XXXX v Mass Rapid Transit Corporation Sdn Bhd (WA-21C-3-05/2016)

Eight years have passed since the inception of this legal battle in the Kuala Lumpur Construction Court. In the original cause papers, apart from Mass Rapid Transit Corporation Sdn Bhd as the 1st Defendant, Suruhanjaya Pengangkutan Awam Darat (‘SPAD’), Dato’ Sri Haji Mohammad Najib bin Tun Haji Abdul Razak as the Minister designated under the Land Public Transport Act 2010 [Act 715] (‘LPTA 2010’) and MMC Gamuda KVMRT (PDP) Sdn Bhd (‘PDP’) were also named as the 2nd, 3rd and 4th Defendants. S/N JWhQvpBvbky2K26cxhenkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2

The Plaintiff’s claim was essentially for damages in the sum of RM303,534,216.00 as loss and damage suffered due to the Defendant’s purported breach of an oral contract, fraudulent or negligent misrepresentation and negligence in respect of the realignment of the railway line of the Mass Rapid Transit Project (‘MRT Project’) away from the acquired portions of the Plaintiff’s land.

All the Defendants applied to strike out the Plaintiff’s claim against them pursuant to O. 18, r. 19(1)(a), (b) or (d) of the Rules of Court 2012 (‘RC 2012’) (‘Striking Out Applications’). They were successful in the High Court (see Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd & Ors [2017] AMEJ 1491; [2017] MLJU 1868; and [2017] MLRHU 1365).

Naturally, the Plaintiff appealed against the decision, but it subsequently withdrew the appeals against the 2nd, 3rd and 4th Defendants. The Court of Appeal then found that there are merits in the appeal against the 1st Defendant and the decision of the High Court was accordingly set aside and the Plaintiff’s case against the current Defendant was reinstated and remitted to the High Court for trial before another judge (see Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd & Ors [2020] 4 MLRA 35; [2020] 2 CLJ 295; and [2019] MLJU 1510).

Thus, the task fell on this Court to hear the evidence and make a determination on the issues in dispute between the parties. S/N JWhQvpBvbky2K26cxhenkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

On 4.12.2020, a Consent Order (encl. 174) was made in respect of the Defendant’s application in encl. 168 whereby it was ordered, among others, that: “(1) the Plaintiff's claim as set out in the Amended Statement of Claim dated 19.7.2019 (“Claim”) be determined in 2 tranches, as identified below, and in the manner provided for herein. A dismissal of the Claim at the conclusion of the 1st Tranche will only be appealable by the Plaintiff as a final judgment, and any decision made at the conclusion of the 2nd Tranche will be appealable by both parties as a final judgment;

the claim on liability for breach of contract, misrepresentation and negligence (excluding the element of damages) as pleaded in the Claim and as indicated by the issues stated at Paragraphs 1 to 19.1 of the Agreed Issues to be Tried dated 30.9.2020 (“1st Tranche”) be tried and determined first and before the trial and determination of the claim on damages as pleaded in the Claim and as indicated by the issues stated at Paragraphs 19.2, 20, 21 and 21.1 of the Agreed Issues to be Tried dated 30.9.2020 (“2nd Tranche”);

in the event the Plaintiff fails against the Defendant on all causes of action at the conclusion of the 1st Tranche, S/N JWhQvpBvbky2K26cxhenkA that the Honourable Court dismisses the Plaintiff's claim as pleaded in the Amended Statement of Claim dated 19.7.2019;

in the event the 1st Tranche is determined in the Plaintiff's favour, that the Honourable Court is to proceed with the trial and determination of the 2nd Tranche; …”. [7] The Plaintiff’s claim was subsequently reduced to RM257,821,372.00 post-trial. Further, in its Reply Submission dated 4.8.2021, the Plaintiff conveyed that it does not wish to pursue its claim of negligence against the Defendant (see paragraph 183, encl. 243). [8] After giving due consideration to the pleadings, oral and documentary evidence, and the submissions and clarifications by the learned counsels for the parties on the issues pertaining to –

liability, on 14.10.2021, I decided that the Plaintiff has proven, on a balance of probabilities, that the Defendant is liable to the Plaintiff for breach of an oral contract and that there is no misrepresentation, whether fraudulent or negligent, by the Defendant (see encl. 280); and

assessment of damages, on 3.5.2024, I allowed the Plaintiff’s 4th Head of Claim for damages in the sum of RM5,500,000.00 and dismissed the 1st, 2nd and 3rd Heads of Claim (see encl. 372). [9] The Plaintiff has since appealed against part of my decision on liability, namely that there is no fraudulent misrepresentation by the Defendant, and in dismissing the Plaintiff’s claims under the 1st, 2nd and 3rd Heads of Claim while the Defendant’s appeal is also against part of my decision on liability where I found that the Defendant is liable to the Plaintiff for breach of contract, and in allowing the Plaintiff’s claim for damages under the 4th Head of Claim with interest and costs. [10] These are my full grounds of judgment on liability and assessment of damages. SALIENT BACKGROUND FACTS [11] The background facts have been amply narrated in the judgments in relation to the Striking Out Applications as cited earlier. [12] For purposes of the trial, the Agreed Facts dated 30.9.2020 (encl. 141) are set out below. [13] The Plaintiff is the owner and developer of Lots 38026, 38028, 38029, 38031, 38032, 38033 and 38034 in the Mukim of Petaling, Daerah Kuala Lumpur (‘Land’). S/N JWhQvpBvbky2K26cxhenkA [14] The Defendant is a private limited company with a registered address at Tingkat 7, Bangunan Setia 1, 15 Lorong Dungun, Buklt Damansara, 50490 Kuala Lumpur and business address at Tingkat 5, Menara l&P 1, 46 Jalan Dungun, Bukit Damansara, 50490 Kuala Lumpur. [15] The Defendant is owned by the Minister of Finance Incorporated and the Federal Lands Commissioner and is the Project Developer of the MRT Project, a rail-based public transport network. [16] The MRT Project involves a railway network that comprises of two lines. The first line runs from Sungai Buloh to Kajang (‘Kajang Line’) and the second line from Sungai Buloh through Serdang to Putrajaya (‘Putrajaya Line’). [17] On 21.10.2011, the declaration by the State Authority in Form D of the Land Acquisition Act 1960 [Act 486] (‘LA 1960’) dated 12.10.2011 was published in the Gazette where certain portions of the Land, particularly Lots 38029 and 38031 (‘Acquisition Lands’), were to be compulsorily acquired for the public purpose identified as “Projek My Rapid Transit Lembah Kelang Jajaran Sungai Buloh Kajang”. [18] The Plaintiff commenced judicial review proceedings at the Kuala Lumpur High Court on 11.6.2012 to oppose the said compulsory acquisition (‘JR Application’) based primarily on the grounds, inter alia, that the –

acquisition was for a purpose larger than was necessary;

acquisition was not for the purpose of the Kajang Line, and therefore the proceedings taken for the compulsory acquisition of portions of the Land were defective; and

Plaintiff's 1st Development, which was already planned, designed and in an advance stage of being put into effect, would be significantly affected. [19] On 15.8.2012, the High Court refused leave pursuant to O. 53, r. 3 of the RC 2012. On 23.8.2012, the Plaintiff appealed to the Court of Appeal. [20] On 30.1.2013, a meeting was held by Dewan Bandaraya Kuala Lumpur (‘DBKL’) and attended by, among others, the representatives of the Plaintiff, Defendant and PDP (‘30.1.2013 Meeting’). [21] The Plaintiff withdrew the appeal arising from the dismissal of the judicial review leave application in February 2013. [22] In the same month of February 2013, land inquiry proceedings commenced in respect of Lots 38029 and 38031. From these proceedings, in April 2013, the Plaintiff was granted awards for compensation (Form H) amounting to approximately RM36.447 million for the value of Lots 38029 and 38031. In May 2013, the Plaintiff challenged the Land Administrator's awards in the High Court. In March 2014, the High Court ordered additional payments to the Plaintiff S/N JWhQvpBvbky2K26cxhenkA of, amongst others, RM7,262,640 and RM725,600 for Lots 38029 and 38031, respectively. [23] On 15.12.2014, conditional approval of the Putrajaya Line, which was intended to go through the said Lots, was granted pursuant to sub-s 84(1) LPTA 2010. [24] The alignment of the Putrajaya Line was subsequently changed. [25] The Kajang Line has been completed. [26] By a letter of 12.6.2015, the Plaintiff’s solicitors wrote to the Defendant to put it on notice that the realignment of the Putrajaya Line is a breach of the agreement and a breach of the representations made by the Defendant. [27] In response, by way of letter dated 30.12.2015 issued by its solicitors, the Defendant completely denied any wrongdoing. THE PLAINTIFF’S CASE [28] Accolade asserted that, from around 2009, it had planned for a mixed commercial development on the Land comprising of a shopping mall, 332 units of service apartments at Lot 38029 and shop offices at Lot 38031 and that it had on 10.4.2009, submitted an application for a development order (‘DO’). S/N JWhQvpBvbky2K26cxhenkA [29] On 2.12.2010, DBKL issued a conditional DO (‘1st Conditional DO’), which generally comprised Phase 1: Kompleks Perdagangan; Phase 2: Kediaman Villa; Phase 3: Bazar Perdagangan; and Phase 4: Pangsapuri Servis. [30] Sometime in 2011, documents relating to the Kajang Line, including station drawings and plans were made available for public display at DBKL’s head office lobby at Jalan Raja Laut, Kuala Lumpur. On 4.3.2011, the Plaintiff’s Director, Mr. Kee Ju-Hun took a photograph of a document at this public display which showed that the Land would not be acquired. [31] However, the Plaintiff later heard that the Kajang Line was to be constructed in the vicinity of its development. [32] On 23.5.2011, a meeting was held between the representatives of the Plaintiff, Defendant and PDP to address Accolade’s queries regarding the Kajang Line where it was confirmed that there was no intention to acquire the Land for the Kajang Line. [33] The Plaintiff proceeded to take steps towards, and eventually obtained, a DO dated 29.11.2011 (‘1st DO’) from DBKL. [34] The Plaintiff launched the sales for Phase 1a of the 1st Development and the sale of units commenced in May 2011. S/N JWhQvpBvbky2K26cxhenkA [35] Thereafter, the Plaintiff became aware that the Acquisition Lands were to be acquired and this led to the JR Application No. 25-126-06/2012 and eventually, Civil Appeal No. W-01-393-09/2012 (‘JR Appeal’). On 11.9.2012, the Plaintiff obtained an order to stay the acquisition of the Acquisition Lands until the disposal of the JR Appeal (‘Stay Order’). [36] The Stay Order impeded the Defendant’s works when it was under pressure to meet the timelines imposed by the Government. [37] In paragraph 16 of the Amended Statement of Claim (‘SoC’), the Plaintiff pleaded that the Defendant had made the following representation: “16. On 30.01.2013, a meeting was held and attended inter alia by the Plaintiff, the Defendant, the PDP and DBKL. During this meeting, the Defendant inter alia represented to the Plaintiff that the MRT station and line for the Sungai Buloh - Putrajaya Line will be built on the portion of the Land to be compulsorily acquired and that this would:

16.1 be a service to the people; and

16.2 as there would be a direct link between the proposed MRT station to the Plaintiff's development on the Land, the Plaintiff's said building would be more accessible to public.” S/N JWhQvpBvbky2K26cxhenkA (hereinafter referred to as the ‘Representation’). [38] The Plaintiff alleged that the Defendant said that this allowed for a “win-win” situation in that the Defendant’s works could carry on while the Plaintiff could commercially benefit from its development integrating with the MRT station. The Representation is said to have been made by the Defendant to induce the Plaintiff into withdrawing the JR Appeal, which would have the effect of discharging the Stay Order. [39] The Plaintiff acted in reliance of the Representation by abandoning the 1st DO and took steps to replan and redesign its development for the Land such that it would integrate with the intended interchange station (‘2nd Development’). For that purpose, the Plaintiff –

withdrew the JR Appeal;

limited its claim for compensation to what it sought in the land acquisition exercise and it did not seek damages for the delays suffered as a result of the acquisition;

agreed to surrender Lot 38034 and part of Lot 38033 in exchange for Lot 38027 (‘Land Swap’) with DBKL’s approval and consent so as to allow for the integration of its redesigned development with the Putrajaya Line and MRT station (‘Integrated Project’);

agreed to further surrender a portion of the Land for construction of a new slip road to allow public access to the south part of the S/N JWhQvpBvbky2K26cxhenkA Land and to share the costs of constructing the new slip road; and

obtained approval from DBKL for its redesigned project on 6.1.2015 (‘2nd DO’) (see paragraph 20.1 of the SoC). [40] As a result of the foregoing conduct and events, the Plaintiff alleged that a contract had come into existence as the parties had agreed to conduct themselves on the above basis, which became the core obligations of their agreement (‘Agreement’). [41] Consistent with the Representation, on 17.11.2014, the Defendant applied for conditional approval for a railway scheme that was aligned through the Acquisition Lands, and which contemplated an interchange station being built thereon, pursuant to sub-s 84(1) LPTA 2010. [42] On 15.12.2014, the Prime Minister gave conditional approval in respect of the Putrajaya Line. Pending the holding of a public consultation under sub-s 84(4) LPTA 2010, the Defendant merely had to take steps towards procuring final approval pursuant to sub-84(6) LPTA 2010. The Plaintiff claimed that it had a legitimate expectation that the Defendant would be committed to pursue the final approval. [43] However, the Putrajaya Line was realigned to bypass the Acquisition Lands completely by going through Bandar Malaysia instead. The Defendant is said to have played an active role in the events leading S/N JWhQvpBvbky2K26cxhenkA to the realignment and the re-application for conditional approval for a realigned railway scheme that did not pass through the Acquisition Lands (‘Realigned Railway Scheme’). [44] The Defendant was accused of having caused the Agreement to become incapable of performance. [45] Without the promised MRT station, the Plaintiff contended that the 2nd Development would not be commercially viable. Hence, it had no alternative but to abandon the same and redesigned a new development to mitigate its potential losses (‘3rd Development’). [46] Apart from negligence, which was not pursued after the trial, the Plaintiff pleaded that, in seeking the realignment of the Putrajaya Line, the Defendant has breached the contract with the Plaintiff, entitling the Plaintiff to compensation. [47] Alternatively, in making the Representation, the Defendant deceived the Plaintiff, entitling it to damages by reason of either the misrepresentation being negligent or fraudulent. [48] The particulars of loss and damage as pleaded in paragraph 48 of the SoC and as claimed in the Plaintiff’s submission after the 2nd Tranche Trial are as shown below (all figures are in RM):

Phase 1 - The Annex (Serviced Apartments) Losses resulting from the reduction of prices in the 2nd Development as compared with the 3rd Development due to removal of the MRT station (hereinafter referred to as the ‘1st Head of Claim’) Original Gross Sales Value 205,970,000.00 Discount 10% 20,597,000.00 _____________ Original Nett Sales Value 185,373,000.00 New Net Sales 155,507,350.00 Differential Sales Value (All other costs remain the same) 29,865,650.00 (subsequently reduced to 28,835,668)

(ii) Phase 2 - Profitability comparison between the 2nd Development and the 3rd Development due to the redesign after the removal of the MRT station (hereinafter referred to as the ‘2nd Head of Claim’) S/N JWhQvpBvbky2K26cxhenkA 2nd Development (DO approved in January 2015) Gross Profit Excluding Land Cost 641,176,115.00 3rd Development (re-submission of DO targeted to be approved in April 2016) Gross Profit Excluding Land Cost and Other Fees 421,599,973.00 Differential between 2nd Development and 3rd Development 219,576,143.00 (subsequently reduced to 184,762,915.00)

(iii) Phase 2 - Losses arising from delay in development (hereinafter referred to as the ‘3rd Head of Claim’) Assumptions: Assume gross cashflow/ profit from sale of Phase 2 641,176,115.00 Assume tax of 25% 160,294,029.00 Nett cashflow/ profit to be placed in a fixed deposit 480,882,087.00 S/N JWhQvpBvbky2K26cxhenkA No. of years to plan and to obtain DO from the 1st letter to the Defendant 2 Interest rate 4% Interest over 2 years (delayed costs) 38,470,567.00 (subsequently increased to 38,722,789.00)

(iv) Phase 2 - Abortive consultancy fees for the 2nd Development (hereinafter referred to as the ‘4th Head of Claim’) Based on PAM Standards as a guide (DO approved) - Upon DO approval 45% 31,243,714.00 - Discount (assume) 50% 15,621,857.00 - Abortive Consultancy Fees (assume) 15,621,857.00 (subsequently reduced to 5,500,000.00) [49] As stated at the outset, the Plaintiff’s claim for damages was reduced from RM303,534,216.00 to RM257,821,372.00. S/N JWhQvpBvbky2K26cxhenkA THE DEFENDANT’S CASE [50] The additional facts asserted by the Defendant are that –

(a)

on 12.5.2015, the conditional approval for the realignment of the proposed Putrajaya Line was granted pursuant to sub-s 84(1) LPTA 2010;

a public inspection process pursuant to sub-s 84(4) LPTA 2010 of the new proposed alignment of the Putrajaya Line took place between the months of May and August 2015; and

the proposed realignment of the Putrajaya Line obtained final approval in accordance with s 84 LPTA 2010 on 7.10.2015. S/N JWhQvpBvbky2K26cxhenkA [51] The Defendant firmly maintained throughout the court proceedings that the Plaintiff’s claim against the Defendant should be dismissed with costs because –

the purported claim for breach of contract is unsustainable as there is no contract, whether oral or written, between the Plaintiff and the Defendant; and in any event, the condition precedent to the purported contract was not met, namely, the approvals pursuant to sub-s 84(6) LPTA 2010 which had to be obtained prior to the construction of the proposed alignment of the Putrajaya Line on or through the Acquisition Lands; and

the purported claim in misrepresentation is unsustainable as the Plaintiff has failed to state the type of misrepresentation alleged against the Defendant and the Plaintiff has failed to plead the essential facts to substantiate the claim for any of the type of misrepresentation. [52] The Defendant denied that any representation was made during the discussions in respect of the proposed construction of a railway line for the MRT Project on the Acquisition Lands that –

the Putrajaya Line was to run through the Acquisition Lands and that an MRT station for the said Line was to be constructed on the Acquisition Lands;

the Defendant was to induce or procure DBKL’s agreement for the transfer of a plot of land owned by DBKL in the vicinity of the Land to the Plaintiff, and

there would be a link connecting an MRT station for the Putrajaya Line to the Plaintiff’s proposed development on the Land. THE TRIAL FOR THE 1st TRANCHE: LIABILITY [53] The first day of trial on 4.1.2021 began with a site visit to the Land. The photographs which were taken during the site visit are in Bundle B9. [54] The trial on liability was held for 12 days. Two witnesses testified for the Plaintiff whilst the Defendant called seven witnesses. The particulars of the witnesses are as follows: WITNESS NAME DESIGNATION PW1 Mr. Kee Ju-Hun Plaintiff’s Director PW2 Dato’ Sheah Kok Fah Partner, Messrs Sheah Tan & Rahman DW1 Mr. David Loo Kean Beng Defendant’s Legal Affairs Director DW2 Datuk Wira Azhar Bin Abdul Hamid Defendant’s former Chief Executive Officer S/N JWhQvpBvbky2K26cxhenkA DW3 Dato’ Sri Shahril Bin Mokhtar Defendant’s former Chief Executive Officer DW4 Sr. Azita Binti Mohamed Tahir Defendant’s Head of Contract Management DW5 Mrs. Audrey Teo Loh Former Chief Architect of the PDP DW6 Mr. Chan Kai Mung General Manager, Gamuda Engineering Sdn Bhd DW7 Mr. Poh Seng Tiok Defendant’s former Planning and Design Director AGREED ISSUES TO BE TRIED [55] The Agreed Issues To Be Tried for the 1st Tranche Trial (‘ITBT 1’) relating to breach of contract and misrepresentation are as follows: “A. CONTRACT

Whether an oral contract was concluded between the Plaintiff and the Defendant (“Alleged Contract”) and, if so, when was the Alleged Contract concluded and what were the terms of the Alleged Contract.

Whether the terms of the Alleged Contract were that the Plaintiff agreed to:

2.1. Amicably agree with the acquisition of part of the Land (specifically on Lots 38031 and 38029) for the construction of the Sungai Buloh - Serdang - Putrajaya MRT (“SSP”) Line and a station on that line;

2.2. Withdraw the Plaintiff's objection against the acquisition of Lots 38031 and 38029, to limit its claim for the value of the said Lots and to submit its claim through land reference proceedings;

2.3. Exchange a piece of land with DBKL (with DBKL's approval and consent) so as to integrate the Plaintiff's development with the Putrajaya Line and station (“Land Swap”);

2.4. Completely re-plan and redesign its development on the Land and to incur the time and cost implications in that regard;

2.5. Forgo all time and cost incurred for the planning and development of the 1st Development, and S/N JWhQvpBvbky2K26cxhenkA delay its development of the Land by at least 3 years given the need to completely re-plan and redesign its development on the Land; and

2.6. Surrender a further portion of the Land for construction of a new slip road to allow public access to the south part of the Land, and further, to share the costs of constructing that new slip road.

Further, whether the terms of the Alleged Contract were that the Defendant agreed to:

3.1. Build the MRT station for the Putrajaya Line on a part of the Land to be compulsorily acquired, as represented by the Plaintiff, and this would link the station to the Plaintiff's development and thereby expose the Plaintiff's development to the benefit of commuters from 36 destinations serviced by the

3.2. Induce and/or procure DBKL’s agreement to consent and to transfer Lot 38027 measuring approximately 4,477m² (also known as the ‘Kawasan Lapang’) from DBKL to the Plaintiff for the Plaintiff to re-plan and redesign its 1st Development.

3.3. Pursue the necessary steps for the approval pursuant to LPTA s 84(6).

Whether the Plaintiff had a legitimate expectation that the Putrajaya Line with the station would be constructed in accordance with what was represented by the Defendant to the Plaintiff and agreed upon by the parties.

Whether the Plaintiff performed the Alleged Contract by:

5.1. Withdrawing the judicial review proceedings and land reference proceedings for Lots 38031 and 38029;

5.2. Abandoning its 1st Development and withdrawing its initial plans;

5.3. Refunding deposits paid by the purchasers and compensating them with 10% of the purchase price in respect of the sale and purchase agreements entered into.

Whether the Defendant performed the Alleged Oral contract (either by itself and/or through its PDP) by S/N JWhQvpBvbky2K26cxhenkA taking steps to plan with the Plaintiff's consultants regarding the:

6.1. Positioning of the supporting columns;

6.2. Traffic flow to accommodate the Putrajaya Line and MRT station for the Putrajaya Line;

6.3. Connect the building level of the Plaintiff's development and the Putrajaya Line and MRT station for the Putrajaya Line.

Whether the Defendant breached the Alleged Contract by:

7.1. Failing, refusing and/or neglecting to take the necessary steps for the eventual construction of the Putrajaya Line and MRT station for the

7.2. Failing, refusing and/or neglecting to seek for the necessary approval under Section 84 of Land Public Transport Act 2010 (“LPTA”) for the construction of the Putrajaya Line and MRT station on the Land, including the necessary steps S/N JWhQvpBvbky2K26cxhenkA or apply for the final approval of the then Prime Minster under LPTA s 84(6);

7.3. Applying to SPAD sometime in or around March 2015 for the Realignment;

7.4. Proceeding to complete its exercise for the realignment of the Putrajaya Line to completely bypass the Plaintiff's development and the Land.

Whether the Defendant at any material time represented to the Plaintiff in unequivocal and/or categorical terms that the Putrajaya Line would be constructed on the Land and that there would also be an MRT Station constructed on the Land.

Whether the discussions which had taken place between the Plaintiff and the Defendant, which gave rise to the Alleged Contract, related purely to the Kajang Line.

Whether the Alleged Contract was contingent upon the issuance of the required approvals pursuant to s 84(6) of LPTA 2010 and that the Plaintiff and Defendant were aware of this fact at all times.

Whether the decision to approve the construction of the Putrajaya Line on the Land was not within the purview of the Defendant and was instead within the exclusive power of the Prime Minister of Malaysia upon his consideration of the recommendation of the Land Public Transport Commission pursuant to Section 84(6) LPTA

2010.

Whether the alleged oral contract is void for uncertainty under Section 30 of the Contracts Act 1950 as – `

12.1. there was no certainty that the Defendant would obtain approval for the proposed alignment to be constructed on the said lots and/or on the land that the Plaintiff purportedly owns as required under section 84(6) of the LPTA;

12.2. there was no certainty whether the alleged oral contract was entered into in respect of the Sungai

12.3. there was no certainty of the terms of the alleged oral contract in view of the absence of any contemporaneous documents that demonstrate an agreement and/or contract between the Defendant and the Plaintiff (the existence of which S/N JWhQvpBvbky2K26cxhenkA is denied) on the terms pleaded in paragraph 20 of the Amended Statement of Claim.

Whether the alleged oral contract required the Defendant to provide an assurance that the construction of the Putrajaya Line and an MRT station for the Putrajaya Line on the Land. If so, whether the alleged oral contract is void for illegality. B.

Whether, in the 3.05.2012, 9.05.2012 and 30.01.2013 meetings, the Defendant made the following representations to the Plaintiff:

14.1. The Putrajaya Line and an MRT station for the Putrajaya Line will be constructed on the land to be compulsorily acquired from the Plaintiff;

14.2. The acquisition and construction would be a service to the people;

14.3. As there would be a direct link between the Putrajaya Line and an MRT station for the Putrajaya Line and the Plaintiff's development, the Plaintiff's building would be more accessible to the public.

Whether the Defendant made the representations without knowing that they are untrue, without belief in the truth and/or without ascertaining or verifying the truth.

Whether the Plaintiff relied upon and acted on the representations.

Whether at the time when the representations were made, the Plaintiff genuinely believed that the Defendant will pursue the final approval of the then Prime Minister under LPTA s 84(6), and in the upshot, the Plaintiff acted in reliance on the said representations.

Whether the Defendant's representations are fraudulent or negligent.”. [56] At the end of the trial on liability, whilst I was of the view that the Plaintiff has proven, on a balance of probabilities, the Defendant’s liability for breach of contract, the same cannot be said as to the claim based on fraudulent and negligent misrepresentation. In respect of the latter, the Plaintiff has not proven the necessary elements for this cause of action. I agree with the Defendant’s submission that none of the characteristics of a Hedley Byrne special relationship (see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465) between the Plaintiff and the Defendant were put to the witnesses at the trial. S/N JWhQvpBvbky2K26cxhenkA [57] On 22.10.2021, the Defendant filed a Notice of Appeal in respect of part of my decision where I held the Defendant liable to the Plaintiff for breach of contract. The Plaintiff responded by filing an application to the Court of Appeal to strike out the Defendant’s appeal. The application was allowed by the Court of Appeal (see Mass Rapid Transit Corporation Sdn Bhd v Accolade Land Sdn Bhd [2023] 1 LNS 654). [58] On 2.3.2023, the Federal Court dismissed the Defendant’s Notice of Motion dated 23.5.2022. In the Order, the Court found that: “2. There are no merits in the application. It does not meet the threshold of Section 96 of the Courts of Judicature Act 1964. Although the trial is bifurcated and dealt with in 2 tranches, namely liability and damages, that in no way detracts from the fact it is a single liquidated claim. Therefore, upon determination of the entire claim only, time will start to run for the purposes of an appeal as it is 1 claim and not 2 separate claims. The fact that the liability claim is made under a final order in no way prejudices or alters the right to appeal on the conclusion of the entire claim. The right to appeal against the finding of liability is preserved until the determination of the entire claim namely when the damages claim is determined; ...”. S/N JWhQvpBvbky2K26cxhenkA [59] Consistent with the decision of the apex court, the parties are pursuing their rights to appeal against my findings on liability following the determination of the entire claim for damages by the Plaintiff. [60] As the Plaintiff is not appealing against my decision in relation to negligent misrepresentation, these grounds of judgment contain detailed reasons for the findings as to the cause of action for breach of contract and fraudulent misrepresentation is so far as the 1st Tranche Trial is concerned. ANALYSIS & FINDINGS I. BREACH OF CONTRACT - Whether an oral contract was concluded between the Plaintiff and the Defendant - Whether the Defendant at any material time represented to the Plaintiff in unequivocal and/ or categorical terms that the Putrajaya Line and the MRT station would be constructed on the Lands - Whether the discussions which had taken place between the Plaintiff and the Defendant, which gave rise to the alleged contract, related purely to the Kajang Line S/N JWhQvpBvbky2K26cxhenkA [61] These issues, where the last two issues are the defences raised by the Defendant, are interrelated, and shall be dealt with together. [62] The Plaintiff claimed that the Representation as pleaded in paragraph 16 SoC led to an oral contract as pleaded in paragraph 18 SoC which states: “Based on these representations by the Defendant, the Plaintiff agreed to surrender a significant portion of the Land and give the consideration set out in paragraph 20 below, in return mainly for the benefits that the Plaintiff's development would receive from the construction of the Sungai Buloh - Putrajaya MRT line and station adjacent and connecting to the Plaintiff's development on the Land.”. [63] The first issue to be determined is thus, whether the Representation was made by the Defendant at the 30.1.2013 Meeting. [64] In order to answer this question, an appreciation of the events which led to the 30.1.2013 Meeting, as proven at the trial, is vital. Based on the oral evidence by PW1, PW2, DW1 and DW2 and the documentary evidence being the letters –

dated 29.5.2012 from the Plaintiff’s erstwhile solicitors to the Defendant referring to the meeting which was held on 3.5.2012 (‘3.5.2012 Meeting’) and stating how the Plaintiff “… understands the nature of the acquisition and is desirous in co-S/N JWhQvpBvbky2K26cxhenkA operating with MRT so that the future MRT Line to Putrajaya may be protected.” and that “… if the land acquisition were to be executed in a proper manner i.e., when the Putrajaya MRT line is approved, then our client would benefit in the same manner as listed above. In the event that a new Warta is obtained it would probably be impossible for the Putrajaya MRT line to go through our client’s land as the projects would either be substantially completed or already completed …”. Although it is recognised that, in the letter dated 18.6.2012 from the Defendant’s solicitors to the Plaintiff’s solicitors, the Defendant denied that the acquisition is for the purpose of protecting the land for a future line, such denial is only to be expected as the Plaintiff had filed the JR Application one week earlier;

dated 12.10.2012 from PW1 attention to DW2 (‘12.10.2012

dated 24.12.2012 from Pejabat Pengarah Tanah Dan Galian

dated 3.1.2013 from DBKL to the Plaintiff; and

dated 16.1.2013 from DBKL to the Plaintiff, it is evident that, while the acquisition proceedings and legal proceedings relating to the JR Application and JR Appeal were ongoing, the parties held several meetings and discussions and S/N JWhQvpBvbky2K26cxhenkA corresponded in an attempt to find an amicable solution. The Plaintiff was concerned with the impact of the acquisition of the Acquisition Lands on the 1st Development whilst the Defendant desperately needed the Acquisition Lands for the MRT Project, but this was impeded by the Stay Order. [65] In the 12.10.2012 Letter, PW1 proposed a win-win solution which included the suggestion for a land swap involving Lot 38027, which is owned by the State. Meanwhile, the Plaintiff continued to deal with PTG and DBKL regarding the 1st Development. [66] PW1 stated that sometime in December 2012, DW2 had told him that the alignment of the Putrajaya Line through the Land was already a fait accompli or a done deal (see the answer to Q.21(b) in WS-PW1). [67] On 16.1.2013, DBKL issued an invitation to, among others, the Plaintiff and the Defendant for the 30.1.2013 Meeting to discuss regarding “isu jalan keluar masuk bagi projek pembangunan perdagangan di Phoenix Plaza, Jalan Cheras oleh Tetuan Accolade Land Sdn Bhd”. At the outset, I should make it clear that the Defendant’s reliance on the title of any correspondence in isolation from the contents of the correspondence and the surrounding circumstances to persuade this Court to accept its version of the events does not appeal to me at all. The Defendant itself submitted that an agreement was reached between the parties at the 30.1.2013 Meeting that the Plaintiff would withdraw the JR Appeal and apply for a land swap. These are clearly matters which went beyond the title of the invitation letter. S/N JWhQvpBvbky2K26cxhenkA [68] The 30.1.2013 Meeting was chaired by Datuk Seri Hj. Ahmad Phesal Bin Hj. Talib, the Mayor of Kuala Lumpur (‘Mayor’). Apart from PW1, PW2, DW1 and DW2, the other attendees at the 30.1.2013 Meeting were Dato’ Seri Yong Kee Wee, the Plaintiff’s Director; Mr. Chan Kai Mung, PDP’s Design Senior Manager; Tuan Hj. Mahadi Bin Che Ngah, Director of DBKL’s Urban Planning Department; and Ir. Wan Seng, Director of DBKL’s Infrastructure Planning Department. [69] In his answer to Q. 21 in WS-PW1, PW1 said, among others, that: “d. During the meeting, Dato’ Azhar also said that the Putrajaya Line needed to be protected and that all parties were present to achieve a “win-win situation”. The Defendant Line informed the Plaintiff that an MRT station of the Putrajaya Line will be built on the portion of the Subject Lands to be compulsorily acquired, and that this would be a service to the people. As there would be a direct link between the MRT station to the Plaintiff’s development, the Plaintiff’s building would be more accessible to the public. As I mentioned, this was an important consideration for the Plaintiff. e. Eventually, the parties came to an amicable settlement (“Contract”).”. [70] DW2 testified that the matters discussed at the 30.1.2013 Meeting were in respect of the Plaintiff’s objections to the compulsory S/N JWhQvpBvbky2K26cxhenkA acquisition of the Plaintiff’s land and no representations were made to the Plaintiff by any representative of the Defendant that a railway line and a station for the Putrajaya Line was to be constructed on the Acquisition Lands (see too, DW1’s answers to Q. 16 and Q. 23 in WS-DW1). DW2 also gave evidence that in all the letters setting out the discussions during the 30.1.2013 Meeting, namely the Plaintiff’s letters addressed to the Mayor dated 20.6.2013, 1.8.2013 and 8.1.2014 and to PTG dated 2.10.2014 as well as to the Defendant dated 3.3.2014,

