Sri Damansara Sdn Bhd v Tribubal Tuntutan Pembeli Rumah (W-01(A)-711-12/2018)

TEOH SHEH WEE ... RESPONDENTS (In the High Court in Malaya at Kuala Lumpur Judicial Review Application No: WA-25-152-06/2017 Between Sri Damansara Sdn Bhd ... Applicant

Tribunal Tuntutan Pembeli Rumah

Thong Chee Wei ... Respondents Consolidated With (In the High Court in Malaya at Kuala Lumpur Judicial Review Application No: WA-25-151-06/2017 Between Sri Damansara Sdn Bhd And ... Applicant

Tribunal Tuntutan Pembeli Rumah

Teoh Sheh Wei ... Respondents) CORAM: DR. BADARIAH BINTI SAHAMID, JCA HARMINDAR SINGH DHALIWAL, JCA NOR BEE BINTI ARIFFIN, JCA JUDGMENT OF THE COURT [1] This appeal arises from two judicial review applications before the Kuala Lumpur High Court, namely WA-25-151-06/2017 ("JR 151") and WA-25-152-06/2017 ("JR 152"). The two applications were consolidated and heard together. The applications for judicial review were against the Award by the Tribunal for Home Buyers Claims at Putrajaya ("Tribunal"). On 26 November 2018, the High Court dismissed the applications. Hence this appeal. [2] We heard this appeal on 14 August 2019. After hearing the parties and taking into consideration the written submissions, we came to the unanimous view that there were no merits in the appeal. The appeal was accordingly dismissed with costs. We now provide our reasons which will constitute the judgment of the court. Brief Background [3] The facts leading to the application for judicial review can be stated briefly as follows. The $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ respondents are purchasers of two (2) units of properties in a development known as "Foresta Damansara" which was developed and sold by the developer/appellant. The units were purchased for the sums of RM731,080.00 and RM887,880.00 respectively. [4] In the case of the $ 2 ^{nd} $ respondent, a deposit of RM10,000.00 was deemed to be paid on 6 January 2012. A Sale and Purchase Agreement dated 28 June 2012 was subsequently entered into although the $ 2 ^{nd} $ respondent claimed he signed on 24 March 2012. A credit note dated 10 July 2012 was issued by the appellant for the sum of RM63,108.00 for the balance of the deposit of 10% on the purchase price. [5] On 22 December 2015, a notice was issued by the appellant that vacant possession of the premises was delivered. A claim was filed with the tribunal on 19 December 2015. On 13 March 2017, the Tribunal awarded a sum of RM39,894.94 as damages for late delivery. The Tribunal decided that the calculation of the agreed liquidated damages should commence from the date of payment of the deposit and that it should be based on the purchase price as stated in the sale and purchase agreement. [6] In the case of the $ 3 ^{rd} $ respondent, a similar deposit of RM10,000.00 was accepted by the appellant on 6 January 2012. The Sale and Purchase Agreement was also dated 28 June 2012 and a credit note of RM78,788.00 was issued by the appellant as a rebate for balance of the deposit of 10% of the purchase price. [7] Delivery of vacant possession was notified by letter dated 22 December 2015. A claim was filed with the Tribunal on 19 December 2015. On 13 March 2017, the Tribunal awarded a sum of RM50,000.00 as damages for late delivery for the same reasons. [8] The developer then filed the instant applications for judicial review. After considering the issues raised by the appellant, the learned Judge was not persuaded that the decision of the Tribunal could be impugned on any of the accepted grounds of challenge such as illegality, irrationality or unreasonableness or procedural impropriety. Both applications for judicial review were consequently dismissed with costs of RM3,000.00 for each application. The Instant Appeal [9] Before us, the decision of the learned Judge was assailed on essentially two grounds. The first ground concerned the starting date for calculation of agreed liquidated damages for delivery of vacant possession of properties by developers pursuant to the Housing Development (Control and Licensing) Act 1966 ("HD Act 1966"). The issue is whether the calculation should start from the date of payment of the deposit or from the date of the sale and purchase agreement ("First Issue"). [10] The second ground also relates to the calculation of liquidated damages. In this case, the issue is whether damages should be allowed for late delivery based on the purchase price as stated in the sale and purchase agreement or whether it should be based on the actual purchase price paid by the purchaser which may be less than the price stated in the sale and purchase agreement ("Second Issue"). [11] Before we come to the aforesaid issues, it is important to remind ourselves, as did the learned Judge, that since we are here concerned with judicial review applications, we only have supervisory jurisdiction as opposed to appellate jurisdiction. So, supervisory jurisdiction does not generally extend, for example, to reviewing or reweighing the determinative evidence relied upon by the inferior tribunal unless the decision was palpably unreasonable (see Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd [1995] 3 CLJ 344). [12] Decisions of inferior tribunals may, however, be reviewed on the longsettled grounds of illegality, irrationality, and procedural impropriety (and now proportionality as well) committed during the decision making process (see Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] AC 374; R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 MLJ 145; [1997] 1 CLJ 147; Ranjit Kaur S Gopal Singh v Hotel Exelsior (M) Sdn Bhd [2010] 6 MLJ 1). [13] Even so, the supervisory jurisdiction may also extend, when considering any of the aforesaid categories, to the merits of the decision itself. A decision of an inferior tribunal may be quashed if it was made without jurisdiction or is patently erroneous in law. Such an error can arise if the decision maker had asked the wrong questions, omitted relevant considerations or had taken into account irrelevant considerations (see Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union [1995] 2 MLJ 317; ABT Construction Sdn Bhd & Anor v Tribunal Tuntutan Pembeli Rumah & Ors [2013] 9 MLJ 193). First Issue [14] Coming now to the issue of the starting date for calculation of the liquidated damages for late delivery, it was contended by the appellant that the Tribunal and the High Court were in error by not giving effect to the plain terms of the sale and purchase agreement. It was also argued that no contract was concluded with the payment of the deposit as the arrangement was subject to contract. [15] In this context, the appellant was relying on Clause 25 of the sale and purchase agreement the relevant parts of which state as follows: "(1) Vacant possession of the said Parcel shall be delivered to the Purchaser in the manner stipulated in Clause 26 herein within forty two (42) calendar months from the date of this Agreement.

