Unisel Sdn Bhd (Dahulunya Dikenali Sebagai Pendidikan Industri Ys Sdn Bhd) v Suditasia Sdn Bhd (BA-22NCvC-80-02/2023)

This action concerns a dispute arising out of a Development Agreement dated 11 January 2007 (“the DA”) entered into between the Plaintiff, UNISEL Sdn Bhd, and the Defendant, Suditasia Sdn Bhd, concerning the development of approximately 50 acres of land situated at Bestari Jaya, Selangor.

Under the DA, the Plaintiff, as landowner, agreed to appoint the Defendant as developer of the project land. In return, the Plaintiff was to receive the agreed landowner’s entitlement, whilst the Defendant was to undertake and complete the development in 07/07/2026 14:32:52 BA-22NCvC-80-02/2023 Kand. 108 accordance with the terms of the DA, the approved plans and the requirements imposed by the relevant authorities.

The parties do not dispute the existence of the DA. It is also not disputed that part of the development was completed. However, substantial disagreement exists as to whether the Defendant discharged its contractual obligations, whether the Plaintiff was entitled to invoke Clause 17 of the DA, and whether the Defendant is entitled to the reliefs sought in its counterclaim.

The Plaintiff’s case is that the Defendant failed to complete the development within the agreed period of 48 months and thereafter failed to complete the project within any reasonable time. According to the Plaintiff, despite repeated opportunities being afforded to the Defendant, the Defendant failed to remedy its defaults. Consequently, the Plaintiff invoked Clause 17 of the DA and exercised its contractual right to take over the development.

The Defendant denies liability. The Defendant contends that the delay and stagnation of the project arose from matters beyond its control, including issues relating to the relevant land authorities concerning the provision of land for cemetery purposes, subdivision issues, revised pre-computation plans and the Plaintiff’s alleged refusal to cooperate by executing the necessary documents.

The Defendant further contends that the Plaintiff’s claim is defeated by limitation, waiver, estoppel and laches. It is also argued that the conduct of the parties caused time to cease being of the essence and that time had become at large. The Defendant therefore contends that the Plaintiff was not entitled to invoke Clause 17.

By way of counterclaim, the Defendant seeks declarations that the Plaintiff breached the DA, mandatory injunctions compelling the Plaintiff to cooperate in the completion of the development, specific performance of the DA and, alternatively, damages including alleged loss of profits and development expenditure.

The Plaintiff disputes the entirety of the counterclaim and maintains that the Defendant cannot rely upon its own default to defeat the Plaintiff’s contractual rights or to obtain equitable remedies.

Having considered the pleadings, the evidence adduced at trial, the documentary evidence, the written submissions, the reply submissions and the authorities cited by learned counsel for both parties, this Court finds that the Plaintiff has proved its claim on a balance of probabilities. The Defendant’s counterclaim is dismissed. II. THE PLAINTIFF’S CLAIM AND THE DEFENDANT’S

The Plaintiff’s pleaded case is founded upon the assertion that the Defendant failed to perform its primary obligations under the DA. According to the Plaintiff, the Defendant was responsible for carrying out and completing the development, obtaining approvals, preparing plans, complying with the requirements imposed by the relevant authorities and ensuring that the development was carried out in accordance with the approved plans.

The Plaintiff contends that although it rendered the necessary assistance to the Defendant, the Defendant failed to complete the development. Substantial portions of the project remain uncompleted. The Plaintiff further contends that the Defendant’s reliance upon the gravesite issue and related authority requirements does not constitute a legal excuse for non-performance.

The Plaintiff avers that it cooperated with the Defendant throughout the material period by, among others, executing the Power of Attorney, providing the original issue document of title, signing relevant documents and participating in discussions with the relevant authorities. The Plaintiff denies that it committed any act of prevention that rendered performance by the Defendant impossible or substantially more difficult.

The Plaintiff contends that after the Defendant’s prolonged failure to complete the development, notices were issued pursuant to Clause 17 of the DA requiring the Defendant to remedy its defaults. The Defendant failed to do so. Consequently, the Plaintiff exercised its contractual rights under Clause 17.

