3rd RESPONDENT’S AFFIDAVIT IN REPLY English Translation

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM

DALAM NEGERI SELANGOR, MALAYSIA
PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO. BA-25-45-06/2022

Dalam perkara keputusan yang

dibuat oleh Ketua Pengarah melalui
satu surat bertarikh 15.03.2022
untuk mengecualikan tempoh dari
01.06.2021 sehingga 31.10.2021
(153 hari) bagi pengiraan masa
serahan milikan kosong dan
penyiapan kemudahan bersama
dalam suatu perjanjian jual beli yang
ditandatangani antara Mayfair
Ventures Sdn Bhd dan pembeli -
pembeli kondo Lumi Tropicana

Dan

Dalam perkara Akta Pemajuan

Perumahan (Kawalan dan
Perlesenan) 1966

Dan

Dalam perkara Peraturan-peraturan

Pemajuan Perumahan (Kawalan dan
Perlesenan) 1989

Dan

Dalam perkara Bahagian XI , XIA dan

Seksyen 38C Akta Langkah-langkah
Sementara bagi Mengurangkan
Kesan Penyakit Koronavirus 2019
(COVID-19) 2020

Dan

Dalam perkara Seksyen 25(1) dan

(2) Akta Mahkamah Kehakiman 1964
dan perenggan 1 Jadual pada Akta
Mahkamah Kehakiman 1964

Dan

Dalam perkara Aturan 53 Kaedah 1

hingga 5 dan Aturan 92 Kaedah 4
Kaedah-Kaedah Mahkamah 2012
dan Bidang Kuasa Sedia Ada
Mahkamah Tinggi Malaya
 ANTARA

1. KENNETH KONG KOK LEONG

(No. K/P: 770111-08-5651)

2. KHAW TEIK HOCK

(No. K/P: 810211-14-5707)

3. LIM BOON HOCK

(No. K/P: 580919-10-5857)

4. CHONG MING LIANG

(No. K/P: 680114-10-5903)

5. FONG CHEAN FOONG

(No. K/P: 600618-08-6141)

6. WOO CHEW HONG

(No. K/P: 560717-05-5187)

7. CHOW YIN CHING

(No. K/P: 590707-10-6654)

8. BATHOLOMEW FRANCIS
(No. K/P: 880721-52-5711)

9. KOONG YUNG CHENG

(No. K/P: 620820-03-5573)

10. YAP PECK SIEN

(No. K/P: 651226-01-5176)

11. JEFFREY NG EOW OO

(No. K/P: 730403-07-5459)

12. LAM MAY YEE

(No. K/P: 750812-07-5554) … PEMOHON-PEMOHON

Dan

1. MENTERI PERUMAHAN DAN KERAJAAN TEMPATAN

2. KETUA PENGARAH JABATAN PERUMAHAN NEGARA,

KEMENTERIAN PERUMAHAN DAN KERAJAAN TEMPATAN

3. MAYFAIR VENTURES SDN BHD

(NO. SYARIKAT: 201301016368
(1046201-T)) …RESPONDEN-RESPONDEN

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 3rd RESPONDENT’S AFFIDAVIT IN REPLY
(to oppose the Substantive Application for Judicial Review)

I, GHAZIE YEOH BIN ABDULLAH (NRIC No.: 760629-14-5023), a

Malaysian citizen of full age whose address is at PS1-08, Lumi Tropicana, No.
2, Persiaran Tropicana, PJU 3, 47410 Petaling Jaya, Selangor do hereby
sincerely and solemnly affirm and state as follows:

1. I am the Director of the abovenamed 3 rd Respondent, and I have been

duly authorized by the 3rd Respondent to affirm this affidavit on behalf of
the 3rd Respondent.

2. The matters averred to herein are based on my own knowledge and/or

the 3rd Respondent’s records, to which I have accessed to, unless stated
otherwise herein.

3. I refer to the following cause papers:-

(i) The Application for Judicial Review and the Substantive

Application for Judicial Review dated 14/6/2022 (“the said
Application”);

(ii) The Statement Pursuant to Order 53 Rule 3(2) of the Rules of

Court 2012 dated 14/6/2022 (“the said Statement”);

(iii) The Affidavit in Support affirmed by Kenneth Kong Kok Leong on

10/6/2022 (“the said AIS”);

(iv) The Ex-Parte Order (Leave for Judicial Review) dated 18/10/2022
(“the said Ex-Parte Order”); and

(v) The Notice of Hearing of Application for Judicial Review dated

20/10/2022.

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4. I affirm this affidavit herein to oppose the Substantive Application for
Judicial Review in the said Application and to reply to the said AIS.

