10.01.2018, notifying the Plaintiff of the proposed meeting of the MCC, which was scheduled to be held on 18.01.2018. The two (2) letters were sent pursuant to Clause 2.5(g) of the JVA as quoted above. [8] On 5.2.2018, the Plaintiff, with the Defendant’s consent, obtained sewerage planning approval from Indah Water Consortium Sdn Bhd. The Defendant thereafter provided assistance to the Plaintiff to obtain a valuation report on the lands by Jabatan Penilaian dan Perkhidmatan Harta Johor Bahru. [9] On 09.07.2018, PBT Pengerang wrote to the Plaintiff to say that the Plaintiff’s application for planning approval had been rejected (ditolak) on the following grounds: i. Tidak mendapat sokongan rasmi daripada Jabatan Alam Sekitar. ii. Tidak mematuhi ulasan teknikal Indah water Consortium Sdn Bhd (Exhibit K-2- Affidavit Sokongan Plaintif (ASP). [10] Upon receiving the letter of rejection dated 09.07.2018, the Plaintiff appealed to PBT Pengerang against the rejection. On 28.10.2018, PBT Pengerang wrote to the Plaintiff, informing it that its appeal could not be considered as it had not been filed within the 30 days prescribed by the relevant rules (Exhibit K-4- Affidavit Sokongan Plaintif). This letter was copied to the Defendant. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 5 [11] On 29.10.2018, the Defendant wrote to the Plaintiff notifying it that its failure to obtain planning approval was a breach of the JVA and had caused the JVA to be “frustated”. To quote the letter: ... merupakan satu pelanggaran di bawah Perjanjian ini tidak boleh diteruskan dan kecewa (frustrated). Di atas kegagalan pihak Tuan, maka KEJORA (Defendant) dengan ini memberi notis penamatan Perjanjian Pembangunan (JVA) bertarikh 06.02.2018. (There appears to be an error regarding the year of the JVA). (Exhibit K-6- Affidavit Sokongan Plaintif). [12] On 06.01.2019, the Defendant wrote to the Plaintiff terminating the JVA on account of the rejection of the Plaintiff’s appeal to PBT Pengerang to reconsider the latter’s withdrawal of conditional approval. The Defendant further claimed in the letter that the JVA had been terminated due to PBT Pengerang’s rejection of the Plaintiff’s appeal against a decision to not grant planning approval. [13] The Plaintiff’s solicitors replied to the Defendant on 16.01.2019, stating that their client disagreed with the contention by the Defendant that the Plaintiff was in breach of the JVA or that the JVA had been terminated on the grounds of frustration of contract. The Plaintiff’s solicitors notified the Defendant that the Plaintiff would treat the termination as a wrongful termination of the JVA and reserve its rights under the JVA. Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 6 [14] The Plaintiff filed this suit against the Defendant on 02.09.2019 claiming damages for breach of contract by the Defendant. After filing it’s defence to the Plaintiff’s claim, the Defendant then filed its application to strike out the Plaintiff’s writ and statement of claim under Order 18 R19 of the Rules of Court 2012 (ROC). [15] The Defendant’s main submission to support its application to strike out the Plaintiff’s statement of claim is that the Plaintiff’s failure to obtain planning approval amounts to non-fulfillment of the conditions precedent to the JVA and additionally, that this amounts to a “frustration” of the JVA since it has become impossible to perform. The Plaintiff’s reply to this submission is that the Defendant has misconstrued the effect and meaning of Clause 4.1(d) of the JVA. The Plaintiff submits that a proper reading of that clause suggests that it is the act of submitting the designs and drawings for the development for the relevant authority’s approval which is the condition precedent and not the giving of the approval. I find the Plaintiff’s reading of the above provision to be more logical since the key words used are “the company shall have submitted”. The Plaintiff further submits that the Defendant is estopped from terminating the contract after having issued the two (2) letters referred to in paragraph (7) above, in compliance with Clause 2.5(g) of the JVA. The act of calling a meeting of the MCC implies that the Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 7 Defendant had taken the position that all conditions precedent had been fulfilled. THE LAW [16] The principle governing an application to strike out any pleadings has been clearly explained by the Supreme Court in Bandar Builder Sdn Bhd v United Malayan Banking Corporation [1993] 3 MLJ 36, where the court held: i. The principles upon which the court acts in exercising its power under any of the four limbs of O 18 R19(1) of the Rules of the High Court 1980 are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule, and the summary procedure can only be adopted when it can clearly be seen that a claim or answer is, on the face of