Sim Guan Boon v 1. ) Koon Siew Lin (WA-22NCvC-206-04/2023)

Raja Azlan Shah Acting CJ Malaya (as His Majesty then was) said in Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131 FC at 133 - It is a universal principle of law that the court would not allow a party to take advantage of his own wrong.

This principle of high standing will be tested again in this case.

I had on 22-08-2023 granted the plaintiff’s application for summary judgment under Order 81 rule 1 of the Rules of Court 2012 for specific performance of an agreement for the sale of a property to the plaintiff.

At the oral hearing, counsel for the defendants said he has 3 triable issues. These are - i. The 3rd defendant [“D3”] who is the beneficiary of a ¼ share in the property has no right to sell his share and thus the four defendants [including him] are not bound by their agreement to sell to the plaintiff. ii. The SPA has not been signed by the defendants. iii. There is no certainty as to the terms of sale.

I had dismissed all three alleged triable issues. Only alleged issue [i] poses some difficulties as there appears to be a divergence of view on this issue at the Court of Appeal level due to the fairly recent decision of Amanah Raya Bhd (representative for Cheng Song Lim, deceased) v Ong Chin Hoo [2020] 3 MLJ 463 CA. I will elaborate more on this below.

Dissatisfied with my decision, the defendants had appealed to the Court of Appeal. These are my Grounds of Judgment.

The plaintiff had entered into a Letter of Offer and Acceptance dated 09-12-2022 with the four defendants in this suit to buy a piece of property for RM 2,550,000. The Letter of Offer and Acceptance was prepared by an estate agent of the defendants. It was signed by the plaintiff and all four defendants here. [See Enclosure 7 Supporting Affidavit at page 2 paragraph 4 and Exhibit SGB-1].

The property is a double storey bungalow with an address at No. 68, Jalan Petaling 5, Sri Petaling, 57000, Wilayah Persekutuan Kuala Lumpur erected on a piece of land held under Individual Title No. Pajakan Mukim 3084, No. Lot 22961, Mukim Petaling, Daerah Wilayah Persekutuan, Tempat Batu 7, Jalan Sungai Besi, Wilayah Persekutuan (“Property”).

The 1st, 2nd and 4th defendant are the registered owners of ¼ share each in the Property. The remaining ¼ share is registered under the name of Koon Weng Hoong, who has passed away. The 3rd defendant 4 is the named beneficiary in the Will of Koon Weng Hong [deceased] and it is he who signed the Letter of Offer and Acceptance.

The defendants’ counsel informs the court that “Koon Weng Wai, the Third Defendant is the named beneficiary in the Will of Koon Weng Hong. Although the Grant of Probate has been extracted from the Court, the transfer of the said property to the Third Defendant is yet to be completed.” [See Enclosure 22 Defendant’s Written Submission page 3 at paragraph 6].

The defendants’ counsel also informs the court that “The parties have then appointed their own solicitors to negotiate the terms for the Sale and Purchase Agreement subsequent from the said offer to purchase. It is to be noted that the condition precedent in the draft Sale and Purchase Agreement is the sale of the said property is subject to a condition precedent that ¼ share of the property which belong to the deceased shall be first transferred and registered in the name of the Third Defendant.” [See Enclosure 22 Defendant’s Written Submission page 3 at paragraph 8].

The defendants’ counsel further informs the court that “After a few back-and-forth emails between the Plaintiff’s and Defendant’s solicitors pertaining to the drafting of the Sale and Purchase Agreement, then on 24.03.2023 the Defendant’s solicitors received 5 instructions from the Defendants to terminate the transactions thus the Defendant’s solicitors have informed the Plaintiff of the same.” [See Enclosure 22 Defendant’s Written Submission page 3 at paragraph 9].

The defendants’ counsel further informs the court that “For the purpose of mediation [sic] of damages, the Defendants further offer compensation to the Plaintiff. However, the Plaintiff has refused to accept the termination and compensation offered by the Defendants which in turn has led to this civil suit and this Summary Judgement application against the Defendants.” [See Enclosure 22 Defendant’s Written Submission page 4 at paragraphs 10 and 11].