SALIENT BACKGROUND FACTS

5. I wish to highlight to this Honourable Court that the Judicial Review

herein by the Applicants concerns of 9 units of condominium at Block A2
(“the Disputed Units”) at Lumi Tropicana which consists of 2 blocks (i.e.
Block A2 and B2) for Phase 2 with a total of 372 units (“the said Phase
2 Project”) where the Applicants had respectively entered into the Sales
and Purchase Agreements (“the said SPAs”) with the 3rd Respondent in
July 2017 (see the said SPAs at Exhibit ‘KKKL-1’ of the said AIS).

6. On or around 21/7/2017, prior to entering into the said SPAs with the
respective Applicants in July 2017, the 3 rd Respondent applied and
obtained an extension of time of 12 months i.e. from 36 months to 48
months (“the 1st EOT”) for the delivery of vacant possession and
completion of common facilities for the said Phase 2 Project from the
Housing Controller and/or Ministry of Housing and Local Government
under the Housing Development (Control and Licensing) Act 1966
(“HDA”) and/or the Housing Development (Control and Licensing)
(Amendment) Regulations 2015 (“HDR”).

7. On or around 6/7/2021, prior to the 2 nd EOT, the 3rd Respondent had

applied and obtained an approval from the 1 st and/or 2nd Respondents
i.e. the Minister and/or Director General of the National Housing
Department, the Ministry of Housing and Local Government vide a letter
dated 15/3/2022 via a letter dated 6/7/2021 to exclude 167 days i.e.
from 18/3/2020 to 31/8/2020 (“the 2nd EOT”) from the period of time for
the delivery of vacant possession (see the letter from the 1 st and/or 2nd
Respondent dated 6/7/2021 at Exhibit ‘KKKL-2’ of the said AIS) and
there is no disputes by the Applicant as to the 1 st EOT.

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8. On or around 16/11/2021, the 3 rd Respondent had applied from the 1 st
and 2nd Respondents for an extension of time of 76 days i.e. from
31/12/2021 to 17/3/2022 for the delivery of vacant possession and
completion of common facilities for the said Phase 2 Project (including
the Disputed Units) (“the 3rd Application for EOT”) as the construction
works and the related works at the site of the said Phase 2 Project were
badly affected due to the Recovery Movement Control Order (“RMCO”)
and National Recovery Plan (“PPN”). However, there is no response
from the 1st and/or the 2nd Respondents towards the 3rd Application for
EOT.

A true copy of the letter dated 16/11/2022 to the 1st and 2nd Respondents
respectively together with the supporting documents of the 3 rd
Application for EOT is now shown to me, annexed herein and marked
collectively as Exhibit “MF-1”.

9. On 28/12/2021, the 3rd Respondent had delivered vacant possession to

all the purchasers (including the Applicants) for Block A2 only via a
Notice of Delivery of Vacant Possession dated 28/12/2021 (“VP Notice”)
(see the VP Notices at Exhibit ‘KKKL-3’ of the said AIS).

10. On 13/1/2023, the amendments to the Temporary Measures for

Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020
(“the COVID Act 2020”) was gazetted and Section 38C of the COVID
Act 2020 (which amongst others provides for the developer to apply to
the Minister for any period from 1/1/2021 to 31/12/2021 to be excluded
from the calculation of the time for delivery of vacant possession of a
housing accommodation or completion of common facilities) came into
force on 14/1/2022.

11. On or around 14/1/2022, the 3 rd Respondent re-submitted to the 1 st

and/or the 2nd Respondent the 3rd Application for EOT vide a letter dated
14/1/2022 upon request by the 1 st and/or the 2nd Respondent enclosing
the Goggle Forms with the title of “[BORANG A(V2)] PERMOHONAN

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 PENGECUALIAN TEMPOH SERAHAN MILIKAN KOSONG AKIBAT
PERINTAH KAWALAN PERGERAKAN BAGI PEMAJUAN YANG
TERJEJAS KERANA PENULARAN WABAK COVID-19 (PKP 3.0, Tahun
2021) (Pernah mendapat Kelulusan Akta 829, 2020)” (“the said Google
Form”) submitted by the 3rd Respondent on 14/1/2022 and other relevant
supporting documents (collectively known as “the said Re-submit
Application”).

A true copy of the letter dated 14/1/2022 with the said Google Form and
other relevant supporting documents is now shown to me, annexed
herein and marked collectively as Exhibit “MF-2”.

12. On 17/1/2021, the 3rd Respondent then delivered vacant possession to

all the purchasers for Block B2 via VP Notice dated 17/1/2021.

A true copy of the sample VP Notice for Block B2 dated 17/1/2022 is

now shown to me, annexed herein and marked as Exhibit “MF-3”.

