Henry Butcher Real Estate (Penang) Sdn Bhd v Copthorne Orchid Penang Sdn Bhd (PA-22NCvC-190-12/2024)

There are two (2) summary applications heard together in this matter. The Defendant files an application under Order 14A / Order 33 (Enclosure 10) of the Rules of Court 2012 (ROC), while the Plaintiff files an application under Order 14 of the ROC (Enclosure 11).

Upon hearing both applications, this Court allows Enclosure 10 and dismisses Enclosure 11. The reasons are as deliberated herewith. 14/07/2026 23:05:02 PA-22NCvC-190-12/2024 Kand. 58

The Plaintiff is a licensed real estate agency incorporated under the Companies Act 2016.

The Defendant is the owner of Copthorne Orchid Hotel Penang, located at Jalan Tanjung Bungah, Tanjung Bungah, 11200 Georgetown, Pulau Pinang (Hotel).

On 20.01.2020, the Plaintiff and the Defendant entered into a Finder’s Fee Agreement (FFA) under which the Defendant appointed the Plaintiff on an exclusive basis as its Real Estate Agent to introduce prospective purchasers for the sale of the Hotel.

For convenience, the relevant clauses in the FFA are as follows- “1. Term

1.1 The term of this Agreement shall commence on 20 January 2020 (the “Effective Date”) and shall expire on the date that is three (3) months after the Effective Date and, as applicable, shall be automatically renewed for another period of three (3) months unless the term is further renewed by mutual agreement of the parties.

Scope of Services The Services as provided by the Company shall include the following:

Managing the sale process and liaising with Eligible Purchasers;

(ii) Providing feedback from Prospective Purchasers to Millennium and market intelligence to Prospective Purchasers, coordinating due diligence enquiries, assisting in preparation and review of due diligence material customary for a transaction of this nature;

(iii) Advise on the appropriate negotation strategies and other key stakeholders, overall transaction structure, reasonableness of the commercial terms and conditions, timing, procedures and any other relevant issues pertaining to the Hotel; and

(iv) Assist Millennium in reviewing the relevant commercial considerations of the applicable agreements such as, as relevant, the conditional sale and purchase agreement, joint venture agreement and/or other applicable agreements, and to liaise with Millennium’s representatives and lawyers regarding them.

Prospective Purchasers

3.3 The Company, however, shall not be responsible for:

3.3.1 making inquiries of local or other authorities with regard to any

3.3.2 investigating the history of the Prospective Puchaser, or

3.3.3 vetting the financial or other standing of any Prospective Puchaser.

Eligible Purchasers and Payment of the Finder’s Fee

4.1 If a Prospective Purchaser becomes the successful purchaser of the Hotel (the “Purchaser”) Millennium shall pay to Company a finder’s fee which fee (the “Finder’s Fee”) shall be in the amount of three (3) percent (%) of the consideration plus Sales & Services Tax (if applicable) for acquisition of the Hotel either through completion of the acquisition of the entire interests in the Hotel or through completion of the acquisition of the beneficial ownership interests in the Group Company that owns the Hotel or by way of asset purchase. Subject to invoice issued by the Company to Millennium, the Finder’s Fee will be paid to the Company by Millennium within fourteen (14) days upon completion of sale or when the agreement becomes unconditional (if the Agreement is conditional), whichever is earlier.

Basis of Appointment

10.1 During the term of this Agreement, the appointment shall be on an exclusive basis for a period as set forth in Clause 1.1 above. 14 Termination

