Country Garden Pacificview Sdn. Bhd. v Limkokwing University of Creative Technology International Sdn. Bhd. (JA-22NCvC-175-12/2021)

This is the Plaintiff's claim for specific performance and payment of the balance purchase price together with late payment charges arising from a Sale and Purchase Agreement ("SPA") dated 1 November 2017 for a commercial property known as Parcel No. F- 05-02 at the development known as "Laman Damai Empat, Forest City" in Johor Bahru. The Defendant has counterclaimed for a declaration that the SPA has been terminated and for a refund of monies paid.

The trial was conducted on 22.12.2025 and 23.12.2025 with one witness for each parties as follows – WITNESS NAME DESIGNATION PW1 Wang, Denglun Property Sales Agent DW1 Puteri Sherina Balqish Binti Muhd Suffian Corporate Affairs Officer Lim Kok Wing

Parties filed their written submissions and bundle of authorities and orally submitted before this Court on 10 February 2026, and the Court now delivers its decision. Background

The material facts of this case, as established by the evidence at trial, are largely undisputed. They are set out chronologically below.

The Plaintiff, Country Garden Pacificview Sdn Bhd, is a licensed housing developer under the Housing Development (Control and Licensing) Act 1966 [Act118]. The Defendant, Limkokwing University of Creative Technology International Sdn Bhd, is the purchaser under the SPA.

The SPA is a statutory Schedule H agreement prescribed under the Housing Development (Control and Licensing) Regulations 1989 ("HD Regulations 1989"). This is significant because the terms of the SPA are not freely negotiated between the parties but are prescribed by law. Any interpretation of the SPA must therefore be considered within this statutory framework.

On 1 November 2017, the Defendant entered into the SPA with the Plaintiff for the purchase of Parcel No. F-05-02 at Forest City for a purchase price of RM2,792,641.00. The SPA was executed on behalf of the Defendant by the late Tan Sri Lim Kok Wing and his son Dato’ Sri Lim Kok Wing Jr.

Between July 2017 and 12 June 2019, the Defendant made six payments totalling RM1,257,008.95, representing approximately 45% of the purchase price. The Defendant's last payment was made on 12 June 2019. Thereafter, no further payments were made by the Defendant.

The Plaintiff completed the construction of the property and obtained the Certificate of Completion and Compliance ("CCC") on 12 August

The approval of the Housing Controller was obtained on 23 August 2019. The Plaintiff then issued the Notice of Delivery of Vacant Possession on 3 September 2019.

Under Clause 27(3) of the SPA, where the Purchaser fails to take vacant possession within 30 days of the Notice, vacant possession is deemed to have been delivered. The Defendant did not take possession. Accordingly, the Defendant is deemed to have taken vacant possession on 3 October 2019.

This Court pause here to note a critical fact that the Defendant's last payment was made on 12 June 2019, just three months before the Notice of Vacant Possession was issued. This is significant because it demonstrates that the Defendant was still actively performing its payment obligations under the SPA well into 2019. The decision to stop paying appears to have been a commercial decision, not one prompted by any breach or default on the part of the Plaintiff.

Following the deemed delivery of vacant possession, the Plaintiff issued Progress Billings dated 3 September 2019, demanding payment of the balance purchase price of RM1,396,000.00 with a due date of 8 October 2019. The Defendant did not pay.

On 21 April 2021, the Plaintiff issued a Default Letter to the Defendant demanding payment of the outstanding sums. No payment was forthcoming. A formal Letter of Demand was issued by the Plaintiff's solicitors on 26 November 2021, claiming the total sum of RM1,722,316.38 (comprising the balance purchase price and late payment charges calculated at 10% per annum under Clause 10(1) of the SPA, as at 14 November 2021).

On 7 December 2021, the Defendant, through its solicitors, issued a notice purporting to terminate the SPA. The reason cited was "change in management". The Plaintiff disputed this termination.

