Puncakdana Sdn
Bhd
- vs - Tribunal for
Homebuyers Claims
Judgment
Raus Sharif,
J
-
These two applications,
R1-25-58-2003 and R1-25-53-2003, with the agreement of all
parties were heard together. Both applicants are licensed
housing developers. In their applications for an order of
certiorari to 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 December 1, 2002.
-
The tribunal had been established by
the amendments made to the Housing Development (Control &
Licensing) Act 1996 ("the Principal Act") vide the Housing
Developers (Control & Licensing) (Amendment) Act 2002 ("the
Amendment Act"). The Amendment Act had been assented to on
January 23, 2002 and subsequently was brought into force on
December 1, 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original claim is withdrawn, abandoned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
July 3, 2003, there are 2,209 cases that have 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
December 1, 2002 that is, before the establishment of the
tribunal.
-
In these two applications, the sale
and purchase agreements between the applicants and respondents
of homebuyers 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, s 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 December 1, 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:
16N. |
(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 home
buyer 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 l6N(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 s 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. |
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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
s 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 subsection 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 December 1, 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. |
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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 modes of enforcement.
Surely, the applicants did not envisage at the time of the sale
and purchase agreement that 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 December 1, 2002 is
to allow retrospective criminal laws. This is prohibited by
article 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 were not an unlawful act at the time it
was done, then Parliament would have to expressly and clearly
say so. This was not done.
-
In Sim Seoh Beng v Koperasi Tunas
Muda Sungal Ara Bhd [1995] 1 AMR 501; [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 facie the 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 December 1, 2002.
-
Accordingly, I allow both
applications but with no order as to costs.[a]
Cases
Sim Seoh Beng v Koperasi Tunas Muda
Sungai Ara Bhd [1995] 1 AMR 501; [1995] 1 CLJ 491, CA
Legislations
Federal Constitution: Art.7
Housing Development (Control and
Licensing) Act 1996
Housing Developers (Control and
Licensing) (Amendment) Act 2002: s.6AD, 16M, 16N, 16N(2), 22C, 32,
32(2), Part VI
Representations
Sree Harry (Sri Ram &C Co) for
applicant
Umi KaIthum Abdul Majid, SFC and
Rozlinda Yahya, FC (AG's Chambers) for first respondent
KL Wong and KY Soo (KL Wong) for second
to ninth; eleventh to twelfth; fourteenth to sixteenth; nineteenth
to twenty-first; twenty-third; twenty-sixth: twenty-seventh and
thirty-second respondents
Viola De Cruz (VL De Cruz & Co) for
tenth; seventeenth; twenty-second; twenty-fourth; twenty-fifth;
thirty-first; thirty-third; thirty-sixth; thirty-seventh; fortieth;
forty-ninth to fifty-first respondents
Mohd Noh Nasira (Nasira Aziz & Co) for
thirty-fourth; thirty-fifth; thirty-eight; forty-first;
forty-fourth; forty-fifth; forty-seventh and forty-eighth
respondents
Notes:-
[a] The Tribunal appealed against this decision. The Court of Appeal
(Richard Malanjum JCA, Hashim Yusoff JCA & Tengku Baharudin Shah JCA)
on 6 April 2004 reversed this decision.
See Tribunal for Homebuyers Claims v
Westcourt Corporation Sdn Bhd |