I am not in a position to comment on whether those issues not raised in the Affidavit could be ventilated at the hearing of the judicial review application. However, for the sake of completion and to assist the High Court to arrive at a 10 fair decision, I wish to address those issues here. (emphasis is mine) …” [28] Indeed, this point per se would be decisive of this judicial review application favouring an order of certiorari. However, for sake of completeness, I wish to also address other issues that has arisen, 15 raised and argued before me. Non exhaustion of domestic avenue available under SPA [29] It is patently clear that jurisdiction of the tribunal is triggered only after domestic avenue available under SPA entered into by the respondents and applicant is fully exhausted. The tribunal shall 20 ensure this pursuant to section 16N (2) of Act 118. That provision dictates that jurisdiction of the tribunal shall be limited to a claim that is based on a cause of action arising from the SPA entered into between the homebuyer and the housing developer which is brought by a homebuyer not later than twelve months from – (b) the 25 expiry date of the defects liability period as set out in the SPA. Since 17 claim by respondents is on defects found in their houses they have 5 acquired, subsection 16N(2)(b) is applicable. The crux of matter and basis of claim by respondents’ flow from the SPA. Hence if and only, the recourse or avenue available under the SPA is exhausted, as stipulated in clause 27(1), (2) and (3), a cause of action would not arise from its breach. In the present case, it is apparent that the 10 applicant at all material times, is ready and willing to remedy and repair the defects complained of by the respondents. What they were anxiously waiting for is detail list of defects. It was not forthcoming from respondents; thus they were disabled from carrying out repair to the premises built by them. FS, the applicant 15 has even attempted to remedy it whilst the proceeding at the tribunal was ongoing, but alas the stay order scuttled them from doing so. In fact, both applicant and respondents agreed to the mode of repairs as stated in paragraph 11 of the grounds of judgment of President (see Annexure), pursuant to which a direction was made for 20 applicant to submit its report on rectification work by next hearing date. In the premise, it is crystal clear that applicant was at all material time willing to undertake repairs but it was respondents whom had hurried to the tribunal to seek remedy. 18 [30] In that context, it is interesting to take note of paragraph 38 to 40 of 5 grounds of judgment as in Annexure. It has been stated that the law only requires the purchaser to notify the developer of the need to carry out remedial works, signifying that a notice alone would suffice without detail of defects. At the same breath, the President went on to raise a query, how is the developer to carry out the remedial work 10 without being notified of the exact defects by the purchaser. On this, it is opined that it is a chicken and egg situation, wherein, only if the respondents could inform the applicant of the defects, repair works could be duly carried out. Otherwise, it may not be possible for FS to do so. Vacant possession has taken place and FS is in no position 15 to know of the defects, as it cannot be expected to keep checking on the defect in each and every house they have built. It is for that reason there is intact, defect liability period in the SPA, so that respondents may resort to and take advantage of it and not to run to the tribunal willy-nilly. In the circumstance, respondents ought to 20 have approached the applicant resiliently for the defects to be remedied and repaired. Only if that fails, a claim to tribunal could be pursued, as from thereon, a cause of action would have arisen from the SPA as envisaged under section 16N (2) (b) of Act 118. As the law is, the respondents are not stripped of their right to habitable 25 dwelling at their dream home, as there is in place an efficacious 19 relief under the SPA. By way of analogy, the decision of the Court 5 of Appeal in the case of Iskandar Coast Sdn. Bhd. v Ketua Pengarah Hasil Dalam Negeri (2019) 7 CLJ 143 is referred to. Although that authority pertains to the legal principle that if there is an alternative appeal forum available, the jurisdiction of court to entertain a judicial review application is closed, in the absence of 10 exceptional circumstances, but principle of general application that can be distilled from that case is that, if there is an avenue of redress domestically within a legal framework then there is no necessity to seek out jurisdiction of the court in a matter. Likewise, in the present case, since the avenue of redress is available to the respondents 15 from onset within the SPA, there is no necessity for them to seek redress from tribunal. That avenue of redress ought to be exhausted first. [31] Flowing from this, another issue noteworthy is with regard to finding of the President at paragraph 39 of his grounds of judgment. He has 20 stated that the burden is on the applicant to construct the houses in a good and workmanlike manner in accordance with approved plan as envisaged under clause 15 SPA and the duty remains with them throughout the contract period and the purchasers may still enforce their rights under common law for breach of contract after expiry of 25 20 the contractual period. Further at paragraph 46 he has stated that 5 the respondents chose not to make a claim from stakeholder sum under clause 27(3) of SPA but lodged a claim with the tribunal under section 16N (2)(b) of Act 118. He is of the view that respondents could maintain such an action under the law. Further he said that both rights of action are available concurrently to the respondents 10 which could be exercised by election. All these issues tantamount to points of law which is very much mixed with the facts of the case of the respondents, which is not ventilated and argued before the tribunal, yet findings are made. Issues of this nature is best argued with presence of an advocate for the applicant. Bereft of that, the 15 representative of the applicant cannot be expected to do so. Further, the applicant in this case did not opt for legal representation. As such, it is only prudent for the applicant to be advised by the tribunal to have one, before such issues are taken up by the President. In fact, pursuant to section 16U (2) of Act 118, parties at the tribunal 20 proceeding are entitled to have legal representation, but pursuant to record, no such necessity arose for deliberation at the tribunal proceeding. In the absence of a submission advanced on those issues and a finding made thereon, the President has acted outside his jurisdiction to have embarked on it in his grounds of judgment. 