Antara Vista Sdn Bhd v Rumaya Properties Sdn Bhd (B-02(NCVC)(W)-13-01/2015)

And Seacera Development Sdn Bhd

Antara Vista Sdn Bhd … Defendants CORAM: ABANG ISKANDAR BIN ABANG HASHIM, JCA BADARIAH BINTI SAHAMID, JCA ZALEHA BINTI YUSOF, JCA 2 JUDGEMENT OF THE COURT Brief facts of the case [1] Rumaya Properties Sdn Bhd (“the Plaintiff”) and Antara Vista Sdn Bhd (“the 2nd Defendant”) had entered into 18 Sale and Purchase Agreements (“the said principal agreements”), all dated 19 May 2005 where the 2nd Defendant agreed to sell 18 units of apartment known as Vista Damansara Apartment which were to be erected on the 2nd Defendant’s land (“the said land”). [2] Clause 26(1) of the said principal agreements provided that vacant possession should be delivered to the Plaintiff within 36 months from the date of the said principal agreements, namely on or before 18 May 2008. [3] It was the Plaintiff’s case that all the 18 properties purchased by the Plaintiff had been paid in full to the 2nd Defendant in 2005. [4] It was also the Plaintiff’s case that, the 2nd Defendant had on 27 April 2007 entered into a Sale and Purchase Agreement with the 1st Defendant wherein the 2nd Defendant agreed to sell the said land to the 1st Defendant 3 for a purchase price of RM5, 000, 000. 00. The said land was transferred to the 1st Defendant on 11 March 2008 despite the fact that the Defendants at all material times, had actual knowledge and notice of the Plaintiff’s interest on the said apartments on the said land. [5] The Plaintiff came to know about the transfer of the said land on June 2008 and subsequently on 26 June 2008, lodged a private caveat on the said land. [6] After the Defendants had failed to comply with the said principal agreements although several demands to do so had been made, the Plaintiff on 11 October 2010 commenced legal action against the Defendants. In essence, the Plaintiff was claiming for the following reliefs: a. Declaration that the Plaintiff is the lawful and/or the beneficial owner of the 18 units of medium cost Apartment corresponding with the purchase under the said principal agreements; b. Declaration that the Sale and Purchase Agreement between the 1st and 2nd Defendant and the transfer of the land to the 1st Defendant is in contravention to Section 8 of the Housing 4 Development (Control and Licensing) Act 1966 and thus null and void and be set aside; c. Declaration that the Sale and Purchase Agreement between the 1st and 2nd Defendant and the transfer of the said land to the 1st Defendant is contrary to the lawful interest of the Plaintiff and thus null and void and be set aside; d. Declaration that the 1st Defendant is a trustee for the Plaintiff with respect to the Plaintiff’s lawful and/ or beneficial interest or ownership in the said land; e. Specific performance of the said principal agreements by the 2nd Defendant and/or the 1st Defendant; and f. Damages Case for Defendant/ Defence [7] The 2nd Defendant’s defences have been that the said principal agreements were only entered into to secure a loan given by the Plaintiff to the 2nd Defendant and were not intended to evince a sale nor purchase of the said 18 apartments between the parties thereto. Therefore the Plaintiff is not entitled to the 18 apartments. Furthermore, the Vista Damansara is an abandoned project when the said principal agreements were signed. The 2nd Defendant also alleged that the Plaintiff had failed to prove that there was payment made for the 18 apartments. 5 Findings of High Court [8] It has to be noted that, before the full trial commenced at the High Court, a Consent Order dated 11 October 2011 was entered into between the Plaintiff and the 1st Defendant whereby the 1st Defendant had to transfer all the 18 units of apartments named as Vista Damansara to the 2nd Defendant until such time that the Court makes a decision as to who is the lawful registered owner of the said 18 apartments. [9] After the Consent Order was entered, the 1st Defendant did not participate actively in the High Court proceedings anymore and the trial proceeded between the Plaintiff and the 2nd Defendant only. The Plaintiff also did not amend the pleaded claim against the 2nd Defendant. The 1st Defendant did not even make submissions at the end of the whole case in the High Court. [10] However, at the end of the High Court trial, the learned High Court Judge, on 21 November 2014, allowed the Plaintiff’s claim against both Defendants which led to the appeals by both Defendants to the Court of Appeal. 