Mohamad Fuad Bin Abdullah Bada v Kamaladevie A/P M.Govindan (WA-22NCvC-33-01/2019)

(ii) As a consequence of the above paragraph (h), renders the SPA invalid or void from the outset (30.07.2013);

(iii) Whether the ownership transfer process cannot be continued 85 and perfected occasioned by the failure and refusal of the defendant to honour all her contractual and legal obligations in the SPA, by delivering the necessary instruments and/or documentation, and the settlement of all dues and arrears as set out in paragraph (d) hereof;

(iv) Whether the plaintiff is entitled to recover cleaning and rectification costs incurred on the said property; (RM18,723.35 in paragraph (d)) paid by the plaintiff on behalf of the defendant as agreed by them to be set off from the balance 95 purchase price in the SPA;

(vi) Is the plaintiff entitled to recover from the defendant all dues for rental (RM10,000), repair costs (RM6,700), arrears to DBKL (RM18,723.35), quit rent and assessment on the said property(RM661), DBKL 2018 maintenance costs (RM261);

(vii) Is the defendant entitled to forfeit the deposit of RM14,000;

(viii) Is the defendant entitled to vacant possession of the said property;

(ix) Is the rate of rental paid by the plaintiff for the said property, RM650 or RM800; and 105 WA-22NCvC-33-01/2019 4 PLAINTIFF'S SUBMISSIONS 110 [5] The plaintiff argued during the trial and in his submissions that: obligations in the SPA. However, still, the defendant refused, failed, and neglected to honour her commitments in the SPA, to pay and settle all statutory dues, quit rent and assessment of the said property that had adversely impacted the approval for the transfer of the property. However, the plaintiff had already secured financing 120 approval from the bank to finance the purchase of the said property (admitted by SD2 during cross-examination). and 6.3.2012 that had dragged on till 2017. purchase price under the SPA. Despite all these, the defendant, in 2017, refused to continue and complete the SPA. She insisted that the SPA consideration be altered to RM200,000 from RM140,000. The plaintiff felt cheated by the action of the defendant. WA-22NCvC-33-01/2019 5 made out of the free consent of parties for a lawful consideration of a legal subject matter binds the parties. It has been covenanted in the SPA that it is subject to the approval of the relevant authorities for the transfer of the said property to be secured within twelve months from the date of the SPA. If the parties cannot eventually obtain the 140 required approval for transfer, all monies paid by the plaintiff will be refunded. It is agreed that in the event the defendant fails in her obligations under the SPA, the plaintiff shall be entitled to specific performance together with all other relief therefrom, and the defendant shall indemnify the plaintiff against all costs of the 145 incidentals to the enforcement of the plaintiff's rights therein in the SPA (clauses 9 and 10 of the SPA). [6] The SPA (clause 3) only envisage three events for a lawful termination of the SPA, and that is, (i) the defendant had submitted an 150 application for approval of transfer to DBKL, and it had been rejected, or

(ii) the plaintiff refuses to allow any extension of time for the defendant to secure the required approval, or (iii) the plaintiff elected to terminate the SPA for failing to secure the required approval. In the present case, the plaintiff had never elected to bring an end to the performance of the 155 impugned SPA. Therefore any purported action by the defendant to attempt any termination of the SPA inconsistent with clause 3 therein is invalid and unenforceable. The plaintiff, in his evidence, made it clear that he was always able and willing to perform and complete the SPA as it had been intended. Asal Anggun Development Sdn Bhd v AMiruddin Bin 160 Abdul Rahman [2019] 10 MLJ 190, HC was cited in support: "(2) If the first defendant had genuinely wanted to terminate the SPA based on the breach of cl 16.01 of the SPA by the plaintiff in lodging the private caveat on the title of the said land before the first defendant had secured WA-22NCvC-33-01/2019 6 the land committee's consent for the transfer of the said land to the plaintiff, 165 he ought to have acted, immediately. In not taking that immediate action and in requesting to be supplied by the plaintiff's conveyancing solicitors with the caveator consent to enable the presentation by the first defendant of the application for consent to transfer and to charge to the land committee, the first defendant had varied cl 16.01of the SPA in accordance 170 with cl 20.04 of the SPA or waive the strict compliance of that clause and could no longer insist on the strict compliance of that clause (see paras 125-126).

The termination of the SPA by the first defendant was mala fide and unlawful after a lapse of almost three years, and upon being notified of the acquisition 175 of a portion of the said land by the government through the second defendant and knowing fully well that there would be compensation payable for the acquisition of a portion of the said land, the first defendant terminated the SPA pursuant to cl 4.0 of the SPA, purportedly, due to the plaintiff's breach of cl 16.01 of the SPA, viz solely, on the ground of the 180 lodgement by the plaintiff of a private caveat on the title of the said land. The termination on the sole ground of lodgement of a private caveat was male fide and unlawful as the first defendant had varied cl 16.01 and/or by conduct waived his rights by keeping quiet for almost three years and was therefore estopped from insisting on the strict compliance by the plaintiff of 185 cl 16.01 and relaying on cl 4.0 to terminate the SPA (see paras 130-132 & 140)

The plaintiff had the contractual right under cl 2.2 of the SPA to grant to the first defendant such extended time as agreed to, solely by the plaintiff for the purpose of enabling the first defendant to secure the land 190 committee's consent to sell and transfer the said land to the plaintiff. It was the intention of the parties that time was not the essence of the contract and that the plaintiff was to be the sole decision maker in regard to the time for the completion of the SPA in the event the two conditions precedent could not be fulfilled by the first defendant through no wilful default and/or 195 omission of the first defendant (see paras 147-148). …. "[146] In my judgement, based on the wording used by the parties in cl 2.2 of the SPA, it is the intention of the parties that if the first defendant's non-fulfilment of cl 2.1 (b) of the SPA is not due to the wilful default and/or 200 omission of the first defendant as the vendor, the plaintiff as the purchaser may grant to the first defendant as the vendor such extended time as agreed to by the plaintiff as the purchaser to effect compliance of the two conditions precedent or the plaintiff as the purchaser may elect to terminate this agreement. 205 [147] Further, since the plaintiff chose the first option and did not choose the second option, vis the plaintiff did not elect to terminate the SPA, the plaintiff, clearly, has the contractual right under cl 2.2 of the SPA to grant to the first defendant to secure the land committee's consent to sell and transfer the said land to the plaintiff. 210 [148] In my view, due to clear wording by the parties in cl 2.2 of the SPA, it was the intention of the parties that time was not the essence of the contract and that the plaintiff was to be the sole decision maker in regard to the WA-22NCvC-33-01/2019 7 time for the completion of the SPA, in the event the two conditions precedent could not be fulfilled by the first defendant through no wilful 215 default and/or omission of the first defendant. [149] In Kuala Lumpur Landmark Sdn Bhd v Standard Chartered Bank [1994] 2 MLJ 559, High Court (Kuala Lumpur), Anuar J held as follows on when will time be of the essence of a contract: The general principles as to time being of the essence of a contract have 220 been summarised in the judgment of Mohamed Azmi J (as he then was) in Sharikat Eastern Plastics Industry v Syarikat Lam Seng Trading [at p 21]: On the first issue, the general principles as to time being [of] the essence of the contract have been dealt with by Gill J (as he then was) in the case 225 of Tan Ah Kian v Haji Hassan [1962] MLJ 400, a decision approved and affirmed by the Federal Court ([1963] MLJ 175). The three situations in which His Lordship had considered time to be [of] the essence of the contract are: be so;

(ii) where it was not originally stated to be but has been made so by one party by giving reasonable notice to the other, who has failed to perform the contract with sufficient promptitude, and

(iii) where from the nature of the contract or of its subject matter, time must 235 be taken to be of the essence of the agreement. Applying these principles, I have the following observations to make: 240 and On the other hand, reading the agreement as a whole and taking into 245 account the surrounding circumstances and the factual background, including the genesis and the objective aim of the transaction (which I am entitled to do in accordance with the decision of the Federal Court in Keng Huat Film Co Sdn Bhd v Makhanlall (Properties) Pte Ltd 8 at p 247), I am satisfied that the parties did not intend time to be of the essence. The 250 requirement to pay interest, which is to be found in the proviso to cl 5.3 of the redemption agreement, in the event of default is an indicia that time is not of the essence. [150] Reverting back to the instant case, it is abundantly clear that the right of granting extensions of time under cl 2.2 of the SPA to the defendant to 255 appeal against the rejection of the application for consent lies solely and only with the plaintiff. It is not to be mutually agreed upon, as contended by the first defendant. [7] During the trial, it was established that there was no termination of 260 the impugned SPA by the defendant. However, the defendant claimed that it was terminated sometime in 2014 when the approval for transfer WA-22NCvC-33-01/2019 8 was not secured from DBKL. It was all merely a bare assertion. The defendant failed to comply with clause 3(c)(i) and (ii) of the impugned SPA in attempting to bring an end to it. By her conduct, the defendant had 265 accepted an extension of time to secure DBKL's approval for the transfer: DBKL;

(ii) The plaintiff was allowed to carry out repair work on the said 270 property before approval of the transfer was obtained;

(iii) The defendant failed to return the deposit (RM14,000) paid by the plaintiff if at all there was a termination of the impugned SPA;

(iv) The plaintiff was allowed to pay on behalf of the defendant the outstanding dues to DBKL and the same to be deducted from the 275 balance purchase price; (plaintiff's letter at pg.71-72 Bundle B in reply to the defendant's alleged letter dated 19.12018 and 13.2.2018, which was never adduced during trial) is an afterthought made in bad faith; and

