THE EDGE MARKETS. 4TH JANUARY: The minister in charge of housing has the power to grant an extension of time to developers for the delivery of vacant possession of houses that could not be completed on time, the Federal Court ruled on Wednesday (Jan 4).
The court decided this when dismissing an appeal by 184 purchasers against developer Bluedream City Development Sdn Bhd, along with the then Housing, Local Government and Urban Wellbeing Minister as well as the controller of housing at the ministry.
The apex court bench — led by acting Court of Appeal (COA) president Tan Sri Abang Iskandar Abang Hashim, who is also the Chief Judge of Sabah and Sarawak — unanimously refused to grant leave to the purchasers on two questions of law posed by them.
“The decision is unanimous that the appellants have not passed the threshold under Section 96 of the Courts of Judicature Act. The leave application is dismissed with no order as to costs,” Abang Iskandar said.
The other members of the bench were Federal Court judges Datuk Rhodzhariah Bujang and Datuk Mohamad Zabidin Mohd Diah.
In civil cases, appellants have to gain leave (permission) from the apex court before the merits of the appeal is heard fully.
On a related subject matter, the apex court had ruled previously (in the case of Ang Ming Lee and others vs the Housing, Local Government and Urban Wellbeing Ministry and another) that the controller of housing has no right to grant an extension of time to the developer on behalf of the minister, as such power for extension is only allowed to be granted by the minister.
The purchasers through their solicitor Messrs KL Wong had posed two questions of law to be decided:
- Whether the minister is required to afford a right to be heard to the affected party prior to a decision being made under Regulation 12 of Housing Development (Control and Licensing) Regulations 1989 (HDR), and
- Where the controller’s decision is null and void by reason of Regulation 11(3) of the HDR being declared ultra vires (beyond the power), whether the minister’s decision made under Regulation 12 of the HDR arising from an appeal against the said decision of the controller is also null and void?
Messrs Sanjay Mohan and counsel Datuk Lim Chee Wee, along with Wong Li Wei and Tan Jia Shen, appeared for Bluedream City Development.
The outcome of the decision was confirmed by Lim and senior federal counsel Liew Horng Bin, who appeared for the ministry and Controller of Housing.
Property developer Bluedream City built the service apartment at the Mines Resort here in Seri Kembangan, Selangor.
The company was first granted a six-month extension, and it was further given a 17-month extension of time by the minister, which was subsequently challenged by the property owners.
The High Court then allowed the property owners’ judicial review where it held that Regulation 11(3) of the HDR is ultra vires of the Housing Development Act (HDA) and ruled the two extensions as unlawful.
The COA in January last year overturned the High Court’s decision where it held the purchasers have no right to be heard prior to the decision made by the minister, since there is no express requirement under the HDA or the regulations.
“Whereas here, there is no express requirement of a right to be heard that must be given to the purchasers, what is important is that the minister must act fairly…
“In this context, insistence on requiring that the purchasers be heard prior to the minister’s decision would have been a mere formality,” COA judge Datuk Lee Swee Seng said in allowing the developer and the ministry’s appeal.
The COA decision, which was upheld by the Federal Court, meant the minister has the statutory power to alter or modify the sale and purchase agreement (SPA) between a purchaser and a developer to extend the time under the SPA for the delivery of vacant possession.
Furthermore, it also meant that the purchasers do not have a right to be heard before the minister comes to the decision to grant the extension of time.