clause 6(g) of the Tenancy Agreement imposes a co-extensive liability against the 1st Defendant to pay the Balance Purchase Price and Late Payment Interest to the Plaintiffs. [7] After hearing parties on 10-12-2024, I found for the Defendants and dismissed the . The reasons for this conclusion are as set out below. Analysis and Findings [8] The Plaintiffs have paid the 2nd Defendant in full for the Property under the original sale by the 2nd Defendant to the Plaintiffs. That transaction was governed by a sale and purchase agreement and a deed of mutual covenant (referred to in the SPA as Principal Agreements ). The Principal Agreements were still executory in that strata title has not been transferred. [9] It is not clear why strata title has not been transferred to the Plaintiffs, but the parties acknowledge that the Plaintiffs are the beneficial owners of the Property. he claim for the Balance Purchase Price and Late Payment Interest as special S/N d/x7FxzWBEWkeoaAdznlKQ damages for the 2nd the Property is unsustainable without addressing the effect of the Principal Agreements. [10] As the Plaintiffs have fully paid for the Property and the Principal Agreements have not been impeached in any way, the 2nd Defendant is and was at all material times a bare trustee of the Property for the Plaintiffs. According to clause 6.1 of the SPA, the Principal Agreements shall be deemed revoked and rescinded only upon completion of the SPA. [11] Thus, the Principal Agreements must have been revoked and rescinded or the beneficial interest in the Property must have been otherwise assigned back to the 2nd Defendant to justify receiving the full purchase price. By no account has this happened. Consequently, there is no measure of damages in contract that would entitle the Plaintiffs to the full purchase price for non-completion of the SPA while still retaining beneficial interest in the Property. [12] For reasons that will be apparent in the next section, the Plaintiffs have avoided any reference to specific performance and are relying instead on the principle that the primary obligation to perform the promise may be substituted with the secondary obligation to compensate for the breach. However, strictly as a claim for special damages for the breach of clause 3(b) of the SPA, the Plaintiffs will have failed to prove that they suffered the loss claimed. [13] The fact is, the Plaintiffs have submitted that they are electing to affirm the SPA and rely on section 4(b) of the Specific Relief Act 1950 to call upon the Court to order the 2nd Defendant to do the act which it is under an obligation to do under the SPA. The Plaintiffs are not merely S/N d/x7FxzWBEWkeoaAdznlKQ seeking to specifically enforce the payment obligation of the 2nd Defendant, but rather to specifically enforce the SPA i.e. for the 2nd Defendant to complete the SPA. [14] The Plaintiffs may argue that they are not seeking the remedy of specific performance of the SPA, but there is no other sensible way to characterize their claim in this action. Right to Specific Performance [15] As this Court has ascertained, the Plaintiffs are in effect seeking the remedy of specific performance of the SPA. This is an equitable remedy codified in Chapter II of the Specific Relief Act 1950. It is a discretionary remedy that is available in some circumstances, not as a matter of right. [16] The Plaintiffs are the vendors of the Property under the SPA and as a vendor interest is monetary, a contract of sale is not typically specifically enforceable by the vendor. Regardless, the Plaintiffs contend that the remedies provided for in the SPA do not preclude the parties' common law right to affirm the SPA and claim damages for the same breach. [17] The Plaintiffs also argue that the 2nd Defendant is estopped from denying that the Plaintiffs are entitled to the Balance Purchase Price and Late Payment Interest based on correspondence exchanged when the 2nd Defendant acknowledged their liability to pay it and sought an extension of time according to clause 3.2 of the SPA. S/N d/x7FxzWBEWkeoaAdznlKQ Estoppel [18] Subsequent conduct may set up an estoppel against a contrary interpretation of a contract. In this case, there were no representations made in the correspondence which give any particular interpretation of the parties rights under the SPA or which would otherwise lead the Plaintiffs to believe that the 2nd Defendant had agreed to complete the SPA on its original terms. [19] The contrary was true in that according to the tenor of the communications sighted, the 2nd Defendant acknowledged its inability to complete the SPA by the original Completion Date and was seeking an extension of time, highlighting to the Plaintiffs that they had the right to terminate the SPA and forfeit the deposits in hand as agreed liquidated damages. [20] As there was no agreement to the 2nd extension of time, no payment of the Balance Purchase Price was made. The consequences of that default would still be subject to the terms of the SPA and were not addressed one way or