A-G to appeal ruling on home buyer's tribunal

NST 06/09/2003 By K.T. Chelvi

Kuala Lumpur, Fri. - The Government would be appealing against the decision of the High Court which ruled that the Tribunal for Home Buyer's Claim did not have the jurisdiction to hear matters arising out of a sale and purchase agreement (S&P) signed before December 2002.

Housing and Local Government Minister Datuk Seri Ong Ka Ting said in a statement the Attorney-General would represent the government during the appeal.

"I have discussed the matter with him and he has assured me his personal attention to this appeal," said Ong.

He also added that the government would be seeking an early date for the hearing of the appeal.

"The tribunal was established to serve the best interest of the home buyers in accordance with the law.

"And the Government will no doubt explore every avenue to ensure that the actual purpose for the setting up the tribunal will be served."

He reminded the developers that there were existing contractual obligations they would have to fulfil, the moment they entered into an agreement with the purchasers.

"They should not be compelled to perform their obligations only when brought to the tribunal or a court of law."

Yesterday's High Court ruling left a few thousand buyers who had filed their cases with the Tribunal in limbo.

As of July 3, this year, a total of 2,209 cases had been filed with the tribunal, of which 438 had been settled and a total of RM2.4 million in compensation had been awarded to home buyers.

According to sources, an average of 50 claims are filed with the tribunal since it came into effect.

This would mean that to date, there would be more than 5,000 cases pending.

The ruling too made all the awards by the tribunal invalid and unenforceable.

Judge Md Raus Sharif had said there was no clear indication in the Housing Development (Control and Licensing) Amendment Act 2002 for a retrospective application.

"If it was true that Parliament intended the tribunal to have retrospective jurisdiction over S&P agreements entered before the Amendment Act came into force, it would have said so in clear words," he said in his 15-page judgment.

Md Raus also pointed out that the penal section of the amendment Act was unconstitutional by virtue of Article 7 of the Federal Constitution, which prohibits retrospective criminal laws except in certain cases.

Under the Act, non-compliance with the tribunal award was punishable by a maximum fine of RM5,000 or two years jail or both as well as an additional penalty of a maximum fine of RM1,000 for each day or a part of the day during which the offence continues.

Universiti Malaya Law Professor Gurdial Singh Nijar said there were two factors that should be looked into - the amendment to the process of recovery and the addition of criminal liability on developers.

As regards the former, Gurdial said the tribunal was merely a forum to expedite the process of recovery by the buyers.

"It is procedural amendment which can be retrospective, especially when there are no changes to the preexisting rights and obligations of developers," said Gurdial.

The obligations of developers under the agreement; for example, the payment of liquidated damages for late delivery remains the same even after the amendment of the Act.

However, he said the judge could not be faulted on his decision with regard to criminal laibility.

"It is a cardinal principle of law that penal sanctions cannot be made retrospective."

He nevertheless stated that the judge could have severed the award made by the tribunal from the penal provisions of the Act.

This way, the awards by the tribunal would still stand, he added.

"In doing so a balance could be reached, in protecting the rights of both the buyers and developers," he said.

Real Estate and Housing Developers' Association's (REHDA) president Datuk Jeffrey Ng said the High Court's decision in no way affected the right of the home buyers before Dec 1 2002, to seek legal redress in the normal civil courts.