The Defendant’s defence is that the project could not lawfully proceed because of issues relating to the relevant authorities concerning the allocation of land for cemetery purposes and the need for revised subdivision and pre-computation plans. The Defendant further contends that the Plaintiff’s refusal to execute the necessary documentation prevented the Defendant from completing the development.

According to the Defendant, the Plaintiff’s continued conduct after the expiry of the original completion period demonstrates that the parties no longer regarded the original completion date as binding. It is therefore argued that time became at large and that the Plaintiff is estopped from relying upon the original contractual completion period.

The Defendant also contends that the Plaintiff’s action is barred by limitation and that the notices issued pursuant to Clause 17 failed to comply with the requirements of the DA.

By way of counterclaim, the Defendant seeks declarations that the Plaintiff breached the DA, mandatory injunctions compelling the Plaintiff to perform its outstanding obligations, specific performance of the DA and, alternatively, damages including alleged loss of profits and development expenditure. III.

SP1 testified that the Plaintiff is the registered proprietor of the project land and entered into the DA with the Defendant for the development of approximately 50 acres of land at Bestari Jaya.

SP1 testified that under the DA, the Defendant was responsible for undertaking and completing the development whilst the Plaintiff was to provide the land and receive the agreed landowner’s entitlement.

According to SP1, the Defendant was principally responsible for obtaining approvals, preparing development plans, complying with authority requirements, carrying out the development and completing the project.

SP1 further testified that the Plaintiff cooperated throughout the implementation of the DA. In particular, the Plaintiff executed the Power of Attorney, delivered the original issue document of title, signed various documents, attended meetings with the relevant authorities and attempted to resolve the issues affecting the project.

SP1 testified that despite those efforts, the Defendant failed to complete the project. Only part of the intended development was completed and substantial portions remained unbuilt.

SP1 further testified that the Plaintiff repeatedly sought updates from the Defendant regarding the status of the project, but satisfactory progress was not demonstrated.

SP1 explained that the Plaintiff eventually issued notices pursuant to Clause 17 of the DA requiring the Defendant to remedy its defaults. According to SP1, the Defendant failed to remedy those defaults and the Plaintiff therefore exercised its contractual rights under Clause 17.

During cross-examination, learned counsel for the Defendant referred SP1 to various contemporaneous documents concerning the project. SP1 accepted that issues existed concerning requirements imposed by the relevant authorities relating to the provision of land for cemetery purposes.

SP1 also accepted that discussions took place between the parties and the relevant authorities concerning those issues, and that revised plans were discussed between the parties.

However, SP1 maintained that the existence of those issues did not relieve the Defendant of its contractual obligations. SP1 denied that the Plaintiff had intentionally prevented the Defendant from carrying out the development.

SP1 further explained that the Plaintiff had legitimate concerns regarding certain revised proposals affecting land outside the intended 50-acre project area and regarding the Defendant’s continued retention of the original title.

DW1 was the Defendant’s principal witness. DW1 testified that the Defendant had carried out substantial development works under the DA and incurred considerable expenditure.

DW1 further testified that the Defendant intended to complete the project but was prevented from doing so by issues involving cemetery allocation, subdivision requirements, revised pre-computation plans and the Plaintiff’s refusal to execute documents.

DW1 maintained that the Defendant remained ready and willing to complete the project.

During cross-examination, however, DW1 accepted that substantial portions of the project remained incomplete. DW1 accepted that the remaining units had not been completed. DW1 further accepted that only repair works were being carried out and that no substantial construction works were then in progress concerning the remaining development.

DW2, DW3 and DW4 generally supported the Defendant’s position regarding the difficulties encountered during the implementation of the project. Their evidence concerned the cemetery issue, dealings with the relevant authorities, subdivision matters, revised plans and the alleged lack of cooperation by the Plaintiff.

The Court has carefully considered the evidence of all the witnesses together with the contemporaneous documents.

The Court found SP1 to be a credible witness. SP1 readily accepted matters which were not favourable to the Plaintiff. Such concessions enhance rather than diminish the reliability of the witness.

The Court further finds that SP1’s evidence is generally consistent with the contemporaneous documentary evidence.