24.3.2014, 12.6.2014 and 7.8.2014, the Plaintiff did not make any reference to any oral contract in respect of the Putrajaya Line (see the answers to Q. 12 - 14 in WS-DW2). [71] During cross-examination, Dato’ Malik Imtiaz, the learned counsel for the Plaintiff, had shown DW2 the SPAD Annual Report 2012 where at p 18 of the Report, an explanation on the Klang Valley Mass Rapid Transit (‘KVMRT’) was given together with the “KVMRT Kajang Line 2012 KPI”, among others, that the “Feasibility Studies for KVMRT Line 2 (Circle Line) & Line 3 (North-South Line)” was targeted to be completed by 2012 and this was 100% achieved. “Line 3 (North-South Line)” was later known as the Putrajaya Line. The Report additionally stated that “S.P.A.D. had also completed the Feasibility Study for the second and third KVMRT lines, the Circle Line and North-South Line. The feasibility study was conducted to identify the Preferred Route Alignment (PRA), station and depot locations, ridership projections, project costs and project phasing.”. S/N JWhQvpBvbky2K26cxhenkA [72] Based on DW2’s answers in cross-examination, DW2 was aware that the Feasibility Studies for “Line 3 (North-South Line)” was conducted by SPAD and the Preferred Route Alignment (‘PRA’) for the said Line was identified. DW2 admitted that he has knowledge of the PRA for the said Line including the plan for an interchange station. When questioned further, DW2 said: “MIS AZHAR So I am going to ask you directly, could it be possible that either in this meeting or the meeting before, that my client was given the impression that there was a real possibility of a line coming through and that it should look towards finding a way to resolve this on a win-win basis? Yes but maybe they got the impression but the reality is until something is approved, it is not firm. Ok, so at that stage, would it be fair to say, leave aside my client for a minute, internally, would it be fair to say that from your standpoint, as MRT CEO, that you were fairly confident that the PRA would ultimately be the alignment of the … Line 2? AZHAR Based on the plan that we have, yes. S/N JWhQvpBvbky2K26cxhenkA Yes. Ok and in your mind, at that point, at the time of the meetings, was there any reason for you to think that that plan might be changed? AZHAR At that point in time, no. No. Right. So and that is why I am coming back to the possibility and in fact, I am suggesting to you that you did in fact, and I say this with great respect, you did in fact, make statements to the effect that there would be a line cutting through the acquired land and there would be a station? AZHAR As far as the plan goes, yes. Alright. And so, then when my client agreed to withdraw the JR, it was on that basis. AZHAR Yes, based on the plan. Yes.” (emphasis added). [73] As regards the issue on whether DW2 said the word “win-win” at the 30.1.2013 Meeting, DW2’s answers ranged from “No, I don’t think so” and “Can’t recall” to, yes, he would have used this expression because everything they do at MRT is for a win-win situation (see for example, the Media Statement which was released by the Defendant on

24.2.2012 titled “MRT Corp wants to complete mutual agreement negotiations with Jalan Sultan Land Owners by the end of the month, Compulsory land acquisition to take place if mutual agreement is not reached, CEO emphasizes NO demolition of buildings” (‘Media Statement’) wherein DW2 is reported as having said that “We listened to the affected parties and worked hard to get the Government to make the mutual agreement option available to the Jalan Sultan landowners. The mutual agreement provides effective and innovative solutions that promote a win-win situation for everyone.”) and that he did use the said word (see Notes of Evidence (‘NoE’), Vol. 4, encl. 229, pp 245 - 248). [74] The fact that no reference was made by the Plaintiff to an oral contract in respect of the Putrajaya Line in its letters to DBKL, PTG and the Defendant after the 30.1.2013 Meeting was explained by PW1 when he testified that the purpose of these letters was for the implementation of what had already been agreed at the 30.1.2013 Meeting. [75] In view of the above evidence, I accepted the Plaintiff’s submission that DW2 admitted to having made the Representation; it was on the basis of the Representation that the Plaintiff withdrew the JR Appeal; and the Representation accorded with the Defendant’s approach for “win-win” arrangements or reciprocal agreements as the MRT Project is a national project of great importance. In the Media Statement, the MRT Project is described as “… a key enabler in achieving the nation’s Greater KL goal and propelling Kuala Lumpur into the top 20 most livable and economically vibrant cities in the world by 2020.”. Prolonged legal proceedings in relation to the JR Appeal and with the S/N JWhQvpBvbky2K26cxhenkA Stay Order in place would impact on the Defendant’s planning and timelines for the MRT Project. [76] Even if I am found to be wrong in coming to the conclusion that there is an admission by DW2 that he made the Representation, I am persuaded by the Plaintiff’s submission, drawing support from the case authorities of Chai Kah Sim v Ishak Saad [1986] CLJ Rep 80 (SC), Heng Gek Kiau v Goh Koon Suan [2007] 6 CLJ 626 (CA), Tan Sri Dato’ (Dr) Rozali Ismail v Chua Lay Kim [2016] 3 CLJ 84 (CA) and Zulkiply Taib v Prabakar Bala Krishna [2015] 2 CLJ 766 (CA) on circumstantial evidence, that there are sufficient corroborative facts for the Court to infer that the Defendant did make the Representation. These facts are elaborated below:

The Original Railway Scheme The trial began with PW1 giving evidence for the Plaintiff from 5th to 8th January 2021. It is apparent from the cross-examination of PW1 that the Defendant’s case was that there was no prior planning for the Putrajaya Line and the interchange station, and nor was there a factual basis for the Defendant to have made the Representation. The Defendant contended that the Acquisition Lands were acquired for the Kajang Line and not the Putrajaya Line. It was also contended that there was no possibility of the Representation being made at the 30.1.2013 Meeting as the S/N JWhQvpBvbky2K26cxhenkA Putrajaya Line was only approved on 7.10.2015 and the Defendant issued the “Letter of Appointment as Project Delivery Partner for the Project” to MMC Corporation Berhad and Gamuda Berhad only on 28.10.2014. On 8.1.2021, the Plaintiff’s solicitors sent a letter to the Defendant’s solicitors requesting for –

the complete letter dated 20.6.2014 which was issued by the Defendant at Vol. 3 of the Common Bundle of Documents (‘CBD’), p 775;

(ii) “TIGA (3) salinan skim keretapi” stated in, and attached to, the Defendant’s letter dated 17.11.2014 at Vol. 3, CBD, p 859; and

(iii) “3 salinan pindaan skim keretapi” stated in, and attached to, the Defendant’s letter dated 23.3.2015 at Vol. 4, CBD, p 876. The Defendant’s solicitors replied on 15.1.2021 whereby in respect of the documents as stated in subparagraphs (ii) and (iii) above, the Defendant took the position that these documents concern matters which are not disputed by the parties and hence, the Defendant did not see the relevance or utility of the documents to warrant their production. S/N JWhQvpBvbky2K26cxhenkA The Plaintiff then issued a Subpoena To Produce Documents against DW1 dated 17.2.2021 (‘Subpoena’, encl. 190). The Court was alerted to this Subpoena at the end of the trial on 22.2.2021. By a Notice of Application which was filed on 23.2.2021 (encl. 193), the Defendant applied to set aside the Subpoena. The learned counsels submitted on encl. 193 on 24.2.2021 and on the same date, I dismissed the Defendant’s application primarily on the ground that the documents in encl. 190 are relevant and material for the trial as the Defendant’s letters dated 17.11.2014 and 23.3.2015 to SPAD regarding “Permohonan Kelulusan Skim Keretapi” and “Permohonan Kelulusan Pindaan Skim Keretapi”, respectively were already in the CBD albeit they are incomplete. The former makes reference to three copies of the Railway Scheme while the latter, to copies of the Amended Railway Scheme, which are enclosed with the covering letters. However, the enclosures are nowhere to be found in the CBD. The documents which were produced pursuant to the Subpoena and the markings are as follows: • “Projek Mass Rapid Transit Laluan 2: Sg Buloh – Sedang – Putrajaya (SSP): Submission To … (SPAD) For Railway Scheme Conditional Approval, 17 November 2014” (‘Original Railway Scheme’, Bundle B10); and S/N JWhQvpBvbky2K26cxhenkA • “Projek Mass Rapid Transit Laluan 2: Sg Buloh – Sedang – Putrajaya (SSP): Submission To … (SPAD) For Revised Railway Scheme Conditional Approval, 23 March 2015” (Bundle B11). Upon scrutiny of the Original Railway Scheme, the reason for the Defendant’s resistance to the production of the same for purposes of the trial became apparent. The Original Railway Scheme states, among others, that – • the Putrajaya Line is the second of three MRT lines identified under the Greater Kuala Lumpur Klang Valley Land Public Transport Master Plan, Urban Rail Development Plan (‘URDP’), to be the backbone of rail-based public transport in this region and an alignment feasibility study was conducted in 2013, specifically 30.4.2013 by Halcrow (CH2M). Cabinet approval to implement the Putrajaya Line was obtained on 26.2.2014 (see pp 10, 13 and 14, B10); and • the Putrajaya Line will integrate with existing rail lines at 11 locations and with two future connections to the Circle Line and this includes the Taman Connaught station which will interchange with the Kajang Line (see pp 13, 14, 24, 25, 42, 51, 57 and 58; the Alignment Plan in Appendix A where the legend shows an MRT interchange station and a Park & Ride; the Station Facilities Matrix in Appendix C S/N JWhQvpBvbky2K26cxhenkA and DW7’s evidence that “Note 3” for 250 car parks at the Taman Connaught station in the row on “Car Park” states “Sharing with Kajang Line”; and the Station and Depot Location Plans in Appendix D, in particular the proposed Taman Connaught Station, in B10; see too, “Table 8: Summary of Park & Ride and Bus Interchange Facilities” where 250 car parks were proposed with additional number of car parks to be provided in addition to the Kajang Line’s Park & Ride). As submitted by the Plaintiff, the Feasibility Study for the Putrajaya Line was completed in 2012 and the Original Railway Scheme puts beyond doubt that the Putrajaya Line was to run through the Acquisition Lands and an interchange station was to be built thereon. Crucially, the Defendant was aware of these facts at the time of the 30.1.2013 Meeting. DW2 admitted in cross-examination that the Original Railway Scheme submitted with the application on 17.11.2014 reflected the PRA that had been identified by SPAD upon completion of the Feasibility Study around December 2012, and that he had worked closely with SPAD on that. The Defendant argued that the Putrajaya Line was conceived when SPAD conducted the Feasibility Study on 30.4.2013. However, the Defendant did not produce any evidence regarding this Feasibility Study or any alignment other than the Original S/N JWhQvpBvbky2K26cxhenkA Railway Scheme during the period between SPAD’s 2012 Feasibility Study and the submission of the Railway Scheme for conditional approval on 17.1.2014. The Defendant did not contend that the 2013 Feasibility Study is different from the 2012 Feasibility Study and if so, in what way it is dissimilar. Section 103 of the Evidence Act 1950 [Act 56] (‘EA 1950’) provides that “The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”. Therefore, the burden of proof as to the fact that the alignment of the Putrajaya Line was conceived after the 30.1.2013 meeting and specifically, when SPAD completed the April 2013 Feasibility Study lies on the Defendant. I find that the Defendant has failed to discharge this burden of proof. In addition, in paragraph 3.3 of SPAD’s “Memorandum Permohonan Kelulusan Muktamad Skim Kereta Api Bagi Cadangan Pembinaan Sistem MRT Laluan Sungai Buloh – Serdang – Putrajaya” dated September 2015 (‘Memorandum’), it is stated that SPAD had carried out a feasibility study “… yang lengkap pada 31 Disember 2012 bagi mengenalpasti … (PRA), lokasi stesen dan depot, bilangan penumpang, kos projek dan jangka masa projek. Hasil daripada kajian kebolehlaksanaan … telah dibentangkan kepada Majlis Ekonomi pada 22 Julai 2013.”. S/N JWhQvpBvbky2K26cxhenkA The Defendant argued that it is not the Plaintiff’s pleaded case that SPAD’s Master Plan, PRA in the 2012 Feasibility Study and Original Railway Scheme formed the basis for the alleged oral representation and contract. In my opinion, these documents are evidence relied upon by the Plaintiff to prove the fact that the Representation was made during the 30.1.2013 Meeting. It is trite that facts, not evidence, must be pleaded (see YKL Engineering Sdn Bhd v Sungei Kahang Palm Oil Sdn Bhd & Anor [2022] 6 MLJ 1 (FC) at paragraph 35 and Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd) [2018] 2 MLJ 292 (FC) at paragraph 22). Further, with regards to the National Land Public Transport Master Plan, s 3 of the LPTA 2010 stipulates the function of SPAD in relation to policy and planning for land public transport in these words: “3. (1) The Commission shall advise the Minister on all matters relating to policy and planning with respect to land public transport. Minister, and develop strategies in line with the S/N JWhQvpBvbky2K26cxhenkA approved policies and plans with a view to achieving a safe, reliable, efficient, responsive, accessible, planned, integrated and sustainable land public transport, while ensuring the provision of affordable services for the carriage of passengers and competitive services for the carriage of goods.

a twenty year national land public transport masterplan containing macro-level policies and plans, including schemes and programmes for land public transport, such as schemes described in paragraph 253(1)(o); and

a twenty year regional land public transport masterplans containing policies and plans, including schemes and programmes for land public transport, based on the masterplan described in paragraph (a). S/N JWhQvpBvbky2K26cxhenkA masterplans in respect of land public passenger transport and land public freight transport for the approval of the Minister. Commission at such intervals or at such time as may be directed by the Minister.”. No doubt, the National Master Plan was prepared by SPAD under command of law and the extent of research and planning undertaken in preparing the same is evident on the face of the document itself. Whilst the National Master Plan is not rigid, its adaptability and flexibility does not render it to be of less legal significance (see Perbadanan Pengurusan Trellises & Ors v. Datuk Bandar Kuala Lumpur & Ors [2021] 2 CLJ 808). Therefore, the Defendant’s argument that the Plaintiff cannot rely on the National Master Plan, and for that matter, the PRA and the Original Railway Scheme, because these are not in any way certain or final and are subject to changes, are, in the circumstances of this case, misconceived. It was also contended by the Defendant that there is no certainty the PRA was identified with finality before the 30.1.2013 Meeting S/N JWhQvpBvbky2K26cxhenkA as the Plaintiff did not call any witness to confirm that the initial feasibility study was conducted on 31.12.2012 as stated in the Memorandum. The authenticity of the SPAD Annual Report 2012 and the Memorandum is not disputed as they are Part B documents (see O. 34, r. 2(2)(e) RC 2012, Yeo Ing King v. Melawangi Sdn Bhd [2017] 1 CLJ 512 at paragraphs 40 and 41, p 530 and Fujisash (Malaysia) Sdn Bhd v Facade Treatment Engineering Sdn Bhd [2019] MLJU 1961 at paragraph 25). The Annual Report is published by SPAD pursuant to sub-s 248(4) LPTA 2010. The Defendant did not object to the authenticity of the SPAD Annual Report 2012 and the Memorandum. The statements relied upon by the Plaintiff in these documents are in plain and unambiguous language. Hence, the Plaintiff is entitled to rely on the same as they are self-explanatory [see s 94 EA 1950 and Perbadanan Kemajuan Negeri Selangor v Selangor Country Club Sdn Bhd [2016] 8 CLJ 211 (CA)]. If the Defendant disputes the contents of the SPAD Annual Report and the Memorandum, the evidential burden lies on the Defendant to show that the statements relied upon by the Plaintiff in these documents are inaccurate or unreliable. The Defendant came nowhere close to discharging this burden of proof. S/N JWhQvpBvbky2K26cxhenkA The Defendant had presented its defence on the basis that the Original Railway Scheme would not be seen by the Court. As it turned out, the Original Railway Scheme is an important document as it establishes an evidential foundation for the making of the Representation which the Defendant vehemently denies the existence of. The production of the Original Railway Scheme under the Subpoena wholly undermined the Defendant’s case as put to PW1 before the document was submitted to the Court.

The Involvement of the PDP The Defendant posited that since the PDP, and not MMC Gamuda KVMRT (PDP SSP) Sdn Bhd (‘PDP SSP’) (which was formally incorporated and appointed as the project delivery partner only on 10.11.2014 and 28.10.2014, respectively), was involved in the 30.1.2013 Meeting, the discussions at the said Meeting could not have been with regard to the Putrajaya Line. The Defendant insisted that the PDP and the PDP SSP had separate and distinct roles and responsibilities whereby the PDP was only responsible for the Kajang Line whilst the PDP SSP was responsible for the Putrajaya Line. However, at p 12 of the Original Railway Scheme (B10), among the principal parties that will plan, implement and supervise the MRT Line 2 Project and operate the Putrajaya Line upon S/N JWhQvpBvbky2K26cxhenkA completion is “Project Delivery Partner - MMC Gamuda KVMRT (PDP) Sdn Bhd” [see too, p 14 of the Revised Railway Scheme (B11)]. The Plaintiff had additionally referred to the Media Release titled “MRT Corp Appoints Consultant To Produce Reference Design For MRT Line 2 Underground Section” dated 18.11.2014 wherein it is stated that “Construction of the Putrajaya Line was approved by the Government in February and MRT Corp was appointed the line’s developer and asset owner. The Government recently named MMC Gamuda KVMRT (PDP) Sdn Bhd as Project Delivery Partner of the Project. Following this, MRT Corp issued a Letter of Appointment to that effect on 28 October 2014”. In cross-examination, DW1 said that, based on his records, the refence to the PDP in the Media Release could be wrong as the PDP SSP had already been appointed on 28.10.2014. However, upon further questioning, DW1 admitted that the Defendant did not subsequently correct the error and that he was speculating about the entire matter. The involvement of the PDP in the planning and design of the Putrajaya Line was confirmed by DW2 when he testified that “… the work that was done to compile the railway scheme for Line 2 … was done in cooperation between MRT and PDP for Line 1.” and “… in coming up with this submission, PDP for Line 1 was involved in the submission because they did a lot of the technical work.” (see NoE, Vol. 4, encl. 229, pp 263 - 264 and 279 - 280). S/N JWhQvpBvbky2K26cxhenkA This is further supported by the evidence of DW5 who said that it took over seven to 10 years to plan the MRT Project. As the PDP SSP was incorporated only on 10.11.2014, logically it is not possible for the Defendant to have planned the Putrajaya Line with PDP SSP for the purpose of seeking conditional approval of the railway scheme. I am satisfied that the Plaintiff has shown, on a balance of probabilities, that the PDP was involved in the technical aspects of the proposed Putrajaya Line, which ultimately resulted in the submission of the Original Railway Scheme for conditional approval on 17.11.2014. In subparagraphs 14.1 and 14.2 of the SoC, the Plaintiff pleaded the facts pertaining to the meetings which were held on 3.5.2012 and 9.5.2012 where the Plaintiff sought clarification and informed the relevant parties of its concerns regarding the acquisition of part of the Land. In WS-PW1, PW1 stated that at the 3.5.2012 Meeting, the Plaintiff was given the impression by the Defendant that the Acquisition Lands were not for the Kajang Line but for the Putrajaya Line. In particular, PW1 recalled that DW1 informed S/N JWhQvpBvbky2K26cxhenkA the Plaintiff that the acquisition was to protect a future line, namely the Putrajaya Line. At the next meeting on 9.5.2012 (‘9.5.2012 Meeting’), PW1 stated that the Plaintiff was shown a site plan for the first time which confirmed that the acquisition was for the Putrajaya Line. PW1’s account of the events was denied by DW1. Essentially, DW1’s evidence was that there was no representation at all. The Plaintiff submitted at length on DW1’s credibility in the Main Submission and Appendix II to the same (encl. 239) by analysing it from the perspective of the making of the Representation, involvement of the PDP, naming of the PDP in the Original Railway Scheme and application for conditional approval and interpretation of contemporaneous documents. Reliance was placed on case authorities such as Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 (FC), Global Capital Limited v Dato’ Sri Chong Ket Pen [2020] 1 LNS 1478 (HC) and Genisys Integrated Engineers Pte Ltd v UEM Genisys Sdn Bhd [2006] 8 CLJ 164 (HC) in submitting that, DW1 as an advocate and solicitor and the Defendant’s Legal Affairs Director, was evasive in his answers during cross-examination when he considered the truth would be damaging to the Defendant’s case. This is in stark contrast to the solid and meticulous answers which were given when he was questioned by the Defendant’s counsel. S/N JWhQvpBvbky2K26cxhenkA I have considered DW1’s oral evidence against the entirety of the other evidence and the circumstances of the case and the Plaintiff’s submissions on the issue of DW1’s credibility. DW1 took an absolute position that the Representation was never made by the Defendant, and that the PDP was not involved in the planning of the Putrajaya Line. However, I find that there are contradictions in DW1’s evidence with the contemporaneous documents and DW2’s evidence. DW1 did not seek to explain the contradictions, whether during cross-examination or re-examination, on the ground of lapse of time between the events in question and the trial dates as suggested by the Defendant’s counsel in the written submissions. Based on my observations on his demeanour while in the witness box, as compared to PW1, DW1’s answers do not invoke confidence that he has lived up to the oath of telling the truth. Being aware of what is at stake, DW1 avoided giving direct answers, and in the context of the Media Release dated 18.11.2014, he even went to the extent of claiming that it contains an error, only to later concede that it is merely an assumption on his part. Seen as a whole, I am inclined to the view that DW1’s evidence must be treated with caution and little or no weight should be given to his evidence. As for PW2, Mr. Steven Thiru submitted for the Defendant that PW2 was not an independent and reliable witness because he has a long-standing relationship with the Plaintiff and an interest S/N JWhQvpBvbky2K26cxhenkA in the Plaintiff’s development as a purchaser. In my observation, PW2 was overly enthusiastic in answering the questions posed to him during cross-examination to the extent of being uncontrollable as he was inclined to answer more than what was required. There were occasions when he appeared emotional but, in the end, I would agree with the Plaintiff that the Defendant’s challenge on PW2’s evidence goes towards his reasons for continuing with the purchase of units in the Plaintiff’s development rather than what transpired at the 30.1.2013 Meeting. The issue of whether the Representation was made at the 30.1.2013 Meeting involved an assessment of, mainly, the evidence given by PW1 and DW2. The Defendant contended that the Plaintiff should have called the other attendees at the 30.1.2013 Meeting as witnesses and the failure to do so gives rise to the application of s 101 EA 1950 on the “Burden of proof”. However, the Plaintiff rightly pointed out that there is no requirement in law for the Plaintiff to call multiple witnesses to speak of the same event or fact. Section 134 EA 1950 clearly provides that “No particular number of witnesses shall in any case be required for the proof of any fact.”. The courts are more concerned with the quality of the evidence rather than the quantity or number of witnesses who are called to testify. The determination of the quality of evidence depends on the facts in each case [see Balachandran v Public Prosecutor [2005] 2 MLJ 301 (FC), MGG Pillai v Tan Sri Dato' Vincent Tan Chee Yioun S/N JWhQvpBvbky2K26cxhenkA [1995] 2 MLJ 493 (CA) and Ranbaxy (M) Sdn Bhd v EI Du Pont Nemours [2012] 4 MLJ 34 (CA)]. In the instant case, it is not necessary for the Plaintiff to call the other attendees at the 30.1.2013 Meeting as witnesses because the Plaintiff has discharged the burden of proving, on a balance of probabilities, that the Representation was made by the Defendant. The plans and drawings which originated from the PDP further support the Plaintiff’s contention that the Putrajaya Line was already designed to be constructed on the Acquisition Lands. The covering letters, e-mails or document transmittal for the plans and drawings (see Bundle B3 at pp 589 - 595, 637 - 648, 668 - 690 and 703 - 711) are listed below:

PDP’s letter dated 12.4.2013 to DBKL and copied to the Plaintiff referring to the 30.1.2013 Meeting and enclosing the “Lukisan Rekabentuk Awal untuk Jalan Masuk Satu Lorong (Dedicated Slip Road)” and the estimated construction cost, Bill of Quantities and additional land area which is required for the same. The letter states, among others that, as discussed and agreed at the 30.1.2013 Meeting, the construction cost for the slip road will be shared by the Plaintiff, the Defendant and Mayland (see too, the Plaintiff’s letter dated 20.6.2013 (‘20.6.2013 S/N JWhQvpBvbky2K26cxhenkA Letter’) to DBKL to record the deliberations and decisions which were reached at the 30.1.2013 Meeting) and the additional land that is required will be surrendered by the Plaintiff. The design for the slip road has been discussed with the Plaintiff.

(ii) PDP’s e-mail to the Plaintiff dated 25.11.2013 attaching the design for the slip road including the drawings for the MSPR7 – Park & Ride dated December 2013.

(iii) PDP’s Document Transmittal dated 12.3.2014 to the Plaintiff regarding the “MSPR7 drawings for coordination with Accolade Land”.

(iv) PDP’s e-mail to the Plaintiff dated 13.3.2014 with the link for the drawings in ACAD and PDF.

PDP’s Document Transmittal dated 26.3.2014 to the Plaintiff regarding the “MSPR7 drawings for coordination with Accolade Land”. An enlarged version of the “MSPR7 – Park & Ride – Issued For Tender Drawings” dated December 2013 was marked as exhibit “P1”. The said exhibit shows the locations of the “Track”, “Platform”, “Entrance to Future Station”, “Plaza Phoenix Station” and “SSTP for Future Station” as well as features which are usually present in interchange stations that have a Park & Ride S/N JWhQvpBvbky2K26cxhenkA facility such as “Bus Lay By”, “Taxi Drop-Off” And “Motorcycle Parking”. PW1’s evidence was that the plans shown at the 9.5.2012 Meeting and 30.1.2013 Meeting had incorporated the Defendant’s requirements i.e. the land acquisition, the slip road and access road to the MRT station. PW1 also said that the Plaintiff was not allowed to take any copies of these plans. In this regard, the Defendant’s invitation for this court to draw an adverse inference against the Plaintiff under s 114(g) EA 1950 for failure to produce the plans is unjustified. Significantly, PW1 testified that the layout plans in Bundle B3, pp 670 and 682 with the markings for “Phoenix Plaza Park And Ride”, “MSPR7 Road 1” and “MSPR7 Road 2”, which were transmitted by the PDP to PW1 on 12.3.2014, are the closest to what was produced at the 30.1.2013 Meeting. According to DW4, by the time the Defendant is in the tender drawing stage, its design drawings would be at a fairly advanced stage for the construction. DW4 additionally testified that as at the end of 2013, there is no reason to believe that the tender will not be proceeded with. When cross-examined, apart from the length of time that it takes to plan a project like the MRT Project, DW5 testified that the client’s interests must be protected and hence, based on the S/N JWhQvpBvbky2K26cxhenkA information that is available at the material point of time, DW5 will work on the design to cater for future possibilities so that the party who wins the tender will be aware of the things that might be happening. With regards to the 9.5.2012 Meeting, DW5 said that she cannot recall showing the Plaintiff’s representative the site plans that made reference to the Putrajaya Line and that she is unable to confirm “if anybody showed some plans to somebody”. However, in his evidence during cross-examination, DW6 said that an A4 or A3 size layout plan showing the access road and the levels connecting from the existing road to the multi-storey Park & Ride was shown to the Plaintiff in the 9.5.2012 Meeting. DW6 additionally testified that, as at the date of the 30.1.2013 Meeting, the design for MSPR7 was still ongoing. Based on the evidence adduced at the trial, the Plaintiff has established that the MSPR7 was not planned or designed solely for the Kajang Line, but rather it was intended to be an interchange station to serve the Putrajaya Line as well (see too, the construction drawings that culminated in the tender drawings at Bundle B7, pp 1325 - 1328). This is clearly borne out by the drawings and DW5’s evidence that the drawings are indicative of the columns of the MSPR7 and are meant to support the train tracks. In other words, the drawings for MSPR7 have incorporated the Putrajaya Line station such that it is partly supported by common bore piles and column structures. S/N JWhQvpBvbky2K26cxhenkA Notably, MSPR7 was omitted when the Putrajaya Line and the interchange station were removed from the Acquisition Lands. The evidential burden then shifts to the Defendant to show proof that the plans which were shown at the 9.5.2012 Meeting and 30.1.2013 Meeting or which existed at that material time do not contain any reference to the Putrajaya Line, MSPR7 and the other details as stated by PW1. No such evidence was adduced by the Defendant. The Defendant cited the definition of “contemporaneous” as found in Bryan A. Garner, Black’s Law Dictionary (10th Edition), Thomson West, 2014 i.e. “living, occurring, or existing at the same time” and the decision of the Court of Appeal in AB Latef & Associates (M) Sdn. Bhd. v. Govindasamy a/l Suppiah [2016] 5 MLJ 508 (the Plaintiff drew the Court’s attention to the complete excerpt in paragraphs 14 - 16 of the judgment) in submitting that “contemporaneous document” is a document that existed at the time of the event in question. By this definition, the Defendant contended that the only document that was contemporaneously issued after the 30.1.2013 Meeting was the letter dated 6.2.2013 issued by DW1 to the attention of PW1 (‘6.2.2013 Letter’) with reference to the 30.1.2013 Meeting and stating that: S/N JWhQvpBvbky2K26cxhenkA “At that meeting, you had agreed to withdraw the appeal against the High Court’s refusal to grant leave to commence judicial review proceedings in respect of the acquisition of Lot 38029 … and Lot 38031 … We would greatly appreciate it if you could please arrange for your lawyers to immediately write to the court to withdraw the appeal, with a copy to us.”. It was further contended that the 6.2.2013 Letter does not contain any reference to the alleged oral contract and contrary to the Plaintiff’s submission, the fact that the Representation was made is not corroborated by contemporaneous correspondence. In my considered view, a restrictive interpretation of “contemporaneous document” as advocated by the Defendant is not justified. In this case, it is appropriate for contemporaneous documentary evidence to be understood in the wider sense as consisting of the documents existing, issued or used before, during and after the 30.1.2013 Meeting so as to give proper context to the purpose of the 30.1.2013 Meeting; the discussion that took place and the matters which were agreed to at the 30.1.2013 Meeting; and the conduct of the parties after the 30.1.2013 Meeting towards implementing the agreement. The English decisions of Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd’s Rep 601 (Court of Appeal, UK) and RTS Flexible S/N JWhQvpBvbky2K26cxhenkA Systems Ltd v Molkerei Alois Muller GmbH & Co KG [2010] 3 All ER 1 (Supreme Court, UK) as cited by the Defendant are instructive on the issue of whether a contract has been concluded from the exchange of correspondence. In Pagnan SpA, Lloyd LJ said: “As to the law, the principles to be derived from the authorities … can be summarised as follows: Horne-Payne). case. S/N JWhQvpBvbky2K26cxhenkA (see Love and Stewart v Instone per Lord Loreburn at page 476). one means only a term which the court regards as important as opposed to a term which the court regards as less important or a matter of detail, the statement is untrue. It is for the parties to decide S/N JWhQvpBvbky2K26cxhenkA whether they wish to be bound and, if so, by what terms, whether important or unimportant. It is the parties who are, in the memorable phrase coined by the judge, “the masters of their contractual fate”. Of course the more important the term is the less likely it is that the parties will have left it for future decision. But there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. ...” (emphasis added). In RTS Flexible Systems (supra), Lord Clarke SCJ cited the above passage in Pagnan SpA (supra) and said at p 20 that “The same principles apply where, as here, one is considering whether a contract was concluded in correspondence as well as by oral communications and conduct.”. Earlier at p 18, His Lordship expounded that: “[45] The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion S/N JWhQvpBvbky2K26cxhenkA that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a pre-condition to a concluded and legally binding agreement.” (emphasis added). The contemporaneous documents which support a finding that the Representation, as pleaded by the Plaintiff, was made are as follows:

Document pre-30.1.2013 Meeting The letter dated 29.5.2012 from the Plaintiff’s former solicitors to the Defendant (see subparagraph 64(a) above).