6 The Appeals [11] Appeal by the 1st Defendant was registered under Court of Appeal, Civil Appeal B-02(NCVC)(W)-11-01/2015 while the Appeal by 2nd Defendant is registered under Civil Appeal B-02(NCVC)(W)-13-01/2015. Initially, pursuant to the Court of Appeal Order dated 5 February 2015, the appeals are to be heard together. However on 9 December 2016, parties agreed that the Consent Order should be preserved. Thus the Court of Appeal allowed the Appeal by the 1st Defendant leaving behind Appeal B- 02(NCVC)(W)-13-01/2015 by the 2nd Defendant for this Court’s determination. [12] We had the opportunity to hear both parties on 8 August 2017 but we then reserved the decision to a date to be informed later. This is now our decision and our reasons for having so decided. [13] During the hearing of the Appeal before us, the 2nd Defendant as the Appellant in this appeal submitted the following issues: a. Illegality-the 18 SPAs are unlawful and unenforceable as they were sham transactions and never intended to convey to the Plaintiff any interest in the said 18 units of the medium cost apartment known as Damansara Vista; 7 b. Specific performance is impossible, absurd, and not a suitable remedy; c. Inordinate delay by the Plaintiff in seeking the remedy of specific performance; d. The Consent Order between the Plaintiff and the 1st Defendant; e. The 18 SPAs are sham Agreements; f. The Plaintiff did not make full payment under the 18 SPAs; and g. Section 8 of the Housing Development (Control and Licensing) Act 1966 (“the Act”) is not applicable herein. Our findings [14] Having heard submissions by all learned counsel, we would deal with this appeal by broadly approaching the same in respect of the issues of illegality/sham, non-payment of full purchase price and specific performance. In respect of the specific performance issue, the question was whether in the circumstances of this case, specific performance would be an appropriate remedy that ought to have been granted by the learned High Court Judge, in the event that the Plaintiff’s claim is indeed sustainable, namely if the liability can stick on the 2nd Defendant. We will also deal with the issue pertaining to the Consent Order that was entered into between the Plaintiff and the 1st Defendant. 8 Whether the 18 sale and purchase agreements were a sham and/or are illegal arrangements? [15] The material facts as established by the evidence as led before the learned High Court Judge had shown that the 2nd Defendant was granted licence by the State Authority of Selangor to build on the said land 300 units of medium cost houses valued at RM95,000.00 each and 60 units of shop houses valued at RM650,000.00 each. As a consideration thereto, the 2nd Defendant had covenanted to build low cost houses valued at RM25,000.00 each and that these units were to be sold to the squatters who had until that time were occupying the said land. [16] It was also in evidence that sometime in 2004, the 2nd Defendant had sold part of the land where the commercial units were to be located. A company known as Newlake Development Sdn Bhd. would eventually develop those commercial units for the 2nd Defendant. [17] It was in the context whereby the 2nd Defendant was in need of funds for the continued development of the said housing project that the 2nd Defendant had approached the Plaintiff for a loan. It was the Plaintiff’s case that instead of providing the loan the conventional way, the Plaintiff 9 preferred to purchase 18 units of apartments in the medium costs development. It was the Plaintiff’s case that the purchase price paid by the Plaintiff to the 2nd Defendant towards the purchase of the said 18 units was used towards the construction costs. [18] To begin with, there was no denying that both the Plaintiff and the 2nd Defendant had signed the 18 principal agreements in relation to the 18 units of medium cost apartments known as Damansara Vista. That fact was not in dispute. What was disputed had appeared to be what those 18 agreements were meant to be. To the Plaintiff they evinced the sale and purchase of the 18 said