South Asia Noble Sdn Bhd v 1. ) Corak Prospek Binaan Sdn Bhd (WA-22NCVC-66-02/2017)

CORAK PROSPEK BINAAN SDN. BHD. (No. Syarikat: 87886-U)

AVENUE PLANET SDN. BHD. (No. Syarikat: 1112284-V) ….DEFENDAN-DEFENDAN JUDGMENT [1] This case involves a dispute between parties to a joint land development agreement. The Plaintiff alleged that the Defendants had breached this agreement by failing to take any steps to fulfil the conditions precedent and sought the remedies of specific performance, damages in addition or in substitution thereof and a declaration. The Defendants denied the allegation claiming that the agreement had been terminated. 2 Background Facts [2] There are three parties to this action. The Plaintiff, South Asia Noble Sdn Bhd, is a company owned by experienced developers. The 1st Defendant, Corak Prospek Binaan Sdn Bhd and the 2nd Defendant, Avenue Planet Sdn Bhd. [3] Sometime in 2014 the 1st Defendant applied for a piece of land. That piece of land was formerly used as the Salak South Tol Plaza located next to the East-West Link Expressway, Mukim Kuala Lumpur (―Land‖). [4] By their letters of 26th of August 2014 and 11th December 2014, the Federal Territory Land Executive Committee and the Director of Lands and Mines Office of Federal Territories, respectively, approved the 1st Defendant‘s application for the Land. [5] Discussions then ensued between the representatives of the 1st Defendant and the Plaintiff. These discussions resulted in two agreements, the existences of which are not in dispute. The Sale and Purchase Agreement (“SPA”) [6] The first agreement was a Sale and Purchase Agreement (―SPA‖) entered into between the 1st Defendant and the 2nd Defendant. This SPA was entered into on 9th February 2015. By this SPA, the 1st Defendant was to sell the Land to, and have it registered in the name of the 2nd Defendant, upon the terms and conditions therein set out. 3 [7] The recital to the SPA states that: ―(D) The Vendor has agreed to sell and the Purchaser has agreed to purchase the Land free from all encumbrances and with vacant possession and upon the terms and conditions hereinafter contained.

(E) The Purchaser intends to develop the Land into a mixed development (―Proposed Development‖).‖ [8] Clause 2 of the SPA sets out the agreement of sale: ―2. AGREEMENT OF SALE

2.1 Subject to the fulfilment of the Conditions Precedent, the Vendor hereby agrees to sell and the Purchaser hereby agrees to purchase the Land for the total purchase price of Ringgit Malaysia Sixty Million One Hundred One Thousand Thirty Eight and Sen Eighty (RM60,101,038.80) free from all encumbrances and with vacant possession upon the terms and conditions hereinafter contained.‖ [9] The conditions precedent that are material to this case are the following: ―3.

3.1 This Agreement is conditional upon the Parties obtaining the following within six (6) months from the date of this Agreement or such extended period as may be mutually agreed between the Parties in writing (―Conditional Period‖):

3.1.1 the Vendor obtaining the Title from the Appropriate Authority (―Alienation Approval‖) in its name upon the Terms of Title; 4

3.1.2 the Vendor obtaining the approval from the Appropriate Authority in respect of the transfer of the Land in favour of the Purchaser if the Title is issued with a restriction to transfer (―Transfer

Approval‖)

1.3 … …

3.1.5 the Title having been transferred to and registered in the name of the Purchaser, free from all encumbrances and the Purchaser obtaining the original Title duly registered in its name;‖ The Joint Land Development Agreement (“JLDA”) [10] The second agreement was the Joint Land Development Agreement (―JLDA‖). It was entered into among the Plaintiff, the 1st Defendant and the 2nd Defendant, also on 9th February 2015. In the JLDA, the 2nd Defendant is expressly described as a wholly owned subsidiary of the 1st Defendant. This JLDA was essentially for the purpose of developing the Land. [11] Under the JLDA, the 1st Defendant was referred to as ―Company A‖, the 2nd Defendant as ―Company B‖ and the Plaintiff as ―Company C‖. The subject matter of the JLDA was the Land and the recital to it sets out the broad purpose of the JLDA in the following terms: ―Whereas:

(A) Company B and Company C are desirous of entering into an unincorporated joint venture (―Joint Venture‖) to develop all that piece of land which was previously used as Salak South Tol Plaza located next to the East-West Link Expressway, Mukim Kuala Lumpur as more particularly delineated in red in the plan annexed herewith as Appendix1 hereto and 5 measuring approximately 16,919.91 square metres (4.181 acres/181,124,36 square foot) (―Land‖) into a mixed development (―Proposed Development‖) and are entering into this Agreement in order to establish the manner in which the Joint Venture is to be established for the purpose of the Proposed Development.

(B) Company B is in the midst of procuring the issuance of and the registration of the document(s) of title to the Land (―Title‖) in its name.‖ [12] Clause 2 of the JLDA sets out the consideration in these terms: ―2.

2.1 In consideration of the sum of Ringgit Malaysia One Hundred and Eight Million (RM108,000,000.00 (―Consideration‖) payable by Company C to company B in accordance with Clause 4 hereof, Company B hereby agrees to provide the Land to Company C for the purpose of the Proposed Development and to allow Company C to design, construct, complete and divest the Proposed Development on the Land upon the terms and subject to the conditions hereinafter contained.

2.2 …‖ [13] Of significance in this case are the conditions precedent. The JLDA had the following conditions precedent that are material. ―3.

3.1 This Agreement is conditional upon the fulfilment of the following conditions precedent (―Conditions Precedent‖) on or before the expiry of six (6) months from the date of this Agreement or such extended period as the Parties may agree in writing (―Conditional Period‖). 6

3.1.1 the Title having been issued on the following terms:

(i)Type of Title :

(ii) Tenure : Leasehold of 99 years

(iii) Lot/Mukim : Mukim Kuala Lumpur

(iv) Area : 17,270 square meters

Premium : RM1,349.99 per square meter

(vi) Yearly Quit Rent : RM0.0345 per square meter

(vii) Category of Land Use : Building (Bangunan)

(viii) Express Conditions : This land is to be used for commercial purposes only (Tanah ini hendaklah digunakan hanya untuk tujuan tapak perdagangan sahaja.)

3.1.2 the Title having been transferred to and registered in the name of Company B, free from all Encumbrances and Company C having received a certified true copy each of the following:

the Title duly registered in the name of Company B free from all Encumbrances having been received by Company C; and

(ii) the latest quit rent and assessment receipts in respect of the Land duly paid.

3.1.3 Company B obtaining the approval from the Appropriate Authority for the Proposed Development with a plot ratio of not less than 6;

3.1.4 Company B obtaining the development order, the planning and building permission approval and all other governmental and regulatory approvals as may be necessary and/or required from the Relevant Authorities in respect of the Proposed Development of the Land; and 7

3.1.5 Company B obtaining the approval from the Relevant Authorities for the construction of the link bridge from the Land to Salak South KTM Station.

3.2 This Agreement shall become unconditional on the date the last of the Conditions Precedent is fulfilled (―Unconditional Date‖).

3.3 Without prejudice to any rights or remedies that Company C may have against Company B for any breach on the part of Company B to take the relevant steps to fulfil the Conditions Precedent, in the event that any of the Conditions Precedent are not satisfied on or before the expiry of the Conditional Period, this Agreement shall terminate without prejudice to any antecedent liability accruing prior to the date of termination and Company B shall refund the Deposit to Company C within twenty one (21) days from the date of such termination, failing which interest at the rate of eight per cent (8%) per annum on a daily basis is payable by Company B to Company C on such part of the Deposit which remains outstanding from the date immediately after the expiry of the said twenty one (21) days until the date Company C has received the Deposit in full from Company B.‖ [14] These conditions precedent had to be fulfilled by the Defendants before the contract may move to its next phase. [15] The consideration was provided for in clause 4 of the JLDA in the following terms: ―4.

4.1 The Consideration shall be paid by Company C to Company B in the following manner: 8

4.1.1 the sum of Ringgit Malaysia Nine Million Fifteen Thousand One Hundred Fifty Five and Sen Eighty Two (RM9,015,155.82) only being point three five per cent (8.35%) of the consideration (―Deposit‖) shall be paid to Company B as follows:

the sum of Ringgit Malaysia Seven Million Two Hundred Twelve Thousand One Hundred Twenty Four and Sen Sixty (RM7,212,124.66) only upon the execution of this Agreement; and

(ii) the sum of Ringgit Malaysia One Million Eight Hundred Three Thousand Thirty One and Sen Sixteen (RM1,803,031.16) only within fourteen

days upon Company C‘s receipt of the written demand from Company B;

4.1.2 the sum of Ringgit Malaysia Seventy One Million Nine Hundred Eighty Four Thousand Eight Hundred Forty Four and Sen Eighteen (RM71,984,844.18) only being sixty six point six five per cent (66.65%) of the Consideration (―First Payment‖) within one hundred and eighty (180) days from the Unconditional Date or two hundred and seventy (270) days from the date of this Agreement, whichever is the later;

4.1.3 the sum of Ringgit Malaysia Twenty Seven Million (RM27,000,000.00) only being twenty five per cent (25%) of the Consideration (―Second Payment‖) shall be deemed to have been paid on the completion date of the Proposed Development, and Second Payment shall be settled by Company B retaining from the building(s) and/or units within the building(s) to be constructed on the Land pursuant to the Proposed Development (―Development Units‖), such number of Development Units as may be agreed upon between Company B and Company C and which are equivalent to the amount of the Second Payment (―Company B’s Development Units‖) upon the launch for sale of the Development Units by Company C. For the avoidance of doubt, the Second Payment shall be deemed to be fully settled by Company C upon the completion of Company B‘s Development Units. 9

4.2 In the event that Company C fails to pay any part of the First Payment within the stipulated payment period, Company B shall grant to Company C an extension of three (3) months from the expiry of relevant payment period to pay such part of the First Payment which remains outstanding subject to Company C paying to Company B interest on such part of the Balance Consideration which remains outstanding at the rate of eight per cent (8%) per annum on a daily basis calculated from the first day immediately after the expiry of the relevant payment period to the date of payment of such part of the First Payment which remains outstanding, based on three hundred and sixty five (365) day year on the actual number of days elapsed and shall accrue from day to day and such interest shall be paid by Company C to Company B on the date of full payment of such part of the First Payment which remains outstanding.‖ [16]

It states as follows: ―Dear Sirs, Re: Joint Land Development Agreement Corak Prospek Binaan Sdn Bhd and Avenue Planet Sdn Bhd and South Asia Noble Sdn Bhd dated 9/2/2015 And Letter Agreement between Corak Prospek Binaan Sdn Bhd and Avenue Planet Sdn Bhd and South Asia Noble Sdn Bhd ------------------------------------------------------------------------------------------- The above matter refers. We act for Corak Prospek Binaan Sdn Bhd and Avenue Planet Sdn Bhd with instructions to state as follows:- You are required to pay the land premium for the said title to be issued in our client‘s name. As such kindly let us have the land premium amount of RM23,314,327.30 within seven (7) days from the date hereof to enable our client to pay the premium for the said title, failing which our client will take it that you are unable to perform your obligation under the contract. Yours faithfully,‖ [21] According to Tan Boon Keong, a director of the Plaintiff who testified as PW1, there was a meeting between the parties prior to this letter. PW1 testified that during this meeting, there were discussions in regard to the Land Premium that was to be paid. 12 [22] It became quite clear that the Defendants were not able to pay the Land Premium imposed which was the cause of their failure to have the alienation of the Land completed and transferred to the 2nd Defendant. [23] Hence the Plaintiff‘s pleaded contention that the Defendants failed, refused and/or neglected to fulfil and perform their obligations under the SPA and/or the JLDA to (a) procure the transfer of the Land in favour of the 2nd Defendant (b) to obtain the approval from the Appropriate Authority for the proposed development of the Land and (c) to obtain the development order, the planning, and building permission approval and all other governmental and regulatory approvals, as per the conditions precedent in the JLDA. [24] Insofar as the Defendants‘ solicitors‘ letter of 3rd August 2016 is concerned, the Plaintiff maintains that it raises 2 issues. [25] Firstly, by reason of this demand, the Plaintiff contends that the 1st Defendant is estopped from, or have waived treating the JLDA or the SPA, as having been terminated. As can be seen above, clause 3.3 provides, essentially, that the JLDA shall terminate in the event any of the conditions precedent were not satisfied on or before the expiry of the Conditional Period. By agreement, the parties had extended time for securing the conditions precedent to 3rd February 2016. There was however no express agreement by the parties to further extend time to 3rd May 2016. Thus, in the normal course of events, the conditions precedent not being satisfied, the JLDA would have expired after 3rd February 2016. The Plaintiff maintains however, by sending the demand 13 of 3rd August 2016 for payment, the Defendants had treated the JLDA as still subsisting, even after the expiry of the time extended to 3rd February 2016. [26] Secondly, it raises the issue as to who was to bear the payment for the Land Premium. The Plaintiff maintains that it had no obligation to pay the Land Premium under the JLDA and, instead, that was always the Defendants‘ obligation under the JLDA, and specifically that of the 2nd Defendant under the SPA. [27] The Plaintiff pleads that it had at all times, remained ready and willing to perform its obligations under the JLDA. As such, it seeks specific performance of the JLDA. [28] The Plaintiff also seeks damages in addition or, alternatively, in lieu of specific performance. It seeks recovery of the sum of RM7,812,124.66 which was paid on its behalf by Khazanah Jaya Sdn Bhd upon execution of the JLDA. In addition, there is also a claim for advances made by the Plaintiff to the 1st Defendant totalling RM600,000.00. Lee Yan Yaw, who was formerly the Chief Financial Officer of Khazanah Jaya Sdn Bhd testified as PW2. He testified that Khazanah Jaya Sdn Bhd and Prinsip Cergas Sdn Bhd advanced RM400,000.00 and RM200,000.00, respectively, to the 1st Defendant on behalf of the Plaintiff. These advances were said to have been made by the Plaintiff at the request of one Ong Boon Teng. Ong Boon Teng was a director in both the Defendants and he testified as DW1. As for Khazanah Jaya Sdn Bhd, Prinsip Cergas Sdn Bhd and the Plaintiff, their relationship was such that they shared the same directors and 14 shareholders. There is also a prayer for general damages and a declaration that the 1st Defendant and/or the 2nd Defendant holds the Land on trust for the Plaintiff. [29] Following the filing of this action, the Plaintiff discovered documentation that the 1st Defendant was going to develope the Land. This development appeared different from what the parties had agreed to in the JLDA. The Plaintiff also found out that a caveat had been lodged against the Land by a company known as Nusmetro Suria Sdn Bhd. This caveat was lodged on 8th June 2017. It was lodged on the basis of an alleged Option Agreement between the 1st Defendant and Nusmetro Suria Sdn Bhd. This Option Agreement was dated 12th April 2017 and it contains several conditions precedent, including approvals from relevant authorities. This was an option for Nusmetro Suria Sdn Bhd to purchase the Land from the 1st Defendant. The case for the Defendants [30] The Defendants maintain that the JLDA had been terminated. In their joint defence, the Defendants pleaded that the JLDA expired, and therefore terminated, on 3rd February 2016. [31] In the alternative, the Defendants pleaded that the JLDA expired seven days after the Defendants‘ solicitors‘ letter of demand issued to the Plaintiff of 3rd August 2016. Thus, the alternative contention is that the JLDA expired on 10th August 2016. 15 [32] The Defendants maintain that it was the Plaintiff‘s obligation under the JLDA to pay the Land Premium, but the Plaintiff did not do so in breach of the JLDA. This was despite the Defendants‘ solicitors‘ demand for payment vide their letter of 3rd August 2016. [33] The Defendants further contended that it is because of the failure on the Plaintiff‘s part to meet this obligation to pay the Land Premium that resulted in the 1st Defendant not being able to complete the transfer of the Land to the 2nd Defendant. [34] The Defendants also contended that the Plaintiff had failed to provide the building plans to enable the 1st Defendant to submit the necessary application for a Development Order from Dewan Bandaraya Kuala Lumpur. [35] These alleged breaches of the JLDA, the Defendants say, also gives rise to the suggestion that the Plaintiff was never ready, able or willing to perform the JLDA and is thus not entitled to the remedy of specific performance. Was the JLDA terminated? [36] The Defendants relied on two events which they say terminated the JLDA. The first may be termed as an ―automatic‖ termination under clause 3.3 of the JLDA and, the second, a termination pursuant to the Defendants‘ solicitors‘ letter to the Plaintiff of 3rd August 2018. 16 [37] As for the first contention, the Plaintiff pleaded that the Defendants are estopped from contending that the JLDA had expired, automatically, under clause 3.3 of the JLDA on 3rd February 2016. The Plaintiff also contended that to allow the Defendants to treat the JLDA as having terminated under clause 3.3, when they were in breach in not even taking steps to satisfy the conditions precedent, would be to reward the Defendants for their wrong doing. It was urged that the Defendants should not be allowed to benefit from their own wrong. [38] As for the second contention, the Plaintiff maintains that the Defendants‘ solicitors‘ letter of 3rd August 2018 was clearly not a notice of termination. [39] Provisions in contracts for their automatic termination upon certain events have been held to be valid by our Courts. They are not new. One need only refer to the highly instructive judgment of the Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 delivered by Azahar Mohamed FCJ, at pages 469 to 470: ―[77] The concept of the automatic termination of a contract, pursuant to the terms of the contract, is not novel or unusual in Malaysian contract law as can be seen in the following cases cited by learned counsel for the plaintiff: Sangkala Sdn Bhd v Bennlim Engineering S/B & Anor [1998] MLJU 648; [1998] 1 LNS 275, where the High Court upheld the automatic termination clause of a sale and purchase agreement on the grounds that the balance purchase price had not been paid within the stipulated time frame; Tan Beng @ Tan York Soon v Ji Kang Dimensi Sdn Bhd (formerly known as Perindustrian Dimensi Sdn Bhd) & Anor [2001] MLJU 512; [2001] 1 LNS 336, where the High Court held that the automatic termination 17 clause of a sale and purchase agreement had been validly invoked; SCK Group Berhad v Poh Chen Guang & Th'Ng Kim Aun [2002] MLJU 194; [2002] 1 LNS 108, where the High Court again upheld the automatic termination clause in a contract in the context of an application for summary judgment; and Norani bin Maniran dan satu lagi lwn Maybank General Assurance Bhd [2012] 9 MLJ 610, where the automatic termination clause under the contract was upheld by the High Court. We were also referred to a decision of the Court of Appeal in Kredin Sdn Bhd v YTF Investments Sdn Bhd [1998] 1 MLJ 46; [1998] 1 CLJ 205. … The court upheld the validity of the automatic termination of the sale and purchase agreement in view of the contract-breaker's failure to pay the balance purchase price by the completion date. In the words of the Court of Appeal: In the light of the provisions of the sale and purchase agreement, we hold that no notice of termination of the sale and purchase agreement need ever be given to anyone. This fact cannot be made more clear than cl 9 of the sale and purchase agreement. The sale and purchase agreement is automatically terminated by 1 July 1983 when Kredin failed to pay the balance of the purchase price by the completion date ie, 30 June 1983. There is no provision anywhere to say that YTF is required to issue notice of termination and forfeiture. It is our view that YTF was being over cautious when it gave 1 July 1983 notice to Kredin. The central issue is whether the sale and purchase agreement has in law come to an end, or is it still subsisting. We hold that in law the agreement came to an end on 1 July 1983 when Kredin failed to settle the balance of the purchase price. [78] In our judgment, the above passage and the passage from the judgment of the majority of the Court of Appeal in the instant case which we have referred to earlier in para 72, state correctly the law on automatic termination. We therefore agree with the submission of learned counsel for the plaintiff that the case of P Palakrishnan a/l Perianan lwn Krishnamoorthy a/l Sinniah dan satu lagi, was decided per incuriam as it did not consider the Court of Appeal case 18 of Kredin Sdn Bhd v YTF Investments Sdn Bhd which upheld the enforceability of the automatic termination clause in the context of a sale and purchase agreement. In our view, there can be no question as to the enforceability of the automatic termination clause in the SPA in the instant case under Malaysian contract law.‖ [40] The validity of clause 3.3 in providing for the automatic termination of the JLDA, should any of the conditions precedent remain unsatisfied by the period stipulated, is thus incontestable. The question then is, may the Defendants rely on it? [41] The Plaintiff maintains that it is inconsistent for the Defendants to assert that the JLDA had terminated on 3rd February 2018 under clause 3.3 and at the same time, to have caused a demand to be made on the Plaintiff on 3rd August 2018, for payment of the Land Premium purportedly under the JLDA. The Plaintiff made reference to the fact that there was even a meeting between representatives of the parties on 1st August 2016 at a hotel in Kuala Lumpur to discuss payment of the Land Premium. The Defendants had therefore been treating and representing the JLDA as still subsisting after 3rd February 2018. [42] In the Court of Appeal‘s decision in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2013] 6 MLJ 836, a passage in the case of Moreton v Montrose Ltd [1986] 2 NZLR 496 was cited (Moreton was also cited by the Federal Court in Dream Property Sdn Bhd). The passage the Court of Appeal cited was the following, at page 853 of the report: 19 ―More recently in the case of Moreton v Montrose Ltd, the New Zealand Court of Appeal (Wellington) after considering the decision in New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France had this to say about automatic termination clauses: A condition that a contract shall be void in a certain event is treated sometimes as meaning that the contract is then automatically at an end, sometimes as meaning that either party may then rescind it. On the first interpretation neither party is required to take positive steps to set the contract aside, although a party who wishes to take advantage of the fact that the contract is no longer in existence may be well advised to make his attitude clear, since if he acts in a way suggesting that he regards the contract as continuing he will be at peril of a finding of waiver, election or estoppels. On either of the two interpretations a party will disqualify himself from relying on the condition if he has brought the state of affairs about by his own default. The rule that a party cannot take advantage of his own wrong in fundamental.‖ (Emphasis added) [43] Thus, while it is clear that automatic termination clauses are valid and not contrary to law, their applicability, as with other terms in a contract, may be precluded upon a finding of waiver, election or estoppel. [44] In Amalgamated Investment and Property Co Ltd (In liquidation) v Texas Commerce International Bank Ltd [1981] 3 All ER 577 at p 584, Lord Denning in his inimitable style expressed what I think is the principle applicable here: 20 ―The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations.‖ (Emphasis added) [45] Lord Denning then goes on to express the circumstances contemplated, which circumstances, in my view, fits well to the case at hand: ―When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.‖ [46] This principle was reiterated by the Federal Court in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331. The Federal Court through the judgment of Gopal Sri Ram JCA (as his Lordship then was), in pages 344 to 345, sets out a litany of cases and circumstances to which the doctrine have been held to apply: 21 ―The doctrine may be applied to enlarge or to reduce the rights or obligations of a party under a contract: Sarat Chunder Dey v Gopal Chunder Laha LR 19 IA 203; Amalgamated Investment and Property Co Ltd (In liquidation) v Texas Commerce International Bank Ltd [1982] 1 QB 84; [1981] 3 All ER 577; [1981] 3 WLR 565. It has operated to prevent a litigant from denying the validity of an otherwise invalid trust (see, Commissioner for Religious Affairs, Terengganu & Ors v Tengku Mariam bte Tengku Sri Wan Raja & Anor [1970] 1 MLJ 222) or the validity of an option in a lease declared by statute to be invalid for want of registration (see, Taylor Fashions Ltd v Liverpool Victoria Friendly Society [1981] 1 All ER 897; [1981] 2 WLR 576). It has been applied to prevent a litigant from asserting that there was no valid and binding contract between him and his opponent (see, Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387) and to create binding obligations where none previously existed (see, Spiro v Lintern [1973] 3 All ER 319; [1973] 1 WLR 1002). 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 (see the Amalgamated case) or which one party to the contract has represented or encouraged the other to believe as the true legal effect or meaning: American Surety Co of New York v Calgary Milling Co Ltd (1919) 48 DLR 295; De Tchihatchef v Salerni Coupling Ltd [1932] 1 Ch 330; Taylor Fashions.‖ [47] In making the demand, the Defendants had, in effect, acted and thus held out that the JLDA was still subsisting and that they wanted payment thereunder for the Land Premium. In this context, collectively, the lack of response to the request for a second extension coupled with the meeting among the parties and the Defendants‘ solicitors‘ letter of 3rd August 2016 supports such a conclusion. If indeed, the Defendants had wanted to treat the JLDA as having terminated under clause 3.3, they could have responded to the Plaintiff‘s attempt to secure a second extension by saying so. However, in my view, their failure to do so does not per se create any estoppel. The Defendants were not obliged to 22 respond. On the other hand, in the context of the subsequent meeting and the Defendant‘s demand, the prior failure to respond to deny the request for a second extension is corroborative of a conclusion that the Defendants had affirmed and assumed the continued existence of the JLDA. It would appear from subsequent events that the Defendants may in fact have been attempting to keep their options open by leaving the situation ambiguous. Presumably, if payment for the Land Premium was made by the Plaintiff, the Defendants would have continued as if the JLDA had not terminated under clause 3.3. [48] The Plaintiff also argued that there were other indications of the Defendants‘ representation that the JLDA was still subsisting, or of their affirmation of its continued subsistence. Under clause 3.3, if the JLDA had terminated, there was to be a refund of the deposit paid within twenty one days. No refund was ever made. There was also evidence that the 1st Defendant had requested extensions of time to pay the Land Premium which was granted by the State Authority on 16th June 2016. The Land Premium was subsequently reduced to RM21,587,328.00 and, according to DW1, paid by the 1st Defendant from moneys it borrowed from Hap Seng Credit Sdn Bhd. These additional facts if taken individually would not, to my mind, amount to any clear representation that the JLDA was still subsisting. Even if taken collectively, it is debatable if any such representation comes across. However, taken collectively and in the context of the Defendants‘ non response to the request for a second extension, the meeting between the parties‘ representatives after 3rd February 2016 and the letter of demand of 3rd August 2016, they are at the very least consistent with the contention that the Defendants were not treating the JLDA as terminated. 23 [49] The Plaintiff however, did not comply with the Defendant‘s demand of 3rd August 2016. The Plaintiff maintained that it was never obliged to pay the Land Premium. The Plaintiff pointed out that neither the JLDA nor the SPA required the Plaintiff to pay the Land Premium. Instead, if the SPA were to be examined, it is clear that under clause 3.4, it was the 2nd Defendant (the purchaser) who had to pay the Land Premium. Clause 3.4 of the SPA provides as follows: ―3.4 The Purchaser shall be responsible, at its own costs and expenses, within forty five (45) days from the date of this Agreement, pay all fees, premium and charges as may be required by the Appropriate Authority for the purposes of the Alienation Approval and the issuance of the Title in favour of the Vendor.‖ Thus the Plaintiff never paid the Land Premium demanded. In traditional terms, the Plaintiff was not induced by the demand to act to its detriment by paying the Land Premium. Does this, however, negate the existence of an estoppel? Having regard to the decision of the Federal Court in Boustead, the answer to this question must be in the negative. [50] This point was specifically addressed by the Federal Court in Boustead, where Gopal Sri Ram JCA explained in the following terms at pages 347 and 348: ―The traditional view adopted by jurists of great learning is that a litigant who invokes the doctrine must prove that he was induced by the conduct of his opponent to act in a particular way. However, having undertaken a careful examination of the authorities, we are of opinion that this requirement is not an integral part of the doctrine. All that a representee (which term includes one who has received encouragement in the sense we have discussed earlier) need do is to place sufficient material before a court from which an inference 24 may fairly be drawn that he was influenced by his opponent's actings. Further, it is not necessary that the conduct relied upon was the sole factor which influenced the representee. It is sufficient that 'his conduct was so influenced by the encouragement or representation … that it would be unconscionable for the representor thereafter to enforce his strict legal rights' (per Robert Goff J in Amalgamated Investment [1982] 1 QB 84 at p 105). Taking now the requirement of detriment, it is quite apparent that in the early development of the doctrine, there are to be found in the judgments of eminent judges statements indicating that one who relies upon an estoppel must prove that he relied upon his opponent's conduct and in consequence acted to his detriment. And this view had found its way into the equity jurisprudence of Malaysia. (See, for example, Wong Juat Eng v Then Thaw En & Anor [1965] 2 MLJ 213.) As has been seen, the former requirement, namely, that there ought to have been reliance was exploded by the decisions in Amalgamated Investment, in Taylor Fashions, in Societe Italo-Belge (sub nom 'The Post Chaser' and Lim Teng Huan. 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. This may, but need not in all cases, include the determination of the question as to whether the particular litigant had altered his position, although such alteration need not be to his detriment.‖ (Emphasis added) [51] The Defendants had clearly left the subsistence of the JLDA vague when they could have made things clear. Without agreeing to extend time, they then tried to demand payment under it. After that, they did not even seek to clearly terminate the contract by giving notice of 25 termination or by accepting any alleged repudiation of the JLDA by reason of the Plaintiff‘s failure to make payment of the Land Premium demanded. It would be both unfair and unjust in the circumstances, to now allow the Defendants to maintain that the contract had terminated, after having breached their obligations in respect of the conditions precedent, allowing time to lapse and then purporting to demand performance of it by the Plaintiff. [52] In somewhat similar circumstances, but not the same, the observations made by Ravinthiran J in DKSH Malaysia Sdn Bhd v Hantaran Asia Sdn Bhd [2016] 805 at page 813 seems very apt: ―However, the defendant never took any overt action to make clear that the agreement had been rendered null and void. I am mindful of the argument of the counsel for the defendant that the plaintiff never formally granted extension of time for submission of the plans to the local authority despite the delay by the defendant. However, I should think that is of no consequence. By asking for additional time to obtain approval for the plan despite missing the deadline for submission of the plan, the defendant must be deemed to have treated the agreement as subsisting. In the premises, it does not lie in the mouth of the defendant now to say that the agreement had been automatically terminated. In fact, what the defendant is attempting to do is to take advantage of their own wrong to escape the consequences of breaching the agreement after pleading for time to perform their contractual obligations.‖ [53] Ultimately, having regard to the conduct of the Defendants, I hold that they are estopped and cannot gainsay by seeking to treat the JLDA as having terminated on 3rd February 2016 under clause 3.3. 26 [54] Quite apart from whether the JLDA had terminated under clause 3.3, the second issue is whether the JLDA was terminated by the Defendants‘ solicitors‘ letter of demand of 3rd August 2016. Learned counsel for the Defendants argued that meaning must be given to the last sentence of the letter of demand. It states that failing to make the payment within seven days, their clients, ―…will take it that you are unable to perform your obligation under the contract.‖ This argument may sound plausible at first blush, as the practical consequence would be that the JLDA would not be performed and thus, regarded as terminated. However, upon closer consideration, even if the Defendants could deem that the Plaintiff was not able to pay, that in itself is not a notice of termination or acceptance of repudiation of the JLDA. More importantly, the JLDA itself catered for such eventualities. As learned counsel for the Plaintiff pointed out, under clause 15.1.1 of the JLDA, even if the Plaintiff was in breach, it must be given twenty one days to remedy the breach. Even if the demand was to be treated as such a notice (which, to my mind it cannot), it was still defective as only seven days were given. In the circumstances I am in agreement with learned counsel for the Plaintiff and I accordingly hold that the Defendants‘ solicitors‘ letter of 3rd August 2016 was not a notice of termination under either the JLDA or otherwise, and therefore it did not cause a termination of the JLDA. [55] In light of the foregoing, what then happens to the JLDA if the Defendants are estopped from treating it as having terminated under clause 3.3 and the Defendants had themselves not taken proper steps to terminate it? Learned counsel for the Plaintiff contends that time for 27 compliance with the conditions precedent had therefore become at large. [56] The decision of the Court of Appeal in Hock Huat Iron Foundry (suing as a firm) v Naga Tembaga Sdn Bhd [1999] 1 MLJ 65 is instructive on this point. Although the facts are not on all fours, one of the issues in that case concerns time for performance of a contract having lapsed. In his judgment, NH Chan JCA pointed out that: ―When time is no longer of the essence of the contract and no time for performance is specified, the promise must be performed within a reasonable time. Section 47 [of the Contracts Act 1950] reads: Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time.‖ In the circumstances of this case, the Defendants having been estopped from contending that the JLDA had terminated under clause 3.3 and time having lapsed in respect of clause 3.3, it therefore necessarily means that time for meeting the conditions precedent had become at large. Rather than there being a lacuna, the law‘s solution is to impose a reasonable time for meeting the conditions precedent. [57] As to how a reasonable time is to be determined, the law is clear. As was stated by Lee Hun Hoe CJ (Borneo), in Nyap Kui Fah v Len On Contractor [1978] 1 MLJ 208, ―Where no time is set for the performance of the contract the law implies that performance must be completed within a reasonable time having regard to the circumstances.‖ 28 Was the Plaintiff in breach the JLDA? [58] The Defendants maintain that the Plaintiff was in breach of the JLDA. However, even if that was the case, there was no attempt by the Defendants to terminate the JLDA by reason of the Plaintiff‘s alleged breach in the manner provided therein. [59] On the other hand, a party seeking specific performance of a contract must demonstrate that it is ready, able and willing to perform its obligations under the contract (see Ganam Rajamany v Somoo Sinniah [1984] 2 MLJ 290). This is also one of the points made by the Defendants as to why specific performance of the JLDA is not available to the Plaintiff. [60] It is true that the Plaintiff did not comply with the Defendants‘ demand for payment of the Land Premium. The Plaintiff contends that it was not obliged to do so under the JLDA. As stated above, the Plaintiff‘s position was that the Land Premium was to be paid by the 2nd Defendant, as purchaser of the Land, under the SPA. Although this was an obligation under clause 3.4 of the SPA to which the Plaintiff is not a party, it is nevertheless indicative that the obligation was upon the 2nd Defendant. In addition, this obligation under the SPA does not contradict, or is inconsistent with, the provisions of the JLDA for the reasons set out below. 29 [61] The Defendants, on the other hand, maintained that under clause 10.2.1 of the JLDA, the Plaintiff was obliged to pay the Land Premium. This contention is set out in paragraph 21 of DW1‘s witness statement. Clause 10.2.1 of the JLDA states as follows: ―10.2 Company C (the Plaintiff) hereby expressly and irrevocably covenants and undertakes as follows:

