This website is
 sponsored.gif

banner.gif

 Welcome    Main    Forum    FAQ    Useful Links    Sample Letters   Tribunal  

Disclaimer: These laws are here for your convenience. Great care is exerted to assure correctness. However, the contents of this library and its maker will assume no liabilities. Persons who need to rely on the text of the Acts and Regulations for legal and other purposes may obtain the Government Printer's official printed version.

HOUSING DEVELOPERS (CONTROL AND LICENSING) (AMENDMENT) ACT 2002
ACT A1142
 

In force from 1 December 2002 [PU(B) 353/2002]
Date of Royal Assent: 23 January 2002
Date of publication in the Gazette 31 January 2002
 

An Act to amend the Housing Developers (Control and Licensing) Act 1966.

ENACTED by the Parliament of Malaysia as follows:

1.  Short title and commencement.

(1) This Act may be cited as the Housing Developers (Control and Licensing) (Amendment) Act 2002.

(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.

2.  Interpretation.

For the purpose of this Act, "appointed date" means the date appointed by the Minister under subsection 1(2).

3.  New Part I.

The Housing Developers (Control and Licensing) Act 1966 [Act 118], which is referred to as the "principal Act" in this Act, is amended by inserting before section 1 the following heading:

"PART I

PRELIMINARY".

4.  Amendment of section 1.

Subsection 1(1) of the principal Act is amended by substituting for the word "Developers" the word "Development".

5.  Reference to the principal Act.

Where, on and after the appointed date, a reference is made in any written law to the "Housing Developers (Control and Licensing) Act 1966", such reference shall be construed as a reference to the "Housing Development (Control and Licensing) Act 1966".

6.  Amendment of section 2.

Subsection 2(1) of the principal Act is deleted.

7.  Amendment of section 3.

Section 3 of the principal Act is amended-

(a) in the definition of "bank", by substituting for the words "Banking Act 1973 [Act 102]" the words "Banking and Financial Institutions Act 1989 [Act 372]";

(b) by inserting after the definition of "body of persons" the following definition:

'"certificate of fitness for occupation" means the certificate of fitness for occupation given or granted under the Street, Drainage and Building Act 1974 [Act 133] and any by-laws made under that Act;';

(c) by inserting after the definition of "Controller" the following definition:

'"Deputy Controller" means the Deputy Controller of Housing appointed under section 4;';

(d) in the definition of "finance company", by substituting for the words "Finance Companies Act 1969 [Act 6]" the words "Banking and Financial Institutions Act 1989";

(e) in the definition of "housing accommodation", by inserting after the words "for business premises" the words "but does not include an accommodation erected on any land designated for or approved for commercial development";

(f) in the definition of "licensed housing developer", by inserting after the words "housing development" the words "and includes the holder of any power of attorney of such housing developer duly created under the Powers of Attorney Act 1949 [Act 424]";

(g) by inserting after the definition of "licensed housing developer" the following definition:

'"local authority" includes any person or body of persons appointed or authorized under any written law to exercise and perform the powers and duties which are conferred and imposed on a local authority under any written law;';

(h) by substituting for the definition of "prescribed" the following definition:

'"prescribed" means prescribed by regulations made under this Act, and where no mode is mentioned means prescribed from time to time by order published in the Gazette;';

(i) by substituting for the definition of "purchaser" the following definition:

'"purchaser" means any person who purchases housing accommodation or who has any dealing with a licensed housing developer in respect of the acquisition of housing accommodation;'; and

(j) by inserting after the definition of "purchaser" the following definitions:

'"stakeholder" means any solicitor holding moneys as stakeholder for payment to a housing developer pursuant to sale and purchase agreements in respect of a housing development which the housing developer is engaged in, carries on or undertakes or causes to be undertaken;

"Tribunal" means the Tribunal for Homebuyer Claims established under section 16B.'.

8.  Amendment of section 4.

The principal Act is amended by substituting for section 4 the following section:

"4. Appointment of Controller, Deputy Controllers, Inspectors and other officers and servants.

(1) For the purpose of this Act, the Minister may appoint a Controller of Housing and such number of Deputy Controllers of Housing, Inspectors of Housing and other officers and servants as the Minister may deem fit from amongst members of the public service.

(2) The Controller and Deputy Controllers shall have and may exercise any of the powers conferred on an Inspector by or under this Act.

(3) The Controller may, in writing, delegate all or any of his powers or functions under this Act, except his power of delegation, to any Deputy Controller, Inspector, officer or servant appointed under subsection (1).

(4) Without prejudice to subsection (2), the Controller may, in writing, delegate any of his powers and functions under this Act in respect of the investigation of offences under this Act and the enforcement of this Act to any public officer or officer of a local authority.

(5) Any delegation under subsection (3) or (4) may be revoked at any time by the Controller and does not prohibit the Controller from himself exercising the powers or performing the functions so delegated.".

9.  New Part II.

The principal Act is amended by inserting before section 5 the following heading:

"PART II

LICENSING OF HOUSING DEVELOPERS".

10.  Amendment of section 5.

Section 5 of the principal Act is amended-

(a) in subsection (4) by deleting the words ", subject to section 6,";

(b) by inserting after subsection (4) the following subsections:

"(4A) No application for a licence under this section shall be considered unless the prescribed fees have been paid to the Controller.

(4B) There shall be charged and paid to the Controller on the grant of a licence and at such intervals after such grant during the period of validity of the licence such fees as may be prescribed."; and

(c) in subsection (5), by substituting for the word "aforesaid" the words "imposed under subsection (4)".