From the facts and the statements by learned counsel of the defendants set out above, it is clear that the only real issue that I need to deal with is alleged triable Issue 1 - that D3 who is the beneficiary of a ¼ share in the property has no right to sell his share and thus the four defendants [including him] are not bound by their agreement to sell to the plaintiff.

For completeness sake, I will also deal with the other two alleged triable issues.

The law on Order 81 Rules of Court 2012 is well-settled. The principles applicable to our case here can be distilled as follows - i. Order 81 of the Rules of Court 2012 has the same procedural objective as O 14 of the same Rules in that it provides for a speedy mechanism for obtaining summary judgment without proceeding to a trial. The court needs to be satisfied that there is no triable issue before the application can be allowed. [Eng Song Aluminium Industries Sdn Bhd v Keat Siong Property Sdn Bhd [2018] 5 MLJ 380 CA, Zaleha Yusof JCA]. ii. A condition precedent in a contract was not an impediment for an order of specific performance to be granted. It was merely a conditional contract which will no longer be conditional if the conditions precedent has been fulfilled. In the event the conditions precedent has not been fulfilled, the contract will just come to an end. [See paragraph 33 Eng Song]. iii. Order 81 rule 2[2] Rules of Court 2012 states that the application for summary judgment under Order 81 of the Rules of Court 2012 shall attach thereto the minutes of the judgment sought by the plaintiff. However, failure to so attach the said minutes to the application is not fatal. [See paragraphs 37 & 40 Eng Song] iv. The rationale for the requirement to attach the minutes of judgment is to ensure that the final order could be speedily, promptly and expeditiously issued by the court. As long as the plaintiff had 7 sufficiently set out the reliefs of the judgment sought which were supported by an affidavit containing all the documents and details of parties’ obligation under the agreement this is sufficient. [See paragraphs 37 & 40 Eng Song] Alleged triable issue [1] - D3 who is the beneficiary of a ¼ share in the property has no right to sell his share and thus the four defendants [including him] are not bound by their agreement to sell to the plaintiff

In my view this is not a triable issue. This issue has been well settled since time immemorial. A beneficiary to a deceased's estate can enter into a contract to sell his interest in the land which he will inherit

A beneficiary to a deceased's estate can enter into a contract to sell his interest in the land which he will inherit. It is irrelevant that the land is still in the deceased's name at the time of the contract to sell. The fact that at the date of contract the beneficiary vendor had neither title nor power to call for title is not of itself an answer to a suit of specific performance by the purchaser. The court will grant summary judgment for specific performance under Order 81 of the Rules of Court 2012. [Brickles Snell [1916] 2 AC 599, Kersah La’usin v Sikin Menan [1966] 2 MLJ 20 HC Raja Azlan Shah J, Tan Swee Lan v Engku Nik Binti Engku Muda & Ors [1973] 2 MLJ 187 FC, Silimuthu v Amalu & Anor [1981] 1 MLRH 509 HC and [1983] 1 MLJ 190 HC Yusof Abdul Rashid J and Anuar bin Abu Bakar v Samsuri Bin Booyman [2016] 6 MLJ 96 CA Abang Iskandar JCA].

In Kersah La’usin v Sikin Menan [1966] 2 MLJ 20 HC Raja Azlan Shah J (as His Majesty then was) said at page 22 – “The first consideration is whether the plaintiff could enter into a contract with the defendant's (deceased) father involving a subject matter which was then not subsisting in the sense that the said land was still in his mother's name. It is not disputed that he was the sole beneficiary and that he was in such a position that when the time came he could perfect the title of the purchaser. The fact that at the date of contract the vendor had neither title nor power to call for title is not of itself an answer to a suit of specific performance by the purchaser: Brickles Snell [1916] 2 AC 599. Actual possession of both the legal estate and any equitable rights are not prerequisites so long as the vendor is in such a position that when the time for completion comes he will be in a position to pass on the title to the purchaser. In those circumstances the contract is good but only in equity.” [Emphasis added]

