Perbadanan Setiausaha Kerajaan Pahang v Green Lion Sdn Bhd (WA-22NCvC-185-03/2025)

What began as a state-sanctioned agricultural venture of considerable scale has, over the course of nearly two decades, become a dispute less about performance than about the legal conditons that make performance possible. The central question is not merely whether the defendant failed to honour its obligations, but whether those obligations ever crystallised in a manner enforceable at law.

The plaintiff, a state authority, contends that the defendant is in fundamental breach of a lease agreement dated 9 August 2021 (“the Lease Agreement”), thereby justifying termination and the forfeiture 16/06/2026 09:01:42 WA-22NCvC-185-03/2025 Kand. 75 S/N ktYVjzvsyUqySl0Fz66mAQ of an earnest deposit of RM90,000. The defendant, for its part, advances a more foundational objection. It argues that the plaintiff, having failed to provide registrable title and lawful access to the land, cannot now insist upon fulfilment of a bargain whose fundamental requirements were never met.

The dispute therefore turns not merely on questions of contractual default, but on prior and more exacting questions of legal efficacy. Did the Lease Agreement ever take effect as a lease in law? Did the absence of registration deprive it of operative force? Was the plaintiff in a position, either in law or in fact, to confer possession of the land in any meaningful sense? And can a party demand performance of contractual obligations while withholding the very conditions necessary to render such performance possible? Those questions require the Court to disentangle a factual history both protracted and uneven. They require close attention not only to what the parties promised, but to what, in law and in reality, was ever capable of being performed. The task of the Court is therefore to determine whether the defendant’s alleged default was truly its own, or whether it was merely the downstream consequence of antecedent failures for which the plaintiff must bear responsibility.

The genesis of the matter may be traced to a letter of approval dated 5 December 2003 (“the Letter of Approval”), by which the plaintiff sanctioned the defendant’s application for a lease of approximately 600 acres of land in Mukim Keratong, District of Rompin, Pahang (“the Property”). At the material time, the temporary title to the S/N ktYVjzvsyUqySl0Fz66mAQ Property has yet to be issued. The approved purpose was specific and commercially coherent. It is for feedlot cattle farming project, incorporating cow-calf operations alongside pandan coconut cultivation. In reliance upon that approval, the defendant remitted an earnest deposit of RM90,000 in February 2004.

However, almost from inception, the project was beset by a defect that went to the root of its feasibility. The same parcel of land had, it transpired, been the subject of overlapping approvals in favour of another entity, Lucky Valley Sdn Bhd. A meeting convened on 23 December 2003 sought to resolve this duplication, with an agreement that the earlier approval would be cancelled and a fresh application undertaken. That administrative correction, however, did not translate into effective possession. No vacant possession of the Property was ever delivered to the defendant in the years that followed.

The documentary record from 2008 and 2009 is particularly revealing. By letters dated 27 August 2008 and 4 February 2009, the plaintiff’s own State Economic Planning Unit (UPEN) petitioned the Rompin Land Office for permission to allow the defendant access to the Property and to expedite the issuance of title. These communications are of some significance. They demonstrate that, even at that stage, the plaintiff was not in a position unilaterally to confer access or legal control over the Property. The requests went unanswered. The project, correspondingly, remained dormant. S/N ktYVjzvsyUqySl0Fz66mAQ

A prolonged period of inaction ensued, extending until 2019. On 6 August 2019, the plaintiff sought to revive matters by requesting a status update. The defendant’s response, dated 19 November 2019, was accompanied by the results of a site visit conducted on 16 November 2019. The findings were as unsurprising as they were troubling. The Property was occupied by a third party and had been developed into an oil palm plantation. Photographic evidence (ID-D3) corroborates the existence of this encroachment as alleged in the defendant’s letter of 19 November 2019.

It was only on 25 January 2020, more than sixteen years after the Letter of Approval, that a temporary title (hakmilik sementara) was issued in the plaintiff’s name. Following this, the defendant undertook preliminary steps consistent with an intention to proceed, including soil testing and boundary demarcation. By a letter dated 16 July 2020, the defendant proposed a variation in crop, from pandan to matag coconut, citing supply constraints, albeit expressly subject to the plaintiff’s approval. This proposal was subsequently withdrawn. On 12 March 2021, the defendant confirmed that it would proceed with pandan coconut as originally envisaged.

The parties formalised their relationship by executing the Lease Agreement on 9 August 2021. The structure of the agreement is not without significance. Clause 4.2 provides that the lease term of 30 years is to commence from the date of registration. Registration itself was to be effected within 30 days of execution. Clause 5.3 stipulates that the first year’s rental of RM30,000 is payable “sebaik-baik Perjanjian ini ditandatangani”, that is, upon or as soon as the agreement is executed. S/N ktYVjzvsyUqySl0Fz66mAQ

However, the execution of the Lease Agreement did not cure the underlying practical impediments. The defendant’s solicitors wrote on multiple occasions, most notably in September 2021 and January 2022, requesting the original issue document of title for the purpose of registering the lease, pointing out that the title was already with the plaintiff. Those requests went unanswered. In parallel, the defendant sought to regularise physical access to the Property by applying for an easement over a defined route, the existing access points being obstructed by third parties. This application was rejected by the plaintiff on 7 February 2022.

The sequence of events immediately preceding the Lease Agreement also bears mention. On 2 March 2021, the plaintiff issued a notice to show cause alleging breaches of the 2003 Letter of Approval, including delay in commencement and deviation in the type of coconut to be cultivated. The defendant responded within the stipulated period on 12 March 2021, attributing delay to access constraints and confirming its reversion to pandan coconut. No further action was taken on that notice. Instead, the plaintiff proceeded to execute the Lease Agreement some five months later.

Matters came to a head in late 2022. On 5 December 2022, the plaintiff issued a letter of demand claiming RM30,000 in alleged rental arrears. The underlying invoice was dated 9 August 2022, one year after execution of the Lease Agreement, but was only served on the defendant on 18 April 2023. This was followed by a notice of termination dated 6 February 2023, by which the plaintiff purported to terminate the Lease Agreement for breach and to forfeit the RM90,000 deposit. S/N ktYVjzvsyUqySl0Fz66mAQ

The defendant disputes the validity of that termination. Its position is that, in the absence of registration of the lease and in light of the plaintiff’s failure to provide both registrable title and lawful access, no enforceable obligation to pay rent had arisen. It contends further that the plaintiff cannot rely on non-performance where such non-performance was induced, or at the very least materially contributed to, by its own omissions.

