Xtreme Meridian Sdn Bhd v Tribunal Tuntutan Pembeli Rumah (W-01(A)-574-10/2023)

1.

MUHAMMAD HARIZ BIN MD AZMAN - RESPONDENTS [In the Matter of the High Court of Malaya at Kuala Lumpur Federal Territory, Malaysia (Special Powers Division) Application for Judicial Review No: WA-25-426-07/2022 Between Xtreme Meridian Sdn Bhd - Applicant

Tribunal Tuntutan Pembeli Rumah

Muhammmad Hariz Bin Md Azman - Responden] CORAM: MOHD NAZLAN BIN MOHD GHAZALI, HMR. AZMI BIN ARIFFIN, HMR. FAIZAH BINTI JAMALUDIN, HMR. JUDGMENT Introduction [1] Enclosure 40 dated 26th October 2023 is the appellant / applicant’s notice of appeal to this Honourable Court against the Kuala Lumpur High Court decision given on 16th October 2023 in dismissing the appellant application for judicial review with costs of RM 3,000.00 subject to allocatur fees. Background Facts [2] The applicant, Xtreme Meridian Sdn Bhd, is a housing developer of a condominium project known as "Astoria Ampang" ("the project"). The 2nd respondent, Muhammad Hariz bin Md Azman entered into a Sale and Purchase Agreement (“SPA”) with the applicant to purchase a unit in the said project known as "No: A-23A-01, Block A" (“the Unit”). The 2nd respondent is the house buyer or purchaser of the said Unit. [3] The salient terms of the SPA, among others, are as follows:

10.1. Defect Liability Period Clause (Clause 30 (1))

The 2nd respondent (as purchaser) is entitled to a Defect Liability Period of 24 months after taking vacant possession of the Unit.

Upon receiving a notice of defects from the 2nd respondent, the appellant (as developer) is required to rectify the defects, at its own cost, within 30 days.

10.2. Non-Rectification Clause (Clause 30 (2))

In the event the appellant fails to rectify the defects within the period stipulated in the Defect Liability Clause, the 2nd respondent (as purchaser) shall provide a 30 days' notice to the appellant on the costs of rectifying defects.

Upon expiration of the 30 days' notice above, the 2nd respondent is entitled to carry out the rectification works on his own, and thereafter recover the defects rectification costs from the appellant. [4] The 2nd respondent obtained vacant possession of the Unit on 2nd November 2020. Pursuant thereto, the defect liability period would expire on 2nd November 2022. [5] On 24th May 2021, the 2nd respondent found defects in the unit and issued a notice of defects, together with a list of defects, to the appellant as required under the SPA (“First Notice"). The appellant did not rectify the defects. [6] Three (3) months later, on 26th August 2021, the 2nd respondent sent another notice to the appellant (“Second Notice"). In the Second Notice, the 2nd respondent provided the appellant with a quotation ("the Quotation") from Topwin Builders Sdn Bhd on the defects rectification costs which amount to RM39,350.00. Topwin Builders Sdn Bhd was the 2nd Respondent’s contractor. [7] The 2nd respondent also informed the appellant that he would proceed to fix the defects and claim the rectification costs therefrom. Again, the appellant failed to respond to the Second Notice. [8] The 2nd respondent proceeded to rectify the defects at his own cost. [9] On 21st October 2021, the 2nd respondent commenced proceedings at the Homebuyer Claims Tribunal ("Tribunal") to recover the costs of RM39,350.00 for the defects rectification costs and costs for failing to deliver and install two units of cabinets. [10] The Tribunal after evaluating all evidence and hearing parties, granted the following Award to the 2nd respondent:

The appellant is to pay the 2nd respondent RM12,000.00 within 30 days as rectification costs for defects and the costs for affixing Cabinets despite the claim made by the 2nd respondent was RM39,350.00; and

The appellant shall bear interest at a rate of 8% per annum if the ordered sum is not paid within the stipulated period. [11] After hearing both parties, the learned High Court Judge on 16th October 2023 made the following orders in favour of the 2nd respondent:

