Garuda Searah Sdn.Bhd. v Tribunal Tuntutan Pembeli Rumah (WA-25-238-04/2022)

High Court of Malaysia12 Oct 2023

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1 (BAHAGIAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO. WA-25-67-02/2022 Dalam perkara mengenai Award bertarikh 29.12.2021 yang diberi oleh Tribunal Tuntutan Pembeli Rumah di Putrajaya dalam Tuntutan No. TTPR/B/1029/21; Dan Dalam perkara mengenai permohonan Garuda Searah Sdn. Bhd. Pendaftaran Syarikat: 1134692-A) untuk suatu Perintah Certiorari; Dan Dalam perkara mengenai

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Jadual Peraturan-Peraturan Pemajuan Perumahan (Kawalan & Pelesenan), 1989; Dan Dalam perkara mengenai Seksyen 25(2) dibaca bersama Perenggan 1 dalam Jadual kepada Akta Mahkamah Kehakiman, 1964; Dan Dalam perkara mengenai Seksyen 44 Akta Relief Spesifik, 1950; Dan Dalam perkara mengenai Aturan 53 Kaedah-Kaedah Mahkamah, 2012. 1. TRIBUNAL TUNTUTAN PEMBELI RUMAH 2. TING PING (NO. K/P: 870213-52-5564) JUDGMENT [1] There are before me five separate judicial review applications, which, by the consent of all parties concerned, are heard together. The five cases are WA-25-67-02/2022 (“JR No. 67”), WA-25-124- 03/2022 (“JR No. 124”), WA-25-125-03/2022 (“JR No. 125”), WA- 25-238-04/2022 (“JR NO. 238”) and WA-25-142-03/2022 (“JR No. 142”). [2] I will first deal with JR No. 67 which is the anchor case. JR No. 67: The Factual Background [3] The applicant is a housing developer company and licensed under the Housing Development (Control and Licensing) Act 1966 (“HDA”). It is the registered proprietor of all that piece of land known as PN 44977 Lot 52957, Kuala Lumpur (“the said Land”). [4] The dispute in this case involves the housing development erected on the said Land known as Residensi Desa Satumas (“Desa Satumas Project”). [5] The applicants’ position is that the said Desa Satumas Project was a joint effort with Dewan Bandaraya Kuala Lumpur (“DBKL”) to provide affordable residential apartments for suitable candidates based on DBKL's criteria. [6] The 2nd respondent, Yeow Pooi Mun, was one of the applicants who signed the Borang Pendaftaran Keutamaan dated 5.9.2017 and waited for the approval of DBKL on her eligibility. [7] Upon signing the said Borang Pendaftaran Keutamaan, the 2nd respondent issued a PBB cheque dated 4.9.2017 for RM15,000.00. The PBB cheque was issued in the name of the applicant. [8] Subsequent to the Borang Pendaftaran Keutamaan, the 2nd respondent signed a Purchase Application Form on 9.9.2017 with the applicant company. The Purchase Application Form was issued by the applicant company. It is not in dispute that the Purchase Application Form carries the details of the said Parcel, the built-up area, and the purchase price of RM230,000. [9] The 2nd respondent issued another PBB cheque dated 9.9.2017 for RM8,000. [10] Subsequent to that, the applicant company confirmed the sale of the said parcel. The parties then executed a sale and purchase agreement dated 20.12.2018 (“SPA”). Under the SPA, the applicant was required to deliver vacant possession (“VP”) by 20.12.2021. Cl 25(1) of the SPA provides that: Vacant possession of the said Parcel shall be delivered to the Purchaser in the manner stipulated in clause 27 within thirty six (36) months from the date of this Agreement. [11] It is the 2nd respondent’s case that the two initial payments made to the applicant were the first 10% of the purchase price payable under the Third Schedule of the SPA. [12] On 23.10.2020, the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 (“COVID-19 Act”) was passed. [13] On 21.10.2021, the applicant issued a notice of VP of the said Parcel. The notice inter alia states as follows: We are very pleased to inform you that the abovementioned Property has been completed and vacant possession of the unit is ready to be delivered to you. A copy of the Certificate of Completion and Compliance (“CCC”) is enclosed for your attention. According to the applicant, the notice of VP was issued some 53 days before the Last Date of Delivery of VP. [14] Despite the applicant’s contention that the delivery of VP was within the time stipulated in the SPA, the 2nd respondent nevertheless brought a claim for liquidated ascertained damages (“LAD”) against the applicant at the Tribunal of Homebuyers Claims (“the Tribunal”). At the Tribunal, the 2nd respondent claimed a sum of RM28,052.05. At the Tribunal [15] In his grounds of judgment, the learned President of the Tribunal was of the view that the only pertinent issue to be decided was whether the calculation of 36 months was to start from the date of the SPA or from the date when the booking fee was paid. [16] The Tribunal held that based on the evidence adduced at the proceedings, the applicant had collected a total sum of RM23,000 in respect of the said Parcel. The learned President then referred to the judgment of the Federal Court in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Or Appeals [2021] 2 CLJ 441 FC. The case carries the proposition that the first payment made by a purchaser constituted an intention to enter into a contract. [17] The learned President made the following further findings: (a) Being a licensed developer, the applicant company should not have collected any money from the purchaser until and unless a formal agreement is signed. The collection of the money from the purchaser could not be legalised by using creative labels such as booking fees or earnest deposit. (b) Reg 11 (2) of the Housing Developer (Control and Licensing) Regulations 1989 (“the 1989 Regulations”) prohibits any collection of money. Any collection of payment by a developer before the signing of the SPA constitutes an offence under the HDA, which, according to the learned President, could lead to criminal prosecution. (c) The only way that the applicant is allowed to collect the money is when the parties enter a formal contract. The SPA, particularly the Third Schedule, clearly states that the first 10% of the purchase price can only be collected upon signing the SPA. (d) Unfortunately, according to the learned President, there was a serious lapse of time between the payment of the deposit and the signing of the SPA. The deposit was paid in September 2017, but the SPA was executed some 15 months later on 20.12.2018. (e) Relying on Daiman Development Sdn Bhd v Mathew Lui Chin Teck and Anor Appeal [1981] 1 MLJ 56 PC, the learned President was of the view that such payment has been considered sufficient to show the existence of a contract. (f) The applicant contended that there was no concluded contract upon the payments made by the 2nd respondent after the execution of the Borang Pendaftaran Keutamaan and the Purchase Application Form. However, the learned President made a finding that the payment was meant to be utilised as part of 10% of the purchase price. In any event, the initial payments of RM23,000.00 were later utilised as the 10% deposit payment under the SPA. (g) Since the applicant, in collecting the initial payments, was in breach of the law, it is precluded from pursuing its case by relying on its own illegal acts: ex turpi causa non oritur actio. (h) Relying on PJD Regency, the