14.1 In the event of any breach of this Agreement, either party shall be given notice to rectify the matter within twenty-one (21) days or an extended period to be agreed upon. This Agreement shall be terminated by giving seven (7) days’ notice by either party if rectification has become impossible. Upon a termination of this Agreement, Millennium shall remain responsible to the Company for payment of a Finder’s Fee as described in Clause 4 above for any Prospective Purchaser submitted during the term of this Agreement that subsequently becomes the Purchaser within a period of one hundred and eighty (180) days after the termination of this Agreement.” [7] The Plaintiff contended that it had fulfilled its obligations by successfully introducing a Prospective Purchaser, Ivory Properties Group Berhad or its nominee or representative company (Purchaser), to the Defendant around June 2020, in accordance with the FFA, which consequently, the Defendant successfully executed a Sale and Purchase Agreement (SPA) with the Purchaser for the sale of the Hotel on 14.12.2020 for the price of RM75,000,000.00. Pursuant thereto, the Purchaser has also paid the sum of RM7,500,000.00 as a deposit to the Defendant. [8] Thereafter, several issues arose between the Defendant and the Purchaser regarding payment, resulting in the SPA being extended several times. [9] Despite several extensions, the Purchaser was still unable to complete the SPA, which led the Defendant to terminate the SPA in December 2021. Due to the Purchaser’s failure to settle the balance of the purchase price, the Defendant forfeited the deposit in accordance with the SPA. [10] The Plaintiff contended that although the SPA was terminated by the Defendant, the Plaintiff, as the Real Estate Agent, had fulfilled its obligations to the Defendant, as evidenced by the Plaintiff's successful introduction of the Purchaser to the Defendant and the parties' execution of the SPA. [11] The Plaintiff further contended that the Plaintiff’s duty to the Defendant as a Real Estate Agent was well settled by the time the Defendant and the Purchaser entered into the SPA. [12] Although the sale under the SPA did not complete and the SPA was terminated, the Plaintiff nevertheless demanded the sum of RM2,385,000.00 (Finder’s Fee) under Clause 4.1 of the FFA, by way of an invoice number IV-2309/001 dated 20.9.2023. The Plaintiff contended that despite receiving RM18,875,000.00 from the Purchaser, the Defendant refused to pay the Finder’s Fees to the Plaintiff. [13] As such, the present suit was filed by the Plaintiff to claim the sum of RM2,385,000.00, being 3% of the SPA’s consideration of RM75,000,000.00 and 6% Sales & Services Tax. Aspect Sum (RM) 3% of the SPA sum of RM75,000,000.00 2,250,000.00 6% Sales & Services Tax 135,000.00 Total 2,385,000.00 [14] The Defendant denied owing such sum to the Plaintiff and contended that the Plaintiff is not entitled to the Finder’s Fee under Clause 4.1 of the FFA. Plaintiff’s Preliminary Objection [15] The Plaintiff raised a preliminary objection that the Defendant’s Affidavit in Support of Enclosure 10 for the Order 14A application (AIS) was affirmed by an unauthorised deponent who did not have full knowledge of the proceedings. The Plaintiff submitted that the deponent is not a related party to the Defendant’s company. [16] The Defendant relied on the case of Molop Corp Sdn Bhd v Uniperkasa (M) Sdn Bhd [2003] 6 MLJ 311 and refuted the preliminary objection. The Defendant contended that the preliminary objection is baseless for the following reasons-a) The Deponent, Yam Kit Sung, is an authorised deponent to affirm the AIS on behalf of the Defendant. The Defendant’s director, Kwek Eik Sheng, has deposed in paragraph 11 of the AIS that Yam Kit Sung is authorised to affirm the AIS and other affidavits on behalf of the Defendant for the present suit. This is also supported by a written resolution passed by the Defendant’s Board of Directors on 24.2.2025. b) Yam Kit Sung has also, at paragraph 1 of the AIS, confirmed that he is authorised to affirm the affidavit on behalf of the Defendant. c) Yam Kit Sung also confirmed that he is affirming the affidavit based on the Defendant's records supported by the relevant exhibits and documentary evidence. [17] The Defendant also cited Omega Holdings Bhd v Dato' Tiah Thee Kian & Ors [2002] 6 MLJ 20 and relied on Order 41 Rule 5(2) of the ROC, which provides- “(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds hereof.” [18] Further, the material facts averred in the AIS are undisputed. The dispute is over the interpretation of Clause 4.1 of the FFA and whether the Plaintiff is entitled to the Finder’s Fees under the FFA. The Applications: Enclosures 10 and 11 [19] In Enclosure 10, the Defendant asks for this Court’s determination on the following- “That the questions of law or construction of documents set out below involving the parties are tried and decided without the full trial of the action to finally determine the entire cause or matter or any claim or issue herein: Question 1: Whether there was a “completion of sale” pursuant to Clause 4.1 of the Finder’s Fee Agreement dated 20.1.2020 (“FFA”)? Question 2: If the answer to Question 1 is in the negative, whether the Plaintiff is entitled to the Finder’s Fee in the sum of RM2,385,000.00 under Clause 4.1 of the FFA? If the answer to Question 2 is in the negative, then the Plaintiff’s Writ and Statement of Claim be dismissed.” [20] Whereas in Enclosure 11, the Plaintiff seeks summary judgment for payment of the Finder’s Fee under the FFA. [21] Therefore, this Court finds that the main determination of the matter as to whether the Plaintiff is entitled to the Finder’s Fee will answer the issue in the present suit in its entirety. PARTIES CONTENTION Plaintiff’s contention [22] The Plaintiff, in Enclosure 11, has filed a Summary Judgment Application against the Defendant and contended that this is a simple and straightforward case that warrants a final Judgment to be entered against the Defendant for the Finder’s Fee. [23] The Plaintiff also contended that it had proven a prima facie case against the Defendant, that the Defence had no merit, and that there was no issue to be tried. [24] The Plaintiff further contended that the two (2) Questions asked by the Defendant in Enclosure 10 are clearly non-contentious and, in such a case, this suit ought to be decided in favour of the Plaintiff by way of the Plaintiff’s Application in Enclosure 11. [25] The Plaintiff then contended that it had fulfilled its duties as the Real Estate Agent for the Defendant by successfully introducing the Purchaser to the Defendant, who executed the SPA with the Defendant. [26] The Plaintiff further contended that the Defendant’s interpretation is misconceived and erroneous as it precludes the Plaintiff from claiming its right to the professional fee against the Defendant. [27] The Plaintiff submitted that the Prospective Purchaser has become the “Successful Purchaser” and that there was “completion of sale” upon execution of the SPA, and referred to the cases of Carey Real Estate Sdn Bhd v IOI Properties Group Bhd [2025] MLJU 152 and Tang Chiok Sing v Lian Fatt Sawmill Co [1976] 2 MLJ 241. [28] The Plaintiff further submitted that the Finder’s Fee must be paid upon the Prospective Purchaser becoming the Purchaser, not upon the Purchaser having duly paid the balance of the purchase price under the SPA to complete the purchase. [29] The Plaintiff also submitted, in the alternative, that the words “completion of sale” may be interpreted to mean the end of the sale or the end of the SPA. The sale of the SPA has ended because the Defendant terminated it. Accordingly, the Plaintiff shall remain entitled to the Finder’s Fee. [30] The Plaintiff then submitted that the intention of the parties at the time of executing the FFA was for the Defendant to appoint the Plaintiff as its Real Estate Agent to introduce to the Defendant or the Defendant’s affiliated companies, a Prospective Purchaser who would subsequently enter into an agreement for the sale and purchase of the Hotel. [31] The Plaintiff submitted that the plain and literal interpretation of the clear words of Clause 4.1 of the FFA shows that the Defendant is obliged to pay the Finder’s Fee to the Plaintiff upon the execution of the SPA, when the Prospective Purchaser becomes a “Successful Purchaser”. [32] The Plaintiff further submitted that the term “completion of sale” shall be construed to mean the execution of the SPA. It is not the due completion of the sale and purchase agreement, but only “completion of sale”. Upon execution of the SPA, the transaction is completed. [33] The Plaintiff contended that the subsequent wording of Clause 4.1 of the FFA shall also be taken into account when construing the words “completion of sale”. The subsequent words are “when the agreement becomes unconditional”. According to the Plaintiff, there are two (2) timings provided in the second part of Clause 4.1 of the FFA for the payment of the Finder’s Fees. The Plaintiff contended that it would be illogical and unreasonable to interpret the words “completion of sale” to mean a duly and successfully completed SPA, with the balance of the purchase price paid. On the other hand, Finder’s Fees will also be paid “when the agreement becomes unconditional”. [34] The Plaintiff further posed this question: “Does this mean that a conditional sale and purchase agreement is preferable to an unconditional sale and purchase agreement in terms of the timing of payment of the Finder’s Fees?” [35] The Plaintiff then submitted that the correct and proper interpretation of the second part of Clause 4.1 of the FFA is that the time for payment of the Finder’s Fee is on the date when the SPA becomes unconditional. The Plaintiff contended that the SPA is unconditional and, as such, the payment term is within 14 days of the SPA's execution. [36] The Plaintiff’s central proposition is that Clause 4.1 when interpreted according to the well settled principles of contractual construction, established a two (2) stage structure-

