Mahadev Shankar JCA:

Compelling arguments have been made to us by Counsel for both parties, on whether or not a decision made by the respondent could and should be subject to judicial review.

The scope of these arguments, the complexity of the issues raised, and the multitude of Malaysian and Commonwealth authorities cited have all forced us to take some time to finalise this judgment.

Our hope is that it will help to clear some doubts on important points of public law.

History

Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan Berhad (the appellant) is a Co-operative Society registered under the Cooperative Societies Act 1948. The appellant owned the land comprised in Lot 006099 Mk. 13 D.T.L. Sungai Gelugor, Pulau Pinang (the said land) (p 1 of appeal record). The said land was 1.9 acres in area and had road frontage along Jalan Helen Brown.

On 22 March 1987 the appellant's members decided at an annual general meeting (AGM) that low-cost flats should be built on the said land (p 652 of the appeal record) to be sold to the appellant's members or their dependents.

Mr. Lawrence Loh (the architect) was engaged to process the necessary documentation and plans, which were for a "proposed single block of 10-storey flats (each under 700 sq. feet) which included 183 units of flats and 7 units of shops" and apply for planning approval.

On 21 April 1990 the appellant entered into a joint-venture agreement (the said agreement) (p 561 of the appeal record) with Rethiko Sendirian Berhad (Rethiko). The preamble to the said agreement states, inter alia: (1) that Rethiko has a license to develop housing schemes;

(2) that the appellant had applied for planning permission to put up 190 units and would try to obtain the maximum density of 100 units per acre; and (3) that Rethiko would pay the appellant RM900,000 if planning approval was obtained for 190 units.

The body of the agreement stipulated inter alia that:

(1) the appellant appointed Rethiko to develop and manage the project;

(2) the premium of RM900,000 would be paid in instalments;

(3) the appellant undertook and guaranteed to secure purchasers for all 190 units;

(4) the selling price of a two-bedroom flat measuring an average of 500 sq. feet shall not exceed RM32,000 and a three bedroom flat measuring an average of 650 sq. feet shall not exceed RM45,000 (Emphasis supplied);

(5) 110 units would be two-bedroom flats, 74 units would be three-bedroom flats, 5 units would be shop-houses and 12 would be shoplots outside the building;

(6) the appellant would be a party to all contracts of sale of the individual units;

(7) the appellant and Rethiko shall conform to the Housing Developers (Control & Licensing) Act 1966, and in particular regs. 5(5)(a), 10 and 11 of the Housing Developers (Control & Licensing) Regulations 1989;

(8) the developer shall not charge the said land but use its own financial resources to complete the project.

The appellant was to continue to own the said land until such time as it was required to transfer the units to its member purchasers, whereas the financial risk to provide the entire capital required to push the project through fell on Rethiko whose profit must have been the difference between the price at which the units were sold and Rethiko's total outlay. RM900,000 was the appellant's share of this projected difference.

By virtue of retention of ownership of the said land the control of the project till ultimate sale remained with the appellant with negligible financial risk.

The first formal response by the respondent to the application for planning approval was a letter dated 18 June 1991 (p 680 of the appeal record) in which the respondent's secretary required the appellant to amend its plans within two months to take into account the requirements of the Town Planning Department, and various other departments. A copy of this letter was sent to the architect.