Carrying out works and/or developmental activities on the subject land before effecting the payment. The Law Applicable To Admissions [13] In HSBC Bank Malaysia Bhd. v LH Timber Production Sdn. Bhd. [2005] 6 MLJ 625 the Court applied the principle that a fact that is formally admitted becomes a closed issue that need not to be tried and held: “Further, a fact which was formally admitted ceases to be an issue. Any party who makes a formal admission and such admission was generally conclusive for purposes of the proceedings would certainly save his opponent the trouble, time and expense of proving the fact in issue.” Page 19 of 29 [14] In Lee Ah Seng & Anor v PP [2007] 5 CLJ 1, the Federal Court placed emphasis on the principle that an admission made in the course of cross-examination of a witness is of utmost importance and must be taken into account by the Court in making its finding. It was pronounced that: “It would appear as if the learned trial judge merely brushed aside the contradiction and ignored the benefit derived for Ah Seng from SP7’s admission in cross-examination. The learned judge’s finding of SP7 as a witness of truth was therefore highly questionable.” The Law on Finality of a Contract [15] It is trite principle that parties to a written agreement are bound by what is agreed upon as expressed in the written document. In Tractors (M) Bhd. v Kumpulan Pembinaan (M) Sdn. Bhd. [1979] 1 MLJ 129, Chang Min Tat, FJ, remarked 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.” Per Viscount Haldane LC in Dunlop v Selfridges [1961] MLJ 141, 142 at page 854. And in such a circumstances, section 92 of the Evidence Act 1950 does not enable any party to that Page 20 of 29 agreement to lead evidence contradicting varying adding to or substracting from its terms.” [16] In Mega Air-Conditioning Sdn. Bhd. v Speedfam Co. Ltd [2001] 4 CLJ 261 the Court of Appeal in referring to the same principle held: “The parties to a contract must perform exactly what they have undertaken to do. It is not open to the court to revise the words used by the parties, or to put upon them a meaning other than that which they ordinarily bear – in order to bring them within what the court thinks the parties ought to have intended.” [17] Similarly, in Rira Bina Sdn. Bhd. v GBC Construction Sdn. Bhd. [2010] 1 LNS 1434, the Court observed that: “It is trite law that a party should not be permitted to adduce evidence of any oral agreement to vary or contradict the terms of an original contract in writing. This is known as the parol evidence rule and is encapsulated in Section 91 and 92 of the Evidence Act.” [18] The Defendant, in support of its contention that the Plaintiff had disabled itself from performing the previous Agreements cited in the Page 21 of 29 Federal Court case of Akitek Tenggara Sdn. Bhd. v Mid Valley City Sdn. Bhd. [2007] 5 MLJ 697 where Augustine Paul, FCJ held inter alia: “The reason given by the defendant for the termination of the services of the plaintiff is subject to review by the court… The defendant cannot disable itself from performing a contract brought about by its own acts. The reason for the termination of the services of the plaintiff by the defendant is thus not valid. There is therefore a constructive breach of contract by the defendant. Where a party by his own act makes it impossible for him to perform his contract at the due date, there is a constructive breach of contract, and the other party is entitled forthwith to enforce his rights as on a breach” [19] In support of the Defendant’s contention that it was wrong for the Plaintiff to terminate the SSA on the ground of unfairness and detriment to the Defendant in breach. Clause 13 of the SSA, reference was made to the Federal Court case of Berjaya Times Square Sdn. Bhd v M. Concept Sdn. Bhd. [2010] 1 MLJ 597 at p. 599 where Gopal Sri Ram, FCJ pronounced: “When interpreting a private contract the court must not confine itself to the four corners of the document but also look at the factual Page 22 of 29 matrix forming the background of the transaction, all material that was reasonably available to the parties, disregard any subjective intent and adopt an objective approach.” [20] Next for consideration is the Defendant’s contention that the Plaintiff themselves failed to honour their obligation under the various Agreements that allegedly disabled the Defendant from obtaining financing to implement the project. If so, could the Plaintiff be held liable for the losses allegedly suffered by the Defendant? [21] In regard to this issue, I had already upheld the Plaintiff’s contention made at the outset that all issues or disputes that arose before the execution of the SSA were events that had been overtaken by the SSA which could be considered to have settled the same. [22] Hence, the current issue is no longer relevant and post-SSA no longer arises as a matter for consideration. [23] As contended by the Plaintiff, the only issue that arises at this point is whether Plaintiff had any obligations under the SSA that had not been disharged. The Defendant alleged that the Plaintiff had failed in