learned President held that the payment of the initial 10% deposit and the signing of the statutory SPA should have been done simultaneously. That the applicant had bypassed the statutory prohibition against the collection of booking fees meant that a bargain was indeed made at the time of the payment of the booking fee. The initial payments were sufficient to constitute an intention to enter into a contract, given that the SPA would have to be signed simultaneously. [18] The Tribunal then allowed the 2nd respondent’s claim after the necessary deductions of days under s 35 of the COVID-19 Act. [19] The 2nd respondent’s claim was allowed for the sum RM32,981.37 to be paid within 30 days from the date of the Award, failing which interest was to be imposed at the rate of 8% per annum. At the High Court [20] Aggrieved, the applicant commenced this application for judicial review to quash the Award. Leave to commence the application was granted by this Court on 25.4.2022. [21] The application is supported by the affidavit of Lee Chan Kuen in Encl 3 (“AIS-3”). Encik Lee is the Chief Operating Officer of the applicant company. There are further affidavits filed by the parties, which will be referred to in this judgment as and when the need arises. [22] Before me, learned counsel for the applicant submitted that the Tribunal had erred in: (a) Finding that the period of 36 months to deliver VP commenced from the date the first payment was made to the applicant company; and (b) Arriving at the impugned Award. [23] The 2nd respondent (and the other purchasers in the remaining JR applications) agreed that a total of 167 days ought to be excluded from the calculation of the delivery of VP on account of s 35 of the COVID-19 Act. S 35(1) provides as follows: Notwithstanding any agreement entered into between the purchaser and the developer, the period from 18 March 2020 to 31 August 2020 shall be excluded from the calculation of— (a) the time for delivery of vacant possession of a housing accommodation; and (b) the liquidated damages for the failure of the developer to deliver vacant possession of a housing accommodation. [24] Learned counsel for the applicant further submitted that the Tribunal’s reliance on PJD Regency was misguided. The applicant’s contention is that in PJD Regency, the ratio was premised on the foundations of a contract being present when the first payment was made by the purchasers to the developer. [25] Citing Daiman Development as an authority, learned counsel for the applicant highlighted that all the material terms, namely the price and subject matter of the sale, such as the lot and the description of the property, must have been agreed upon before the booking pro forma form (in this case the Borang Pendaftaran Keutamaan and the Purchase Application Form) before one can conclude that the payment was made as part of the 10% deposit referred to in the SPA. [26] In short, learned counsel for the applicant submitted that the foundation of a valid contract was absent when the 2nd respondent made the initial payments simultaneously with the execution of the Borang Pendaftaran Keutamaan and the Purchase Application Form. [27] Learned counsel then invited me to distinguish the instant case with PJD Regency and urged this Court to conclude that only where: (a) The price; (b) The subject matter (i.e. unit, layout and description of the parcel); and (c) The legal obligation for the purchaser to purchase the property, are determined with finality, can the payment of an amount to the developer result in a valid contract being formed. [28] Applying the law to the instant case, learned counsel for the applicant submitted that the fundamental features of the contract had not been determined prior to the execution of the SPA. According to learned counsel, these “fundamental features” of the contract include the 2nd respondent having to fulfil the stringent requirements of the DBKL for a person to purchase a unit at the Desa Satumas. [29] The requirements are inter alia that the 2nd respondent has to establish to the satisfaction of DBKL that her gross income should be RM10,000 and below per month. In short, until and unless the requirements are met and approval from DBKL is secured, the individuals cannot purchase any unit from the Desa Satumas project. Analysis and Findings [30] With respect, I am unable to accede to the line of arguments of learned counsel for the applicant. My reasons are these. To begin with, if indeed the approval from DBKL is the fundamental requirement of the formation of the contract as learned counsel would like this Court to conclude, then the applicant should have waited for the official approval from DBKL first before accepting any payment from the 2nd respondent. [31] Secondly, the Purchase Application Form dated 9.9.2017 clearly stated that the parcel that was the subject matter of payment was Unit C-28-01 with the purchase price of RM230,000. There is no ambiguity in the price, subject matter and legal obligation of the 2nd respondent to purchase the said parcel. [32] In my considered view, the contract was formed at least on 9.9.2017, and the execution of the SPA on 20.12.2018 is only a formality. [33] For the aforesaid reasons, the learned President’s decision in holding that the late delivery of VP is calculated from the date of the initial payment is not tainted with any illegality, irrationality or procedural impropriety that is amenable to judicial review. [34] However, in terms of quantum, I find difficulty in understanding how did the learned President arrive at the sum of RM32,981.37 when the pleaded sum is less than that. He only remarked as follows: After hearing parties on 29-12-2021, I allowed claim of RM32,981.37 to be paid within 30 days from the date of the award, failing which, interest at the rate of 8% per annum. [35] The learned President did not explain his method of calculation as to how he arrived at the said sum. Unfortunately, this is a reviewing Court. There are ample authorities on the proposition that a judicial review Court cannot substitute a finding of a Tribunal with its own; see Menara Pan Global Sdn Bhd v. Arokianathan Sivapiragasam [2006] 2 CLJ 501 CA. [36] It is my finding that time starts to run from 9.9.2017, which is the date of the Purchase Application Form. The applicant should have delivered VP by 9.9.2020. Since VP was only delivered on 21.10.2021, the LAD should have been calculated on this basis minus the days the parties agreed to be deducted under s 35 of the COVID-19 Act. [37] The same order is made on JR No. 124, JR No. 125, JR N. and JR No. 142 with the necessary adjustment. [38] There shall be no order as to costs. Tarikh: 29 Disember 2023 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. Pihak-pihak: Bagi Pihak Pemohon : Joshua Andran, Loh Suk Hwa, Tan Choon Keet, Nik Nur Adawiyah Binti Nik Hassan Tetuan Joshua Aaron Keet Bagi Pihak Responden 2 : Jonathan Chok Wen Yew & Yap Pei Ying JR No. 67 Tetuan Tan, Tan & Associates Bagi Pihak Responden 2 : Bryan Boo & Intan Maisara JR 124 & JR No. 238 Tetuan Bryan & Co. Bagi Pihak Responden 2 : Chan Chen Yuen JR No. 125 In Person Bagi Pihak Responden 2 : Ting Ping JR No. 142 In Person