11.  Amendment of section 6.

Section 6 of the principal Act is amended-

(a) in subsection (1)-

(i) in paragraph (a), by inserting after the words "two hundred and fifty thousand ringgit" the words "and makes a deposit with the Controller of not less than two hundred thousand ringgit in cash or in such other form as the Minister may determine";

(ii) in paragraph (b)-

(A) by substituting for the word "one" the word "two";

(B) by deleting the word "and" appearing at the end of the paragraph; and

(iii) in paragraph (c), by deleting the word "and" appearing at the end of the paragraph;

(iv) in paragraph (d)-

(A) by inserting after the word "secretary" the words "of the applicant";

(B) by inserting after the word "treasurer" the words "of the applicant"; and

(C) by substituting for the full stop appearing at the end of the paragraph a semicolon; and

(v) by inserting after paragraph (d) the following paragraphs:

"(e) unless, at the time the application is made, the applicant or any member or partner of the applicant, if the applicant is a body of persons or firm, or a director, manager or secretary of the applicant, if the applicant is a company, has not, due to a conviction for an offence under this Act, been sentenced to a fine exceeding ten thousand ringgit or to imprisonment (other than imprisonment in default of a fine not exceeding ten thousand ringgit);

(f) unless, at the time the application is made, a person who had been a director of or had been directly concerned in the management of the business of a licensed housing developer which has been wound up by a court is not a director or is not directly concerned in the management of the business of the applicant; and

(g) if the registration of the applicant's architect or engineer has been cancelled and has not been reinstated under the Architects Act 1967 [Act 117] or the Registration of Engineers Act 1967 [Act 138] at the time the application is made."; and

(b) by inserting after subsection (1) the following subsection:

"(1A) For the purposes of paragraphs (1)(d), (e) and (f), if the applicant is a company, the expression "applicant" shall include the holding company of the applicant, or a subsidiary of the applicant or a subsidiary of the holding company of the applicant.".

12.  New section 6A.

The principal Act is amended by inserting after section 6 the following section:

"6A. Controller to keep deposit.

Subject to any direction of the Minister, the Controller shall keep the deposit made under paragraphs 6(1)(a) and (b) until the expiry of the defect liability period of the housing development.

6B. Controller may forfeit deposit.

If any licensed holding developer-

(a) is carrying on his business, in the opinion of the Controller, in a manner detrimental to the interest of the purchasers or to any member of the public;

(b) has insufficient assets to cover his liabilities;

(c) is contravening any of the provisions of this Act; or

(d) has ceased to carry on housing development in West Malaysia,

the Controller may, after having given the licensed developer an opportunity to submit reasons within a specified time on why the deposit under paragraph 6(l)(a) or (b) should not be forfeited, forfeit the whole or a part of the deposit.".

13.  New Part III.

The principal Act is amended by inserting before section 7 the following heading:

"PART III

DUTIES OF A LICENSED HOUSING DEVELOPER".

14.  Amendment of section 7.

Section 7 of the principal Act is amended-

(a) in paragraph (b), by inserting after the words "a copy of" the words "his licence, advertisement and sale permit and a copy of";

(b) in paragraph (e), by substituting for the word "three" the word "six";

(c) in paragraph (f) by substituting for the words "in the prescribed form; and" the words ", in such form and containing such information as the Controller may from time to time determine, on the progress of the housing development which the housing developer is engaged in, carries on or undertakes or causes to be undertaken;";

(d) in paragraph (g)-

(i) by inserting after the words "to the purchasers" the words "at any stage of the housing development before the issuance of the certificate of fitness for occupation"; and

(ii) by substituting for the full stop appearing at the end of the paragraph a semicolon; and

(e) by inserting after paragraph (g) the following paragraphs:

"(h) inform the Controller of the handing over of vacant possession of the housing accommodation in the housing development to the purchasers and submit a certified true copy of his architect's certificate certifying that the construction of the housing accommodation has been duly completed and that water and electricity supplies are ready for connection to the housing accommodation;

(i) inform the Controller if the appropriate authority has refused to accept the submission of any document relating to the issuance of certificates of fitness for occupation and submit the refusal letter from the appropriate authority to the Controller;

(j) ensure that the development of the housing accommodation has been carried out in accordance with any requirements prescribed under any law regulating buildings and has exercised all such diligence as may be required for the issuance of certificates of fitness for occupation and for the issuance and transfer of the titles to the housing accommodation to the purchasers; and

(k) inform the Controller of the progress in the issuance of separate or strata titles for the housing accommodation and the transfer of such titles to the purchasers.".

15.  Amendment of section 7A.

Section 7A of the principal Act is amended-

(a) in subsection (5)-

(i) by substituting for the words "paragraph 6(b)" the words "paragraph (6)(b)"; and

(ii) by inserting after the words "Housing Development Account" the words "and all moneys held by the stakeholder";

(b) in subsection (6), by inserting after the words "Housing Development Account" wherever appearing the words "and moneys held by the stakeholder";

(c) in subsection (7), by inserting after the words "Housing Development Account" the words "and moneys held by the stakeholder";

(d) in subsection (8), by substituting for the words "section 36 of the Banking Act 1973" the words "the provisions of the Banking and Financial Institutions Act 1989 and the Islamic Banking Act 1983";

(e) in subsection (9), by inserting after the words "before the completion of the housing development" the words "and the issuance of certificates of fitness for occupation"; and

(f) in subsection (10)-

(i) by substituting for the word "ten" the word "fifty"; and

(ii) by substituting for the word "one" the word "five".

16.  New section 7B.

The principal Act is amended by inserting after section 7A the following section:

"7B. Licensed housing developer for the purpose of sections 8, 8A, 11 and 12.

For the purpose of sections 8, 8A, 11 and 12, "licensed housing developer" includes any housing developer whose licence has expired.".

17.  Amendment of section 8.

Subsection 8(1) of the principal Act is amended by substituting for the words "dispose of or reconstruct his business" the words "transfer, assign, dispose of or reconstruct his business or management".

18.  New section 8A.

The principal Act is amended by inserting after section 8 the following section:

"8A. Statutory termination of sale and purchase agreements.

(1) Notwithstanding anything contained in any agreement, a licensed housing developer may apply to the Minister for approval to terminate all the sale and purchase agreements entered into in respect of a housing development or any phase of a housing development which the housing developer is engaged in, carries on or undertakes or causes to be undertaken if-

(a) six months after the execution of the sale and purchase agreements, development of the housing accommodation in that housing development or phase has not commenced; and

(b) at least seventy-five per cent of all the purchasers who have entered into the sale and purchase agreements have agreed with the housing developer in writing to terminate the sale and purchase agreements.

