1. ) Pertiwi Prestij Sdn Bhd v 1. ) Damai Bistari Sdn Bhd (WA-22C-20-02/2017 & WA-22C-60-05/2017)

housing units to PPSB by way of contra for works to be performed by PPSB in relation to two (2) contracts: the RC Deck Contract and the 146 Units Contract. [22] On the other hand, DBSB’s Suit revolves around a claim for LAD against PPSB for its late performance of the Works in respect of the two (2) contracts above. [23] The witnesses called by the parties were as follows: WITNESSES REFERENCE PPSB’S WITNESSES YB Dato’ Tuan Haji Saari Sungib PW1 Mohamad Shahripoddin Abd Rahman PW2 Idrus Bin Saarani PW3 Abdul Karim Bin Abdul Rahman PW4 Robiha binti Mohamed PW5 DBSB’S WITNESSES Lai Mei Kwan DW1 Mohamed Raslan Bin Abdul Rahman DW2 Noraziz Bin Osman DW3 9 Whether the Settlement Agreement had been terminated, revoked or invalidated or that the parties had been released of their obligations under it [24] PPSB wrote a letter dated 20.8.2009 [DBOD1 p. 68-69] stating their agreement to assign and/or surrender the RC Deck Contract and the 146 Units Contract to PPSB’s Subcontractors, and in exchange PPSB had, amongst others, agreed to surrender one (1) unit from the Settlement Agreement namely unit D-1-06 to pay for work already done by PPSB’s Subcontractors and any other units deemed necessary for future payments for the Works to be completed by the Subcontractors. PPSB also acquiesced to the variation or invalidation of the Settlement Agreement in any manner that DBSB saw fit. [25] Further, PPSB had appealed to DBSB to not impose LAD for any delay that had been caused, and in exchange PPSB had agreed to waive its rights to take any legal action against DBSB in relation to actions taken by DBSB. [26] This proposal was accepted by DBSB both in the assignment and payment for the Works done to the Subcontractors direct by way of contra of properties to them and to those who provided financing for the Works; the same properties that would have been transferred to PPSB had they completed the Works themselves. This Mutual Agreement is evidenced in PPSB’s letter dated 20.8.2009 to DBSB in DBOD1 p. 68-69. [27] The reality of the matter, which PPSB refused to accept, was that the Settlement Agreement was not performed by PPSB, who had waived their rights and voluntarily surrendered the RC Deck Contract and 146 Units Contract to DBSB. The works under the RC Deck Contract and 146 Units 10 Contract were completed by PPSB’s Subcontractors, who were also paid directly by DBSB. [28] Following the confirmation of PPSB to DBSB paying the various Subcontractors of PPSB direct as set out in the Mutual Agreement between the parties, DBSB had varied and/or invalidated the Settlement Agreement accordingly. [29] By way of a letter dated 4.9.2009 from DBSB to PPSB’s solicitors at that time, Messrs Robiha & Co., DBSB confirmed the revocation of the Settlement Agreement [DBOD1 p. 75]. The letter dated 4.9.2009 was copied to PPSB, who did not raise any objections to the revocation [DW1- WS p. 18-19 Q28-29], or at least to the instructions therein. This clearly evidenced the intention of the parties. Surely if that had not been the Mutual Agreement between the parties, PPSB would have raised their objection for it involves the Subcontractors of PPSB being assigned the Works previously under PPSB and DBSB not paying PPSB any more but instead paying PPSB’s Subcontractors direct which DBSB did through the transfer of the properties. [30] Out of the sixteen (16) units stipulated in the Settlement Agreement [DBOD1 p. 40], one (1) unit namely the double storey terrace house had been transferred to PPSB upon their insistence and one (1) unit namely D- 1-06 was sold to LT Sdn Bhd on 14.9.2009 following its omission from the Settlement Agreement [DBOD2 p. 64-90]. [31] As submitted by learned counsel for DBSB and as borne out by the evidence adduced in Court and not challenged, out of the remaining fourteen (14) units from the Settlement Agreement, three (3) units were then offered to PPSB’s Subcontractor Improve Brilliant Sdn Bhd (“Improve Brilliant”) for the works done for DBSB and the other eleven (11) units were 11 sold to parties who provided funding to complete DBSB’s unfinished projects and to pay statutory authorities and DBSB’s suppliers: a. Three (3) units namely B16-02, D12-01 and D13-04 to Improve Brilliant via Letters of Offer dated 3.3.2010 [DBOD2 p. 91-99] for works done for DBSB [DBOD1 p. 79-80]; b. Two (2) units namely D-1-11 and F13-06 to Hansel S.L Solibun-Choy via Option Agreements dated 11.11.2011 [DBOD2 p. 100- 111 and p. 195-206]; c. Two (2) units namely F5-09 and F5-10 to Lim Teik Ee via Option Agreements dated 11.11.2011 [DBOD2 p. 132-143 and p. 164-175]; d. Three (3) units namely D-1-03, D-1-04 and D-1-09 to Prominent Xtreme via Option Agreements dated 9.12.2011 [DBOD3 p. 228-239, p. 261-272 and p. 293-304]; e. Three (3) units namely D-1-01, D-1-02 and F-1-13 to Prominent Xtreme via Option Agreements dated 21.12.2011 [DBOD3 p. 325-336, p. 357-368 and p. 389-400]; and f. One (1) unit namely D2-01 to Prominent Xtreme via Option Agreement dated 8.1.2012 [DBOD3 p. 401-410]. [32] As summarized by learned counsel for DBSB, eleven (11) Option Agreements were signed and three (3) Letters of Offer were issued in respect of the remaining fourteen (14) units from the Settlement Agreement. DBSB was subsequently wound up on 19.1.2012. [33] The liquidator i.e. DW2 and his team had gone through the documents, agreements and accounts. All this was summarised in the Justification Paper [DBOD6 p. 1-3]. Each transaction is broken down and 12 particularised. It is then cross-referred to documents which evidence payment as well as the reason/justification for payment [DBOD6 p. 4]. [34] These documents and entries in the Justification Paper were neither challenged nor disproved, before or during the trial. In fact, PW2, Mohamad Shahripoddin Abd Rahman, the Chief Executive Officer of PPSB, had admitted that PPSB did not pay their Subcontractors [PW2-NOE p. 7 Q10 and Q12]. PW3 and PW4, both Subcontractors, had further admitted that DBSB was the one paying PPSB’s Subcontractors [PW3-NOE p. 3-4 Q16- 17; PW4-NOE p. 5-6 Q11-13] [35] After almost five (5) years after the implementation of the Mutual Agreement and the revocation of the Settlement Agreement, by way of a letter dated 7.10.2014, the liquidators of DBSB were informed by PPSB’s solicitors, Messrs Khamshah & Partners that PPSB intended to claim specific performance of the Settlement Agreement to recover all the fifteen

