Gema Intan Sdn Bhd v 1. Tribunal Tuntutan Pembeli Rumah Pulau Pinang (PA-25-19-03/2020)

Dan

Tribunal Tuntutan Pembeli Rumah Pulau Pinang Billy Ooi Kwang Hsiung (No. KP: 781221-07-5511)

Chua Hooi Koon (No. KP: 790913-07-5832) ... Responden-Responden JUDGMENT Introduction [1] On 13.9.2021, I dismissed an order of certiorari sought by the applicant, a housing developer, to quash an award dated 3 6.2.2020 made by the Tribunal for Homebuyer Claims Penang (the 1st respondent and hereinafter referred to as “the Tribunal”). [2] The Tribunal had awarded RM50,000.00 to the 2nd respondent and the 3rd respondent (“the homebuyers”) as liquidated and ascertained damages for late delivery of vacant possession of a condominium parcel and the common facilities thereof pursuant to the terms of a sale and purchase agreement which was in the form of a Schedule H type agreement under Regulation 11(1) of the Housing Development (Control and Licensing) Regulations 1989. These regulations were enacted pursuant to section 24 of the Housing Development (Control and Licensing) Act 1966. [3] For the sake of brevity all sections hereinafter mentioned refer to the Housing Development (Control and Licensing) Act 1966. [4] The reasons for my decision are as stated below. 4 Background facts [5] The applicant had entered into a sale and purchase agreement with the homebuyers for a condominium parcel known as No. 01, Storey 22, Skyview Residence together with two car parking bays in Bandar Jelutong, Daerah Timur laut, Negeri Pulau Pinang. The sale and purchase agreement on the face was dated 18.6.2014 and the purchase price of the parcel was stated as RM701,500.00. [6] The sale and purchase agreement contained clause 24(1) which mandatorily required vacant possession of the said parcel to be delivered to the homebuyers within 48 calendar months “from the date of the agreement” and clause 26(1) which required the common facilities serving the condominium to be completed within 48 calendar months also “from the date of the agreement”. The date of the completion of the common facilities is the date as certified by the applicant’s architect. [7] Clause 24(2) imposed an obligation on the applicant to pay the homebuyers liquidated and ascertained damages calculated 5 from day to day at the rate of 10% per annum of the purchase price from the expiry date of the delivery of vacant possession until the date the homebuyers take vacant possession of the parcel while clause 26(2) imposed an obligation on the applicant to pay the homebuyers liquidated damages calculated from day to day at the rate of 10% per annum of the last 20% of the purchase price if the applicant fails to complete the common facilities within the time stipulated. Clause 25 provide the manner in which vacant possession is to be delivered but is not made an issue by the parties in the instant application. [8] On 20.12.2018 the applicant obtained the certificate of completion and compliance for the parcels and the common facilities. The parties were on common ground that 20.12.2018 was the date of the delivery of vacant possession of the said parcel and common facilities. The claim with the Tribunal [9] The homebuyers claimed that there was late delivery of the said parcel and common facilities and filed a claim with the Tribunal claiming liquidated and ascertained damages totalling 6 RM98,940.32 under the sale and purchase agreement. This amount was arrived at by taking the date 18.10.2013, which is the date the homebuyers paid 10% of the purchase price as deposit, and 20.12.2018 as the date vacant possession was taken. The delay the homebuyers claimed for late delivery of vacant possession of the parcel and common facilities was 429 days. The applicant’s defence before the Tribunal was that the date of the agreement under the sale and purchase agreement is the date that is stated on the face of the agreement ie 18.6.2014. [10] On 6.2.2020, the Tribunal accepted the date the 10% deposit was paid as the date of the agreement, the date pleaded by the homebuyers as the date of the agreement, for the purposes of computing the liquidated and ascertained damages. However the homebuyers were not awarded the amount of RM98,940.32 claimed by them. The homebuyers were only awarded RM50,000.00 which is the maximum amount that the Tribunal has jurisdiction to award according to section 16M(1) which reads as follows: 7 Subject to sections 16N and 16O, the Tribunal shall have jurisdiction to determine a claim lodged under section 16L where the total amount in respect of which an award of the Tribunal is sought does not exceed fifty thousand ringgit. Application for leave to commence judicial review proceedings [11] The applicant aggrieved with the award of the Tribunal filed an application for leave to commence judicial review proceedings for an order of certiorari to quash the said award under Order 53 of the Rules of Court 2012. Leave was granted as per the following grounds stated in the Order 53 statement:

The tribunal breached section 16AA of the Housing Development (Control and Licensing) Act 1966 in not supplying written reasons when rendering its award and hence committed a procedural impropriety error.