(2) Any application made under subsection (1) shall be supported by-

(a) the written consent of the licensed housing developer and of each of the purchasers who have agreed to terminate the sale and purchase agreements and such consent shall have been duly executed by the licensed housing developer and the purchaser, as the case may be, and witnessed by his solicitors or a Commissioner for Oaths not earlier than one month before the date of the application; and

(b) such other documents or evidence as the Minister may require or as may be determined including such evidence which may satisfy the Minister that the licensed housing developer is financially capable of refunding to the purchasers and their financiers all the moneys paid by them to the licensed housing developer if the Minister approves such application.

(3) For the purpose of this section, joint purchasers irrespective of any number in a sale and purchase agreement shall be considered as one purchaser.

(4) Upon receipt of an application under subsection (1), the Minister may grant or refuse the application for approval.

(5) In granting the approval under subsection (4) the Minister may impose such conditions as he may deem fit and proper.

(6) The decision of the Minister shall be final and shall not be questioned in any court and it shall be binding on the licensed housing developer and all the purchasers and no injunction shall be granted to restrain any person from carrying out the decision of the Minister.

(7) All the sale and purchase agreements in respect of the housing development or the phase of a housing development which is the subject of an approval under subsection (4) including those of the remaining purchasers who have not agreed to the termination shall be deemed to have been duly terminated.

(8) The licensed housing developer shall, within fourteen days from the date of receipt of the Minister's approval, inform all the purchasers in writing of the Minister's decision.

(9) The licensed housing developer shall refund all moneys received by the licensed housing developer from the respective purchasers free of any interest within the period stated in the Minister's approval.

(10) Upon receipt of the refund under subsection (9), the purchasers shall immediately cause all encumbrances on the land to be removed and the cost and expenses for such removal shall be borne by and may be claimed as a civil debt from the housing developer.

(11) Any person who fails to comply with any of the provisions of this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit and to a further fine not exceeding five thousand ringgit for every day during which the offence continues after conviction.".

19.  New Part IV.

The principal Act is amended by inserting before section 10 the following heading:

"PART IV

INVESTIGATION AND ENFORCEMENT".

20.  Amendment of section 10.

Section 10 of the principal Act is amended-

(a) in subsection (1), by inserting after the word "investigate" the words "the commission of any offence under this Act or investigate"; and

(b) by deleting subsection (3).

21.  New sections 10A, 10B, 10C, 10D, 10E, 10F, 10G, 10H, 10I and 10J.

The principal Act is amended by inserting after section 10 the following sections:

"10A. Powers of entry, search and seizure.

(1) If it appears to a Magistrate, upon written information on oath and after such inquiry as he considers necessary, that there is reasonable cause to believe that any premises have been used or are about to be used for, or there is in or on any premises evidence necessary to establish, the commission of an offence under this Act, the Magistrate may issue a warrant authorizing an Inspector to whom it is directed, at any reasonable time by day or night and with or without assistance-

(a) enter any premises and there search for, seize and detain any property, book or other document;

(b) inspect, make copies of, or take extracts from, any book or other document so seized and detained;

(c) take possession of, and remove from the premises, any property, book or other document so seized and detained;

(d) search any person who is in, or on, such premises, and for the purpose of such search detain such person and remove him to such place as may be necessary to facilitate such search, and seize and detain any property, book or other document found on such person;

(e) break open, examine, and search, any article, container or receptacle; or stop, detain or search any conveyance.

(2) An Inspector authorized under subsection (1) may, if it is necessary so to do-

(a) break open any outer or inner door of such premises and enter such premises and every part of such premises;

(b) remove by force any obstruction to such entry, search, seizure, detention or removal; or

(c) detain all or any persons found on any premises, or in any conveyance, searched under subsection (1) until such premises or conveyance have been searched.

(3) If an Inspector has reasonable cause to suspect by reason of delay in obtaining a search warrant under subsection (1) that-

(a) the investigation would be adversely affected; or

(b) evidence of the commission of an offence is likely to be tampered with, removed, damage or destroyed,

he may enter the premises and exercise in, and in respect of the premises, all the powers referred to in subsections (1) and (2) in as full and ample a manner as if he were authorized to do so by a warrant under subsection (1).

(4) A list of all things seized in the course of a search made under this section and of the places in which they are respectively found shall be prepared by the Inspector conducting the search and signed by him.

(5) The occupant of the premises entered under subsection (1), or some person on his behalf, shall in every instance be permitted to attend during the search, and a copy of the list prepared and signed under subsection (4) shall immediately be delivered to such occupant or person.

(6) An Inspector shall, unless otherwise ordered by any court-

(a) on the close of investigations or any proceedings arising therefrom; or

(b) with the prior written consent of the Controller for the Inspector to act on his behalf for this purpose at any time before the close of investigations,

release any property, book or other document seized, detained or removed by him or any other Inspector, to such person as he determines to be lawfully entitled to the property, book or other document if he is satisfied that it is not required for the purpose of any prosecution or proceedings under this Act, or for the purpose of any prosecution under any other written law.

(7) A record in writing shall be made by the Inspector effecting any release of any property, book or other document under subsection (6) in respect of such release specifying therein in detail the circumstances of, and the reason for, such release.

(8) Where the Inspector is unable to determine the person who is lawfully entitled to the property, book or other document or where there is more than one claimant to such property, book or other document, the Inspector shall report the matter to a Magistrate who shall then deal with the property, book or other document as provided for in subsections 413(2), (3) and (4) and sections 414, 415 and 416 of the Criminal Procedure Code [Act 593].

10B. Search of person.

(1) An Inspector may search any person whom he has reason to believe has on his person any property, book or other document, or other article necessary, in his opinion, for the purpose of an investigation into any offence under this Act, and for the purpose of such search may detain such person for such period as may be necessary to have the search carried out, which shall not in any case exceed twenty-four hours without the authorization of a Magistrate, and may remove him in custody to such place as may be necessary to facilitate such search.

(2) An Inspector making a search of a person under subsection (1) may seize, detain, or take possession of any property, book or other document, or article, found upon such person for the purpose of the investigation being carried out by him.

(3) No female person shall be searched under this section or under section 1OA except by another female person and with strict regard for decency.

10C. Obstruction to exercise of powers by an Inspector.

