发展商延期交房-LAD-EOT(无效) [2022] MLJU 2435

1. 买家和发展商购买一套双层排屋。在双方所签署的SNP里提及的交空屋期限是36个月，然而根据标准合约附表G第24条款， 在买卖合约执行日的24个月内，发展商必须交房屋给买家。
2. 买家因此通过房屋仲裁庭对发展商提告。房屋仲裁庭批准了买家的申请。发展商因此上诉至高等法庭。
3. 发展商表示，已经得到隶属房地部的房屋管制处controller的批准，延长交屋期的期限至36个月，因此买家无权对此索赔。
4. 高等法庭驳回了发展商的上诉申请。
5. Housing Development (Control and Licensing) Regulations 1989的11(3)条令，给予房屋总监(Housing Controller)权力去除或修改任何发展商买卖合约里指定的条款。然而联邦法院早期在在Ang Ming Lee一案中已经裁决这个11(3)条令是违反房产买卖的法令，即是Housing Development (Control and Licensing) Act 1966。因此房屋总监去除或修改任何发展商买卖合约里指定的条款的一切决定/批准，都是无效的。
6. 因为若允许修定或展延房屋买卖契约上的规定与条款，这将会剥夺屋主向发展商索偿违约金的权力。
7. 尽管发展商企图用其他案件(Alpine Return一案)来提出反驳，然而此案的法官不同意Alpine Return的判决。这是因为既然房屋总监无权修改指定的发展商买卖合约条款，那么发展商也不能擅自修改买卖合约的完成期限(拉长),胡乱拉长完成期限是不合法的。
8. 法庭驳回了发展商的申请。

更多内容请参阅英文版的文章。

1. The applicant is a licensed housing developer for a residential development known as Cyber Casa @ Cybersouth Phase 1B, Mukim Dengkil, Sepang, Selangor (“the said Project”). The 1st and 2nd respondents entered into a sale and purchase agreement (“SPA”) with the applicant dated 07.2015 to purchase a double-storey linkhouse known as Unit No. RT3- 183 (“the said property”) for a consideration of RM664,800.
2. Cl 22(1) of the SPA provides as follows:

“Vacant possession of the said Building shall be delivered to the Purchaser in the manner stipulated in clause 23 within thirty six (36) calendar months from the date of this Agreement.”

3. On 10.2018, the applicant issued a Notice pursuant to cl 23(3) notifying the 1st and 2nd respondents (“the Notice”) that the said property was ready for the delivery of vacant possession. Copies of the Architect’s Certificate certifying that the said property had been duly completed and the Certificate of Completion and Compliance (“CCC”) were enclosed in the said Notice.
4. The 1st and 2nd respondents were of the view that the delivery of vacant possession of the said property should have been on 07.2017, which is 24 months after the execution of the SPA. The 1st and 2nd respondents contended that reg 11(1) of the Housing Development (Control and Licensing) Regulations 1989 (the “1989 Regulations”) enacted pursuant to s 24 of the Housing Development (Control and Licensing) Act 1966 (“HDA”) stipulates that the delivery of vacant possession should have been within 24 months from the date of the SPA.
5. The 1st and 2nd respondents filed a claim at the Tribunal for Home Buyers Claims, the 3rd respondent herein (“the Tribunal”), for a total sum of RM66,480 for the late delivery of vacant possession.
6. At the Tribunal, the applicant asserted that the applicant had obtained a certificate in writing from the Housing Controller to modify cl 11 of the SPA. Under the modified clause, the delivery of vacant possession of the said property was extended from 24 months to 36 months. The extension of time, according to the applicant, wasobtained before the execution of the SPA.
7. The letter, which was dated 04.2015 (“the Controller’s letter”), states inter alia as follows:“Adalah dimaklumkan bahawa setelah meneliti permohonan tuan untuk meminda Jadual G (Perjanjian Jual Beli) di bawah Peraturan 11, Peraturan-Peraturan Pemajuan Perumahan (Kawalan dan Perlesenan) 1989, Jabatan ini meluluskan lanjutan serahan milikan kosong dan penyiapan kemudahan bersama selama 12 bulan iaitu daripada 24 bulan kepada 36 bulan sahaja.”
8. On 18.2.2020, the Tribunal allowed the 1st and 2nd respondents claim for RM50,000.00, being the maximum compensation allowed under the HDA.
9. Aggrieved, the applicant commenced an application for judicial review seeking inter alia an order of certiorari to quash the impugned decision.

