The Tribunal for Homebuyer Claims cannot enforce terms not specified in the Sale & Purchase Agreement as its jurisdiction is strictly governed by the statutory framework of the Act.

Zaleha Yusof FCJ:

Introduction

[1] This appeal before us relates to the following questions of law for which leave was granted on 6 July 2020:

Question 1

Whether Section 16N(2) of the Housing Development (Control and Licensing) Act 1966 (the Act) precludes the Tribunal for Homebuyer Claims (hereafter called the Tribunal) from exercising jurisdiction over a claim which is not based upon an express term of the Sale & Purchase Agreement (the SPA) or its specifications but is a claim based on the homebuyer's expectations of the unit purchased corresponding in all respects with a display model at the developer's showroom?;

Question 2

Whether the power conferred on the Tribunal under s 16Y(2)(e) of the Act to "vary or set aside" the contract confers a jurisdiction on the Tribunal to add specifications of its own to the unit purchased by the homebuyer to include a sheltered/covered balcony, which is not provided for in the SPA, and to award damages in lieu thereof, or whether the said jurisdiction is properly exercisable only to ensure that the terms of the contract are in compliance with Schedule H of the Act?;

Question 3

Whether the homebuyer's claim that he has been allotted the wrong unit by the developer is maintainable after he has inspected and taken possession of and renovated the premises or whether by the law of estoppel and acquiescence, he is precluded from maintaining any such claim? and

Question 4

Whether a breach of natural justice occurred when the housing developer's representative at the proceedings was allotted only 15 minutes to respond to the homebuyer's allegation, made without prior notice, that his SPA was unilaterally altered and the date changed?; in the circumstances whether the Tribunal proceedings had miscarried given that legal representation is disallowed under s 16U(2) of the Act, and the fact that the Tribunal had in the end adopted and acted upon the extraneous material to make its award?

[2] The appellant had filed a judicial review application in the High Court for an order of certiorari to quash the decision of the Homebuyer Claim's Tribunal which allowed the 2nd respondent's claim for damages for breach of the SPA entered into between the appellant and the 2nd respondent. The decision of the Tribunal was upheld by the High Court and on appeal, by the Court of Appeal. Hence now the appeal before us after leave was granted.

Background Facts

[3] Salient facts can be found in the grounds of judgment of the High Court and Court of Appeal as well as the submissions of the parties. We shall reproduce them below with modification.

[4] The appellant is a licensed housing developer under the Act and a developer of a project known as Country Garden Danga Bay (the Project).

[5] The 1st respondent is the Tribunal for Homebuyer Claims

[6] The 2nd respondent is one of the house buyers of one-unit apartment of the Project.

[7] On 23 August 2013, the appellant and the 2nd respondent entered into the SPA (the original SPA) for the 2nd respondent to purchase a unit described as parcel Block 11-A-3402 on the 34th storey (the said unit), with a purchase price of RM1,639,861.00. The date of the original SPA was subsequently changed to 30 December 2012. Under the original SPA, vacant possession was to be delivered within 36 months from the date of the original SPA, namely on or before 22 August 2016.

[8] However, the appellant only issued the notice to deliver vacant possession on 25 September 2017. The 2nd respondent accepted the delivery of vacant possession on 1 November 2017. After taking vacant possession, the 2nd respondent renovated the said unit to suit his requirements.

[9] On 2 January 2018, the 2nd respondent brought a home buyer's claim against the appellant, the only details given were that the wrong unit had been given which contradicted the SPA: "Pemaju memberikan unit yang salah. Bercanggah SPA".

[10] The President of the Tribunal who sat on 25 January 2018 directed that a technical team conduct an inspection of th