In Tan Swee Lan v Engku Nik Binti Engku Muda & Ors [1973] 2 MLJ 187 FC, the Federal Court granted an order for specific performance of an agreement to sell land entered into by beneficiaries of an estate. The facts of the case can be seen from the judgment of Ali FJ – By a written agreement dated April 12, 1958, the respondents agreed to sell and the appellant agreed to buy a piece of land held under Grant 2483, Lot 2451 in the township of Kuala Trengganu. The agreed price was $3,600 of which $750 was paid by the appellant as down payment. The balance was to be paid when the land was transferred to the appellant. On the date of the agreement the land was part of the estate of the Engku Muda bin Engku Besar and all the respondents were said to be beneficiaries of the estate. [Emphasis added]

In Silimuthu v Amalu & Anor [1983] 1 MLJ 190 HC and [1981] 1 MLRH 509 HC Yusof Abdul Rashid J said at page 191 - “It is plain that the defendants relied on their position as bare beneficiaries when they entered into the said agreement to avoid their obligations. Had the plaintiff applied for specific performance for the transfer of the said land to him I would have to consider whether or not the agreement was binding on the estate. Such deliberation, under the circumstances, may be deferred since it is not an issue in the instant action. I need only consider the question whether the defendants were legally bound to discharge their obligations under the agreement to apply for Letters of Administration and thereafter to apply for permission of the court to sell the said land to the plaintiff. To my mind, I have no doubt at all that the defendants were legally competent to enter into agreement in the terms as stated above. I do not agree that the agreement was void ab initio. There is no proposition of law, to my knowledge, which prohibits beneficiaries of an estate of a deceased person from entering 10 into an agreement of this nature. Instead there are authorities which point to the fact that beneficiaries are competent to enter into such agreement even before Letters of Administration has been granted to them. In Tan Swee Lan v Ungku Nik bte Ungku Muda & Ors [1973] 2 MLJ 187 which is a Federal Court case, all the beneficiaries of the estate entered into a written agreement, agreeing to sell a piece of land which was a part of the estate of the late Ungku Muda bin Ungku Besar. The High Court refused to allow specific performance on the ground that the claim was statute-barred. The Federal Court allowed the appeal and specific performance was granted. In another Federal Court case of Halijah v Morad & Ors [1972] 2 MLJ 166 four beneficiaries entered into an agreement to transfer a piece of land to the appellant, two of the four were then minors. The Federal Court agreed with the trial judge that as regards the two beneficiaries who had attained the age of majority the agreement was binding on them but since the action was taken well after the statutory period allowed under the law, the claim for the transfer was statute-barred. Though the Federal Court in the above cases did not deliberate on the incapacity or otherwise of the beneficiaries to enter into such contract, there is no doubt that if the Federal Court were of the view that the contract was void ab initio, it would have said so notwithstanding that such view was never canvassed by the respective parties. As stated earlier the defendants raised a defence that they had no legal right or interest at the said time to alienate or dispose the said land" and they cannot possibly be in a position, legally, to enter into contract with the plaintiff purporting to sell the said land. In answer to this, I need only cite part of the speech of His Lordship Raja Azlan Shah, J. [as he then was] in the case of Kersah La'usin v Sikin Menan [1966] 2 MLJ 20 at 22 "… The fact that at the date of contract the vendor had neither title nor power to call for title is not of itself an answer to a suit of specific performance by the purchaser: Brickles v. Snell [1916] 2 AC 599. Actual possession of both the legal estate and any equitable rights are not prerequisites so long as the vendor is in such a position that when the time for completion comes he will be in a position to pass on the title to the purchaser. In those circumstances the contract is good but only in equity." [Emphasis added]

In Silimuthu v Amalu & Anor [1983] 1 MLJ 190 HC and [1981] 1 MLRH 509 HC Yusof Abdul Rashid J also cited the universal principle of law that the court would not allow a party to take advantage of his own wrong - In passing, assuming that it was wrong for the defendants to bind themselves in such a manner as in the instant case (which in my opinion it was not), in the interest of public policy, it is pertinent to ask the question whether the court would allow the defendants to take advantage of their own wrong. The defendants were fully aware that when they entered into agreement they were bare beneficiaries and were in no position, without first obtaining Letters of Administration and leave of the court, to dispose of the said land to the plaintiff. His Lordship, Raja Azlan Shah, Acting C.J. (Malaya) [as he then was] in 12 delivering the judgment of the Federal Court case of Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131 said at page 133— "… It is a universal principle of law that the court would not allow a party to take advantage of his own wrong (See Rede v. Fair 105 ER 1188, 1189)"

In Anuar bin Abu Bakar v Samsuri Bin Booyman [2016] 6 MLJ 96 CA, Abang Iskandar JCA said -

… we agreed with the plaintiff’s learned counsel’s submission that the defendant was competent to enter into an agreement such as the joint venture agreement. In the case of Silimuthu v Amalu & Anor [1983] 1 MLJ 190; [1981] 1 MLRH 509 (‘Silimuthu’s case’) learned justice Rashid J had said at p 510 of the report, as follows: It is plain that the defendants relied on their position as bare beneficiaries when they entered into the said agreement to avoid their obligations. Had the plaintiff applied for the specific performance for the transfer of the said land to him I would have to consider whether or not the agreement was binding on the estate. Such deliberation, under the circumstances, may be deferred since it is not an issue in the instant action. I need only consider the question whether the defendants were legally bound to discharge their obligations under agreement to apply for letters of administration and thereafter to apply for permission of the court to sell the said land to the plaintiff.

At this juncture, we can see some parallel with our instant case with regards to the factual matrix thus far. But what the learned justice went on to say hit the nail on its head. His Lordship had said: To my mind, I have no doubt at all that the defendants were legally competent to enter into agreement in the terms as stated above. I do not agree that the agreement was void ab initio. There is no proposition of law, to my knowledge, which prohibits beneficiaries of an estate of a deceased person from entering into an agreement of this nature. Instead there are authorities which point to the fact that beneficiaries are competent to enter into such agreement even before letters of administration had been granted to them. [16] It would be apt for us to advert to the final order that was made by the learned justice Rashid J in the Silimuthu’s case like so: In my judgement the agreement entered into by the defendants with the plaintiff on July 20, 1980 was valid and the plaintiff was entitled to the court order requiring the defendants to apply for the letters of administration and subsequently to apply for permission of the court to sell the land to the plaintiff in accordance with the said agreement. Accordingly, the defendants were ordered to apply for letters of administration within one month of the date of this judgment and within one month of the grant of the letters of administration, duly extracted, the defendants were required to apply for leave of the court to have the said land transferred to the plaintiff.

See also the decision of Raja Azlan Shah J (as His Majesty then was) in the case of Kersah La’ Usin v Sikin Menan [1966] 2 MLJ 20; [1964] 1 MLRH 528.

In gist, the defendants in Silimuthu’s case were competent to enter into the agreement with the plaintiff, although they were merely beneficiaries, ‘even before letters of administration had been granted to them. [Emphasis added]

The defendants rely on Amanah Raya Bhd (representative for Cheng Song Lim, deceased) v Ong Chin Hoo [2020] 3 MLJ 463 CA. In this case, the Court of Appeal struck out the buyer’s suit for specific performance and held at [2] that – The vendors who were mere beneficiaries were not entitled to sell their future interest in the properties which they expected to inherit. They should have waited until the grant of the letters of administration was issued and after the appointed administrator completed the distribution of the properties to them, before executing any sale and purchase agreements in respect of the estate properties.

The case of Amanah Raya, on the face of it, appears at first blush to take a contrary view to the line of cases which I have set out above.

However, upon closer reading, it is clear that the Court of Appeal in Amanah Raya decided based on the critical fact that the owners of the properties in that case had passed away intestate, section 39 of the Probate and Administration Act 1959 provides that when a person passes away without leaving a Will all his property will first vest in Amanah Raya Berhad [“ARB”] until the grant of letters of administration. This means that before the estate is administered, the property remains under ARB. On this basis, the Court of Appeal in Amanah Raya decided that the letters of administration have to be issued and the property distributed before the beneficiaries can sell the subject land.

