Zerin Properties v NAZA TTDI Sdn Bhd. (B-02(NCvC)(W)-1059-05/2018)

(a) Previn’s e-mail to Mr. Hendroff dated 17/12/2013 (CCB/153-156);

(b) Previn’s e-mail dated 20/12/2013 to one Yuslina Yusof and Mr. Hendroff (CCB/152); and 30

(c) Previn’s e-mail to Yuslina Yusof copied to Mr. Hendroff dated 1/1/2014 (CCB/157-160) attaching Previn’s e-mail to Mr. Hendroff dated 4 17/12/2013. 5 [5.5] The Plaintiff issued their “letter of appointment dated 3/1/2014” to the Defendant for the ‘Land and En-Bloc Sales (sic)’ of the various plots of component properties within KL Metropolis. The said letter was not executed by the Defendant (CCB/71-73). 10 [5.6] Mr. Hendroff issued an e-mail to Previn dated 3/2/2014 (CCB/78- 79) with regard to Plot 1, 2 and 3 of KL Metropolis. [5.7] The Defendant issued an ‘Ad-Hoc’ Letter of Appointment for 1 year 15 dated 5/2/2014 to the Plaintiff as Agent to sell various plots of development land and ‘En-Block (sic) Sale’ of office buildings within KL Metropolis (CCB/74-77). [5.8] Mr. Hendroff issued an e-mail to Previn dated 7/2/2014 (CCB/80- 20 81) forwarding the pre-comp with regard to Plot 1, 2 and 3 of KL Metropolis. [5.9] Yuslina Yusof issued an e-mail to Previn dated 18/2/2014 on the ‘Ad-Hoc’ agency of 1 year with an agency fees of 1.5% (CCB/85-86). 25 [5.10] The Plaintiff prepared a KL Metropolis Information Memorandum containing the relevant information to be disseminated to potential purchasers/developers etc. in respect of KL Metropolis. 30 [5.11] Previn issued an e-mail to Mr. Hendroff dated 3/3/2014 (CCB/87- 88) updating him on the progress of the marketing of the KL Metropolis lands to the various potential purchasers/developers as was set out 5 therein namely, Sunway Berhad, Mah Sing Group Bhd., Ireka 5 Corporation Bhd., UEM Group Bhd., IJM Land Bhd. and Hap Seng. [5.12] Previn issued an e-mail dated 25/3/2014 to Mr. Hendroff on IJM’s interest in KLM Plot 1, 2 and 3 (CCB/89). 10 [5.13] Subsequently, Ahmed Fairuz Bin Abdul Aziz (‘En. Ahmed Fairuz’) of the Defendant issued an e-mail to Previn dated 16/4/2014 (around 12.22pm) stating “certain plots ok bro but not prepared to explore the entire project …” (CCB/90). 15 [5.14] Previn issued an e-mail to En. Ahmed Fairuz on 16/4/2014 (around 3.19pm) (CCB/90-91). [5.15] In early July 2014, Previn was approached by Hap Seng’s director, Datuk Edward Lee Ming Foo (‘Datuk Edward’) (SP6) who 20 expressed an interest to look further into KL Metropolis. [5.16] Previn called En. Faliq on Hap Seng’s interest to discuss the matter and had set up the meeting between Hap Seng and the Defendant. 25 [5.17] The meeting between Hap Seng and the Defendant’s representatives took place on 22/7/2014 where Previn and another agent from the Plaintiff had also attended. 30 [5.18] Following from the meeting, Hap Seng had expressed and confirmed their interest in writing via letter dated 8/8/2014 to co-develop Plot 5A of KL Metropolis with the Defendant (CCB/92-93). 6 5 [5.19] En. Ahmed Fairuz issued an e-mail to Previn dated 12/8/2014 (around 8.10pm) (CCB/95). Previn issued an e-mail to En. Ahmed Fairuz on 12/8/2014 (around 5.39pm) (CCB/95-96). [5.20] Hap Seng’s letter of interest was forwarded to the Defendant by 10 the Plaintiff via the Plaintiff’s cover letter dated 8/8/2014 (CCB/94). Previn had sent the letters to En. Faliq via e-mail dated 13/8/2014 (CCB/97). There was no acknowledgment of receipt by En. Faliq. [5.21] Nothing transpired further between Hap Seng, the Defendant 15 and the Plaintiff after the e-mail dated 13/8/2014. [5.22] Subsequently, approximately 1 year and 5 months later, the Defendant’s subsidiary, TTDI KL Metropolis Sdn Bhd. had entered into a Shareholders’ Agreement dated 19/1/2016 with Hap Seng Land 20 Development Sdn Bhd (wholly owned subsidiary of Hap Seng) and Golden Suncity Sdn Bhd. Golden Suncity Sdn Bhd is a joint venture company between TTDI KL Metropolis Sdn Bhd and Hap Seng. TTDI KL Metropolis Sdn Bhd also entered into a Development Rights Agreement dated 29/1/2016 with Golden Suncity Sdn Bhd. 25 [5.23] On 24/2/2016, Previn met with the Defendant’s En. Azmi Maulud (‘En. Azmi’) (SD1). [5.24] The Plaintiff via their solicitors issued a letter of demand to the 30 Defendant dated 16/3/2016. 7 [5.25] The Defendant via their solicitors issued a letter dated 29/3/2016 5 denying the appointment of the Plaintiff and any amount due and owing to the Plaintiff. High Court [6] The trial Judge dismissed the Plaintiff’s claim primarily on 2 main 10 grounds -

