YEOH ENG KONG 1. ) SYARIKAT PERUMAHAN PEGAWAI KERAJAAN SDN BHD 2. ) BUNGSAR HILL HOLDINGS SDN BHD

WA-22NCvC-851-12/2018 Kand. 119 20/04/2022 16:54:10 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (CIVIL DIVISION) SUIT NO. WA-22NCvC-851-12/2018 BETWEEN YEOH ENG KONG (NRIC No. 681223-10-6109) …PLAINTIFF AND 1. SYARIKAT PERUMAHAN PEGAWAI KERAJAAN SDN BHD (Company No. 10586-D) 2. BUNGSAR HILL HOLDINGS SDN BHD (Company No. 5102-P) …DEFENDANTS GROUNDS OF JUDGMENT (After Full Trial) A. Introduction [1] This is the Plaintiff’s claim (‘this Suit’) to rectify a definition in a settlement agreement entered into between the Plaintiff and the Defendants on 26.12.2012 (“Settlement Agreement”). The Settlement Agreement is concerning the transfer of a vacant land adjacent to the Plaintiff’s property. i) Background [2] The Plaintiff was the registered owner of a property known as No. 43, Jalan Setiabakti, Bukti Damansara, 50490 Kuala Lumpur (‘the Property’). Meanwhile, the 2nd Defendant was the registered trustee of a piece of land held under HS(D) 31777, Lot No. PT 1499, Mukim Kuala Lumpur (‘PT 1499’). The 2nd Defendant held PT 1499 on trust for the 1st Defendant and one Chuah Teong Hooi. S/N 8HolJQudGUiIDni5dyrXLQ 1 document via eFILING portal **Note : Serial number will be used to verify the originality of this [3] On 2.3.2007, one Shantakumar Santhalingam had filed suit No. S4-22-215- 2007 (“Suit 215”) and named the Plaintiff and the 1st Defendant as the 1st and 3rd Defendants respectively in that suit. [4] Subsequently, in Suit 215, the Plaintiff filed a counter-claim against the 1st and 2nd Defendant in respect of the damage occasioned to the Property. In order to reach a full and final settlement of the counter-claim, the Plaintiff and the Defendants then entered into the Settlement Agreement. [5] In the Settlement Agreement, it was agreed that, amongst others, the Plaintiff was to obtain the beneficial ownership of a vacant land adjacent to the Property (‘the Vacant Land’). The Vacant Land was to be transferred to him subject to the terms and conditions of the Settlement Agreement. [6] On 21.02.2018, the Plaintiff filed this Suit against the Defendants alleging that there was a mutual mistake between the parties in defining the Vacant Land under the Settlement Agreement. [7] In response, both Defendants argued that the Plaintiff by filing this Suit was trying to essentially change the definition of the Vacant land even though it was mutually agreed by all parties. The 2nd Defendant further contended that the Plaintiff wanted to change the location of the Vacant land which was the strip of land west of the existing monsoon drain as identified by the area marked in red in the 1st Schedule of the Settlement Agreement (“1st Schedule”). [8] The Plaintiff in this Suit is, in essence, seeking the following: “(a) rectification of the definition of the Vacant Land in Clause 1.1 of the Settlement Agreement to read as follows: “Means the portion of the strip of land west of the monsoon drain which is to be constructed at the reserved location for a Monsoon Drain set out in the Title of HS(D) 31777, Lot PT 1499, Mukim Kuala Lumpur, District of Kuala Lumpur (“PT 1499”) and which forms part of the piece of land held under HS(D) 31777, Lot PT 1499. Mukim Kuala Lumpur, District of S/N 8HolJQudGUiIDni5dyrXLQ 2 document via eFILING portal **Note : Serial number will be used to verify the originality of this Kuala Lumpur PT 1499; and has not been subdivided and the exact size and area have not been specifically determined. The location of the land is generally identified by the area marked in red in the Detail and Spot Level Survey on Lot PT 1499 prepared by Jurukur Generasi annexed in the 1st Schedule hereto.” (b) an Order that the 1st and/or 2nd Defendant do take all necessary steps to construct, at their own cost and expense, a Monsoon Drain at the reserved location identified in the Title HS(D) 31777, Lot PT 1499, Mukim Kuala Lumpur, District of Kuala Lumpur (‘Reserved Location”) within a reasonable time from the date of this Order; (c) an Order that the 1st and/or 2nd Defendant do take all necessary steps to divert, at their own cost and expense, the Rainwater Channel/Drain to the Monsoon Drain at the Reserved Location within a reasonable time from the date of this Order; (d) an Order that the Plaintiff be notified periodically by the 1st and/or 2nd Defendant of the progress made by the 1st and/or 2nd Defendant in complying with the Order in paragraphs (b) and (c); (e) costs; and (f) any further or other relief deemed necessary by this Honourable Court.” ii) The Plaintiff’s Case [9] In essence, the Plaintiff submitted that there was a mutual mistake by the parties in defining the Vacant Land in the Settlement Agreement. The Plaintiff referred to Section 30 to 32 of the Specific Relief Act 1950 and also the case of Menta Construction Sdn Bhd v Lestari Puchong Sdn Bhd [2015] 6 MLJ 633 to support his contention. [10] In the alternative, the Plaintiff also contended that there was an estoppel mistake because the construction of the temporary existing drain was within the knowledge of the Defendants and not the Plaintiff. This also corroborated by the fact that the Defendants was the one whom prepared the Settlement Agreement and the Plaintiff has no input on it. The Plaintiff further premised that he had acquired no benefit whatsoever given that the title of the Vacant Land was never transferred to S/N 8HolJQudGUiIDni5dyrXLQ 3 document via eFILING portal **Note : Serial number will be used to verify the originality of this him. Thus, in any circumstances, the Plaintiff has suffered loss as a result of entering into the Settlement Agreement. [11] Moreover, it was within the Defendants’ knowledge that PT 1499 could not be sub-divided and was merely a qualified title under section 136 of the National Land Code 1965. Therefore, the Defendants had taken advantage of the Plaintiff ignorance and benefit the same from entering the Settlement Agreement. PW1 [12] Plaintiff’s Witness 1 (‘PW1’) is the Plaintiff himself. He mainly testified that the monsoon drain provided in the Vacant Land does not reflect an actual monsoon drain. He supported his testimony by referring to a Dewan Bandaraya Kuala Lumpur Letter (‘the DBKL’s Letter’) informing him that the existing drain was actually a rainwater channel. He further contended that the monsoon drain referred to in the Settlement Agreement was actually meant to be the reserve drain. [13] PW1 also stated that as the actual monsoon drain was the reserve drain, he was entitled to the whole PT 1499 based on the definition of the Vacant Land under the Settlement Agreement. It was a mutual