Judicial review – Delayed vacant possession position – Liquidated ascertained damages calculation – Scope of powers and duties of tribunal – Sale and purchase agreement – Housing Development (Control and Licensing) Act 1966 (HDA 1966)– Housing Development (Control and Licensing) Regulation 1989 (HDR 1989) – Housing Development (Tribunal for Homebuyer Claims) Regulations 2002 (HDR 2002)

GJH Avenue Sdn Bhd v Tribunal Tuntutan Pembeli Rumah, Kementerian Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan and 2 Ors.
Civil Appeal No M-01(A)-388-10/2017, Court of Appeal

see the grounds of judgment here

Facts The appellant is a housing developer of the bungalow (‘the said unit’) purchased by the second and third respondent. The first respondent is a tribunal established under HDA 1966, with powers and duties under HDR 1989 and HDR 2002. The sale and purchase agreement (SPA) for the said unit was signed between the parties and notice of delivery of vacant possession was issued the following day. Clause 22 of the SPA requires vacant possession to be delivered within 24 months from the date of the agreement. As the SPA was signed on 13 February 2012, and the vacant possession was issued on 14 February 2014, the appellant took a stand that they were only two (2) days late in delivering the vacant possession of the said unit. The appellant had made payment for damages for late delivery of vacant possession of the said unit and this was accepted by the second and third respondents without any dispute or protest. Nevertheless, after two and a half years, both second and third respondents filed their claim at the first respondent’s office for Liquidated Ascertained Damages (LAD) against the appellant for a higher sum, and succeeded. Dissatisfied with the award, the appellant filed the judicial review (JR) application at the High Court at Melaka to quash the entire decision of the first respondent but was dismissed. Hence, this appeal.

Issues The main issue is whether the first respondent had contravened regulation 11
[1] of HDR 1989 and had committed a statutory breach which tantamount to an error of law and/or had acted ultra vires the HDA 1966 and the HDR 1989 and as a consequence thereof, the award was tainted with illegality, when granting the first award to the respondent.

Held In allowing the appeal, the Court of Appeal overturned the decision of the High Court, stating that since the provision of Clause 22
[2] of the SPA is clear and unambiguous, the tribunal should not have been roaming over the authorities to interpret it but to simply apply the provision as it is. Thus, the first respondent had acted beyond the scope of its lawful powers in making the award. This contravened regulation 11 of the HDR 1989 and was a statutory breach which tantamount to an error of law, and was ultra vires the HDA 1966 and the HDR 1989. Therefore, the award was tainted with illegality.

[2] Time for delivery of vacant possession…..”