(vi) The failure to secure the approval for the transfer from DBKL was solely occasioned by the defendant's default in paying the 285 outstanding dues to DBKL, which the plaintiff ultimately resolved on her behalf. [8] The plaintiff further argued that: 290 in failing to obtain the required approval for the transfer of ownership of the said property to the plaintiff from the relevant authorities (land office and DBKL) as required. Two approvals were needed for the present case, i.e., (i) the approval for the transfer from DBKL to the defendant before a transfer from the defendant to the plaintiff can 295 take place, and (ii) the approval from the relevant authorities for the transfer of ownership from the defendant to the plaintiff to complete and perfect the SPA. WA-22NCvC-33-01/2019 9 defendant as the vendor in the impugned SPA. Still, her failure to 300 settle all outstanding dues to DBKL resulted in DBKL refusing approval to transfer the said property to the defendant before the second application could be made for the ultimate transfer of the said property to the plaintiff and this impasse was allowed to drag on till 2017, even though the plaintiff had taken the action of settling the 305 outstanding dues with DBKL on behalf of the defendant. The defendant had breached clauses 21.1 and 21.1(j) on its covenant on the legal obligations to settle all quit rent, assessments, charges, rates and other outgoings on the said property. Clause 21.2 of the SPA requires her to rectify or remedy the adverse position within 310 fourteen days. The defendant claiming or feigning ignorance of the terms of the SPA is untenable in the circumstances. Mok Sai How v Dakang Bin Bikasan [2020] 9 MLJ 80 was cited in support: "[57] Learned counsel for the defendant submitted that there was no evidence of the contents of the SPA and the PA having been explained to the 315 defendant beforehand. The suggestion was that even if the defendant had signed a document, it was for a sublease of the land. The case of Mohammad bin Loi (the personal representative of the deceased Loi bin Bataur@ Pg Lui Bataur) v Tai Leong Eng (the personal representative of the deceased Tai Wah Chung) & Ors and other appeals [2018] MLJU 1251; 320 [2018] 1 LNS 1282 was cited as support wherein in holding that there was no sale and purchase agreements and powers of attorney entered into by the plaintiffs, Dr Hj Alwi Hj Abdul Wahab J held that the documents which were written in English were not sufficiently proven to have been read, explained and interpreted to the landowners. 325 [58] For the plaintiff, it was contended that the defendant was bound with what he had executed regardless of whether he had understood the contents of the documents. Reliance was made on the Court of Appeal case of Lin Wen-Chih & Anor v Mycom Bhd [2014] 3 MLJ 691; [2013] 1 LNS 1231. In that case, the appellants, who were of Taiwanese nationality, inter alia, pleaded non-est 330 factum to avoid liability for the documents they had signed and which were written in English. The appellants also alleged that the contents of the documents were not explained to them. [58] While deliberating on this issue, the Court of Appeal stated as follows: ... The principle that a person is bound by his contract, regardless 335 that he is ignorant of the language it is written in is well established. The case of Subramaniam v Retnam [1965] 1 LNS 169 referred to Ismail bin Savoosah & Ors v Hajee Ismail [1889] 4 Ky 453, 458, where Wood A-G CJ said: WA-22NCvC-33-01/2019 10 It was argued that the defendant being ignorant of the English 340 language is to be excused on that account from the performance of his contract, but it is to my mind clear that in the common principles which govern the law of contract, the person who contracts by a written document, whether or not he understands the language in which it is written, is bound, in the absence of 345 fraud or misrepresentation, by the terms of that contract, as to which proposition no objection was authoritatively sustained ... [22] Non-est factum is Latin for 'it is not my deed'. A successful plea of non-est factum makes the contract or document signed void ab initio. A plea of non-est factum means that they signed the two documents 350 by mistake. Mistake, however, is not so much because one does not know the contents of the documents that one is signing, but that it was or turned out to be of a character entirely different from what is thought to be signed. This may be illustrated by Chin Leong Soon & Ors v. Len Chee Omnibus Co Ltd & Anor [1969] 1 LNS 28 FC where 355 Suffian Ag LP (as he then was) said: Her claim is clearly based on the doctrine of the non-est factum, which means that if a person, owing to an error, executes a legal document which is of an entirely different character from that which he intended to sign, he is entitled to found his claim on it or to plead it as a defence 360 if he is sued on the document ... [59] It must be noted that the defendant had not pleaded non-est factum as part of his defence. The defendant's case was that the SPA and PA had been forged, that the said documents were in English, and that he was illiterate. Neither was the plea of non-est factum raised in the defendant's 365 submissions. This is to be contrasted with the case of Mohammad bin Loi referred to above, where the plea was raised. [60] In any event, this Court found no evidence led by the defendant to support the plea of non est factum. There were no pleas that either the plaintiff and/or Madam Fung had misrepresented to the defendant as to the 370 contents of the SPA and PA and that, as a result, the defendant believed that he was executing a sublease agreement instead. Neither was it pleaded that the defendant was under a mistaken belief when he executed the SPA and PA. The absence of these elements has been held to render the plea without any support-see Kiong Man v Kishen [1971] 1 MLJ 54. 375 Arkitek Tenggara Sdn Bhd v. Mid Velley City Sdn Bhd [2007] 5 MLJ 697, was also cited in support: "Held, allowing the appeal: the services of the plaintiff by the defendant would, in the first place, depend on whether the agreement between them contains a right to terminate. The agreement between the parties does not prescribe any express right of termination. The question of whether such a term can be implied would depend upon the intention of the parties as collected from the words 385 of the agreement and the surrounding circumstances. It must be WA-22NCvC-33-01/2019 11 presumed that the plaintiff had knowledge of the Conditions of Engagement in the Fourth Schedule. He is bound to adopt them. The defendant was under the impression that it was entitled to terminate the agreement at any time. This, in substance, is the right contained in 390 r 7. A right to terminate the agreement on any ground is, therefore, the obvious but unexpressed intention of the parties, thereby making it into an implied term. The Conditions of Engagement in the Fourth Schedule also constitute implied terms in order to give business efficacy to the agreement by virtue of being a custom or practice of the architectural 395 profession. It follows that the agreement between the plaintiff and the defendant may be terminated at any time by either party upon reasonable notice being given (see paras 41-42, 48-49). Court. The fact that /GB wished to utilise the services of its own architect does not indicate any fault on the part of the plaintiff. The termination was due solely for the reason that the new majority shareholders of the defendant wanted to use the services of their own architect with a new development plan. It was a reason brought about 405 by the act of the defendant itself. The result is that the services of the plaintiff were terminated for reasons brought about by the acts of the defendant itself. In other words, the defendant had disabled itself from performing the contract (see paras 52-53). performing a contract brought about by its own acts. The reason for the termination of the services of the plaintiff by the defendant is thus not valid. There is, therefore, a constructive breach of contract by the defendant. Where a party by his own act makes it impossible for him to perform his contract at the due date, there is a constructive 415 breach of contract, and the other party is entitled forthwith to enforce his rights as on a breach (see paras 56-57). (SD2), are inconsistent, without any foundation, contradict each other and constitute nothing more than bare denials amongst others: auction, she was liable for all the legal dues and charges, as she was not there; WA-22NCvC-33-01/2019 12

(ii) She claimed that she had never read any of the terms and conditions of the SPA with the plaintiff but merely signed the SPA as asked by her husband, and because of that, she claimed that 430 she is not, therefore, responsible for any matter concerning the said property, inconsistent with the position of the husband;

(iii) She even disagreed that she is responsible for paying for the outstanding dues on the said property to which she claimed to be unaware of, inconsistent with the position of the husband;

(iv) She disagreed that as the vendor in the impugned SPA, she is responsible for honouring her contractual obligations, which is inconsistent with the husband's position. She claimed not to know anything about all of these and did not agree to it; in obtaining the required approval from the relevant authorities for the SPA is untenable in light of the evidence at the trial, where no tangible and compelling evidence was produced to support her allegation. 445 [9] The plaintiff also argued that: was also cited with distilled principles as follows:

In the instant case, it was undoubtedly just and equitable for the relief to be granted as the plaintiff had expended a substantial amount of money on the land based on the defendant's promise to comply with its obligations under the SPA.

(ii) The relief of specific performance is liberally and generously granted so long as the circumstances warrant it. There is no necessity on the part of the plaintiff to show:

(iii) Snell's Principles of Equity (28 Ed) by PV Baker and PST J Langan at p 569: Although, in most cases, no action for specific performance will be commenced until a breach of the contract has occurred, a breach is not an essential part of the cause of action in equity. 465 WA-22NCvC-33-01/2019 13

(iv) Equity Doctrines and Remedies (3rd Ed) by RP Meagher, WMC Gummow and JRF Lehane at para 2024: It is, however, established that these principles do not require the plaintiff to succeed in his suit for specific performance to show that he has in the past strictly and literally complied with all his obligations under the contract (see Fuller's 470 Theatres Ltd v Musgrove (1923) 31 CLR 524) or that he is ready and willing to perform strictly and literally his obligations in future (Bahr v Nicolay (No2) (1988) 164 CLR 604 at pp 619-20).

The Principles of Equitable Remedies by CF Spry, (5th Ed) at p 78: So it has been said that 'proceedings for the specific performance of a contract 475 which is of such a kind that it can be specifically enforced can be commenced as soon as one party threatens to refuse to perform the contract or any part thereof or refuses to perform any promise for which the time of performance has arrived. (Turner v Bladin (1951) 82 CLR 463 at p that is required is to show circumstances which will justify the intervention by a court of equity)'. This principle may be applied even though the term of which the breach is threatened is conditional and the condition has not yet been fulfilled. (Where an obligation is conditional, an order of specific performance may be made in a conditional form, and by ancillary orders, 485 the defendant may be enjoined from performing acts that are inconsistent with his positive obligations). Further, it is not essential that there should has been an explicit threat not to perform the material obligation.

(vi) It is trite law that specific performance would be ordered where damages are not an adequate remedy as envisaged under s 11(1) of the Specific 490 Relief Act 195. There is a statutory presumption in s 11(2) of the Specific Relief Act 1950 that damages are not an adequate remedy in a contract to transfer immovable property. The burden to rebut this presumption lies on the defendants. Section 11(2) of the Specific Relief Act 1950 enacts as follows: Unless and until the contrary is proved, the Court shall presume 495 that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money and that the breach of a contract to transfer movable property can be thus relieved.

(vii) Zainab Mohamed v Syarikat Permodalan Johor (PP) Sdn Bhd [1998] MLJU 492: Simply put, specific performance is an equitable relief 500 given by the Court to enforce against a defendant the duty of doing what he agreed by contract to do. The plaintiff may obtain a judgment for specific performance even though there has not been, in the strict sense of the word, any default by the defendant before the issue of the writ (Hasham v Zenab [1960] AC 316; [1960] 2 WLR 374 PC; Oakacre Ltd v Claire 505 Cleaners (Holdings) Ltd [1982] Ch 197; [1981] 3 All ER 667). wilfully neglected, failed and/or refused to honour her contractual and legal obligations in the said SPA to the detriment of the plaintiff, WA-22NCvC-33-01/2019 14 though the plaintiff was throughout the period been able ready and willing to perform his obligation to complete the said SPA. In the circumstances, it is most appropriate for this Court to grant an order 515 for specific performance against the defendant. The plaintiff contends that he is also entitled, apart from the grant of specific performance, to an order for damages to be assessed occasioned by the wilful default of the defendant (s.74 Contracts Act 1946). legal supposition that it is inappropriate to grant an order for specific performance on a conditional agreement (subject to the approval of the land office and DBKL). See Agrokor Sdn Bhd v Perkayuan TM Malek & Soh (3rd Party) [2015] 6 CLJ 594. The issue of the relevant 525 authority's approval and compelling the parties' performance under the impugned SPA are two separate issues. See also the Court of Appeal in Eng Song Aluminium Industries Sdn Bhd v Keat Siong Property Sdn Bhd [2018] 9 CLJ 311, CA. expended as a consequence of the defendant's wilful neglect and default under the SPA, i.e., which includes the cost of repair on the property, the outstanding dues charges and assessments on the said property that he had settled for and on behalf of the defendant which is in her knowledge and consent to facilitate the approval for 535 transfer of the said property. Evidence had been adduced during the trial to prove that the plaintiff made these payments remained undenied and unrebutted by the defendant. [10] Concerning the defendant's counterclaim: 540 WA-22NCvC-33-01/2019 15 CHallenge Sdn Bhd & Ors [2016] MLJU 1452, where the Court had denied the counterclaim for failing to establish it on a balance of probabilities. It was found in that case that the plaintiffs have failed to prove their claim against all the defendants as many allegations, 545 contentions and/or accusations are products of self-serving statements riddled with inconsistencies and contradictions that remained unsubstantiated and uncorroborated. The plaintiff denied the defendant's claims in the present case that he had breached the impugned SPA by failing to settle the outstanding balance purchase 550 price. That is furthermost from the truth. The allegation by the defendant is an afterthought, mala fide and inconsistent with the prevailing facts surrounding the case. end to the impugned SPA (admitted by SD2 during cross examination) even before 2014 when the relevant approvals could not be obtained due to the outstanding legal dues and charges to DBKL from the defendant. But it was not done from 2013 to 2017, and the defendant cannot now argue that time is the essence of the 560 SPA. an increase in the purchase price outside the scope of the prevailing SPA to proceed with the transaction is indeed unjust to the plaintiff. The root of the problem is the defendant's wilful conduct in her 565 default to settle all outstanding dues and charges to DBKL as required of her as the vendor. WA-22NCvC-33-01/2019 16 allegation of RM800 rental from the plaintiff. It is trite that the party that accuses is under a legal duty to prove the allegation (s.101. 102 570 and 103 Evidence Act 1950). In support, the plaintiff cited Teoh Guat Looi v Ng Hong Guan [1994] 365 MLJU 1, which ruled that in civil cases, a party must prove his case before the burden shifts to the other side. The Court of Appeal ruled in Selvaduray v Chinniah [1939] 1 MLJ 253 that where a plaintiff failed to prove his case, it 575 does not avail to him to turn around to the defendant and say that you have not established this. The defendant can simply say that it is wholly immaterial whether I have proven my case or not. The fact is you have not proved yours. Therefore, the plaintiff asks that the defendant's counterclaim be dismissed with costs. 580 [11] In the circumstances, the plaintiff argued that he has proven that the impugned SPA remains effective and binds the parties to its terms and conditions., which gives the plaintiff the right to seek a grant of specific performance against the defaulting defendant as well as an order 585 for an assessment of damages occasioned by her wilful neglect and default under the said SPA. The plaintiff prays for an order in terms of all prayers with costs against the defendant. DEFENDANT'S SUBMISSIONS 590 [12] The defendant argued as follows: throughout the proceedings as merely bare arguments devoid of foundation and merits, though a counsel represented her. At the end WA-22NCvC-33-01/2019 17 of the proceedings, by and large, there is nothing plausible on the scale at her side to consider. for the trial, which mostly contradicted her evidence as SD1.

(ii) Was the impugned SPA lawfully terminated since the approval for transfer had not been obtained within twelve months?

(iii) Was the deposit paid by the plaintiff sufficient since part of it went to her property agent?

(iv) At the time of the execution of the impugned SPA, she, as a 610 layperson, was not represented by counsel.

(vi) She claimed that the plaintiff owed her rental at the rate of RM800 615 from 01.01.2018 for taking possession but did not adduce any evidence to back up that claim but merely made bare averments.

(vii) Whether the plaintiff can claim to be reimbursed for the sum of RM36,612.35 expended by him on her behalf in settling the repair charges, dues, charges and assessments on the said property 620 with DBKL since he had occupied the said property without approval from her or her husband. Again no evidence was adduced to back up this claim.

(viii) Whether the plaintiff is entitled to seek damages in lieu of an order for specific performance. 625 THE LAW [13] Specific performance: 630 WA-22NCvC-33-01/2019 18 Relief Act 1950 and granted by the Court to enforce against a defendant the duty of doing what he agreed by contract to do: Zainab Bte Mohamed @ Janap Bte Mahmood v Syarikat Permodalan Johor (PP) Sdn Bhd (in liquidation) [1998] 4 AMR 4110 at 4131, 635 HC. will not grant specific performance even if the remedy in damages is insufficient; for specific performance is a discretionary remedy. This does not mean that it will be granted or withheld arbitrarily; the discretion is a judicial discretion and is exercised on well-settled principles. It means that in an action for specific performance of a 645 contract of the class usually enforced, the Court may take into account circumstances which could not be taken into account in an action for breach of contracts, such as the conduct of the plaintiff or the hardship which an order for specific performance would inflict on the defendant. 650 The Supreme Court in M Ratnavale v S Lourdenadin, M Mahadevan v S Lourdenadin [1988] 2 MLJ 371, SC explained: Specific performance is an equitable relief which may be granted by the 655 Court to enforce against the defendant the duties and obligations which he had agreed by contract to perform. The remedy is special and extraordinary in its character; and the Court has the discretion either to grant it or not. However, the discretion is not an arbitrary or capricious discretion, but it is to be exercised on fixed principles. The conduct of the plaintiff, such as delay or laches or breach 660 on his part or some other circumstances outside the contract, may render it inequitable to grant the remedy of specific performance. WA-22NCvC-33-01/2019 19 [14] The conditions to be met before it can be granted: performance will be granted under section 11(1) of the Specific Relief Act 1950:

(ii) When there exists no standard for ascertaining the actual damage caused by 670 the non-performance of the act agreed to be done;

(iii) When the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; or

(iv) When it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done. 675 Section 11(2) of the Specific Relief Act 1950 provides that unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money and that the breach of contract to transfer movable property can be specifically 680 performed. This is a rebuttable presumption: Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd [1989] 2 MLJ 155, FC; Zaibun Sa Bte Syed Ahmad v Loh Koon Moy & Anor [1982] 2 MLJ 92, PC. Pollock & Mulla, 14th Edition, Vol II, p1899: "The view that a breach of contract for land cannot be adequately compensated 685 is not because of the real nature of the land but because damages, even when calculated upon the general money value of the land, may not be a complete remedy to the purchaser, to whom the land may have a peculiar and special value. Another reason is that a party entering into a contract for the sale of immovable property should not be allowed to avoid its performance to suit his 690 own convenience by offering to pay damages and pleading that the disappointed party might well be compensated thereby." 695 (supra). Oral contracts can be specifically enforced: Achi Suppiah v Devamurthy Suppiah [2009] AMEJ 01686; [2010] 8 MLJ 189, HC. WA-22NCvC-33-01/2019 20 Lee Kok Leong [1990] 1 CLJ 951; Lai Mew Seng v Cosmopac Sdn 700 Bhd [1998] 2 AMR 1100, HC; Ganam Rajamany v Somoo Sinniah [1984] 2 MLJ 290, FC. [15] In granting the relief of specific performance: & Anor v Cheok Swee Lee & Ors and another appeal [2000] 2 AMR 1529; 2 MLJ 257, CA, Gopal Sri Ram JCA said: In my view, a Court of Equity is sufficiently empowered to decree specific performance on terms. There are cases where an order decreeing specific performance has made provision for ancillary matters, such as the payment of 710 purchase money with interest (e.g. Cooper v Morgan [1909] 1 Ch 261). In such cases, the payment of the purchase price is a term upon which relief is granted. If there is non-compliance, the vendor must surely be at liberty to apply to have the decree vacated. parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach, it shall award him compensation accordingly: Ismail Bin Mohd Yunos & Anor v First Revenue Sdn Bhd [2000] 5 MLJ 42, HC. 725 FINDINGS [16] It is not disputed that: afterthought tainted with bad faith, misplaced and overreaching. WA-22NCvC-33-01/2019 21 Parties cannot be allowed to resile from their agreed bargains in the absence of legitimate vitiating factors. The bargains the parties had struck remained valid and binding between them and cannot be argued otherwise. Section 11 of the Specific Relief Act 1950 compels 735 a defendant the duty to do what was agreed by contract to do. See Zainab Bte Mohamed @ Janap Bte Mahmood v Syarikat Permodalan Johor (PP) Sdn Bhd (in liquidation) [1998] 4 AMR 4110 at 4131, HC; Achi Suppiah v Devamurthy Suppiah [2009] AMEJ 01686; [2010] 8 MLJ 189, HC. Section 11(2) of the Specific 740 Relief Act 1950 makes it clear that unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money and that the breach of contract to transfer movable property can be specifically performed: Sekemas Sdn Bhd 745 v Lian Seng Co Sdn Bhd (supra); Zaibun Sa Bte Syed Ahmad v Loh Koon Moy & Anor (supra). purchase price throughout the contract period. He was ready and willing to perform his contractual obligations, but for the defendant's wilful neglect, refusal and default to honour her contractual obligations. See Oon Hock Lai & Anor v Lee Kok Leong (supra); Lai Mew Seng v Cosmopac Sdn Bhd [1998] 2 AMR 1100, HC; 755 Ganam Rajamany v Somoo Sinniah [1984] 2 MLJ 290, FC. Abdul Malik Ishak J in Lai Mew Seng, supra observed: "Of crucial importance and great relevance to the factual matrix of the present case is the case of Pakharsingh v Kishansingh AIR 1974 Raj 112. That case decided that in a suit for specific performance of a contract for sale, the 760 onus of proving readiness and willingness to perform his part of the contract continuously from the date of the contract till the hearing of the WA-22NCvC-33-01/2019 22 suit lies entirely on the plaintiff. That case also decided that the onus may easily be discharged in the absence of any evidence to the contrary. In my judgment, the principles of law enunciated in Pakharsingh should be vigorously 765 applied to the present case …." Maybank Court-sanctioned public auction (18.08.2010), which at the time of the impugned SPA with the plaintiff (30.07.2013) was saddled 770 with legitimate charges, dues and assessments to DBK amounting to RM18,723.35, that the defendant had not settled. The defendant's neglect and failure to meet her legal obligations to DBKL occasioned the failure to obtain the required approval for transfer of ownership, inconsistent with the covenants in the SPA. Abdul Malik Ishak J in 775 Zainab Bte Mohamed @ Janap Bte Mahmood v Syarikat Permodalan Johor (PP) Sdn Bhd (in liquidation) (supra) observed: "No authority is required for the proposition that specific performance can only be enforced where a contract is concluded and binding in law. Of crucial importance would be the requirement that all proper formalities had been observed and that 780 the parties have agreed, whether expressly or impliedly, in regard to all the essential terms of the contract. The terms, too, must be precisely certain to enable the Court to make an order and effect the exact performance of the contract. These are trite propositions." 785 in anticipation of completing the impugned SPA. demised premises with DBKL for an on behalf of the defendant (refer exhibit P2) to unhinder the required approval process to transfer the said property since the defendant elected not to discharge her legal and contractual obligations. There is no denying by the defendant that he had expended in total RM36,612.35 (refer exhibit P1, P2 and P3) 795 on the defendant's behalf concerning the said property, which apart WA-22NCvC-33-01/2019 23 from the outstanding dues to DBKL (exhibit P2) also included cleaning services and repairs of the said property (exhibit P1 and P3), on the agreed foundation that the said sum would be deducted from the balance purchase price. 800 Court-sanctioned public auction (19.08.2010);

(ii) At the time, the strata title had not yet been issued, and the transfer was by way of a deed of assignment. SP2 could not proceed to process the transfer as the security document from Maybank for the purchase by the defendant on 19.08.2010 had 810 not yet been perfected and delivered to SP2;

(iii) SP2 contacted the defendant's solicitor (M/s Bathma & Co), that handled the purchase at the said auction and was informed that the transfer to the defendant had not yet happened;

(iv) SP2 requested from M/s Bathma & Co all the relevant documents 815 to effect the transfer but was only given the proclamation of sale dated 19.08.2010, correspondences from DBKL on the outstanding dues, charges on the said apartment; security documents, deed of assignment for the successful bidder with Maybank were in the custody of M/s Mokhtar & Co;

(vi) On contacting M/s Mokhtar & Co, SP2 was informed that all the requested documents had been handed over to M/s Jal & Lim;

(vii) SP2 could get from M/s Jal & Lim received the requested 825 documents on two separate occasions, i.e., 4/4/2014 and 24.06.2015, after which SP2 came up with the Deed of Assignment by way of transfer for adjudication and stamping by the defendant on 07.07.2015;

(viii) On 17.09.2013, SP2 was informed by DBKL that direct transfer 830 to the plaintiff is not allowed without the said apartment being first registered in the defendant's name. This cannot be done due to the outstanding dues, charges and assessments on the said apartment from the defendant that she had neglected and refused to settle; 835 WA-22NCvC-33-01/2019 24

(ix) The obligation to secure approval from the land office for the transfer from the defendant to the plaintiff is supposed to be handled by the solicitor for the defendant in the impugned SPA. However, the defendant had not hired any solicitor to act for her in that regard. The defendant asked for the assistance/service of 840 SP2 to assist in completing the transfer;

(xi) At all material times, the defendant knew of the outstanding dues, 845 charges and assessments to DBKL as early as 2013 based on the letter from M/s Bathma & Co (03.08.2013);

(xii) The arrears remained outstanding till 2017 until the plaintiff stepped in to pay all outstanding for and on behalf of the defendant, to be deducted from the balance purchase price. This 850 is to resolve the impediment to the transfer process which the defendant had refused to, neglected to, and defaulted to resolve;

