DISCRETIONARY POWER

Minister of Labour v Chan Meng Yuen and another appeal [1992] 2 MLJ 337

The respondent was a general manager at Magnum Corporation Bhd after initially working there as an
accountant. Following a discussion of the organization's management requirements, he was
subsequently informed by the corporation that he would be retrenched. Unsatisfied with that, the
respondent filed an appeal against the dismissal which then the company offered the respondent a
Manager position to resolve the problem. Nevertheless, the respondent considered that he had been
dismissed without just cause or excuse and accordingly made representations to the Director General of
Industrial Relations. The Director General informed the Minister that there was no likelihood of a
resolution following a conciliation meeting he recently held. The Minister made the decision not to send
the complaints to the Industrial Court. Therefore, the respondent applied to the High Court for orders of
certiorari and mandamus which were granted then.

ADJUDICATION

Country Garden Danga Bay Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2022] 5 CLJ 173

The second respondent had purchased a unit of apartment from the appellant. The sale and purchase
agreement were entered between the respondent and the appellant who was the developer of the
apartment. However, later than, the second respondent filed a homebuyer's claim against the appellant
at the first respondent, the Tribunal for Homebuyer Claims (the "Tribunal"). The second respondent
claimed that the appellant had been assigned incorrect unit in violation of the SPA. The second
respondent contended that he was entitled to get the apartment with a covered balcony instead of an
open balcony. Therefore, the Tribunal awarded the second respondent of RM50,000 on the ground that;

i) There were unauthorized alterations to the specifications in the SPA

ii) As such, they amend the specifications of the SPA under para. (e) of ss 16Y(2) of the Housing
Development (Control and Licensing) Act 1966 to give the rights of the purchaser to the
second appellant i.e., the unit with a covered balcony.

Dissatisfied over such decision, the appellant seek for an order of certiorari to quash the Tribunal’s
decision.

Issues

1. Whether Section 16N(2) of the Act prohibits the Tribunal from having jurisdiction over a claim
that is not based on an express provision of the SPA or such specifications must match with the
homebuyer’s expectation on the display model at the developer’s showroom even though it is
not mentioned in the SPA.
2. Whether the Tribunal having a capacity to “vary or set aside” the contract under s. 16Y(2)(e) of
the Act that provides authority to add its own specifications to the unit that the homebuyer
purchased i.e., to include a covered balcony which was not included in the original SPA and to
award damages in lieu of the contract.
3. Whether the said jurisdiction is properly exercisable only to ensure that the terms of the
contract are in compliance with the Schedule H or not.
 4. Whether there is a breach of natural justice since the homebuyer did not receive any notice
regarding the alteration of the SPA.

Reasoning

i. The award by the Tribunal was against the provisions of the SPA and contradicted the
findings in the report. It is because the second respondent relied on the display model
instead of the SPA entered between the appellant and the respondent. The display model
shows that the unit will be a sheltered balcony not an opened balcony. However, such fact is
not included as a term of the SPA and the second respondent also not mentioned of him
getting a covered balcony.

The tribunal's decision went against SPA provisions and was in contrast with the findings of the
technical inspection report. Despite the fact that the SPA did not include a provision for a covered
balcony, the tribunal decided to accept the second respondent's claim.

In Akitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd, the court observed that if the Tribunal made a
decision outside of its jurisdiction, such decision will be null and void which automatically made the
decision unaffected to the parties.

The court also mentioned that they had perused the statement filed by the second respondent with
the tribunal and later it found that there was no mention of him getting a covered balcony as per his
claimed in the statement.

Any terms that were not provides in SPA cannot be added with the power of tribunal since there is
no provision that allows it to do so.

Therefore, the awards made by the tribunal towards the second respondent would be null and void
since it was against the provisions of SPA and contradicted with the findings in the report.

ii. The Tribunal did not have a power to set aside or alter the contract either wholly or in part
of it as provides in s. 16Y(2)(e) of the Act unless there is a clause in the SPA that is
inconsistent with the statutory terms of the Schedule. There is a limitation on the Tribunal's
power to a claim base on a cause of action arise from the SPA between both parties.
Therefore, the Tribunal was at fault in making an alteration to the content of specifications
under the SPA.

The tribunal indeed have an authority in this matter that been set out in section 16M of the Act.
However, it must be subjected to section 16N that mentioned the limitation of such jurisdiction and
section 16O that talks about the extension of jurisdiction subject to the agreement.

Nevertheless, to comply with this issue, it only concerned with the limitation of jurisdiction of the
tribunal that been set out in section 16N of the Act.

Section 16N(2) of the Act provides that the power of tribunal is limited only to a claim based on a
cause of action arise from the sale and purchase agreement entered into between the homebuyer
and the housing developer.
The tribunal did not have a power to rectify the SPA either to add or exclude any terms inconsistent
with the statutory terms provided in Schedule H of the Regulations as mentioned in section 16Y(2)
(e).

It also referred to the case of Encony Development Sdn Bhd v Robert Geoffrey Goach & Anor, where
the court held that the provisions in the SPA are not merely contractual but it is a statutory provision
which bind the housing developer and homebuyer to obey it as they are actually provisions of
Schedule H of the Regulations.

Thus, the court in view that the tribunal had no jurisdiction over matters following outside the SPA
and the second respondent’s complaint on this covered balcony issue cannot be added to the SPA
since it was originally not stated in the original SPA.

iii. There was no breach of natural justice since the appellant was fully aware of the allegation
of unilateral modification of the SPA two months prior to the hearing. Hence, it indeed gives
the appellant an opportunity to be heard before the final hearing, before the Tribunal to
check on the documents that will be presented during the hearing.

The appellant was fully aware of the allegation of unilateral modification of the SPA since he had
responded to the claimant’s letter dated 4 May 2018 i.e., before the occurrence of the hearing which
dated on 7 June 2018.

Hence, there was no breach of natural justice as the appellant was given ample opportunity to check
on the documents prior to the hearing.