B.I.G Industrial Gas Sdn Bhd v Pan Wijaya Property Sdn Bhd (Q-02(W)-810-04/2016 berkaitan dengan Q-02(W)-809-04/2016)

(i) High Court Suit No.BTU-22-5/9-2013 (the summons) and now referred to as Civil Appeal No.Q-02(W)-809-04/2016; and

(a) specific performance of the sale and purchase agreement (“SPA”);

(b) all necessary and consequential accounts, directions and inquiries;

(c) further or alternatively, damages for breach of contract with assessment of damages on the consequential loss and damages and interest thereon;

(v) costs. [5] In BTU-24-10/72013, the respondent/defendant applied to remove a caveat lodged by the plaintiff and for damages for the alleged wrongful lodgement of the caveat. [6] After full trial, on 18.3.2016, the learned High Court Judge made the decision in open court and further clarified the decision on 24.3.2016. The learned High Court Judge made the following orders –

(a) the appellant/plaintiff’s action in High Court Suit No.BTU- 22-5/9-2013 be dismissed with costs;

(b) an order of specific performance of the SPA shall not be granted against the respondent/defendant;

(c) the respondent/defendant’s counterclaim in Originating Summons No. BTU-24-10/7-2013 be dismissed;

(d) damages for breach of the SPA is awarded to the respondent/defendant and the Senior Assistant Registrar shall assess the damages either under section 75 of the Contract Act 1950 or Clause 6 of the SPA; and

(e) Global costs of RM55,000.00 is awarded to the appellant/plaintiff in respect of Suit No.BTU-22-5/9-2013 and Originating Summons No.BTU-24-10/7-2013. [7] Dissatisfied with the impugned decision, the appellant/plaintiff appealed against the whole of the said decision and the respondent/ defendant appealed against the part of the decision where the learned High Court Judge refused to grant an order for the specific performance of the contract for the purchase of the said land and the decision of the learned High Court Judge in ordering the damages to be assessed either under section 75 of the Contracts Act 1950 or Clause 6 of the contract at the clarification on 24.3.2016. Hence, these appeals before us. [8] For ease of reference, in this judgment, the parties will be referred to as they were at the High Court. Facts of the Case [9] The facts of the case are relatively straightforward and can be summarised within a brief compass. [10] The defendant is the registered proprietor of the said land. The said parcel was for sale. The plaintiff was interested in buying the said land. [11] Both the defendant and the plaintiff entered into a SPA dated 26.6.2012 where in terms whereof the defendant agreed to sell the said land for the price of RM3,100,000.00. The plaintiff paid RM620,000.00 as deposit and part payment upon the signing of the SPA and the balance to be paid within 3 (three) months upon receiving the consent in writing for the transfer of the said land by the Director of Lands and Surveys Sarawak. [12] By Clause 6 of the SPA, the parties agree that in the event the defendant fails, refuses or unable to execute the transfer of the said land in the manner stated in the SPA in favour of the plaintiff, the plaintiff is entitled to treat SPA as cancelled, null and void as by mutual consent and the defendant shall refund the said RM620,000.00 and thereupon the defendant shall pay the pre-estimated liquidated damages. Parties shall have no claim for costs, compensation or specific performance. [13] It is a common ground that both parties were aware of the special conditions that the said land cannot be transferred without the consent in writing of the Director of Lands and Surveys, Sarawak. [14] Pursuant to Clause 8 of the SPA, the plaintiff had lodged a caveat against any dealing of the said land. [15] Written application for consent of the Director of Lands and Surveys, Sarawak was made by the common solicitor acting for both the defendant and the plaintiff, Messrs Kadir, Wong, Lin & Co., Advocates (Bintulu). [16] On 12.3.2013, the Director of Lands and Surveys, Sarawak rejected the said application by stating that the application is “adalah tidak dapat dipertimbangkan”. [17] By a letter dated 28.3.2013, issued by the defendant’s advocates, the plaintiffs was informed by the defendant that the SPA cannot be completed and treated the SPA as void and offered to refund the said RM620,000.00 by a cheque to the plaintiff. [18] By a letter dated 2.4.2013, issued by the plaintiff’s advocates, the plaintiff refunded the said cheque to the defendant, and rejected the defendant’s repudiation of the SPA. The plaintiff pleaded that at all the material times, the plaintiff was and still is able, ready and willing to perform all its contractual obligations under the SPA. [19] The plaintiff vide a letter dated 18.3.2013, informed the defendant that it rejected a repudiation of the SPA and was prepared to pay the balance of the purchase price to the plaintiff prior to the necessary transfer of the said land if the defendant could duly execute all the necessary instruments and documents, including Memorandum of Transfer, Power of Attorney with full powers to do all matters as the registered proprietor could do personally and the written permission to appeal or re-submit the application for consent of the transfer of the said land but this was rejected by the defendant. [20] By a letter dated 20.5.2013, the common solicitor acting for both the plaintiff and the defendant, Messrs Kadir, Wong, Lin & Co. informed the defendant that the plaintiff would like to secure permission from the defendant, to appeal for a consent of the Director of Lands and Surveys, Sarawak, for the transfer of the said land, and that the plaintiff was confident that the appeal would meet the approval requirement of the Director of Lands and Surveys, Sarawak but the defendant refused to permit the plaintiff, to appeal to the said Director. [21] The plaintiff then filed High Court Suit No. BTU-22-5/9-2013. The Judgments Below [22] The learned High Court Judge set out three (3) key issues for decision as proposed by the defendant – “(i) whether the contract for sale of the said land has become impossible to perform and was therefore frustrated and void for the reason that the application by Messrs Kadir Wong Lin & Co Advocates vide its letter dated 30 January 2013 for consent for the transfer of the title of the said Land (Lot 2072 Block 26 Kemena Land District) was rejected on the ground that the application “tidak dapat dipertimbangkan”;

This Court finds that from the testimony in cross-examination of DW1 - Lau Keat Hoo, he was fully aware of the fact that there was no problem of getting consents for the transfer of lands used for industrial purposes as all industrial lands in Bintulu contained similar special conditions in Bintulu and it is a routine application/procedure for Bintulu conveyancing solicitors, for such lands. ...”. [25] As to the second issue, the learned High Court Judge rejected the argument put forward by the learned counsel for the plaintiff that as there was a binding agreement for the said land between the parties and at all the times, the plaintiff was and still is able, ready and willing to perform all its contractual obligations under the SPA, specific performance of the agreement ought to be granted against the defendant in Suit No.BTU-22-5/9-2013. [26] His Lordship’s reasons for rejecting this argument were as follows – “51. In Kong Ming Finance Corp Bhd v. Topical Habitat Sdn Bhd [1990] 3 MLJ 243, whereby Chong Siew Fai J (as he then was) held as follows:- “In my opinion, the court ought not lend its hand to grant the relief as sought in protection of an interest arising from a dealing the creation of which requires express consent which had not been obtained, and the performance of which relief, if granted and if capable of having it enforced upon the vendor as the registered landowner to perform, would contravene an express provision of the law and render the registered landowner liable to committing an offence and his land liable to forfeiture. In other words, there can, in my view, be no question of the alleged contractual right of the applicant being capable of specific performance since an order of specific performance as claimed would, in the circumstances, be tantamount to authorizing the applicant to enforce or to compel the vendor or his estate (if compellable) or to compel the borrower to do something which is prohibited by the document of title relating to the said land, thereby rendering the registered landowner liable to be guilty of an offence or the said land liable to forfeiture under s 33 of the Land Code.”

Since the consent of the Director of the Lands and Survey Department is required for the transfer of the said Land and applying the reasoning of Chong Siew Fai J (as he then was) in the case of Kong Ming finance Corp Bhd v. Tropical Habitat Sdn. Bhd [supra] where his Lordship held that the court ought not to lend its hand to grant relief which requires express consent which had not been obtained, and should the relieve be granted, the performance of which relief, would contravene an express provision of the law, this Court shall not grant an order of specific performance of the SPA against the Defendant.”. [27] Concerning the third issue, the learned High Court Judge concluded that based on the evidence adduced at trial, the plaintiff has proved its interests in the said land which is caveatable by virtue of the written contract i.e. the SPA which the parties have mutually agreed to be bound by it. His Lordship referred to Clause 8 of the SPA which stipulates as follows – “The Vendor hereby agrees and allows the Purchaser to lodge a Caveat against the said Land upon signing of this Agreement.”. [28] In support of his decision, the learned High Court Judge relied on the cases of Macon Engineers Sdn. Bhd. v. Goh Hooi Yin [1976] 2 MLJ 53 and Institut Teknologi Federal Sdn Bhd v. IIUM Education Sdn Bhd [2007] 7 MLJ 23. The Appeal No.Q-02(W)-809-04/2016 [29] The principal issue in Appeal No.Q-02(W)-809-04/2016 is whether the learned High Court Judge erred in holding that there is no frustration of the contract. Learned counsel of the defendant has spiritedly argued that the transfer of the said land is subject to the consent of the Director of Lands and Surveys Sarawak and there is no provision in the SPA to cater or provide for the event when the Director refused to grant consent or rejected the application for a consent. [30] Additionally, learned counsel submitted that the learned High Court Judge erred both in fact and law in ruling that there is no frustration of contract when in fact the request by the defendant for an appeal against the decision of the Director of Lands and Surveys Sarawak cannot possibly be agreed by the defendant as the terms imposed by the defendant for the appeal is offensive and beyond the scope of the contract. The offensive conditions placed on the defendant were stated in the plaintiff’s advocates’ letter dated 18.3.2014 which stated that – “In order to resolve the problem if any, we are instructed that our client is prepared to pay the balance of the purchase price provided however that you shall duly execute all the necessary instruments and documents including the Memorandum of Transfer, Power of Attorney with full powers to do all matters as the registered proprietor could do personally and the written permission to appeal or re-submit the application for consent of the transfer of the said Property in favour of our client.”. (Emphasis added). [31] Learned counsel also argued that the plaintiff had clearly intended to subject the defendant to an endless string or process of appeals and re-submission when in fact frustration had already occurred when the Director of Lands and Surveys Sarawak rejected the consent on 12.3.2013. Learned counsel posited that the rejection of consent to transfer the said land to the plaintiff by the Director had radically changed the circumstances of the case as transfer of the said land had become impossible. Reliance was placed on the case of Guan Aik Moh (KL) Sdn Bhd & Anor v. Selangor Properties Bhd [2007] 3 CLJ 695 and section 57 of the Contracts Act 1950. [32] In reply, learned counsel for the plaintiff submitted that