Country Garden Danga Bay Sdn. Bhd v Tribunal Tuntutan Pembeli Rumah (J-08-26-01/2019)

HO CHEE KIAN ... RESPONDENTS (In the High Court in Malaya at Johor Bahru Judicial Review Application No:JA-25-42-07/2018 Between Country Garden Danga Bay Sdn Bhd ... Applicant

Tribunal Tuntutan Pembeli Rumah

Ho Chee Kian ... Respondents) CORAM: HARMINDAR SINGH DHALIWAL, JCA YEW JEN KIE, JCA NOR BEE BINTI ARIFFIN, JCA JUDGMENT OF THE COURT [1] This was a leave application pursuant to s. 68(1)(a) of the Courts of Judicature Act 1964 ("CJA 1964"). The Johor Bahru High Court, on 27 December 2018, had dismissed the Applicant's application for an order of certiorari to quash the Johor Bahru Tribunal for Homebuyer Claims Award dated 7 June 2018. Hence the instant application for leave to appeal. [2] During the hearing of the leave application, a preliminary issue arose as to whether leave was indeed required or whether the parties could appeal as a matter of right. The Applicant took the position that leave was not required. However, in view of the conflicting decisions of the Courts and the practice directions issued by this Court, the application for leave to appeal, we were told, was filed in the abundance of caution. The respondents, on the other hand, submitted that leave was required before an appeal can be filed as the value of the subject matter was less than RM250,000.00 as prescribed under s. 68 of the CJA 1964. [3] After hearing the parties and taking into consideration the written submissions, we decided that leave to appeal was not required against the order of the High Court. We now provide our reasons which will constitute the judgment of the court. Brief Background [4] The facts leading to the application for judicial review can be stated briefly as follows. The $ 2 ^{n d} $ Respondent purchased a condominium unit identified as 11-A-3402 in a housing development known as Country Garden Danga Bay from the developer, the Applicant here, for a purchase price of RM1,639,861.00. Upon delivery of vacant possession, the $ 2 ^{n d} $ Respondent discovered that the unit he had agreed to purchase was not the same one that was handed over to him. The $ 2 ^{n d} $ Respondent complained to the Applicant but to no avail. [5] On 2 January 2018, the $ 2 ^{nd} $ Respondent filed a claim with the Home Buyers' Claims Tribunal at Johor Bahru ( $ 1 ^{st} $ Respondent) claiming that the Applicant had delivered the wrong unit and that therefore there was a breach of the Sale and Purchase Agreement. He claimed for the sum of RM50,000.00. On 7 June 2018, the $ 1 ^{st} $ Respondent allowed his claim and the award was for the Applicant to pay the $ 2 ^{nd} $ Respondent the sum of RM50,000.00. [6] Aggrieved with this decision, the Applicant, on 3 July 2018, filed for Judicial Review against the $ ^{1st} $ Respondent's decision. However, on 27 December 2018, the High Court dismissed the Applicant's judicial review application with costs of RM6,000.00. On 9 January 2019, a Notice of Appeal against the High Court decision dismissing the Judicial Review was filed without leave. On 23 January 2019, the Applicant filed the instant Notice of Motion seeking leave to Appeal, as they had said, in the abundance of caution. The Instant Application [7] Applications for leave to appeal to the Court of Appeal are governed by s. 68(1)(a) of the CJA 1964 which effectively states that no appeal shall be brought to the Court of Appeal when the amount or value of the subject-matter of the claim (exclusive of interest) is less than RM250,000.00, except with the leave of the Court of Appeal. [8] Where appeals are filed without leave having been obtained, and where leave is required, the Court has no jurisdiction to hear the appeal (see Harcharan Singh Sohan Singh v Ranjit Kaur S Gean Singh [2011] 3 CLJ 593 ("Harcharan Singh")) . The requirement for leave serves as a filter against frivolous or unmeritorious proceedings (O'Reilly v Mackman [1983] 2 AC 237). It must follow that no appeal can be filed against the decision of the Court of Appeal regarding leave as otherwise the filter principle would be defeated (Lam Kong Co Ltd v Thong Guan Co Pte Ltd [2000] 1 MLJ 129 ("Lam Kong"))). [9] Apart from s. 68 of the CJA 1964, there were initially two practice directions of the Court of Appeal which dealt with the question of leave. These were the Court of Appeal Practice Direction No. 2 of 1996 ("PD 1996") and Practice Direction No. 1 of 2008 ("PD 2008") which provided, among others, that no prior leave of the Court of Appeal under section 68(1)(a) of the CJA 1964 is required for an appeal concerning a certiorari against the decision from a quasi-judicial body involving natural justice. [10] The application of these practice directions came to be considered in the dissenting judgment of Mohd Hishamudin JCA in Galaxy Energy Technologies Sdn Bhd v Deputy Collector of Stamp Duty, Malaysia & Anor [2011] 5 MLJ 145 ("Galaxy Energy"). His Lordship held that PD 1996 and PD 2008 were mere guidelines and should be interpreted as being subject to the CJA 1964. His