The court upheld the legality of exemptions granted under the Covid-19 Act for delivery of vacant possession, affirming that such decisions did not violate constitutional rights or principles of natural justice.

Shahnaz Sulaiman J:

[1] In this judicial review application, the Applicants seek to challenge the decision of the First Respondent and/or Second Respondent in granting:

(i) the First Exemption (18 March 2020 to 31 August 2020) via a letter dated 3 October 2021;

(ii) the Second Exemption (1 September 2020 to 31 December 2020) via a letter dated 4 October 2022 of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020 ["Act 829"]; and

(iii) the Third Exemption of 365 days for the period from 1 January 2021 to 31 October 2021 pursuant to s 38C of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Amendment Act 2022 ["Act A1641"] via letter dated 25 January 2022, wherein the said 365 days in that period would be excluded in the calculation of the time period for delivery of vacant possession and completion of common facilities.

[Act 829 And Act A1641 Collectively Referred To As Covid-19 Act]

Reliefs Sought

[2] The main reliefs sought by the Applicant are:

(i) a declaration that the First Exemption, Second Exemption and Third Exemption are null and void; and

(ii) an order of certiorari to quash the First Exemption, Second Exemption and Third Exemption.

Factual Background

[3] The facts of this application has been gleaned from documents filed by parties.

[4] The First Respondent is the Minister responsible for housing matters under the Housing Development (Control and Licensing) Act 1966 ("HDA") and its Regulations. The Second Respondent is Director General of Jabatan Perumahan Negara.

[5] The Third Respondent is the licensed housing developer of the project, operating under the HDA.

[6] The Third Respondent entered into Sale and Purchase Agreements ("SPAs") with the Applicants, who are the buyers of units in the development.

[7] These SPAs follow Schedule G and reg 11(1) of the Housing Development (Control and Licensing) Regulations 1989 . Clause 24 of the SPAs requires vacant possession to be delivered within 24 months.

[8] The Third Respondent submitted letters dated 10 December 2020 to apply for an exemption of time for delivery of vacant possession under s 35 of Act 829. The Second Respondent, in accordance with subsection 35(1) of the Covid-19 Act, approved the First Exemption.

[9] The First Exemption was allowed with the following conditions imposed by the Second Respondent:

"(i) Pemaju memaklumkan kepada Pembeli berkenaan kelulusan ini secara bertulis dan melampirkan surat pemakluman kelulusan;

(ii) Pemaju hendaklah memastikan bahawa tempoh liability kecacatan mengambil kira pengecualian tempoh dari 18 Mac 2020 hingga 31 Ogos 2020;

(iii) Pemaju memaklumkan kepada pembeli sebarang denda lewat bayar yang dikenakan dari 18 Mac 2020 hingga 31 Ogos 2020 adalah dikecualikan dan tidak akan dikenakan kepada Pembeli; dan

(iv) Pemaju menyelesaikan sebarang denda ("LAD") sekiranya Pemaju gagal menyiapkan unit dalam tempoh pelanjutan yang ditetapkan." [See: 2nd Respondent's Affidavit - paragraph (17)]

[10] The Third Respondent submitted letters dated 3 January 2021 and 23 May 2022 seeking a Second Exemption of time for the delivery of vacant possession under s 35 of Act 829. Included in the submission was a letter from the project architect, Archi-Invent Architect, dated 31 January 2022, in support of the application. Pursuant to subsection 35(1) of the Covid-19 Act, the Second Respondent granted the second exemption on 14 July 2022 for a period of 167 days.

[11] The Third Respondent submitted an email dated 25 January 2022 and letters dated 10 February 2022 to apply for a time exemption for the delivery of vacant possession under subsection 38C(1) of Act A1641. The application was accompanied by Form A, which outlined the challenges faced and the necessity for a third exemption to be granted for a duration of 365 days, along with supporting documents. In accordance with subsection 38C(1) of the Covid-19 Act, the Second Respondent approved the Third Exemption on 11 October 2022