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By Dorcas Ting
KUCHING, Aug 17: The Court of Appeal today overturned the decision of the High Court that ruled the Federal Court’s decision in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeals is not applicable to Sarawak and Sabah.
The three-member bench stated that Sarawak’s housing legislation is social legislation enacted to protect house buyers. The provisions therein should be interpreted to provide maximum protection to house buyers. Therefore, once the booking fee is paid, the calculation of Liquidated Ascertained Damages (LAD) should commence from the date of the booking fee payment.
The house purchasers, represented by counsels Daniel Ling and Jackson Ngu, appealed to the Court of Appeal regarding the High Court’s decision. The three appellants, Anna Chin Kui Len, Tiong Kwong Ngo, and Liew Khing Ann, had purchased an apartment constructed by Developer RJ Realty Sdn Bhd. They filed claims for LAD and rectification works in the Tribunal against the developer due to the late delivery of vacant possession of their respective units.
The tribunal had granted all appellants LAD calculations starting from the date of booking fee payment, following the Federal Court decision delivered by Chief Justice Tengku Maimun Tuan Mat.
Subsequently, RJ Realty Sdn Bhd applied for a judicial review in the Kuching High Court. This was because the Sarawak Housing Tribunal had been following the Federal Court’s decision in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeals, awarding LAD for late delivery of houses/apartments from the booking date, not the date of the Sale & Purchase Agreement.
On March 24, 2022, High Court Judicial Commissioner Alexander Siew How Wai ruled that PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Other Appeals were decided under the Housing Development (Control and Licensing) Act 1966 which is not applicable in Sarawak.
Siew also held that while there are similarities in the wording, Sarawak’s Housing Development (Control & Licensing) Ordinance 2013 is not in pari materia with the West Malaysian housing act.
In the Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and Others case, the Federal Court held that when the interested purchaser signed a booking form, an agreement had been formed. However, Siew had held that in Sarawak, when an interested purchaser signed a booking form, no agreement had been formed.
He stated that all that happened was that the developer granted an option to the interested purchaser to purchase. If the interested purchaser exercises the option, signs a Sale and Purchase Agreement, and pays the 10% purchase price, only then a valid Sale & Purchase transaction has been entered into.
Siew also held that the Housing Tribunal had exceeded its jurisdiction as the award granted was in excess of RM150,000.
RJ Realty Sdn Bhd was represented by counsels Dato’ Bong Ahloi, Allan Lao, Samuel Bong, and Jocelyn Phua. The Housing Tribunal of Sarawak was represented by counsels from the State Legal Counsel, McWillyn Jiok and Syed Rezif. — DayakDaily