units therein [DBOD1 p. 83-84]. [36] Based on the representation given by PPSB in the Mutual Agreement that they had waived their right to take legal action against DBSB, DBSB as well as its liquidators had decided not to take any action against PPSB for any LAD incurred. However, in light of PPSB’s Suit, and in the abundance of caution should the Court hold that the Settlement Agreement was still subsisting, the liquidators of DBSB then decided to file DBSB’s Suit to claim LAD from PPSB for its late completion of the Works [DW2-WS p. 14- 15 Q20]. [37] During the trial, the first witness called by PPSB was YB Dato’ Tuan Haji Saari Sungib (“PW1”). He was the Assistant Chairman of the State Exco Committee for housing, building management and squatters for Selangor. He held the position of Chairman of the Task Force for DBSB’s 13 housing projects, which was classified by the State as a “sick” that needed rehabilitation. [38] During his cross-examination, PW1 confirmed that he chaired the meeting on 6.8.2009 [PW1-NOE p. 3 Q6] which was referred to in PPSB’s letter dated 20.8.2009 [DBOD1 p. 68-69] and he agreed that PPSB did not make payments to their Subcontractors [PW1-NOE p. 3 Q7]. [39] PW1 further agreed that as evidenced in PPSB’s letter dated 20.8.2009 [DBOD1 p. 68-69], DBSB would make direct payments to PPSB’s Subcontractors [PW1-NOE p. 4 Q13]. The contents of PPSB’s letter dated 20.8.2009 [DBOD1 p. 68-69] were later admitted as agreed facts by consent from both parties [PW1-NOE p. 4 Q15]. In any event the PPSB’s letter was signed by PW 2 himself. [40] DW 1 Miss Lai Mei Kwan, who was the Chief Executive Officer Sr of DBSB before it went into liquidation, gave evidence of the salient parts of PPSB’s letter to DBSB dated 20.8.2009 [DBOD1 p. 68-69]. This offer by PPSB to be released of their obligations under the Settlement Agreement is the watershed in PPSB’s case against DBSB down which the reliefs prayed for would be decided. It was the defining moment in the parties’ contractual relationship under the Settlement Agreement. [41] The said letter could not be clearer and the relevant parts are reproduced below for a full appreciation of the predicament that PPSB found themselves to be in resulting in their ability to complete the Works: “For the purpose of smooth running (of) the completion of RHB projects above, we confirm our agreement that you may pay our sub-contractors directly up to the maximum of the contract between us and Damai Bistari Sdn Bhd named herewith or to be named by you or 14 your consultants or advisors should the requirement arise for the purpose of completing the contracts. Our current Sub-Contractors have agreed to complete all the outstanding works within the Scope of Works. Permatang Teknik Sdn Bhd.... Raihjaya Sdn Bhd... Sama Sejati Sdn Bhd.. Any other contractors to be named by you to complete the works where necessary but all cost including the named contractors shall not exceed the Contract Amount between us. Alternatively, we offer to voluntary surrender the contract conditionally to no further claims are made to us in excess of the current contract value including after taking into consideration of all Variation Orders (Omission) and Variation Orders (Addition). In both cases it should be reflected in the Settlement Agreement we signed on May 14, 2009 which will be varied to cover the total paid out including the unit SSD-D-1-06 and or any other units deemed necessary. You may vary or invalidate in the manner required the Settlement Agreement upon your acceptance of the proposal. We also waive our rights to take administrative or legal actions against you or your consultants and Advisors for all actions taken pursuance of this letter. However, we appeal to you that you shall not charge the Liquidated Ascertained Damages having taken into account our voluntary cooperation extended to you for the purpose of completing the project. Your cooperation is highly appreciated.” (emphasis added) 15 [42] It was clear from the above letter that PPSB was not able to complete the Works and had surrendered the Works back to DBSB for them to engage PPSB’s Subcontractors directly who were able and willing to complete the Works. [43] The caption to the letter clears all doubts that this letter cannot be other than the surrender of the whole of the Works by PPSB to DBSB for it refers to the RC Deck Contract works at the Podium Level and the 146 Units Contracts works with the following accompanying words as follows: “CONSTRUCTION AND COMPLETION OF THE REMAINING BUILDING WORKS ASSOCIATED INFRASTRUCTURE WORKS DIRECT PAYMENT TO SUB-CONTRACTORS OR VOLUNTARY SURRENDER OF CONTRACTS.” (emphasis added) [44] PPSB was imploring to be released of their obligations under the Settlement Agreement and by the words used, it is evident that PPSB left it to DBSB to decide the future of the RC Deck Contract and the 146 Units Contract. [45] The CEO of PPSB as PW2 under cross-examination, agreed that PPSB had problems in making payments to their Subcontractors [PW2- NOE p. 5 Q2] and admitted that he himself had been reprimanded by one Dr. Nik Zamri Majid of RSS PMC Sdn Bhd (appointed by the Selangor state authorities as project manager to revive the abandoned projects in the State) through emails dated 1.7.2009 [DBOD5 p. 96-97]. The contents of the emails dated 1.7.2009 were not refuted in writing and in fact, the contents have been admitted as agreed facts by consent from both parties [PW2-NOE p. 6 Q5]. [46] The salient parts of the emails dated 1.7.2009 from Dr. Nik Zamri Majid to PW2 [DBOD5 p. 96-97] are as follows: 16 “You cannot expect Site Staff and the QS and other consultants to understand