Against which the Respondent suddenly took a full u-turn and contradicted its own prior act of breach and termination by commencing a claim for specific performance of the SPA against the Appellant. [26] To the Appellant’s surprise, the Learned JC somehow unfortunately found merit in the Respondent’s latent and self-contradicting claim (and allowed the Respondent’s bid for specific performance) while at the same time dismissing the Appellant’s OS to remove the Respondent’s caveat. [27] Upon our perusal of the Learned JC’s Grounds of Decision, it was clearly identifiable that the Learned JC had not undertaken any meaningful examination as to the parties’ specific conducts and the consequential effects upon the parties’ standings and survivability of the SPA. Instead the Learned JC had gone off-tangent and formulated his decision based on: a. a totally UNPLEADED technical issue of an ‘absolute assignment’ that was NEVER RAISED nor put to trial; and b. a totally irrelevant latent ‘evidential issue’ against the accuracy of the Appellant’s progress claim (Architect’s Certificate) which should have been barred by estoppel. [28] Understandably dissatisfied with the Learned JC’s decision, the Appellant filed the Appeal before us against the entirety of the Learned JC’s decision. C. OUR DECISION [29] As against the Learned JC’s overreach into the unpleaded (and unproven) issue as to an alleged ‘assignment’ between the Respondent and BPP, we found that the Learned JC had fallen into a serious error in his misguided appreciation of the law and underlying facts of the case in that: a. Both the ISSUE OF ASSIGNMENT and the FACT OF THE DEED OF ASSIGNMENT was NEVER PLEADED. The supposed issue of assignment was neither raised by both parties in the case. And the supposed fact of a Deed of Assignment ever signed was never pleaded by any of the parties. Thus, this very issue was never raised and tried before the Court. Nor was the very fact of the Deed of Assignment was ever pleaded for the Respondent or Learned JC to hold onto. It is trite law that parties are strictly bound by their pleadings and parties ought to only plead facts and may only rely on facts that were pleaded to set up their case for trial or hearing (see He-Con Sdn Bhd v Bulyah bt Ishak & Anor (as administrators for the estate of Nor Zainir bin Rahmat, the deceased) and another appeal [2020] 4 MLJ 662); b. Even if the Learned JC was hypothetically correct on the issue of this supposed Assignment, then the Learned JC’s decision would still be in error as the ‘proper plaintiff’ with the proper locus standi to sue for specific performance of the SPA must necessarily be BPP (as ‘assignee’ in the shoes of the purchaser). Thus, the Respondent’s claim must necessarily fail as the Respondent had both failed to include BPP as a party and had no locus standi to sue for the specific performance of the SPA against the Appellant; and c. There was neither tangible nor cogent evidence whatsoever that was tendered into Court as to the sheer existence of the supposed ‘Deed of Assignment’. As far as the parties and the Learned JC is concerned, it was not even known the date of or when the supposed Deed of Assignment was even signed. Not even a copy of a Deed of Assignment was ever tendered into Court. [30] As against the Learned JC’s ratio decidendi on the supposed inaccuracy of the Appellant’s progress claim, we reiterate that it is far too late for the Respondent to now contend against the validity of the Appellant’s progress claim on the grounds that: a. The last and latest conduct of the Respondent was to terminate the BPP (which was core and essential to the SPA). The Respondent was no longer interested in the continued subsistence of the SPA. Thus, whatever qualms the Respondent had against the Appellant’s progress claim becomes entirely irrelevant. There was no legal utility for the Respondent to now raise a challenge as to the validity of the Appellant’s progress claim as the Respondent himself was no longer interested in any continued performance of the SPA; b. Estoppel ought to bar the Respondent’s challenge against the validity of the Appellant’s progress claim as the Respondent by his own conduct had intentionally feigned ignorance and inaction to the Appellant’s progress claim for many years. The Respondent intentionally played a game of cat and mouse to avoid the Appellant’s notices for many years. Considering the Respondent’s own overt act of avoidance, ignorance, and nonchalance, it would be gravely unjust for us to allow the Respondent to raise this challenge at this utterly late juncture; [31] By and large, the entirety of the Respondent’s claim must necessarily and justly fail by the operation of the doctrine of estoppel and the celebrated principle that no party ought to be allowed to benefit from (or make a case) out of its own breach or delinquent act. [32] Despite the Respondent’s many latent contentions on the ‘validity’ of the Appellant’s progress claim (or service of notice therefrom), it remains irrefutable that the Respondent by his own election, volition, and conduct had both breached the SPA’s payment terms, and had terminated the BPP loan (being an essential and core term of the SPA). [33] The Respondent’s continued ignorance and non-response against the Appellant’s progress claim also should estop the Respondent from belatedly negating the accuracy and correctness of the Appellant’s progress claim (and Architect’s certificate). The Respondent by his own conducts had both reflected: a. The correctness of the Appellant’s progress claim. The Respondent’s intentional ignorance and failure to respond against the Appellant’s demand for progress claim is a relevant fact and evidence (and even an admission) as to the correctness of the Appellant’s claim (see Court of Appeal in Kgn Jaya Sdn Bhd v Pan Reliance Sdn Bhd [1996] 2 CLJ 611 ; Court of Appeal in Mohd Zin bin Omar & Anor v Jentayu Padu Sdn Bhd [2017] MLJU 407 ; Court of Appeal in Small Medium Enterprise Development Bank Malaysia (formerly known as Bank Perusahaan Kecil dan Sederhana Malaysia Bhd) v Lim Woon Katt [2016] 5 MLJ 220; and b. The Respondent’s ultimate disinterest from performing (and intention to terminate) the SPA. The Respondent’s clear act of breach (in continuously failing to pay the progress claim) and eventual clear act of termination (in terminating the BPP Loan) had clearly evinced the Respondent’s unbridled intention to be liberated from the SPA. The Appellant cannot now on the same breath contradictorily insist on the specific performance of the SPA which the Respondent himself had sought to terminate. The law shall not stand to allow the Respondent to blow both hot and cold at the Respondent’s whims and fancy (see Ho Yau Hong & Ors v How Yaw Ming and another appeal [2023] MLJU 933 ; Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ ; of Cheah Theam Kheang v City Centre Sdn Bhd & Other Appeals (2012) 2 CLJ 16). [34] It is trite law that he who comes to equity must come with clean hands. And since the remedy of specific performance is an equitable remedy, the Respondent must also come with clean hands (in which the Respondent thoroughly had not come with clean hands). [35] The Respondent had already acquiesced to the Appellant’s initial delay. But only to fall ultimately short when the Respondent descended into inequitable conducts by failing or refusing to comply with his payment obligations under the SPA and eventually terminating the BPP Loan that was central to the SPA’s performance and subsistence. There is no equity in allowing the Respondent to breach and terminate the SPA and at the same time allowing the Respondent to insist on the SPA to be specifically performed by the Appellant. Equity demands that the Appellant be treated in kind to the manner the Respondent had treated the SPA. Thus, it is only truly equitable that the Appellant be able to terminate the SPA (just as much as the Respondent had allowed himself to breach the SPA and terminating the BPP Loan). (see Court of Appeal in Soo Lip Hong v Tee Kim Huan [2006] 2 MLJ 49; Supreme Court in M RATNAVALE v S LOURDENADINM MAHADEVAN v S LOURDENADIN [1988] 2 MLJ 371) [36] The above maxim also squarely ties into the trite principle that no party ought to be allowed to make a case out of his own delinquent act (or breach in the context of a contract). It was the Respondent who had breached the SPA for refusing to pay the progress claim and eventually terminating the BPP Loan. The Appellant only naturally and justifiably terminated the SPA in reliance of the Respondent’s prior clear acts of breach and termination. [37] The Respondent cannot now scathe the Appellant for deciding to move on away from the SPA considering the Respondent himself had brazenly breached the same. Suffice that we refer to the salutary words of Gopal Sri Ram JCA (as His Lorship then was) in the case of PENTADBIR TANAH DAERAH PETALING v SWEE LIN SDN BHD [1999] 3 MLJ 489 “there is a principle of great antiquity that a litigant ought not to benefit from its own wrong. Although of universal application, it has been restated when applied to a particular context. For example, the principle when applied in the context of the law of contract may be formulated as follows: a party ought not to be permitted to take advantage if his own breach. See Alghussein Establishment v Eton College [1988] 1 WLR 587 New Zealand Shipping Co Ltd v Societe Des Ateliers Et Chantiers De France [1919] AC 1.” [38] For the sake of completion, we also find that the Learned JC had erroneously failed to draw the appropriate adverse inference under Section 114(g) of the Evidence Act 1950 against the Respondent’s failure and refusal to tender any witness from BPP to testify on the Respondent’s supposition that he had terminated the BPP Loan upon the ‘suggestion’ of a BPP Officer. It was more probable than not that this contention was merely a self-serving statement to mask the ultimate truth that the Respondent had terminated the BPP Loan at his own volition and application. [39] All the aforementioned deliberations considered, we hereby allow this appeal. The Learned JC’s decision to dismiss the Appellant’s Originating Summons to remove the Respondent’s caveat is hereby set aside. We similarly hereby set aside the Learned JC’s decision to allow the Respondent’s action against the Appellant. [40] Before the delivery of this judgment, it was confirmed by Mr. Tony Ling Lee Tom (the learned counsel for the Appellant) that the Appellant no longer intended to pursue prayer 4 of the Originating Summons for an order that the Defendants do pay the Plaintiff damages for the removal of the caveat (to be assessed). Thus, we accordingly only allow the Appellant’s Originating Summons specifically as per prayers 1, 2, and 3. [41] Lastly, this Court accordingly orders that the Respondent do pay costs of RM25,000.00 (here and below) to the Appellant, subject to allocatur. Dated 4th July 2025 SGD -------------------- (AZIMAH BINTI OMAR) JUDGE COURT OF APPEAL For the Appellant -