The battle rages on

NST 14/02/2004 By Nicholas Mun

Developer files leave to appeal against decision that Tribunal has retrospective jurisdiction

The battle as to whether the Tribunal for Homebuyer Claims (the Tribunal) has retrospective jurisdiction to hear disputes arising from Sale and Purchase Agreements (SPAs) executed prior to Dec 1, 2002, is still raging.

Westcourt Corp Sdn. Bhd. recently filed an application for leave to appeal to the Federal Court in respect of the Court of Appeal decision on Dec 18, 2003 that ruled in favour of buyers whose disputes had arisen from SPAs signed before the Tribunal came into being.

According to National House Buyers Association secretary-general Chang Kim Loong, the application was filed just before the Chinese New Year and is for permission to appeal against the decision of the Court of Appeal.

"Only if the Federal Court gives the go-ahead to Westcourt can the appeal proper proceed," said Chang.

He told PropertyTimes that the other developer involved in the appeal, Puncakdana Sdn Bhd, is not appealing against the decision and as such, HBA is considering the position it should adopt in respect of the Westcourt appeal.

"HBA only assisted 51 buyers who had filed their claims against Puncakdana with the Tribunal by arranging pro bono legal representation for them. Since Puncakdana has decided not to appeal the decision, HBA's involvement in the matter has technically, come to and end," he said.

Chang, however,  pointed out that notwithstanding this, HBA is mulling over the option of whether the 51 buyers should file an application to intervene in the appeal, should the Federal Court grant leave to Westcourt to proceed.

He explained that if the application were successful, the buyers would be able to present their views to the Federal Court.

"We feel that there may be grounds for them to be heard as the decision of the Federal Court would ultimately affect them."

Chang said that the application for leave to appeal could not proceed for the time being as the grounds of the Court of Appeal's decision were not ready.

He also said that the Tribunal has since resumed hearing disputes filed buyers.