Majlis Agama Islam Wilayah Persekutuan v Glomac Resources Sdn Bhd (W-02(NCVC)(W)-1215-07/2017)

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-02(NCVC)(W)-1215-07/2017 BETWEEN MAJLIS AGAMA ISLAM WILAYAH PERSEKUTUAN … APPELLANT AND GLOMAC RESOURCES SDN BHD (COMPANY NO.: 354475-X) … RESPONDENT (IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF FEDERAL TERRITORY, MALAYSIA) CIVIL SUIT NO. 22NCVC-364-07/2015 Between Glomac Resources Sdn. Bhd. … Plaintiff (Company No.: 354475-X)

1. And Majlis Agama Islam Wilayah Persekutuan … Defendants

2. Leader Domain Sdn. Bhd. [Company No.: 590455-A]) 2 CORAM: ABDUL RAHMAN BIN SEBLI, HMR ZALEHA BINTI YUSOF, HMR RHODZARIAH BINTI BUJANG, HMR GROUNDS OF JUDGMENT Brief facts of the case

(1) The starting point in the dispute between the parties in this appeal was a joint venture agreement dated 25/8/2004 (the August agreement) entered into between the appellant, Majlis Agama Islam Wilayah Persekutuan (“Majlis Agama Islam” for short who was the 1st defendant in the High Court) and Leader Domain Sdn Bhd (“Leader Domain” for short who was the 2nd defendant in the High Court and not a party in this appeal). The August agreement was in respect of the development of a piece of land belonging to the appellant and the project was named Galleria Hartamas. Under the August agreement, the parties have agreed in clause 5.1.1 that the appellant would receive cash payment of RM 12.5 million to be paid progressively and one lot of intermediate 3 storey shop office building (“in-kind entitlement”) valued at RM3 million under clause 5.1.2. Under clause 8.16 the parties agreed that one of the 3 units belonging to Majlis Agama Islam would be converted to a surau at the total expense of Leader Domain. The building of the surau was part of the condition imposed by Datuk Bandar Kuala Lumpur in the approval for the development of the said project. However less than 2 months later, on 8/10/2004, Leader Domain entered into another joint venture agreement (the October agreement) with Glomac Resources Sdn Bhd (“Glomac” for short) wherein Glomac agreed to perform the former’s obligations under the August agreement. The development of the said land was completed and it was not disputed that Majlis Agama Islam was paid by Glomac the agreed cash consideration of RM12.5 million or that on 21/2/2012 vacant possession of 3 units consisting of the first, second and third of the shop lot were delivered by Glomac to Majlis Agama Islam although no formal agreement were executed between them. This was because parties proceeded with and the official documentation to the relevant authorities were all made in Glomac’s name as the developer. What was disputed was the ground floor unit, where the surau was built, that is Unit B-G-01 (“the disputed surau unit”) and this was the subject matter of not just the decision of the High Court in this appeal before us but also two earlier court actions filed by Majlis Agama Islam against both the developers, separately and conjointly. 4 The court actions

(2) On 15/2/2013, Majlis Agama Islam filed an originating summons against Glomac and Leader Domain for an interlocutory injunction to restrain them from dealing with the property, in particular the disputed surau unit until the dispute in relation thereto has been determined by arbitration and/or until further order of the Court. An ex parte order was granted on 19/2/2013 and at the inter-partes hearing both Glomac and Leader Domain were represented by counsel. Parties then proceeded to take steps to refer the dispute for arbitration but subsequently and for reasons not material to the issue at hand in this appeal, a consent judgment was entered between Leader Domain and Majlis Agama Islam where Leader Domain agreed not to deal with the disputed surau unit until the dispute between Majlis Agama Islam and Leader Domain on the said unit has been resolved by the court. They both also agreed to set aside their rights to refer the dispute to arbitration and for Majlis Agama Islam to file an action in the High Court to seek a declaration in the High Court or other suitable remedies in respect of their dispute. It is to be noted that Glomac’s counsel was not present when that consent judgment was entered and his absence was clearly recorded in the court order (page 889 of the Appeal Record). 5