your claims when it is not in accordance with the Contract and or normal procedures. The client has taken the liberty to approve your 1st Claim despite it is not normal. We cannot continue to process Claims that are abnormal just because you do not know how. There is no such thing in Construction Industry you submit VO (Addition) without supporting documents and agreement on price. Just because the Consultants asked you to do some extra works, it does not mean you just put a price and claim. It needs to be deliberated and quotation submitted. There is no such thing as the Client give you all the units without submitting claims to equal the properties in contra. The properties in contra will be allowed to you once your claims reached the value of the contra. If you do not understand Contract or Agreement please seek advice from qualified people like your lawyers who prepares your agreement. On all the contracts awarded to you, the terms of payment is by CONTRA of units. Therefore you are to tell your subcontractor the same, not telling them that the Client refused to pay or not approving your claims.” (emphasis added) [47] What is very telling and true was PW2’s admission as the CEO of PPSB that PPSB did not make payments to their Subcontractors [PW2- NOE p. 7 Q10 and Q12] and that it had been DBSB paying their Subcontractors [PW2-NOE p. 7 Q11 and p. 8 Q17], therefore confirming the contents of PPSB’s letter dated 20.8.2009 [DBOD1 p. 68-69], the relevant parts of which had been reproduced above. 17 [48] Here is where PW 2’s stoic refusal to accept the fact that PPSB had taken one unit transferred to them and that PPSB had not make any payments to their Subcontractors had spawned this unnecessary litigation some 5 years later. [49] Whether it is a case of selective amnesia or otherwise, the written documents especially the letter of 20.8.2009 [DBOD1 p. 68-69] where PPSB passionately pleaded DBSB to accept their surrender of their obligations to complete the Works under the Settlement Agreement which DBSB accepted, stare at us and speak volume of PPSB’s stubbornness to accept reality. [50] Having not completed the Works and having offered to surrender the Works and further having not paid the Subcontractors, PPSB are now asserting rather audaciously that they are entitled to all the contra units in the Settlement Agreement. Something is wrong with PW 2’s arithmetic and this Court cannot allow the Subcontractors who actually completed the Works to be left unpaid and PPSB not having done the Works, to be paid in full via remaining 14 contra units! [51] Rather belatedly PPSB submitted that there was fraud, coercion, undue influence and misrepresentation on the part of DBSB. If that were so one would have expected a police report to be lodged after the issuance of the Letter of 20.8.2009 [DBOD1 p. 68-69]. Instead there was complete silence until some 5 years later. [52] There is not an iota of evidence on the above and such allegations are not only wholly unsustainable and unsupported by cogent evidence, but they are also allegations which have not been pleaded with sufficient particulars in PPSB’s Statement of Claim. One must not confuse normal commercial pressure with economic duress and in a contractual situation 18 commercial pressure is never enough as was observed in the case of Pao On & Ors v Lau Yiu Long & Ors [1980] AC 614. The Privy Council made it very clear that: “Duress, whatever from it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree with the observation of Kerr J in Occidental Worldwide Investment Corp v Skibs AS Avanti [1976] 1 Lloyd’s Rep 293, 336 that in a contractual situation commercial pressure is not enough. There must be present some factor ‘which could in law be regarded as a coercion of his will so as to vitiate his consent.’ This conception is in line with what was said in this board’s decision in Barton v Armstrong [1976] AC 104, 121 by Lord Wilberforce and Lord Simon of Glaisdale observations with which the majority judgement appears to be in agreement.” (emphasis added.) [53] In the Singapore case of EC Investment Holding Pte Ltd v Ridout Residence Pte Ltd & Anor (Orion Oil Ltd and another, interveners) [2011] 2 SLR 232 at p 258 para (52), Quentin Loh J, citing Treitel’s ‘The Law of Contract’ held that ‘lawful commercial pressure must never be mistaken for ‘duress’ capable of avoiding a contract.’ His Lordship at p 258 para (49), held that: “... courts must approach the issue of duress with caution because of the need for certainty in commercial contracts and the bargaining process. It has been said time and again that our courts are always mindful of the need for contractual certainty and predictability, especially in commercial contracts, see eg, Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR R) 1029 (‘Zurich Insurance’) at p (111) and Forefront 19 Medical Technology (Pte) Ltd v Modern — Pak Pte Ltd [2006] 1 SLR

(R) 927 at p (26)....” [54] What is more damaging to PPSB is the testimony of the Subcontractors themselves who came to give evidence that they did the Works and that they had agreed to receive the agreed contra units or otherwise by cash consideration when the contra units were sold. [55] DW 3, Encik Noraziz Bin Osman, the Executive Director of Improve Brilliant Sdn Bhd, testified that they were the Subcontractor of PPSB for the Architectural and Infrastructure Works for the 145 Units Contract. At the point when PPSB surrendered the above works to DBSB, they had completed 80% of the works. Thereafter Improve Brilliant had dealt with DBSB direct. [56] DW 3’s Evidence, not contradicted under cross-examination, was that they were not paid at all by PPSB and so the 6.8.2009 meeting was held where RSS PMC the Project Manager was present together with the PPSB, DBSB and the Subcontractors including Improve Brilliant. The meeting was to address the problem of the non-payment by PPSB to the Subcontractors. It was agreed at the said meeting that PPSB was to surrender the balance of the Works in the 146 Units Contract to Improve Brilliant and another Subcontractor Permatang Teknik Sdn Bhd (“Permatang Teknik”) who was the Subcontractor for the M&E Works. [57] PPSB agreed to this and wrote a letter dated 3.9.2009 at pages 73- 74 of DBOD 1 in a similar tone and contents with the previous letter of 20.8.2009 at pages 68-69 DBOD 1 but tailored to address the works done by Improve Brilliant and Permatang Teknik and their specific concerns with respect to the Block A Contract. 