The plaintiff’s case is predicated in a strict and literal reading of the parties’ contractual arrangements. It invites the Court to approach the dispute not through the practical realities of possession and access, but through the strict application of agreed terms. On this footing, the long history of delay and alleged inaccessibility is said to be, at best, collateral, and at worst, a distraction from what the plaintiff described as clear and continuing breaches by the defendant. The plaintiff begins with the historical foundation of the relationship, namely the Letter of Approval dated 5 December 2003. It contends that the defendant was under an express obligation to implement the approved agricultural project within one year of that approval, an obligation which, on any view, was not met. Hence, the defendant is in clear contractual breach of clause 2(g) of the Letter of Approval, which provides: This approval shall be revoked if the Defendant fails to implement the said Project after one (1) year from the date of the Approval Letter S/N ktYVjzvsyUqySl0Fz66mAQ

On the plaintiff’s case, the prolonged inactivity that followed, particularly the dormant period between 2009 and 2019, was not merely evidence of delay, but of abandonment. What occurred, it says, was not a project awaiting implementation but a project long since deserted in substance, whatever remained of it on paper. The plaintiff seeks to reinforce that submission by pointing to the defendant’s change of corporate identity in 2018 to Areca Travel & Tours Sdn Bhd, together with its apparent shift in business activities toward travel agency services. These matters, the plaintiff submits, are not incidental. They are said to be probative of a defendant that had, by then, ceased to have any genuine intention of pursuing the agricultural venture originally approved. In the same vein, the plaintiff contends that the defendant altered its corporate structure, whether in shareholding, directorship, or both, without first obtaining the plaintiff’s written consent, thereby acting in breach of clause 9.38 of the Lease Agreement, which provides: any changes and amendment to the equity or holdings of the company and its Directors must be referred to the Plaintiff and must obtain a written consent from the Plaintiff.

By reason of the aforesaid breach, the plaintiff submits that it was entitled to terminate the agreement between the parties by virtue of clause 10.1(a) of the Lease Agreement, which provides: The Plaintiff has the absolute right to terminate this Agreement under any of the following circumstances: -

If the Defendant fails to implement the Project as scheduled S/N ktYVjzvsyUqySl0Fz66mAQ

Closely allied to this is the plaintiff’s complaint that the defendant unilaterally sought to alter the nature of the project. The proposal to substitute pandan coconut with matag coconut, advanced in July 2020, is alleged as a material deviation from the approved terms. Although the defendant subsequently reverted to pandan coconut, the plaintiff maintains that the initial proposal itself constituted a breach. It is further contended that these obligations under the 2003 approval did not lapse with time but were subsumed into, and carried forward by, the Lease Agreement executed on 9 August 2021.

The plaintiff’s principal reliance, however, rests upon what it says is the clearest and most immediate breach of all, that is, the defendant’s failure to pay the first year’s rental in accordance with clause 5.3 of the Lease Agreement. That clause provides: Bayaran Pajakan Pertama sebanyak RM30,000.00 sahaja adalah kena dibayar sebaik-baik Perjanjian ini ditandatangani ...

The plaintif submits that the effect of this clause is plain. The obligation to pay the first year’s rental of RM30,000 arose immediately upon execution of the agreement. The phrase “sebaik-baik Perjanjian ini ditandatangani” is said to admit of no ambiguity. Properly construed, it imposes an obligation of immediate payment upon signing, independent of registration, possession, access, or any other supervening circumstances. The plaintiff emphasises that the defendant’s failure to pay this sum is undisputed. That failure, it submits, is sufficient in itself to establish breach. In advancing this argument, the plaintiff relies upon the well-established principle that S/N ktYVjzvsyUqySl0Fz66mAQ the Court must give effect to the plain and ordinary meaning of contractual language. In CIMB Bank Bhd v Anthony Lawrence Bourke & Anor [2019] 2 CLJ 1, the Federal Court reaffirmed: “[26] We agree with the defendant that parties are bound by the terms of the contract which they entered into and that it is the court's duty to give effect to the clear and plain meaning of the words in the said clause. That is quite trite.”

On the strength of that authority, the plaintiff contends that the words “sebaik-baik” can only mean “as soon as”, and that any attempt to qualify or defer this obligation by reference to extraneous circumstances would amount to an impermissible rewriting of the parties’ bargain.

The plaintiff further contends that the defendant’s reliance on alleged issues of access is misconceived and legally irrelevant. It describes this line of defence as a red herring, factually unsupported by credible evidence and contractually immaterial. In particular, it is submitted that the photographs said to evidence encroachment (ID-D3) were not formally proved and ought therefore to be disregarded. The plaintiff maintains that there exists a public road providing access to the Property, as identified by its witness, PW3. Any difficulty in utilising that access, it argues, is a matter for the defendant to resolve.

This submission is said to be reinforced by clause 9.8 of the Lease Agreement, which places upon the defendant the obligation to construct infrastructure, including access routes (“laluan-laluan”). S/N ktYVjzvsyUqySl0Fz66mAQ The plaintiff contends that the contractual allocation of responsibility is clear. The access route was not a condition to be provided by the plaintiff, but a burden expressly to be undertaken by the defendant. In support of this proposition, the plaintiff invokes the decision in SKS Southern Sdn Bhd v Hospital Penawar Pandan City Sdn Bhd [2020] MLJU 802 ([2020] CLJU 690; [2020] 1 LNS 690]), submitting that where a party considers a matter such as access as fundamental, it is incumbent upon that party to stipulate it expressly as a condition precedent. In the absence of such provision, the defendant cannot now elevate access into a precondition of performance. The plaintiff relies in particular on the following passage: “[33] This Court is of the opinion that the defendant’s defence that the plaintiff had promised to provide the access road as a term of the Lease Agreement could not be sustained. As mentioned earlier, if the access road is a condition for the defendant to enter into the Lease Agreement, why was it not put in writing in the Lease Agreement? In fact, in the Lease Agreement, it was stated that the defendant was to use the premises as ‘supporting space’ for the defendant to keep its equipment, the premises were not meant to be used as clinical space which demands high flow of traffic.” [Emphasis is mine]

Accordingly, the plaintiff submits that the defendant’s breaches are cumulative and straightforward. The defendant failed to implement the project within time; it deviated from the approved project specifications; it altered its corporate identity and business purpose without consent; and most significantly, it failed to pay the first year’s S/N ktYVjzvsyUqySl0Fz66mAQ rental in accordance with clause 5.3. Those breaches, whether viewed individually or in the aggregate, are said to have entitled the plaintiff, both at law and under the express terms of the Lease Agreement, to terminate the agreement and forfeit the earnest deposit of RM90,000.

The defendant’s case proceeds from an altogether different premise. Where the plaintiff urges the Court to hold the parties to the strict language of their bargain, the defendant points out a bigger problem. The contract never actually got off the ground. Essentially, the defendant argues that it was impossible to fulfil the agreement because the plaintiff failed to provide the required legal and physical conditions necessary to make the agreement operable.

At the forefront of the defendant’s argument lies the issue of registration. It is contended that, on a proper construction of the Lease Agreement, the lease term (tempoh pajakan) was expressly stipulated to commence only upon registration. This is not a matter of inference but of textual clarity. Clause 4.2 provides that the lease runs “daripada tarikh pajakan didaftarkan”, and it is not disputed that no such registration ever occurred. Indeed, the defendant points to the evidence of the plaintiff’s own witness, PW1, who accepted as much. On that footing, the defendant submits that no leasehold interest, in the legal sense contemplated by the agreement, ever came into existence. If the lease never commenced in law, so the argument runs, the obligation to pay rent, being an incident of that leasehold estate, never accrued. S/N ktYVjzvsyUqySl0Fz66mAQ

That argument, the defendant says, is reinforced by reference to the plaintiff’s own conduct. The invoice for the first year’s rental, though dated 9 August 2022, was issued precisely one year after the execution of the Lease Agreement. The defendant submits that this chronology is not merely curious, it is revealing. It demonstrates that, the plaintiff itself proceeded on the footing that rental liability was not immediate upon execution, but rather linked to the operative commencement of the lease. The defendant accepts, as a matter of principle that parties may elect to proceed notwithstanding non-registration. Its point, however, is narrower and more pointed. In the present case, the failure to register was attributable not to mutual election, but to the plaintiff’s unilateral failure to furnish the original issue document of title. In those circumstances, the defendant submits that it was entitled to withhold payment pending the plaintiff’s performance of that antecedent obligation.

Closely intertwined with the question of registration is the issue of access. The defendant rejects, in unequivocal terms, the plaintiff’s assertion that access to the Property was available. To substantiate their argument on access, the defendant submits that the existing road purportedly identified by PW3 is a mirage. They highlight PW3's own admission that his markings on the map were based purely on assumption and lacked any documentary verification. Moreover, the chronological impossibility of PW3 conducting a site visit on 26 January 2022 before the defendant's letter was even received by the plaintiff on 27 January 2022 is a glaring inconsistency that renders his evidence unreliable. More fundamentally, the defendant submits that the existence of a physical track does not equate to a lawful right of access. Where S/N ktYVjzvsyUqySl0Fz66mAQ such routes traverse land owned by third parties, the use of that route without legal right would expose the defendant to potential liability of trespass. It is in that context that the defendant distinguishes SKS Southern Sdn Bhd (supra). Unlike the defendant in that case, it says, access was not raised belatedly as an ex post facto justification for non-performance. On the contrary, access was a recurring and persistent difficulty from the inception of the parties’ dealings in 2003. The defendant emphasises that the plaintiff’s own correspondence with the Land Office confirms as much. Those letters demonstrate, it is said, that access could not be conferred without the involvement or approval of third parties, and that the problem was never resolved.

The defendant further contends that the plaintiff’s conduct, viewed as a whole, gives rise to waiver and estoppel. The showcause notice issued on 2 March 2021, alleging breaches of the 2003 Letter of Approval, was met with a substantive response from the defendant on 12 March 2021. Thereafter, the plaintiff took no steps to terminate or otherwise enforce those alleged breaches. Instead, it proceeded to execute the Lease Agreement on 9 August 2021. In doing so, the defendant submits, the plaintiff elected to affirm the contractual relationship on a new footing, thereby abandoning its right to rely on antecedent breaches.

The defendant likewise resists the plaintiff’s allegations of abandonment. It submits that the change of corporate name in 2018 was an administrative measure undertaken prior to the execution of the Lease Agreement, and therefore cannot constitute a breach of a contractual provision that did not yet exist. As for the proposed S/N ktYVjzvsyUqySl0Fz66mAQ substitution of pandan with matag coconut, the defendant emphasises that this was no more than a proposal, expressly made subject to the plaintiff’s approval, and subsequently withdrawn before the Lease Agreement was executed. No matag cultivation was ever undertaken. In those circumstances, the defendant contends that these matters were either resolved or rendered otiose by the parties’ decision to enter into the Lease Agreement in August 2021.

In the result, the defendant contends that the plaintiff’s purported termination cannot stand. The non-payment of rent, it argues, was not an actionable breach but a consequence of the plaintiff’s prior and continuing defaults. The lease, never having been registered, never attained operative effect in law. The defendant, never having been placed in lawful possession, could not reasonably be expected to perform. In those circumstances, the defendant submits that the termination was invalid, the forfeiture of the RM90,000 deposit unlawful, and the plaintiff’s claim must be dismissed with the counterclaim allowed.

A preliminary but pivotal dispute that arose during the trial concerned the admissibility of certain documentary evidence adduced by the defendant. It concerns not the weight of evidence, but its very admissibility. Specifically, documents marked as ID-D1, ID-D2, ID-D3, ID-D4 and ID-D6, which though marked for S/N ktYVjzvsyUqySl0Fz66mAQ identification during the course of the trial, were not formally admitted as exhibits. The plaintiff urges the Court to disregard them entirely, while the defendant contends that they properly fall within the evidential record and may be received in evidence. Whether these documents may be considered in the determination of the present dispute is thus a matter that must first be resolved.

The plaintiff’s objection is rooted in the approach, as exemplified in So Thian Wan v Tan Soon Teik [2021] MLJU 1491 ([2021] 1 LNS 1261). In that case, the Court of Appeal reaffirmed the long-standing principle that documents merely marked for identification, but not formally proved, cannot be treated as evidence. The Court there adopted the classical exposition of Abdoolcader J in PP v Datuk haji Harun bin Haji Idris & Ors [1977] 1 MLJ 180, who observed: “[33] The evidential effect of a document which has not been properly proved and which remained as an ID document at the end of the trial was described by Abdoolcader J (as he then was) in PP v Datuk Haji Harun bin Haji Idris & Ors [1977] 1 MLJ 180; [1977] 1 LNS 92; [1977] 1 MLRH 438 OCJ. At p 183 (MLJ) Abdoolcader J said: It is necessary to refer to certain exhibits which have been put in the course of these proceedings for identification but have not in fact been proved as they should have been and are accordingly not exhibits in the strict sense and cannot therefore form part of the record in this case, namely, D41 and D43 which were both put in for identification only and which are the audited accounts and annual report of the Bank for the years 1973-1974 and 1972 respectively. As these two exhibits have not been proved and properly admitted as such, they must in the ultimate analysis be discounted and I shall S/N ktYVjzvsyUqySl0Fz66mAQ accordingly disregard references to them and also all oral testimony as well adduced in relation thereto...” [Emphasis is mine]

The principle is uncontroversial. A document marked merely for identification does not, without more, become evidence. The plaintiff therefore submits that the impugned documents must be excluded, placing particular emphasis on the fact that the makers of the photographs in ID-D3, ID-D4 and ID-D6 were not all called, and that the author of ID-D1 and ID-D2 is deceased. Without testimony from the makers themselves, the plaintiff argues, the documents lack the requisite evidential foundation.

The common law rule as to formal proof has long since been qualified, indeed materially so, by statute. The evidential landscape was altered by section 90A of the Evidence Act 1950, enacted to address the realities of modern documentary production in an age where information is routinely generated, stored and reproduced by electronic means. Section 90A(1) provides: Section 90A. Admissibility of documents produced by computers, and of statements contained therein

In any criminal or civil proceeding a document produced by a computer, or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement. S/N ktYVjzvsyUqySl0Fz66mAQ [Emphasis is mine]

The effect of this provision is both clear and profound. It lowers the threshold of admissibility for computer-generated documents to questions of relevance and ordinary use. The insistence on calling the maker is no longer an inflexible requirement in such contexts. The statute recognises what modern litigation demands, that authenticity may be established otherwise than by calling the hand that first created the document. The superior courts have consistently affirmed that position. In Dato' Kanagalingam a/l Veluppillai v Majlis Peguam Malaya [2022] 3 MLJ 699, the Federal Court made plain that section 90A establishes a presumption of admissibility. The Court stated: “[98] The default position is that all documents produced by a computer or a statement contained therein is admissible as evidence of any fact stated therein if relevant. That is irrespective of whether the person tendering the document is the maker of such document or statement… [99] In the event that the person tendering the document is not the maker of the document, then if there is an issue as to whether Ihe document was produced by a computer in the course of its ordinary use, then a certificate signed by a person responsible for the management of the operation of that computer to that effect shall be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate.” [Emphasis is mine] S/N ktYVjzvsyUqySl0Fz66mAQ

Two consequences flow from this. First, admissibility is the rule, not the exception. Second, the evidential burden shifts. Once relevance is shown, it is for the party challenging the document to demonstrate some reason why the statutory presumption should not apply, whether by showing irregularity, want of authenticity, or departure from ordinary use. Applying these principles, the Court finds that ID-D3, ID-D4 and ID-D6, being photographs and a digital map, are plainly documents produced by computers or digital devices in the ordinary course of their use. Their relevance is equally beyond dispute, they go directly to the issue of access, which lies at the heart of the defendant’s case. In these circumstances, they are prima facie admissible. The plaintiff has not discharged the burden of rebutting that presumption. No evidence whether by way of digital forensics or otherwise has been adduced to suggest manipulation, fabrication, or irregularity in their production. What is advanced is no more than assertion. That is insufficient. As observed in Mok Yi Chek v Sovo Sdn Bhd & Ors [2015] MLJU 2374 ([2015] CLJU 448; [2015] MLRHU 1960), a mere assertion of dispute does not suffice. The genuineness of a document must be affirmatively impugned.

In any event, the evidential position is fortified in respect of ID-D4. The defendant’s witness, DW1, testified that he personally took the photographs during a site visit on 18 June 2020, and that they accurately depict the conditions observed. This is not hearsay, nor conjecture, it is direct evidence from the maker. The plaintiff’s suggestion that such testimony amounts to mere assumption is, with respect, unsustainable. S/N ktYVjzvsyUqySl0Fz66mAQ

A separate but related objection arises in respect of ID-D1 and ID-D2, being letters authored in 2004 by a person now deceased. Here, the governing provision is section 32(1)(b) of the Evidence Act 1950, which provides:

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:

when the statement was made by any such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him; [Emphasis is mine]

The rationale of this provision is both practical and principled. Where the maker is unavailable by reason of death, the law admits such statements, provided they were made in the ordinary course of business or professional duty. The defendant has produced the death certificate confirming the author, Mohd Shariff Salleh, is S/N ktYVjzvsyUqySl0Fz66mAQ deceased. The letters in question fall squarely within this category. They are formal correspondence, prepared in the discharge of professional functions, and bear the hallmarks of commercial documentation. Their admissibility is therefore secured by statute. This approach finds support in Tube Home (M) Sdn Bhd v P Shanmugam @ Saponmugam & Anor [2010] 1 MLJ 206, where a letter authored by a deceased officer was admitted under section 32(1)(b). The present case is materially indistinguishable.

It follows that the mere fact that these documents were initially marked “ID” does not preclude their subsequent admission. The designation is procedural, not determinative. The Court retains the power, and indeed the duty, to evaluate admissibility in light of the applicable law and the totality of the evidence. Consequently, the Court is satisfied that the documents are relevant to the issues in dispute. They were produced in the ordinary course of use or fall within the recognised statutory exception, and no credible challenge has been mounted to their authenticity. In those circumstances, the plaintiff’s objection is misconceived and must fail. The documents marked ID-D1, ID-D2, ID-D3, ID-D4 and ID-D6 are hereby admitted as full exhibits, and shall be treated as defendant’s exhibits D1 to D6 respectively. The objection to admissibility is accordingly overruled.

The Court turns now to the determinative issues. At the forefront lies a question of whether the defendant was ever placed in a position to enjoy the subject matter of the lease. For a lease bereft of lawful S/N ktYVjzvsyUqySl0Fz66mAQ access is, in truth, no lease at all. It is an entitlement in form, but not in substance, a grant of land that cannot be reached or used.

In this regard, the evidence of the defendant’s witness, DW1, Choo Kin Hoe, is both compelling and grounded in commercial reality. He drew a careful and persuasive distinction, one the Court accepts, between the limited and temporary access that may suffice for a surveyor to demarcate land, and the continuous, lawful and operational access required to sustain a commercial agricultural enterprise of the scale contemplated here. The difference is not merely one of degree, but of kind. A feedlot and plantation project of this nature requires the regular movement of livestock, machinery, labour, materials and produce. Such an operation cannot sensibly be conducted upon precarious indulgence or informal tolerance, still less by intermittently trespassing over adjoining lands. To do so would expose the operator to immediate and foreseeable legal risk. This is not a matter of technicality, but of commercial common sense, one which regrettably, appears to have been either overlooked or discounted by the plaintiff in its insistence on a strictly textual reading of the Lease Agreement.