units. To the 2nd Defendant, it was but a sham. It was a sham because they were, for all intents and purposes devised as a vehicle to camouflage what was in truth a loan agreement given by the Plaintiff to the 2nd Defendant. [19] One of the cardinal rules of interpretation of a contractual document has been that the court ought not to look beyond what was contained within the four walls of the contract document. The contract document must contain within its four walls what the parties have agreed to be bound for, in the performance of the contract. What is not contained within its four walls would necessarily mean that such omission was intentionally so omitted by the contracting parties. It is not the role of the Court to read 10 into the contract documents what was not expressly spelt out in the contract. The Court’s role is to interpret, not to re-write, the contract document for the parties. In the Federal Court case of Tractors Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd (1979) 1 MLJ 129 learned Justice Chang Min Tat FJ had occasion to state that ‘where a contract has been reduced to writing, it is in the writing that we must look for the whole of the terms made between the parties.’ [20] Once the agreement has found expression in the written form, no parole evidence is permitted nor admissible to contradict what was already written therein. In the Malaysian context, sections 91 and 92 of the Evidence Act 1950 has provided for such statutory embargo against admissibility of such parole evidence. [21] In this case before us, we noted that the learned High Court Judge had referred to the Supreme Court case of Ho Shee Jan v Hidayat Harta Holdings Sdn Bhd [1989] 1 MLJ 33 where the then apex Court had made the following observation. We proceed to quote the same: “In fact in cl 7 there is no reference to any loan transaction. Moreover, Hidayat is prevented by ss 91 and 92 of the Evidence 11 Act from saying that the three agreements dated 14 February 1985 are not sale and purchase agreements for money loans.” [22] We find that there is seeming similarity with the 18 sale and purchase agreements as well. There was no reference in any of them to any loan agreement between the parties. It was up to the Defendants to allege that these were a sham, but with due respect, they had failed to prove the same. We therefore affirm the learned High Court Judge’s finding that the 18 main agreements pertaining to the 18 units of Vista Damansara Apartments are genuine agreements. They are not sham documents as alleged by the 2nd Defendant. [23] In light of such evidence, we are not surprised that the learned High Court Judge had decided the way he did. We now reproduce verbatim the findings of the learned High Court Judge on this issue relating to the 18 sale and purchase agreements: “Terdapat sejumlah 18 perjanjian jual beli antara pihak Plaintif dan Defendan Kedua berkaitan pembelian 18 unit pangsapuri tersebut yang di tandatangani pada 19.5.2005. Fakta tersebut tidak dapat dinafikan dan tiada keterangan daripada pihak defendan Kedua yang menidakkan kewujudan atau kepalsuan perjanjian ini atas imbangan kebarangkalian. Oleh itu, Mahkamah tidak dapat menerima hujah peguam Defendan 12 Kedua bahawa Plaintif bukanlah pembeli hartanah tersebut.” [see paragraph 23 of GOJ of the learned High Court Judge.] [24] We affirm his findings that the 18 sale and purchase agreements existed and that they were what they set out to be and that they were not sham documents which were allegedly created by the Plaintiff to camouflage what were in fact loans transaction between the litigating parties. The learned High Court Judge had rejected the allegation of “kepalsuan” surrounding the 18 agreements in relation to the medium-cost apartments Damansara Vista. [25] It was also alleged by the 2nd Defendant that it was impossible and illogical for the Plaintiff to have purchased the 18 units of the medium cost apartments at the material time as during that time, the project had been abandoned. Towards this end, the 2nd Defendant had led evidence in the form of photographs to evince that factum of the project had been abandoned. In fact, the learned High Court Judge had referred to these photographs in his Grounds of Decision in paragraph 17 therein, in particular a photograph in Bundle J at page 25. It was noted that the purpose of leading in evidence the photograph had been to show that the project involving the said land was an abandoned project. 