20 [58] Just like the letter of 20.8.2009, this letter of 3.9.2009 was witnessed by one Dr Nik Zamri Majid of RSS PMC. [59] The fact that DBSB would have to pay these Subcontractors from the units to be completed is evident from the said letter where PPSB addressed their mind to the fact that these units would be taken from the units originally set aside in Appendix B to the Settlement Agreement had PPSB completed the Works as stated by them at the last paragraph of page 73 DBOD 1 as follows: “Our current Subcontractor, Permatang Teknik Sdn Bhd, have agreed to take over and complete all the outstanding works....However they may consider taking at least 2 units offered to us as contra of the accounts....” [60] DW 3 agreed to take 3 units for the works done by them i.e. Units B16-02, D12-01 and D13-04 as stated in their letter of 2.2.2010 at pages 79-80 DBOD 1 where the contra sum was RM248,520.00 and they had also agreed to pay the redemption sum of RM62,130.00. [61] The relevant Offer Letters were signed with DBSB. However the transfer of the 3 Units could not be effected because of this suit by PPSB where PPSB had staked their entitlement to all the 15 Units under the Settlement Agreement. [62] What was more shocking to DW 3 was that when he went to inspect the 3 units on 2.11.2014, he discovered to his dismay that Unit B16-02 was occupied by PW 2 and his family! DW3 further discovered when he visited the place around November 2015 that units D21-01 and D13-04 had been let out by PW 2 and that he was collecting rental; all these without the knowledge and much less the consent of DW 3! 21 [63] PW 2 admitted both his occupation of the one unit referred to above and his letting out the other 2 units under cross-examination. [64] DW 3 had made a police report on 26.2.2016 which report is at pages 46-47 DBOD 1. [65] DW 3 confirmed in his evidence that if the 3 units were transferred to Improve Brilliant that would be considered as full and final settlement of all the works done by them for DBSB. [66] The Subcontractors of PPSB, namely Idrus Bin Saarani (“PW3”) of Permatang Teknik and Abdul Karim Bin Abdul Rahman (“PW4”) of Improve Brilliant had also testified that payments to them were made by DBSB and not PPSB [PW3-NOE p. 3-4 Q16-17; PW4-NOE p. 5-6 Q11-13]. There were also the letters evidencing direct payments which were made by DBSB to PPSB’s subcontractors [DBOD1 p. 60-67]. [67] PW2 testified that until the present suit arose in 2015 [PW2-NOE p. 10 Q25], he has not received the Payment Certificates issued by the architects in relation to the RC Deck Contract and 146 Units Contract certifying the value of works performed, as well as the Debit Notes showing various payments which were made by DBSB on behalf of PPSB [DBOD5 p. 1-88]. [68] If that were true, it would further underscore the fact that after the surrender back to DBSB of PPSB’s obligations under the Settlement Agreement, he was completely out of the picture so to speak; it was no longer his baby anymore and he had no obligations to pay his Subcontractors anymore. [69] DBSB wrote to the solicitors for PPSB, Messrs Rohiba & Co by their letter of 4.9.2009 to follow up on the formalization of the surrender or revocation of the Settlement Agreement. The said letter was captioned: 22 “Re: 1) Request for Company Forms 2) Deed of Revocation pursuant to Settlement Agreement dated 14 May 2009.” [70] The said letter also stated the mutual agreement of the parties to revoke the Settlement Agreement on the remaining 15 units of Apartments and Offices referred to in Appendix B of the Settlement Agreement. Though there was nothing written forthcoming from the said solicitors, I am satisfied from the evidence adduced that the written agreement was a mere formality for the parties and the Subcontractors were carrying out the Works on the ground and the Subcontractors were all paid either by cash raised through the sale of the 15 units or by way of contra of the units with the Subcontractors. [71] PPSB had not brought any Subcontractors to testify on their behalf to say they were not paid for the Works the subject matter of the Settlement Agreement. [72] Both by letters, conduct of PPSB and the oral agreement arrived at, DBSB had acted consistent with that Mutual Agreement and had consented to dealing with PPSB’s Subcontractors direct and paying them directly and at the same time releasing PPSB of their obligations under the Settlement Agreement and also waived their right to sue PPSB for LAD. [73] The Settlement Agreement had for all intents and purposes being replaced and revoked by the Mutual Agreement and both parties had released each other of their obligations under the Settlement Agreement and in particular PPSB’s obligation to complete the Works by the completion date. [74] PPSB’s insistence that the Settlement Agreement is very much alive and that DBSB had failed to perform it and transferred the 15 units of 23 properties is misconceived and misplaced as they themselves had admitted that they did not make any payments to their Subcontractors and that the Subcontractors called by them as their witnesses in PW 3 and PW 4 confirmed that DBSB was the party that payed them directly for the Works done. [75] PPSB’s Claim for specific performance of the 15 Units of properties to be transferred to them is untenable and more so when the said 15 Units had been transferred to Subcontractors that completed the Works or those who provided financing to complete the Works. Whether the conduct of PPSB was such that waiver and estoppel would operate against their claim for specific performance under the Settlement Agreement [76] Alternatively, learned counsel for DBSB submitted