(a) that the Plaintiff was not validly appointed, either expressly or impliedly, as an estate agent by the Defendant to sell Plot 5A; and 15

(b) that the Plaintiff was not the effective cause of the sale or that the Joint Venture to develop Plot 5A did not amount to a sale. Primary issues on appeal [7] The primary issues in this appeal are - 20

(a) whether the Plaintiff was appointed expressly or by estoppel as agent for Plot 5A or in the alternative, whether the Plaintiff was entitled to payment on quantum meruit for services rendered; (‘Issue 1’); 25

(b) whether the entry of the Joint Venture to develop Plot 5A either amounted to a sale or that the Defendant was estopped by contract and conduct from asserting otherwise (‘Issue 2’); and

(c) whether as a matter of evidence the Plaintiff was the effective 30 cause of the sale of Plot 5A (‘Issue 3’). 8 5 Our Decision Issue 1- validity of appointment of Plaintiff as agent to sell Plot 5A, whether expressly or by estoppel or payment to Plaintiff on quantum meruit [8] The learned trial Judge found that the Letter of Appointment 10 dated 3/1/2014 (‘LOA1’) was unenforceable as it was not signed by the Defendant and thus was of the view that the Plaintiff could not rely on LOA1 to prove that it was duly appointed by the Defendant to be their agent as there was no “acceptance” on the part of the Defendant. 15 [9] Based on the Grounds of Decision, the learned trial Judge found the following of the Letter of Appointment dated 5/2/2014 (‘LOA2’):

(a) it was a valid contract between the Plaintiff and the Defendant appointing the Plaintiff as their agent (para 21);

(b) the appointment was for 1 year commencing 5/4/2014 to sell the property mentioned in Clause C (para 22);

(c) based on the e-mails between the parties prior to the Defendant 25 “sending” (sic) LOA2 and from witnesses’ testimony, the appointment of the Plaintiff was strictly limited to sell various plots of development land and en-bloc sale of office building within KL Metropolis under Plot 1, 2, 3, 7B1 and 7B2 and did not include Plot 5A (para 24); 30

(d) LOA2 only mentioned Plot 7B2 and there was no mention of Plot 5A (para 25); 9

(e) there was no mention of Plot 5A in any correspondences leading 5 up to the issuance of LOA2, namely -

(i) e-mail dated 20/12/2013 from Previn to the Defendant: “The subject of the discussion was “KLM Marketing and Branding & Plot 7B1 and 7B2. No mention of Plot 5A.” (para 25);

(f) e-mail dated 16/4/2014 was sent by En. Ahmad Fairuz to Previn. “Again only Plot 1, 2, 3 and 7B1 and 7B2 were mentioned in KL Metropolitan Project. Again, no mention of Plot 5A.” (para 27); and

(g) “Based on the above said evidence, … the ad-hoc appointment 20 was for the sale of the Plot 1, 2, 3 and 7B1 and 7B2. It did not include Plot 5A.” (para 28). [10] We find the learned trial Judge has erred in his conclusion because (i) on a construction of the contract, there is a concluded 25 contract; and (ii) the parties have conducted themselves as if there was a contract afoot i.e. a contract by estoppel. Before we delve into the reasons why we say so, it is apposite to refer to some authorities cited by the Plaintiff which are applicable and in support of our position. 30 [11] In Bank of Credit and Commerce International SA (in liquidation) v Ali and others [2001] UKHL/8 961 at 965 [8] the House of Lords (per Lord Bingham of Cornwall) opined - 10 “[8] I consider first the proper construction of this release. In construing this 5 provision, as any other contractual provision, the object of the court is to give effect to what the contracting parties intended. To ascertain the intention of the parties the court reads the terms of the contract as a whole, giving the words used their natural and ordinary meaning in the context of the agreement, the parties’ relationship and all the relevant facts surrounding the 10 transaction so far as known to the parties. To ascertain the parties’ intentions the court does not of course inquire into the parties’ subjective states of mind but makes an objective judgment based on the materials already identified. The general principles summarised by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building 15 Society, Investors Compensation Scheme Ltd v Hopkin & Sons (a firm), Alford v West Bromwich Building Society, Armitage v West Bromwich Building Society [1998] 1 All ER 98 at 114-115, [1998] 1 WLR 896 at 912-913 apply in a case such as this.” (Emphasis added) 20 [11.1] Further the House of Lords at 975 [39] (per Lord Hoffmann) stated, among others, - “But the primary source for understanding what the parties meant is their language interpreted in accordance with conventional usage: ‘… we do not 25 easily accept that people have made linguistic mistakes, particularly in formal documents.’ I was certainly not encouraging a trawl through ‘background’ which could not have made a reasonable person think that the parties must have departed from conventional usage.” 30 [11.2] The principles therein were approved by the Federal Court in Berjaya Times Squares Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v. M Concept Sdn Bhd [2010] 1 MLJ 597 at 620[42]). 11 [12] Regarding “subsequent actions”, the learned author in Chitty On 5 Contracts Twenty-Eighth Edition Volume 1 General Principles at p.639 para 12-124, among others, stated - “Subsequent actions are therefore inadmissible to interpret a written agreement, although they are admissible to show whether there was a contract and what the terms of the contract were, either originally or by 10 variation, or as the basis for an estoppel”. [13] In Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 at 345, Gopal Sri Ram JCA (as he then was) (delivering the judgement of the Federal Court) at pp.345 - 15 346, among others, stated - “We would add that it is wrong to apply the maxim 'estoppel may be used as a shield but not a sword' as limiting the availability of the doctrine to defendants alone. Plaintiffs too may have recourse to it. The true nature of the doctrine in this context is that stated by Lord Russell of Killowen in Dawsons Bank v 20 Nippon Menkwa Kabushiki Kaisha LR 62 IA 100 at p 108: Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence of some fact the existence of which would 25 destroy the cause of action. … The width of the doctrine [estoppel] has been summed up by Lord Denning in Amalgamated Investment case ([1982] 1 QB 84 at p 122; [1981] 3 All ER 577 at p 584; [1981] 3 WLR 565 at p 575) as follows : 30 … When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does 35 12 seek to go back on it, the courts will give the other such remedy as the equity 5 of the case demands. (Emphasis added.) … Thus far we have dealt with the operation of the doctrine in the context of there having been offered some active encouragement by the party sought to be estopped. But we do not apprehend the law to be different when the 10 encouragement comes in the form of silence. The true principle in such cases is to be found in the following passage in the judgment of Thesiger LJ in De Bussche v Alt (1878) 8 Ch D 286 at p 314: If a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as 15 really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act. In MAA Holdings Sdn Bhd & Anor v Ng Siew Wah & Ors [1986] 1 MLJ 170, 20 VC George J (now JCA) was faced with a case where the defendant had remained silent while the purchaser had paid moneys to him. Of the defendant's silence, that learned judge said at p 176: Having silently stood by and allowed the purchasers to find and pay the balance of the purchase price and then wait for another 38 days before 25 insisting on compliance of the requirement to apply to the FIC although the parties had expressly agreed that whether the FIC approval was obtained or not was not to have any effect on the contract is I think the height of inequity.”. 30 [14] Reverting to the mainstream, in our judgment the dealing between the Plaintiff and the Defendant has to be taken in its proper context and in totality against the backdrop of facts which unfolded commencing late 2003 when En. Faliq first approached Previn and culminating in the Joint Venture between Hap Seng and TTDI KL 35 Metropolis Sdn Bhd on 29/1/2016 (see para 5 above and sub paras thereunder). 13 5 [15] It is important to observe that LOA1 was titled “Marketing Appointment For The Sale Of Various Plots Of Development Land And En-Bloc Sale Of Office Buildings (Collectively Referred To As Component Properties) Within KL Metropolis”. It is not disputed that this document was not signed by the Defendant. However with respect to 10 the learned trial Judge, we are of the view that the lack of acceptance did not detract from the fact there was concluded contract as to the Plaintiff’s appointment as their agent as our discussion hereafter will reveal. 15 [16] It is noteworthy that prior to the KL Metropolis transaction, the Plaintiff had adduced evidence vide Previn that the Plaintiff in 2012 acted for the Defendant for a land transaction which involved Hap Seng at Lot 212 and Lot 394, Section 63, Town and District of Kuala Lumpur, Wilayah Persekutuan (‘Tun Razak transaction’). Datuk Edward 20 confirmed Hap Seng secured the Tun Razak transaction through the Plaintiff’s services and the modus operandi of the said transaction. We observed for the Tun Razak transaction which the Plaintiff had successfully introduced Hap Seng to enter, the transaction similarly involved a letter of appointment dated 12/12/2012 issued by the Plaintiff 25 which was also unsigned and Hap Seng issued a letter of interest of even date to the Plaintiff. The Defendant had settled the Plaintiff’s professional fees. Since the Defendant had by conduct in the Tun Razak transaction recognised the Plaintiff’s appointment therein, we are of the view the Defendant is estopped from denying the Plaintiff’s appointment 30 in the present case given the similar circumstances as explained. Thus we find the learned trial Judge erred in not taking into consideration the facts and evidence which we have alluded to. 14 5 [17] Turning to LOA2, it is titled “Appointment As An ‘Ad-Hoc’ Agent To Sell Various Plots Of Development Land & ‘En-Block (sic) Sale’ of Office Buildings Within KL Metropolis”. LOA2 was signed by Previn acknowledging the Plaintiff’s acceptance of the terms and conditions therein which included the fee structure which was between 0.5% to 10 1.5% depending on the service rendered by the Plaintiff. [17.1] The 1st para of LOA2 stated - “We are pleased to confirm your appointment as an ‘Ad-hoc’ Agent to sell various plots of development land, en-block sale of Tower 1 with two 15 blocks of office buildings and the stratified office within KL Metropolis (“the Properties”) on the following salient terms and conditions.” (Emphasis added) [17.2] Para C stated - 20 “C. The Property KL METROPOLIS is a mixed development commercial precinct within KL Metropolis, Kuala Lumpur. This mixed-use landmark development sits on 6 acres of prime land in KL Metropolis and is the luxury development anchored by prime corporate towers, high-end retail 25 outlets, business suites, boutique offices and stratified serviced apartments. Plot 7B(2) is planned for one tower of business suite, one tower of stratified offices and two towers en-bloc offices, as well as retail shoplots at the podium. 30 This future commercial district of KL METROPOLIS would complement the new MATRADE exhibition centre, the forthcoming KLM Supermall and the new MITI HQ.” (Emphasis added) 15 5 [17.3] We are of the view that the learned trial Judge erred in his finding that LOA2 “… only mentioned Plot 7B2. No mention of Plot 5A…” because he failed to read or consider the document as a whole. Reading the document as a whole, particularly, the title and we stressed on the phrase “to sell various plots of development land” which phrase is 10 repeated in para 1, one would inevitably conclude that the appointment of the Plaintiff under LOA2 is intended to cover various plots of development land in KL Metropolis and the reference to Plot 7B(2) is merely a description of a plot but it did not mean that Plot 7B(2) is the only plot the Plaintiff has been retained for. 15 [18] The learned trial Judge had referred to 2 e-mails dated 20/12/2013 and 3/2/2014 exchanged prior to the execution of LOA2 (see para 9(e) (i) and (ii) above). We agreed with the Plaintiff’s submission that the learned trial Judge erred when he failed to consider there is no 20 reference to specific plots in KL Metropolis including Plot 5A in the correspondence preceding LOA1 and LOA2 as the discussion and scope was at all material times in relation to KL Metropolis as a whole. For example, the e-mail dated 1/1/2014 and 17/12/2013 exchanged between the Plaintiff and the Defendant concerned the subject matter 25 “KLM Branding and Marketing & Plot 7B1 and 7B2” and “KLM” referred to KL Metropolis which as we alluded earlier consisted of all the various plots therein. This can be gleaned from the evidence of Previn’s Witness Statement Q&A 12. 30 [19] In our judgment the learned trial Judge erred when he referred to the e-mail dated 16/4/2014 (see para 9 (f) above) in determining whether the Plaintiff was appointed as agent to sell KL Metropolis including Plot 16 5A as any evidence of a subsequent action is inadmissible to interpret a 5 written agreement as explained in Chitty On Contracts (supra). [20] Further we observed as pointed out by the Plaintiff that after the issuance of LOA1 and LOA2, the e-mail updates given by the Plaintiff to the Defendant were all in relation to the marketing of KL Metropolis to 10 relevant 3rd parties. In particular the said e-mail dated 3/3/2014 from Previn to Mr. Hendroff titled “Update KL Metropolis Land” wherein Previn had updated Mr. Hendroff (the Defendant’s COO whom Previn was told to liaise with) on the feedback stated - “1. Sunway – Active, waiting for proposal 15

