BUSINESS LEAP (M) BHD XXXX

WA-21NCVC-49-04/2017 Kand. 132 WA-21NCvC-49-04/2017 08/11/2023 16:15:20 5 IN THE HIGH COURT OF MALAYA IN KUALA LUMPUR WILAYAH PERSEKUTUAN, MALAYSIA CIVIL SUIT NO: WA-21NCVC-49-04/2017 BETWEEN 10 BUSINESS LEAP (M) SDN BHD (Company No.: 358283 -K) …PLAINTIF AND 15 1 FEDERAL LAND COMMISSIONER 2 MINISTER OF FINANCE MALAYSIA 3 GOVERNMENT OF MALAYSIA … DEFENDANTS 20 JUDGMENT (Enclosure 1) INTRODUCTION [1] The parties in this suit are as follows: 25 (i) The Plaintiff (P) is a duly incorporated Malaysian company. (ii) The First Defendant is the Federal Land Commissioner (D1), a statutory body incorporated under the Federal Land Commissioner Act 1957 that has been trusted with managing lands belonging to the Government of Malaysia. 30 (iii) The Second Defendant (D2) is the Minister of Finance (MOF). (iv) The Third Defendant (D3) is the Government of Malaysia (Government). The defendants will be collectively referred to as the defendants (the Ds). 35 1 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 [2] This action was taken: 2.1 By the plaintiff seeking a declaration over an alleged concluded Sale and Purchase Agreement (SPA) that has not been executed by the 40 parties over the sale and purchase of a parcel of land belonging to the Federal Government of Malaysia held under Grant 28935, 28935, Lot 523, Section 9, Kuala Lumpur, which was registered under the D1’s name. 45 2.2 Without a contract (formal or otherwise) between the parties, the defendants deny the claim grounded on the premise that there is no legal basis or cause of action as a foundation for the action. 2.3 On 29.08.2023, after considering the facts, the totality of the 50 evidence adduced at the trial, and the parties' respective arguments, I find no merits in the plaintiff's suit against the defendants and the issue of damages do not arise from these facts. I dismissed it with a cost of RM40,000.00 to be paid within 30 days. The Ds lawfully forfeited the earnest deposit by the P. 55 2.4 Aggrieved, the P filed this appeal against my decision, and these are my reasons: BRIEF FACTS: 60 [3] Parties have filed agreed facts, and in narrating the brief facts, I will also refer to a series of correspondences and documents available before me. In examining the evidence at the trial for the P and the Ds, I found as follows: 2 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 65 3.1 An allegation of a concluded SPA between the parties over a parcel of leasehold land (Geran 28935, Lot 523, Section 9, Kuala Lumpur, 1.1 acres, with a restriction in interest: Tanah boleh dipajak atau digadai setelah mendapat kebenaran Pihak Berkuasa Negeri) owned by the D3. 70 3.2 On 29.12.2011, the First Offer Letter (L.35, bundle B1, pg.1) for the parcel of land by the Ds was formerly issued to the P subject to agreed terms and conditions for a monetary consideration of RM32,032m. It was decided that: (a) A 2% earnest deposit of RM640,640.00 was required. 75 (b) 8% balance (RM2,562,560.00) to be paid upon executing the Sales and Purchase Agreement (SPA). (c) 90% of the purchase price (RM28,828,800.00) is to be paid before Form 14A NLC is executed by D1. 80 3.3 On 26.03.2012 (L.38, bundle B2, pp.3-4): (a) P paid the 2% deposit (RM640,640.00) with the balance purchase price to be paid by 15.12.2013, which was acknowledged as an earnest deposit in a letter by D2 on 27.12.2012 and instructed that a SPA be drawn up for 85 execution. (b) An extension of time (EOT) to pay the balance purchase price was granted to 30.06.2014 at the P's insistence. 3.4 On 12.07.2013 (L.39, bundle B3, pp.26-27), D2, by letter, did not 90 object to the P’s conducting a soil investigation, survey plan and permission to apply for a development order concerning the said land at no cost to the Ds. 3 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 3.5 Thereafter, the P discovered that the said land had been 95 encroached on by trespassers. In a meeting on 13.09.2013, the Ds confirmed that necessary action would be taken to resolve it while the agreed terms and conditions for the proposed SPA were being ironed out. 100 3.6 The P agreed to terms imposed in the first letter of offer but wanted the finalisation of the transaction to be completed only upon the removal of the encroached concrete structure on the land. A banker’s cheque for RM2,562,560 (8% of the balance deposit sum) was drawn up and brought to a meeting on 5.5.2015 but was 105 declined by the Ds (Bundle B1, pg.296, para 2.1.4). 