Tribunal on trial?

26/07/2003 Published in NST-PROP A Buyer Watch Article by National House Buyers Association

Just a few months after the Housing Tribunal was conceived on Dec 1, 2002 under Section 16 of the Housing Development (Control & Licensing) Act 1966, certain parties are questioning its right to hear cases before it was enacted.

How and why has this come about? Of course, we at the HBA are of the opinion that there is nothing wrong or unlawful for the Tribunal to do this. But before tackling the issue, let’s revisit how and why the body came about.

The Housing Tribunal is a form of Alternative Dispute Resolution (ADR) for the housing industry. Specifically tailored to hear disputes arising from housebuyers against their developers which they feel have short-changed them, the Tribunal, for all intents and purposes, acts as a civil Court. However, its focus is only on issues between housebuyers and housing developers, and isn’t saddled with other aspects of litigation.

It is also designed to be a less costly and speedier avenue compared to the usual civil Court process. The cost efficiency comes about because no lawyer is allowed to represent either party and Court charges are minimal (the cost to file a claim is RM10). As for its relative swiftness, it is because the Tribunal only handles arguments arising from the Sale and Purchase Agreements (SPA) signed between a developer and an individual purchaser. It does not matter whether the purchaser is the one who made the deal with the developer directly, or whether he or she made it with the first buyer (who bought it from the developer).

The Tribunal’s inception couldn’t have been more timely, especially since the number of aggrieved housebuyers (who have become financially spent after making their purchases) has increased, as has the number of cases in dispute. If this state of affairs was not addressed, it would have worsened the backlog of cases waiting to be heard in the civil Courts.

This prompted Parliament to promptly enact the Housing Tribunal, and recently, the Bar Council mooted that arbitration be a form of ADR, thus paving the way for other industries to possess similar judicial bodies.

However, beneficial though the Tribunal is, certain parties still want to challenge its legal right to hear cases where the SPAs were executed prior to its formal enactment on Dec 1, 2002.

The question that needs to be asked is: “Would the interest of any party be unfairly jeopardised if a case was heard in the Tribunal instead of in a civil Court?”

We think not. The Tribunal will, like the civil Court, only consider the substance of an SPA taking into account the clauses in the old Housing Developers’ Act (in force prior to Dec 1, 2002), and then make its judgement based on that piece of legislation.

Thus, it is the content of the SPA that matters, and not whether it was executed before or after the Tribunal was incepted.

It should be seen in this light; not from some parties’ claim that the law cannot be retrospectively implemented. There is certainly no retrospective implementation of the law - it is a situation where Parliament, realising the predicament faced by aggrieved housebuyers, has seen it fit that a speedier and less costly platform for ADR be created.

Hence, any opposition or attempt to frustrate this noble act of Parliament only reflects a guilty conscience, and such objections must be promptly removed.

The National House Buyers Association is a non-profit, non-governmental, non-political organisation manned by volunteers. Our website is www.hba.org.my. E-mail: info@hba.org.my