sri Ram JCA (as he then was)]. [18] What constitute “illegality”, “irrationality” and “procedural impropriety” had been explained lucidly by Lord Diplock in Council of Civil Service Unions & Ors [supra] as follows: “By ‘illegality’ as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision Rayuan Sivil No: J-01(A)-22-01/2019 12 which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts’ exercise of this role, resort I think is today no longer needed to Viscount Radcliffe’s ingenious explanation in Edwards v Bairstow [1956] AC 14, of irrationality as a ground for a court’s reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.” [19] In Syarikat Kenderaan Melayu Kelantan Bhd v. Transport Workers’ Union [1995] 2 CLJ 748; [1995] 2 MLJ 317, Gopal Sri Ram JCA (as he then was) on behalf of this Court decided that the Court should not reverse an award of a tribunal unless there is proven a clear jurisdictional error. The learned eminent judge in his eloquent judgment said this: “In my judgment, the true principle may be stated as follows. An inferior tribunal or other decision-making authority, whether exercising a quasi-judicial function or purely an administrative function, has no jurisdiction to commit an error of law. Henceforth, it is no longer of concern Rayuan Sivil No: J-01(A)-22-01/2019 13 whether the error of law is jurisdictional or not. If an inferior tribunal or other public decision-taker does make such an error, then he exceeds his jurisdiction. So too is jurisdiction exceeded, where resort is had to an unfair procedure (see Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis [1995] 1 MLJ 308), or where the decision reached is unreasonable, in the sense that no reasonable tribunal similarly circumstanced would have arrived at the impugned decision. It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed. But it may be safely said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law. Since an inferior tribunal has no jurisdiction to make an error of law, its decisions will not be immunized from judicial review by an ouster clause however widely drafted.” [20] Finally, on the same issue, we are guided by the Federal Court decision in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 3 CLJ 344 at page 348: “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 Rayuan Sivil No: J-01(A)-22-01/2019 14 reached them (see Lord Denning’s judgment in Griffiths (Inspector of Taxes) v. JP Harrison (Watford) Ltd [1962] 1 All ER 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).” [21] In the present appeal before us, the appellant wanted to quash the decision of the Tribunal on the grounds that the rules of natural justice had been breached and that there was procedural unfairness by the Tribunal. In order to decide on the two issues, this Court must review the decision of Tribunal to determine whether the decision was arrived at arbitrarily, capriciously or mala fide or as a result of unwarranted adherence to a principle or in order to further an ulterior or improper process, or misconceived the nature of the discretion conferred and took into consideration irrelevant issues or had blatantly ignored relevant ones. [22] We had the opportunity to peruse the appeal records. It was not disputed that after taking vacant possession, the second respondent complained to the appellant that a wrong unit was given to him. In his letter of 4.12.2017, the second respondent complaint: “I have chosen level 34 in year 2013 before I signed the purchased agreement. One level below the open balcony unit which I have thoroughly checked and confirmed with your sales person before making the purchase. Please refer to the attached photograph of official display model. Upon collection of key, my unit turns out to be level 35 with an open balcony. This unit has an open patio area that infringe my privacy as well as design flaws as mentioned above.” [23] On 2.1.2018 the second respondent filed a claim with the Tribunal in Form 1 claiming for RM50,000.00. Second respondent repeated the same Rayuan Sivil No: J-01(A)-22-01/2019 15 complaint in the Claim Form. In his oral evidence during the trial before the Tribunal, he repeated the same complaint. The appellant responded by filing its defence in Form 2 on 22.1.2018, alleging amongst others that: “Our company strictly denies the claimant’s allegation on sales misrepresentation. It is untrue that the claimant’s unit turned out to be level 35. At all material times the unit is still on level 34, reflected as level 42 in the SPA (with additional 7 levels of car park and 1 level of podium). Further, the actual unit is in accordance with the plans in the Frist Schedule of the SPA which the claimant is fully aware of.” [24] The matter was fixed for first hearing on the 24.4.2018 but was postponed at the request of the appellant for settlement purposes. The matter was fixed for hearing on 15.5.2018. On that day, the second respondent informed the Tribunal that the appellant had changed few pages of the original S&P which was signed by the second respondent on the 23.8.2013. The matter was then adjourned to 7.6.2018 to enable parties to call witnesses. In his evidence, second respondent maintained his allegation that the original S&P which he signed have significantly changed without his knowledge and that 25 out of 26 pages have been swapped as follows:

