IN the second part of the article, we like to stress that the Federal Court, in their wisdom, held that the Courts will not tolerate the bypassing of statutory safeguards meant to protect house buyers.
When it comes to interpreting social legislation, the Courts must give effect to the intention of Parliament and not the intention of parties. Otherwise, the attempt by the Legislature to level the playing field by mitigating the inequality of bargaining power would be rendered nugatory and illusory.
The Federal Court disagreed with the developer’s contention that it is a standard commercial practice to accept booking fees from purchasers. The development of the law clearly suggests to the contrary.
From the Parliament Hansard in 1966 to the change in the subsidiary legislation up to the amendment to the Housing Development (Control and Licensing) Regulations (HDR) in 2015, the written law in force has made it crystal clear that the collection of booking fees is to be absolutely prohibited. The Court must give effect to the intention of Parliament.
Given the clear legislative intent and the status of the HDA 1966 and HDR 1989 as social legislation, it follows that the date of the contract cannot be taken to mean the date printed in the statutory contracts. The Court must construe the statutory contract in accordance with the statutory protection afforded by Parliament.
Otherwise, the Court would be condoning the developers’ attempt to bypass the statutory protections afforded to the purchaser put in place by the Parliament.
One step forward, two steps back?
There is an undercurrent now which was expressed by previous Housing and Local Government Minister Datuk Zuraida Kamaruddin and that of her charge in attempting to reverse history to allow legal collection of booking fees. It is absurd to allow such collection when the issue have been exploited time and again.
This is a serious issue to take careful consideration on the part of the lawmakers when deciding on whether an act should be legalised or de-criminalise. Why is the Government “back-pedalling”?
Our lawmakers must look into the future impact of an action and determine whether or not legalisation would provide sufficient advantages or “watered-down” protection to house buyers or was it actually to benefit developers?
To put it simply, legalisation is the process of making a particular action legal. For example, collection of booking fees is prohibited according to the current laws.
However, the act becomes completely legal and is just as acceptable, if the law is tweaked in favour of the housing developers. All the punishment and consequences previously attributed to the act are no longer in effect.
On the other hand, “de-criminalisation” means that the criminal penalties attributed to an act are no longer in effect. – Aug 29, 2021.
This article is jointly written by Wong Renn Xin, one of the legal advisers of the National House Buyers Association (HBA) and Datuk Chang Kim Loong, the honorary secretary-general of HBA.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
Photo credit: Andriy Popov (123rf)