(ii) Documents post-30.1.2013 Meeting • The 6.2.2013 Letter. S/N JWhQvpBvbky2K26cxhenkA • The 20.6.2013 Letter, which was copied to DW2, where the Plaintiff stated, inter alia, that: “MRT Corp Berhad (MRT) intends to acquire a portion of Lot 38029 and 38031 belonging to Accolade. Accolade had filed a Judicial Review on the acquisition by MRT as Accolade viewed the acquisition as a pre-acquisition for the yet to be confirmed Sungai Buloh to Putrajaya MRT line.”. • The letter dated 3.7.2013 from the Plaintiff to DBKL stating, among others, that: “iii. … (MRT) telah membuat permohonan untuk memperolehi sebahagian daripada tanah ALSB pada bulan Oktober 2011 untuk pembangunan laluan MRT Sungai Buloh – Putrajaya yang tidak sepatutnya dibenarkan di bawah WARTA. ... ... ia adalah jelas bahawa ALSB sepatutnya memperolehi Kelulusan Pelan Bangunan dan KMB yang lebih awal – kemungkinan besar pada suku ke-4 tahun 2012, jika pihak MRT tidak terdahulu mengambil / S/N JWhQvpBvbky2K26cxhenkA memperolehi tanah tersebut untuk tujuan MRT Sungai Buloh – Putrajaya.”. • The letter dated 12.7.2013 from the Plaintiff’s Architect to DBKL stating, among others, that: “… ia adalah jelas bahawa pihak Accolade Land Sdn. Bhd. sepatutnya memperolehi Kelulusan Pelan Bangunan dan KMB yang lebih awal, jika pihak MRT tidak terdahulu mengambil / memperolehi tanah tersebut untuk tujuan laluan MRT Sungai Buloh – Putrajaya.”. At the time when the four above mentioned letters were written, the intention to realign the Putrajaya Line was not made known yet. Therefore, there was no prevailing motive for the Plaintiff to make any demands or claims against the Defendant. Furthermore, after the Plaintiff withdrew the JR Appeal on 22.3.2013, the Defendant did not refute the reference to the Putrajaya Line in the 20.6.2013 Letter. • The correspondence between the Plaintiff and the Defendant regarding the connectivity levels with “MRT’s Integrated Station”, namely – S/N JWhQvpBvbky2K26cxhenkA

(A) the letter dated 3.3.2014 from the Plaintiff to the attention of DW2 referring to the 30.1.2013 Meeting and requesting that the connectivity levels between the Plaintiff’s project and the integrated station be maintained at PL92.6 and PL101.5 in these words: “In relation to ALSB’s discussion with MMC Gamuda Joint Venture (MGJV) – i. … ii. Pedestrian connection from ALSB’s development into MRT’s Integrated Station (IMS) - Sometime in July 2013 ALSB met with MGJV and was given 2 levels to connect to the IMS which were PL92.6 which ALSB was given to understand connected to the ticketing concourse level and PL101.5 which was the taxi / bus level. However in December 2013 ALSB was told to connect at the “unpaid links” which were at levels PL96.1 and PL101.5, S/N JWhQvpBvbky2K26cxhenkA Datuk please note that by this time ALSB had already drawn and resubmitted its plans for DO and cannot be expected to keep changing the design. ALSB is also unable to connect to the IMS at PL96.1 because of the New Road which ramp will block the access. Furthermore pedestrian traffic from Phoenix Business Park would be severely inconvenienced as it would have to walk to Jalan Cheras main road and pass Cheras Sentral in order to access the MIS when the access via ALSB’s Development is closed. ALSB request that the connection to MIS at both PL92.6 and PL101.5 be maintained.”;

(B) the letter dated 12.6.2014 from the Plaintiff to the attention of DW2 referring to the meeting held on 3.3.2014 between the Plaintiff, Defendant and DBKL and the meeting on 11.6.2014 where Tan Sri Datuk Ta Kin Yan met S/N JWhQvpBvbky2K26cxhenkA with YB Datuk Seri Tengku Adnan Tengku Mansor, Minister of Federal Territories and the Senior Deputy Director of the Town Planning Department to request for the Minister’s help to expedite the approval of the Plaintiff’s DO. According to the letter (emphasis added) – “At the said meeting the Minister requested Accolade to procure a letter from MRT to confirm the following:- …

That MRT confirms that they consent to the two connections to the MRT station at FFL92.625 and FFL100.45 (indicated in appendix B & C – plans as provided by MMC Gamuda JB in March 2014) – which also indicate that Accolades scope of works is only up to the MRT border.”;

(C) DW2’s letter of reply dated 20.6.2014 to the Plaintiff whereby in respect of paragraph 3 as above quoted, DW2 said: “At the moment, we are in the process of re-designing the park & ride facilities for a variety of reasons, including due to the potential location of an interchange station at Plaza Phoenix for KVMRT Line 2. As such, we have put the multi-storey car park on hold. Nevertheless, in order to move forward on this issue, we can confirm that there will be provision for pedestrian connections from Accolade Land's development to the MRT station at two levels, namely, FL92 and FFL100, which you have communicated to MMC Gamuda KVMRT (PDP) Sdn. Bhd. as your preferred levels. However, the design within the MRT ROW has not been finalised yet – as such, the drawings in Appendix B and Appendix C are now obsolete. S/N JWhQvpBvbky2K26cxhenkA In terms of cost, we hope Accolade Land will appreciate that MRT Corp require developers to bear the cost of building up to the connection points (usually a knock out panel or removal balustrade) that MRT Corp will provide. As indicated earlier, the precise connection point will only be finalised at a later stage. We hope that this answers all your queries for the moment. In order to move forward on this matter, we would urge you to discuss and agree the technical details with our project delivery partner, MMC Gamuda KVMRT (PDP) Sdn. Bhd.” (emphasis added). As alluded to earlier, DW2 had given evidence during cross-examination that, at the time of the 30.1.2013 Meeting, he was aware that the PRA would go through the Acquisition Lands and that the plan was for the station to be an integrated or interconnecting station. The letter S/N JWhQvpBvbky2K26cxhenkA states that the design drawings have not been finalised but nothing is mentioned about a change in the alignment. As can be seen from the application for conditional approval of the Original Railway Scheme on 17.11.2014, the Defendant had presented the same alignment for approval. This fact is telling; almost two years after the 30.1.2013 Meeting, the Defendant proceeded to submit the Original Railway Scheme for approval. It can thus safely be inferred that, between the 30.1.2013 Meeting and the submission of the Realigned Railway Scheme, the Defendant was labouring under the premise that the Putrajaya Line and the integrated station would be constructed on the Acquisition Lands;

(D) the Plaintiff’s letter dated 2.10.2014 to PTG and copied to DW2 stating, among others, that: “Isu Berhubung Pengambilan Tanah dibawah Seksyen 8 APT 1960 Semakan S/N JWhQvpBvbky2K26cxhenkA Kehakiman di Mahkamah Tinggi Kuala Lumpur mencabar pengambilan tanah oleh Kerajaan atas alasan bahawa pengambilan tanah oleh Kerajaan bukannya untuk Projek MRT bagi Jajaran Sungai Buloh – Kajang tetapi sebaliknya bagi Projek MRT Sungai Buloh – Putrajaya.”. [77] The combined strength of the facts as outlined above leads to the irresistible inference that it is more probable than not that the Defendant did make the Representation at the 30.1.2013 Meeting. [78] Apart from the contentions which have been addressed in the preceding part of this judgment, Mr. Steven Thiru also raised the following points of arguments for the Defendant:

There are material contradictions between the Representation in the SoC and PW1’s evidence as well as in the Plaintiff’s letter of demand dated 12.6.2015 where in subparagraph 2.8, the Plaintiff’s solicitors wrote that: “In another meeting on 30 January 2013, MRT Corp which acted under the direction and advice of SPAD represented to our client that there will be an MRT S/N JWhQvpBvbky2K26cxhenkA station for the Sungai Buloh - Putrajaya Line built on or adjacent to the portion of the Land to be compulsorily acquired and, that this would:

be a service to the people; and

(ii) benefit client since there will be a direct link between the proposed MRT station to our client's building on the Land.”. I have considered the pleading, letter of demand and PW1’s evidence in its totality and I am not convinced that there are material contradictions as to the alleged oral representations made at the 30.1.2013 Meeting. The Plaintiff has pleaded the Representation with sufficient particularity to enable the Defendant to know what is the case that it must answer to. The Plaintiff’s case has consistently been that the Defendant had represented to the Plaintiff that the MRT station and the Putrajaya Line will be built on the Acquisition Lands and this is exactly what the Plaintiff has proven, on a balance of probabilities, for the reasons as explicated earlier. The evidence of a “win-win” situation and the protection of the Putrajaya Line are part of the matters which were said at the 30.1.2013 Meeting and of the corroborative facts which lend a reasonable inference that the Defendant did represent to the Plaintiff that the Putrajaya Line and MRT station will be built on the Acquisition Lands. S/N JWhQvpBvbky2K26cxhenkA

The Plaintiff should not have assumed that the Defendant has the authority to make the Representation at the material time without checking. The simple answer to this contention is that the Defendant did not raise this in its pleadings. It is for this reason that the issue of the Defendant’s authority is not one of the ITBT. In any event, judging from the evidence given by DW2, the Representation was made by no less than the Defendant’s Chief Executive Officer himself. As for the Defendant as a legal entity, it was in a position to make a representation and enter into a contract that is conditional upon the necessary approvals being obtained in accordance with the LPTA 2010. As repeatedly emphasised by the Plaintiff, its case is not that the Defendant guaranteed approvals would be secured, but rather that the Defendant was to seek or take the necessary steps towards obtaining final approval of the Railway Scheme with the construction of the Putrajaya Line and integrated station on the Acquisition Lands. Furthermore, the Defendant cannot shield itself on the ground that it was appointed as the Project Owner/ developer of the Putrajaya Line only on 28.10.2014. It is inconceivable that the Defendant could prepare the Original Railway Scheme within three weeks and to submit the same for conditional approval on 17.11.2014.

It is unimaginable that an agreement of this magnitude, which pertains to the MRT Project and resulted in the unconditional withdrawal of the JR Appeal, would not be in writing. In reply to the question as to why the parties did not enter into a formal agreement, PW1 said: “As far as the Plaintiff was concerned, they did not see the need for a formal agreement. Neither did the Defendant see the need. The obligations of the agreement between the parties were very clear and the parties knew what they had to do. Furthermore, given that the Defendant was 100% owned by the Government, we did not expect there to be any difficulties on this ground. Pertinently, as things stood, time was of the essence (note the letter from MRT in relation to the withdrawal of the judicial review proceedings).” (see the answer to Q. 23 in WS-PW1). Unless required by law, there is no rule that a complex and intricate bargain cannot be concluded by an informal contract. There is no requirement for all contracts to be reduced into writing, irrespective of the scale or amount involved. The court must consider the totality of the evidence including the contemporaneous documents, conduct of the parties and circumstantial evidence in determining whether the parties S/N JWhQvpBvbky2K26cxhenkA intended or must be taken to have intended to enter into a legal relationship. The question of whether there is such an intention is to be ascertained objectively and much depends on the facts and circumstances of each case [see Tan Swee Hoe Co Ltd v Ah Hussain Bros [1980] 2 MLJ 16 (FC), Desa Samudra Sdn Bhd v Bandar Teknik Sdn Bhd [2012] 1 MLJ 729 (FC), Deutsche Bank Sebati Sdn Bhd v Pengarah Jabatan Perhutanan [2019] 3 CLJ 157 (FC) and Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd & Ors [2020] 4 MLRA 35 (CA)]. The Court, having gone through this exercise of evaluation of the evidence, is inclined to the view that the Plaintiff and the Defendant must be taken to have intended to create legal relations, each party freely consenting to the same. The Defendant was clearly aware of the effect that the Representation had on the Plaintiff whereby the Plaintiff relied on the same and had altered its affairs in the belief of the truth of the Representation. The Defendant’s rejection of the binding nature of the Representation is unconscionable and it is estopped from resiling from the contract [see Boustead Trading (1985) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 (FC)].

The Plaintiff’s claim that the withdrawal of the JR Appeal allowed for a “win-win” situation in that works for the MRT Project could proceed while the Plaintiff could commercially benefit by S/N JWhQvpBvbky2K26cxhenkA integrating its proposed development with the interchange station is pure speculation. It also reveals the actual mindset behind the withdrawal namely, that the Plaintiff was prepared to take a calculated risk and withdraw its objections with the hope that a section of the Putrajaya Line and the MRT station for the same would be built on the Acquisition Lands. However, when cross-examined, PW1 maintained that it was the Defendant’s intention for the Putrajaya Line to be built on the Acquisition Lands rather than the Plaintiff’s hope. PW1 said, “We were given the understanding that that was the intention of MRT so, ‘hope’, why would I hope? … I mean ‘hope’ is not the right word. That’s why the word ‘protected’ is used. To protect the line. If you have plan something and you want to protect it then that’s what you do.”. Contrary to the Defendant’s contention, PW1’s answer shows that the Plaintiff was given the impression that the Defendant’s intention or plan was for the Putrajaya Line and the MRT station to be constructed on the Acquisition Lands. Hence, the issue of the Plaintiff taking a calculated risk simply does not arise.

The Plaintiff’s motivation in withdrawing the JR Appeal is unrelated to the Putrajaya Line as it stood to gain an additional area of land and would benefit from a contiguous plot of land from the Land Swap. S/N JWhQvpBvbky2K26cxhenkA However, the Defendant’s reasoning does not take into account the fact that the Plaintiff surrendered 5,341 m² of freehold land (the entire Lot 38034 and part of Lot 38033) in exchange for 4,477 m² of leasehold land (Lot 38027) and paid RM2,614,792.00 to PTG on 12.11.2015 as premium for Lot 38027 and RM3,351,618.59 as premium for the surrender and re-alienation of its land. Apart from the money and time expended on the land acquisition, the Defendant completely disregarded the time factor. The Plaintiff had applied for the 1st DO on 2.11.2009 and approval was obtained on 29.11.2011. It had also sold several units for which compensation would have to be paid to the purchasers. With the acquisition, the Plaintiff had to redesign and re-apply for the 2nd DO which was granted on 6.1.2015. With the realignment, the Plaintiff then made an application for the 3rd DO, which incurred further time and costs (see WS-PW1 and WS(S)-PW1). It is well accepted in the construction industry that the time factor is an important consideration in any development project. As submitted by the Plaintiff, this was not a free exchange for a better piece of land as the Defendant sought to suggest at the trial.

The Plaintiff recovered compensation for the compulsory acquisition of the Acquisition Lands, both before the Land Administrator and later in court in the total sum of S/N JWhQvpBvbky2K26cxhenkA RM36,473,316.00 in respect of Lot 38029 and a total sum of RM8,014,835.00 in respect of Lot 38031. Based on the Order of the High Court dated 31.3.2014 and 1.4.2014, it is apparent that the Plaintiff did not pursue development compensation in respect of Lots 38029 and 38031 in its challenge against the compensation awarded by the Land Administrator (see too, Accolade Land Sdn Bhd v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2014] 1 LNS 505). In addition, the Defendant contended that in the said challenge, the court expressly noted that the Acquisition Lands were acquired for the purpose of the Kajang Line. Thus, the Plaintiff is estopped from contending that the compulsory acquisition was for the purpose of the Putrajaya Line. In my considered view, no estoppel arises in this case as the proceedings before the Land Administrator and subsequently in the High Court were in respect of the land acquisition and “Borang D Akta Pengambilan Tanah, 1960 (Seksyen 8) Perisytiharan Pengambilan Yang Dicadangkan” wherein the Kajang Line was stated. Any declared purpose in Form D is capable of being challenged and this was exactly what the Plaintiff did. The Plaintiff initiated the JR Application for reasons, among others, that the acquisition was not for the purpose of the Kajang Line. DW2 testified that the Acquisition Lands could be S/N JWhQvpBvbky2K26cxhenkA used for a purpose related to the MRT Project after the acquisition notwithstanding the declared purposes in Form D. [79] Premised on the foregoing considerations, the Court is satisfied that the Plaintiff has proven, on a balance of probabilities, that the Defendant had made the Representation as pleaded in paragraph 16 of the SoC. In arriving at this conclusion, the Court was guided by the decisions in among others, Tindok Besar (supra) and AB Latef (supra) on the need to critically test the oral evidence against the whole of the other evidence that was presented at the trial. Having done so, the Court is in agreement with the Plaintiff’s submission that the objective facts and DW2’s evidence during the cross-examination supports the finding that the Representation was made. [80] The Court further agrees with the Plaintiff that even if DW2’s admission is not considered, there is other oral and documentary evidence to sustain the same conclusion that the Representation was made, and this had the effect of inducing the Plaintiff into withdrawing the JR Appeal. This was accompanied by discussions concerning, among others, the integration of the redesigned development with the intended interchange station and the Land Swap between the Plaintiff and DBKL, which the Defendant supported. [81] The Plaintiff surrendered a further portion of the Land for construction of a new slip road to allow public access to the south part of the Land, and further, share the costs of constructing the new slip road with DBKL, the Defendant and Mayland. S/N JWhQvpBvbky2K26cxhenkA [82] In short, the parties had behaved consistently with there being an oral contract. [83] To conclude, the answer to the questions as to whether –

an oral contract was concluded between the Plaintiff and the Defendant, is answered in the affirmative;

the Defendant at any material time represented to the Plaintiff in unequivocal and/ or categorical terms that the Putrajaya Line and the MRT Station would be constructed on the Acquisition Lands, is answered in the affirmative; and

the discussions which had taken place between the Plaintiff and the Defendant, which gave rise to the alleged contract, related purely to the Kajang Line is answered in the negative. - If there is a contract, when was it concluded and what are the terms of the contract - Whether the terms of the Alleged Contract were that the Plaintiff agreed to –

amicably agree with the acquisition of part of the Land (specifically on Lots 38031 and 38029) for the construction of the Putrajaya Line and a station on that line;

withdraw the Plaintiff’s objection against the acquisition of Lots 38031 and 38029 to limit its claim for the value of the said Lots and to submit its claim through land reference proceedings;

exchange a piece of land with DBKL (with DBKL’s approval and consent) so as to integrate the Plaintiff's development with the Putrajaya Line and station;

completely replan and redesign its development on the Land and to incur the time and cost implications in that regard;

forgo all time and cost incurred for the planning and development of the 1st Development, and delay its development of the Land by at least 3 years given the need to completely re-plan and redesign its development on the

surrender a further portion of the Land for construction of a new slip road to allow public access to the south part of the Land, and further, to share the costs of constructing that new slip road - Whether the terms of the alleged contract were that the Defendant agreed to –

build the MRT station for the Putrajaya Line on a part of the Land to be compulsorily acquired, as represented by the Plaintiff, and this would link the station to the Plaintiff's development and thereby expose the Plaintiff's development to the benefit of commuters from 36 destinations serviced by the Putrajaya Line;

induce and/ or procure DBKL’s agreement to consent and to transfer Lot 38027 measuring approximately 4,477m² (also known as the “Kawasan Lapang”) from DBKL to the Plaintiff for the Plaintiff to replan and redesign its 1st Development; and

pursue the necessary steps for the approval pursuant to sub-s 84(6) LPTA [84] I have provided my justifications in finding in favour of the Plaintiff on the issue of an oral contract having been reached between the parties. As to the question on when the oral contract was concluded, based on the same reasonings, the parties agreed to enter into legal relations on 30.1.2013 as the contemporaneous documents after the 30.1.2013 Meeting evidenced the conduct of the parties in implementing their agreement. [85] Turning now to the issue of what are the terms of the contract, the Plaintiff’s pleaded terms can be found in paragraph 20 and subparagraphs 20.1(a) - (f) and 20.2(a) and (b) of the SoC. These terms are the same as in the ITBT 1, except for the last issue on S/N JWhQvpBvbky2K26cxhenkA whether the Defendant agreed to pursue the steps for approval pursuant to sub-s 84(6) LPTA 2010. [86] The Defendant submitted, drawing support from the speeches in Pagnan SpA (supra) and RTS Flexible Systems (supra), that there is a dearth of documents to show the existence of the alleged essential terms of the contract. [87] In his answer to Q. 24 in WS-PW1, PW1 relied on the correspondences which are largely in Bundle B3 as evidence of the terms of the contract. Some of these correspondences were referred to in the preceding sections of this judgment, namely – • the 6.2.2013 Letter; • PDP’s letter to DBKL dated 12.4.2013; • the 20.6.2013 Letter; • the Plaintiff’s letter to DBKL dated 3.7.2013; • the Plaintiff’s Architect’s letter to DBKL dated 12.7.2013; • the PDP’s e-mail to PW1 dated 25.11.2013; • the Plaintiff’s letter to the attention of DW2 dated 3.3.2014 and 12.6.2014; S/N JWhQvpBvbky2K26cxhenkA • the Defendant’s letter to the attention of PW1 dated 20.6.2014; • the Plaintiff’s letter to PTG dated 2.10.2014; • the Defendant’s letter to SPAD dated 17.11.2014 seeking approval of the Original Railway Scheme; and • the 2nd DO dated 6.1.2015. [88] The other correspondences are as follows: • the letter from the Attorney General’s Chambers dated 14.2.2013 to the Plaintiff’s erstwhile solicitors stating that it has no objection to the Plaintiff’s proposal to withdraw the JR Appeal; • PW1’s letter to DW2 dated 22.3.2013 referring to the acquisition of Lot 38029 and informing that the Plaintiff has just received the sealed Order for the withdrawal of the JR Appeal and requesting for DW2’s assistance to resolve the slip road design issues with MMC-Gamuda. PW1 also asked that DW2 consider for the alignment of the acquisition to revert to the original proposed acquisition as per the Gazette and on the matter concerning cost sharing for the slip road; • DBKL’s letter of invitation to, among others, the Plaintiff and the Defendant, to attend a meeting on 7.5.2013 to discuss the coordination of the Plaintiff’s proposed infrastructure S/N JWhQvpBvbky2K26cxhenkA development at Jalan Cheras and the Plaza Phoenix MRT Station; • the Plaintiff’s letter to DBKL dated 6.5.2013 appealing to waive, among others, the conditions on land matters in the Building Plan where reference was made to the agreement at the 30.1.2013 Meeting “to approve the Building Plan so that ALSB may obtain the Start Work Order” and that the Defendant’s early acquisition of land has caused delay to the Plaintiff’s project for almost 1½ years; • DBKL’s letter of invitation to, among others, the Plaintiff, PDP and Mayland, to attend a meeting on 17.5.2013 to discuss the submission of the application for preliminary design for the proposed dedicated slip road for the Plaintiff’s and Mayland’s development; • the Plaintiff’s Quotation Bills Of Quantities (Revision No. 1) for the Bored Piling For Sub-Structure Works for the 2nd Development; • the Plaintiff’s letter to DBKL dated 1.8.2013 referring to the agreement at the 30.1.2013 Meeting and expressing regret that DBKL has yet to approve the “Kebenaran Mendirikan Bangunan” (‘KMB’)and the re-submitted application for DO whereas it was agreed that DBKL will (i) issue the “Kelulusan Pelan Bangunan” and KMB as the Plaintiff has sold all the shop/ office lots for S/N JWhQvpBvbky2K26cxhenkA Phase 1 and the delay in the issuance of the KMB is due to the land acquisition by the Defendant; and (ii) expedite the approval of the DO as the re-submission for approval is due to the same reason and DBKL requires the revised planning regarding the road to resolve the issue of Mayland’s/ Plaza Phoenix’s road access; • DBKL’s letter to the consultant dated 9.10.2013 following the OSC meeting held on 4.10.2013 which had discussed the Plaintiff’s proposed amendments to the 1st DO. Among the technical requirements which the Plaintiff must comply is “mengadakan ‘linkage’ di antara blok-blok pembangunan, kawasan lapang berpusat, sekolah sedia ada dan tempat letak kereta MRT” (‘Linkage Requirement’). PW1 had testified that the connection which was required is between the Plaintiff’s Phase 2 of the development project and MSPR 7 to enable the public to go from one development to the other and to the MRT station; • the letter of Award dated 15.11.2013 issued by the consulting engineers to C&P Builder Sdn Bhd for tunnel works for sub-structure works for the 2nd Development; • the KMB dated 23.12.2013 issued by DBKL; • the Plaintiff’s letter to DBKL dated 8.1.2014 referring to the agreement at the 30.1.2013 Meeting for the Plaintiff, the S/N JWhQvpBvbky2K26cxhenkA Defendant and Mayland to jointly bear the costs of constructing the new road. The Plaintiff requested for a coordination meeting to be held so that a Cost Sharing Agreement can be drafted and signed; • DBKL’s letter to the consultant dated 18.4.2014 to inform that the Plaintiff’s application to amend the 1st DO was postponed in the OSC meeting on 10.4.2014 and the meeting decided, among others, for DBKL to call the Plaintiff, the Defendant and Mayland to resolve the issue regarding the construction and division of costs for the slip road. The Linkage Requirement was repeated; • the consultant’s letter to DBKL dated 22.4.2014 enclosing the building plans and site plans which have been amended according to DBKL’s comments and stating, among others, that the Linkage Requirement has been provided; •

DBKL’s letters to the consultant dated 20.5.2014, 23.5.2014,

6.2014 and 11.6.2014 in relation to the Plaintiff’s application to amend the 1st DO; • the land surveyor’s letter to PTG dated 13.6.2014 in respect of the application for Lot 38027 under the Land Swap; • PW1’s letter to DW2 dated 17.6.2014 requesting for assistance with regards to the alignment for the new slip road, the S/N JWhQvpBvbky2K26cxhenkA expeditious approval of the Land Swap and easement to Lot 38031; • the Plaintiff’s letters dated 30.6.2014 to the purchasers regarding the termination of the Sale and Purchase Agreement (‘S&P’) for the shop/ office and show room units due to compulsory land acquisition by the Defendant and enclosing the cheques for the sums which are equivalent to 10% of the purchase price as agreed liquidated damages; • PW1’s letter to DW2 dated 7.8.2014 to inform that, since the 30.1.2013 Meeting, the Plaintiff has yet to receive approval for the amended DO. PW1 relayed the problems being faced with PTG who will not process the file on the Plaintiff’s application for Lot 38027 under the Land Swap until DBKL issues the DO. PW1 pleaded with DW2 “… seperti yang telah kita persetujui untuk menarik balik Semakan Kehakiman, pihak kami ingin memohon jasa baik Datuk supaya dapat membantu pihak kami untuk menyelesaikan halangan terakir ini bagi membolehkan Kebenaran Merancang dikeluarkan.”. PW1 also informed “mengenai kesambungan kepada MSPR – disebabkan perubahan di dalam perancangan pembangunan MSPR, pihak kami masih menunggu lokasi baru untuk penyambungan dengan MRT.”. PW1 gave evidence that the Defendant had put the planning for the MSPR on hold and the Plaintiff was waiting for the next development regarding the matter; S/N JWhQvpBvbky2K26cxhenkA • the 2015 Budget Speech by the Prime Minster on 10.10.2014 where under “Measure 8: Accelerating Public and Private Investment”, among the infrastructure projects that will be implemented in 2015 includes the “Construction of the 56-km Second MRT Line from Selayang to Putrajaya at an estimated cost of RM23 billion”; • DW2’s letter to PTG dated 20.10.2014 conveying the Defendant’s full support for the Plaintiff’s application for Land Swap and requesting for PTG’s consideration to expedite the tabling of the Plaintiff’s application to the Land Committee meeting. DW2 referred to the 30.1.2013 Meeting when he said: “… Pihak MRT Corp turut mengesahkan bahawa persetujuan telahpun diperolehi di dalam mesyuarat di antara … (“DBKL”), ALSB dan MRT Corp dimana pihak ALSB, dengan persetujuan DBKL, telah bersetuju untuk menyerahkan keseluruhan Lot 38034 dan sebahagain Lot 38033 sebagai ganti pemberimilikan tanah Lot S/N JWhQvpBvbky2K26cxhenkA • the Plaintiff’s Architect Letter of Intent dated 24.10.2014 to Millenplex Sdn Bhd on the intention to award the works for the 2nd Development to the company; and • SPAD’s letter to DW2 dated 22.12.2014 that the Prime Minister has given conditional approval of the Original Railway Scheme for MRT 2 Putrajaya Line under s 84 LPTA 2010 subject to the conditions as stated in “LAMPIRAN 1”. [89] Contrary to the Defendant’s submission that there is a lack of documents to show the existence of the alleged essential terms of the contract, all the documents as set out above, in my view, supports the Plaintiff’s pleaded case as to the terms of the contract. [90] Although the documents post-30.1.3012 Meeting do not explicitly state that the Plaintiff and the Defendant have entered into a contract and the terms of the contract, nevertheless some of the correspondence as identified above do make reference to the agreement which was reached by the parties during the 30.1.3012 Meeting. Judging from the contents of the contemporaneous documents as a whole and what was communicated, not only between the Plaintiff and the Defendant, but also involving, inter alia, DBKL, PTG and the consultants, on the past, present and anticipated events including action which have been taken and required to be taken consequent to the 30.1.2013 Meeting, leads objectively to a conclusion that the essential terms of the contract had been agreed to and the parties had conducted themselves towards S/N JWhQvpBvbky2K26cxhenkA fulfilling the terms of the contract. The issue of part performance of the contract will be further discussed in the succeeding paragraphs. [91] To sum up, I am satisfied that the Plaintiff has discharged the burden of proving the terms of the agreement between the parties as pleaded in paragraph 20 and subparagraphs 20.1(a) - (f) and 20.2(a) and (b) of the SoC. The issue on whether one of the terms of the contract is that the Defendant agreed to pursue the steps for approval pursuant to sub-s 84(6) LPTA 2010 will be addressed under the issues pertaining to the Defendant’s position that the contract is void for uncertainty and/ or illegality. - Whether the Plaintiff performed the alleged contract by –

withdrawing the judicial review proceedings and land reference proceedings for Lots 38031 and 38029;

abandoning its 1st Development and withdrawing its initial plans; and

refunding deposits paid by the purchasers and compensating them with 10% of the purchase price in respect of the sale and purchase agreements entered into S/N JWhQvpBvbky2K26cxhenkA - Whether the Defendant performed the alleged oral contract (either by itself and/ or through its PDP) by taking steps to plan with the Plaintiff's consultants regarding the –

positioning of the supporting columns;

traffic flow to accommodate the Putrajaya Line and MRT station for the Putrajaya Line; and

connect the building level of the Plaintiff's development and the Putrajaya Line and MRT station for the Putrajaya Line [92] It is indisputable that the Plaintiff had performed the contract by way of the three actions by the Plaintiff as aforesaid (see PW1’s answers to Q. 27 - 32 in WS-PW1 and the documents referred to therein). [93] In relation to the withdrawal of the JR Appeal, the Defendant’s case was that this was done as the parties had agreed on the Land Swap and slip road cost-sharing at the 30.1.2013 Meeting. The Defendant took issue with the absence of contemporaneous documents recording the oral agreement as alleged by the Plaintiff, such as a consent order when the JR Appeal was withdrawn. [94] However, this argument applies equally to the Defendant, as the JR Appeal was similarly withdrawn without a consent order recording the terms of the Land Swap and slip road cost-sharing. The document which the Defendant accepts as the only contemporaneous document S/N JWhQvpBvbky2K26cxhenkA i.e. its letter dated 6.2.2013, similarly does not record the terms for the withdrawal of the JR Appeal. The next argument as to the Plaintiff being advised and legally represented at the meetings which were held at the material time, would likewise affect the Defendant, too. [95] Mr. Steven Thiru submitted for the Defendant that, upon the withdrawal of the JR Appeal, the Plaintiff was estopped from claiming that the acquisition was for the Putrajaya Line. With respect, I am unable to agree with this submission. The withdrawal of the JR Appeal cannot be construed in isolation of the surrounding circumstances at the time of the oral contract. The evidence adduced at the trial supports a finding that the JR Appeal was withdrawn in reliance of the Representation made at the 30.1.2013 Meeting, which necessarily included the Defendant seeking to construct the Putrajaya Line and MRT station on the Acquisition Lands. [96] There is no doubt in my mind that the withdrawal of the JR Appeal was part of the performance of the contract required of the Plaintiff as this was essential for the implementation of the MRT Project as planned by the Defendant. [97] On the part of the Defendant, PW1’s answers to Q. 36 - 38 in WS-PW1 and the documents referred to therein supports the Plaintiff’s contention that the Defendant had elected to be bound by the oral contract as evidenced by the part performance of its obligations [see Heller Factoring Sdn Bhd v Metalcon Industries (M) Sdn Bhd [1995] 2 MLJ 153 (CA)]. S/N JWhQvpBvbky2K26cxhenkA [98] In the upshot, it is my considered view that the Plaintiff has discharged the burden of proving the performance of the terms as set out in paragraphs 21 -25 of the SoC. - Whether the alleged contract was contingent upon the issuance of the required approvals pursuant to sub-s 84(6) LPTA 2010 and that the Plaintiff and Defendant were aware of this fact at all times - Whether the decision to approve the construction of the Putrajaya Line on the Acquisition Lands was within the purview of the Defendant and was instead within the exclusive power of the Prime Minister of Malaysia upon his consideration of the recommendation of SPAD pursuant to sub-s 84(6) LPTA 2010 [99] Section 84 of the LPTA 2010 governs the “Approval of railway scheme and deposit of plans, sections, etc.”. The requirement of final approval for the railway scheme is stipulated in sub-s 84(6) in these words: “(6) The Minister may, after considering the plans and sections and book of reference and any objections thereto and having due regard to the recommendations of the

give final approval to or reject the railway scheme; or

where he considers that the plans and sections should be amended, direct the applicant to reconsider such plans and sections and report to the Commission within such period as the Commission may require.”. In s 2 of the LPTA 2010, “Minister” means the Prime Minister. [100] The Defendant argued that, if at all the alleged oral contract existed, such a contract is a contingent contract within the meaning of s 32 read with s 33 of the Contracts Act 1950 (‘CA 1950’). These provisions provide as follows: ““Contingent contract” Enforcement of contracts contingent on an event happening