13 [26] The learned High Court Judge had considered this evidence and had come to the following observation, as we have seen at paragraph 21 in his Grounds of Judgement, like so: “Mahkamah juga mendapati bahawa hujah peguam Defendan Kedua tidak selari dengan keterangan yang ada. Gambar yang dirujuk oleh pihak Defendan Kedua didapati masih terdapat menara kren di tapak projek. Sepertimana diketahui umum bukannya murah untuk menyewa menara kren dan jika projek telah terbengkalai pada masa gambar diambil, semestinyalah menara kren ini tidak ada di situ untuk mengelak kerugian berpanjangan. Penelitian juga mendapati bahawa Defendan Kedua telah mengeluarkan “Letter of Award” bertarikh 19.4.2005 kepada Magna Glow Sdn Bhd untuk kerja-kerja pembinaan pangsapuri kos sederhana (rujuk ms 912 ke 915 Ikatan Dokumen B5). Malah terdapat satu surat daripada SP1 bertarikh 5.5.2005 kepada Defendan Kedua yang mengesahkan bahawa pembayaran 18 unit pangsapuri tersebut akan dibayar terus kepada Magna Glow Sdn Bhd serta pihak-pihak lain yang terlibat dengan pembinaan pangsapuri kos rendah (rujuk ms 2-3 Ikatan Dokumen H). Oleh itu bagaimana mungkin pihak Defendan Kedua menyatakan bahawa projek telah terbengkalai pada 2004.” [27] In fact, the same photograph tendered by the 2nd Defendant showed that there was a crane at the project side, which the learned High Court Judge had meant that work was still on-going at the project site as 14 it was expensive to engage a tower crane and then leaving it idle and not being put to use. Taking all the evidence before him in totality, the learned High Court Judge expressed his conclusion on this ‘abandoned project’ issue at paragraph 22 as follows: Oleh itu Mahkamah mendapati bahawa tiada asas bagi pihak Defendan Kedua menyatakan bahawa projek telah terbengkalai pada tahun 2004. Malah Mahkamah ini juga mendapati bahawa tiada asas juga bagi pihak Defendan Kedua menyatakan bahawa semasa perjanjian jual beli Hartanah tersebut ditandatangani, projek terbengkalai. Adalah tidak masuk akal untuk pihak Plaintif membuat pembayaran sejumlah lebih dari dua juta ringgit jika Defendan Kedua tiada niat untuk meneruskan projek tersebut.” [28] In light of such evidence, we are of the view that it could not be said that the learned High Court Judge had been plainly wrong in his conclusion on the matter. It was a finding of fact by him and we find that it is a reasonable finding by him and we find no cogent reason to disturb the same. [29] As regards the payment issue, it has been the 2nd Defendant’s contention that the Plaintiff had failed to prove that it had indeed paid for the 18 units of apartments. From the evidence that was led by the Plaintiff, there was a letter dated 14th December 2005 that would evince the fact that the sum of RM2, 269,912.15 had been paid by the Plaintiff for the 15 purchase of such apartments. The learned High Court Judge had taken note of this crucial fact and accepted it as proof of such payment having been made by the Plaintiff for the 18 units of the apartments. He had stated as follows, in his Grounds of Judgement, at paragraph 27 therein: “Terdapat sepucuk surat daripada Defendan Kedua bertarikh 14.12.2005 yang mengesahkan bahawa pembayaran telah dibuat oleh Plaintif sepertimana terma yang dipersetujui kedua-dua pihak (Lihat ms 563 Ikatan Dokumen B4)” [30] We agree with the submission by learned counsel for the Plaintiff that this letter by the 2nd Defendant amounts to an admission of the fact that the sum of RM 2,259,912.15 was paid to the 2nd Defendant or for their benefit. A reference to pages 312 Line 31 to page 313 Line 26 of the Notes of Proceedings would evince such factual situation rather conclusively :- “SJM B4, My Lord. Datuk, ini adalah surat Datuk bertarikh 14hb Disember 2005 kan? Ya. Datuk, ini adalah surat yang merekodkan bahawa jumlah RM2,259,912.15 telah pun diterima atau pun dibayar oleh pihak Plaintif kan? Betul tak? Betul. 