mistake of the parties in defining the monsoon drain as it was never been defined anywhere in the Settlement Agreement. iii) The Defendants’ Case [14] The 1st and 2nd Defendants were on similar grounds in their stance to refute the Plaintiff’s claim. The Defendants submitted that it was the intention and knowledge of all the parties that there was only one existing drain on PT 1499 which all parties referred to as the monsoon drain. It was irrelevant whether that existing drain was technically a monsoon drain in the engineering sense or not. [15] In respect of the Settlement Agreement, the strip of land on the west side of the existing drain commonly referred to as the monsoon drain was only a part of PT 1499 and not the whole of PT 1499. This Suit was only an afterthought and the definition of the Vacant Land in the Settlement Agreement was clear and definite. Thus, there was no mistake of any sort in the terms embodied in the Settlement Agreement. S/N 8HolJQudGUiIDni5dyrXLQ 4 document via eFILING portal **Note : Serial number will be used to verify the originality of this [16] Likewise, the 2nd Defendant further contended that the description of the Vacant Land and the monsoon drain in the Re-Amended Defence and Re-Amended Counter- claim in Suit 215 was similar to the definition provided in the Settlement Agreement. Thus, this shows that the Plaintiff was fully aware that the existing drain was referred to as the monsoon drain and that there was a reserved location for a drain outside PT 1499 which was yet to be constructed. [17] In the alternative, the 1st Defendant premised that the burden of proof was on the Plaintiff to prove that the parties had mistaken about the monsoon drain which defined the Vacant Land in the Settlement Agreement. The 1st Defendant contended that the Plaintiff has failed to establish that. The intention of the parties was clear when they entered into the Settlement Agreement. To this, the 1st Defendant referred to the case of Chee Lui Teen v Keet Hoe Development Sdn Bhd [1987] 2 MLRH 235. [18] The 2nd Defendant also argued that the Plaintiff was the one who had proposed the Settlement Agreement and had agreed that the Vacant Land is to be transferred on an ‘as is where is.’ Thus, the Plaintiff cannot now demand something beyond what has been agreed upon earlier on. Here, the 2nd Defendant cited the case of Norwest Holdings Pte Ltd v Newport Mining Ltd [2010] 3 SLR 956 and Tan Kim Eng v Lee Eng Kok & Ors [2020] MLJU 624. [19] In answering the Plaintiff’s allegation of estoppel by mistake, the 1st Defendant argued that the Plaintiff knew that the existing drain was the only drain on PT 1499 and at all material times the existing drain was referred to as the monsoon drain. The Plaintiff also never raised any concern or issues of mistake to the Defendants before the filing of this Suit. [20] Lastly, the 2nd Defendant also submitted that the Plaintiff was trying to re-write the terms of the Settlement Agreement even though he himself had failed to perform his own obligation under the Settlement Agreement by not subdividing the Vacant Land within the time period. Therefore, it was the 2nd Defendant’s contention that there was no mistake on the part of the parties and parties are bound by the terms of the Settlement Agreement which reflects the true intention of the parties. S/N 8HolJQudGUiIDni5dyrXLQ 5 document via eFILING portal **Note : Serial number will be used to verify the originality of this DW1 [21] Defendants’ Witness 1 (‘DW1’) was the Chief Legal Officer of SP Setia Berhad which was the parent company of the 1st Defendant. DW1 testified that pursuant to the Settlement Agreement the Plaintiff would obtain the legal and beneficial ownership of the Vacant Land from the 2nd Defendant. [22] DW1 also testified that the term “monsoon drain” under the definition of the “Vacant Land” simply referred to the existing drain structure on PT 1499. DW1 further averred that the Vacant Land was sold on an “as in where is” basis with the existing structure on PT 1499. DW1 also concurred that the 1st Defendant had fully performed its obligation under the Settlement Agreement when it paid to the Plaintiff the sum of RM2,473.33 being 1/3 of the cost for subdividing the Vacant Land pursuant to clause 3.1.4 of the Settlement Agreement. DW2 [23] Defendants’ Witness 2 (‘DW2’) was the Director of the 2nd Defendant. DW2 had testified that the 2nd Defendant was holding the east side of the existing drain on trust to one Chuah Teong Hooi. DW2 candidly testified that the Vacant Land was referred to as the entire PT 1499. Nevertheless, DW2 stated that the Vacant Land can be interpreted as two distinct definitions. Firstly, the whole PT 1499 can be described as a Vacant Land. Secondly, in respect of this Suit, the Vacant Land is between the RE wall and the existing drain flowing through PT 1499. DW3 [24] Defendants’ Witness 3 (‘DW3’) was the Chief Operating Officer of Selangor Properties Sdn Bhd and the Director of the 2nd Defendant. DW3 had confirmed that PT 1499 was divided by the existing drain which was constructed by the 1st Defendant. The portion on the west of the existing drain was defined as the Vacant Land under the Settlement Agreement while the east of the existing drain was sold and held as a trust by the 2nd Defendant to Chuah Teong Hooi. [25] DW3 also testified that he disagreed with the letter written by Dewan Bandaraya Kuala Lumpur that the existing drain was only a temporary drain and in that letter it does not give instruction to shift the drain but merely suggesting it. He further S/N 8HolJQudGUiIDni5dyrXLQ 6 document via eFILING portal **Note : Serial number will be used to verify the originality of this contended that the existing drain cannot be relocated to the drain reserve because the 2nd Defendant is not the owner of the land and the cost to construct a new drain would cost millions. B. Decision and Findings of the Court [26] After perusing the cause papers, the witnesses’ statements, the notes of proceeding and the written and oral submissions and replies by the parties, I dismiss the Plaintiff’s claim. Herein are my reasons. i) Preliminary Issue [27] On the first day of the trial, it was brought to my attention that the Plaintiff has, at the eleventh hour, filed Enclosures 70 and 71. The Defendants had objected to Enclosure 70 and Enclosure 71 namely the witness statement of a surveyor, one Dato’ Ng and a new bundle of documents respectively due to their tardiness. The Plaintiff contended that both of these enclosures were not new evidence and were merely corroborative evidence of PW1 and the opposing parties have the opportunity to cross- examine the surveyor if he was allowed