possibly, proportionality. (per Edgar Joseph Jr FCJ in R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 at pp 172b-173b; referring to the judgment of Lord Diplock in Council of Civil Service Unions & Ors v. Minister for the Civil Service [1985] AC 374.)" [12] With regards to the Housing Tribunal, in ABT Construction Sdn Bhd & Anor v. Tribunal Tuntutan Pembeli Rumah Sdn Bhd & Ors [2013] 8 CLJ 1020, Justice Varghese George (later JCA) held as follows: "[37] The court in dealing with a judicial review application was not sitting in appeal against the impugned decision or award but only exercising the court's supervisory powers over subordinate tribunals. To merit 8 curial intervention, the applicant concerned had to establish that 'errors' in the nature of 'illegality', 'irrationality' or 'procedural impropriety' (and maybe 'proportionality') had been committed during the decision making process…. [38] The judicial review court's intervention on the grounds of 'illegality' would be available if it was shown that the decision maker had misconstrued any provision of a statute or misapplied a principle of general law. A decision could be quashed on the basis of 'irrationality' if it was shown that there was no basis to support the finding of fact, or the conclusion reached was diametrically contrary to evidence on record or where the decision maker had asked the wrong questions or taken into consideration irrelevant matters and omitted relevant matters." Issue (i) No reasons for the Award [13] In the present case, the first issue raised by the Developer is that there has been a breach of section 16AA of the Housing Development (Control and Licensing) Act 1966 (“HDA 1966”) which provides that: “16AA. Reasons for decision 9 The Tribunal shall in all proceedings give its reasons for its award in the proceedings.” [14] In Hazlinda binti Hamzah v Kumon Method of Learning Centre [2006] 3 AMR 390, one of the issue before the Court of Appeal is on the interpretation of section 114 of the Consumer Protection Act 1999, which is pari materia with section 16AA, and reads “The Tribunal shall in all proceedings give its reasons for its award in the proceedings.” In paragraph [10] of the case, the Court of Appeal held as follows: “[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 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. As it happens, there was here a claim for mandamus. But it was never pursued. The judicial commissioner's attention was not drawn to it. Instead, the respondent stood by while the 10 High Court kept adjourning the proceedings to await written reasons. This was certainly unnecessary as there is no requirement for the Tribunal to produce written reasons. It follows from what has been said thus far that there was no breach of s. 114 of the Act. There was therefore certainly no warrant for the grant of certiorari in this case.” (emphasis added) [15] Therefore, premised on the above principle and applying the same to the present application, I am of the considered opinion that if the Developer is aggrieved by the Tribunal‟s lack of reasons in its Award, it should have applied for a mandamus against the Tribunal to provide the reasons for its decision, instead of raising it as a submission before this Court as a basis to quash the Award. Since the Developer has failed to assailed itself to the said remedy, this should not be a ground to nullify the Award, in view of the nature of the claims before the Tribunal, which are to provide speedy justice with minimal costs for the purchasers. On this, the Court of Appeal in Hazlinda binti Hamzah v Kumon Method of Learning Centre has this to say: “[13] Being a specialist body, the Tribunal has been conferred with extraordinary powers to do speedy justice for consumers. As such, its awards should not be struck down save in the rarest of cases, where it has misinterpreted some provision of the Act in such a way to produce an injustice. For courts should be ever remindful that 11 certiorari is not a remedy that is available as of right. It is a discretionary remedy. It is not every error of law committed by an inferior Tribunal that entitles the High Court to issue certiorari. It must be demonstrated that the error has occasioned an injustice in a broad and general sense. This principle was laid down by the Federal Court in Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor [1996] 4 CLJ 687 and in R Rama Chandran v. The Industrial Court of Malaysia & Anor[1997] 1 CLJ 147 where the following passage in the judgment of Bose J in Sangram Singh v. Election Tribunal AIR [1955] SC 425 was applied with approval: That, however, is not to say that the jurisdiction (to issue certiorari ) will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Art 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion 12 to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case.” (emphasis added.) Issue (ii) damages for delay in delivery of vacant