Housebuyers' cheer

19/12/2003 The Star By Chelsea L.Y Ng

Court of Appeal reinstates awards given by claims tribunal

PUTRAJAYA: Housebuyers who bought their units before Dec 1 last year can once again go to the Homebuyer Claims Tribunal to settle any dispute they have with developers following a Court of Appeal decision yesterday.

The appellate court set aside a High Court order which declared that the tribunal did not have the jurisdiction to hear claims on properties purchased before the amended Housing Development (Control and Licensing) Act 1996 which came into effect on that date.

Justice Richard Malanjum, sitting with Justices Hashim Yusoff and Tengku Baharudin Shah Tengku Mahmud, made the ruling to the delight of a courtroom packed with some 50 housebuyers who had lost their case in the High Court three months ago.

The judges reinstated all the awards handed down by the tribunal in several cases involving properties bought before Dec 1 last year.

”We are unanimous in our decision that the tribunal has the jurisdiction to hear the cases.

“The question of retrospectivity of Section 16AD of the Act does not arise. Nor that any award given has any retrospective effect,” Justice Malanjum said before allowing the housebuyers’ appeal.

The judges did not make any order as to costs because all parties had agreed from the outset to bear their own costs.

Justice Malanjum said that the Bench would give its grounds for the decision “prospectively” just seconds before a lawyer for one of the developers, Puncakdana Sdn Bhd, stood up to inform that he had received instructions to appeal.

The lawyer, Sree Harry, wanted to make a verbal application for the court’s judgment to be stayed but Justice Malanjum told him to file proper applications for the stay order and leave to appeal so that a date could be set for a panel to hear the matter.

On Sept 4, the Kuala Lumpur High Court ruled in the test case of claims against Puncakdana and Westcourt Corp Sdn Bhd, that the tribunal had no jurisdiction to adjudicate cases in which the sale and purchase agreements were entered into before Dec 1, 2002.

In allowing a judicial review sought by the developers, High Court Justice Md Raus Sharif ruled the award handed down by the tribunal was invalid.

He said that the court would be allowing retrospective criminal laws – which is prohibited by Article 7 of the Federal Constitution – if it permits the tribunal to exercise its jurisdiction over S&P agreements signed before Dec 1, 2002.

Earlier yesterday, in arguing the case for the tribunal, Attorney-General Tan Sri Abdul Gani Patail said the date referred to in the Act was for non-compliance of the awards handed down by the tribunal and not the effective date of the S&Ps.

“We are talking about non-compliance of terms in the awards handed down by the tribunal after Dec 1, 2002, which amounts to an offence.

“We are not talking about breach of contract in relation to the S&Ps,” he said.

”The aim of the amendment was to provide an alternative forum for housebuyers and developers to solve disputes involving RM25,000 and below.

“The creation of the tribunal does not take away anyone’s rights. It is kind of like a social legislation to protect homebuyers but at the same time it does not take away the developers' rights as they could ask for judicial review,” said Gani.

He said the tribunal was established to provide a cheaper alternative to those who could not afford high litigation costs in civil actions.

Lambert Rasa Ratnam, counsel for developer Westcourt Corp, agreed that the retrospective clause was absent from the Act.

He said that could only mean that Parliament never intended to allow the amendment to govern earlier cases because it would “affect the substantive rights of the parties.”