S/N JWhQvpBvbky2K26cxhenkA [101] The learned counsel for the Defendant submitted that a “contingent contract” is unenforceable in law if the “uncertain future event” does not occur (see National Land Finance Co-Operative Society Ltd v Sharidal Sdn Bhd [1983] 2 MLJ 211 (FC)]; the “uncertain future event” as contemplated under s 33 CA 1950 could include a condition precedent in a contract [see Bekalan Sains P & C Sdn Bhd v. Bank Bumiputra Malaysia Bhd [2011] 5 MLJ 1 (CA)]; and a condition precedent can be raised in respect of an oral contract with the same legal effect under s 33 CA 1950 (see Karuppannan a/l Ramasamy v. Elizabeth Jeevamalar Ponnampalam [2010] 1 MLJ 156 (CA)]. [102] Mr. Steven Thiru further submitted that the alleged oral contract between the Plaintiff and the Defendant has a condition precedent by operation of law in that there must be final approval under the LPTA 2010 for a section of the Putrajaya Line and the MRT station to be constructed on the Acquisition Lands. [103] The learned counsel drew an analogy between the facts in the present case where final approval under the LPTA 2010 must be obtained with the facts in Chase Perdana Bhd v. Md Afendi bin Hamdan [2009] 6 MLJ 783. In that case, among the terms in the letter of undertaking and the agreement under consideration were the conditions that the approval of the Ministry of Finance as stipulated under the Securities Industries Act 1983 [Act 280] and the 1987 Regulations, and the Foreign Investment Committee must be attained. Zaki Azmi CJ in delivering the decision of the apex court held that parties to an agreement cannot waive statutory requirements. S/N JWhQvpBvbky2K26cxhenkA [104] The Plaintiff is said to be aware of the requirement under sub-s 84(6) LPTA 2010 as evidenced by the part in the Plaintiff’s solicitors’ letter to the Defendant dated 29.5.2012 as quoted previously wherein it is stated “… when the Putrajaya MRT line is approved, then our client would benefit in the same manner listed above.”. It should not be overlooked that the statement of the Plaintiff being “desirous in co-operating with MRT so that the future MRT Line to Putrajaya may be protected” is also found in the same letter. [105] The Defendant rightfully submitted that, in their evidence, both PW1 and PW2 agreed that the alleged oral contract was at all material times subject to the approvals under the LPTA 2010. [106] Furthermore, the Court of Appeal in the judgment in Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd & Ors [2020] 4 MLRA 35 at paragraph 25 noted that “On the matter of the contract being contingent, learned counsel for the plaintiff submitted that the plaintiff accepts the contention that the final approval of the third defendant was a condition precedent under s. 84(6) of the LPTA.”. However, the Defendant did not highlight the rest of the said paragraph where the Court said, “Its argument however is that it was up to the first defendant to obtain the approval. And the fact that the first defendant failed to obtain the approval does not alter or diminish that obligation; neither can the first defendant turn round to argue that the contract is void or unenforceable because the condition precedent has not been fulfilled due to its own failure to procure that approval. Again, S/N JWhQvpBvbky2K26cxhenkA this is a valid issue requiring examination at trial, and not in the summary manner and through an exchange of affidavits.”. [107] The Defendant contended that, as final approval under the LPTA 2010 for the proposed construction of a section of the Putrajaya Line and the MRT station on the Acquisition Lands was not obtained, it necessarily follows that any alleged oral contract between the Plaintiff and Defendant is void in law due to the non-fulfilment of a condition precedent which required the parties to obtain a set of statutory approvals. The non-fulfilment of the condition precedent also means that the Defendant is not liable in damages to the Plaintiff [see National Land Finance (supra)]. [108] In submitting for the Plaintiff, Dato’ Malik Imtiaz emphasised that the decisive question is whether the condition precedent is to the formation of the contract or to the performance of the contract. Non-fulfilment of the former would render a contract void whereas non-fulfilment of the latter would not preclude the formation of a contract. A breach of the condition precedent as to the performance of a contract is actionable in law (see National Land Finance (supra, at p 219 where the court explicated the difference between a contingent condition and a promissory condition), Damansara Realty Bhd v Bungsar Hill Holdings Sdn Bhd & Anor [2011] 6 MLJ 170 (CA), Damansara Realty Bhd v Bungsar Hill Holdings Sdn Bhd & Anor [2011] 6 MLJ 464 (FC) and The Interpretation of Contracts, 6th Edition, Sweet & Maxwell, 2015 by Sir Kim Lewison at paragraph 16.02, p 754 - 755). S/N JWhQvpBvbky2K26cxhenkA [109] The learned counsel additionally highlighted that it is not the pleaded case of either party that final approval under the LPTA 2010 is a condition precedent to the formation of the contract between the Plaintiff and the Defendant. In this regard, in replying to the Defendant’s pleading that the contract is void for uncertainty (subparagraph 17(5) of the Re-Amended Defence), the Plaintiff denied the same and stated that “The Defendant is obliged to pursue the necessary steps for the approval pursuant to LPTA s 84(6). The Plaintiff had basis in fact and law to a legitimate expectation that this would be done.” (see subparagraph 10.2 of the Re-Re-Amended Reply). Furthermore, Issue 3 in the ITBT 1 is “… whether the terms of the Alleged Contract were that the Defendant agreed to … Pursue the necessary steps for approval pursuant to LPTA s 84(6)”. [110] A string of cases from the Commonwealth were cited by the Plaintiff where the courts have upheld a contractual term which requires a party to seek statutory or regulatory approval [see Brauer & Co (Great Britain) Ltd v James Clark (Brush Materials) Ltd [1952] 2 All ER 497 (Court of Appeal, UK), Hargreaves Transport Ltd v Lynch [1969] 1 All ER 455 (Court of Appeal, UK), Smallman v Smallman [1971] 3 All ER 717 (Court of Appeal, UK), Tan Soo Leng David v Wee, Satku & Kumar Pte Ltd [1994] 1 SLR(R) 426 (Court of Appeal, Singapore), Lim Hwee Meng v Citadel Investment Pte Ltd [1998] 3 SLR(R) 101 (Court of Appeal, Singapore), Butts v O'Dwyer [1952] HCA 74 (High Court of Australia), McWilliam v McWilliams Wines Pty Ltd [1964] HCA 6 (High Court of Australia), Barber v Crickett [1958] NZLR 1057 (Supreme Court, New Zealand), Ansley v Prospectus Nominees Unlimited (2004) S/N JWhQvpBvbky2K26cxhenkA 5 NZCPR 330 (Court of Appeal, New Zealand) and Strack v Grey Defendant’s counsel submitted at length that these case authorities are distinguishable because, among others, no distinction was drawn between a condition precedent that goes to the formation of the contract and one that goes to the performance of the contract. [111] I have considered the parties’ submissions, and, in my view, there is merit in the Plaintiff’s submission. Although the Putrajaya Line was not approved pursuant to sub-s 84(6) LPTA 2010, the oral contract is not void as the Defendant’s obligation was to take the necessary steps to procure the approval under the LPTA 2010 and this goes to the performance of the contract. [112] Therefore, whilst the decision to give final approval of the railway scheme with the construction of the Putrajaya Line and the integrated station on the Acquisition Lands is within the exclusive power of the Prime Minister of pursuant to sub-s 84(6) LPTA 2010, the formation of the contract was not contingent upon the issuance of such approval. - Whether the alleged oral contract is void for uncertainty under s 30 CA 1950 as – S/N JWhQvpBvbky2K26cxhenkA the said lots and/ or on the land that the Plaintiff purportedly owns as required under sub-s 84(6) LPTA 2010;

there was no certainty whether the alleged oral contract was entered into in respect of the Putrajaya Line or the Kajang

there was no certainty of the terms of the alleged oral contract in view of the absence of any contemporaneous documents that demonstrate an agreement and/ or contract between the Defendant and the Plaintiff (the existence of which is denied) on the terms pleaded in paragraph 20 SoC [113] Section 30 of the CA 1950 provides for agreements which are void for uncertainty in these terms: “Agreements, the meaning of which is not certain, or capable of being made certain, are void.” [114] In subparagraph 17(5) of the Re-Amended Defence, the Defendant pleaded that any contract between the parties is void for uncertainty under s 30 CA 1950 for the three reasons (a) to (c) in the sub-heading above. [115] The Defendant’s pleaded case which it sought to establish at the trial is untenable for the reasons which have been laid out earlier i.e. to summarise –

that there are ample contemporaneous documents to establish a contract between the parties on the terms as pleaded in paragraph 20 and subparagraphs 20.1 and 20.2 of the SoC; and

the contract was entered into in respect of the Putrajaya Line. [116] The uncertainty as to the origins of the alleged oral contract, which was raised in the Defendant’s submission, has also been addressed in the preceding part of this judgment. [117] With regards to the allegation that there was no certainty of obtaining the final approval of the railway scheme under sub-s 84(6) LPTA 2010, it bears repeating that it is not the pleaded case of either party that the contract is subject to the obtainment of such final approval. The case authorities cited in paragraph 110 above show that the courts have recognised contracts which require a party to take steps to obtain regulatory or statutory approvals and hence, the “uncertainty” as to the outcome of such applications for approval is not an “uncertainty” which prevents the existence of a contract. [118] While the cases which were cited by the Defendant stand for the legal principles that an agreement is deemed to be uncertain when its meaning is uncertain or incapable of being made certain (see Kam Mah Theatre Sdn Bhd v Tan Lay Soon [1994] 1 MLJ 108 (SC) where the court held that there was no contract at all because the document concerned was dependent on the signing of a formal contract and the S/N JWhQvpBvbky2K26cxhenkA words “usual terms and conditions” were too ambiguous) and a contract would be rendered void for uncertainty where it is subject to the occurrence of a future event which was too uncertain to occur (see Saw Siew Tuan v Omicrast Manufacturers Sdn Bhd [2013] 6 MLJ 189 (CA) where an express term of the agreement was that the sale of the property was subject to the approval from the relevant authorities being obtained and the court found that there was no certainty that the state authority would approve the appellant’s application), the conditions precedent in these cases relate to the formation or the existence of the contract whereas the condition precedent in the instant case relates to the performance of the contract. [119] In sum, I am satisfied that the oral contract was certain in all key respects. Based on the evidence adduced in court, the Defendant knew exactly what the terms of the contract were and what was required of it pursuant to the oral contract. The fact that the Defendant applied for conditional approval of the Original Railway Scheme reinforced the certainty of the terms of the contract. Up until the point where the Defendant applied for conditional approval of the Realigned Railway Scheme, it had been acting in accordance with the contract. [120] The Defendant’s contention that the oral contract is void for uncertainty under s 30 CA 1950 is answered in the negative. S/N JWhQvpBvbky2K26cxhenkA - Whether the alleged oral contract required the Defendant to provide an assurance that the construction of the Putrajaya Line and an MRT station for the Putrajaya Line on the Acquisition Lands. If so, whether the alleged oral contract is void for illegality. [121] Section 24(b) and (e) of the CA 1950 read as follows: “What considerations and objects are lawful, and what not ...

it is of such a nature that, if permitted, it would defeat any law; ...

the court regards it as immoral, or opposed to public policy In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.”. S/N JWhQvpBvbky2K26cxhenkA [122] Generally, the courts are slow to find illegality and strike down commercial transactions [see Tan Keen Keong v Tan Eng Hong Paper & Stationery Sdn Bhd [2021] 2 CLJ 318 (FC)]. [123] In Maple Amalgamated Sdn Bhd v Bank Pertanian Malaysia Bhd [2021] 8 CLJ 409, the Federal Court held that: “[85] The overall tenor of the judgments above-cited and the development of the law suggests that in determining whether an agreement in the first place contravenes the law, primacy and due regard must be given to the object and purpose of the law which is said to have been breached. And, where two possible constructions are possible on the law or the facts, that is, one which results in contravention and one that does not, the interpretation which favours commercial sense (the one that avoids the finding of illegality) is to be preferred. The overarching theory behind this thought process, as seen from Lord Devlin’s dictum in St John Shipping (supra) for example is that the public and reasonable commercial people will have organised their affairs on the assumption that what they are doing or have done is not prohibited by law. It is only when the force of the law is abundantly manifest (whether expressly or impliedly) that such a commercial transaction is in breach of the law and an illegality. And, even then, the armoury of the law is wide enough to not immediately render the agreement void for illegality even in the face of such contravention. In all situations, this illegality assessment depends on the facts of S/N JWhQvpBvbky2K26cxhenkA every case and the policy as well as language of the law said to have been contravened.”. [124] The Defendant asserted that the alleged oral contract requires it to guarantee the construction of a section of the Putrajaya Line and the MRT station for the same on the Acquisition Lands. Such contractual guarantee disregards the requirement of final approval by the Prime Minister as provided under sub-s 84(6) LPTA 2010. [125] Hence, the Defendant argued that the alleged oral contract is unenforceable in law as it would amount to both an object that “would defeat any law” and that is “opposed to public policy” under limbs (b) and (e) of s 24 CA 1950 as governmental approval is required for the construction of a railway line in Malaysia. The LPTA 2010 does not provide any scope for the creation of legal relations between private parties that exist independent of the requirements of the LPTA 2010 or that could sidestep the LPTA 2010. Furthermore, a contract that requires the waiver of a statutory requirement is unenforceable in law [see Tan Chee Hoe & Sdn Bhd v Code Focus Sdn Bhd [2014] 3 MLJ 301 (FC) and Chase Perdana Bhd v. Md Afendi bin Hamdan [2009] 6 MLJ 783 (FC)] and the law also does not permit a private party to procure an approval from a public or governmental authority [see Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619 (FC) and John Ambrose v Peter Anthony & Anor [2017] 4 MLJ 374 (CA)]. S/N JWhQvpBvbky2K26cxhenkA [126] The Plaintiff’s reply is simply this; it is not the Plaintiff’s pleaded case that the oral contract involved a waiver of the statutory requirements under the LPTA 2010. This is true. The Plaintiff did not plead that the LPTA 2010 mechanism can be avoided, that the functions of SPAD and the Minister under LPTA were fettered or that the Minister’s approval can be guaranteed. [127] The Plaintiff accepts the LPTA 2010 mechanism for what it is; that the SPAD recommends the railway scheme while the Minister approves it. This is very different from saying that it is the Minister who has exclusive authority to decide on the alignment. This is borne out by a close reading of ss 83 and 84 LPTA 2010. [128] The “applicant” in sub-s 83(4) LPTA 2010 refers to “any person intending to construct a railway” (see sub-s 83(2) LPTA 2010). In this case, the applicant is clearly the Defendant. [129] Applying sub-s 83(2) LPTA 2010 to the facts in the present case, the Defendant shall submit a written application to, and deposit with SPAD a railway scheme, which shall contain the information as stipulated in paragraphs (a) to (k) of the said sub-s. SPAD then has to submit a written recommendation to the Minister specifying the reasons for the recommendation and any conditions which the Defendant should be subject to if SPAD recommends to the Minister to grant the approval (see sub-ss 83(5) and (6) LPTA 2010). S/N JWhQvpBvbky2K26cxhenkA [130] After having due regard to SPAD’s recommendation, the Minister may reject or grant conditional approval of the Original Railway Scheme (see sub-s 84(1) LPTA 2010). [131] At the stage of SPAD’s submission of the written recommendation to the Minister, sub-s 84(1) LPTA 2010 does not expressly provide that the Minister may propose changes to the Original Railway Scheme. The Minister may only reject or grant conditional approval. [132] It is only at the stage of final approval that the Minister, where he considers that the plans and sections should be amended, directs the Defendant to reconsider such plans and sections and report to SPAD within such time as SPAD may require. Thereafter, the Minister may, after considering the amendments made to the plans and sections and having due regard to the objections made under sub-s 84(4) LPTA 2010 and SPAD’s recommendation, give final approval to, or reject, the railway scheme (see sub-ss 84(6)(b) and 84(7) LPTA 2010; see too, DW3’s evidence during cross-examination where he agreed to the process as laid down in ss 83 and 84 of the LPTA 2010). [133] In this case, the Minister obviously granted conditional approval of the Original Railway Scheme. However, the subsequent stage for final approval was never reached. Thus, the issue of the Minister exercising his powers under sub-s 84(6)(b) LPTA 2010 does not arise at all. [134] In fact, during the trial, the Defendant raised for the first time the argument that it was not the Minister under the LPTA 2010 who S/N JWhQvpBvbky2K26cxhenkA decided on the alignment, but rather the Economic Council (‘EC’). This argument will be further addressed in the succeeding part of this judgment. [135] As regards the Defendant’s contention that, as a private entity, it could not fetter the powers of the public authority under the LPTA 2010, it is not disputed that the Defendant is a company incorporated under the Companies Act 1965 [Act 125]. Article 1 of the Defendant’s Articles of Association provides that the regulations contained in Table A in the Fourth Schedule to Act 125 except for Regulations 22, 71 and 90 shall apply to the Defendant. In this regard, Regulation 73 prescribes, among others, that the business of the company shall be managed by the directors. [136] Dato’ Malik Imtiaz submitted that, as a private company, the Defendant is not prohibited from contracting and it has the legal capacity to contract. The oral contract in this case is no different. It is a private contract. The Defendant’s constitution does not prohibit this and the LPTA 2010 does not bar an “applicant” from entering into a contract. In fulfilling the terms of the contract, the provisions in the LPTA 2010 must be observed. [137] I have found that the Representation was made, and an oral contract was entered into between the parties. The contractual term was for the Defendant to take the steps to procure the necessary approvals under the LPTA 2010. It is not a term of the oral contract that the Defendant guarantees the Putrajaya Line and the interchange station will be S/N JWhQvpBvbky2K26cxhenkA constructed on the Acquisition Lands or that the Defendant shall procure the final approval of the railway scheme with the said construction as one of the components. [138] The Defendant did not take the necessary steps to procure final approval of the railway scheme with the construction of the Putrajaya Line and the interchange station on the Acquisition Lands under sub-s 84(6) LPTA 2010. Instead, the Defendant applied for conditional approval and later, final approval of the Realigned Railway Scheme. The Defendant ought not to be permitted to take advantage of its own wrong and the court will not construe a contract in such a manner so as to permit a party to take advantage of a situation brought about by its own act or omission [see Poon Guan Sdn Bhd v Sem Siong Industries Sdn Bhd [1983] 2 MLJ 317 (FC), Gimstern Corp (M) Sdn Bhd v Global Insurance Co Sdn Bhd [1987] 1 MLJ 302 and Pentadbir Tanah Daerah Petaling v Swee Lin Sdn Bhd [1999] 3 MLJ 489 (CA)]. [139] The Defendant’s submission that the oral contract is void for illegality is answered in the negative. - The Defendant’s Defence: The realignment of the railway scheme was directed or decided by the EC [140] As mentioned above, the Defendant’s line of questioning during the trial was that the realignment was directed by the EC and as such, the Defendant is not responsible for the same. However, it is not the S/N JWhQvpBvbky2K26cxhenkA Defendant’s pleaded case that the EC had any involvement in the realignment of the Putrajaya Line. [141] The contention that the Defendant could not be faulted for the breach of contract by reason of the directive of the EC is a radical departure from the Defendant’s pleaded case. It is not merely a variation, modification or development of what was pleaded in the Re-Amended Defence [see Superintendent of Lands and Surveys (4th Div) v Hamit bin Matusin [1994] 3 MLJ 185 (SC) and Iftikar Ahmed (supra)]. The learned counsel for the Plaintiff had recorded his objection to this departure from the pleadings and reserved the Plaintiff’s rights. [142] It is trite that the parties are required to set out the factual bases of their respective cases in the pleadings and a defendant is not allowed to raise at trial issues which are not pleaded in its defence to avoid surprise. The court should not decide on an issue that was not pleaded by the parties (see How Paik Too v Mohideen [1968] 1 MLJ 51 (FC), Dato’ Hamzah bin Abdul Majid v Omega Securities Sdn Bhd [2015] 6 MLJ 725 (FC) and Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd and other appeals [2018] 3 MLJ 141 at paragraph 96, p 179). [143] In view of the well-established legal principles on pleadings, the Defendant must be held to its pleaded case, and it is not entitled to shift liability or responsibility for the realignment to the EC. [144] Furthermore, I am unable to accede to the Defendant’s submission that the fact that the Putrajaya Line was realigned was pleaded, and the S/N JWhQvpBvbky2K26cxhenkA cause of the realignment is an evidential matter which does not need to be pleaded. The Defendant relied on the cause of the realignment, namely, the decision of the EC, as a factual defence to justify the realignment of the Putrajaya Line. This must be pleaded. [145] The Defendant’s contention that its pleadings have been amended by the affidavits filed for the purpose of the earlier striking out applications is even more incredulous and cannot find support under any case authority to date. It is trite that any defect or omission in the pleadings cannot be made good by affidavit evidence [see United Malayan Banking Corporation Berhad v Palm & Vegetable Oils (M) Sdn Bhd [1983] 1 MLJ 206 (FC)]. [146] In the Submission In Reply, the Defendant included the argument that the MRT Project is a public project which involved public funds and it would be a waste of such funds for the Defendant to apply for final approval for the alignment of the Putrajaya Land to run through the Acquisition Lands despite the EC’s decision to realign the Putrajaya Line. Such an application would be futile as it would have been rejected in the light of the EC’s decision. This, again, is another belated attempt to justify the Defendant’s action on facts which were not pleaded in the Re-Amended Defence. [147] In the event that I am found to have erred in this finding, I have considered the parties submissions on this issue, and I am inclined to reject the defence that the realignment of the Putrajaya Line was EC’s S/N JWhQvpBvbky2K26cxhenkA decision, and the Defendant cannot be faulted for the realignment for the following reasons: By taking the position at the trial that the realignment was directed or decided by EC, the Defendant contradicted its own statements at the material time that the realignment was its own initiative and not the Government’s. In the article titled “MRT Corp tweaks alignment of Line 2” which appeared in The Edge Malaysia on 7.4.2015, it was reported that, and DW3 was quoted as saying, as follows: “… (MRT Corp) has tweaked the alignment of Line 2 to have a station in Bandar Malaysia near Sungai Besi, where the terminal of the high-speed rail connecting Kuala Lumpur to Singapore will be built. “We did it (the change) on our own initiative … we believe stopping there (Bandar Malaysia) would help improve ridership,” says CEO Datuk Seri Shahril Mokhtar, who is in the hot seat – he decides where the MRT should go and which contractors should build the massive public infrastructure. S/N JWhQvpBvbky2K26cxhenkA “There wasn’t any directive from the top,” he quips. According to him, the proposed new alignment has got the green light from the Economic Council. MRT Corp is expected to submit the proposal to … (SPAD) by the end of this month. “We are working very closely with SPAD to relook at the alignment,” he says. …” (emphasis added). Based on the above excerpt, it can be understood that Line 2 was realigned to have a station in Bandar Malaysia, and the Defendant and SPAD had worked together to prepare the proposed new alignment which was agreed to by the EC. In another article in The Star dated 29.4.2015, the Defendant’s public relations director, Mahmood Abdul Razak was reported to have said: “… the realignment of the line through Bandar Malaysia, which is yet to be built, was an initiative of MRT in anticipation of higher ridership. S/N JWhQvpBvbky2K26cxhenkA He denied claims that the decision was a government directive, clarifying that it had nothing to do with the government or the 1Malaysia Development Berhad (1MDB). “It was our own initiative and re-routing through Bandar Malaysia instead of the initially planned Pandan and Cheras pathway will result in higher ridership. Not only that, the realignment will allow the MRT 2, also known as the SSP line, to be connected to the Kuala Lumpur-Singapore high speed rail, to be located in Bandar Malaysia,” …” (emphasis added). In WS(S)-DW3, the witness sought to explain that the news article dated 7.4.2015 is incorrect as neither he nor the Defendant decides on the alignment or realignment of the Putrajaya Line, but rather it was the EC who made the decision and the Defendant executed and implemented it. When cross-examined, DW3 said that the EC will come up with the macro perspective and would leave it to the Defendant’s executive committee to work out the detailed alignment. At the macro level, the EC decided that the Putrajaya Line should be S/N JWhQvpBvbky2K26cxhenkA integrated with the high-speed rail at Bandar Malaysia and the Defendant had no say in the realignment of the Putrajaya Line. Clearly, DW3’s explanation in court stands inconsistent with what he was reported to have said in 2015 to assuage public concerns at that time as was recorded in the article in The Edge Financial Daily titled “MRT2 realignment a boost for Bandar Malaysia” dated 28.4.2015 as follows: “Nonetheless, Opposition politicians were quick to take a swipe at the proposed MRT2 connectivity in Bandar Malaysia. They alleged that it is a scheme to bail out debt-laden 1MDB by making … (MRT Corp) pay high prices up front for some parts of the land to build the rail line. MRT Corp has denied this, saying that it need not acquire land to build the underground rail.”. Moreover, DW3 agreed with the Defendant’s counsel that the Defendant did not make any request to The Edge Malaysia to correct the purported inaccurate parts in the article dated 7.4.2015. The Plaintiff’s submission that the Defendant has taken an inconsistent position on the realignment being purely the Defendant’s initiative or a directive by the EC is substantiated.

The Defendant is not bound by the EC’s decision As outlined earlier, the Defendant is a company which is governed by its own constitution. It must act and be managed in accordance with its Memorandum and Articles of Association. A company cannot rely on an instruction from the Government if such reliance is not provided for in its constitution [see the cases cited by the Plaintiff, namely, Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd [2018] 2 MLJ 177 (FC), Ravichanthiran Ganesan v Percetakan Wawasan Maju Sdn Bhd [2008] 8 MLJ 450 (HC), Beh Chun Chuan v Paloh Medical Centre Sdn Bhd [1999] 3 MLJ 262 (HC), Tan Sri Dato' Tajudin Ramli v Rego Multi-Trades Sdn Bhd [2018] 7 CLJ 197 (CA) and Rego Multi-Trades Sdn Bhd v Aras Capital Sdn Bhd [2017] 1 LNS 800 (HC)]. As for the EC, it is not established under statute. This is in contrast with, for example, the National Sports Council of Malaysia which was established under the National Sports Council of Malaysia Act 1971 [Act 29]; the Malaysian Examinations Council established under the Malaysian Examinations Council Act 1980 [Act 225]; the National Council on Higher Education established under the National Council on Higher Education Act 1996 [Act 546]; the East Coast Economic Region Development Council established under the East Coast Economic Region Development Council Act 2008 [Act 688]; the National Wages Consultative Council established under the S/N JWhQvpBvbky2K26cxhenkA National Wages Consultative Council Act 2011 [Act 732]; and the National Security Council established under the National Security Council Act 2016 [Act 776]. No documentary evidence was produced at the trial as to the EC’s precise role and function. In this regard, the Defendant invoked the Official Secrets Act 172 [Act 88] (‘OSA 1972’). However, as argued by the Plaintiff, it is incumbent on the Defendant to specify the matters and the legal basis for such matters to be treated as an “official secret” within the meaning of s 2 of the OSA 1972. Additionally, where the evidence in question is to be treated as an “official secret” by reason of the classification of the document, information or material as “Top Secret”, “Secret”, “Confidential” or “Restricted”, the Defendant has to specify the public officer who has classified the document (see s 2B of the OSA 1972). Moreover, no certificate under s 16A of the OSA 1972 as conclusive evidence that the document, information or material is an “official secret” was produced. It is incumbent on the Defendant to specify the nature of the evidence and the reason it is precluded from disclosing the same at the trial. In my assessment, the Defendant was not absolved from explaining the EC’s role vis-à-vis the Defendant. The fact that the EC does not feature in the internal management structure or governance of the Defendant and in any of the steps towards the conditional and final approvals of a railway scheme S/N JWhQvpBvbky2K26cxhenkA under the LPTA 2010 was borne out from DW3’s evidence in cross-examination. Furthermore, it is not the Defendant’s case that the EC has a role insofar as the Defendant’s shareholders are concerned. The Defendant’s pleaded case centers on the LPTA 2010. Hence, it cannot then claim to be constrained by the decision of the EC when it is the “applicant” of the railway scheme under the LPTA 2010. No evidence was produced to show that the Defendant is bound by all decisions made by the EC and that there is legal basis for the EC to decide on the realignment of the Putrajaya Line and for the Defendant to act in a manner which flew in the face of the Representation and contrary to the terms of the contract. [148] In conclusion, the Court finds that the fact which the Defendant sought to establish concerning the EC’s role is not pleaded. In any event, the attempt to show that the realignment was directed by the EC and that the Defendant must comply with the direction contradicts DW3’s press statement at the material time in 2015 that there was no directive from the top. There is also no other evidence apart from the assertions by DW1, DW2 and DW3 to support the Defendant’s contention that EC’s direction or decision is mandatory and by following the said direction or decision, the Defendant is absolved from any liability for breach of the oral contract. S/N JWhQvpBvbky2K26cxhenkA - Whether the Defendant breached the alleged contract by –

failing, refusing and/or neglecting to take the necessary steps for the eventual construction of the Putrajaya Line and MRT station for the Putrajaya Line on the Acquisition Lands;

failing, refusing and/or neglecting to seek for the necessary approval under s 84 LPTA 2010 for the construction of the Putrajaya Line and MRT station on the Land, including the necessary steps or apply for the final approval of the then Prime Minister under sub-s 84(6) LPTA;

proceeding to complete its exercise for the realignment of the Putrajaya Line to completely bypass the Plaintiff's development and the Land [149] In paragraphs 31 - 36 of the SoC, the Plaintiff pleaded the facts relating to –

the public announcement about the change of alignment of the Putrajaya Line to pass through the Bandar Malaysia township instead of the Acquisition Lands as per the Original Railway

the Plaintiff’s solicitors’ letter to the Defendant and SPAD dated 12.6.2015 to put the Defendant to notice that the re-routing of the Putrajaya Line away from the previous alignment and bypassing the Plaintiff’s land is a breach of the Representation and the agreement between the parties; and

the Defendant’s solicitors’ letter to the Plaintiff dated 30.12.2015 in reply to the letter as stated in subparagraph (b) above denying the Plaintiff’s allegations, and that, by proceeding to complete the exercise for the realignment of the Putrajaya Line to completely bypass the Plaintiff’s development and its land, the Defendant has breached the oral contract. [150] Based on the evidence adduced during the trial, it is indisputable that the Defendant did not apply for final approval of the Original Railway Scheme under sub-s 84(6) LPTA 2010 and instead, it applied for approval of the Realigned Railway Scheme vide the letter dated 23.3.2015 to SPAD. [151] The Realigned Railway Scheme shows that the Putrajaya Line was realigned primarily to have two stations in Bandar Malaysia. [152] On 12.5.2015, SPAD wrote to DW3 to convey that the Prime Minister has given conditional approval of the Realigned Railway Scheme pursuant to s 84 of the LPTA 2010, subject to the conditions as stated in “LAMPIRAN 1” to the said letter. It was expressly stated that “… S/N JWhQvpBvbky2K26cxhenkA kelulusan bersyarat yang diluluskan pada 15 Disember 2014 adalah tidak lagi digunapakai dan diganti dengan kelulusan bersyarat ini.”. [153] The public consultation of the Realigned Railway Scheme took place between 15.5.2015 to 17.8.2015 in line with sub-s 84(4), LPTA 2010. The Prime Minister granted final approval for the Realigned Railway Scheme on 7.10.2015. [154] By applying for conditional approval of the Realigned Railway Scheme on 23.3.2015, the Defendant had taken an active step which clearly deviated from the one of the terms of the oral contract that the Defendant is to pursue the necessary steps for approval of the railway scheme where the Putrajaya Line and the interchange station would be constructed on the Acquisition Lands. [155] I have no hesitation in finding that the Defendant, by failing to take the necessary steps to apply for final approval of the railway scheme under sub-s 84(6) LPTA 2010 where the Putrajaya Line and the interchange station would be constructed on the Acquisition Lands, had breached the contract with the Plaintiff. S/N JWhQvpBvbky2K26cxhenkA - Whether the Plaintiff had a legitimate expectation that the Putrajaya Line with the station would be constructed in accordance with what was represented by the Defendant to the Plaintiff and agreed upon by the parties [156] The fact that the Plaintiff had a legitimate expectation that the Putrajaya Line and the MRT station would be constructed in accordance with the Representation and the agreement between the parties was pleaded in paragraph 38 of the SoC (see too, paragraph 6 in the letter dated 12.6.2015 from the Plaintiff’s solicitors to the Defendant and SPAD, and paragraph 4 in the reply letter sent by the Defendant’s solicitors to the Plaintiff’s solicitors denying the allegation of the Plaintiff’s legitimate expectation). [157] Based on the oral and documentary evidence as previously discussed, this issue is answered in the affirmative. The Plaintiff has established, on a balance of probabilities, that the Representation was made by the Defendant during the 30.1.2013 Meeting. The Plaintiff clearly relied on the Representation as evidenced by its conduct after the 30.1.2013 Meeting in fulfilling the terms as agreed by the parties at the 30.1.2013 Meeting. The Plaintiff had a legitimate expectation that the Putrajaya Line and a station will be constructed on part of the Acquisition Lands and that there would be connectivity between the Plaintiff’s development and the station which was planned as an integrated station. S/N JWhQvpBvbky2K26cxhenkA [158] However, at the risk of repetition, it must be reiterated that, in so far as the terms of the oral contract are concerned, the Defendant’s obligation was to take the necessary steps to apply for final approval of the railway scheme under sub-s 84(6) LPTA 2010 where the Putrajaya Line and the interchange station would be constructed on the Acquisition Land. This is in line with the position taken by the Plaintiff that it has no qualms with the statutory requirements that the Defendant must submit the railway scheme as the person intending to construct a railway; SPAD recommends the railway scheme for the Minister’s approval, both conditional and final; and it is for the Minister to consider and decide on the application. [159] In other words, assuming for a moment that the Defendant submitted the railway scheme for final approval where the Putrajaya Line and the interchange station were to be constructed on the Acquisition Lands and SPAD recommended the same to the Minister, but the Minister did not grant final approval of the railway scheme, there would not be any cause for complaint as the Plaintiff itself has taken the stand that its case is not founded on a guarantee by the Defendant of obtaining the Minster’s approval. [160] It has not escaped my attention that one of the two key considerations which were submitted by Dato’ Malik Imtiaz (the other being the fact that the Defendant had avoided dealing with the evidence given by DW2 in cross-examination) was that, based on the evidence before the Court, there is justification to conclude that, in the event the Defendant had applied for final approval of the railway scheme where the S/N JWhQvpBvbky2K26cxhenkA Putrajaya Line and the interchange station are to be constructed on the Acquisition Lands, it would have in all probability been granted. However, I am unable to arrive at such conclusion as s 84(6) LPTA 2010 clearly provides that the decision whether to give final approval or to reject the railway scheme or to amend the plans and sections is within the province of the Minister. II. FRAUDULENT MISREPRESENTATION - Whether the Defendant made the Representation and the Plaintiff relied upon and acted on the same - Whether the Defendant made the Representation without knowing that it is untrue or without belief in the truth - Whether the Defendant's representations are fraudulent [161] The Plaintiff relied on the Representation in pleading in the alternative that –

the Representation was made by the Defendant at the 30.1.2013 Meeting knowing the Representation to be untrue or without any belief in its truth;

the Plaintiff relied on the Representation to, among others, forgo the 1st Development and its interests therein and entered into the oral contract; and