The Court also accepts that DW1 gave evidence honestly in respect of the practical difficulties encountered. The Court accepts that genuine practical and regulatory difficulties arose during the implementation of the project.

However, several admissions made by DW1 during cross-examination are significant. In particular, DW1 accepted that substantial parts of the development remained incomplete, that no substantial construction works were ongoing concerning the remaining development, and that only repair works continued.

Those admissions materially support the Plaintiff’s case.

The Court further accepts the evidence of DW2, DW3 and DW4 regarding the existence of regulatory and practical difficulties. However, their evidence does not establish that those difficulties rendered performance legally impossible or that the Plaintiff committed any act of prevention sufficient to excuse the Defendant’s prolonged non-performance.

Having considered the evidence as a whole, the Court prefers the Plaintiff’s evidence where conflicts arise. IV.

Having considered the pleadings, evidence, documentary materials and submissions, the real dispute between the parties may be distilled into the following principal issues:

whether the Defendant breached the DA;

whether the gravesite issue, subdivision matters and requirements imposed by the relevant authorities constituted a legal excuse for the Defendant’s prolonged non-performance;

whether the Plaintiff committed any act of prevention which prevented or substantially hindered the Defendant from carrying out the development;

whether time was of the essence under the DA, and whether the subsequent conduct of the parties caused time to become at large;

whether the Plaintiff’s claim is defeated by limitation, waiver, estoppel or laches;

whether the Plaintiff validly invoked Clause 17 of the DA;

whether the Defendant’s counterclaim succeeds; and

what reliefs ought to be granted.

Although these issues have been separately identified for convenience, they are closely interrelated and must be considered in light of the contractual framework and the evidence as a whole. V. THE COURT’S FINDINGS Issue 1: Whether the Defendant breached the Development

The Plaintiff submits that the Defendant was under a primary contractual obligation to carry out and complete the development in accordance with the terms of the DA, the approved plans and the requirements imposed by the relevant authorities.

The Plaintiff further submits that the Defendant failed to discharge that obligation. Although part of the development was completed, substantial portions remained uncompleted for many years.

The Defendant submits that the DA should not be construed rigidly. According to the Defendant, the development was intended to proceed subject to approvals from the relevant authorities and practical difficulties encountered during implementation.

The Defendant also submits that the DA did not specify the exact number and type of units to be constructed and that those matters were left to its discretion as developer.

The Court does not accept the Defendant’s contention. Clause 3.1 of the DA is material. It provides that the Defendant shall carry out the development in accordance with the approved plans and in compliance with the conditions imposed by the appropriate authorities, the State Government and other governmental authorities.

Accordingly, even if the DA did not set out every unit in detail within the main text of the agreement, the Defendant’s discretion was not absolute. The Defendant was contractually bound to comply with the approved plans and authority requirements.

The approved development involved, among others, 541 residential units, 36 shop units and 1 arcade café. It is not seriously disputed that the Defendant only completed approximately 170 residential units. The balance of the development remained incomplete.

The Defendant’s attempt to characterise the project as being implemented in phases does not answer the Plaintiff’s claim. The DA did not permit the Defendant to unilaterally divide the project into phases and then rely on completion of only one phase as substantial compliance with the DA.

The Defendant’s failure was not minor or technical. The uncompleted portion consisted of the substantial majority of the approved development.

In Associated Pan Malaysia Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn Bhd [1987] 1 MLJ 171 (SC) , the Court recognised that commercial contracts must be construed in accordance with their terms and surrounding circumstances. In Damansara Realty Bhd v Bangsar Hill Holdings Sdn Bhd & Anor[2011] 6 MLJ 464 (FC), the Federal Court emphasised the importance of giving commercial contracts a sensible construction consistent with the parties’ bargain.

Applying those principles, the DA required the Defendant to bring the approved development to completion. The Defendant failed to do so.

The Court therefore finds that the Plaintiff has established, on the balance of probabilities, that the Defendant breached the DA.

The Defendant contends that its inability to complete the development was substantially caused by matters beyond its control, in particular the requirements imposed by the relevant authorities concerning the provision of land for cemetery purposes and the related subdivision and pre-computation issues.