No person shall-

(a) refuse any Inspector exercising his powers under section 10A or 10B access to any premises or any part of such premises, or fail to submit to the search of his person;

(b) assault, obstruct, hinder or delay such Inspector in effecting any entrance which he is entitled to effect;

(c) fail to comply with any lawful demands of any Inspector in the execution of his duties under section 10A or 10B;

(d) refuse to give to an Inspector any information which may reasonably be required of him and which he has it in his power to give;

(e) fail to produce to, or conceal or attempt to conceal from, an Inspector, any property, book, other document, or article in relation to which an Inspector has reasonable grounds for suspecting that an offence has been or is being committed under this Act;

(f) rescue or endeavour to rescue any thing which has been duly seized;

(g) furnish to the Inspector as true any information which he knows or has reason to believe to be false; or

(h) before or after any seizure, break or otherwise destroy any thing to prevent the seizure or the securing of the thing.

10D. Requirement to provide translation.

(1) Where an Inspector finds, seizes, detains, or takes possession of any book or other document in the exercise of any power under this Act, and such book or other document or any part of it is in a language other than the national language or the English language, or in any sign or code, the Inspector may orally or in writing require the person who had the possession, custody or control of such book or other document, to furnish to the Inspector a translation in the national language of such book or other document within such period as, in the opinion of the Inspector, would be reasonable having regard to the length of the book or other document, or other circumstances relating to it.

(2) No person shall knowingly furnish a translation under subsection (1) which is not an accurate, faithful and true translation, or knowingly make a translation under that subsection which is not accurate, faithful and true.

10E. Power to examine persons.

(1) Where an Inspector suspects any person to have committed an offence under this Act, he may, if in his opinion it is reasonably necessary to do so for the purposes of investigating into such offence-

(a) order any person orally or in writing to attend before the Inspector for the purpose of being examined orally by the Inspector in relation to any matter which may, in the opinion of the Inspector, assist in the investigation into the offence;

(b) order any person orally or in writing to produce before the Controller or the Inspector books, other documents, property, articles, or things which may, in the opinion of the Controller or the Inspector, assist in the investigation into the offence; or

(c) by written notice require any person to furnish a statement in writing made on oath or affirmation setting out in the notice all such information which may be required under the notice, being information which, in the opinion of the Controller, would be of assistance in the investigation into the offence.

(2) A person to whom an order under paragraph (l)(a) or (b), or a written notice under paragraph (l)(c), has been given shall comply with the terms of such order or written notice, as the case may be, and, in particular-

(a) a person to whom an order under paragraph (1)(a) has been given shall attend in accordance with the terms of the order to be examined, and shall continue to so attend from day to day as directed by the Inspector until the examination is completed, and shall during such examination disclose all information which is within his knowledge, or which is available to him, or which is capable of being obtained by him, in respect of the matter in relation to which he is being examined, whether or not any question is put to him with regard thereto, and where any question is put to him he shall answer the question truthfully and to the best of his knowledge and belief, and shall not refuse to answer any question on the ground that it tends to incriminate him;

(b) a person to whom an order has been given under paragraph (1)(b) shall not conceal, hide, destroy, alter, remove from or send out of Malaysia, or deal with, expend, or dispose of, any book, other document, property, article, or thing specified in the order, or alter or deface any entry in any such book or other document, or cause such act to be done, or assist or conspire to do the act; and

(c) a person to whom a written notice has been given under paragraph (1)(c) shall, in his statement made on oath or affirmation, furnish and disclose truthfully all information required under the notice which is within his knowledge, or which is available to him, or which is capable of being obtained by him, and shall not fail to furnish or disclose the information on the ground that it tends to incriminate him.

(3) A person to whom an order or a notice is given under subsection (1) shall comply with such order or notice and with the provisions of subsection (2) in relation to the order or notice, notwithstanding the provisions of any written law, whether enacted before or after the commencement of this Act, or of any oath, undertaking or requirement of secrecy, to the contrary, or of any obligation under any contract, agreement of arrangement, whether express or implied, to the contrary.

(4) Where any person discloses any information or produces any property, book, other document, article, or thing, pursuant to subsections (1) and (2), neither the first-mentioned person, nor any other person on whose behalf or direction or as whose agent or employee the first-mentioned person may be acting, shall, on account of such disclosure or production, be liable to any prosecution for any offence under or by virtue of any law, or to any proceeding or claim in any form or of any description by any person under or by virtue of any agreement or arrangement, or otherwise.

(5) An Inspector may seize, take possession of and retain for such duration as he deems necessary, any property, book, other document, article or thing produced before him in the course of an investigation under subsection (1), or search the person who is being examined by him under paragraph (1)(a), or who produces anything to him under paragraph (1)(b), for ascertaining whether anything relevant to the investigation is concealed, upon such person or is otherwise upon such person.

(6) An examination under paragraph (1)(a) shall be reduced into writing by the Inspector and shall be read to and signed by the person being examined, and where such person refuses to sign the record, the Inspector shall endorse on the record under his hand the fact of such refusal and the reasons for such refusal, if any, stated by the person examined.

(7) The record of an examination under paragraph (1)(a), or a written statement on oath or affirmation made pursuant to paragraph (1)(c), or any property, book, other document, article or thing produced under paragraph (1)(b) or in the course of an examination under paragraph (1)(a) or under a written statement on oath or affirmation made pursuant to paragraph (1)(c), shall, notwithstanding any written law or rule of law to the contrary, be admissible in evidence in any proceedings in any court-

(a) for, or in relation to, an offence under this Act; or

(b) for, or in relation to, any other matter under this Act,

regardless whether such proceedings are against the person who was examined, or who produced the property, book, other document, article or thing, or who made the written statement on oath or affirmation, or against any other person.

10F. Specific persons in respect of whom powers of investigation may be exercised.

The powers of investigation conferred by this Act on an Inspector, may be exercised by him against-

(a) any past or present business associate; or

(b) any person who is or was concerned in the control or management, in whole or in part of the affairs,

of the person suspected to have committed an offence under this Act.

10G. Assistance to police or other public officer.