The judicial review application is dismissed; and

The appellant is ordered to pay the 2nd Respondent costs of RM3,000.00, subject to allocatur. [12] Dissatisfied with the High Court Order, the appellant filed the present appeal to the Court of Appeal. The High Court’s Decision [13] The learned High Court Judge in his grounds of judgment, which we reproduce, inter alia held as follows: “[23] After considering the written submissions made by both parties and the reasons for the decision given by the Tribunal, I found that the Tribunal had not committed any error of law, the kind of which would warrant interference by a review court according to the settled principles stated above, and dismissed the application. Whether there were unrectified defects [24] The finding of fact that defects existed to be rectified was based on documentary evidence that was credible. This was based on the Technical Report prepared by the Tribunal's Technical Team. The contents of the report on this point was not rebutted by any evidence brought by the applicant apart from its bare assertion that no more defects remained after it had carried out repairs as a matter of goodwill. It is to be observed that the defects report accompanying the 1st Notice was not challenged by any evidence brought by the applicant. The Tribunal was entitled to accept the evidence of the 2nd respondent and the Technical Report that the defects as listed existed. [25] The Tribunal was also entitled to do a comparison between the renovation works carried out by the 2nd respondent and the defects listed in the 1st Notice and Technical Report to arrive at the conclusion that the defects claimed were not connected with the renovation works. In other words, the defects were not caused by the renovation works but existed prior to the renovations. [26] The Tribunal was entitled to consider the Technical Report in arriving at the amount to be awarded to the 2nd respondent. The Tribunal correctly relied on the High Court decision of Prop Park Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2018] MLJU 813 to accept the views and findings in the Technical Report on the defects point. The quotation for the repairs by Topwin Builders was RM39,350.00. The applicant did not provide any proof as to the appropriate amount for the repairs. The Tribunal found that the amount of RM6,000.00 for defect rectification works reasonable and proportional for the defects. [27] The award on this point was not tainted by any errors of law either of the illegality kind or the irrationality kind. There was no reason for me to interfere with the award on the finding of defects and the amount awarded. The construction of the agreement on the cabinets [28] The finding of fact by the Tribunal that the SPA by its terms required for both the Cabinet and Vanity Top to be provided was in my view a correct interpretation. The item was described as follows: cabinet/vanity top quantity. How the forward slash is to be construed would depend on the context or the manner in which the forward slash was used. It can mean either "or" or "and" depending on the context. [29] It was the Tribunal's finding of fact, that reading the item and referring to other items where the description of what is provided with the usage of the symbol (/) such as in item H for "painting" it was stated as "Living Room / Dining / Bedroom / General". The forward slash was used in the sense of all and not “or". It was the finding of the Tribunal that the applicant was to provide both the cabinets and vanity top in each toilet. The Tribunal was entitled to arrive at this finding. There was nothing erroneous in this approach. The cabinets were the rightful entitlement of the 2nd respondent. [30] The amount for the cabinets was rounded up from RM 5,983.72 to RM6,000.00 granted by the Tribunal. It is merely RM 16.28. Such an amount is by no means significant and does not in any way show that the Tribunal has committed any illegality, irrationality, or procedural impropriety that warrants a certiorari of its decision. [31] The award on this point was not tainted by any errors of law either of the illegality kind or the irrationality kind. There was no reason for me to interfere with the award on the finding of defects and the amount awarded. Conclusion [32] For the above reasons, I dismissed the instant judicial review proceedings.” The Law on Judicial Review [14] The law on judicial review is well settled. The role of the court in judicial review is to exercise a supervisory not appellate jurisdiction. Judicial review is not an appeal from a decision but a review of the manner in which the decision was made. [15] In Harpers Trading (M) Sdn Bhd v. National Union of Commercial Workers [1991] 1 MLJ 417, the Supreme Court held: “(1) Judicial review is not an appeal from a decision but a review of the manner in which the decision was made and the High Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable.” [16] The Supreme Court in Malayan Banking Bhd v. Association of Bank Officers, Peninsular Malaysia & Anor [1988] 3 MLJ 204 at p.206, the Supreme Court said: “The general principle would appear to be that it will usually be proper to treat a decision-maker's tasks of fact-finding and the drawing of factual inferences from established facts as falling within the decision-maker's jurisdiction, unless the decision maker has reached absurd results or reached results absurdly.” [17] The Federal Court in R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 through a majority decision delivered by Edgar Joseph FCJ (as he then was) held as follows: “It is often said that judicial review is concerned not with the decision but the decision-making process. (See, e.g. Chief Constable of North Wales v. Evans [ 1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the Courts in judicial review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, where the impugned decision is flawed on the ground of procedural impropriety. But, Lord Diplock's other grounds for impugning a decision susceptible to judicial review makes it abundantly clear that such a decision is also open to challenge on grounds of 'illegality' and irrationality' and, in practice, this permits the Courts to scrutinise such decisions not only for process, but also for substance.” [18] In the case of Syarikat Kenderaan Melayu Kelantan Bhd. v. Transport Workers Union [1995] 2 CLJ 749, the Court of Appeal through the judgment delivered by Gopal Sri Ram JCA (as he then was) held as follows: “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 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 mis-states a principle of the general law.” [19] In Malayan Banking Berhad v. Marcus Wong & Anor [2015] MLJU 1965, Ravinthran Paramaguru J (as he then was) held as follows: “[7] It is trite law that the review jurisdiction of the High Court is different from appellate jurisdiction. Generally, the High Court will be slow to interfere with findings of fact unless the same are completely unsupported by evidence. It will also not interfere merely because it may come to different conclusions on facts on the basis of the same evidence (see Menara Panglobal Sdn Bhd v. Arokianathan Sivapiragasam [2006] 1 MELR 14; [2006] 1 MLRA 496; [2006] 3 MLJ 493; [2006] 2 CLJ 501; [2006] 3 AMR 555). However, the decision of the Industrial Court can be examined for process as well as substance if the decision is affected by illegality, irrationality, procedural impropriety and proportionality (see the judgment of Edgar Joseph FCJ in R Rama Chandran v. The Industrial Court of Malaysia & Anor [1996] 1 MELR 71; [1996] 1 MLRA 725; [1997] 1 MLJ 145; [1997] 1 CLJ 147; [1997] 1 AMR 433 and the speech of Lord Diplock in Civil Service Unions v. Minister for Civil Service [1985] AC 374).” The Appeal [19] Before us, although the petition of appeal contained several grounds, however learned counsel for the appellant submitted essentially on three (3) grounds namely:

The learned High Court Judge failed to correctly interpret the terms of the SPA, leading to the erroneous conclusion that the 2nd respondent is entitled to receive both the cabinets and vanity tops;

The learned High Court Judge failed to take into consideration that the defects were caused by the renovation undertaken by the 2nd respondent; and

The learned High Court Judge failed to consider the appellant's argument that Topwin Builders Sdn Bhd’s Quotation, without proof of payment, should not have been accepted as evidence to support the 2nd respondent’s claim in the Tribunal. Our Decision [20] Reading the appeal record and having reviewed the whole of the evidence objectively and from all angles, the submissions of both the learned counsels we unanimously decide as follows:

(A) On the complaint by the appellant that the 2nd respondent failed to raise any concerns regarding the defects and the lack of cabinets in the bathrooms upon taking possession, we need only to stress that the Defect Liability Period was for a two-year period, allowing the purchaser the right to file complaints and claims concerning defects within this period. Both the notices filed by the 2nd respondent as well as his claim lodged with the Tribunal were all made within time as Defect Liability Period expired only on 2nd November 2022. The developer has the obligation to repair and rectify perfectly the defects found on the unit of condominium. Clause 30 (1) of the SPA provides as follows: "Defect Liability Period

(1) Any defect, shrinkage or other faults in the said Parcel or the said Building or the common property which becomes apparent within twenty-four (24) months after the date the Purchaser takes vacant possession of the said Parcel and which are due to defective workmanship or materials or; the said Parcel or the said Building or the said common property not having been constructed in accordance with the plans and descriptions as specified in the First and Fourth Schedules as approved or amended by the Appropriate Authority, shall be repaired and made good by the Developer at its own cost and expense within thirty (30) days of the Developer having received written notice thereof from the Purchaser.”

(B) Similarly, there was no merit in the appellant’s argument that the 2nd respondent failed to observe the Non-Rectification Clause by not providing Topwin Builders Sdn Bhd’s Quotation prior to the Tribunal hearing. We find that not only was this not raised at the Tribunal hearing, but also that it is clearly the case that the appellant had received both the Notices dated 24th May 2021 and 28th August 2021 respectively to inform the appellant that the 2nd respondent would proceed to fix the remaining defects and the costs to fix the defects but the appellant chose not to respond or deny the claims therein. Hence, the appellant should live with the consequences of their own fault. The 2nd respondent thus has the right to initiate the works based on the quotation of technical claim for the defects given in the second notice dated 28th August 2021 to the appellant. The right of the buyer to repair and make good such defect arose when the developer failed to repair and rectify the said Unit or the said Building after the 30 days has lapsed. Clause 30(2) of the SPA where it stated as follows: “(2) If the defect, shrinkage or other faults in the said Parcel or the said Building or the said common property have not been made good by the Developer within thirty (30) days referred to in subclause (1), the Purchaser shall be entitled to carry out the works to repair and make good such defect, shrinkage or other faults himself and to recover from the Developer the costs of repairing and making good the same and the Purchaser may deduct such costs from any sum which has been held by the Developer's solicitors as stakeholders under item 5 of the Third Schedule, provided that the Purchaser shall, at any time after the expiry of the period of thirty (30) days, notify the Developer of the costs of repairing and making good such defect. shrinkage or other faults before the commencement of the works and shall give the Developer an opportunity to carry out the works himself within thirty (30) days from the date the Purchaser has notified the Developer of his intention to carry out the works and provided further that the Purchaser shall carry out and commence the works as soon as practicable after the Developer's failure to carry out the works within the said thirty (30) days. In such an event, the Developer's solicitors shall release such costs to the Purchaser from the stakeholder sum held by the Developer's solicitor under item 5 of the Third Schedule within thirty (30) days after the receipt by the Developer's solicitors of the Purchaser's written demand specifying the amount of such costs."

(C) The appellant contended that it only need to supply a cabinet or vanity top as the symbol “/” in the SPA means "or". The said unit already has been supplied with vanity top. The appellant also contended that the toilet cabinet issues need to be verified through third-party expert testimony. However, we find it rather strange that in Item H, the respondent painted all the parts in the unit including the living room, dining and bedroom even though the appellant used symbol "/” in the SPA. Cabinets are specified in the relevant SPA as highlighted by the technical team which read that both cabinet and vanity top are to be provided by the appellant. The third-party expert testimony was only needed on how the toilet cabinets are to be installed. For ease of reference, we reproduced below the suggestion given by the technical team in the technical report which stated as follows: CADANGAN TEKNIKAL Item kabinet dinyatakan di dalam Sale and Purchase (Fourth Schedule) dengan pernyataan cabinet / vanity top, dengan itu PP diminta untuk menyediakan pemasangan cabinet di ruang bawah vanity top bagi kedua-dua bilik air dalam unit PYM. Dicadangkan membekal dan memasang kabinet bina dalam jenis MDF dengan kemasan HPL timber pattern pada vanity top sedia ada.

Bilik air utama (Master Bath) =1400mm(L) x 580mm(D) x 450mm(H)

(ii) Bilik air 1 (Bath 1) =860mm(L) x 420mm(D) × 450mm(H) (Nota: Saiz dan ukuran perlu disahkan semula di tapak sebelum kerja-kerja dijalankan). Khidmat pakar ketiga diperlukan untuk cara kerja membekal dan memasang kabinet tersebut. Tertakluk kepada keputusan Presiden. Hence, it is our considered view that there was nothing wrong for the Tribunal to have made the finding on the usage of the symbol ‘forward slash’ to mean AND instead of OR with the result that the appellant should provide and install the Cabinets which was based on the recommendation of the technical team. This is in line with the decision made in the High Court case of Prop Park Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor [2018] MLJU 813, where Azizah Nawawi J (as she then was) held as follows: “[21] Having considered the facts before me, I find no merit in the Applicant's contention, as the Award was based on the findings of facts by the Tribunal, including the Technical Inspection Report (the "Technical Report") of the said unit. The Technical Report was prepared pursuant to subsections 16W (1) (a) and 16W(1)(d) of the Housing Development (Control and Licensing) Act 1966 ("The Act"). [22] The Technical Report (exhibit "ST - 2") was prepared by Saudah Binti Ariffin, the 'Penolong Jurutera, Tribunal Tuntutan Pembeli Rumah', and the same report was confirmed by Siti Syahielah Binti Abdul Ghani, the 'Juruukur Bangunan, Tribunal Tuntutan Pembeli Rumah'. There is nothing in the affidavit of the Applicant to state that the findings of the Technical Report are incorrect. [23] From the said Technical Report, there was an 'On Site Verification' where the parties gone to the affected premise. The technical team have looked at all the complaints of the Claimant and have made the relevant findings, after having checked the premise physically. Surely, the Technical Report provides credible evidence that the Tribunal can rely on, apart from the evidence of the parties before it. Added to that, the Applicant did not dispute the findings of the Technical Report and did not offer any other technical report of their own to rebut the Tribunal's Technical Report. [24] In the premise, I am of the considered opinion that the Applicant has failed to establish that the Award is irrational on the basis that the Award is not support by the facts of the case.” Thus, the learned High Court Judge was not plainly wrong in agreeing with the Tribunal. Conclusion [21] For the foregoing reasons, we agree with and affirm the decision of the High Court which held that the Tribunal had not committed any illegality, irrationality, or procedural impropriety that warrants its decision be quashed. [22] We unanimously dismissed this appeal with costs of RM10,000.00 to the 2nd respondent subject to allocatur. Date: 11 Jun 2025 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant :

Saroop Rampai

Aimi Daiila Binti Ermal Aswardy [Norendra & Yap] For the Respondents : Yogalretchumy A/P K Ravichandaran [Jasper Hee Partnership]