September 8, 2021 @ 12:10am
LETTERS: The Homebuyers Tribunal was created to make it an easier, cheaper and quicker avenue for purchasers to file their claims against housing developers for damages or compensation or other matters arising from the sale and purchase agreement entered between the purchaser and housing developer.
New Housing and Local Government Minister Datuk Seri Reezal Merican Naina Merican must be aware that there are calls to abolish the tribunal due to the difficulties homebuyers are facing.
And, with the recent Court of Appeal decision in SKS Southern Sdn Bhd vs Tribunal Tuntutan Pembeli Rumah Malaysia, the tribunal may not be useful any more to homebuyers unless the minister proceeds with reforms.
The tribunal must understand the wide jurisdiction it has been conferred with.
Besides orders for compensation for late delivery (LAD) and technical defects claims, other claims that require orders like compensating for any loss or damage suffered by the claimant which may entail tort, or the variation or setting aside the contract wholly or in part, are usually not accepted.
Too rigid an adherence to the ministry's key performance indicators (KPI) may be a factor. The KPI stipulates 110 days for a case to be decided.
Constant training with the latest information is vital for the tribunal, especially EN1504, recommended by the ministry itself, which deals with crack (50 per cent) and corrosion (50 per cent) in a holistic and scientific manner, and this must be understood in a greater detail by the tribunal, especially when technical reports are made to reach a fair decision.
Besides this, the calculation of technical defect compensation must use the current market rate.
Judicial review of the tribunal's award in the High Court has become a weapon against homebuyers, where to avoid legal cost, homebuyers abandon the award or settle for a lesser amount than what they are rightfully entitled to.
To protect homebuyers' and developers' financial resources, a Higher Tribunal must be established to avoid a simple claim being dragged all the way to the courts.
The monetary limit has remained up to RM50,000 only despite the increase in average property prices. In the SKS Southern Sdn Bhd case above, homebuyers are prohibited from making separate claims for LAD and Building Defects (technical) amounting to more than the threshold.
This means that despite homebuyers' right to claim RM50,000 in LAD claims, and even RM50,000 in technical claims, they must abandon this right to allow both the claims together when combined to be within RM50,000.
As the court had stated: "The effect of Section 16Q HDA 1966 when read as a whole could only mean that there is no prohibition against the filing of 'split claims' provided the total amount of the 'split claims' remains within the jurisdiction of the Housebuyers Claims Tribunal but not otherwise."
Ariff Shah R.K.
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times