Development Since Ang Ming Lee

• Published date: 25 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Real Estate
• Law Firm: SKRINE
• Author: Mr Leong Wai Hong and Jocelyn Lim

In Alvin Leong Wai Kuan & Ors v Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Ors And Other Applications [2020] 6 CLJ 55, the High Court allowed the purchasers' judicial review applications for an order to quash the Minister of Housing and Local Government's decision that allowed the developer up to 59 months to deliver vacant possession of the parcels to the purchasers.

Justice Wong Kian Kheong held that His Lordship was bound by the Federal Court judgment in Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Anor And Other Appeals [2020] 1 CLJ 162 and held that Reg 11(3) of the Housing Development (Control and Licensing) Regulations 1989 ("HDR") is invalid therefore, the Controller of Housing cannot exercise any power under Reg. 11(3) of the HDR to extend the 36 months period as prescribed in Schedule H of the Housing Development (Control and Licensing) Act 1966 ("HDA").

Key points

1. Courts are bound by the doctrine of stare decisis and will follow the Federal Court's decision in Ang Ming Lee in holding that Reg. 11(3) of HDR is ultra vires.

2. Regulation 12 of HDR which states that the 'decision of the Minister.... shall be final and shall not be questioned in any court' is invalid.

3. The judgment in Ang Ming Lee has retrospective effect.

Background

The purchasers and the developer had entered into sale and purchase agreements. Clause 25.1 of the sale and purchase agreements provides that the developer shall deliver vacant possession of the parcel to the purchasers within 42 months from the date of the sale and purchase agreements.

The developer sent a letter to the Controller of Housing ("Controller") and applied to extend the 42 months period to 59 months. Pursuant to Reg. 11(3) of HDR, the Controller partially allowed the developer's application and extended time to 54 months. Aggrieved by the Controller's decision, the developer appealed to the Minister of Housing and Local Government ("Minister") against the Controller's decision pursuant to Reg. 12 of HDR. The Minister allowed the developer's appeal and extended time to 59 months.

Issues

The issues that arose were:

1. Whether the Court had the judicial power to review the Minister's decision notwithstanding that Reg. 12 of HDR had expressly provided that the Minister's decision 'shall be final and shall not be questioned in any court';

2. Whether the Federal Court judgment in Ang Ming Lee had retrospective or prospective effect;

3. ...