Gabungan Koperasi Perumahan Malaysia Bhd v Dominion Park Sdn Bhd (BA-22NCVC-20-01/2017)

apply for the removal of the Express Condition (1st Condition Precedent).

secure the withdrawal of an existing private caveat and the discontinuance of any prohibitory orders not already expired (2nd

apply for the consent of the registered owner and developer of the neighbouring land of Lot 11541, Saranita Sdn.Bhd (Saranita), to develop part of the neighbouring land as an access road to the Land (3rd Condition Precedent). [6] Apart from the Principal Agreement, the parties entered into three (3) other Supplemental Agreements which are: [a] The 1st Supplemental Agreement (Exhibit P11) was entered into between the Plaintiff, the Defendant and CLSB on 22.6.2007 merely sought to limit the amount of facilities to be taken for the project. 5 [b] The 2nd Supplemental Agreement (Exhibit P30) was entered into by the Plaintiff, the Defendant and CLSB on 16.6.2008. By way of the 2nd Supplemental Agreement, the parties have agreed to accept the non-removal of the Express condition provided always that any term or condition that may be imposed by the State Government or any agreement entered with the State Government shall be subject to such term and condition as shall be acceptable to the Defendant. By way of a letter dated 16.10.2008 (Exhibit P31), the Plaintiff confirmed that in so far as the 1st Condition Precedent was concerned, parties had agreed under the 2nd Supplemental Agreement that the 1st Condition Precedent would be satisfied by entering into a tripartite agreement between the Plaintiff, the Defendant and the Selangor State Government (Tripartite Agreement). In this regard, a draft copy of the Tripartite Agreement had been submitted to the Selangor State Government on 10.7.2008 for the Selangor State Government's approval. The essence of the Tripartite Agreement was for the Plaintiff to share 50% of the Plaintiff's profits in this project with the State Government. 6 [c] On 30.12.2010, a 3rd Supplemental Agreement (Exhibit P50) was entered into between the Plaintiff, the Defendant and CLSB. The parties agreed to extend time for the Plaintiff to comply with the 3rd Condition Precedent; namely to obtain the consent of Saranita to develop part of Saranita’s land as an excess road or as an alternative to secure an alternative public excess to the Land. Apart from the above, the Defendant agreed at the request of the Plaintiff, to accept that there was a reduction in the land area from 89,030.832 square meters to 86018 square meters. In consideration of there being a reduction in the area of the Land, the Plaintiff agreed that their entitlement to the project be reduced to RM13,200,000.00 to be paid in kind and shall be based on a maximum of 14% of the total units to be developed or the value of the total units to be developed, up to a maximum of RM13,200,000.00 whichever is lower. The Defendant at the request of the Plaintiff agreed to extend time of 36 months for the Plaintiff to obtain the consent of Saranita to develop part of Lot 11541 as an access road or to secure an alternative public access to the Land. The 36-months period would have expired on 30.12.2013. 7 [7] While the parties were still in the midst of negotiations on the terms of the proposed 4th Supplemental Agreement, the Plaintiff's solicitors out of a sudden wrote to the Defendant's solicitor on 19.12.2016 (Exhibit P56) stating that the 2nd Supplementary Agreement (pertaining to the Plaintiff's entitlement to RM13.2 million to be paid in kind which is based on a maximum of 14% of the total units to be developed or the value of units developed, whichever is lower) did not materialize because development was not carried out diligently. The Plaintiff went on to claim that the Plaintiff's aforesaid entitlement is invalid or in the alternative has to be equitably renegotiated. C. The Plaintiff’s case [8] The Plaintiff did not dispute that it was their responsibility as to all the three (3) Conditions Precedent in the Principle Agreement. The Plaintiff contention here is related the 1st and 3rd Conditions Precedent. As to the 2nd Condition Precedent, it has been fully satisfied by the Plaintiff. 8 [9] The 1st Condition Precedent. The Plaintiff admitted that it bears the obligation to apply for and secure the removal or obtain a variation of an express condition Projek Perumahan Usahasama Dengan Kerajaan Negeri" endorsed on the title document for the Land. In other words, with this express condition there should be a housing development on the land in joint venture with the State Government. The Plaintiff duly made the application in a statutory form in accordance with the law to remove or vary the said express condition under section 124 of the National Land Code but was not able to secure the removal or variation of the express condition. There was no response from State authority neither approved nor rejected the said application. The Plaintiff submitted that the 1st Condition Precedent requiring the Plaintiff "to procure" the removal or variation of the express condition on the title document was an impossible condition for the Plaintiff to perform because it was up to the State Authority to consider the application and either allow or reject the application at their discretion. It was an executive power not an administrative power as it falls within Section 57(1) of the Contracts Act 1950 which stipulates that "An agreement to do an act impossible in itself is void." Therefore the express condition stated in the Plaintiff's title document was impossible to perform and was unlawful. 9 [10] The Plaintiff also submitted that the express condition requiring the land owner to do business by way of joint venture with the State Government was unconstitutional, invalid and void. It is not the function of the Government to do business because it may open to opportunities for corruption. The draft Tripartite agreement prepared and requiring the Plaintiff to give 50% of the plaintiff's proceeds in the development of the Land to the State Government, would be wholly unconstitutional and void contrary to Article 13(2) of the Federal Constitution as any acquisition of property without adequate compensation is contrary to Article 84 of the Selangor State Constitution as tax imposed for the purpose of the state by or under any law authorizing it. In this premise the Plaintiff contended that the 1st Condition Precedent was impossible to perform and the Principal Agreement was therefore void ab initio. Since the Principal Agreement is to "secure" approval of the State Authority is illegal as being contrary to public policy, all Supplemental Agreements arising from it is also void. [11] The 3rd Condition Precedent. This condition is based upon a purported proposed access road leading to the Land where the Plaintiff ought to obtain the consent of the adjacent land owner for access to the Land since both the Plaintiff and the Defendant thought an access road 10 was ear marked by the local authority from outside leading to the Land at that point. The Plaintiff submitted that since the road reserve did not exist, the condition was null and void by reason that it was entered into by a mistake as to an essential fact pursuant to Section 21 of the Contracts Act

It was not the Plaintiff's fault at all that the access to the adjacent land could not be obtained owing to the absence of a road reserve leading to the Land. Arising from this facts, the Plaintiff also submitted that all the 3 Supplemental Agreements should be considered void under Section 18 of the Contracts Act 1950 as having been made as a result of misrepresentation on the basis that the Plaintiff unknowingly agreed to so many things to their detriment. [12] In addition, the Plaintiff also submitted that the Defendant had failed to perform the Principal Agreement within a reasonable time as required by Section 47 of the Contracts Act 1950 and apart from being impossible to perform the two conditions precedent were so onerous that for 11 years the Principal Agreement could not be complied with. Therefore the Principal Agreement even if it is not void ab initio, was frustrated. Since no completion date was agreed to it follows that all the 3 Supplementary 11 Agreements were also void for uncertainty under Section 30 of the Contracts Act 1950 and the Plaintiff has justly terminated the transaction. [13] A new Qualified Title of the Land produced by the Defendant showed a lesser land area with a reduction of 5,293 square metres of the Land area in the final title (Exhibit P2) is 86,018 square metres whereas the new Qualified Title shows an area of only 80,725 square metres. The Plaintiff contended that they never agreed to surrender the Land up to the extent of 5,293 square metres to make way for the alternative access road proposed by the Defendant without any adequate compensation. The Power of Attorney given by the Plaintiff to the Defendant on 8.9.2005 does not authorize the Defendant to surrender the Land which is. The reduction in land area without compensation paid to the Plaintiff as land owner makes the reduction of land area contrary to Article 13(2) of the Federal Constitution which requires adequate compensation to be paid when is acquired. 12 D. The Defendant’s case [14] The 1st Condition Precedent. The Defendant submitted that the non-removal of the Express Condition did not render the Principal Agreement impossible to perform. In any event, the express condition was eventually removed by the issuance of the new Title (Exhibit D110). In view of the fact that the Express Condition has already been removed, the Plaintiff’s contention over being unconstitutional, impropriety/non-compliance of Section 124 national Land Code 1965 and delay in removal is academic. Hence the 1st Condition Precedent has been satisfied. [15] The 2nd Condition Precedent. The Defendant did not dispute because it has been fulfilled much earlier. [16] The 3rd Condition Precedent. There was no mistake or misrepresentation as to non-availability of road reserve to the Land earmarked in the plan because there was indeed a road reserve leading to Saranita's land. The plans (Exhibits D268, D269, D270A, D271 and D281) which were prepared by DW2 who is a qualified land surveyor had carried out the land survey clearly showed that there was in fact an approved road reserve leading to Saranita’s land. It has been fulfilled as an alternative 13 excess road was identified and approved by the Local Authority. These plans are uncontroverted evidence that the Plaintiff had failed to rebut. By virtue of the aforesaid approval therefore, the 3rd Condition Precedent has been satisfied and it should no longer become an issue. In this regard, there was no misrepresentation, nor was there a mistake as to the access road that was available to the Land at the time the Principal Agreement was signed. The costs of obtaining the alternative access road which was said to be exorbitant were in any event agreed to by the Plaintiff. [17] The Defendant submitted that there was an express acknowledgement by the Plaintiff in the reduction of the size of the Land as 86,018 square meters in the Final Title due to overlapping with the neighbouring land. When the Qualified Title was issued, the Land size was further reduced to 80,725 square metres due to the subdivision and variation of the condition on the title. The Defendant obtained the approval by the Power of Attorney (Exhibit P15) given by the Plaintiff which authorized the Defendant to submit the application. Exhibit P38 clearly allowed an authorized representative of the land proprietor to submit the application to vary the condition as well as the sub division. The Plaintiff did nothing at all to challenge said the approval by the Land Office. The issue 14 of alleged non compensation to the Plaintiff has nothing to do with the Defendant. It is the Plaintiff as the land owner to pursue this matter with the State Authority. [18] The Defendant submitted that although the completion date has been expressly stated in the Principal Agreement, 2nd Supplemental Agreement and 3rd Supplemental Agreement, there being no completion date was in actual fact caused by none other than the Plaintiff themselves. In fact, the Plaintiff had agreed to extend time to complete the project. There is no inordinate delay in the fulfillment of the Principal Agreement on the part of the Defendant. If there is delay, it was cause by the Plaintiff themselves and not the Defendant. The Defendant had given the Plaintiff no less than 8 years to fulfill the Conditions Precedent but they failed to do so. The Plaintiff cannot claim that the agreements are void for uncertainty when the situation was brought about by them. 15 E. The Defendant Counter Claim [19] The Defendant filed a counter claim for: [a] an order that the Principal Agreement is valid and binding; [b] a decree of specific performance to compel the Plaintiff to comply with all the terms and conditions of the Principal Agreement; [c] damages that damages be assessed; and [e] interests and costs. [20] The Defendant is at all times ready, willing and able to perform the Principal Agreement and all the Supplemental Agreements. Hence, a decree of Specific Performance ought to be granted. F. The Witnesses [21] The Plaintiff called one (1) witness, PW1 Puan Rabiah binti Abdul Rahman who is the Chief Executive Officer of the Plaintiff. [22] The Defendant’s witnesses are:

Ms. Liw Kwei Sunn (DW1) who is the Director of the Defendant; and

Ms. Yeo Suan Imm (DW2), Qualified Land Surveyor 16 G. The Issues [23] The issues to be determined in respect of this action as well as the Defendant's counterclaim as against the Plaintiff are as follows: [a] whether the Principal Agreement has become impossible to perform and/or is frustrated and/or is unduly delayed and for that reason, became void pursuant to s. 57(2) of the Contracts Act 1950; [b] whether the 2 conditions precedent ie: The 1st Condition Precedent as to removal of express condition and the 3rd Condition Precedent that is gaining the access road to the Land have been complied with to enable the Principal Agreement and its subsequent Supplemental Agreements to be performed or whether the requirements of the aforesaid conditions precedent have been waived by consent; [c] whether the Principal Agreement was void ab initio pursuant to Section 30 of the Contracts Act 1950; and [d] whether the Plaintiff is estopped from contending that the Principal Agreement and the Supplemental Agreement have become frustrated. 17 H. Evaluation and Finding [24] The core issue is whether the Principal Agreement was void ab initio on the basis that it becomes impossible to perform or frustrated or unduly delayed. The other issues will be dealt accordingly. [25] The two (2) Conditions Precedent in the Principal Agreement which caused much of the problems are shown in clauses 5 (1) (a) and (c) of the Principal Agreement. The clauses read as follows: Clauses 5.1 Upon execution of this Agreement the Proprietor shall promptly and in any event:

not later than thirty (30) days from the date of this Agreement apply in the appropriate National Land Code form for the removal of the express condition and secure the removal of the Express Condition or obtain a variation acceptable to the Developer for the implementation of this Agreement within One Hundred and Eighty (180) days from the date of such application; and

secure the withdrawal of the existing caveat lodged by the same caveator or MBC Sdn. Bhd. against the title to the said Land and discontinuance of any prohibitory orders not already expired lodged by MBC Sdn. Bhd. against the title to the said Land and all other encumbrances on the said land within Ninety (90) days; and 18

apply, within one (1) month from the date of this Agreement to the owner and to the developer of the neighbouring Lot 11541, Saranita Sdn Bhd (hereinafter called “Saranita”), and obtain and served on the Developer, within one hundred and eighty (180) days from the date of this Agreement, the consent of the neighbouring owner and Saranita to the Developer to develop part of the neighbouring Lot 11541 measuring approximately 5,600 square feet as an access road which is already ear marked by the Local Planning Authority for the access road as coloured “red” in the plan annexed hereto (hereinafter called the “Reserved Portion”) and to surrender the Reserved Portion to the relevant authority as a road reserved, If the consent shall be subject to any terms and conditions thereof then any such terms and conditions shall be subject to the approval of the Developer and all costs and expenses that may be imposed in obtaining the consent or in the consent aforesaid shall be borne and paid for by the Proprietor. failing which the Developer shall at the Developer’s option: -

be entitled to grant and the Proprietor shall agree to such extension(s) of time(s) for the Proprietor to secure the removal of full compliance of Clause 5.1

(a), (b) and (c) aforesaid in which event the payment of the rest of the instalments and interest, if any shall be extended by such duration of time so extended; and/or 19

(ii) If the Developer shall not grant any such extension(s) of time(s) as aforesaid or if any such extension(s) of time(s) shall be given but not complied with by the Proprietor of if the application by the Proprietor shall be rejected and if the Developer shall not, at the Developer’s discretion, with to appeal against the decision or if any such appeal is rejected, then the Developer shall be entitled at its option to either proceed with this Agreement or alternatively terminate this Agreement, in which event Clause 6.1 shall be applicable. [26] I am mindful with the guidelines set out by the Federal Court in Berjaya Times Squares Sdn Bhd v M concept Sdn Bhd [2010] 1 MLJ 597 when interpreting a private contract that the court is not confined to the 4 corners of the document. The Court is entitled to look at the factual matrix forming the background to the transaction which includes all material that was reasonably available to the parties and disregards any part of the background that is declaratory of subjective intent only. Finally, the Court should adopt an objective approach in when interpreting and in any event it must be construed in a way that gives the said contract business logic. At the end of the day, the correct test to apply is the test of a reasonable man and this is said to be the stamp of an objective approach as opposed to the subjective view of a party to the contract. Of course, emphasis is always placed on the words used in the contract but where the words used lead to 20 a conclusion that defies business logic, then the contract must be construed in such a way as to make it conform to business logic. (see Court of Appeal in Kwan Chew Holdings Sdn Bhd v Kwong Yik Bank Bhd [2006] 6 MLJ 554.) [27] Having examined the provision of the Principle Agreement, I gathered that the true intention of parties is none other except to develop a housing project on the Land on the arrangement of profit sharing basis and the responsibilities incumbent upon the parties. The conditions mentioned in Clause 5.1 of the Principal Agreement are that the Plaintiff to apply for and secure the removal or obtain a variation of an express condition endorsed on the title document for the Plaintiff's land and the other is the Plaintiff to obtain the consent of the adjacent land owner for access to the Land before the project proceeded for development. [28] Briefly what was submitted by the Plaintiff was that the express condition as in 1st Condition Precedent was unlawful while the 3rd Condition Precedent was a mistake of an essential fact on the ground that such access road did not exist. The Principal Agreement is to be declared null and void since both conditions precedents were impossible to perform. The former was unlawful and the latter was rendered void by mistake if not by misrepresentation. It was also submitted that the Defendant had failed 21 altogether to complete the transaction within a reasonable time as such the Principal Agreement should be void for inordinate delay in completion but also void for uncertainty and therefore the Plaintiff has justly terminated the Principal Agreement . [29] Before moving further with the issues above, I took consideration that the Defendant has objected to the issue which regards to unconstitutionality of the express condition as it was not pleaded by the Plaintiff but was raised for the first time in the Plaintiff’s closing submission. The Plaintiff raised an argument that the express condition on the title of the Land which required the Land to be developed in joint venture with the State Government of Selangor "ought to be found to be unconstitutional, invalid and void " as it was contrary to the State Constitution of Selangor and the Federal Constitution. It is not the function of the Government to do business and if they did, it may "open opportunities for corruption”. 22 [30] On the unconstitutionality issue of the express condition raised by the Plaintiff, with respect to the counsel, I find that it is not appropriate forum for the Plaintiff to ventilate such issues which are privy only between them and the States Government. The Plaintiff is and has always been the registered owner of the Land that was alienated to them which of course is subject to the express condition. The Plaintiff was therefore aware of the existence of the express condition on the title to the Land. This matter should had been challenged at the time the Land was alienated or at the very least the Plaintiff should have applied to the State Authority to revoke, amend or cancel the express condition prior to the signing of the Principal Agreement. However, this was not done by the Plaintiff as the land owner. No evidence was adduced at trial to prove they did. It is again worth bearing in mind that the Plaintiff's own pleaded case is premised on their claim that it was impossible to remove the express condition thus rendering the Principal Agreement void for frustration but now the Plaintiff now claims that the express condition is unconstitutional and should be invalid and void. 23 [31] From the evidences, the parties had agreed under the 2nd Supplemental Agreement that the 1st Condition would be satisfied by entering into the Tripartite Agreement where a draft copy of said agreement had been submitted to the Selangor State Government on 10 July 2008 for approval. The essence of the Tripartite Agreement was for the Plaintiff to share 50% of the Plaintiff's profits with the State Government. It is ironic on one hand the Plaintiff had accepted the non-removal of the express condition and resolve it by entering into the Tripartite Agreement with the State Government. In this instance, the Plaintiff is blowing hot and cold where on one hand had accepted to the non-removal but on the other hand disputed it. [32] Coming back to the issue relating to the 1st Condition Precedent. I on a considered view find that the Principal Agreement cannot be said to be void due to the non-removal of the express condition based on the following evidence: 24 [a] the parties had entered into the 2nd Supplemental Agreement to accept that the express condition cannot be removed. From the reading of the 2nd Supplemental Agreement, it is clear that the parties intended to proceed with the project under the tripartite agreement with the non-removal of the express condition. [b] the Plaintiff was willing to proceed with the development project with the express condition by proposing to extend the completion date within 36 months in the 4th Supplemental Agreement. [c] The Plaintiff had issued two (2) letters on 7.6.2016 and 14.6.2016 to the Defendant stating that they are willing to abide by the terms of the Principal Agreement and that they do not consider there to be any breach of the terms and do not treat the non-removal of the express condition to so significantly change the nature of the outstanding contractual rights. The Plaintiff own conduct by accepting the non-removal of the express condition has manifested its’ intention that the 1st condition precedent was no longer an issue. 25 [33] Most importantly, it is not disputed that the express condition has been removed by the issuance of the new title (Exhibit D110) on 27.10.2017 by the Registrar of Titles. The removal of the express condition was also admitted by the Plaintiff through the evidence of PW1. In view of the fact that the express condition has already been removed, I find that the Plaintiff’s contention that the express condition cannot be removed and the 1st Condition Precedent in the Principal Agreement is impossible to perform cannot be sustained. [34] I now deal with the 3rd Condition Precedent. Section 21 of the Contract Act 1950 reads “where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void”. The mistake under Section 21 of the Contracts Act is "mistake as to a matter of fact essential to the agreement", which vitiates the instrument and renders it void. The question arises here is whether the access road as coloured in red does not actually exist is a mistake of fact essential as to render the Principle Agreement as void. At this juncture, I am of the view that what is essential here is the availability of access road leading to the Plaintiff’s land. It was not the contention of both parties at that material time when signing the Principle Agreement were unaware of the non-existence access 26 road physically. Even there is an access road available as coloured in red, it could no longer be used as an access road by virtue of the fact that the development on the Saranita’s land was approved as a gated and guarded development. Moreover, there was a road reserve leading to Saranita’s land following the plan prepared by DW2. Upon the agreement by the Plaintiff for the Defendant to work on the finding of the alternative access road, the Defendant was able to secure the Local Authority approval for an access road to the Land which led to the approval for Planning Permission (Exhibit D238). Therefore even there was a mistake as claimed by the Plaintiff, I am of the view that such mistake is not essential to the Principle Agreement since there is an access road identified and approved by Local Authority to enable the project to take place. In this present case there is no mistake as to the availability of the road reserve as explained and confirmed by DW2. There was also no misrepresentation in the plan as the Plaintiff being the owner of the land is aware whether there was such a road reserve approved by the authority on the Land. The Plaintiff cannot claim that they had no knowledge of the access road on the Land. Moreover the plan was prepared by SAM Architect appointed by the Plaintiff. In fact PW1 had expressly admitted that the 3rd Condition Precedent has been satisfied and undertakes to bear the costs incurred 27 towards fulfilling the 3rd Condition Precedent as contained in the 2nd Supplemental Agreement. As such, I find that the 2nd and 3rd Supplementary Agreements were valid and binding on both parties. [35] As to the issue of reduction in size of the Land, I am also unable to agree with the Plaintiff’s contention that the Defendant has no authority to submit the application to vary the express conditions as well as sub-division of the Land. It is clear from Exhibit P38 and Clause 1.1(ii) and 1.3 of the Power of Attorney (Exhibit P15) has authorized the Defendant to make transactions relating to the Land. In fact all the application related thereto was approved by the Land Office and was not rejected for want of authority or been submitted by the wrong party. Clause 1.1 “makes, sign and submit application to the appropriate government departments, local authorities or other competent authority for the following approvals and to communicate, liaise, agree and compromise with and/or appeal to such authorities or any rejection or matters arising from such applications or approval (herein afetre collectively called “Approval”) 28

…

(ii) the conversion, amalgamation and/or the sub division of the Land and the issue of individual sub divided title to the sub divided lots and /or strata titles in accordance with the layout plans as approved by the authorities. Clause 1.3 To do all such acts and things, whatsoever as may be necessary or expedient in connection with the Approval and/or the Development. [36] It was observed that the Plaintiff did nothing to challenge the decision on the subdivision and variation of the express condition on the title when the Defendant eventually obtained such approval. At no material time, the Plaintiff has made any complaint to the Registrar of Titles on the impropriety of the Defendant securing the removal of the express condition. To note the alleged impropriety was only raised during trial. In my opinion, the Defendant has acted reasonably and prudently in making sure that the Principle Agreement is fulfilled and to commence the project. [37] The Plaintiff claimed that the reduction in size of the Land is unacceptable because it reduces their profit sharing entitlement as agreed in Clause 2 of the 2nd Supplemental Agreement. The non-compensation of the surrendering of the land an reduction in size is non-issue because it is 29 between the State Authority and the Plaintiff and not the Defendant. It is trite law that the parties to a contract are bound by the terms of the contract entered between them to perform their respective promises unless the performance is dispensed with or excuse under the law as in Section 38 Evidence Act 1950. The parties is therefore estopped from denying what had been agreed between them (See Court of Appeal in Anuar bin Abu Bakar v Samsuri bin Booyman [2016] 6 MLJ 96) [38] As to the issue of undue delay brought up by the Plaintiff, I find that such delay was never being raised by the Plaintiff throughout the 11 years period. In fact the Plaintiff has agreed for the extension of time by entering into the Supplemental Agreement. There were factors which caused the delay by both parties such as in getting the approval for the removal of express condition, the respond by the State Authority in relation to the Tripartite Agreement and the approval for the alternative access road to the Land. Through the conduct of the parties including the willingness of parties in concluding the Supplemental Agreements, I have no doubt that for all intents and purposes to ensure that the project is to be accomplished although the Plaintiff claimed that there was a delay of 11 years. Therefore, in my opinion if at all there was a delay, it was caused by the 30 parties and non-others. I find that the Principle Agreement cannot be void on frustration as claimed by the Plaintiff on the ground of undue delay. [39] I am also unable to agree with the Plaintiff that the Principle Agreement is void for uncertainty as there is no completion date. It is clear from Principle Agreement, 2nd and 3rd Supplementary Agreement that such date has been expressly stated but not religiously followed by the parties. In addition the 36 months extension of time to complete the project as mentioned in 4th Supplement Agreement signifies that the parties are aware of the completion date. On this score, the Plaintiff is also estopped from taking the position that the agreement has become frustrated. [40] The Plaintiff also claimed that the Principle Agreement is void on ground of frustration. I am reminded that for a contract to be void on the ground of frustration, that it must be without default of either party that 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. It cannot be said that the Principle Agreement is impossible to perform due to the non-removal of the express condition where it fact the express condition was removed and the parties had subsequently entered the 2nd 31 Supplemental Agreement. Even the Plaintiff intended to continue the Principle Agreement when they proposed to execute the 4th Supplemental Agreement to complete the development within 36 months and willing to abide by the terms of Principal Agreement and that the Plaintiff did not consider that there to be any breach of the terms. At this junctures, I find that the Plaintiff’s claim on the basis of frustration cannot be sustained. [41] Therefore, I am satisfied that all the conditions precedent, obtaining approval for the removal of the express condition, approval for the alternative access road, and the removal of any encumbrances have been executed and completed. The Principal Agreement and all the Supplemental Agreement are valid and binding on the parties. [42] Having heard the evidences before me and submissions from both learned counsels and after having given much consideration, I, on the balance of probabilities, finds that the Principle Agreement and all the Supplemental Agreement are valid and binding. Hence, the Plaintiff claim is therefore dismissed. 32 I. The Counterclaim [43] The Plaintiff submitted that the counterclaim is baseless and without merits. The Defendant has failed to comply with their obligations under the Principal Agreement when it failed to even apply for the Housing Developer's license Advertisement Permit to enable it to commence any construction works on the Land although more than 13 years have passed since signing of the Principle Agreement. [44] The Defendant submitted that it was the Plaintiff's own inequitable conduct in trying to renege on all the agreement they voluntarily entered into, and which they themselves had caused the delay. The Defendant is at all times ready, willing and able to perform the Principal Agreement and all the Supplemental Agreements since all the three (3) Conditions Precedent had been complied with. Hence a decree of Specific Performance ought to be granted to the Defendant as per the prayers in the counterclaim. [45] I observed that the Plaintiff conduct in this suit was with the intention that they no longer wishes to be bound by the terms of the Principal Agreement. The Plaintiff in their written submission recognizes that the Defendant has expended money on the Land but they will agree to pay the Defendant the expenses incurred out of the proceeds of sale of the Land at 33 the market value after it had been assessed by the court. The Plaintiff also affirmed that the reliefs claimed by them will not put the Defendant at a loss despite the Principal Agreement is declared void and unlawful. [46] I also observed that the Plaintiff’s action was motivated by the return of profit that to be shared with the State Government arising from the joint venture with the Defendant to develop the Land. The Plaintiff is not agreeable with the reduction of their entitlement due to the joint venture agreement with the State Government. This can be seen from the appeal made to the State Government in the Plaintiff’s letters dated 19.10.2016 (Exhibit P41), 25.10.2016 (Exhibit P42). When there was response from the State Government to the Plaintiff’s request for a reduction of the entitlement, the Plaintiff then request the Defendant to buy them out at market value and the entire sales proceeds to be paid to the Plaintiff. This is evidence in the solicitor’s letter dated 14.11.2016 (Exhibit P54) and the letter dated 19.12.2016 (Exhibit P56) [47] Since the Defendant is at all-time ready, willing and able to perform the Principle Agreement and all the Supplemental Agreements, I hereby allowed the Counterclaim by the Defendant for a decree of Specific Performance and ordered the Plaintiff to comply with the terms and condition of the Principal Agreement and to commence the development 34 project. With this Order of Specific Performance, no damages in lieu of or in addition to the Order and damages to be assessed is allowed. The Defendant had not led any evidence to proof that it had suffered damage nor produced any document at trial for their Counterclaim. It is trite law that a claimant seeking for damages has the burden of proving both facts and the amount of damages before he can recover them. (see Hock Huat Iron Froundry (suing as a firm) v Naga Tembaga Sdn Bhd [1999] 1 CLJ 89; Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1990] 2 CLJ Rep 635; and Sony Electronic (M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 1 CLJ 611) [48] Cost for the Defendant in the sum of RM60,000.00 is allowed subject to allocator. ROZANA ALI YUSOFF JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT Dated: 26 February 2019 35 Counsels for the Plaintiff: Encik V Jeya Kumar Dan Puan Nasyrah Samir Tetuan Kanesalingam & Co Peguamcara Plaintif Unit 3.3, Level 3, Wisma Bandar, 18, Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur Counsels for the Defendant: Karen Lee Foong Voon Dan Puan Sean Tan Tee Li Tetuan Wong Kian Kheong Peguamcara Defendan D1-U5-01, Solaris Dutamas, No.1, Jalan Dutamas 1, 50480 Kuala Lumpur 36 References:- Case(s) referred to:

Projek Perumahan Usaha sama Dengan Kerajaan Negeri 2. Berjaya Times Squares Sdn Bhd v M concept Sdn Bhd [2010] 1 MLJ 597 3. Kwan Chew Holdings Sdn Bhd v Kwong Yik Bank Bhd [2006] 6 MLJ 554 4. Anuar bin Abu Bakar v Samsuri bin Booyman [2016] 6 MLJ 96 5. Hock Huat Iron Froundry (suing as a firm) v Naga Tembaga Sdn Bhd [1999] 1 CLJ 89 6. Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1990] 2 CLJ Rep 635 7. Sony Electronic (M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 1 CLJ 611 Legislation referred to:

Contracts Act 1950 2. National Land Code 1965 3.