possession of the Property [16] The Homebuyer has claimed for damages for late delivery of vacant possession of the Property. In allowing the claim, the Tribunal has calculated the delay from the date when the booking fee was paid, that is on 16.1.2013 and not from the date of the SPA, that is on 21.3.2013. [17] The Developer takes the position that the Tribunal has committed an error of law, as Clause 25(1) of the SPA stipulates that vacant possession shall be delivered to the Homebuyer within 42 months from the date of the SPA, that is from 21.3.2013 to 20.9.2016. If the Property was not delivered on 20.9.2016, then Clause 25(2) provides that the Developer shall pay 10% per annum of the purchase price from the expiry of the date of delivery of vacant possession. [18] Since the Developer only handed vacant possession of the property to the Homebuyer on 23.1.2017, there is therefore a delay of 126 days (from 20.9.2016), of which damages payable is only RM18,047.34. 13 [19] However, the Tribunal has calculated the date of delivery of vacant possession from the date of paying the booking fee, on 16.1.2013, and 42 months lapses on 16.7.2016, resulting in a delay of 192 days when the Property was delivered to the Homebuyer on 23.1.2017. [20] Therefore, the issue is whether the Tribunal is correct in calculating the 42 months for delivery of vacant possession from the date of the paying of the booking fee, and not from the date of the SPA under Clause 25(1), which reads: “Vacant possession of the said Parcel shall be delivered to the Purchaser in the manner stipulated in Clause 26 within forty-two (42) calendar months from the date of this Agreement.” [21] Learned Counsel for the Homebuyer has referred to several cases where the courts have held that for the purposes of calculating the period of delay, time starts to run from the date of payment of the booking fee and not from the signing of the SPA. As early as 1988, in Hoo See Sen & Anor v. Public Bank Bhd [1988] 2 MLJ 170, the Supreme Court had decided that the relevant date for ascertaining when time started to run to be is when the booking fee was paid. The Supreme Court held that: “For the purpose of ascertaining the date of delivery of vacant possession, the relevant date when time started to run was the date on which the purchaser paid the booking 14 fee, and not the date of signing of the sale and purchase agreement.” [22] The above principle was reaffirmed by another Supreme Court decision in Faber Union Sdn Bhd v. Chew Nyat Shong & Anor [1995] 3 CLJ 979.The issue for determination by Supreme Court is whether, in ascertaining the date of delivery of vacant possession of a building to be constructed, time started to run from the date payment of the booking fee was made or from the date of the signing of the sale and purchase agreement. The relevant clause in the agreement, clause 6.06 of the sale and purchase agreement reads: „the premises shall be completed by the vendor and vacant possession delivered to the purchaser within thirty-six (36) calendar months from the date of this agreement. If the vendor fails to deliver vacant possession of the premises on time the vendor shall pay to the purchaser liquidated damages to be calculated from day to day at the rate of eight per cent (8%) per annum of the purchase price.‟ The deposit was paid on 17.2.1984 and the agreement was signed on 27.6.1984. The Supreme Court then held that for the purpose of ascertaining the date of delivery of vacant possession the relevant date when time starts to run is the date on which the purchaser paid the booking fee and not the date of the signing of the sale and purchase agreement. 15 [23] The decision of the Supreme Court was followed in Lim Eh Fah & Ors v. Seri Maju Padu [2002] 4 CLJ 37. In that case the purchaser paid the deposit on 17.7.1992. The sale and purchase agreement was executed on 10.10.1992. Suriyadi Halim Omar J (as His Lordship then was) held that the respondent assumed the responsibility to fulfil its part of the bargain at the date the deposit was paid, ie, 17.7.1992, in effect being the date when the contract was struck, and not the date the deed of assignment was signed. His Lordship held as follows: “As regards the date to take into consideration for purposes of calculating the damages on the late delivery of vacant possession, I concluded it to be 17 July 1992, ie, the date when the deposit was paid, and not the date of the deed of assignment. To support my findings, I seek solace from the case of Faber Union Sdn. Bhd v. Chew Nyat Shong & Anor [1995] 3 CLJ 797, which factually was on all fours with the current case.” (emphasis added) [24] In Faber Union Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah, Kementerian Perumahan Dan Kerajaan Tempatan & Ors [2011] 7 CLJ 37, Justice Aziah Ali (as Her Ladyship then was) applied the ratio in Faber Union Sdn Bhd v. Chew Nyat Shong &Anor and held as follows: 16 [13] The applicant contends