that PPSB had effectively waived its rights to the units under the Settlement Agreement in view of the contents of the letter dated 20.8.2009 [DBOD1 p. 68-69], as well as its inaction after the letter dated 4.9.2009 [DBOD1 p. 75]. [77] The following explanation of doctrine of waiver in Chitty on Contract (28th Ed) at page 1158, para 23-039 and page 1159, para 23-041 was referred to by learned counsel as follows: “Where one party voluntarily accedes to a request by the other that he should forbear to insist on the mode of performance fixed by the contract, the court may hold that he has waived his right to require that the contract be performed in this respect according to its original tenor. Waiver (in the sense of 'waiver by estoppel' rather than 'waiver by election’) may also be held to have occurred if, without any request, one party represents to the other that he 24 will forbear to enforce or rely on a term of the contract to be performed or observed by the other party, and the other party acts in reliance on that representation. The party who forbears will be bound by the waiver and cannot set up the original terms of the agreement. If, by words or conduct he has agreed or led the other party to believe that he will accept performance at a later date than or in a different manner from that provided in the contract, he will not be able to refuse that performance when tendered…” (emphasis added) [78] Learned counsel for DBSB also referred to the Federal Court case of Muniandy a/l Thamba Kaundan & Anor v D & C Bank Bhd & Anor [1996] 1 MLJ 374, which held that knowledge and intention to waive are instrumental, at page 385 para F as follows: “In my view, there can be no waiver in the absence of an intention to waive...In the words of Lord Chelmsford LC in Darnley (Earl of) v Proprietors of London, Chatham and Dover Rly (1867) LR 2 HL 43 at p 57, 'A waiver must be an intentional act with knowledge'.” (emphasis added) [79] The clear intention of PPSB to waive their rights to the contra units could not have been clearer in their letter dated 20.8.2009 [DBOD1 p. 68- 69]. PPSB had intentionally given DBSB by way of persuading DBSB and later prevailing upon DBSB the right to vary or invalidate the Settlement Agreement in consideration for PPSB surrendering the RC Deck Contract and 146 Units Contract to their Subcontractors and that PPSB be further released from all their obligations under the Settlement Agreement. 25 [80] PPSB also knowingly waived their right to take legal action against DBSB for any actions taken in varying or invalidating the same. The salient parts of the said letter which were reproduced above are as follows: a. You may vary or invalidate in the manner required the Settlement Agreement upon your acceptance of the proposal. b. We also waive our rights to take administrative or legal actions against you or your consultants and Advisors for all actions taken pursuance of this letter. [81] I agree with learned counsel for DBSB that the wording in the letter dated 20.8.2009 [DBOD1 p. 68-69] is sufficiently clear and that there can be no mistaking that PPSB had issued the said letter with full knowledge of their legal rights and the intention to waive the same. PPSB was clearly aware of what it was entitled to, and what it was giving up, constrained by the harsh reality that they lacked the financial resources and capacity to continue to completion the Works with the exposure to an LAD Claim hanging over their heads. Hence the appeal to DBSB to waive their claim to LAD. It was PPSB’s conscious and calculated decision considering the risks involved if they were to continue further with the Works already delayed by their lack of financial resources. [82] Waiver can be express or implied as was held in the case of Tan Ah Chim & Sons Sdn Bhd v Ooi Bee Tat & Anor [1993] 3 MLJ 633 where it was held as follows at page 654, para F: “By definition, waiver is the abandonment of a right and is either express or implied; it may be implied from conduct which is inconsistent with the continuation of the right (Keene v Biscoe at p 203). A person who is entitled to the benefit of a stipulation in a contract may waive it, and allow the contract or transaction to 26 proceed as though the stipulation or provision did not exist. Waiver in this sense, depends upon consent (Selwyn v Garfit), and the fact that the other party had acted upon it is sufficient consideration (Re Stokoe, ex p Moore).” [83] Here the fact that PPSB in its letter dated 20.8.2009 [DBOD1 p. 68- 69] had stated that it will waive its right to take legal action for any actions taken by DBSB pursuant to the Mutual Agreement, as well as the option given to DBSB to vary or invalidate the Settlement Agreement, is clearly an express waiver by PPSB of their rights under the Settlement Agreement. Further, PPSB’s inaction and non-response to the letter by DBSB dated 4.9.2009 [DBOD1 p. 75] revoking the Settlement Agreement constituted an implied waiver of PPSB’s rights under the same. Here is a case where if there had been no revocation of the Settlement Agreement, the said solicitors Messrs Rohiba & Co would surely have replied vigorously and denied it and further insisted on PPSB’s rights under the Settlement Agreement. [84] For PW 6, Puan Rohiba Bte Mohamed, to remain silent and to say that the said letter was referred to her client and that they were instructed to ignore the said letter and further there was no need to reply because it had no relation to the firm, would be inexcusable and falling short of the conduct expected of their client as a businessman. At any rate the said letter was copied to PW 2 as well. As for the said solicitors, it is incumbent on them to reply to at least say that they are not on record as acting for PPSB. [85] The oft-quoted dicta found in David Wong Hon Leong v Noorazman Adnan [1995] 4 CLJ 155, at 159, would resonate with us where the Court of Appeal observed as follows: 27 "During argument, we registered our surprise at the learned Judge's reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1986] 1 LNS 42; [1987] 2 