The Controller may on his own initiative, or on the request of an Inspector-

(a) supply to a police officer or any other public officer a copy of any book or other document seized, detained or taken possession of under section 10A or 10B, or of any record of examination under paragraph 10E(l)(a), or of any written statement on oath or affirmation made under paragraph 10E(l)(c), or of any book or other document produced under paragraph 10E(l)(b), or otherwise in the course of any examination under paragraph 10E(l)(a), or under any written statement on oath or affirmation made pursuant to paragraph 10E(l)(c), and such police officer or other public officer may make such use of such copy of such record, statement, book or other document as may be necessary or expedient in relation to the exercise of his powers, the performance of his functions, or the discharge of his duties, in respect of any person; or

(b) allow a police officer or any other public officer to have access to and inspect any property, book, other document, article or thing which had been produced before, or seized, detained or taken possession of, by an Inspector under this Act, and such police or other public officer may make such use of any knowledge gained by such access or inspection as may be necessary or expedient in relation to the exercise of his powers, the performance of his functions, or the discharge of his duties, in respect of any person.

10H. Protection of informers.

(1) Except as provided in subsection (3), no witness in any civil or criminal proceedings shall be obliged or permitted to disclose the name or address of any informer or the substance and nature of the information received from him or to state any matter which may lead to his discovery.

(2) If any books, documents, records or papers which are in evidence or are liable to inspection in any civil or criminal proceedings contain any entry in which any informer is named or described or which might lead to his discovery, the court shall cause all such passages to be concealed from view or to be obliterated so far only as may be necessary to protect the informer from discovery.

(3) If on trial for any offence under this Act the court after full inquiry into the case believes that the informer willfully made in his complaint a material statement which he knew or believed to be false or did not believe to be true, or if in any other proceeding the court is of the opinion that justice cannot be fully done between the parties to the proceeding without the discovery of the informer, it shall be lawful for the court to require the production of the original complaint, if in writing, and permit enquiry, and require full disclosure, concerning the informer.

10I. Authority to act.

An Inspector when acting under this Part shall on demand declare his office and produce to the person against whom he is acting such written authorization as the Controller may direct to be carried by such Inspector.

10J. Limitation on the powers of an Inspector.

No Inspector shall be entitled to exercise any of the powers under this Part without prior written authorization from the Controller.".

22.  New Part V.

The principal Act is amended by inserting before section 11 the following heading:

"PART V

POWERS OF MINISTER".

23.  Amendment of section 11.

Section 11 of the principal Act is amended-

(a) in subsection (1) by inserting after paragraph (c) the following paragraph:

"(ca) certify that the licensed housing developer has abandoned the housing development;";

(b) by inserting after subsection (1) the following subsection:

"(1A) In giving his direction or decision under paragraph (1)(a), (b), (c) or (e), the Minister may specify that any cost and expense reasonably incurred by such persons as may be specified by the Minister in carrying out such direction or decision of the Minister shall be paid from the Housing Development Account of the housing development or from the moneys due to the Account."; and

(c) in subsection (2), by inserting after the words "housing developer" the words "and the purchasers".

24.  New sections 13A and 13B.

The principal Act is amended by inserting after section 13 the following section:

"13A. Controller to report the conduct of an architect or engineer.

Where the Controller is satisfied that the conduct of an architect or engineer of a housing developer has prejudiced the interest of the purchaser of the licensed housing developer, the Controller may report such conduct of the architect or engineer to his respective professional body.

13B. Transfer or assignment of a licence.

No licence or any right to the licence issued to a housing developer under this Act shall be transferred or assigned and any such transfer or assignment shall be void.".

25.  New Part VI.

The principal Act is amended by inserting after section 16 the following Part:

"PART VI

TRIBUNAL FOR HOMEBUYER CLAIMS

16A. Meaning of "homebuyer".

For the purpose of this Part, "homebuyer" means a purchaser and includes a person who has subsequently purchased a housing accommodation from the first purchaser of the housing accommodation.

16B. Establishment of Tribunal for Homebuyer Claims.

A tribunal to be known as the "Tribunal for Homebuyer Claims" is established.

16C. Membership of Tribunal.

(1) The Tribunal shall consist of the following members:

(a) a Chairman and a Deputy Chairman to be appointed by the Minister from amongst members of the Judicial and Legal Service; and

(b) not less than five other members to be appointed by the Minister from amongst persons who are members of the Judicial and Legal Service or advocates and solicitors of the High Court in Malaya and have practised for not less than seven years.

(2) The members referred to in paragraph (1)(b)-

(a) shall hold office for a term not exceeding three years; and

(b) shall be eligible for reappointment upon the expiry of his term of office but shall not be appointed for more than three consecutive terms.

16D. Temporary exercise of functions of Chairman.

Where the Chairman is for any reason unable to perform his functions or during any period of vacancy in the office of the Chairman, the Deputy Chairman shall perform the functions of the Chairman.

16E. Vacation of office.

The office of a member of the Tribunal shall become vacant-

(a) upon the death of the member;

(b) upon the member resigning from such office by giving three months' written notice to the Minister;

(c) upon the expiry of his term of office; or

(d) upon the member ceasing to be a member of the Judicial and Legal Service or an advocate and solicitor of the High Court in Malaya.

16F. Revocation of appointment.

The Minister may revoke the appointment of a member of the Tribunal appointed under paragraph 16C(1)(b)-

(a) if his conduct, whether in connection with his duties as a member of the Tribunal or otherwise, has been such as to bring discredit to the Tribunal;

(b) if he has become incapable of properly carrying out his duties as a member of the Tribunal;

(c) if there has been proved against him, or he has been convicted on, a charge in respect of-

(i) an offence involving fraud, dishonesty or moral turpitude;

(ii) an offence under a law relating to corruption;

(iii) an offence under this Act; or

(iv) any other offence punishable with imprisonment for more than two years;

(d) if he is adjudicated a bankrupt;

(e) if he has been found or declared to be of unsound mind or has otherwise become incapable of managing his affairs; or

(f) if he absents himself from three consecutive sittings of the Tribunal without leave of the Chairman.

16G. Resignation.

A member of the Tribunal appointed under paragraph 16C(1)(b) may at any time resign his office by giving three months' written notice to the Minister.

16H. Filling of vacancy.

