Evergreen Future Home Builders v Tribunal Tuntutan Pengguna (BA-25-27-04/2025)

1.

JAI BHAVANI (No K/P: 891129-12-5624) ...RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT (Enclosure 1) Introduction

Vide Enclosure 1, the Applicant prayed for the following orders -

(i) leave to be given for an extension of time to file the leave application for judicial review;

After careful consideration of the cause papers and submissions on behalf of the Applicant this Court allowed the Attorney General’s objection and dismissed Enclosure 1. The following is the reasons for the decision. Background facts

The following is the Applicant’s narrative. They were appointed to carry out renovation works at the 2nd Respondent’s property in Puchong. The contract price was RM107,600.00 which the 2nd Respondent paid in instalments. The renovation works were to be completed within 3 months.

The Applicant was unable to hand over the property within the agreed period as there were still some minor works to be carried out. The Applicant requested for and was given a further 3 months to complete the renovation works without any objections from the 2nd Respondent. The 2nd Respondent also requested additional works to the tune of RM42,260.00 to be carried out.

As a result of the additional works, the Applicant was unable to complete the remaining minor works within the extended period. The 2nd Respondent failed to pay for the additional work.

Instead the 2nd Respondent filed a claim against the Applicant at the First Respondent. On 15.10.2024, the First Respondent allowed the 2nd Respondent’s claim and ordered the Applicant to pay the 2nd Respondent RM29,442.00.

The Applicant filed a notice of appeal against the First Respondent’s award the very same day but withdrew the appeal on 6.3.2025 because they did not receive any documents or feedback from the First Respondent.

They then filed Enclosure 1, seeking the extension of time to file for leave for judicial review. Role of putative Respondent at leave stage

O.53 r.3 Rules of Court 2012 reads – “…

This makes it clear that at the leave stage of a judicial review application, the proceedings are ex parte, meaning only the Applicant and the Attorney General (who must be served) are typically heard. The putative respondent has no voice in these proceedings except with leave of Court.

In Advance Synergy Capital Sdn Bhd v. The Minister of Finance, Malaysia & Anor [2011] 6 MLJ 376; [2011] 7 CLJ 557; [2011] 1 MLRA 477, Low Hop Bing JCA (as His Lordship then was) clarified the putative respondent’s role at 384 – “On the other hand, the judge may, at the ex parte leave stage, invite the putative respondent to attend and make representations as to whether or not leave should be granted. Such invitation is normally extended where, on considering the papers, the judge comes to the conclusion that he really does not know whether there is or is not an arguable case: R v Secretary of State for the Home Department, ex parte Rukshanda Begum [1990] Crown Office Digest 109, DIP, CA (UK) per Lord Donaldson MR, as applied by the (then) Supreme Court in Tuan Haji Sarip Hamid & Anor v Patco Malaysia Berhad [1995] 2 MLJ 442; [1995] 3 CLJ 627, at p 633 per Edgar Joseph JR FCJ (as he then was). However, the putative respondent is not entitled as a matter of right to appear and demand to be heard: Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 60; [2006] 1 CLJ 927 at p 945 [14] per Zaleha Zahari JCA (delivering a dissenting judgment) (see also my judgment given in the High Court in Ta Wu Realty Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri & Anor [2004] 6 MLJ 53; [2004] 6 CLJ 398 (HC) at p [18]; R v Camden London Borough Council, ex parte Martin [1997] 1 All ER 307; Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd [1982] AC 617 (HL), at p 642, Lord Diplock; and Michael Supperstone QC and James Goudie QC in 'Judicial Review' (1997) at pp 16.4 and 16.6 – 16.7.)” (see MyTeksi Sdn Bhd & Ors v. Competition Commission [2022] 6 MLJ 767 at 775).

In the present case, no such invitation was extended to the 2nd Respondent to address the Court during the leave application nor file any affidavit expressing their view on Enclosure 1.

For these reasons, this Court will not allow the 2nd Respondent to be party at the leave application nor consider the affidavits and submissions filed on her behalf. AG’s objection - time

The AG’s objection was that Enclosure 1 was filed out of time. O.53 r.3 ROC reads – “(6) 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 Courts have consistently and strictly enforced the requirement for time in this provision although the threshold for granting leave is low. (see Kijal Resort Sdn Bhd v. Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544 at 579, Wong Kin Hoong & Anor (Suing For Themselves And On Behalf All Of The Occupants Of Kampung Bukit Koman, Raub, Pahang) v. Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161 at 171).

An extension of time cannot be granted without an application supported by good reasons.

In the present case, the date for filing Enclosure 1 expired on 14.1.2025 and Enclosure 1 which was only filed on 17.4.2025 was 93 days out of time.

In paragraph 18 of Enclosure 3, the Applicant averred – “Berlandaskan kepada Aturan 53 Kaedah 3(6) Kaedah-Kaedah Mahkamah 2012, permohonan kebenaran bagi semakan kehakiman sepatutnya difailkan dalam jangka masa tiga (3) bulan. Namun begitu, kini Pemohon telah melebihi tempoh masa tersebut, dimana melebihi tempoh masa selama lima (5) bulan. Kelewatan tesebut disebabkan oleh kerana Pemohon dalam proses rayuan di Mahkamah Tinggi Shah Alam dan bukannya disebabkan oleh mana-mana alasan lain atas kecuaian Pemohon. Sejrus pihak Pemohon mendapat tahu bahawa permohonan kebenaran bagi semakan kehakiman tidak dpat difailkan dalam jangkamasa yang sepatutnya, Pemohon telah mengambil langkah-langka munasabag (reasonbale) untuk permohonan semakan kehakiman dan pernyataan selaras dengan Aturan 53 Kaedah 3(2) Kaedah-Kaedah Mahkamah 2012 dengan mengikut peruntukan Aturan 5 kaedah-Kaedah Mahkamah 2012 ini supaya permohonan untuk kebenaran semakan kehakiman dapat difailkan dalam tempoh luar masa.”