At the Tribunal

10. In his grounds of judgment, the learned President of the Tribunal made the following findings:

(a) The Tribunal took cognisance of the conflicting version on the delivery of vacant possession of the said property. The 1^st and 2nd respondents asserted that irrespective of cl 22(1) of the SPA, the vacant possession should be delivered within 24 months. On the other hand, the applicant maintained that the delivery of vacant possession was duly extended by the Controller as reflected in the SPA.

(b) The only issue to be decided according to the Tribunal is: Whether the extension of time granted in the Controller’s letter is valid in law.

(c) The Tribunal referred to the judgment of the Federal Court in Ang Ming Lee & Ors v Kementerian Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor & Or Appeals [2019] 1 CLJ 162 FC. The case carries the proposition that reg 11(3) of the 1989 Regulations, conferring power on the Housing Controller to waive or modify any provision in Schedule H the contract of sale, was ultra vires the HDA. Housing Development (Control and Licensing) Regulations 1989的11(3)条令，给予房屋总监(Housing Controller)权力去除或修改任何发展商买卖合约里指定的条款。联邦法院裁决这个11(3)条令是违反房产买卖的法令，即是Housing Development (Control and Licensing) Act 1966。因此房屋总监去除或修改任何发展商买卖合约里指定的条款的一切决定/批准，都是无效的。

(d) In the circumstances of the case, the Tribunal was of the view that it is no longer relevant whether the extension of time purportedly approved by the Housing Controller was before or after the SPA.

11. Based on the aforesaid reasons, the Tribunal allowed the 1st and 2nd respondents claim for RM50,000.00, being the maximum compensation allowed under the HAD.

At the High Court

12. Learned counsel for the applicant submitted that:

• the ratio stated by the Federal of Ang Ming Lee is per incuriam. In any event, according to learned counsel, Ang Ming Lee is distinguishable from the instant case.
• the extension of time in the instant case was obtained before the execution of the SPA. In the circumstances, learned counsel submitted that there was no possible detriment to the 1st and 2^nd
• that having executed the SPA, the 1st and 2^nd respondents could not now come to Court and argue that cl 22(1) does not apply to them. In short, it is contendedthat the 1st and 2nd respondents are estopped from claiming the liquidated and ascertained damages for 12 months after having agreed to the extension as reflected in the SPA.
• the recent judgment of the High Court in Alpine Return Sdn Bhd v Matthew Ng Hock Sing & Ors [2022] 1 CLJ 120. It was held that although reg 11(3) of the 1989 Regulations was ultra vires, on the very specific facts of that case, the defendants were estopped from reneging on the SPAs and claiming LAD since all parties were under the same belief that the extension was valid at the time of the execution of the SPAs and the entire extension process was validly performed. (但是此案的法官不同意Alpine Return的判决)
• that the Ang Ming Lee should not be applied retrospectively since the judgment was delivered by the Federal Court on 11.2019, whereas the SPA was dated 01.07.2015.
• Relying on the judgment of the Court of Appeal in Bludream City Development Sdn Bhd v Kong Thye & Ors and other appeals [2022] 2 MLJ 241 CA, learned counsel submitted that the extension of time purportedly granted by the Housing Controller should have been set aside by the 1st and 2nd respondents by way of a judicial review application under O 53 of the Rules of Court 2012 (“ROC”) if indeed they were aggrieved by the provision.
• that by granting the award, the Tribunal had allowed the 1st and 2nd respondents to unjustly enrich themselves at the expense of the applicant. According to learned counsel, the 1st and 2nd respondents would enrich themselves by claiming additional 12 months of LAD when the intention and time frame agreed by the parties, as reflected in cl 22 of the SPA, was 36 months. In supporting his argument, learned counsel cited Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441

Analysis

13. Let me begin with the issue of unjust enrichment. I have gone through the Defence of the applicant at the Tribunal. In its Defence, the applicant asserted that it had obtained the approval for the extension of time from theNational Housing Department to extend the delivery of vacant possession to 36 months.
14. While the applicant asserted in the Defence that it disagreed with the liquidated and ascertained damages (“LAD”) claimed by the 1st and 2nd respondents, there was no mention of unjust enrichment. In short, it was notIn Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd & Or Appeals [2018] 3 MLJ 141 FC, the Federal Court observed as follows:

“Pleadings enable both parties to know in advance the averments being made against them so that they will not be taken by surprise during the trial. Tellingly, in the present appeals TNB did not plead that its cause of action was founded on the law of unjust enrichment. Unjust benefit was not a pleaded issue. With respect, the submission on the benefit/unjust enrichment question by learned counsel for TNB is, therefore, misconceived.”