Names of parties different. The copy I signed mentioned

(ii) Original title is HSD 446608 PTB 22056. The stamped copy has a different number; Rayuan Sivil No: J-01(A)-22-01/2019 16

(iii) Land size stated in the August agreement was 44,856 hectares. In the stamped copy, the size was different, only 41,866 square meters;

(iv) Land was not charged when I signed in August, but the stamped copy shows land charged to Malayan Banking Berhad;

In Specifications of August copy “P6”, ceiling should have included plaster board ceiling to tiles. In “P8”, only skim coat. In my unit no plaster board ceiling, just bare cement. “Height Solid Timber Door” changed to “Solid Timber Door” in “P8”;

(vi) In “P6” there were “wet kitchen” and “dry kitchen”, washer & dryer, island kitchen, kitchen cabinet, air conditioner in dining area, but in “P8” these items have been deleted….. [25] Second respondent’s witness, Soh Hup Ping (SP2) produced two sets of stamped S&P both dated 30.12.2013 one stamped as “ORIGINAL” (P1) and the other “DUPLICATE” (P2) respectively. In P1, the diagrammatic plan showed 8 levels consisting of 7 levels of car parks and a podium level whilst in P2, the plan showed 6 levels of car parks and podium level. However, the numbering of those levels remained the same. The learned President of the Tribunal found that: “[10]…..The Respondent had actually reduced the number of floors of carparks, from seven to six floors without renumbering the levels. Hence the highest floor of the carparks, which was still identified as “Level 7” is in fact on the 6th Floor of the carparks. This was a case of actually reducing the number of floors in Block 10A & B, 11A & B and 112A & B Rayuan Sivil No: J-01(A)-22-01/2019 17 (six blocks of condominiums) which share common carparks levels but failing to re-number the levels accordingly….” [26] After second respondent closed his case, the appellant called their two (2) witnesses to rebut second respondent’s case. After hearing parties’ submission, the learned President delivered his decision after allowing 15 minutes for the appellant’s representative to state her case. [27] Based on the above narrative, we disagree with the learned counsel for the appellant contention that there was a breach of the rules of natural justice. There were ample times given to the appellant to prepare their case. It was also our view that no prejudice had occurred and the element of surprise does not arise. The appellant was fully aware of the second respondent complaint from the beginning and knowing what was the second respondent claim against them. The claims had been dealt with by the learned President in accordance to the normal procedure as spelt down in the Act and the Regulations. There was no evidence of procedural unfairness on the part of the learned President of the Tribunal. Right to be heard was fully given and exercised by the appellant. [28] Likewise, in our considered view, the learned JC had not committed any appealable error when his Lordship dismissed the appellant’s application for judicial review to quash the decision of the Tribunal. The learned JC had fully appreciated the facts and the law applicable before him. He had examined carefully the decision of the Tribunal not only in relation to the process but also the substance to satisfy himself that the decision of the Tribunal was not tainted with illegality, irrationality or procedural impropriety. Rayuan Sivil No: J-01(A)-22-01/2019 18 [29] We unanimously agreed that the decision of the Tribunal was rational and not acted in excess of its jurisdiction. We are satisfied that the decision of the learned President of the Tribunal was not tainted with illegality, irrationality or procedural impropriety. [30] The Federal Court in Westcourt Corporation Sdn Bhd lwn. Tribunal Tuntutan Pembeli Rumah [2004] 4 CLJ 203 had laid down the principle regarding the Tribunal proceedings that the relevant provisions of the law should be interpreted in a liberal and purposive approach. The provisions were loosely prescribed goes to show that Parliament’s intention to provide a simple forum for homebuyers to file their claim. [31] For the above stated reasons, we were of the unanimous view that there was no merits in the appeal. Therefore, the appeal was dismissed with costs of RM15,000.00 subject to payment of allocatur fees. Decision of the High Court was affirmed. Dated: 23 January 2020. signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Rayuan Sivil No: J-01(A)-22-01/2019 19 Counsel For the Appellant: Datuk Seri Gopal Sri Ram Leonard Yeoh Chuah Chong Ping Yasmeen Soh Khalis Isma-Alif Messrs. Tay & Partners For the Second Respondent: Viola Lettice De Cruz Vinobha Anthony Doss Chua Yi Xie Messrs. VL Decruz & Co.