The relevant extracts of the judgment of the Court of Appeal in Amanah Raya are reproduced below -

In order to determine whether beneficiaries are entitled to sell their future interest in immovable property of the estate, we consider the relevant legislation as to probate as provided for under the PAA 1959 (Revised 1972). [44] The owners of the said properties, Chong Siew Koey and Choong Siew Thean, both passed away intestate. Section 39 of the PAA 1959 (Revised 1972) provides that when a person passes away without leaving a will, all his property will first vest in ARB until the grant of letters of administration. After the grant of letters of administration, the deceased’s property will vest in the administrator. This provision is set out below for ease of reference: 39 Vesting of property of an intestate

Where a person dies intestate his movable and immovable property until administration is granted in respect thereof shall vest in the Corporation in the same manner and to the same extent as it vests in the Probate Judge in England.

On the making of an order for a grant of administration by the Court all such property shall vest in the administrator. [Note: the word ‘Corporation’ is defined as ARB in section 2 which is the interpretation provision of the PAA 1959 (Revised 1972).] [45] The natural result of the sequence of s 39 stated above where property of the deceased first vests in ARB, then the administrator of the deceased’s estate, means that before the estate is administered, the property remains under ARB. [46] As submitted by ARB, before any land of a deceased may be sold, the personal representative of the deceased must obtain permission of court. Section 60 of the PAA 1959 (Revised 1972) differentiates between the power of sale granted to executors and administrators. The former does not require court sanction to sell property of the deceased. The latter requires court sanction to do so. This is clear from a reading of the provisions of s 60(3) and (4), which are set out below for ease of reference:

A personal representative may charge, mortgage or otherwise dispose of all or any property vested in him, as he may think proper, subject to any restriction which may be imposed in this behalf by the will of the deceased, and subject to this section: Provided that an executor may dispose of any property notwithstanding any restriction so imposed, if he does so in accordance with an order of the Court.

An administrator may not, without the previous permission of the Court —

(a)mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property situate in any State and for the time being vested in him; or

(b)lease any such property for a term exceeding five years. [47] An important requirement to note in s 60(3) and (4) is that before the executor or the administrator of the estate may sell the property of the deceased, the property must first vest in them. This is also seen in s 68 of the PAA 1959 (Revised 1972) which provides that the personal representatives of the deceased must hold the property before proceeding to sell it or deciding to delay the sale: 68 Duties of representative

On the death of a person intestate as to any property, the property shall be held by his personal representatives —

as to the immovable property upon trust, subject to section 60, to sell the same; … [48] Section 346 of the National Land Code (‘the NLC’) provides that no personal representative of a deceased may sell land until his name has been registered upon the title as representative, pursuant to the procedure provided: 346 Registration of personal representatives

(1)The personal representative or representatives of any deceased person may apply to the Registrar under this section to be registered as such in respect of any land, or share or interest in land, forming part of that person’s estate; and the Registrar, if satisfied that any estate duty due in respect of the estate has been paid, or a postponement of payment allowed in respect of the land, share or interest in question, shall give effect to the application in accordance with the provisions of sub-sections (3) and (4).

Any such application shall be accompanied by —

(a)the grant of probate or letters of administration;

(b)if available, the issue document of title to the land or, where the application relates to a lease or a charge, the duplicate thereof; and

(c)such other documents or evidence as the Registrar may require, or as may be prescribed.

(3)The Registrar shall give effect to any such application by endorsing on the register document of title to the land to which, or a share or interest in which, it relates a note of the date of death of the deceased person and a memorial to the effect that the said land, share or interest is vested in the applicant or applicants ‘as representative’ or, as the case may be, ‘as representatives’.

Every such memorial shall be signed and sealed by the Registrar, and a copy thereof shall be made on the issue document of title or, as the case may be, duplicate lease or charge, if sent with the application or subsequently obtained by him.

