KUALA LUMPUR (July 26): The Federal Court’s latest ruling on Friday, that the Ang Ming Lee decision should be applied prospectively, is fair and balanced, said senior lawyer Leonard Yeoh, who is familiar with matters related to housing and developers.

Yeoh said the decision ensures that nobody takes advantage of the law to the detriment of another. At the same time, having Ang Ming Lee being applied prospectively would ensure that property developers comply with the law on a level playing field.

“The law has been taken advantage of by some homebuyers after the 2019 Ang Ming Lee decision went against the developers, despite (being aware of) the date of completion when they booked or signed the sales and purchase agreement (SPA) for their homes,” he said.

Meanwhile, senior federal counsel Liew Horng Bin, who appeared as amicus for the Attorney General’s Chambers, said that Friday’s apex court decision provides welcome clarification of its earlier decision in the Ang Ming Lee case.

“Importantly, the Federal Court unanimously agreed with us (the AG’s Chambers) that, generally, a retrospective invalidation of a legislation undermines legal certainty and predictability, and in this sense, is incompatible with the concept of rule of law.

“The apex court also gave a strong endorsement on the ‘relative theory of invalidity’, where an innocent third party, who had relied on a decision made by the public authority, which was subsequently (found to be) unlawful (retrospective), is reassured that reliance placed on such unlawful decision would not necessarily be vitiated. There is a degree of invalidity,” Liew said.

Lai Chee Hoe, who appeared for one of the developers, Prema Bonanza Sdn Bhd, in Friday’s case, said that since November 26, 2019, the housing development industry had been plagued by the repercussions of the Ang Ming Lee decision.

He added that Regulation 11 (3) of the Housing Development Regulations 1989 (HDR 1989) remains invalid as decided in the Ang Ming Lee case. The decision made on Friday meant that an extension of time (EOT) granted before that decision is not affected and reliance was made on the EOT.

“For post-Ang Ming Lee, the EOT will be granted by virtue of Section 2 (2) of the Housing Development (Control and Licensing) Act 1966 (HDA), where the developer must make sure the letter is addressed to the minister of Housing and Local Government and not the Controller.

“In the course of reply, the Controller will refer to the minutes of meeting over the decision made by the minister and such exemption/variation of the EOT was given by virtue of Section 2(2) of HDA. The EOT must be shown to the purchasers at the time of the signing of the SPA, and developers may even put up an additional letter to get the purchasers to sign-off acknowledging that the SPA is one with more than the 36 months (completion period),” he explained.

Earlier, a five-member Federal Court bench led by the number two top judicial officer, Court of Appeal President Tan Sri Abang Iskandar Abang Hashim, unanimously ruled that the Ang Ming Lee decision made in 2019 should be applied prospectively, and not retrospectively, meaning that the principle is applied to the EOT only after 2019.

Federal Court judge Datuk Seri Hasnah Mohamed Hashim, who wrote and read the brief grounds in the two-hour decision, disagreed with the homebuyers’ counsel (imposing the Ang Ming Lee decision retrospectively), as that would make the EOT granted to developers illegal within the meaning of the law.

“The bench is not persuaded by the submissions advanced by the homebuyers. A new declaration of the law should be applied prospectively, and this is to curb [homebuyers] from enjoying further financial gain.

“The court agrees with the Attorney General’s Chambers’ submissions, made by Liew, that to allow it retrospectively would result in serious ramifications on the validity of the previous law and potentially lead to administrative chaos,” Hasnah said. 

https://www.theedgemarkets.com/node/720594