the Plaintiff later discovered that the Representation was untrue and consequently suffered loss and damages (see paragraphs 40 - 42 of the SoC). [162] The Defendant raised issues on pleadings and denied the Plaintiff’s allegations and put the Plaintiff to strict proof of the same. Basically, the defence is the same as was pleaded in respect of the cause of action for breach of the oral contract (see paragraphs 2(3) and 32 of the Defence). [163] I have set out my reasons in the preceding part of this judgment in concluding that the Representation was made by the Defendant and the Plaintiff had relied upon and acted on the Representation. [164] Issues 14, 16 and 17 in the ITBT 1 are therefore answered in the affirmative. [165] Turning to Issues 15 and 18 in the ITBT 1, the Plaintiff cited s 18 and sub-s 19(2) of the CA 1950 in its submission. “Misrepresentation” is defined in s 18 of the CA 1950 as including – “… S/N JWhQvpBvbky2K26cxhenkA [166] In the renowned textbook Law of Contract, Volume One, Fifth Edition, LexisNexis 2023 by Tan Sri Dato’ Seri Dr Visu Sinnadurai and Low Weng Tchung, the learned authors observed at pp 381 and 390 that: “Misrepresentation as defined in section 18 of the Contracts Act appears to cover situations of innocent misrepresentation as understood in common law. The basic difference between misrepresentation and fraud is that in fraud the person making the representation does not himself believe in its truth whereas in cases of misrepresentation, he may believe the representation to be true. … … S/N JWhQvpBvbky2K26cxhenkA Though the term ‘fraudulent misrepresentation’ is not expressly used in section 18 of the Contracts Act, the definition of fraud under section 17 covers fraudulent misrepresentation. … Both sections 17 and 18 are generally relied upon to establish fraudulent misrepresentation: see the federal Court decisions in Kheng Chwee Lian v Wong Tak Thong and Ang Hiok Seng @ Ang Yeok Seng v Yim Yut Kiu (Personal representatibe of the estate of Chan Weng Sun, deceased). However, see the High Court decision in Lee Cheong Fah v Soo Man Yoke, where only section 18 was referred to, with no specific mention of section 17.”. [167] The present case is similar to Lee Cheong Fah’s case which is reported at [1996] 2 MLJ 627 as the Plaintiff did not specifically mention s 17 CA 1950 in its submission. The Plaintiff also made no submission as to which limb of s 18 CA 1950 applies in contending that the Representation is an actionable misrepresentation. [168] Instead, the Plaintiff relied on “misrepresentation” as used in sub-s 19(2) CA 1950 in submitting that as a party to the oral contract, the Plaintiff’s consent was caused by fraudulent misrepresentation as the Defendant knew that the Representation was untrue or had made the Representation without any belief in its truth as the Defendant did not at any point in time inform the Plaintiff that the Putrajaya Line would deviate from the PRA; the Defendant is subjected to the directions of S/N JWhQvpBvbky2K26cxhenkA the EC; and the Defendant would apply to realign the Putrajaya Line. Additionally, DW2 had testified in respect of the Putrajaya Line that “… the reality is until something is approved, is not firm”. [169] Section 19 of the CA 1950 provides that: “Voidability of agreements without free consent [170] Based on the pleadings, the Plaintiff’s case is that the Representation led to the oral contract. In Abdul Razak Bin Datuk Abu Samah v Shah Alam Properties Sdn Bhd And Another Appeal [1999] 2 MLJ 500, Gopal Sri Ram JCA elucidated at pp 505 and 507 that: “Pre-contractual statements are called ‘representations’. … S/N JWhQvpBvbky2K26cxhenkA … Pre-contractual statements or representations are divided into either:

representations that do not induce the making of a contract which are called ‘mere representations’; or

representations that induce the making of a contract. The former are not ordinarily actionable because the law treats them as purely harmless. The latter type may however give rise to liability. Representations that do in fact induce the making of a contract fall into three categories, namely:

representations that amount to collateral contracts;

misrepresentations; and

statements that give rise to an estoppel against the maker. S/N JWhQvpBvbky2K26cxhenkA Misrepresentations in turn are of three types, depending upon the state of mind of the maker. That state of mind may be fraudulent, negligent or innocent, in the sense that it is truly free of any blameworthiness or inadvertence. The existence of a particular state of mind on the part of the representor determines, in the absence of acquiescence, the range of remedies available to the representee. Fraudulent or negligent misrepresentation renders a contract voidable at the instance of the representee. See the Contracts Act 1950, s 19(1). The representee is therefore entitled to apply to a court for a decree of rescission from a court and also to an award of damages. See Archer v Brown [1985] 1 QB 401.Damages are available in addition to rescission because an action for fraudulent misrepresentation is grounded upon the tort of deceit, …”. [171] Another judgment delivered by the same learned Judge in Sim Thong Realty Sdn Bhd v Teh Kim Dar @ Tee Kim [2003] 3 MLJ 460 is also instructive (see pp 465 - 468). In essence, it is the duty of this Court to decide on the facts of a case and whether these facts fall within any of the paragraphs under s 18 CA 1950. [172] The facts as established by the evidence adduced at the trial have been dealt with under the issues in relation to the action for breach of contract. S/N JWhQvpBvbky2K26cxhenkA [173] In Sim Thong Realty, the Court said at p 468 that “… it is trite that the expression ‘misrepresentation’ is merely descriptive of a false pre-contractual statement that induces a contract or other transaction. But it does not reflect the state of mind of the representor at the relevant time. The state of mind of the representor at the time he made the representation to the representee varies according to the circumstances of each case. It may be fraudulent. It may be negligent. Or it may be entirely innocent, that is to say, the product of a mind that is free of deceit and inadvertence (see Abdul Razak bin Datuk Abu Samah v Shah Alam Properties Sdn Bhd). Put another way, a misrepresentation is innocent ‘where the representor believes his assertion to be true and consequently has no intention of deceiving the representee.’ (Chesire & Fifoot, Law of Contract (6th Ed)). It is the particular state of mind of the representor that determines the nature of the remedy available to the representee. So, if the misrepresentation is made fraudulently, then the representee is entitled to rescission and all damages directly flowing from the fraudulent inducement.” [174] Later, in ALW Car Workshop Sdn Bhd v AXA Affin General Insurance Bhd [2019] 4 MLJ 561, Ramly Ali FCJ in delivering the decision of the Court held that: “[45] On this point, we agree with the Court of Appeal in its findings, as stated in para 33 of its judgment, that: Whether any particular claim is tainted with fraudulent intent is a question of fact to be inferred from the S/N JWhQvpBvbky2K26cxhenkA surrounding circumstances. Making a false statement in the belief that it is true constitutes misrepresentation. However, making a false statement with the knowledge that it is false or not believing it to be true and the intention to deceive amounts to fraudulent misrepresentation. The test of fraudulent misrepresentation as enunciated by the Privy Council in Baron Akerheilm v Rolf De Marc [1959] AC 789 PC is as follows: The question was not whether the defendant in any given case honestly believed the representation to be true in the sense assigned to it by the court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense which he understood it albeit erroneously, when it was made. [46] The Court of Appeal had correctly applied the law (with which we agree) in concluding that the exaggeration of the claim in the present case amounted to fraud, as the insured had failed to rebut the presumption that it was not acting in good faith. We also agree with the Court of Appeal that the insured had made a false statement in its claims lists with the knowledge that it was false.”. S/N JWhQvpBvbky2K26cxhenkA [175] The test for establishing a claim for damages for fraudulent misrepresentation was laid down by the Court of Appeal in Yeohata Machineries Sdn Bhd & Anor v Coil Master Sdn Bhd & Ors [2015] 6 MLJ 810 in these words: “[23] In order to sustain an action for fraudulent misrepresentation, the plaintiffs must establish five essential facts. First, there must be a representation of fact by words or by conduct and mere silence is not enough. Second, the representation must be made with the knowledge that it is false, ie it must be willfully false or at least made in the absence of any genuine belief that it is true or recklessly (ie without caring whether his representation is true or false (Derry v Peek (1889) 14 App Cas 337). Third, the representation must be made with the intention that it should be acted upon by the claimant, or by a class of persons which will include the claimant, in the manner which resulted in damage to him. Fourth, it must be proved that the claimant acted upon the false statements. Lastly, it must be proved that the claimant has sustained damage by so doing (see Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 at p 211, per Viscount Maugham.”. [176] In submitting for the Defendant, Mr. Steven Thiru relied on the following excerpt from “Misrepresentation, Mistake and Non-Disclosure”, Fourth Edition, Sweet & Maxwell, 2012 by Professor John Cartwright: S/N JWhQvpBvbky2K26cxhenkA “Fraudulent statement of intention. When it is said that a statement, to be actionable, must be one of fact, it means that the statement must be of present fact: not “future fact”, that is, not a statement of what will happen in the future, nor a statement of what the speaker will do in the future. A statement of what will happen in the future is a representation of the speaker’s present belief about future events. A statement of intention is a representation of the speaker’s present plan for his future conduct. If he does not have that belief or that plan at the time he speaks, he is not telling the truth about his present state of mind, his representation can be characterised as a fraudulent representation of fact and therefore actionable: “the state of a man’s mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man’s mind at a particular time is, but if it can be ascertained it is as much a fact as anything else. A misrepresentation as to the state of a man’s mind is, therefore, a misstatement of fact.”” (emphasis added). [177] Applying the above-mentioned legal principles to the present case, it is my finding that at the time when DW2 made the Representation at S/N JWhQvpBvbky2K26cxhenkA the 30.1.2013 Meeting, he knew that the Acquisition Lands could be used for a purpose other than the Kajang Line and that plans were already afoot for the Putrajaya Line and an integrated station to be constructed on the Acquisition Lands. The Representation is reflective of DW2’s belief as at 30.1.2013 about what will happen in the future. [178] There is no reason for DW2, as the Defendant’s representative, to make the Representation knowing it to be false or not believing it to be true and with the intention to deceive the Plaintiff. In other words, the Plaintiff has not established the second element of the test to sustain an action for fraudulent misrepresentation as stated in Yeohata Machineries. [179] In my considered view, the Plaintiff has not proven, on a balance of probabilities that DW2’s statement is a fraudulent misrepresentation. Issues 15 and 18 of the ITBT 1 are thus answered in the negative. CONCLUSION: 1st TRANCHE TRIAL [180] To conclude, based on all the foregoing reasons, it is the Court’s finding and conclusion that the Defendant is liable for the Plaintiff’s claim premised on breach of an oral contract. [181] In accordance with the Consent Order, the Court then proceeded with the trial on assessment of damages. S/N JWhQvpBvbky2K26cxhenkA THE TRIAL FOR THE 2nd TRANCHE: ASSESSMENT OF DAMAGES [182] The trial on assessment of damages was held for nine days. Five witnesses testified for the Plaintiff whilst the Defendant called three witnesses. [183] Apart from PW1 and DW1 who were re-called to testify in the 2nd Tranche Trial, the particulars of the other witnesses are shown below: WITNESS NAME DESIGNATION PW3 Ir. Teow Loo Yih Engineer/ Partner, Perunding CJN PW4 Sr. Lee Ko To Quantity Surveyor/ Managing Director, WT Partnership (M) Sdn Bhd PW5 Sr. Ganesh a/l Chinnappan Registered Valuer and Estate Agent/ Property Manager/ Executive Director, Raine & Horne International Zaki + Partners Sdn Bhd (‘RHZ’) PW6 Mr. Liew Kim Yuen Director, Ferrier Hodgson MH Sdn Bhd (‘FHMH’) DW 8 Sr. Elvin s/o Berty Luke Fernandez Managing Director, Khong & Jaafar Sdn Bhd (‘KJSB’) and Khong & Jaafar (Real Estate) Sdn Bhd; Chief Executive Officer, Khong & Jaafar (Corporate Services) Sdn Bhd S/N JWhQvpBvbky2K26cxhenkA DW 9 Mr. Lim Chee Teong Accountant/ Director, PricewaterhouseCoopers Advisory Services Sdn Bhd (‘PwC’) [184] The Agreed Issues To Be Tried for the 2nd Tranche Trial (‘ITBT 2’) are as follows: “D. LOSS & DAMAGE

Whether, as a result of the Defendant’s breach of the Alleged Contract, misrepresentations and/or negligence, the Plaintiff suffered loss and damage.

Whether the Plaintiff suffered loss and damage in the total sum of RM303,534,216.00 or any part thereof (“Plaintiff's Loss”).

21.1. If yes, whether the Defendant is liable to compensate the Plaintiff's Loss.”. [185] Several reports were prepared by the parties’ experts for the 2nd Tranche Trial. For ease of reference, the reports are tabulated below: S/N JWhQvpBvbky2K26cxhenkA NO. REPORT EXPERTS MARKING ENCL. 1. Plaintiff’s Expert Witnesses’ Affidavit affirmed on 13.5.2022 Review of the Losses and Damages to Accolade Land Sdn Bhd Resulting from the Breach of Contract by Mass Rapid Transit Corporation Sdn Bhd, relating to the Rail Transit Line Known as Sungai Buloh-Serdang-Putrajaya Line and Train Station that was to be Constructed by the Defendant on Lands Compulsorily Acquired from the Plaintiff Date: 13.5.2022 Liew Kim Yuen, & Patrick McPhee, Managing Partner, FHMH APP1(A) APP1(B) APP1(C) APP1(D) APP1(E) 282 283 284 285 286

Plaintiff’s Expert Witnesses’ Affidavit No. 2 affirmed on 3.3.2023 Review of the Expert Report of Justin Lim (Director) and Jay Moorthy (Partner) of PricewaterhouseCoopers Advisory Services Sdn Bhd, Malaysia, Dated 30 December 2022 Date: 2.3.2023 Liew Kim Yuen & Patrick McPhee APP2(A) APP2(B) APP2(C) APP2(D) 297 298 299 300

Plaintiff’s Expert Witness’ Affidavit affirmed on 2.11.2020 Assessment Of Developer's Gross Development Profit In Respect Of The Proposed Mixed Commercial Development Project Sited On Lots 102999 And 103000 Held Under Geran Nos 79824 And 79823 Respectively Mukim Petaling, Daerah Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur Date: 27.10.2020 Sr. Ganesh a/l Chinnappan APP3 145

Defendant’s Expert Witness’ Affidavit affirmed on 18.7.2022 Assessment Of Losses And Damages Report The Approved Mixed Commercial Development Project On Lots 102999 And 103000 Mukim Petaling, Daerah Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur Date: 18.7.2022 Sr. Elvin s/o Berty Luke Fernandez APD1(A) APD1(B) 288 289

Defendant’s Expert Witnesses’ Affidavit affirmed on 12.1.2023 Expert Report of Justin Lim and Jay Moorthy dated 30 December 2022 (PwC-1) Jayaram Krishna Moorthy, Partner, PwC & Lim Chee Teong APD2(A) APD2(B) APD2(C) 293 294 295 THE PARTIES’ POSITION [186] As set out earlier, the Plaintiff’s claim as per the SoC is for the total principal sum of RM303,534,216 under four Heads of Claim. The 1st Head of Claim concerns losses arising from Phase 1 of the Plaintiff’s development while the 2nd, 3rd and 4th Heads of Claim concern losses arising from Phase 2 of the development. [187] Mr. Liew Kim Yuen had assessed the losses at a lower total amount of RM257,821,372 [see para 182, p 97, APP1(A)]. A comparison of the Plaintiff’s original amount of claim and the amount which was sought during the 2nd Tranche Trial is tabulated below: S/N JWhQvpBvbky2K26cxhenkA CLAIM NO. BRIEF DESCRIPTION PLAINTIFF’S PLEADED AMOUNT MR LIEW’S ASSESSED

Phase 1: Sale prices reduction in the 2nd Development (Compared with the 3rd development) 29,865,650 28,835,668 2. Phase 2: Profits reduction in the 2nd Development (Compared with the 3rd Development) 219,576,143 184,762,915 3. Phase 2: Loss of use of funds from delay in development 38,470,567 38,722,789 4. Phase 2: Abortive consultancy fees for the 2nd Development 15,621,857 5,500,000 TOTAL 303,534,216 257,821,372 S/N JWhQvpBvbky2K26cxhenkA [188] On the other hand, the Defendant was resolute in its position that the breach of the oral contract did not cause the Plaintiff to suffer any loss or damage. Hence, the Defendant denied any liability to pay compensation to the Plaintiff. [189] In so far as the burden of proof is concerned, there is no argument that the Plaintiff as the party, which is claiming damages, bears the burden of proving the fact and quantum of damages suffered [see Tan Sri Khoo Teck Puat & Anor v Plenitude Holdings Sdn Bhd [1994] 3 MLJ 777 (FC) and Tekun Nasional v Plenitude Drive (M) Sdn Bhd and another appeal [2021] 6 MLJ 619 (FC)]. ANALYSIS & FINDINGS [190] Before turning to the ITBT2, several issues were raised in the parties’ written submissions which must first be addressed. 1st Issue: Anticipatory Breach & The Doctrine of Election [191] The Defendant submitted comprehensively on the issues that the Plaintiff’s claim is framed on the basis of anticipatory breach and the role of election (see Items F and G, paragraphs 56 - 90, encl. 348). [192] Based on the summary provided, it can be discerned that the gist of the Defendant’s argument is that, based on my decision as S/N JWhQvpBvbky2K26cxhenkA pronounced on 14.10.2021, the specific act that amounted to a breach of the oral contract was identified as the Defendant’s failure to take the necessary steps to apply for the final approval under s 84 LPTA 2010 for the construction of the MRT Line and the station. However, the character of the Defendant’s breach was not characterised at the 1st Tranche Trial. [193] Mr. Nagarajah submitted that, upon a closer analysis of the relevant law and the facts, it is apparent that the Plaintiff’s claim against the Defendant is framed on the basis of anticipatory breach. As such, the key question for the Court’s determination is whether time for performance of the oral contract had arrived at the time of the Defendant’s breach. [194] It was contended that the “reasonable time for performance” of the oral contract, namely, the construction of the Putrajaya Line and MRT station would be pursuant to completion by 2023. Based on the available evidence, the commencement of the Defendant’s performance ought to have begun only in December 2015 whereas the Plaintiff’s claim is based on the acts or events occurring before the reasonable time for the Defendant’s performance had commenced. [195] Predicated on the above, the Plaintiff’s entitlement to remedy is said to be dictated by the doctrine of election. In cases of anticipatory breach of contract, an innocent party must either affirm the contract or accept the repudiation and this decision must be communicated to the party in breach. S/N JWhQvpBvbky2K26cxhenkA [196] The Defendant contended that, through the Plaintiff’s solicitors’ letter dated 12.6.2015, the Plaintiff elected to affirm the oral contract and through this affirmation, the oral contract was kept alive until it was terminated by the sale of Lot 103000 to UEM Sunrise Berhad (‘UEM’) on 4.6.2021. The sale of the land amounts to an acceptance of repudiation and the Plaintiff had opted out of the contractual benefits under Lot 103000. By reason of the disposal of the said land and the ensuing contractual benefit, the Plaintiff is precluded from claiming any purported contractual benefits flowing from Phase 2 of its development. [197] In the event that the Court is of the view that the sale of the land does not constitute an acceptance of repudiation, it was submitted in the alternative that the Plaintiff has failed to terminate the oral contract at any juncture. In effect, the Plaintiff is also precluded from claiming any damages. [198] The Plaintiff’s response to the matters raised by the Defendant was equally extensive. The gist of the Plaintiff’s submissions are as follows:

the Defendant’s arguments relating to anticipatory breach, election, affirmation and repudiation of the contract were not pleaded and were raised for the first time in the Defendant’s Written Submissions (encl. 348). The Defendant proceeded with the 2nd Tranche Trial without applying for any amendments to the

if the Court takes the view that the Defendant is at liberty to raise issues relating to anticipatory breach, –

the Defendant’s contention that the contract was “alive” until it was terminated by the sale of the land to UEM is illogical as the contract would not have survived past a number of undisputed prior events, namely the decision by EC on 9.2.2015 to realign the Putrajaya Line, final approval of the Realigned Railway Scheme on 7.10.2015 and the filing of the instant suit on 27.5.2016;

(ii) the sale of the land to UEM is not an independent event which may be considered as a frustrating event such as to have a limiting impact on the Plaintiff’s claim. The Defendant’s breach of contract altered the course of events and this then set the platform for the sale of the land;

(iii) an anticipatory breach is where a fixed and exact date has been set for performance and one of the parties has indicated his refusal or displayed inability to perform his part of the bargain [see Damansara Realty Bhd (FC; supra) and Theresa Toyat v KHL Sdn Bhd [2015] 5 MLJ 31 (CA)]

(iv) the Defendant could have, but did not, raise the purported issues at the 1st Tranche Trial, and in any event before the S/N JWhQvpBvbky2K26cxhenkA completion of the 2nd Tranche Trial. These issues, if they had been pleaded, would be issues which properly belonged to the liability stage and not the assessment stage as they would directly affect whether the Defendant is liable to the Plaintiff due to the breach of the oral contract. Hence, the Defendant is barred by res judicata to ventilate such issues via post-trial written submissions; and

the Defendant has mischaracterised the Court’s finding that the Defendant is liable to the Plaintiff due to breach of the oral contract and the matters raised post-trial are an afterthought. If the Defendant genuinely considered that the decision on liability is unclear, the Defendant could have sought for a clarification of the same, but it did not do so. Instead, the Defendant deliberately chose to “reserve” its arguments in written submissions to ambush the Plaintiff. [199] I decided not to consider the Defendant’s submissions on anticipatory breach, election, affirmation and repudiation of the contract simply because the facts pertaining to these matters were not pleaded and these issues were not included in the ITBT 1. If the Defendant intends to treat its breach as an anticipatory breach and the letter dated 12.6.2015 as an affirmation of the oral contract, the Defendant must clearly plead these in its Defence. Questions as to whether the breach is anticipatory, and the Plaintiff had affirmed the contract upon occurrence of breach involve material facts which must be pleaded. By S/N JWhQvpBvbky2K26cxhenkA raising these matters only in the Defendant’s written submissions, the Plaintiff was taken by surprise [see Bacom Enterprises Sdn Bhd v Jong Chuk [1998] 2 MLJ 301 (CA), Lee Poh Choo v SEA Housing Corporation Sdn Bhd [1982] 1 MLJ 324 (HC), Syarikat Yoong Onn Sdn Bhd v Agenda Istimewa Sdn Bhd [2010] 1 LNS 735 (HC) and IBR Concepts Sdn Bhd v Laksamana Cemerlang Sdn Bhd [2022] 1 LNS 2358 (HC)]. [200] For clarity, at the end of the 1st Tranche Trial, I could not have held that the Defendant’s failure to apply for final approval of the Railway Scheme with the construction of the Putrajaya Line and integrated station on the Acquisition Land is an anticipatory breach for the obvious reason that this was something which was not pleaded or raised in the proceedings at all. There is nothing in the pleadings where I could or would have relied as a basis to make findings of anticipatory breach at the 1st Tranche Trial. 2nd Issue: Date of Breach of Contract and Date of Assessment of Damages [201] The date of breach of the oral contract by the Defendant is 23.3.2015, which is the date when the Defendant applied to SPAD for conditional approval of the Realigned Railway Scheme. [202] The general rule is that damages are to be assessed at the date of breach [see Cheng Chuan Development Sdn Bhd v Ng Ah Hock [1982] S/N JWhQvpBvbky2K26cxhenkA 2 MLJ 222 (FC), Eikobina (M) Sdn Bhd v Mensa Mercantile (Far East) Pte Ltd [1994] 1 MLJ 553 (SC) and Malaysian Rubber Development Corp Bhd v Glove Seal Sdn Bhd [1994] 3 MLJ 569 (SC)]. [203] However, this is not an absolute rule. The court has power to fix such other date as may be appropriate in the circumstances of the case where it would more accurately reflect the compensatory rule or to avoid injustice being occasioned (see Quah Ban Poh v Dragon Garden Pte Ltd [1985] 2 MLJ 159, Tan Geok Khoon v Paya Terubong Estate Sdn Bhd [1988] 2 MLJ 672, Tan Ah Chim & Sons Sdn Bhd v Ooi Bee Tat & Anor [1993] 3 MLJ 633, Ng See Chong v Tan Lai Meng [2017] 9 MLJ 421 and Lim Chong Yean v Koperasi Pegawai Hutan Melayu & Anor [2022] 7 MLJ 483). [204] The Plaintiff submitted that this Court should assess damages on the assessment dates of 6.10.2015 and 11.3.2019, and not 23.3.2015 because, in assessing the Plaintiff’s GDP, PW5 had selected two separate dates of assessment, which are nine months from the respective dates of the 2nd DO and 3rd DO as follows: DO

2nd DO

6.1.2015 + 9 months =

6.10.2015 2. 3rd DO

11.6.2018 + 9 months =

11.3.2019 S/N JWhQvpBvbky2K26cxhenkA [205] PW5 explained that the assessment dates are taken at nine months from the DO approval dates because nine months are the “usual time taken for the project to be launched for sale after obtaining the relevant approvals”. [206] The Defendant took the same position that the exception to the general rule applies and damages should not be assessed at the date of the breach of contract, but rather at the time of the 2nd Tranche Trial. [207] After deliberating on the parties’ submissions, I was persuaded by the Defendant’s submission that the damages should be assessed as at the date of the 2nd Tranche Trial i.e. 3.4.2023 as this is an appropriate case for the Court to consider events subsequent to the breach in assessing damages, in particular the sale of the Phase 2 Land with the approvals for the 3rd DO to UEM in mid-June 2021 for the sum of RM197 million. To not do so would be tantamount to the Court wearing blinkers and closing its eyes to material events, which have transpired after the breach of the contract, in assessing the actual nature and consequences of the breach and whether the Plaintiff suffered any losses. 3rd Issue: Whether causation is an issue to be decided at the 2nd Tranche Trial [208] The Defendant’s stance was that causation has not been established at the 1st Tranche Trial. Hence, in the 2nd Tranche Trial, the Plaintiff S/N JWhQvpBvbky2K26cxhenkA bears the burden to prove that the loss or damage claimed was caused by, or is attributable to, the Defendant [see CIMB Bank Bhd (formerly known as Southern Bank Bhd) v Goh Ah Thiam [2023] 3 MLJ 764 (CA)]. [209] The Plaintiff took the opposite position that causation has been decided at the liability stage and hence, in the 2nd Tranche Trial, this Court must not act in a manner which is contrary to the liability decision, or which has an effect of revisiting issues decided at the 1st Tranche Trial. A series of case authorities were cited by the Plaintiff’s counsel to support this contention, among others, Aviation Development Corp (M) Sdn Bhd v Yayasan Selangor [2022] 3 MLJ 89 (FC), Ghazali bin Mat v Pengarah Tanah dan Galian Negeri Terengganu [2022] 5 MLJ 453 (CA), Asia Plywood Co Sdn Bhd v Aeon Co (M) Bhd [2020] 8 MLJ 736 (HC) and Shen & Sons Sdn Bhd v Jutawarna Development Sdn Bhd [2016] 7 MLJ 183 (HC). [210] The issue of causation is found in paragraph 20 of the ITBT 2 viz. “Whether, as a result of the Defendant’s breach of the Alleged Contract, misrepresentations and/or negligence, the Plaintiff suffered loss and damage.”. [211] In paragraph (2) of the Consent Order dated 4.12.2020, it is expressly stated that the above-said issue is part of the issues to be determined in the 2nd Tranche Trial. The Plaintiff itself acknowledged this to be the case in subparagraph 1.2 of its Written Submissions for the 1st Tranche Trial (encl. 239) where reference was made to the Consent Order and S/N JWhQvpBvbky2K26cxhenkA that in the event the 1st Tranche Trial is determined in the Plaintiff’s favour, this Court would then determine paragraphs 19.2 to 21.1 of the Agreed ITBT. [212] Based on my analysis of the ITBT 1, clearly the issue of causation was not decided at the 1st Tranche Trial because the parties themselves have agreed that it is an issue for the 2nd Tranche Trial. By submitting that the issue in paragraph 20 of the Agreed ITBT was dealt with in the 1st Tranche Trial, the Plaintiff is approbating and reprobating (see the decisions by the Court of Appeal in Visage Continental Sdn Bhd v Smooth Track Sdn Bhd [2008] 1 MLJ 101, Cheah Theam Kheang v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761 and Lee Loy & Ors v Poh Kam Sang & Anor [2018] 3 MLJ 240). [213] At this juncture, I will also deal with the Defendant’s objection in respect of certain passages in PW6’s Expert Report in exhibit “FH-3”, APP1(A) (see for example, paragraphs 113, 138 - 141, 158 - 162 and 175) wherein he stated that there is a direct causal link between the Plaintiff’s Heads of Claim and the breach of contract by the Defendant despite not being a legally qualified person. [214] I agree with the Defendant’s submission that the primary role of the court appointed expert is to inquire and report on any question of fact or opinion not involving questions of law or of construction and it is not within PW6’s scope and duties as an expert witness to make legal assertions in his Expert Report [see UEM Sunrise Bhd & Ors v Majlis S/N JWhQvpBvbky2K26cxhenkA Perbandaran Johor Bahru Tengah [2016] 11 MLJ 133 (HC)]. Therefore, I disregarded PW6’s assertions on the issue of causation. 4th Issue: Mitigation [215] The Plaintiff’s claim for loss and damages is premised on natural loss or contemplated loss as provided under s 74 of the CA 1950 which reads as follows: “Compensation for loss or damage caused by breach of contract

(1) When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. … S/N JWhQvpBvbky2K26cxhenkA Explanation – In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. ….”. The Explanation above reflects the duty on the Plaintiff, as the party which is seeking damages, to take reasonable steps to mitigate the damage. [216] In Kabatasan Timber Extraction Co v Chong Fah Shing [1969] 2 MLJ 6, MacIntyre F.J. explicated at p 8 that: “The law, however, imposes a duty on every person who suffers damages on account of breach of contract to take reasonable steps to mitigate the damage. In Anson's Principles of the English Law of Contract, 22nd Edition, at page 504, the following passage appears:– “It also follows from the rule that damages are compensatory only that one who has suffered loss from a breach of contract must take any reasonable steps that are available to him to mitigate the extent of the damage caused by the breach. He cannot claim to be compensated by the party in default for loss which is really due not to the breach but to his own failure to behave reasonably after the breach. S/N JWhQvpBvbky2K26cxhenkA “Thus, although the measure of damages for breach of a contract to deliver goods is ordinarily the difference between the contract price of the goods and the market price at the time when delivery should have been given, yet if the plaintiff might have mitigated his loss, for example, by any immediate purchase at a low price of goods to replace those not delivered, or by accepting a reasonable offer from the defendant to make good part of the loss, this is to be taken into account in assessing his damages (Brace v Calder [1895] 2 QB 253, Payzu Ltd v Saunders [1919] 2 KB 581). It is a question of fact in each case whether he has acted as a reasonable man might have been expected to act, and he is not required to risk his commercial reputation Finlay (Fames) & Co Ltd v NV Kwik Hoo Tong HM [1929] 1 KB 400) or to embark Upon complicated litigation (Pilkington v Wood [1953] Ch 770,) in order to mitigate his loss.””. [217] In the earlier case of Leong Yoong v Lee Sem Yoong [1968] 2 MLJ 72, the same learned Judge said: “… If there were grounds for mitigation it was for the appellant to have alleged and proved them:– “The question of what is reasonable for a plaintiff to do in mitigation of his damages is not a question of law, but one of fact in the circumstances of each case, S/N JWhQvpBvbky2K26cxhenkA the burden of proof being upon the defendant” (see Halsbury, vol. 11, (3rd Ed.) para. 476, page 290). In the present action, the appellant has not pleaded or proved any fact in mitigation of damages. …”. [218] Many years later, the Singapore Court of Appeal in The “Asia Star” [2010] 2 SLR 1154 provided an overview of the law relating to mitigation in these words: “… In a claim for damages for breach of contract, the failure of the aggrieved party to act reasonably to mitigate its loss is a standard defence which the defaulting party usually invokes to reduce the damages payable. It is important, however, to point out that the so-called “duty” to mitigate is not strictly speaking a legal duty which the aggrieved party owes to the defaulting party, in that the latter cannot bring an action against the former for failing to mitigate its loss. The term “duty” as employed repeatedly in the authorities is actually no more than a convenient term of reference for the legal requirement imposed on an aggrieved party to take prophylactic measures to minimise avoidable loss if it wishes to recover all of the loss sustained as a result of the defaulting party's breach of contract. A breach of the “duty” to mitigate prima facie disentitles the aggrieved party from claiming that part of its loss which, in the court's view, could have been avoided if reasonable mitigation measures had been taken. S/N JWhQvpBvbky2K26cxhenkA From this perspective, the “duty” to mitigate may give rise to an indirect legal “liability” in so far as a breach of this “duty” operates as a legal bar, pro tanto, to recovery of damages. The long-standing characterisation of the legal obligation of an aggrieved party to act reasonably to mitigate its loss as a “duty” is now too entrenched in legal discourse to be dropped. Subject to the clarification which we have just made, therefore, we will employ the terms “the duty to mitigate” and “the principle of mitigation” interchangeably in this judgment to denote this legal obligation. The basic rules relating to mitigation are well settled. First, the aggrieved party must take all reasonable steps to mitigate the loss consequent on the defaulting party's breach, and cannot recover damages for any loss which it could have avoided but failed to avoid due to its own unreasonable action or inaction (see Harvey McGregor, McGregor on Damages (Thomson Reuters (Legal) Limited, 18th Ed, 2009) at para 7- 004 and British Westinghouse Electric and Manufacturing Company, Limited v Underground Electric Railways Company of London, Limited [1912] AC 673 (“British Westinghouse Electric”) at 689). Second, the aggrieved party who goes beyond what the law requires of it and avoids incurring any loss at all will not be entitled to recover any damages (see McGregor on Damages at para 7-097 and British Westinghouse Electric at 689-690). In such a case, the aggrieved party's efforts will in effect confer a gratuitous S/N JWhQvpBvbky2K26cxhenkA benefit on the defaulting party. Third, the aggrieved party may recover any expenses incurred in the course of taking reasonable steps to mitigate its loss (see McGregor on Damages at para 7-091). In short, the aggrieved party cannot recover avoidable or avoided loss; it may, however, recover expenses reasonably incurred in the course of taking mitigation measures. The evaluation of the aggrieved party's conduct in mitigation ought to start from the date of the defaulting party's breach, and the burden of proving that the aggrieved party has failed to fulfil its duty to mitigate falls on the defaulting party (see McGregor on Damages at para 7- 019 and Garnac Grain Company Incorporated v HMF Faure & Fairclough Ltd and Others [1968] AC 1130 at 1140). This burden is ordinarily one which is not easily discharged.” [see too, Malaysian Rubber Development Corp Bhd (supra)]. [219] The instant case is unique in the sense that it is the Plaintiff who asserted the fact that the 3rd Development was a step taken by the Plaintiff to mitigate the extent of damage caused by the Defendant’s breach of contract when it pleaded in paragraph 39 of the SoC that “Without the promised MRT Station, the 2nd Development would not be commercially viable. The Plaintiff had no alternative but to abandon the 2nd Development and to redesign a new development in order to mitigate its potential losses.”. To this, the Defendant responded that it has no knowledge of the matters as pleaded by the Plaintiff who was S/N JWhQvpBvbky2K26cxhenkA put to strict proof thereof (see paragraph 31 of the Defence). The Defendant did not raise mitigation as a defence. [220] After the trial, the Plaintiff submitted that it is an appealable error of law if this Court imposes the burden on the Plaintiff to prove mitigation and several cases were cited in support of this argument, among others, YK Fung Securities Sdn Bhd v James Capel (Far East) Ltd [1997] 2 MLJ 621 (CA) and two cases from Brunei, namely, Industrial Resources Sdn Bhd v Awang Tahir Bin Haji Hamzah [1988] 2 MLJ 359 and Yapp Pow Khin & Anor v Hjh Jamilah bt Udin [2012] 2 MLJ 234. [221] In addition, the Plaintiff submitted that the loss is not a reasonably mitigatable loss as it could not be avoided by the Plaintiff taking available reasonable steps in the ordinary course of business. [222] As canvassed in the previous analysis, a party is bound by its pleadings. Hence, the Plaintiff, having pleaded the fact of the 3rd Development as an act to mitigate its potential losses, bears the burden of proving this fact (see s 103 EA 150). [223] When cross-examined, PW1 testified that there is no evidence before the court of the alternative measures which were taken by the Plaintiff as acts of mitigation. [224] The Defendant submitted at great lengths on the issue of mitigation and this may be summarised as follows: S/N JWhQvpBvbky2K26cxhenkA

as the Defendant has objected to the validity and reasonableness of the Plaintiff’s mitigation, there is a heavy evidential burden on the Plaintiff to provide evidence on the active steps it took which has reduced its losses. Only the Plaintiff has this information but it failed to disclose the same; and

the Plaintiff has failed to prove that the 3rd Development is a valid and reasonable act of mitigation because –

its pleadings and evidence are silent as to the profits to be attained from continuing with the 2nd Development without the proposed Putrajaya Line and MRT station (‘Hypothetical Breach Scenario’). Hence, the Plaintiff has not shown that the 3rd Development would have reduced their losses as compared to the Hypothetical Breach

(ii) it has failed to adduce any evidence that –

(A) it carefully considered any other options to mitigate its loss and that entering into the 3rd DO was the sole option to mitigate its loss;

(B) entering into the 3rd DO was a mitigation step and not a step taken to prepare the land to be sold as it lacked the financial capacity to carry out the 2nd DO and 3rd DO; and

the Plaintiff has not established a causative link between the breach and the alleged mitigative steps taken by the Plaintiff. [225] The gross profits of the 2nd Development and the 3rd Development where the 2nd Development has incorporated the proposed Putrajaya Line and MRT station in the design are provided in the Plaintiff’s Expert Reports. However, there is no analysis on the profits to be attained in the Hypothetical Breach Scenario. In the circumstances, I am in agreement with the Defendant’s submission that without a comparison being made between the profits to be attained from the Hypothetical Breach Scenario and the 3rd Development, this Court is unable to make any determination on the reasonableness of the 3rd Development as the Plaintiff’s mitigation measure. Had such comparison been conducted and with the result that the 3rd Development would have caused less losses than proceeding with the 2nd Development, it could possibly be concluded that the 3rd Development is a reasonable mitigation. [226] Furthermore, the Plaintiff did not consider any other options to mitigate its loss whereby entering into the 3rd DO was proffered as the sole option for mitigation. Credibility of Expert Witnesses [227] Four experts gave evidence at the trial, two each for the Plaintiff and the Defendant. S/N JWhQvpBvbky2K26cxhenkA [228] The provisions in the EA 1950 and RC 2012 which deal with opinions of experts and experts of the parties are sub-s 45(1) and O.40A, respectively: “Opinions of expert

(1) When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

Such persons are called experts.” “Expert’s duty to the Court (O. 40A, r. 2).