to take the stand. [28] In contrast, both of the Defendants had vehemently objected to both of these enclosures and contended that they were filed at the eleventh hour and the subject matter was never been pleaded by the Plaintiff. They premised that the Plaintiff pleaded for rectification and not frustration. Moreover, the 2nd Defendant further argued that the witness statement was from an expert witness. If this Court were to allow it, the Defendants also need to call their own expert(s). They cannot prepare their case for this even with a short adjournment. The Defendants further argued that there was no need for an expert witness to be called as the particular issues can be answered by PW1 himself. Should there be any need for an expert witness, the Plaintiff should have done and prepared the matter beforehand. [29] After hearing the arguments from both sides, It is my order to disregard Enclosures 70 and 71. Firstly, it is of the utmost importance for the parties to ensure that all documents are well prepared before the trial commences. That it is why pre- trial case management (‘PTCM’) system was introduced in Order 34 of the Rules of S/N 8HolJQudGUiIDni5dyrXLQ 7 document via eFILING portal **Note : Serial number will be used to verify the originality of this Court 2012. As discussed in Malaysian Civil Procedure 2021 at page 506 paragraph 34/0/2 – “…The terms “case management” refers to broad range of powers exercised by judges in the course of managing a civil proceeding. Through case management a judge intervenes in the proceeding prior to trial in order to give directions for the preparation of the case for trial, for the actual conduct of the trial, or to attempt to resolve the proceedings. Case management requires the application of a range of management tools in order to secure the just, most expeditious, least expensive and proportionate determination of proceedings on its merits. Against this background current pressures and constrains facing this Court necessitate that judges find ways to manage civil litigation more efficiently, using their inherent powers, as well as the tools contained in the Rules, to ensure that the fundamental objective of a fair, fast and affordable final determination on the merits is met, and that intolerable delays in the adjudication of civil disputes do not become the norm…” [Emphasis added] [30] This was also emphasized by Her Ladyship Nallini Panthamanthan JCA (as she then was) in the case of Public Bank Bhd v National Feedlot Corp Sdn Bhd And Another Appeal [2018] MLJU 938. In that case, Her Ladyship disallowed the application of the Plaintiffs to introduce additional documents and held as follows – “[63] With the utmost respect, the issue before the learned Judge was whether these new documents ought to be allowed in evidence as a consequence of the amendments at this late stage and mid-trial. Her Ladyship ought to have determined, by the application of relevant principles, whether documents of this nature and volume in support of a new claim for special damages ought to be included. [64] It is trite that voluminous bundle of documents cannot be introduced as parties see fit any stage of the proceedings, particularly after trial has commenced. This would give rise to serious prejudice to the adverse party who would have to realign its case and possibly counter those documents with documents of its own. … S/N 8HolJQudGUiIDni5dyrXLQ 8 document via eFILING portal **Note : Serial number will be used to verify the originality of this [66] Such a consequence would render case management procedures, not to mention pleadings nugatory. It would also undermine the very purpose of adversarial litigation which is the foundation of our system of adjudication. [Emphasis added] [31] Therefore, the Plaintiff’s bid to add Enclosures 70 and 71 was disallowed by this Court as it was filed immediately before the commencement of the trial. Such eleventh hour filing (and after the exchange of witnesses’ statements) would derail the trial and would prejudice and cause injustice to the opponents. [32] The new expert witness was never listed in the Plaintiff’s List of Witnesses. Also, the Defendants have no knowledge about such expert opinion until dawn. The Plaintiff has never notified the Defendants about such expert witness or his opinion despite the fact that the case has been settled down for trial months before. The Plaintiff has also failed to provide any reason to this. Without proper and valid justification, such attempt and tactic to ‘surprise’ the opponent should not be condoned by the Court. Otherwise, the purpose of Order 34 of the Rules of Court 2012 would be defeated. Such practise would also cause all orders and directions given during pre- trial case management be randomly and bluntly ignored by the parties. The trials would be conducted in disorderly manner! In this Suit, there were 8 PTCM, the first of which was conducted more than a year before the commencement of the trial. If at all the expert witness and the new bundle of documents were so crucial to the Plaintiff, they should have filed the same long before the trial. To the very least, they must do so before the final PTCM which was held 12 days before the commencement of the trial. They have chosen not to do so at their own peril. In Lo Jian Hooi (No. KP: 380820- 08-5087) v Urban Home Spring Sdn Bhd [2017] MLJU 1304 it was held that the Defendant’s application to file additional bundles of documents would prejudice and cause injustice to the Plaintiff which cannot be compensated by costs and also defeat the purpose of fair and expeditious disposal of a trial contrary to the objective and provisions on Order 34 of the Rules of Court 2012. In our present case, the Plaintiff not only tried to file an additional bundle of document but also attempt to introduce a new expert witness, all of which are not in accordance with his pleaded case. I have thus decided to disregard them. S/N 8HolJQudGUiIDni5dyrXLQ 9 document via eFILING portal **Note : Serial number will be used to verify the originality of this ii) Whether there was a Mutual Mistake in the Definition of the Vacant Land? [33] First and foremost, it is pertinent to understand that the courts strive to ascertain, on an objective basis, what the parties intended a written instrument to mean. It is not open to the courts to revise the words used by the parties or to put upon them a meaning other than that which they had agreed earlier on in the agreement. The law is well settled that it is for the parties who intend to be bound by mutual obligations to make a contract for themselves and it is not competent for the court to make a contract for the parties