MLJ 479-487: In Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff's testimony in support of such promise. Lord Esher M.R., in his judgment, remarked, Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise.' (Emphasis added). Earlier, in his judgment, he said, 'Now there are cases - business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter 28 must answer it if he means to dispute the fact that he did so agree. (The emphasis is ours.)" [86] On the ground and following the Mutual Agreement and in reliance on PPSB’s representations, DBSB had proceeded to carry out the Mutual Agreement by allowing PPSB’s Subcontractors to complete the outstanding works under the RC Deck Contract and 146 Units Contract and making direct payment to them. [87] This is a case where DBSB had evidently relied on and acted upon PPSB’s representations accordingly. Therefore, PPSB should not be allowed to now enforce the rights which they had expressly waived to which DBSB had agreed for valuable consideration in forbearing to sue for LAD. PPSB’s representations and conduct are such that they are estopped from now insisting and enforcing their rights under the Settlement Agreement. The doctrine was defined as follows in Spry’s Principles of Equitable Remedies (6th Edn) at page 180 as follows: “Where what is sought by the plaintiff is a legal remedy such as legal damages a question arises whether the defendant can in any way obtain protection, through an estoppel or otherwise, because the plaintiff has earlier represented, albeit not by a promise made for valuable consideration, that he will not assert the legal rights in question.” [88] We are familiar with the Federal Court observations on the doctrine of estoppel in the case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 [DBA TAB 9] at page 344, para F and page 347, para F as follows: “The time has come for this court to recognise that the doctrine of estoppel is a flexible principle by which justice is done 29 according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless… The traditional view adopted by jurists of great learning is that a litigant who invokes the doctrine must prove that he was induced by the conduct of his opponent to act in a particular way. However, having undertaken a careful examination of the authorities, we are of opinion that this requirement is not an integral part of the doctrine. All that a representee (which term includes one who has received encouragement in the sense we have discussed earlier) need do is to place sufficient material before a court from which an inference may fairly be drawn that he was influenced by his opponent's actings. Further, it is not necessary that the conduct relied upon was the sole factor which influenced the representee. It is sufficient that 'his conduct was so influenced by the encouragement or representation…that it would be unconscionable for the representor thereafter to enforce his strict legal rights'.” (emphasis added) [89] Section 115 of the Evidence Act 1950 further explains the doctrine of estoppel from the point of evidence as follows: “When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief would have acted, neither he nor his representative in interest shall be allowed in any suit or proceeding between himself and that person or his representative in interest to deny the truth of that thing.” 30 [90] In the case of Public Textiles Berhad v Lembaga Letrik Negara [1976] 2 MLJ 58, Raja Azlan Shah FJ (as his Royal Highness then was) quoted Scrutton LJ in the Court of Appeal (Greenwood v Martin’s Bank Ltd [1932] 1 KB 371 , at p 380), and stated the principle as follows: “The classic exposition of the principle of estoppel is that given by Parke B in delivering the judgment of the court in Freeman v Cooke

2 Ex 654 663. He cites the rule in Pickard v Sears (1837) 6 A & E 469 474:‘That, where on, by his words or conduct, willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.’” [91] It cannot be gainsaid that PPSB had represented to DBSB that it may vary or invalidate the Settlement Agreement as it deemed fit, and that PPSB would not take any legal action against DBSB in relation thereto. In response, DBSB had carried out the terms of the Mutual Agreement which were set out in PPSB’s letter dated 20.8.2009 [DBOD1 p. 68-69] and another letter dated 3.9.2009 [DBOD 1 p.73-74]. [92] I agree with learned counsel for DBSB that PPSB should be estopped from being entitled to the remedy of specific performance because based on its express representations to DBSB as well as its conduct, it would be unconscionable for it to now enforce its rights which it had earlier surrendered. [93] I am more than satisfied that by both waiver and estoppel, PPSB had waived their right to enforce the Settlement Agreement and that they are estopped from claiming for specific performance by way of the transfer to them of the remaining 15 units in the Settlement Agreement. 31 Whether in all the circumstances of the case PPSB is entitled to the remedy of specific performance of the transfer to them of the remaining 15 units under the Settlement Agreement [94] The remedy of specific performance is a discretionary remedy as explained in Snell’s Equity (30th edn) at page 652, para 40-11 as follows: “Although the court will not order specific performance where damages would fully compensate the claimant, the converse of this proposition is not true. There are many cases in which the court will not grant specific performance even if the remedy in damages is insufficient: for specific performance is a discretionary remedy. This does not mean that it will be granted or withheld arbitrarily; the discretion is a judicial discretion, and is exercised on well-settled principles. It means that in an action for the specific performance of a contract of the class usually enforced, the court may take into account, as a ground for refusing specific performance or granting it subject to conditions, circumstances which could not be taken into account in an action for damages for breach of contract, such as the conduct of the claimant, or