15. On the issue of estoppel, learned counsel for the applicant heavily relied on Alpine Return and urged this Court to conclude that the 1st and 2nd respondents should be estopped from not honouring the terms of the SPA, eventhough the timeline in the SPAs emanated from the extension. I believe the conclusion of the learned Judge in Alpine Return was anchored on the argument that the developer “did not commit any illegality, irregularity or depart
    from the provisions of the [1989] Regulations in force at the material time”. In short, according to the learned Judge, the developer adhered to the requirements of the 1989 Regulations and applied for the extension under reg. 11(3) which was allowed by the Housing Controller before the amendments were made and prior to the execution of the SPAs with the house buyers.
16. The question that arises is, does the ruling made by the Federal Court in Ang Ming Lee have a retrospective effect or otherwise? If the ratio of Ang Ming Lee only applies to future SPAs, then it can be said that the parties,were unaware that at the time the SPA was executed on 01.07.2015, the Housing Controller has no powers to grant extensions under reg 11 which is thus ultra vires the HDA. However, on the other hand, if the proposition expressed by the Federal Court in Ang Ming Lee has a retrospective effect, then the Housing Controller’s purported extension of time could not be legally effective.
17. Once the purported extension of time is not effective, it does not matter whether the SPA was executed before or after the extension. The question of giving the opportunity to the Housing Controller does not arise since theaction was illegal anyway.
18. The answer I believe can be found in the judgment of the Court of Appeal in UE E&C Sanjia (M) Sdn Bhd v Lee Jeng Yuh & Anor & Anor appeal [2021] 6 MLJ 864 In delivering the judgment of the Court, Hashim HamzahJCA held as follows:

“Next, there is nothing expressly mentioned in Ang Ming Lee regarding the prospectivity of the said decision. Therefore, the decision of the Federal Court in Ang Ming Lee operates retrospectively (see Public Prosecutor v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393; [2006] 1 CLJ 457 and Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561).”

19. In short, the decision in Ang Ming Lee, is applicable retrospectively to the facts in the present case. It is therefore clear that the Federal Court in Ang Ming Lee did not specify that the decision on reg 11 of the 1989 Regulations being ultra vires the HDA was to apply prospectively. It therefore means that it applies retrospectively.
20. The same proposition can be seen in Alvin Leong Wai Kuan & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan and other applications [2020] 10 MLJ 689 where Wong Kian Kheong J remarked as follows:“I am not able to accept the third respondent’s submission that the judgment in Ang Ming Lee can only have prospective effect. My reasons are as follows:

(a) the Federal Court in Ang Ming Lee has not expressly ruled that its decision can only have prospective effect. Hence, in accordance with the general rule, the judgment in Ang Ming Lee has retrospective effect and applies to these three applications; and

(b) there are no exceptional circumstances for the doctrine of prospective overruling to apply to the decision in Ang Ming Lee. On the contrary, as held in many cases (including Ang Ming Lee), the object of HDA and HDR is to protect a ‘homebuyer’ (as defined in s 16A of the HDA). Accordingly, in line with the purpose of HDA and HDR, it is in the interest of homebuyers for the judgment in Ang Ming Lee to be given retrospective effect.”

21. In view of the clear pronouncement by the Court of Appeal in Lee Jeng Yuh and an equally forceful ratio in Alvin Leong, the question of estoppel does not arise. With due respect to the proposition in Alpine Return, one cannot be
    expected to honour a term in the SPA which is held to be illegal. 此案的法官不同意Alpine Return的判决,既然房屋总监无权修改指定的发展商买卖合约条款，那么发展商也不能擅自修改买卖合约的完成期限(拉长),胡乱拉长完成期限是不合法的。
22. As I indicated earlier, since the Housing Controller has no power to extend the time for the delivery of vacant possession, the question of whether the SPA was executed after the extension does no longer arise. The Court of Appeal in Lee Jeng Yuh said this:
23. “We disagree with the defendant on this issue. The decision of the Federal Court in Ang Ming Lee is clear that the Housing Controller has no power whatsoever to waive and modify the terms and conditions of the scheduled agreement in the first place. Therefore, the issue of whether the approval is obtained before or after the SPAs has been executed is not relevant.”

Finding

24. For the reasons aforesaid, the award of the Tribunal is not tainted with procedural impropriety, Anisminic error or Wednesbury unreasonableness to make it amenable to judicial review.
25. The application for judicial review is therefore dismissed with costs of RM1,000 to the 1st and 2nd respondents.

Source: Eco Green City Sdn Bhd v Hou Zhou Yee & Ors [2022] MLJU 2435. High Court Kuala Lumpur. Wan Ahmad Farid Wan Salleh J.

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