which they did not in the first place see fit to make for themselves. It is also not for the court to import a covenant which does not arise by fair and necessary implication from the language they have used (see Kedah Cement Sdn Bhd v Masjaya Trading Sdn Bhd [2007] 3 MLJ 597). [34] Nevertheless, if the agreement does not truly express the parties’ intention, they may institute a suit to have the instrument rectified. Sections 30 to 32 of the Specific Relief Act 1950 (‘SRA 1950’) underlined the principle in which it allows the court to rectify a contract that does not reflect the real intention of the parties. Sections 30 to 32 of SRA 1950 say – “When instrument may be rectified 30. When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representative in interest, may institute a suit to have the instrument rectified: and if the court find it clearly proved that there has been fraud or mistake in framing the instrument, and ascertain the real intention of the parties in executing the same, the court may in its discretion rectify the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third person in good faith and for value. Presumption as to intent of parties 31. For the purpose of rectifying a contract in writing, the court must be satisfied that all the parties thereto intended to make an equitable and conscientious agreement. Principles of rectification 32. In rectifying a written instrument, the court may enquire what that instrument was intended to mean, and what were intended to be its legal S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 10 this document via eFILING portal consequences, and is not confined to the enquiry what the language of the instrument was intended to be.” [35] These 3 sections of SRA 1950 have embodied the trite English equitable principles on point. As explained by Russell L.J in Joscelyne v Nissen [1970] 2 QB 86, at para B-C of page 93, this position was in line with the obiter dictum of Warrington L.J in Craddock Bros. v. Hunt [1923] 2 Ch. 136– “The jurisdiction of courts of equity in this respect is to bring the written document executed in pursuance of an antecedent agreement into conformity with that agreement. The conditions to its exercise are that there must be an antecedent contract and the common intention of embodying or giving effect to the whole of that contract by writing, and there must be clear evidence that the document by common mistake failed to embody such contract and either contained provisions not agreed upon or omitted something that was agreed upon, or otherwise departed from its terms.” [36] In doing so, the courts must be wary of the ratio of Lopes L.J in Tucker v Bennet (1887) 38 Ch D 1 where His Lordship disallowed the Plaintiff’s claim for rectification, and opined (at page 16) that – “In my opinion, it requires strong evidence to justify the rectification or setting aside of an instrument under seal; and when that instrument is a marriage settlement the Court is bound to act with extreme caution, because it is impossible to recall the marriage, or to remit the parties to the same position in which they were before the marriage. The Court must look at the intention of the parties at the time when the deed was executed, and not what would have been their intent if, when they executed it, the result of what they did had been present to their minds.” [Emphasis added] [37] The doctrine of rectification was also thoroughly elaborated by His Lordship Jeffrey Tan FCJ in the Federal Court case of Menta Construction (supra) – “[64] To sum up, for rectification of an instrument, the plaintiff must show that the instrument sought to be rectified does not truly express the real intention of the parties. In other words, the plaintiff must show that the S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 11 this document via eFILING portal instrument sought to be rectified does not truly express the antecedent agreement or continuing common intention up to the point of the formal instrument. Evidence of what took place prior to execution of the instrument is admissible and indeed essential to prove what intention was communicated by one side to the other, and with what common intention and common agreement they made their bargain. “…it is possible to adduce evidence of each of the parties” intention to show that they had a common intention and it is also possible to use both pre- and post-contractual statement from which can be inferred the requisite common intention” (Cheshire & Fifoot Law of Contract 10th Australian edn. At 12.33). ‘Some outward expression of accord’ is evidence of ‘continuing common intention.’ Evidence of subjective intention is relevant to ascertain the real intention of the parties. In short, the position in Malaysia is Crane v. Hegeman-Harris and Joscelyne v. Nissen, but with the ‘some outward expression of accord’ being an evidential factor. If the court finds it clearly proved that there has been fraud or mutual mistake in framing the instrument, and has ascertained the real intention of the parties in executing the instrument, “the court may in its discretion rectify the instrument so as to express that [real] intention, so far as this can be done without prejudice to the rights acquired by third parties in good faith and for value.” In rectifying an instrument, the court is not confined to an enquiry on the construction of the instrument.” [Emphasis added]. [38] Likewise in an earlier High Court case of Mat Roni bin Daud v Siti bte Hussin & Ors [2000] 5 MLJ 605, His Lordship Idris J (as he then was) (at page 610 (paragraph E – G)) quoted the following passage from Chitty on Contracts (27th Ed) Vol 1 para 5– 045 which places the burden of proof on the party claiming to secure such rectification: “The burden of proof is on the party seeking rectification. He must produce ‘convincing proof’ not only that the document to be rectified was not in accordance with the parties’ true intentions at the time of its execution, but also that the document in its proposed form does accord with their intentions. It is essential that the extent of the rectification should be clearly ascertained and defined by evidence contemporaneous with or anterior to the contract. The denial of one of the parties that the deed as it stands is contrary to his intention ought to have considerable weight, and unless the other party can convince the S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 12 this document via eFILING portal court that the document does not represent both parties’ intentions at the time of execution, rectification will only exceptionally be ordered. Indeed, it has been said that it is not sufficient that the written contract does not represent the true intention of the parties; it must be shown that the written contract was actually contrary to the intention of the parties. Where it is sought to rectify a document in accordance with a prior agreement between the parties, it must be shown that the intention of the parties continued unaltered up to the time of the execution of the document.” [39] It is prudent to note that for the Court to undertake such initiative to rectify the agreement in issue, there must be a mutual mistake among the parties. In order to determine whether there was a mutual mistake in the Settlement Agreement, I have examined the following before arriving at my finding to dismiss the Plaintiff case. [40] The first factor to be considered in such case is to examine the real intention of the parties. In Menta Construction (supra), His Lordship Jeffrey Tan FCJ reiterated the importance to ascertain the real intention of the parties before such rectification can be made. Likewise in Teras Tegap Sdn Bhd v Perbadanan Kemajuan Negeri Melaka [2017] 3 AMR 817; [2017] MLJU 73, His Lordship Vazeer Alam J aptly summed up the requirements of the rectification – “…the plaintiff must show that the instrument sought to be rectified does not truly express the real intention of the parties. In the other words, the plaintiff must show that the instrument sought to be rectified does not truly express antecedent agreement or continuing common intention up to the point of the execution of the formal instrument. Evidence of what took place prior to execution of the instrument is amissible and indeed essential to prove what intention was communicated by one side to the other, and with what common intention and common agreement they made their bargain. “…it is possible to adduce evidence of each of the parties’ intention to show that they had a common intention and it is also possible to use both pre and post-contractual statement from which can be inferred the requisite common intention” (Cheshire & Fifoot Law of Contract (10th Australian edn) at p 12.33). “Some outward expression of accord” is evidence of “continuing common intention”. Evidence of subjective intention is relevant to S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 13 this document via eFILING portal ascertain the real intention of the parties. In short, the position in Malaysia is Crane v Hegeman-Harris and Joscelyne v Nissen, but with the “some outward expression of accord” being an evidential factor. If the court finds it clearly proved that there has been fraud or mutual mistake in framing in framing the instrument, and has been fraud or mutual mistake in framing the instrument, and has ascertained the real intention of the parties in executing the instrument, “the court may in its discretion rectify the instrument so as to express that (real) intention, so far as this can be done without prejudice to the rights acquired by third parties in good faith and for value”. In rectifying an instrument, the court is not confined to an enquiry of the construction of the instrument. [Emphasis added.] [41] In this context, the burden of proof lies on the party who insinuates that the agreement does not reflect the parties’ initial intention. The burden is thus on the Plaintiff in our present case. The crux of the Plaintiff’s case was that there was a mutual mistake by the parties in defining the “Vacant Land” and the ‘monsoon drain’ stated under the Settlement Agreement. The Plaintiff contended that the definition of monsoon drain was inconsistent as the drain was actually a rainwater channel/drain. On the other hand, the Defendants argued that it was the intention and knowledge of all the parties that there was only one existing drain on PT 1499 which all parties referred to as the monsoon drain. It was irrelevant whether that existing drain was technically a monsoon drain in the engineering sense or not. [42] The Settlement Agreement defines the “Vacant Land” as– “’Vacant Land’ Means the portion of the strip of land west of the monsoon drain which forms part of the piece of land held under HS(D) 31777, Lot PT 1499, Mukim Kuala Lumpur, District of Kuala Lumpur, and has not been subdivided and the exact size and area have not been specifically determined. The location of the land is generally identified by the area marked in red in the Detail and Spot Level Survey on Lot PT 1499 prepared by Juruukur Generasi annexed in the 1st Schedule hereto.” S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 14 this document via eFILING portal [43] This is to be further cross-referred with the 1st Schedule which provides the following drawing: S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 15 this document via eFILING portal [44] In respect of the Vacant Land, the Plaintiff support his contention by referring to the alleged admission given by DW2 during cross-examination. DW2 had testified that the Vacant Land refers to the entire PT 1499. [NOP at pages 235-236] RS Right. So En Kassim, it is very clear in this sentence that when you say ‘vacant land’ there, you are using vacant land to refer to PT 1499? Look at the sentence. Just look at that sentence. In that sentence, when you used the word ‘vacant land’, you are using ‘vacant land’ to refer to the entire PT 1499, is that correct? KASSIM Yes … RS Now I put it to you, En Kassim, this amendment that you have made this morning is purely and afterthought… that what you had said in your witness statement was the correct evidence. Would you agree with that ? KASSIM Yes…Yes, Yang Arif. RS So vacant land is the correct reference in the last paragraph at page 201? KASSIM PT 1499, yes…Vacant land here, we refer to PT 1499 RS No. I put it to you, En Kassim, that vacant land here does not.. Yes. Vacant land here refers to PT 1499, Correct? KASSIM Yes. [45] In respond, the Defendants argued that it was never the intention of the parties to transfer the whole of PT 1499 to the Plaintiff. This is because it was shown from PW1 testimony himself that he knew that the Vacant Land refers to one that was shaded as Red under Schedule 1 of the Settlement Agreement. PW1 himself agreed to this -- [Noted of Proceeding (‘NOP’) at pages 93 – 94] BT … Ok Mr Yeoh, my next question, I mean in the definition of vacant land, reference are made to the area marked red. Do you agree that the area marked red is on the west side of the existing drain? YEOH Existing drain S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 16 this document via eFILING portal BT So you agree Mr Yeoh that as far as this drawing is concerned, the land on the right side of the existing drain, the one marked in red is what has been defined as the vacant land in the