Where a member ceases to be a member of the Tribunal, the Minister may appoint another person to fill the vacancy.

16I. Remuneration.

(1) The members of the Tribunal appointed under paragraph 16C(1)(a) shall be paid such fixed allowances and other allowances as the Minister may determine.

(2) The members of the Tribunal appointed under paragraph 16C(1)(b) shall be paid-

(a) a daily sitting allowance during the sitting of the Tribunal; and

(b) such lodging, travelling and subsistence allowances,

as the Minister may determine.

(3) The remuneration provided for in subsections (1) and

(2) shall be charged on the Consolidated Fund.

16J. Secretary to Tribunal and other officers.

(1) There shall be appointed a Secretary to the Tribunal and such number of officers as may be necessary for carrying out the functions of the Tribunal.

(2) The Chairman shall have general control of the officers of the Tribunal.

(3) For the purposes of this Act, the Secretary to the Tribunal shall be deemed to be an officer of the Tribunal.

16K. Sittings of Tribunal.

(1) The jurisdiction of the Tribunal shall be exercised by any of the following persons sitting alone:

(a) the Chairman of the Tribunal;

(b) the Deputy Chairman of the Tribunal; or

(c) any member of the Tribunal determined by the Chairman.

(2) The Tribunal may sit in one or more sittings on such day and at such time and place as the Chairman may determine.

(3) If the person presiding over any proceedings in respect of a claim dies or becomes incapacitated, or is for any other reason unable to complete or dispose of the proceedings, the claim shall be heard afresh by another member of the Tribunal, unless the parties agree that the claim be continued by another member of the Tribunal.

(4) Where the term of appointment of any member of the Tribunal under this section expires during the pendency of any proceedings in respect of a claim, the term of his appointment shall be deemed to be extended until the final disposal of the claim.

16L. Commencement of proceedings.

A homebuyer may lodge with the Tribunal a claim in the prescribed form together with the prescribed fee claiming for any loss suffered or any matter concerning his interests as a homebuyer under this Act.

16M. Jurisdiction of Tribunal.

(1) Subject to sections 16N and 16O, the Tribunal shall have jurisdiction to determine a claim lodged under section 16L where the total amount in respect of which an award of the Tribunal is sought does not exceed twenty-five thousand ringgit.

(2) Subject to subsection (1), a respondent to a claim may raise a debt or liquidated demand as-

(a) a defence; or

(b) a counter-claim.

(3) Where a respondent raises a debt or liquidated demand under subsection (2) and the debt or demand is proved the Tribunal shall-

(a) give effect to the defence; or

(b) hear and determine the counter-claim notwithstanding that the original claim is withdrawn, abandoned or struck out.

(4) Any claim lodged with the Tribunal may include loss or damage of a consequential nature.

16N. Limitation of jurisdiction.

(1) Except as expressly provided under this Act, the Tribunal shall have no jurisdiction in respect of any claim-

(a) for the recovery of land, or any estate or interest in land; and

(b) in which there is a dispute concerning-

(i) the entitlement of any person under a will or settlement, or on intestacy (including partial intestacy);

(ii) goodwill;

(iii) any chose in action; or

(iv) any trade secret or other intellectual property right.

(2) The jurisdiction of the Tribunal shall be limited to a claim that is based on a cause of action arising from the sale and purchase agreement entered into between the homebuyer and the licensed housing developer which is brought by a homebuyer not later than twelve months from the date of issuance of the certificate of fitness for occupation for the housing accommodation or the expiry date of the defects liability period as set out in the sale and purchase agreement.

(3) Notwithstanding subsection (2) no claim shall be affected or defeated on the ground that no sale and purchase agreement has been entered into between the homebuyer and the licensed housing developer at the time when the cause of action accrues if there exists a previous dealing between the homebuyer and the licensed housing developer in respect of the acquisition of the housing accommodation.

(4) Nothing in this section shall be deemed to authorize the Tribunal to deal with a claim arising from personal injury or death.

(5) For the purposes of subsection (1), "land" does not include fixtures.

16O. Extension of jurisdiction by agreement.

(1) Notwithstanding that the amount or value of the subject-matter claimed or in issue exceeds twenty-five thousand ringgit, the Tribunal shall have jurisdiction to hear and determine the claim if the parties have entered into an agreement in writing that the Tribunal shall have jurisdiction to hear and determine the claim.

(2) An agreement may be made under subsection (1)-

(a) before a claim is lodged under section 16L; or

(b) where a claim has been lodged under section 16L, at any time before the Tribunal has recorded an agreed settlement in respect of the claim under subsection 16T(3) or has determined the claim under section 16y, as the case may be.

16P. Abandonment to bring claim within jurisdiction.

(1) A claimant may abandon so much of a claim as exceeds twenty-five thousand ringgit in order to bring the claim within the jurisdiction of the Tribunal.

(2) Where a part of a claim has been abandoned under subsection (1), the Tribunal's record of an agreed settlement under subsection 16T(3) or the Tribunal's award under section 16Y, as the case may be, in relation to the claim shall operate to discharge the person-

(a) who is a party to that agreed settlement; or

(b) against whom the claim is brought and the subsequent award is made,

from liability in respect of the amount so abandoned.

16Q.Cause of action not to be split.

Claims may not be split, nor more than one claim brought, in respect of the same matter against the same party for the purpose of bringing it within the jurisdiction of the Tribunal.

16R. Exclusion of jurisdiction of court.

(1) Where a claim is lodged with the Tribunal and the claim is within the Tribunal's jurisdiction, the issues in dispute in that claim, whether as shown in the initial claim or as emerging in the course of the hearing, shall not be the subject of proceedings between the same parties in any court unless-

(a) the proceedings before the court were commenced before the claim was lodged with the Tribunal; or

(b) the claim before the Tribunal is withdrawn, abandoned or struck out.

(2) Where paragraph (1)(a) applies, the issues in dispute in the claim to which those proceedings relate, whether as shown in the initial claim or emerging in the course of the hearing, shall not be the subject of proceedings between the same parties before the Tribunal unless the claim before the court is withdrawn, abandoned or struck out.

16S. Notice of claim and hearing.

