AP.
TTPRZS/J/0021(T)/20
DALAM TRIBUNAL TUNTUTAN PEMBELI RUMAH
BERSIDANG DI JOHOR BAHRU
TUNTUTAN NO: TTPRZS/J/0021(T)/20
ANTARA
(1) NURUL ATIQAH BINTI MOHD NASIR
(2) ZABIDI BIN MOHAMED @ ISMAIL
…PIHAK YANG MENUNTUT
DAN
PAGOH JAYA (2000) SDN BHD
…PENENTANG
GROUNDS OF DECISION
The Issues Raised
[1] This case brought to the fore the issue of whether the Technical
Team of this Tribunal was justified in applying the QLASSIC
assessment system to measure the quality level achieved on
completed building projects, and to use it as the yardstick to form
their opinion as to whether all parts of a building have been
constructed in “a good and workmanlike manner”.
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[2] QLASSIC (an abbreviation of QUALITY ASSESSMENT SYSTEM
IN CONSTRUCTION) is a certification scheme developed by
the Malaysia Construction Industry Development Board. It is
essentially “a system or method to measure and evaluate the workmanship
quality of a building construction work based on Construction Industry
Standard (CIS 7:2006). QLASSIC enables the quality of workmanship
between construction projects to be objectively compared through a scoring
system.” (Source of above information: CIDB Official Website).
[3] The Respondent’s project architect testified under oath as a witness
during the hearing before me. The gist of his argument was that since
there is no legal requirement for housing developers to achieve the
workmanship and quality of the buildings set by the QLASSIC System,
a lower standard ought to be applied in assessing residential
buildings which are sold at a lower price. The Respondent went on to
point out that the house purchased by the Claimants from the
Respondent was not a ‘high end’ property. He went on to submit that
I should therefore not accept the Technical Report prepared by the
Technical Team of this Tribunal by using the QLASSIC System in
assessing the workmanship and quality of the said building.
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The Background Facts
[4] The Claimants in this case were purchasers who entered into a Sale
and Purchase Agreement dated 19th April 2019 (“the Agreement”)
with the Respondent (as Vendor). The Agreement was in the
mandatory format of Schedule G in the Housing Development
(Control and Licensing) Regulations 1989 (“the Regulations”). As the
contents of standard agreements under the Regulations have been
amended several times over the years, it is necessary to examine the
contents of the version used which depends on the date of the
respective Sale and Purchase Agreement. Earlier authorities which
construed ‘outdated’ terms and conditions based on earlier or
different versions of Schedule G in the Regulations would be of no
assistance and ought to be distinguished.
[5] The Respondent is a licensed housing developer of a housing project
in the Mukim of Jorak, District of Muar, State of Johor known as
Taman Pagoh Jaya (“the Project”).
[6] There is no doubt that the Claimants in this case are homebuyers
within the definition of Section 16A of the Housing Development
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(Control and Licensing) Act 1966 (“the Act”). For clarity of reference,
in so far as possible, the terminology used herein shall be the same
as in the Act, Regulations and the Agreement.
[7] The “housing accommodation” purchased by the Claimants at a
purchase price of RM 338,300.00 from the Respondent was a unit of
double-storey terrace house (“the said Building”) with land area of
156.0728 square metres (the said Building and land are hereinafter
referred to as “the said Property”).
[8] The Claimants’ claim against the Respondent emanated from the fact
that after receiving the keys to the said Property from the Respondent
in the month of October 2019, they alleged that they discovered over
200 defects in the said Building. In fairness to the Respondent, I must
state that most of the defects have been rectified by the Respondent
before the Claimants filed their claim at this Tribunal. Their claim was
therefore regarding the remaining defects.
[9] Clause 15 in the Agreement are relevant to the issue of workmanship
while Clause 27 thereof is concerned with building defects. For
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convenient reference, the exact words in those two clauses are set
out in full as follows:-
“Materials and workmanship to conform to description
15. (1) The said Building shall be constructed in a good and
workmanlike manner in accordance with the description set out in
the Fourth Schedule and in accordance with the plans approved by
the Appropriate Authority as in the Second Schedule, which
descriptions and plans have been accepted and approved by the
Purchaser, as the Purchaser hereby acknowledges.
(2) No changes or deviations from the approved plans shall be made
without the consent in writing of the Purchaser except such as may
be required by the Appropriate Authority.
(3) The Purchaser shall not be liable for the cost of such changes or
deviations and in the event that the changes or deviations involve
the substitution or use of cheaper materials or the omission of works
originally agreed to be carried out by the Developer, the Purchaser
shall be entitled to a corresponding reduction in the purchase price
herein or to damages, as the case may be.