3.7 On 21.04.2012, the Ds asked the P to execute the SPA and were reminded on 10.7.2014. The P was informed on 30.7.2015 that in the event of failure by the P to conclude the transaction by 110 15.9.2015, the offer to purchase would be withdrawn automatically. At the P’s request, a further EOT was granted to 15.12.2015. 3.8 On 20.04.2015 and 16.06.2015, P was informed that the sale of the parcel of land was conditioned on an as-is-where-is basis. 115 3.9 On 22.4.2016, the Ds retracted the first offer letter and issued a Second Offer Letter (L.35, bundle B1, pg.308) with the following revised terms and conditions of sale for the said land: (a) The purchase price is revised to RM50,336,000.00 based on 120 the current market valuation by Jabatan Penilaian dan Perkhidmatan (JPPH). 4 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 (b) The P is given a six-month EOT beginning 15.12.2015 and expiring on 14.06.2016 to conclude the transaction. (c) The P is to make an additional payment of RM366,080.00 to 125 top up the 2% earnest deposit. (d) The balance of the deposit (8%) amounting to RM4,026,880.00 upon the execution of the SPA. (e) The balance purchase price of RM45,302,400.00 (90%) will be made on or before 14.06.2016. 130 3.10 The P accepted the Second Offer Letter and paid the additional 2% earnest deposit on 11.05.2016. An EOT for paying the balance purchase price of 90% was granted to 14.12.2016 (BL.35, bundle B1, pg.311). 135 3.11 Throughout the period, the P kept asking for a further EOT to conclude the transaction and also pleaded for the restoration of the first offer price of RM32.032M, as reflected in the First Offer Letter of 29.12.2011, which the Ds rejected. 140 3.12 The Ds continued to press the P to execute the SPA on (06.10.2016, 11.10.2016, 08.12.2016, 13.12.2016), but the plaintiff failed. 3.13 According to the P, the delay in concluding the SPA was occasioned 145 by the issue of the encroachment upon the said land. On 24.2.2014, D2 confirmed the encroachment and agreed to assist the P to resolve the issue (L.35, bundle B1, pg.222). On 10.07.2014, D2 confirmed that the encroachment had been removed (L.35, bundle B1, pg.224). 150 5 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 3.14 On 14.07.2014 (L.35, bundle B1, pg.227), P informed D2 that steel and fences had been removed, but the concrete structure remained and requested a joint inspection of the said land: (a) On 23.07.2014 (L.35, bundle B1, pg.229), D2 requested the P 155 to appoint a licensed surveyor to confirm the position of the alleged concrete structure. (b) On 06.02.2015, P wrote to D1 informing them that the SPA cannot be finalised due to the encroachment issue and, at the same time, requested D1 to execute the planning permission. 160 (c) On 20.04.2015 (L.35, bundle B1, pg.189), Ds informed the land is sold on an as-is-where-is basis. 3.15 On 15.12.2016, the Ds unilaterally terminated the offer for the sale of the said land on the basis that the P failed to execute the SPA 165 relating to the second offer letter and the failure to pay the 90% balance purchase price (RM49,329,280.00) on or before 14.12.2016. The Ds forfeited the earnest deposit of RM1,006,720.00. 170 3.16 On 28.04.2017, the plaintiff filed the present suit against the Ds for a declaration that SPA between the parties was concluded and other related prayers. In brief: (a) A declaration that an agreement has been concluded between the P and the Ds in which the Ds agreed to alienate and/or sell 175 a piece of land held under Grant 28935, Lot 523, Section 19, Kuala Lumpur, to the P and the P had agreed to purchase the said Land. (b) A declaration that the letter dated 15.12.2016 issued by D2 informing that the Ds have withdrawn the offer is void and shall 180 not be applicable. (c) A declaration that the first letter of offer issued by D2 is still valid and in force. 6 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 (d) A declaration that the offer by the Ds to the P for the sale of the said Land does not contain any encroachment and/or any 185 foreign structures erected thereon. (e) In the alternative, an order to demolish and/or remove any encroachments remaining on the said Lan. (f) The Ds is liable to pay the P a sum of RM7,627,255.42, being the cost of expenses, damages and/or losses within 30 days 190 from the date of judgment. (g) That the Ds do jointly and severally pay the P general damages to be assessed by the Court. (h) That the Ds shall bear the costs of this action. (i) Interest at the rate of 5% per annum from the date of filing of 195 this action until full settlement, and (j) Any further or other relief this Honourable Court deems fit and proper. 3.17 The list of witnesses at the trial is as follows: - 200 (a) Plaintiff’s witnesses: (i) PW1 Pang Yeow Choy (Solicitor for UOB Bank Berhad) (ii) PW2 Choy Wai Cheong (P’s director) (b) Defendants’ witnesses: 205 (i) SD1 Dato’ Romli bin Dai (Setiausaha Bahagian Pengurusan Aset Awan Kerajaan) (ii) SD2 Dato’ Sri Dr. Mohd Isa Hussain (Timbalan Ketua Setiausaha Perbendaharan) (iii) SD3 Dato’ Zainal Abidin bin Mat Nor 210 (Timbalan Setiausaha Bahagian Pengurusan Aset) (iv) SD4 Sharifah Hamidah binti Syed Harun (Ketua Penolong Setiausaha, Bahagian Pengurusan Aset Awam) THE PLAINTIFF’s SUBMISSIONS 215 [4] I observed the P’s arguments in canvassing and ventilating their position as follows: 4.1 The P argued that: (a) There is already a concluded contract between the parties. 7 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 (b) The SPA could not be finalised due to the unreasonable 220 conduct of the Ds. (c) The P is seeking an order for specific performance of the alleged concluded SPA and for damages. 4.2 The P argued that there is already a concluded contract based on 225 the first letter of offer where a 2% earnest deposit had been paid. D2 had acknowledged receipt of the said earnest deposit on 27.12.2012 and agreed to sell the said land at the 1st purchase price of RM32,032m. The P also argued that the P had also accepted the second offer letter, where the additional earnest deposit was paid on 230 11.05.2016. 4.3 The P cited Sarah Sayeed Majangah (t/a a sole proprietor under the name and style of Sayfol International School) & Anor v Lembaga Getah Malaysia & Anor [2016] 3 MLJ, CA that the Court 235 will not permit a party who had subscribed to the terms to evade to conclude the agreement for circuitous reasons. The P further argued that it is a concluded contract or an open contract because of the following circumstances: (a) The SPA had been identified. 240 (b) The subject matter land had been identified. (c) The 2% earnest deposit had been paid and received. (d) The transaction is not subject to the execution of a formal SPA and is enforceable by the P. 245 The P cited the Federal Court in Charles Grenier Sdn Bhd v Lau Wing Hong [1996] 3 MLJ 327, FC, that the Court is in favour of upholding bargains and not striking them down willy-nilly. The Court of Appeal’s ruling in Emas Kiara Sdn Bhd v Michael Joseph 8 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 Monteiro & Ors [2018] 5 MLJ 54, CA that where the subject matter 250 and the terms had been identified, with the payment of the deposit, it evinced an intention to create a legal intention by the parties. 4.4 The conduct of the D2 in allowing the P to submit for planning approval, carry out the soil investigation and carry out a land survey, 255 as well as the P having already procured a conditional development order for DBKL and having applied for financing from UOB Bank Berhad for the purchase of the said land are testament to a concluded bargain between the parties. The P cited Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank 260 Berhad [1995] 3 MLJ 331, FC law on promissory estoppel is applicable in the circumstances. 4.5 The P denies any alleged breach on its part, and the unilateral termination by the Ds was unlawful: 265 (a) There is no evidence from the Ds that the P had agreed to pay the increased purchase price stated in the second offer letter. (b) The Ds unilaterally impose the revised purchase price in the second offer letter. (c) The second offer letter makes no provisions for the purported 270 termination of the said offer and cited Akitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd [2007] 5 MLJ 687, FC that found that the agreement between the parties did not provide any express right to terminate. Therefore, it can only be terminated on the grounds of breach or for just cause. 275 (d) Time was no longer the essence of the agreement, and there are no provisions to make time the essence by the parties and 9 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 cited Damansara Realty Bhd v Bangsar Hill Holdings Sdn Bhd & Anor [2011] 6 MLJ 464. (e) Section 56(2) Contracts Act is clear that when time is no longer 280 essential, the contract does not become voidable by failure to do things on or before the appointed time. The P cited Berjaya Times Squares Sdn Bhd v M Concept Sdn Bhd [2010] 1 MLJ 597, FC that found that the respondent’s conduct certainly points to the conclusion that even if time was of the essence 285 when the contract was made, it ceased to be the essence. (f) The Ds knew that the P requires financing to fund the purchase of the said land. For that purpose, it requires consent from the Jawatankuasa Kerja Tanah Wilayah Persekutuan Kuala Lumpur for the said land to be charged to the financing bank. 290 D2 had never indicated its objection to charging the said land to secure the financing for the purchase. D2 intends this for the P to fail to conclude the SPA. (g) The Ds have no lawful basis to issue the termination letter. 