taken into consideration is the loss of reputation
and time defending these proceedings which
cannot be quantified or replaced.
It must also be emphasised that the
Courts will not treat a breach of these duties
and responsibilities imposed by the various
legislations lightly, as the liability for such
breaches is strict. This position is reinforced by
the case of Pendakwa Raya -lwn- Chew Weng
Leong [2015] MLJU 1238, whereby the Penang
High Court reversed the Sessions Court’s decision
on appeal, and held that the prosecution had
made out a prima facie case against Chew Weng
Leong, the PSP who was alleged to have illegally
issued the CCC despite the fact that the LA had
withheld such issuance pending rectification
of non-compliance. In this case, the MPPP had
withheld the issuance of CCC and requested the
developer to carry out the required “Full Scale
Load Test” on the subject building which had
allegedly settled.
The developer did not carry out the said test
as required. Despite this, the PSP issued the
CCC, in contravention of Section 70(27)(c) of the
Street, Drainage and Building Act 1974. Breach of
Section 70(27)(c) is a criminal offence and upon
conviction, the PSP would be liable to a fine of not
exceeding RM250,000.00 or to imprisonment for
term not exceeding 10 years or both. In this case,
the Penang High Court held that such statutory
offence attracted strict liability, and the mens rea
for committing the breach was presumed.
The local authorities are absolved from most
of the liabilities and cannot be made a party to
the suits. Even if they were to be made parties to
the suit, the chances of obtaining an order against
them are bleak. This can be demonstrated in the
recent High Court decision in Aini bt Ismail & Ors
v OSK Properties Sdn Bhd & Ors [2017] MLJU
104. In this case, the purchasers of a singly built
detached house sued the developer, the LA and
the PSP involved in the Project.
The High Court allowed the application
made by the LA to strike out the claim against
it on the grounds, in the main, that there was no
contractual relationship between the purchasers
and the LA, and that more importantly, By-Law
25A of the Uniform Building By-Laws 1984 [G.N.
4
5178/84] had vested full power to the PSP to
issue the CCC. By-Law 25A of the UBBL 1984
provides that the PSP accepts full responsibility
for the portions that he is concerned with, which
includes the supervision of the erection and
completion of singly built detached houses.
The High Court took note that under the CCC
regime, the duty to ensure compliance with regard
to the CCC rested fully with the PSP, and that even
though the LA may also inspect the building, it
was not mandatory for them to do so, Although
the High Court also struck out the claim against
the PSP in this case, it was done so because of
incomplete\technical faults in pleading issues.
The PSP has no immunity unlike the local
authorities under the previous and present
regime 4 , as demonstrated in the case of Aini bt
Ismail & Ors v OSK Properties Sdn Bhd & Ors
[2017] MLJU 104.This opened up a floodgate of
cases and has proven to be of detriment to the
professionals, though it has benefitted the long
suffering aggrieved parties such as purchasers.
COMPARISON OF PSP LIABILITY IN CCC
REGIME vis-à-vis CFO
It may appear on the face of it that the PSP carries
similar responsibilities and liabilities as the QP in
the previous CFO regime at least in terms of civil
liability. However, it is in fact far from the truth in
practice.
Increase in Administrative Role: Under the CCC
procedure, the PSP has much more administrative
obligations to perform vis-à-vis the other building
professionals namely, mechanical and electrical
engineers and quantity surveyors, main contractors,
trade/subcontractors, etc. to ensure that statutorily
prescribed Forms G1 to G21 are duly signed/
endorsed, collated and checked before the CCC is
issued. This is in addition to his existing duties to
supervise the construction process and taking all
the adequate means to ensure care.
PSP reliant on the employer for help: Having
no direct contractual control over such parties,
to fulfil his statutory liability especially in regard
Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon [2006] 2 MLJ 389, F.C.
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