The government should quickly resolve the quandary in which housebuyers have found themselves, following yesterday's landmark ruling that the Tribunal for Homebuyer Claims is not empowered to hear cases if the purchases predated its inception last December.

The Kuala Lumpur High Court decision not only barred the tribunal from hearing any of the 2,209 backlog cases, but also effectively nullified awards amounting to some RM2.3 million, granted to more than 438 buyers.

All the disputes filed with the tribunal so far involve houses purchased before December 2002.

Expressing his disappointment, Fomca secretary-general N Marimuthu said the buyers had "completely lost out in this case" and this has set a bad precedent.

"It shows that the Housing Development (Control and Licensing) Act 2001 only supports developers," he said when contacted today.

No faith in tribunal

The tribunal was created under an amendment Act which took effect on Dec 1.

"This decision will have a great impact on the tribunal itself, not to mention the ministry because housebuyers will now lose faith in it," Marimuthu said.

He said the tribunal was set up for consumers to get legal redress, not to go into a legal battle with developers.

"Those (developers) who obtained this favourable judgement should not think that they have won the war because we will seriously look at the implications (of the ruling) and how to address the matter, especially since 70 percent of consumer complaints pertain to housing disputes."

He urged Housing and Local Government Minister Ong Ka Ting ( photo ), who heads the parent ministry for the Act and tribunal, to return the amendments to Parliament to plug the loopholes.

"What the government should have done is to backdate the amendments to the Act to, say, 10 years," Marimuthu added.

Neither Ong nor his ministry officials could not be reached for comment today.

In his 15-page judgement, Justice Raus Sharif explained, among other things, that it was non-compliance with the tribunal's award and not the breach of the sale and purchase agreement that was an offence.

He ruled that the tribunal could not hear cases or grant awards with retrospective effect.

Developers gain

Consumers Association of Penang complaints section head Ravinder Singh felt that developers should be held criminally liable for breach of the sale and purchase agreement in the first place.

"Problems such as the current one are due to breach of the agreement. So, if the court still holds the view that developers should be spared, then Parliament has to state explicitly that the provision works retrospectively," he said.

"There is a difference between the crime described under this Act and stealing a chicken, for example."

Ravinder felt the law should apply retrospectively because "developers breach the agreement knowing full well what the consequences are".

"If a buyer is late in making payments, developers immediately charge the full 10% interest. It is only fair that developers who breach the agreement also get dealt with the same way," he said.

"But they (developers) don't always give the full 10 percent, they usually give five, sometimes even three, percent (compensation)."

He said the objective of setting up the tribunal has been defeated by the court decision, especially when the backlog was the reason for creating the body in the first place.

Ravinder said the government should admit that there is a clear loophole in the amended law and fix it quickly.