Mah Sing – Declined

Ireka – Declined (though I think price will be a motivator for them)

Hap Seng – yet to revert

UEM – low balling price”. 20 [21] In addition we find the learned trial Judge erred in not taking into consideration post LOA1 and LOA2 the following e-mails which clearly depicted that the marketing endeavour was in respect of KL Metropolis as a whole. These are -

(a) e-mail from Previn to Mr. Hendroff dated 25/3/2014 with the 25 subject matter “KL Metropolis” wherein Previn had updated Mr. Hendroff on the feedback of IJM Land wherein IJM Land had indicated it was only interested in specific plots but have, among others, also asked for a detailed master plan of KL Metropolis; and

(b) e-mail from Previn to En. Ahmed Fairuz dated 16/4/2014 with the 30 subject matter “KL Metropolis” wherein Previn had informed the Defendant that Grocon, an Australian developer, was interested in KL Metropolis. 17 5 [22] In our judgment the contemporaneous documents read together with LOA1 and LOA2 clearly demonstrated that the Plaintiff’s appointment was in relation to KL Metropolis as a whole. Consequently, Plot 5A was clearly a part of the Plaintiff’s appointment. Previn when cross-examined consistently held the said position. We observed the 10 documents showed that if at all there were specific plots mentioned, it was because the relevant developer had queried on these plots, for e.g. IJM Land was specifically interested in Plots 1, 2 and 3 of KL Metropolis as per e-mail titled “KL Metropolis” dated 25/3/2014 from Previn to Mr. Hendroff (CCB/89). 15 [23] Even if can be argued that LOA1 and LOA2 did not cover Plot 5A, we observed premised on the e-mail dated 3/3/2014 from Previn to Mr. Hendroff (see para 20 above), it was apparent that as of March 2014, the Defendant was aware that among other prospects, the Plaintiff was 20 also approaching Hap Seng to market KL Metropolis. [24] We find the fact of the Plaintiff’s appointment was for the whole of the KL Metropolis which included Plot 5A was confirmed in examination in chief by En. Faliq, the Group Managing Director of Defendant and 25 TTD1 KL Metropolis Sdn Bhd, who signed LOA2 on behalf of the latter and which evidence remained unchallenged. [25] Further, Datuk Edward, the Group Managing Director of Hap Seng Consolidated Berhad and Director of Hap Seng Land Sdn Bhd (Hap 30 Seng) which is the wholly owned subsidiary of the former testified categorically - 18