25 21 To do so, smacks on unreasonableness as it is devoid of any 5 plausible justification. [32] Surveying the grounds of judgment, the President is swayed by the plight of respondents as house buyers, but the right of the applicant as developer is side stepped. For example, the requirement of a notice with full details of defects ought to have given effect to pithily, 10 as a notice without detail of defects is as good as no notice given to the applicant to remedy the defects. He ought to have considered the material fact that if the respondents are willing to list the defects when instructed by him, there is no apparent reason why they cannot do the same for the applicant before pursuing their claim at 15 the tribunal. This again smacks on unreasonableness. Findings of the Technical Team [33] It is apparent from the record that a technical team has been instructed by President to inspect premises in question and prepare a report. It was further decided that findings of the technical team 20 shall be final and binding on parties. The primary issue with regard to this aspect of case is, has he acted in excess of jurisdiction or has there been an abuse of jurisdiction when adjudicating the matter in that manner. To crown it up further, he has also ruled that report and findings of technical team is binding on parties. Would it not be 25 22 contrary to the rules of natural justice? I would say, yes, to both 5 questions, as it is improper for him to instruct a technical team to inspect the premises without a proper finding of fact made on existence of the defects. It seems like, he has concluded there has been defects and the extent of it prima facie without any basis in the form of evidence from the respondents. He has relied entirely on the 10 list of defects proffered by the respondents. It did not emerge from testimony of witnesses at the tribunal proceeding but as a result of mediation. For want of that evidence, there is no finding of fact on the defects and extent of it. In that regard, for the President to instruct a technical team to inspect and report on the defects to him, 15 points towards unreasonableness, as it lacks justification. Further the report and evaluation made by technical team is taken as truth and award of compensation made is entirely based on that report. There has been no proper submission on the findings and evaluation of technical team, hence the complaint by the applicant 20 that they were not given an opportunity to ventilate any arguments against it. In that circumstance, the representative of applicant is left with no choice, but to make do with what they have before the tribunal, in order to defend the claim by respondents. In the absence of such disclosure and submission by applicant, reliance by tribunal 25 on findings and evaluation by the technical team is 23 disproportionate as it only favours the respondents but not 5 applicant. Parties appears before the tribunal on an equal footing, with the hope that the presiding officer at the tribunal would be fair to both parties with no fear or favour. In that regard, it is fair for applicant to complain before this court, which is reviewing the decision of the tribunal, that they have not been given the full 10 opportunity to argue their case before the tribunal, especially so on the findings and evaluation by the technical team. [34] Based on record, there has been no hearing of the matter before the tribunal. The proceeding at the tribunal is tilted toward mediation, settlement and negotiation. There seems to have been a negotiation 15 for settlement which had somewhat failed, thus it was found that parties could not reach any settlement (see paragraph 16 of Grounds of Judgment). Corollary to that, the President had instructed a technical team to inspect the premises of the respondents and report to the tribunal. That report is ordered to be 20 final and binding on parties. Hence, basis for the instruction made is not because there has been an issue arising out of the evidence proffered during tribunal proceeding for which a finding is made, but because parties are unable to reach a settlement. Further ruling made that report of technical team is final and binding on parties, is 25 24 also unreasonable in the circumstance of the case. It is not within 5 the scope of the President to rule so, as such ruling negates the entrenched principle of administrative law, audi alteram partum or the rule requiring fair hearing, which prevails in quasi-judicial proceedings, like the present case at the tribunal. [35] The rulings made has in fact affected the aggrieved party, the 10 applicant in the present application for judicial review. It has the effect of altering their rights, thus depriving them of the benefits which they are permitted to enjoy pursuant to the law. It is pejorative when the President has stated in his grounds of judgment that the costing proposed by the technical team is only for his viewing and 15 he adopts it entirely (see paragraph 29 of Grounds of Judgment). The said costing prepared by technical team, then formed the basis of award of compensation to the respondents (see paragraph 52 of Grounds of Judgment). The question that arise is why is that the costing not made known to parties, as there can be arguments for 20 or against it. Absence of access to the said costing and submission for and against it, has indeed