(3) Then on 24/6/2013 Majlis Agama Islam filed a suit in Kuala Lumpur High Court (Suit no 22 NCCVC-406-06/2013 and hereinafter referred to as Suit 406) against Leader Domain to, inter alia, seek and declare that it was the legal and beneficial owner of the disputed surau unit and for Leader Domain to deliver possession of the same together with all the furnishings within 1 month from the court order. Majlis Agama Islam subsequently filed a summary judgment application on 7/11/2013 and on 30/4/2014 Nor Bee Ariffin J granted the application. That decision went up on appeal to this court, which appeal was dismissed. 7 months 13 days after the dismissal of that appeal, Glomac filed this suit under appeal (Suit no 22 NCVC-364-07-2015) in the same High Court. In that suit, Glomac prayed to, inter alia, set aside the summary judgment on grounds of fraud, breach of natural justice and of its constitutional rights, that Glomac had satisfied its obligation of paying Majlis Agama Islam RM15.5 million under the August agreement with one of the delivered unit to be converted into a surau at the expense of Glomac. In other words, the disputed surau unit was theirs.

(4) This suit was heard before S. Nantha Balan J and it was heavily contested by Leader Domain and Majlis Agama Islam who filed a joint defence and reiterated, inter alia, that Majlis Agama Islam was the registered and beneficial owner of the disputed surau unit, that Glomac 6 was estopped from getting the reliefs as prayed based on the principles of estoppel and/or res judicata and the action is an abuse of the court process. It was also pleaded that there was no privity of contract between Majlis Agama Islam and Glomac. This action went for full trial and despite the joint statement of defence filed, only Majlis Agama Islam participated at the trial. In a judgment dated 25/5/2017, Glomac was granted, inter alia, the following prayers against Majlis Agama Islam:

(ii) It was declared that Majlis Agama Islam’s entitlement under clause 5.1 of the August agreement is limited to the sum of RM15.5 million which Glomac has satisfied.

(iii) Majlis Agama Islam to pay Glomac the sum of RM1,140,000.00 being the value of Unit B-3-01 (the first floor unit) with interest at 5% per annum from 7/7/2015 until the date of full payment or realization.

(iv) Notwithstanding prayer (i) above, Majlis Agama Islam remained as the registered owner of Unit B-G-01,that is the disputed surau unit.

(5) Dissatisfied with the judgment, Majlis Agama Islam filed this present appeal before us and Glomac cross-appealed against prayer (iii) on the compensation. After hearing submissions from their respective counsel, we dismissed the appeal and allowed that of the cross-appeal by increasing the compensation to RM3.7 million with a global cost of RM40,000 to Glomac. Our reasons for ordering so are stated below but first it would be fair to give a summary of S. Nantha Balan J’s grounds of judgment in so far as the issues raised in this appeal are concerned. The said three issues as defined by learned counsel for Majlis Agama Islam in their written submission are:

(ii) Whether the learned High Court Judge erred in fact and in law in re-interpreting the August agreement and holding under clause 5.1 that Majlis Agama Islam was only entitled to a total amount of RM15,500,000.00.

(iii) Whether the learned High Court Judge erred in fact and in law in ordering Glomac to be compensated with damages of RM1,140,000.00 with interest and cost. 8 The High Court Judgment 1st issue : Settling aside the earlier judgment of Nor Bee Ariffin J.

(6) The learned High Court Judge, after considering the factual matrix of the case, evidence of witnesses, contemporaneous documentary evidence, the circumstances and probabilities of the case found that there was a firm and unequivocal understanding and a tacit, if not an express understanding or agreement, between Glomac and Majlis Agama Islam that Glomac will not deal with the disputed surau unit until the entitlement to that unit was resolved by the court in a court action to be initiated by Majlis Agama Islam. Majlis Agama Islam knew that Glomac would put up a strong opposition to their claim in Suit 406 as admitted by their witness, Encik Wan Mohd Sanusi bin Mohd Noor (DW2) at the trial and thus did so without their knowledge. It was probable, said His Lordship that if Glomac was a party in Suit 406, summary judgment would not have been entered. At the trial Glomac adduced evidence to show that they only discovered the existence of Suit 406 when they offered to sell the disputed surau unit to Majlis Agama Islam vide a letter dated 19/5/2014 which the former replied vide a letter dated 17/7/2014 to say that the High Court had declared that the disputed surau unit belonged to them. Glomac was also informed that the decision was on appeal and that the Court of Appeal would be delivering its decision on 9 22/7/2014 although the truth was the appeal was only heard and decided by the Court of Appeal on 24/11/2014, which was 4 months later.

(7) In fairness to Majlis Agama Islam and as reproduced in paragraph 47 of the judgment of the learned High Court Judge, Majlis Agama Islam’s witness DW2 did explain why Glomac was not joined as a co-defendant in Suit 406. He listed out six reasons for the non-joinder, one of which was that Glomac through the conduct of its counsel was not interested to be involved in the dispute. Therefore, said the witness, given the dispute was between Majlis Agama Islam and Leader Domain and that Glomac was just Leader Domain’s agent and/or representative, it was not made a party in Suit 406. This drew a specific comment from the learned High Court Judge who said that the contemporaneous correspondence does not support such a contention and the fact is that Majlis Agama Islam filed the Originating Summons against Glomac, then wrote to it on 18/4/2013 asking Glomac to waive the arbitration and bring the dispute to court which Glomac’s solicitor by letter dated 26/4/2013 agreed and Glomac’s undertaking provided at Majlis Agama Islam’s request not to deal with the disputed surau unit until the resolution of the dispute by the civil court. The learned High Court Judge rejected Majlis Agama Islam’s contention that Glomac was not made a party in Suit 406 because they had no contractual relationship with it. As for the appeal in the Court of Appeal 10 of Suit 406, the learned High Court Judge acknowledged that Glomac could have been allowed to intervene in the appeal but given that summary judgment had been entered there was no action pending in the High Court, such an intervention may not be allowed following the Federal Court case of Hong Leong Bank Berhad (formerly Hong Leong Finance Berhad) v Staghorn Sdn Bhd and other appeals

(2008) 2 MLJ 622. Further, said His Lordship, being aware of Glomac’s interest in the disputed unit, and yet excluding them from Suit 406 it does not lie in Majlis Agama Islam’s mouth to suggest that Glomac should have intervened in the appeal. His Lordship therefore concluded that there was a blatant breach of the basic rules of natural justice and concealment of material facts for which the order of Nor Bee Ariffin J in Suit 406 must be set aside. 2nd issue : Interpretation of section 5.1

(8) The provisions on Majlis Agama Islam’s entitlements under the August agreement are sections 5.1, 5.1.1 and 5.1.2 but the relevant ones for this appeal are only the first and the last sections which are reproduced below: ‟ARTICLE V ENTITLEMENT SECTION 5.1 MAIWP’S ENTITLEMENT 11 In consideration of the mutual covenants agreements undertakings and obligations of the parties hereto and in further consideration of MAIWP agreeing to enter into this Agreement the parties hereto hereby mutually agree that MAIWP shall receive a total guaranteed return amounting to the sum of Ringgit Malaysia Fifteen Million Five Hundred Thousand (RM15,500,000.00) only which amount is based on the value of the Land as agreed by the parties hereto (hereinafter referred to as “the Cash Payment”) together with One (1) Lot of shop-office (intermediate unit) comprises at least Three (3) Storey Shop Office buildings to valued for the sum not less than Ringgit Malaysia Three Million (RM3,000,000.00) only (hereinafter defined as “in kind entitlement”) (the cash payment and in kind entitlement hereinafter collectively referred to as “MAIWP’s

5. Entitlement”) and MAIWP’s Entitlement shall be satisfied in the following manner:-

1.2 IN KIND ENTITLEMENT The Company shall allocate one (1) unit of shop offices comprises at least Three Storey building to be valued for an amount not less than Ringgit Malaysia Three Million (RM3,000,000.00) only and in the event that the sale price of the said unit less that the above value the Company shall pay the differences in cash to MAIWP.” 12 The learned High Court Judge at paragraph 77 of his grounds of judgment which we now paraphrased, asked this pertinent question, which is whether upon the interpretation of the above sections or clauses and taking into account Glomac’s conduct of conveying the delivered units (which had the combined value of RM4,3000,000.00) to Majlis Agama Islam, Glomac had fulfilled its “in kind obligation” under the August agreement. After due consideration of both the oral and documentary evidence, His Lordship held in paragraph 112 of his grounds of judgment that : ‟…. Quite clearly there is nothing in clause 5.1 or 5.1.2 of JVA-1 which entitles D1 to any additional floors as a “bonus”. At the same time, I am also cognizant that these clauses do not provide for D1 to pay for any “excess” if the value of what is given to them (in cash and in kind) is more than RM15,500,000.00. And so boils down to what is it that makes business sense. In my view, upon a proper construction of clauses 5.1 and 5.1.2 of JVA-1, what was in fact intended, is that D1 is to receive cash and “in kind” entitlement in the total sum of RM15,500,000.00.” Then in paragraph 126 of his grounds of judgment, the learned High Court Judge held as follows: ‟126. As such, since a cash sum of RM12,500,000.00 was paid by the plaintiff to D1 and the delivered units have a combined value of 13 RM4,300,000.00, the plaintiff has fulfilled its obligations as per clause 5.1 and 5.1.2 of JVA-1. I am therefore of the view that the disputed unit cannot be and is not part of D1’s “in-kind” entitlement under JVA-1.” The learned High Court Judge noted in the next paragraph 127 of the judgment that at the time of the trial both the delivered units and the disputed surau unit had all been registered in the name of the 1st defendant and that it would be cumbersome and rather problematic to set aside the registered ownership of the disputed unit and therefore the appropriate relief for the plaintiff would be a compensation for the loss of that unit. 3rd issue: Compensation to Glomac of RM1,140,000.00

(9) On this issue, the reasoning of the learned High Court Judge in arriving at the amount of compensation is stated in paragraph 132 of the judgment which reads: ‟132. Hence, if the plaintiff had say, delivered the disputed unit and Unit B-1-01 and Unit B-2-01, then ownership of Unit B-03-01 (valued at RM1,140,000.00) would remain with the plaintiff. In a sense, the plaintiff too must accept some responsibility for this debacle. In the result, I was of the view that the most fairest and equitable outcome would be to compel D1 to pay compensation to the plaintiff based on the market value for Unit 14 B-3-01 (RM1,140,000.00). I therefore ordered D1 to pay this sum as compensation to the plaintiff.” The appeal

(10) As was orally appraised before us at the hearing of the appeal by learned counsel for Majlis Agama Islam, the primary issue to resolve both the appeals was whether Majlis Agama Islam was entitled to all the four units claimed by them in this action, that is, the 3 delivered units and the disputed surau unit. However, before going into the merits of that issue the most pressing one which must first be determined was the setting aside of Nor Bee Ariffin J’s judgment. Setting aside of the summary judgment

(11) As stated earlier the grounds relied upon by Glomac to set aside the said judgment were fraud, denial of the fundamental rights to be heard and/or contravention of its constitutional rights, unjust enrichment and abuse of court process. Learned counsel for Majlis Agama Islam submitted that fraud could not be relied upon because no police report was lodged by Glomac against it and cited the case of Lin Kai Wing & Anor v Lin Kai Lam & Ors (2016) 4 MLJ 372. With respect, the application of the ratio in that case would be solely misplaced here because there the dispute was over misappropriation of monies in a 15 partnership given by the appellant and recovery of the same by one of its partners, the respondent. Obviously there was a criminal element to it and the court was also confronted with the issue of limitation for fraud under section 29 of the Limitation Act 1953. In this case before us, the material concealment was in not informing or bringing Glomac as a party to Suit 406 despite clear evidence, as stated by the learned High Court Judge of its interest in the said unit as detailed earlier. Thus, as rightly submitted by learned counsel for the Glomac, given that summary judgment has been entered and there existed only a small window of opportunity to intervene in the appeal against that decision, the filing of this suit was the better option although admittedly it was filed not soon after that decision by this court.

(12) We say that it was the right legal path to pursue because of the strength of case authorities which decided that it was so. The Federal Court in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd (1998) 1 MLJ 393, at page 409 of the report says this and which is quoted below in extensio: ‟ It is of course settled law as laid down by the Federal Court in Hock Hua Bank’s case that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. But one special exception to this rule (which was not in issue and therefore not 16 discussed in Hock Hua Bank) is where the final judgment of the High Court could be proved to be null and void on ground of illegality or lack of jurisdiction so as to bring the aggrieved party within the principle laid down by a number of authorities culminating in the Privy Council case of Isaacs v Robertson [1985] AC 97 where Lord Diplock while rejecting the legal aspect of voidness and voidability in the orders made by a court of unlimited jurisdiction, upheld the existence of a category of orders of the court ‘… which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court, without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity, and give to the judge a discretion as to the order her will make’. The Privy Council through Lord Diplock also emphasized that the courts in England have not closed the door as to the type of defects in the final judgment of the court that can be brought into the category that attracts ex debito justitiae the right to have it set aside without going into the appeal procedure, ‘save that specifically it includes orders that have been obtained in breach of rules of natural justice’. Similarly in this country, the statement of Abdoolcader J (as he then was) in Eu Finance 17 Bhd v Lim Yoke Foo ]1982] 2 MLJ 37 at page 39 provides the correct guideline on the subject: The general rule is that where an order is a nullity, an appeal is somewhat useless as despite any decision on appeal, such an order can be successfully attacked in collateral proceedings; it can be disregarded and impeached in any proceedings. Before any court or tribunal and whenever it is relied upon – in other words, it is subject to collateral attack. In collateral proceedings, the court may declare an act that purports to bind to be non-existent. In Harkness v Bells’ Asbestos and Engineering Ltd [1967] 2 QB 729, Lord Diplock LJ (now a Law Lord) said (at p 736) that ‘it has been long laid down that where an order is a nullity, the person whom the order purports to affect has the option either of ignoring it or of going to the court and asking for it to be set aside’. For my part, I must hasten to add that apart from breach of rules of natural justice, in any attempt to widen the door of the inherent and discretionary jurisdiction of the superior courts to set aside an order of court ex debito justitiae to a category of cases involving orders which contravened ‘ any written law’ , the contravention should be one which defies a substantive statutory prohibition so as to render the defective order null and void on ground of illegality or lack of jurisdiction. It should not for instance be 18 applied to a defect in a final order which has contravened a procedural requirement of any written law. The discretion to invoke the inherent jurisdiction should also be exercised judicially in exceptional cases where the defect is of such a serious nature that there is a real need to set aside the defective order to enable the court to do justice. In all cases, the normal appeal procedure should be adopted to set aside a defective order, unless the aggrieved party could bring himself within the special exception.”

(13) Further, we must also be consistent with this Court’s decision in Choong Howei v Cheah Choo Eng & Ors & another appeal (2015) 6 MLJ 95 where it was held that on the ground of fraudulent concealment of a material fact the respondents in that case should have filed a separate court action to impugn the order obtained against them. Such a concealment, held this Court, constitutes an exception to the general rule as stated by Mohd Azmi FCJ in Badiaddin’s case (supra) that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. In our view the filing of Suit 406 action despite clear evidence of Glomac’s interest in the disputed unit would come under what was said in Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd (2001) 4 MLJ 346 as “a deliberate fraud practised upon the court.” The fact that this Court had affirmed the said summary 19 judgment is of no legal consequence because this court was, as did Nor Bee Ariffin J, totally unaware of Glomac’s interest in the disputed surau unit. For clarity, we reiterate that the material concealment here was the said interest of Glomac’s in the disputed surau unit. By adjudicating the claim to that unit as part of their entitlement under the project without affording Glomac the right to be heard, there was obviously a breach of the rules of natural justice – whether Glomac’s interest was a legal and valid one as claimed by them or their claim an unjust enrichment and an abuse of the court’s process was not that of Majlis Agama Islam to make but for the court to adjudicate and determine. For these reasons, we were satisfied that the learned High Court Judge had made the right decision to set aside the said summary judgment. Entitlement of Majlis Agama Islam under clause 5.1 of the August agreement