(1) It is the duty of an expert to assist the Court on the matters within his expertise.

This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.” (see too, ss 46 and 51 EA 1950). S/N JWhQvpBvbky2K26cxhenkA [229] The learned counsel for the Defendant referred to the case authorities of United Asian Bank Bhd v Tai Soon Heng Construction Sdn Bhd [1993] 1 MLJ 182 (SC), Mohamed Ismail bin Mohamed Shariff v Zain Azahari bin Zainal Abidin & Ors [2013] 2 MLJ 605 (FC), Yoong Sze Fatt v Pengkalen Securities Sdn Bhd [2010] 1 MLJ 85 (CA), Maheswari a/p Eliathamby & Anor v Koperasi Serbaguna Kebangsaan Bhd & Ors [2019] 1 MLJ 440 (CA), Sivananthan a/l Krishnan v Jade Homes Sdn Bhd [2019] 5 MLJ 525 (CA) and Public Prosecutor v Lin Lian Chen [1991] 1 MLJ 316 (HC) in submitting that:

expert witnesses owe the court an overriding duty to assist the court on matters within their field of expertise;

expert witnesses must be qualified and possess the necessary skill and experience in the particular field of expertise that they have been called to testify on;

expert witnesses must be independent and objective in providing their expert opinion;

expert witnesses must provide reasons and justifications for their expert opinion;

the court is the final arbiter and the court does not have to accept every opinion asserted by the expert witnesses;

where there is conflicting expert evidence, the court must carefully assess the evidence available and accept, if necessary, the most reliable parts of the experts’ opinions. The court must assess the conflicting expert opinions against the background of all available evidence adduced in the case; and

the weight to be attached on the expert evidence depends on the credibility of the expert witness [see too, the cases cited by the Plaintiff’s counsel, namely, Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 (FC), Khoo Hi Chiang v Public Prosecutor [1994] 1 MLJ 265 (SC), Dr Sanmuganathan v Periasamay s/o Sithambaram Pillai [1997] 3 MLJ 61 (FC) and Chan Kwee Fong v Public Prosecutor [2010] 1 MLJ 441 (CA)]. [230] In light of the technicalities associated with the Plaintiff’s Heads of Claim as pleaded in the SoC, this Court is in no position to make a determination of the issues in respect of each Head of Claim without the aid of expert evidence [see U Television Sdn Bhd v Comintel Sdn Bhd [2017] 5 MLJ 292 (FC)]. [231] Both the Plaintiff’s and the Defendant’s counsels made comprehensive submissions as to why the evidence of their respective expert witnesses should be preferred over that of the opponent’s. The length and depth of the submissions are demonstrated by the fact that each party dedicated an entire appendix in the written submissions to S/N JWhQvpBvbky2K26cxhenkA address the issue of credibility of the expert witnesses (see Appendix III in encl. 340 for the Plaintiff and Appendix III in encl. 348 for the Defendant). [232] In summary, the Defendant attacked the credibility of the Plaintiff’s expert witnesses for the following reasons:

As against PW5:

The Plaintiff instructed RHZ to take Gross Development Profit (‘GDP’) as the basis of assessment and to exclude the historical land cost in the calculation of GDP based on the Residual Method. This instruction is too restrictive and as a result, RHZ was unable to independently exercise their professional skills and expertise in the preparation of the Expert Report.

(ii) RHZ’s basis of assessment i.e. GDP is not the appropriate to assist the Court to assess the damages under the 2nd Head of Claim. RHZ was specifically instructed to assess Gross Development Value (‘GDV’) when they should have utilised market value as the basis of assessment.

(iii) RHZ conducted its assessment based on an inappropriate date of assessment. RHZ failed to justify the reason for using nine months after each date of approval of the DO to assess damages. RHZ took the differences in GDV S/N JWhQvpBvbky2K26cxhenkA between two separate dates of assessment without justification and this results in an inaccurate assessment which does not account for the dynamics of the property market.

(iv) The Residual Method of Valuation adopted by RHZ is not the method as prescribed by accepted valuation standards and does not comply with the Malaysian Valuation Standards. The Residual Method of Valuation used the historical land cost of the Subject Land. This leads to an overinflated and inaccurate valuation.

The 7% discount rate applied to RHZ’s Residual Method of Valuation is too low. Adopting a lower discount rate leads to an overinflated assessment of the Plaintiff’s GDP. In contrast, PwC independently researched third-party analyst reports and found that the discount rate adopted by RHZ should be higher in the range of 9 - 12%. KJSB adopted a discount rate of 10% in its assessment of market value by the Discounted Cash Flow Methodology.

(vi) With regards to RHZ’s estimation of the Plaintiff’s GDV, Sunway Velocity is not the most appropriate comparable as there are many dissimilarities between Sunway Velocity and the Plaintiff’s planned development. This led to an inflated input of GDV, which in turn caused an overstated assessment of the GDP. S/N JWhQvpBvbky2K26cxhenkA

(vii) RHZ’s assessment is unreliable and unworthy of credit as they failed to conduct secondary cross-check methods to their valuation and to provide cogent reasons for their assessment. PW5’s evidence lacks independence and should be treated with caution in assessing the weight to be attached to his evidence.

As against PW6:

The documents and information relied on by FHMH is unreliable and inconsistent. FHMH adopted the Plaintiff’s pleaded claim at face value without properly verifying the underlying documents. FHMH baselessly attributed the reasons for the purchasers’ booking cancellations to the breach of the oral contract and this led to a misleading and unjustified assessment of the 1st Head of Claim.

(ii) FHMH adopted the wrong benchmark to verify the reasonableness of the 3rd Head of Claim. FHMH did not provide any cogent reasons for utilising the Employees’ Provident Fund (‘EPF’) dividend rates as the benchmark.

(iii) FHMH made baseless assumptions in their reports. In particular, they claimed that the projected ridership data illustrates that the Plaintiff’s development would enjoy higher foot traffic and receive higher economic gains. S/N JWhQvpBvbky2K26cxhenkA However, they failed to account for published actual ridership data and actual consumer behaviour.

(iv) FHMH essentially adopted RHZ’s Report and the Plaintiff’s pleaded claims wholesale. FHMH failed to conduct an independent assessment of the Plaintiff’s claim for losses and damages. [233] Mr. M. Nagarajah submitted that the evidence by the Defendant’s experts should be accepted or given significant weight in assisting the Court to assess the damages in the 2nd Tranche Trial. The grounds in support of this submission are summarised as follows:

In respect of DW8: DW8 has more than 40 years of experience in land and real estate valuation and he holds office in various professional valuation associations. He possesses the relevant knowledge and experience for land valuations and is qualified to assess the market value of land in the instant proceedings. He has acted independently in his capacity as an expert witness. KJSB’s Report provides cogent justifications for their findings and assessment and includes a secondary cross-check method to ensure the integrity and credibility of the assessment.

In respect of DW9: DW9 is an experienced and highly educated business valuer. He has performed numerous valuations of property development business in Malaysia on a fair value or market value basis and his past experience includes, amongst others, reviewing and critiquing inputs from real property valuers for shareholder transactions, financial reporting and general business planning. PwC has conducted independent research to verify the findings of the other expert witnesses, where possible, including further cross-checks by analysing the equity internal rate of return (‘Equity IRR’) and market capitalisation of the Plaintiff to conclude that the damages claimed by the Plaintiff are overstated and inflated. [234] At the other end of the spectrum, the Plaintiff firstly invited the Court to invoke an adverse inference under s 114(g) of the EA 1950 due to the alleged unexplained or unjustifiable abandonment of Sr. Anthony Chua Kian Beng, a registered valuer and Director of KGV International Property Consultants (M) Sdn Bhd as a witness for the Defendant when his name appears in the Defendant’s List of Witnesses and he had affirmed an affidavit on 14.12.2020, which was filed as encl. 175. At the conclusion of the 1st Tranche Trial, the Defendant’s counsel confirmed that Sr. Anthony will be called as its expert witnesses and in the numerous case managements prior to the commencement of the 2nd Tranche Trial, the Defendant’s counsel did not disclose to the court about the abandonment or replacement of Sr. Anthony. Moreover, the Defendant S/N JWhQvpBvbky2K26cxhenkA did not express any disagreement to the contents of Sr. Anthony’s report in exhibit “CKB-1” or the merits of his valuation [235] After deliberating upon the parties’ submissions on this matter, I was not inclined to invoke an adverse inference against the Defendant for not calling Sr. Anthony as an expert witness on the following grounds:

although encl. 175 was filed, it was not marked as an ID document or an exhibit during the trial. Therefore, encl. 175 is not admissible as evidence and was not considered in the determination of the issues in the 2nd Tranche Trial;

it is well established in law that where the evidential burden to prove a fact in issue is not placed upon a party in a civil case, then an adverse inference cannot be drawn against that party under s 114(g) EA 1950 for its failure to lead evidence pertaining to that fact in issue (see Selvaduray v Chinniah [1939] MLJ 253 and Ramakrishnan Chelliah v Lotte Chemical Titan Holding Bhd & Anor [2020] 1 LNS 1701). In the instant case, the Plaintiff bears the burden to prove the losses and damages as pleaded. As such, an adverse inference should not be drawn against the Defendant who does not bear the burden of proof in this regard;

the Defendant has chosen not to rely on encl. 175 to establish its pleaded position because it subsequently tendered a more comprehensive expert land valuation report by KJSB. The Defendant has instructed Sr. Anthony and KJSB on a different S/N JWhQvpBvbky2K26cxhenkA basis whereby in respect of the former, the Terms of Reference was confined to the evaluation of the fairness and reasonableness of the RHZ Report due to the constraints of time and available documents at the material time whereas KJSB’s scope of works was broader. KJSB was tasked, among others, to determine the most appropriate basis for the determination of losses and damages and to provide inputs and substantiation that ought to reasonably make up the approach and methodology employed by RHZ in its report;

to invoke s 114(g) EA 1950, the Plaintiff must satisfy the Court that Sr. Anthony’s evidence which could be produced but was not produced is material to the case i.e. it is essential to the unfolding of the narrative of the case. It must be a deliberate withholding or suppression of evidence. Once that basic fact is proved, it will be presumed that the evidence is unfavourable to the party who withheld it [see Mohamad Nazarie bin Halidi v Public Prosecutor and another appeal [2019] 4 MLJ 371 (CA)]. However, Sr. Anthony’s evidence is opinion evidence, he is not a material witness of fact where his evidence is essential to the unfolding of the narrative of the case; and

the decisions of the High Court in Amanah International Finance Sdn Bhd v Jutakira Sdn Bhd [2010] 1 LNS 913, M Wealth Corridor Sdn Bhd v Chan Tse Yuen & Co [2018] 10 MLJ 1 and Tai Chin Yee v Tong San Chan Distributors Sdn Bhd [2021] 1 LNS 543 which were cited by the Plaintiff are distinguishable for S/N JWhQvpBvbky2K26cxhenkA the reasons as submitted by the Defendant, primarily the witnesses who were not called to testify in these cases were factual witnesses and in M Wealth Corridor, the document was marked as ID-D1 and the maker, who was a crucial witness, was not called. [236] Next, the Plaintiff contended that the evidence of the Defendant’s expert witnesses should be rejected for the following reasons:

As against DW8 DW8 is not independent. In cross-examination, DW8 said that KJSB did one valuation work for the Defendant and KJSB remained on the Defendant’s panel of valuers. DW8 also went beyond the scope of works and advocated for the Defendant on liability points, legal issues and other areas outside his scope of expertise. Further, DW8 contravened his duties of disclosure as his prior and ongoing working relationship and panel-ship with the Defendant were not disclosed in his curriculum vitae (‘CV’) and affidavit. He also failed to disclose that his valuation evidence, including his use of comparables, was rejected by the court in the land acquisition case of Kelana Megah Development Sdn Bhd v Pejabat Tanah Daerah Kota Tinggi [2017] 1 LNS 1803 (HC) and on appeal, the Court of Appeal expressed further disapprovals against his evidence (see Kelana Megah S/N JWhQvpBvbky2K26cxhenkA Development Sdn Bhd v Pentadbir Tanah Daerah, Kota Tinggi [2019] 1 MLJ 723). An expert has a duty to give notice promptly upon discovering the need to make any correction or qualification to the report. However, DW8 merely paid lip service to this duty, which is among the declarations he had made in his affidavit [see subparagraph 9(f), APD1(A)]. During cross-examination, after the Plaintiff’s counsel pointed out the errors in the comparables used in his report, DW8 admitted that he was aware of such errors two weeks prior to being questioned in court. DW8 additionally admitted during cross-examination that his comparison of using the March 2023 ridership data is misleading as the new Putrajaya Line was only fully commissioned on 16.3.2023. DW8 was not re-examined on his concessions regarding his close/ prior relationship with the Defendant and his failure to disclose the same, and his failure to make prompt corrections to his report. DW8 did not explain about the non-disclosure of various factors which rendered his comparison to be misleading and nor did he retract his admission that his statement is misleading.

As against DW9 Basically, the Plaintiff submitted that, if the Court agrees that DW8’s evidence should be rejected or not preferred, it follows that DW9’s evidence would collapse accordingly insofar as the valuation aspects are concerned. In this regard, DW9 conceded that he deferred valuation matters to the valuers. DW9’s opinion was challenged on several specific aspects of his report (see the Plaintiff’s main and reply submissions especially under each of the Plaintiff’s Heads of Claim). [237] The Plaintiff’s contention as to why the evidence by PW5 and PW6 should be preferred and accepted by the Court can be found in the parts where each of the Plaintiff’s Heads of Claim are addressed. [238] My findings in respect of the matters which were raised by the Plaintiff in respect of DW8’s evidence are as follows:

Permanent employment does not necessarily or automatically discredit the independence of a witness [see Brijnandan Singh Bhar @ Brijnandan Singh Bhar a/l Gurcharan Singh v BMW Malaysia Sdn Bhd & Ors [2019] 1 LNS 1737 (HC)]. RHZ itself was also an expert engaged by the Plaintiff as can be seen in Accolade Land Sdn Bhd v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2014] 1 LNS 505 (HC). This fact was similarly not disclosed in the RHZ Report.

Akin to DW8’s Expert Report which had touched on matters beyond his scope of work, PW6 too had made statements on the issue of causation (see paragraphs 213 and 214 above).

DW8 should have disclosed his prior working relationship and current panel-ship with the Defendant in his affidavit or CV and the fact that his valuation was rejected in a previous High Court case. He should also have taken immediate steps to inform about the errors in his report.

The fact that an expert is seen to be not independent or has failed to comply with the duty to disclose only adversely affects the weight of the expert’s testimony. The court must scrutinise the expert’s opinion with care and thereafter, the court may or may not attach weight to such evidence [see Kingtime International Ltd & Anor v Petrofac E&C Sdn Bhd [2018] 1 LNS 1658 (HC)]. In this case, I do not think that DW8’s evidence should be rendered as inadmissible, but rather, that his testimony and Expert Report must be carefully scrutinised in determining the appropriate weight to be attached to such evidence. In this respect, I find that DW9’s role in having reviewed the Expert Reports by RHZ, FHMH and KJSB and carrying out his own cross-checks is of much assistance. I do not accept the Plaintiff’s submission that, if DW8’s evidence is rejected or not preferred, it automatically follows that DW9’s evidence would collapse accordingly. This is because DW9’s evidence and PwC’s Report cover an analysis of the Expert Reports by RHZ and FHMH and surely these parts S/N JWhQvpBvbky2K26cxhenkA of the evidence are not affected by the alleged infirmities of DW8’s evidence. [239] Based on my understanding of the reports prepared by the expert witnesses and their explanations on the opinions stated therein, especially during cross-examination, I prefer to rely on DW9’s Expert Report in exhibit “PWC-1”, APD2(A) and his testimony in court for the following reasons:

In terms of expertise, all experts possess the necessary academic and professional qualifications and working experience to qualify as experts in their respective fields.

DW9 had assessed the Plaintiff’s claim for damages by reviewing the RHZ Report, FHMH Report and KJSB Report. In doing so, he has provided cogent justifications for the findings by PwC. DW9’s evidence was lucid, logical and rational. Among the four experts who testified in court, DW9’s testimony evoked the most confidence in terms of his neutrality and the observance of the duty as an expert. DW9 is a credible expert witness. ITBT 2: Whether, as a result of the Defendant's breach of the contract, the Plaintiff suffered loss and damage [240] Following from the findings of this Court regarding the terms of the oral contract, it is plain that the terms do not include the financial S/N JWhQvpBvbky2K26cxhenkA consequences or implications of a breach of contract by either party. As such, the Plaintiff submitted that the general principles of the common law will apply for assessment of damages [see SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 (FC)] apart from s 74 CA 1950. [241] Sub-s 74(1) CA 1950 has long been recognised as the statutory enunciation of the rule in Hadley v Baxendale (1854) 156 ER 145 as enunciated by Alderson B (see Toeh Kee Keong v Tambun Mining Co Ltd [1968] 1 MLJ 39 (FC)]. [242] The learned authors of Law of Contract, Volume Two (supra) observed at pp 1168 - 1169 that: “The rule enunciated by Alderson B was subsequently explained in Victoria (Laundry Windsor) Ltd v Newman Industries Ltd. This rule was considered and restated by the House of Lords in Koufos v C Czarnikow Ltd (The Heron II). In Victoria Laundry, Asquith LJ restated the rule propounded in Hadley v Baxendale as follows:

It is well stated that the governing purpose of damages is to put the party whose rights have been violated in the same position so far as money can do so, as if his rights had been observed: (Wertheim v Chicoutimi Pulp Co [1991] AC 301). This purpose, if relentlessly pursued, would provide him with a complete S/N JWhQvpBvbky2K26cxhenkA indemnity for all loss de facto resulting from a particular breach, however improbable, however unpredictable. This, in contract at least, is recognised as too harsh a rule.

Hence, in cases of breach of contract the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseeable as liable to result from the breach.

What was at that time reasonably so foreseeable depends on the knowledge then possessed by the parties or, at all events, by the party who later commits the breach.

For this purpose, knowledge ‘possessed’ is of two kinds: one imputed, the other actual. Everyone, as a reasonable person, is taken to know the ‘ordinary course of things’ and consequently what loss is liable to result from a breach of contract in that ordinary course. This is the subject matter of the ‘first-rule’ in Hadley v Baxendale, supra. But to this knowledge, which a contract-breaker is assumed to possess whether he actually possesses it or not, there may have to be added in a particular case knowledge which he actually possesses, of special circumstances outside the S/N JWhQvpBvbky2K26cxhenkA ‘ordinary course of things’, of such a kind that a breach in those special circumstances would be liable to cause more loss. Such a case attracts the operation of the ‘second rule’ so as to make additional loss also recoverable.

In order to make the contract-breaker liable under either rule it is not necessary that he should actually have asked himself what loss is liable to result from a breach. As has often been pointed out, parties at the time of contracting contemplate not the breach of the contract, but its performance. It suffices that, if he had considered the question, he would as a reasonable man have concluded that the loss in question was liable to result (see certain observations of Lord du Parcq in the recent case of Monarch Steamship Co Ltd v Karlshamns Oljefabriker (A/B) [1949] AC 196).

Nor, finally to make a particular loss recoverable, need it be proved that upon a given state of knowledge that defendant could, as a reasonable man, foresee that a breach must necessarily result in that loss. It is enough if he could foresee it was likely so to result. It is indeed enough to borrow from the language of Lord du Parcq in the same case, at page 158, if the loss (or some factor without which it would not have occurred) is a ‘serious possibility’ or a ‘real danger’. For short, we S/N JWhQvpBvbky2K26cxhenkA have used the word ‘liable’ to result. Possibly the colloquialism ‘on the cards’ indicates the shade of meaning with some approach to accuracy …”. (see too, the statement on “The governing principles” in Tan Sri Khoo Teck Puat (supra, at pp 787 - 788) where the court cited Lord Wright’s explanation in the case of Monarch Steamship Co Ltd as above quoted on the distinction between the first and second rules in Hadley v Baxendale as follows: “The distinction there drawn [viz in Hadley v Baxendale] is between damages arising naturally (which means in the normal course of things) and cases where there were special and extraordinary circumstances beyond the reasonable prevision of the parties: in the latter event it is laid down that the special facts must be communicated by and between the parties. The distinction between these types is usually described in English law as that between general and special damages; …” and the summary of Hadley v Baxendale by the Court of Appeal in Chung Vui Kong v K.K.I.P. Sdn Bhd [2020] 10 CLJ 337). [243] More recently, the Privy Council in Attorney General of the Virgin Islands v Global Water Associates Ltd [2021] AC 23 at pp 35 - 36 had S/N JWhQvpBvbky2K26cxhenkA reviewed the main authorities and summarised the position of the law in these words: “31 First, in principle the purpose of damages for breach of contract is to put the party whose rights have been breached in the same position, so far as money can do so, as if his or her rights had been observed. 32 But secondly, the party in a breach of contract is entitled to recover only such part of the loss actually resulting as was, at the time the contract was made, reasonably contemplated as liable to result from the breach. To be recoverable, the type of loss must have been reasonably contemplated as a serious possibility, in the sense discussed in paras 27 and 28 above. 33 Thirdly, what was reasonably contemplated depends upon the knowledge which the parties possessed at that time or, in any event, which the party, who later commits the breach, then possessed. 34 Fourthly, the test to be applied is an objective one. One asks what the defendant must be taken to have had in his or her contemplation rather than only what he or she actually contemplated. In other words, one assumes that the defendant at the time the contract was made had thought about the consequences of its breach. S/N JWhQvpBvbky2K26cxhenkA 35 Fifthly, the criterion for deciding what the defendant must be taken to have had in his or her contemplation as the result of a breach of their contract is a factual one.” (the above excerpt was also quoted in the judgments of the High Court (Kota Kinabalu) in Shim Yen Lin v Cedric Wong King Ti [2022] MLJU 2370 at paragraph 22 and Warisan Teguh Gemilang Bistari Sdn Bhd v. The Government of The State of Sabah [2023] 1 LNS 2119 at paragraph 52). [244] With regards to the particulars of loss and damage as pleaded by Plaintiff in the SoC, specifically the 1st, 2nd and 3rd Heads of Claim, the Court is of the considered view that the Plaintiff has not established that these losses naturally arose in the usual course of things from the breach or which the parties knew, when they made the contract to be likely to result from the breach of it as required under sub-s 74(1) CA

The Court is persuaded by the Defendant’s submission that these three Heads of Claim are too remote. The reasoning for this conclusion can be found in the analysis in respect of the 1st, 2nd and 3rd Heads of Claim in the subsequent part of this judgment. [245] Generally speaking, a loss of profit claim is not a loss resulting from the first rule in Hadley v Baxendale i.e. a loss that arose naturally in the usual course of things [see Eikobina (M) Sdn Bhd v Mensa Mercantile (Far East) Pte Ltd [1994] 1 MLJ 553 (SC)]. The purported loss of profits of the 2nd Development and the 3rd Development, and the difference between the profits of both these Developments are not S/N JWhQvpBvbky2K26cxhenkA natural consequences flowing from the breach of the term of the oral contract. Hence, the 1st, 2nd and 3rd Heads of Claim do not fall under the 1st Limb of sub-s 74(1) CA 1950 and are essentially a claim for indirect loss under 2nd Limb of the said provision. [246] The 2nd Limb of sub-s 74(1) CA 1950 is closely tied to the issue of knowledge. Actual knowledge must be shown, mere imprudence and carelessness is not knowledge. The parties must have knowledge of the loss or damage likely to result from the breach of contract [see Victoria Laundry (Windsor) Ld. v Newman Industries Ld.; Coulson & Co. Ld. (Third Parties) [1949] 2 KB 528, Percetakan Kolombong Ria Sdn Bhd v Wawasan Iktisas Sdn Bhd [2016] 6 MLJ 584 (CA) and Chung Vui Kong (supra)]. [247] The burden is on the Plaintiff to prove that the parties have knowledge of the loss or damage likely to result from the Defendant’s breach of the oral contract, in particular the Defendant’s knowledge of the loss of profit that the Plaintiff would incur based on what was shared by the Plaintiff or otherwise known at the time of the formation of the contract. [248] DW1 testified that the Defendant had no knowledge regarding the Plaintiff’s launch of Phase 1a, redesign of the 2nd Development, decision-making process towards abandonment of the 2nd Development and the 3rd Development (see WS(S2)-DW1 and his oral evidence). All that was established in so far as the Defendant’s knowledge of the Plaintiff and the development proposed on the Land as at the date of the oral contract were that the Plaintiff is a developer S/N JWhQvpBvbky2K26cxhenkA in possession of the Land and intends to develop a portion of the same and the Plaintiff entered into the oral contract with the view of, among others, securing access to the Putrajaya Line for its development. [249] As at the date of the oral contract, the Defendant did not have any knowledge of the type or development components of the planned development, intended development process, development financing, sale prices, marketing material and marketing strategy and type and extent of profits that the Plaintiff would potentially gain as a result of the adjacent Putrajaya Line and MRT station. [250] There is no evidence to show that the Plaintiff’s development under the 2nd Development was ongoing when the Prime Minister granted the final approval for the realignment of the Putrajaya Line in 2015. Then, with the sale of the Phase 2 Land to UEM, the 3rd Development is no longer in existence. [251] To sum up, there is no evidence during 2nd Tranche Trial to show that, on the balance of probabilities, the Defendant had actual knowledge of the abovementioned factors. Hence, there are no “special circumstances” that arise outside the usual course of things that would warrant granting damages for the 1st, 2nd and 3rd Heads of Claim under the 2nd Limb of sub-s 74(1) CA 1950. Additionally, there is no direct or indirect nexus between the Defendant’s breach and the Plaintiff’s claim for the loss of profits. The 1st, 2nd and 3rd Heads of Claim are too remote to fall under the 2nd Limb of sub- 74(1) CA 1950. S/N JWhQvpBvbky2K26cxhenkA - Assumption of responsibility [252] The Defendant submitted that, in the event the Court holds the view that the Plaintiff’s Heads of Claim are not too remote, then it is the Defendant’s contention in the alternative that the Defendant has not assumed responsibility for the Plaintiff’s loss of profits. [253] The Defendant’s argument is premised on the principle of “assumption of responsibility” which was apparently introduced by the House of Lords in the case of Transfield Shipping Inc v Mercator Shipping Inc [2008] 4 All ER 159 (“The Achilleas”), specifically in the speech by Lord Hoffmann, with whom Lord Hope of Craighead concurred. [254] But first, the facts of The Achilleas. In Sinnadurai’s Law of Contract (supra, at p 1172), The Achilleas was described as a case that involved the law relating to charterparty contracts and the facts are therefore more relevant to the law of charterparties and complicated. However, Baroness Hale of Richmond had simplified the facts in a creative way at p 187 as follows: “[88] My Lords, shipowners let out their ship for a period of five to seven months, to end no later than midnight on 2 May

The charterers notified the shipowners that the ship would be back no later than then. The shipowners therefore contracted to let the ship to new charterers for a period of about four to six months, promising that they could have the ship no later than 8 May 2004. The agreed price of hire was S/N JWhQvpBvbky2K26cxhenkA $39,500 a day. The ship was delayed on its last voyage and the owners did not get their ship back until 11 May 2004. The new charterers agreed to take the ship, but by then the market had fallen and they would only take it at a reduced price of $31,500 a day. Are the first charterers liable to pay only for the use of the ship for the number of days that they were late at the market rate then prevailing? Or are they liable to pay the difference between what the owners would have got from the new charter had the ship been returned in time and what the owners in fact got? [89] My Lords, this could be an examination question. Although the context is a specialised one, the answer has mainly to be found in the general principles to be derived from the well-known authorities to which your Lordships have all referred, principally Hadley v Baxendale (1854) 9 Exch 341, 156 ER 145, Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 1 All ER 997, [1949] 2 KB 528 and, above all, The Heron II, Koufos v C Czarnikow Ltd [1967] 3 All ER 686, [1969] 1 AC 350. There is no obviously right answer: two very experienced commercial judges have reached one answer, your Lordships have reached another. There is no obviously just answer: the charterers’ default undoubtedly caused the owners’ loss, but a loss for which no one has ever had to pay before. The examiners would surely have given first class marks to all the judges who have answered the question so far.”. S/N JWhQvpBvbky2K26cxhenkA [255] In paragraph 9 of the judgment at p 165, Lord Hoffmann opined that the case “… raises a fundamental point of principle in the law of contractual damages: is the rule that a party may recover losses which were foreseeable (not unlikely) an external rule of law, imposed upon the parties to every contract in default of express provision to the contrary, or is it a prima facie assumption about what the parties may be taken to have intended, no doubt applicable in the great majority of cases but capable of rebuttal in cases in which the context, surrounding circumstances or general understanding in the relevant market shows that a party would not reasonably have been regarded as assuming responsibility for such losses?”. [256] Lord Hoffmann is said to have introduced a new legal criterion to the existing law, namely, whether the defendant concerned had assumed responsibility for the loss which had occurred as a result of its breach of contract, in the following parts of the judgment: “[21] It is generally accepted that a contracting party will be liable for damages for losses which are unforeseeably large, if loss of that type or kind fell within one or other of the rules in Hadley v Baxendale: see, for example, Staughton J in Transworld Oil Ltd v North Bay Shipping Corp, The Rio Claro [1987] 2 Lloyd's Rep 173 at 175 and Jackson v Royal Bank of

Scotland plc [2005] UKHL 3, [2005] 2 All ER 71, [2005] 1 WLR That is generally an inclusive principle: if losses of that type are foreseeable, damages will include compensation for those losses, however large. But the South Australia Asset S/N JWhQvpBvbky2K26cxhenkA Management Corp case and Mulvenna v Royal Bank of Scotland plc shows that it may also be an exclusive principle and that a party may not be liable for foreseeable losses because they are not of the type or kind for which he can be treated as having assumed responsibility. [22] What is the basis for deciding whether loss is of the same type or a different type? It is not a question of Platonist metaphysics. The distinction must rest upon some principle of the law of contract. In my opinion, the only rational basis for the distinction is that it reflects what would reasonably have been regarded by the contracting party as significant for the purposes of the risk he was undertaking. … … [25] The owners submit that the question of whether the damage is too remote is a question of fact on which the arbitrators have found in their favour. It is true that the question of whether the damage was foreseeable is a question of fact: see Monarch Steamship Co Ltd v A/B Karlshamns Oljefabriker [1949] 1 All ER 1, [1949] AC 196. But the question of whether a given type of loss is one for which a party assumed contractual responsibility involves the interpretation of the contract as a whole against its commercial background, and this, like all questions of interpretation, is a question of law.” S/N JWhQvpBvbky2K26cxhenkA (emphasis added). [257] In addition, Lord Hoffman expressed the following views: “[12] It seems to me logical to found liability for damages upon the intention of the parties (objectively ascertained) because all contractual liability is voluntarily undertaken. It must be in principle wrong to hold someone liable for risks for which the people entering into such a contract in their particular market, would not reasonably be considered to have undertaken. [13] The view which the parties take of the responsibilities and risks they are undertaking will determine the other terms of the contract and in particular the price paid. Anyone asked to assume a large and unpredictable risk will require some premium in exchange. A rule of law which imposes liability upon a party for a risk which he reasonably thought was excluded gives the other party something for nothing. And as Willes J said in British Columbia and Vancouver's Island Spar Lumber and Saw Mill Co Ltd v Nettleship (1868) LR 3 CP 499 at 508, cf [1861–73] All ER Rep 339 at 341: ‘I am disposed to take the narrow view, that one of two contracting parties ought not to be allowed to obtain an advantage which he has not paid for.’ … S/N JWhQvpBvbky2K26cxhenkA [24] The findings of the majority arbitrators shows that they considered their decision to be contrary to what would have been the expectations of the parties, but dictated by the rules in Hadley v Baxendale (1854) 9 Exch 341, 156 ER 145 as explained in The Heron II [1967] 3 All ER 686, [1969] 1 AC

