(iii) procedural impropriety. [16] By illegality as a ground for judicial review, it means “that the decision-maker must correctly understand the law that regulates his decision-making power and must give effect to it‟ and that “… the authority concerned has been guilty of an error of law in its action as for example, purporting to exercise a power which in law it does not possess.” [17] By irrationality it means „Wednesbury unreasonableness’ and “applies to a decision 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 upon could have arrived at it” [18] By procedural impropriety, it includes „failure by an administrative tribunal to observe procedural rules that are expressly laid out..” and “duty to act fairly”. [19] The core issue in this case is whether the decision of the Minister is null and void on the ground that there is a breach of the rule of natural justice, as the Homebuyers have not been given a right to be 16 heard before the Minister made his decision in extending the time to deliver vacant possession of the relevant parcels of the Project from 36 months to 48 months. [20] This issue has been decided by the Court of Appeal in Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan v. Ang Ming Lee & 34 ors and another appeal [2018] MLJU 638, where the Court held as follows: “[24] The final issue raised before us 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 distinguished, 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 be easily 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 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 the Minister, was null and void and of no effect and should accordingly be set aside.” (emphasis added) 17 [21] Therefore, premised on the decision above, which is binding on this Court, an order of Certiorari must be issued to quash the decision of the Minister as the same is null and void on the ground that the Homebuyers have not been given a right to be heard before the Minister made the impugn decision. [22] However the Developer submits that the Homebuyers have been given a right of hearing because the Developer had issued a letter to the Homebuyers on 29.9.2017, notifying them of the Minister’s decision dated 29.6.2017. In response, the Homebuyers had issued a letter to the Minister on 23.11.2017. This according to the Developer, amounts of the Homebuyers “exercised their right to be heard, albeit too late in the day.” [23] However, I am of the considered opinion that where the Developer had appealed to the Minister on the extension of time to deliver vacant possession, the discretion is with the Minister as to whether to allow the extension or not. If the Minister is minded to allow the extension, then this will affect the Homebuyer’s right to LAD under the SPAs. Therefore, in such circumstances the Homebuyers must be given a right to be heard before the Minister makes such a decision, which will affect the Homebuyers’ legal rights to LAD. This is supported by the decision of the Court of Appeal in Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan v. Ang Ming Lee & 34 ors and another appeal (supra), where the Court held as follows: 18 “[31] …. As the rights of the purchasers to claim damages on the event of delay would be adversely affected or even extinguished by the exercise of such discretionary power, it is our judgment that the purchasers must be given an opportunity to be heard prior to any decision made. Since no such right was afforded, the decision of the Minister cannot stand and must be set aside.” (emphasis added) [24] In the present case, since the Homebuyers were not given a right to be heard before the Minister made the decision to extend the time for delivery of vacant possession from 36 months to 48 months, then the Minister’s decision is illegal, null and void. Conclusion [26] Premised on the reasons enumerated above, I am of the considered opinion that the application should be allowed and the Minister’s decision is hereby quashed. Consequentially, the prayers for declarations are redundant. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appelliate and Special Powers Division 2) KUALA LUMPUR Dated: 7 May 2019 19 Peguambela Bagi Pihak Perayu Cik Viola De Cruz [Tetuan VL DCRUZ & CO. Kuala Lumpur] Peguambela Bagi Pihak Responden Pertama dan Kedua Puan Shahmin Amizah bt. Abu Bakar [Jabatan Peguam Negara, Cawangan Wilayah Persekutuan, Kuala Lumpur] Peguambela Bagi Pihak Responden Ketiga Encik J. Shamesh Cik Charlotte Williams [Tetuan Jeeva Partnership, Kuala Lumpur] RUJUKAN: 1) Booi Kim Lee v YB Menteri Sumber Manusia & Another [1999] 3 MLJ 515. 2) Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan v. Ang Ming Lee & 34 ors and another appeal [2018] MLJU 638.