Defect liability period
27. (1) Any defect, shrinkage or other faults in the said Building which
becomes apparent within twenty-four (24) months after the date the
Purchaser takes vacant possession of the said Property and which
are due to defective workmanship or materials or; the said Building
not having been constructed in accordance with the plans and
description as specified in the Second and Fourth Schedules as
approved or amended by the Appropriate Authority, shall be
repaired and made good by the Developer at its own cost and
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expense within thirty (30) days of the Developer having received
written notice thereof from the Purchaser.
(2) If the defect, shrinkage or other faults in the said Building have not
been made good by the Developer within thirty (30) days referred
to in subclause (1), the Purchaser shall be entitled to carry out works
to repair and make good such defect, shrinkage or other faults
himself to recover from the Developer the costs of repairing and
making good the same and the Purchaser may deduct such costs
from any sum which has been held by the Developer’s solicitors as
stakeholders under item 5 of the Third Schedule, provided that the
Purchaser shall, at any time after the expiry of the period of thirty
(30) days, notify the Developer of the costs of repairing and making
good such defect, shrinkage or other faults before the
commencement of the works and shall give the Developer an
opportunity to carry out the works himself within thirty (30) days
from the date the Purchaser has notified the Developer of his
intention to carry out the said works and provided further that the
Purchaser shall carry out and commence the works as soon as
practicable after the Developer’s failure to carry out the works
within the said thirty (30) days. In such an event, the Developer’s
solicitors shall release such costs to the Purchaser from the
stakeholder sum held by the Developer’s solicitors of the
Purchaser’s written demand specifying the amount of such costs.
(3) Subject to subclause (2), where the Purchaser has, before the expiry
of the period of eight (8) months or twenty-four (24) months after
the date the Purchaser takes vacant possession of the said Property
as set out in Items 5(a) and item (b) of the Third Schedule,
respectively, duly served on the Developer’s solicitors a copy of the
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written notice from the Purchaser to the Developer under subclause
(1) to rectify the defect, shrinkage or other faults in the said
Building, the Developer’s solicitors shall not release to the
Developer the relevant sum held by the Developer’s solicitors as
stakeholder pursuant to item 5(a) or (b) of the Third Schedule, as
the case may be, until the Developer’s solicitors shall have received
a certificate signed by the Developer’s architect certifying that the
said defect, shrinkage or other faults in the said Building have been
repaired and made good by the Developer.
(4) The Developer’s solicitors referred to in this clause shall mean
Messrs. Fadzilah, Ong Chee Seong & Associates of No.25, Jalan
Majidi, 84000 Muar, Johor or such firm or solicitors appointed by
the Developer from time to time in replacement thereof, provided
that –
(a) before any sum under item 5 of the Third Schedule has been
paid to the Developer’s solicitors as stakeholders, the
Developer may replace the Developer’s solicitors after prior
written notice has been given to the Purchaser or the
Purchaser’s Financier or the Government; and
(b) after any sum under item 5 of the Third Schedule has been
paid to the Developer’s solicitors as stakeholders, the
Developer shall not replace the Developer’s solicitors
without the prior written consent of the Purchaser.
The Tribunal’s Technical Team
[10] It is apt at this juncture to introduce the Technical Team of this
Tribunal. The members of the Technical Team in the southern zone
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(Zon Selatan) of this Tribunal are civil servants with technical
background who were seconded from the Public Works Department
(Jabatan Kerja Raya) to serve as fulltime staff of this Tribunal’s
Technical Team. The task of the said Technical Team is to comply
with directions issued by the presidents of this Tribunal to inspect
buildings which are the subject matter of claims at this Tribunal, and
thereafter to prepare a Technical Report and Estimate of Costs of
Repairs.
[11] The Technical Reports prepared by the Technical Team are always
thorough, corroborated with photographs taken at the sites to show
the defects, stating the proposed actions to be taken to repair or
rectify the defects. In this present case, I had issued directions, when
the parties first appeared before me on 09-06-2020, for the Technical
Team to inspect the said Building, specifically to check if the alleged
defects stated in the Claimants’ claim were truly defects. The
Technical Team in fact visited the said Building twice, on 7th and 8th
July 2020 to carry out site inspections before they prepared a lengthy
Technical Report which is 119 pages long. The time and dates of their
visits are clearly recorded in the said Report, a copy of which was
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given, free of charge, to the Claimants and the Respondent
respectively.
