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Case Update: Homebuyer Claims Tribunal can hear split claims for distinct matters

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31 March 2023

PROPERTY LAW
Tribunal For Homebuyer Claims – Separate Claims – Different & Distinct Matters – Exceeds Tribunal Jurisdiction – Appeal

Remeggious Krishnan v SKS Southern Sdn Bhd (dahulu dikenali sebagai MB Builders Sdn Bhd)
[2023] 1 LNS 362 | Federal Court
- see the grounds of judgment here

Facts Remeggious Krishnan (the ‘Appellant’) agreed to purchase a property unit from SKS Southern Sdn Bhd (the ‘Respondent’), who was the developer of a residential project in Johor Bharu. The relevant clause in the Sale & Purchase Agreement (‘SPA’) stipulated that the time for delivery of vacant possession of the property was 36 months from the date of the SPA, namely on or before 6 February 2020. The manner of delivery of vacant possession under the SPA included the connection to water and electricity supply. In April 2018, the Respondent informed the Appellant of its readiness to deliver vacant possession, however it was delivered with no electricity connection to the Property. In December 2018, the Appellant filed two separate claims with the Tribunal for Homebuyer Claims (‘Tribunal’), namely, a ‘Non-Technical Claim’ for the Respondent’s breach of the manner of delivery of vacant possession and a ‘Technical Claim’ for the Respondent’s failure to provide adequate ceiling height and protruding beams and pillars. On its own, the claims did not exceed the Tribunal’s monetary jurisdiction, however the sum of both the claims did. After hearing the ‘Non-Technical Claim’, the Tribunal granted damages to the Appellant for the delay in the connection of the electricity. Aggrieved with this decision, the Respondent filed for a Judicial Review to obtain a Certiorari to quash the Tribunal’s decision. The Respondent argued, amongst others, that the Appellant had filed two separate claims with the Tribunal which was in contradiction with s.16M(1) and s.16Q of the Housing Development (Control and Licensing) Act 1966 (‘HDA 1966’). The High Court held that the split claims were for different matters and dismissed the Respondent’s application. Aggrieved once again, the Respondent appealed to the Court of Appeal which ultimately held that there was no issue with filing spilt claims, so long as the total amount of both claims did not exceed the monetary jurisdiction of the Tribunal. The Court of Appeal granted the appeal. Hence, this appeal at the Federal Court.

Issues 1. Whether the filing of two separate claims involving different matters in respect of the same property was contrary to s.16M and s.16Q of the HDA 1966; and
2. Whether it was appropriate to award damages for the non-connection of electricity to the said Property?

Held In allowing the appeal, the Federal Court held that the words “same matter” in s.16Q of the HDA 1966 can only mean the same issue or type of claim and not the same property as decided by the Court of Appeal. The Federal Court agreed with the position of High Court that there were two different matters in the present case, i.e. one was for technical matter and the other was for non-technical matter. As such, s.16Q of the HDA 1966 was inoperative in the present case. In respect to the monetary jurisdiction of the Tribunal, the Federal Court held that s.16M does not limit the Appellant's two separate and distinct claims to a combined amount lesser than RM50,000.00. As long as each of the Appellant’s claims in respect of different and distinct matters does not exceed the monetary jurisdiction of the Tribunal, the Appellant was not in violation of s.16M of the HDA 1966. Therefore, since both of the Appellant’s claims were grounded on different and distinct matters and each of the Appellant’s claims was well within the jurisdiction of the Tribunal, the Federal Court was in agreement with the reasoning of the High Court. For the Second Issue, the Federal Court, after having gone through the facts of the case, held that there was an obligation on the developer to provide actual supply of water and electricity to the Property. The Federal Court established that the time frame for delivery of vacant possession was quite separate from the manner of delivery of vacant possession. So even though the Respondent was still within the time frame for delivery of vacant possession, the Respondent was nevertheless, in breach of Clause 27 of the SPA as the delivery of vacant possession was invalid since there was no electricity supply connected at the time. In conclusion, the appeal was allowed and the order of the Court of Appeal was set aside.

Zul Rafique & Partners
{31 March 2023}

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