The plaintiff’s attempt to establish the existence of viable access rests primarily upon the testimony of PW3, Muhammad Afiq Bin Hassan. That evidence, upon closer scrutiny, proves to be deeply problematic. PW3 asserted that he conducted a site visit on 26 January 2022 in response to the defendant’s letter dated 24 January 2022 for an alternative access route. The documentary chronology, however, is fatal to that account. The defendant’s letter bears the plaintiff’s receipt stamp of 27 January 2022. Put simply, the request S/N ktYVjzvsyUqySl0Fz66mAQ was only received after the site visit was said to have been undertaken in response to it. The difficulty was put squarely to PW3 in cross-examination: Ok. Setuju dengan saya, kamu telah masuk, or kamu telah membuat, mengambil tindakan untuk membuat lawatan tersebut akibat daripada suatu surat yang telah diissuekan oleh pihak Defendan kepada Plaintif untuk mencadangkan laluan alternatif. Setuju ataupun tidak? Setuju… So akibat daripada surat ini kamu merujuk pada perenggan Soalan Jawapan 4 kamu telah menjalankan satu siasatan pada 26hb Januari, betul? Betul… Ok. Apa yang menarik, walaupun surat ini bertarikh 24hb Januari dan siasatan kamu telah menjalankan 26hb Januari tapi surat itu hanya diterima oleh pejabat kamu pada 27hb Januari iaitu selepas kononnya kamu membuat siasatan baru surat itu diterima oleh pejabat kamu, faham tak? Kamu kata saya buat siasatan 26hb Januari akibat daripada surat 24hb Januari tetapi kalau kita tengok cop ini nampak tak cop, cop itu berapa haribulan? 27hb… Saya juga cadangkan keterangan kamu bercanggah dengan keterangan dokumen di muka surat 184, setuju ataupun tidak? Saya hanya mengikut arahan orang atasan dan tidak sedia maklum berkenaan dengan surat ini. S/N ktYVjzvsyUqySl0Fz66mAQ [Emphasis is mine]

When confronted with this discrepancy, PW3 was unable to furnish any coherent explanation. His answer did not resolve the inconsistency. It merely displaced responsibility. The inescapable inference is that his account was not grounded in contemporaneous fact, but reconstructed after the event to suit a narrative which supports a litigation position. Nor was the plaintiff’s case materially improved by the evidence of PW1, Wan Nur Munirah Binti Wan Mohd Zawawi, or PW2, Mohd Noor Hisamuddin Bin Mat Rezaliin. Neither had visted the site. Neither possessed personal knowledge of the alleged access road. Their evidence on this issue was therefore not merely weak, it was without probative value. PW1’s evidence illustrates the point plainly: Ok. Now, yang akses sedia ada itu, tadi, penyata saksi tambahan kamu, pindaan kamu, kamu beritahu, “Tambahan pula, Defendan boleh gunakan jalan sedia ada untuk masuk ke tapak projek,” betul? MUNIRAH Betul. Di mana itu, boleh kamu tunjuk dalam Mahkamah? Because kamu yang beri keterangan, menunjuk rekod Plaintif, yang kamu tengok jawapan tadi, di mana kononnya Defendan boleh gunakan jalan sedia ada masuk ke tapak projek? Saya tanya, kamu pernah masuk tapak projek, ke? Tak pernah. PW2 fared no better: S/N ktYVjzvsyUqySl0Fz66mAQ Tak pasti? So, En Hisam, macam mana En Hisam tadi bagi keterangan bahawa ini merupakan jalan sedia ada kalau En Hisam tak pasti? Dua gambar ini adalah berbeza. En Hisam, plot tanah yang sama, En Hisam. Ini adalah Google Map, Puan. Hanya unit teknikal yang boleh sahkan. Saya menjawab kepada berdasarkan lot ini sahaja. Ok. En Hisam pernah pergi site? Tak pernah. [Emphasis is mine]

The plaintiff’s evidential foundation on access was thus reduced, in substance, to PW3’s assertion that an existing public road could be used. That assertion was unsupported by plans, minutes, photographs, technical reports, official correspondence, or any contemporaneous record of sufficient reliability. It rested, ultimately, on no more than PW3’s own sketch (lakaran). When pressed on that sketch, PW3 made the concession that proved fatal to the plaintiff’s case: Kita tiada minit kita tiada sebarang Iukisan, kita tiada sebarang laporan untuk membuktikan ataupun untuk menjelaskan ataupun untuk mengukuhkan penyata saksi kamu bahawa S/N ktYVjzvsyUqySl0Fz66mAQ kononnya terdapat jalan sedia ada seperti yang dilukis oleh kamu, setuju ataupun tidak? Tidak setuju. So, kamu cuba beritahu Mahkamah di hadapan Mahkamah ini, dalam 34 ikatan ni, ada gambar yang menunjukkan lukisan ini? Tiada. Oleh yang sedemikian, saya cadangkan lukisan yang dibuat ini adalah satu andaian kamu tanpa disokong dengan sebarang bukti di hadapan Mahkamah mulia ini, setuju ataupun tidak? Setuju. [Emphasis is mine]

In those circumstances, the Court is unable to place any weight upon PW3’s assertion that a viable and lawful access road existed. It was unsupported, unverified, and ultimately conceded to be no more than assumption.

The issue of access is rendered still more opaque by the plaintiff’s shifting position regarding the identity of the neighbouring landholder. Throughout the pleadings and contemporaneous documents, the entity identified was Lucky Valley Sdn Bhd. Yet, the evidence reveals that this entity was only incorporated in 2008 and was dissolved prior to October 2019. At trial, the plaintiff sought to substitute this with Lucky Valley Development Sdn Bhd. This is not S/N ktYVjzvsyUqySl0Fz66mAQ a mere misnomer but a material departure from the pleaded case. The law on this point admits of no ambiguity. In RHB Bank Bhd (Substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188, Gopal Sri Ram JCA stated: “[33] Second, the proposition of the Court of Appeal was not even pleaded by the respondent. The respondent’s cause of action against the appellant was for breach of contract. Nowhere in the respondent's pleading, expressly or by implication, can we detect a claim for breach of a joint venture agreement arising out of a fiduciary duty placed upon the appellant in the capacity as principal of an agent. It is a cardinal rule in civil litigation that the parties must abide by their pleadings. This is trite as can be seen from the decision of this court in Menah Sulong v Lim Soo & Anor [1983] 1 CLJ 26 where Ong Hock Thye CJ said: I think it is necessary in this case to emphasise once again that the courts should give their decision in strict compliance with the pleadings. As Lord Radcliffe said in Esso Petroleum Co Ltd & Anor v Southport Corporation [1956] 2 WLR 81 at p 91: If an appellate court is to treat reliance as pedantry or mere formalism I do not see what part they play in our trial system. [Emphasis is mine]