16 Dan Datuk telah juga mengatakan bahawa jumlah tersebut telah shall be treated as a set-off for the purchase price of the 18 units. So ini adalah bayaran untuk jual-beli 18 unit tersebut kan? Ya. Last sentence, Datuk, last paragraph. In the circumstances we hereby confirm that the total price for the properties as stated in the Sale and Purchase agreements all dated 19th of May 2005 have been fully settled. Jadi pihak Plaintif mengikuti surat ini telah membayar semua duit untuk 18 unit kepada pihak Defendan? Betul? Ok. Betul. Jadi jikalau meneliti surat ini Datuk, pihak Plaintif telah membuat bayaran sebanyak RM2.256 juta kepada Defendan atau pun bagi pihak Defendan. Betul? Ya.” [Bold added by us for emphasis] [31] With respect, we find that such an admission made by the main witness for the 2nd Defendant to be more than apparent. With this kind of 17 evidence having been admitted in Court that directly addressed the issue as to payment for the 18 units of apartments, the conclusion that ought to be drawn from it must be one that is irresistible. The learned High Court Judge had concluded that full payment had been made for the 18 units by the Plaintiff. Again, we find that such a finding has been one that is founded upon clear evidence that was led before him. It was one that was well justified and it does not warrant our appellate intervention. [32] In fact, the 2nd Defendant had alleged that the letter was obtained from the 2nd Defendant by coercion or otherwise by perpetration of duress by the Plaintiff. That allegation was given a short shrift by the learned High Court Judge who found the same to be baseless and was devoid of credibility for it to be taken seriously so as to have any vitiating effect, if such was the intention. The learned High Court Judge had his reasons for arriving at such a conclusion. We found his reasons nestling in paragraph 27 of his Grounds of Judgment like so: “Defendan Kedua menyatakan bahawa surat tersebut dikeluarkan secara paksa tetapi penelitian Mahkamah mendapati tiada keterangan menunjukkan ke arah itu. Tambahan jika sekiranya surat tersebut dikeluarkan secara paksa atau tiada pembayaran dibuat langsung oleh pihak Plaintif, kenapa pihak Defendan Kedua tidak mengambil apa-apa 18 tindakan untuk mempertikaikan 18 perjanjian jual beli pangsapuri ini. Tambahan, pihak Defendan Kedua boleh juga mengeluarkan satu surat untuk menafikan kandungan surat bertarikh 14.12.2005. Ketiadaan tindakan diambil oleh pihak Defendan Kedua menunjukkan bahawa sebenarnya terdapat pembayaran oleh pihak Plaintif kepada Defendan Kedua.” [33] It was noted too that there was no police report made pertaining to the alleged duress having been exercised upon the 2nd Defendant. The obvious lack of crucial contemporaneous documents emanating from the 2nd Defendant must have impacted the learned High Court Judge in the manner in which he came to make the inferences against the 2nd Defendant given the circumstances of the case before him. All these go to credibility, or rather the lack of it on the part of the 2nd Defendant’s contention. They have remained bare allegations, without more. With respect, we are in agreement with the inferences that were made by the learned High Court Judge. We find them to be reasonable and justified. [34] It also did not escape our attention that there was a last ditch attempt on the part of the 2nd Defendant to contradict the evidence of full payment for the 18 units by it calling one person by the name of Tapah anak Atah who had testified as SD3 who was a director and shareholder 19 of Magna Glow Sdn Bhd. It was the Plaintiff’s case that it had made payments to Magna Glow Sdn Bhd directly so that the low cost apartments could be completed as required. He was apparently called to the stand to negate payment having been made by the Plaintiff to Magna Glow. Indeed, that was what he said during examination in chief. But during cross-examination by learned counsel for the Plaintiff, his evidence unravelled and it had come to pass that actually, SD3 spent most of his time in Sarawak and that the daily management of Magna Glow Sdn Bhd was left mostly in the hands of husband and wife combo of Low Chin Kiat and his wife. [35] Having admitted that to be so, SD3 was then asked the ultimate question, like so: “SMJ: OK. Adakah Encik Tapah tahu terdapat bayaran daripada pihak Rumaya Properties ataupun Dato Azizi kepada Magna Glow?” And the inevitable answer, to that pointed question, coming from SD3 was, “Tapah: Tidak tahu saya.” So, instead