Does the Minister have the power to grant an extension of time to a housing developer to deliver vacant possession?
BLUDREAM CITY DEVELOPMENT SDN BHD V KONG THYE & ORS  CLJ JT (2)
- Bludream City Development Sdn Bhd (Developer) was the housing developer of the service apartments in the Mines Resort City (Project).
- Throughout the duration of the Project, two extensions of time for handing over of vacant possession were granted as follows:
(a) 1st extension : 6 months granted by the Controller
(b) 2nd extension : 17 months granted by the Minister
- Dissatisfied with the Minister’s decision in granting the 2nd EOT, the Purchasers of the units challenged the Minister’s decision by way of judicial review.
- The High Court allowed the Purchasers’ judicial review applications on the ground that the Federal Court in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and other appeals  1 MLJ 281 held that Regulation 11(3) of the HDR is ultra vires the HDA.
- The High Court further proceeded to invalidate the 1st EOT although there was no challenge on the same.
COURT OF APPEAL DECISION – HIGH COURT DECISION REVERSED!
- The Housing Development (Control and Licensing) Act 1966 (HDA) and the Housing Development (Control and Licensing Regulation 1989 (HDR) regulate among others, the powers of the Minister, housing developer’s license, advertisement, and sale permit, as well as sale and purchase agreement between housing developer and purchasers.
- The Minister does have the statutory power to waive or modify the sale and purchase agreements between the developer and the purchasers – including the power to extend the time under the agreements for the delivery of vacant possession.
- This was consistent with the power conferred on him under sections 24(2)(c) and 24(2)(e) of the HDA, which was to prescribe the form(s) of contract as well as regulate and prohibit the conditions and terms of any contract respectively.
- The Federal Court decision in Ang Ming Lee was not applicable to the present case as the issue there was whether the Controller could grant an extension of time to a developer. – There, the Federal Court found that the Controller could not grant such an extension because the Minister could not delegate to the Controller what it could regulate under the HDA.
- Based on the facts here, the Court held that the 2nd EOT was reasonable, just and fair as the Developer did not take advantage of their own delay.