Schedule
Jadual Peraturan-Peraturan Pemajuan Perumahan (Kawalan & Pelesenan), 1989; Dan Dalam perkara mengenai Seksyen 25(2) dibaca bersama Perenggan 1 dalam Jadual kepada Akta Mahkamah Kehakiman, 1964; Dan Dalam perkara mengenai Seksyen 44 Akta Relief Spesifik, 1950; Dan Dalam perkara mengenai Aturan 53 Kaedah-Kaedah Mahkamah, 2012. S/N PJfungri8k6HmFsMp6tjkg 1. 2. THEE KIEN SIONG (NO. K/P: 730625-14-5723) 3. DAPHNE KOH CHOON KWEE (NO. K/P: 750827-04-5112) GROUNDS OF JUDGMENT Introduction 1. The present proceedings arise from 26 judicial review applications which by reason of having been filed in various courts, orders were made for the applications to be heard together. Whilst orders for consolidation were applied for, they were not granted. 2. Essentially, judicial review is sought to impugn the decision of the Home Buyers Claim Tribunal (“Tribunal”) to award liquidated and ascertained damages for late delivery of vacant possession. S/N PJfungri8k6HmFsMp6tjkg Salient facts 3. The Applicant is the developer of a project known as Residensi Holmes 2. The purchasers in 26 suits will be hereinafter referred to as the Respondents. 4. In furtherance of the Respondents’ intention to purchase parcels in the development, the Applicant and the Respondents executed Sale and Purchase Agreements (“SPA”). The SPAs followed the statutory contract of sale prescribed in Schedule H of the Housing Development (Control and Licensing) Regulations 1989 enacted pursuant to section 24 of the Housing Development (Control and Licensing) Act 1966. 5. Prior to the execution of the SPA, the Respondents had paid the certain sums of monies as booking fees/deposit being partial payments towards the 10% of the purchase price of their properties. They also signed a Purchase Application Form at the time of the payments. 6. Clause 25 of the SPA stipulated that vacant possession was to be delivered within 36 months from the date of the SPA. 7. On 02.04.2021, the Applicant issued a notice to deliver vacant possession to the Respondents. 8. The Respondents took delivery of vacant possession on various dates. As they viewed the delivery of vacant possession to be late, S/N PJfungri8k6HmFsMp6tjkg they filed their claims with the Tribunal for liquidated and ascertained damages (“LAD”). 9. On 9.11.2021, the Tribunal delivered its award in favour of the Respondents. As there were various periods considered for the computation of the LAD, the Respondents were awarded different sums. 10. In awarding LAD, the Tribunal computed the period of 36 months to run from the date the monies were paid as booking fees/deposit. Grounds for review 11. The common issue in contention in respect of all the 26 cases is the commencement date for computation of the 36 months for delivery of vacant possession. The Applicant contends that the 36 months should run from the date of the SPA. 12. In view of the Tribunal’s decision that the 36 months should run from the date of the first payment to the Applicant, the Applicant contends that the decision of the Tribunal was illegal, irrational and tainted with procedural impropriety. 13. Secondly, the Applicant contends that even if the LAD was computed from the date of the first payment, the computation arrived at by the Tribunal was erroneous. S/N PJfungri8k6HmFsMp6tjkg Respondents contention 14. In opposition to the Applicant’s judicial review, the Respondents rely primarily on the Federal Court decision in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60. The date for calculation of LAD should begin from the date of payment of deposit /booking fee and not from the date of the SPA. Analysis and decision 15. The grounds of illegality, irrationality and procedural impropriety have been succinctly explained in R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145), where the Federal Court held as follows: In this context, it is useful to note how Lord Diplock (at pp 410–411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By ‘illegality’ as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic S/N PJfungri8k6HmFsMp6tjkg or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. … I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. 16. Premised on the grounds and reasons advanced for the Applicant’s judicial review application, the determination of this case turns on very narrow issues. 17. The critical date to look at is the commencement date for computation of the 36 months to deliver vacant possession. 18. The Tribunal made the following critical findings in arriving at its decision: (i) The payment of the booking fee/deposit towards the 10% purchase price was collected way in advance of the execution of the SPA. A contractual obligation was already created by such collection. Time should run from this date; (ii) The applicable law being a piece of social legislation, it prohibits any collection of deposit before the signing of the S/N PJfungri8k6HmFsMp6tjkg SPA. This is to protect purchasers from unscrupulous developers; and (iii) The documentary evidence supports the finding that a contract was already created as the receipts issued for the deposit/booking fee states the particulars of the property purchased. 19. I am of the view that the findings of the Tribunal accord with decision of PJD Regency. The present case is on all fours with PJD Regency. There, the developer delivered vacant possession to the purchasers who eventually filed a claim for LAD for late delivery. The Housing Tribunal calculated the sum of the LAD from the date the booking fee was paid and not from date of execution of the sale and purchase agreements. The High Court dismissed the developer’s application for judicial review. 20. The point of law that fell for determination of the Federal Court was whether the date for calculation of LAD should begin from the date stated in the SPA between the parties or from the date the buyers paid booking fee/deposit/initial fee to the developer. 