(xiii) After the plaintiff stepped in and resolved all arrears with DBKL, the defendant hired G Sashie & Associates to act on her behalf. This was when the defendant's husband (SD2) sought to 855 increase the purchase consideration to RM200,000 for the transaction. response to the defendant's solicitor's letter (dated 19.01.2018 and 12.2.2018) that had allegedly informed the plaintiff of the desire of the defendant to terminate the impugned SPA, is no termination at all and acknowledged by SD2 during cross. The defendant never adduced these letters during the trial for ventilation and remained speculative. 870 In the circumstances, I find no plausible evidence of a proper and WA-22NCvC-33-01/2019 25 formal notice of termination served on the plaintiff. The solicitor who had supposedly issued those letters was also not called as a witness to clarify and verify the position. I believe this argument of an alleged termination of the impugned SPA is nothing more than an 875 afterthought made in bad faith and is most improbable in the circumstances; and plaintiff's conduct. It is agreed by parties in clause 9 of the impugned SPA that: "9. SPECIFIC PERFORMANCE AND DAMAGES It is hereby agreed by the parties herein that in the event the vendor shall fail, neglect or refuse to complete the sale herein or in the event of any breach of the 885 warranties and/or terms of this agreement, covenants and undertakings or fail to observe and perform all the provisions herein contained on his part to be observed and performed leading to the completion of the transaction performance of this agreement, the purchaser (s) shall be entitled to specific performance together with all other relief therefrom and the vendor shall 890 indemnify the purchaser(s) against all costs of the incidentals to the enforcement of the purchaser (s)'s rights herein or termination of this agreement." These pertinent facts established at the trial are tilted in favour of the 895 plaintiff. Other than bare denials and arguments, there are no probative materials adduced by the defendant to negate these facts so established. [17] I find these foregoing circumstances justify the grant for specific performance against the defendant as prayed. In Loo Choo Teng & Anor 900 v Cheok Swee Lee & Ors and another appeal [2000] 2 AMR 1529; 2 MLJ 257, CA, clause 5 of the purchase agreement provides that the contract shall be null and void if there was a refusal by the state government to release the subject property from compulsory acquisition. The defendants took the position that no such release had taken place, 905 WA-22NCvC-33-01/2019 26 and therefore the agreement was at an end. The plaintiff sought an order for specific performance to enforce the sale and purchase agreement. The Court found that there was no refusal by the state government and that the vendors were just delaying the sale. Specific performance was ordered. Gopal Sri Ram JCA observed: 910 "However, having regard to the special circumstances of this case, it would, in my judgment, be unjust to the plaintiffs to deny them specific relief altogether. It must not be forgotten that there is here a contract for the sale of immovable property. It is the kind of obligation that the statute rebuttably presumes to be incapable of being remedied by an award of monetary compensation (see s 11(2) 915 of the Specific Relief Act 1950). Moreover, this appears to be a case where the vendors, having entered into a perfectly valid transaction, went about inventing all sorts of excuses to get out of it. Having failed in their efforts, it would be quite wrong to permit them to succeed, as it were, on the strength of a mere side-wind. The main obstacle envisaged by the parties to the sale was the State's refusal to release the 920 subject property from compulsory acquisition. That hurdle having been crossed, all that remains is the mere formality of obtaining the Court's sanction for the sale. This is, therefore, an appropriate case to decree specific performance, not as ordered by the learned judge, but on terms." 925 [18] I find there is no impediment to order specific performance on a conditional contract, as is the present case. Compelling the defendant to honour her contractual obligations and obtaining the approval of the land office and DBKL are two separate issues of concern. In this instance, it compels the defendant to make the necessary applications for the 930 relevant approvals from the land office and DBKL to effect the transfer of the said property to the plaintiffs. Whether the approvals will be obtained or not is not the concern of this Order for specific performance: Eng Song Aluminium Industries Sdn Bhd v Keat Siong Property Sdn Bhd [2018] 9 CLJ 311, CA. 935 CONCLUSION [19] In light of the foregoing and upon the weight of the evidence ventilated at the substantive hearing of this case, and after having perused all the relevant cause papers and the respective written submissions by 940 WA-22NCvC-33-01/2019 27 counsels, on 24.06.2022, on the balance of probabilities, I find in favour of the plaintiff and accordingly ordered (translated) as follows:

The claim for Specific Performance of the Sale and Purchase Agreement for the property held under Parcel No.C-2, Floor No.10, Building No. Block C, Taman Sungai Besi, measuring 83.15 square 945 meters, held under Strata Title PM(WP)23489/M1/11/94, No.Petak 94, No.Level 11, No.Bangunan M1, No. Lot 3677, Mukim Petaling, District of Kuala Lumpur, Federal Territory of Kuala Lumpur at No.26- 10-9, Block 26, Apartment Tasik, Jalan 2/146, Desa Tasik Sungai Besi,57000 Kuala Lumpur (the apartment) by the plaintiff is allowed;

The defendant is ordered to perform and complete the Sale and Purchase agreement of the said property to effect the property transfer to the plaintiff, subject to the approval of the relevant authorities to which the said apartment is subjected (restriction in interest).

The defendant is ordered to pay and reimburse the plaintiff's claim of RM 36,612.35 for monies he had expanded on the defendant's behalf concerning the said property within fourteen (14) days from the date of this Order;

The defendant is ordered to pay the plaintiff additional damages to be 960 assessed in addition to the grant of the Order for Specific Performance of the Sale and Purchase agreement;

Interest at the rate of eight per cent (8%) per annum from the date of this Order until full settlement thereof;

The defendant is ordered to perform and complete the Sale and 965 Purchase agreement and to submit full payment of the payments for the property paid by the plaintiff on behalf of the defendant to the relevant authorities and to execute and produce all necessary and appropriate documents for the completion of the Transfer of the WA-22NCvC-33-01/2019 28 Property to the plaintiff (hereinafter referred to as "such document") 970 and deposit such documents and all other necessary and relevant documents with the plaintiff's solicitor without fail within fourteen (14) days from the date of this Order;

It is further ordered that if the defendant fails to execute the relevant document documents and/or instruments within fourteen (14) days 975 from the date of this Order for any reason whatsoever, the Deputy Registrar of the High Court of Kuala Lumpur shall be authorised to sign the document on behalf of the defendant;

The plaintiff is allowed to make any appropriate and relevant application in respect of the said property;

Counterclaim (enclosure 6): The defendant's counterclaim against the plaintiff is found to be without merits and untenable. It is dismissed with cost.

Costs: The costs of this action and the dismissal of the defendant's counterclaim is RM 20,000.00, subject to the allocator, to be paid by 985 the defendant to the plaintiff within fourteen (14) days of this Order. Dated 22.09.2022 (HAYATUL AKMAL ABDUL AZIZ) 990 JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsels: 995 Ms Nor Atiah Che Harun together with Ms Norja Abdul Razak Messrs Atiah & Associates Counsels for the plaintiff Mr Mohd Rafik bin Rahem and Mr Geerge Proctor 1000 Messrs YS Woo & Proctor Counsel for the defendant