Lakefront Residence Sdn Bhd v TRIBUNAL TUNTUTAN PEMBELI RUMAH (BA-25-6-01/2022)

1.

WONG KAH YAN (No. K/P: 861004-56-5987) …RESPONDEN-RESPONDEN 19/04/2024 17:04:21 Kand. 26 JUDGMENT [1] This is an application for judicial review against the award made by the first respondent, the Tribunal Tuntutan Pembeli Rumah on 2.11.2021. At the end of the hearing, this court dismissed the applicant’s application for judicial review. This is the grounds of this court at coming to a decision. Factual Background [2] The applicant is the vendor and the second respondent is the purchaser of a property known as Unit No. T1-27-06, Project: Lakefront Residence @ Cyberjaya under Title No. H.S. (D) 35966, PT 49801, Mukim of Dengkil, District of Sepang, State of Selangor Darul Ehsan (“the Property”). [3] The applicant and the second respondent entered into a Sale and Purchase agreement dated 27.3.2014 (‘the SPA’) for the Property. [4]

(ii) the location of the air-conditioning compressors at the Property had allegedly caused:

the area of the built-up main parcel had been reduced; and

a number of issues (i.e. electrical, mechanical, noise, dripping water causing the floor to be wet and ventilation issues) have arisen at the Property;

(iii) by the same claim, the Purchaser made the following monetary claims from the applicant:

RM44,960.00 to move the air-conditioning compressor from the main parcel of the Property;

further costs for making the claim of: • transportation costs of RM100.00; and • filing, communication and other miscellaneous costs of RM30.00.” [7] The first respondent awarded the second and third respondents the sum of RM44,960.00 as the cost of the relocating the air-conditioning compressors outside the Property. [8] The applicant now seeks to squash the award of the first respondent. Principles Relating to Judicial Review [9] In relation to judicial review, authorities have laid out the principles by which an application for judicial review may be allowed. These grounds are:

procedural impropriety pertaining to the decision making process;

(ii) illegality of the decision; and

(iii) irrationality of the decision. [10] Specifically, in relation to the relief of certiorari, the case of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] 2 All ER 680 cited in Husli bin Mok & Ors v. Probate Officer, Miri [1996] 5 MLJ 420 and Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2004] 2 MLJ 288, expounded the principles relating to the grant of an order for certiorari. [11] Founded on these principles, this court will now proceed to consider the application before this court. Analysis & Findings [12] The applicant submitted the award granted by the first respondent is irrational, inter alia, for the following reasons: “(i) the first respondent has erred in law and exceeded its jurisdiction in allowing the Purchaser to claim for liquidated damages which does not arise from the SPA; and

(ii) the first respondent has erred in law and exceeded its jurisdiction in allowing the Purchaser to claim for liquidated damages based on any purported failure of the Applicant to “take into consideration the human factor that exist in the environmental issue and other relevant factor”. [13] The main ground before this court is whether the first respondent had jurisdiction to hear the claim by the respondents. In this respect, this court referred to subsection 16N(2) of the Housing Development (Control and Licensing) Act 1966 (“the Act”) which is reproduced below: “16N(2) The jurisdiction of the Tribunal shall be limited to a claim that is based on a cause of action arising from the sale and purchase agreement entered into between the homebuyer and the licensed housing developer which is brought by a homebuyer not later than twelve months from –

the date of issuance of the certificate of completion and compliance for the housing accommodation or the common facilities of the housing accommodation intended for subdivision, whichever is the later;

the expiry date of the defects liability period as set out in the sale and purchase agreement; or