The Plaintiff does not dispute that such issues existed. However, the Plaintiff submits that such difficulties formed part of the ordinary commercial and regulatory risks associated with a development project and did not excuse the Defendant’s contractual obligations.

The Court accepts that the gravesite issue was genuine and that it created practical and administrative difficulties for the parties. The evidence establishes that meetings were held with the relevant authorities and that revised proposals were discussed.

However, the Court is unable to conclude that these matters rendered performance impossible.

Significantly, the Defendant’s own case is that the project could proceed if the relevant documentation were executed. This position itself indicates that the development remained capable of performance.

At its highest, the evidence demonstrates that the Defendant encountered significant practical difficulties. Practical difficulty is not equivalent to legal impossibility.

The doctrine of frustration or impossibility under Section 57 of the Contracts Act 1950 is not lightly invoked. In Guan Aik Moh (KL) Sdn Bhd & Anor v Selangor Properties Bhd [2007] 3 MLJ 697 (FC), the Court held that frustration requires, among others, an event not provided for in the contract, not caused by the party relying on it, and which renders the contractual obligation radically different from what was undertaken.

In the present case, Clause 3.1 of the DA expressly contemplated compliance with authority requirements. Such matters formed part of the development process and the commercial obligations assumed by the Defendant as developer.

The gravesite issue was therefore not a supervening event that discharged the Defendant from performance. It was, at most, a regulatory issue requiring compliance, revision of plans or further engagement with the authorities.

The Court therefore finds that the gravesite issue and related authority requirements do not constitute a complete legal answer to the Plaintiff’s claim.

The Defendant submits that the Plaintiff failed to cooperate by refusing to execute revised plans and related documentation required by the authorities. According to the Defendant, such conduct prevented completion of the development.

Reliance was placed on authorities such as ABB Transmission and Distribution Sdn Bhd v Sri Antan Sdn Bhd & Anor [2009] 8 MLJ 289 (FC), Kelana Erat Sdn Bhd v Niche Properties Sdn Bhd [2013] 1 MLJ 355 (FC), Luxor (Eastbourne) Ltd v Cooper [1941] AC 108 (HL) and Barque Quilpu Ltd v Brown [1904] 2

The Court accepts the general principle that one contracting party should not prevent the other from performing its obligations. Where reciprocal promises exist, each party owes a duty not to obstruct the performance of the other.

However, the burden lies upon the party alleging prevention. It must establish that a relevant obligation existed, that the other party failed to perform it, and that such failure materially prevented performance.

The evidence demonstrates substantial cooperation by the Plaintiff. The Plaintiff executed the Power of Attorney, delivered the original title, signed various documents and participated in discussions with the relevant authorities.

The Defendant focuses principally upon the Plaintiff’s refusal to execute certain revised documentation. The Court accepts SP1’s explanation that legitimate concerns existed regarding the implications of those revised proposals.

A landowner is entitled to protect its proprietary interests and to scrutinise documents presented for execution. Such conduct does not automatically amount to prevention.

The Plaintiff’s refusal in 2015 to accept proposals concerning cemetery land outside the 50-acre project area was not unreasonable. The Plaintiff was not obliged to accept a unilateral proposal inconsistent with the contractual arrangement.

The Plaintiff’s refusal in 2020 must also be viewed in context. The Defendant had retained the original title for many years and imposed conditions on its return. The Plaintiff was entitled to object to such conduct.

The principle that a party cannot rely on its own wrong is well established. In Golden Vale Golf Range & Country Club Sdn Bhd v Hong Huat Enterprise Sdn Bhd [2008] 2 MLRA 161, Gimstern Corp (M) Sdn Bhd & Anor v Global Insurance Co Sdn Bhd [1986] 1 MLRA 199; [1987] 1 MLJ 302and Nakamichi Corporation Bhd v Lo Man Heng [2016] MLRHU 739, the Courts affirmed that a party cannot take advantage of its own default to defeat the rights of the other party.

In this case, the Defendant cannot rely upon its own failure to submit complete and compliant applications or its own inability to progress the project as a basis for alleging prevention by the Plaintiff.