their obligation by failing to release the ‘stake documents’ comprising the Deed of Assignment (‘D/A’) and the Authorization Letter, to the Defendants, Page 23 of 29 which are requisites to obtain financing. In reply, the Plaintiff referred to the relevant clauses of the SSA that stipulated that the stake documents shall be delivered only to the Koperasi’s (Defendant’s) financier’s solicitors to hold the same as stakeholders and (a) not to deal with the same until the Consideration has been paid and (b) to return the Stake Documents to the Vendor immediately upon any termination of this Agreement. [24] Specifically, that there has to be compliance with Clause 4.2(a)(vii) which requires that always the stake documents are to be held by the Koperasi (Defendant)’s Financier’s solicitors as stakeholder on the terms of this Agreement. For this purpose, the Financier’s solicitors shall deliver a written undertaking to Casbina (Plaintiff) confirming their agreement to hold the Stake Documents on the terms of this Agreement. [25] As disclosed by the evidence and admitted by the Defendant’s witness, the Defendant themselves had failed to comply with the terms of the SSA by failing to deliver the Defendant’s Solicitor’s written undertaking in accordance with Clause 4(2)(vii) of the SSA referred to above. Witnesses for the Defendant admitted that the requisite letter of undertaking had not been delivered. It followed that the Defendant’s allegation that the Plaintiff had failed and/or neglected to discharge its Page 24 of 29 obligation to forward the ‘stake documents’ was misconceived and baseless and accordingly, the Plaintiff could not be held liable for losses purportedly faced by the Defendant. [26] Lastly, the issue for determination relates to the Defendant’s contention that all the Agreements between the two parties are null and void on the ground that the Plaintiff did not have the right or authority to assign the developmental right to the Defendant as they had failed to obtain the Written Consent of the registered proprietor of the land, namely, the State Secretary of Pahang Incorporated (‘SSI’). [27] To counter the Defendant’s contention, the Plaintiff relied principally on the uncontradicted evidence in this case. Inter alia, that the Plaintiff had duly communicated with and notified SSI about the Defendant’s appointment as the developer for the proposed development alluded to and that SSI had never even once objected or disagreed with the Defendant’s appointment despite being fully aware of it. SSI had further recognized and accepted the Defendant in its capacity as the developer as evident from the invitation to the Defendant to attend meetings and discussions with SSI on matters pertaining to the proposed development of the project. Reference was made to the minutes of meetings of the State of Page 25 of 29 Pahang Housing Committee which recognized the Defendant to be responsible for development of the project. [28] It was clear from the dealings between the Defendant and SSI that in the course of implementing the project the Defendant did not encounter any problems in dealing with the authorities including the Chairman of the State Housing Committee and the Local Council in obtaining various approvals for the project. It was further evident from SSI’s invitation letter to the Defendant to a Joint Meeting of the State Housing Committee to present a briefing on the ongoing development of the project. [29] From the foregoing, it was abundantly clear that SSI was fully cognisant of and had accepted the Defendant as the developer of the project. As such, the question of SSI not agreeing to the Defendant’s appointment was baseless and a bare denial in the context of the circumstances alluded to. Till today, SSI had not disputed the presence of the Defendant at the project site nor its appointment to carry out the ongoing development with its full sanction. [30] The evidence disclosed without doubt that the Plaintiff had fulfilled all the terms of payment of the Development Agreement and paid the agreed consideration. SSI had, accordingly, agreed to issue the Letter of Page 26 of 29 Final Authority to the Plaintiff to proceed with the development. It meant that the Plaintiff was vested with the authority to appoint the Defendant as the Developer with the consent of SSI. [31] Hence, under the above circumstances, the Defendant’s contention that the Plaintiff did not have the authority to appoint the Defendant as the developer was misconceived and without any merits on the undisputed facts. Clause 3.3 of the SSA is explicit that the Defendant was fully aware of the state and circumstances relating to the subject land and the project before they accepted the appointment and executed the Agreement with the Plaintiff. There was, thus, no basis whatsoever to now challenge the validity of the SSA on the grounds advanced. Conclusion [32] Upon having heard and reviewed all the evidence in this trial, the undisputed facts in the Statement of Claim and Defence and the contentions by both counsel, these are the findings of the Court on the issues for determination: