EMERCON BINA SDN BHD KUMPULAN PRASARANA RAKYAT JOHOR SDN BHD

EMERCON BINA SDN BHD KUMPULAN PRASARANA RAKYAT JOHOR SDN BHD

The Court held that oral collateral assurances together with pleaded implied terms and admissions imposed on the defendant a contractual obligation to apply for and procure surrender and re-alienation; the defendant failed to take reasonable positive steps (including appealing to the Menteri Besar or negotiating with Johor Corp), the subsequent transfer of the Project Land was a self‑induced act and did not amount to frustration, the Deed of Settlement constituted acknowledgement of liability and preserved the claim, and the plaintiff proved loss of profits of RM50,215,120.00 which should be awarded in full (trial judge erred in unilaterally halving that sum).

Citation
J-02(NCVC)(W)-330-02/2018 (Mahkamah Rayuan)
Parties
Plaintiff/appellant (in Appeal No.330): Emercon Bina Sdn Bhd; Defendant/appellant (in Appeal No.329): Kumpulan Prasarana Rakyat Johor Sdn Bhd
Court
NCVC
Jurisdiction
Malaysia
Judgment Date
12 September 2019
Case Number
J-02(NCVC)(W)-330-02/2018 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (contract Dispute) / Court of Appeal Judgment on Consolidated Appeals From High Court After Trial
Outcome
Appeal No. J-02(NCVC)(W)-329-02/2018 dismissed (High Court decision affirmed); Appeal No. J-02(NCVC)(W)-330-02/2018 allowed (trial judge's reduction set aside)
Legal Topics
Breach of Development Agreement, Joint Venture and Collateral Assurances, Surrender and Re Alienation of Land, Frustration of Contract, Adverse Inference Under Evidence Act S114(g), Deed of Settlement and Estoppel, Quantum of Loss of Profits
Source Language
Malay/English
Contract Law Land Law Administrative Law Evidence Civil Procedure Damages Breach of Development Agreement Joint Venture and Collateral Assurances +5 more

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Parties

Emercon Bina Sdn Bhd

Plaintiff/appellant (in Appeal No.330)

Kumpulan Prasarana Rakyat Johor Sdn Bhd

Defendant/appellant (in Appeal No.329)

Procedural Posture

Civil Appeal (contract Dispute) / Court of Appeal Judgment on Consolidated Appeals From High Court After Trial

Legal Issues

  1. 1 Whether oral collateral assurances by defendant's CEO were binding and constituted a collateral agreement
  2. 2 Whether defendant had contractual duty to procure surrender and re-alienation and whether it breached that duty by failing to take reasonable positive steps (including appealing to the Menteri Besar or meeting Johor Corp)
  3. 3 Whether transfer of Project Land to Johor Corp or rejection of application constituted frustration or a supervening event excusing performance

Ratio Decidendi

The Court held that oral collateral assurances together with pleaded implied terms and admissions imposed on the defendant a contractual obligation to apply for and procure surrender and re-alienation; the defendant failed to take reasonable positive steps (including appealing to the Menteri Besar or negotiating with Johor Corp), the subsequent transfer of the Project Land was a self‑induced act and did not amount to frustration, the Deed of Settlement constituted acknowledgement of liability and preserved the claim, and the plaintiff proved loss of profits of RM50,215,120.00 which should be awarded in full (trial judge erred in unilaterally halving that sum).

Court Disposition

Appeal No. J-02(NCVC)(W)-329-02/2018 dismissed (High Court decision affirmed); Appeal No. J-02(NCVC)(W)-330-02/2018 allowed (trial judge's reduction set aside)

Orders

  • Set aside trial judge's deduction of damages by one-half
  • Award plaintiff damages for loss of profits in the full sum of RM50,215,120.00