13. On or around 15/3/2022, the 3 rd Respondent had obtained an approval

from the 1st and/or 2nd Respondents via a letter dated 6/7/2021 to
exclude 167 days i.e. from 18/3/2020 to 31/8/2020 (“the 3rd EOT”) from
the period of time for the delivery of vacant possession (see the letter
from the 1st and/or 2nd Respondent dated 6/7/2021 at Exhibit ‘KKKL-2’ of
the said AIS). The 3rd EOT was granted by the 1 st and/or 2nd
Respondents to the 3rd Respondent under Section 38C(1) and 38C(2) of
the COVID Act 2020.

CRUX

14. The main purpose of the said Application is to strike out the Decision of
the 1st and/or 2nd Respondents in allowing the 3rd EOT.

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15. I am advised by the 3rd Respondent’s solicitors and verily state that the
said Application ought not to be allowed amongst others based on the
following reasons:-

(a) The 3rd Application for EOT is made by the 3 rd Respondent for the
said Phase 2 Project as a whole which include both Block A2 and
Block B2. The 3rd EOT given by the 1st and/or 2nd Respondent to
the 3rd Respondent under Section 38C of the COVID Act 2020 is
meant to be for the whole of the said Phase 2 Project and not the
individual units itself.

(b) The 3rd Application for EOT was first made vide the letter dated
16/11/2021 to the 1st and 2nd Respondent and hence it was made
before the deadline for the delivery of vacant possession.

(c) The said Application herein is academic even without taking into
account the 3rd EOT because the vacant possession of the said
Disputed Units were delivered in time by the 3 rd Respondent to the
Applicants according to the said SPAs after taking into account the
1st EOT and 2nd EOT.

(d) The said Application herein is an abuse of process based on the

following reasons:-

(i) The Applicants in the said Application herein are owners for 9
units only out of the total of 372 units in the said Phase 2
Project and they are attempting to nullify the 3 rd EOT by
instituting the action herein amongst others to move the Court
to strike out the decision by the 1 st and/or the 2nd Respondent
in allowing the 3rd EOT and/or alternatively declaring that the
said letter dated 15/3/2022 allowing the 3 rd EOT is invalid
and/or void. The reliefs sought by the Applicants will
necessarily affect all the other units of the said Phase 2
Project as the 3rd EOT was granted for the whole Phase 2

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 Project. In the event if the Court rules in favour of the
Applicants, the relief and/or declaration by the Court cannot
be confined to the 9 units only. Therefore, the said Application
herein ought to be a representative action by all the
purchasers of the said Phase 2 Project.

(ii) There is no purpose in these proceedings because there are

no damages and/or losses claimed by the Applicants in
relation to the the 3rd EOT.

(iii) Further, the Applicants has referred to the decision of Ang

Ming Lee (supra) and PJD Regency (supra) in paragraph 13
of the said AIS and claimed that the period of 36 months
instead of 48 months is to be used for calculating the period of
time for delivery of vacant possession and also reserved their
rights in paragraph 8 of the said AIS to dispute the validity of
the 1st EOT in the future.

(iv) Since the decision by the 1 st and/or 2nd Respondent in

allowing the 1st EOT and 3rd EOT falls within public law
domain and the Applicants are allowed to seek for
declarations and/or damages under a Judicial Review
proceeding.

(v) The Applicants ought to have file the said Application herein
to challenge the 1st EOT based on the decision of Ang Ming
Lee (supra) and PJD Regency (supra) together with the
issues herein in relation to the 3rd EOT instead of
contemplating proceedings in instalments.

(vi) Also, Part X1 of the COVID Act 2020 (which includes the said
Section 38C) is a modification to the HDA and therefore both
the 1st EOT and 3rd EOT are actually given under the HDA.

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 Therefore, there is no reason to split the matters to different
proceedings.

16. Based on the aforesaid reasons, I verily believe and state that the said
Applications ought to be dismissed.

17. I am further advised by the 3rd Respondent’s solicitors and verily believe
that the said Ex-Parte Leave ought to be set aside based on the
following grounds amongst others as follows:-

(i) The said Ex-Parte Leave was granted by this Honourable Court
without a full and frank disclosure of the material facts by the
Applicants where the Applicants intend to use the said Application
herein as a platform to launch or split another suit and/or
proceeding in instalments.

(ii) The said Application and the said AIS do not contain sufficient
material facts and particulars of facts as the Applicants did not
challenge the 1st EOT in the said Application.

(iii) Further, the Applicants is seeking for relief and/or declaration which
affect all the other units of the said Phase 2 Project but the said
Application herein is not brought by way of representative action.

(iv) The said Application has no substance and serve no purpose as

there are no reliefs for damages and/or losses being claimed by the
Applicant herein.

