Professional Documents
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Civil-Country Garden Danga Bay V Tribunal
Civil-Country Garden Danga Bay V Tribunal
Civil-Country Garden Danga Bay V Tribunal
ANTARA
DAN
Dan
Dan
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Rayuan Sivil No: J-01(A)-22-01/2019
Dan
Antara
Dan
CORAM:
Introduction
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Rayuan Sivil No: J-01(A)-22-01/2019
Background Facts
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Rayuan Sivil No: J-01(A)-22-01/2019
balcony but when vacant possession been delivered, the balcony was not
covered. The second respondent lodged a complaint to the appellant vide
letter dated 4.12.2017. The second respondent filed a claim with the 1st
respondent. The second respondent claiming for RM50,000.00 as
compensation for the wrong unit that was given to him.
[5] The Tribunal found in favour of the second respondent and awarded
a damages in the sum of RM50,000.00, being the maximum award per
cause of action which can be handed by the Tribunal.
[6] The appellant sought the following reliefs from the High Court:
(a) that the Applicant be granted leave to apply for an order for
certiorari to quash the Johor Bahru Tribunal for Homebuyer
Claims’ Award dated 7.6.2018 in Claim No.
TTPRZS/J/0001(T)/18 (“Award”);
(c) that the enforcement of the Award be stayed pending the full and
final disposal of this judicial review application before this
Honourable Court;
(d) that this Honourable Court makes a finding that the Tribunal for
Homebuyer Claims’ decision to grant the Award was tainted with
illegality, irrationality or procedural impropriety;
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[7] The grounds of the appellant in support of the judicial review as listed
in the Statement to Order 53 rule 3(2) of the Rules of Court 2012 are as
follows:
(a) The grounds on which the reliefs set out in paragraph 4 above
are sought by the Applicant are set out in the Affidavit of Loh Yen
Zin which is filed herein to support the Applicant’s Application for
Judicial Review. A summary of the grounds relied on by the
Applicant are set out below;
(b) The 1st Respondent had erred in law and in fact when the 1st
Respondent awarded the sum claimed by the 2nd Respondent
without stating any reasons or supporting grounds in the Award;
(c) The 1st Respondent had erred in law and in fact when the 1st
Responden failed to consider the fact that the Technical Report
concludes that the unit delivered by the Applicant to the 2nd
Respondent is in order and in compliance with the sale and
purchase agreement;
(d) The 1st Respondent had erred in law and in fact when the 1st
Respondent failed to consider the fact that there was not an iota
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(e) The 1st Respondent had erred in law and in fact when the 1st
Respondent failed to consider the fact that its jurisdiction is
limited to cause(s) of action arising from the sale and purchase
agreement entered into between the Applicant and the 2nd
Respondent;
(f) The 1st Respondent had erred in law and in fact when the 1st
Respondent failed to confine the scope of the Tribunal
Proceedings within the 2nd Respondent’s Statement of Claim in
Form 1 pursuant to the Housing Development (Tribunal for
Homebuyer Claims) Regulations 2002 (‘the Regulations’);
(g) The 1st Respondent had erred in law and in fact when the 1st
Respondent failed to consider the fact that the statements made
by the 2nd Respondent in the course of the Tribunal Proceedings
are baseless allegations unsubstantiated by cogent evidence;
(h) The 1st Respondent had erred in law and in fact when the 1st
Respondent allowed the 2nd Respondent to produce a
photocopied sale and purchase agreement, the source of which
is highly suspicious, and to render the same admissible as
evidence in the Tribunal Proceedings;
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At the Tribunal
[9] After considering the facts and evidence, and the submissions of the
parties, the President of the Tribunal decided that the appellant was liable
to pay the second respondent the sum of RM50,000.00 as compensation.
The learned President found that there was sufficient evidence to support
the second respondent’s claim that there was unauthorised changes to the
specifications in the original S&P to which caused losses to the second
respondent for exceeds the jurisdiction of the Tribunal.
[10] The learned President relied on the decision of this Court in the case
of Dr. S T Singham v. Lee Siew Leong [2007] 1 MLJ 1 where it was ruled
that in a case where unauthorised alteration of a contract made by a party
after it was signed by the other party is fatal for its validity. It was held:
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Rayuan Sivil No: J-01(A)-22-01/2019
[11] The learned Judicial Commissioner (‘the learned JC’) dismissed the
application for judicial review by the appellant with costs. The learned JC
agreed with the findings and decision of the learned President of the
Tribunal.