295 4.6 In the circumstances, it was asserted that: (a) P is entitled to an order for specific performance under section 11 Specific Relief Act, 1950, and cited Zaibun Sa Binti Syed Ahmad v Loh Koon Moy & Anor [1982] 2 MLJ 92 in support where the Privy Council in addressing section 11 of the Specific 300 Relief Act, commented that it is plain in the instant case is one which required the exercise of the discretionary powers of the Court to order specific performance of the purchaser’s suit: not only was there the requirement of a contract of sale of immovable property leading to a presumption by the Court, 10 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 305 “unless and until the contrary is proved, that section 11(a)(c) was applicable”. (b) If the Court denies the order for specific performance, then it should order the return of the 2% earnest deposit (RM1,006,720.00) and damages (RM7,627,255.42). 310 In the circumstances, the P prays for an order in terms of its prayers in the Statement of Claim with costs. 315 THE DEFENDANTS’ SUBMISSIONS [5] I observed the Ds in canvassing and ventilating for their defence as follows: 5.1 That, via the First Letter of Offer (29.12.2011), had indeed offered the P to purchase the said land subject to the terms as dictated 320 therein (L.35, bundle B1, pp.8-9): (a) Paragraph 5 of the said first letter of offer also stipulates that D2 will not be held responsible for any expenses and costs incurred by P for the transaction. (b) There is no ambiguity that the first letter of offer provides that 325 the balance deposit of 8% (RM2,563,560.00) was to be paid upon executing the SPA. At the same time, the balance of 90% of the purchase price (RM28,828,800.00) was to be honoured before the execution of the Memorandum of Transfer (Form 14A NLC). 330 (c) The Ds tabulated the essential facts on the chronology of events concerning the transaction in paragraph 5, pp.3-8, enclosure 119. Though the P claims that the tabulation missed out on certain alleged critical documents, as raised in enclosure 11 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 126, but upon examination, I find the missing items were 335 inconsequential to the outcome of the completion of the SPA. It relates to the role of the P in intending to and taking the preliminary steps to develop the said land. The Ds’ position is evident in that, as the vendor, they were only interested in completing the SPA and receiving the total purchase 340 consideration, which the P had failed to do after several EOTs lasting five years after the first offer letter was issued. The draft SPA remains unsigned by the parties. 5.2 The Statement of Issues to be Tried can be found in enclosure 64: (a) Whether there exists a valid and enforceable SPA between 345 the parties: (i) The Ds argued that there had been no executed SPA between the parties since the first offer letter was issued in 2011, all the way to the revocation of the offer in the second offer letter in 2016. 350 (ii) The offer letter is specific for the need for an executed and concluded SPA between the parties. Without it, there can be no concluded contract, as argued by the P. The Ds cited the Court of Appeal in Proton Edar Sdn Bhd v Multioto Assist Sdn Bhd [2015] 7 CLJ 745, CA, which found that 355 it was a condition precedent of the heads of agreement for the need for a concluded contract. In such circumstances, the Court is not at liberty to rewrite the agreement between the parties (Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 3 CLJ 520, CA was cited, and a 360 plethora of other authorities to support that legal position taken by the Ds). (iii) PW2 confirmed at trial that no SPA was executed for the first offer letter or the second offer letter, as required by the offer. 12 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 365 (iv) After seven drafts of SPA between the parties, it could not be finalised and remained a draft SPA for that five-year wait (with several EOTs granted). (v) In the premise, there could never be any concluded agreement as argued by the P. 370 (b) Whether the Plaintiff is the legally beneficial owner of the Land. (i) Throughout that period of five years, there is no existence of a concluded SPA and/or the creation of a trust in favour 375 of the P over the said land. (ii) Undoubtedly, there is no legal basis to give the P any beneficial interest in the said government land. (iii) PW2, during the trial, confirmed that when the P appointed all the consultants, they were not yet the landowner. They 380 had to apply for permission from the Ds to commence preliminary work for the intended development of that land. (iv) The Ds cited Pengarah Tanah dan Galian Negeri Kedah & Anor v Emico Development Sdn Bhd [2000] 1 MLJ 257, CA, which found that the only thing that existed was 385 the sale and purchase agreement with the deposit paid. On that date, the respondent was not the registered proprietor of the said land nor was he the occupier; IB Capital Sdn Bhd v Ivory Indah Sdn Bhd [2022] 1 MLJ 860, CA which ruled that without the payment of the total 390 purchase price, the plaintiff did not acquire any beneficial interest in the land. (c) Whether the termination notice issued by the Defendants is valid and enforceable. 395 (i) The offer letter provides for pre-conditions that must be satisfied by the P, (1) payment of the 2% earnest deposit, (2) payment of the balance 8% of the deposit sum upon the signing of the SPA, (3) payment of the 90% balance purchase price to effect the execution of Form 14A. 13 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 400 (ii) The offer letter stipulates that the SPA must be finalised and executed within three months from the issuance of the offer letter. (iii) Default/failure by the P to execute the SPA and fulfil all the preconditions after five years (EOTs), it is just for the Ds to 405 withdraw and revoke the offer. (iv) The Ds had cautioned the P several times in writing to satisfy the preconditions, or the offer would be revoked. (v) See letter dated 30.07.2015 (pg.309 (PDF), enclosure 35); letter dated 18.08.2015 (pg.313 (PDF), enclosure 35), 410 letter dated 14.06.2016, pg.315 (PDF), enclosure 35), letter dated 14.12.2016 (pg.242 (PDF), enclosure 35). (vi) Having agreed to the new purchase price and paying the additional earnest money for the amount of RM 366, 080.00, the P insisted on resuscitating the first purchase 415 price as contained in the first offer letter. But it was denied by MOF in letters dated 4.10.2016, 30.10.2016 and 31.10.2016 (see pg.3-4 (PDF), enclosure 38; see also pp.342, 339, 346 (PDF), enclosure 35). (vii) To negate the P’s insistence that the SPA cannot be 420 finalised due to the outstanding issue of encroachment (structures) on the land: (1) The Ds informed the P that the sale was on an as-is-where-is basis (letter dated 20.04.2015, pg.237 (PDF), enclosure 35). 425 (2) This position was accepted by PW2 in his evidence at the trial (see NOP, pp.39-40, enclosure 114). (3) The Ds issued a letter on 16.06.2015 to clarify that the P will purchase the land as it is and can remove whatever structure there is after the land is transferred to them by the Ds. 430 (4) In a letter dated 02.09.2016 (pg.257 (PDF), enclosure 35), the Ds requested to agree to the execution of the SPA and to name the authorised signatory for the P. The P did not respond to this letter. (5) By a letter dated 30.09.2016, the Ds again requested to 435 execute the SPA on 27.10.2016. The P did not commit to the date. (6) The Ds invited the P for a meeting by email on 09.1.2.2016 (pp.253-255 (PDF), enclosure 35) to discuss concluding the SPA on 13.12.2016. The P did not reciprocate. 14 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 440 (7) In the circumstances, the Ds concluded that the P was no longer interested in purchasing the said land. Consequently, a formal termination notice was issued on 15.12.2016 (pg.351(PDF), enclosure 35). (8) The argument by P that the reason they could not attend the 445 proposed meeting was that it was a public holiday in Selangor on the proposed date is untenable since the meeting was scheduled in Putrajaya, which was on a working day. See the evidence of PW2 in the NOP, pg.120, 20 (PDF), enclosures 115 and 114, respectively. 450 (d) Whether the termination of the agreement by the Ds was made mala fide. (i) Since it is the P that is in default, it is lawful for the Ds to revoke the letter of offer. 455 (ii) In the foregoing circumstances, the issue of bad faith in the termination/revocation of the offer by the Ds does not arise. 5.3 There is no compelling evidence produced by the P to support their claim for damages (RM7,627,255.42). At the trial, only one invoice 460 (RM5,500.00) was produced. It is the Ds’ submission that this evidence concerns a claim in special damages that had not been specifically pleaded. 5.4 The Ds cited Ong Ah Long v Dr S Underwood [1983] CLJ (Rep) 465 300, which held that it is a well-established principle that special damages, in contrast to general damages, must be specifically pleaded and strictly proved. They are recoverable only when they can be included in the proper measure of damages and are not too remote. 470 5.5 The Court of Appeal ruled in Bekalan Sains P&C Sdn Bhd v Bank Bumiputra Malaysia Berhad [2011] 5 MLJ 1, CA, that the duty to prove the damages rests on the plaintiff. 15 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 5.6 Also cited was Popular Industries Ltd v The Eastern Garment 475 Manufacturing Co Sdn Bhd [1990] 2 CLJ Rep 635, which said that it is given that the plaintiff seeking substantial damage has the burden of proving both the fact and the amount of damages before he can recover. If he proves neither, the action will fail, or he may only be awarded nominal damages upon proof of the infringement 480 of the right. 5.7 Whatever expenses the P incurred do not concern the Ds. It is about their proposed development (SOHO/OFFICE) of the said land undertaken by them when the SPA has not yet been concluded and 485 the land transferred to them. It has nothing to do with the Ds or the SPA. 5.8 The Ds argued that there is no concluded contract between the parties. Premised on the default of the P to satisfy the conditions of 490 the offer letter, revoking it is lawful without any bad faith. The P fails to establish its alleged losses and is not entitled to any damages. In the circumstances, the P failed to discharge its burden, and their action must be dismissed with costs. 495 THE LAW [6] It is trite in law that all cases are decided on the legal burden of proof being discharged. It is the acid test applied in any particular case. 6.1 Lord Brandon in Rhesa Shipping Co.SA v Edmunds [1985] 1 500 WLR 948 at 955 said: “No judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take.” 16 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 505 6.2 In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR(R) 855 it was said that: “The Court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. Since the terms ‘proved’, ‘disproved’, and ‘not proved’ are statutory definitions 510 contained in the Evidence Act (Cap 9), 1997 Rev Ed), the term ‘proof’. Wherever it appears in the Evidence Act and unless the context otherwise suggests, means the burden to satisfy the Court of the existence or non- existence of some fact, that is, the legal burden of proof”. 515 6.3 The burden of proof in establishing its case is on the plaintiff. It is not the Ds' duty to disprove it. The evidentiary burden is trite that those who allege a fact are duty-bound to prove it (see s.101, 102, and 103 of the Evidence Act 1950). 520 6.4 Selvaduray v Chinniah [1939] 1 MLJ 253, 254 (CA) held: "The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly, the plaintiff must establish his case. If he fails to do so, it will not avail him to turn around and say that the defendant has not established his. The 525 defendant can say it is wholly immaterial whether I prove my case or not. You have not proved yours". 6.5 Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, (FC) held: 530 "It was all a matter of proof and that until and unless the plaintiff has discharged the onus on her to prove her case on a balance of probabilities, the burden did not shift to the defendant, and no matter if the defendant's case was completely unbelievable, the claim against him must in these circumstances be dismissed. With respect, we agree with this judicial approach." 535 [7] Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC. The distilled principles, among others, are: 7.1 Where an agreement is not regulated by statute, parties are at 540 complete liberty, under the doctrine of freedom of Contract, to agree on any terms they think fit. 17 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 7.2 The role of the Court is to interpret the Contract sensibly (a commercially sensible construction). See Loh Wai Lian v SEA 545 Housing Corporation Sdn Bhd [1987] 1 LNS 37, PC. 7.3 The starting point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party. 550 7.4 A contract breaker must pay damages to the innocent party. However, if he has made any payment under a contract (not being a true deposit for the purchase of movable or immovable property), the contract breaker is entitled to have that payment set off against 555 the damages he has to pay. However, he cannot seek to recover any benefit he may have conferred upon the innocent party where he is guilty of breach of Contract. Were it otherwise, a contract breaker would be in a position to take advantage of his own wrong. This is against the principle and the policy of the law. 560 7.5 The FC cited Attorney General of Belize v. Belize Telecom Limited [2009] UKPC 11, where when delivering the Advice of the Board, Lord Hoffmann said: “The Court has no power to improve upon the instrument which it is called upon 565 to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable 570 person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed: see Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912-913. It is this objective meaning which is conventionally called the intention of the parties, or the intention of Parliament, or the intention of 575 whatever person or body was or is deemed to have been the author of the instrument.” 18 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 7.6 A contract is to be interpreted in accordance with the following guidelines: 580 (a) A Court interpreting a private contract is not confined to the four corners of the document. It is entitled to look at the factual matrix forming the background of the transaction. (b) The factual matrix that forms the background to the transaction includes all material that was reasonably available to the 585 parties. (c) The interpreting Court must disregard any part of the background that is declaratory of subjective intent only and (d) The Court should adopt an objective approach when interpreting a private contract. 590 See Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 All ER 98. As Lord Clyde said in Bank of Credit and Commerce International SA v. Munawar Ali [2001] 2 WLR 735: 595 “The knowledge reasonably available to them (that is to say, the parties to the Contract) must include matters of law as well as matters of fact. The problem is not resolved by asking the parties what they thought they intended. It is the imputed intention of the parties that the Court is concerned to ascertain…. The meaning of the agreement is to be 600 discovered from the words which they have used and read in the context of the circumstances in which they made the agreement. The exercise is not one where there are strict rules but one where the solution is to be found by considering the language used by the parties against the background of the surrounding circumstances”. 605 [8] The Federal Court in Michael C. Solle v United Malayan Banking Corporation [1986] 1 MLJ 45, FC observed that the principles of construction to be applied are that the parties' intentions are gathered from the language used. They are presumed to have intended what they say. 610 The common universal principle is that an agreement ought to receive that construction which its language will admit, which will best effectuate the parties' intention to be collected from the whole agreement. The Courts are to give effect to the terms of the Contract (if any). 19 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 615 FINDINGS [9] In the circumstances of the facts of the case, I have examined all evidence adduced at trial by the parties and, all-cause papers and a bundle of documents. The respective submissions of the parties 620 (paragraphs [4] and [5] hereof)] have been duly examined. I hold for the Ds. It is my findings that: 9.1 There is no concluded SPA between the parties. 9.2 The evidence before me does not support the P’s claim. 625 9.3 There is clear evidence that an executed SPA between the parties is a fundamental requirement of the transaction, which the P had failed to do: Michael C. Solle v United Malayan Banking Corporation [1986] 1 MLJ 45, FC (supra). 9.4 It is irrefutable that the P had clearly failed to fully comply with the 630 terms and conditions of the second offer letter that had superseded the first offer letter over the same parcel of land. 9.5 The second offer letter had been accepted and acted upon by the P by making payment of the additional earnest deposit. Even the P's witness agreed they had accepted the second offer letter. The terms 635 in the second offer letter are unambiguous, which requires compliance by the P. 9.6 There is no evidence produced that P had protested or objected to the issuance of the second offer letter. 9.7 The issue of resuscitating the first offer letter (reinstating the initial 640 purchase price) by the P cannot arise. The Ds appropriately denied it. 9.8 A draft SPA is immaterial if it fails to be duly executed as required by the subsisting offer. There is ample evidence that the seven 20 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 drafts of SPA were never finalised for execution. The offer by the Ds 645 requires that the SPA be executed. 9.9 Consequently, it is irrefutable that legal and beneficial ownership does not arise in favour of the P. The allegation of a concluded contract between the parties by the P is untenable. 9.10 Consequently, therefore, in light of the apparent breach by the P in 650 failing to honour the terms of the second offer letter, the revocation of the second offer letter that follows is in place for failure by the P to perform accordingly. It is the lawful exercise of discretion to revoke the offer by the Ds. 9.11 On the facts argued at the trial, there is no tenable or sustainable 655 evidence by the P to establish its allegation of malice on the part of the Ds in the said termination. 9.12 Without evidential materials, it remains merely a speculative argument lacking merit. The Court will not consider it. Bare assertions have no evidential value to be considered. 660 9.13 The 2% earnest deposit is allowed to be forfeited due to the wilful breach by the P. It is a reasonable amount considering the facts of the case in totality. I am guided by the Federal Court in Berjaya Times Square Sdn Bhd v 665 M-Concept Sdn Bhd [2010] 1 CLJ 269, FC that it is trite in law that a breach of Contract is said to occur when a party to a Contract expressly or impliedly fails or refuses to perform or fails to perform satisfactorily one or more of his contractual obligations. As was said by the FC in Berjaya Times Square (supra), the starting point is for the Court to recognise that 670 in an action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party. I am in no doubt and inclined from the evidence to hold against the P for its wilful failure to 21 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 execute in a five-year period (several EOTs) right from the first offer letter all the way to the second offer letter. 675 [10] By and large, it is my considered judgment the plaintiff has failed to discharge its burden of proof to establish the claim set out in its SoC under ss 101-103 Evidence Act 1950. As I had observed, other than unsupported arguments, the plaintiff had failed to adduce the required 680 compelling evidence to tilt the scale of evidence in its favour. In clearly failing to prove its claim, I refer to the following cases: 10.1 The Court of Appeal in Selvaduray v Chinniah [1939] 1 MLJ 253, 254, CA that where the plaintiff fails to prove his case, it will not avail him to turn around and say that the defendant has not established 685 his. The defendant can say it is wholly immaterial whether I prove my case or not. You have not proved yours. 10.2 In Johara Bi bt. Abdul Kadir Marican v Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, that it was all a matter of proof and that until and unless the plaintiff has discharged the onus to prove his 690 case on a balance of probabilities, the burden did not shift to the defendant, no matter how unbelievable the defence might be. The claim against the defendant must, in these circumstances, be dismissed. 10.3 The legal burden lies on the plaintiff throughout the proceedings to 695 prove its case, in which case the plaintiff herein had failed: Yui Chin Song & Ors v Lee Ming Chai & Ors [2019] 6 MLJ 417. It is not for the Ds to establish their defence in such a circumstance: Selvaduray v Chinniah [1939] 1 MLJ 253. 700 22 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-21NCvC-49-04/2017 CONCLUSION [11] All things considered: 11.1 After appraising the evidence, all the relevant cause- papers and the 705 written submissions by the respective parties, I find that the plaintiff had failed to discharge its burden on a balance of probabilities. 11.2 By a greater weight of evidence, I find for the Ds’ and find this suit by the P against the Ds is without a reasonable basis and untenable; 710 consequently, there is no legitimate cause of action to support it. 11.3 Therefore, the P’s claim is dismissed against the Ds with costs of RM40,000.00 (global) to be paid within 30 days from the date of this order. The 2% earnest deposit is forfeited. 715 Dated 08.11.2023. HAYATUL AKMAL ABDUL AZIZ JUDGE 720 HIGH COURT OF MALAYA KUALA LUMPUR Counsels: 725 Mr Rajesh Kumar Sharma, together with Ms Chew Jia Ying Messrs. Rajesh, Chew & Ho Counsels for the plaintiff Ms. Nurhafizza Binti Azizan (SFC), together with Ms Ng Wee Li (FC) 730 Attorney-General’s Chambers For the defendants Mr Mohd Razif Federal Counsel 735 Ministry of Finance 23 S/N UJRF20MXykivQEnygXR7hw **Note : Serial number will be used to verify the originality of this document via eFILING portal