Ln Pro Solution v Samsiah Binti Ibrahim (BA-25-25-06/2023)

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TRIBUNAL TUNTUTAN PENGGUNA MALAYSIA ... RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT (Enclosure 51)

On 15.11.2023, the Applicant was granted leave to file an application for judicial review against the Respondents.

Enclosure 51 is the Applicant’ substantive application for an order of certiorari to quash the whole of the 3rd Respondent’s award dated 27.3.2024 in claim No: TTPM-B-(P)-606-2022 (Award) wherein the First and 2nd Respondents’ claim was allowed.

After considering the cause papers and submissions by the parties, this Court dismissed the Applicant’s application. The following are the reasons for the decision. Background facts

The facts, gleaned from the cause papers and supporting documents, leading to this application are as follows. The First and 2nd Respondents appointed the Applicant to renovate their house. The First and 2nd Respondents were dissatisfied with the Applicant’s work and filed a claim with the 3rd Respondent.

Initially, their claim was supported by some photographs but the 3rd Respondent allowed them time to produce a quantity surveyor’s (QS) report to substantiate their claim.

When the Applicant objected to their QS’s qualification, the 3rd Respondent allowed them to appoint another QS who verified the First and 2nd Respondent’s claim for RM39,115.77. When the 2nd QS was unable to answer the Applicant’s questions, the 3rd Respondent ordered the Applicant to visit the First and 2nd Respondent’s house to confirm the veracity of the QS’s findings.

The Applicant complaints that the 3rd Respondent did not afford them an opportunity to argue the claim or submit written submissions before deciding the claim in the First and 2nd Respondent’s favour.

The Applicant contends that the 3rd Respondent considered irrelevant matters, failed to consider relevant matters and misdirected himself on the issues.

They also contend the award was so unreasonable that a reasonable Tribunal would not reach the same decision.

The First and 2nd Respondents deny the Applicant’s allegations. Principles of law

Judicial review is a process by which the High Court oversees the actions and decisions of public bodies including public authorities and tribunals.

The 3rd Respondent is designed for quick, assessible and specialised resolution of consumer disputes without lengthy hearings and complex rules of evidence.

The judicial review proceedings provide an important safeguard to ensure that the 3rd Respondent acts within its legal powers, adheres to procedure and make their awards lawfully, fairly and reasonably.

This necessarily means that this Court is reviews the decision making process of the 3rd Respondent but not the decision itself unless there is a manifest error on the face of the award. This is to prevent the speedy and convenient nature of the 3rd Respondent’s process from being stuck in endless appeals. (Hello Holidays Sdn Bhd v. Phang Lai Sim & other applications [2014] 8 MLJ 478 at 491)

After careful perusal of the cause papers, this Court is hard pressed to find fault with the procedure adopted by the 3rd Respondent in hearing the First and 2nd Respondent’s claim. The Applicant has failed to show that the 3rd Respondent failed to adhere to the core tenets of procedural fairness.

The Applicant complains that there was a breach of natural justice because they were not asked to put in written submissions.

It is trite that natural justice does not demand a specific procedural format, such as written submissions, but rather requires that a party be given a fair opportunity to be heard.

In this instance, this Court is satisfied that the 3rd Respondent gave that Applicant amply opportunity to contest the First and 2nd Respondent’s claim including allowing them to challenge the findings of the QS and ordering a site visit to verify the extent of the damages claimed by the First and 2nd Respondents.

In any event, the Applicant has failed to meet the high threshold required to establish Wednesbury unreasonableness. A decision is not unreasonable simply because one party disagrees with it or the weight assigned to certain evidence. The 3rd Respondent accepted the QS report which was supported by photographs and a site inspection. This clearly shows a rational nexus between the evidence and his award. There is nothing unreasonable or irrational in the 3rd Respondent’s decision.

This Court must be cautious not to take over the 3rd Respondent’s role as the primary finder of fact, especially in technical renovation disputes. To allow this application would tantamount to interfering with the finality of the 3rd Respondent’s proceedings where no substantive injustice has been proven.

There is simply no basis for this Court to conclude that the 3rd Respondent’s award was perverse or legally flawed.