[12] The learned JC was of the view that the learned President of the
Tribunal was not in breach of the rules of natural justice as alleged by the
appellant. The learned JC also of the view that there was no element of
irrationality occurred in this case up till the eventual award. In the learned
JC grounds, his Lordship said, at pages 124-125 Appellant’s Core Bundle
of Documents:
“22. In effect, the Sale and Purchase Agreement produced by the said
witness of the 2nd Respondent had shown that the number of levels
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Rayuan Sivil No: J-01(A)-22-01/2019
of carpark had differed, where one had 7 levels and the other had 6
levels. This would validate the complaints of the 2nd Respondent that
due to an amendment of the building plans by the Applicant, the unit
that the 2nd Respondent had eventually received was one without a
covered balcony due to a reduction in the levels of carpark.
23. I do not find there to be any excess of jurisdiction, as the tribunal had
awarded RM50,000.00 which was what was sought by the 2 nd
Respondent and nothing was argued for the setting aside the Sale
and Purchase Agreement. The 2nd Respondent had renovated the
unit, and was not seeking to rescind the sale. Instead, compensation
RM50,000.00 for receiving the wrong unit had been sought, which
the 1st Respondent had seen fit to award.
24. It did not seem to be the case that the 2nd Respondent had claimed
to have spent RM50,000.00 for renovation leading to the maximum
award within the jurisdiction of the 1st Respondent of RM50,000.00
being awarded. That may have been a valid complaint to have been
made, but did not appear to be the case here.
26. As to the lack of natural justice, I find that procedurally, parties have
had their opportunity to make out their case and defence, where no
failure had arisen. The informal manner of production and
admissibility of documents cannot be faulted in a tribunal hearing.
No unfairness could be detected.”
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Service Unions & Ors v. Minister for the Civil Service [1985] AC 374 on
the principle of judicial review. The learned JC also cited the case of Ketua
Pengarah Hasil Dalam Negeri v. Alcatel-Lucent Malaysia Sdn Bhd &
Anor [2017] 1 MLJ 563 and the case of Telekom Malaysia Bhd v.
Tribunal Tuntutan Pengguna & Anor [2007] 1 CLJ 300 on the governing
principles of law applicable to the process of judicial review.
Our Decision
[15] Learned counsel for the appellant, Dato’ Seri Gopal Sri Ram main
complaint was that the decision making process was flawed due to the
above two issues. On the issue of natural justice, it was submitted that
there was insufficient time for the appellant’s representative to prepare her
case given the voluminous exhibits and documents. Upon receiving all the
relevant materials, the appellant’s representative at the Tribunal’s hearing
was not given sufficient time or adequate opportunity to prepare her case.
The learned President only gave 15 minutes for her to prepare which was
not sufficient for the appellant to make informed representations.
Therefore, learned counsel argued that the appellant was not given a fair
opportunity to meet the case.
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[17] The Federal Court in R Rama Chandran’s case held that the
decision of the interior tribunal may be reviewed on the grounds of illegality,
irrationality and possibly proportionality. In a recent Federal Court case of
Akira Sales & Service (M) Sdn Bhd v. Nadiah Lee bt. Abdullah and
another appeal [2018] 2 CLJ 513; [2018] 2 MLJ 537, the position of the
law on judicial review was extended that the court not only can review the
decisions making process but also merit of the decision. The courts are
permitted to scrutinise such decisions not only for the process but also for
the substance [see also: Datuk Bandar Kuala Lumpur v. Zain Azahari
Zainal Abidin [1997] 2 CLJ 248 per Gopal Sri Ram JCA (as he then was)].
“By ‘illegality’ as a ground for Judicial Review I mean that the decision
maker must understand directly the law that regulates his decision making
power and must give effect to it. Whether he has or not is par excellence
a justiciable question to be decided, in the event of a dispute, by those
persons, the judges, by whom the judicial power of the state is
exerciseable.
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Rayuan Sivil No: J-01(A)-22-01/2019
[20] Finally, on the same issue, we are guided by the Federal Court
decision in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn
Bhd & Another Appeal [1995] 3 CLJ 344 at page 348:
“In exercising judicial review, the High Court was obliged not to interfere
with the findings of the Industrial Court unless they were found to be
unreasonable, in the sense that no reasonable man or body of men could
reasonably come to the conclusion that it did, or that the decisions of the
Industrial Court looked at objectively, are so devoid of any plausible
justification that no reasonable person or body of persons could have
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[21] In the present appeal before us, the appellant wanted to quash the
decision of the Tribunal on the grounds that the rules of natural justice had
been breached and that there was procedural unfairness by the Tribunal.
