1.0 INTRODUCTION
Ever since the establishment of our country Malaysia in the year 1963, we have always been relying to the hierarchy of the court which is the Federal Court, High Court of Malaya, High Court of Sabah and Sarawak, Magistrate and Session Court. Despite all of the existing courts, our country need special courts to cover the jurisdiction of certain cases that arises in our country because not all judges are experts with the jurisdiction in all fields. Therefore, special courts are being established such as the juvenile court, Syariah court and one of the newest establish special court which is the tribunal for the homebuyer’s claim court. It is one of the recent body that was established by the government to settle dispute regarding the homebuyers and the housing developers . It was established in the year 2002 under the Housing Development (Control & Licensing). According to the Merriam Webster dictionary, tribunal is defined as a court of forum of justice and something that decides or determines .
2.0 ESTABLISHMENT
On 1st December 2002 , to hear and determine a claim for any loss suffered or any matter concerning his interests as a homebuyer under the Housing Development (Control and Licensing) Act, 1966 (Act 118), they established the Tribunal for Homebuyer Claims . Since the beginning, the Tribunal has played a major and vigorous role in the adjudication of disputes between homebuyers and housing developers. A homebuyer here embraces a person who has then purchased a housing accommodation from the first purchaser of the housing accommodation.
The Tribunal has provided an informal and appropriate venue for a dispute between the homebuyer and the housing developer to be heard and determined. There are no rigid rules on procedure and the Tribunal may adopt such procedure as it thinks fit and proper. No proceedings of the Tribunal or award or other document of the Tribunal may be set aside for want of form. Furthermore, the Tribunal is now empowered to fix or correct clerical mistakes in any ward or errors arising therein from any accidental slip or omission, at any time.
Legal representation is not permitted unless the Tribunal is of the opinion that the matter in question involves complex issues of law and one party will suffer severe financial hardship if he is not represented by any lawyer. If one party can be legally represented, then the other party shall also be so entitled, and the filing fees are kept to a nominal sum of RM10 for each pleading.
Under Act 118, the Tribunal is required to make its award without delay and, where practicable, within 60 days from the first day of hearing before the Tribunal. Generally, nowadays a claim is heard within two months from the date the claim is filed by the homebuyer and an award is usually made between two to four weeks after conclusion of the hearing. Hence, much time and cost are saved by homebuyers who choose to bring their claims before the Tribunal.
Although the claim is required to be based on a cause of action arising from the sale and purchase agreement between the homebuyer and the housing developer, any claim lodged may include loss or damage of a important nature. However, the Tribunal is not empowered to award any damages for non-pecuniary loss or damage and the Tribunal is not authorised to deal with a claim arising from personal injury or death.
3.0 JURISDICTION
Jurisdiction of Tribunal for Homebuyer Claims (TTPR) is to determine a claim where the amount of claim does not exceed RM 50,000. The claim would only be based on a cause of action arising from the sale and purchase agreement between the homebuyer and the licensed housing developer. To make a claim against the housing developer, the homebuyer must make the claim not later from 12 months from;
a) The date of the issuance of the certificate of completion and compliance for the housing accommodation or the common facilities.
b) The expiry date of the defects liability period as set out in the sale and purchase agreement.
c) The date of the termination of the sale and purchase agreement by either party and such termination occurred before the date of issuance of the certificate of completion and compliance.
But, this tribunal also have limits in their jurisdiction as stated in Section 16N of Housing Development (Control and Licensing) Act 1966 where they cannot determine claims about;
a) Recovery of land, or any estate or interest in land.
b) Dispute concerning entitlement under a will or settlement or on intestacy.
c) Dispute concerning goodwill.
d) Dispute concerning chose in action.
e) Dispute concerning any trade secret or other intellectual property right.
There are two types of claims that can be made to the tribunal which are technical claim and non-technical claim. Technical claim are like damages for non-compliance to specification, omission of work, damages for defective workmanship and etc. Meanwhile for non-technical claim are like Liquidated Ascertained Damages (LAD) / Compensation for late delivery, late delivery of common facilities, deposit refund, and refund of late interest charges .
There is no rigid procedure for the hearing as the idea of having this tribunal is to keep things simple with no strict rules and procedures to comply with. Both parties also cannot be represent by advocate and solicitor. To make a claim, the homebuyer (claimant) may lodge his claim with the Tribunal in Form 1, enclosing his statement of claim and a fee of RM10. Both parties must attend the hearing, or if they are unable to attend, issue a letter authorising a representative to act on their behalf. Once Form 1 has been filled, the claimant must personally serve a copy on the developer either by hand (receipt must be acknowledged) or by AR registered mail.
The developer may file his defence or counter-claim in Form 2 with a fee of RM10 within 14 days of receiving a copy of Form 1. The claimant may file his defence to the counter-claim in Form 3 with a fee of RM10. The tribunal secretary will issue a notice in Form 4 stating the date, venue and time of the hearing on both the claimant and the developer, in not less than 14 days before the date of the hearing.
During the hearing, both parties can provide evidence, call any witnesses, or tender any documents, records or things necessary in support of their respective claims. After completion of the hearing, the tribunal will make an award. The award must be complied with within the stipulated period set by the Tribunal’s President. Any person who fails to comply with an award made by the tribunal, as stated in Section 16AD of the act, had commits an offence and upon conviction shall be liable to a fine not exceeding Five Thousand Ringgit (RM5,000) or to imprisonment not exceeding two years or both. In the case of a continuing offence, the offender shall be liable to a fine not exceeding One Thousand Ringgit (RM1,000) for each day until the award is abided by . Last but not least, the award of the tribunal can be challenged if there is a party feels that the award of the tribunal erroneous. The unsatisfied party may apply to High Court to review the decision made by the tribunal .
4.0 DEVELOPMENTS
At the time when the Tribunal was first introduced there were many loopholes of the provisions of the HDA, refers to Housing Development (Controlling and Licensing) Act 1966 and regulations . Those deficiencies are observed to be in terms of non-clarity of the date of commencement of the operation of the Tribunal, limited monetary jurisdiction, limited period for purchaser to file complaints, a purchaser can claims only against a developer and not against any other persons involved in the construction, limited specific remedy for purchaser, availability of counter claim procedure for a developer, limited provision for representative action, limited sittings of the Tribunal, homebuyers may face the risk of criminal penalty and problems to enforce the award. The forgoing paragraphs will discuss whether those mentioned deficiencies have been improved during the period of its commencement.
First, when the Tribunal was first introduced, there was no clear provision on whether the amendment of HDA in 2002 on establishment of the Tribunal would have a retrospective effect. Due to this ambiguity, powers of the Tribunal has been challenged in the case of Puncakdana Sdn. Bhd. V Tribunal for Housebuyers’ Claims and Another Application where the court ruled out that the Tribunal had no jurisdiction to hear the claim that based on the sale and purchase prior to enforcement of the Tribunal .
Similarly the jurisdiction of the tribunal has been questioned when a purchaser by the name of Tan Geok Moi sued the developer, Westcourt Corporation Sdn Bhd for liquidated damages for late delivery of vacant possession. The Tribunal ordered the developer to pay RM13,926.74 to the purchaser. Upon the pronouncement of this award, the developer referred the case to the High Court for review. The High Court, held that the Tribunal had no jurisdiction to hear such claims because the sale and purchase agreement was entered into before 1st. December 2002 and give such orders as prayed for by the developer. Decision of the High Court has been confirmed by both Court of Appeal and Federal Court .
Due to the above cases, amendments to section 16N(2) to the HDA has been made in 2007 in which it provides a clear period within which a claim against a developer maybe filed before the Tribunal.
Nevertheless if compare with the Sabah Enactment, it provides a better provision and wider right to a purchaser. Sabah Enactment clearly mention that the Tribunal shall have jurisdiction to hear a claim which arose prior to the setting up of the Tribunal that is confined to the claim related to any loss suffered or any matter related to interests that derived from the sale and purchase agreement. Apart from that, the Enactment also provides that a purchaser may file a claim against a developer even before the issuance of the certificate of fitness, irrespective whether a sale and purchase agreement is terminated or not. On the other hand, the HDA just provides that a claim may only be filed after the issuance of the certificate of fitness. If it is to be done before the issuance of the certificate of fitness, it can be made only after termination of the sale and purchase agreement. This means that under the HDA, in case of abandoned housing project, a purchaser may be able to file a suit against a developer (where there would be clear situation certificate of fitness is not to be issued) only after application to terminate the sale and purchase agreement is made. Thus it will involve delay for a purchaser to enforce his right to file the case before the Tribunal. On the other hand, under the Sarawak Ordinance the time limit to file the claim is very limited in scope in which it only be filed at any time not later than twelve months from the date of the issuance of the occupation permit or before the expiry date of the defect liability period as set out in the sale and purchase agreement, whichever is later.
Second, initially a monetary jurisdiction of the Tribunal was only twenty five thousand (about 5,815 Euro) This limited jurisdiction has created many problems to purchasers because there could be many claims exceeding twenty five thousands in which it end up that purchaser still have to resort their claims before the ordinary court. For instance claim for late assessment damages. Thus, in the recent amendment, a monetary jurisdiction of the Tribunal has been extended to fifty thousand (about 11,632 Euro). This means that the monetary jurisdictions of the Tribunal is higher than the magistrate’s court and Consumer Protection Act 199930 that is only twenty five thousand (about 5,816 Euro).
Comparatively under the Sabah Enactment, the Tribunal shall have jurisdiction to hear a claim where the amount in dispute or the value of the subject matter does not exceed the amount to be determined by the Minister, pending which, the amount shall be forty thousand ringgit (about 9,306 Euro). It is observed that the monetary jurisdiction of Tribunal for Housing Purchaser in Sabah is not limited to forty thousand only because the minister shall have a power to determine any amount of claim which may be filed before the tribunal. This wide power that is given to the Minister will enable him to enlarge the jurisdiction of the tribunal, when necessary. The same principle applicable in case a developer has a counter claim against a purchaser.
On the other hand under Sarawak Ordinance, it’s tribunal can make awards to house purchasers to forty thousand ringgit only, and to a maximum of eighty thousand ringgit only (about 18,548 Euro), subject to mutual agreement and ministerial approval. Meaning that, the tribunal has a monetary jurisdiction of forty thousand, but with consent of the Minister and mutual agreement, the monetary jurisdiction may extend to eighty thousand ringgit. Thus, according to this provision, even if the Minister is given a power to extend the monetary jurisdiction of the tribunal, his power is subjected to two conditions i.e. the extension of monetary jurisdiction shall not exceed eighty thousand ringgit and such an extension may be made when there is a mutual agreement. However it is not clear in the provision that the mutual agreement here is between the Minister and house purchasers or between parties to the claim i.e. a house purchaser and a developer. It is better for the Tribunal under the HAD as well as Sarawak Ordinance to adopt the provision of Sabah Enactment as regards to this monetary jurisdiction where a wide power is given to the Minister. Under the HDA, even though the Tribunal may have a monetary jurisdiction beyond fifty thousand ringgit, it needs an agreement in writing of parties to the claim. Thus, if a developer disagrees, nothing can be done by a purchaser because a Minister is not given any discretion under the HDA to extend the pecuniary jurisdiction of the tribunal as available in the Sabah Enactment.