But in my opinion these rules are not so inflexible; they are intended to give effect to the presumed intentions of the parties and not to contradict them.”. [258] Lord Hope of Craighead briefly discussed the approaches taken by the majority arbitrators and the minority arbitrator before stating that: “[30] Both approaches share a common, and as it seems to me an entirely orthodox, starting point. They ask what should fairly and reasonably be regarded as having been in the contemplation of the parties at the time when the contract was entered into. … The critical question however is whether the parties must be assumed to have contracted with each other on the basis that the charterers were assuming responsibility for the consequences of that event. It is at this point that the two approaches part company. [31] Assumption of responsibility, which forms the basis of the law of remoteness of damage in contract, is determined by more than what at the time of the contract S/N JWhQvpBvbky2K26cxhenkA was reasonably foreseeable. … In contract, it is different and, said Lord Reid [1967] 3 All ER 686 at 692, [1969] 1 AC 350 at 386), there is good reason for the difference: ‘In contract, if one party wishes to protect himself against a risk which to the other party would appear unusual, he can direct the other party’s attention to it before the contract is made, and I need not stop to consider in what circumstances the other party will then be held to have accepted responsibility in that event.’ [32] The point that Lord Reid was making here was that the more unusual the consequence, the more likely it is that provision will be made for it in the contract if it is to result in liability. Account may be taken of it in the rates that are provided for in the contract. Or terms may be written into the contract to provide for the extent, if any, of the liability. That is the way that commercial contracts are entered into. As Blackburn J said in Cory v Thames Ironworks and Shipbuilding Co Ltd (1868) LR 3 QB 181 at 190-191, [1861-73] All ER Rep 597 at 599, if the damage were exceptional and unnatural it would be hard on a party to be made liable for it because, had he known what the consequences would be, he would probably have stipulated for more time or made greater exertions if he had known the extreme mischief that would follow from the non-fulfilment of his contract. The fact that the loss was foreseeable—the S/N JWhQvpBvbky2K26cxhenkA kind of result that the parties would have had in mind, as the majority arbitrators put it—is not the test. Greater precision is needed than that. The question is whether the loss was a type of loss for which the party can reasonably be assumed to have assumed responsibility. … [36] In my opinion the commercial considerations point the other way. This was the crucial point in the case which led the minority arbitrator to dissent from the majority. As he pointed out, a party cannot be expected to assume responsibility for something that he cannot control and, because he does not know anything about it, cannot quantify. It is not enough for him to know in general and on open-ended terms that there is likely to be a follow-on fixture. This was the error which lies at the heart of the decision of the majority. What he needs is some information that will enable him to assess the extent of any liability. The policy of the law is that effect should be given to the presumed intention of the parties. That is why the damages that are recoverable for breach of contract are limited to what happens in ordinary circumstances—in the great multitude of cases, as Alderson B put it in Hadley v Baxendale—where an assumption of responsibility can be presumed, or what arises from special circumstances known to or communicated to the party who is in breach at the time of entering into the S/N JWhQvpBvbky2K26cxhenkA contract which because he knew about he can be expected to provide for. This is a principle of general application. We are dealing in this case with a highly specialised area of commercial law. But the principle by which the issue must be resolved is that which applies in the law of contract generally.” (emphasis added). [259] The Plaintiff took the position that The Achilleas did not introduce a new and additional requirement of “assumption of responsibility” beyond the Hadley v Baxendale rule by relying solely on the speech by Baroness Hale as reproduced below that it is just another way of describing the requirement of “remoteness”: “[93] … it adds an interesting but novel dimension to the way in which the question of remoteness of damage in contract is to be answered, a dimension which does not clearly emerge from the classic authorities. There is scarcely a hint of it in The Heron II, apart perhaps from Lord Reid’s reference to the loss being ‘sufficiently likely to result from the breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation’ … in the context of the ‘second limb’ of Hadley v Baxendale where knowledge of an unusual risk is posited … I am not immediately attracted to the idea of introducing into the law of contract the concept of the scope of duty which S/N JWhQvpBvbky2K26cxhenkA has perforce had to be developed in the law of negligence. The rule in Hadley v Baxendale asks what the parties must be taken to have had in their contemplation, rather than what they actually had in their contemplation, but the criterion by which this is judged is a factual one. Questions of assumption of risk depend upon a wider range of factors and value judgments. … Although its result in this case may be to bring about certainty and clarity in this particular market, such an imposed limit on liability could easily be at the expense of justice in some future case. It could also introduce much room for argument in other contractual contexts. Therefore, if this appeal is to be allowed, as to which I continue to have doubts, I would prefer it to be allowed on the narrower ground identified by Lord Rodger, leaving the wider ground to be fully explored in another case and another context.”. [260] The decision in The Achilleas was unanimous that the appeal should be allowed. However, the learned law lords arrived at this decision by different routes. Their reasonings have sparked much interest and debate and has been the subject of discussions, apart from reference being made to The Achilleas in general, in subsequent English cases (see Siemens Building Technologies FE Ltd v Supershield Ltd (2010) [2010] EWCA Civ 7, Sylvia Shipping Co Ltd v Progress Bulk Carriers Ltd [2010] EWHC 542 (Comm), John Grimes Partnership Ltd v Gubbins (2013) [2013] EWCA Civ 37, Wellesley Partners LLP v Withers LLP [2015] EWCA Civ 1146, Manchester Building Society v Grant Thornton UK LLP [2021] 4 All ER 1 and the cases mentioned by S/N JWhQvpBvbky2K26cxhenkA the Court of Appeal in MFM Restaurants Pte Ltd and another v Fish & Co Restaurants Pte Ltd and another appeal [2011] 1 SLR 150 in paragraphs 121 - 128 at pp 205 - 210) and in Australia (see paragraphs 129 - 133 at pp 210 - 211 in MFM Restaurants (supra) where reference was made to Russell v Trustees of Roman Catholic Church for Archdiocese of Sydney (2008) 72 NSWLR 559, Evans & Associates v European Bank Ltd (2009) 255 ALR 171, Mann and another v Paterson Constructions Pty Ltd [2020] 2 LRC 23 and Moore v Scenic Tours Pty Ltd [2020] HCA 17), Hong Kong (see De Monsa Investments Ltd v Richly Bright International Ltd, 823 Investment Ltd [2015] 3 HKC 583) and Singapore [see the extensive analysis by Andrew Phang Boon Leong JA in delivering the judgment of the Court in MFM Restaurants in paragraphs 72 - 139 at pp 179 - 214 (including the difficulties faced with The Achilleas), Out of the Box Pte Ltd v Wanin Industries Pte Ltd [2013] 2 SLR 363 (CA) and Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] SGCA 43 (CA)]. [261] In Hong Kong, the Court of Final Appeal held in De Monsa Investments (supra, at p 597) that: “41. With respect, the analysis in The Achilleas regarding the concept of assumption of responsibility is compelling. It represents a logical extension of the rule in Hadley v Baxendale, building upon Lord Reid’s formulation mentioned above. Being firmly grounded in the contractual principles governing the relationship between the parties, the assumption of responsibility concept provides a principled S/N JWhQvpBvbky2K26cxhenkA basis for distinguishing between losses which are or are not too remote. We unhesitatingly adopt it as representing the law in Hong Kong.”. [262] In Singapore, the law was made clear in MFM Restaurants (supra, at p 214) that: “140 Consistent with the analysis set out above, we take this opportunity to confirm the approach relating to remoteness of damage in the law of contract as set out in the decision of this court in Robertson Quay ([57] supra) (which affirmed the principles laid down in Hadley). We also take this opportunity to state that the approach advocated by Lord Hoffmann in The Achilleas is not the law in Singapore, except to the extent that the learned law lord’s reliance on the concept of assumption of responsibility by the defendant is already incorporated or embodied in both limbs in Hadley itself.” (emphasis added). In Out of the Box (supra), Sundaresh Menon CJ opined at pp 378 and 382 that: “36 When one turns to examine the question of remoteness, in our view, it simply does not help to frame the question as one concerning the contractual assumption of risk or the true S/N JWhQvpBvbky2K26cxhenkA interpretation of the contract because that is an altogether separate inquiry which generally does not bear directly on the question of remoteness (except to the extent that it might constitute a factor which is to be taken into consideration in ascertaining whether – especially pursuant to the second limb of the rule in Hadley v Baxendale ([14] supra) – the damage is indeed too remote based on the relevant facts). … 47 A straightforward analytical framework for questions of remoteness of damage would help ascertain in most cases the extent to which the defendant can fairly be held liable for losses that are causally connected to his breach. Such a framework would engender the following inquiries:

First, what are the specific damages that have been claimed?

Second, what are the facts that would have had a bearing on whether these damages would have been within the reasonable contemplation of the parties had they considered this at the time of the contract?

Third, what are the facts that have been pleaded and proved either to have in fact been known or to be taken to have been known by the defendant at the time of the contract?

Fourth, what are the circumstances in which those facts were brought home to the defendant?

Finally, in the light of the defendant’s knowledge and the circumstances in which that knowledge arose, would the damages in question have been considered by a reasonable person in the situation of the defendant at the time of the contract to be foreseeable as a not unlikely consequence that he should be liable for?” (emphasis added). [263] In Malaysia, the Court of Appeal in Lee Tiow Kee & Anor v Ng Geok Hwa [2017] 4 MLJ 92 at p 100 referred to The Achilleas in this passage: “[20] There were also many other decisions which provide the loss that is reasonably foreseeable by a party in breach is the knowledge at the time the contract is entered into, see Hadley v Baxendale (1854) 9 Exch 341, Czarnikow v Koufos, The Heron II [1969] 1 AC 61 at p 350 and Transfield Shipping Inc v Mercator Shipping Inc [2009] 1 AC 61.”. S/N JWhQvpBvbky2K26cxhenkA The High Court in Critical System Specialist Sdn Bhd v. CLLS Power System Sdn Bhd [2019] 6 CLJ 658 cited the oft-quoted legal principles as expounded by Asquith LJ in Victoria Laundry v. Newman Industries (supra) before expressing the observation at p 666 that: “[29] This dicta of Asquith LJ was subsequently the subject of thorough examination in the House of Lords case of The Heron II, and revisited in its more recent subsequent decision in The Archilleas. It will not be necessary for the purposes of the present case to delve in detail to these subsequent decisions. It will suffice for me to make the following observations: first, the courts in subsequent cases have continued to apply the classical formulation of Asquith LJ in Victoria Laundry when considering the question of whether a damage claimed was too remote. Second, the reformulated test advanced by Lord Hope and Lord Hoffman in The Archilleas (in which the question to be decided was whether the contracting party had assumed responsibility for the loss) would appear to be contrary to the express words of s. 74(1) of the Malaysian Contracts Act 1950.”. The Achilleas came up for consideration in the context of Leave Question (ii) in Ng Chin Tai (trading in the name and style of Lean Seh Fishery) & Anor v Ananda Kumar a/l Krishnan [2020] 1 MLJ 16 i.e. “Whether in determining the quantum of damages payable for breach of contract for the payment of a commission in perpetuity is to be assessed in accordance with the decisions in Hadley v Baxendale

9 Exch 341; [1843–60] All ER Rep 461 and Transfield Shipping S/N JWhQvpBvbky2K26cxhenkA Inc v Mercator Shipping Inc [2009] AC 61 and upon an application of s 74 of the Contracts Act 1950 or whether it should be determined upon a multiplier and multiplicand basis?”. The apex court held, among others, that: “[70] In this regard it is settled law that commission contracts, such as the contract in the present case are contracts where there are ‘claims for an agreed sum’ (see Chitty on Contracts, 28th Ed) (at paras 32 - 134)). … [74] We therefore agree with the plaintiff’s submission that, based on the distinction between ‘claims for an agreed sum’ and ‘claims for damages’ (see paras 63 and 65), the rules on remoteness of damage and mitigation of loss as enunciated in Hadley v Baxendale, Transfield Shipping and s 74 of the Contracts Act 1950, do not apply in a breach of commission contract where there is an agreed sum stipulated.”. As submitted by the Defendant, the Federal Court decided that the principle of assumption of responsibility and the principle of remoteness of damages and losses were not applicable because the impugned commission contract already contained an agreed sum in the event of breach. Hence, there was no necessity for the Court to embark on a detailed analysis of The Achilleas and the numerous views which have been expressed about the decision by the House of S/N JWhQvpBvbky2K26cxhenkA Lords. In the circumstances, the Federal Court did not outrightly reject the principle of assumption of responsibility. This Court is therefore not bound by the doctrine of stare decisis as the instant case does not involve a commission contract, but rather an oral contract where there was never any agreed sum of losses. [264] In the legal article “The Achilleas: Custom and Practice or Foreseeability?” by L. Hoffmann, Edinburgh Law Review, 2010, Lord Hoffman explicated the orthodox approach in relation to the foreseeability test and the difficulties with this approach which is said to produce “ a high degree of indeterminacy because it relies on only two concepts; kind of loss and degree of probability” and that “In real life the single concept of foreseeability is an inadequate instrument for explaining all the cases.”. It was advocated that “… the time has come to look for a broader principle which an explain not only the, so to speak, run of the mill cases like Hadley v Baxendale but also the more puzzling cases like the Achilleas.”. The “broader principle” involves an examination of the nature of the obligation assumed by the contracting party and asking the question “… for what kind of loss would he reasonably be taken to have accepted liability? Foreseeability will play a part … in answering that question. But treating it as the only tool with which the question can be answered is bound to lead to opaque reasoning and invisible distinctions.”. [265] The learned counsel for the Defendant avidly submitted that the United Kingdom and Hong Kong have accepted the principle of assumption of responsibility as an extension of their laws of remoteness of S/N JWhQvpBvbky2K26cxhenkA contractual damages and this is an appropriate case for Malaysia to follow suit as the contract and commercial background are such that the standard rules of remoteness would not reflect the expectation or intention reasonably to be imputed to the parties. [266] For the reasons as submitted by the Defendant, I am inclined to agree that even if the Plaintiff’s alleged losses fulfilled the requirements of sub-s 74(1) CA 1950, the Defendant could not have assumed responsibility for the losses claimed under the 1st, 2nd and 3rd Heads of Claim. In view of the background facts leading to the oral contract as discussed earlier, the instant case is one where it is suited to consider the question for what kind of loss would the Defendant reasonably be taken to have accepted liability. Even if I am found to have erred in this regard and following from the Plaintiff’s short submission on “assumption of responsibility”, the question would still be relevant as one of the factors in determining the issue of remoteness of damages. [267] Therefore, whether taken as a “broader principle” or one falling within the enquiry as to whether the damages claimed by the Plaintiff are too remote under s 74 CA 1950, I find that the outcome remains in the Defendant’s favour because –

the Defendant did not enter into the oral contract for commercial purposes or to generate profit out of the oral contract. The consideration received by the Defendant by virtue of the oral contract is that it would resolve the sticky issues relating to the Acquisition Lands and this would enable the Defendant to S/N JWhQvpBvbky2K26cxhenkA proceed to seek approval of the Railway Scheme in line with its purpose of providing public infrastructure for the benefit of the people or community. The Defendant did not receive any form of premium in exchange to build the MRT Station; and

the Defendant cannot be said to have assumed responsibility for the Plaintiff’s expectation loss as per the 1st, 2nd and 3rd Heads of Claim. Even if the Defendant had knowledge of these losses or if any of these losses were within the Defendant’s reasonable contemplation, the Defendant did not assume responsibility for that type of loss. The question of whether a given type of loss is one which a party assumed contractual responsibility for involves the interpretation of the contract as a whole against its commercial background. This is a question of law. Attributing this type of loss to the Defendant, a government-owned entity incorporated under the Ministry of Finance Incorporated to implement the Government’s initiatives for the development of public transportation infrastructure for the benefit of the public, would be difficult to reconcile with public policy. If the Defendant is held responsible for this type of loss, all public infrastructure companies are at risk of being held liable for similar losses. It could lead to a floodgate of litigation against public infrastructure companies. A finding against the Defendant would be detrimental to the public, who are the ultimate beneficiaries of public infrastructure. S/N JWhQvpBvbky2K26cxhenkA ITBT 2: Whether the Plaintiff suffered loss and damage in the total sum of RM303,534,216.00 or any part thereof (‘Plaintiff's Loss’). If yes, whether the Defendant is liable to compensate the Plaintiff's Loss [268] In this section, I will deal with each head of the Plaintiff’s claim in brief and provide my reasons in allowing only the 4th Head of Claim. [269] Before proceeding further, there are two fundamental issues surrounding the Plaintiff’s claims which were addressed by PwC in their Report, namely, that –

the Plaintiff’s claims are speculative in nature viz. “5.1 The bulk of the Plaintiff’s claims of loss of profits under the second head of damage …, is based on the doctrine of loss of chance, or loss of opportunity; to develop and profit from the 2nd Development ‘but for’ the breach of Contract. However, the FH Report goes beyond assuming the Contract was performed by MRT Corp, and further speculates on hypothetical outcomes in a ‘counterfactual’ scenario of the past that Accolade would have been able to inter alia successfully execute the development, sales, marketing and other efforts of the entire 2nd Development and enjoy the profits from doing so, all of which have S/N JWhQvpBvbky2K26cxhenkA nothing to do with MRT Corp nor the breach of Contract.

5.2 The assessment of cash flows in a counterfactual scenario is necessarily speculative and involves subjective judgement. The Plaintiff’s calculation of damages under this approach involves the measurement of differential in future profits that ‘would have been’ received from contemplated scenarios that did not actually take place, with the expectation or theoretical possibilities of making profit. Although presented to have a ‘scientific’ look, it is nothing more than hypothetical speculation, with no factual evidence whatsoever to support the projections or the assumptions that underlie them.

5.3 If Accolade were to be compensated under this principle of damages, Accolade would potentially be unjustly enriched at MRT Corp’s expense, as it would have received all of the expected profits of the development without being exposed to any of the risks that a typical property developer would have to endure (e.g. delays in construction, competition from other developers and surrounding projects, and unfavourable market conditions in the property sector).”; and

potential double recovery because – “5.4 … Accolade has sold the land meant for Phase 2 of its development to UEM Sunrise for RM197 million in 2021. Even if one were to accept the Plaintiff and/or FH Report’s speculative ‘counterfactual’ scenario above, the basis of their claims of loss of profits is categorically flawed for this reason – that the very land they claim could have, and would have been developed into a mixed housing and commercial development project and sold for higher gains ‘but for’ the breach of Contract, was in actual fact sold to UEM Sunrise Berhad for RM197 million on 4 June 2021 at a profit.

5.5 Based on the discussion above, we note that Accolade’s claim that there was “no alternative but to abandon the 2nd Development and to redesign a new development in order to mitigate its potential loses following the Realignment” is flawed and disproved, as the sale of land is clearly the alternative action chosen by Accolade in mitigating its losses suffered as a result of the breach of Contract.…”. S/N JWhQvpBvbky2K26cxhenkA [270] After scrutinising all the Experts’ Reports in this case, there is nothing to persuade me from taking a contrary view on the above-mentioned fundamental issues, which are the overarching considerations in PwC’s Report, and are valid and sound. 1st Claim: Phase 1 - The Annex (Serviced Apartments) Losses resulting from the reduction of prices in the 2nd Development as compared with the 3rd Development due to removal of the MRT station Original Gross Sales Value 205,970,000.00 Discount 10% 20,597,000.00 _____________ Original Nett Sales Value 185,373,000.00 New Net Sales 155,507,350.00 Differential Sales Value (All other costs remain the same) 29,865,650.00 (subsequently reduced to 28,835,668) [271] Under the 1st Head of Claim, the Plaintiff sought to claim for losses resulting from the reduction of the sale prices of The Annex in the 2nd S/N JWhQvpBvbky2K26cxhenkA Development as compared with the 3rd Development resulting from the removal of the MRT station for the Putrajaya Line. [272] The Annex comprises a 27-storey building with 258 stratified serviced apartment units with car park as accessory parcels. It is housed under Phase 1 of the 2nd DO. [273] The Plaintiff posited that in reliance of the oral contract, it heavily marketed its project under the 2nd DO, including The Annex, as a development with “2 MRT LINES IN 1 HUB”. The original selling prices of The Annex were set with the oral contract in mind and when the MRT station was not built, the Plaintiff had to reduce the selling prices of The Annex to reflect the new reality and improve its marketability. [274] The Plaintiff pleaded that the removal of the MRT station caused the selling prices of The Annex to be reduced by RM29,865,650, which is the differential sum between its original prices and the reduced prices (on the basis of New Nett Sales). PW6 agreed with the Original Nett Sales of RM185,373,000, but opined that the New Nett Sales should be a higher sum of RM156,537,332. Therefore, PW6 concluded that the Plaintiff’s losses under the 1st Head Claim should be a reduced sum of RM28,835,668. [275] PwC had provided an independent assessment of the Plaintiff’s claims as presented in the reports by FHMH and RZH. In his Witness Statement, DW9 stated that he had carried out his own research on market information for the purposes of his independent analysis. S/N JWhQvpBvbky2K26cxhenkA [276] In its Written Submission, the Plaintiff’s counsel had tabulated the Defendant’s challenge against the 1st Head Claim and the Plaintiff’s response as follows: MRTC’s Challenge [WSDW9, Q&A 7, p 8] Accolade’s Response 1. The Annex is still a TOD. As supported by the comparable like Sunway Velocity, a development with 2 lines is better priced. [See: Sections E/4, E/5]

Disregarded other causes for reduction of the selling prices. The removal of the Agreed Station caused the selling prices reduction. [See: Section D/2]

Comparable properties’ prices do not support premium claimed by Accolade. As supported by the comparable like Sunway Velocity, a development with 2 lines is better priced. [See: Sections E/4, E/5]

Limited evidence of 2015 selling prices. Relevant documentary and oral evidence were adduced. [See: Section D/1/1]

Inconsistencies between calculations and evidence. There are no material or unexplained inconsistencies. [See: Section D/1] [277] I have duly considered the reports and testimonies by the experts and the submissions by the parties, and I accept PwC’s Report and DW9’s evidence on the following matters:

The Annex is still a transit-oriented development (‘TOD’) even without the MRT station for the Putrajaya Line as it has easy connectivity and accessibility within 5 minutes walking distance to the existing Taman Connaught MRT station on the Kajang Line. This is supported by statement made by UEM that “The proximity of the land to the Taman Connaught MRT provides UEM Sunrise an excellent opportunity to explore a TOD that meets the demands of young urban professionals working in the city and complemented by a lifestyle offering in attractively priced residences.” (see Appendix 1 in PwC’s Report). However, in terms of pricing, PW5 said that “… if you have one station with two lines, the economic sense is there will be more footfalls. … So, it will definitely increase the value of the properties surrounding to the station as compared to a land with just one MRT line. … the two lines will definitely have a better value. …”. PW5 also testified that there are no comparable developments in Cheras with two MRT lines and the closest is Sunway Velocity which has one LRT line and one MRT line. S/N JWhQvpBvbky2K26cxhenkA Whilst I accept PW5’s opinion that, generally, the value of a property which has two lines would be better, however, in this case, using Sunway Velocity as a “crosscheck” would lead to an overestimation of values of the Phase 1b(ii) service apartments. This is because, Sunway Velocity is not a suitable comparison by reason of the size of the development which includes a mall, hotel, office and service apartments, medical centre and college and it is nearer to the Kuala Lumpur city centre. In this respect, KJSB’s opinion that You City Residences@You City is a better comparable as it is located in the vicinity of Phase 1b(ii) and is 500 metres from MRT Kajang Line Taman Suntex Station is preferred. Consequently, the average selling prices of the remaining comparable will fall between RM525 and RM675 psf as compared to RM780 and RM806 psf as opined by RHZ. Significantly, the Plaintiff has decided not to proceed with the 3rd Development and has sold the land meant for Phase 2 of the development to UEM for RM197 million. PwC took the view that the Plaintiff’s allegation of The Annex being less attractive without having two MRT lines and direct connectivity to the planned retail mall (Phase 2 of the 2nd Development) and the MRT station for the Putrajaya Line is misleading. The planning for The Annex remained unchanged across the 2nd Development and the 3rd Development, other than for some changes in the layout of the units. S/N JWhQvpBvbky2K26cxhenkA 1 .

FHMH took the view that the Defendant’s decision to remove the MRT station for the Putrajaya Line from the Acquisition Lands had caused the delay in the Plaintiff’s development of the land and subjected it to unfavourable changes in the supply and demand landscape of the property market between 2015 to 2018, which the Plaintiff claimed had an adverse effect on property prices for developers. The Plaintiff asserted that it had no other alternative but to reduce the selling prices of The Annex to improve its marketability due to adverse changes in the property market outlook around 2017 to 2018, as compared to 2015. However, as commented in the PwC Report, there are other factors that could have contributed to movements in selling prices of The Annex between 2015 and 2018. The trends in the industry at the material time show that planned developments surrounding the MRT lines were deferred or delayed due to unfavorable market conditions, for example the Kwasa Damansara Township. It is therefore not uncommon for developments to face delays under such circumstances. Furthermore, the FHMH Report itself alludes to evidence of the oversupply and overhang issues encountered in the property market starting in 2016, which coincides with the soft launch of The Annex. The official launch of The Annex would have happened during a period when the property overhang issue was on the rise and continued to affect the selling prices of properties S/N JWhQvpBvbky2K26cxhenkA . regardless of whether there was a breach of contract by the Defendant.

PwC had assessed the reasonableness of the computation in the FHMH Report and based on their review of that Report together with the RHZ Report and the KJSB Report, PwC discovered that the alleged original selling price psf of The Annex in 2015 as quoted in the FHMH Report (i.e. RM780 psf to RM808 psf) was higher than, and out of range from, the market. In addition, based on transaction data of properties within the vicinity of Cheras in RHZ’s market assessment report, it was noted that the average prices of condominiums within 400 metres from an LRT or MRT station before 2015 was RM521 psf, and the average price after 2016 was higher at RM562 psf. PwC opined that the Plaintiff’s claim of a decline in the selling price of The Annex from RM780 psf to RM808 psf in 2015, to RM575 psf to RM641 psf (approximately 21% to 26% decrease) when the Plaintiff relaunched under the 3rd Development in 2017 is unsubstantiated.

The offer price from the soft launch of The Annex for interested buyers may not be appropriate as a benchmark for the selling price of The Annex in 2015 as the soft launch was conducted by way of private invitations and appointments. Only a small group of buyers would have been captured and this may not be representative of the wider group when the development is S/N JWhQvpBvbky2K26cxhenkA formally launched and open for sale to the public. The FHMH Report has relied upon the letters of offer and booking forms for a mere 23 out of 258 units of serviced apartment units to establish the selling prices of The Annex in 2015, a coverage of less than 9%. The Plaintiff had not entered into S&P with any of the interested buyers and this raises doubts as to the validity of the offer prices as stated in the booking forms.

PwC also highlighted several inconsistencies which they had observed in their review of the underlying documents supporting the assessments made in the FHMH Report, namely –

inconsistencies in net sales value between the Advertising Permit and Developer’s Licence (‘APDL’) application under the 2nd Development and FHMH's computation;

(ii) lack of supporting documents for cancellations; and

(iii) adjustments made to the 3rd Development on marketability of units with the largest layouts with lower demand compared with other smaller units not reflected under the 2nd Development. [278] I further accept the Defendant’s submissions that: S/N JWhQvpBvbky2K26cxhenkA

the Plaintiff’s losses under the 1st Head of Claim is too remote because the purpose of the oral contract was to realise a public benefit, and not for the Plaintiff’s profit. As at the date of the oral contract on 30.1.2013, the Defendant has no knowledge of the details of the Plaintiff’s development components under the 2nd Development and the 3rd Development and the type of loss that the Plaintiff would suffer. At the material time, the Defendant, as an interested party in the land acquisition proceedings, only had knowledge pertaining to the Land and the market value of the same; and

the Plaintiff has led no evidence to prove that the mitigation to the 3rd Development was a valid mitigation vis-a-vis the 1st Head of Claim. Phase 1b(ii) was identical in both the 2nd Development and 3rd Development. The first S&P for The Annex which is sighted in the trial documents is dated 1.11.2017 for the purchaser Gan Siew Hoon. This is before the date of the 3rd DO on 11.6.2018. After obtaining the 3rd DO, the Plaintiff continued the sale of The Annex under the 2nd Development. Whilst the Plaintiff claimed that it has mitigated its losses by migrating to the 3rd Development, this “act of mitigation” does not apply to Phase 1b(ii). In short, migrating to the 3rd Development cannot be said to have mitigated any loss relating to the 1st Head of Claim. S/N JWhQvpBvbky2K26cxhenkA 2nd Claim: Phase 2 - Profitability comparison between the 2nd Development and the 3rd Development due to the redesign after the removal of the MRT station 2nd Development (DO obtained on 6.1.2015) Gross profit excluding land cost 641,176,115.00 3rd Development (DO obtained on 11.6.2018) Gross profit excluding land cost and other fees 421,599,973.00 Differential between 2nd Development and 3rd Development 219,576,143.00 (subsequently reduced to 184,762,915.00) [279] Under the 2nd Head of Claim, the Plaintiff sought compensation for having to redesign and replan its development as a consequence of the Defendant’s breach of the oral contract by failing to pursue the construction of the MRT station on the Acquisition Lands. [280] In view of the oral contract, the Plaintiff had marketed its 2nd DO (including Phase 2) as a development with “2 MRT LINES IN 1 HUB”. When the Defendant failed to have the MRT Station built, the Plaintiff had to replan and redesign its development which culminated in the form of the 3rd DO to improve its marketability. S/N JWhQvpBvbky2K26cxhenkA [281] The Plaintiff pleaded that the removal of the MRT Station caused its development profit to be reduced by RM219,576,143, which is the differential development profits between the 2nd DO and the 3rd DO. [282] PW5 was substantially satisfied with the basis of the 2nd Head Claim but he concluded that the Plaintiff’s losses should be a reduced sum of RM216,383,718.00. PW6 held the same opinion except that he excluded The Annex to avoid double counting and as a result, the Plaintiff’s losses under the 2nd Head of Claim were further reduced to RM184,762,915.00 as shown below: 2nd DO GDP (–) 3rd DO (–) The Annex Reduction 645,379,813 (428,996,095) (31,620,803) 184,762,915 [283] The Defendant’s challenge against the 2nd Head of Claim and the Plaintiff’s response were similarly tabulated in the Plaintiff’s Written Submission as re-produced below: MRTC’s Challenge [WSDW9, Q&A 7, p 9] Accolade’s Response 1. Sr. Ganesh was under Accolade’s restrictive instruction on the approach and assumptions. Sr. Ganesh decided the best approach of valuation after S/N JWhQvpBvbky2K26cxhenkA discussing with Accolade and its solicitors. [Encl. 333, p 74, 167]

Adopted 2 assessment dates without explanation. There are applicable legal and factual justification to depart from the Breach Date Rule. [See: Section E/2]

Adopted residual method adopted is inconsistent with the relevant standards. MVS and the industry do not prohibit transposition of the components. [See: Section E/3/1–4]

7% discount rate does not corroborate with benchmarks and comparable companies. There are valid explanations for adopting the discount rate of 7%. [See: Section E/1/3]

Adopted projected, not actual ridership. No actual ridership data for the original Putrajaya Line alignment. [See: Section E/5]

No adjustments to reflect dissimilarities in properties in computing GDV. Adjustments were made in the form of analysed psf. [See: Section E/1/1]

No secondary valuation method to cross-check. There is no other valuation method applicable to this case. [See: Section E/3/5] [284] I have similarly considered the reports and testimonies by the experts and the submissions by the parties and, except for the issues on the date of assessment of damages which was dealt with in paragraphs 202 - 207 above and the alleged restrictive instruction given by the Plaintiff to PW5, I accept PwC’s Report and DW9’s evidence on the following matters which throws doubt on the reliability of the conclusions in the FHMH Report:

The PwC Report referred to the definitions of the residual method of valuation as adopted in the RHZ Report, the International Valuation Standards (‘IVS’) and a valuation report prepared by Knight Frank, a notable property consultant and concluded that RHZ has approached their assessment by rearranging the original equation of “Residual Value” to arrive at the GDP without proper basis. RHZ’s GDP calculation is not a residual method of valuation and does not comply with the definitions as set out in the IVS and the Malaysian Valuation Standards.

A global discount rate of 7% was adopted in the FHMH Report. PwC independently researched analyst reports covering the comparable companies as mentioned in the FHMH Report to obtain the applicable discount rates computed and used by the analysts in appraising these companies. PwC found that the discount rate computed across the analyst reports in arriving at the value of each company’s property developments typically ranges between 9% to 12% i.e. higher than the 7% adopted by RHZ in their calculations, which was subsequently relied upon by FHMH in its assessment without any further validation. The discount rate of 7% does not corroborate with industry benchmarks based on comparable companies identified by FHMH themselves. The lower discount rate used by RHZ and FHMH resulted in an overestimation of the quantum of damages.