(a) notwithstanding that Hap Seng may have been aware of the 5 existence of Plot 5A previously in 2012, it was Previn who approached him via a direct phone call to consider Plot/Lot 5A which was mentioned in the heading of the letter dated 8/8/2014 which is reproduced for better appreciation - “Proposed co-development by Hap Seng Land Sdn Bhd or its nominated 10 subsidiaries [“Purchaser”] of all that parcel of commercial leasehold land identified as Lot 5A, KL Metropolitan measuring approximately 8.95 acres with an indicative plot ratio of 11:0 [“said Land”] from NAZA TTDI Sdn Bhd [“Vendor”]”. The learned trial Judge said in his Grounds of Decision at para 32, 15 “According to SP6 [Datuk Edward] Hap Seng received information about KL Metropolis project and Plot 15A(sic) from other agents and not from the Plaintiff in 2012. It was way before the meeting on 22-7-2014.” Whilst this is true, what the learned trial Judge failed to consider is the evidence on what Previn did which resulted in the key meeting of 20 22/7/2014 and the discussion of the co-development of Plot 5A; and

(b) the said letter from Hap Seng to the Defendant referred to a meeting on 22/7/2014 between En. Faliq and himself which was arranged by Previn. Other attendees present were Previn, Haridash 25 from the Plaintiff and Miss Cheah Yee Leng, Executive Director of Hap Seng Consolidated Berhad. [26] Although the learned trial Judge acknowledged that it was the Plaintiff who arranged for the meeting, we find the learned trial Judge 30 erred in not considering the 8/8/2014 letter. The said letter is significant in that a plain reading of the same revealed - 19

(i) it made reference to the meeting of the 22/7/2014 testified by 5 Datuk Edward in para 1;

(v) pending the finalisation of negotiation Hap Seng requested for certain documents/information in para 4 . 25 [27] Following the 8/8/2014 letter from Hap Seng, Previn had vide a letter of even date to the Defendant, in para 2 informed the Defendant that “Pursuant to the [22/7/2014] meeting we are pleased to advise that Hap Seng Land Sdn Bhd [Hap Seng] have expressed their interest to jointly develop Plot 5A within KL Metropolis with [the Defendant] vide 30 their letter of even date” which the Plaintiff enclosed therein. Previn did follow-up with Ahmed Fairuz vide an e-mail dated 12/8/2014 titled “Re: Letter from Hap Seng - Re Plot 5 A” to which Ahmed Fairuz responded 20 vide e-mail of even date and bearing the same title stating “… yes a note 5 to Faliq is fine.” Previn then vide e-mail dated 13/8/2014 to En. Faliq forwarded Hap Seng’s letter 8/8/2014 asking “Shall we catch up to discuss this?” [28] Unfortunately there was no response whatsoever from the 10 Defendant for the period post 13/8/2014 to 29/1/2016. Datuk Edward in cross-examination answered that nothing happened though the Hap Seng’s letter of 8/8/2014 was carbon copied to the Plaintiff. We are of the view that nothing turns on this answer by Datuk Edward as the 8/8/2014 letter to the Defendant was particularly for the attention of En. 15 Faliq whilst Previn on the Plaintiff’s part had taken positive steps to bring the former’s attention to the contents of the said letter with a poser seeking for a discussion. [29] We found it was the Defendant who kept the Plaintiff out of the 20 negotiations. There was complete silence since the last e-mail dated 13/8/2014 from Previn to En. Faliq until the Plaintiff discovered of the execution of the Shareholders’ Agreement and the Development Rights Agreement between the parties on the Joint Venture mentioned in para 5.22 above around 30/1/2016 and 20/2/2016 through business news 25 publications, for e.g. The Star Online News article dated 20/2/2016 with headline “Naza TTDI signs deal with Hap Seng to develop KL Metropolis”. [30] In light of all the events that transpired, in our judgment the 30 Defendant is estopped from denying the Plaintiff’s appointment as their agent in respect of the Plot 5A transaction albeit a Joint Venture which we will address later. If indeed the Defendant was of the view that the 21 Plaintiff’s services were no longer required, they would not have relied 5 on the Plaintiff’s assistance to arrange for the crucial 22/7/2014 meeting or even bother for En. Faliq to attend the said meeting. On the other hand, it cannot be denied that the Defendant had through the conduct of their officers/representatives represented and/or encouraged the Plaintiff to continue to pursue Hap Seng. Hence even if there was no express 10 appointment vide LOA1 and LOA2, we find it would inequitable to deprive the Plaintiff of their fees for work done in marketing KL Metropolis and the Defendant is thus estopped from doing so as “subsequent actions” constitute a basis for an estoppel (see Chitty on Contracts (supra)) and also by the course of conduct adopted by the 15 Defendant as aptly described in Boustead Trading (supra). Issue 3 - whether Plaintiff was the effective cause of the sale of Plot 5A [31] Having established that it is our finding that there was a 20 contractual relationship between the Plaintiff and the Defendant, we now turn to the issue whether the Plaintiff is the effective cause of the sale of Plot 5A. [32] The learned trial Judge correctly stated in para 30 of the Grounds 25 of Decision that - “In order for the Plaintiff to succeed, the Plaintiff is not only required to prove it had been duly appointed, it must also prove that it was the “effective cause” of the sale of Plot 5A from the Defendant to Hap Seng. The effective cause need not be the immediate cause of the transaction.” 30 [33] However we are of the considered opinion the learned trial Judge fell into error when he held the Plaintiff failed to prove that it introduced 22 Hap Seng to the Defendant and that the Plaintiff’s effort was not the 5 effective cause of the “sale (joint venture to develop) of Plot 5A”. With respect we disagreed with this finding for the following reasons. [34] In determining whether the Plaintiff is entitled to their professional fees, we turn to the following authorities: 10 [34.1] In the Federal Court case of Chew Teng Cheong & Anor. v. Pang Choon Kong [1983] CLJ (Rep) 86 at p.87, Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) held - “Where the agency contract provides that the agent earns his remuneration 15 upon bringing about a certain transaction, he will be entitled to such remuneration if he is the effective, not necessarily the immediate cause of the transaction being brought about. Whether there is a sufficient connection between his act and the ultimate transaction must be ascertained from the facts of the case. "The effectiveness of the agent's 20 work is a matter of inference from the evidence" per McGregor J in Sushames v.Cumming [1962] NZLR 920 at p. 925. Where the agent can show that some act of his was the causa causans of the transaction (Tribev. Taylor [1876] 1 CPD 505, 510) or was an efficient cause of the sale (Miller v. Radford [1903] 19 TLR 575), he is entitled to his agreed remuneration. Both of these cases 25 were approved in the Privy Council in Burchell v. Gowrie and Blockhouse Collieries Limited [1910] AC 614, which itself is a case where the broker was held entitled to recover because he had brought the company into relation with the actual purchaser, although the company had sold behind his back ...” (Emphasis added) 30 [34.2] The Court of Appeal in Inch Kenneth Kajang Rubber Public Limited Company v. Tor Peng Sie [2014] 2 CLJ 215 at 231[29] referred to Chew Teng Cheong (supra) and held for an agent to be 23 entitled to their fees, they are required to show they are the effective 5 cause in bringing the parties together. [34.3] A similar approach of effective cause and that the chain of causation was not broken was adopted by the Singapore Courts for e.g. in - 10