the date of termination of the sale and purchase agreement by either party and such termination occurred before the date of issuance of the certificate of completion and compliance for the housing accommodation or the common facilities of the housing accommodation intended for subdivision, whichever is later.” [14] Pertaining to this provision, the High Court, in the case of Southville City Sdn Bhd v. Chua Teck Kee & Anor. (2019) 1 LNS 1318 observed as follows: “The court refers to section 16N (2) of the HDA where it states that the jurisdiction of the Tribunal shall be limited to a claim that is based on a cause of action arising from the SPA entered between the homebuyer and the housing developer. The jurisdiction of the Tribunal is only confined to the four corners of the SPA and does not include any purported agreement nor conduct outside the SPA”. [Emphasis added] [15] Pertaining to the provision of subsection 16N(2) of the Act, the Federal Court in the case of Country Gardens Danga Bay Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor [2022] 5 MLRA 38 stated: “[38] Subsection 16N(2) of the Act provides that the Tribunal’s jurisdiction shall be limited to a claim based on a cause of action arising from the sale and purchase agreement entered into between the homebuyer and the housing developer. [39] Learned counsel for the appellant urged us to compare the provision of the Act with the one under the Consumer Protection Act 1999 (Act 599) which we did. Especially we compared subsection 16N(2) of the Act with subsection 99(2) of the Act 599. Just like the Act, Act 599 is also a social legislation. If the Act is meant for the protection of homebuyer, Act 599 is meant for protection of consumers. Subsection 99(2) of Act 599 provides that: “the jurisdiction of the Tribunal shall be limited to a claim that is based on a cause of action which accrues within three years of the claim.” [40] Upon comparing, it is clear to us that although both subsection 16N(2) of the Act and subsection 99(2) of Act 599 set the time frame for a claim to be made, the jurisdiction of the Tribunal under Act 599 is very wide and general and not limited to the purchase agreement or its terms Whereas under the Act, the jurisdiction of the Tribunal is confined to the SPA. There has to be a SPA for a claim or complaint to be made under the Act. The SPA is a condition precedent for the Tribunal’s jurisdiction.” [Emphasis Added] [16] Founded on subsection 16N(2) of the Act and the case of Country Gardens (supra), it can be concluded that the first respondent’s jurisdiction is confined to the SPA. [17] It was contended by learned counsel for the applicant that the subject matter in contention which is the centralized air conditioning system is not part of the SPA. According to the applicant, the SPA does not mention the centralised air conditioning system. As such, the claim by the second respondent at the tribunal did not fall within the ambit of the jurisdiction of the tribunal which is confined to matters within the SPA. [18] In support of this argument, reference was made to the Deed of Mutual Covenant dated 13.2.2014. Clause 8.1 of the Deed of Mutual Covenant provides that the applicant intends to appoint the utility provider to construct, commission and operate a centralised air conditioning system. Clause 8.1 of the Deed of Mutual Covenant is reproduced below for ease of reference: “Appoint the Utility Provider to construct, commission and operate a centralised air-conditioning system using either the Thermal Energy Storage System or other innovative system (“Cooling System”) to supply chilled water to the Parcel…” [19] Learned counsel for the applicant argued that even if clause 8.1 was taken to mean that a centralised air conditioning system would be installed, the applicant relied on clause 11.5 of the Deed of Mutual Covenant which states: “…absolute discretion in deciding whether to enforce any covenants, undertakings, obligations or any other provisions contained in this and/or the Rules and Regulations and the Purchaser or purchasers cannot compel the Vendor to enforce any of the said covenants, undertakings, obligations or other provisions contained in this Deed.”. [20] The applicant relied on clause 11.5 of the Deed of Mutual Covenant to state that the applicant has the absolute discretion in deciding whether to enforce any covenant, undertaking, obligations or any other provisions. This court perused the Deed of Mutual Covenant and found clause 11.5 of the Deed of Mutual Covenant relates to the Default and Waiver. A perusal of the said clause 11.5, in the considered view of this court, relates to the failure by the second respondent to pay the service charge or a breach of the provisions of the Deed of Mutual Covenant or if the respondents failed to maintain their parcel. [21] Based on the facts before this court, this court opines the second respondent has done nothing of the sort mentioned in clause 11.5 to enable the applicant to rely on clause 11.5 of the Deed of Mutual Covenant. Thus, it is this court’s considered