of rebutting the factum of payment having been made by the Plaintiff for the 18 units, SD3’s honest but dismal answer was far from delivering such desired effect expected of him by the 2nd Defendant. SD3 did not possess the positive factual knowledge to displace the Plaintiff’ case on full payment having been made for the 18 units of medium cost apartments that was Vista Damansara, let alone establishing on the balance of probabilities that 20 there had been no full payment. The learned High Court Judge was right in his finding pertaining to the payment issue, and we do not propose to interfere with such a finding by him. [36] It is also beyond any dispute that despite this apparent admission by the 2nd Defendant, it had refused to abide by its contractual obligation to transfer the title to the said 18 apartments into the name of the Plaintiff. The transfer between 1st and 2nd Defendants [37] From the evidence adduced, we are in agreement with the learned High Court Judge that the sale and purchase agreements between the 1st Defendant and the 2nd Defendant and the transfer of the said land to the 1st Defendant is in contravention of section 8 of the Housing Development (Control and Licensing) Act 1966 and as such his Lordship’s order that the same be set aside is hereby affirmed. The finding of the learned High Court Judge on this issue can be found in paragraph 25 of his Grounds of Judgement where his Lordship has stated as follows: ”25. Adalah tidak dinafikan bahawa Defendan Pertama dan Defendan Kedua memasuki satu perjanjian jual beli berkaitan Tanah tersebut (iaitu di mana 18 unit pangsapuri berkaitan didirikan) pada 27.4.2007. Plaintif berhujah bahawa pada masa perjanjian tersebut ditandatangani, Defendan Kedua mengetahui 21 bahawa terdapat 18 perjanjian jual beli telah ditandatangani dengan Plaintif sebelum itu. Pihak Defendan Kedua meneruskan juga perjanjian jual beli dengan Defendan Pertama tanpa mendapat kelulusan dari Controller of Housing sepertimana diperuntukkan oleh s. 8 Akta Pemajuan Perumahan (Kawalan dan Pelesenan) 1966. Pihak Plaintif menegaskan bahawa jika terdapat kelulusan, dokumen tersebut semestinya berada dalam milik Defendan Kedua dan beban adalah pada pihak Defendan Kedua membuktikan bahawa mereka mempunyai kelulusan daripada Controller of Housing dalam menandatangani perjanjian bertarikh 27.4.2007 itu. Defendan Kedua pula menegaskan bahawa dengan pihak Plaintif dan Defendan Pertama memasuki penghakiman persetujuan antara mereka, oleh itu alegasi ini telah diabaikan (abandoned) oleh pihak Plaintif. Dalam konteks ini, Mahkamah bersetuju dengan hujah peguam Plaintif. Plaintif menegaskan bahawa penghakiman persetujuan tersebut hanya untuk memastikan status quo 18 unit pangsapuri tersebut terpelihara tanpa mengabaikan kes yang diplid terhadap Defendan Kedua. Kelulusan Controller of Housing adalah fakta di dalam pengetahuan pihak Defendan Kedua dan Defendan Kedua sepatutnya mengemukakan 22 keterangan bahawa mereka telah memperolehi kebenaran sepertimana diperuntukkan oleh undang-undang tersebut.” [38] From the evidence that were advanced, we could see no reason as to why we should interfere with the learned High Court Judge’s finding on this issue that pertained to section 8 of the Housing Development (Control and Licensing) Act 1966. The approval of the Controller was required before the transaction that was entered into by the 2nd Defendant [the Appellant before us] and the 1st Defendant could assume the legal stature as required under the law. Whether the approval from the Controller had indeed been obtained is a factum that was within the knowledge of both of them. It was a fact within their special knowledge and in such a circumstance the onus was on the 2nd Defendant to show proof that the approval from the Controller had been obtained and this can be done by simply producing the approval document, By the 2nd Defendant failing to so produce the same it must necessarily be inferred that no such approval had been obtained by the 2nd Defendant. We are in agreement with the learned High Court Judge when he had so concluded the way he did. [39] As to the effect of that declaration which was successfully obtained by the Plaintiff, it must necessarily be that the 18 titles in respect of the apartments never left the 2nd Defendant