(a) In Ong Kee Ming (t/a FL Development and Property Consultants) v Quek Yong Kang & Anor [1991] SLR 562, the High Court held that an agent was entitled to his commission even after the lapse of his appointment as he was, on the evidence, the effective cause 15 of the ultimate sale. Chan Sek Keong J referred to the cases of Wilkinson v Alston (1879) 48 LJQB 733 (p.565), Glentree Estates Ltd v Gee (1981) 259 EG 332 (pp.565-566) and Green v Bartlett [1863] 14 CB (NS) 681 at p.565 G-H). 20

(b) Colliers International (Singapore) Pte Ltd v Senkee Logistics Pte Ltd [2007] 2 SLR 230 (HC) at 245[51] to [52]. [35] Upon consideration of all the facts and evidence and the contemporaneous documents alluded to in paras 25 to 30 above, in our 25 judgment the Plaintiff has proved on a balance of probabilities that they are the effective cause of the transaction. If the Defendant alleged that there is another effective cause, then the onus of proof is on them to prove the same (See International Times & Ors. v. Leong Ho Yuen [1980] 2 MLJ 86 at p.87 C-F right column). However as the evidence 30 disclosed between 13/8/2014 till 29/1/2014, the Defendant could not prove any intervening event had occurred as to cause a break in the chain of causation. 24 5 [36] In Cheng Poh Holdings Sdn Bhd v. Ernest Jai Kumar Azad [2011] 1 LNS 1728, the Court of Appeal had in essence held notwithstanding a transaction document was executed after the expiry of the agent’s mandate, the agent would still be entitled to fees if they were the effective cause of the transaction. In arriving at its decision, 10 the Court of Appeal referred to Chew Teng Cheong (supra), Ong Kee Ming (supra) and Green v Bartlett [1863] 14 CB (NS) 681 which was referred in both the 2 former cases. [37] In Green v. Bartlett (supra), G, an auctioneer and estate agent, 15 was instructed by B to sell an island by auction or otherwise. G put the island up for auction but the reserved price was not reached. Afterwards, T, who had attended the auction, asked G for and was given B's name. T then approached B direct to negotiate the purchase of the island. Before the eventual sale, B terminated G's authority to sell. The court 20 held that G was the causa causans of the sale and was entitled to the commission. [38] In the present case, the Defendant argued that the Plaintiff was not the “effective nor immediate cause of the transaction being brought 25 about” as there were no further discussions from 22/7/2014 until January 2016, the Plaintiff’s appointment had expired on or before February 2015 which was before the Development Rights Agreement dated 29/1/2016 entered between TTDI KL Metropolis and Golden Suncity Sdn Bhd and there was a break in the purported appointment. 30 [39] With respect we find there are no merits in the Defendant’s submission. We adopt what we have stated in paras 25 to 30 and 34 25 and the sub paras thereunder on the sequence of events that transpired 5 prior to and post 22/7/2014 meeting and the Plaintiff’s involvement and the Defendant’s conduct throughout till 13/8/2014 and thereafter till 29/1/2016 of the fact that there was complete silence from the Defendant. Applying the principle in Green v. Bartlett (supra), we are of the view that the Plaintiff is entitled to their fees notwithstanding the 10 expiry of the period of the appointment under LOA2 and whether or not the subsequent discussions between Hap Seng and the Defendant had stalled and had purportedly revived later, these do not constitute a break in the chain of causation. Further based on the preceding authorities cited, what is material is whether on the facts and evidence, the Plaintiff 15 was the effective cause of the transaction which we answer in the affirmative. [40] The Defendant argued that that the 8/8/2014 letter sent by the Plaintiff to the Defendant was an afterthought to vary the terms of LOA1 20 and LOA2 when the Plaintiff had discovered about Plot 5A for the first time in the meeting on 22/7/2014. With respect in our considered opinion there is no variation and s.92 of the Evidence Act does not apply for the following reasons: 25 [40.1] Firstly, what Previn did in the 8/8/2014 letter was to merely state -