another in the letters from the 2nd Defendant. Construction of the SPA [21] In general, the doctrine of freedom of contract in Malaysia recognizes that parties may contractually provide for any contemplated eventuality in the course of their relationship. Unless they are contrary to any mandatory law, such contractual terms are binding on the parties and enforceable in Court, even when parties contract out of existing legal S/N d/x7FxzWBEWkeoaAdznlKQ rights or provide for legal consequences different than those which ensue by law (see Ooi Boon Leong & Ors v Citibank NA [1984] 1 MLJ 222). [22] The question that arises therefore, is whether the Plaintiffs contracted out of the remedy of specific performance by agreeing to clause 11.1 of the SPA. It is not contrary to law for parties to contractually agree to limit their remedies for breach of contract. The law reports are replete with authority to that effect. Ascertaining the objective intent of the parties in this regard calls for construction of the SPA. [23] Clause 11.1 of the SPA provides as follows when the 2nd Defendant fails to pay the Balance Purchase Price: S/N d/x7FxzWBEWkeoaAdznlKQ [24] The above is contrasted with clause 10.1 of the SPA which provides as follows when the Plaintiffs commit a material breach of the SPA: [25] The provision of remedies for breach of the SPA is asymmetrical for the vendor and the purchaser and it would seem, recognizes that the interests of the parties are different. The remedy of specific performance was expressly included in clause 10.1 and excluded from clause 11.1, and S/N d/x7FxzWBEWkeoaAdznlKQ as this Court had ascertained from counsel at the outset of the hearing, the SPA and presumably these provisions had been negotiated. [26] Thus, it can be reasonably construed to be the intent of the parties on a plain reading of the two clauses together that the Plaintiffs had agreed not to pursue specific performance of the SPA if the 2nd Defendant failed to pay the Balance Purchase Price. In support of this construction, the 2nd Defendant also referred to a decision of the High Court in Lim Kuan Chyin v Chu Hoi Ming [2023] 12 MLJ 812 where similar asymmetrical clauses on remedies were found in a share sale agreement. There, an action for specific performance by the vendor was dismissed based on the construction of those clauses. [27] In Lim Kuan Chyin the High Court also cited James Hugh (Defender) [2006] SCLR 587 for the proposition that where a particular breach is contemplated and a specific remedy is provided for it, the contractual remedy must be seen as a substitute for and not as a supplement to those at common law. [28] In this case, both clauses 10.1 and 11.1 of the SPA were not boilerplate clauses. They were deliberate and detailed. In commercial dealings, contract drafters do well to reduce uncertainty by being deliberate and detailed. Thus, if it is intended that the expressed legal consequences for a contemplated breach is not exhaustive but are subject to other available legal remedies, it should say so. S/N d/x7FxzWBEWkeoaAdznlKQ [29] For all these reasons, this Court considered it paramount to give effect to the intention of the parties according to terms of the SPA as drawn up and held the remedy of specific performance is not available to the Plaintiffs. It is also noted for completeness that the Plaintiffs did not attempt to justify why they would be entitled to the remedy of specific performance despite section 20(1)(a) of the Specific Relief Act 1950. Liability under the Tenancy Agreement [30] The Plaintiffs also sought judgment for the Balance Purchase Price and Late Payment Interest as special damages against the 1st Defendant who is not a party to the SPA. According to the Plaintiffs, this liability on the part of the 1st Defendant arises independently under the Option to Sell clause in clause 6(g) of the Tenancy Agreement which reads as follows: If the Landlord to renew this Tenancy during the Term hereby created pursuant to absolute discretion, at least one (1) month prior to the expiry of the Term hereby created, give notice in writing to the Tenant (1st Defendant) to request the Tenant to purchase, and the Tenant shall be obliged to purchase the Demised Premises together rom the Landlord upon the following salient terms and conditions:- S/N d/x7FxzWBEWkeoaAdznlKQ [31] The obligation of the 1st Defendant under the Option to Sell clause to purchase the Demised Premises together with the full fixtures, basis from the Landlord upon the following salient terms and conditions Construing clause 6(g) of the Tenancy Agreement as an independent option agreement, this Court finds that its terms include the 1st purchaser who will enter into a sale and purchase agreement. [32] Thus, according to clause 6(g) of the Tenancy Agreement, the obligation of the 1st Defendant to purchase the Property was (a) subject to contract, (b) subject to the 1st nominee in the contract and (c) discharged by the signing of the SPA between the Plaintiffs and the 2nd Defendant. Thus sub-clause 6(g)(i) to