1. ) BHL CONSTTUCTION SDN BHD 2. ) BHL CONSTRUCTION SDN BHD 1. ) ANG MING LEE & 34 OTHERS 2. ) SIA KWEE SIAM & 35 OTHERS

1. ) BHL CONSTTUCTION SDN BHD 2. ) BHL CONSTRUCTION SDN BHD 1. ) ANG MING LEE & 34 OTHERS 2. ) SIA KWEE SIAM & 35 OTHERS

Regulation 11(3) is ultra vires the Housing Development (Control and Licensing) Act 1966 because section 24(2)(e) requires the Minister to regulate and prescribe contract terms to protect purchasers and contains no express authorization to sub-delegate that regulatory power to the Controller; absent express delegation (including Gazette notification under the Delegation of Powers Act), the Controller had no power to waive or modify Schedule H terms and the 17.11.2015 purported extension (signed on behalf of the Controller and referring to regulation 11) was not a valid decision of the Minister and is a nullity. Consequently purchasers' appeals are allowed and developer's appeals dismissed.

Citation
NO:02(f)-95-10/2018(W, NO:02(f)-96-10/2018(W) (Mahkamah Persekutuan)
Parties
Appellants / Purchasers: Ang Ming Lee & 34 Others; Appellants / Purchasers: Sia Kwee Siam & 35 Others; Appellant / Developer: BHL Construction Sdn Bhd; Respondent / Minister: Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan; Respondent / Controller: Pengawal Perumahan (Housing Controller)
Court
f
Jurisdiction
Malaysia
Judgment Date
26 November 2019
Case Number
NO:02(f)-95-10/2018(W, NO:02(f)-96-10/2018(W) (Mahkamah Persekutuan)
Procedural Posture
Judicial Review / Civil Appeal / Final Decision of the Federal Court (appellate Judgment)
Outcome
Purchasers' appeals allowed; Developer's appeals dismissed; regulation 11(3) declared ultra vires the Housing Development (Control and Licensing) Act 1966; letter dated 17.11.2015 declared invalid and of no effect; no order as to costs.
Legal Topics
Delegation of Legislative Power, Ultra Vires, Regulation of Statutory Contract Form, Extension of Time, Procedural Fairness / Right to Be Heard, Liquidated Damages
Source Language
Malay/English
Administrative Law Housing Law Public Law Contract Law Delegation of Legislative Power Ultra Vires Regulation of Statutory Contract Form Extension of Time +2 more

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Parties

Ang Ming Lee & 34 Others

Appellants / Purchasers

Sia Kwee Siam & 35 Others

Appellants / Purchasers

BHL Construction Sdn Bhd

Appellant / Developer

Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan

Respondent / Minister

Pengawal Perumahan (Housing Controller)

Respondent / Controller

Procedural Posture

Judicial Review / Civil Appeal / Final Decision of the Federal Court (appellate Judgment)

Legal Issues

  1. 1 Whether the Housing Controller has power to waive or modify Schedule H contract terms under regulation 11(3)
  2. 2 Whether section 24 of the Housing Development (Control and Licensing) Act 1966 authorises the Minister to delegate power to waive or modify Schedule H to the Controller
  3. 3 Whether regulation 11(3) is ultra vires the Act

Ratio Decidendi

Regulation 11(3) is ultra vires the Housing Development (Control and Licensing) Act 1966 because section 24(2)(e) requires the Minister to regulate and prescribe contract terms to protect purchasers and contains no express authorization to sub-delegate that regulatory power to the Controller; absent express delegation (including Gazette notification under the Delegation of Powers Act), the Controller had no power to waive or modify Schedule H terms and the 17.11.2015 purported extension (signed on behalf of the Controller and referring to regulation 11) was not a valid decision of the Minister and is a nullity. Consequently purchasers' appeals are allowed and developer's appeals dismissed.

Court Disposition

Purchasers' appeals allowed; Developer's appeals dismissed; regulation 11(3) declared ultra vires the Housing Development (Control and Licensing) Act 1966; letter dated 17.11.2015 declared invalid and of no effect; no order as to costs.

Orders

  • Regulation 11(3) of the Housing Development (Control and Licensing) Regulations 1989 declared ultra vires and of no effect
  • The decision/letter dated 17.11.2015 purporting to grant a 12-month extension is null and void and of no effect