Deed of Assignment duly executed by Madam Kalaimathi for the transfer of the two shares in the property bearing postal address at No.10, Jalan Murni 5, Taman Murni, 43900 Sepang, Selangor in favour of Madam Chandra a/p Pachaiappan Shall take place on the 07.11.2014 at your good office. [17] This Court must highlight that it is verily insidious for the Defendants to push the Plaintiff to adhere to the deadline of 7.11.2014 which is exactly the day after the date of the 11 Defendants’ Letter 2. Verily, if the parties are in agreement with the exchange, then some time would be required to have all the documents in order. Thus, the Plaintiff has accordingly replied to this letter on 12.11.2014. [18] The Defendants also wrote in the same letter to confirm if the Plaintiff is agreeable to pay the Defendants’ Lawyers’ fees. [19] In response to Defendants’ Letter 2, the Plaintiff had written in a letter dated 12.11.2014 vide her solicitors (Plaintiff’s Letter 1) and confirmed that she is altogether willing and ready to execute the transfer of her shares in House No. 10. The Plaintiff also wrote to confirm if the Defendants are prepared to reciprocate by handing over all relevant documents duly executed to enable the transfer of the Plaintiff’s Lot together with the requisite payments for the registration fees and late penalties. The Plaintiff also has agreed although in protest, to pay the remainder fees of the Defendants’ Lawyers. [20] Now, up unto this point, the Defendants then fell dead silent. There were no other correspondences sent by the Defendants to keep the ball rolling in ensuring the performance of the Agreement. 12 Instead, the Defendants opted to leave the process in stagnation in refusing to respond to the Plaintiff’s letter requesting for the Defendants to honour the arrangement of exchange that the Defendants themselves have set. [21] Two months have passed with the Defendants nowhere in sight. It is verily telling that the Defendants are totally disinterested to go through with the exchange. The Plaintiff wrote yet again to the Defendants vide her solicitors in a letter dated 20.1.2015 (“Plaintiff’s Letter 2”) the following year, now alleging outright the Defendants’ failure to discharge their duties and obligation to cause and facilitate the exchange. The Plaintiff demanded that the Defendants to return all of the necessary documents to enable the transfer of the Plaintiff’s Lot. [22] To date, the Defendants have failed to exhibit any proof that the Defendants have replied or denied any of the allegations in the Plaintiff’s Letter 2. Apart from the clear disinterest and failure to facilitate the exchange and performance of the Agreement, the Defendants in failing to exhibit any reply to this letter is clear proof of the Defendants’ admission to the allegations. Thus, the Defendants in admitting to these allegations coupled with the 13 sheer fact of their failure and refusal to facilitate the exchange, cannot now go against their own admission by contending on the Plaintiff’s alleged breach of failing to transfer her shares in House No 10 (which altogether was the Defendants’ own fault). [23] This Court is guided by the decision of the Court of Appeal in the case of Cheah Theam Kheang v City Centre Sdn Bhd & Other Appeals (2012) 2 CLJ 16 which had held that: “In other words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers Plc v News (UK) Ltd and Others (1990) 3 All ER 376 at pp. 383 to 384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitude towards another : he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” [24] The Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 14 had referred to Lord Denning’s decision in the case of Amalgamated Investment which had held the following: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no 15 difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” (See also Talam Corporation berhad & Anor v bankok Bank Berhad & Anor [2015] MLRHU 1) [25] Regarding the payment of the Defendants’ Lawyers’ fees, the Defendants’ Lawyers even until now had not issued any invoice to the Plaintiff for payment. Even if the Defendants’ lawyers did issue an invoice, there are no reasons whatsoever for the Plaintiff to honour the invoice as the Defendants have not performed their end of the bargain in facilitating the exchange as well as the transfers under the Agreement. [26] Now, it is preposterous that the Defendants now attempt to pin the blame for the non-payment of the Defendants’ Lawyer’s fees as well as the failure to transfer the shares in House No. 10 against the Plaintiff, when it is patently clear that the Defendants were the delinquent parties that had stagnated and hindered the process of the exchange and transfer. These failures are the Defendants’ own 16 doing. The only reason the shares in House No. 10 were not yet transferred is because the Defendants themselves had not stepped up to their part of the bargain. As much as the Plaintiff is obligated to transfer his shares in House No. 10, it is equally as much of an obligation for the Defendants to facilitate the transfer of the Plaintiff’s Lot. [27] The Plaintiff had duly signed the deed of assignment and had already written to the Defendants that she was at the ready to execute the transfer of her shares in House No. 10 pending the Defendants’ response. But the Defendants fell totally silent. There are no reasons whatsoever for the Plaintiff to pay the Defendants’ Lawyers’ fees and execute the transfer of her shares in House No. 10 when the Defendants have shown total disinterest in honouring their part of the Agreement. It is instead the Defendants’ total breach of the Agreement that led to the non-performance of the Agreement to date. [28] Accordingly, the Defendants cannot hide behind their own breaches to make a defence against the Plaintiff’s case. This is a trite principle of law and the Defendants clearly are no exception to it. This Court draws valuable guidance from the case of Sangka 17 Bin Chuka & Anor v Pentadbir Tanah Daerah Mersing, Johor & Ors [2016] MLJU 01 which had held the following: “Thirdly, the argument that there is no exclusivity or sufficient control to prevent interference because the third Respondent had built permanent structures on the claimed lands within the Endau Rompin National Park is clearly flawed by reason of the trite principle that one cannot take advantage of one’s own default. The application of the legal principle that a party cannot benefit from his own breach or default can be seen in the case of Pentadbir Tanah Daerah Petaling v Swee Lin Sdn Bhd [1999] 3 MLJ 489 where the Court of Appeal decided that a land owner who erected a warehouse on his land in breach of the requirement to obtain planning permission should not receive any benefit from it from any compensation to be paid in respect of the acquisition of the land. Similarly in the case of Khoo Cheng & Ors v Pentadbir Tanah Muar [2008] 3 CLJ 534, the order of forfeiture in favour of a party was set aside because of prior non-compliances with a number of mandatory requirements of the NLC by the same party. Indeed, the Court of Appeal in Sagong bin Tasi too stated that it would not be correct for the 18 State Government to argue that no compensation ought to be paid on account of the non-gazetting of the relevant customary lands, which should have been but failed to have been undertaken by them in the first place. In the instant case, the third Respondent should probably not have built the Structures on a land that rightfully belonged to the Applicants. At least not without acknowledging the pre-existing customary land rights of the Applicants.” [29] It has been similarly decided by the High Court in the case of Bank Simpanan Nasional v Rudysham bin Abdul Raof [2016] MLJU 909 that: “(h) No Benefit from Own Default [87] It is also my finding that the appellant is additionally subject to the trite principle of law that a party cannot benefit from his own wrong or default, which in this case, being the negligent mistake by the appellant. It is an established presumption in law that parties to a contract do not intend that either party should be able rely on its own breach of obligations to 19 avoid a contract or obtain any benefit under it, unless the contrary is clearly provided for by the contract…” [30] Thus, with all of the above in consideration, this Court finds that it is instead the Defendants who had breached the terms of the Agreement. It is also this Court’s finding that the Defendants had shown total disinterest to honour the Agreement and transfer the Plaintiff’s Lot to the rightful proprietorship of the Plaintiff. [31] The Defendants in hiding behind their own breaches and hindering the process of the exchange and transfer had not acted justly, appropriately and reasonably. It is patently clear that the Defendants have unjustly and unreasonably failed to ensure that they have acted in the interest of all the beneficiaries to the deceased’s estates without favouring the interest of one beneficiary over another. (see the Federal Court’s decision in Ong Thye Peng v Loo Choo Teng & Ors [2008] 4 MLJ 31). [32] It is also patently clear that the Defendants have unjustly and unreasonably delayed or attempted to avoid from performing their obligation in hiding behind technicalities in which were the 20 Defendants’ own fault. (see Lim Wuay Chern Dan Satu Lagi – LWN-Lee Wee Kuan Dan Satu lagi [2007] 8 MLJ 100). D.