News: Housing tribunal’s RM90,000 award for defects overturned

Dec 4, 2020

Three buyers of double-storey homes lost the RM90,000 award for defects they received from the housing tribunal after the High Court quashed such award.

According to Judicial Commissioner K Muniandy, the tribunal chairman acted outside his jurisdiction and was swayed by the house buyer’s plight, while sidestepping the developer’s right, reported Free Malaysia Today (FMT).

“To do so, smacks of unreasonableness as it is devoid of any plausible justification,” he said in his judgment and quoted by FMT.

Learn more about defect liability and the issues that may arise during the defect liability period!

He also ordered each of the three buyers – namely, Chan Cheng Yong, Lim Chin Yee and Ng Tiong Ruen – to pay the developer, First Success Sdn Bhd, RM3,000 as costs.

The three, who acquired the housing units at a scheme in Gerik, have appealed their case to the Court of Appeal.

In January 2017, they filed a complaint to the tribunal for developer’s breach of sale and purchase agreement.

The developer argued that the buyers failed to provide any notice of the defects as per agreement prior to filing a claim with a tribunal.

In December 2018, the developer’s workers and representative visited the three premises to carry out repair works. However, they were prevented from doing so due to a stop-work order.

Muniandy noted that the tribunal chairman awarded Chan RM30,000, Ng RM29,800 and Lim RM28,600 in March 2019, based on the evaluation report made by the technical inspection team sent to investigate the defects.

He described the decision-making process of the tribunal as fraught with multiple laws as well as inconsistencies, which prejudiced the applicant, or in this case – the developer.

“The applicant has been successful in demonstrating procedural impropriety and unreasonableness as well as illegality in the decision-making process…It has to be iterated that the chairman had conducted the proceeding with settlement by parties as foremost,” he said.

“What is paramount is that if the settlement via mediation has failed, it is only proper for the tribunal to get on with the hearing of the case via oral testimony, which is subject to cross-examination by the applicant.”

Muniandy explained that a technical team to inspect and report on the defects should have been ordered only when the buyers had ventilated their grievances, with a finding made by the tribunal.

“That would be consonant with the fact finding inquiry by the tribunal at all material times,” he said.

Hence, the ex-parte rulings made by tribunal without adequate and proper submission by parties, who were unpresented by lawyers, did not augur well for proceedings of this nature.

 

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Zainal Zikri Zainal Abidin
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