it, “obviously unsustainable”. It cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence. ii. So long as the pleadings disclosed some cause of action or raised some question fit to be decided by the judge, the mere fact that the case was weak and not likely to succeed at the trial was no ground for the pleadings to be struck out. It cannot be said that they were frivolous, vexatious or may prejudice, embarrass or delay the fair trial Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 8 of the action or that these pleadings were otherwise an abuse of the process of the court. [17] The law on estoppel has been explained by the Federal Court in Bousted Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331. Gopal Sri Ram JCA (as he then was) explained the doctrine 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 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. Edgar Joseph Jr J (as he then was) in an illuminating judgment in Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202 at p 244 applied the doctrine in a broad and liberal fashion to prevent a defendant from relying upon the provisions of the Limitation Act 1952. The doctrine may be applied to enlarge or to reduce the rights or obligations of a party under a contract: Sarat Chunder Dey v Gopal Chunder Laha LR 19 IA 203; Amalgamated Investment and Property Co Ltd (In liquidation) v Texas Commerce International Bank Ltd [1982] 1 QB 84; [1981] 3 All ER 577; [1981] 3 WLR 565. It has operated to prevent a litigant from denying the Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 9 validity of an otherwise invalid trust (see Commissioner for Religious Affairs, Trengganu & Ors v Tengku Mariam bte Tengku Sri Wa Raja & Anor [1970] 1 MLJ 222) or the validity of an option in a lease declared by statute to be invalid for want of registration (see Taylor Fashions Ltd v Liverpool Victoria Friendly Society [1981] 1 All ER 897; [1981] 2 WLR 576). It has been applied to prevent a litigant from asserting that there was no valid and binding contract between him and his opponent (see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387) and to create binding obligations where none previously existed (see [1995] 3 MLJ 331 at 345 Spiro v Lintern [1973] 3 All ER 319; [1973] 1 WLR 1002). It may operate to bind parties as to the meaning or legal effect of a document or a clause in a contract which they have settled upon (see the Amalgamated case) or which one party to the contract has represented or encouraged the other to believe as the true legal effect or meaning: American Surety Co of New York v Calgary Milling Co Ltd (1919) 48 DLR 295; De Tchihatchef v Salerni Coupling Ltd [1932] 1 Ch 330; Taylor Fashions. We would add that it is wrong to apply the maxim “estoppel may be used as a shield but not a sword” as limiting the availability of the doctrine to defendants alone. Plaintiffs too may have recourse to it. The true nature of the doctrine in this context is that stated by Lord Russell of Killowen in Dawsons Bank v Nippon Menkwa Kabushiki Kaisha LR 62 IA 100 at p 108: Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 10 Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action. It is also wrong to think that the doctrine is confined to cases where a representation of fact has been made or where a party has been encouraged by another to believe in the existence or in the non-existence of a fact. The decisions of the Privy Council in Sarat Chunder Dey and the Calgary Milling Co (among others) to which we have referred earlier concerned cases involving representations not of fact but of law. The learned JCA went on to state that the maxim that “estoppel may be used as a shield but not a sword” does not limit the doctrine of estoppel to defendants. Plaintiffs too may have recourse to it. Estoppel may assist a Plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact which would destroy the cause of action. [18] In answer tothe Defendant’s submission that the rejection of the Plaintiff’s appeal by PBT Pengerang has “frustrated” the JVA contract, the Plaintiff submits that even if one were to read Clause 4.1(d) of the JVA as requiring “approval” of PBT Pengerang, as opposed to merely submitting the drawings, there is no time limit provided in the JVA for Before The Honourable Judicial Commissioner Ahmad Murad Bin Abdul Aziz 11 the Plaintiff to obtain such approval. Although time is made of the essence in the JVA, this clause will only apply when any time is specifically mentioned in the JVA, for example, the time of seven (7) years from the date of the signing of the JVA to complete the project. There is also nothing in the law to prevent the Plaintiff from filing a fresh application which complies with the technical requirements of Jabatan Alam Sekitar and Indah Water Konsortium Sdn Bhd. Since the JVA provides for the project to be completed within seven