rules in favour of house buyers
NST By Rosnazura Idrus
The Federal Court today affirmed the Court of Appeal decision that
the Tribunal for Homebuyer Claims has jurisdiction to hear and
adjudicate cases where the sale and purchase agreements were signed
before Dec 1, 2002. The decision announced by Chief Justice Tan Sri
Ahmad Fairuz Sheikh Abdul Halim, at the end of an appeal by
developer Westcourt Corporation Sdn Bhd, was met with an unusual
applause from house buyers and National House Buyers Association
members seated at the public gallery.
With this ruling, the tribunal can continue to hear complaints by
house buyers against developers and hand down awards, regardless on
when the sale and purchase was entered into.
Ahmad Fairuz, sitting with Federal Court judge Datuk Pajan Singh
Gill and Court of Appeal judge Datuk S. Augustine Paul, said the
court was of the opinion that Section 16AD in the amended Housing
Development (Control and Licensing) Act 1966, which was the centre
of contention in the appeal, was of no relevance to the jurisdiction
of the tribunal.
(Section 16AD, the penalty section of the Act, provides that any
person who fails to comply with an award made by the tribunal within
the period specified, commits an offence and is liable to a fine not
more than RM5,000 or jail up to two years or both.)
Ahmad Fairuz also said that Section 16AD did not violate Article 7
of the Federal Constitution, which prohibited retrospective criminal
The decision today also marked the closing of the dispute over the
jurisdiction of the tribunal.
Westcourt Corporation Sdn Bhd was appealing against the Court of
Appeal decision of Dec 18 last year which overturned a High Court
decision on Sept 4.
The company, together with another company Puncakdana Sdn Bhd won
their judicial review application at the High Court, where the judge
ruled that the Tribunal had no jurisdiction to hear or decide cases
prior to Dec 1, 2002, when it was formed.
Earlier, counsel Lambert Rasa-Ratnam, for Westcourt, contended that
permitting the tribunal to exercise jurisdiction over sale and
purchase entered into before Dec 1, 2002 would allow retrospective
He said prior to the amendment of the Act, breach of a sale and
purchase agreement would only entail civil proceedings. With the
amendment, he said, such breach could give rise to a criminal
Attorney-General Tan Sri Abdul Gani Patail said it was not possible
for Section 16AD to operate retrospectively.
"The express wording of Section 16AD specifically deals with the
non-compliance of the award and not the breach of the sale and
purchase agreement," he said.
House buyer Ken Lee Seng Huat, 36, who is also Bandar Mahkota Cheras
Residents Association pro-tem committee chairman, when met outside
the court expressed his satisfaction over the decision.
"With the decision today, aggrieved house buyers need not engage
lawyers to fight their cases. They can directly go to the tribunal
to present their cases," he said.
Lee was one of the house buyers in Bandar Mahkota Cheras who had
filed their cases with the tribunal for late delivery.
Another house buyer Chan Yin Peng, 29, whose case has been heard,
said she had received part of her RM14,000 award for late delivery.
She received her house 10 months late.
Tribunal secretary Wan Husin Wan Hassan, who was also present in
court, said the tribunal had four sittings a day, hearing between
eight and 10 cases daily.
He said the tribunal suspended its operation after the High Court
decision but resumed after the Court of Appeal overturned the
decision. Now there were 6,000 cases pending hearing.
Housing and Local Government Minister Datuk Seri Ong Ka Ting in an
immediate response to the courtís decision said the ministry would
take stern action to prosecute developers who did not honour the
awards made by the tribunal and they would not be given any notice
before action was taken.