No party shall be represented by an advocate and solicitor at a hearing unless in the opinion of the Tribunal the matter in question involves complex issues of law and one party will suffer severe financial hardship if he is not represented by an advocate and solicitor; but if a party is subsequently allowed to be represented by an advocate and solicitor then the other party shall also be entitled…” [17] The Developer has applied to be represented by a solicitor before the Tribunal to argue on legal issues. The Tribunal has the discretion whether to allow legal representation before it, and in this case the Tribunal has rejected the Developer‟s application. I find no legal basis 9 to disturb this exercise of discretion, as the Tribunal finds itself bound by the decision of the High Court in Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan [2017] MLJU 1366. Therefore, there is no requirement of legal representation to argue on the legal issues. [18] In GJH Avenue Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah, Kementerian Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan [2017] 1 LNS 193, on the issue of binding precedent, the High Court held as follows: “[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 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 10 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) [19] The next issue is whether the decision of the Tribunal is irrational and perverse. The parties have submitted on the issue of the right to be heard before the decision to extend time was made by the Minister, extending the time to deliver vacant possession from 42 months to 48 months. [20] This issue has been decided by the Court of Appeal in Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan v. 11 Ang Ming Lee & 34 ors and another appeal [2018] MLJU 638, where the Court held as follows: “[24] The final issue raised before us was whether the purchasers ought to have been given a right of hearing prior to the decision made by the Controller and/or Minister. In this respect, we note that the purpose of the Act was to protect the interest of the purchasers. As the rights of the purchasers to claim damages in the event of delay would be adversely affected or even distinguished, we agree that the purchasers must be given an opportunity to be heard prior to any decision made. [25] As the purchasers comprise a group which can be easily ascertained, they should at least be notified of the developer’s application for any extension of time to complete the project and be given a reasonable period of time to state their views before such decision is taken. As no such right to be heard was afforded to the purchasers, it is our judgment that the decision made in this case, whether by the Controller or the Minister, was null and void and of no effect and should accordingly be set aside.”(emphasis added) [21] In the present application, the Developer submits that since they have notified the Homebuyer of their application for an extension of time to 12 the Minister vide a letter dated 11.9.2013, and that the Homebuyer did not take any positive step to protest against such application for extension of time, then the Homebuyer is estopped from raising the same before this Court. [22] The issue of estoppel does not arise here as there is no legal requirement for the Homebuyer to raise an objection upon being notified of the Developer‟s application to extend time. As far as Homebuyer is concerned, it is up to the Minister whether to allow the extension or not. But if the Minister is minded to allow the extension, then this will affect the Homebuyer‟s right to LAD under the SPA. Therefore, in such circumstances the Homebuyer must be given a right to be heard before the Minister makes such a decision, which will affect the Homebuyer‟s legal rights. This is supported by the decision of the Court of Appeal in Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan v. Ang Ming Lee & 34 ors and another appeal, where the Court held as follows: “[31] …. As the rights of the purchasers to claim damages on the event of delay would be adversely affected or even extinguished by the exercise of such discretionary power, it is our judgment that the purchasers must be given an opportunity to be heard prior to any decision made. Since no such right was afforded, the decision of the Minister cannot stand and must be set aside.” (emphasis added) 13 [23] In the present case, since the Homebuyer was not given a right to be heard before the Minister made the decision to extend the time for delivery if vacant possession from 42 months to 48 months, then the Minister‟s decision is illegal, null and void. Therefore, there is no valid extension of time and the Homebuyer is entitled to the LAD. Consequently, the decision of the Tribunal cannot be said to be perverse or irrational. [24] In any event, parties have also submitted that any amendment to the SPA requires the consent of both parties. There is no specific provision on this in the SPA, but Clause 8 of the SPA provides that „Time is of essence in relation to all provisions of this Agreement.” In view of this clause, and bearing in mind that the SPA was entered into by the Homebuyer and the Developer, the consent of both parties is required before any term of the SPA can be varied. [25] No doubt that the SPA is in the prescribed form pursuant to regulation 11 of the Housing Development (Control and Licensing) Regulations 1989, but this is only with regards to the format of the contract which the parties have to comply with. On the interpretation of the term of the SPA, and with specific reference to Clause 8, I am of the considered opinion that the consent of both parties is required before any provision of the SPA can be varied. This is in line with the requirement of a right to be heard before the Minister can make a decision to extend the time to deliver vacant possession. As such I am also of the considered opinion that the extension of time is invalid, null and void as the Homebuyer has not consented to it. 14 Conclusion [26] Premised on the reasons enumerated above, I am of the considered opinion that the Applicant/Developer has failed to establish that the Award is illegal and/or irrational. The application is hereby dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 24th January 2019 For the Applicant : Vanaja Nambiar Messrs Isharidah, Ho, Chong & Menon Kuala Lumpur For the 2nd Respondent : Eric Soon/Shuhaidah Binti Ahmad Messrs Soon Gan Dion & Partners Selangor D.E. 15 Cases referred: