Late Delivery Claims: Country Garden Danga Bay loses appeal at apex court

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Contributed by Datuk Chang Kim Loong

On April 13, the Federal Court dismissed the ‘leave applications’ brought about by Country Garden Danga Bay Sdn Bhd (CGDB) against a group of seven purchasers of a development project known as ‘Country Garden Danga Bay’ located in Johor Bahru.

It is to note that previously, CGDB’s Judicial Review applications were heard on July 17, 2019, whereupon the High Court dismissed the CGDB application for an Order for Certiorari to quash the Tribunal Awards (Housing Tribunal).

On July 6, 2021, the Court of Appeal unanimously dismissed the CGDB’s appeal and upheld the decision of the High Court and the award by the Housing Tribunal, in line with what the Courts have been interpreting.

Essentially, CGDB sought to challenge the decisions of the Tribunal for Homebuyers Claim which allowed the claim for late delivery interest.

Amongst others, CGDB contended that the Purchasers’ claims were filed out of time by virtue of s.16N(2) of the Housing Development (Control and Licensing) Act 1966 (HDA).

CGDB took the position that the deadline to file claim for late delivery interest was 12 months from the date of issuance of certificate of completion and compliance (as opposed to 12 months from the expiry of defects liability period).

Furthermore, CGDB contended that dates of payment of booking fees should not be used for purpose of computing the deadline to deliver vacant possession. In the course of submission, CGDB’s counsel attempted to persuade the Court to revisit the Federal Court’s decisions of Westcourt Corporation Sdn Bhd v Tribunal Tuntutan
Pembeli Rumah and PJD Regency v Tribunal Tuntutan Pembeli Rumah.

In response, the counsel acting for the Purchasers, Viola De Cruz and Claudia Silva submitted that the Westcourt and PJD Regency had deliberated the issues raised by CGDB.

Additionally, it was submitted that the purpose of the HDA would be defeated if limitation is fixed in narrow sense over section 16N(2) of the HDA.

The Federal Court panel of judges comprised of Tun Tengku Maimun Tuan Mat, Datuk Nalini Pathmanathan and Datuk Mohamad Zabidin Mohd Diah unanimously dismissed CGDB’s leave applications.

The Federal Court held that the questions raised by CGDB had been decided in past decisions of the same court and the present applications did not warrant a revisit of those decisions.

The National House Buyers’ Association (HBA) held a ‘watching brief’ and was represented by Albert Soo and Koh Kean Kang.

HBA wishes to congratulate the Purchasers for the victory today at the Federal Court as today’s decision has reaffirmed the long-held principle that purchasers of housing developments have 36 months from the date of delivery vacant possession to bring a claim at the Housing Tribunal for late delivery interest (12 months + 24 months defects liability period) as long as their claims arise from the SPA between the homebuyer and the housing developer.

The issues have been resolutely determined by a myriad of past cases laws and revisiting the same issues would merely muddy the waters and serve as a disservice to established principles of law.

HBA would also like to reiterate that the HDA is designed to protect purchasers and is a social legislation. This is reflected in the Federal Court’s earlier decisions which held that the protection of homebuyers must be the “paramount consideration” in matters concerning developers and purchasers.

At the same time, we would also like to thank the Federal Court for standing steadfast in upholding the rights of house purchasers.

Datuk Chang Kim Loong is the honorary secretary-general for the National House Buyers Association (HBA). Any opinions expressed are entirely the writer’s own.

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