view that clause 11.5 of the Deed of Mutual Covenant cannot be employed to substantiate the applicant’s arguments. [22] It was further submitted that at all material times the second respondent accepted delivery of vacant possession of the property on 15.11.2018 and was fully aware of the location of the air conditions’ compressors. [23] Hence it was contended that the second respondent’s claim was based on a purported breach of the Deed of Mutual Covenant and not the SPA. As the jurisdiction of the tribunal is confined to the SPA, the first respondent had no jurisdiction to hear the matter and hence this judicial review ought to be allowed. [24] The question before this court is whether the SPA provides for the centralized air conditioning. According to the applicant, the SPA does not provide for the centralized air-conditioning system. [25] The approved layout plan allowed by the local authority, Majlis Perbandaran Sepang has included the chiller plant room and chiller water tank at all material times. This can be supported by the fact that the approved layout plan reference number MP.SPG.9/CYB/96/11 stated in the First Schedule of the SPA was referred to and reflected in the approval letter from the local authority dated 23.03.2012 and Form F (certificate of completion and compliance) dated 8.11.2018, which demonstrates to this court that the applicant was supposed to install centralized air-conditioning system for the said project. [26] Moreover, the applicant had also via their own letter dated 22.01.2019 made clear admission that the applicant had made changes to the air-conditioning system, from the initial proposed centralized cooling system (chilled water system) to air-cooled split unit system and that the changes were not communicated to the purchasers of the said project earlier. [27] The Deed of Mutual Covenant signed between the applicant and the second respondent stated clearly that the applicant has to appoint utility provider to construct, commission and operate a centralized air-conditioning system for the said Project. Moreover, the second respondent is not allowed to install any air-conditioning unit in the said property without the prior written consent of the applicant. [28] In this regard, this court made reference to the case of Hong & Fong v. Tan Po Lin & Anor [2022] 1 LNS 221 where the court stated: “[15] It is trite law that an admission is admissible under sections 17, 18 and 21 of the Evidence Act, and is a strong piece of evidence in support of the Plaintiffs’ claim. Reference on this point was made to the Court of Appeal case of Koh Siew Keng & Anor v. Koh Heng Jin [2008] 3 CLJ 450.” [29] Hence, founded on the evidence before this court including the admission of the applicant, this court is of the considered view that the subject matter of the centralized air-conditioning is a matter within the ambit of the SPA. [30] The second respondent argued in this court that the placement of the air-condition compressors are not suitably placed. Moreover, the placement of the air-condition compressors in the yard area, in the view of this court has resulted in the second respondent failing to utilise the yard area to its capacity. In other words, this court is of the view the built up area of the condominium has been reduced by virtue of the compressors being installed in the yard area. This means that the second respondent will not be able to fully utilize his property. [31] In this way, the fact that the built up area of the condominium has been reduced may be seen as a breach of the SPA which provides for the built up area of the condominium unit. Consequentially, this court opines this matter falls within the ambit of the SPA and thus, the first respondent had jurisdiction to hear the matter. [32] It follows therefore, that this court finds the first respondent had not erred when the first respondent heard the matter at the tribunal. [33] It was also submitted by the applicant that pursuant to paragraph 16(N)(2)(a) of the Act, the applicant ought to have brought this claim before the first respondent no later than twelve months from the date of issuance of the CCC for the housing accommodation or the common facilities of the housing accommodation intended for subdivision, whichever is later. [34] However, it was submitted that while the CCC with respect to the property was issued on 8.11.2018, the second respondent only initiated their claim before the first respondent on 28.8.2020 which is almost 2 years after acceptance of vacant possession of the property such the first respondent ought to have dismissed the claim at the claim is out of time. [35] As such, it was argued that the second respondent was out of time when the claim was made. [36] In this regard, subsection 16N(2) of the Act provides: “16N (2) The jurisdiction of the Tribunal shall be limited to a claim that is based on a cause of action arising from the sale and purchase agreement entered into between the homebuyer and the licensed housing developer which is brought by a homebuyer not later than twelve months from –