Lordship was of the view that the items pertaining to cases of certiorari in both the Practice Directions were meant to apply only to certiorari cases in respect of subject-matters that had no value attached to them or those with values that could not be quantified. [11] In coming to this view, His Lordship relied on the decision of this Court in Lam Kong, supra which was subsequently adopted by this Court in the case of Harcharan Singh, supra, that the declarations as described in item (ii) of PD 1996 are those that relate to subject matters which either do not have any value attached to them or its value cannot be quantified. [12] Be that as it may, it is noteworthy that the majority of the panel in Galaxy Energy (Zaleha Zahari and Abu Samah Nordin JJCA), after hearing submissions on the preliminary issue, ruled that no prior leave under s 68(1)(a) of the CJA was required for the purpose of the appellant's appeal in that case. [13] Since those aforementioned cases were decided, PD 1996 was revoked by PD 2008 whereas PD 2008 was revoked by this Court's recent Practice Direction No.1 of 2017 ("PD 2017"). The difference now is that the brief descriptions found earlier in PD 1996 and PD 2008 with respect to the matters for appeal do not appear in PD 2017. Even so, it is still explicitly stated in PD 2017 that matters that do not require leave to appeal are, among others, certiorari. [14] In this respect, it is axiomatic that practice directions, as the name suggests, are issued by the courts to supplement the existing rules and to regulate the procedural practice of solicitors in their dealings with the courts, and in the filing of cause papers or documents. Practice directions are created and issued to streamline the court process and enhance efficiency of the same. [15] In Chua Choong Yin v Tan Boon Bak Trading Sdn Bhd & Anor [2002] 4 MLJ 145, Siti Norma Yaakob JCA (as Her Ladyship then was) observed (at p 150): "Whilst we appreciate that practice directions do not have the force of law, they are created for a specific purpose, namely to regulate a systematic and consistent procedure governing the filing of appeal records. For that reason, they have to be adhered to otherwise chaos and uncertainty in the filing of appeal records shall prevail." [16] In similar vein, this Court in OCBC Bank (Malaysia) Bhd v Lim Hock Kok & Anor [2017] 9 CLJ 454, through the judgment of Idrus Harun JCA, noted (at p 459): "... One thing seems to be clear, that is, that judicial authorities show that practice directions are effected for administrative purposes, but it is trite that once practice directions have been properly and legally issued, they must be complied with..." [17] So, it can be surmised that as long as the practice directions are not contrary to any written law, they must be complied with. If the practice directions are disregarded willy-nilly, there may arise confusion and even disorder in the management of caseloads in the courts. So to say they are there for mere guidance is quite inaccurate. [18] Now, it is pertinent to observe that the cases of Lam Kong and Harcharan Singh were not concerned with a leave application for matters concerning judicial review such as certiorari. They were concerned with declarations. The case of Galaxy Energy, however, concerned an application for certiorari. [19] In our view, cases concerning judicial review and certiorari should be considered on a different footing as it is an important process to review executive and legislative actions. It provides the checks and balances which are imperative in the separation of powers. In this way, the courts can review an administrative or quasi-judicial decision by a public authority. In our view, the value of the subject matter as stated in s. 68 of the CJA 1964 was really intended for cause of actions founded on tort or contract or other claims based on equity and not for matters concerning judicial review. [20] So, it is really irrelevant as to whether the amount involved in the administrative action is RM50,000.00 or RM50 million. To think otherwise would place a man with less means in a worse position than one with more or much more. If at all a filter in necessary to prevent frivolous or unmeritorious appeals, it may be more appropriate to consider whether such appeals meet the test of real prospect of success rather than the rather arbitrary threshold of the value of the claim. Conclusion [21] In the circumstances, and for the reasons we have provided, we agreed with the majority view in Galaxy Energy and came to the conclusion that no prior leave under s. 68(1)(a) of CJA 1964 was required for the purpose of the appeal. After our pronouncement, the applicant withdrew its application for leave and the motion was struck out with no order as to costs. Dated: 15 October 2019 Signed (HARMINDAR SINGH DHALIWAL) Judge Court of Appeal Malaysia Counsel/Solicitors: For the Applicant: Leonard Yeoh (with him Chuah Chong Ping) (M/s Tay & Partners) For the Respondents: Viola De Cruz (with her Vinobha Anthony Doss) (M/s VL De Cruz & Co)