Early hearing date for Tribunal appeal

House Buyers Association expects it in January next year

NST-PROP 01/11/2003 By Nicholas Mun

The appeal against the High Court decision that the Tribunal for Homebuyer Claims has no retrospective jurisdiction is expected to be heard either next month or in January next year.

House Buyers Association secretary-general Chang Kim Loong said a hearing date for the appeal would be fixed by the Court of Appeal Registry when the Memorandum of Appeal, which details the grounds of the appeal, is lodged sometime next week.

"The court is aware of the public interest involved in this matter and is willing to fix an early hearing date.

"We have been informed that the earliest possible date could be in December, but we have to take into account the two-week court vacation that takes place during the second half of the month," said Chang.

Under such circumstances, Chang believes that a hearing date in January next year would be more practical and convenient as all the judges would be back at work by then.

Chang also said the Court of Appeal last week consolidated the two appeals that arose from the High Court decision delivered by Justice Datuk Md Raus Sharif on Sept 4.

Property developers Puncakdana Sdn Bhd and Westcourt Corp Sdn Bhd had instituted two separate actions for the judicial review of the Housing Tribunal's competence in hearing claims brought by their buyers, stemming from Sale and Purchase Agreements (SPA) executed prior to Dec 1, 2002.

"As a result of this, there will only be one hearing, and the decision will be binding on both the appeals," Chang explained.

Chang is optimistic about the outcome of the appeal and feels that the buyers involved "have a good chance" of success.

"The buyers hope to have their arguments accepted this time round," he said.

It is learnt that one of the grounds of the appeal rests on the argument that permitting the Housing Tribunal to hear pre-Dec 1 disputes would not make criminal laws retrospective, which the Federal Constitution prohibits.

The criminal penalty, applicable for non-compliance of an award, it is argued, only came into effect after the Tribunal was established and therefore does not criminalise retrospectively any breach of the SPA by developers.

Another ground, which is believed will be relied on by appellants, is that the High Court had failed to give due consideration to the intention of Parliament in that the amendments were enacted for the protection of buyers' rights and interests.