CASE UPDATE: REMEGGIOUS KRISHNAN v. SKS SOUTHERN SDN BHD [2023] 4 CLJ 36
INTRODUCTION:
Generally, a homebuyer who wishes to file a claim in the Tribunal for Homebuyer Claims can only do so for claims not more than the monetary threshold of RM50,000.00. This is provided for under Section 16M of the Housing Development (Control and Licensing) Act 1966 (“HDA”).
When computing the said monetary threshold, Section 16Q of the HDA further provides that the claim cannot be split in respect of the same matter, for the purposes of meeting the monetary threshold in order to bring the claim within the jurisdiction of the Tribunal.
FACTS:
The respondent is the developer of a residential project known as “Sky Habitat @ Meldrum Hill, Johor Bahru” (“the Housing Project”). The appellant is the purchaser of a unit apartment in the Housing Project.
In the present case, the purchaser filed two separate claims in respect of the property. The two claims are the technical claim, grounded on the failure of the developer to provide adequate ceiling height and protruding beams and pillars with the claim amounting to RM40,000.00. The second being the non-technical claim, grounded on the breach of manner of delivery of the property with the claim amounting to RM49,832. Both of the claims, viewed separately, did not exceed the monetary jurisdiction of RM50,000.00 under Section 16M of the HDA.
DECISION OF THE HIGH COURT：
Although the claims were split, they were for two different claims, one was for technical claim and the other, for a non-technical claim. As such the claims were not caught by Section 16M(1) and Section 16Q of the HDA.
It was held that the purchaser suffered losses as he was deprived of the opportunity to utilise and enjoy the property as it lacked electricity supply. The Tribunal did not err in awarding damages to the purchaser for the non-connection of electricity to the property as it was undisputed that vacant possession was delivered without any electricity connection to the property is in breach of Clause 27 of the SPA.
DECISION OF THE COURT OF APPEAL：
The Court of Appeal took the position that the words “same matter” in Section 16Q of the HDA meant that the claims filed by the purchaser must refer to the same matter, i.e the property. In this regard, the purchaser’s claim is caught by Section 16M(1) and Section 16Q of the HDA.
The Court of Appeal also held that since Clause 27(1)(c) of the SPA states “ready for connection”, it does not mean that the subject property must be installed with actual supply of electricity.
DECISION OF FEDERAL COURT：
With respect to the issue on monetary jurisdiction of the Tribunal:-
The “same matter” can only mean the same issue or type of claim and not the same property. There were two different matters in the present case, ie, one was for technical matter and the other was for non-technical matter. As such, Section 16Q of the HDA was inoperative. In other words, the two separate and distinct claims filed by the purchaser did not contravene any of the Section 16M and Section 16Q of the HDA.
If it was Parliament’s intention for “the same matter” to be interpreted as “the same property”, the drafters of the legislation would have used the term “property” or “housing accommodation”.
With respect to the issue on the manner vacant possession is delivered:
“Ready for connection” in Clause 27 of the SPA means that the developer bears the obligation to provide actual supply of water and electricity to the property. The developer was held to be in breach of Clause 27 of the SPA as the delivery of vacant possession was invalid since there was no electricity supply connected at the time. It was held that the time frame for delivery of vacant possession was quite separate from the manner of delivery of vacant possession.
TAKEAWAY:
The scale of balance appears to tilt in favour of the purchasers when it comes to claims filed in the Tribunal for Homebuyer Claims which provides for an easier, cheaper and quicker avenue for aggrieved purchasers to claim damages or compensation from the housing developers.
In the spirit of HDA being a piece of social legislation, an aggrieved house buyer is entitled to file two separate claims in respect of the same property with the Tribunal for Homebuyer Claims, to bring his case within the tribunal’s jurisdictional limit of RM50,000.00, so long as the claims do not concern the same issue or the same type of claim.