Upon a claim being lodged under section 16L, the Secretary to the Tribunal shall give notice of the details of the day, time and place of hearing in the prescribed form to the claimant and the respondent.

16T. Negotiation for settlement.

(1) The Tribunal shall, as regards every claim within its jurisdiction, assess whether, in all the circumstances, it is appropriate for the Tribunal to assist the parties to negotiate an agreed settlement in relation to the claim.

(2) Without limiting the generality of subsection (1), in making an assessment the Tribunal shall have regard to any factors that, in the opinion of the Tribunal, are likely to impair the ability of either or both of the parties to negotiate an agreed settlement.

(3) Where the parties reach an agreed settlement, the Tribunal shall approve and record the settlement and the settlement shall then take effect as if it were an award of the Tribunal.

(4) Where-

(a) it appears to the Tribunal that it would not be appropriate for it to assist the parties to negotiate an agreed settlement in relation to the claim; or

(b) the parties are unable to reach an agreed settlement in relation to the claim,

the Tribunal shall proceed to determine the dispute.

16U. Right to appear at hearings.

(1) At the hearing of a claim every party shall be entitled to attend and be heard.

(2) 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 one party is subsequently allowed to be represented by an advocate and solicitor then the other party shall also be so entitled.

(3) Subject to subsection (2) but notwithstanding section 37 of the Legal Profession Act 1976 [Act 166]-

(a) a corporation or an unincorporated body of persons may be represented by a full-time paid employee of the corporation or body;

(b) a minor or any other person under a disability may be represented by his next friend or guardian ad item.

(4) Where a party is represented as permitted under subsection (3), the Tribunal may impose such conditions as it considers necessary to ensure that the other party to the proceedings is not substantially disadvantaged.

16V. Proceedings to be public.

All proceedings before the Tribunal shall be open to the public.

16W. Evidence.

(1) The Tribunal may-

(a) procure and receive all such evidence on oath or affirmation, whether written or oral, and examine all such persons as witnesses, as the Tribunal thinks necessary to procure, receive or examine;

(b) require the production before it of books, papers, documents, records and things;

(c) administer such oath, affirmation or statutory declaration as the case may require;

(d) seek and receive such other evidence and make such other inquiries as it thinks fit;

(e) summon the parties to the proceedings or any other person to attend before it to give evidence or to produce any document, records or other thing in his possession or otherwise to assist the Tribunal in its deliberations;

(f) receive expert evidence; and

(g) generally direct and do all such things as may be necessary or expedient for the expeditious determination of the claim.

(2) A summons issued under this section shall be served and enforced as if it were a summons issued by a subordinate court.

16X. Tribunal may act in absence of party.

The Tribunal may hear and determine the claim before it notwithstanding the absence of any party to the proceedings if it is proved to the satisfaction of the Tribunal that a notice of the hearing has been duly served on the absent party.

16Y. Awards of the Tribunal.

(1) The Tribunal shall make its award without delay and, where practicable, within sixty days from the first day the hearing before the Tribunal commences.

(2) An award of the Tribunal under subsection (1) may require one or more of the following:

(a) that a party to the proceedings pay money to any other party;

(b) that the price or other consideration paid by the homebuyer or any other person be refunded to the homebuyer or that person;

(c) that a party comply with the sale and purchase agreement;

(d) that money be awarded to compensate for any loss or damage suffered by the claimant;

(e) that the contract be varied or set aside, wholly or in part;

(f) that costs to or against any party be paid;

(g) that interest be paid on any sum or monetary award at a rate not exceeding eight per centum per annum, unless it has been otherwise agreed between the parties;

(h) that the claim is dismissed.

(3) Nothing in paragraph (2)(d) or (e) shall be deemed to empower the Tribunal to award any damages for any non-pecuniary loss or damage.

16Z. Reference to a Judge of the High Court on a question of law.

(1) Before the Tribunal makes an award under section 16Y, it may, in its discretion, refer to a Judge of the High Court a question of law-

(a) which arose in the course of the proceedings;

(b) which, in the opinion of the Tribunal, is of sufficient importance to merit such reference; and

(c) the determination of which by the Tribunal raises, in the opinion of the Tribunal, sufficient doubt to merit such reference.

(2) If the Tribunal refers any question of law under subsection (1) for the decision of a Judge of the High Court, it shall make its award in conformity with such decision.

(3) A Federal Counsel authorized by the Attorney General for the purpose may appear on behalf of the Tribunal in any proceedings before a Judge of the High Court under this section.

16AA. Reasons for decision.

The Tribunal shall in all proceedings give its reasons for its award in the proceedings.

16AB. Orders and settlement to be recorded in writing.

The Tribunal shall make or cause to be made a written record of the terms of-

(a) every agreed settlement reached by the parties under subsection 16T(3); and

(b) every award made by it under section 16Y.

16AC. Decisions of Tribunal to be final.

(1) Every agreed settlement recorded by the Tribunal under subsection 16T (3) and every award made by the Tribunal under section 16Y-

(a) shall be final and binding on all parties to the proceedings; and

(b) shall be deemed to be an order of a Magistrate's Court and be enforced accordingly by any party to the proceedings;

(2) For the purpose of paragraph (1)(b), the Secretary to the Tribunal shall send a copy of the award made by the Tribunal to the Magistrate's Court having jurisdiction in the place to which the award relates or in the place where the award was made and the Court shall cause the copy to be recorded.

16AD. Criminal penalty for failure to comply.

(1) Any person who fails to comply with an award made by the Tribunal within the period specified therein commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both.

(2) In the case of a continuing offence, the offender shall, in addition to the penalties under subsection (1), be liable to a fine not exceeding one thousand ringgit for each day or part of a day during which the offence continues after conviction.

16AE. Procedure where no provision is made.

Subject to this Act and to any regulations, the Tribunal shall adopt such procedure as it thinks fit and proper.

16AF. Want of form.

No proceedings of the Tribunal or award or other document of the Tribunal shall be set aside or quashed for want of form.

16AG. Disposal of documents, etc.

(1) The Tribunal may, at the conclusion of the proceedings before it, order that any document, record, material or other property produced during the proceedings be delivered to the rightful owner or be disposed of in such manner as it thinks fit.