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Case metadata

Court: High Court of Malaysia
Decision date: 12 Oct 2023
Case number: WA-25-238-04/2022
Coram: YAA Tun Wan Ahmad Farid Bin Wan Salleh
Practice area: Contract — Sale and purchase of property — Liquidated ascertained damages (‘LAD’) for delayed delivery of vacant possession (‘VP’) — Whether LAD ran from date developer collected booking fee from buyer or from date stated in sale and purchase agreement (‘SPA’) — Whether contract between parties came into being when the buyer signed Borang Pendaftaran Keutamaan and the Purchase Application Form — Whether the approval from Dewan Bandaraya Kuala Lumpur is the fundamental requirement of the formation of the contract
Version: Alasan Penghakiman 1
Published: 29 Dec 2023
Source ID: 89c66f61-6c15-479f-bbf9-c48ef8aca1a1

Catchwords

Contract — Sale and purchase of property — Liquidated ascertained damages (‘LAD’) for delayed delivery of vacant possession (‘VP’) — Whether LAD ran from date developer collected booking fee from buyer or from date stated in sale and purchase agreement (‘SPA’) — Whether contract between parties came into being when the buyer signed Borang Pendaftaran Keutamaan and the Purchase Application Form — Whether the approval from Dewan Bandaraya Kuala Lumpur is the fundamental requirement of the formation of the contract

Parties

GARUDA SEARAH SDN.BHD. - applicant - ejudgment_parties
1. ) TRIBUNAL TUNTUTAN PEMBELI RUMAH - respondent - ejudgment_parties
2. ) MELISSA CHAI YINN YINN - respondent - ejudgment_parties

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Garuda Searah Sdn.Bhd. v Tribunal Tuntutan Pembeli Rumah (WA-25-238-04/2022)

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