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Case Update: Minister empowered to regulate and prohibit conditions and terms of any contract between licensed housing developer and purchaser

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15 February 2022

ADMINISTRATIVE LAW
Judicial Review – Appeal – Decision of Minister of Urban Wellbeing, Housing and Local Government – Extension of time – Aggrieved party – Housing Development (Control and Licensing) Regulations 1989 – Housing Development (Control and Licensing) Act 1966

Bludream City Development Sdn Bhd v Kong Thye & Ors and Other Appeals
[2022] CLJ JT (2) | Court of Appeal
- see the grounds of judgment here

Facts The Purchasers (‘Respondents’) were buyers of units of service apartments developed by Bluedream City Sdn Bhd (‘Appellant’). The Controller of Housing had granted the Appellant a six-month extension, from a contractual period of 36 months from the date of signing of the sale and purchase agreement to 42 months, for the Appellant to complete the housing development. The developer then made a second application flowing from the first extension for completing the units to 59 months as, throughout the period of 17-months stop work order (‘SWO’), no work could be done. The Controller allowed the Appellant’s second application in part and allowed an extension from 42 months to 54 months but only for the unsold units. As for the sold units, the Appellant would have to enter into a supplementary agreement with the Respondents. The Appellant then appealed to the Minister of Urban Wellbeing, Housing and Local Government. The Minister agreed to amend Schedule H of the Regulations to extend the time period to complete the units. The Minister then granted an extension of time of 17 months. The Respondents proceeded to commence a judicial review application at the High Court, challenging the Minister’s decision. The High Court allowed the application. Hence, this present appeal.

Issue 1. Whether the Minister's decision was valid?
2. Whether the Minister's decision ought to be set aside for procedural impropriety in that there was a breach of natural justice when the purchasers were not heard?

Held In allowing the appeal, the learned YA Dato' Lee Swee Seng in delivering the judgment of the court held that the there was no basis for the reading in to the case of Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals by the High Court as the decision in Ang Ming Lee to extend time to complete the units was made by the Controller and not the Minister. In this case however, it was the Minister that made the decision to extend time. The material facts were poles apart therefore the proposition of law made in one case could not be transported into a different factual matrix especially when the decision maker was different. Further, the Court of Appeal held that there was no express requirement of a right to be heard that must be given to the Respondents. What was important was that the Minister must act fairly, taking into consideration that the Respondents were not obliged to consent to any extension of time implored by the Appellants. In conclusion, the fact that the Controller of Housing has no power to make a decision under the Housing Development (Control and Licensing) Regulations 1989 does not strip away the power of the Minister to make a decision in an appeal. The Minister is empowered, under s. 24(2)(e) of the Housing Development (Control and Licensing) Act 1966 to 'regulate and prohibit the conditions and terms of any contract' between a licensed housing developer and a purchaser. Hence, the appeals were allowed and the decision of the High Court was set aside.

Zul Rafique & Partners
{15 February 2022}

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