Having considered the evidence as a whole, the Court is not persuaded that the Plaintiff committed any act of prevention sufficient to relieve the Defendant from its contractual obligations.

The Defendant therefore cannot rely upon the prevention principle as a defence to the Plaintiff’s claim.

The DA provided for completion within 48 months. The Plaintiff submits that time was a fundamental term of the contract.

The Defendant submits that even if time was initially important, time had become at large because both parties continued to deal with each other after the original completion date and attempted to resolve the practical difficulties affecting the project.

The Court accepts that the parties continued to cooperate after the expiry of the original contractual completion period. Meetings were held, discussions with the authorities continued and revised proposals were considered.

However, the Court does not consider such conduct unusual in the context of a commercial development agreement. Commercial parties frequently attempt to preserve contractual relationships and resolve practical difficulties. Such conduct should not lightly be construed as an abandonment of contractual rights.

The Court accepts the principle in Hock Huat Iron Foundry Sdn Bhd v Naga Tembaga Sdn Bhd [1999] 1 MLJ 721 (FC), that time may cease to be of the essence where the conduct of the parties justifies such a conclusion. However, that principle must be applied to the facts of each case.

Even assuming in favour of the Defendant that the conduct of the parties had the effect of relaxing the original completion period, the Defendant nevertheless remained under an obligation to complete the development within a reasonable time.

The evidence demonstrates that substantial portions of the development remained incomplete for many years. DW1 accepted that no substantial construction works were ongoing in relation to the remaining development.

In the Court’s judgment, the Defendant failed to complete the development either within the contractual period or within any reasonable time thereafter.

The Court therefore rejects the Defendant’s argument that time at large operates to defeat the Plaintiff’s claim or deprive the Plaintiff of its contractual rights. Issue 5: Limitation, Waiver, Estoppel and Laches

The Defendant contends that the Plaintiff’s claim is time-barred. The Defendant relies on authorities including Nasri v Mesah [1971] 1 MLJ 32 (FC),Great Eastern Life Assurance Co Ltd v Indra Janardhana Menon [2018] 1 MLJ 301 (FC), Ida Shafinaz bt Mohamed Kamil v Universiti Malaysia Sabah [2015] 6 MLJ 1 (FC), Bounty Dynamics Sdn Bhd v Chow Tat Ming [1998] 4 MLJ 488 (CA), Insun Development Sdn Bhd v Azali Bakar [1996] 1 MLJ 655 (FC) and Badariah bt Mohamed v Zuren Sdn Bhd [1998] 2 MLJ 120 (CA).

The Court accepts the general principle that in a claim for breach of contract, time ordinarily begins to run when the cause of action accrues, and a party cannot postpone limitation merely by issuing a later demand or notice.

However, the present claim is not merely a claim for damages for failure to complete the project by 2011. The Plaintiff seeks to enforce its contractual rights following the Defendant’s continuing failure to complete the development, the Plaintiff’s issuance of notices under Clause 17, the Defendant’s failure to comply with those notices and the Defendant’s refusal to give effect to the Plaintiff’s takeover.

The present dispute concerns the parties’ rights and obligations following the Plaintiff’s invocation of Clause 17. The cause of action for the present reliefs crystallised when the Defendant failed to comply with the Clause 17 process and refused to give effect to the Plaintiff’s takeover.

In any event, the Defendant’s limitation argument sits uneasily with its own counterclaim, which seeks specific performance of the same DA and declarations that the DA remains enforceable.

The Court is therefore not persuaded that the Defendant has established its limitation defence.

The Court is likewise not persuaded that the Plaintiff unequivocally abandoned its contractual rights. The evidence demonstrates continued attempts to preserve the commercial relationship rather than an intention to surrender legal rights.

The Defendant has failed to establish the necessary elements of estoppel. It has also failed to establish that it would be inequitable to permit the Plaintiff to enforce its contractual rights.

The defence of laches also fails.

The Plaintiff relies on Clause 29 of the DA, the non-waiver clause. The Court accepts that the presence of such a clause is relevant. In Mastika Lagenda Sdn Bhd v Kumpulan Darul Ehsan Bhd [2013] 6 MLJ 561 (FC)., the Court recognised that equitable arguments cannot lightly override clear contractual rights where the agreement expressly preserves those rights.