settlement agreement? YEOH As I said the exact location and the exact acreage I wouldn’t know BT I’m not asking about the acreage, Mr Yeoh. I’m talking about definition. YEOH Yes BT In the settlement agreement, there’s a definition of vacant land and it talks about the land which is on the west side of the existing drain. YEOH Yes BT So the vacant land has been defined in the settlement agreement as the red portion. It’s on the west side of the existing drain. Do you agree? YEOH Yes [46] Similarly, DW1 also resolutely affirmed this in her re-examination – [NOP at pages 193 – 194] KB I’m obliged, Mr Lord. I just have about four questions. Pn Azlina, it was suggested to you by my learned friend for the Plaintiff that the solicitors’ discussion about the monsoon drain did not find its way into the settlement agreement, and you disagreed to it. Please explain why. AZLINA Because we weren’t talking about what monsoon drain is. We talking about where that particular monsoon drain is. We talking about where that particular lot that should belong to the Plaintiff. And that’s, it’s demarcated in the schedule in red and lined by that blue line indicating the structure, the existing structure. KB Why was the law, specific definition for monsoon drain in the settlement agreement? AZLINA Because I think for my side of, legally we were more concerned about which part of the area because it’s not defined. And in any case, he is buying, he is getting part of the land. So it’s vacant S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 17 this document via eFILING portal land is defined as part, which, forms a part of it. And that is indicated red. So that’s how we defined it. So there is not definite monsoon drain. KB Was there a need for parties to define monsoon drain in the settlement agreement? AZLINA No KB Why not? AZLINA Because were referring to the existing structure as the indicator, and it’s marked out in the schedule, Schedule 1. [47] In response to the Plaintiff’s argument regarding DW2’s testimony, the 2nd Defendant’s counsel submitted that DW2 had testified that there was some typographical error in his witness statement and had amended it to reflect that PT 1499 and the Vacant Land accordingly. Besides, in the essence, DW2’s evidence was that the Vacant Land refers to the part of PT 1499 between RE Wall and the monsoon drain. The monsoon drain here reflected the existing drain which the parties previously referred to in Suit 215. [48] On top of that, DW2 also clarified his statement during re-examination. [NOP at pages 265 – 266] BT Can you explain why do you say, I mean in the first S4 suit, there is one meaning, I mean it can be interpreted to have one meaning and in the current proceedings, another meaning? KASSIM The first vacant land is including the whole PT 1499, that the whole land is vacant land. Then in this suit, my witness, the vacant land is between the RE wall and the existing drain that going through PT 1499, Yang Arif. BT En Kassim, I don’t really follow your answer. When you say vacant land in respect of, refers to PT 1499, which what are you referring to? I mean which reference you are referring to, where? KASSIM First PT 1499 is a vacant land. BT You mean vacant land in what sense? KASSIM The title BT You mean PT 1499 vacant land, the title? S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 18 this document via eFILING portal KASSIM Yes. BT What do you mean by vacant land for a title? KASSIM Title here means that there’s a monsoon drain going through Lot 1499, there is drain, existing drain go through 1499. BT Yes KASSIM So that the whole Lot 1499 is vacant land. SPPK spilled the monsoon, the drain 1499. In this suit, my definition what vacant lot is between existing drain and the RE wall. BT And the RE wall KASSIM Yes. [49] The Defendants further premised that, to which I agreed, if the Plaintiff’s argument were to be adopted, it does not make sense that there was a requirement to sub-divide the Vacant Land. Further, if it was the intention of all of the parties to refer to the whole PT 1499 as the Vacant Land, it would have been easier to transfer the whole PT 1499 in the first place. Instead, the Settlement Agreement provides that it is the Plaintiff’s obligation to subdivide the land under clauses 3.1.3 to 3.1.7:– “YEK’s obligations 3.1 YEK hereby covenants, undertakes, warrants and represents to and with SPPK and Bungsar Hill as follows: 3.1.1 Upon execution of this agreement YEK shall discontinue his Counterclaim in the Civil Suit against SPPK and Bungsar Hill with no orders as to costs and without liberty to file afresh. For avoidance of doubt, all liabilities in relation to and/or arising from the Counterclaim against SPPK and Bungsar Hill (which are denied) are deemed extinguished. 3.1.2 This Agreement shall be in full and final settlement of all claims YEK may have against SPPK and Bungsar Hill arising in YEK’s Counterclaim. 3.1.3 YEK acknowledges that the registered proprietorship of the Vacant Land is to be transferred to him an on “as is where is” basis and the actual area and size of the Vacant Land has not been determined. 3.1.4 The reasonable costs of subdividing (consisting of the cost of survey and submission to the relevant authority(ies)) the Vacant Land with the other S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 19 this document via eFILING portal part(s) of Lot 1499 shall be borne by YEK and SPPK whereupon YEK shall bear two thirds (2/3) of the cost and SPPK shall bear one third (1/3). 3.1.5 YEK shall submit the Vacant Land for subdivision within six (6) months from the date of this Agreement and YEK acknowledges that neither Bungsar Hill nor SPPK shall be liable if the Vacant Land cannot be subdivided for any reason whatsoever which reason is not attributed the fault of Bungsar Hill and SPPK. 3.1.6 YEK acknowledges that Bungsar Hill and SPPK shall not be responsible if the said relevant authorities required the Vacant Land to be surrendered. 3.17 Either simultaneously or immediately after the Vacant Land has been subdivided YEK shall apply for the registered proprietorship of the Vacant Land to be transferred to him within one (1) year from the date of this Agreement.” [50] Assuming that it was the intention of the parties to refer the whole PT 1499 as the Vacant Land, why would there be, amongst other, clauses and requirements to sub-divide the Vacant Land? This could only indicate that the Vacant Land only refers to the portion of PT 1499 and not the entire lot as pleaded by the Plaintiff. Besides, it was also narrated by DW2 in his testimony during cross-examination by the Plaintiff’s counsel that the existing drain was constructed as a dividing line – [NOP at pages 297 - 298] RS Now, I’m going to read the paragraph to you because I have some difficulty following evidence there. To identify which portion of land developed by Bungsar Hill and which portion of land sold to SPPK for master title 27384, the dividing lie was based on a drain to be constructed by SPPK on master title 27384 with the east side of the drain to be constructed for land belonging to Bungsar Hill and the west of the drain to be constructed for land sold to SPPK. Now first things first. What you’re suggesting here is that there was no drain in existence when the sale and purchase agreement and the trust deed was entered into in April 1971. Correct? S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 20 this document via eFILING portal CHONG Presume so. Yes. RS What do you mean you presume so, Mr Chong? You said the drain to be constructed. CHONG The respond to the answer is yes. RS Yes CHONG No drain was RS Yes, yes. Mr Chong, you just keep it yes or no, ok? So we can move on. Now, Mr Chong, reading this paragraph, would I be correct to interpret it to mean that both SPPK and Bungsar Hill came to a joint decision to build the drain, existing drain on PT 1499 and to use that as dividing line? Was it a joint decision? CHONG It was an agreement between the both parties RS As the construction of the drain on PT 1499? CHONG Yes [51] Moreover, it is also prudent for this Court to consider the rule of interpretation in determining this issue. Under the rule of interpretation, the court will look into the terms of the contract in literal meaning. The court will interpret in accordance with the natural meaning of the word written on the terms. I am guided by the case of SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 on this. In that case, Her Lordship Zainun Ali FCJ (as he then was) had elucidated extensively in her judgment that: “[39] Although recent decisions such as Arnold v Britton and others [2015] UKSC 36 appeared to have weaned itself from ICS, we believe a closer look would be instructive. There, Lord Neuberger and Lord Hodge emphasised on ‘the natural meaning of the words’ when given effect to a contract, since parties have control of the language therein” [52] In our case, in the natural and ordinary meaning, the term “Vacant Land” was described as ‘the portion of the strip of land west of the monsoon drain which forms part of the piece of land held under HS(D) 31777, Lot PT 1499’ [Emphasis added]. Here, it was clear that the Vacant Land relates only the ‘portion’ of the strip of land, and not the whole PT 1499, as the Plaintiff contended it to be. Therefore, I am of the view that it was the real intention of the parties to refer the Vacant Land as a S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 21 this document via eFILING portal portion and not the whole PT 1499. This is further supported by the reference to the portion marked in red in the 1st Schedule. Only a portion of Lot 1499 was labelled red in 1st Schedule and not the entire lot. [53] Nonetheless, the Plaintiff also argued that in the Settlement Agreement, there was no definite interpretation of the monsoon drain. The Plaintiff in his submission premised that the phrase “monsoon drain” could be defined as either the existing drain or the drain reserve. The Plaintiff pressed for the latter. [54] With that being said, in order to ascertain the real intention of the parties in regard to the definition of “monsoon drain”, I must examine the factual matrix and evidence leading to the execution of the Settlement Agreement. This is due to the fact that the phrase “monsoon drain” was not defined in the Settlement Agreement. In SPM Membrane (supra), Her Lordship Zainun Ali mentioned in paragraph [44] – [46], “[44] Whether the natural meaning of the contract is not clear and in the particular absence of words to the effect mentioned above, the principles in ICS in their qualified form (see [28] which qualifies its application vis-à-vis extrinsic evidence), remain applicable and relevant to the construction of the construct such as to enable the court to objectively determine ‘the meaning which the contract would convey to a reasonable person having all the background knowledge…available to the parties’. [45] The principle of Lord Hoffmann was summarised in Berjaya Times Square Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v M Concept Sdn Bhd [2010] 1 MLJ 597 at [42] at p 620G. Gopal Sri Ram FCJ, who delivered the leading judgment of the court stated: Here it is important to bear in mind that a contract is to be interpreted in accordance with the following guidelines. First, 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 which forms the background to the transaction. Second, the factual matrix which forms the background to the transaction includes all material that was reasonably available to the parties. Third, the interpreting court must disregard any part of the background that is declaratory of subjective intent only. Lastly, S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 22 this document via eFILING portal the court should adopt an objective approach when interpreting a private contract.” [Emphasis added] [55] Correspondingly, in Kotak Malaysia (KOM) Sdn Bhd v Perbadanan Nasional Insurans Sdn Bhd formerly known as Union Insurance Malaysia Sdn Bhd [2005] 4 MLJ 402, His Lordship Ramly Ali J (as he then was) cited the English decision of Frederick E Rose (London) Ltd v William H Pim & Co Ltd [1953] 2 QB 450 at p 461 and observed that: “In order to get rectification it is necessary to show that the parties were in complete agreement upon the terms of their contract, but by an error wrote them down wrongly, and in this regard, in order to ascertain the terms of their contract, one does not look into the inner minds of the parties – into their intentions – any more than one does in the formation of any other contract. One looks at their outward acts, that is at what they said or wrote to one another in coming to an agreement and then compares it with the document which they have signed. If one can predicate with certainty what the contract was and that it is, by a common mistake wrongly expressed in the document, then one rectified the document; but nothing less will suffice.” [Emphasis added] [56] As mentioned earlier, there was no interpretation for “monsoon drain” in the Settlement Agreement. In fact, the phrase was only used once in it. The Plaintiff contended that the monsoon drain refers to the drain reserve while the Defendants submitted that it refers to the existing drain. Hence, by adopting the ratio in SPM Memberane (supra) and Kotak Malaysia (KOM) Sdn Bhd (supra) we need