Dpi Technology Sdn Bhd v Ho Foo (BA-22NCvC-305-07/2023)

HO FOO

SENG SWEE YIN (NRIC NO.: 660806-08-5271) …DEFENDANTS

This is a claim arising from a Sale and Purchase Agreement dated 3.3.2010 (the SPA) entered into between the Plaintiff, DPI Technology Sdn. Bhd., and the Defendants, Ho Foo and Seng Swee Yin, in respect of a leasehold vacant land measuring 2,380 square metres, held under State Lease No. 24/12/2025 15:22:42 BA-22NCvC-305-07/2023 Kand. 65 65618, Lot 50135, Section 15, situated at Ampang Town, Ulu Langat District, Selangor (the said Land).

The Plaintiff, DPI Technology Sdn. Bhd is a limited liability company incorporated in Malaysia that engages in the business of trading in computer and electronic products. The Defendants, Ho Foo and Seng Swee Yin, are the registered proprietors of the said Land.

In this action, the Plaintiff seeks, inter alia, termination of the SPA, refund of the deposit, damages, and other monetary consequential reliefs.

The matter proceeded to a full trial. I have heard the witnesses for both parties, considered the documentary evidence, and read the written submissions filed.

After careful consideration of the submission, on the balance of probabilities, I allowed the Plaintiff’s claim for an order that the SPA be rescinded, the refund of the deposit paid, a sum of RM350,000.00 as the agreed liquidated ascertained damages, and an amount of RM2,407,800.00 being the rental sum incurred to be paid to the Plaintiff, with interest.

The Defendants now appeal to the Court of Appeal, and below are my reasons.

On 3.3.2010, the Plaintiff and the Defendants entered into the SPA, under which the Defendants agreed to sell and transfer the said Land to the Plaintiff. It was undisputed that the leasehold interest in the said Land expires on 25.9.2099, and it was alleged that the purpose of the purchase was for the Plaintiff to construct an office building. A deposit of RM350,000.00 was also paid to the Defendant.

It was also not disputed that, at the material time, the said Land was charged to Public Bank Berhad as security for a loan obtained by the Defendants.

However, after about 8 years, the Defendants failed to complete the transfer of the Land pursuant to the terms of the SPA and subsequent to that, an action was commenced by the Plaintiff in suit BA-22NCC-83-10/2018 (suit 83) on 19.10.2018 seeking specific performance.

On 21.10.2019, both parties reached a settlement on suit 83 and a consent judgment was recorded. As summarized by the Defendants, the terms of the consent order were as follows: “(1) The Defendants will sell and transfer to the Plaintiff the Land held under title PN 65618 Lot 50135, Daerah Ulu Langat ( Lot 50135) or any title(s) that has been rectified or re-issued by the relevant authorities with the land area rectified in accordance to para 2 of the Shah Alam High Court judgement dated 25-6-2015 (“the said Judgment”) with the new purchase price based on RM1,092.43 per square meter (“New Purchase Price”) in accordance to the terms in the Sale and Purchase Agreement dated 3- 3-2010.

Defendants will take any steps and execute any documents or forms for the application to the land office for rectification of the land area of Lot 50135 and issuance of the new title (“New Title”) based on the said judgment within 120 days from the date of this judgment.

Defendants will take any steps and execute any documents or form for application for the removal of any private caveat and/or registrar’s caveat lodged on Lot 50135 at the Defendants’ own costs and expenses (if required) except for the private caveat lodged by the Plaintiff. The Plaintiff is required to give a letter of consent to the said land office in respect of the Defendants’ said application.

After the rectification of Lot 50135 in accordance to the said Judgement and the new Title issued to the Defendants and all private caveats and/or registrar’s caveat has been removed, the Defendants and Plaintiff will take any steps or execute any documents or form for application to obtain the consent from the relevant state authority to sell and transfer Lot 50135 to Plaintiff (“the said Consent”). The Plaintiff is required to sign the portion of the application form for application for the said consent and deliver them together with documents required to be furnished by the Plaintiff as required by the relevant land office to support the application for the said consent within 30 days from receipt of the Defendants or their solicitors’ request and if the Plaintiff failed to do so, the deposit will be forfeited as agreed liquidated damages in accordance to the said Sale and Purchase Agreement.

The Defendants are required to give to the Plaintiff a copy of the application in paragraphs (2, (3) and (4) above within seven days after the application has been submitted with a copy of the receipt of payment and the supporting documents.

The Defendants are required to execute the Memorandum of Transfer (Form 14A) to transfer Lot 51035 to the Plaintiff and submit the Memorandum of Transfer to the Plaintiff’s solicitors together with a copy of the said consent within 7 days of receipt of the said consent.

The Plaintiff has the rights to give extension of time to the Defendants to carry out and comply with paragraphs ( 2 ), (3) and 4 above.

If any of the parties refused or failed to comply with and carry out the terms in this judgement, the other party has the right to enforce this judgement with committal and/or specific performance and/or terminate the said Sale and Purchase Agreement wherein if the breach is by the Plaintiff, clause 8 or by the Defendant, Clause 9 will apply ( as the case may be ).

The Defendants are required to deliver vacant possession of Lot 50135 to the Plaintiff free from any encumbrances within 5 working days from receipt of the New Purchase Price by the Defendants’ solicitors.”

The Defendants were allegedly failed, neglected or omitted to comply with the terms of the consent judgment.

Plaintiff, through their solicitors, had consistently issued letters and reminded the Defendants to update on the transfer of the Land as agreed, but after 120 days from the date of the consent order, the Defendants had allegedly failed to act on their obligations.

In light of the Defendant’s failure to comply with the terms of the consent order, Plaintiff issued a demand letter on 13.9.2023, informing the Defendant of its intention to terminate the SPA and requesting the return or refund of the deposit paid.

The Plaintiff filed this action against the Defendants for an order rescinding and terminating the SPA, and, consequently, due to the Plaintiff’s substantial losses from having to continue renting a temporary premise since 2010, the Plaintiff now claims that the rental expenditure incurred from the Defendants amounted to RM2,407,800.00.

In addition, the Plaintiff also submits that the Defendants deliberately, falsely, and/or negligently misrepresented the Plaintiff regarding the SPA, as the said Land had been in dispute with a third party since 2010 over the actual land area belonging to the Defendants. Despite being aware of the dispute, Defendants allegedly induced the Plaintiff to proceed with the transaction by entering into the consent judgment.

The Defendants, on the other hand, denied liability and contend that any delay was occasioned by matters beyond their control, including statutory and third-party processes.

The Defendant asserts that the document of title of lot 50135 (the said Land) contains conditions and restrictions in interest as follows: “Syarat Nyata :- Bangunan Perniagaan Sekatan Kepentingan:- Tanah yang diberi milik ini tidak boleh dipindahmilk, dipajak atau digadai melainkan dengan kebenaran pihak berkuasa negeri (the State

Moreover, the SPA is also subject to an existing tenancy. Therefore, the Defendants submitted that they are desirous of selling to the Plaintiff the said Land free from all encumbrances but subject to the existing tenancy and to the written consent of the relevant state authority (the said consent) being obtained by the Defendants to transfer the said Land to the Plaintiff. It was agreed that the Defendants shall obtain the said consent within 6 months or any extended period.

On 1.4.2010, after the SPA was executed, one Diman bin Hassan (Diman), the registered proprietor for the adjoining land (Hakmilik 7650, Lot 2449, Seksyen 15, Kg Ampang Campuran, Bandar Ampang, Daerah Hulu Langat (lot 2449) filed a suit, No 21-146-2010 in Shah Alam High Court (suit 146) for a declaration that a portion of lot 50135 (the said Land) had overlapped with his lot 2449.

On 25.6.2015, the High Court declared and adjudged that lot 2449, with an area of 3,336 square metres, belonged to Diman, and that the measurement of lot 50135 (the said Land) belonging to the Plaintiff be rectified.

When Plaintiff filed suit 83 on 19.10.2018, both parties agreed to enter a consent judgment on the terms as stated earlier.

On 13.2.2020, the Defendants’ solicitors informed the Plaintiff’s previous solicitors that the said Land had been redeemed from Public Bank and that the discharge of the charge had been registered, and that they were preparing an application for rectification of the said Land for submission to the Hulu Langat Land Office.

The Defendants’ solicitor had reminded the Plaintiff’s solicitors that the Plaintiff had not given the letter of consent or a no-objection pursuant to the consent judgment, as a private caveat had been lodged by the Plaintiff. The Defendants had requested the letter of no objection to be given on 17.2.2020 to enable the filing of the application for rectification and an extension of time to file the said application within 7 days from the receipt of the letter (no objection letter).

It was contended that the letter of no objection was only received by Defendants’ solicitors on 18.2.2020 at 4 p.m. Two days later, on 20.2.2020, Defendants submitted the application for rectification. A copy of the application was extended to the Plaintiff’s solicitor via email on 17.3.2020.

Unfortunately, up to 18.1.2021, the matter was still being processed by the Land Office. The title was finally rectified on 20.10.2021, and the Plaintiff then requested a new purchase price in accordance with the consent order to proceed further.

On 1.11.2021, the new purchase price was set to RM1,273,773.38 based on the new land measurement area.

However, the Plaintiff’s new solicitors then wrote to the Defendants on 21.2.2022 that the reduction in the measurement of the land area is not appropriate to the Plaintiff’s plan, alleged a breach of the terms of the SPA, and requested a refund of the deposit and interest.

Defendant objected to this action and stated its defence that the reduction in area from 2,380 square metres to 1,451 square metres was a result of the rectification of lot 50135 in accordance with suit 146, as agreed by the Plaintiff in the consent judgment; hence, reiterates that there is no breach of the SPA by the Defendants.

Defendant further states that the registrar caveat was removed from the said Land on 19.7.2022, and on 13.9.2022, an application for consent to transfer was sent for execution and to be submitted to the land office.

Consequent to that, it was submitted that the Plaintiff’s allegation that Defendants had breached the terms of the SPA is unfounded. It was also submitted that the terms of the SPA were varied and superseded by the terms of the consent judgment. Issues for determination

The issues to be tried, as summarized from both parties’ submissions, are as follows:

Whether the Defendants complied with the Consent Judgment dated 21.10.2019, in particular whether they were obliged to amend the size of Lot 50135, procure the issuance of a new title for the amended area within the stipulated period, and remove the caveat.

Whether the Defendants were in breach of the SPA, having regard to their obligations to give effect to the Consent Judgment, to submit the requisite applications to the land office within time, and to keep the Plaintiff reasonably informed of the progress thereof.

Whether the Defendants made any misrepresentation to the Plaintiff, whether fraudulent, negligent, or innocent, relating to material facts of the transaction, including: - the size and measurement of the Land, - the existence of disputes affecting the Land, - their intention or ability to comply with the Consent Judgment, and - the retention of the deposit sum of RM350,000.00.

Whether the Defendants’ acts or omissions entitled the Plaintiff to terminate the SPA, pursuant to Clause 9.1 thereof and/or by reason of fundamental breach or non-compliance with the Consent Judgment.

If the termination was lawful, what remedies are available to the Plaintiff, in particular, whether the Plaintiff is entitled to the refund of the deposit of RM350,000.00 and/or any other contractual or consequential relief. Analysis and Findings

Upon careful consideration of both parties’ submissions, I will discuss the issues raised under two headings: the consent judgment dated 21.10.2019 and the alleged fraudulent misrepresentation by the Defendants. All other matters listed in the agreed issues to be tried will be addressed accordingly under those headers.

To appreciate the submissions by both parties, I have summarised the assertions made below. Plaintiff submission

Plaintiff’s former solicitor had repeatedly requested updates on the land transfer process and had, over time, reminded the Defendant of the deadline.

Even after the consent judgment was recorded, Plaintiff had not received updates on the application for rectification and removal of caveats. The only updates were a telephone conversation on 10.11.2020, during which the Defendants allegedly stated that they were obtaining the rectified title and were awaiting the land office’s response regarding the removal of the caveats.

Under the consent judgment, the Defendants were obliged to apply for rectification of the land title and removal of caveats within the stipulated timeframe and to furnish copies of the applications and supporting documents to the Plaintiff.

Under the SPA, Plaintiff had agreed to purchase the Land measuring 2,380 square metres, with possession to be taken by June 2010. However, this has not materialized to date.

Defendants had failed to provide the necessary documents and execute the transfer of the Land to the Plaintiff.

The Defendants have significantly delayed execution of the SPA.

Time is of the essence as expressly stipulated in the SPA.

Clause 9 of the SPA expressly allows the Plaintiff to terminate the SPA in the event of breach by the Defendants.

The Defendants’ failure to transfer the Land constitutes a total failure of consideration under the SPA.

The Defendants have provided no consideration despite retaining the deposit, entitling the Plaintiff to rely on Section 40 of the Contracts Act 1950 (the CA).

The Defendants; failure or refusal to transfer the Land by the completion date constitutes clear non-performance under Section 40 of the CA 1950.

As the aggrieved party, Plaintiff is entitled to terminate the SPA, and Defendants must be prevented from unjustly enriching themselves by retaining the deposit.

The consent judgment did not extinguish or supersede the Defendants’ obligations under the SPA, nor did it deprive the Plaintiff of its contractual and statutory rights to rescind under clause 9 of the SPA and section 40 of the Contracts Act 1950.

The alleged supersession of the SPA does not negate the Plaintiff’s right to terminate or rescind the SPA and claim liquidated damages under Clause 9 and pursuant to section 40 of the CA. The Defendants remain liable for failure to transfer the Land and misrepresentation.

The Defendants’ reliance on the consent judgment is self-contradictory, as they themselves breached paragraph 2 of the consent judgment, namely, they failed to submit the rectification application by 18.2.2020 and to provide the rectified title to the Plaintiff.

The Plaintiff had continuously objected to the Defendants’ breaches; therefore, estoppel does not apply.

With regard to the allegation of misrepresentation, Defendants were aware of the dispute over the alienation of the Land at the time the consent judgment was entered. Despite such knowledge, Defendants proceeded to induce the Plaintiff to agree with the consent judgment and affirmed their obligation to sell and transfer the Land under the SPA.

The Defendants acted mala fide by inducing the Plaintiff to believe that the transaction would proceed in accordance with the terms and conditions of the SPA. It was evident from the Defendants’ witnesses that they failed to disclose the actual size and measurements of the Land to the Plaintiff, as well as the existence of the Diman dispute.

Plaintiff is entitled to recover losses under section 74(1) of the CA, which naturally arise from the breach or were within the parties’ contemplation at the time of the contract that it would be likely to result from a breach.

Defendant’s witness admitted during cross-examination that the Plaintiff purchased the Land for commercial purposes, and it was submitted that the Defendants were aware that the Plaintiff intended to build a building on the said Land. Furthermore, Defendants clearly knew that the Land was gazetted for ‘commercial use’.

The Plaintiff claims rental losses of RM2,407,800.00 as consequential losses arising directly from the Defendants’ breach.

There are material inconsistencies in the Defendants’ testimonies, particularly DW1’s, regarding the land dispute.

On the issue of limitation, Plaintiff asserts that their Writ and Statement of Claim were filed on 27.7.2023, and the breach of paragraph 2 of the consent judgment occurred on 18.2.2020, giving the Plaintiff until 18.02.2026 to claim for consequential losses. The cause of action for fraudulent misrepresentation only runs when Plaintiff discovered the fraud in 2019; accordingly, Plaintiff’s claim for rental losses is not time-barred. Defendants’ submission

The Plaintiff’s claim is misconceived and should be dismissed.

The contractual relationship between the parties is governed by the SPA dated 3.3.2010, as varied and superseded by the consent judgment dated 21.10.2019, which has contractual force and must be interpreted according to its express terms.

(3)

The Plaintiff was fully aware of the land dispute and rectification issue, had previously sought specific performance on the rectified area, and entered into the consent judgment while represented by counsel. Allegations of misrepresentation are therefore denied as baseless.

The Defendants had complied with their obligations by redeeming the charge, applying for rectification of title, removing caveats, furnishing copies of applications and documents, and actively following up with the Land Office.

Any minor delay in submission was caused by the Plaintiff’s late issuance of the letter of no objection. In any event, the Plaintiff subsequently confirmed its intention to proceed after the rectified title was issued, thereby waiving any alleged delay.

The transaction did not complete solely because the Plaintiff refused to perform its obligations, in particular by failing and refusing to sign and return the application for State Authority’s consent to transfer, as required under the consent judgment. This refusal was expressly admitted by the Plaintiff’s own witness and demonstrated an intention not to proceed with the purchase. The Plaintiff is therefore estopped from relying on alleged non-performance by the Defendants or invoking section 40 of the Contracts Act 1950.

The Plaintiff had wrongfully repudiated the agreement, that no breach or misrepresentation has been established against the Defendants, and that in actual fact, the Defendants are entitled to enforce the terms of the consent judgment, including termination of the SPA and forfeiture of the deposit.

The Plaintiff’s rental loss claim is partially time-barred under the Limitation Act. The Consent Judgement and Alleged Breach?

It was not disputed between the parties that both had a clear intention, on 3.3.2010, to enter into a contract of sale and purchase of a property located at the specific location, measuring 2,380 square metres, for a price of RM2,600,00.00. The fact that the Land was on a specific leased period and charged to Public Bank was within their knowledge at the material time.

However, slightly over a month later (1.4.2010), a turn of events occurred in which the ownership of the measured land area of the Defendants was challenged by one Diman in suit 146, and later, on 25.6.2015, judgment was given in favour of Diman, and the Defendants’ initial land area was reduced to only 1,451 square metres.

What transpired between the parties from 2010 until 2015 was not revealed. Only on 21.11.2018, Plaintiff filed suit 83 alleging Defendant breached their contractual obligations pursuant to the SPA. And after a year later, both parties agreed to record a consent judgment on 21.10.2019.

I will now consider the terms of the consent judgment to have a full understanding of the parties’ mutually agreed obligations. I have no intention of repeating the terms mentioned earlier, but below is a summary of how I understood them. The agreed terms are as follows:

Both parties maintained their intention to proceed with the SPA for the rectified land area, with a new purchase price of RM1,092.43 per square meter.

The Defendants are to take steps to execute all documents and apply for the amendment/rectification of the measurement of the said land area, and on the issuance of a new title within 120 days (from 21.10.2019).

Defendants to apply for the removal of all other caveats save for the Plaintiff’s caveat, and Plaintiff will provide a letter of consent to the applications.

Once the measurement is rectified, a new title is issued, and all caveats are removed, both parties will take steps to execute the document and apply for consent from the state authority.

Plaintiff to sign all relevant documents as required by the land office to support the application for consent within 30 days from the receipt of the Defendant’s request, and if Plaintiff fails, the deposit will be forfeited.

Defendants to give the Plaintiff a copy of the above applications within 7 days after the applications have been submitted.

Defendants to execute the memorandum of transfer (form 14A) within 7 days of receipt of the said consent.

Plaintiff has the right to give an extension of time to the Defendants to carry out the above applications.

Failure of one party to comply with the terms of this consent judgment will allow the other party the right to enforce the judgment with committal or specific performance or terminate the SPA (Clauses 8 and 9 of the SPA).

Defendants to deliver vacant possession within 5 days once the new purchase price is paid.

After the consent judgment was recorded, according to the Plaintiff, Defendants failed to immediately or soon thereafter apply for rectification and the issuance of a new title on the reduced land measurement within 120 days from the date of the consent order, that is, by 18.2.2020.

The Defendants blamed the Plaintiff for sending the letter of no objection late, i.e., on 18.2.2020 at 4 p.m. It is imperative to note that the Defendant’s request for the letter was made only a day before, that is, on 17.2.2020.

Whether a year or a day, if time is of the essence, reasonable or otherwise, it is considered that the party obliged has exceeded the agreed time period to act.

In actual fact, the matter was delayed since the signing of the SPA in 2010, and Plaintiff was the aggrieved party due to the Defendant’s deliberate failure to conclude the agreement. Therefore, it was not the one-day delay that was to be portrayed, but the extended transaction, which kept the Plaintiff in abeyance to benefit from the SPA.

In the present case, I find that the Defendants’ failure to adhere to the time period in the consent judgment constitutes a significant delay and validates the Plaintiff’s termination of the SPA. I am of the view that Plaintiffs are entitled and eligible under the terms of the SPA (Clause 9 of the SPA) to rescind the agreement and request the return of the deposit and the agreed liquidated damages.

It was submitted that the Defendants’ failure to transfer the Land to the Plaintiff also constitutes a failure by the Defendants to perform the entire consideration under the SPA. The Defendants have not provided any consideration for the property, and thus, the Plaintiff relies on Section 40 of the CA, which provides as follows: “40. Effect of refusal of party to perform promise wholly When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promise may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.”

I am of the opinion that, consequent to the finding that the Defendants had failed to act within the 120 days and therefore failed to transfer the Land on the completion date, the case falls under section 40 of the CA. This is a non-performance by the Defendants, and the Plaintiff is then entitled to terminate the agreement. The Defendants shall not be unjustly enriched by keeping the deposit paid (see the case of Yong Mok Hin v United Malaya States Sugar Industries Ltd [1967] 2 MLJ 9 and Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 26).

I reject the contention that the consent judgment superceded the SPA. Applying Tan Geok Lan v La Kuan Lian Kuan [2004] 3 MLJ 465 the Federal Court held that a consent order is akin to a contract, with the superadded command of the court, and must be given its full contractual effect. I quote the relevant paragraph: “The agreement on the terms reached between the parties at the interlocutory stage of the action is a contract between the parties, and the consent judgment or order arising out of that contract is also a contract between the parties, except that the latter is superadded by the command of the court. In short, there are two contracts: one before the court makes the order, and the second after the order is made. After the order is made, the first contract merges into the second contract. That being the case, short of the order being made, the first contract will be considered on its binding effect based on incidents of the agreement reached at the interlocutory stage.”

Premised on the above, it would not be right for the Defendants to assert that the terms of the SPA have been varied and superseded by the terms of the consent judgment. I am of the view that both are validly binding on the parties, as the terms are merged, incorporated and supplemented, rather than replaced. Accordingly, breach of the consent judgment necessarily constitutes breach of the SPA.

I am also not persuaded by the Defendants’ explanation that the delay was minor, waived, or caused by the Plaintiff. The contemporaneous correspondence demonstrates that the Plaintiff consistently sought progress and did not acquiesce in the delay. Waiver cannot be inferred where, as here, the Plaintiff consistently demanded compliance. I therefore find that the Defendants were in breach of the consent judgment and the

I further find that any delay was not materially caused by the Plaintiff. The Defendants bore the primary responsibility to regularise the title, and the evidence does not support the contention that the Plaintiff’s conduct prevented or materially impeded compliance.

Defendants’ subsequent failure to transfer the Land and materialized the agreement resulted in the Plaintiff incurring consequential losses. It was submitted that Plaintiff had to expend rental for temporary premises from 2010 to the present date, amounting to RM2,407,800.00. Therefore, the amount was allowed, including interest.

Another valid reason relied on by the Plaintiff was that the Defendant, having known that their ownership of the Land was being challenged by the adjoining proprietor and that the Land was being alienated, had misrepresented the Plaintiff, inducing them to enter into the SPA in March 2010. Plaintiff only discovered the true extent of the dispute shortly before the consent judgment. On this basis, the Plaintiff is entitled to rescind the SPA under section 19 of the CA and to recover damages for losses flowing from the misrepresentation.

I accept the Plaintiff’s submission that the Defendants failed to disclose material facts relating to the land dispute and the true state of title, notwithstanding the express representations in the SPA. These matters were material to the Plaintiff’s decision to enter into and continue with the transaction. I am of the opinion that the subsequent consent judgment did not cure the misrepresentations. The Plaintiff’s consent was therefore vitiated, entitling it to rescission under section 19 of the CA. Additionally, I am of the view that the consent judgment had resulted in the Plaintiff to further act to their detriment (refer to the case of Sim Thong Realty Sdn Bhd lwn v Teh Kim Dar [2003] 3 CLJ 227 and Tay Tho Bok v. Segar Oil Palm Estate Sdn Bhd [1996] CLJU 60).

Therefore, it is justifiable that the Plaintiff is now strict in enforcing the terms of the consent judgment, as they were prejudiced by the Defendants’ extended delay in recognising the transfer of the Land. Furthermore, as a result of the misrepresentation, Plaintiff had suffered losses and shall be entitled to rescind the agreement and claim for consequential damages (refer to section 19(1) and section 74(1) of the CA).

I also find that Plaintiff is entitled to the rental expenses incurred due to the prolonged failure to transfer the land, and such losses were foreseeable, not too remote, and not time-barred.

Having observed of the witnesses from both parties, I find that the Plaintiff’s witness was credible and consistent, unlike the Defendants, who attempted to evade answering questions. Therefore, I agree with the Plaintiff’s contention that, given this consistency, it is more probable that the testimony of the Plaintiff’s witness was truthful (refer CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 2 CLJ 409).

I reiterate that the Defendants failed to comply within 120 days, were unable to provide timely updates, and only took steps belatedly despite repeated reminders. There is no delay attributed to the Plaintiff; they acted promptly when requested and continuously protested the Defendants’ non-compliance. Accordingly, there was no waiver or acquiescence.

Specifically, with respect to the issues to be tried, I again find that Defendants failed to comply with the consent judgment and are therefore in breach of the SPA. Given Diman’s dispute, which affected the size and measurement of the Land, the possible inability to comply with the consent judgment, and the continued retention of the deposit sum, constitute fraudulent misrepresentation to the Plaintiff. Such act of the Defendants entitled the Plaintiff to terminate the SPA pursuant to Clause 9.1 and/or by reason of fundamental breach or non-compliance with the consent judgment.

As the termination was lawful, the remedies sought are allowed. Final order

Premised on the above, having perused the pleadings, the evidence adduced at trial and the written submissions of both parties, I am satisfied that Plaintiff has established its case on a balance of probabilities and I find that the Defendants had breached both the consent judgment and the SPA itself, therefore Plaintiff is entitled to terminate the SPA and the deposit to be refunded and also eligible for the rental payments suffered as consequesntial losses from the Defendants’ breach.

The Plaintiff’s claim in prayers a-d, g and h of the Statement of Claim is allowed. For prayers e and f, Plaintiff is to file a Notice of application for assessment of damages supported by an affidavit within 30 days from today, failure of which Plaintiff is presumed not to pursue the assessment.

Cost of this action is granted, RM10,000.00, subject to the allocator to the Plaintiff. Dated this: 24th December 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR For the Plaintiff : Dato’ J Shamesh together with Poh Jun Yang Messrs Jeeva Partnership For the Defendants :