as the void agreement that was 23 entered into between the 2nd Defendant and 1st Defendant was not capable of transferring any title to the latter. [40] So what would become of the consent order dated 11 November 2011? The Plaintiff had contended that pursuant to the consent order dated 11 November 2011, the 1st Defendant had agreed to transfer all rights and interest in the18 apartment units to the 2nd Defendant within 30 days from the date of the order. [41] The Plaintiff had also contended that by agreeing to transfer all rights and interest in the 18 apartment units to the 2nd Defendant, the 1st Defendant had relinquished its interest in the 18 apartments and that it will abide by the order of the High Court (or the Court of Appeal). [42] With respect, we agree with the contention of the Plaintiff’s learned counsel in respect of the said consent order. The sum total of it all would be that the 1st Defendant no longer has a legitimate legal basis to dispute the decision of the High Court. Its obligation lies in merely complying with the order of the High Court. [43] In the circumstances, we are all in agreement that there was more than ample evidence that was necessary for the Plaintiff to succeed in its 24 claim against the 2nd Defendant. The findings and inferences that the learned High Court Judge had concluded and arrived at had not been bare conclusions. They were made based on evidence that were placed before him and as he had the distinct audio-visual advantage of observing the demeanour of the witnesses who had testified before him, we ought to give him the deference that it deserved. There was nothing that would have warranted us to say that his advantage had been severely compromised, by say, if he had mishandled the evidence that were adduced before him. In fact, there had been none of that sort. The fact that we may have come to different findings from him per se would be insufficient ground to disturb his findings. To be able to do that, it must have been shown that he had been plainly wrong. We are not able to say that the learned High Court Judge had committed that kind of error. That trite principle can be found in the decision of the apex court in the case of Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 where the learned Justice Gopal Sri Ram JCA [as he then was] had put: “We also considered some of the categories in which appellate interference is warranted. We find it unnecessary to repeat what we said there. Suffice to say that we re-affirm the proposition that an appellate court will not generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision.” 25 [44] In the circumstances, we agree with Mr. Robert Lazar, learned counsel for the Plaintiff that the learned High Court Judge was correct when he ruled that the Plaintiff had proven its case against the 2nd Defendant on the balance of probabilities. Should an order of specific performance be, in the circumstances, the appropriate order to be granted as a remedy? [45] However, having established that the 2nd Defendant was liable, the next issue would be to consider whether specific performance can in the circumstances be granted as prayed for by the Plaintiff in this case and which the learned High Court Judge had so granted in the court below. We are with the 2nd Defendant on this issue of specific performance. Specific performance is an equitable remedy and is therefore available to an aggrieved litigant not as a matter of course as a legal relief. [46] In the cases where specific performance was granted, it was so granted to the litigant when a monetary compensation was not an adequate remedy to address the wrong suffered by the aggrieved Plaintiff in the circumstances of the cases. Being an equitable remedy, it lies entirely in the hands of the Court whether an order of specific performance 26 ought to be granted to the Plaintiff. In the apex Court case of M Ratnavale v S Lourdenadin [1988] 2 MLJ 371 it was held that the granting of an order of specific performance, being discretionary in nature, must be done judiciously without any caprice. [47] As a matter of law, section 21(2)(b) of the Specific Relief Act 1950 spells out how such discretion ought to be exercised if the Court is not minded to issue an order of specific performance. It states: “21(1) …….

(a) …….

