Court agrees with developers
NST 05/09/2003 By R. Sittamparam
KUALA LUMPUR, Sept 4: The High Court, in a landmark decision today, allowed applications for judicial review by two housing developers against awards made by the Tribunal For Homebuyer Claims in favour of six housebuyers.
Judge Datuk Md Raus Sharif ruled that the Tribunal had no jurisdiction to hear and decide cases where the sale and purchase agreement (SPA) was entered before Dec 1 last year, when the tribunal was formed.
Puncakdana Sdn Bhd had sought orders to quash the awards given to six of the 50 homebuyers who had complained to the tribunal of late delivery of their houses and failure to complete the common facilities.
The company's application was heard together with another similar application by Westcourt Corp Sdn Bhd against the tribunal and two housebuyers, as a test case.
Another developer, Fadason Holdings Sdn Bhd has also applied for judicial review against the tribunal and 39 housebuyers and hearing has been fixed in the same court.
Md Raus, who delivered a 15-page written judgment, said to permit the tribunal to exercise its jurisdiction over the SPA entered into before Dec 1, last year was to allow retrospective criminal laws, which was prohibited by Article 7 of the Federal Constitution.
The judge also said that as of July 3 this year, a total of 2,209 cases had been filed with the tribunal of which 438 had been settled.
The tribunal had also awarded RM2,396,537.73 in compensation to homebuyers.
He also noted that all these cases involved SPAs signed before Dec 1, last year.
In their applications, Puncakdana and Westcourt claimed that the Housing Development (Control and Licensing) Act 1966 does not expressly provide for the retrospective effect.
Therefore, they argued that the tribunal could not hear and determine cases arising from SPA signed before Dec 1 last year.
Among others, the developers had sought a declaration that the tribunal had no jurisdiction to hear and determine the claims lodged by the housebuyers and that the awards were invalid, ultra vires and of no effect.
They also sought an order to stop the tribunal from proceeding with hearing and determining the claims by other housebuyers, costs and other relief deemed fit by the court.
Raus said: "I am of the view that the amendments made to the Housing Development (Control and Licensing) Act 1966 that established the tribunal, if applied retrospectively would affect the substantive rights of both applicants.
"I also find there is no clear indication in the Housing Developers (Control and Licensing) Amendment Act 2002 for a retrospective application of Part IV (of the Amendment Act) which established the tribunal." Md Raus said Section 16N(2) of the Amendment Act could not be read to confer retrospective jurisdiction on the tribunal or to enlarge the jurisdiction of the tribunal.
Section 16N(2) reads: "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 12 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 his sale and purchase agreement".
The judge said Section 16N did not deal with the question of retrospectivity but served to limit the jurisdiction of the tribunal.
"This was indicated by the heading of the section — Limitation of jurisdiction.
"If it is true that Parliament intended the tribunal to have retrospective jurisdiction over sale and purchase agreements entered before the Amendment Act came into force, it would have said so in clear words.
"But there is no indication in section 16N(2) or other provisions of Part VI of the Amendment Act that Parliament intended the amendments establishing the tribunal to affect sale and purchase agreements entered before Dec 1, 2002," he added.
Md Raus also said section 16N(2) could not be interpreted to operate retrospectively because of the existence of section 16AD which made non-compliance of the tribunal's award a criminal offence.
Non-compliance with the award is punishable by a maximum fine of RM5,000 or two years jail or both. In the case of continuing offence, there would be an additional penalty of a maximum fine of RM1,000 for each day or part of a day during which the offence continues.
"Section 16AD clearly exposed both applicants not only to civil liability but also to a criminal liability," the judge said.
"This affects their substantive rights if section 16N is to be construed to operate retrospectively because at the time of sale and purchase agreement was entered into, any breach of agreement only had civil consequences."
Meanwhile National House Buyers Association (NHBA) secretary general, Chang Kim Loong, who was present today, expressed shock over the court's decision.
He said the NHBA will appeal against the decision in the higher courts and urge the Ministry of Housing to amend the amendment act.
This should give the Act a retrospective effect and for the tribunal to accept cases regardless of when the SPA was signed.
Housebuyer, operations director Bernard Chin, who was awarded RM22,745 by the tribunal recently, said he was grossly disappointed with the court's decision. |
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