This suit was filed on 7 December 2021. The Defendant entered its Defence and Counterclaim on 10 January 2022.

The Plaintiff claims the following reliefs –

(a) Specific performance of the SPA;

(b) Payment of the outstanding balance purchase price and late payment charges totalling RM1,722,316.38 (as at 14 November 2021);

(c) Continuing late payment interest at 10% per annum calculated day to day from 15 November 2021 until full settlement;

(d) Damages in lieu of or in addition to specific performance; and

(e) Costs.

The Defendant's defence and counterclaim may be summarised as follows –

(a) The SPA has been breached and is therefore no longer in force. The Defendant's own breach operates to terminate the SPA;

(b) Time is of the essence of the SPA under Clause 9. Since the Defendant failed to pay, the Plaintiff should have invoked Clause 11(2) of the SPA to terminate the SPA rather than seek specific performance;

(c) Clause 11 of the SPA is the exclusive remedy available to the Plaintiff. The Plaintiff's entitlement is limited to forfeiting 10% of the purchase price (RM279,164.00) under Clause 11(1)(B)(i) of the SPA, with the residue of RM977,844.90 to be refunded to the Defendant;

(d) The Plaintiff has failed to mitigate its losses by not terminating the SPA and reselling the property;

(e) The Plaintiff's claim for specific performance amounts to an abuse of process and is brought in bad faith to enrich itself through accumulated late payment charges; and

(f) The Notice of Vacant Possession is invalid because the Defendant had not fulfilled its payment obligations under Clause 27(1)(d) of the SPA.

In its Counterclaim, the Defendant seeks –

(a) a declaration that the SPA is terminated and no longer in force;

(b) a refund of RM977,844.90 (being the amount paid minus the 10% forfeiture);

(c) interest at 5% per annum under Clause 13(2) of the SPA; and

(d) costs. Analysis

The parties agreed on two broad issues – Issue 1 : Whether the Plaintiff is entitled to the reliefs as stated in paragraph 15 of the Statement of Claim? Issue 2 : Whether the Defendant is entitled to the reliefs as stated in paragraph 14 of the Defence and Counterclaim?

This Court observed that from the pleadings and evidence, the real sub-issues that fall for determination are –

(a) Whether the SPA remains valid and enforceable despite the Defendant's non-payment;

(b) Whether Clause 11 of the SPA is the exclusive remedy available to the Plaintiff, or whether the Plaintiff may elect to seek specific performance under the Specific Relief Act 1950 [Act 137];

(c) Whether the Plaintiff's issuance of the Notice of Vacant Possession was valid;

(d) Whether the Plaintiff is entitled to the balance purchase price and late payment charges;

(e) Whether the Defendant is entitled to unilaterally terminate the SPA and claim a refund; and

(f) Whether the Plaintiff has a duty to mitigate by terminating the SPA and reselling the property.

The Court analysis and findings on the issues above are as below – Issue (a) : Whether the SPA remains valid and enforceable

The Defendant's primary contention is that the SPA has been terminated by reason of its own breach. In essence, the Defendant asks this Court to hold that a purchaser who breaches a contract by failing to pay can, by that very breach, bring the contract to an end and obtain a refund.

This Court rejects this argument. It is a trite law that a party cannot rely on its own breach to terminate a contract. The right to terminate for breach belongs to the innocent party, not the defaulting party. (see : Loh Wai Lian v SEA Housing Corporation Sdn Bhd [1987]

The evidence at trial confirms this position. SD1, the Defendant's sole witness, admitted that the Defendant stopped paying after June

She confirmed that the Plaintiff's Default Letter was received on 21.4.2021 and that the Defendant purported to terminate the SPA on 7.12.2021 citing "change in management".

However, SD1 could not explain why the Defendant stopped paying, why it remained silent for over two years after its last payment, or how a "change in management" could discharge the Defendant's contractual obligations. SD1 joined the Defendant only in 2022 and had no first-hand knowledge of the transaction.