(14) This clause 5.1 and clause 51.2 must not be read in isolation but with clause 8.16 which provides as follows: ‟SECTION 8.16 PRAYER PLACE FOR MUSLIM For the purpose of the Muslim to pray or to conduct Islamic religious activities the Company shall provide a necessary fittings and equipment for the establishment of a prayer place Muslims to perform their religious duties to one of the unit provided by MAIWP. One of the unit belonging to 20 MAIWP shall be converted to surau whereby the Company shall bear all costs for the establishment for the above prayer place including the costs of renovation.” The learned High Court Judge in his grounds of judgment at paragraph 76 referred to the Federal Court’s case of SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor (2016) 1 MLJ 464 which learned counsel for Glomac had also included in their Bundle of Authorities before us where Zainun FCJ had exhaustively laid down the guidelines for interpretation of a contract but what is a pertinent reminder relevant to this case is paragraph 27 of the said judgment, in particular the sub-paragraphs which have been highlighted below: ‟[27} In recent times, the restatement of principles in the landmark case of Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, at pp 912-913 (‘ICS’) provides a helpful starting point for the consideration of the relevant principles. The judgment of Lord Hoffmann is as reproduced below, where His Lordship stated that: … I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381, 1384-1386 and 21 Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of ‘legal’ interpretation has been discarded. The principles may be summarized as follows:

(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the ‘matrix of fact’, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the 22 language of the document would have been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see MANNAI Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1995] 1 WLR 1 508. 23

(5) 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 would 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 could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191, 201: If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to conclusion that flouts business common sense, it must be made to yield to business common sens”e (emphasis added). Then in paragraphs 51 to 53 Her Ladyship states as follows: ‟[51] Thus in addition to the above in interpreting the contract, the court must approach it holistically. No term is to be taken or interpreted in isolation. This canon of construction is so long established, it is almost banal. See for instance Chamber Colliery Ltd v Twyerould [1915] 1 Ch 268: 24 … the application of the well-known (sic) rule that a deed ought to be read as a whole, in order to ascertain the true meaning of its several clauses; and that the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible. [52] This is further reinforced by Lord Mustill in Charter Reinsurance Co Ltd v Fagan [1997] AC 313, 384, where His Lordship stated that ‘the words (to be interpreted) must be set in the landscape of the instrument as a whole’ . [53] In Re Sigma Finance Corporation [2010] 1 All ER 571, Lord Mance said: In my opinion, the conclusion reached below attaches too much weight to what the courts perceived as the natural meaning of the words … and too little weight to the context in which the sentence appears and to the scheme … as a whole. Lord Neuberger was right to observe that the resolution of an issue of interpretation in a case like the present is an iterative process, involving ‘checking each of the rival meanings against other provisions of the document and investigating its commercial consequences … ‘. 25 … Like him, I also think that caution is appropriate about the weight capable of being placed on the consideration that this was a long and carefully drafted document, containing sentences or phrases which it can, with hindsight, be seen could have been made clearer had the meaning now sought to be attached to them been specifically in mind … … Even the most skilled drafters sometimes fail to see the wood for the trees, and the majority below acknowledged … Of much great importance in my view, in the ascertainment of the meaning that the Deed would convey to a reasonable person with the relevant background knowledge, is an understanding of its overall scheme and a reading of its individual sentences and phrases which places them in the context of that overall scheme” (emphasis added).

(15) Against the backdrop of these legal principles and the relevant clauses of the August agreement as reproduced above, the evidence of Glomac’s Senior Project Manager, Kamal Zairuddin Shah bin Omardin (PW1) at pages 331 to 332 Volume 2A of the Appeal Record must also be considered. This evidence reads: ‟ Q: Now given the amended approved Building Plan presently before the Court, can the Plaintiff build the Surau at any other place other than the ground floor and the mezzanine floor? 26 No. Did the Plaintiff install fixtures and fittings for a Surau on the ground floor and the mezzanine floor as per the Amended Building Plan? Yes. So I put to you that even going by the Amended Building Plan, the Plaintiff themselves confirm that the ground and mezzanine floor was always intended to be a Surau and it belongs to MAIWP, agree? Yes. Can I take you to page 25 of Bundle B6. Encik Kamal, I refer you to specifically to Section [8.16], can you kindly read that portion out, can you kindly read the second sentence out for this Court? “One of the unit belonging to MAIWP shall be converted to Surau whereby the Company shall bear all costs for the establishment for the above prayer place including the costs of renovation.” Court: Sorry, what page again? DC: Page 25, Bundle B6, Section [8.16], second sentence. Encik Kamal, do you agree that the fixtures and fittings to the extent that was installed by the Second Defendant or Plaintiff was installed pursuant to its obligation contained in that portion of the Clause? Yes.” 27

(16) The learned High Court Judge had also alluded in paragraphs 83 to 84 of his judgment the evidence of DW1 (Mohd Hanif bin Salim) who was at the material time, the Ketua Unit Urus Setia, Bahagian Khidmat Pengurusan of Majlis Agama Islam who conceded that Majlis Agama Islam’s entitlement was based on the value of the land which was agreed at RM15,500,000.00 and that if the project was not a success it would be entitled to compensation in the same exact sum. His Lordship agreed with the submission of Glomac’s counsel that to concede to Majlis Agama Islam’s contention that “…. anything above three storeys becomes a bonus is an opportunistic interpretation, absurb and abhorrent to business common sense” because said His Lordship, “The corresponding business common sense interpretation of clauses 5.1.1 and 5.1.2 of JVA-1 was simply to arrive as near as possible to this value of RM 15,500,000.00 giving D1 at least 3 storeys”. Our decision

(17) When we examined the said clauses 5.1, 5.1.2 and 8.16 against the legal principles on interpretation of the contract as reproduced earlier, we simply could not find any fault with the findings and conclusion made by the learned High Court Judge as stated above as well as that which had been summarised in the earlier part of this judgment. The words used in the aforesaid clauses are indeed clear and unambiguous and spell out the intention of the parties in the most explicit of terms. At the 28 risk of repetition, the overall monetary value of Majlis Agama Islam’s entitlement under the project as provided in the August agreement was RM15,500,000.00, which comprises of cash of RM12,500,000.00, one lot of at least a 3 storey intermediate “Shop/office” building with a value of RM3 million and a surau to be constructed from one unit of the in-kind entitlement. In order to ascertain if Majlis Agama Islam had received its full entitlement under the project, the value of the units it was entitled to is the most relevant and pertinent consideration. The valuation reports

(18) Both Glomac and Majlis Agama Islam produced their own valuation reports. Glomac’s report by Messrs Rahim & Co (at pages 1862 to 1877 Appeal Record Volume 2D) valued the whole four storey building at RM8 million whereas that of Majlis Agama Islam by Jabatan Penilaian dan Perkhidmatan Harta Wilayah Persekutuan , Kuala Lumpur (at pages 1887 to 1931 of the same Appeal Record) valued the same at a slightly lower figure of RM7,875,000.00. The valuation by the said Department did not give a breakdown of the value of each unit but that of Messrs Rahim & Co did and it is as follows: Unit No Market Value B-G-01 RM3,700,000 29 B-1-01 RM1,700,000 B-02-01 RM1,460,000 B-3-01 RM1,140,000 Total RM8,000,000 The failure to give the breakdown was raised by learned counsel for Glomac and quoted by the learned High Court Judge at paragraph 95 of the judgment. Likewise, the presence of it in Messrs Rahim & Co’s valuation report was also mentioned by His Lordship but at paragraph 97 of the judgment. Regardless of the relatively slight difference between the two or that the learned High Court Judge rejected that produced by Majlis Agama Islam as being flawed (see paragraph 110 of the Grounds of Judgment), the undisputed fact which emerged from these evidence is that when combined with the cash payment of RM12,500,000.00 given to Majlis Agama Islam, it had received far more than the RM15,500,000.00 stipulated as its entitlement under the August agreement.

