Chief Justice Tengku Maimun Tuan Mat said granting extensions or modifications to the prescribed terms and conditions would deny buyers the right to claim for liquidated damages.
“These modifications and the granting of extensions of time to the developer do not appear to protect the purchasers, which militates the intention of Parliament,” she said in allowing the appeal of 104 buyers.
She added that extensions of time would only determine payment of damages.
“Allowing the controller to waive or modify the terms and conditions of the contract of sale would deny purchasers their right to claim damages,” she said.
However, the court did not rule on whether the urban wellbeing, housing and local development minister could give developers such extensions as this point was not raised.
The others on the bench were Chief Justice of Malaya Azahar Mohamed and Federal Court judges Idrus Harun and Nallini Pathamanathan. Fellow judge Alizatul Khair Osman Khairuddin heard the appeal in May as well but has since retired.
In early 2017, the High Court set aside the order by the minister to give a 12-month extension to BHL Construction Sdn Bhd to complete his project.
Justice Hanipah Farikullah, who allowed the judicial review application by the purchaser, said the minister’s decision to rely on a regulation to allow the extension was against the Housing Development (Control & Licensing) Act.
BHL Construction was involved in the building of a condominium in Jalan Kuchai Lama here with the 104 plaintiffs participating in the sale and purchase agreement.
One of the conditions of the agreement required that the developer hand over vacant possession within 36 months or be liable to a penalty for late delivery to the buyers.
The developer failed to complete and hand over the units to the purchasers and wrote to the controller of housing under the ministry for an extension of time. The appeal was rejected.
The developer then appealed to the minister who, on Nov 17, 2015, allowed an extension of 12 months.
However, it was revealed that a senior officer, K Jayaseelan, had acted for the controller in giving the extension on behalf of the minister.
That decision would have allowed the developer more time to hand over vacant possession to the buyers, from 36 months to 48 months.
The purchasers sought legal remedy in the courts in 2016.
However, the Court of Appeal last year reversed the High Court ruling, stating that the controller had wide powers under the act.
National House Buyers Association secretary-general Chang Kim Loong said today’s ruling was a major victory for purchasers against developers who failed to complete their projects as provided under the sale and purchase agreement.
“Purchasers are entitled to damages when there is a breach,” he added.
One of the buyers, Rachel Ng, said she would pursue her right to claim such damages.
“We fought this case on grounds of public interest and are glad that ordinary house buyers found favour with the apex court,” she said.