Ooi Choong Han v Glomac Segar Sdn Bhd

Appellant(s): Ooi Choong Han

Respondent(s): Glomac Segar Sdn. Bhd.

• YA Dato' Azizul Azmi Bin Adnan
• YA Dato' Ong Chee Kwan
• YA Dato' Nadzarin Bin Wok Nordin

• The purchaser bought a unit from the developer under a Schedule H sale and purchase agreement which provided for delivery of vacant possession within 48 months instead of the statutory 36 months.
• The developer relied on a letter dated 29.6.2018, signed by the Deputy Controller of Housing in his own name (not "for and on behalf of" the Controller), to justify the extended period; no written delegation from the Controller was ever produced.
• After deducting pandemic-related exclusion periods, vacant possession was still delivered more than a year late, prompting the purchaser's claim for liquidated ascertained damages (LAD), which was dismissed by the Magistrate Court and the High Court on appeal.

• Whether a Deputy Controller of Housing has power under regulation 11(3) of the Housing Development Regulations to grant an extension of time in his own right, or only pursuant to a written delegation under section 4(3) of the Housing Development Act.
• Whether the purchaser was required to challenge the validity of the Deputy Controller's letter by way of judicial review before relying on its invalidity as a defence to the developer's reliance on the extended period.
• Whether the Federal Court's "second actor theory" in Obata-Ambak, or the principle that a signed contract binds the parties, could validate or preserve the 48-month term despite the absence of proof that the extension was granted by the Controller or his lawful delegate.

• The Court held that a Deputy Controller has no power in his own right under regulation 11(3) to grant extensions; such power may only be exercised pursuant to a written delegation under section 4(3) of the Act, and since none was proved, the letter was made without power and granted no valid extension.
• The Court held that judicial review was not required because the claim was a private law claim to enforce contractual/statutory rights to LAD, and a decision made wholly without power is void and may be challenged collaterally in ordinary proceedings; this was distinguished from Obata-Ambak, where the extension had been validly granted by the Controller before being affected by the prospective-only ruling in Ang Ming Lee.
• The Court found that neither the second actor theory nor the principle that signed contracts bind parties could validate the extension, as these doctrines presuppose a genuine (even if later invalidated) exercise of power; the appeal was allowed, with the statutory 36-month period applying, and damages recalculated (incorporating a further 153-day exclusion under the COVID-19 Act) to RM45,786.30 for late vacant possession and RM14,903.44 for late completion of common facilities, plus interest and costs.