PUNCAKDANA SDN BHD V. TRIBUNAL TUNTUTAN
PEMBELI RUMAH & ORS
HIGH COURT MALAYA, KUALA LUMPUR
[NO: R1-25-53-2003]
RAUS SHARIF J
4 SEPTEMBER 2003
JUDGMENT
Raus Sharif J:
These two applications,
RI-25-58-2003 and RI-25-53-2003, with the agreement of all parties were
heard together. Both applicants are licensed housing developers. In their
applications for an order of certiorarito quash the awards of the
Tribunal for Homebuyers Claims (the tribunal) the applicants raised a common
legal issue, that is whether or not the tribunal has the jurisdiction to
hear and adjudicate on cases where the sale and purchase agreement which was
entered before 1 December 2002.
The tribunal had been
established by the amendments made to the Housing Development (Control and
Licensing) Act 1996 ("the Principal Act") vide the Housing Developers
(Control and Licensing) (Amendment) Act 2002 ("the Amendment Act"). The
Amendment Act had been assented to on 23 January, 2002 and subsequently was
brought into force on 1 December 2002.
Part VI of the Amendment
Act established the Tribunal. Section 16M has set out the jurisdiction of
the Tribunal which provide as follows:
16M (1) Subject to
sections 16N and 16O, the Tribunal shall have the jurisdiction to
determine a claim lodged under section 16L, where the total amount in
respect of which an award of the Tribunal is sought does not exceed
twenty-five thousand ringgit.
(2) Subject to
subsection (1), respondent to a claim may raise a debt or liquidated
demand as:
(a) a defense; or
(b) a counter claim.
(3) Where a respondent
raises a debt or liquidated demand under subsection (2) and the debt or
demand is proved the Tribunal shall:
(a) give effect to
the defense; or
(b) hear and
determine the counter-claim notwithstanding that the original claim is
withdrawn, abandoned or struck out.
(4) Any claim lodged
with the Tribunal may include loss or damage of a consequential nature.
With the establishment of
the tribunal, the homebuyers now have an additional avenue to seek redress
against housing developers. Before this, their only redress was to file
their claims with the civil courts. Since the establishment of the tribunal,
according to a report, as of 3 July, 2003, there are 2,209 cases have had
been filed before the tribunal, out of which 438 cases have been disposed
off. The Tribunal has already awarded RM2,396,537.73 of compensation to the
home buyers. All of these cases, were in respect of cases arising from the
sale and purchase agreements signed before 1 December 2002 that is, before
the establishment of the Tribunal.
In these two applications,
the sale and purchase agreements between the applicants and respondents of
home buyers had also been signed before the establishment of the Tribunal.
It is the applicants submissions that the Tribunal has no jurisdiction to
hear their disputes with the respondents home buyers because Part VI of the
Amendment Act, which established the Tribunal, does not operate
retrospectively. The respondents, on the other hand, have submitted to claim
that the Tribunal has the jurisdiction. According to them, section 16N
clearly give the Tribunal the jurisdiction to hear their claims even though
the sale and purchase agreements were entered before the establishment of
the Tribunal.
The thrust of the
applicants' submissions is that, Part VI of the Amendment Act, which
established the Tribunal with effect as at 1 December, 2002, if construed
retrospectively would affect their substantive rights. This is because s.
16AD of the Amendment Act, make non-compliance with an Award of the Tribunal
a criminal offence.
The respondents in reply,
submitted that, the clear words of Parliament indicating that Part VI of the
Amendment Act is to operate retrospectively is found in s. 16N(2) which
reads as follows:
(2) The jurisdiction of
the Tribunal shall be limited to a claim that is based on a cause of
action arising from the sale and purchase agreement entered into between
the homebuyer and the licensed housing developer which is brought by a
homebuyer not later that twelve months from the date of issuance of the
certificate of fitness for occupation for the housing accommodation or the
expiry date of the defects liability period as set out in his sale and
purchase agreement.
With respect, I am unable
to hold that s. 16N(2) could be read to confer retrospective jurisdiction to
the Tribunal. To me, s. 16N does not deal with the question of
retrospectivity. Section 16N is simply a section that serves to limit the
jurisdiction of the Tribunal where it has jurisdiction by virtue of s. 16M.
This is evident from the heading of the section - 'Limitation of
jurisdiction'. This is also made clear in the body of s. 16N(2), which
provides:
This jurisdiction of the
Tribunal shall be limited to a claim ...
Thus, s. 16N could not
therefore, be read to confer retrospective jurisdiction on the Tribunal or
to enlarge the jurisdiction of the Tribunal. If it is true that Parliament
intended the Tribunal to have retrospective jurisdiction over sale and
purchase agreements entered before the appointed date of coming into force
of the Amendment Act, it would have said so in clear words in the same
manner that Parliament did, in s. 32 of the Amendment Act. Section 32 of the
Amendment Act inserted a few sections to the Principle Act. One of the
sections inserted is s. 22C which reads as follows:
22C. Notwithstanding
anything contained in any written law, a homebuyer as defined in section
16A shall be entitled on his own volition and in his own name to
initiate, commence, institute and maintain in any court or tribunal any
action, suit or proceeding against a housing developer or any other
person in respect of any matter arising out of the sale and purchase
agreement entered into between the purchaser and that housing developer
unless a contrary intention is expressed in any agreement, assignment or
charge between the homebuyer and his financier in which case the prior
written consent of his financier must first be obtained before he
exercises any of his rights under this section.