(b)Where the performance of a contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff. [48] Before us, Mr Justin Voon, learned counsel for the 2nd Defendant submitted that in the event that the Plaintiff was successful in establishing the claim for the declaration, the Court ought not to order specific performance against his client [the 2nd Defendant] in respect of the said 27 18 properties as they are no longer in existence, meaning to say, in the form that they were when they were purchased by the Plaintiff from the 2nd Defendant. In fact, learned counsel had, in his written submissions stated as follows: “It is impossible and absurd – the D1 has developed the units in a DIFFERENT PROJECT which bears no resemblance to the 18 units. In fact, the P wants an unjust enrichment.” [49] He had also cited the decided case of Balbeer Singh a/l Karam Singh & ORs v Sentul Raya Sdn Bhd [2014] 5 MLJ 491 to support his contention before us that a monetary compensation was the proper remedy to be awarded in lieu of specific performance. Having perused through the Grounds of Judgement of the learned High Court Judge, we noted that he had not dealt with the issue of specific performance in any much detail, save that he granted the prayer for such remedy at the end of his decision. We could only venture to surmise that he had taken that approach on account of the fact that the Plaintiff had succeeded in establishing its case against the 2nd Defendant. [50] In the circumstances of this case, it was also submitted before us that the Damansara Vista apartments had since then been transformed 28 into Boulavard Residences, a different project altogether although developed by the 2nd Defendant nevertheless. The Boulavard Residences represents a high-end condominium project, whereas the 18 apartments transacted between the parties in 2005 had been medium cost apartments. Not to mention, innocent third parties may be adversely affected through no fault of theirs, completely. We did not recall having heard any violent objections nor any coherent submissions to the contrary advanced from the Plaintiff’s side on this issue. [51] As such, in line with the dictates of section 21(2)(b) of the Specific Relief Act 1950, we are of the considered view that some difficulties may befall the 2nd Defendant which it did not foresee, if an order of specific performance were to be issued against it and that whereas at the same time, its non-performance would involve no such hardship on the Plaintiff. [52] In the circumstances, we are of the considered view that it would not be a proper nor a judicious exercise of discretion, if an order of specific performance were to be granted against the 2nd Defendant. We therefore agree with the learned counsel for the 2nd Defendant that a monetary compensation would be the appropriate remedy to be awarded to the Plaintiff in relation to the 18 units of medium-cost apartments that formed the subject matter of the 18 principal agreements. We order that the 29 compensation as damages in lieu of specific performance be assessed by the same learned High Court Judge accordingly. Conclusion [53] In the upshot, we hereby affirm the High Court Judge’s finding on the declarations save that we would vary his order made in relation to the order by him granting specific performance against the 2nd Defendant. As such, having considered all the submissions, oral and written, as well as the Records of Appeal, we would allow this appeal by the 2nd Defendant in part. We would therefore vary the order of the learned High Court Judge in that the order pertaining to the specific performance of all the 18 sale and purchase agreements be set aside. In lieu of the same, we order that the Plaintiff is entitled to damages which is to be assessed by the same learned trial Judge. We affirm the rest of the High Court Judge’s decision. [54] As to costs, in light of our decision as pronounced above, we order that the parties bear their own costs. [55] As to deposit, we order that it be returned to the 2nd Defendant. 30 [56] We so order. Dated: 15th December, 2017. ABANG ISKANDAR BIN ABANG HASHIM Judge Court of Appeal Putrajaya Malaysia Parties appearing: For the Appellant: Mr. Justin Voon, Mr. Alvin Lai; Messrs Justin Voon Chooi & Wing. For the Respondent: Mr. Robert Lazar, Mr. Sanjay Mohan, Miss Aarthi Jeyarajah, Mr. K. Gobinath, Miss Wong Li-Wei; Messrs Mohanadass Partnership. 31 Cases referred to:

Balbeer Singh a/l Karam Singh & Ors v Sentul Raya Sdn Bhd [2014]

Ho Shee Jan v Hidayat Harta Holdings Sdn Bhd [1989] 1 MLJ 33

Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19

M Ratnavale v S Lourdenadin [1988] 2 MLJ 371

Tractors Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd

Specific Relief Act 1950

Evidence Act 1950

Housing Development (Control and Licensing) Act 1966