05/09/2003 By Arion Yeow
Housing tribunal can't decide on S&Ps signed before Dec 1
Kuala Lumpur: Housebuyers locked in legal conflict with developers are back where they started because of a High Court decision in a landmark case yesterday.
The decision puts paid to 2,209 cases that had been filed with the Tribunal for Homebuyer Claims, for which 438 had been settled. Decisions on these cases are now null and void.
Justice Datuk Mohd Rauf Shariff ruled that the tribunal cannot hear cases involving sale and purchase agreements (S&Ps) signed before Dec 1 last year, when the tribunal was formed under the Housing Development (Control and Licensing) (Amendment) Act.
As of July 3, all 438 cases settled by the tribunal involved S&Ps signed before last Dec 1. Nearly RM2.4 million in compensation was awarded to the claimants.
Mohd Rauf had ruled for developers Puncak Dana Sdn Bhd and Westcourt Corp Sdn Bhd which applied for a judicial review on awards to six housebuyers for late delivery and failure to complete common facilities.
Lee Hishamuddin and Sri Ram & Co represented the developers while Umi Kaltum from the AG's Chambers represented the tribunal. Fifteen lawyers working pro bono represented the House Buyers Association (HBA) and 50 buyers of the project.
Mohd Rauf said to permit the tribunal to exercise its jurisdiction over S&Ps entered into before Dec 1, the court needed to allow the retrospective criminal laws.
"This is prohibited by Article 7 of the Federal Constitution," he said.
He made the decision after ruling that Section 16N(2) of the Housing Development Act could not be read to confer retrospective jurisdiction on the tribunal or to enlarge its jurisdiction.
He said if Parliament had intended the tribunal to have retrospective jurisdiction, the Act would have said so.
The decision shocked the HBA. Its secretary-general, Chang Kim Loong, said the tribunal would be useless for two or three years until problems surfaced.
"Thousands of housebuyers are unable to seek redress through the court due to financial constraints. The tribunal was their only hope," he said, adding that the law should be amended to allow the tribunal to hear all cases.