REPLY TO THE SAID AIS

18. Paragraphs 4 to 6 of the said AIS are not disputed.

19. Paragraph 7 of the said AIS is not disputed to the extent that it is
consistent with the terms and conditions stated in the said SPAs entered

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 between the Applicants and the 3 rd Respondent and any allegations that
are inconsistent with and/or not stated in the terms and conditions of the
said SPAs are disputed.

20. Paragraphs 9 to 11 of the said AIS are not disputed.

21. In reply to paragraphs 8 and 13 of the said AIS categorically, I am

advised by the 3rd Respondent’s solicitors and state that the Applicant’s
action amounts to an abuse of proceedings based on the reasons stated
above.

22. Paragraphs 12, 14 and 15 of the said AIS are categorically disputed and
I am advised by the 3rd Respondent’s solicitors and reply as follows:-

(i) The 3rd EOT Application was first made by the 3 rd Respondent for
the whole of the said Phase 2 Project (and not for the Disputed
Units only) on 16/11/2021 to the 1st and 2nd Respondents (see
Exhibit “MF-1”) which is before the due date for delivery of vacant
possession.

(ii) The 3rd EOT Application was not made under Section 38C of the
COVID Act 2020 but was made under the HDA.

(iii) There are no response from 1st and 2nd Respondents towards the
3rd EOT Application by the 3rd Respondent until Section 38C of the
COVID Act 2020 came into force where the 3 rd Respondent was
requested to resubmit the 3rd EOT Application again.

(iv) I am advised by the 3 rd Respondent’s solicitors and believe that

Section 38C of the COVID Act 2020 is meant to be for the whole
phase of development and not the individual units itself.

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(v) When the said Re-submit Application was being made by the 3 rd
Respondent on or around 14/1/2022, the vacant possession for
Block B2 of the said Phase 2 Project has yet to be delivered.

(vi) Out of the 372 units of the said Phase 2 Project, only 36 units
(including the Disputed Units owned by the Applicants) in Block A2
where the due date for delivery of vacant possession is before
14/1/2022 (i.e. the date where the said Re-submit Application was
being made). About 102 units in Block A2 and 87 in Block B2
where the due date for delivery of vacant possession is after
14/1/2022.

A true copy of the summary table of the due date for delivery of
vacant possession for Block A2 and B2 of the said Phase 2 Project
is now shown to me, annexed herein and marked as Exhibit “MF-
4”.

(vii) Although the 3rd EOT Application was first made by the 3 rd
Respondent under the HDA, the 3rd EOT was granted by the the 1st
and/or 2nd Respondents under Section 38C of the COVID Act 2020
for the whole of the said Phase 2 Project after the said Re-submit
Application was being made by the 3 rd Respondent on or around
14/1/2022.

(viii) I am advised by the 3 rd Respondent’s solicitors and believe that the

1st and/or 2nd Respondents may choose to give the 3 rd EOT under
Section 38C of the COVID Act 2020 and hence the 3rd EOT
Application which was first made in 16/11/2021 was made before
the due date for delivery of the vacant possession under the 1 st
SPA dated 18/7/2017 i.e. 1/1/2021 and not after that.

(ix) Without derogating from the above, I am further advised by the 3 rd

Respondent’s solicitors and believe that based on the COVID Act
2020 which was amended in January 2022, the laws allows the

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 Authorities i.e. the 1st and/or the 2nd Respondents to grant
extension of time backwards for 2021 in 2022 and hence there is
no reason why the 3rd EOT Application made before 14/1/2022
cannot be considered.

23. For the avoidance of doubt, unless expressly admitted in this Affidavit, all
the allegations by the Applicants in the said AIS are misconceived and/or
disputed by the 3rd Respondent.

Conclusion

24. Based on the aforesaid reasons, I am advised by the 3 rd Respondent’s

solicitors that the said Ex-Parte Order ought to be set aside and the said
Application herein to be dismissed with costs to be paid to the 3 rd
Respondent.

To an affidavit by one deponent )

GHAZIE YEOH BIN ABDULLAH )
Affirmed on )
At )
[Interpretation not required] )
Before me,

…………………………..
Commissioner for Oaths

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This 3rd RESPONDENT’S AFFIDAVIT IN REPLY (to oppose the
Substantive Application for Judicial Review) is filed by Messrs Justin Voon
Chooi & Wing, solicitors for the 3 rd Respondent with an address for service at
d6-5-13A, Bangunan Perdagangan d6, 801, Jalan Sentul, 51000 Kuala
Lumpur.
Tel: 03-27851015/23 & 03-27014451 Fax: 03-27014452
[Ref: JCW/L1146/10/22 (A) – JV/SL]

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