Federal Court rules in favour of house buyers
15/06/2004 NST By Rosnazura Idrus

The Federal Court today affirmed the Court of Appeal decision that the Tribunal for Homebuyer Claims has jurisdiction to hear and adjudicate cases where the sale and purchase agreements were signed before Dec 1, 2002. The decision announced by Chief Justice Tan Sri Ahmad Fairuz Sheikh Abdul Halim, at the end of an appeal by developer Westcourt Corporation Sdn Bhd, was met with an unusual applause from house buyers and National House Buyers Association members seated at the public gallery.

With this ruling, the tribunal can continue to hear complaints by house buyers against developers and hand down awards, regardless on when the sale and purchase was entered into.

Ahmad Fairuz, sitting with Federal Court judge Datuk Pajan Singh Gill and Court of Appeal judge Datuk S. Augustine Paul, said the court was of the opinion that Section 16AD in the amended Housing Development (Control and Licensing) Act 1966, which was the centre of contention in the appeal, was of no relevance to the jurisdiction of the tribunal.

(Section 16AD, the penalty section of the Act, provides that any person who fails to comply with an award made by the tribunal within the period specified, commits an offence and is liable to a fine not more than RM5,000 or jail up to two years or both.)

Ahmad Fairuz also said that Section 16AD did not violate Article 7 of the Federal Constitution, which prohibited retrospective criminal law.

The decision today also marked the closing of the dispute over the jurisdiction of the tribunal.

Westcourt Corporation Sdn Bhd was appealing against the Court of Appeal decision of Dec 18 last year which overturned a High Court decision on Sept 4.

The company, together with another company Puncakdana Sdn Bhd won their judicial review application at the High Court, where the judge ruled that the Tribunal had no jurisdiction to hear or decide cases prior to Dec 1, 2002, when it was formed.

Earlier, counsel Lambert Rasa-Ratnam, for Westcourt, contended that permitting the tribunal to exercise jurisdiction over sale and purchase entered into before Dec 1, 2002 would allow retrospective criminal law.

He said prior to the amendment of the Act, breach of a sale and purchase agreement would only entail civil proceedings. With the amendment, he said, such breach could give rise to a criminal offence.

Attorney-General Tan Sri Abdul Gani Patail said it was not possible for Section 16AD to operate retrospectively.

"The express wording of Section 16AD specifically deals with the non-compliance of the award and not the breach of the sale and purchase agreement," he said.

House buyer Ken Lee Seng Huat, 36, who is also Bandar Mahkota Cheras Residents Association pro-tem committee chairman, when met outside the court expressed his satisfaction over the decision.

"With the decision today, aggrieved house buyers need not engage lawyers to fight their cases. They can directly go to the tribunal to present their cases," he said.

Lee was one of the house buyers in Bandar Mahkota Cheras who had filed their cases with the tribunal for late delivery.

Another house buyer Chan Yin Peng, 29, whose case has been heard, said she had received part of her RM14,000 award for late delivery. She received her house 10 months late.

Tribunal secretary Wan Husin Wan Hassan, who was also present in court, said the tribunal had four sittings a day, hearing between eight and 10 cases daily.

He said the tribunal suspended its operation after the High Court decision but resumed after the Court of Appeal overturned the decision. Now there were 6,000 cases pending hearing.

Housing and Local Government Minister Datuk Seri Ong Ka Ting in an immediate response to the court’s decision said the ministry would take stern action to prosecute developers who did not honour the awards made by the tribunal and they would not be given any notice before action was taken.