Tan Chee Hoe v Kaliamah A/P Subramaniam (BA-12BNCvC-35-06/2024)

whether there was a concluded SPA;

whether the Plaintiff is entitled to specific performance; and

whether the Plaintiff is liable to double rental and delivery of vacant possession of the Property back to the Defendant. Concluded SPA [11] The Plaintiff claimed Defendant and the brother had discussed the sale and purchase of the Property and an agreement was reached in March 2020. The Property would be sold to the Plaintiff for the purchase consideration of RM70,000.00 payable in 3 instalments. Solicitors were then appointed by the Plaintiff to document the agreement. [12] Based on evidence of emails exchanged between the solicitors for the dated 16-3-2021, 17-3-2021, 28- 3-2021, 29-3-2021 and 31-3-2021, the Defendant admitted that he was aware of the exchanges of drafts with the purchase consideration stated as RM70,000.00 because:

The Defendant was copied on all the emails and no issue was raised about the stated purchase consideration;

The several revisions were made in response to those comments and no further issues were raised; and

The Plaintiff paid sums totaling RM70,000.00 to her solicitors in 3 instalments comprising RM25,000.00 on 21-4-2021 and 31-5-2021 and RM20,000.00 on 31-7-2021. [13] solicitors on 20-10-2021 placed on record what appears to also be consistent with had delayed signing the finalized SPA, ostensibly due to Covid-19 restrictions. [14] The Defendant did not respond to the above email. The SPA and that it remained a draft only. The Plaintiff contends that there were no further points of disagreement on the draft SPA and that it was pending only the formality of signatures (Charles Grenier Sdn Bhd v Lau Wing Hong [1997] 1 CLJ 625). [15] the SPA subject to approval by the Defendant and whether the Defendant having never objected to the RM70,000.00 purchase price throughout these correspondences, is estopped from denying the agreement. [16] The trial Judge found for the Plaintiff on this point, based on her the Defendant brother on all of their interactions, and the contemporaneous documentary evidence. solicitors to testify communications were received by the Defendant in writing, unambiguous and not responded to. [17] The findings of facts by the trial Judge were therefore not shown to be plainly wrong and this Court found no reason to interfere with the finding of the trial Judge that the SPA had been finalized, pending only the formality of signatures. Entitlement to Specific Performance - Unclean hands [18] The Defendant RM130,000.00 on 26-10-2021 was a repudiation of the SPA terms that had been agreed upon. Although the purchase consideration was returned to the Plaintiff by her solicitors, there is no evidence that the Plaintiff accepted the repudiation. [19] Land is special and a purchaser is entitled to specific performance on a concluded SPA unless some reason is demonstrated why the equitable remedy should be denied. On this point, the Defendant raised the issue of non-payment of rent by the Plaintiff. The Plaintiff had contended that no rental was payable pending conclusion of SPA and for that reason, a draft tenancy agreement had also been prepared with no commencement date stipulated. [20] The question of past non-payment of rentals prior to 1-1-2020 is not a relevant factor based on the own pleading. The Defendant did not deny the agreement to set off rental against renovation costs payable during the period from 2014 to 2020, although the precise set off arrangement was not satisfactorily proven. [21] In respect of the claim for rentals, the trial Judge also believed the ce at trial that there was an agreement to suspend rental payable on the Property until conclusion of SPA. As this aspect of the claim and counterclaim was entirely uncorroborated by any written evidence, this Court again found no reason to interfere with the findings of the trial Judge and the discretion to order specific performance of the SPA. Counterclaim for double rental [22] The Defendant claims that the Plaintiff was a trespasser since 1- 1-2020, but there was no corroborating evidence to support that case. As the case had turned on findings of fact about the SPA and the rental arrangements pending its conclusion as aforesaid, the Plaintiff cannot be said to have been a trespasser if it was agreed that she could remain rent-free until conclusion of the SPA. [23] However, this Court noted that according to the findings of fact made by the Sessions Court, the Plaintiff had been occupying the Property rent-free since 2014 and that the SPA was still contingent upon the satisfaction of conditions precedent and the re-deposit of the purchase consideration as originally contemplated. [24] In the circumstances, this Court determined that the specific enforcement of the conditional SPA should in fairness, be subject in the first instance to the Plaintiff re-depositing the purchase consideration of RM70,000.00 with her solicitors within seven (7) days, and obtaining the approval of Lembaga Perumahan Hartanah Selangor for the transfer within fourteen (14) days from the date of the SPA. Conclusions [25] Accordingly, the orders in the Judgment of the Sessions Court were revised as follows:

specific performance of the SPA adjudged under paragraph (a) shall be subject to the sum RM70,000.00 being deposited with the Plaintiff s solicitors together with the documents referred to in clause 2.1.1(a) of the SPA within seven (7) days i.e. by 30 April 2025, which shall be deemed the date of the SPA for purposes of its specific performance;

a copy of the SPA reproduced at pages 205-221 of Enclosure 57 be attached to this Judgment for clarity;

paragraphs (b) and (c) are affirmed, and that the officer of the Court authorised to execute all documents be amended to the Senior Assistant Registrar of the High Court;

paragraph (d) on costs is affirmed; and

in part, in that vacant possession of the Property is to be returned to the Defendant if for any reason, the SPA cannot be concluded within 6 months of the date of the SPA. Bertarikh : 5 Jun 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Perayu: T Anandan (with Siti Nur Fareha bt Ab Aziz), Messrs Nazrin Nasir T Anand & Co. Untuk Responden: Karnan A/L Rajanthiran, Messrs Saibullah M V Nathan & Co.