No personal representative or representatives shall be capable of executing any instrument of dealing in respect of any land, share or interest until it has become registered in his or their name or names pursuant to this section. (Emphasis added.) [49] We emphasise that an application under s 346 of the NLC MUST be accompanied by the grant of probate or letters of administration pursuant to s 346(2) which utilises the mandatory word ‘shall’. Therefore, at the risk of belabouring the point, until the grant of letters of administration, the personal representatives of the deceased cannot even apply for their names to be registered upon the issue document of title as provided for in s 346(3), let alone sell the deceased’s property. [50] In this case, it is not disputed that the vendors were mere beneficiaries of the estates of Chong Siew Koey and Choong Siew Thean, who both passed away intestate. At the time the SPA was executed, the grant of letters of administration had not been obtained. We are of the view that beneficiaries were not entitled to sell their future rights in immovable property in the deceased’s estate. [Emphasis added] [28] The facts in our case are different from the facts in Amanah Raya. Our case is not an intestacy case. D3 is the named beneficiary in the Will of Koon Weng Hong [deceased]. Recitals A to C of the final draft SPA clearly state that the Executor of the Will of Koon Weng Hong was in the course of transferring the ¼ share of the said deceased to D3. [Supporting Affidavit pdf page 99]. Amanah Raya can therefore be distinguished on the facts. [29] In addition, I note that the series of cases I have referred to above, which held that a beneficiary to a deceased's estate can enter into a contract to sell his interest in the land which he will inherit, were not referred to the Court of Appeal in Amanah Raya. If these cases were so drawn to the attention of the Court of Appeal, the Court of Appeal may well have come to a different opinion on the legal issue. Two additional grounds against the defendants [30] In my view, besides the principle that D3 is competent to enter into the agreement to sell the property, the defendants are also not allowed to raise the argument that D3 is not competent to enter into the agreement to sell the Property as it is a universal principle of law that the court will not allow a party to take advantage of his own wrong. In addition, the defendants are estopped from raising the said argument. I note that these two grounds were not raised by counsel in Amanah Raya. I will deal with these two additional grounds one by one. The court will not allow a party to take advantage of his own wrong [31] Raja Azlan Shah Acting CJ Malaya (as His Majesty then was) said in Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131 FC at 133 - It is a universal principle of law that the court would not allow a party to take advantage of his own wrong (see Rede v Farr 105 ER 1188 1189). This principle was in the early cases applied to grants of leasehold interest where a lessee sought to take advantage of his own breach of covenant by calling into operation a clause which rendered the lease void in such an event. This principle has been extended to contracts generally (see Abouloff v Oppenheimer (1882) 10 QBD 295 303; Gallie v Lee [1969] 1 All ER 1062 1081). [Emphasis added] [32] In my view, this universal principle of law must be applied in this case. The Court cannot condone the defendants’ act to rely on D3’s own wrong [assuming it’s wrong which is not the case here] to evade their contractual obligations. The defendants are further estopped from raising the said argument [33] In my view, the defendants are further estopped from raising the said argument. I need only cite the Federal Court decision in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 FC, where Gopal Sri Ram JCA said at pages 344 to 348 - The time has come for this court to recognize that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless… The doctrine may be applied to enlarge or to reduce the rights or obligations of a party under a contract: … It has operated to prevent a litigant from denying the validity of an otherwise invalid trust … It has been applied to prevent a litigant from asserting that there was no valid and binding contract between him and his opponent … It may operate to bind parties as to the meaning or legal effect of a document or a clause in a contract which they have settled upon …or which one party to the contract has represented or encouraged the other to believe as the true legal effect or meaning: … We would add that it is wrong to apply the maxim ‘estoppel may be used as a shield but not a sword’ as limiting the availability of the doctrine to defendants alone. Plaintiffs too may have recourse to it… We take this opportunity to declare that the detriment element does not form part of the doctrine of estoppel. In other words, it is not an essential ingredient requiring proof before the doctrine may be invoked. All that need be shown is that in the particular circumstances of a case, it would be unjust to permit the representor or encourager to insist upon his strict legal rights. In the resolution of this issue, a judicial arbiter would, when making his assessment of where the justice of the case lies, be entitled to have regard to the conduct of the litigant raising the estoppel. [Emphasis mine] [34] In conclusion issue [1] is not triable. Alleged triable issue [2] - The SPA has not been signed by the defendants What are the terms that need to be agreed before a binding contract can arise in an exchange of correspondence? [35] Issue [2] is not triable. [36] A valid contract to sell can exist even if a SPA had not been signed by the seller. What is important is that all the elements of a binding contract exist. If the parties, the offer and acceptance, the property, the price and the terms had been identified with sufficient certainty a valid and enforceable contract had materialised between the parties. [See paragraphs 20 - 21 Eng Song]. [37] Even when the correspondence is ‘subject to contract’, [which is not the case here] the court can always scrutinise the correspondence between the parties to construe whether a contract had been made. [See paragraphs 20 - 21 Eng Song]. Alleged triable issue [3] - There is no certainty as to the terms of sale [38] Issue [3] is not triable. [39] M/S MC Lai & Co the defendants’ solicitors had by an email dated 14- 03-2023 to M/S JP Chong & Co the plaintiff’s solicitors said “Please be informed that our Client has agreed on the final draft.” [See Enclosure 7 Supporting Affidavit pdf page 164 and Exhibit SGB-8]. [40] The final draft SPA that was agreed to by the defendants’ solicitors was attached in the plaintiff’s solicitors’ earlier email dated 10-03-2023 to the defendants’ solicitors. [See Enclosure 7 Supporting Affidavit pdf page 117 and Exhibit SGB-7]. [41] Recitals A to C of the final draft SPA also clearly state that the Executor of the Will of Koon Weng Hong was in the course of transferring the ¼ share of the said deceased to D3. [See Enclosure 7 Supporting Affidavit pdf page 99]. [42] In conclusion, there is certainty as to the terms of sale. Decision [43] I allow Enclosure 6 and grants summary judgment under Order 81 Rules of Court 2012 against the defendants with costs. [44] I allow prayer [a] with the addition of these words “dalam draf SPA di Affidavit Sokongan Exhibit SGB-7” after the words “telah di persetujui sebelum ini oleh defendan dan plaintif”. [45] I allow prayers (b) and (d) but for prayer [d] the words “jumlah wang pemulangan tersebut” are to be deleted. [46] I allow prayers (e) and (f). [47] Costs of RM 8,000 subject to allocatur be paid by the defendants to the plaintiff. ….…….(signed)..…..……. Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 13th September 2023 COUNSEL: 1) Chong Jock Peng and Mohd Nurhazman bin Nurham for plaintiff. (J P Chong & Co. (Kuala Lumpur)) 2) Kayshanteny for defendant. (Lim, Wong & Co. (Kuala Lumpur)) CASES REFERRED TO: 1) Abouloff v Oppenheimer (1882) 10 QBD 295 303 2) Amanah Raya Bhd (representative for Cheng Song Lim, deceased) v Ong Chin Hoo [2020] 3 MLJ 463 CA. 3) Anuar bin Abu Bakar v Samsuri Bin Booyman [2016] 6 MLJ 96 CA. 4) Brickles v. Snell [1916] 2 AC 599. 5) Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 FC. 6) Eng Song Aluminium Industries Sdn Bhd v Keat Siong Property Sdn Bhd [2018] 5 MLJ 380 CA. 7) Gallie v Lee [1969] 1 All ER 1062 1081 8) Halijah v Morad & Ors [1972] 2 MLJ 166. 9) Kersah La’usin v Sikin Menan [1966] 2 MLJ 20. 10) Rede v. Farr 105 ER 1188. 11) Silimuthu v Amalu & Anor [1983] 1 MLJ 190 and [1981] 1 MLRH 509. 12) Tan Swee Lan v Engku Nik Binti Engku Muda & Ors [1973] 2 MLJ 187 FC. 13) Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131 FC. LEGISLATION REFERRED TO: 1) Order 14 Rules of Court 2012. 2) Order 81 rule 1 of the Rules of Court 2012. 3) Order 81 rule 2[2] Rules of Court 2012. 4) Section 39 of the Probate Administration Act 1959 (Revised 1972). 5) Section 60 of the Probate Administration Act 1959 (Revised 1972) 6) Section 60(3) of the Probate Administration Act 1959 (Revised 1972). 7) Section 60(4) of the Probate Administration Act 1959 (Revised 1972). 8) Section 68 of the Probate Administration Act 1959 (Revised 1972). 9) Section 346 of the National Land Code 1965. 10) Section 346 (2) of the National Land Code 1965. 11) Section 346 (3) of the National Land Code 1965.