10.2.1 that it shall promptly settle all quit rent, assessment and other outgoings payable in respect of the Land including all penalties payable, if any, from the date Company C (the Plaintiff) takes vacant possession of the Land;‖ [62] Learned counsel for the Defendants argued that payment for the Land Premium came within the term ―outgoings‖. However, from the very wording of clause 10.2.1, the ―outgoings‖ referred to were those, if any, from the date the Plaintiff takes possession of the Land. It is common ground that the Plaintiff has not taken possession of the land. In fact clause 5.1 of the JLDA states that ―Vacant possession of the Land shall be deemed to be delivered by the Company B (the 2nd Defendant) to Company C (the Plaintiff) on the Unconditional Date.‖ Clause 1.1 states that the ‗―Unconditional Date‖ shall have the meaning ascribed to it in Clause 3.2. Clause 3.2 states that ―This Agreement shall become unconditional on the date the last of the Conditions Precedent is fulfilled (“Unconditional Date”).‖ It is common ground that the conditions precedent have not been fulfilled. Clearly, clause 10.2.1 cannot apply, at least not yet, and in any event it is debatable if ―outgoings‖ include payment of the Land Premium. Clearly the Land Premium had to be paid before the Land could be secured. In which event, payment of the Land Premium would have had to have taken 30 place before vacant possession of the Land can be obtained. Therefore it could not have been intended that ―outgoings‖ under clause 10.2.1 was to include payment of the Land Premium. [63] In their Defence, the Defendants pleaded in paragraphs 5.2 and 5.3 that the Plaintiff paid RM7,212,124.66 as part payment towards the Land Premium and that the parties had agreed that the Plaintiff shall pay the balance of the Land Premium. Paragraphs 5.2 and 5.3 of the Defence states as follows: ―5.2 Pihak Defendan-Defendan memplidkan bahawa Plaintif telah membayar RM7,212,124-66 yang merupakan sebahagian jumlah premium tanah yang hendak dibayar kepada pihak Pentadbir Tanah Wilayah Persekutuan.

5.3 Pihak Defendan-Defendan memplidkan bahawa kedua-dua pihak Plaintif dan Defendan telah bersetuju bahawa pihak Plaintif akan membayar baki jumlah premium selepas pengeluaran Borang 5A dari Pentadbir Tanah Wilayah Persekutuan.‖ [64] However, quite to the contrary, clauses 4, 4.1 and 4.1.1(i) of the JLDA make it quite clear that the sum of RM7,212,124.66 was payment towards consideration and not for the Land Premium as such. This payment may have been intended to be utilised towards paying for the Land Premium. However that cannot per se, create any legal obligation on the Plaintiff to pay the whole of the Land Premium imposed. Furthermore, contrary to what was pleaded in paragraph 5.3 of the Defence, there was no evidence led of any agreement that the Plaintiff was to pay the balance of the Land Premium. 31 [65] In his submissions, learned counsel for the Defendants added a new arrow to his bow. He submitted that clause 15.1.2(i) of the JLDA clearly implied that the Plaintiff was to pay the Land Premium payable. That clause provides as follows: ―15.1.2 to terminate this Agreement by notice in writing to Company C (the Plaintiff), in which event:

Company B (the 2nd Defendant) shall forfeit the Deposit as agreed liquidated damages and shall within twenty one (21) days from the date of such termination refund all monies paid by Company C (the Plaintiff) to Company B (the 2nd Defendant) towards the Consideration, and any other sums which has been paid by Company C (the Plaintiff) on behalf of Company B (the 2nd Defendant) to any party relating to the issuance of and the registration of the Title in the name of Company B (the 2nd Defendant) (including but not limited to land premium), if any, within ninety (90) days from the date of such termination, failing which interest at the rate of eight per cent (8%) per annum on a daily basis is payable by Company B (the 2nd Defendant) to Company C (the Plaintiff) on such part of the Balance Consideration which remains outstanding from the date immediately after the expiry of the due date until the date Company C (the Plaintiff) has received the Balance Consideration outstanding in full from Company B (the 2nd Defendant); and …‖ (Emphasis added) Practically identical provisions are found in clauses 13.1.2(i) and 14.1.2(i). These three provisions are differentiated only by who the contract breaker is. 32 [66] Is the implication urged by the Defendants warranted? I do not think so. No more should be read into clause 15.1.2(i) (or indeed clauses 13.1.2(i) or 14.1.2(i)) other than what is expressly stated. The words ―if any‖ found in clause 15.1.2(i) make it quite clear that there may or may not be, any sum paid towards Land Premium by the Plaintiff. These words do not imply any obligation on the part of the Plaintiff to pay the Land Premium. In my view, these provisions merely state that payment towards Land Premium by the Plaintiff is optional – and if paid, it is recoverable under clauses 15.1.2(i), 13.1.2(i) or 14.1.2(i) of the JLDA. [67] If the Plaintiff was not obliged to pay the Land Premium and the Land was not transferred into the name of the 2nd Defendant because the Land Premium was not paid, this would necessarily mean that the Defendants could not have taken any steps towards fulfilling the conditions precedent. [68] As admitted by DW1 in his witness statement where he stated, ―By a letter dated 11/12/2014, PTG WP, approved the said alienation subject to the condition attached there in and the premium payable was RM23,314,328-00 as per Borang 5A dated 11/12/2014.‖ and this was followed by his statement that, ―We had problem to pay the premium‖. DW1‘s testimony was aligned to the contention that it was because of the Defendants inability to pay the Land Premium that they looked for the joint venture with the Plaintiff and accordingly it was the Plaintiff that had to pay the Land Premium. If that were indeed the case, surely payment of the Land Premium by the Plaintiff would have been a very important point and a clear requirement to that effect would have 33 been provided in the JLDA – but there was no such provision. This was notwithstanding the fact that there were other payment obligations imposed on the Plaintiff in the JLDA. As mentioned earlier, one of the payment obligations was to pay a sum of RM7,212,124-66 under clause 4.1.1 of the JLDA as part of the deposit. This payment was made by the Plaintiff and this was admitted by DW1 in his witness statement and also in paragraph 5.2 of the Defence. In fact, and in addition, the Plaintiff had also advanced a sum of RM600,000.00 to the Defendants and this was not disputed. [69] The Defendants also alleged that the Plaintiff failed, refused or neglected to provide building plans for the purposes of submissions to the Dewan Bandaraya Kuala Lumpur for the application of a Development Order. However, at the trial, there was no evidence of any such requirement or failure to do so. There was also no evidence that the Defendants had requested any building plans from the Plaintiff. [70] Having regard to the foregoing, I would conclude that there was no breach of the JLDA by the Plaintiff. Thus, there is no evidence to support the contention that the Plaintiff was not ready, able or willing to perform its obligations under the JLDA. In fact, in its attempt to seek the second extension, the Plaintiff had demonstrated its desire to keep the JLDA afoot, which is consistent with its readiness and willingness to perform its obligations thereunder. 34 Specific performance [71] Having regard to their contentions and in the circumstances of this case, the Plaintiff seeks specific performance of the JLDA. However, the Defendants contend that there are several other reasons why specific performance should not issue. The Defendants maintain that the terms of the JLDA are uncertain. It is not clear who was to bear the Land Premium. The Defendants also contend that the Plaintiff has not come to Court with clean hands and is therefore not entitled to the equitable remedy of specific performance. They further contend that the terms of the JLDA were such that there would be need for constant supervision. Implicitly too, the Defendants suggest that the JLDA was such that there is substantial dependence on the parties being able to cooperate. [72] Insofar as the issue of the Land Premium is concerned, I find that there is in fact no ambiguity and this issue has been dealt with above. In any event, not every uncertainty would preclude the grant of specific performance. As was pointed out by the Federal Court in Lin Nyuk Chan v Wong Sz Tsn [1964] 1 MLJ 200, where Wylie CJ (BORNEO) stated: ―Even if a court was of opinion that this provision for variation is uncertain, or creates uncertainty, there would remain the question whether the uncertainty is of such a nature as would cause a court of equity to refrain from decreeing specific performance in the circumstances of this case. For specific performance will not always be denied because of some uncertainty in the terms of the contract. What then is the exact nature of the uncertainty which might be said to exist? The term of the lease is certain, there is apparently no uncertainty concerning the premises, the rent at the outset has been 35 fixed, and paid and accepted by both parties. All that can be said, is that it is uncertain when the provision for variation will operate and what the actual amount of the variation is. Having regard to all that is provided for in the lease, I cannot regard these features as so fundamental as to deprive the appellant of a decree of specific performance, especially as he went into possession nearly three years ago and has apparently observed all the other provisions of the lease and is still in possession without any attempt by the landlord to evict him.‖ (Emphasis added) [73] As for the allegation that the Plaintiff has not come to Court with clean hands, the Defendants maintain that the SPA was executed between the 1st and 2nd Defendant merely to be able to demonstrate that there was a prior transaction of RM63 million so as to assist in obtaining a loan from the bank. What the Defendants do not have sufficient regard for is perhaps the fact that the SPA was in fact between the Defendants themselves. In addition, whether such a prior transaction would solely be relied upon by the Banks to grant loans was never established and indeed, there is nothing to suggest that Banks when evaluating whether to grant a loan secured by the Land would not commission a valuation of their own. There is also no evidence to suggest that RM63 million is not a reasonable value for the Land. [74] Would the JLDA require such co-operation between the parties or supervision by the Court that it ought not to be specifically enforced? After all it is a joint land development agreement. There is some force in the Plaintiff‘s contention that there is in fact no requirement for any mutual co-operation between the parties or supervision by the Court. The terms of the JLDA are clear and the JLDA is crafted such that the burden of undertaking the development is 36 actually upon the Plaintiff. If the conditions precedent were fulfilled, there would then arise the Plaintiff‘s obligation to make further payments under clause 4.1 of the JLDA. Pursuant to clause 5, the 2nd Defendant would have to deliver vacant possession of the Land to the Plaintiff. Significantly, asserts the Plaintiff, clause 18 of the JLDA requires the 2nd Defendant to grant the Plaintiff a power of attorney within five days of the title in the Land being registered in the 2nd Defendant‘s name. A specimen of the power of attorney is annexed to the JLDA as Appendix

The terms are indeed very wide and it allows the Plaintiff, as the 2nd Defendant‘s attorney and, for and on behalf of the 2nd Defendant, to sign plans, make and sign applications, comply with conditions imposed by the authorities, decide on the preparation of tenders, make payments to relevant authorities, decide on sale prices of units developed and a host of other powers, including the power to commence legal action, at the Plaintiff‘s own cost and expense. This may then be viewed together with clause 10.1 of the JLDA, under which the Plaintiff had agreed inter alia to assume the role and obligations of a developer, at its sole cost and expense. Thus, the Plaintiff contends, there is no need for the Defendants to do anything. [75] As for the Option Agreement that was discovered by the Plaintiff referred to earlier, from the date of the document and clause 2.1 thereunder, it was only valid for 6 months. The Option Agreement was dated 12th of April 2017. Therefore, ex facie, the option had lapsed and there was no other evidence led to the contrary by the Plaintiff. 37 [76] There was also the oral evidence of DW1 that an application was made by the 1st Defendant to the Perbadanan Aset Keretapi for approval to build the link-bridge. However, that application was not approved. Under cross examination, DW1 admitted that the application was not made for the purposes of the JLDA. DW1‘s testimony under cross examination by learned counsel for the Plaintiff was as follows: ―Q : Insofar as the question 35 to 37, basically 36 and 37. You mentioned that basically application was made to TM and TNB for approval. : Yes. : Isn‘t it true based on your case, based on your allegation that the agreement has already been terminated in August 2016? : Yes. : But here I see even up to 2018 you are still making application allegedly for the purposes of continuing the JLDA. That‘s doesn‘t make sense, right? : You are asking me? : Yes, I‘m asking you. Doesn‘t make sense because you look at 2018 approval or refusal to grant approval. : I think like this, I think me as the land owner I have the right to do whatever to enhance the property the value of it. If I want to try to build the bridge, I‘ll try. If I want to build a helipad. I will apply. It got nothing to do with JLDA. : So in other words, you are saying those approval has nothing to do with JLDA? : No, after that as far as I‘m concerned when the time, when I applied that time for this bridge everything as far as I am concerned the JLDA all has been terminated. I am moving on a fresh. 38 : Correct, according to you, yes. Yes, you are moving on a fresh so in another words, that‘s your evidence, it‘s nothing to do with JLDA? : I‘m moving on a fresh. : Agree or not that‘s your evidence that it‘s nothing to do with JLDA? : I am just saying that I‘m moving a fresh. : So you agree? : Yes.‖ That being the case, it cannot therefore be said that the application was made in accordance with the terms of the JLDA or for a link-bridge that was within the contemplation of the JLDA. [77] However, in the circumstances of this case, I am not persuaded that the Court should exercise its discretion to order specific performance of the JLDA, in its entirety. While the argument of learned counsel for the Plaintiff is attractive, it however does not take into account the other covenants and undertakings of the Defendants. These are to be found under clauses 8 and 9 in respect of the 1st and 2nd Defendants, respectively. They run into several paragraphs and sub-paragraphs. In relation to the 1st Defendant, the covenants include restrictions on dealings with its shares in the 2nd Defendant. There is also a covenant that requires the 1st Defendant to procure that the 2nd Defendant does not, without the consent of the Plaintiff, create or allot new shares, change its accounting practice, change the scope of its organisation including an obligation not to acquire any undertaking or property of a substantial value. As for the 2nd Defendant, its covenants and undertakings include those similar to the 1st Defendants and they 39 also include undertakings to provide accounting reports and monthly management accounts to the Plaintiff, notices of all shareholders meetings and to ensure that there shall be no encroachment or nuisance affecting the Land or any part thereof. There are thus continuous obligations which the Defendants are bound by their covenants and undertakings to comply with. If the JLDA is to be specifically enforced, it would clearly entail continuous supervision to ensure that the continuous obligations of the parties are complied with. [78] Learned counsel for the Plaintiff cited section 11(2) of the Specific Relief Act 1950 which provides as follows: ―(2) Unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved.‖ However, the JLDA is not merely a contract for the transfer of immovable property to the Plaintiff. It is much more than that. The circumstances are unlike those in Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd [1989] 2 MLJ 155 or Chin Tai v Siow Shiow & Ors [1971]1 MLJ 67 cited by the Plaintiff, which were cases concerned with the sale and purchase of land. [79] Having regard to the foregoing, the Defendants‘ contention against the grant of specific performance of the JLDA, in its entirety, is not without merit. 40 [80] It is important to appreciate that the entire JLDA has not, as yet, been activated. The JLDA is in fact divisible into two parts. The first requires satisfaction of the conditions precedent. If the conditions precedent are satisfied, then thereafter, and only thereafter, would the rest of the contract, i.e. the second part, come into play. As provided in clause 3.3, if the conditions precedent are not achieved by the period provided or extended by the parties, the JLDA will automatically terminate and the obligation to refund moneys paid will be triggered. The parties would, as it were, revert to their respective positions prior to the JLDA. In that event, the second part of the JLDA will not come into operation. As contemplated by the parties, and expressed in the terms of the JLDA, its two parts are discrete and severable. The operation of the second part may be dependent upon satisfaction of the first, but that does not make it any the less separate and on independent footing from the first. [81] The breach in this case is in respect of the Defendants‘ failure to take steps to pursue meeting the conditions precedent. That there was a breach on the part of the Defendants is clear from the evidence and the admission of DW1. The fact that at the material time they could not pay the Land Premium, set in train its failure to take steps to satisfy the conditions precedent. Failing to take the necessary steps towards fulfilling the conditions precedent is a breach, even though the Defendants may not have been financially able to do so. Such is the nature of contractual obligations unless some legal justification is invoked e.g. the doctrine of frustration. However, none was invoked or exists in this case. 41 [82] To be found in clause 3.3 of the JLDA are the words, ―Without prejudice to any rights or remedies that Company C (Plaintiff) may have against Company B (2nd Defendant) for any breach on the part of Company B (2nd Defendant) to take the relevant steps to fulfil the Conditions Precedent…‖. While the 2nd Defendant was not obliged to positively secure satisfaction of the conditions precedent, these words clearly demonstrate the obvious intention of the parties that relevant steps towards satisfying the conditions precedent must be taken. [83] In addition, under clause 9.2.9, the 2nd Defendant had also covenanted and undertaken as follows: ―9.2.9 that it shall endeavour to obtain the following:

the approval from the Appropriate Authority for the Proposed Development with a plot ratio of no less than 6;

(ii) the development order, the planning and building permission approval and all other governmental and regulatory approvals as may be necessary and/or required from the Relevant Authorities in respect of the Proposed Development on the Land; and