there is no basis for the defendant to contend that the SPA had become frustrated because the defendant failed to perform its obligation in the SPA and the refusal by the defendant to re-submit or appeal to the Director for the requisite consent is self-induced frustration. The principles of interpreting a contract [33] Before we proceed to dwell on the merits of the grounds of appeal put forward by the defendant, perhaps it would be useful to state at the outset the principles of interpreting a contract. In interpreting an agreement or contract, the general rule is that words ought to be given their ordinary and natural meaning and that the intention of the parties must be considered. The court must consider the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (See Chitty on Contracts, 29th edition, paragraph 12-043). [34] In Charles Grenier Sdn Bhd v. Lau Wing Hong [1996] 3 MLJ 327, the Federal Court set out the principles or guidelines for courts to follow in determining whether a binding agreement has come into existence to ensure that the law leans in favour of upholding bargains and not in striking them down willy-nilly whereby Gopal Sri Ram JCA, (as he then was), in the judgment of the Court of Appeal at p.335 D-H observed – “Unless the approach we have stated is adopted, a party to a contract who – after having concluded his bargain – entertains doubts as to the wisdom of the transaction, may be in the unfairly advantageous position to invent all sorts of imaginary terms upon which disagreement may be expressed when the more formal document is being prepared in order to escape from his solemn promise. Businessmen would find the law to be a huge loophole and commerce would come to a virtual standstill. The law leans in favour of upholding bargains and not in striking them down willy-nilly, and its declared policy finds expression in the speech of Lord Wright in Hillas & Co v Arcos Ltd [1932] All ER Rep 494 where he said: “Businessmen often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is, accordingly, the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but, on the contrary, the court should seek to apply the old maxim of English law, verba ita sunt intelligenda ut res magis valeat quam pereat. That maxim, however, does not mean that the court is to make a contract for the parties, or to go outside the words they have used, except in so far as there are appropriate implications of law, as, for instance, the implication of what is just and reasonable to be ascertained by the court as matter of machinery where the contractual intention is clear but the contract is silent on some detail.” This principle applies not only to documents drafted by laymen, but also to those prepared by lawyers (see Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] 129 CLR 99).”. [35] In City Investment Sdn Bhd v. Koperasi Serbaguna CUEPACS Tanggungan Bhd [1985] CLJ Rep 77, Mohd. Azmi FCJ in the judgment of the Federal Court held at page 82a-c - “The general principle of construction of contract applies to all contracts whether they are building contracts or not and in each case the meaning of any clause in a particular contract has to be ascertained by looking at the contract as a whole and giving effect so far as possible to every part of it (see National Coal Board v. Wm Neill & Son (St Helens) Ltd. [1984] 1 All ER 555). Mr. Sethu has drawn our attention to p. 560, the judgment of Piers Ashworth QC which states: “The first two issues involve the construction of the contract. I bear in mind the principles of construing a contract. The relevant ones for the purpose of this case are:

(i) The event upon which the promisor relies as having frustrated the contract must have been one for which no provision has been made in the contract. If provision has been made then the parties must be taken to have allocated the risk between them;

The defendants had two vessels capable of doing this work (the Super Servant One and the Super Servant Two). The contract left the choice of vessel to the defendants. The Super Servant Two sank before the contract was performed. Prior to the sinking the defendants had decided to use that ship to transport the claimants’ drilling rig and the Super Servant One had been contracted to do another job. [43] It was held that the contract had not been frustrated by the sinking of the Super Servant Two. Upon the sinking of the ship the defendants had still been free to perform their contract with the claimants by using its sister ship, the Super Servant One. In the Court of Appeal, Lord Bingham held that frustration should not - “… depend on any decision, however reasonable and commercial, of the party seeking to rely on it.”. [44] We have critically considered the evidence on record, the judgment of the learned High Court Judge and the submissions of learned counsel on both sides, for which we are grateful. We are of the view that the learned High Court Judge was on firm ground when he held that the defendant had failed to prove the three elements mentioned under the doctrine of frustration in Guan Aik Moh (KL) Sdn Bhd (supra) or section 57 of the Contracts Act 1950. [45] We are persuaded, on the reasons proffered by the learned High Court Judge, that the defendant’s refusal to re-submit or appeal to the Director for the requisite consent is self-induced frustration. [46] Learned counsel for the defendant took us through the following facts and/or evidence in support of the learned High Court Judge’s decision that it is clearly a self-induced frustration –

(i) that the defendant had failed to strictly comply with the requirement of the special condition of the land title (viii) as it did not submit a proper application directly to the Director of Lands and Surveys Sarawak.

(v) that PW3 referring to p.20 of Bundle E (see p.446 of R/A Volume 3 Part C), testified that the letter of application for permission to deal was “addressed to the Superintendent of Land and Survey Department” of Bintulu Division. In other words, there was no application to him or addressed directly to him pursuant to special condition (viii) of the title condition of the said land.

