The court upheld the principle that extensions to statutory contracts for housing developments cannot be made by the Controller, as such action is ultra vires the Housing Development Act, ensuring consumer protection.

JUDGMENT

Evrol Mariette Peters J:

Introduction

[1] This was an Appeal against the decision of the learned Sessions Court Judge (SCJ) in granting summary judgment ("this Appeal") pursuant to the Respondent's application under O 14 of the Rules of 2012 ("Rules of ).

[2] For ease of reference, the appellant and respondent were referred to respectively as the defendant and plaintiff.

The Factual Background

[3] The plaintiff, an individual purchaser, entered into a sale and purchase agreement ("SPA") with the defendant, the developer of the project known as Paragon Suites@ CIQ, for a parcel, together with an accessory parcel ("the Unit").

[4] The SPA was dated 24 September 2013, although the plaintiff had paid the deposit on 21 April 2013. The completion period was therefore 20 April 2016, which was 36 months from the date the deposit was paid.

[5] Delivery of vacant possession was, however, delayed to 15 June 2017. As a result, the plaintiff filed a claim ("the Claim") against the defendant, seeking liquidated ascertained damages ("LAD"). In March 2021, the plaintiff filed an application for summary judgment pursuant to O 14 of the Rules of , which was allowed by the learned SCJ.

[6] Dissatisfied, the defendant appealed, which appeal was dismissed for the following reasons.

Contentions, Evaluation, And Findings

Whether The Extension Granted Was Valid

[7] The defendant's contention was that the Controller of Housing ('the Controller') had, on 16 October 2013, granted an extension of nine months, which the defendant submitted, had extended the completion date to 24 July 2017, and thus contended that the learned SCJ had erred in allowing the Plaintiff's application for summary judgment.

[8] The decision of the learned SCJ was based on the principles enunciated in the Federal Court case of Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals, 2019 MarsdenLR 2737 ("Ang Ming Lee"), in which it was held that reg 11 of the Housing Development (Control & Licensing) Regulations 1989 ("the Housing Development Regulations"), empowering the Controller of Housing ('the Controller') to make any change to the provisions of Schedule H, was ultra vires the Housing Development (Control & Licensing) Act 1966 ("the Housing Development Act"). The provision reads:

Regulation 11 - Contract of sale.

...

(3) Where the Controller is satisfied that owing to special circumstances or hardship or necessity compliance with any of the provisions in the contract of sale is impracticable or unnecessary, he may, by a certificate in writing, waive or modify such provisions:

[9] The plaintiff contended that the SPA, which was a statutory contract, was governed by Schedule H to the Housing Development Regulations, and, therefore, the decision of the Controller in granting an extension of nine months, was not valid. Clause 26 of Schedule H reads:

Time for delivery of vacant possession

26. (1) Vacant possession of the said Parcel shall be delivered to the Purchaser in the manner stipulated in clause 27 herein within thirty- six (36) calendar months from the date of this Agreement.

[Emphasis Added]

[10] In my view, the plaintiff was correct in his submission, pursuant to the decision of the Federal Court in Ang Ming Lee, in which it was held that reg 11 of the Housing Development Regulations, was ultra vires as changes to the statutory contract could not be allowed.

[11] The opinion of the Federal Court, through Tun Tengku Maimun Tuan Mat CJ on the validity of s 24 of the Housing Development Act and regulation 11 of the Housing Development Regulations was as follows:

On the above analysis, we hold that the Controller has no power to waive or modify any provision in the Schedule H Contract of Sale because s 24 of the Act does not confer power on the Minister to make regulations for the purpose of delegating the power to waive or modify the Schedule H Contract of Sale to the Controller. And it is not open to us to read into the section an