Accordingly, the Court rejects the Defendant’s reliance upon limitation, waiver, estoppel and laches.

The Defendant submits that the notices issued by the Plaintiff failed to comply with Clause 17 of the DA. Reliance was placed on Fajar Menyensing Sdn Bhd v Angsana Sdn Bhd [1998] 6 MLJ 65 (CA);Catajaya Sdn Bhd v Shoppoint Sdn Bhd [1990] 1 MLJ 374 (SC);Perbadanan Menteri Besar Kelantan v Syarikat Perusahaan Majubina Sdn Bhd [1995] 2 MLJ 317 (FC) and DC Contractor Sdn Bhd v Universiti Pertahanan Nasional Malaysia [2020] MLJU 1804.

The Court accepts that contractual termination or takeover provisions should be complied with strictly. A notice must be sufficiently clear to inform the recipient of the default complained of and the consequence of non-compliance.

However, commercial notices should not be construed with undue technicality. The Court must consider the substance of the notices and whether the recipient understood the defaults alleged.

The evidence demonstrates that the Defendant knew that the Plaintiff complained of prolonged non-completion, regarded the Defendant as being in default and intended to invoke Clause 17.

The Defendant responded to those allegations and sought further opportunities to continue the development. The Defendant therefore understood the substance of the Plaintiff’s complaints.

The Defendant’s default was not obscure. The project had not been completed for many years. The substantial majority of the development remained undone. The Defendant had not demonstrated that it could complete the project within a reasonable time.

The Defendant’s own request for a further period of 48 months further supports the Plaintiff’s contention that the Defendant was unable to complete the project within a reasonable time.

The Court is satisfied that the notices sufficiently identified the defaults complained of and afforded the Defendant a reasonable opportunity to remedy those defaults.

The Defendant failed to remedy the defaults.

The Court therefore finds that the Plaintiff validly invoked Clause 17 and was entitled to exercise its contractual rights thereunder.

By way of counterclaim, the Defendant contends that the Plaintiff breached the DA by failing to cooperate in resolving the outstanding issues affecting the development. The Defendant seeks declarations, mandatory injunctions, specific performance and damages, including loss of profits and development expenditure.

The Plaintiff disputes the entirety of the counterclaim. The Plaintiff submits that the Defendant cannot rely upon its own default to obtain equitable relief and has failed to establish the factual or legal basis necessary to support the remedies sought.

A mandatory injunction is an equitable remedy granted only where the circumstances justify compelling a party to perform a positive act.

The Court has already found that the Defendant failed to complete the development and that the Plaintiff did not commit any act of prevention sufficient to excuse that failure.

The relationship between the parties has plainly broken down. The present proceedings themselves demonstrate the extent of the dispute.

In the circumstances, the Court is not persuaded that it would be appropriate to compel the Plaintiff to resume or continue a commercial relationship with the Defendant.

The Defendant’s claim for mandatory injunction is refused.

Specific performance is a discretionary equitable remedy. It is not granted as of right. The Court must consider whether damages would be an adequate remedy and whether the contract is one capable of practical enforcement.

In Lai Mew Seng v Cosmopac Sdn Bhd [2007] 5 MLJ 801 (FC), the Court emphasised that a party seeking specific performance must prove readiness and willingness to perform its obligations continuously.

In the present case, the Defendant has failed to demonstrate readiness and ability to complete the development within a reasonable time. The Defendant had failed to complete the project for many years and sought an additional 48 months.

Further, the DA concerns a substantial development project involving numerous continuing obligations, including planning approvals, subdivision, dealings with public authorities, construction works, sales and continuing cooperation between the parties.

The Court is reluctant to compel the continued performance of a contract requiring prolonged supervision. Section 20(1)(g) of the Specific Relief Act 1950 is also relevant, as the contract involves continuous obligations extending over a substantial period.

Sections 13 to 16 of the Specific Relief Act do not assist the Defendant. The unperformed portion is not small or severable. It represents the substantial majority of the development.

Section 54 of the Specific Relief Act also militates against granting an injunction to enforce a contract that is not specifically enforceable or where the applicant’s own conduct disentitles it to equitable relief.