Entitlement arises when a specific event occurs; and

Payment is scheduled for a later point in time. [37] The Plaintiff contended that Clause 4.1 of the FFA comprises two

limbs: the liability limb and the timing limb. The liability limb arises from the Defendant’s obligation to pay upon the Prospective Purchaser's becoming the Successful Purchaser. The timing limb is when payment is to be made upon the happening of a certain event, i.e., subject to the issuance of the invoice within fourteen (14) days thereof, upon completion of the sale, or upon the Agreement becoming unconditional (if the Agreement is conditional), whichever is earlier. According to the Plaintiff, it was described as “debitum in praesenti, solvendum in futuro”. A debt in the present, payable in the future and referred to the House of Lords decision in Luxor (Eastbourne) Ltd v Cooper [1941] AC 108. [38] The Plaintiff then submitted that Clause 4.1 does not use conditional wording such as “subject to completion”, “conditional upon completion”, or “provided completion occurs”. Their absence is determinative. Conversely, the clause uses the word “upon”, which, as a matter of law and language, denotes timing and not conditionality. The condition for entitlement is expressly stated as the Purchaser must become the Successful Purchaser, which, on the facts of this case, occurred when the SPA was duly executed and the deposit was paid. [39] Accordingly, the Plaintiff submitted that the Defendant’s liability under Clause 4.1 arose upon the Prospective Purchaser's execution of the SPA and payment of the deposit, thereby making the Prospective Purchaser the Successful Purchaser. The reference to completion of sale concerns only “when payment is to be made, not whether payment is owed”. [40] The Plaintiff also submitted that there is a clear and relevant distinction between when the fees are “earned” by the Plaintiff and when they are payable. Once earned, the Defendant is obligated to pay, and the Plaintiff has a right to payment of the fees, although payment may be postponed. Defendant’s Contention [41] The Defendant took the position that the main issue raised in the present suit can be disposed of by way of Order 14A or Order 33 of the ROC. This is because the issue raised here is purely an issue of interpretation of the FFA. Hence, the Defendant filed Enclosure 10. [42] The Defendant submitted that Enclosure 10 ought to be answered in the following manner-a) Question 1: Whether there was a “completion of sale”

1.

The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that—

such question is suitable for determination without the full trial of the action; and

such determination will finally determine the entire cause or matter or any claim or issue therein.

On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.” (Emphasis Added) [55] Order 33 Rule 2 of the ROC provides- “Time of trial of questions or issues (O. 33, r. 2)

The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.” (Emphasis Added) [56] Additionally, Order 33 Rule 5 of the ROC states- “Dismissal of action after decision of preliminary issue (O. 33, r. 5)

If it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just.” (Emphasis Added) [57] The law relating to summary disposal of an action is well established. In Lembaga Pembangunan Industri Pembinaan Malaysia v. Konsortium JGC Corporation & Ors [2015] 6 MLRA 712; [2015] 6 MLJ 612; [2015] 9 CLJ 273; [2016] 3 AMR 425, the Federal Court held- [38] We begin by briefly discussing the mode of action, which alludes to O 14A of the Rules. This order enables the High Court to determine any question of law or construction of documents arising in any cause or matter at any stage of the proceedings, where to the court such questions are suitable for determination without going through a full trial, and that determination will dispose of the entire matter. In order to do that it is crucial that all the necessary and material facts relating to the subject matter of the question have been duly proved or admitted. In a gist there are no substantial factual disputes left to be resolved. In The Malaysian High Court Practice 2001 Desk Edition at para 14A.1.3, the writers authored: "The question of law or construction must be suitable to be determined without the full trial of the action. The test of whether the question of law or construction is 'suitable' to be determined under this order is whether all the necessary and material facts relating to the subject matter of the question have been duly proved or admitted. This postulates that there is no dispute or no further dispute exists as to the relevant facts at the time when the court proceeds to determine the question. The suitability of disposing of an action under this order depends entirely on whether the court can determine the question of law raised without a full trial of the action". [58] Likewise, in Dato’ Sivananthan a/l Shanmugam v Artisan Fokus Sdn Bhd [2016] 3 MLJ 122; [2015] 3 AMR 104; [2015] 2 CLJ 1062, the Court of Appeal held that- “[10] It is obvious that the power of the court under this order is discretionary, as clearly evident by the use of the word ‘may’ therein. The power, in our opinion, is only exercisable where the determination of any such question of law or construction of any document, as the case may be, appears to the court to be suitable without the full trial of the action and will finally determine the entire cause or matter or any claim or issue in such action. This is a required prior condition or a prerequisite which must be fulfilled before this order can be invoked. The court should not, as a matter of course, proceed to determine any such question without first considering the legal prerequisite in this order. In a nutshell, the conditions prescribed in r 1 are not that can be conveniently avoided or sidestepped.” (Emphasis Added) [59] Based on this, this Court finds that the question in Enclosure 10 is suitable for determination without a full trial, which would finally determine the entire claim (See also Director of Forests, Sarawak & Anor v Racha ak Urud @ Peter Racha Urud & Ors and other appeals [2017] 4 MLJ 42 (FC); [2017] 4 MLJ 42; [2017] 5 CLJ 389; Petroleum Nasional Bhd v. Kerajaan Negeri Terengganu & Another Appeal [2003] 1 MLRA 582; [2004] 1 MLJ 8; [2003] 4 CLJ 337; [2003] 5 AMR 696 (CA), Meck Petroleum DMCC v. International Bird Shipping Co Inc [2026] 5 MLRA 377 (CA); [2026] CLJU 2071; and Syed Esa Syed Abdul Kadir & Anor v. Hisham Abdul Rahim & Ors [2022] MLRHU 3213; [2022] 1 LNS 799). [60] In Petroleum Nasional Bhd (supra), the Court of Appeal held- "[16] Order 33 r 2 of the RHC states that the court may order any question or issue arising in any cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated. The Federal Court in Palaniappa Chettiar v. Sithambaram Chettiar & Ors [1981] 1 MLRA 340; [1982] 1 MLJ 186 agreed with the learned judge in holding that it would be convenient to try the preliminary issue, as if the contention of the respondents was upheld, that could conclude the whole proceedings and it would be unnecessary to try the other issues. In Si Rajah & Anor v. Dato Mak Hon Kam & Ors (no 2) [1993] 3 MLRH 421; [1993] 3 MLJ 741; [1994] 1 CLJ 215; [1993] 2 AMR 3047, Lim Beng Choon J, after considering a large number of authorities on the ambit of O 33 r 2 and its equivalent, stated that before deciding to allow the preliminary questions to be raised, the court must bear in mind the following observations:

As a general rule, the court will exercise its power under O 33 r 2 if and only if the trial of the question will result in a substantial saving of time and expenditure which otherwise would have to be expended should the action go to trial as a whole;

An order under the said rule should not be made in respect of matters which by reason of the obscurity either of the facts or the law ought to be decided at the trial of the suit;

Preliminary points of law have been described as too often of so-called issues of fact, the justification is even harder to discern;

A preliminary question should be carefully and precisely framed so as to avoid difficulties of interpretation as to what is the real question which is being ordered to be tried as a preliminary issue. [17] Those are the applicable principles to an O 14A application and to the alternative application made pursuant to O 33 r 2. However, the outcome of their applications will depend very much on the facts of each case.” [61] Accordingly, this Court finds that all material facts relating to the subject matter have been duly admitted and are undisputed, implying that there is no dispute as to the relevant facts at the time this Court proceeds to determine the questions. [62] Thus, this Court finds that the Plaintiff’s claim is suitable for disposal by way of Order 14A / Order 33 of the ROC as the material facts have not been disputed. There are as follows-

The FFA is the contract that governs the contractual relationship between the Plaintiff and the Defendant;

(ii) The Plaintiff is the Defendant's appointed real estate agency to introduce a prospective Purchaser for the sale of the Hotel;

(iii) The Defendant had entered into the SPA to sell the Hotel with Ivory, which was introduced by the Plaintiff to the Defendant;

(iv) The SPA was terminated by the Defendant because Ivory could not pay the balance of the purchase price under the SPA; and

The issue before this Court solely concerns an interpretation of a contractual clause. [63] Apparently, the Plaintiff also took the position that the material facts are undisputed by filing the Summary Judgment Application. [64] In this regard, this Court is inclined to accept the Defendant's submissions that the entirety of the Plaintiff’s claim can be disposed of by determining whether there is “completion of sale” under Clause 4.1 of the FFA when the SPA has been terminated and the sale of the Hotel to Ivory was incomplete and unsuccessful. [65] The two questions in Enclosure 10 are-Question 1: Whether there was a “completion of sale” pursuant to Clause 4.1 of the FFA? Question 2: If the answer to Question 1 is in the negative, whether the Plaintiff is entitled to the Finder’s Fee in the sum of RM2,385,000.00 under Clause 4.1 of the FFA? [66] To answer whether the condition for payment of the Finder’s Fee in the FFA has been met, it is necessary to scrutinise Clause 4.1 of the FFA, which provides- “Eligible Purchasers and Payment of the Finder’s Fee

