Global Activate Sdn Bhd v Tribunal Tuntutan Pembeli Rumah (BA-25-109-07/2024)

1.

TAN TECK SEONG (No K/P: 700704-10-5909) … RESPONDEN-RESPONDEN didengar bersama DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN SEMAKAN KEHAKIMAN NO: BA-25-111-07/2024 ANTARA GLOBAL ACTIVATE SDN BHD (No Syarikat: 1017698-T) … PEMOHON

KIANG JAU KAY (No K/P: 790601-04-5239) … RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT (Enclosures 11)

On 6.1.2025, the Applicant was granted leave to file applications for judicial review against the Respondents.

Enclosures 11 in Case 109 and Case 111 are the Applicant’s substantive application for an order of certiorari to quash the whole of the First Respondent’s awards dated 13.5.2024 in claims No: TTPR/B/0408/24 and TTPR/B/0409/24 (Awards) respectively.

After considering the cause papers and submissions by the parties, this Court dismissed both the applications. The following are the reasons for the decision. Background facts

The facts are undisputed. The Applicant is the developer for Edusentral at Jalan Setia Murni U13/51, Setia Alam, Seksyen U13, Shah Alam, Selangor. The 2nd Respondent in both cases bought units in this development vide sale and purchase agreements dated 17.6.2021 (Home Buyers).

The SPA provided that the Applicant would hand over vacant possession of the units to the Home Buyers within 48 months of the SPA i.e. on or before 10.6.2021.

With the advent of the Covid-19 pandemic, the Applicant was granted exemptions for 654 days (COVID Exemption) to be excluded the computation of time for vacant delivery of the units to the Home Buyers pursuant to section 35 Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 (Act 829).

With the COVID Exemption, the date for delivery of vacant possession to the Home Buyers was 26.3.2023. On 21.2.2024, the Applicant applied for an further exemption of 365 days (2022) and has yet to receive any feedback.

The Applicant delivered vacant possession to the Home Buyers on 5.1.2024. Both the Home Buyers instituted claims with the First Respondent for liquidated ascertained damages (LAD) for late delivery on 15.3.2024.

The First Respondent allowed both the Home Buyer’s claim and order the Applicant to pay the Home Buyer in Case 109 RM33,943.00 and the Home Buyer in Case 111 RM32,379.00 respectively. Substantive application

The Applicant contended that the First Respondent erred in fact and law and acted ultra vires, unreasonably and irrationally in making the Awards. They argued that in making the Awards, the First Respondent –

failed to take into account relevant considerations including clause 25 of the sale and purchase agreements and the adverse impact of the COVID-19 pandemic on the Applicant;

(ii) unjustly enriched the Home Buyers; and

(iii) failed to appreciate the COVID Exemption granted to the Applicant.

Both the Home Buyers argued that the First Respondent was correct in allowing their claim. His computations did not contravene clause 25 SPA or the COVID Exemption of 654 days. Principles of law

Judicial review of administrative tribunal decisions play a pivotal role in ensuring that administrative bodies exercise their powers lawfully and fairly. While tribunals are established to provide specialised and accessible forums for resolving disputes within specific legislation, their decisions remain subject to the supervisory jurisdiction of the Courts.

In judicial review proceedings, this Court is tasked with the responsibility to examine whether the tribunal has acted within its legal authority, observed the principles of natural justice and reached its decision in a manner that is reasonable and in compliance of its procedurally requirements. This is to ensure that the administrative decision-making adheres to the fundamental tenets of legality, rationality and fairness.

This Court was mindful of Gopal Sri Ram’s JCA (as His Lordship then was) dicta in Syarikat Kenderaan Melayu Kelantan Berhad v. Transport Workers Union [1995[ 2 CLJ 748 wherein His Lordship held at 765 – “An inferior tribunal or other decision making authority, whether exercising a quasi-judicial function or purely an administrative function has no jurisdiction to commit an error of law. Henceforth, it is no longer of concern whether the error of law is jurisdictional or not. If an inferior tribunal or other public decision takes does make such a an error, then he exceeds his jurisdiction. So too is jurisdiction exceeded where resort is had to an unfair procedure (see Raja Abdul Malek v. Setiausaha Suruhanjaya Pasukan Polis [1995] 1 MLJ 308), or where the decision reached is unreasonable, in the sense that no reasonable tribunal similarly circumstanced would have arrived at the impugned decision. It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law for the categories of such an error are not closed. But it may be safely said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant consideration (what may be conveniently terms as Anisminic error) or if he misconstrues the terms of any relevant statue, or misapplies or mis-states a principle of general law.” Analysis and findings

The computation of LAD follows a strictly regulated formula prescribed under the Housing Development (Control and Licensing) Regulations 1989. It is fixed at 10% per annum of the purchase price and calculated on a daily basis from the date of delivery of vacant possession under the SPA until the date vacant possession is actually delivered.

In the present instance, Clause 25(2) SPA mirrors this statutory formula. The three variables required to calculated the LAD; namely the contractual delivery date, the COVID Exemptions and the actual date of delivery are documented and remain undisputed by the Applicant.

The Home Buyers’ claims show the calculation of the LAD and strictly adhere to the statutory formula, the SPA and the COVID Exemptions as follows –

(i)

(ii)

This Court finds that the calculations are correct which render the Applicant’s complaint that they did not reflect the provisions in the SPA or the COVID Exemption, devoid of merit. The Applicant’s application for further exemptions

The Applicant contends that the First Respondent should have adjourned the hearing of the Home Buyers’ claims pending the approval of their application for further exemption.

The Home Buyers’ claims before the First Respondent cannot be suspended indefinitely on the hope that the Applicant’s application would be allowed. More so, when there is no guarantee or evidence that the application would be allowed.

If the First Respondent allowed the adjournment or suspended the hearings pending the approval, this would not only sest a dangerous precedent but effectively block the timely disposal of home buyers’ claims for LAD. It would also defeat the purpose for which the First Respondent was established to provide a fast, efficient and inexpensive forum.

The Applicant’s argument must fail. Unjust enrichment

The Applicant’s allegation of unjust enrichment is premised on the hypothetical approval of their application for further exemptions.

That is purely speculative and lacks any legal or factual basis. As alluded to earlier, the is no evidence to suggest that the application will be approved.

This argument is without merit and ought to be dismissed.