(a) in para 1, what was discussed at the 22/7/2014 meeting i.e. “the possible joint development of Plot 5A within the KL Metropolis” and the persons at the said meeting;

(b) the contents of para 2 appears in para 27 above; 26

(c) in para 3, the Plaintiff requested for a date to discuss on the land 5 value and the main commercial terms. [40.2] Secondly, it is absurd to contend there is variation given that all along it has been the Plaintiff’s stand that LOA1 and LOA2 dealt with development land in KL Metropolis which encompassed various plots of 10 land, including Plot 5A for the reasons explained in paras 14 to 22 above. Issue 2 - whether the Joint Venture was a sale or Defendant was estopped by contract and conduct 15 [41] The Defendant argued the Plaintiff had attempted to introduce a Joint Venture which was an unpleaded issue and therefore the Plaintiff should be estopped from introducing oral evidence of the Joint Venture, interest paid on the Joint Venture, delivery of vacant possession, transfer of land and sale of interest. 20 [42] In our judgment, the aforesaid pleading issue is totally unfounded as the “Joint Venture” is undoubtedly pleaded in para 9 of the Statement of Claim as follows: “9. Through the marketing efforts of the Plaintiff, the director of Hap Seng, 25 one Datuk Edward Lee Ming Foo (“Datuk Edward”) had contacted the Plaintiff’s Chief Executive Officer, one Mr. Previndran Singhe (“Mr. Previn”) to express Hap Seng’s interest in Plot 5A. The Plaintiff then notified the Defendant’s En. Faliq of Hap Seng’s interest and upon the Defendant’s confirmation of En. Faliq’s available dates, Mr. Previn 30 proceeded to set up and facilitate a meeting between Datuk Edward and En. Faliq, which took place on 22.7.2014. This was followed by a letter dated 8.8.2014 issued by Hap Seng in which they had expressed and confirmed their interest in writing to co-develop 27 Plot 5A with the Defendant (“Joint Venture”). This letter from Hap 5 Seng (that was copied to the Plaintiff) was given directly to the Plaintiff by Hap Seng, whereby the Plaintiff had thereafter forwarded the same to En. Faliq, as an attachment in the Plaintiff’s letter also dated 8.8.2014.” (Emphasis added) 10 [43] The Defendant submitted (i) the concluded transaction was not a sale and purchase of land and buildings but it was a Joint Venture and

(a) the mechanics of the Plot 5A transaction was a sale of Plot 5A to the Joint Venture company, Golden Suncity Sdn Bhd. In this regard we agreed with the Plaintiff’s submission that - 28

(i) the Plot 5A transaction in question also involves a consideration 5 sum in Plot 5A as well as a delivery of possession of Plot 5A from the owner to be paid by the relevant party (in this scenario, the Joint Venture company) and a transfer of interest TTDI KL Metropolis Sdn Bhd to the Joint Venture company; and 10

(a) Land and Buildings Maximum fee of 3%

(b) Fees for other services such as joint venture, sale of company, property swaps, etc. 25 Maximum fee of 3%