21. In deciding the issue before it, the Federal Court had to first determine the date of the formation of the contract. It held as follows: [85] Had the developers in the present appeals complied strictly with the terms of the scheduled contracts as statutorily prescribed, then the payment of the initial 10 percent deposit and the signing of the statutory S/N PJfungri8k6HmFsMp6tjkg sale and purchase agreement would have been done simultaneously. The fact that they have nonetheless bypassed the statutory prohibition against the collection of booking fees, and the pro forma agreements being amply clear as to the fundamentals of the agreement, means that a bargain was indeed made at the time of the payment of the booking fee. In our judgment, the legislative intent was that the initial payment of monies, in the form of a deposit, is sufficient to constitute an intention to enter into a contract given that the agreement would have to be signed at the same time. [86] The other reason that attracts the application of these foundational principles of contract law is to ensure maximal protection of the purchasers having regard to the social purpose of the HDA 1966 and its subsidiary legislation. At the risk of repetition, if the 10 percent deposit is paid at the same time of the signing of the agreement, there would be no issue of there being separate dates for calculating the LAD. Having bound themselves to a bargain by collecting the booking fee and procuring a signed pro forma and top of it being responsible for drafting the final formal agreement, the developers have thereby put the purchasers in a disadvantageous position. The problem this poses is that the developers may abuse the opportunity to put whichever date they wish with a view to extend the date to deliver vacant possession 22. The Federal Court also emphasized on the need to construe the scheduled contract in accordance with the statutory protection afforded by parliament as the HDA 1966 is a piece of social legislation. It then held that the date of calculation of the LAD cannot run from the date printed in the scheduled contract. That was a mere formality. Instead, it ought to be computed from the date of the formation of the contract which was the date of payment of the booking fee. S/N PJfungri8k6HmFsMp6tjkg 23. The decision of PJD Regency and the principles enunciated therein binds this court. The Applicant attempts to distinguish the facts in PJD Regency from the instant case. The reasons advanced are that the documentary evidence do not support the fundamental features of a contract at the time of the first payment. 24. The Applicant contends that at the time the booking fee was paid, the purchasers had not been determined with finality. For 23 cases, the SPA eventually had names different from the person who paid the booking fee. In 7 of the cases, the payment was made to a third party, and not to the Applicant. Further, the Purchase Application Form signed at the time of payment of booking fee did not impose any obligation on the proposed purchasers to purchase the properties. The Purchase Application Form had yet to be accepted by the developer. Finally, in 19 out of 26 cases, the purchasers requested their solicitors Messrs Manjit Singh Sachdev, Mohammad Radzi & Partners to hold the SPA in escrow pending confirmation by the developer with regard to the execution of the SPA and stamping thereafter. 25. It was in evidence that in the Purchase Application Forms, the exact unit of the project to be purchased had been identified. Receipts were issued for the amounts received prior to the execution of the SPA. This is clear evidence of the parties’ intention to be bound, and that there was a valid and binding contract between the Respondents and the Applicant. In addition, Messrs Manjit Singh Sachdev, Mohammad Radzi & Partners were the panel lawyers of the Applicant. Finally, the fact that the booking fee payments were made to a third party does not detract from the fact S/N PJfungri8k6HmFsMp6tjkg that the contract for the sale and purchase of the property was formed at the time of payment. 26. The Tribunal made a specific finding that the documents sufficiently established that booking fee payments were made towards the purchase price, and that these payments were before the execution of the SPA. In view of the evidence, the Tribunal concluded that contractual obligations were created from the said payment, which the parties intended to be bound by. Consequently, the Tribunal held that the computation of the 36 months for delivery of vacant possession must run from the date of payment of the booking fee and not the date of the SPA. 27. Having considered the findings of the Tribunal which then influenced its decision to award LAD, I do not find any reason to impugn the decision on any of the grounds for review relied on by the Applicant. 28. I now come to the second reason for challenge which is a computation point. The Applicant contends that even if the date to be considered is an earlier date, the Tribunal’s computation is found to be in error. An example of such error was noted in Suit 14 where the Notes of Proceedings stated an amount computed for LAD which was different from that in the Grounds of Judgment of the Tribunal. However, it is pertinent that the amount in the Award issued is that stated in the Grounds of Judgment. 29. Unless the Applicant can show that the computation was clearly erroneous based on the findings of the Tribunal that the LAD is to S/N PJfungri8k6HmFsMp6tjkg be computed from the date of the first payment, there is no error demonstrated to warrant a review of the decision. 30. In the final analysis, I am of the view that the Tribunal is best placed to make findings of facts, having examined the evidence. This court in exercising its supervisory powers of review ought not to delve into the merits of the case, unless it can be demonstrated that the decision was clearly irrational or unreasonable. (See: Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1). Conclusion 31. For the foregoing reasons, I am of the view that the Applicant has failed to establish a case for review of the Tribunal’s decision. In the result, the applications for judicial review in all the 26 cases are dismissed with costs of RM 1000 to be paid to the Respondents in each of the suits. Dated: 29th April 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur S/N PJfungri8k6HmFsMp6tjkg Counsel for Applicants: En. Kelvesh Deshenraj in all 26 suits (En. Tan Choon Keet together with him) Tetuan Joshua Aaron Keet Counsel for Respondents: En. Wee Chiat Kee (Suits 9, 10, 13,14, 56, 62, (En. Toh Chia Hua 63,117,119,129,141,143, En Wee Chiat Kee together with him) 159, 396, 406,419,469,486, Tetuan Azman Davidson & Co. 488) Counsel for Respondents: Cik Nurul Ayiesha binti Abdul Rahman (Suits 18, 118 & 122) (Cik Nurul Irdina binti Shahrani together with her) Tetuan Maylee Gan & Tai Counsel for Respondent: En. Julian Chan (Suit 401) Tetuan Julian Stephanie Suits 484, 487 : Respondents appear in person Suit 13 : Respondent not present S/N PJfungri8k6HmFsMp6tjkg