[12] The names of the Technical Team members who inspected the said
Building on 7th and 8th July 2020 were as follows: Encik Muhammad
Zahran Bin Abdul Rahim (who holds a Higher National Diploma in
Civil Engineering), Encik Mohd Hafizan Bin Abu Ngamar and Encik
Azmizapi Bin Kosrin (who both hold Diplomas in Architecture) and
Puan Nurul Noor Baizura Binti Musa (who holds a Diploma in Building
Services). I was informed that all of them had received further training
on QLASSIC assessment system. My purpose for stating their names
and qualifications is to show that the Technical Team of this Tribunal
do have technical know-how to perform their tasks objectively and
professionally.
The Technical Team’s Report
[13] For the purpose of inspection, the Respondent was required to and
did supply the Technical Team with a set of approved building plans
and other documents as were required by the Team because Clause
15 of the Agreement stated:-
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“The said Building shall be constructed in a good and workmanlike manner
in accordance with the description set out in the Fourth Schedule and in
accordance with the plans approved by the Appropriate Authority as in the
Second Schedule”
[14] Out of the 57 alleged defects pointed out by the Claimants during the
inspection, the Technical Team decided that there were 37 items to
be regarded as defects and which would require repair and/or
rectification. In their Estimate of Costs of Repairs, they opined that a
sum of RM13,625.80 would be required for the Claimants to engage
private contractors to perform the repair/rectification works.
[15] As mentioned above, the Respondent called their architect to attend
as their witness for their defence. The said architect, one Mr. Yeow
Tiang Hock, testified under oath that he is a qualified architect and
stated that he was present when the Technical Team was carrying
out the inspection, and that he queried the standard applied by the
team members in assessing the quality and workmanship. He was
informed that they applied the QLASSIC System. The Respondent’s
witness was of the view that the standard applied by the Technical
Team was too high because the said Property was sold to the
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Claimants at price of RM338,300.00, and is therefore not a ‘high end’
property which would justify the application of the QLASSIC System.
[15] Upon perusing all the said Report thoroughly, I found as a fact that
the Technical Team had being objective and did not impose an
unusually high standard. Some complaints were rejected outright,
for example, the Claimants had complained that the paintwork on
the area surrounding the car porch window was uneven but upon
inspection, the Technical Team found that there was no unevenness
visible from a distance of 1.2 meter, and hence the paintwork was
deemed to be of acceptable quality (see Complaint Item No.3 in the
said Report). In other words, the Technical Team members did an
objective inspection of all the alleged defects.
[16] As mentioned above, QLASSIC is a system developed by CIDB to
measure and evaluate the workmanship quality of a building
construction work based on Construction Industry Standard in
Malaysia. Though it is not mandatory for housing developers to meet
the QLASSIC System, I am of the view that QLASSIC serves to
provide a basic yardstick to assess the quality of building
construction work – from which adjustments could be subsequently
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made by this Tribunal based on the selling price of the property. If a
quality assessment system prescribed by the Malaysian statutory
board, i.e. the Construction Industry Development Board could not
be used, how else are we supposed to assess the quality of
buildings in Malaysia? As a president of this Tribunal, I had the
privilege of attending a lengthy Talk on QLASSIC which was held in
the Judicial and Legal Training Institute (ILKAP) in year 2018. Based
on what I learnt then, I am convinced that QLASSIC is an objective
assessment system to evaluate the workmanship quality of building
construction work. Where this case before was concerned, my view
was fortified by the fact that the Technical Team’s Report did delve
into details, with clear photographs and excerpts from the building
plans (wherever relevant) to corroborate their technical findings.
[17] I agree with the Respondent’s architect that since the said Property
was sold to the Claimants at price of RM338,300.00, it is not a ‘high
end’ property. However, RM338,300.00 cannot be regarded as a low
price for a double-storey terrace house which location is in Mukim of
Jorak in the District of Muar, a small town located more than 120km
away from Johor Bahru. The Technical Team’s Report dealt with
each and every alleged defect separately, and stated the Claimant’s
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complaint, the Respondent’s response, the Technical Team’s
findings, and the Team’s recommendation for repair/rectification if
they found it to be indeed a defect. Further, the Respondent’s
architect was unable to pinpoint any particular error in the technical
findings of the Tribunal’s Technical Team besides objecting to them
applying the OLASSIC System. I am constrained to find that there
was no error in the Report prepared by the Technical Team.
Therefore, I was of the view that it was safe for me to rely on the said
Report to make an award in favour of the Claimants who had given
due notice to the Respondent as required by Clause 27 of the
Agreement.
[18] As for the quantum of compensation to be awarded, I had to decide
whether to accept the recommendation stated in the Technical
Team’s Estimate of Costs of Repairs. The figures given by the Team
were based on rates used by Jabatan Kerja Raya (where the Team
members were seconded from). Since there were 37 items which
require repair/rectification works, I was of the view that the proposed
sum of RM13,625.80 which is only about four percent (4%) of the
price of the said Property was a fair figure. It is also less than the five
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