Rakan Setia Housing Sdn. Bhd. v Muhammad Fahmi Bin Ibrahim Sawal (WA-25-367-11/2023)

On 17.8.2023, the Tribunal for Homebuyer Claims, the 2nd Respondent, made an award directing the Applicant to pay a sum of RM 36,554.52 as liquidated and ascertained damages to the 1st Respondent together with costs of RM 300.00.

The Applicant now seeks to impugn the decision of the Tribunal in this judicial review proceedings, seeking an order of certiorari to quash the said award. Salient facts

The Applicant is a developer of a housing project known as Taman Kinding Perdana in Ipoh.

4.

Clause 24 of the SPA provided for delivery of vacant possession within a period of 24 months from the date of the execution of the SPA. Thus, the Applicant was obliged to deliver vacant possession on or before 25.1.2021.

Vacant possession was delivered only on 18.1.2023.

On 1.3.2023, the 1st Respondent signed a letter to confirm that he had taken delivery of vacant possession and also receipt of the amount of RM 50,000.00 from the Applicant.

Approximately 4 months later, the 1st Respondent filed a claim in the Tribunal for Homebuyer Claims on 28.7.2023 for liquidated and ascertained damages (“LAD”) arising from the late delivery of 538 days to delivery vacant possession.

The claim of the 1st Respondent was adjudicated by the Tribunal, and on 17.8.2023, the Tribunal made an award of RM 36,554.52 in favour of the 1st Respondent. Grounds for review

The Applicant claims that the Award was tainted with illegality for the following reasons:

(i) The Tribunal erred in law and in fact for failing to consider the effect of the letter dated 1.3.2023 where the 1st Respondent accepted the payment of RM 50,000.00 as full and final settlement of all claims against the Applicant; and

The 1st Respondent denies any illegality in the award. He contends that the letter of 1.3.2023 was not pertaining to any settlement in respect of LAD as alleged. The burden lies on the Applicant to prove that it was to settle the 1st Respondent’s LAD claim.

Further the Tribunal had taken into account the excluded period in the COVID-19 Act when it awarded LAD for 538 days. Analysis and findings

The ground of error of law relied upon by the Applicant, was enunciated in Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union [1997] 2 MLJ 317 where the Court of Appeal held: In my judgment, the true principle may be stated as follows. 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-taker does make such an error, then he exceeds his jurisdiction. So too is jurisdiction exceeded, where resort is had to an unfair procedure (see Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman 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 considerations (what may be conveniently termed an Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law. Since an inferior tribunal has no jurisdiction to make an error of law, its decisions will not be immunized from judicial review by an ouster clause however widely drafted.

Bearing in mind the principle above, I am also mindful that in judicial review proceedings, this court is exercising its supervisory jurisdiction as opposed to an appellate jurisdiction. (See: Ahmad Jefri bin Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor [2013] 3 MLJ 145 (FC)). Findings of facts are left to the Tribunal and ought not to be disturbed unless the findings are unreasonable and evidentially irrational or perverse. (See: Ng Chang Seng v Technip Geoproduction (M) Sdn Bhd [2021] 1

With regard to the payment of RM 50,000.00, the Tribunal found that it was unrelated to the claim for LAD. The Grounds of Judgment of the Tribunal stated as follows: “6. The Developer contends in its defence that a sum of RM 50,000 was paid to the Purchaser as compensation for late delivery. However, it is the Tribunal’s findings that the payment has no relevance to the claim herein as the sum was an excess sum as a result of a loan taken by the Purchaser. As such the Developer has no credible defence to the claim herein.”

It is not disputed that the Settlement Letter of 1.3.2023 was prepared by the Applicant. For easy reference, the letter is reproduced below:

It is significant that the letter made no mention that it was to settle any potential LAD claim by the 1st Respondent. All that was stated was the 1st Respondent’s acknowledgement that vacant possession had been taken and a payment of RM 50,000.00 received.

The Applicant bears the burden of proving that the payment of RM 50,000.00 is a settlement for the LAD claim. There is no evidence before this court that it was so, apart from the affidavit assertion which is refuted by the 1st Respondent. As matters stand, the onus of proof has not been discharged by the Applicant.

In the circumstances, I find no reason to review the factual finding of the Tribunal.

I come now to the computation of the LAD award. Section 35 of the COVID -19 Act provides: Delivery of vacant possession and liquidated damages

(1) Notwithstanding any agreement entered into between the purchaser and the developer, the period from 18 March 2020 to 31 August 2020 shall be excluded from the calculation of—

(a) the time for delivery of vacant possession of a housing accommodation; and

(b) the liquidated damages for the failure of the developer to deliver vacant possession of a housing accommodation

Section 35 makes it clear that for computation of LAD, the period from 18.3.2020 to 31.8.2020 shall automatically be excluded. The period spans approximately 160 days.

Under the SPA, vacant possession was to be delivered on 24.2.2021. It was only delivered on 18.1.2023, which meant a delay of 693 days. However, the award by the Tribunal was for only for a period of 538 days. A period of 155 days were excluded.

Although the exact computation was not provided in the Grounds of Judgment of the Tribunal, it can be reasonably concluded that the Tribunal had taken into consideration the excluded period in the COVID-19 Act. The period of 155 days which were excluded is not so far off from the 160 days excluded under the COVID-19 Act. In the circumstances, it is safe to infer that the Tribunal had considered the statutory excluded days.

Again, premised on my findings, I find no error committed by the Tribunal. Conclusion

For the foregoing reasons, I find no reason to quash the decision of the 2nd Respondent. The judicial review application in enclosure 9 is therefore dismissed. I order the Applicant to pay costs of RM 3000,00. to the 1st Respondent. Dated: 22nd April 2026 Alice Loke Yee Ching Judge High Court Kuala Lumpur-sgd-Counsel for Applicant: En. Lim Hoon Shi (En. Lee Sze Jye together with him) Tetuan Hee & Lim Counsel for 1st Respondent: En. Zul Sadiqqin bin Abdul Samad Tetuan Maishi’Ah Jalidah & Associates