Developers exhaust appeal process
19/06/2004 NST

HOUSING developers have reached the end of the road in their attempt to stop the Tribunal for Homebuyer Claims (the Tribunal) from hearing disputes arising from Sale and Purchase Agreements executed prior to Dec 1, 2002.

The Federal Court last Monday ruled that the Tribunal could hear disputes between developers and purchasers, even if they arose before it came into existence.

The Federal Court held that there was no issue of criminal laws being made retrospective despite the penalties set out in section 16AD of the Housing Development (Control and Licensing) Act 1966 for non-compliance with awards made by the Tribunal.

The appellant, developer Westcourt Corporation Sdn Bhd, had contendedthat allowing this provision to cover pre-Dec 1, 2002 disputes amounted to making retrospective criminal laws and this was ultra vires the Federal Constitution.

Chief Justice Tan Sri Ahmad Fairuz Sheikh Abdul Halim who sat with Federal Court judge Datuk P.S. Gill and Court of Appeal judge Datuk S. Augustine Paul disagreed with this contention.

"Section 16AD does not violate Article 7(1) of the Federal Constitution.

It is a valid law," said Ahmad Fairuz, adding that the provision was irrelevant to the issue of the Tribunal's jurisdiction.

The National House Buyers Association welcomed the Federal Court ruling.

Its secretary-general Chang Kim Loong said the outcome was "a progressive and promising step towards the successful implementation of the Tribunal".

"This could not have been more timely. For too long, buyers who cannot afford legal representation in lengthy court cases have been forced into submission," he said.

Chang urged developers to act on valid claims made by buyers. He suggested that developers in financial difficulty negotiate a reasonable term of deferred payments or other forms of compensation with their buyers.

"Most importantly, we hope that developers will accept the outcome and respect the Court's decision," he added.

Chang urged the Minister of Housing and Local Government Datuk Seri Ong Ka Ting to prosecute developers who continue to defy the Tribunal.

"Developers that fail to comply with the award and frustrate the successful claimants should be dealt with in accordance to section 16AD ofthe Act," Chang said.

Section 16AD provides for a fine not exceeding RM5,000 or jail of not
more than two years or both for non-compliance with an award. In cases where the default is continuing, a developer can be fined up to RM1,000 a day.