By contrast, SP1, the Plaintiff's Sales Manager since March 2017, gave direct evidence of the complete chronology of the transaction. He confirmed that the SPA was never terminated by the Plaintiff, that the Defendant never disputed any of the progress billings or the default letter and that the Defendant's purported termination came only after the Plaintiff issued its Letter of Demand.

This Court views that the Defendant's purported termination on 7.12.2021 has no contractual or legal basis. A change of management within a company does not discharge its contractual obligations. The SPA was not terminated by the Plaintiff and the Defendant had no right under the SPA or at law to unilaterally terminate. The SPA, therefore, remains valid and enforceable. Issue (b) : Whether Clause 11 of the SPA is the exclusive remedy

The central plank of the Defendant's case is that Clause 11 of the SPA is the sole and exclusive remedy available to the Plaintiff and that the Plaintiff was obliged to terminate the SPA and limit itself to forfeiting 10% of the purchase price under Clause 11(1)(B)(i) of the

Clause 11 of the SPA provides that where the Purchaser fails to pay any instalment, the Developer "may" terminate the agreement by giving the Purchaser written notice. Upon termination, the Developer is entitled to forfeit a percentage of the purchase price depending on the percentage already paid. Where less than 50% has been paid, the Developer may forfeit 10%.

The operative word is "may". As a matter of ordinary construction, "may" is permissive, not mandatory. It confers a discretion, not an obligation. The Developer is not required to terminate. It has the option to do so.

During cross-examination, SP1 initially conceded that the "only remedy the Plaintiff has against the Defendant is in Clause 11" of the SPA. However, this was substantially rehabilitated in re-examination, where SP1 explained that Clause 11 of the SPA gives the Plaintiff a discretion to either terminate the SPA or to sue for performance of the SPA. This Court treats this as an acceptable clarification. The question of whether Clause 11 of the SPA is the exclusive remedy is ultimately a matter of legal construction for the Court, not a factual question for a lay witness.

Where the Developer elects not to terminate, it is entitled to pursue its other available remedies, including specific performance. Section 11(2) of Act 137 provides that in a contract for the sale of immovable property, the purchaser or the vendor may sue for specific performance. This is a statutory right available to the Plaintiff as the vendor of immovable property.

The Defendant's argument that Clause 11 of the SPA is the exclusive remedy has the effect of confining the Plaintiff to a remedy that yields only RM279,164.00 (10% forfeiture), while the Defendant walks away from a RM2.79 million contract having paid only 45% and owing over RM1.3 million. A statutory SPA prescribed under the HD Regulations 1989 cannot be construed to place the innocent party in a worse position than the defaulting party.

This Court therefore hold that Clause 11 of the SPA is not the exclusive remedy. The Plaintiff was entitled to elect between –

(a) terminating the SPA under Clause 11 of the SPA and forfeiting the stipulated percentage; or

(b) keeping the SPA alive and suing for specific performance and the balance purchase price.

The Plaintiff has elected the latter. It was entitled to do so.

The Defendant further argued that clause 11 takes precedence over clause 5(1) of the SPA, and that the provision in clause 11 being a specific provision dealing with the default of the Purchaser, the Plaintiff is not entitled to claim the balance purchase price. This Court rejects this submission. Clause 5(1) imposes a primary obligation on the Purchaser to pay the purchase price by instalments. Clause 10(1) provides for late payment charges at 10% per annum on any late payment. These are independent, primary contractual obligations. Clause 11 provides a remedial mechanism available to the Developer upon the Purchaser's default. The existence of a contractual remedy does not extinguish the underlying primary obligation to pay. To hold otherwise would mean that a purchaser who defaults on payment is absolved of the debt simply because the contract provides the developer with an option to terminate, a commercially absurd result.

The Defendant relied on the Federal Court decisions in Catajaya Sdn Bhd v Shoppoint Sdn Bhd & Ors [2021] 2 MLJ 374 and SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 for the proposition that contracts must be strictly construed and that using the "reasonable addressee" method, the only implication would be that the Defendant has the right to terminate the SPA. This Court finds these authorities distinguishable. Both cases concerned the interpretation of termination clauses where the party seeking to terminate had a legitimate basis and standing to do so. In the present case, the Defendant is the contract-breaker who seeks to imply a right to terminate that the SPA expressly does not confer on the Purchaser. Clause 11 of the SPA confers the termination right exclusively on "the developer". This is a deliberate drafting choice in a statutory form prescribed under the Housing Development (Control and Licensing) Regulations 1989, and the Court cannot rewrite this allocation of rights.

As for the Defendant's reliance on the Housing Development (Control and Licensing) Act 1966 ("HDA 1966") as social legislation to be read in favour of the Purchaser, this Court accepts that the HDA 1966 is indeed social legislation enacted to protect purchasers of housing accommodation from unscrupulous developers. However, the protection afforded by social legislation is not a carte blanche for purchasers to escape the consequences of their own admitted breaches. The protection is designed to shield purchasers from developer misconduct, such as failure to complete, delay in delivery, defective workmanship or unfair contractual terms. It does not extend to allowing a purchaser who has admittedly defaulted on over half the purchase price to invoke the very legislation designed to protect it as a sword to avoid its legitimate contractual obligations. Issue (c) : Validity of the Notice of Vacant Possession

The Defendant contended that the Notice of Vacant Possession dated 3.9.2019 was wrongfully issued by the Plaintiff in breach of clause 27(1)(d) of the SPA. The Defendant submitted that since the Defendant had not paid all monies payable under subclause 5(1), the Plaintiff had no right to issue the said Notice.

This Court is unable to agree with this contention. A proper reading of clause 27(1) reveals that the conditions stipulated therein, including clause 27(1)(d), are conditions precedent to the Purchaser's right to take vacant possession, not preconditions to the Developer's right to issue the notice of vacant possession. The clause provides that the Developer "shall let the purchaser into possession of the parcel upon following" and then lists the conditions including payment of all monies. The obligation to deliver possession and the conditions for the purchaser to take delivery are conceptually distinct.

Furthermore, as noted at paragraph 10 above, vacant possession is deemed to have been delivered under clause 27(3) of the SPA, the Defendant having failed to take possession within 30 days of the Notice.

In any event, the Defendant's argument is circular and self-serving. The Defendant's failure to pay the balance purchase price is the very breach complained of by the Plaintiff. It would be absurd to allow the Defendant to rely on its own breach of the payment obligation to invalidate the Plaintiff's notice of vacant possession and thereby escape its contractual obligations. This is consistent with the principle enunciated earlier that a party in breach cannot rely on its own wrong to gain an advantage.

As for the Defendant's invocation of section 40 of the Contracts Act 1950 [Act 136], the Defendant submitted that the right of rescission is preserved under that provision and that the Defendant can avail itself of the right to rescind the SPA. This Court finds no merit in this submission.

Section 40 of Act 136 provides— "When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance".

The right under section 40 of Act 136 vests in the innocent party being the party who has been wronged by the other's refusal or failure to perform. In the present case, it is the Defendant who has refused to perform its payment obligation. The Defendant is the contract-breaker, not the innocent party. The Defendant therefore has no standing to invoke section 40 of Act 136 to rescind the SPA. As the Federal Court held in Lim Swee Choo & Anor v Ong Koh Hou @ Won Kok Fong and another [2025] 6 MLJ 327, termination of a contract is only available to the party who has suffered from the other party's failure to carry out or substantially carry out its duty under the contract. The right to terminate does not arise automatically upon breach. It must be exercised by the party not in default.

Similarly, section 56(1) of Act 136 provides that when a party to a contract promises to do a certain thing at or before a specified time and fails to do so, the contract becomes voidable at the option of the promisee. Again, the option vests in the promise. In this case, the Plaintiff as Developer. The Defendant, being the party who failed to pay, is the promisor and cannot invoke this provision to declare the SPA terminated. Issue (d) : Whether specific performance should be granted

Section 11(2) of Act 137 creates a presumption that specific performance may be granted in contracts for the transfer of immovable property. The burden is on the party resisting specific performance to show why the discretion should not be exercised.

The Defendant raised two arguments against specific performance –

(a) laches and delay; and

(b) that damages are an adequate remedy.

On laches, the Defendant laid great emphasis on the chronology of events to argue inordinate delay : the last payment was in June 2019, the Default Letter was issued only on 21.4.2021 (almost 24 months later), the Letter of Demand on 26.11.2021 (7 months later) and the suit was filed on 7.12.2021. The Defendant relied on Bandar Eco-Setia Sdn Bhd v Angelane Eng [2016] 1 MLJ 764 and Lembaga Pembangunan Langkawi v. Smart Unity Sdn Bhd [2017] 7 CLJ 450 to argue that this delay bars the remedy of specific performance.

This Court finds these authorities distinguishable. In Bandar Eco-Setia, the delay was coupled with a fundamental change in circumstances that made the covenant sought to be enforced incapable of being preserved. In Lembaga Pembangunan Langkawi, the plaintiff had not shown itself ready, able and willing to perform its own obligations and there was an inordinate delay of almost seven years.

In the present case, the Plaintiff was not idle during the period complained of. The Plaintiff was actively progressing the development, obtained the CCC on 12.8.2019, served the Notice of Vacant Possession on 3.9.2019 and continued to issue progress billings to the Defendant. The Defendant, for its part, remained completely silent from June 2019 until it received the Default Letter. It did not communicate any intention to terminate, any dissatisfaction or any reason for non-payment. As SP1 explained, the Plaintiff afforded the Defendant time to make payment. The mere passage of time without prejudice to the Defendant does not constitute laches. There is no evidence that the Defendant was in any way prejudiced by the interval between the last payment and the institution of this suit or that the Defendant altered its position in reliance on the Plaintiff's alleged delay.

This Court acknowledges the interval between the Defendant's last payment and the Default Letter. However, the evidence shows that during this period, the Plaintiff had issued Progress Billings on 3 September 2019 and delivered vacant possession. The Plaintiff was not idle. SP1 confirmed these steps in his evidence-in-chief and under cross-examination. More importantly, the Defendant itself did nothing during this period. It did not dispute the billings, did not seek to terminate, and did not communicate any grievance. Further, SD1 could not explain this prolonged silence. This Court is of the view that a party who sits on its own breach for over two years is in no position to complain of laches by the innocent party.

On adequacy of damages, the Defendant did not lead any evidence to show that damages would be an adequate remedy. To the contrary, the Defendant's own Rejoinder pleading asserted that the property "cannot be sold on the open market". This admission is fatal to the Defendant's case on this point. Therefore, if the property cannot be resold, then damages (which would be measured by reference to a hypothetical resale) are plainly inadequate and specific performance is the only remedy that can make the Plaintiff whole.

This Court is satisfied that the prerequisites for specific performance are met. The SPA is a contract for the sale of immovable property. The Plaintiff has fully performed its obligations. The construction is complete, CCC has been issued and vacant possession has been offered. The Defendant has admitted breach. There is no evidence that damages are adequate. Specific performance is accordingly granted.

This Court would add that in considering the grant of specific performance, this Court is mindful of the equitable principle that he who comes to equity must come with clean hands. In the present case, the Plaintiff has fully performed its obligations under the SPA. The Plaintiff is a party with clean hands who is entitled to invoke the equitable jurisdiction of this Court.

The Defendant, by contrast, admittedly stopped payment without justification, remained silent for over two years and then purported to terminate the SPA through its solicitors' reply dated 7.12.2021, the very same day this action was filed. The Defendant does not come to this Court with clean hands. As held by the Court of Appeal in Pilecon Engineering Bhd & Ors v Malaysian Trustees Bhd & Ors [2022] 7 MLJ 293, a party who has breached its contractual obligations cannot invoke equitable defences to defeat the claims of the innocent party.

This Court further observes that the Defendant's position involves an inherent inconsistency amounting to approbation and reprobation. On one hand, the Defendant contends that the Plaintiff should have exercised its right to terminate the SPA under clause 11 and that the Plaintiff's failure to do so constitutes laches or delay. On the other hand, the Defendant simultaneously purports to terminate the SPA itself and claims a refund. The Defendant cannot blow hot and cold. It cannot fault the Plaintiff for not terminating the SPA while simultaneously asserting its own right to terminate. This is precisely the mischief addressed by the doctrine of approbation and reprobation (see : Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761).

As regards the Defendant's reliance on section 20(1)(a) of Act 137, which provides that specific performance shall not be granted where compensation in money is an adequate relief, this Court finds that this provision does not avail the Defendant. Section 11(2) of Act 137 establishes a presumption that in respect of agreements to transfer immovable property, the breach cannot be adequately relieved by compensation in money. The burden is on the Defendant to rebut this presumption, and the Defendant has singularly failed to do so. Indeed, as discussed at paragraph 52 above, the Defendant's own evidence and pleadings confirm that the property cannot be sold on the open market - effectively conceding that monetary compensation would be inadequate.

Finally, this Court notes for completeness that this Court's decision is consistent with the approach taken in similar cases involving the same developer and the Forest City project. In Wong Yong Fook & Anor v. Country Garden Pacificview Sdn Bhd & Other Cases [2023] 1 LNS 1006, the High Court upheld the Sessions Court's grant of specific performance in respect of a Forest City SPA where the purchaser had similarly defaulted on payment. The Defendant attempted to distinguish that case on the basis that it involved a challenge to the validity of the SPA under the Housing Development (Control and Licensing) Regulations 1989. However, the core holding of that decision i.e. that specific performance is an appropriate remedy where a purchaser defaults on a Forest City SPA and the developer has fully performed, is directly applicable to the facts of the present case. Issue (e) : Balance purchase price and late payment charges

The outstanding balance of the purchase price is RM1,396,000.00. This was established by SP1's evidence and the Statement of Account supported by a Section 90A Evidence Act 1950 [Act 56] certificate. The Defendant objected to the contents of the Statement of Account but not its authenticity - a significant concession, as it means the document itself was admitted into evidence. The Defendant has not disputed the quantum.

Clause 10(1) of the SPA provides for late payment charges at the rate of 10% per annum on any sums overdue. As at 14 November 2021, the late payment charges stood at RM326,316.38. The total sum claimed as at that date is therefore RM1,722,316.38. The Plaintiff is entitled to this sum together with continuing interest at 10% per annum from 15 November 2021 until full settlement as provided under the SPA.

The Defendant also submitted that the Plaintiff's claim for the balance purchase price together with late payment charges amounts to unjust enrichment at the expense of the Defendant, relying on Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441. This Court finds no merit in this submission for two reasons.

First, this defence was not properly pleaded. A bare assertion of unjust enrichment in the Defence without the necessary material facts and particulars is insufficient. As held in Simcity-ETE Venture Sdn Bhd v Koperasi Pembangunan Kampung Tradisional Tasek Pulau Pinang Bhd [2021] MLJU 2225, a claim or defence of unjust enrichment must be pleaded with full particulars, including the basis upon which the enrichment is said to be unjust. The Defendant's Defence contained only a bare one-line assertion without particularising how or why the Plaintiff's enrichment is unjustified.

Second, and in any event, there is no unjust enrichment on the facts. The Plaintiff's claim for the balance purchase price is founded on a valid and subsisting contract : the SPA. The Plaintiff has a legal basis for its claim, namely the Defendant's contractual obligation to pay the purchase price. Where a contractual obligation exists, the enrichment is not unjust. The Plaintiff completed construction, obtained the CCC and offered vacant possession. The Defendant has had the benefit of the Plaintiff's performance. The Plaintiff's claim for what is contractually due is the antithesis of unjust enrichment. Issue (f) : The Defendant's Counterclaim

The Defendant's Counterclaim is premised entirely on the SPA being terminated and Clause 11 being the exclusive remedy. Since this Court has found that –

(a) the SPA remains valid and enforceable;

(b) the Defendant has no right to unilaterally terminate; and

(c) Clause 11 is not the exclusive remedy. the Counterclaim necessarily fails.

This Court would add that even if the Defendant's construction of Clause 11 of the SPA were correct, which this Court has found it is not, the quantum of the Defendant's Counterclaim is in error. The Defendant claimed a refund of RM977,844.90. However, this computation entirely omitted the late payment charges due under Clause 10(1) of the SPA, which must be deducted before any refund calculation under Clause 11(1)(C) of the SPA. The correct computation, had Clause 11 of the SPA been engaged, would be – ITEM AMOUNT (RM) Amount paid by Defendant 1,257,008.95 Less : Late payment charges (as at 10.1.2022) (348,116.93) Less : 10% of Purchase Price (forfeiture) (279,264.00) BALANCE REFUNDABLE 629,628.02

The Defendant relied on Country Garden Pacificview Sdn Bhd v. Anand Raj Giri Haripasar Giri [2021] 1 LNS 1057 in support of its counterclaim computation. In that case, the termination occurred within a year of the SPA and the court ordered refund after deducting 10%. That case is distinguishable. It involved a consensual termination through a Deed of Revocation and a dispute over the quantum of forfeiture, not a situation where the purchaser seeks to unilaterally terminate after defaulting on payment for over two years.

The Defendant's counterclaim quantum of RM977,844.90 was thus overstated by approximately RM348,000. This further demonstrates that the Defendant's case has not been carefully considered. Issue (g) : Duty to mitigate

The Defendant argued that the Plaintiff had a duty to mitigate by terminating the SPA and reselling the property, rather than allowing late payment charges to accumulate.

This Court finds that this argument is misconceived for two reasons—

First, the duty to mitigate does not require the innocent party to accept the termination of a contract and give up its rights thereunder. The innocent party is entitled to affirm the contract and hold the defaulting party to its obligations. This is the effect of the Plaintiff's election to seek specific performance.

Second, the Defendant's own case fatally undermines this argument. As noted at paragraph 52 above, the Defendant's own pleading asserts that the property cannot be sold on the open market. Terminating the SPA and attempting to resell would therefore be a futile exercise, not a reasonable step in mitigation. The Defendant cannot simultaneously argue that the Plaintiff should resell while also asserting that the property is unsaleable. Court’s Order

For the reasons set out above, this Court finds as follows –

(a) The SPA dated 1 November 2017 remains valid and enforceable;

(b) The Defendant is in breach of the SPA by failing to pay the balance purchase price;

(c) Clause 11 of the SPA is permissive and not the exclusive remedy. The Plaintiff was entitled to elect specific performance;

(d) The Defendant's purported termination of the SPA on 7 December 2021 is invalid and of no effect; and

(e) The Defendant's Counterclaim fails in its entirety.

Accordingly, this Court makes the following orders –

(a) On the Plaintiff's Claim –

(i) Specific performance of the SPA dated 1 November 2017 is granted. The Defendant shall comply with all its obligations under the SPA, including payment of all outstanding sums.

(b) On the Defendant's Counterclaim – The Defendant's Counterclaim is dismissed in its entirety.

(c) Costs of RM100,000.00 to be paid by the Defendant to the Plaintiff, subject to the allocatur fee. Dated : 26 February 2026 -signed-Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Plaintiff : : Aleeya Elyana together with Lee Xin Yi Messrs Izad Kazran & Co. Solicitor for the Defendant : : Sivanesan a/l Nadarajah Messrs Siva Nada & Associates