4.1 If a Prospective Purchaser becomes the successful purchaser of the Hotel (the “Purchaser”) Millennium shall pay to Company a finder’s fee which fee (the “Finder’s Fee”) shall be in the amount of three (3) percent (%) of the consideration plus Sales & Services Tax (if applicable) for acquisition of the Hotel either through completion of the acquisition of the entire interests in the Hotel or through completion of the acquisition of the beneficial ownership interests in the Group Company that owns the Hotel or by way of asset purchase. Subject to invoice issued by the Company to Millennium, the Finder’s Fee will be paid to the Company by Millennium within fourteen (14) days upon completion of sale or when the agreement becomes unconditional (if the Agreement is conditional), whichever is earlier.” [67] Clearly, Clause 4.1, in its plain and ordinary meaning, states that “the Finder’s Fee will be paid … upon completion of sale…”. On this point, this Court is persuaded by the Defendant’s submissions that “completion of sale” means the complete disposal of the Hotel from the Defendant to the Purchaser upon payment of the full purchase price, which did not happen in this case. [68] It is pertinent to note that the parties are bound by the terms of the FFA, and it is this Court's duty to give effect to the clear and plain meaning of the words in Clause 4.1. [69] In this regard, the Federal Court in the landmark case of CIMB Bank Bhd v. Anthony Lawrence Bourke & Anor [2019] 1 MLRA 599; [2019] 2 MLJ 1; [2019] 2 CLJ 1 held- [26] We agree with the defendant that parties are bound by the terms of the contract which they entered into and that it is the court's duty to give effect to the clear and plain meaning of the words in the said clause. That is quite trite. [28] It is also trite that an agreement must be construed by the words used in the agreement and the court is not empowered to improve upon the instrument which it is called upon to construct. This we have stated in Berjaya Times Square Sdn Bhd v. M-Concept Sdn Bhd [2009] 3 MLRA 1; [2010] 1 MLJ 597; [2010] 1 CLJ 269 where it was reiterated: "The court has no power to improve upon the instrument which it is called upon to construct, whether it be a contract, a statute or art of association. It cannot introduce terms to make it fairer or more reasonable. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning to a reasonable person having all the background knowledge which would reasonable be available to the audience to whom the instrument is addressed; See Investors Compensation Scheme Ltd v West Bromwich Building Society. It is this objective meaning which is conventionally called the intention of the parties, or the intention of Parliament or the intention of whatever person or body was or is deemed to have been the author of the instrument." [29] The House of Lords in Investors Compensation Scheme Limited v. West Bromwich Building Society [1998] 1 WLR 896 had observed: "The 'rule' that words should be given their 'natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one were to nevertheless conclude from the background that something must have gone wrong with the language, the law does not require Judges to attribute to the parties an intention, which they plainly not have had." [70] It is this Court's view that the Finder’s Fee was to be paid only upon the occurrence of a specific event, namely, the Hotel's complete sale. And the sale of the Hotel can be completed only upon payment of the full purchase price and the transfer of the Hotel’s ownership to the Purchaser. However, this did not happen because the SPA was terminated due to the Purchaser's failure to pay the balance purchase price in accordance with the SPA. Since the sale was not completed, the Plaintiff is not entitled to the Finder’s Fee. [71] The Defendant cited two (2) foreign cases, namely the Australian Court of Appeal case of Phillipson v Indus Realty Pty Ltd [2004] VSCA 61 and an English Court of Appeal case of Lott v Outhwaite (1893) 10 TLR 76. In these cases, it was established that when commission is payable on the condition of “completion of sale”, the agent is not entitled to any commission if the sale transaction is not completed by payment of the full purchase price. The mere signing of the sale and purchase agreement and receipt of the deposit do not constitute “completion of sale”. [72] In Phillipson (supra), the appellants engaged the respondent, a real estate agent, to sell a property. The engagement was recorded in an “exclusive sale authority” document. The agent’s commission is payable “subject to completion of a sale”. The property was sold to a purchaser introduced by the respondent real estate agent, and the appellants were paid a deposit of $100,000. However, the sale was not completed, and the appellants resold the property through a different agent. The respondent brought a claim against the appellant for the commission. The Court of Appeal found that the respondent was not entitled to any payment of commission because there was no “completion of sale”. [73] Likewise, in Lott v Outhwaite (supra), Outhwaite appointed an agent to find a purchaser for the estate, and the commission term is “allow [the agent] 2.5 per cent bonus on completion of the purchase”. The agent found a purchaser, Deane, and Outhwaite entered into an agreement with Deane to purchase the estate for £18,500. Deane paid £925 as a deposit immediately after signing the agreement, and the balance was to be paid upon completion of the purchase on 1.1.1887. Deane could not complete the purchase at the appointed time. Deane and Outhwaite entered into an agreement to extend the time for completion, and Deane paid an additional deposit of £3,000. Nevertheless, Deane failed to complete the purchase in its entirety, and the contract was ultimately rescinded. The agent sought to claim the commission for the sale. The English Court of Appeal dismissed the claim on the basis that the agent’s entitlement to the sale commission does not arise because the purchase had not been completed. [74] Accordingly, the Defendant submitted that in the present case, there is no “completion of sale” of the Hotel under Clause 4.1 of the FFA because the SPA was ultimately terminated by the Defendant. Applying the reasoning in both Lott and Phillipson, the mere signing of the SPA, the Defendant’s receipt and forfeiture of the deposit under the SPA do not constitute “completion of sale”. This Court is thus persuaded and accepts that an agent cannot earn his commission, which is payable only upon completion of the sale, unless the full purchase price is paid. [75] Further, the SPA between the Defendant and Ivory is not a conditional agreement. As such, the phrase “when the agreement becomes unconditional (if the Agreement is conditional)” in Clause 4.1 of the FFA is inapplicable. [76] The Defendant also submitted that the meaning of “completion of sale” is determined by the words “acquisition of the hotel” in Clause 4.1 of the FFA. The presence of the words “acquisition of the hotel” together with “completion of sale” meant that the completion of the sale must include the purchaser's complete acquisition of the Hotel. [77] The Defendant further referred to Black’s Law Dictionary (10th edn) on the definition of “acquisition”. “acquisition” means “[t]he gaining of possession or control over something” and submitted that there was no “completion of sale” by way of “acquisition of the hotel”. This is because it is undisputed that the SPA was ultimately terminated and that Ivory (the purchaser introduced by the Plaintiff) did not gain possession of or control over the Hotel. [78] Consequently, upon perusal of the Defendant’s submissions, this Court is inclined to agree with those submissions. [79] The Plaintiff also submitted that Clause 14 of the FFA should be taken into account in interpreting Clause 4.1. In Clause 14 of the FFA (which applies in the event of termination of the said FFA), the Finder’s Fees must be paid “for any Prospective Purchaser submitted during the terms of this Agreement that subsequently becomes the Purchaser…”. [80] Clause 14 of the FFA must be read as a whole; the termination clause clearly states- “...Upon a termination of this Agreement, Millennium shall remain responsible to the Company for payment of a Finder’s Fee as described in Clause 4 above for any Prospective Purchaser submitted during the term of this Agreement that subsequently becomes the Purchaser within a period of one hundred and eighty

days after the termination of this Agreement.” [81] Here, the FFA was not terminated. Only the SPA was terminated. Therefore, this Court is not inclined to accept the Plaintiff's submissions on this point. [82] From the literal reading of the FFA, it is obvious that the Plaintiff is only entitled for the Finder’s Fee of 3% and tax: “If a Prospective Purchaser becomes the successful purchaser … for acquisition of the Hotel either through completion of the acquisition of the entire interests in the Hotel or through completion of the acquisition of the beneficial ownership interests in the Group Company that owns the Hotel or by way of asset purchase.”. [83] Further, there is no issue as to whether there is another limb in Clause 4.1 pertaining to “upon completion of sale or when the agreement becomes unconditional (if the Agreement is conditional), whichever is earlier.” as the SPA was a typical sale and purchase transaction without the requirement to fulfil any condition precedent to finalise the SPA. [84] The Plaintiff’s entitlement to the Finder’s Fee is solely governed by the express term under Clause 4.1 of the FFA. There is no ambiguity or vagueness in this provision. Having agreed to Clause 4.1 of the FFA, the Finder’s Fee is payable only upon the occurrence of the event triggering such payment. In Luxor (Eastbourne) Ltd v Cooper [1941] AC 108, the House of Lords held- “…But there is a third class of case (to which the present instance belongs) where, by the express language of the contract, the agent is promised his commission only upon completion of the transaction which he is endeavouring to bring about between the offeror and his principal. As I have already said, there seems to me to be no room for the suggested implied term in such a case. The agent is promised a reward in return for an event, and the event has not happened. He runs the risk of disappointment, but if he is not willing to run the risk he should introduce into the express terms of the contract the clause which protects him.” [85] The Defendant submitted that both parties are commercial parties that have negotiated the FFA at arm’s length. The Plaintiff, in particular, is a well-known real estate agency. If the parties had wanted “completion of sale” to mean execution of the SPA, they could very well have drafted the contract expressly in that manner. This Court finds this argument logical and makes sense. By agreeing to the wording of clause 4.1 of the FFA, which entitles the Plaintiff to payment only upon completion of the sale, the Plaintiff had undertaken the “risk of disappointment”. If it had not been willing to run such a risk, the Plaintiff “should introduce into the express terms of the contract the clause which protects” it. [86] Similarly, the Plaintiff cannot ask the Court to improve upon the terms agreed by the parties. In the Federal Court case of Catajaya Sdn Bhd v Shoppoint Sdn Bhd & Ors [2021] 2 MLJ 374, [2021] 3 CLJ 159; 2021] 2 AMR 1, the Federal Court held that it would not improve the terms of the contract agreed between parties, no matter how desirable the improvement is- “[54] In Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601 Lord Pearson remarked: … the court does not make a contract for the parties. The court will not even improve the terms which the parties have made for themselves, however desirable the improvement might be. The court’s function is to interpret and apply the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made between different possible meanings: the clear terms must be applied even if the court thinks some other terms would have been suitable. An unexpressed term can be implied if and only if courts finds that the parties must have intended that term to form part of their contract.” (Emphasis Added) [87] Thus, this Court is inclined to accept the Defendant's submissions that the word “completion” in Clause 4.1 of the FFA must be accorded its intended meaning. The Defendant cited Parkwell Departmental Store Sdn Bhd v ICSD Ventures Sdn Bhd [2021] 1 MLJ 60, where the Court of Appeal emphasised that parties intended every single word incorporated into a contract to have a specific purpose and that it must be given its meaning. It was held- “[25] The interpretation of the terms of a commercial contract must be done such as to give business efficacy. The doctrine of purposive construction of contracts entails that in the construction of a contractual term there must be ascribed to the words a meaning that would make good commercial or business sense. In this regard, the duty of the court is to construe the words used in the contract to give business efficacy to the bargain between the parties, rather than to strike down the words as bearing no meaning or an obtuse literal meaning. Every word used in the contract must be presumed to be used by the parties intentionally and for a purpose, and the words must be given their plain and ordinary meaning. If the terms or words used can be given a meaning that would accord with the purpose for which the term is contained in the contract, then a purposive construction must be made to give effect to it. (Emphasis Added) [88] In regard to the Plaintiff’s preliminary objection to expunge AIS of Enclosure 10, this Court is of the view that Yam Kit Sung is an authorised deponent to affirm AIS as he has personal knowledge of the facts from the records and documents. Therefore, the preliminary objection is dismissed. [89] Accordingly, the questions posed in Enclosure 10 are answered in the Defendant’s favour because-