the hardship which an order would inflict on the defendant.” (emphasis added) [95] In the light of the above conduct of PPSB, quite apart from the finding of this Court that the Settlement Agreement had been revoked and that the parties had been released of their respective obligations under it, PPSB is in any event barred from the equitable remedy of specific performance due to their inequitable conduct. [96] Learned counsel for DBSB submitted that the remedy of specific performance should not be granted to PPSB by virtue of its ‘unclean 32 hands’, or in other words, its inequitable conduct. The inequitable conduct in question is twofold: first, PPSB had not completed the works assigned to it and yet it is seeking payment for the said works, and secondly, PPSB’s CEO has been illegally occupying and collecting rent from the units allocated to Improve Brilliant. [97] I agree with the principle of law enunciated by the Court of Appeal case of Eastern Properties Sdn Bhd v Hampstead Corporation Sdn Bhd [2007] 6 CLJ 538 where the applicability of equitable maxims at page 547, para 14 was explained as follows: “[14] It is beyond argument that equitable doctrines are not to be dealt with in a rigid fashion. They are by their very nature flexible and meant to be applied in such a fashion as produces a just result on the facts and circumstances of a given case. But there are certain basic threads that have been woven into the fabric of equitable doctrines through the pronouncements in the leading cases on the subject. One of these is that a supplicant who prays in aid equitable assistance must himself or herself be not guilty of equitable misconduct. This is sometimes put in the form of the maxim: He who comes to equity must come with clean hands. So a contract breaker cannot successfully invoke the remedy of specific performance.” (emphasis added) [98] At the risk of being repetitious, let it be said for the record once for all that PPSB had written to DBSB surrendering the RC Deck Contract and 146 Units Contract to their Subcontractors [DBOD1 p. 68-69, 73-74]. It is evident that PPSB had not completed the works assigned to it under the two projects, and yet they are seeking payment in the form of the units for the performance of the said Works. 33 [99] In relation to the second contention, out of the three (3) units offered to Improve Brilliant, PPSB’s CEO i.e. PW2 is currently residing in one (1) unit namely B16-02 and he has been doing so since 2014. Further, PW2 has also been collecting rent from the two (2) other units intended for Improve Brilliant, namely D12-01 and D13-04. This was admitted by PW2 himself during cross-examination [PW2-NOE p. 11 Q30]. [100] PPSB’s conduct in attempting to be remunerated for works it did not perform, and in benefitting from its own unlawful actions, is clearly contrary to the maxim of ‘he who comes to equity must come with clean hands’ and to allow PPSB’s claim would be to allow them to be unjustly enriched to the detriment of the Subcontractors who had performed the Works. [101] This is not to mention the unexplained delay and period of silence on the part of PPSB before they decided to bring their claim for specific performance, which is nearly five (5) years after parties had agreed to revoke the Settlement Agreement. PPSB did not raise any objections or furnish any response when they were notified by DBSB of the revocation on or about 4.9.2009 [DBOD1 p. 75; DW1-WS p. 19 Q29], or even when they were informed of Improve Brilliant’s decision to accept three (3) units from the Settlement Agreement on or about 2.2.2010 as payment for works done [DBOD1 p. 79-80; DW3-NOE p. 4 Q6]. [102] Equity favors the diligent and not those who are guilty of laches or acquiescence which would apply under these circumstances, thereby preventing PPSB from being entitled to now claim specific performance. [103] The case of Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202 highlighted the circumstances when the Defence of laches may apply. Justice Edgar Joseph Jr J (later FCJ) described laches as 'inaction with one's eyes open'. His Lordship then referred to 34 Halsbury's Laws of England (3rd Ed) Vol. 14, and stated as follows at page 237, para G: “Laches is an equitable defence implying lapse of time and delay in prosecuting a claim. A court of equity refuses its aid to a stale demand where the plaintiff has slept upon his rights and acquiesced for a great length of time. He is then said to be barred by laches. In determining whether there has been such a delay as to amount to laches the court considers whether there has been acquiescence on the plaintiff’s part and any change of position that has occurred on the part of the defendant.” [104] Further reliance can be made to the Supreme Court case of M Ratnavale v S Lourdenadin [1988] 2 MLJ 371 at page 378, para H: “The doctrine of laches in the court of equity is not an arbitrary or a technical doctrine. The discretion is founded on the principle that there may be circumstances when it would be practically unjust to give a remedy of specific performance, for example either because the party has by his conduct done that which might fairly be regarded as a waiver or where by his conduct he has put the other party in a situation in which it would be unreasonable to place him if the remedy were afterwards to be asserted.” (emphasis added) [105] It was held in Ratnavale (supra) that the party seeking specific performance had not shown reasonable diligence in prosecuting her claim as there was an unexplained delay of 14 months in commencing proceedings after her interest in a particular piece of land was threatened. [106] In the present circumstances, PPSB had clearly received and was aware of the contents of the letter dated 4.9.2009 [DBOD1 p. 75], which 35 expressly stipulated the revocation of the Settlement Agreement. This is evidenced by the testimony given by Robiha Binti Mohamed (“PW5”) of Messrs Robiha & Co., who were the solicitors on record for PPSB at that material point in time. According to PW5, PPSB had apparently instructed her to object to the contents of the said letter but that she did not reply as she was asked to disregard it, which culminated in no letters being sent in response to the letter dated 4.9.2009 [PW5-NOE p. 7 Q7-10]. [107] I agree with learned counsel for DBSB that what this shows is that PPSB, having had full knowledge and awareness of the fact that the Settlement Agreement had been revoked, did nothing in relation to the same for almost five (5) years before deciding to bring a claim for specific performance through its solicitors Messrs Khamshah & Partners in 2014 [DBOD1 p. 83-84]. [108] The conduct of PPSB in not asserting their right earlier is consistent with their not having done the Works and of surrendering the Settlement Agreement to DBSB with a view to revoking it. [109] Under the Mutual Agreement DBSB accepted the surrender and agreed to the revocation and release only to be confronted with this claim after the completion of the Works by the Subcontractors when all the 15 remaining units in the Settlement Agreement had been contraed with the Subcontractors or sold to third parties to raise financing to pay the various Subcontractors. [110] In fact that is a further reason why specific performance should not be allowed as all the units in question had been transferred and/or offered to bona fide third parties who had contributed to the completion of DBSB’s projects or assisted DBSB financially. 36 [111] These third parties are not before the Court. Reference was made to the following passage in the case of Coastland Properties Pte Ltd v Lin Geok Choo [1999] 3 SLR(R) 890 which was cited in Kembang Serantau Sdn Bhd v Ybk Usahasama Sdn Bhd [2018] MLJU 100. In Coastland (supra), the Court held that specific performance may not be granted where the rights of third parties not before the Court would be prejudiced, at page 892, paras 2-3: “...I should add that since specific performance is a discretionary order, it is implicit that the court must feel comfortable in making the order. This simply means that that must be no residual doubt in the judge’s mind that the order, if made, would not create any problems to any party, and not just to the litigants themselves. I pause to emphasize that the burden of proof is on the party claiming the order for specific performance. If he is unable to so satisfy the court he will not get the order. In this case, I declined to grant an order for specific performance partly because I was not satisfied that to do so would be right and fair to all parties, including the mortgagee. The clinical approach of the common law may readily ignore the consequences to a person who is not a party to the proceedings, but the defendant is here crying for the hand of equity to intervene; and equity looks beyond the common law...” (emphasis added) [112] There is merit in DBSB’s submission that in the present case, the units sought by PPSB have been legitimately sold, transferred and/or offered to third parties who have not been made parties to the current proceedings. Leaving aside the fact that the absence of these third parties would render PPSB’s claim virtually unenforceable, the fact remains that 37 these innocent third parties’ rights would be severely prejudiced by the granting of a specific performance order, especially when these are parties who have assisted DBSB by making genuine payments to assist DBSB or performed works for DBSB, as consideration for the said units. [113] In addition to PPSB’s failure in completing the Works, the redemption sums for the units have not been paid by PPSB, nor has PPSB shown any willingness to pay the said sums. In order to redeem the units in the Settlement Agreement, on top of its performance of works under the RC Deck Contract and 146 Units Contract, PPSB would be required to pay the redemption sums for the respective units before being entitled to the same [DW2-WS p. 9-10 Q12-13]. DW 2 Encik Mohamed Raslan Bin Abdul Rahman of KPMG is the current joint Liquidator of DBSB with one Miss Chan Siew Mei. [114] I agree that if PPSB intends to be granted specific performance of the Settlement Agreement, they would have to show that they are ready and willing to uphold its end of the bargain, which they have failed to show thus far. Reference is made to the following passage in Spry’s Principles of Equitable Remedies (6th Edn) at page 217 as follows: “As a matter of pleading a plaintiff seeking specific performance must generally allege, and as a matter of fact he must be able to show, his readiness and willingness to perform his own obligations under the contract in question…” [115] PPSB had not shown that they are in a position to honour their end of the bargain by furnishing the stipulated redemption sums to redeem the contra units. PPSB was therefore not entitled to the units in question in any event and so their claim for specific performance was dismissed. 38 Pronouncement [116] For the reasons given above, the claim of PPSB for specific performance of the Settlement Agreement, which this Court had held to have been revoked with PPSB being released of their obligation to complete the Works, must stand dismissed. [117] Correspondingly the claim of DBSB for LAD must also be dismissed in the light of the above findings. [118] Considering always that the claim of LAD was filed on an abundance of caution by the Liquidators who had a duty to defend the suit filed by PPSB and seeing that both Suits 20 and 60 were consolidated by order of Court dated 26.4.2017 and thus heard together, I had ordered one costs to DBSB and after hearing the parties, this Court ordered PPSB to pay costs of RM80,000.00 to DBSB and allocator to be paid before extracting order for costs. Dated: 31 December 2018. - signed - LEE SWEE SENG Judge Construction Court High Court of Malaya Kuala Lumpur 39 For the Plaintiff in : WA-22C-20-02/2017 : Hj Khamshah Bin Hj Abu Bakar and for the Defendant in : (Messrs Khamshah & Partners) : For the Plaintiff in : : Vinayaga Raj Rajaratnam and Ng Kar Man and for the Defendant in : (Messrs Skrine) WA-22C-20-02/2017 : Date of Decision: 20 August 2018.