In relation to this new s.
22C, s. 32(2) of the Amendment Act provides as follows:
32(2) Every agreement,
assignment or charge lawfully entered into between purchaser and his
financier before the appointed date shall be subjected to, and
the parties shall be entitled to the benefits of the new section 22C of
the Principal act as inserted into the Principal Act by subsection (1).
Section 22C above,
essentially provides that a homebuyer may initiate an action in his own
name, notwithstanding that he has assigned his rights under the sale and
purchase agreements, unless a contrary intention is expressed in the
assignment. Parliament, in sub-s. 32(2) has provided in clear terms that the
new s. 22C is to apply retrospectively to assignments entered before the
appointed date of the Amendment Act. Thus, when Parliament had thought, it
fit to expressly state about the retrospective application of s. 22C, then
equally Parliament would have said so in clear words in the same manner to
s. 16N(2) if the Tribunal was to operate retrospectively. But there is no
indication in s. 16N(2) or other provisions of Part VI of the Amendment Act
that Parliament intended the amendments establishing the Tribunal to affect
sale and purchase agreements entered into before 1 December 2002. In such
absence, particularly where Parliament has had specifically addressed the
question of retrospectivity elsewhere in the same amendments, makes it very
clear and obvious that Parliament does not intend to have Part VI of the
Amendment Act to operate retrospectively.
Moreover, s. 16N(2) could
not be interpreted to operate retrospectively because of the existence of s.
16AD which make non-compliance with the Award of the Tribunal a criminal
offence. Section 16AD provides:
16AD (1) Any person who
fails to comply with an award made by the Tribunal within the period
specified therein commits an offence and shall on conviction be liable to
a fine not exceeding five thousand ringgit or to imprisonment for a term
not exceeding two years or to both.
(2) In the case of a
continuing offence, the offender, shall, in addition to the penalties
under subsection (1), be liable to a fine not exceeding one thousand
ringgit for each day or part of a day during which the offence continues
after conviction.
Section 16AD above,
clearly exposed both applicants not only to civil liability but also to a
criminal liability. Thus, without doubt affects their substantive rights if
s. 16N is to be construed to operate retrospectively. This is because at the
time of the sale and purchase agreement was entered into, any breach of the
agreement only had civil consequences. The applicants' total exposure for
the alleged breach was only a civil liability in that if a monetary judgment
was entered for liquidated ascertained damages for late delivery and if the
applicants were unable to be satisfied with the said monetary judgment then
the applicants are only open to the risk of the various mode of enforcement.
Surely, the applicants do not envisaged at the time of the sale and purchase
agreement which they had entered into, could produce a result of a breach of
the agreement that could give rise to a criminal offence being committed. In
the circumstances, to permit the Tribunal to exercise its jurisdiction over
the sale and purchase agreement entered into before 1 December 2002 is to
allow retrospective criminal laws. This is prohibited by art. 7 of the
Federal Constitution.
No doubt, under s. 16AD,
it is only the act of non-compliance with an Award of the Tribunal that
attracts a criminal liability and not the alleged breach itself. But, to me,
the Award is an extension of the breach. What is relevant is the time of the
breach and in these two applications the breaches occurred before the
establishment of the Tribunal. Thus, if Parliament had intended that the
Amendment Act is to have retrospective application in that Parliament
intended housing developers to be criminally liable for its breaches which
are not unlawful act at the time it was done, then Parliament would have to
expressly and clearly said so. This was not done.
In Sim Seoh Beng & Anor
v. Koperasi Tuan Muda Sungai Ara Bhd[1995] 1 CLJ 491, the Court of
Appeal laid down the applicable test as follows:
In our judgment, the
correct test to be applied to determine whether a written law is
prospective or retrospective is to first ascertain whether it would affect
substantive rights if applied retrospectively. If it would, then, prima
faciethe law must be construed as having prospective effect only,
unless there is a clear indication in the enactment that it is in any
event to have retrospectivity.
Applying the above test, I
am of the view that the amendments establishing the Tribunal if applied
retrospectively would affect the substantive rights of both applicants. I
also find that there is no clear indication in the Amendment Act for a
retrospective application of Part VI which established the Tribunal. As
such, no rule of statutory interpretation including the purposive approach
can be of any assistance to give Part VI of the Amendment Act a
retrospective application. Thus, my answer to the legal question posed in
these two applications is that, the Tribunal has no jurisdiction to hear and
adjudicate cases where the sale and purchase agreement was entered before 1
December 2002.
Accordingly, I allow both
applications but with no order as to costs. |