Cases
For recent case, which in the period of 2010 until 2018. There was a file complaint in the case of ABT Construction Sdn Bhd & Anor v Tribunal Tuntutan Pembeli Rumah & Ors in 2013 . The first applicant contractor and the second applicant vendor ('the applicants') had entered into a sale and purchase agreement ('the SPA') with the respondent purchasers ('the respondents') for the sale, construction and disposal jointly by the applicants of a completed bungalow on a piece of land in Kedah, which was owned by the second applicant vendor. The respondents had made a claim for late delivery of the completed bungalows. The applicants had counterclaimed to recover the interest accrued on late settlement of progress payments by the respondents. The court held that, dismissing the application with costs is based on the facts as a whole it was clear that the activity as evidenced by the terms of the SPA, which was undertaken by the applicants, involved the sale of more than four units of 'housing accommodation' and was therefore clearly within the definition of 'housing development' as defined in the Act. Further, the fact that the 'housing accommodation' were being constructed at separate times, ie four at a time, was irrelevant and a non-issue for the purposes of the definition. In the circumstances, the decision and award of the tribunal was not tainted by any illegality, irrationality or procedural impropriety to merit curial intervention.
In 2017, in the case of Tan Sri Abdul Khalid bin Ibrahim v Bank Islam Malaysia Bhd, High Court Kuala Lumpur . The Bank Islam Malaysia Bhd ('the bank') had granted Tan Sri Abdul Khalid bin Ibrahim ('the plaintiff') a revolving al-Bai Bithaman Ajil agreement (the BBA facility), an Islamic financing facility. In order to achieve the objective of this facility the parties had intended to bind themselves by the Shariah principles of al-Bai Bithaman Ajil. Pursuant to the terms of the BBA facility, the plaintiff had executed seven sets of asset purchase agreements and asset sale agreements (the BBA facility agreements) at six monthly intervals. The plaintiff was dissatisfied with the conduct of the bank in connection with the BBA facility, which he alleged contravened the religion of Islam. The plaintiff thus commenced a suit against the bank (the plaintiff's suit) and sought, inter alia, a declaration that the BBA agreements entered into by both parties were null and void. The bank denied the plaintiff's allegations and pleaded that under civil law and Shariah principles, parties were bound by their agreements and thus the plaintiff was bound by the clear terms of the BBA facility agreements. Subsequently, the bank commenced a debt recovery action ('the defendant's suit') against the plaintiff alleging that the plaintiff had defaulted the terms of the BBA facility. The court held that, allowing the application with costs in the cause, based on the allegations raised by the plaintiff and the defence advanced by the bank, there were Shariah issues to be decided by this court. Based on the facts of this case it was found that there were Shariah issues for the ascertainment of the SAC, namely, whether the BBA facility agreements executed by the parties were contrary to the principles of Shariah; whether the bank was allowed to dispose of the shares pledged by the plaintiff as security under the agreements without his permission; whether the plaintiff's obligation to settle his indebtedness with the bank would be extinguished if the BBA facility agreements were found to be contrary to the principles of Shariah; whether there must be two distinct and separate contracts between the first and the second sale and if so whether there had been a violation in the present case; Whether the shares pledged with the bank which were already sold could be repurchased and resold. Both parties had also intended to bind themselves by the Shariah principles at the time the agreements were execute. It is settled law that ss 56 and 57 of the Act are valid federal laws enacted by Parliament and as such were not in contravention of the FC. Difference of opinion on Shariah issues relating to Islamic banking should be resolved within the SAC. It is advisable and practical that a special body like the SAC should ascertain the Islamic law most applicable to the Islamic banking industry in Malaysia.
5.0 CONCLUSION
In conclusion, the tribunal for the homebuyer’s claim is an effective way to settle a lot of disputes regarding matters related to the homebuyer’s and developers. Although, not many people are aware that they can achieve and claim their rights regarding housing matters through this tribunal as it is recently established, People are already starting to recognize it and fight for their justice. We think that it is a good solution for a lot of people as it gathers expertise in homebuying matters to settle the disputes which makes it easier for a lot of people to settle their disputes with a more effective way within a short period of time. Certain people do not want to initiate a case against the other party because it will take a long process for them to get their claims and the amount of money receive as the amount of compensation that will be receive as it is not worth the process. Therefore, I really think that the government should consider increasing the amount of compensation that can be claimed by those who suffered damage so that more people will initiate a legal case in the court to fight for their rights. The court also need a lot more judges that are experts in the tribunal for the homebuyer’s claim so that the cases will be judged wisely and justice will not be delayed.