Gerak Harapan Sdn Bhd v Sunway Holdings Sdn Bhd (B-02(NCvC)(W)-1805-11/2023)

These appeals arise from two (2) suits filed in the Shah Alam High Court, namely Suit BA-22NCVC-286-06/2018 (Suit 286) and BA- 22NCVC-486-11/2019 (Suit 486), which were consolidated as they involved the same facts and plaintiff. Likewise, the appeals herein, filed by the respective defendants, which were heard on the same day before us, but were reserved for decision. This is now our Grounds of Judgment (GOJ).

Since this court had, on 26 April 2024, allowed these two (2) appeals to be consolidated, and reference be made to Appeal B02(NCVC)(W)-1805-11/2023 (Appeal 1805), therefore, for the purpose of this GOJ, whenever reference is made, it is meant to be in the documents in Appeal 1805.

Sunway Holdings Sdn Bhd (the Plaintiff), formerly known as Sungei Way Holdings Bhd, is a company incorporated in Malaysia and is part of the Sunway Group of Companies.

The Plaintiff is primarily involved in the quarry business. Its related companies are property developers.

In 1998, the Plaintiff's quarry business was run through its then subsidiaries, Sungai Way Quarry Group (SW Quarry Group).

SW Quarry Group includes, inter alia, Gerak Harapan Sdn Bhd (Gerak Harapan) and Hanson Quarry Products Sdn Bhd (Hanson Quarry), the respective Defendants (collectively referred to as the Defendants).

On 17 September 1998, the Plaintiff, together with a company known as Pioneer International Holdings Pty Ltd (PIH), agreed to participate in SW Quarry Group on a 50:50 joint venture basis to carry out quarry business in Malaysia through a joint venture company known as Sunway-Pioneer Quarry Sdn Bhd (SPQ/JVCO).

They entered into a Quarry Agreement dated 17 September 1998 (the Quarry Agreement).

Some of the integral terms of the Quarry Agreement are set down below as follows: a) PIH shall subscribe for 100,000 ordinary shares in SPQ/JVCO for RM179.9 million; b) Plaintiff shall subscribe for 100,000 ordinary shares in SPQ/JVCO for RM100,000.00; c) SPQ/JVCO shall be granted a loan facility by Pioneer International Limited for RM180 million; d) SPQ/JVCO shall use the subscription money and the Loan to acquire the Plaintiff's subsidiaries, the SW Quarry Group (Gerak Harapan and Hanson Quarry included), in order to undertake the JV Quarry Business; e) Plaintiff and PIH shall execute a Shareholders Agreement; and f) PIH shall be entitled to acquire the Plaintiff's entire shareholding in SPQ/JVCO at par for each share on the Option Exercise Date (PIH Call Option).

After the execution of the Quarry Agreement, PIH discovered that the rock reserves in the Quarry Land were less than anticipated. As a result, a Warranty Deed dated 26 March 1999 (the Newco A Warranty Deed) (Encl. 55 at page 196) was entered into between PIH, the Plaintiff, and SPQ/JVCO. The Newco A Warranty Deed sets out the warranties and representations made and indemnities given by the Plaintiff to PIH as contemplated in the Quarry Agreement.

Clause 5 is a material term of the Warranty Deed, and it states as follows: "5. QUARRIES

(a) The reserves in the Quarries are less than PIH anticipated. The parties agree that they will use reasonable endeavours to obtain for Newco A Group at least 29.5 million tonnes of reserves from sources other than the Quarries (the Additional Reserves) within 2 years from the Completion Date (the Due date).

(b) If the Additional Reserves are not obtained in accordance with paragraph (a) of this clause, SWH will pay to Newco A RM8.7 million. If some (but not all) of the Additional Reserves are obtained then the amount payable by SWH will reduce by the proportion that the amount of the Additional Reserves actually obtained bears to 29.5 tonnes.

(c) SWH must make payment under this clause within 10 Business Days of the Due Date. Payment will be made in accordance with clause 3.4 and the terms of that clause will apply as if SWH was liable for a breach of a Newco A Warranty.

Six (6) months later, on 26 March 1999, the Plaintiff, PIH, and SPQ/JVCO executed a Shareholders Agreement (the Shareholders Agreement) for the corporate governance of SPQ/JVCO to record the terms governing the ownership, management, and control of SPQ/JVCO and its subsidiaries, as well as the rights and obligations of the Plaintiff and PIH as shareholders of SPQ/JVCO.

Clause 37 of the Shareholders Agreement is integral in understanding this case and is reproduced below for ease of reference: "Clause 37- Exhausted Quarries It is anticipated that the useful life of several quarries owned by the Company or its Subsidiary will end ("Exhausted Quarries") in the short to medium term. The parties agree that the Company and its relevant Subsidiaries shall concurrently with the execution of this Deed grant SWH an option to require the Company and/or its relevant Subsidiaries to sell the land in which an Exhausted Quarries is situated ("the Quarry Land"), which option shall be exercisable by SWH in respect of each of the Quarry Land upon the cessation of commercial quarry production on such Quarry Land, such cessation to be in the reasonable opinion of the directors of the relevant Subsidiaries. Towards the foregoing, the parties hereto hereby agree that the Company and/or its Subsidiaries shall not in any manner whatsoever mortgage, lease, charge or otherwise dispose or encumber the Quarry Land and that such option shall continue to be exercisable by SWH notwithstanding SWH's ceasing to be a shareholder of the Company. Unless the Parties otherwise agree, the terms of such purchase will be:

(a) the consideration will be RM1;

(b) all the costs associated with the purchase (including all legal costs, stamp duty, and tax of any kind) will be paid by SWH;

(c) the vendor gives no warranties of any kind relating to the Quarry Land or its fitness for any purpose; and

(d) SWH will undertake any remediation of the Quarry Land required by any Authority or law and indemnify the vendor in relation to any claim arising from that remediation (or failure to remediate).

(e)

In due course, the Defendants had entered into various Option Agreements dated 26 March 1999 (the Option Agreements) with the Plaintiff for the Cheras Quarry Lands.

Clause 1.1 of all the Option Agreements (Encl. 55 at page 120) contains this specific explanation on the definition of "Cessation Date": "Cessation Date" means the date when all extractable rock reserves on the Quarry Land have been removed, which is to be determined, if at such relevant time the Grantor is no longer Subsidiary of SPQ, in the reasonable opinion of the directors of the Grantor; otherwise to be determined in the reasonable opinion of the directors of SPQ. "the Option Period" means the period;

(a) Commencing on the Cessation Date; and

(b) Ending at 10.00 am (Malaysian time) on the expiry of a period of six (6) months from the Cessation Date."

Clause 5 of the Newco A Warranty Deed dated 26 March 1999 had specifically stated that the Plaintiff is bound to deliver the Additional Reserves by 25 March 2001. However, the Plaintiff did not deliver the Additional Reserves on the appointed date, and a request to extend the deadline was made.

The Plaintiff, PIH, and SPQ/JVCO entered into an Additional Reserves Supplementary Agreement dated 14 March 2001 (Supplementary Agreement) (Encl. 55, page 314), where the deadline for delivery of the Additional Reserves was extended to 27 December 2001. Failure to deliver would entail the Plaintiff paying RM8,700,00.00 to PIH.

Clauses 3 and 4 of the Supplementary Agreement are crucial. They read as follows: "3. SWH'S COVENANTS AND UNDERTAKINGS FOR EXTENSION

(a) SWH confirms that SWH has requested PIH and SPQ to extend the deadline for delivery of the Additional Reserves to 27 December 2001 and has undertaken to deliver to PIH as security a Bank Guarantee to be effective and valid for an uninterrupted period from the date the Bank Guarantee is delivered to PIH until 31 December 2001. In the event the Additional Reserves or any part thereof are not delivered in the manner as stated in Clause 5 of the Newco A Warranty Deed by 27 December 2001, PIH shall be absolutely entitled (without prejudice to any of its other rights and remedies) to call on the Bank Guarantee for payment of the full sum secured thereby or a sum equivalent to the proportion of the amount of the Additional Reserves not delivered, such payment to be made to PIH or to SPQ or such other person as PIH may in its absolute discretion stipulated.

(a) Save for the above modifications to Clause 5 of the Newco A Warranty Deed, the other terms and conditions of the Newco A Warranty Deed shall continue to have full force and effect and, in particular nothing herein shall affect limit or extinguish the obligation and liability of SWH to pay the sum of Ringgit Malaysia Eight Million and Seven Hundred Thousand (RM8,700,000.00) or such part thereof to PIH or to SPQ or such other person as PIH may in its absolute discretion stipulate in the event the Additional Reserves shall not be delivered by 27 December 2001 or in the event the extension granted herein shall cease to be available to SWH in the circumstances as referred to in Clause 3(a) and (b) above respectively."

On 10 April 2001, PIH exercised the PIH Call Option ahead of time to acquire the Plaintiff's entire shareholding in SPQ/JVCO, whereupon the Plaintiff ceased to be a shareholder of SPQ/JVCO.

Pursuant to PIH's exercise of the PIH Call Option, the parties to the Shareholders Agreement executed the SPQ Restructure Agreement on 10 April 2001 (SPQ Restructure Agreement) to bring an end to the JV Quarry Business and Shareholders Agreement.

Notwithstanding the above-said exercise, Gerak Harapan and Hanson Quarry, i.e., the Defendants herein, continued with quarry operations at the Cheras Quarry Lands.

Meanwhile, the 12,000 residents living in the vicinity of the quarry operations at the Cheras Quarry Lands were unhappy with the quarry operations conducted by the Defendants'. The residents living at Mahkota Residence, Mahkota Garden, and Vista Hills complained that they were in danger from the quarry works, that the dust and noise pollution affected their health and quality of life, and that the quarry works were causing damage to their properties. The residents staged a peaceful public protest, calling on the Selangor Government to close the quarry operations carried out by the Defendants.

As a result of the residents' grievances, the District Land Officer from the local Land Office held meetings with the director of Gerak Harapan and all parties involved and thereafter submitted a paper to the Mesyuarat Majlis Kerajaan Negeri Selangor (MMKN) for the State Government to make a decision regarding the residents' complaints, objections, and protests against the quarry operations.

On 25 November 2015, the MMKN decided that the quarry operations to extract the rocks at the Cheras Quarry Lands shall be shut down immediately after 1 March 2017. However, MMKN had approved the alienation of a replacement quarry site for both the Defendants to quarry at the replacement quarry site.

On 15 September 2015, the director of the quarry owner cum permit and license holder of Gerak Harapan through a company named Mestika Pujangga Sdn Bhd (Mestika Pujangga) executed a Supplementary Agreement (as amended by the Supplemental to Quarry Agreement dated 15 September 2015) with Hanson Quarry to allow Hanson Quarry to carry out quarrying activities on the replacement quarry site for a period of 30 years following the shut down of the quarry operations to extract rocks at the Cheras Quarry Lands.

The Plaintiff, having knowledge of the ensuing events, especially of the shutdown of the quarry operations at the Cheras Quarry Lands by the Authorities, did on 20 March 2017 exercise the Options and formally requested the Defendants to sell off the Cheras Quarry Lands to the Plaintiff for RM1.00.

The Defendants have refused to recognise the Plaintiff's exercise of the Option, citing that the Plaintiff had exercised the said options prematurely since there are still extractable rocks in the earth and the cessation of quarry operations at the Cheras Quarry Lands is temporary only.

Given that their demands were not met, the Plaintiff filed Suit 286 and Suit 486 in the High Court.

The Plaintiff's case rests on the basis that they were right to exercise the options to purchase on 20 March 2017, as the Authorities had shut down the quarry operations at the Cheras Quarry Lands permanently, in that, extraction of rocks from the earth is no longer possible. The Plaintiff states that the Defendants must comply with the terms of Clause 37 of the Shareholders Agreement upon cessation of commercial quarry production on the Land.

The Defendants dispute the Plaintiff's claim and state, among others, that the Plaintiff has wrongfully and prematurely exercised the options to purchase the lands on 20 March 2017 since there are still extractable rocks in the earth and the cessation of quarry operations at the Cheras Quarray Lands is temporarily only and as such, the Defendants are entitled to refuse to recognise that the Plaintiff has exercised the Option validly.

The Defendants have filed a Counterclaim for the following reliefs:

(i) A declaration that:

(a) The Option Agreements dated 26 March 1999 subsist only for so long as the Shareholders Agreement dated 26 March 1999, which governs it continue to subsist;

(b) The Plaintiff has breached the SPQ Restructure Agreement dated 10 April 2001 and the Option Agreements dated 26 March 1999; and

(c) The Plaintiff's exercise of the Option Agreements dated 20 March 2017 is of no effect;

(a) the Plaintiff's breach of the Restructure Agreement dated 10 April 2001 and the Option Agreements dated 26 March 1999; and

(b) wrongful lodgement of caveat;

(v) such other order as this Honorable Court deems fit and proper including all further necessary directions. Findings by the learned High Court Judge

In allowing the Plaintiff's claim in both Suits, the learned High Court Judge (HCJ) found, among others, the following:- a. The Court accepted that the reasons given for the finality of the Authority's decision were credible and of merit, particularly as Dato' Mohd Jusni bin Hashim (PW2) had confirmed that the Selangor State Government had approved a replacement quarry site in substitution for the Cheras Quarry Lands. The alienation of a replacement site and the grant of quarrying rights for 30 years to Hanson Quarry, as provided under the Supplementary Agreement (as amended by the Supplemental to Quarry Agreement dated 15 September 2015), could only have occurred if the decision to permanently shut down quarry operations at the Cheras Quarry Lands was final and conclusive. PW2's evidence was accepted as he testified both as the Land Officer in charge of the Hulu Langat district and as the agent of MMKN to convey its decisions and acts. b. The Court accepted the explanation that the replacement quarry site was alienated to Mestika Pujangga, instead of the Defendants, due to the bumiputera status of the land, and this was supported by Mr. Daniel Joseph Ahern (DW2)'s admission that the bumiputera shareholder of Gerak Harapan was also the shareholder of Mestika Pujangga. c. In contrast, the Defendants failed to adduce any contemporaneous documentary evidence to support their contention that the Authority's decision was not final. Their witnesses were unable to rebut PW2's oral testimony. PW2 was an independent subpoenaed witness and the officer directly in charge of closing the Cheras Quarry Lands and arranging the alienation of the replacement site. There was therefore no reason to disbelieve his evidence. d. The Plaintiff had, on a balance of probabilities, proven that the Authority's decision that the Defendants could no longer extract rocks from the Cheras Quarry Lands was final and conclusive. e. The Court noted that Clause 37 of the Shareholders Agreement expressly provided that the Options shall continue to be exercisable by the Plaintiff even after the Plaintiff ceased to be a shareholder of SPQ/JVCO. f. The SPQ Restructure Agreement was not intended to diminish or invalidate the previous agreements entered into by the parties. From the clear and plain wording of Clause 37, the Options were intended to remain effective notwithstanding Clause 6.1, which merely identified three areas to be continued. g. The Court's view was fortified by the conduct of the parties, particularly when Gerak Harapan executed a supplementary agreement on 11 January 2012 to rectify a typographical error in the Option Agreements dated 26 March 1999 regarding the title number of the option land. The strong inference was that the parties had no intention to revoke the option, as no such rectification would have been undertaken otherwise. h. Clause 3.2 of the Options clearly preserved the Plaintiff's right to exercise the option notwithstanding the cessation of its status as a shareholder of SPQ/JVCO or the termination of the Shareholders Agreement, and there was no other way to read and understand that clause. The Defendants had failed to rebut this finding, and their contention that the SPQ Restructure Agreement revoked the Options Agreement was misconceived. The Court therefore found in favour of the Plaintiff on this issue. i. All the relevant agreements are commercial contracts and must be interpreted using business common sense. The contracts were entered into in a business context and must be construed accordingly. j. A commercial contract is to be interpreted through its language to determine the intention of the parties, viewed from the perspective of a reasonable person apprised of the background, facts, and circumstances of the case. These considerations fortified the Court's view that the implied term for the "Cessation Date" meant the date when the Grantor could no longer extract rock reserves from the Quarry Land by operation of law or by decisions of the Authorities. k. The Court concluded that there was no other interpretation of the agreements except that the Defendants' interest in the Quarry Land was confined only to the rock reserves capable of being extracted and not in the land per se. Once the Defendants ceased to be capable of commercial production, the Plaintiff was entitled to exercise its irrevocable options to buy back the land at RM1.00 per lot. I. The Defendants, through their conduct, had accepted the Authority's decision as final and conclusive, particularly since they had never appealed or challenged the closure decision, had vacated the Cheras Quarry Lands, and had moved their operations to the replacement quarry site. m. This conduct led the Court to conclude that Mr. Hamzah bin Abdul Majid (deceased), as the director and shareholder of Mestika Pujangga, had acted with the authority and approval of the other directors and shareholders when entering into the agreement relating to the replacement quarry site. n. Finally, it is both improbable and striking that the Defendants could claim to be unaware of the Authority's decision to relocate their quarry operations to the new site.

Dissatisfied with the decision, the Defendants filed their respective appeal to the Court of Appeal, vide Appeal 1805 and Appeal B02(NCVC)(W)-1809-11/2023 (Appeal 1809)

Before us, the issues raised by the Defendants, as the appellants in these appeals, are: a. The learned HCJ erred in finding that Clause 37 and the Option Agreements survived the SPQ Restructure Agreement. b. The Plaintiff's exercise of the Option is premature - 'Cessation Date' not triggered. c. No basis to imply a new definition of "Cessation Date". d. The Plaintiff's exercise of the Option was invalid and premature. e. The Authority's decision is not final and the Defendants have no obligation to accept Bukit Enggang as a replacement quarry site. f. The Plaintiff's caveats are invalid. Our Findings The Authority's decision is not final, and the Defendants have no obligation to accept Bukit Enggang as a replacement quarry site

Notwithstanding the above enumerated issues, we will deal with this issue first. The Defendants submit that the Authorities' decision on the cessation of the quarry operation at the Cheras Quarry Lands is not final and are of the view that the learned HCJ erred in placing the burden on the Defendants to prove the non-finality.

Having perused the evidence produced before us, we are of the view that the decision of the Authorities in ordering the cessation of the quarry operation at the Cheras Quarry Lands is final.

We find the evidence of Dato Mohd Jusni bin Hashim (PW2), the Pegawai Daerah of Pejabat Daerah Tanah Petaling, was of great importance as he was then the Penolong Pegawai Daerah (Bahagian Tanah) of Pejabat Tanah Daerah Hulu Langat between 2015 and 2018, who: - a) was the officer in charge of dealing with the complaints made by the residents against the quarry operations at the Cheras Quarry Lands; and b) attended negotiations with the parties to resolve the problem, amongst others, with the late En. Hamzah bin Abdul Majid, the then Director of Gerak Harapan, which was the Quarry owner cum permit and license holder at the Cheras Quarry Lands.

Based on PW2's testimony, which was supported by the documentary evidence that was tendered into court, we find that, he was the officer who prepared and submitted a paper to MMKN for the State Government to make a decision pursuant to the residents' complaint and protests regarding the quarry operations at the Cheras Quarry Lands.

According to PW2, MMKN, during its $ 35^{\mathrm{th}} $ meeting of 2015 held on 25 November 2015, decided that the quarry operations to extract the rocks at the Cheras Quarry Lands shall be shut down immediately after 1 March 2017. Further, MMKN had approved the alienation of a replacement quarry site to Mestika Pujangga, for the Defendants to quarry at the replacement quarry site upon the permanent closure of the quarry operations at the Cheras Quarry Lands.

The replacement quarry site is a Malay reserved land. It is for this reason that the replacement quarry site was alienated to Mestika Pujangga, which shared the same Bumiputera director with Gerak Harapan (the late Encik Hamzah bin Abdul Majid). This arrangement arose as a result of the agreement reached following the meetings between all stakeholders conducted by PW2 inter alia with the late Encik Hamzah bin Abdul Majid, who was the director of Gerak Harapan.

PW2 gave his testimony as follows: - "[S21] Tolong rujuk kepada surat Pejabat Daerah/Tanah Hulu Langat dim/s 203-204 CABD 2/Lamp.78. Mengapakah tapak gantian perusahaan kuari Defendan dan Hanson Quarry Products Sdn Bhd bagi Tanah-tanah Kuari di Mukim Cheras diberi kepada Mestika Pujangga Sdn Bhd dan bukan kepada Defendan dan Hanson Quarry Products Sdn Bhd? [J21] Tapak Gantian Perusahaan Kuari yang telah dikenalpasti untuk dlberi sebagai tapak gantian perusahaan kuari Defendan dan Hanson Quarry Products Sdn Bhd bagi Tanah-tanah Kuari di Mukim Cheras adalah tanah yang dipegang dibawah hakmilik H.S.(D) 173856 No. PT 13752 Mukim Ulu Langat, Daerah Ulu Langat Negeri Selangor. Tetapi tanah ini adalah "Tanah Simpanan Melayu". Oleh yang demikian ia telah dipersetujui oleh kesemua pihak berkenaan bahawa tanah ini akan diberimilik kepada syarikat pemegang saham Melayu syarikat Defendan iaitu Mestika Pujangga Sdn Bhd, dimana Mestika Pujangga Sdn Bhd akan memasuki suatu perjanjian dengan Defendan atau Hanson Quarry Products Sdn Bhd, untuk membenarkan mereka menyambung dan menjalankan operasi pengkuariannya di Tapak Gantian Perusahaan Kuari. [S22] Mengapa Kerajaan Negeri membuat keputusan untuk meluluskan permohonan pemberian pindahmilik Tapak Gantian Perusahaan Kuari kepada Mestika Pujangga Sdn Bhd? [J22] Kerajaan Negeri membuat keputusan tersebut kerana penutupan operasi pengkuarian untuk mengekstrak bahan-bahan batuan Defendan dan Hanson Quarry Products Sdn Bhd di Tanah-tanah Kuari di Mukim Cheras. Dalam kata lain, Kerajaan Negeri membuat keputusan tersebut supaya Defendan dan Hanson Quarry Products Sdn Bhd boleh meneruskan operasi pengkuarian mereka untuk mengekstrak bahan-bahan batuan di Tapak Gantian Perusahaan Kuari melalui Mestika Pujangga Sdn Bhd selepas penamatan dan penutupan operasi kuari di Tanah-tanah Kuari di Mukim Cheras akibat pengaduan penduduk-penduduk sekitarnya." (emphasis added) (See: Encl. 9, pages 181-182)

PW2 testified that MMKN had decided that the quarry operators at the Cheras Quarry Lands shall immediately shut down their quarry operations without waiting until 1 March 2017, if all approvals and permits to quarry at the replacement quarry site are secured before 1 March 2017. All of these were captured in the following contemporaneous documents, namely: a) Pejabat Tanah Daerah Hulu Langat's letter dated 22 April 2016 to Pengerusi Penduduk Mahkota Residence & Another; (See: Encl. 12, pages 30 and 31); and b) Pejabat Tanah Daerah Hulu Langat's letter dated 31 January 2017 to Gerak Harapan. (See: Encl.12, page 35).

For ease of reference, the Pejabat Tanah Daerah Hulu Langat's letter dated 22 April 2016 to Pengerusi Penduduk Mahkota Residence & Another is reproduced herein: (See: Encl.12, pages 30 and 31) "PEMAKLUMAN KEPUTUSAN KERAJAAN NEGERI BERKENAAN PELANJUTAN TEMPOH OPERASI KUARI HANSON QUARRY PRODUCT (M) SDN BHD DI BATU 11, MUKIM CHERAS, DAERAH HULU LANGAT Saya dengan segala hormatnya merujuk kepada perkara di atas.

Untuk makluman pihak Tuan, Majlis Mesyuarat Kerajaan Negeri ke 35/2015 yang diadakan pada 25 November 2015 yang telah disahkan oleh Majlis Mesyuarat Kerajaan Negeri ke 36/2015 pada 2 Disember 2015 telah menimbang dan meluluskan permohonan mengenakan syarat-syarat kelulusan dan bayaran ke atas kelulusan pemberimilikan kepada Mestika Pujangga Sdn Bhd seluas lebih kurang 80.937 hektar (200 ekar) bagi tujuan tapak ganti perusahaan kuari dan permohonan pelanjutan tempoh operasi kuari Gerak Harapan Sdn Bhd di Batu 11, Mukim Cheras, Daerah Hulu Langat sehingga 1 Mac 2017.

Kelulusan MMKN juga menyatakan bagi permohonan pelanjutan tempoh kuari sedia ada milik Gerak Harapan Sdn Bhd, proses kelulusan Environmental Impact Assessment (EIA) hendaklah diselesaikan dan operasi kuari sedia ada mesti segera ditamatkan dan diberhentikan sebaik sahaja proses kelulusan dan permit operasi kuari baru oleh Mestika Pujangga Sdn Bhd di Mukim Hulu Langat selesai tanpa menunggu sehingga Mac 2017.

Pelanjutan tempoh operasi kuari ini pada dasarnya dipertimbangkan oleh Kerajaan Negeri kerana kelulusan dan permit operasi kuari yang baru memerlukan kelulusan permohonan Environmental Impact Assessment (EIA), Letter of Authorisation of Quarry (LAQ), Permit Bahan Batuan (4C), Lesen perniagaan, Lesen Timbang dan Sukat serta perolehan bekalan air dan elektrik. Sekiranya operasi ditamatkan sebelum kuari baru dapat dimulakan akan menyebabkan seramai lebih kurang (80) orang pekerja kehilangan pekerjaan seterusnya menyebabkan kehilangan punca pendapatan.

Di samping melihat kepada aduan penduduk, Kerajaan Negeri juga melihat kepada aspek perusahaan kuari yang masih mempunyai baki tempoh pajakan sehingga tahun 2021 untuk tujuan perusahaan kuari. Setelah menimbang dan meneliti aspek-aspek kesejahteraan penduduk khususnya penduduk Taman Mahkota Cheras, dan Taman Vista Hills serta pengoperasian kuari oleh Hanson Quarry Products Sdn Bhd, Kerajaan Negeri bersetuju melanjutkan tempoh operasi kuari sehingga 1 Mac 2017 bagi memberi ruang pengusaha kuari membuat persediaan awal pembukaan kuari baru. Operasi kuari Hanson di Batu 11, Mukim Cheras perlu dihentikan selewatnya pada 1 Mac 2017 atau sebaik sahaja permit operasi kuari yang baru diperolehi tanpa menunggu tarikh 1 Mac 2017 tersebut.

Pejabat Tanah Hulu Langat melalui surat bertarikh 23 Mac 2016 telah mengarahkan agar pihak pengusaha kuari mengemukakan Pelan Operasi Penutupan Pengkuarian dengan memperincikan langkah-langkah/kaedah penutupan sebelum/pada 1 Mac 2017 selaras dengan keputusan Kerajaan Negeri. Tujuan pelan penutupan ini adalah sebagai platform kawalan Pejabat Tanah Hulu Langat dalam memastikan operasi pengkuarian ini dapat ditamatkan dalam tempoh yang ditetapkan. Sekian, terima kasih." (emphasis added)

The Pejabat Tanah dan Daerah Hulu Langat's letter dated 31 January 2017 to Gerak Harapan reads: (See: Encl. 12, page 35) "PERMOHONAN MELANJUTKAN TEMPOH MENJALANKAN AKTIVITI-AKTIVITI PEMINDAHAN BAHAN BATUAN KUARI OLEH TETUAN GERAK HARAPAN SDN. BHD. YANG BERTEMPAT DI LOT (16060, 28436 & 28437), BATU 11, JALAN CHERAS 43200 KAJANG, SELANGOR DARUL EHSAN. Dengan hormatnya saya merujuk kepada perkara diatas dan surat tuan bertarikh 10 Januari 2017.

Dimaklumkan bahawa permohonan tuan untuk melanjutkan tempoh pengeluaran bahan batuan (batu kuari) tersebut tidak dapat dipertimbangkan atas sebab-sebab seperti berikut:- i Merujuk kepada keputusan Majlis Mesyuarat Kerajaan Negeri Selangor (MMKN) ke 36/2015 pada 2 Disember 2015 hanya membenarkan perlanjutan tempoh operasi sehingga 1 Mac 2017 sahaja. Selepas tarikh tersebut, operasi pengkuarian perlu ditutup serta merta; dan ii Kelulusan Skim Kuari daripada Jabatan Mineral dan Geosains Malaysia Negeri Selangor (JMG) hanya sehingga 1 Mac 2017. Sekian, terima kasih." (emphasis added)

With respect to the MMKN's decision ordering the shutting down of the quarry operations at the Cheras Quarry Lands, as evidenced in paragraph 2 of Pejabat Tanah Daerah Hulu Langat's letter dated 31 January 2017 to Gerak Harapan, we find that the finality of the same was unequivocally confirmed in the letter issued by Pejabat Daerah/Tanah Hulu Langat to the Plaintiff dated 2 August 2017 which reads as follows: - "Dengan segala hormatnya saya merujuk kepada perkara di atas dan surat tuan bertarikh 11 Julai 2017 adalah berkaitan.

