exhaust appeal process
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
It is a valid law," said Ahmad Fairuz, adding that
the provision was
irrelevant to the issue of the Tribunal's jurisdiction.
National House Buyers Association welcomed the Federal Court
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
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.