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2021 MarsdenLR 2949
HIGH COURT SABAH & SARAWAK KOTA KINABALU
CLEAR SKY DEVELOPMENT SDN BHD & ANOR – Appellant
Versus
MAYOR OF THE CITY OF KOTA KINABALU & ORS – Respondent
[Judicial Review Application No: BKI-13NCvC-3/1-2020]
Judicial Review examines not only the decision but also adherence to applicable laws and regulations, requiring decisions to conform to predefined agreements and directives.
Headnote:(A) Land (Subsidiary Title) Enactment 1972 – Judicial Review principles established in R Rama Chandran v. The Industrial Court Of Malaysia & Anor – Review judicial decisions based on illegality, irrationality, and procedural impropriety – The 1st Respondent's decisions affecting the Applicant observed for compliance with the agreed terms of use under the Sale and Purchase Agreements. (Para 11-12)
(B) The court found the 1st Respondent's approval of licenses for Unit PV 140 and Unit PV 161 was contrary to the intended use under the Sale and Purchase Agreements, which permitted only hotel-related commercial use. (Paras 15-17, 54)
(C) The decisions raised questions on the definition of usage rights under the mutual covenants and impact on management responsibilities. (Paras 26-28)
Facts of the case: The Applicant challenged the issuance of trading licenses by the 1st Respondent to the 2nd and 4th Respondents for commercial activities in residential villa units contrary to prior agreements and local planning laws. (Paras 2-10)
Findings of Court: The court found that the 1st Respondent improperly approved licenses that were inconsistent with the residential character of the development project. (Paras 56-58)
Issues: Whether the licenses issued for grocery and liquor sales contravened the Sale and Purchase Agreements and applicable planning requirements. (Paras 30-34)
Ratio Decidendi: Judicial Review parameters necessitated not only examining the legality of the decision-making process but also the adherence to agreed terms that govern the use of the property in question. (Para 11)
Result: The court granted certiorari and mandamus, consequently quashing the 1st Respondent's approvals. (Paras 56-57)
JUDGMENT
Introduction
[1] By this application for judicial review, the Applicant is seeking an order of certiorari to quash the decision of the 1st Respondent on 15 October 2019 in approving the trading licences to 2nd Respondent for the operation of a grocery store at Unit PV 140 of Precinct Dillenia Karambunai and also approving the usage of Unit PV 161 to sell liquor respectively.
[2] By the application for judicial review, the Applicant is also seeking an order of mandamus directing the 1st Respondent to cancel the trading licence issued to the 2nd Respondent dated 23 December 2019 for the operation of a grocery store at Unit PV 140 and also an order to declare the decision of the 1st Respondent thereto, null and void.
Brief Backgrounds
[3] The Applicant is developer of a project known as "Nexus Residence Karambunai project" consisting of hotel rooms, hotel suites, hotel chalets, hotel villas and condotels for which Precinct Dillenia Karambunai (Precinct Dillenia) is part of the project.
[4] As subsidiary titles have yet to be issued under the Land (Subsidiary Title) Enactment 1972 for the project, the Applicant also assumed the role and responsibility of the interim management corporation in the management, supervision and control of the buildings constructed under the project including Precinct Dillenia.
[5] Unit PV 140 of Precinct Dillenia, a villa unit was first sold by the Applicant to a purchaser, Clatto Limited In 2006. In 2015, Clatto Limited sold the unit to Kevin Gawn Grainger and Michele Jacqueline Grainger who in turn sold the unit to Mighty Inputs Sdn Bhd in 2016.
[6] Mighty Inputs Sdn Bhd then leased the Unit PV 140 to the 2nd Respondent who operated its business thereat by the name of Sabah Beach Villas & Suites (SBVS).
[7] In respect of Unit PV 161 which is also a villa unit, the Applicant sold the unit to the 3rd Respondent in 2009 who in turn leased the same to 4th Respondent. The 4th Respondent operated its business thereat by the name of Borneo Beach Villas (BBV).
[8] The 2nd Respondent has applied to the 1st Respondent for a licence to operate a grocery and handicraft store at Unit PV 140 under the name of SBVS and the 4th Respondent has also applied to the 1st Respondent for a licence to sell liquor at Unit PV 161 under the name of BBV.
[9] The Applicant claimed that notwithstanding the objections by the Applicant, the 1st Respondent had by a letter dated 15 October 2019 approved the applications of the 2nd Respondent and 4th Respondent and had issued a trade licence to the 2nd Respondent to carry out the business at Unit PV 140 as a grocery and handicraft store.
[10] Thus, the instant application by Applicant to quash the said decisions of the 1st Respondent.
The Principle Of Law On Judicial Review
[11] Judicial Review is not an appeal from the decision of the inferior or administrative tribunals or public authorities. Judicial review is primarily directed against the decision-making process. The jurisdiction of the Court on Judicial Review is supervisory. The Court will not interfere with the exercise of any power or discretion which has been vested on the inferior or administrative tribunals or public authorities.
[12] The Court will not by certiorari quash their decision and substitute their decisions with that of the Court except on the grounds of (i). illegality, (ii). irrationality and (iii) procedure impropriety. See: Malaysian Civil Procedure Volume 1- 2018 Edition, para 53/2/10 and 53/4/1.
[13] In R Rama Chandran v. The Industrial Court Of Malaysia & Anor, , Edgar Joseph Jr FCJ stated at p 186 and 187 that:
"It is often said that Judicial Review is concerned not with the decision but the decision making process. (See eg Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the courts in Judicial Review proceedings is confined to cases where the aggrieved party has not received fair tr
