PUTRAJAYA (July 7): The Court of Appeal had yesterday unanimously dismissed the appeal by Johor-based developer Country Garden Danga Bay Sdn Bhd for a judicial review of decisions by the High Court and the Tribunal of Homebuyers Claims that awarded seven buyers of a service apartment damages for late delivery claims.
The decision was made by a three-member bench led by Datuk Yaacob Md Sam which upheld the Kuala Lumpur High Court’s decision on July 17, 2019 that in turn supports the tribunal’s decision to award damages after the developer had failed to complete the properties within 48 months from the day the buyers paid the deposits.
The bench found there was no misdirection by High Court judge Datuk Nordin Hassan in dismissing the judicial review, after ruling that the tribunal itself had the jurisdiction to hear the liquidated ascertained damages (LAD) claims filed within the time frame that is set out under Section 16N(2)(a) or (b) of the Housing Development Act (Control and Licensing Act) 1966 (HDA).
The decision yesterday was confirmed by counsel Viola Lettice DeCruz and Justin Leong, one of the affected property buyers, with theedgemarkets.com.
The other two appellate court judges are Justices Datuk M Gunalan and Datuk Ghazali Cha.
In addition, DeCruz — who appeared with Chua Yi Xie for six of the seven property owners — said the developer had also been ordered to pay RM7,000 costs each to the property owners.
Country Garden Danga Bay was represented by senior counsel Datuk Seri Gopal Sri Ram, James Patrick Monteiro and Yasmeen Soh Sha-Nisse.
The tribunal had previously awarded the property owners between RM13,834.78 and RM32,682.26 in damages for the late delivery of their parcels in the property.
They had paid their deposits for the property between May 17, 2013 and Oct 5, 2013 while the sales and purchase agreements (SPAs) were signed on Dec 30, 2013.
The developer was under contract to complete the properties within 48 months.
Vacant possession of the properties was given between Sept 25, 2017 and March 11, 2019, leading to the buyers claiming LAD.
The tribunal then awarded the damages, resulting in the judicial review application filed at the High Court to challenge the tribunal's findings.
Developer sought to quash tribunal award, arguing that vacant possession begins from SPA date
In the judicial review, Country Garden Danga Bay sought to quash the award by the tribunal as well as a declaration that vacant possession begins from the date of the SPA.
The company argued that the LAD should be calculated based on the SPA and not from the booking date or the payment of deposit date.
However, according to DeCruz, the Federal Court had recently decided in January with the PJD Regency Sdn Bhd vs the tribunal case and other appeals that the LAD should be calculated from the date of the booking fees’ payment.
Hence, the focus had shifted to the issue of whether the tribunal had jurisdiction to hear the house buyers' claim for LAD as the developer argued that the claim for damages should be filed not more than 12 months from the issuance of certificate of completion and compliance (CCC).
However, the house buyers' legal representatives argued that the claim could be brought within the period stipulated under Section 16N(2)(a) or (b) of the HDA and the High Court judge was right.
Section 16N(2) stipulates that the claim can be brought within 12 months either from the CCC issuance and the expiry date of defects liability stipulated in the SPA, and from the date of termination of the SPA by either party before the date of issuance of the CCC.
According to DeCruz, the appellate court in arriving at the decision to dismiss the appeal had relied on the Federal Court decision in the Westcourt Corporation Sdn Bhd vs Tribunal to rule the tribunal had jurisdiction to hear LAD claims based on the time frame set out under Section 16N(2).
Meanwhile, Leong said they lodged a complaint to the Johor Housing tribunal in 2018 after the handover was done in 2017 and the tribunal made the award.
He urged house buyers to check the background and capability of the developer before deciding to purchase a property.
Country Garden Danga Bay, in a statement, said it has always respected the interests of the house owners and will continue to strive to provide better services to the residents as well as surrounding communities.
"The company respects the decision by the Court of Appeal and is currently discussing with legal experts and will reserve our right to seek leave to appeal to the Federal Court," the statement issued today read.