Tribunal on trial?
Published in NST-PROP
A Buyer Watch Article by National House Buyers
Just a few months after the
Housing Tribunal was conceived on Dec 1, 2002 under Section 16 of
the Housing Development (Control & Licensing) Act 1966, certain
parties are questioning its right to hear cases before it was
How and why has this come about? Of course, we at the HBA are of the
opinion that there is nothing wrong or unlawful for the Tribunal to
do this. But before tackling the issue, let’s revisit how and why
the body came about.
The Housing Tribunal is a form of Alternative Dispute Resolution (ADR)
for the housing industry. Specifically tailored to hear disputes
arising from housebuyers against their developers which they feel
have short-changed them, the Tribunal, for all intents and purposes,
acts as a civil Court. However, its focus is only on issues between
housebuyers and housing developers, and isn’t saddled with other
aspects of litigation.
It is also designed to be a less costly and speedier avenue compared
to the usual civil Court process. The cost efficiency comes about
because no lawyer is allowed to represent either party and Court
charges are minimal (the cost to file a claim is RM10). As for its
relative swiftness, it is because the Tribunal only handles
arguments arising from the Sale and Purchase Agreements (SPA) signed
between a developer and an individual purchaser. It does not matter
whether the purchaser is the one who made the deal with the
developer directly, or whether he or she made it with the first
buyer (who bought it from the developer).
The Tribunal’s inception couldn’t have been more timely, especially
since the number of aggrieved housebuyers (who have become
financially spent after making their purchases) has increased, as
has the number of cases in dispute. If this state of affairs was not
addressed, it would have worsened the backlog of cases waiting to be
heard in the civil Courts.
This prompted Parliament to promptly enact the Housing Tribunal, and
recently, the Bar Council mooted that arbitration be a form of ADR,
thus paving the way for other industries to possess similar judicial
However, beneficial though the Tribunal is, certain parties still
want to challenge its legal right to hear cases where the SPAs were
executed prior to its formal enactment on Dec 1, 2002.
The question that needs to be asked is: “Would the interest of any
party be unfairly jeopardised if a case was heard in the Tribunal
instead of in a civil Court?”
We think not. The Tribunal will, like the civil Court, only consider
the substance of an SPA taking into account the clauses in the old
Housing Developers’ Act (in force prior to Dec 1, 2002), and then
make its judgement based on that piece of legislation.
Thus, it is the content of the SPA that matters, and not whether it
was executed before or after the Tribunal was incepted.
It should be seen in this light; not from some parties’ claim that
the law cannot be retrospectively implemented. There is certainly no
retrospective implementation of the law - it is a situation where
Parliament, realising the predicament faced by aggrieved
housebuyers, has seen it fit that a speedier and less costly
platform for ADR be created.
Hence, any opposition or attempt to frustrate this noble act of
Parliament only reflects a guilty conscience, and such objections
must be promptly removed.
The National House Buyers Association is a non-profit,
non-governmental, non-political organisation manned by volunteers.
Our website is www.hba.org.my. E-mail: email@example.com