prejudiced the applicant, resulting them to be out of pocket vide payment of compensation. It is a rule of natural justice, that before one is condemned, in this case deprivation of property by payment of compensation, it has right to 25 25 be heard. Thus the award made premised on costing arrived at by 5 technical team, is illegal, as reliance on it by the tribunal without full and frank disclosure tantamount to procedural impropriety. In this regard, it would be appropriate to quote Professor MP Jain from his works on Administrative Law of Malaysia and Singapore (Third Edition, MLJ 1997), where he said at pages 298 to 299: 10 “… Disclosure of materials to the party The general principle is that all material which is being relied upon by an adjudicating authority for giving its decision against a person should be brought to his notice and he be given an opportunity to comment, criticise, explain or 15 rebut the same. No material should be relied upon against a party without giving him an opportunity of explaining the same. For the right of hearing to be effective, it is necessary that the authority should not rely on any material against a person without apprising him of the same. The right to a hearing may be of little value if the individual is kept in the dark as to the evidence against 20 him and is not given an opportunity to deal with it. The right to know the materials on which the authority is going to take a decision forms part of the right to defend. If without disclosing any evidence to the party, the authority takes the same into consideration, and decides the matter against him, then the decision is vitiated for it amounts to a denial of a real and effective opportunity 25 to the party to meet the case against him. It means that the evidence should not be collected behind the back of the concerned party; if some evidence 26 comes like this, then it must be brought to his attention so that he may explain 5 or controvert the same. The principle of disclosure of evidence to the defendant can be seen working in many court cases…” (emphasis is mine) Conclusion [36] In view of the foregoing, the decision making process by the tribunal and its decision is fraught with multiple flaws and inconsistencies, 10 which has prejudiced the applicant in this case. The applicant has been successful in demonstrating procedural impropriety and unreasonableness as well as illegality in the decision making process, thus rendering the decision by the tribunal disproportional. Hence, the order is certiorari is justified in the circumstance. 15 [37] It has to be iterated that the President has conducted the proceeding with settlement by parties as foremost. What is paramount is that if the settlement via mediation has failed, it is only proper for the tribunal to have in fact get on with the hearing of the case of the respondents via oral testimony which is subjected to cross- 20 examination by the applicant. Once the respondents have ventilated their grievance to the tribunal on the defects to their houses, then upon a proper finding by the chairman of the tribunal, a technical team to inspect and report on the defects could have been ordered. That would be consonant with the fact finding inquiry by the tribunal 25 27 at all material times. The role of the tribunal which is quasi-judicial, 5 is to inquire if there are in fact defects, what are the defects, extent of defects and how could it be repaired or remedied by the applicant. It is a fact-finding exercise with no prejudice to both parties and their rights guaranteed and upheld at all material time. Only then, it would sync with the rule of natural justice, namely, right to be heard at the 10 tribunal and rule against bias that no one party is preferred over the other. Parties must be able to ventilate their grievance and the tribunal freely without any impediment. The tribunal then would be in a better position to weigh the evidence before making the necessary rulings befitting the case. It has to ensure justice and fair 15 play when adjudicating cases. (See Tan Hee Lock v Commissioner for Federal Capital (1973) 1 MLJ 238). What comes to my mind is again the works of Professor MP Jain (referred to above) where he said at page 169, that a tribunal because of its autonomy is in a much better position to take an objective view of the matter 20 before it. A tribunal is also able to give better procedural safeguards to the parties before it than an administrator acting in an adjudicative capacity. As Lord Morris emphasised in Ridge v Baldwin (1963) 2 AER 66, the essential requirements of natural justice at least include that before someone is condemned he is to 25 have an opportunity of defending himself. What natural justice 28 requires is that an adjudicatory body should not make a decision 5 averse to a party without affording him an effective opportunity of adequately meeting the allegations against him and of presenting his own case. The adjudicator must hear both sides. He must not hear only one side in the absence of the other side. (See again the works of Professor MP Jain, referred to above at page 311). Making 10 ex-parte rulings without proper and adequate submission by parties does not augur well in proceeding of this nature, as parties appear before the tribunal without aid of legal representation. By not ensuring so, the chairman of the tribunal would be acting in excess of jurisdiction or rather abused his jurisdiction over the matter at the 15 tribunal. If that occurs, the decision arrived at by the tribunal is susceptible to judicial review, as has happened in the present case. Order of certiorari granted. Application for Judicial Review allowed with costs of RM3000 for each application to the applicant. No costs ordered against the Tribunal. 20 Dated 2 December 2020 Sgd. Muniandy Kannyappan Judicial Commissioner High Court, Taiping. 25 29 5 Mr Cheah Sau Voon of Messrs. K.H. Wong, Chin & Cheah, counsel for the applicant. Mr Rohan Arasoo Jeyabalan of Messrs. Harold & Lam Partnership, counsel for the respondents. 10 30 Annexure 5 31 5 32 5 33 5 34 5 35 5 36 5 37 5 38 5 39 5 40 5 41 5