(iii) the approval form the Relevant Authorities for the construction of the link-bridge from the Land to Salak South KTM Station.‖ The Defendants had voluntarily bound themselves to comply with these terms and conditions of the JLDA, as did the Plaintiff. In pursuance thereof the Plaintiff had, on their part, complied with their obligations and met their financial obligations therein provided. 42 [84] In this context, it was also the Plaintiff‘s contention that the 1st and the 2nd Defendants must not be viewed as entirely separate and independent entities, even though they are technically two separately incorporated companies. As mentioned, in the JLDA, the 2nd Defendant is described as a wholly owned subsidiary of the 1st Defendant. In fact DW1 under cross-examination, agrees that the 2nd Defendant is a subsidiary of the 1st Defendant, albeit somewhat reluctantly. The following was the testimony of DW1 under cross-examination: ―Mahkamah: : Question is do you agree that 2nd Defendant is a subsidiary of the 1st? : I think so, yes. Peguam Plaintif: : In fact, I think kindly refer to Bundle B2, page 62. This is the copy of JLDA. Mahkamah The recital? Peguam Plaintif Yes precisely. : The recital C which states that as ‗at the date of this agreement Company B is wholly owned by Company A‘. Company B is Avenue Planet and Corak Prospek is Company A. Agree? : Let me just check the dates. Yes. 43 : I will put it to you that Corak Prospek has full control over Avenue Planet, agree or disagree? Because Avenue Planet is a wholly-owned subsidiary of Corak Prospek. : Yes.‖ This particular transaction and its structure is indicative of the fact that the 2nd Defendant was intended by the 1st Defendant to undertake the joint development of the Land with the Plaintiff. The extension of time, the negotiations and the demand for payment of the Land Premium made on 3rd August 2016 were all undertaken with the Defendants jointly on one side vis a vis the Plaintiff on the other. [85] The Court would be unjustifiably blinkered if it were not to see that the breach in failing to take any steps to have the conditions precedent fulfilled including having the Land transferred and registered in the name of the 2nd Defendant were, in reality, that of both the Defendants. [86] Therefore, having regard to the foregoing and bearing in mind that the Land Premium has been paid, I view that the most appropriate remedy, and one that the Court has a discretion to grant, is specific performance by the Defendants of its obligations under the JLDA in respect of the conditions precedent. If the conditions precedent cannot be satisfied without any breach on the Defendants‘ part, the JLDA will automatically terminate under clause 3.3. If the Defendants succeed to meet the conditions precedent, the rest of the JLDA will apply and the parties may then proceed in accordance with the rest of the terms of the JLDA i.e. the second part of the JLDA. That second 44 part of the JLDA would not be the subject matter of the order for specific performance. [87] That the Court has the power to order specific performance of part of a contract as aforesaid is found in section 15 of the Specific Relief Act 1950 which states as follows: ―15. When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.‖ [88] There is precedent for the division of a contract, depending on the structure and terms of the contract and circumstances of the case, into parts that can stand on a separate and independent footing from one another. This can be seen in the case referred to by both learned counsel for the Plaintiff and the Defendants. [89] In City Investment Sdn Bhd v Koperasi Serbaguna Cuepacs Tanggungan Bhd [1985] MLJ 285 the Federal Court was concerned with two separate agreements. In respect of one of those two agreements, the Federal Court in its judgment sets out the approach in which it came to the conclusion that the agreement could be divisible as contemplated under section 15 of the Specific Relief Act 1950. The approach employed by the Federal Court and the factors taken into consideration, are, to my mind, equally applicable in this case and merits reproducing in extenso, for both the context and the analysis. The relevant passages are to be found in the judgment of Mohamed Azmi FJ at page 295 of the report, which states the following: 45 ―On the issue of liability we have decided that the first agreement is binding as a housing development contract and that its enforceability does not depend on the execution of the proposed clause 3 of the building contract. Be that as it may we are of the view that the first agreement is a divisible contract in that its terms draw distinction between the subdivided lots and the terraced houses to be built on them. Separate prices are provided for in the first schedule in respect of land and houses and each part appeared to stand on a separate and independent footing so as to be within the terms of section 15. The housing construction part is governed primarily by terms and conditions provided by Rule 12(1) of the Housing Development (Control and Licensing) Rules which are deemed to be incorporated in the agreement; whereas the terms governing the subdivided lots are almost wholly spelt out by the terms of the written agreement itself. Section 15 provides:— … On the facts of the present case, the part of the first agreement dealing with the subdivided lots can and ought to be specifically enforced as it stands on a separate and independent footing from the construction part which cannot or ought not to be specifically enforced. Thus on the part which can be specifically enforced, the court can in addition award damages in appropriate cases under section 18(3). Whether a contract is divisible or not must depend on the partiacular circumstances of each case, the terms of the contract and the nature of the property (see Harendra v Nandala AIR 1933 Cal 98). The distinction between the Privy Council case of Graham v. Krishna Chuntier Dey (ante) and our case is this. In the Graham case two plots of lands were sold at one price and the other terms of the contract also dealt with the two plots together. Thus not only the price but the other terms were indivisible. Whereas in the first agreement of our case the contract draws distinction between the land and the construction part. Not only the price but the other terms are divisible and based on a separate and independent footing. As stated earlier the lands are mainly governed by terms provided in the instrument itself whereas the construction part is principally governed by terms and conditions incorporated into the agreement by the Housing Developers legislation. In relation to our section 15 (which is equivalent to section 16 of the Indian Specific Relief Act 46 1877 which has since been repealed by the Specific Relief Act 1963), Lord Sumner had this to say at pages 92 and 93:— "Accordingly, section 16 (which appears to be novel in the width of the power which it confers) afforded the only ground on which the Court could help him. To make this section applicable it had to be shown that there was a part of the contract, to wit, that relating to plot A, which (a) 'taken by itself could and ought to be specifically performed,' and (b) 'stood on a separate and independent footing' from the other part of the contract, which admittedly could not be performed. Their Lordships think (1) that before a Court can exercise the power given by section 16 it must have before it some material tending to establish these propositions, and cannot apply the section on a mere surmise that, if opportunity were given for further inquiry, such material might be forthcoming and possibly might be found to be sufficient; and (2) that the words of the section, wide as they are, do not authorize the Court to take action otherwise than judicially, and in particular do not permit it to make for the parties or to enforce upon them a contract, which in substance they have not already made for themselves." One of the underlying principles in the Privy Council judgment is the reluctance of the court to rewrite a contract for the parties. In that case, two judges of the Indian High Court had allowed an appeal and held that section 16 (our section 15) applied, but since there was no evidence before them of the value or character of the two plots, they remitted the case to the trial judge in order that he might take evidence and assess the abatement of price to be allowed in respect of the failure to make title to one of the plots. The Privy Council allowed the appeal and restored the judgment of the trial judge in holding that section 16 did not apply. If the effect of granting specific performance is to enforce upon the parties a new contract as to the price or other terms which go the root of what they have already bargained for themselves, then the court would refuse to make the section applicable. Applying the test laid down by Lord 47 Sumner to the facts of the present appeal, it is self-evident that there is a part of the first agreement viz. the transfer of the terraced lots "taken by itself could and ought to be specifically performed", and secondly, this particular part of the contract "stood on a separate and independent footing" from the other part of the contract, to wit, the construction part which clearly could not and should not be specifically performed as it would involve the court in lengthy and laborious supervision as to its performance.‖ [90] The decision of the Federal Court was subsequently upheld by the Privy Council, in City Investment Sdn Bhd v Koperasi Serbaguna Cuepacs Tanggungan Bhd [1988] 1 MLJ 69, where at page 72 of the report, Lord Templeman dealt with the issue of section 15 of the Specific Relief Act 1950 in the following terms: ―But section 15 of the Act makes provision for specific performance in circumstances which obtain in the present case: "15. When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part." It was argued that the agreement in the first contract to sell the land does not stand on a separate and independent footing from the agreement in the first contract to construct the terrace houses. But there was a separate price and a separate completion date for the sale of the land. By refusing to build the houses for the construction price, the appellants cannot deprive the co-operative society of the land for which the co-operative society has already paid in full the land purchase price and the development price.‖ 48 [91] Learned counsel for the Defendant however, maintains that the JLDA may not be ―split into 2 agreements‖. It is contended that the conditions precedent under clause 3.1 are an integral part of the JLDA and cannot be read as a separate and independent contract. In support of this contention, learned counsel for the Defendant cited the decision of Venkatadri J., siting with S Ramachandra Iyer CJ, in the High Court of Madras in A L Parthasarathi Mudaliar v Venkata Kondiah Chettiar AIR 1965 (Vol 52) 188. Section 16 of the Indian Specific Relief Act of 1877, is in pari materia with section 15 of our Specific Relief Act 1950. In his judgment at page 190 of the report, Venkatadri J stated as follows: ―(6) Before considering whether S. 15 would be applicable to the facts of this case, we may deal with the question whether the plaintiff can obtain relief under S. 16 of the Specific Relief Act. Section 16 applies where a contract consists of several parts which are separate and independent of one another and some of which can and ought to be performed may alone be specifically enforced. Such a contract though nominally one is actually divisible and when the court enforces what is apparently a part, it really enforces an entire and complete contract. In the instant case, there are two separate items of properties mentioned in the agreement and the question for consideration is even though the defendants have no title in respect of the second item, can they not be directed to execute a conveyance in respect of the first item, thereby decreeing in favour of the plaintiff specific performance of the entire contract. The question whether the contract is divisible or indivisible, is one depending upon the nature and terms of each individual contract. To make S. 16 applicable, it has to be shown (1) that the contact and be split up into parts, (2) that there is a part of the contract which taken by itself can and ought to be specifically performed and (3) that the said part stands on a separate and independent footing from the other part of the same contract. Before a court can exercise the power given in the section, it must have before it some material tending to establish these propositions. This section cannot be applied on a mere surmise that if opportunity were 49 given for further enquiry, such material might be forthcoming and possibly might be found to be sufficient. In the instant case, the defendants entered into an agreement to sell both the items of property for a consolidated sum of Rs. 5750. This is a contract for sale of property in one lot which will generally be considered as indivisible, as the conveyance of item 2 does not stand on a separate and independent footing from the conveyance of item 1. We agree with Ramakrishnan J., that S 16 of the Specific Relief Act cannot be applied in this case.‖ (Emphasis added) [92] I am in agreement with the observations of Venkatadri J., in Parthasarathi. Section 15 of the Specific Relief Act 1950 (section 16 in the Indian Specific Relief Act of 1877) is applicable only to contracts that are capable of being divided into parts, each of which can stand on a separate and independent footing of its own. Whether a given contract may be so divisible as envisaged by section 15 must necessarily depend on the nature and the terms of the contract. [93] In Parthasarathi, the appellant contracted to sell two pieces of immovable property. It was however later found that the appellant did not have title to one of the properties and was not able to sell it. The reason why the Court in Parthasarathi found section 16 of the Indian Specific Relief Act inapplicable is clearly stated at the end of the above-quoted passage from the judgment of Venkatadri J. It was a contract for the sale of two properties for one agreed price. The contract could not, in effect, be divided into two contracts for the sale of one property each such that if the sale of one property could not be effected, the sale of the other could. 