(ii) The Tribunal committed an illegality and/or irrationality error when it did not take the date 18.6.2014 which is 8 the date stated on the face of the sale and purchase agreement as the date of the agreement for computing liquidated and ascertained damages. If this date is taken the last date for delivery of vacant possession of the parcel and delivery of the common facilities would be 18.6.2018. Accordingly the delay would be 186 days and entitle the homebuyers to a sum of RM42,897.20 as liquidated and ascertained damages instead of the RM50,000.00 awarded by the Tribunal. Decision of the court 1st Ground: Failure to comply with section 16AA [12] The applicant contends that the failure of the Tribunal to supply written reasons for the award is a non-compliance or a breach of section 16AA which warrants the award to be quashed for procedural impropriety. The section provides as follows: The Tribunal shall in all proceedings give its reasons for its award in the proceedings. 9 [13] I found the ground without merit. In this case the Tribunal did give oral reasons on 6.2.2020 ie the date the decision was rendered by the Tribunal. The 2nd respondent affirmed in his affidavit that the oral reasons were given by the Tribunal in the presence of the applicant’s representative and the 2nd respondent. The giving of oral reasons is sufficient to comply with section 16AA. Further, if the applicant required written reasons, it ought to have applied for mandamus compelling the Tribunal to provide such written reasons. [14] The authority that supports my decision is the Court of Appeal case of Hazlinda Hamzah v Kumon Method Of Learning Centre [2006] 2 CLJ 933 where a similar provision with section 16AA, in the form of section 114 of the Consumer Protection Act 1999, was construed. I am therefore bound by the ratio decidendi of the decision which appears in the following paragraph: [10] In the first place, all that s 114 says is that the Tribunal must give reasons for making its award. The section does not say that the reasons must be in 10 writing. Nor does it fix any time limit for the delivery of reasons. Having regard to the general scheme of the Act it is sufficient if the Tribunal gives oral reasons. What is important is the speedy disposal of a dispute with oral reasons for the decision. If the need arises, the Tribunal may deliver written reasons at a later point in time. If the Tribunal refuses to deliver any reasons - which is certainly not the case here - then the obvious remedy open to the respondent was to move the High Court for mandamus requiring the immediate production of the reasons. … [15] This construction of section 114 of the Consumer Protection Act 1999 was followed by the High Court in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2019] 1 LNS 267 and Lay Seng Development Sdn Bhd v Bibizuraini Murad & Anor [2016] 1 LNS 168. [16] In the circumstances the ground of failing to provide written reasons fails. 11 2nd Ground: Wrongly construed the words “from the date of the agreement” [17] The applicant contended that the words “from the date of the agreement” can only mean the date stated in the sale and purchase agreement and not the date of the payment of the deposit. As a result, it was submitted that the Tribunal had committed an illegality and/or “wednesbury unreasonableness” error by not taking 18.6.2014 as the date of the agreement. [18] The applicant in support of its case relied on the Court of Appeal decision in GJH Avenue Sdn Bhd v Tribunal Tuntutan Pembeli Rumah Kementerian Kesejahteraa Bandar, Perumahan dan Kerajaan Tempatan & Ors and Other Appeals [2020] 3 CLJ 307 which had held that the date of the agreement for the purposes of computing liquidated and ascertained damages in a Schedule H type agreement is the date which appears on the face of the said agreement. [19] The homebuyers cited the Supreme Court decisions in Faber Union Sdn Bhd v Chew Nyat Shong & Anor [1995] 3 CLJ 797 and Hoo See Sen & Anor v Public Bank Bhd [1988] 12 1 CLJ Rep 125 which had interpreted the words “from the date of the agreement” as the date on which the purchaser paid the booking fee and/or deposit not the date that appears on the face of the sale and purchase agreement. [20] I am spared of an in depth discussion on this issue because after parties had exchanged written submission the Federal pronounced its decision in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeals [2021] 2 CLJ 441. In this case the Federal Court settled the issue by holding that a booking fee collected by the developer will result in the sale and purchase agreement for housing accommodation to be deemed to commence as from the date of the collection of the booking fee. The Federal Court reminded that the Housing Development (Control and Licensing) Act 1966 and the regulations made thereunder are social legislation whose aim is to protect homebuyers. Thus, the date any payment is made to the developer by the purchaser or collected by the developer from the purchaser as booking fee and/or part deposit before the execution of the sale and purchase agreement is deemed as the date of the sale and purchase agreement. 13 Conclusion [21] For the above reasons the judicial review application is dismissed. ……………Sgd…………….. Amarjeet Singh Serjit Singh Judicial Commissioner High Court of Penang Dated: 20th September 2021 Counsel for the Applicant: Mr. K. Kumar [K.KUMARA & CO (PENANG)] Counsel for the Respondent: Ivan Tan Kit Wei [TETUAN AMIR & LEE (PENANG)] Cases referred to:

Hazlinda Hamzah v Kumon Method Of Learning Centre [2006] 2 CLJ 933 2. PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2019] 1 LNS 267 3. Lay Seng Development Sdn Bhd v Bibizuraini Murad & Anor [2016] 1 LNS 168. 14 4. GJH Avenue Sdn Bhd v Tribunal Tuntutan Pembeli Rumah Kementerian Kesejahteraa Bandar, Perumahan dan Kerajaan Tempatan & Ors and Other Appeals [2020] 3 CLJ 307 5. Faber Union Sdn Bhd v Chew Nyat Shong & Anor [1995] 3 CLJ 797 6. Hoo See Sen & Anor v Public Bank Bhd [1988] 1 CLJ Rep 125 7. PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli