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DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA A)-412-10-2016.pdf · PDF filewithin the time stipulated in the ... was not in accordance to the agreement as prescribed in Schedule H

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DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANGKUASA RAYUAN)

RAYUAN SIVIL NO. : W-01(A)-412-10/2016

ANTARA

CEMERLANG LAND SDN BHD PERAYU

DAN

1. ALI BIN SAAT [NO. K.P: 600928-08-6075]

2. TRIBUNAL TUNTUTAN PEMBELI RUMAH RESPONDEN- RESPONDEN

DI DENGAR BERSAMA

[RAYUAN SIVIL NO.: W-01(A)-415-10/2016]

ANTARA

CEMERLANG LAND SDN BHD PERAYU

DAN

1. ABDUL RAHIM BIN KHAIRULDIN [NO. K.P: 521104-01-5519]

2. NORAZMAN BIN ABDUL RAHIM [NO. K.P: 880410-01-5829] RESPONDEN-

RESPONDEN

DAN

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[RAYUAN SIVIL NO: W-01(A)-417-10/2016]

ANTARA

CEMERLANG LAND SDN BHD PERAYU

DAN

1. SITI AMAH BT JAAFAR [NO. K.P: 550817-01-5298]

2. TRIBUNAL TUNTUTAN PEMBELI RUMAH RESPONDEN- RESPONDEN

Dalam Mahkamah Tinggi Malaya di Kuala Lumpur

(Bahagian Rayuan dan Kuasa-Kuasa Khas)

Permohonan Untuk Semakan Kehakiman No: 25-66-04/2015

Antara

Cemerlang Land Sdn Bhd Pemohon

Dan

1. Ali Bin Saat [No. K.P: 600928-08-6075]

2. Tribunal Tuntutan Pembeli Rumah Responden- Responden

Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur

(Bahagian Rayuan dan Kuasa-Kuasa Khas)

Permohonan Untuk Semakan Kehakiman No: 25-66-04/2015

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Antara

Cemerlang Land Sdn Bhd Pemohon

Dan

1. Abdul Rahim Bin Khairuldin [No. K.P: 521104-01-5519]

2. Norazman Bin Abdul Rahim [No. K.P: 880410-01-5829] Responden- Responden

Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur

(Bahagian Rayuan dan Kuasa-Kuasa Khas)

Permohonan Untuk Semakan Kehakiman No: R2-25-67-04/2015

Antara

Cemerlang Land Sdn Bhd Pemohon

Dan

1. Siti Amah Bt Jaafar [No. K.P: 550817-01-5298]

2. Tribunal Tuntutan Pembeli Rumah Responden- Responden

CORAM:

TENGKU MAIMUN BINTI TUAN MAT, JCA

VERNON ONG LAM KIAT, JCA

HASNAH BINTI DATO MOHAMMED HASHIM, JCA

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JUDGMENT

INTRODUCTION

[1] There were three appeals before us arising from three applications for

judicial review in the High Court emanating from one judgment of the learned

Judicial Commissioning. They involved different Respondents but the same

Applicant (Appellant) and were all heard together. The three appeals were

against the decision of the learned Judicial Commissioner dismissing the

Appellant's application for judicial review. The Appellant had applied for an

order of certiorari to quash the decision of the President of the Tribunal

Tuntutan Pembeli Rumah (the Tribunal) made on 26.1.2015 (the Award).

The Tribunal had on the said date awarded the Respondents damages for

late delivery of vacant possession by the Appellant. The Appellant,

dissatisfied with the decision of the learned Judicial Commissioner appealed

to this Court.

[2] We heard the appeal on 27.3.2017. After due deliberation and having

carefully considered the submissions of both parties we found that there are

merits in the appeals and allowed all the appeals with costs. We propose to

give reasons for our decisions with respect to all the appeals in one common

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judgment. Since the facts are common for all the three appeals, for purposes

of this judgment, we will only be referring to the facts in Appeal No. W-01(A)-

412-10/2016, which parties had agreed to refer in their submissions.

MATERIAL FACTS

[3] The background facts are important to understand the context in which

these appeals were brought. The Appellant, is a company incorporated in

Malaysia and is a housing developer previously known as Genting Unggul

Sdn. Bhd. The Respondent entered into a Sale and Purchase Agreement

dated 25.6.2002 ("the 1st Agreement") with the Appellant to purchase one

apartment unit described as No. AC-03-02 at Amber Court, Desa Larkin,

Johor (Amber Court Project). The purchase price of the said unit was

RM25,000.00. Clause 22 of the 1st Agreement stipulates that the handing

over of vacant possession of the unit shall be within thirty-six (36) months

from the date of the aforesaid agreement.

[4] The Amber Court Project consists of five blocks of 700 units of low cost

flats i.e Blocks A-E. Under the 1st Agreement the Respondents unit was

located on the 3rd floor Block C. Unfortunately, the Amber Court Project could

not be completed within the period stipulated in the said agreement. On

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31.12.2005 the Jabatan Perumahan Negara declared and classified the

Amber Court Project as an abandoned project.

[5] However, steps were undertaken by the authorities to revive the

abandoned project. Subsequently a new development order was issued to

revive the project and to build 179 Unit Rumah Teres 2 Tingkat di

atas Lot 20203, Jalan Merak dan 3 Blok Rumah Pangsa 5 Tingkat (248

Unit Rumah Kos Rendah 650 kaki persegi di atas Lot PTB 20184, Jalan

Rajawali, Mukim Larkin, Johor. In 2014 the Jabatan Perumahan Negara

after having classified the housing project as Projek Perumahan

Bermasaalah di Negeri Johor took steps to revive the housing project

under the PR1MA Scheme. The Appellant was appointed as the developer

of the said project by the relevant authorities.

[6] The original purchasers of the abandoned project (including the

Respondent) were offered by the Appellant to participate in the said revived

project. Sometime in 2010 the Respondent was offered by the Appellant to

purchase one unit of the low cost flat known as Project Larkin Court 1 i.e Unit

A-2-1 Blok A Tingkat 2 Rumah Pangsa No.1. By a letter of acceptance the

Respondent accepted the offer and agreed to revoke the 1st Agreement.

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[7] A Deed of Revocation dated 9.7.2013 was executed between the

parties whereby it was mutually agreed to revoke and rescind the 1st

Agreement and to treat the said agreement as null and void,

1. In consideration of the premises herein the parties hereto

mutually agree to revoke and rescind the sale and Purchase

Agreement as null and void.

[8] A new sale and purchase agreement dated 9.7.2013 was drawn up

and executed between the Appellant and the Respondent (the 2nd

Agreement). The purchase price of the new unit remained at RM25,000.00

and the completion date as stipulated in the said agreement is within 3

months from the date of the said 2nd Agreement.

[9] The said revived project was completed and vacant possession of the

unit was duly handed over to all the purchasers including the Respondent

within the time stipulated in the aforesaid 2nd Agreement.

[10] Sometime in 2014 the Respondent filed a claim against the Appellant

with the Tribunal for late delivery of the unit he purchased under the 1st

Agreement. The Tribunal awarded to the Respondent compensation for late

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delivery of vacant possession. Dissatisfied with the decision of the Tribunal

the Appellant filed the judicial review in the High Court.

The Tribunal

[11] The decision of the President can be found at pages 295-335 of the

Appeal Records. He concluded that the 2nd Agreement together with the

Deed of Revocation were executed without the approval of the Jabatan

Perumahan Negara and that the 2nd Agreement executed by the parties

was not in accordance to the agreement as prescribed in Schedule H of the

Housing Development (Control and Licensing) Regulations, 1989 (HDR).

Regulation 11 of HDR provides as follows:

Every contract of sale for the sale and purchase of a housing

accommodation together with the subdivisional portion of land

appurtenant thereto shall be in the form prescribed in Schedule G and

where the contract of sale is for the sale and purchase of a housing

accommodation in a subdivided building in the form of a parcel of a

building or land intended for subdivision into parcels, as the case may

be, it shall be in the form prescribed in Schedule H.

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