50 [94] Although the obligations relating to the conditions precedent in this case may be said to be part of the JLDA, i.e. found within the terms of the JLDA, this alone does not preclude them from being capable of standing on a separate and independent footing from the rest of the obligations under the JLDA. The fact that failure to satisfy the conditions precedent within a prescribed time will result in an automatic termination of the JLDA is itself indicative of the fact that that part relating to securing the satisfaction of the conditions precedent in the JLDA, is severable from the rest of the JLDA and capable of standing on a separate and independent footing of its own. As such, I remain of the view that section 15 of the Specific Relief Act 1950 is applicable vis a vis the obligations relating to the securing of the conditions precedent under the JLDA. [95] That then leaves the issue as to how much time do the Defendants have in order to secure the conditions precedent? As the Defendants have been estopped from asserting that the JLDA has terminated, time for the purposes of clause 3.3 has become at large. There is therefore the need to now determine a reasonable time within which the conditions precedent are to be achieved, in place of the expired time period provided in clause 3.3 and extended by the parties. [96] In its original form, the JLDA required the conditions precedent to be met on or before the expiry of what is termed the ―Conditional Period‖. The ―Conditional Period‖ under the JLDA is set out under clause 3.1 and it is six months from the date of the JLDA i.e. by 9th August 2015. The first extension that the parties agreed to was for a period up to 3rd February 2016. That extension was for about another 51 six months. Thus both parties at the inception of the JLDA and for the first extension had regarded six months as an appropriate period. The second proposed extension by the Plaintiff was for a period up to 3rd May 2016. This was only for a period of three months. To date the Land Premium, the primary impediment, has been paid. Regard must also be had to the fact that if the conditions precedent cannot be satisfied, too long a period would mean the Plaintiff‘s entitlement to the refund under clause 3.3 would be delayed or indeed, whatever alternative options that the Defendants may have for the Land may too be unnecessarily delayed. In the circumstances, and having regard to the stage that the parties have arrived at, I am of the view that a reasonable time for meeting the conditions precedent would be three months from the date of the Court‘s judgment in this case. After all, this was the period of extension last proposed by the Plaintiff itself. Damages in addition to specific performance [97] There is then left the Defendants‘ breach in not taking any steps to secure satisfaction of the conditions precedent. While the Defendants did not undertake that the conditions precedent will be satisfied, by reason of their breach, there was in effect a delay until the date the order for specific performance herein, in taking steps to secure satisfaction of the conditions precedent. That is a breach in respect of which the Plaintiff is entitled to damages. Whether the damages be substantial or nominal is a matter for assessment. 52 [98] Section 18(1) of the Specific Relief Act 1950 empowers the Court to compensate for a breach of contract, in addition to ordering its performance. It states so in the following terms: ―Any person suing for the specific performance of a contract may also ask for compensation for its breach, either in addition to, or in substitution for, its performance.‖ The availability of section 18(1) and its ambit poses no controversy in this case, but, its applicability does. It is contended on behalf of the Defendants that the trial of this action was not bifurcated. There was no order that there be a trial to ascertain liability and, if necessary, damages to be assessed thereafter. It was argued that having failed to prove damages during the trial, the Plaintiff is no longer able to get a ―second bite of the cherry‖ by being allowed to prove damages at a separate assessment proceeding. [99] It must first be pointed out that the Plaintiff did, in the prayers to its statement of claim, pray for damages to be assessed. Therefore the Defendants had been given prior notice and cannot be said to have been misled. It has been held that if a Court were to refuse to grant specific performance of a contract and grants damages in lieu, the plaintiff would be entitled to have damages suffered assessed after the trial. The plaintiff would not be prevented from doing so simply by reason of its failure to prove the damages sought to be claimed in the trial. The juridical basis for this is said to be rooted in the premise that in seeking specific performance of a contract the plaintiff is in effect maintaining that the contract is still afoot. He is required to remain ready, able and willing to perform it. However, should specific performance be declined by the Court, the contract is then brought to an 53 end. This occurs when specific performance is refused and damages are awarded instead; at which point in time, the plaintiff will then be given the opportunity to have the damages suffered assessed. This legal basis appears to hold good in Singapore and New Zealand. [100] In Lee Chee Wei v Tan Hor Peow Victor and others and another appeal [2007] 3 SLR(R) 537, VK Rajah JA, in delivering the judgment of the Court, observed as follows: ―68 The defendants grudgingly concede that the plaintiff was indeed entitled to pursue alternative cases based on specific performance of the Agreement and damages for breach of the Agreement up to the trial. Nonetheless, they allege that the plaintiff had by his conduct at trial ―abandoned his claim for damages‖ and ―spurned the availability of damages‖ and should as, such be denied a ―second bite of the cherry‖. With respect, we are unable to agree. 69 On the contrary, the following observations made in the New Zealand case of Souster v Epsom Plumbing Contractors Ltd [1974] NZHC 188; [1974] 2 NZLR 515 at 521 are as instructive as they are compelling: Where a party seeks a decree of specific performance, he is in fact approbating the contract and seeking damages as an alternative remedy. With perfect consistency such a plaintiff is entitled to maintain at the hearing of the action that the contract is on foot (and it does remain on foot until the moment when specific performance is refused and damages are awarded instead)… [I]f the damages are to be regarded as damages for the loss of a bargain brought to an end by the action of the court in refusing specific performance there is only one time at which they should be determined, and that is when the bargain for which they are 54 intended as compensation is brought to an end. Until the contract is brought to an end by the action of the court, the contract remains on foot. 70 Having “brought the contract to an end” by refusing specific performance, it was perfectly legitimate for the trial judge to have ordered damages to be assessed in lieu of specific performance, despite the failure to adduce evidence on damages at the trial. ( Toh Tiong Huat v PM Gunasaykaran [1995] 3 SLR(R) 627 (―Toh Tiong Huat‖); Ho Kian Siang v Ong Cheng Hoo [2000] 4 SLR(R) 480). It is pertinent that although the plaintiff in Toh Tiong Huat had not even pleaded his claim for damages, the court nevertheless had no hesitation in awarding damages to be assessed in lieu of specific performance.‖ (Emphasis added) [101] A similar reasoning was provided by the Supreme Court of New Zealand in Bosaid v Andry [1963] VLR 465 where at page 484 Scholl J held that: ―…It was early established that the plaintiff, in order to recover such damages from the Court of Chancery, must show that he had a right to specific performance at the hearing, or at least that he had such a right save for the existence of a ground entitling the court in its discretion to refuse the equitable remedy. He could not get damages under the Act if the evidence showed that he had no right at all to specific performance; for example where he was himself unable to complete because he had resold the subject-matter of the contract… …Where, therefore the Chancery Court gave damages in lieu of specific performance, the grant of such relief would necessarily include the case, if it was not restricted to it, where the plaintiff had been insisting on the contract, at least up to the hearing and probably right up to judgment; that is to say, affirming it and keeping it on foot and without having elected to determine it for breach. Upon what theory then as to the plaintiff’s loss of contract did the Court substitute damages in such a case? It seems to me that it 55 must have been on the hypothesis that the contract came to an end by the act of the Court itself withholding specific performance – that is to say, at the time (usually of the decree) when the Court substituted an order for damages, even if it did not at once assess them.‖ (Emphasis added) [102] These cases were, however, to do with the refusal of specific performance and the award of damages in substitution thereof. Would the same reasoning apply, where damages are awarded in addition to specific performance? Where damages in addition to specific performance are sought, it must be the case that damages is being sought for a breach of the contract which did not result in its termination. It is trite that a breach of contract does not necessarily result in its termination. There may be a breach of a warranty that only entitles the innocent party to damages. On the other hand, there may be a breach of a condition which would entitle the innocent party to elect either to terminate the contract and seek damages or to merely seek damages without terminating the contract. In a case such as the present, where damages in addition to specific performance is sought, it must necessarily mean that the Plaintiff has not terminated the contract, wants specific performance of it and in addition, damages for its breach. That being the case, the reasoning and the legal premise upon which the decisions in Lee Chee Wei, Souster and Bosaid were based would not seem to fit. Where damages are granted in addition to specific performance, it would not be on the basis that the contract was brought to an end by the refusal of specific performance, whereupon, the right to damages is granted. The right to damages would have co-existed with the right to specific performance. Only then would both remedies lie. This then would lead to the conclusion that the Plaintiff in this case 56 should have proven its claim to damages (in addition to specific performance) during the trial. [103] However, apart from the common law‘s approach to this issue, there is section 18(4) of the Specific Relief Act 1950. [104] Section 18(4) provides as follows: ―(4) Compensation awarded under this section may be assessed in such a manner as the court may direct.‖ ―Compensation awarded under this section‖ must necessarily mean compensation awarded under section 18. This would include compensation awarded under section 18(1), that is to say compensation awarded in addition to and in substitution of, specific performance. As worded, section 18(4) contemplates a situation where damages or compensation has already been awarded and the Court is then to decide the manner of its assessment – precisely the situation at hand. Therefore, I am of the view that it is entirely within the purview of the Court‘s discretion to order damages to be assessed in the circumstances of this case. The declaration sought [105] In the prayers to its statement of claim, the Plaintiff also sought a declaration worded as follows: ―Deklarasi bahawa Defendan Pertama dan/atau Defendan Kedua memegang Tanah tersebut dalam amanah untuk Plaintif.‖ 57 This declaration was not actually pursued by counsel for the Plaintiff. In any event, there was neither any factual nor legal basis given, in evidence or argued, that would support the assertion encapsulated in the declaration sought. As such, I do not see that the declaration sought was made out or warranted. Summary [106] In summary, and for the reasons given above, I hold that the Defendants are estopped from treating the JLDA as having been terminated and, therefore, the JLDA would be regarded as subsisting. As the JLDA is to be regarded as subsisting, and time for satisfying the conditions precedent has become at large, I further hold that the period within which the conditions precedent in the JLDA are to be fulfilled under clause 3 thereof is a reasonable time to be reckoned from the date of judgment herein and that reasonable time period is fixed at three calendar months, subject to such extensions of time as the parties may agree upon. As for the Defendants‘ breach of the JLDA in failing to take any steps to secure the conditions precedent prior to this action, I order that damages be assessed by the Registrar. Conclusion [107] I therefore enter judgment for the Plaintiff and I order specific performance of the JLDA until the time for satisfying the conditions precedent of three months from the date of judgment herein (or such extensions of time as the parties may agree to) expires. For the avoidance of any doubt, this order for specific performance does not 58 extend to performance of the JLDA should the conditions precedent be satisfied such that the JLDA proceeds to its next phase, i.e. the second part of the JLDA described above. I further order that damages for the Defendants‘ breach of the JLDA, prior to the filing of the action herein, be assessed by the Registrar. [108] Having heard submissions by learned counsel for the parties, I order costs of RM50,000.00 to be paid by the Defendants to the Plaintiff subject to payment of 4% allocatur. Dated this 29th Day of August 2018. -sgd- (YA TUAN DARRYL GOON SIEW CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur (Civil NCvC 2) CASES CITED Takako Sakao v Ng Pek Yuen [2010] 1 MLJ 381 Puteh Aman Power Sdn Bhd v Bittersweet Estates (Sabah) Sdn Bhd [2012] 10 CLJ 723 Shencourt Trading Sdn Bhd v Arab-Malaysian-TODA Construction Sdn Bhd [1998] 5 MLRH 336 Polygram Records Sdn Bhd v The Search & Anor [1994] 3 MLJ 127 Datuk Tan Leng Teck v Sarjana Sdn Bhd & Ors [1997] 4 MLJ 329 59 Macronet Sdn Bhd v RHB Bank Sdn Bhd [2002] 3 MLJ 11 Harin Corp Sdn Bhd v Rimbun Tekad Premix (Terengganu) Sdn Bhd [2016] 3 MLJ 782 Master Strike Sdn Bhd v Sterling Height Sdn Bhd [2005] 3 MLJ 585 Chase Perdana Bhd v Mohd Afendi bin Hamdan [2009] 6 MLJ 783 Inch Kenneth Kajang v Tor Peng Sie [2014] 2 CLJ 215 Ambank v Syarikat Johor Tenggara [2012] 1 LNS 1004 Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 DKSH Malaysia Sdn Bhd v Hantaran Asia Sdn Bhd [2016] 9 MLJ 805 Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors And Another Appeal [1995] 2 MLJ 770 Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2013] 6 MLJ 836 Moreton v Montrose Ltd [1986] 2 NZLR 496 Sim Chio Huat v Wong Ted Fui [1983] 1 MLJ 151 Boustead Trading Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 Agrokor Sdn Bhd v. 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Bhd [1996] 3 CLJ 837 Ganam Rajamany v Somoo Sinniah [1984] 1 CLJ Lin Nyuk Chan v Wong Sz Tsin [1964] 30 MLJ City Investment Sdn Bhd v Koperasi Serbaguna Cuepacs Tanggungan Bhd 1 MLJ 285 Wong Kup Sing v Jeram Rubber Estates Ltd [1969] 1 MLJ LEGISLATION AND LEGAL TEXT CITED Section 91 of the Evidence Act 1950 Section 92 of the Evidence Act 1950 61 Section 103 of the Evidence Act 1950 Section 114 illustration (g) of the Evidence Act 1950 Section 65 of the Contracts Act 1950 Section 11(2) of the Specific Relief Act 1950 Section 20(1)(a) of the Specific Relief Act 1950 COUNSEL FOR THE PLAINTIFF: Jack Yow Pit Pin (Noeh Jin Keat with him) (Rahmat Lim & Partners Suite 33.01, The Gardens North Tower, Mid Valley City, Lingkaran Syed Putra 59200 Kuala Lumpur Tel : 03-2299 3864 Faks : 03-2287 1278) COUNSEL FOR THE DEFENDANT: K Rajasegaran (Pretam Singh, Nor & Co Suite A-10-19 Level 10 Menara UOA Bangsar No. 5, Jalan Bangsar Utama 1 59000 Kuala Lumpur Tel : 03-2284 6722 Faks : 03-2283 5722)