Westcourt Corporation Sdn Bhd v Tan Geok Moi & Anor 2003 [HCKL]

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

(BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS)

PERMOHONAN UNTUK SEMAKAN KEHAKIMAN

NO. R1-25-58 TAHUN 2003

Dalam perkara keputusan Yang Berhormat Menteri Sumber Manusia yang dibuat pada 16 Mei, 2002;

Dan

Dalam Perkara Akta Pemajuan Perumahan (Kawalan dan Perlesenan) 1966 dan Peraturan dan Peraturan-Peraturan Pemajuan Perumahan (Tribunal Tuntutan Pembeli Rumah) 2002;

Dan
 

Dalam perkara permohonan untuk suatu Perintah Certiorari;

Dan

Dalam perkara Aturan 53, Kaedah-Kaedah Mahkamah Tinggi, 1980;

Dan

Dalam perkara suatu Award Tribunal Tuntutan Pembeli Rumah bertarikh 27.3.2003 dalam Tuntutan No. TTPR/B/0057/03


ANTARA

WESTCOURT CORPORATION SDN BHD .. .. PEMOHON

DAN

1. TAN GEOK MOI .. RESPONDEN -
2. TRIBUNAL TUNTUTAN PEMBELI RUMAH RESPONDEN


JUDGEMENT

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 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 was entered before 1 December, 2002.

The Tribunal was 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 was 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 3rd July 2003, 2,209 cases had been filed before the Tribunal out of which 438 cases have been disposed off. The Tribunal has already awarded RM2,396,537.73 compensation to the homebuyers. All of these cases, were in respect of cases arising from the sale and purchase agreements signed before 1st December, 2002 that is, before the establishment of the Tribunal.

In these two applications, the sale and purchase agreements between the applicants and respondents 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 that the Tribunal has the jurisdiction to hear their claims even though the sale and purchase agreements were entered before the establishment of the Tribunal.

The trust of the applicants’ submissions is that Part VI of the Amendment Act, which established the Tribunal with effect as at 1st December, 2002 if construed retrospectively would affect their substantive rights. This is because section 16AD of the Amendment Act, make non-compliance with an Award of the Tribunal a criminal offence.

The respondents in reply, submitted that, clear words of Parliament indicating that Part VI of the Amendment Act is to operate retrospectively is found in section 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 Section 16N(2) could be read to confer retrospective jurisdiction to the Tribunal. To me, section 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 section 16M. This is evident from the heading of the section “Limitation of Jurisdiction”. This is also made clear in the body of section 16N(2), which provides:-

“This jurisdiction of the Tribunal shall be limited to a claim……..”

Thus, section 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 section 32 of the Amendment Act. Section 32 of the Amendment Act inserted a few sections to the Principal Act. One of the sections inserted is section 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 nay matter arising out of the sale and purchase agreements 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 section 22C, section 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 agreement, unless a contrary intention is expressed in the assignment. Parliament in subsection 32(2) has provided in clear terms that the new section 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 section 22C, then equally Parliament would have said so in clear words in the same manner to section 16N(2) if the Tribunal was to operate retrospectively. But there is no indication in section 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 1st 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, section 16N(2) could not be interpreted to operate retrospectively because of the existence of section 16AD which make non-compliance with the Award of the Tribunal a criminal offence. Section 16 AD provides:

“16 AD. (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 16 AD above clearly exposed both applicants not only to civil liability but also to a criminal liability. This, without doubt affects their substantive rights if section 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 1st December, 2002 is to allow retrospective criminal laws. This is prohibited by Article of the Federal Constitution.

No doubt, under section 16 AD, it is only the act of non-compliance with a 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 @ Sim Sai 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 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 1st December, 2002.

Accordingly, I allow both applications but with no order as to costs.

Dated: 4th September, 2003



(JUSTICE DATO RAUS SHARIF)
Hakim
Mahkamah Tinggi
Kuala Lumpur.


COUNSELS

For the applicant R1-25-58-2003

Encik Lambert Rasaratnam
Encik Sean Yeow

Tetuan Lee & Hishamuddin
Peguambela dan Peguamcara
Level 16, Menara Asia Life
189, Jalan Tun Razak
50400 Kuala Lumpur.

For the first respondent

Cik Umi Kalthom - Peguam Kanan Persekutuan

Cik Rozlinda Yahya - Peguam Persekutuan

Jabatan Peguam Negara Malaysia
Bahagian Guaman
Aras 3, Blok G
Pusat Pentadbiran Kerajaan Persekutuan
62512 Putrajaya.