In order to decide on the two issues, this Court must review the decision of
Tribunal to determine whether the decision was arrived at arbitrarily,
capriciously or mala fide or as a result of unwarranted adherence to a
principle or in order to further an ulterior or improper process, or
misconceived the nature of the discretion conferred and took into
consideration irrelevant issues or had blatantly ignored relevant ones.
[22] We had the opportunity to peruse the appeal records. It was not
disputed that after taking vacant possession, the second respondent
complained to the appellant that a wrong unit was given to him. In his letter
of 4.12.2017, the second respondent complaint:
[23] On 2.1.2018 the second respondent filed a claim with the Tribunal in
Form 1 claiming for RM50,000.00. Second respondent repeated the same
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Rayuan Sivil No: J-01(A)-22-01/2019
complaint in the Claim Form. In his oral evidence during the trial before the
Tribunal, he repeated the same complaint. The appellant responded by
filing its defence in Form 2 on 22.1.2018, alleging amongst others that:
[24] The matter was fixed for first hearing on the 24.4.2018 but was
postponed at the request of the appellant for settlement purposes. The
matter was fixed for hearing on 15.5.2018. On that day, the second
respondent informed the Tribunal that the appellant had changed few
pages of the original S&P which was signed by the second respondent on
the 23.8.2013. The matter was then adjourned to 7.6.2018 to enable
parties to call witnesses. In his evidence, second respondent maintained
his allegation that the original S&P which he signed have significantly
changed without his knowledge and that 25 out of 26 pages have been
swapped as follows:
(ii) Original title is HSD 446608 PTB 22056. The stamped copy
has a different number;
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Rayuan Sivil No: J-01(A)-22-01/2019
(iii) Land size stated in the August agreement was 44,856 hectares.
In the stamped copy, the size was different, only 41,866 square
meters;
(iv) Land was not charged when I signed in August, but the
stamped copy shows land charged to Malayan Banking
Berhad;
(vi) In “P6” there were “wet kitchen” and “dry kitchen”, washer &
dryer, island kitchen, kitchen cabinet, air conditioner in dining
area, but in “P8” these items have been deleted…..
[25] Second respondent’s witness, Soh Hup Ping (SP2) produced two
sets of stamped S&P both dated 30.12.2013 one stamped as “ORIGINAL”
(P1) and the other “DUPLICATE” (P2) respectively. In P1, the
diagrammatic plan showed 8 levels consisting of 7 levels of car parks and
a podium level whilst in P2, the plan showed 6 levels of car parks and
podium level. However, the numbering of those levels remained the same.
The learned President of the Tribunal found that:
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[26] After second respondent closed his case, the appellant called their
two (2) witnesses to rebut second respondent’s case. After hearing parties’
submission, the learned President delivered his decision after allowing 15
minutes for the appellant’s representative to state her case.
[27] Based on the above narrative, we disagree with the learned counsel
for the appellant contention that there was a breach of the rules of natural
justice. There were ample times given to the appellant to prepare their
case. It was also our view that no prejudice had occurred and the element
of surprise does not arise. The appellant was fully aware of the second
respondent complaint from the beginning and knowing what was the
second respondent claim against them. The claims had been dealt with by
the learned President in accordance to the normal procedure as spelt down
in the Act and the Regulations. There was no evidence of procedural
unfairness on the part of the learned President of the Tribunal. Right to be
heard was fully given and exercised by the appellant.
[28] Likewise, in our considered view, the learned JC had not committed
any appealable error when his Lordship dismissed the appellant’s
application for judicial review to quash the decision of the Tribunal. The
learned JC had fully appreciated the facts and the law applicable before
him. He had examined carefully the decision of the Tribunal not only in
relation to the process but also the substance to satisfy himself that the
decision of the Tribunal was not tainted with illegality, irrationality or
procedural impropriety.
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[29] We unanimously agreed that the decision of the Tribunal was rational
and not acted in excess of its jurisdiction. We are satisfied that the decision
of the learned President of the Tribunal was not tainted with illegality,
irrationality or procedural impropriety.
[31] For the above stated reasons, we were of the unanimous view that
there was no merits in the appeal. Therefore, the appeal was dismissed
with costs of RM15,000.00 subject to payment of allocatur fees. Decision
of the High Court was affirmed.
signed
(KAMARDIN BIN HASHIM)
Judge
Court of Appeal
Malaysia
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Counsel
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