In the circumstances, the Court declines to exercise its discretion in favour of granting specific performance. Damages, Development Costs and Loss of Profits

The Defendant alternatively claims damages including development expenditure and loss of anticipated profits.

The Plaintiff submits that these claims are speculative and unsupported by satisfactory evidence. The Plaintiff also submits that the Defendant cannot claim both development expenditure and anticipated profits in a manner that results in double recovery.

The Court accepts the established principles governing contractual damages. Under Section 74 of the Contracts Act 1950 and the rule in Hadley v Baxendale(1854) 9 Exch 341; 156 ER 145, damages must arise naturally from the breach or be within the reasonable contemplation of the parties.

Damages must be proved. Loss of profits must be established by credible evidence. The Court should avoid double recovery.

The authorities including Tan Sri Khoo Teck Puat v Plenitude Holdings [1993] 1 MLJ 113 (SC),Ngooi Ku Siong v Aidi Abdullah [1984] 1 MLJ 186 (FC), Kerajaan Malaysia v Hanaz Sdn Bhd [2014] 6 MLJ 597 (FC), Oai Kim Kuan v Jurutera Jajahan JKR Kuala Krai [1973] 2 MLJ 1 (FC), Anugerah Pribumi Sdn Bhd v Kuantan Port Consortium Sdn Bhd [2002] 2 MLJ 4 (FC) and Cubic Electronics Sdn Bhd v Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15 (FC) confirm that loss of profits must be supported by cogent evidence and not mere speculation.

The Defendant has not produced sufficiently reliable evidence establishing the profits allegedly lost. The figures advanced remain speculative.

The Court is not satisfied that the Defendant has established the quantum claimed.

The Court is likewise not persuaded that the Defendant is entitled to recover both development expenditure and anticipated future profits. Such recovery would be inconsistent with established principles governing contractual damages and would risk double recovery.

The Defendant’s claim for damages therefore fails. VI.

Having considered the evidence as a whole, the Court accepts that the parties encountered genuine practical and regulatory difficulties during the implementation of the DA.

The Court further accepts that both parties attempted over a considerable period to preserve the commercial relationship and to resolve those difficulties.

However, the evidence ultimately demonstrates that the Defendant, as the party bearing the principal responsibility for carrying out and completing the development, failed to discharge its contractual obligations.

The Defendant has not established that the gravesite issue or regulatory difficulties rendered performance impossible.

The Defendant has likewise failed to establish that the Plaintiff committed any act of prevention sufficient to excuse the Defendant’s prolonged non-performance.

The Court is further not persuaded that the Plaintiff’s claim is defeated by limitation, waiver, estoppel or laches.

The Court is satisfied that the Plaintiff validly invoked Clause 17 of the DA.

The Defendant’s counterclaim has not been established. In the circumstances, the Plaintiff is entitled to the relief sought.

Accordingly, the Court orders as follows:

The Plaintiff’s claim is allowed.

A declaration is granted that the Defendant has breached the Development Agreement dated 11 January 2007.

A declaration is granted that the Plaintiff validly invoked Clause 17 of the Development Agreement and is entitled to exercise its contractual rights thereunder.

The Defendant shall return the original issue document of title and/or master title together with all relevant project documents, approvals, plans, correspondence, records and materials in its possession, custody or control to the Plaintiff within fourteen (14) days from the date of this judgment.

The Defendant shall do all acts and execute all documents necessary to give effect to the Plaintiff’s rights arising under Clause 17 of the Development Agreement.

The Defendant’s counterclaim is dismissed.

Having regard to the nature of the dispute, the conduct of the proceedings and the issues ventilated at trial, costs of RM15,000 are awarded to the Plaintiff, subject to allocatur. Dated this 5th July 2026 -sgd- ………………………………….. Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Plaintiff : Mr. Muhamed Ibrahim bin Muhamed(Ms. Nor Aziah Harun, Ms. Nurfarah Athirah binti Muhammad Faiza) Messrs Ibrahim & Fuadah Counsel for Defendant : Mr. Rutheran Sivagnanam (Ms. Teh Wen Miin with him)