The consequence is inescapable. The plaintiff cannot now seek to rely upon a factual foundation that is inconsistent with, and indeed contradicts, its own pleaded case. The identity of the adjoining proprietor is not a peripheral detail, it lies at the heart of the plaintiff’s assertion that access could have been negotiated. That assertion collapses when the underlying factual premise is shown to be unreliable. S/N ktYVjzvsyUqySl0Fz66mAQ

The broader evidential landscape reinforces this conclusion. For a considerable period between 2003 and 2020, the plaintiff did not even hold title to the Property. The temporary title (hakmilik sementara) was only issued on 25 January 2020. Prior to that, the plaintiff’s own correspondence, particularly the letters of 2008 and 2009, demonstrates that it was seeking permission from the Land Office to allow the defendant entry onto the land. That evidence is irreconcilable with the plaintiff’s present contention that access was always available as of right. PW2 accepted as much in cross-examination: Maksud saya pemahaman, Yang Arif, adalah SOP dimana setiap projek kita akan memohon kebenaran masuk awal daripada kerajaan negeri iaitu jabatan — Siapa yang akan minta? PSK. PSK akan minta. Maknanya, PSK meminta kebenaran masuk kerana pada ketika ini, hakmilik masih belum turun kepada PSK lagi, iaitu Plaintif pada ketika itu, betul? Betul Maknanya, kamu tak ada kuasa untuk membenarkan Defendan memasuki tanah tersebut sehingga kamu mendapat kebenaran daripada pejabat tanah, PTD, betul? Pada ketika ini. Betul. S/N ktYVjzvsyUqySl0Fz66mAQ [Emphasis is mine]

That concession is of considerable significance. It confirms that the plaintiff itself lacked the legal capacity, at the material time, to authorise entry onto the land. That state of affairs is wholly inconsistent with its present assertion that the defendant was placed in lawful possession and simply failed to act upon it. The conclusion follows with little difficulty. The plaintiff failed to discharge its obligation under clause 8.1 of the Lease Agreement to deliver vacant possession. In this context, vacant possession means more than the mere absence of physical occupants. It requires that the lessee be placed in a position lawfully to enter, possess, and use the land without legal impediment. Land which is effectively landlocked, dependent upon third-party indulgence, and unsupported by any legal easement or assured right of access is not land delivered with vacant possession in any meaningful legal sense. The defendant’s complaint was therefore well-founded. It was not merely inconvenienced. It was both physically obstructed and legally disabled from implementing the project contemplated by the Lease Agreement. On the evidence before the Court, that conclusion is not only open, it is inescapable.

The matter does not end with access. A second and equally fundamental impediment lies in the question of registration. If access concerned the practical utility of the lease, registration concerned its legal commencement. One addressed whether the S/N ktYVjzvsyUqySl0Fz66mAQ land could be use, the other whether the lease had in law begun at all.

On this issue, the facts are not in dispute. The original issue document of title was never furnished to the defendant, notwithstanding repeated requests made in 2022 for the purpose of registering the Lease Agreement. PW1 accepted that those requests were not acted upon. That omission is not merely administrative. It is legally consequential. Clause 4.2 of the Lease Agreement provides in express terms: Pajakan ini adalah selama TIGA PULUH (30) TAHUN bermula daripada tarikh pajakan didaftarkan.

That clause admits of no real ambiguity. The lease term of thirty years was expressly stipulated to commence only upon registration. It was not left to implication, nor to inference. The parties chose to tie the commencement of the lease to a specific event, that is, the registration. The plaintiff’s own witness, PW1, accepted precisely that construction in cross-examination: Saya cadangkan perjanjian ini hakikatnya bermula, kalau ikut perjanjian inilah, penjelasan daripada klausa-klausa di sini, jelas menunjukkan bahawa tempoh pajakan bermula selepas ia didaftarkan. Setuju ataupun tidak? Tempoh pajakan mula selepas didaftarkan. Soalan saya setuju ataupun tidak? S/N ktYVjzvsyUqySl0Fz66mAQ Setuju. [Emphasis is mine]

The position is therefore straightforward. If the lease term was to begin only upon registration, and registration never occurred, then the lease term never commenced. That is not a matter of construction by ingenuity. It is the plain consequence of the language the parties themselves chose to employ. The plaintiff nevertheless contends that, notwithstanding clause 4.2, the obligation to pay rent arose immediately upon execution by virtue of clause 5.3. I am unable to accept so rigid and fragmented a construction. A contract is not to be read as a series of isolated obligations mechanically extracted from their setting. It must be construed as a coherent whole. Where clause 4.2 expressly defers the commencement of the lease to the date of registration, it would be commercially and legally incongruous to construe clause 5.3 as imposing an unconditional obligation to pay rent irrespective of whether the lease had come into operative effect. Rent is not ordinarily exacted in the abstract. It is the consideration for the enjoyment of the demised premises. To sever the obligation to pay rent entirely from the commencement of the lease and the ability lawfully to enjoy the land would be to read the agreement in fragments and not as an integrated commercial instrument. The plaintiff’s own conduct reinforces that conclusion. Although the Lease Agreement was executed on 9 August 2021, the invoice for the first year’s rental in the sum of RM30,000 was only issued on 9 August 2022, precisely one year later. If, as the plaintiff now contends, payment fell due immediately upon execution, no S/N ktYVjzvsyUqySl0Fz66mAQ satisfactory explanation has been offered for that delay. That chronology is revealing. It strongly suggests that the plaintiff itself did not contemporaneously regard the payment obligation as immediately exigible upon execution. The more plausible inference is that the plaintiff understood, as the defendant now contends, that the payment obligation was linked to the operative commencement of the lease, a commencement which, by reason of its own omissions, never occurred.

The Court is fortified in that conclusion by established principle. In Code Focus Sdn Bhd v Tan Chee Hoe & Sons Sdn Bhd [2013] 4 MLJ 59, the Court of Appeal reaffirmed that where contractual obligations are reciprocal and intended to be performed in tandem, one party cannot insist on performance while itself remaining unwilling or unable to perform its corresponding obligations. The Court held: “[41] Now, the clauses in the SPA showed that the contractual obligations of the parties are reciprocal. On the completion date, the plaintiff was to pay the balance of the purchase price while the defendant was to deliver vacant possession of the land. It is said that their obligations are simultaneous. [42] In our judgment, the reciprocal nature of the parties contractual obligations attract the provisions of ss 52— 53 and 55 of the Contracts Act

