ANG MING LEE & ORS v. MENTERI KESEJAHTERAAN BANDAR, PERUMAHAN DAN KERAJAAN TEMPATAN & ANOR AND OTHER APPEALS [2020] 1 CLJ 162
Background Facts
The developer had entered into sale and purchase agreements (“SPAs”) with the purchasers of the condominium units. This SPAs were made pursuant to the statutorily prescribed form under Schedule H of the Housing Development (Control and Licensing) Regulations 1989 (“Regulations”) which stipulating the date of delivery of vacant possession of the units was within 36 months from the date of signing of the SPAs. In the event that the developer had failed to deliver vacant possession within 36 months, the developer is liable to pay the purchasers liquidated ascertained damages (“LAD”).
Subsequently, the developer applied to the Controller of Housing (“Controller”) for an extension of time for the delivery of vacant possession pursuant to Regulation 11(3) of the Regulations, but the application was rejected. Therefore, the developer appealed to the Minister of Urban Willbeing, Housing and Local Government in accordance with Regulation 12 of the Regulations where the appeal is allowed and the Minister has granted an extension of 12 months. Being aggrieved by the Minister’s decision, the purchasers filed an application for judicial review against the Minister, the Controller and the developer.
Issue
Whether the Controller of Housing (“Controller”) has the power to grant the extension of time which has the effect of modifying or waiving the provisions under Schedule H of the Regulations.
Decision
The Federal Court ruled that the Controller has no power to grant the extension fo time has no power to grant the extension of time. The reasons are set out below.
- It was argued that the Minister has delegated his power to the Controller to make a decision under Regulation 11(3) of the Regulations. Undoubtedly, the Minister is empowered by S.24(2)(e) of the Housing Development (Control and Licensing) Act 1966 (“the Act”) to regulate and prohibit the terms and conditions of the contract of sale, the words “to regulate and to prohibit” should be given a strict construction whereby the Minister is expected to apply his own mind to the matter and not to delegate that responsibility to the Controller.
“[41] The legislative intent that the duties shall remain with the Minister, may be discerned from ss. 11 and 12 of the Act. Under s. 11, whilst the Controller is given the power to investigate on the reason why a licensed housing developer is unable to meet his obligation to the purchasers, or is about to suspend his building operations or is carrying on his business detrimental to the interests of the purchaser, it is the Minister who is empowered to give directions and to take such other measures for purposes of safeguarding the interests of the purchasers and for carrying into effect the provisions of the Act.”
Tengku Maimun Tuan Mat CJ
As far as delegation of powers is concerned, although the Minister is allowed by S.5 of the Delegation of Powers Act 1956 to delegate his powers or duties to any person but such delegation must be made by notification in the Gazette, Since there is no notification published in the Gazette which means that there is no delegation of powers by the Minister to the Controller.
It is the Minister who is entrusted by Parliament to regulate the terms and condition of the contract of sale. The power to regulate was held does not include power to delegate, hence, the Minister’s action in delegating the power to the Controller to modify the conditions and terms of the contract of sale maybe construed having exceeded what was intended by Parliament.
- Furthermore, the Federal Court also acknowledged that the object of the Act is a social legislation designed to protect the house buyers, so the interest of the purchasers shall be the paramount consideration against the developer. As such, by modifying the prescribed terms and conditions through granting the developer the extension of time, the Controller has denied the purchasers’ right to claim for LAD and does not protect or safeguard the purchasers and thus, this militates the intention of the Parliament.