If the Vendor fails to deliver vacant possession of the said Parcel in the manner stipulated in clause 26 within the time stipulated in subclause (1), the Vendor shall be liable to pay to the Purchaser liquidated damages calculated from day to day at the rate of ten per centum (10%) per annum of the purchase price from the expiry date of the delivery of vacant possession in subclause (1) until the date the Purchaser takes vacant possession of the said Parcel..." [16] Now, both the Tribunal and the High Court were not impressed with the appellant's arguments in this regard as they considered themselves to be bound by the decisions of the apex courts in Hoo See Sen & Anor v Public Bank [1988] 2 MLJ 170 ("Hoo See Sen") and Faber Union Sdn Bhd v Chew Nya Sheng & Anor [1995] 3 CLJ 797 ("Faber Union"). [17] Our own perusal of those cases suggests that the Tribunal and the High Court were right to do so. In Hoo See Sen, the then Supreme Court took the position that the date of the sale and purchase agreement was the date the booking fee was paid. In Faber Union, the Supreme Court made a more emphatic pronouncement by holding 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 fee, and not the date of the signing of the sale and purchase agreement. It is significant that the relevant clause setting out the time for delivery of vacant possession was similar to Clause 25 in the instant case. [18] We also considered ourselves to be bound by the Faber Union case as it is directly on point and cannot be distinguished from the present case. As we are not the apex court sitting in judgment of the present appeal, we were obliged by the doctrine of stare decisis to follow the decisions of the higher court which in this case was indeed the apex court then (see Dalip Bhagwan Singh v PP [1998] 1 MLJ 1) [19] In any event, we did not find any merit in the appellant's arguments. The contract between the parties had come into existence the moment the deposit was paid (see Daiman Development Sdn Bhd v Mathew Lui Chin Teck [1978] 2 MLJ 239). In our considered view, the signing and dating of the prescribed form of contract for sale as required by the Housing Development (Control and Licensing) Regulations 1989 then became a mere formality. [20] In our judgment, any other view may be in conflict with the spirit of the HD Act 1966. The HD Act 1966 was enacted to protect home buyers as the ordinary purchaser was not able to contract from a position of equal bargaining strength with the powerful and mighty developer (see SEA Housing Corporation Sdn Bhd v Lee Poh Choo [1982] 2 MLJ 31). [21] It would be most prejudicial to a purchaser if after collecting the deposit, the developer could then take his time to sign the sale and purchase agreement thus enlarging the time period in which vacant possession must be delivered. Any arbitrary or unilateral fixing of the date of execution of the sale and purchase agreement would certainly be to the detriment of a purchaser (see Lim Eh Fah & Ors v Seri Maju Padu [2002] 4 CLJ 37 and Lembaman Development Sdn Bhd v Ooi Lai Yin & Anor [2015] 6 CLJ 375). It would certainly defeat the intention of Parliament to balance the power differentials that exist between the purchaser and the developer. [22] For all these reasons, we found no error on the part of the Tribunal in arriving at its decision and which decision was rightly affirmed by the High Court. The appellant must therefore fail on this ground of appeal. Second Issue [23] On this issue, the appellant claimed that since a rebate of 10% was given the liquidated damages must be calculated on the discounted purchase price or as the appellant prefers to put it the "actual" purchase price. Relying on the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441, the appellant submitted that with the decision of the Tribunal, the respondents had unjustly enriched themselves. [24] In this context, the provisions of the contract for sale admit to no ambiguity as liquidated damages are to be calculated from the agreed purchase price. There was no mention of any rebate in the sale and purchase agreement. It must be borne in mind that the contract of sale was prescribed and regulated by statute and the parties could not import additional clauses into it and especially to remove the protection of home buyers. (see SEA Housing Corporation v Lee Poh Choo, supra and Sentul Raya Sdn Bhd v Hariram a/l Jayaram & Ors [2008] 4 MLJ 852). [25] For the above reasons, we did not think there was any justification for the plea of unjust enrichment. There was, therefore, no error on the part of the Tribunal in the calculation of the liquidated damages. Conclusion [21] In the circumstances, and for the reasons we have provided, we found no merits in the appeal. The appeal was dismissed with costs and the order of the High Court was affirmed. The appellant was ordered to pay costs of RM5,000.00 to each of the respondents subject to allocator. Dated: 19 June 2020 Signed (HARMINDAR SINGH DHALIWAL) Judge Court of Appeal Malaysia Counsel/Solicitors: For the Appellant: Ms Saroop Rampal (with her Dhiren Norendra) (M/s Norendra & Yap) For the Respondents: Ariadne Lee Pei Pei (M/s Pei Chambers)