One of the key components of the 2nd Development is the 5- storey retail or lifestyle mall with cinema. The Plaintiff’s decision to build the mall was heavily dependent on the potential foot traffic that the MRT station on the Putrajaya Line can generate. The Plaintiff assumed that the MRT station and Putrajaya Line will contribute to a significant amount of foot traffic such that the mall will not be commercially viable without the MRT station. The FHMH Report states that the Plaintiff’s development of the land would “… benefit substantially from the potential foot traffic to be brought in by the SSP Line and MRT station that the Defendant was supposed to construct under the Contract”. The S/N JWhQvpBvbky2K26cxhenkA FHMH Report relied entirely on the assumption that the MRT station would have been able to generate foot traffic as indicated by the projected ridership of the Putrajaya Line as at 17.11.2014. FHMH did not obtain actual ridership data which is more relevant and reliable and failed to consider any risks or potential deviations from expected commuters’ behaviour that may lower the ridership of the MRT. In this regard, PwC surveyed several media articles and had undertaken additional research of the trends of ridership of MRT1 in recent years. Figure 12 in the PwC Report shows the “Projected and actual ridership of MRT 1 (2017 – 2022)” whereby the actual ridership of MRT1 has been consistently and substantially lower than projected since 2017 and this is even when the average daily ridership peaked in 2019. FHMH's fundamental assumption that the 2nd Development and the retail mall would have benefited substantially from the potential foot traffic to be brought by the Putrajaya Line and the MRT station is overly optimistic. For the retail mall to be built relying on foot traffic from a single major source, the Plaintiff has neglected to take into account typical risk and uncertainties that any other TOD would face in establishing commercial viability of the 2nd Development.

RHZ had relied solely on a simplistic arithmetical calculation of the average selling price psf of the “comparable properties” in computing the GDV of the 2nd Development and the 3rd S/N JWhQvpBvbky2K26cxhenkA Development without making any adjustments to reflect dissimilarities between the property under consideration and the respective comparables. Based on PwC’s experience in reviewing property valuation reports, it is common for adjustments to be made to reflect dissimilarities in properties such as location, accessibility, land size, land condition, land shape, tenure, zoning and other non-realty aspects.

FHMH’s Report has not provided a secondary method of valuation as a cross-check to their primary approach in assessing the computation under the 2nd Head of Claim. It is important for this cross-check to be performed to the final valuation range after the main valuation methodology is applied as the primary approach in order ascertain the reasonableness of the overall valuation.

PwC performed separate cross-checks on FHMH’s assessment by computing the implied market value of the Phase 2 land on a psf basis (see Figures 15 and 16 in the PwC Report). PwC found that their computation of FHMH's assessment resulted in the market value psf of RM1,173 for the 2nd Development and RM684 for the 3rd Development, respectively. This is higher than the adjusted market value psf of KJSB’s computation after excluding the portion of market value attributable to The Annex, of RM421 under the 2nd Development and RM471 under the 3rd Development, respectively. S/N JWhQvpBvbky2K26cxhenkA In Figure 17 of the PwC Report, the “Profit margin for the 2nd Development (Phase 2 only) and the 3rd Development” based on FHMH’s analysis with the land value of RM197 million and PwC’s analysis with land cost of RM35 million yielded a result of 22% for the 2nd Development and 13% for the 3rd Development for the former and 32% for the 2nd Development and 25% for the 3rd Development for the latter. PwC opined that the profit margins in the FHMH Report are understated and the margin comparison may have provided FHMH with a false sense of comfort in complementing RHZ’s computation without actually performing an independent cross-check. The evidence in the FHMH Report also indicates that the property development sector faced a rather challenging time from 2015 to

Hence, even if the 2nd Development was completed as planned, the Plaintiff would have encountered difficulties in achieving the expected return in view of the unfavorable market condition. [285] Apart from the above, I find that the following submissions by the Defendant are meritorious:

The Plaintiff’s claim falls under the 2nd Limb of sub-s 74(1) CA 1950 and is recoverable only if the Defendant is proven to have actual knowledge of special facts and circumstances that render the loss a foreseeable outcome as a result of the Defendant’s breach of oral contract.

Damages for the 2nd Head of Claim must be assessed in the context of the events that have occurred after the breach of the oral contract, namely –

the Land Swap increased the market value of the Land;

(ii) except for the development of Phase 1b(ii) i.e. The Annex under the 2nd Development, no other development was carried out under the 2nd Development; and

(iii) the 3rd Development. The Plaintiff capitalised on the increase in value of the lands and made a management decision to sell the same to UEM as it was “an excellent offer”. This would put the Plaintiff in a zero-loss position as testified by DW9: “… no loses have been suffered by the Plaintiff because they’ve sold the land at a RM197 million on a cost of only RM35 million. And the sale to UEM again would not have been possible without the land swap by MRT. So, they’ve already gained and there are no losses.”. When cross-examined, PW6 said: “Well, when the claim and the amended statement of claim went in 2019, we were not appointed. But when S/N JWhQvpBvbky2K26cxhenkA we were appointed, we saw that the claim was, the claim of the gross development profits between the third development and the second development. So, in the context of the claim, it’s not wrong. In the context of claim, it’s not wrong, in our jargon it’s called the proforma, the claim, because they are all based on estimates lah, you know, from them. It’s not wrong. But if you say that, if you want to also set off the profits from the sale of the land, that’s where we say, I am saying that, I mean in, I shouldn’t use the term you can’t have the cake and eat it, but essentially that’s that, you see. The numerator is the second development gross development profit, the denominator is the third development gross development profit. Now, if you want to include the profits from the sale of the land, that would be the denominator that would have to replace the third development profits, you see. The reason I say, Mr Foo, is that logic lah, you know. If you want to include the sale of the profits from the land, then you will have to less it off against the development profits from the second development because logically, once you sell the land, there’s no third development to develop, you see?” (emphasis added). S/N JWhQvpBvbky2K26cxhenkA

The 2nd Head of Claim is too remote for the same reasons as stated in subparagraph 278(a) above.

The Plaintiff’s claims are for the difference in profit between Phase 2 in the 2nd Development and the 3rd Development and other related damages flowing from the 2nd Development and 3rd Development. However, as at the date of the oral contract, the Defendant has no knowledge of the 2nd DO and the 3rd DO, which have yet to come into existence. The Defendant was not contracted to construct nor to facilitate the construction of the 2nd Development. The Plaintiff only sought to derive parallel benefit to the Defendant’s construction of the Putrajaya Line.

The Plaintiff’s claim for loss of profit, which assumes a timely completion and sale of Phase 2 under the 2nd Development is too remote because the development of Phase 2 was, in fact, never completed under any DO. PW1 testified that that the Plaintiff had to slow down the development of Phase 2 in these words: “There were a number of reasons. I think we sent a letter to the High Court to also explain at that time we were constrained to sell the land due to the fact that the bank had asked us to slow down and asked us not to draw on the bridging loan. That is one reason. The second reason is that, for the company, we had already invested in an additional, about RM10 plus million into the land to do earthworks. S/N JWhQvpBvbky2K26cxhenkA … More than 10 million… If I remember, it was RM12 over million in order to make sure that we will not be delayed in the project once we launched the project. We were very cautious about making sure that the land was cleared because it was full of rocks. So, if we were delayed by the rock work, we would have hit LAD. So, we took the cautious approach of making sure that the land was, the earthworks were done first prior to launching. And then subsequently, while we were doing the earthworks, the bank came in and said to us, can you slow down and don’t draw on the bridging yet. … They didn’t give us any reason as to why. They just gave us a letter to basically just say don’t drawdown on the bridging.”. It is unreasonable for the Plaintiff to assume knowledge and consider the impact of the profitability of Phase 2 due to the Plaintiff’s lack of financial capacity to be a foreseeable consequence that the Defendant should be liable for. S/N JWhQvpBvbky2K26cxhenkA 3rd Claim: Phase 2 - Losses arising from delay in development Assumptions: Assume gross cashflow/ profit from sale of Phase 2 641,176,115.00 Assume tax of 25% 160,294,029.00 Nett cashflow/ profit to be placed in a fixed deposit 480,882,087.00 No. of years to plan and to obtain DO from the 1st letter to the Defendant 2 Interest rate 4% Interest over 2 years (delayed costs) 38,470,567.00 (subsequently increased to 38,722,789.00) [286] Under the 3rd Head of Claim, the Plaintiff claimed to have suffered damages from the two-year delay in its Phase 2 development by moving from the 2nd DO to the 3rd DO. The Defendant’s breach of the oral contract is said to have caused the Plaintiff to suffer loss of the use of the funds that would have been generated from the 2nd DO amounting to RM38,470,567.00. [287] PW6 was substantially satisfied with the basis of the 3rd Head Claim. He substituted the item of “Gross Cashflow or GDP from Phase 2 Sale” S/N JWhQvpBvbky2K26cxhenkA with the figure of RM645,379,813.00 as assessed by PW5 and concluded that the Plaintiff’s loss of the use of funds should be a slightly higher amount of RM38,722,789.00. [288] The Defendant’s challenge against the 3rd Head of Claim and the Plaintiff’s response as summarised in the Plaintiff’s submission is shown below: MRTC’s Challenge [WSDW9, Q&A 7, p 10] Accolade’s Response 1. Sale of RM197 million to UEM means no loss to Accolade. The sale has no material impact on the assessment of Accolade’s claim against MRTC. [See: Section E/6]

Accolade’s reasons for delay in development are unsubstantiated. The delay was caused by the removal of the Agreed Station. [See: Section D/2]

Disregarded other causes of delay. The associated risks in a development were reflected in the 7% discount rate. [See: Section E/1/3]

Overstated interest, as the GDP calculation is wrong. There are justifiable basis and calculation for the GDP. [See: Section E/1/3]

4% FD interest rate is higher than BNM’s published rate. The adoption of the 4% discount rate is reasonable. [See: Section F/2] [289] Upon an assessment of the Experts’ Reports and evidence at the trial and the submissions by the parties, I accept PwC’s Report and DW9’s evidence on the following matters:

The FHMH Report contends that Plaintiff would not have deferred its development of the land for a further three years to re-design, replan and procure the necessary approval for the 3rd Development. However, the Plaintiff had sold the Phase 2 Land to UEM in June 2021 for RM197 million at a profit and yielded a surplus over the market value of the land as at the date of the breach of contract. As such, the Plaintiff has not actually suffered any losses.

The FHMH Report has ignored the fact that the 2nd Development, which was still at its early stages of construction, would have faced delays in construction even without the breach of contract. It is not uncommon for developments to face delays or deferment at that material time when market conditions were S/N JWhQvpBvbky2K26cxhenkA unfavorable. This raises the question as to whether the 2nd Development would have been completed according to the original timeline without being affected at all by external factors if the Defendant did not breach the contract.

FHMH’s computation of loss of interest is flawed because the underlying formula and assumptions adopted to calculate the value of the GDP upon which the interest rate is applied to, to derive loss of interest, is incorrect and inconsistent with the relevant standards and lacks the necessary adjustments to reflect dissimilarities in properties, as discussed under the 2nd Head of Claim. As a result, FHMH’s calculation of loss of interest is significantly overstated because FHMH assumes that the GDP from the sale of Phase 2 would have been RM645,379,813, which, when compared to the GDP assessed by KJSB of RM156,553,269, is 312% higher i.e. by RM488,826,544. This calculation also assumes that the 2nd Development would not have faced delays had the Defendant not breached the contract. For these reasons, the conclusions in the FHMH Report are unreliable and even assuming that the assumptions made in the FHMH Report in quantifying this head of damage are true, the calculations significantly overstate the amount of loss suffered by the Plaintiff. [290] Further, the Court accepts the following submissions by the learned counsel for the Defendant:

When assessed as at the start of the 2nd Tranche Trial and in the light of the events which have transpired in the interim period i.e. Phase 2 Land was not developed until completion and was subsequently sold to UEM in 2021, the 3rd Head of Claim does not represent actual loss suffered by the Plaintiff from delays arising from a migration from the 2nd development to the 3rd Development. The 3rd Head of Claim is unsubstantiated because there is no delay in the development of Phase 2 as it was never developed by the Plaintiff at all. A pre-estimate of the likely loss i.e. interest over the purported delay in developing the 3rd Development that would be suffered in the event of a breach, is too remote.

The Plaintiff did not adduce any evidence to show that it is entitled to a “high-net-worth” fixed deposit interest rate as compared to the published fixed deposit interest rates at the material time and that the “high-net-worth” fixed deposit interest rate is 4.3% (see PW6’s evidence, NoE Vol 8, encl. 332, p 197). 4th Claim: Phase 2 Abortive Consultancy Fees [291] In the SoC, the Plaintiff pleaded the abortive consultancy fees which was incurred by abandoning the Phase 2 development under the 2nd DO and calculated based on the Malaysian Institute of Architects (‘PAM’) Standards with the assumption that a 50% discount was granted by the respective project consultants. The Defendant’s breach S/N JWhQvpBvbky2K26cxhenkA of the oral contract was alleged to have caused the Plaintiff to incur the following: 45% Upon DO Approval (RM) Assumed 50% Discount (RM) Abortive Consultancy Fees 31,243,714.00 (15,621,857.00) 15,621,857.00 [292] PW1 stated that the Plaintiff incurred costs in hiring the architect and consultants in respect of the 2nd Development. However, when the Defendant proceeded to apply for the conditional approval of the Realigned Railway Scheme in breach of the oral contract, the Plaintiff had to abort the 2nd Development and as a result, the Plaintiff had to bear abortive consultancy fees for services rendered by WT Partnership (M) Sdn Bhd (formerly known as Jub Padu), the Quantity Surveyor; SNA Consult Sdn Bhd, the Civil & Structural Engineer; and Perunding CJN Sdn Bhd, the Mechanical & Electrical Engineer (see the answer to Q. 34 in WS-PW1; see too, WS-PW3, WS(S)-PW3, WS-PW4 and WS(S)-PW4). [293] PW6 had reviewed copies of the –

Plaintiff’s letters dated 2.8.2021 to the architect and each project consultant (‘Settlement Letters’) whereby they were informed of the pending sale of the land to UEM and that it was a requirement S/N JWhQvpBvbky2K26cxhenkA in the S&P for the Plaintiff to procure a letter of release from the project consultants (see Annexure 38 in APP1(E), encl. 286); and

the invoices issued by the project consultants to the Plaintiff and the payment vouchers and cheques issued by the Plaintiff to the project consultants as payment for services rendered (see Annexure 4 in APP2(D), encl. 300), and he was able to verify the Plaintiff’s claim up to the amount of RM5,500,000 only as follows (see paragraphs 173 - 181 in APP1(A), encl. 282):

Akitek Akiprima Sdn Bhd 3,630,000.00

SNA Consult Sdn Bhd 825,000.00

Perunding CJN Sdn Bhd 660,000.00

WT Partnership (M) Sdn Bhd 385,000.00 TOTAL 5,500,000.00 [294] As with the other Heads of Claim, the Defendant strongly refuted the 4th Head of Claim for the following reasons:

the 4th Head of Claim pertains to actual wasted expenditure or is a reliance loss. The Plaintiff must elect between a claim for S/N JWhQvpBvbky2K26cxhenkA expectation loss (1st to 3rd Heads of Claim) or reliance loss (4th Head of Claim; see Toeh Kee Keong v Tambun Mining Co Ltd [1968] 1 MLJ 39 (FC), Delpuri-Harl Corp JV Sdn Bhd v Perbadanan Kemajuan Negeri Selangor [2015] 2 MLJ 24 and CE Resources Sdn Bhd v Owners of the Ship or Vessel “Tanga 01” (Official no: 300397) of the Port of Zanzibar, Tanzania [2019] 1 LNS 1156). The law requires the Plaintiff to make an election and failure to do so renders the Plaintiff’s claim uncertain and it is not for the Court to make an election on behalf of the Plaintiff;

alternatively, the 4th Head of Claim is the Plaintiff’s attempt to recoup expenditure wasted in pursuit of its purported mitigation measures. The Plaintiff is bound by its pleadings. Based on the SoC, the 4th Head of Claim was pleaded only in reference to Phase 2. The Plaintiff’s purported Phase 2 mitigation, i.e. the migration from the 2nd Development to the 3rd Development, was not pursuant to the performance of any term under the oral contract and was never even completed. No evidence was led by the Plaintiff to support its pleaded claim that the migration to DO3 was reasonable mitigation. The 4th Head of Claim should be treated as an independent and collateral measure which did not arise in the context of mitigation at all;

FHMH adopted a broad interpretation of the 4th Head of Claim and in their Expert Report, they chose to include fees incurred for the release of the Plaintiff’s consultants pursuant to the terms of the S&P between the Plaintiff and UEM. The consultant’s fees S/N JWhQvpBvbky2K26cxhenkA were incurred due to the sale to UEM and not because of the change from the 2nd DO to the 3rd DO;

in the event the Court finds that the Plaintiff is only entitled to receive compensation for reliance loss, the Plaintiff has still failed to prove the 4th Head of Claim. The evidence adduced by the Plaintiff does not support its pleaded claim and is unsatisfactory. At best, the invoices, which are dated as recently as 2021 and produced by PW6 rather than PW1, suggest that these are costs incurred to seek release from the project consultants to enable the Plaintiff to dispose the land to UEM. The Plaintiff’s pleadings are silent as to the sale of the land to UEM because at the time when the pleadings were drafted, the said sale was beyond the contemplation of the parties; and

if the Court finds that the supporting documents produced by PW6 to be admissible, the 4th Head of Claim is too remote. The sale of land to UEM is not a direct consequence of the Plaintiff’s breach, but a commercial decision made by the Plaintiff in the pursuit of substantial profit. The invoices and costs incurred by the Plaintiff do not have any nexus to the breach of the oral contract. [295] Firstly, on the issue of the Plaintiff’s claim for both expectation and reliance losses, the learned counsel for the Plaintiff cited the Singapore cases of Smile Inc Dental Surgeons Pte Ltd v OP3 International Pte Ltd [2020] 3 SLR 1234 (HC) and Tonny Permana v One Tree Capital S/N JWhQvpBvbky2K26cxhenkA Management Pte Ltd [2021] 5 SLR 477 (HC), wherein references were made to distinguished textbooks on the law of contract, to support the submission that, the reason for the general principle of requiring a plaintiff to elect between expectation and reliance losses is to ensure that the plaintiff is not put in a better position than it would have been in if the contract is fully performed but for the defendant’s breach. This is to avoid double compensation to the plaintiff. This general principle is only applicable when the loss of profits is claimed on a gross basis and does not apply in cases where the loss of profits is claimed on a net basis as is the case here. [296] Furthermore, the Plaintiff argued that the specific heads of loss have been identified with clarity and separately with reference to each individual claim and there is no overlap between the 4th Head of Claim and the other Heads of Claim. I agree with the Plaintiff’s submission. The Defendant’s case was not that such an overlap exists. Moreover, for the reasons given earlier, the Plaintiff’s 1st to 3rd Heads of Claim are not proven. Hence, the issue of double recovery does not arise. [297] Secondly, as to the issue of causation and remoteness of damage, there is ample evidence that the Plaintiff acted in reliance of the Representation by abandoning the 1st DO and taking steps to replan and redesign towards the 2nd Development as an Integrated Project (see the evidence as discussed under the 1st Tranche of Trial). [298] When the Defendant breached the oral contract by submitting the Realigned Railway Scheme for conditional approval and subsequently, S/N JWhQvpBvbky2K26cxhenkA for final approval, under the LPTA 2010, the Plaintiff had to redesign and replan the 2nd Development and resubmit the application for the necessary approvals from the relevant authorities by removing the Putrajaya Line and the integrated station from its proposed development. In my considered view, there is a direct causal link between the Defendant’s breach of the oral contract and the Plaintiff’s claim under the 4th Head of Claim. In coming to this finding, I have not given any consideration to the statements in the reports prepared by FHMH on the existence of such causal link. The primary role of an expert is to inquire and report on any question of fact or opinion not involving questions of law or of construction (see UEM Sunrise Bhd & Ors v Majlis Perbandaran Johor Bahru Tengah [2016] 11 MLJ 133 at p 139). The issue as to whether the Plaintiff has discharged the burden to prove that the 4th Head of Claim was caused by or attributable to the Defendant is a question of law. [299] Based on the evidence adduced in this Court, I am satisfied that the wasted expenditure for the consultancy fees in having to prepare and submit the 2nd Development for approval are losses which naturally arose in the usual course of things from the breach and which the parties knew to be likely to result from the breach. In other words, the Plaintiff has discharged the burden of proving the 4th Head of Claim, whether under the 1st or 2nd limb of sub-s 74(1) CA 1950. The loss caused to the Plaintiff, which is clearly a reliance loss, is not too remote. S/N JWhQvpBvbky2K26cxhenkA [300] Therefore, the question in the ITBT 2 on whether, as a result of the Defendant’s breach of the contract, the Plaintiff suffered losses as per the 4th Head of Claim is answered in the affirmative. [301] Thirdly, the Defendant’s submission that the consultant’s fees were incurred due to the sale to UEM is flawed. There is no doubt that the consultancy fees were incurred for purposes of the 2nd Development and for the obtainment of the 2nd DO and did not have anything to do at all with the sale of land to UEM. Even though in terms of timing of payment, the consultancy fees were subsequently paid as a condition of sale of the land to UEM, this does not mean that the consultancy fees were not incurred due to the Defendant’s breach of the oral contract. [302] In paragraph 93, APP2(A), the experts from FHMH stated that: “a) … it is not uncommon practice or arrangement for: i. the purchaser for development lands to request the seller to procure a release letter from the existing project consultants for the said development lands, as the purchaser may have their own project consultant team or the purchaser may not intend to adopt the existing plans and plans to re-design the entire development etc; and S/N JWhQvpBvbky2K26cxhenkA ii. the existing project consultants to want their outstanding fees to be settled prior to the issuance of the release letter.”. [303] Lastly, the Plaintiff had adduced sufficient oral and documentary evidence to establish the 4th Head of Claim. Apart from PW1’s statement in his Witness Statement as alluded to previously, which was not challenged in cross-examination, DW9 answered Q. 7 in WS-DW9 that: “On the fourth head of damage, whilst I am satisfied that the Plaintiff may have paid settlement fees of RM5.5 million arising from the abortive consultancy fees as supporting documents have been provided in the FH Rebuttal Report, the fees were incurred in order to seek release from the existing project consultants in order for Accolade to be able to dispose of portions of the Lands to UEM Sunrise. As such, it appears that the abortive consultancy fees was incurred due to the sale of land to UEM Sunrise and not due to the changes from the 2nd DO to the 3rd DO.” (emphasis added). Hence, DW9 is satisfied with the quantum of RM5.5 million. DW9’s only issue is that the consultancy fees were allegedly incurred to seek release from the consultants to facilitate the sale of land to UEM. S/N JWhQvpBvbky2K26cxhenkA However, as explained above, this does not accord with the preponderance of the evidence at the trial. [304] With regards to the Defendant’s contention that the invoices and cheques in FHMH’s Rebuttal Report were not included in the Plaintiff’s earlier bundle of documents, these are the same “supporting documents” mentioned in WS-DW9 as quoted above. DW9 did not raise any issue as to the authenticity and contents of these supporting documents. As for PW6, he rightfully disclosed and produced the documents which he came across during the pendency of his appointment as the Plaintiff’s expert. [305] The Plaintiff’s counsel submitted that out of the thousands of documents adduced before the Court, the supporting documents for the 4th Head Claim at pp 293 - 328, APP2(D) are the only documents which the Defendant had belatedly disputed the authenticity in the Written Submissions on the grounds that:

the documents were adduced by PW6 as an opinion witness; and

the makers of the documents were not called to testify on the authenticity or nature of the documents. It was acknowledged that the complaint regarding the invoices and cheques in APP2(D) in not being included in the earlier bundles was put to PW6 in cross-examination (see NoE, encl. 332, pp 206 - 207) but no objection was raised and recorded on the marking of APP2(D) S/N JWhQvpBvbky2K26cxhenkA during the 2nd Tranche Trial. Once a document is marked as an exhibit without objection, it should not be subsequently expunged [see YB Dato’ Hj Husam bin Hj Musa v Mohd Faisal bin Rohban Ahmad [2015] 3 MLJ 364 (CA)]. It is too late for a party to raise objections of authenticity for the first time in written submissions [see Teknik Segala Sdn Bhd v Salcon Engineering Bhd [2012] 9 MLJ 529 (HC)]. [306] In any event, PW1, PW3 and PW4 were called by the Plaintiff and testified as to the supporting documents in question. These witnesses were not cross-examined on the authenticity of the documents. Moreover, DW8 and DW9 had also enclosed several documents in their reports and WS-DW9 without calling the makers. The examples provided by the Plaintiff’s counsel are the documents in APD1(B), pp 324 - 332; APD2(A), pp 110 - 112; APD2(B), p 433; APD2(C), pp 904 - 906 and Exhibit A in WS-DW9 consisting of Preliminary Cost Estimates, Media Releases and other information. [307] In sum, the Plaintiff has proven, on a balance of probabilities, that it suffered loss for the abortive consultancy fees in the sum of RM5,500,000 and that the Defendant is liable to compensate the Plaintiff for this loss. [308] In closing, the following two points are made:

PwC conducted further cross-checks by analysing the Equity IRR of the Plaintiff and comparing the market capitalisation of Glomac Berhad to conclude that the damages claimed by the S/N JWhQvpBvbky2K26cxhenkA Plaintiff are overstated and inflated. Specifically, in the answer to Q.7, WS-DW9 stated that: “Hypothetically if the Court was to award the Plaintiff with the amount claimed i.e. approximately RM258 million (per the FH Report), it would mean that the shareholders of Accolade would enjoy an annualised equity internal rate of return (“Equity IRR”) of 57% per annum calculated using Accolade’s RM5 million paid up share capital as the ‘initial investment’ as at 30 January 2013 (date the Contract was made), and taking into account proceeds from Accolade’s sale of the Lands to UEM Sunrise of R<197 million less the net debt from its 30 June 2020 audited financial statements (last year’s financials available prior to the land sale), and the hypothetical award of RM358 million in 2023. From my experience, it is glaringly obvious that this Equity IRR of 56% is well above and far in excess of returns that are typically expected from providers of capital of property development companies, which according to FH and R&H, is only 7%. To further illustrate my point above, the RM258 million claim is a quantum greater than the entire market capitalisation of Glomac Berhad as at 27 March 2023 of RM238 million (Source: Capital IQ), one of the comparable property development companies used for benchmarking by FH. S/N JWhQvpBvbky2K26cxhenkA Such a quantum would therefore implicitly award the Plaintiff an amount far beyond what could reasonably be considered “loss of profits”, and if so awarded would necessarily include other elements such as a ‘penalty’ which may not be in accordance with the findings of the Court. For me, this clearly shows that the assumptions used in the FH report must be grossly overstated and flawed.”. However, the Plaintiff has sufficiently rebutted the Defendant’s contention on Equity IRR as –

there is no factual basis to apply 2013 as the base year. The Plaintiff purchased the Land in 2007, hence this is the year that should have been used as the base year. If 2007 is used as the base year, the Equity IRR falls to 34.337%;

(ii) the proceeds from the compulsory acquisition in the sum of RM44,435,240.00 should have been included. If this amount is inputted into the computation, the Equity IRR would be further reduced;

(iii) the Plaintiff’s profitability is being measured by this single development, whereas the Equity IRR of the other developers may be drawn from averaging out all their development for the year under consideration; and S/N JWhQvpBvbky2K26cxhenkA

(iv) if the correct variables are used, the Equity IRR would be between 16% to 17% (see PW6’s explanation during the supplementary evidence in chief). On market capitalisation, PW6 testified that it is essentially “the number of shares that the company has times the market value of each share”. In cross-examination, DW9 said that “For an unlisted company, the term market capitalisation wouldn’t apply because – It’s not capitalised on the stock exchange, right.”. Therefore, it is incorrect to value the shares of an unlisted company such as the Plaintiff by using market capitalisation.

It is observed that as an alternative to the 3rd Head of Claim, PwC had considered interest in the form of opportunity costs of capital or funds expended by the Plaintiff in their alternative assessment of damages under the principle of reliance loss. In their Report, PwC had offered the following opinion on the heads of damages that could form an appropriate basis in quantifying reliance loss (see too, paragraphs 7.1 - 7.7 of PWC’s Expert Report): “3.43. In our opinion, an alternative method to more reasonably quantify damages in a breach of contract situation such as this, in which the claims are speculative and involve subjective judgement on the measurement of differential in future profits that ‘would S/N JWhQvpBvbky2K26cxhenkA have been’ received from contemplated scenarios that did not actually take place with the expectation or theoretical possibilities of making profit, would be through the principle of reliance loss –which seeks to restore the wronged party back to the position it would have been in had the contract never been made. It refers to expenses incurred by the claimant in reliance of the contract being performed.

3.44. In this instance, Accolade, as the wronged party, in reliance of the Contract being performed, would have incurred actual costs and expenses such as planning and design consultant fees, sales and marketing expenses to market its development with the additional MRT station under the terms of the Contract, amongst others.

3.45. Should the Court adopt the view that reliance loss would be a more reasonable measure to compensate the Plaintiff, the following heads of damages could form an appropriate basis in quantifying the losses and damages suffered by the Plaintiff: S/N JWhQvpBvbky2K26cxhenkA i) Actual costs incurred to replan and redesign the Lands under the 2nd Development; ii) Actual compensation paid in relation to the agreements for units under the 1st Development which were affected by the compulsory acquisition as a result of Accolade's contract with MRT Corp; and iii) Actual marketing costs incurred to market The Annex as a TOD connecting to 2 MRT stations during the soft launch in 2015.

3.46 At the time of our preparation of this Report, we have not seen any expert report tendered or evidence adduced by the Plaintiff quantifying the above heads of damages together with justification and proof or supporting documentation thereof. We reserve any further comments on this matter until such time we have been provided with such a quantification and had the opportunity to review the same.”. S/N JWhQvpBvbky2K26cxhenkA It may well have been the case that the Plaintiff would have stood a better chance in claiming for reliance loss rather than loss of profits as framed in the SoC. CONCLUSION [309] Based on the aforesaid considerations, the Court allowed the Plaintiff’s claim for damages in the sum of RM5,500,000.00 with interest at the rate of 5% per annum on the said amount from 27.5.2016 (date of filing of the Writ and Original Statement of Claim) until full settlement. [310] With regards to costs, in the Written Submission, the Plaintiff referred to O. 59, rr. 16(1) and 19 RC 2012 and highlighted the following facts:

the trial was conducted over 22 days where 13 days were for the 1st Tranche, including the site visit, and 9 days for the 2nd

the trial involved the examination of a total of 15 witnesses comprising 11 factual witnesses and four expert witnesses;

there is a total of 93 items of documents filed for the trial;

for the 1st Tranche Trial, the Plaintiff –

prepared five items of submission documents at encls. 239, 243, 259, 261 and 266, and 90 items in its Bundles of

(ii) reviewed five items of the Defendant’s submission documents at encls. 234, 248, 255, 256 and 268, and 83 items in the Defendant’s Bundles of Authorities;

for the 2nd Tranche Trial, the Plaintiff –

prepared two items of submission documents at encls. and 356, and 139 items in its Bundles of Authorities; and

(ii) reviewed two items of the Defendant’s submission documents at encls. 348 and 357, and 164 items in the Defendant’s Bundles of Authorities; and

the pleaded amount of the Plaintiff’s claim RM303,534,216 while the assessed amount is RM257,821,372. To these, the Defendant added that it had to engage senior and experienced counsels and to expend time and costs to appoint highly skilled expert witnesses; a total of nine volumes of NoE were filed; the case is of utmost importance to the Defendant as it was incorporated to implement the Government’s initiatives for the development of public transportation infrastructure for the benefit of the public and the decision of the Court will impact future public transportation S/N JWhQvpBvbky2K26cxhenkA infrastructure planning in the country; and the Plaintiff initiated the suit for an astronomical and inflated claim of RM303,534,216.00. [311] The Plaintiff prepared a Bill of Costs under O. 59, r 7(2) and Form 117 RC 2012 with the total costs claimed as RM996,202.00 for the entire trial. A sum of RM5,000.00 was prayed for encl. 193 (the Defendant’s application to set aside the Subpoena). [312] In the Submissions In Reply, the Defendant drew the attention of the Court to the fact that the Plaintiff did not specifically plead for costs on an indemnity basis in the SoC and that there is no scandalous conduct or bad faith on the part of the Defendant in defending itself in this suit to merit awarding costs on such basis. [313] The Defendant submitted that costs should be assessed on a standard basis and the Court was invited to award costs to the Defendant on such basis should the Plaintiff’s claim be defeated or substantially reduced. However, if the Court is inclined to award costs on an indemnity basis, the Defendant prayed for a sum of RM1,914,036.16 as legal fees, experts’ fees and disbursements. [314] On the date of decision, the Plaintiff’s counsel orally submitted that costs should follow the event and prayed for costs of RM300,000.00 for the trial on liability and quantum. On the other hand, the Defendant’s counsel prayed that the sum does not exceed RM50,000.00. S/N JWhQvpBvbky2K26cxhenkA [315] In my view, although the Plaintiff was not successful in proving its entire pleaded quantum of damages, it had nevertheless established a case on the Defendant’s liability and reliance loss in the sum of RM5,500,000.00. Therefore, it is fair and reasonable for costs of RM5,000.00 to be ordered to be paid by the Defendant to the Plaintiff for encl. 193 and RM300,000.00 for the trial on liability and assessment of damages, both subject to the standard allocatur fees. [316] On a final note, the professionalism and restraint displayed by the counsels/ solicitors throughout the entire court proceedings and the maximum effort shown by the dedicated team of lawyers in carrying out legal research to produce comprehensive written submissions are indeed commendable and exemplary. Dated: 20 June 2024 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur S/N JWhQvpBvbky2K26cxhenkA Counsels/ Solicitors: For the Plaintiff: Dato’ Malik Imtiaz Sarwar (Foo Joon Liang, Lee Xin Div and Khoo Suk Chyi with him) Messrs. Gan Partnership Advocates & Solicitors D-32-02 Menara SuezCap 1 KL Gateway, 2 Jalan Kerinchi Gerbang Kerinchi Lestari 59200 Kuala Lumpur For the Defendant: Steven Thiruneelakandan (Gregory Das, (1st Tranche Trial) Muhammad Zarqali Mohd Noor and Chong Jen Hui with him) Messrs. Steven Thiru & Sudhar Partnership Advocates & Solicitors Unit A1-12-01, Arcoris Mont Kiara Jalan Kiara 50480 Mont Kiara Kuala Lumpur For the Defendant: Nagarajah Muttiah (Austen Emmanuel Pereira, (2nd Tranche Trial) Shaun Tan Cheng Hong, Kooy Wei Nee, Roshanth Aaron James and Rachel Tan Zi Ying with him) Messrs. Rosli Dahlan Saravana Partnership Level 16, Menara 1 Dutamas Solaris Dutamas No. 1, Jalan Dutamas 1 50480 Kuala Lumpur