Tribunal's award quashed due to miscalculation of late delivery of vacant possession; relevant date is the SPA date, not booking fee payment.

[1] This is an Application for Judicial Review dated 22 November 2018 pursuant to O 53 of the Rules of 2012, inter alia, for an Order of Certiorari to quash the Award of the Tribunal for Homebuyers Claims dated 25 October 2018. ("Award").

[2] Having considered the application and the submission of the parties, this Court has allowed the application with costs.

The Salient Facts

[3] The applicant ("Developer") is a developer for a housing project known as "Savanna Executive Suites, Southville City", Kuala Lumpur ("Project").

[4] On 21 September 2013, before the Project was launched, the 1st respondent ("Homebuyer") decided to secure the opportunity to purchase a parcel of the Project ("Property"), and vide an Irrevocable Offer to Purchase /Option to Purchase /Confirmation By the Stakeholders ("the said Letter") dated 21 September 2013, the Homebuyer appointed Messrs A Rahim & Co ("the Lawyer") to represent her to make an irrevocable offer to the Developer to purchase a unit of the Project when the Developer is ready to sell the units in the Project.

[5] The Homebuyer had, pursuant to the said Letter appointed the Lawyer as a stakeholder with the sum of RM3,000.00 ("Stakeholder Sum"), with the instruction to release the Stakeholder Sum to the Developer once the Project is open for sale by the Developer and an acceptance by the Developer of the Homebuyer's offer to purchase.

[6] Once the Developer obtained all the relevant licences from the authorities, the Developer launched the Project on 27 March 2014.

[7] On the same day, the Developer issued a letter to the Homebuyer accepting the offer to purchase made by the Homebuyer.

[8] The Developer and the Homebuyer executed a Sale and Purchase Agreement dated 27 March 2014 ("SPA") which is a statutory contract pursuant to Schedule H of the Housing Development (Control and Licensing) Regulations 1989 ("HDA Act").

[9] The Stakeholder Sum was only released to the Developer by the Lawyer/ Stakeholder after the SPA was signed by both parties.

[10] On 29 March 2018, the Developer had issued a notice of delivery of vacant possession of even date to the Homebuyer ("VP Notice") and the vacant possession of the Property was delivered to the Homebuyer.

[11] The Homebuyer had filed an application with the Tribunal for Homebuyers Claims ("Tribunal") against the Developer for damages for late delivery of the Property ("LAD").

[12] The Homebuyer's application was allowed and the Tribunal ordered the Developer to pay damages of RM23,038.03 to the Homebuyer.

[13] Hence, the Developer filed this application to quash the Award of the Tribunal.

Findings Of The Court

[14] With regards to the substantive application, the governing principles on judicial review relating to statutory tribunals were held by the Court in Telekom Malaysia Bhd v. Tribunal Tuntutan Pengguna & Anor, [2007] 1 MLJ 626, where Low Hop Bing J (later JCA) held as follows:

"[12] At this juncture, it is appropriate for me to set out the principles governing the grounds for sustaining a substantive notice of motion to challenge a decision-making process by way of certiorari as follows:

(1) It is neither an appeal nor a review of the decision itself, but a review of the decision-making process of the tribunal to see if there are errors of law on the face of the record;

(2) It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed; and an error may be disclosed if the decision-maker eg:

(a) asks himself the wrong question;

(b) takes into account irrelevant considerations;

(c) omits to take into account certain relevant considerations (an Anisminic error);

(d)