that the Tribunal erred in amending the commencement date of the SPA to the date of payment of the deposit. The Tribunal relied on the case of Faber Union Sdn Bhd v. Chew Nyat Shong & Anor [1995] 3 CLJ 797 wherein the issue for determination by Supreme Court is whether, in ascertaining the date of delivery of vacant possession of a building to be constructed, time started to run from the date payment of the booking fee was made or from the date of the signing of the sale and purchase agreement. In that case the deposit was paid on 17 February 1984 and the agreement was signed on 27 June 1984. The Supreme Court held that for the purpose of ascertaining the date of delivery of vacant possession the relevant date when time starts to run is the date on which the purchaser paid the booking fee and not the date of the signing of the sale and purchase agreement. ……. Thus I find that the Tribunal has not erred in deciding that the relevant date for the purpose of calculating the amount of damages payable by the applicant is the date the respondents paid the deposits.”(emphasis added) 17 [25] The Court of Appeal in Nippon Express (M) Sdn Bhd v. Che Kiang Realty Sdn Bhd & Another Appeal [2013] 7 CLJ 713 had also applied the principle in Faber Union Sdn Bhd v. Chew Nyat Shong and held that time should run from the booking fee was paid and not from the date when the sale and purchase agreement was sign. The Court held as follows: “[40] Our view on the calculation of the 30-month period is premised on the then Supreme Court judgment in Faber Union Sdn Bhd v. Chew Nyat Shong & Anor [1995] 3 CLJ 797; [1995] 2 MLJ 597 where the facts are these. The date of agreement was 27 June 1984 while the deposit was paid on 17 February 1984. The agreement provided for a 36-month delivery period of vacant possession from the date of the agreement and the issue to be determined was when the 36-month period starts to run. The Supreme Court relied on an earlier case of Hoo See Sen & Anor v. Public Bank Bhd & Anor [1988] 1 CLJ 768; [1988] 1 CLJ (Rep) 125; [1988] 2 MLJ 170 where the factual matrix was the same. Despite what is stated in the agreement, the Supreme Court held that for the purpose of ascertaining the date of delivery of vacant possession, the relevant date when time starts to run is the date on which the purchaser paid the booking fee and not the date of the sale and purchase agreement…” (emphasis added) 18 [26] In Lembaman Development Sdn Bhd v. Ooi Lai Yin & Anor and Other Cases [2015] 6 CLJ 375, in dealing with the same clause 26(1), the High Court held as follows: “[8] The clear issue that lends itself for determination here is which date is to be taken as the date for computation of delay in delivery of vacant possession for the purposes of calculating the liquidated and ascertained damages (LAD). The authority relied upon by the tribunal in coming to its decision was the case of Lim Eh Fah & Ors v. Seri Maju Padu [2002] 4 CLJ 37 where on the facts a sum equivalent to 10% deposit was paid upon booking. The short issue was whether to adopt the booking dates or the sale agreement date of deed of assignment as contended by the developer. The court held that the booking date was to be adopted as that was the date when the contract was struck. In so holding the court reasoned as follows: One must bear in mind that the date of 17 July 1992 ie, the deposit payment date, was the date when the contract was struck, and the very date the respondent assumed responsibility to fulfil its part of the bargain. If the date of the signing of the S&P agreement were to be taken as the relevant date, when time started to run for the delivery of the vacant possession, the respondent could willy-nilly pick any dates it favoured to execute the S&P agreement, 19 which would certainly prejudice the interest of the purchaser. (emphasis added) [9] ….. [10] The finding of this court therefore, that based on the aforesaid authority, the relevant date is the date when the booking fee was paid. The Lim Eh Fah case clearly stipulated that where the position otherwise, developers could arbitrarily fix any date to have the SPA executed to the prejudice of the purchasers. If this were to be the case, then developers would obviously choose a date later in time with the intention of potentially having to bear less damages for late delivery of vacant possession. Therefore, once the booking fee is paid, a contract comes into existence and parties assume obligations at that juncture, a breach of which would result in certain consequences befalling the guilty party. The tribunal therefore had not erred when it decided on good authority and in the absence of any authorities to the contrary, to ascertain the date for calculation of damages for vacant possession with reference to the booking date.” [27] In a recent case involving the Tribunal, the High Court in GJH Avenue Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah, Kementerian Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan [2017] 1 LNS 193, the High Court has to deal with a similar clause on the same issue of time for delivery of vacant possession: 20 “ ….. According to clause 22(1) vacant possession is to be delivered "within twenty-four (24) calendar months from the date of this Agreement ". The central question in this dispute is: What is the date of the agreement? Is it the date on which the booking fee was paid, as contended by the 2nd and 3rd Respondents, or is it the date appearing on the SPA, as is contended by the Applicant? The 1st Respondent found that the date of agreement is the date on which the booking fee or deposit was made. Thus, the 1st Respondent calculated the 24 months for the SPA's completion from 10.11.2011, which means that vacant possession must be delivered on or before 10.11.2013. ….. [14] So the law is well settled by high authority that for the purposes of determining the date of delivery of vacant possession in an agreement such as the SPA, for reasons well explained in the above cases, the date of agreement is the date when the deposit or booking fee is paid and not the date that appears on the SPA. And by the doctrine of stare decisis, these decisions of the superior courts are binding on the 1st Respondent as a lesser tribunal, as well as this court. This doctrine was reiterated by the Federal Court 21 in Kerajaan Malaysia & Ors v. Tay Chai Huat [2012] 3 CLJ 577; [2012] MLJU 60 where the court held: The doctrine of precedent, a fundamental principle of English Law, is a form of reasoning and decision-making formed by case law. Precedents not only have persuasive authority but also must be followed when similar circumstances arise. Any principle announced by a higher court must be followed in later cases. In short the courts are bound within prescribed limits by prior decisions of superior courts. Judges are also obliged to obey the set-up precedents established by prior decisions. This legal principle is called stare decisis. Adherence to precedent helps to maintain a system of stable laws. Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisis, i.e., to stand by the decided. In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. This provides consistency and predictability in the law.” (emphasis added) 22 [28] Applying the principles in the above mentioned cases, I am of the considered opinion that the Tribunal did not commit any error when it held that for the purposes of computation of the period of delay for late delivery, the commencement date shall be the date when the booking fee was paid, and not from the date of the SPA. [29] Even though the earlier cases are not cases against the Tribunal, the latter cases have applied the same principles with regards to Awards of the Tribunal. [30] It is also the submission of the Developer that the Tribunal had exercised its powers unreasonably, irrationally or perversely when the Tribunal failed to take into account that as at 16.1.2013, the Homebuyer had not fully paid the 10% of the purchase price (the booking fee), and that he only paid the balance sum on 21.3.2013, when he signed the SPA. [31] However, I am of the considered opinion that when the Homebuyer failed to pay the full 10% booking fee/deposit, the Developer has the option to forfeit the deposit. But it did not do so, and instead agreed to enter into the SPA on 21.3.2013. Therefore, it had forfeited its legal right and cannot complain on it now. [32] The Developer also submits that it is a well-known industry practice that the payment of the booking fees is merely to secure an option to purchase the property, pending the procurement of a bank loan for the purchase of the property. Therefore, it cannot be considered to be 23 the basis to the purposes of computation of the period of delay for late delivery. [33] On this issue, I agree with the learned Counsel for the Homebuyer that since this issue was not raised before the Tribunal, it should not be considered at this stage. In any event, the so called industry practice is against regulation 11(2) which provides that no person shall collect any payment by whatever name called except as prescribed by the contract of sale. In the SPA, 10% payment was to be paid „immediately upon the signing of this Agreement‟. There is no provision on the payment of booking fee. However since the Developer has accepted the booking fee, then they have to accept the principles of law enunciated in the above mentioned cases. Issue (iii) damages for delay in delivery of the Common Facilities [34] The Tribunal has decided that the common facilities were completed on 23.1.2017, when the CCC was issued, and not on 25.9.2016 when the Certificate of Practical Completion was issued. [35] The Developer submits that this is an erroneous decision, as the common facilities was completed on 25.9.2016. [36] The relevant clause on common facilities is Clause 27, which reads: 24 “Clause 27