Pejabat ini mengesahkan seperti berikut: - i Bahawa pelanjutan tempoh operasi kuari adalah sehingga 1 Mac 2017 sahaja dan operasi kuari perlu ditutup serta merta bagi tanah-tanah tersebut selaras keputusan Majlis Mesyuarat Kerajaan Negeri Selangor Ke 35/2015 yang diadakan pada 25 November 2015 yang telah disahkan oleh Majlis Mesyuarat Kerajaan Negeri Selangor Ke 36/2015 pada 2 Disember 2015; ii Bahawa hanya pemindahan dan pengeluaran bagi stockpiles bahan batuan sahaja dibenarkan dalam tempoh 24 Mei 2017 sehingga 24 Ogos 2017 selaras keputusan Majlis Mesyuarat Kerajaan Negeri Selangor Ke 17/2017 yang diadakan pada 24 Mei 2017 yang telah disahkan oleh Majlis Mesyuarat Kerajaan Negeri Selangor Ke 18/2017 pada 31 Mei 2017.

Dimaklumkan juga bahawa keputusan di para 2 adalah muktamad." (emphasis added) (See: Encl. 12, page 53)

On this issue, PW2 testified as follows: - [S20] Defendan mengatakan bahawa keputusan Kerajaan Negeri supaya Defendan dan Hanson Quarry Products Sdn Bhd menutup operasi pengkuarian mereka untuk mengekstrak bahan-bahan batuan diatas Tanah-tanah Kuari di Mukim Cheras dengan serta merta pada 1 Mac 2017 bukan suatu keputusan yang muktamad dimana Kerajaan Negeri akan pada masa depan membenarkan Defendan dan Hanson Quarry Products Sdn Bhd menjalankan semula operasi pengkuarian untuk mengekstrak bahan-bahan batuan di atas Tanah-tanah Kuari di Mukim Cheras. Adakah pengataan Defendan ini benar? [J20] Pengataan Defendan ini tidak benar kerana: -

(a) Sepertimana yang telah disahkan secara bertulis dalam surat Pejabat Daerah/Tanah Hulu Langat bertarikh 2 Ogos 2017 dan 1 November 2017 di m/s 226-227 dan 255. CABD 2/Lamp.78, keputusan Kerajaan Negeri menutup operasi pengkuarian untuk mengekstrak bahan-bahan batuan diatas Tanah-tanah Kuari di Mukim Cheras dengan serta merta pada 1 Mac 2017 adalah suatu keputusan yang muktamad; dan

(b) Kerajaan Negerl telahpun memberi Tapak Gantian Perusahaan Kuari sebagai ganti untuk penutupan operasi kuari untuk mengekstrak bahan-bahan batuan Defendan dan Hanson Quarry Products Sdn Bhd diatas Tanah-tanah Kuari di Mukim Cheras, sepertimana yang dinyatakan dalam surat Pejabat Daerah/Tanah Hulu Langat di m/s 203-204 CABD 2/Lamp.78." (emphasis added) (See: Encl. 9, pages 180-181)

On the issue of whether the decision of the State Government was a final one, PW2, when cross-examined, had stated as follows: - "KR : Now, saya rujuk sekarang kepada jawapan Dato' di soalan 20 di mana isu keputusan muktamad. Saya katakan kepada Dato' adakah ia keputusan muktamad atau tidak adalah bidang kuasa pihak MMK, bukan bidang kuasa Pejabat Tanah. Setuju? PW2: Keputusan muktamad adalah melalui MMKN. KR : Alright. Now, dan di hadapan Mahkamah tak ada bukti yang menunjukkan keputusan MMKN adalah muktamad. Tak ada minit-minit MMKN di hadapan Mahkamah. Setuju? PW2: Saya kurang setuju. Memang betul tak ada pembuktian melalui dokumen. Tapi dokumen tersebut sulit dan kita menulis bagi pihak MKN. KR : Dato', awak menulis betul. Tapi kalau lihat jawapan pun tidak dinyatakan di muka surat 255 keputusan itu muktamad. Hanya satu surat nyatakan ia muktamad iaitu surat sebelum itu. Soalan saya, siapa yang boleh buat keputsan itu, hanya MKN. Betul? PW2: Betul. KR : Now, walau pun dikatakan minit-minit adalah sulit ia masih boleh ditunjukkan ke Mahkamah. Adakah Dato' tahu yang itu? Kalau tak tahu katakan tak tahu. PW2: Saya tak tahu yang itu. KR : Ok. Now, Dato' jadi saya katakan sehingga MMK atau minit minit MMK menunjukkan keputusan adalah muktamad, ayat dalam surat-surat dan pandangan Dato' adalah tidak mengikat. Badan yang paling atas yang boleh buat keputusan itu ialah MMK. Setuju? PW2: Saya kurang setuju sebab keputusan muktamad ini kerana kita dah bagikan dia tapak ganti. Sebab itu mereka kena tutup." (emphasis added) (See: Encl. 7, pages 38-40)

PW2 had explained in paragraphs 39 to 41 above, the reason why the replacement site was not alienated to Gerak Harapan or Hanson Quarry but was alienated to Mestika Pujangga.

In fact, Mr Daniel Joseph Ahern (DW2), who was the present Managing Director of the Defendants, had admitted during crossexamination that Bumiputera shareholder of Gerak Harapan is the shareholder of the Bumiputera company, Mestika Pujangga. (See: Encl. 9, page 44)

Further, we find that, because of the alienation of a replacement quarry site for the Defendants, their operation at the Cheras Quarry Lands had to be terminated, was also borne out by the following part of PW2's testimony during his cross-examination. "KR : Right. Now, akibat daripada pemberian tanah kepada Mestika Pujangga maka MMKN telah membuat keputusan kuari itu akan tutup, setuju? PW2: Ya, setuju." (emphasis added) (See: Encl. 6, page 164)

In proving the non-finality, the Defendants attempted to argue that the decision to finally shut down the quarry operation at the Cheras Quarry Lands can be changed by a different government elected. The Defendants further argued that with the advancement of technology, it may be able to extract rocks in a more environmentally and resident friendly approach, thus preserving the possibility of them returning to the Cheras Quarry Lands to resume the quarry operation there. With that possibility, allegedly, the cessation of the quarry operation at the Cheras Quarry Lands is not final in nature.

We find that this argument is a mere speculation that is incapable of displacing the prima facie evidence expressly borne out in the Land Office's letter dated 2 August 2017, and of discharging the Defendants' burden in proving non-finality.

The fact that the Defendants have not carried out further quarry operations at the Cheras Quarry Lands from 1 March 2017 to date speaks volumes as to the finality of the cessation of the quarry operation.

Upon hearing the evidence, the learned HCJ made a finding that the Defendants' argument has no merit. As a matter of fact, the quarry operation at the Cheras Quarry Lands had ceased, and an alternative site had been alienated for the Defendants to resume their quarry operation. We are therefore in concurrence. (See: Encl. 39, page 48)

Further, we find that the Defendants seek to distance themselves from the fact that they had accepted the alienation of the replacement quarry site to Mestika Pujangga and entered into a quarry agreement with Mestika Pujangga to carry out the quarry operation at the replacement site. The Defendants alleged that they have no knowledge that the replacement site is, in fact, alienated as a replacement for the Cheras Quarry Lands.

However, we are of the view that the Defendants' submission cannot be true for the following reasons: - a) The Quarry Agreement dated 15 September 2015, entered into between Hanson Quarry and Mestika Pujangga (Mestika Pujangga's Quarry Agreement), and the Supplemental Agreement dated 21 April 2016 to the Quarry Agreement dated 15 September 2015, cannot be contracts entered into lightly by Hanson Quarry. (See: Encl. 56, pages 106 and 133) b) Hanson Quarry must have known that the replacement site, which is the subject matter of the above agreements, is alienated by the Authorities following the Authorities' decision to shut down the quarry operation at the Cheras Quarry Lands. c) Clause 3A of the Mestika Pujangga's Quarry Agreement, which provides for the pertinent Conditions Precedent, stipulates as one of the Conditions Precedent the eventual issuance of the land title to Mestika Pujangga by the government. This shows that Mestika Pujangga's title over the replacement site was not yet certainly settled at the time of the execution of Mestika Pujangga's Quarry Agreement, and it is improbable that Hanson Quarry did not enquire about and did not satisfy itself of the circumstances that revolved around and that led to the alienation of the replacement site to Mestika Pujangga. d) Clause 3A of the Mestika Pujangga's Quarry Agreement further provides that Hanson Quarry has to conduct and be satisfied with due diligence conducted on the land. e) Further, in the Land Office's letter dated 22 April 2016, the issues of the quarry operation at the Cheras Quarry Lands and the decision to alienate the replacement site to Mestika Pujangga were explained concurrently in the same letter. The causation and linkage between the two are clear.

The Defendants also seek to dispute Encik Hamzah bin Abdul Majid's authority in representing the Defendants in the negotiation with the Authorities that led to the eventual alienation of the replacement site.

However, we find that the Defendants did not even attempt to establish that Encik Hamzah bin Abdul Majid had no actual or ostensible authority in so representing the Defendants, and the basis for such lack of authority.

We are of the view that the lack or otherwise of the authority of Encik Hamzah bin Abdul Majid does not, in any way, concern the Plaintiff.

In Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen & Ors [1998] 1 MLJ 465; [1997] 2 MLRA 202; [1998] 1 CLJ 793; [1998] 1 AMR 169; the Federal Court explained the effect of Turquand's rule when it held as follows: - [57] At this point, we would interpolate to observe that the effect of the rule in Turquand's case is that it reduces the enquiries which outsiders having dealings with a company - or more correctly outsiders who reasonably think they are having dealings with a company - must make, which, of course promotes business convenience. Such outsiders have no right to insist on proof by the company's directors that the provisions of its memorandum or articles have been complied with, and they cannot therefore be deemed to have constructive notice of some failure to comply which they have no means of discovering (County of Gloucester Bank v Rudry Merthyr Steam and House Coal Colliery Co [1895] 1 Ch 629 at p. 636, per Lindley LJ) and it is this which provides the legal basis for the rule. [63] With respect, these considerations are irrelevant, where, as here, outsiders who believe they have entered into transactions with the company, are not aware if a board meeting is irregular because proper notice of it was not given in advance to each director, since they would not be affected by an irregularity if they have no knowledge of it (Browne v La Trinandad (1888) 37 Ch D 1). To put it another way, such an outsider may rely on the rule in Turquand's case which, when it applies, gives rise to an irrebutable presumption, so that the company concerned is debarred from establishing or relying on the fact that the proceedings were irregular and unauthorized." (emphasis added)

On the issue of whether the decision of the State Government was a final one, we find that the learned HCJ had made a finding of fact in her GOJ when Her Ladyship held as follows: - [62] PW 2 is a subpoena witness. He had nothing to gain by embellishing the events that unfolded as it happened when the Authorities' came to their decision regarding the finality of closing the Cheras Quarry Land. Having seen and heard his evidence I found PW 2 credible and a convincing witness. I see no reason to disbelieve or refuse his testimony which I found was coherent, reliable and in accord with the inherent probabilities of the Plaintiffs case. [63] In fact, if I am allowed to side track a little I must put on record that after hearing and observing the Plaintiff's witnesses, I find that they are straightforward witnesses and truthful. I hold that their evidence must carry significant weight. In particular the evidence of PW2 who had no interest in the outcome of the case. I do not think he had any motive to give biased evidence and I shall treat him as an independent witness of truth. [64] PW2 explained that MMKN had accepted the objections and protests made by the residents and had decided that the quarry operations must be shut down immediately. The date fixed for its shut down was timed to 1.3.2017 in order to give ample time to the Defendant to prepare for its shutting down and moving out. The Defendant was given alternative land to quarry in. [65] The testimony of PW 2 is solidified by the letters dated 22.4.2016 and 31.1.2017. These letters are contemporaneous documents and the contents corroborated the evidence given by PW 2 that the decision of the KKMN is final. On the issue of the finality of the MMKN's decision ordering a the shut down of the quarry operations, apart from the evidence of PW 2, the letter dated 31 .1.2017 to the Defendant clearly specified that "tempoh operasi sehingga 1 Mac 2017 sahaja. Selepas tarikh tersebut, operasi pengkuarian perlu ditutup serta merta ... " [67] I find the reasons furnished for the finality of the decision to be credible and of merit especially when PW2 buttressed that with the decision of the Selangor State Government to give a replacement land in substitute for the Cheras Quarry Land. A replacement quarry site would not have been alienated if not for the decision to permanently shut down the quarry operations at the Cheras Quarry Land. Pursuant to that decision Hanson Quarry is allowed to carry out quarrying activities on the replacement quarry site for a period of 30 years. This is ensconced in the Supplementary Agreement (amended by the Supplemental to Quarry Agreement dated 15.9.2015). I accept his evidence as PW2 testified not only as the Land Officer in charge of the Hulu Langat district but as the agent of MMKN to convey MMKN's decision and acts on their behalf. [68] As to why the replacement quarry site was alienated to Mestika Pujangga instead of the Defendants was due to the bumiputera status of the land. The fact that the bumiputera shareholder of Gerak Harapan is the shareholder of the bumiputra company, Mestika Pujangga was admitted by DW 2, the present Managing Director of the Defendants. [69] In contrast I have found that the Defendants have failed to adduce any contemporaneous documentary evidence to evidence their argument that the Authority's decision is not a final one. The witnesses called to testify on behalf of the Defendant could not give any positive assertion to rebut the oral testimony of PW2. I reiterate yet again that PW2 is an independent subpoenaed witness and was the officer in charge of the exercise to close down the Cheras Quarry Land and the alienation of an alternative location. He was and is the officer in charge that handled all the matters that is pertinent to this case. There is no reason for me to disbelieve his evidence." (emphasis added)

Given the above, we find that the learned HCJ had meticulously dealt with this issue in her GOJ and had evaluated and assessed the evidence and adopted the right approach in assessing documentary evidence as well as viva voce evidence before Her Ladyship. We therefore, see no reason to disturb the finding of the learned HCJ.

We also noticed that the learned HCJ's findings on this issue are further supported by the fact that the Defendants did not challenge the Authorities' decision to require them to cease the extraction of rocks at the Cheras Quarry Lands with effect after 1 March 2017.

It is to be noted that in the Land Office's letter to the Plaintiff dated 2 August 2017, it was expressly and unequivocally recognised that the cessation of the quarry operation at the Cheras Quarry Lands is final. The land office expressly used the word "muktamad" (final).

The Defendants attempted to collaterally attack and/or dispute the content of the various letters issued by the Land Office, particularly the letters dated 22 April 2016, 31 January 2017, and 2 August 2017.

We are of the view that the decisions and actions of the administrative bodies or authorities cannot be subject of collateral challenge. As these decisions and actions are public in nature, any challenge to their validity should be made through a Judicial Review Application under Order 53 of the Rules of Court 2012.

The Federal Court in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd and other appeals [2024] 5 MLJ 897; [2024] 6 MLRA 1; [2024] 8 CLJ 519; [2024] 6 AMR 813 by referring to the Supreme Court UK case of Regina (Majera (formerly SM (Rwanda)) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) [2022] AC 461; held that an administrative decision or act by a public body, even if illegally made, remained to have legal effects until the Court's intervention, when it held as follows:- [123] Lord Reed concluded that if an unlawful administrative act or decision is not challenged before a court of competent jurisdiction, or if permission to bring an application for judicial review is refused, the act or decision will remain in effect. He went on further to say that even if an unlawful act or decision is challenged before a court of competent jurisdiction, the court may decline to grant relief in the exercise of its discretion, or for a reason unrelated to the validity of the act or decision. Thus, the act or decision will again remain in effect. An unlawful act or decision cannot therefore be described as void independently of, or prior to, the court's intervention. [126] Thus, a legally detective act does not necessarily result in the act having no legal effect at all. The court may declare an act to be unlawful but the court may find it necessary in some circumstances to treat the act as having some legal effects. Therefore, even if the court may find the act to be unlawful or legally defective, it does not necessarily imply that it does not have any legal effect. The courts have power to afford legal effect to ultra vires decision for public interest or orderly administration. [132] Hence, the second and third respondents in this case cannot initiate this collateral proceeding, as they are using it as an attack against Sri Damansara (who is the developer and the second actor) as opposed to a defence. There was no direct challenge against the Controller's decision to grant the extension by way of judicial review. Thus, it shall not render the second act invalid as there is a reliance on validity of the first act when the second act was performed. [135] The developer, in this case Sri Damansara, relied upon the act of granting the extension. There would be substantial injustice if the act of the developer is found to be void because of the invalidity of the first act by the Controller. As the second and third respondents did not challenge the validity of the EOT approved by the Controller before the Tribunal, nor did they mount any challenge in the judicial review proceedings, they cannot therefore initiate a collateral proceeding. The extended period was granted before the SPA was executed and both the respondents were fully aware of the time of completion. Hence, the second and third respondents for the reasons we have alluded are not in the position to initiate a collateral proceeding against Sri Damansara." (emphasis added)

We are of the view that in the absence of such an appeal, review or challenge by the Defendants against the Authorities' decisions, be it those made by the Land Office or Jabatan Mineral dan Geosains, it naturally follows that those administrative decisions taken by the Authorities vis a vis the finality of the cessation of the quarry operation at the Cheras Quarry Lands must stand.

Therefore, the Court is of the considered view that the letters issued by the Land Office dated 22 April 2016, 31 January 2017, and 2 August 2017 are sufficient to answer the issue of whether the cessation of the quarry operation at the Cheras Quarry Lands is final and conclusive. The learned HCJ erred in finding that clause 37, and the Option Agreements survived the SPQ Restructure Agreement

Clause 37 of the Shareholders Agreement states: "Clause 37 - Exhausted Quarries It is anticipated that the useful life of several quarries owned by the Company or its Subsidiary will end ("Exhausted Quarries") in the short to medium term. The parties agree that the Company and its relevant Subsidiaries shall concurrently with the execution of this Deed, grant SWH an option to require the Company and/or its relevant Subsidiaries to sell the land in which an Exhausted Quarries is situated ("the Quarry Land"), which option shall be exercisable by SWH in respect of each of the Quarry Land upon the cessation of commercial quarry production on such Quarry Lnad, such cessation to be in the reasonable opinion of the directors of the relevant Subsidiaries. Towards the foregoing, the parties hereto hereby agree that the Company and/or its Subsidiaries shall not in any manner whatsoever mortgage, lease, charge or otherwise dispose or encumber the Quarry Land and that such option shall continue to be exercisable by SWH notwithstanding SWH's ceasing to be a shareholder of the Company. Unless the Parties otherwise agree, the terms of such purchase will be: a) the consideration will be RM1; b) all the costs associated with the purchase (including all legal costs, stamp duty, and tax of any kind) will be paid by SWH; c) the vendor gives no warranties of any kind relating to the Quarry Land or its fitness for any purpose; and d) SWH will undertake any remediation of the Quarry Land required by any Authority or law and indemnify the vendor in relation to any claim arising from that remediation (or failure to remediate) e) The Quarry Land shall consist of the following land held by the following companies:

(v) Sungei Way Quarry Industries Sdn Bhd - land in Cheras:- A. G.M. No. 466 Lot No. 791 of Mukim Cheras, District of ulu Langat, State of Selangor measuring 2a 2r 00p; B. G.M. No. 467 Lot. No. 788 of Mukim Cheras, District of Ulu Langat, State of Selangor measuring 1a 1r 20p.

Clause 37 of the Shareholders' Agreement expressly provides that SPQ/JVCO and its relevant subsidiaries (the Defendants included) shall concurrently with the execution of the Shareholders' Agreement, grant the Plaintiff an option to require SPQ/JVCO and its relevant subsidiaries (the Defendants included) to sell the quarry land to the Plaintiff, which option shall be exercisable by the Plaintiff upon the cessation of commercial quarry production on such land and the said option shall be exercisable by the Plaintiff notwithstanding the Plaintiff ceasing to be a shareholder of SPQ/JVCO.

In accordance with Clause 37 of the Shareholders' Agreement, on 26 March 1999, simultaneously with the execution of the Shareholders' Agreement, the Defendants executed the Options to grant the Plaintiff an irrevocable option to purchase the specified pieces of land for RM1.00 only.

On 10 April 2001, PIH exercised the PIH Call Option ahead of time to acquire the Plaintiff's entire shareholding in SPQ/JVCO, whereupon the Plaintiff ceased to be a shareholder of SPQ/JVCO.

Pursuant to PIH's exercise of the PIH Call Option, the parties to the Shareholders' Agreement, being the Plaintiff, PIH, and SPQ/JVCO, executed the SPQ Restructure Agreement dated 10 April 2001 to bring an end to the Plaintiff's involvement in the JV Quarry Business. Pursuant to Clause 6.1 of the SPQ Restructure Agreement, the Shareholders' Agreement "shall cease to apply to" the Plaintiff.

Following PIH's exercise of the PIH Call Option on 10 April 2001 and the execution of the SPQ Restructure Agreement dated 10 April 2001, Plaintiff ceased to be a shareholder of SPQ/JVCO from the same date (10 April 2001).

With the Plaintiff ceasing to be a shareholder of SPQ/JVCO, the Plaintiff's continuing obligation as a shareholder under the Shareholders' Agreement would naturally cease unless the parties had expressly provided for the Plaintiff's continued obligation in respect of specified matters.

Clause 6.1 of the SPQ Restructure Agreement specifically provided for the Plaintiff's continued obligation in respect of three (3) areas even after the Plaintiff ceased to be a shareholder of SPA/JVCO. These three (3) areas are: a) confidentiality; b) non-competition; and c) the Plaintiff's obligation to extend an invitation to SPQ Quarry Group to supply for the Plaintiff's construction projects. (See: Encl. 11, page 172)

Save and except for these three (3) areas, all other obligations of the Plaintiff as a shareholder of SPQ/JVCO ceased with the transfer of the Plaintiff's 50% shares in SPQ/JVCO to PIH.

Further, we are of the view that from the evidence adduced, we find that Clause 6.1 of the SPQ Restructure Agreement does not say that all past actions and agreements (including the Quarry Agreement and Options) are revoked.

It is clear that the parties entered into the Quarry Agreement in consideration of the Shareholders' Agreement and the Options.

The Options were also granted to the Plaintiff in consideration of the Plaintiff entering into the Shareholders' Agreement. Clause 37 of the Shareholders' Agreement required the Defendants to grant the Options to the Plaintiff simultaneously with the execution of the Shareholders' Agreement. Clause 37 of the Shareholders' Agreement went on to expressly provide that the Options shall continue to be exercisable by the Plaintiff even after the Plaintiff ceased to be a shareholder of SPQ/JVCO.

Clause 2.1 of the Options states: - "Grant of Option In consideration of the payment of Ringgit Malaysia One (RM1.00) paid by the Grantee to the Grantor (the receipt of which is acknowledged) the Grantor hereby irrevocably grants to the Grantee the right exercisable at any time during the Option Period, to purchase the Quarry Land from the Grantor on an "as is" basis subject to Clause 2.2 and the other terms and conditions of this Agreement."

Given the above, we are of the considered opinion that Clause 37 of the Shareholders' Agreement and Clause 2.1 of the Options have the effect of preserving the continuous validity of the Options regardless of whether the Plaintiff ceases to be a shareholder of SPQ/JVCO. Such cessation of the Plaintiff's shareholder status has, in fact, been expressly contemplated and dealt with by Clause 37 of the Shareholders' Agreement as well as Clause 2.1 of the Options.

In this regard, we find that the learned HCJ in her GOJ had correctly applied the canon of literal interpretation on Clause 37 of the Shareholders' Agreement when Her Ladyship held as follows: - [77] I noted that Clause 37 of the Shareholders Agreement had in clear terms expressly provided that the Options shall continue to be exercisable by the Plaintiff even after the Plaintiff ceases to be a shareholder of SPQ/JVCO. [78] [79] In my judgment the SPQ Restructure Agreement is not intended to diminish nor make invalid all the previous agreements signed by the parties in consideration of entering into the JV Quarry business. From the clear and plain wordings of Clause 37, it intended what it stated that is to say the Options were intended to remain and still have effect although Clause 6.1 merely stated 3 areas of concern would be continued." (emphasis added)

Further, we find that the following conduct of the parties at the material time clearly proves that the SPQ Restructure Agreement did not revoke the Options: a) Firstly, about 11 years after execution of the SPQ Restructure Agreement, namely, on 11 January 2012, Gerak Harapan executed a Supplementary Agreement to the Option dated 26 March 1999, to rectify the typographical error in the said Option regarding the title number of the option land herein. Clearly, the parties would not have executed the Supplementary Agreement to rectify the typographical error in the details of the option land in the Option 11 years after the execution of the SPQ Restructure Agreement if the SPQ Restructure Agreement had revoked the said Option. b) Secondly, on 9 April 2001, Hanson Quarry executed two Supplementary Agreements to vary Clause 8.11 of the Options dated 26 March 1999, one day before the execution of the SPQ Restructure Agreement dated 10 April 2001. Should the parties indeed intend to revoke the Options through the execution of the SPQ Restructure Agreement on the very next day, it defies logic that parties would agree to go through the troubles of executing the two Supplementary Agreements to vary Clause 8.11 of the Options, just for the Options to be revoked the very next day. c) Thirdly, the Defendants' solicitors in their reply dated 26 March 2017 did not say that the Plaintiff's exercise of the Options is invalid because the said Options have been revoked by the SPQ Restructure Agreement. Their issue with the Plaintiff's exercise of the Options was that purportedly, such an exercise was premature since the cessation of quarry operations at the Cheras Quarry Lands was temporary only and there were still extractable rocks in the earth. d) The issue of the purported invalidity of the Options was neither raised in the said letter nor in the parties' meeting on 6 June 2017. e) If the SPQ Restructure Agreement did indeed revoke the Options, that would have been the first thing the Defendants would have relied on to deny the Plaintiff's exercise of the Options. f) In fact, the Defendants only cited the ground that the SPQ Restructure Agreement revoked the Options after the Plaintiff had produced documentary evidence from the Authorities (namely Pejabat Tanah Daerah Hulu Langat's letter dated 2 August 2017) to refute the grounds relied on by the Defendants in their solicitors' said letter, namely that the Authorities' decision was not final. g) Hence, this ground that the SPQ Restructure Agreement has revoked the Options is nothing more than an afterthought.

On this, the learned HCJ had stated in her GOJ when Her Ladyship held as follows: - "[80] My view was further fortified by the conduct of the parties at the material time. I took into consideration the fact that on 11.1.2012, Gerak Harapan executed a supplementary agreement to the option dated 26.3.1999 to rectify the typographical error in the said option regarding the title number of the option land. The strong inference to be drawn from this conduct can be no other than that the parties had no intention to revoke the option. Had it been otherwise, the parties would not have executed the supplementary agreement to rectify the typographical error in the details. [81] The question weighing heavy on the scales is why would the parties execute a supplementary agreement 11 years later had it not been for the very simple reason that the options were intended to remain and still have effect. [82] The second observation which I took into consideration was the fact that Hanson Quarry executed 2 supplementary agreements to vary Clause 8.11 of the options dated 26.3.1999. DW2 conceded that the 2 supplementary agreements to vary Clause 8.11 was entered into one day before the execution of the SPQ Restructure Agreement. I am inclined to agree with the Plaintiff's contention that if the SPQ Restructure Agreement was to revoke the options, the parties would not go to all the trouble of drafting and executing the supplementary agreement since they were going to execute the SPQ Restructure Agreement the very next day. It did not make sense that they would do so unless they knew and agreed that the options were intended to remain and be of effect. [83] It is worthy to take note of the contents of the letter in reply dated 26.3.2017 by the lawyers for Gerak Harapan and Hanson Quarry to the Notice to exercise the Options made by the Plaintiff's solicitors. There was no immediate assertion that the Options were invalid due to the revocation of the SPQ Restructure Agreement. They would have put it on record right away if this was their stand to deny the Plaintiff's exercise of the Options. It is very telling that the Defendants only cited this ground for the first time after the Plaintiff produced documentary evidence from the Pejabat Tanah Daerah Hulu Langat's letter dated 2.8.2017 confirming that the Authorities decision is final and not temporary as alleged by the Defendants. I would agree that this reason is a belated assertion and an afterthought and sought to be rejected." (emphasis added)

Given the above, we agree after due consideration of the same with her findings above and reiterate that we have made a similar finding as per the learned HCJ's said grounds.

The Defendants relied on Gold Prestige Development Sdn Bhd v Unilink Sdn Bhd [2022] CLJU 2634; [2022] MLRHU 2333; [2022] MLJU 2791 to contend that the learned HCJ erred in relying on post-agreement conduct of the parties to come to the finding that the Options survived the SPQ Restructure Agreement.

With respect, we disagree with this contention. As a matter of general principle, we find that parties' post-agreement conduct indeed has legal effects.

Lord Denning MR, in delivering the English Court of Appeal's decision in Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce International Bank Ltd [1981] 3 All ER 577, held that: "Course of dealing Although subsequent conduct cannot be used for the purpose of interpreting a contract retrospectively, yet it is often convincing evidence of a course of dealing after it. There are many cases to show that a course of dealing may give rise to legal obligations. It may be used to complete a contract which would otherwise be incomplete; see Brogden v. Metropolitan Railway (1877) 2 App. Cas. 666, 682, per Lord Hatherley. It may be used so as to introduce terms and conditions into a contract which would not otherwise be there: See (J. Spurling Ltd. v. Bradshaw [1956] 1 W.L.R. 461); Hardwick Game Farm v. Suffolk Agricultural Poultry Producers Association [1966] 1 W.L.R. 287, 308, 316, 317, C.A.; and [1969] 2 A.C. 31, 90, per Lord Morris of Borth-y-Gest, p. 104; per Lord Guest, and p. 113, per Lord Pearce, all disapproving the dictum of Lord Devlin in McCutcheon v. David MacBrayne Ltd. [1964] 1. All ER 430 at 437, [1964] 1 W.L.R. 125, 134, and Hollier v. Rambler Motors (A.M.C.) Ltd. [1972] 2 Q.B. 71, 77-78, per Salmon L.J. If it can be used to introduce terms which were not already there, it must also be available to add to, or vary, terms which are there already, or to interpret them. If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it — on the faith of which each of them to the knowledge of the other acts and conducts their mutual affairs they are bound by that interpretation just as if they had written it down as being a variation of the contract. There is no need to inquire whether their particular interpretation is correct or not or whether they were mistaken or not or whether they had in mind the original terms or not. Suffice it that they have, by the course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it. To use the phrase of Latham C.J. and Dixon J. in the Australian High Court in Grundt v. Great Boulder Proprietary Gold Mines Ltd. (1937) 59 C.L.R. 641, 657, 677, the parties by their course of dealing adopted a "conventional basis" for the governance of the relations between them, and are bound by it. I care not whether this is put as an agreed variation of the contract or as a species of estoppel. They are bound by the "conventional basis" on which they conducted their affairs. The reason is because it would be altogether unjust to allow either party to insist on the strict interpretation of the original terms of the contract when it would be inequitable to do so, having regard to dealings which have taken place between the parties. That is the principle upon which we acted in Crabb v. Arun District Council [1976] Ch. 179, 187. It is particularly appropriate here where the judges differ as to what is the correct interpretation of the terms of the guarantee. The trial judge interpreted it one way. We interpret it in another way. It is only fair and just that the difference should be solved by the course of dealing by the interpretation which the parties themselves put on it and on which they conducted their affairs for years." (emphasis added)

Given the aforesaid reason, we are of the view that the learned HCJ was entitled to satisfy herself that her interpretation of the SPQ Restructure Agreement was in line with the parties' pre and post agreement conduct.

The Defendants further submitted that Clause 37 of the Shareholders' Agreement is not saved or preserved from being terminated, and consequently, the Options granted to the Plaintiff under Clause 37 of the Shareholders Agreement had been cancelled and superseded by the Restructure Agreement, and therefore ceased to have effect.

The Defendants rely on the maxim "expressio unius est exclusio alterius" (the expression of one thing is the exclusion of the others), and some general authorities on that maxim as well as contractual interpretation, to advance their position that the SPQ Restructure Agreement merely preserves three (3) specified clauses, and only those three (3) clauses, from being terminated.

The Defendants are suggesting that the Shareholders' Agreement and the Options "should be looked as a whole and to be read together as they formed one composite contract".

However, applying the principle of composite contract theory adopted by the Federal Court in Kuala Dimensi Sdn Bhd v Port Kelang Authority [2025] 2 MLJ 238; [2025] 3 MLRA 873; [2025] 3 CLJ 497 in rejecting the contention that the agreement constituted a composite contract, we are of the view that it applies squarely to the facts in the present case, as follows: - a) Save for the Shareholders' Agreement dated 26 March 1999 and the Options dated 26 March 1999, the other pertinent agreements were not executed simultaneously. These include: i. The Quarry Agreement dated 17 September 1998. ii. Two Supplementary Agreements to vary Clause 8.11 of the Options dated 9 April 2001. iii. The SPQ Restructure Agreement dated 10 April 2001. iv. A Supplementary Agreement dated 11 January 2012 to rectify one of the Options. b) All the agreements above involve separate and distinct scopes of obligation and consideration, with different parties involved; c) There is no common objective to be achieved from the above agreements. A perusal of the agreement shows that each agreement was entered into in different stages for different objectives; and d) A breach of any of the terms of the above contracts would be dealt with within the four (4) walls of the breached contract(s).

We are of the view that as the agreements namely the Quarry Agreement dated 17 September 1998, two (2) Supplementary Agreements to vary Clause 8.11 of the Options dated 9 April 2001, the SPQ Restructure Agreement dated 10 April 2001 and a Supplementary Agreement dated 11 January 2012 to rectify one (1) of the Options are separate and distinct and they were not executed simultaneously, hence they should be consrued separately. The Plaintiff's exercise of the Option is premature - 'Cessation Date' not triggered No basis to imply a new definition of "Cessation Date" The Plaintiff's exercise of the Option was invalid and premature

We shall deal with these three (3) issues together as they are interrelated. Clause 3.1 of the Options provides for the period in which the Options may be performed. Clause 1.1 of the Options provides for the Option period.

Clause 3.1 of the Options states: - "3.1 Exercise By Notice The Option shall be exercisable at any time during the Option Period by notice to the Grantor in accordance with clause 8.10." (emphasis added)

Clause 1.1 of the Option Agreement states: - "Clause 1.1 "Cessation Date" means the date when all extractable rock reserves on the Quarry Land have been removed, which is to be determined, if at such relevant time the Grantor is no longer Subsidiary of SPQ, in the reasonable opinion of the directors of the Grantor; otherwise to be determined in the reasonable opinion of the directors of SPQ; "the Option Period" means the period: a) Commencing on the Cessation Date; and b) Ending at 10.00 am (Malaysia time) on the expiry of a period of six (6) months from the Cessation Date." (emphasis added)

Clause 1.1 of the Options defines the Option Period as commencing on the Cessation Date.

Clause 1.1 of the Options, in turn, defines the Cessation Date as the date when all extractable rock reserves on the Quarry Land have been removed.

The Defendants seek to argue that the definition of Cessation Date in Clause 1.1 of the Options does not include the scenario where the Defendants cannot continue extracting rock from the earth by reason of the decision of the Authorities, and this contractual definition cannot be rewritten by the Plaintiff.

The Defendants have, accordingly, attempted to argue that, given that there are still rock reserves at the Cheras Quarry Lands that have not been extracted physically, but are, instead, lying under the earth, the Cessation Date as defined in Clause 1.1 of the Options has not been fulfilled, and the Option Period defined in the same Clause 1.1 of the Options has not kick-started. Therefore, it is premature for the Plaintiff to exercise the option.

Having perused all the mentioned agreements, we are of the view that they are in the nature of commercial contracts. Therefore, it is reasonable and in the nature of things to give a business common sense interpretation to these agreements, including the Option. (See: SPM Membrance Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 CLJ 177; [2016] 1 MLJ 464; [2016] 1 MLRA 1 (Federal Court))

Therefore, the Defendants' contention that the maxim "expressio unius est exclusio alterius" should be applied, is untenable and devoid of merit.

We are of the view that the Defendants' argument is stretching the definition of the Cessation Date in Clause 1.1 of the Options beyond business common sense. It is clear that the Authorities only allowed the Defendants to carry out the quarry operation to extract the rocks until 1 March 2017. After 1 March 2017, the Defendants had no more rights to extract rocks at the Cheras Quarry Lands. Only the rock already extracted before 1 March 2017 can be removed. (See: Encl. 12, pages 30, 31, 35, 78, and 82, and Encl. 8, pages 112-113)

This court is of the view that when there is no more right to extract the rocks, and the Defendants have only the right to remove rocks already extracted, that is when "all extractable rock reserves on the Quarry Land have been removed", as envisaged in Clause 1.1 of the Options, thus triggering the commencement of the Cessation Date.

We find that Clause 1.1 of the Options defines the Cessation Date as the date when all extractable rock reserves on the Cheras Quarry Lands have been removed, but nowhere in Clause 1.1 of the Options does it say that the Cessation Date means the date when the earth on the land contains no more rock reserves.

This court is of the view that if quarry operation at the quarry land has been finally, permanently, and conclusively ceased by the Authorities, there is no possibility for the quarry operation to be resumed. In such a case, there will be rock reserves on the Cheras Quarry Lands, but there are no extractable rock reserves.

It follows that the Cheras Quarry Lands contain no more "extractable rock reserves", and the Cessation Date as well as the Option Period rightly kicked off when the Plaintiff exercised the Options on 20 March 2017.

Further, it must not be overlooked that the Options are conceived under Clause 37 of the Shareholders' Agreements. The Options were granted to the Plaintiff in order to fulfil the purpose stated in Clause 37 of the Shareholders' Agreements. This is supported by: - a) The fact that the six (6) Options and the Shareholders' Agreements were executed on 26 March 1999. b) The unequivocal wording of Clause 37 of the Shareholders' Agreements. c) The cross-reference to the Shareholders' Agreements in Clause 1.1 of the Options. (See: Encl. 11, page 76) d) Mr. Daniel Joseph Ahern's (DW2's) testimony during crossexamination. (See: Encl. 8, page 218)

Therefore, the court takes the view that it is only proper that in interpreting the phrase "Cessation Date" in the Options, reference ought to be made to Clause 37 of the Shareholders' Agreement. This is the approach correctly taken by the learned HCJ when Her Ladyship held as follows: - [94] DW2 who is the present Managing Director of the Defendant company gave his view on how he thought the agreements were to be interpreted. He accepted that the Options must be interpreted in harmony with the Shareholders Agreement and that they should be read together. More importantly he did not dispute that the Options came about through Clause 37 of the Shareholders Agreement. By necessity that can only be interpreted to mean that he had no valid grounds to disagree that the Options were granted in order to fulfil the purpose stated in Clause 37. [95] Having arrived at the conclusions above, I am satisfied and conclude that the most appropriate meaning of the phrase "Cessation Date" in the Options must be derived from Clause 37. In Clause 37 the operative words are underlined in bold: "... The parties agree that the Company and its relevant Subsidiaries shall concurrently with the execution of this Deed, grant SWH an option to require the Company and/or its relevant Subsidiaries to sell the land in which an Exhausted Quarries is situated ("the Quarry Land"), which option shall be exercisable by SWH in respect of each of the Quarry Land upon the cessation of commercial quarry production on such Quarry Land, such cessation to be in the reasonable opinion of the directors of the relevant Subsidiaries ... " (emphasis added)

Reading the Cessation Date in Clause 1.1 of the Options together with Clause 37 of the Shareholders' Agreement, it is clear that the cessation includes cessation of commercial quarry production.

Therefore, we see no reason to disturb Her Ladyship's common sense approach in construing the Cessation Date in Clause 1.1 of the Options, when Her Ladyship held as follows: - [97] I have kept in my mind that the Defendants are in the business of quarrying for commercial purposes, hence the business common sense interpretation of the natural and ordinary meaning of "upon the cessation of commercial quarry production" must necessarily mean that the Options granted to the Plaintiff is exercisable upon any permanent shut down of quarry operations to extract rocks at the location. I readily agree with the Plaintiff's contention that they are entitled to exercise the Options upon the permanent shut down of the quarry operations to extract rocks at the Cheras Quarry Land. In my view the permanent shutdown encompasses a physical and commercial inability to extract the rocks. Without the necessary approvals, permits and licenses of the Authorities the Defendants cannot extract rocks form the earth at the Cheras Quarry Land. [98] The above is a common sense approach to be subscribed to the meaning and definition of "Cessation. Date" in Clause 1.1 of the Option. It means when the rocks in the Cheras Quarry Land cannot be physically and commercially extracted for any reason which brings finality to it. In this case the extraction of rocks were halted by the decision of the Authorities". (emphasis added)

After carefully construing the Options, the Shareholders' Agreement, and the SPQ Restructure Agreement, testing them against the factual matrix established by the parties through documentary as well as viva voce evidence, and applying business common sense interpretation, we are of the considered view that the Plaintiff has validly exercised the Options during the Option Period.

Notwithstanding the above, we are of the view that the court may resort to make inferences derived from evidence as to the intention of the parties. (See: Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong [1998] 3 MLJ 151; [1998] 1 MLRA 332; [1998] 3 CLJ 503; [1998] 3 AMR 2160 (Federal Court))

We find that the learned HCJ had made an inference derived from the evidence as to the intention of the parties, relying on Sababumi (supra). We are of the view that the learned HCJ is entitled to undertake such an approach and did not err in Her Ladyship's exercise of inferring the parties' intention.

From the evidence produced, both documentary and oral, we are of the view that the parties must have intended that the implied term for 'Cessation Date' means the date when the Grantor can no longer extract rock reserves on the Cheras Quarry Lands by reason of operation of law or by any decision made by the local Authorities in charge of that locality. This is the interpretation of what a reasonable man who had all the background knowledge of the factual matrix of the case will conclude.

Further, we found that it was the contractual intention of the parties for the Cheras Quarry Lands to be sold back to the Plaintiff for a nominal sum of RM1.00 upon the cessation of commercial quarry production at the Cheras Quarry Lands. The reason for this is that SPQ/JVCO's and its subsidiaries' interest in the Cheras Quarry Lands is merely the rock reserves at the Cheras Quarry Lands that are capable of being extracted and not the Cheras Quarry Lands itself.

We find that from the evidence produced in court, the contractual intention of the parties formed the underlying basis for the grant of the irrevocable Options to the Plaintiff, which can be gleaned from the following evidence:-

(a) Tan Sri Chew Chee Kin (PW4), who personally negotiated the Shareholders' Agreement and the Options, had stated in his evidence as follows: - "[Q7] In your answer to question [1] above, you said " ... the Defendant granted 4 irrevocable options to the Plaintiff for valuable consideration which gave the Plaintiff the right to buy back the 4 quarry lands ... from the Defendant for a purchase consideration of RM1.00 each ". How did this come about? [A7] The Defendant which currently owns the 4 Quarry Lands was initially a subsidiary of the Plaintiff. In 1998, the Plaintiff and Pioneer International Holdings Ply Ltd ('PIH') came to get her on a joint venture basis to carry out quarry and asphalt business ['the JV Quarry Business'] on the following basis: -

(a) The JV Quarry Business shall be undertaken by a newly established company, Newco; and

(b) The Plaintiff and PIH shall participate in the Newco by subscribing 50% each shares and equity in the Newco inter-alia as follows: -

(i) PIH shall subscribe for 100,000 ordinary shares in Newco for RM180 Million;

(a) the Defendant's admission in paragraph 7 of the affidavit sworn by John Graham Stewart-Thornton on 17 October 2017 in the OS No. BA-24N CVC-401-09/201 ("Defendant's Affidavit in OS 401") at p 303 CABD 2/Encl.78 wherein the Defendant affirmed on oath as follows: "In any event, I further state that the fact that the Plaintiff was given the Option to buy back the Cheras Quarry Land for a token consideration of RM1.00 makes it plain the premise for which the acquisition of the Cheras Quarry Land in question by Pioneer PTY was made. It is clearly the parties' understanding that the basis for the consideration of RM1 for Pioneer PTY is clearly the rock reserves within the Land and not the Land itself";

(b) paragraph 21.3 of the Defence which states: " ... the basis to enter into the Option Agreements is plain in that the Plaintiff will be able to buy back the land for a consideration of RM1.00 only after all the extractable rocks have been removed, for by then the Defendant would have no commercial interest in the Cheras Quarry Lands " [Q33] Were you involved in the negotiations between the parties that led to the execution of the Sunway-Pioneer Quarry Agreement, Shareholders Agreement and the Irrevocable Options? [A33] Yes, I was personally involved in the negotiations for the Plaintiff. [Q34] Who were your negotiating counterparts at PIH's side? [A34] Mr. K.M. Folwell." (emphasis added)

(b) The admission by Mr Daniel Joseph Ahern (DW2) that it was always the intention of the parties for the Plaintiff to be entitled to exercise the Options upon the Defendants' cessation of the extraction of rocks from the earth at the Cheras Quarry Lands: "SR: Yup. Now, do you agree with me that it was always the intention of the parties that the Plaintiff shall be entitled to exercise the option upon the Defendants' cessation of extraction of rocks from the earth at the Cheras Quarry Land. Yes? You would agree with me? DW2: Disagree. SR : Come again? DW2: Disagree. SR : Disagree? DW2: The intent was there initially but it was dependent on the other transaction agreements. SR : That was the intent. DW2: The intent was to sell the quarry back to the Plaintiff for 1 ringgit and as per Clause 37, initially yes. (emphasis added)

(c) The admission made by the Defendants' previous Managing Director, John Graham Stewart-Thornton, in his Affidavit, affirmed on 17 October 2017: (See: Encl.12, page 128) "7. In any event, I further state that the fact that the Plaintiff was given the Option to buy back the Cheras Quarry Land for a token consideration of RM1.00 makes plain the premise for which the acquisition of the Cheras Quarry Land in question by Pioneer PTY was made. It is clearly the parties' understanding that the basis for the consideration of RM1.00 for Pioneer PTY is clearly the rock reserves within the Land and not the Land itself; in fact after the execution of the Quarry Agreement dated 17.9.1998, the Defendant was required to deliver additional rock reserves based on the anticipated volume of rock reserves in the Cheras Quarry Land as the rock reserves in the land were less than anticipated (see exhibit GH-5)." (emphasis added)

Based on the aforesaid reasons, we find that the learned HCJ had correctly decided when Her Ladyship said as follows: - [100] Notwithstanding the above and even if I am found to be wrong in my findings, I am not precluded from holding the view that this Court may resort to make inferences derived from evidence as to the intention of the parties. This method is not unheard of. It was adopted and restated by the Federal Court in Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong [1998] 3 MLJ 151 as follows: [101] There are a legion of cases in later years which have adopted this similar approach of the officious bystander test (see Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202, Jailcon (M) Sdn Bhd v Nikken Metal (M) Sdn Bhd (No. 2) [2001] 5 MLJ 716, MD Intech Sdn Bhd v Pos Logistics Bhd [2023] CLJU 2757). [102] Guided by the above authorities, the principles stated in the said cases and from the evidence gathered both documentary and oral, no doubt remained in my mind that the parties must have intended that the implied term for rcessation Date' means the date when the Granter can no longer extract rock reserves on the Quarry Land by reason of operation of law or by any decision made by the local Authorities in charge of that locality. This is the interpretation of what a reasonable man who had all the background knowledge of the factual matrix of the case will conclude. Otherwise it would yield to a situation which is unreasonable and unworkable." (emphasis added)

In conclusion, we find that the Defendants' position on the issue of the cessation date is wholly devoid of merit. The Plaintiff's exercise of the option was not premature and is therefore valid. Plaintiff's Caveats are invalid

On this issue, we agree with the learned HCJ's findings that it has been rendered academic since all the private caveats complained of have lapsed by operation of law when Her Ladyship held as follows in her GOJ: - "Is the Plaintiff entitled to caveat the Lands that are the subject matter of the Options [116] I have taken note of the Defendants' submissions that the caveats lodged by the Plaintiff was wrongfully lodged and ought to be removed by this Court. [117] I do not wish to dwell further on this issue. Suffice to say that it has been rendered academic by virtue of the fact that all the private caveats complained of have lapsed by operation of law." Conclusion

Based on the aforesaid reasons, we unanimously find no merit in these Appeals. We also find no appealable error on the part of the learned HCJ's decision. We therefore dismiss both appeals, namely Appeal 1805 and Appeal 1809, with costs of RM75,000.00 for both appeals, subject to allocator. Dated: 05 February 2026 Ahmad Kamal bin Md Shahid Judge Court of Appeal Malaysia Parties Appearing For the Appellants (both Appeals): (Defendants) Dato' Cyrus V. Das (together with Mr. Krishna Dallumah and Miss Yong Yoong Hui [Messrs Krishna Dallumah & Indran] For the Respondent (both Appeals): Datuk DP Naban (together with Mr. NV Sree Harry and Mr. Tan Jun Yu [Messrs Sree Harry & Co.]