There was no “completion of sale” under Clause 4.1 of the FFA following the termination of the SPA between the

The Plaintiff’s entitlement to the Finder’s Fee under Clause 4.1 of the FFA does not arise because the conditions for payment are not fulfilled. [90] Therefore, the Plaintiff is not entitled to, and does not earn, the Finder’s Fee. CONCLUSION [91] For the reasons stated above, this Court answers the questions raised in Enclosure 10 as follows: a) Question 1: Whether there was a “completion of sale” pursuant to Clause 4.1 of the Finder’s Fee Agreement dated 20.1.2020 (“FFA”)? Answer 1: Negative. b) Question 2: If the answer to Question 1 is in the negative, whether the Plaintiff is entitled to the Finder’s Fee in the sum of RM2,385,000.00 under Clause 4.1 of the FFA? Answer 2: Negative. [92] In view of the above findings, Enclosure 10 is allowed, and Enclosure 11 is dismissed. [93] Consequently, this Suit is dismissed with costs. DATED: 12 JULY 2026 -SGD- (DR. SUZANA BINTI MUHAMAD SAID) Judge High Court 3 Georgetown, Pulau Pinang COUNSELS For the Plaintiff : Messrs Kumar Jaspal Quah & Aishah For the Defendant : Messrs Rahmat Lim & Partners