Purchasers rights? Can the Ministry of Urban Wellbeing, Housing and Local Government Extend Time For A Developer To Deliver Vacant Possession of a Property as agreed in the Sale and Purchase Agreement with Purchasers?
MENTERI KESEJAHTERAAN BANDAR, PERUMAHAN DAN KERAJAAN TEMPATAN & ANOR V ANG MING LEE & ORS AND OTHER APPEALS  4 MLJ 545
- BHL Construction Sdn Bhd [BHL], is the developer of a condominium project known as Palace Court @ Kuchai Lama [Sri Istana Condo].
- The Sale and Purchase Agreements [SPA] signed with the purchaser of the condo units state that BHL has to deliver vacant possession of the condo’s within 36 months of signing the SAP.
- BHL applied to the Ministry of Urban Wellbeing, Housing and Local Government for an extension of time to deliver the vacant possession.
- The Controller of Housing under the Ministry of Urban Wellbeing, Housing and Local Government allowed the application for the extension of time.
- With the extension given, BHL need not pay damages for late delivery of the condo’s.
- Buyers of units of the Sri Istana Condo applied to the High Court to quash the decision of the Controller.
- The buyers’ complaint was that the Controller’s decision to grant the developer an extension of time to complete the project extinguished their claims for damages against the developer for late delivery of vacant possession.
- The letter granting the extension of time did not appear to have been made by, or on behalf of, the Minister but was signed by an officer on behalf of the Controller.
- The High Court allowed the application by the buyers and set aside the extension of time.
Decision: Court of Appeal Affirmed part of the decision of the High Court.
- The Court held that the decision in this case whether made by the Controller or the Minister was null and void and had to be set aside because the purchasers were not given an opportunity to be heard before the decision is made.
- The purpose of the Act was to protect the interest of the purchasers. They should have been notified of BHL’s application for an extension of time. And be given reasonable period of time to state their views before a decision can be made.
- The argument that only the Minister had the power to modify or waive the statutory form contract was wrong. It could therefore be reasonably inferred that the power granted to the Minister was intended to be delegable.
- The letter approving the developer’s appeal for extension of time was signed on behalf of the Controller. Since the Minister did not file any affidavit to provide some clarity, the contention that the Minister was not the one who had made the decision had merit and could not be dismissed lightly. The letter was ultra vires the Act and therefore a nullity and of no effect.
- The decision made in this case, whether by the Controller or the Minister, was null and void and of no effect and had to be set aside.