(c) Chattels including plant and machinery 10% of the proceeds”. (Emphasis added) 30 [47] Reading the abovesaid provision, we are of the considered opinion that the term “Sale and Purchase” envisages 3 categories of transactions i.e. (a), (b) and (c) as listed above. In the context of the present case, the Joint Venture transaction falls within the ambit of 29 category (b) as emboldened above where the maximum scale of fee 5 chargeable is 3% on the value of the transaction. [48] En. Azmi, the Defendant’s Group Legal Head admitted that the KL Metropolis lands could not be sold to 3rd parties in an outright sale and purchase scenario as they would be prevented from transferring/ 10 registering the title to a 3rd party due to certain restrictions. The fact of such restriction is evident when the Defendant had relied on a letter from the “Pentadbir Tanah” dated 31/10/2014 in respect of another transaction of another plot in KL Metropolis (CCB/161). 15 [49] Hence it is not surprising that the mechanics of the Joint Venture between Hap Seng and the Defendant had to take the form and manner as encapsulated in the Shareholders’ Agreement and Development Rights Agreement mentioned in para 5.22 above. Seen in this context, we are of the view that the argument of the Defendant that LOA1 and 20 LOA2 are void under s.24 of the Contracts Act 1950 is irrelevant. [50] Further the Defendant submitted that they are not liable for the fees as the Joint Venture transaction was between TTDI KL Metropolis Sdn Bhd and Golden Suncity Sdn Bhd whilst the Plaintiff and the 25 Defendant were not parties to the Joint Venture. We find the Defendant’s submission has no merit. Our reasons are these. [50.1] In Tang Chiok Sing v. Lian Fatt Sawmill Co [1976] 2 MLJ 241, the facts as per Headnotes: The appellants had claimed commission 30 against the respondents under an agreement by which the respondents agreed to pay the appellant commission, entertainment and service fees if the appellant was successful in getting a Korean concern, Shin Fung 30 (Borneo) Co. to enter into a contract to extract and purchase timber from 5 a concession area. The respondent firm had become defunct and the partners of the firm incorporated a limited company, the Lian Fatt Sawmill Co. Ltd. to work in the concession area. Forest licences which had been issued to the firm were renewed in the name of the company. The company entered into the agreement with the Korean concern for 10 the extraction and sale of timber in the concession area. The appellant claimed commission under the agreement with the firm. His claim was dismissed in the High Court and he appealed to the Federal Court. [50.2] The Federal Court held - 15 “(1) once the appellant had brought the parties together he was entitled to his commission and it did not matter that in fact the Korean concern made the contract with the limited company and not the firm as the persons in control of the partnership and the limited company were the same;

(a) Professional Fees at 1.5% RM467,834,400.00 x 1.5% = RM7,017,516.00 15

(b) Professional Fees at 2% RM467,834,400.00 x 2% = RM9,356,688.00 Based on 70% of Actual Joint Venture Value (B)

(a) Professional Fees at 1.5% 20 (RM467,834,400.00 x 70%) x 1.5% = RM4,912,261.20

(b) Professional Fees at 2% (RM467,834,400.00 x 70%) x 2% = RM6,549,681.60 Note: In (A) and (B), the figure of RM467,834,400.00 is based on 25 the definition of “Consideration Sum” in Development Rights Agreement. Based on a Value at RM800 per square foot (C)

(a) Professional Fees at 1.5% 30 RM800 per sq. foot x 389,862 sq. feet = RM311,889,600.00 Professional Fees (ie. 1.5% of RM311,889,600)= RM4,678,344.00

(b) Professional Fees at 2% RM800 per sq. foot x 389,862 sq. feet = RM311,889,600.00 35 32 Professional Fees (ie. 2% of RM311,889,600)= RM6,237,792.00”. 5 [52] In the Development Rights Agreement, recital A, Plot 5A area measurement is 389,862 sq. feet (i.e. 8.92 acres), scale of professional. We held the view that the most appropriate computation of damages (fees due) to be awarded to the Plaintiff is the amount of 10 RM4,678,344.00 claimed in paragraph C (a) of R1 which was the preferred option submitted by the learned Counsel for the Plaintiff. Conclusion [53] For the foregoing reasons discussed above our findings are - 15

(a) Issue 1 - the Plaintiff was appointed expressly or through estoppel to market KL Metropolis which included Plot 5A;

(b) Issue 3 - the Plaintiff was the effective cause in bringing the Defendant and Hap Seng together in the Plot 5A transaction and of the 20 sale of Plot 5A and there was no break in the chain of causation; and

(c) Issue 2 - the entry of the Joint Venture to develop Plot 5A amounted to a sale. In any event the Defendant was estopped by contract and conduct from asserting otherwise. 25 [54] We concluded that the learned trial Judge had erred in his findings in respect of Issues 1, 2 and 3 and there are merits in the appeal which warranted appellate intervention (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309 (FC) at p.320). We unanimously 30 allowed the appeal and made the following Order: 33

(a) allowed the Plaintiff’s claim in the sum of RM4,678,344.00 as per 5 the calculation in paragraph (C) (a) of R1;

(b) allowed Plaintiff’s claim for interest on the sum of RM4,678,344.00

(c) set aside the High Court’s decision of 25/4/2018; and

(d) awarded agreed costs of RM35,000.00 (High Court) and RM20,000.00 (Court of Appeal) to be paid to the Plaintiff subject to 15 allocator. Dated: 19/6/2019 20 Sgd. Lau Bee Lan Judge of Court of Appeal 25 Putrajaya COUNSEL: Gopal Sreenevasan for the Appellant 30 (Yap Chin Ling with him) [Messrs Song & Partners] V. Vijakumar for the Respondent (Dahrick Sivam a/l Balakrishnan with him) 35 [Messrs Albar & Partners]