(2) Where no person has taken delivery of the document, record, material or other property referred to in subsection (1) after a period of six months, the ownership in the document, record, material or other property shall be deemed to have passed to and become vested in the Government.

16AH. Act or omission done in good faith.

No action or suit shall be instituted or maintained in any court against-

(a) the Tribunal;

(b) a member of the Tribunal; or

(c) a person authorized to act for or on behalf of the Tribunal,

for any act or omission done in good faith in the performance of its or his functions and the exercise of its or his powers under this Act.

16AI. Regulations in respect of the Tribunal.

(1) The Minister may make such regulations as may be necessary or expedient in respect of the Tribunal.

(2) Without prejudice to the generality of subsection (1), regulations may be made for-

(a) prescribing the responsibilities of members of the Tribunal;

(b) prescribing the procedure of the Tribunal;

(c) prescribing the forms to be used in proceedings under this Part;

(d) prescribing and imposing fees and providing for the manner for collecting and disbursing such fees;

(e) prescribing anything required to be prescribed under this Part.".

26.  New Part VII.

The principal Act is amended by inserting before section 17 the following heading:

"PART VII

MISCELLANEOUS".

27.  Amendment of section 18.

Section 18 of the principal Act is amended-

(a) by substituting for the word "ten" the word "fifty"; and

(b) by substituting for the word "one" the word "five".

28.  Amendment of section 19.

Section 19 of the principal Act is amended-

(a) by deleting paragraph (b);

(b) by substituting for the word "ten" the word "fifty"; and

(c) by substituting for the words "a further fine of' the words "a further fine not exceeding".

29.  Amendment of section 20.

Section 20 of the principal Act is amended by substituting for the word "ten" the word "fifty".

30.  Amendment of section 21.

Section 21 of the principal Act is amended by substituting for the word "ten" the word "fifty".

31.  Amendment of section 22.

Subsection 22(1) of the principal Act is amended by substituting for the word "ten" the word "fifty".

32.  New sections 22A, 22B and 22C.

(1) The principal Act is amended by inserting after section 22 the following sections:

"22A. Public servants and public officers.

The Controller, every Deputy Controller, every Inspector and all members and officers of the Tribunal shall be deemed to be public servants for the purposes of the Penal Code [Act 574], and to be public officers for the purposes of the Criminal Procedure Code or any other written law which the Minister may from time to time prescribe.

22B. Application of Public Authorities Protection Act 1948.

The Public Authorities Protection Act 1948 [Act 198] shall apply to any action, suit, prosecution or proceedings against the Minister, Controller, any Deputy Controller, any Inspector, the Tribunal or any member or officer of the Tribunal in respect of any act, neglect or default done or committed by him in such capacity.

22C. Right to initiate and maintain actions.

Notwithstanding anything contained in any written law or any rule of law, a homebuyer as defined in section 16A shall be entitled on his own volition and in his own name to initiate, commence, institute and maintain in any court or tribunal any action, suit or proceeding against a housing developer or any other person in respect of any matter arising out of the sale and purchase agreement entered into between the purchaser and that housing developer unless a contrary intention is expressed in any agreement, assignment or charge between the homebuyer and his financier in which case the prior written consent of his financier must first be obtained before he exercises any of his rights under this section.".

(2) Every agreement, assignment or charge lawfully entered into between a purchaser and his financier before the appointed date shall be subject to, and the parties thereto shall be entitled to the benefits of, the new section 22C of the principal Act as inserted into the principal Act by subsection (1).

33.  New section 23A.

The principal Act is amended by inserting after section 23 the following section:

"23A. Power to compound.

(1) The Controller may compound any offence against this Act or any regulations made under this Act which has been prescribed under paragraph 24(2)(i) to be a compoundable offence by collecting from the person reasonably suspected of having committed the offence a sum of money not exceeding the maximum fine prescribed for that offence.

(2) Where an offence has been compounded under subsection (1), no prosecution shall thereafter be instituted in respect of the compounded offence.

(3) Any moneys paid to the Controller under this section shall be paid into and form part of the Consolidated Fund.".

34.  Amendment of section 24.

Subsection 24(2) of the principal Act is amended-

(a) by substituting for paragraph (f) the following paragraph:

"(f) prescribe the fees which are payable under this Act;";

(b) by deleting the word "and" at the end of paragraph (g);

(c) by substituting for the full stop at the end of paragraph (h) a semicolon; and

(d) by inserting after paragraph (h) the following paragraphs:

"(i) prescribe offences which may be compounded and the forms to be used in and the method and the procedure for compounding such offences; and

(j) provide for any matter which under this Act is required or permitted to be prescribed or which is necessary or expedient to be prescribed to give effect to this Act.".

35.  Savings and transitional.

(1) The provisions of the principal Act as amended by this Act, except Part VI and sections 22, 23 and 24 in so far as they relate to an offence under section 16AD of this Act, shall not apply to any housing development engaged in, carried on, undertaken or caused to be undertaken under the principal Act by-

(a) a society registered or incorporated under any written law relating to co-operative societies; or

(b) any body or agency established and incorporated by statute and under the control of the Federal Government or the Government of any State,

as the case may be, if housing accommodation had been offered for sale.

(2) For the purpose of subsection (1), the term "licensed housing developer" in Part VI of the principal Act shall be deemed to include a society, body or agency referred to in that subsection.

(3) Any such society, body or agency as is referred to in paragraphs (1)(a) and (b) engaged in, carrying on, undertaking or causing to be undertaken any housing development where housing accommodation had not been offered for sale before the appointed date shall, not later than six months from the appointed date, apply to the Controller for a licence under the principal Act.

(4) Pending the decision by the Controller on the application for a licence made under subsection (3), the applicant shall be deemed to be licensed under this Act.

 

Main   Forum  FAQ  Useful Links  Sample Letters  Tribunal  

National House Buyers Association (HBA)

No, 31, Level 3, Jalan Barat, Off Jalan Imbi, 55100, Kuala Lumpur, Malaysia
Tel: 03-21422225 | 012-3345 676 Fax: 03-22601803 Email: info@hba.org.my

2001-2009, National House Buyers Association of Malaysia. All Rights Reserved.