(19) On this note, it is pertinent to re-state the learned High Court Judge’s findings which we also concurred with in respect of the two letters written by Leader Domain to Majlis Agama Islam dated 23/3/2009 and that written by the former to the latter dated 25/3/2009, both of which were 30 copied to Glomac and in which the disputed surau unit was mentioned as part of Majlis Agama Islam’s in-kind entitlement. Glomac did not respond to these letters but the learned High Court Judge accepted the explanation of Glomac that this was because at the time the letters were written, valuation of the units have yet to be made. Given that we were of the like view as expressed earlier that Majlis Agama Islam’s entitlement under the project was confined to the monetary value of RM15,500,000.00, the ultimate finding of the learned High Court Judge that Majlis Agama Islam “has no choice but to give up its claims over the disputed unit” is one that we would echo. Accordingly, the appeal of Majlis Agama Islam was dismissed and the decision of the learned High Court Judge was affirmed with cost. The award of compensation

(20) Again we wish to emphasise the undisputed evidence that it was Datuk Bandar Kuala Lumpur who directed that the surau be located at the ground floor that is Unit B-G-01 as part of its approval for the project and that all four units have been registered in Majlis Agama Islam’s name. We too were of the like mind as the learned High Court Judge that the way forward would not be to de-register the disputed surau unit but to give Glomac adequate compensation for the loss of it. However, with respect we do not agree with His Lordship that the market value of the 31 first floor unit (B-3-01), that is RM1,140,000.00 should be used as the basis for the award. This is because, as just mentioned above the location of the surau at the ground floor unit was in strict compliance with Datuk Bandar Kuala Lumpur’s development order. It was not the wishes of either party or more importantly it was not a concession made by Glomac that the surau be located there at the ground floor unit. As stated by PW1 to a question posed to him in cross-examination (at page 331 of Appeal Record Vol 2A), Glomac cannot build the surau at any other place other than the ground floor and the mezzanine floor. In other words, it was fait accompli. Learned counsel for Glomac submitted to us that the compensation should be the value of the disputed surau unit which Messrs Rahim & Co had itemised at RM3,700,000.00. For the record, there was no evidence to the contrary adduced in respect of the value of the disputed surau unit by Majlis Agama Islam. Compensation based on its value was to us fair because the dispute here centers on the said unit. For these reasons, the cross appeal by Glomac was allowed with cost. Dated: 20 December 2018 signed RHODZARIAH BINTI BUJANG Judge Court of Appeal Malaysia Putrajaya Note : This copy of the Court’s Grounds of Judgement is subject to editorial revision 32 Parties appearing: For the Appellant : Nizam Bashir and Zulkifli Che Yong Messrs Zulkifli Yong Azmi & Co. C-3A-32 & C-5-32, Block Camillia 10 Boulevard, Lebuhraya Sprint, PJU 6A Damansara, 47400 Petaling Jaya, Selangor Darul Ehsan For the Respondent: Siew Choon Jern and Lee Kwee Yock Messrs Douglas Yee No. 31 (1st Floor), Jalan 21/1 46300 Petaling Jaya, Selangor Darul Ehsan Cases referred to:

1. Hong Leong Bank Berhad (formerly Hong Leong Finance Berhad) v Staghorn Sdn Bhd and other appeals (2008) 2 MLJ 622

2. Lin Kai Wing & Anor v Lin Kai Lam & Ors (2016) 4 MLJ 372

3. Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd

(1998) 1 MLJ 393

4. Choong Howei v Cheah Choo Eng & Ors & another appeal (2015) 6 MLJ 95

5. Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd (2001) 4 MLJ 346

6. SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor

(2016) 1 MLJ 464