the date of issuance of the certificate of completion and compliance for the housing accommodation or the common facilities of the housing accommodation intended for subdivision, whichever is the later;

the expiry date of the defects liability period as set out in the sale and purchase agreement; or

the date of termination of the sale and purchase agreement by either party and such termination occurred before the date of issuance of the certificate of completion and compliance for the housing accommodation or the common facilities of the housing accommodation intended for subdivision, whichever is later.” [37] From a perusal of the provision above, the provision provides for an option of either (a) from the date of issuance of the certificate of completion and compliance or (b) the expiry of the defects liability period as set out in the SPA. [38] Clause 29 of the SPA states: “Any defect, shrinkage or other faults in the said Parcel or in the said Building or in the common property which shall become apparent within a period of twenty-four (24) calendar months after the date Purchaser takes vacant possession of the said Parcel and which are due to defective workmanship or materials or; the said Parcel or the said Building or the common property not having been constructed in accordance with the plans and description as specified in the First and Fourth Schedule as approved or amended by the Appropriate Authority, shall be repaired and made good by the Vendor at its own cost and expense within thirty (30) days of the Vendor having received written notice thereof from the Purchaser.” [Emphasis added] [39] Based on clause 29 of the SPA and paragraph 16N(2)(b) of the Act, this court is of the considered view the respondents filed their claim within the statutory time frame stipulated the claim was made as within twenty four (24) calendar months of the date of vacant possession. Hence, this court finds this issue to be without merit. [40] The applicant submitted the first respondent had gone beyond its jurisdiction when it took into consideration of the human factors, environmental issues and other aspects with respect to the property. [41] This court observes, the first respondent had taken into consideration these factors after having considered the technical report prepared by the first respondent. [42] The issues raised in the technical report could be reproduced below: “(a) The height of the compressors were so low and not conforming with the standard installation instruction where the relief distance are not enough;

The placing of the compressor at the yard will potentially harm the safety and health of the children who presence or play nearby the compressor as the children can anytime inserting their fingers, hand or even their head in the said compressor;

The compressors will produce heat, noise, vibration and will disturb the air circulation and ventilation in the longrun which will affect the 2nd Respondent badly; and

The compressors of the air conditioning were placed at a high temperature place and close to the kitchen where there is no proper air circulation and ventilation” [43] As a result of the compressors being in the yard of the property, the second respondent was not only unable to enjoy the property but additionally it posts a risk in terms of health and safety to the occupants of the property. [44] For this reason, it is the considered view of this court the first respondent had not erred when taking the technical report into consideration. [45] With regard to the award amount of RM50,000.00, it is the maximum amount for which the first respondent may award. This court took cognizance of the fact that the applicants had admitted via an email dated 26.4.2021 to the second respondent that the cost of moving the compressor outside of the property would be more than RM50,000.00. Conclusion [46] For the above-mentioned reasons, this court is satisfied the tribunal has jurisdiction to hear the claim. This court is further satisfied the tribunal has not erred in its decision. There is no illegality, irrationality or procedural impropriety which would allow this court to grant an order of certiorari. [47] This application is therefore dismissed with costs of RM3,000.00 subject to allocator. Date: 19 April 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For The Applicant: Niak Hiong Keong Tetuan Christopher & Lee Ong Advocates & Solicitors Level 22, Axiata Tower, No. 9 Jalan Stesen Sentral 5, Kuala Lumpur Sentral, 50470 Kuala Lumpur CLO-info@christopherleeong.com +6 03 2273 1919 For The Bruce Toh Chen Hsiang Respondent : Tetuan Toh & Partners Advocates & Solicitors No. 16-2, Jalan Equine 1E, Taman Equine, 43300 Seri Kembangan, Selangor. tohandpartnership@gmail.com +6 03 8959 9666