(x) that on the same issue, PW1,Ting Kok Tiong, being the common solicitor for both parties herein testified as follows – “Q19: Refer to the letter dated 20.5.2013 at page 90 of Enclosure 60 (Bundle E) (See p.516 of R/A Volume 3 Part C), was this letter issued or signed by you? What is this letter about? A19: Yes, I was the maker of the letter. Before I issued this letter, Mr Chieng Kai Chai of the Plaintiff had requested me to make presentation or appeal directly to the Director of Lands & Surveys for the consent to transfer the said land, so I had written this letter to the Defendant seeking oft its instruction. Given the fact that I was acting for both parties and for such application or appeal for the said consent, I had to get the mandate from the Defendant. When I issued that letter, I hoped the parties could resolve the dispute but toward that end, I need to get the mandate and instruction from both parties. Q20: Did you get any instruction or response from the Defendant in respect of your letter at page 90 of Enclosure 60 (Bundle E) (see p.516 of R/A Volume 3 Part C)? A20: No.”. [47] It is clear, therefore, that the doctrine of frustration applies only in circumstances where the supervening event is beyond the control of the parties to the contract. It follows that where the alleged frustrating event is caused by the deliberate act or decision of one of the parties, or by his negligence, the doctrine will not apply. In the book by “Sinnadurai on the Contract Act, A Commentary”, LexisNexis [2015] on section 57(2) of the Contracts Act 1950, it was stated at paragraph 57.25 that - “Self-induced Frustration [57.25] Principles applicable As a general rule, a party cannot rely on the doctrine of frustration as a defence for non-performance of a contract, if he himself had been responsible for bringing about the frustrating event; that is the event which a party relies upon as frustrating his contract must not be self-induced. The Malaysian courts have also applied this common law principle: see Dato Yap Peng v Public Bank Bhd [1997] 3 MLJ 484, CA. The failure of the state government, one of the parties to a consent order, to perform its obligation under the order to secure an alienation of land by the relevant state authority to the other party when the state authority refused to alienate the land, was held to be a “self-induced frustration” by the Court of Appeal in Yee Seng Plantations Sdn Bhd v Kerajaan Negeri Terengganu [2000] 2 MLJ 699, CA. The refusal of the relevant state authority ‘was a deliberate act of non-compliance of the consent order’; it was not a supervening event, and therefore it was not open to the respondent to rely on the doctrine of frustration. In Maxisegar Sdn Bhd v Silver Concept Sdn Bhd [2005] 5 MLJ 1, CA, the Court of Appeal held that a contract was not frustrated when a purchaser of a commercial property was unable to obtain a bank loan to pay the balance of the purchase price as the purchaser refused to accept the new conditions imposed by the bank in accordance with the requirements of Bank Negara. The Court of Appeal also held that if at all there was frustration, it was ‘self-induced frustration’ under the circumstances. The case of Dato Yap Peng v Public Bank Bhd [1997] 3 MLJ 484, CA. was applied.”. [48] In Hong Leong Bank Bhd v. Tan Siew Nam & Anor [2014] 7 CLJ 293, the Court of Appeal held that the party who seeks to rely on frustration must be a party who is not at fault and no blame can be imputed to him as it is trite law that a “self-induced frustration” does not discharge a party of his contractual obligations. Abdul Malik Ishak JCA in the judgment of the Court of Appeal explained at page 315E-318D – “[30] The word "impossible" is not defined in the Contracts Act 1950. Section 57(2) of the Contracts Act 1950 envisages the situation where the contract becomes frustrated. Frustration puts an end to the contract. Frustration arises after the formation of the contract. The party who seeks to rely on frustration must be a party who is not at fault and no blame can be imputed to him. Lord Radcliffe in Davis Contractors Ltd v. Fareham Urban District Council [1956] AC 696, HL sets out the test to determine frustration at p. 729 of the report in these erudite terms: ... frustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. … [33] Abdul Hamid Omar FCJ (later the Lord President of the Supreme Court) in Ramli Zakaria & Ors v. The Government of Malaysia (supra), at p. 262, stated the law lucidly in this way – “In short it would appear that where after a contract has been entered into there is a change of circumstances but the changed circumstances do not render a fundamental or radical change in the obligation originally undertaken to make the performance of the contract something radically different from that originally undertaken, the contract does not become impossible and it is not discharged by frustration.”. [34] The scope of s. 56 of the Indian Contract Act which is equivalent to our s. 57 of the Contracts Act 1950 was examined by the Indian Supreme Court in Satyabrata Ghose v. Mugneeram Bangur & Co And Another [1954] AIR SC 44. There, Mukherjea J had this to say at pp. to 318 of the report: “The first paragraph of the section lays down the law in the same way as in England. It speaks of something which is impossible inherently or by its very nature, and no one can obviously be directed to an act. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done... This much is clear that the word 'impossible' has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view and if an untoward event or change of circumstances totally upset the very foundation upon which the parties rested their bargain, it can very well be said that the promisor found it impossible to do the act which he promised to do. [35] However, it must be borne in mind that "the doctrine of frustration is to be confined to very narrow circumstances, the reason being, I think, that commercial bargains should not be lightly avoided or brushed aside merely upon a change of circumstances" (per Abdul Malik bin Ishak JC in Ooi Yoke In (f) & Anor v. Public Finance Berhad [1993] 2 CLJ 464; [1993] 1 AMR 734, at p. 742). And where the doctrine of frustration applies, the court will not grant specific performance (Chong Wan Kum v. Wan Choong [1983] 1 CLJ 193; [1983] CLJ (Rep) 512). [36] It is trite law that a "self-induced frustration" does not discharge a party of his contractual obligations. In this connection, reference should be made to the following cases:

(a) Maritime National Fish, Limited v. Ocean Trawlers Limited [1935] AC 524, PC;

(b) Dato Yap Peng v. Public Bank Bhd (supra);

(c) J Lauritzen AS v. Wijsmuller BV (The "Super Servant Two") [1990] 1 Lloyd's Rep 1, CA;

(d) Paal Wilson & Co A/S v. Partenreederei Hannah Blumenthal [1983] 1 AC 854, HL;

(e) H A Berney v. Tronoh Mines Limited [1947] 1 LNS 30; [1949] MLJ 4;

(f) Tan Hiow v. Lee Boon Chia [1958] 3 MC 173;

(g) Sykt Angkasa Bumiputra v. Sabah Land Development Board [1987] 1 CLJ 90; [1987] CLJ (Rep) 997;

(h) Ho Weng Leong v. Ng Kee Chin [1996] 1 LNS 89; [1996] 5 MLJ 139; and

(i) Cheok Hock Beng & Ors v. Lim Thian Siong & Anor [1992] 2 CLJ 1100; [1992] 4 CLJ (Rep)

[37] The doctrine of frustration does not protect a party whose own breach of the contract brings about the frustrating event. Thus, a charterer who in breach of the contract, orders a ship into the war-zone, thereby causing the ship to be detained, cannot rely on the detention as a ground of frustration. It is in fact a self-induced frustration (Ocean Tramp Tankers Corporation v. V/O Sovfracht, The Eugenia [1964] 2 QB 226, CA; and Uni-Ocean Lines Pte Ltd v. C-Trade SA (The "Lucille") [1984] 1 Lloyd's Rep 244, CA). And according to LP Thean JA in Lim Kim Som v. Sheriffa Taibah Abdul Rahman [1994] 1 SLR 393, CA, at 403, the doctrine of frustration is dependent on the facts of the case. Everything boils down to the facts of the case. The present appeal is not an exception.” (emphasis is ours). [49] The evidence on record showed that at all times, the plaintiff was and still is able, ready and willing to perform all its contractual obligations under the SPA for the purchase price of the said land but the refusal of the plaintiff to perform its end of the bargain by self-induced frustration. [50] In the premises, the challenge by the plaintiff on the ground of frustration must fail. The Cross-Appeal [51] Learned counsel for the plaintiff submitted that the learned High Court Judge erred in not ordering specific performance of the contract against the defendant. It was contended that the actual intention of the parties as ascertained from the contract is to complete the sale of the said land with the payment of the balance of the purchase price stated therein. At all the times, the plaintiff was and still is able, ready and willing to perform all its contractual obligations under the contract of the said land and there was no reason for the plaintiff to refuse it. [52] It was further contended that damages are inadequate. As the subject matter of the contract is real property which is well established as unique property and true substitute cannot be found. The specific performance of the contract is the only available remedy. Reliance was placed on section 11(2) of the Specific Relief Act 1950 which stipulates as follows – “unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved.”. [53] The following cases were cited in support of his submission –

(i) Chow Chin Thong v. Dr Chong Eng Leong [2012] 10 CLJ 27;

(v) Bandar Eco-Setia Sdn. Bhd. v Yiap Beow Soon & Anor and Another Appeal [2010] 5 CLJ 556;

(i) that as section 75 of the Contracts Act 1950 or Clause 6 of the contract for the assessment of damages were also not pleaded and adjudicated by the parties at the trial and dealt with by the parties in submission at the conclusion of the trial and in the grounds of the judgment, the learned trial Judge should not have made such order for the assessment of damages under section 75 of the Contracts Act 1950 or Clause 6 of the contract at the clarification on 24.3.2016; and

[70] With respect, we disagree. In our view, since the learned High Court Judge had rejected the application for specific performance in respect of the said land and order the damages to be assessed by the learned Senior Assistant Registrar, the plaintiff’s only interest is monetary and the plaintiff no longer had any interest to preserve the caveat. [71] Insofar as the balance of convenience is concerned, it is well established that a critical consideration is the financial status of parties. There is no evidence on record to suggest that the defendant’s finances are shaky. We see no reason to believe, and the plaintiff had not suggested, that the defendant would not be financially unable to pay damages should the plaintiff prevails at the assessment of damages proceedings. [72] Considering the above factors as a whole, we find that the balance of convenience is tilted in favour of removing the caveat. In the result, we allowed the defendant’s appeal with no order as to costs. Conclusion [73] Having heard learned counsel for the parties and on perusal of the record of the case, we made the following orders:- Appeal No. Q-02(W)-809-04/2016

(a) The appeal against the findings of the High Court Judge that the SPA still subsists and that the doctrine of frustration does not apply is dismissed;

(b) The order of the High Court Judge that damages in lieu of specific performances is awarded to plaintiff to be assessed by SAR is affirmed;

(c) Parties are liberty to argue on the course to be taken in the assessment of damages before the SAR;

(d) No order as to costs; and

(e) Deposit to be refunded. Appeal No. Q-02(A)-810-04/2016

(a) The appeal against the High Court’s decision dismissing the defendant’s counter-claim or removal of caveat is allowed;

(b) No order as to costs; and

(c) Deposit to be refunded. Dated: 23rd January 2018 sgd. (DATO’ SETIA MOHD ZAWAWI SALLEH) Judge Court of Appeal Malaysia Counsel for Appellant: Paul Tang Nguong Wee (Camillus Lau Sii Fang and Norman Liew Hock Zee with him) Messrs Tan, Yap & Tang Advocates No. 28, 1st – 3rd Floors Green Hill Road 93100 Kuching, Sarawak. Counsel for the Respondent: Henry Ling Messrs Ling & Wong Advocates Tingkat 1 & 2, 153-154 Assyakirin Commerce Square Jalan Sultan Iskandar 97000 Bintulu, Sarawak.