Section 52 of the Contracts Act 1950 stipulates that when a contract consists of reciprocal promises which are to be simultaneously performed, the promisor need not perform his promise unless the promisee is ready and willing to perform his promise. For s 52 of the Contracts Act 1950 to apply, the parties must have made promises that are to be performed simultaneously. See Chee Ah Yew v S/N ktYVjzvsyUqySl0Fz66mAQ TuanMan, Tuan Lebeh, Haji Lateh bin Haji Salleh [1923] 5 FMS LR 36 (SC); Central Malaysia Development Co Ltd v Chin Pak Chin [1967] 2 MLJ 174; Kanwar Bhan-Sukha v Ganpat [1926] 94 IC 304; Caltex Oil (Malaya) Ltd v Ho Lai Yoke & Anor [1964] 1 MLJ 76; Abdul Rahim bin Syed Mohd v 74 Malayan Law Journal [2013] 4 MLJ Ramakrishnan Kandasamy (Wan Ahmad Azlan bin Wan Majid & Anor, interveners) and another action [1996] 3 MLJ 385; and Shigenori Ono v Thong Foo Ching & Ors [1992] 1 MLJ 117.” [Emphasis is mine]

That principle applies with full force here. The plaintiff’s insistence on payment cannot be divorced from its own antecedent obligations to place the lease into legal operation and the defendant into lawful possession. Those obligations were not collateral. They were foundational. The plaintiff was plainly not ready and willing to perform its own part of the bargain. It failed to furnish the original issue document of title necessary for registration. It failed to secure lawful access. It failed, in consequence, to bring the Lease Agreement into legal and practical operation. Those were not peripheral omissions. They were the very conditions upon which the lease was to begin and become usable.

In such circumstances, the defendant cannot be held liable for non-performance. The plaintiff cannot rely on its own failure to register the lease, or its own failure to provide lawful access, as a basis upon which to demand rent or justify forfeiture. The law does not permit a party to manufacture default by disabling performance and then complain of the result. That conclusion accords with settled principle. In Bank Simpanan Nasional v Rudysham bin Abdul Raof [2016] MLJU 909 ([2017] 4 CLJ 234), the Court observed: S/N ktYVjzvsyUqySl0Fz66mAQ “[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 avoid a contract or obtain any benefit under it, unless the contrary is clearly provided for by the contract” [Emphasis is mine]

That presumption applies with particular force here. The plaintiff cannot withhold the legal means by which the lease was to commence and then rely upon that very failure to assert breach.

The plaintiff’s reliance on alleged deviations in project scope is equally unsustainable. The proposed substitution of pandan coconut with matag coconut, advanced in the defendant’s letter of 16 July 2020, was no more than that of a proposal. It was expressly raised subject to the plaintiff’s approval and was subsequently withdrawn before the Lease Agreement was executed. No such planting was ever undertaken. The plaintiff’s attempt to elevate a tentative and abandoned proposal into a substantive ground of termination is unsustainable. It ignores both chronology and commercial reality. A proposal never approved, never implemented, and withdrawn before the parties entered into the Lease Agreement cannot sensibly be transmuted into a repudiatory breach of that later agreement. S/N ktYVjzvsyUqySl0Fz66mAQ

The same is true of the plaintiff’s complaint regarding the defendant’s change of corporate name in 2018. That change predated the Lease Agreement by some three years. Clause 9.38, upon which the plaintiff relies, was introduced only in the Lease Agreement executed on 9 August 2021. It cannot operate retrospectively so as to render antecedent conduct a breach of obligations not yet in existence. The plaintiff’s reliance on clause 9.38 is therefore misconceived. The clause may regulate future changes in corporate structure following execution. It cannot be deployed to impugn historical changes that predated the contract from which the obligation derives.

The plaintiff’s next difficulty lies not in what it did, but in what it chose not to do. The alleged breaches of the 2003 Letter of Approval were not matters left suspended, to be retrieved at convenience and deployed when expedient. They were put to election. Once that election was made, the law required consistency. It does not permit a party to keep one course in reserve while proceeding down another.

The sequence of events is uncomplicated and, in the Court’s view, determinative. On 2 March 2021, the plaintiff issued a notice to show cause to the defendant, alleging breaches of the 2003 Letter of Approval and requiring the defendant to furnish a reasonable explanation within fourteen days, failing which the approval would be withdrawn. The ultimatum was clear. It identified the alleged defaults, stipulated the time for response, and specified the S/N ktYVjzvsyUqySl0Fz66mAQ consequence of non-compliance. It is common ground that the defendant complied with that demand and responded within the stipulated fourteen-day period. What followed is of greater significance than the notice itself. Having demanded an explanation and received one, the plaintiff did nothing. It did not reject the explanation. It did not issue any notice withdrawing the 2003 Letter of Approval. It did not terminate the arrangement. It did not reserve its rights. It did not, indeed, take any step at all to pursue the threatened consequence set out in its own notice. That silence is legally significant. In the face of the defendant’s compliance, and in the face of its own stated ultimatum, the plaintiff’s inaction cannot be treated as neutral. It was not mere administrative delay, nor some inconsequential omission. It was conduct, and conduct of a telling kind.

In my judgment, the inference is plain. Having called upon the defendant to answer, and having received that answer within time, the plaintiff elected not to pursue the alleged breaches any further. Its silence, viewed objectively and in context, amounted to a conscious abandonment of the complaints raised in the show cause notice. That conclusion is made still clearer by what followed. Rather than withdraw the 2003 Letter of Approval, the plaintiff proceeded instead to enter into a fresh Lease Agreement with the defendant in August 2021. That was not the conduct of a party treating the earlier breaches as subsisting and actionable. It was the conduct of a party electing to continue the relationship on a fresh contractual term. In those circumstances, the doctrine of waiver by election is engaged. The plaintiff was presented with a choice. It could have acted upon the alleged breaches and withdrawn the 2003 Letter of Approval, S/N ktYVjzvsyUqySl0Fz66mAQ precisely as it had expressly threatened to do. It did not. Instead, with full knowledge of the matters previously complained of, it elected to proceed and to recast the parties’ relationship in the form of a new Lease Agreement. Having made that election, it is bound by it. The governing principle was succinctly explained in Takashimaya Construction & Development Sdn Bhd & Anor v My Influx Sdn Bhd [2020] 6 MLJ 289: “[104] The plaintiffs’ decision and actions to proceed with the 15- storey building and keeping silent for five years, and letting the completion date of the project under the SPAs 2007 lapse, are certainly conduct amounting to an abandonment of the SPAs 2007 and 7 ½ storey building by election. The concept of estoppel by election was explained by the House of Lords in the case of Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India (‘The Kanchenjunga’) [1990] 1 Lloyd’s Rep 391: It is commonplace that the expression ‘waiver’ is one which may, in law, bear different meanings. In particular, it may refer to a forbearance from exercising a right or to an abandonment of a right. Here we are concerned with waiver in the sense of abandonment of a right which arises by virtue of a party making an election. Election is a concept which may be relevant in more than one context. In the present case, we are concerned with an election which may arise in the context of a binding contract, when a state of affairs comes into existence in which one party becomes entitled, either under the terms of the contract or by the general law, to exercise a right, and he has to decide whether or not to do so… The court in Hellas (Corinth) Refineries SA further explained the concept of estoppel by election: S/N ktYVjzvsyUqySl0Fz66mAQ Characteristically, the effect of the new situation is that a party becomes entitled to determine or rescind the contract, or to reject an uncontractual tender of performance; but, in theory at least, a less drastic course of action might become available to him under the terms of the contract. In all cases, he has in the end to make his election, not as a matter of obligation, but in the sense that, if he does not do so, the time may come when the law takes the decision out of his hands, either by holding him to have elected not to exercise the right which has become available to him, or sometimes by holding him to have elected to exercise it.” [Emphasis is mine]

That statement of principle is directly pertinent. It describes with precision what occurred here. The plaintiff became entitled, if so advised, to act upon the alleged breaches of the 2003 Letter of Approval. It signalled that intention in express terms. Yet when the occasion for election arrived, it chose silence over enforcement, and renewal over rescission. The law, in those circumstances, treats that choice as final. A party may forbear temporarily. It may investigate. It may reserve its rights. But it my not, with knowledge of the alleged breach, elect to proceed on a fresh footing and later seek to resurrect the abandoned complaint as though no election had ever been made. The evidence of PW1 puts the matter beyond serious dispute. In cross-examination, PW1 accepted that the Lease Agreement was confined to the documents expressly identified within it, and that matters said to arise prior thereto were not preserved as operative issues under the new bargain: S/N ktYVjzvsyUqySl0Fz66mAQ Can. Selanjutnya, saya rujuk balik pada perjanjian tersebut. Muka surat 144. Apa menarik dalam perjanjian ini di mana kamu, telah disediakan oleh kamu, 144, perenggan 3. Perjanjian ini tertakluk kepada dokumen-dokumen ini sahaja. Betul? Betul. So, maknanya sebelum ini apa benda semua dibangkitkan adalah bukan isu dalam perjanjian ini. Setuju dengan saya? Kalau ikut perjanjian ini. Setuju. [Emphasis is mine]

That concession is entirely consistent with the objective documentary record. The August 2021 Lease Agreement was not framed as a reservation of old disputes pending later enforcement. It was framed, and executed, as a fresh contractual arrangement governing the parties’ rights and obligations going forward. The plaintiff cannot now seek to treat that agreement as both a renewal of relations and a vehicle for resurrecting grievances it had already elected not to pursue. The law does not permit such shifting. A party may affirm, or it may terminate. It may waive, or it may insist. What it may not do is approbate and reprobate. Having elected to proceed with the Lease Agreement without withdrawing the 2003 Letter of Approval, without reserving its rights, and without acting upon the alleged prior breaches, the plaintiff is taken in law to have waived them. It is therefore estopped from reviving those antecedent complaints now. S/N ktYVjzvsyUqySl0Fz66mAQ

Drawing these threads together, the Court is driven to the firm conclusion that the plaintiff’s claim is misconceived. The Lease Agreement did not fail for want of willingness on the part of the defendant, nor by reason of any repudiatory default attributable to it. It failed because the plaintiff never placed the defendant in a position where performance was legally possible or commercially practicable. The plaintiff withheld both the registrable title and lawful means of access. Having done so, it now seeks to enforce obligations under a contract which, by its own omissions, it rendered incapable of meaningful performance. The law does not permit a party to disable performance and then complain that performance did not occur.

Once the factual thicket is cleared, the case resolves into a simple proposition. A contracting party cannot demand performance while withholding the very means by which that performance is to be rendered. Here, the plaintiff, as lessor, held in its hands both the legal instrument necessary to perfect the lease and the practical means by which the demised land might be lawfully entered and used. It failed to provide either. In doing so, it deprived the Lease Agreement of operative effect and, with it, the very rights which it now seeks to enforce. The defendant’s refusal to pay the sum of RM30,000 must be viewed in that context. It was not an act of defiance. It was the consequence of a bargain that had not yet become capable of lawful operation. Until the lease was capable of registration, and until lawful access was secured, the defendant was entitled to treat the plaintiff’s demand for payment as premature. S/N ktYVjzvsyUqySl0Fz66mAQ

The plaintiff’s evidential difficulties only deepen that conclusion. The unsatisfactory evidence of PW1, PW2 and PW3 materially undermines the reliability of its case. These were not peripheral deficiencies. They went to the centre of the plaintiff’s principal contention that lawful access was always available and that the defendant simply failed to act. That contention was not made good. Conversely, the evidence discloses a defendant that, notwithstanding periods of delay in earlier years, made sustained efforts to regularise its position once the prospect of implementation became realistic. Those efforts were ultimately thwarted not by indifference, but by the absence of the necessary legal infrastructure, title and access, which remained within the plaintiff’s control.

In those circumstances, the plaintiff’s claim cannot succeed. The defendant has established, both in fact and in law, that the plaintiff was not entitled to terminate the Lease Agreement, and that the relief sought in the counterclaim ought substantially to be granted.

Accordingly, and for the reasons set out above, the Court makes the following orders:

a declaration that the Notice of Termination dated 6 February 2023 issued by the plaintiff against the defendant is invalid, null and void, and of no legal effect;

(ii) a declaration that the Lease Agreement dated 9 August 2021 remains valid, subsisting, and binding as between the plaintiff and the defendant; S/N ktYVjzvsyUqySl0Fz66mAQ

(iii) that the plaintiff delivers to the defendant the original copy of the grant of the Property within thirty days from the date of this order;

(iv) that the plaintiff delivers vacant possession of the Property free from any encumbrance and/or intrusion to the defendant within thirty days from the date of this order;

that the plaintiff grants an easement over the land belonging to the plaintiff to the defendant as access to the Property within thirty days from the date of this order; and

(vi) that the plaintiff pays costs of this proceeding fixed at RM80,000 to the defendant, subject to allocatur. Dated the 18th day of May 2026 -SGN- ……………………………………………….. MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA S/N ktYVjzvsyUqySl0Fz66mAQ Counsel for the Plaintiff : Ravi Moorthi, Nurshuhaida Bahrin and Yeoh Hui Xian Messrs Ravi Moorthi, Noriza, Mala & Partners Counsel for the Defendant : Habizan Rahman, Thevini Nayagam and Faiz Idris Messrs Rahman Rohaida S/N ktYVjzvsyUqySl0Fz66mAQ