to look at the factual matrix and the incident that lead to the Settlement Agreement. [57] Inherently, the Settlement Agreement was entered into by the parties to settle the counter-claim of the Plaintiff against the Defendants in Suit 215. The Plaintiff contended that the monsoon drain under the 1st Schedule does not represent the actual monsoon drain. The Plaintiff referred to Dewan Bandaraya Kuala Lumpur (‘DBKL’) Letter which stated – “2. Adalah dengan ini disahkan bahawa terdapat aliran hujan (channelad) melalui lot PT 1499 Mukim Kuala Lumpur yang mana terlibat di jajaran laluan S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 23 this document via eFILING portal rezab parit induk selebar 20 kaki. Pihak tuan punya tanah lot PT 1499 berhak meminda penjajaran parit terlibat dengan syarat-syarat tertentu tertakluk kepada mengekalkan penjajaran rezab 20 kaki sediada parit induk terlibat.” [58] With the DBKL’s letter, the Plaintiff premised that the existing drain was a mere rainwater channel and not an actual monsoon drain. The actual monsoon drain should be then relocated to the drain reserve which leads to the definition of the Vacant Land comprising the whole PT 1499. Be that as it may, I have to disagree with the Plaintiff’s contention that the Settlement Agreement referred to the drain reserve when the phrase “monsoon drain” was used. PW1 himself had repeatedly testified to this Court that the “monsoon drain” referred to the existing drain and not the drain reserve. [NOP at pages 40 – 41] BT The monsoon drain here refers to the existing drain on PT 1499? YEOH Well, at that time I assumed that I was a monsoon drain, yes. BT No, Mr Yeoh, my question is this. Look at the… I mean, your pleaded case here. It says, ‘both sit on land which slopes downwards towards a monsoon drain’, and the monsoon drain here refers to the existing drain on PT 1499. YEOH Yes BT And you go on to say, we go back to paragraph 6, ‘The properties are located in backfilled land with a common reinforced earth wall constructed by the Third Defendant at their respective boundaries at the rear of the properties.’ I move on to the next page, page 158, on how the, what the vacant land was described. Look at paragraph 7. It says here ‘Prior to April 2006, the vacant strip of land, the vacant land between the boundary of RE wall and the monsoon drain was covered with heavy vegetation and trees ‘Mr Yeoh, do you agree that the monsoon drain here refers to the existing drain on PT 1499? YEOH At that time I thought it was the monsoon drain, yes. BT Mr Yeoh, just answer yes or no. Do you agree that the monsoon drain here refers to the existing drain on PT 1499? YEOH Yes, at that time. S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 24 this document via eFILING portal BT Mr Yeoh, you say ‘at that time’, but based on your pleaded case even at that time and now, when you say that a ‘monsoon drain is covered with heavy vegetation and trees’, is there any other drains covered with heavy vegetation trees this time? YEOH So at that time, I thought it was a monsoon drain. BT No Mr Yeoh, my question is this. You said ‘at that time,’ at that time you say ‘monsoon drain is covered with heavy vegetation and trees’, at that time. Even now when you say that a ‘monsoon drain is covered by heavy vegetation and trees’, is there any reference to any other drains, which is covered by heavy vegetation and trees? YEOH I am referring to that particular drain. BT Existing drain? YEOH Yes, that existing drain, yes. BT Yes, so PT 1499. So far as paragraph 7 is concerned , your reference is to the existing drain? [NOP at page 48] BT So, whatever reference to the monsoon drain in your pleaded case or re amended defence and counterclaim, refers to the monsoon drain refer to the existing drain – YEO Yes BT On PT 1499 YEOH Yes. [NOP at page 58] BT Mr Yeoh, in your witness statement in S4 civil suit, do you agree that throughout your witness statement, the monsoon drain, which is referred in your witness statement, refers to the existing drain ? YEOH Drain is existing drain, yes. Yes. BT So, you confirmed that in your witness statement the monsoon drain has been, is the existing drain? YEOH The existing drain, yes. S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 25 this document via eFILING portal BT existing drain YEOH But I am not sure whether it’s a monsoon drain I. BT No. YEOH It’s a drain. It’s a drain. BT No, Mr Yeoh, my answer, my question is very straight forward. In your witness statement, you have referred to the existing drain as monsoon drain. Is that correct? YEOH Yes, at that time, I assumed it’s a monsoon drain. That’s right. Yes. [NOP at page 66] BT Now Mr Yeoh, I mean, you have testified earlier that through the proceedings in this case, the monsoon drain refers to the existing drain? YEOH Monsoon drain is the existing drain BT Right. And even in your pleaded case, the monsoon drain is the existing drain ? YEOH Yes. BT The agreed facts are prepared based on your pleaded case and you agree that the monsoon drain here refers to the existing drain? YEOH Yes. BT Right. And even in your pleaded case, the monsoon drain is the existing drain? YEOH Yes. [59] Over and above that, DW1 has also corroborated this during cross-examination – [NOP at page 180] RS Correct. Ok. Now, Cik sorry, Pn Azlina. Would you recall any correspondence between the solicitors that defines the monsoon drain that did not I’m talking about the correspondence between the solicitors? AZLINA In relation to this agreement? S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 26 this document via eFILING portal RS Yes, in relation to the agreement. AZLINA Oh, we are always talking about that drain that existing structure RS Right AZLINA Whatever name you call it that’s the structure that we are looking at, yes. [60] To further, DW3 has also affirmatively confirmed this during re-examination– [NOP at page 347] BT Very well, My Lord. Mr Chong, you were asked about the definition of vacant land and about the monsoon drain. And you said that at the time when you signed the particular agreement you are clear that that particular agreement refers to the monsoon drain. CHONG Yes BT Can you explain why? CHONG My Lord, there is only one existing drain in PT 1499. There’s no other drain on that lot, ok. The monsoon drain, when you refer here in the vacant land, must refer to the existing drain. That’s No. 1, No. 2 is that the vacant land has been clearly marked out as red In the plan enclosed as first schedule of the settlement agreement, yes. And what is said in the definition is that, what is marked out as red is west of a monsoon drain. And what it, what can I derive from it is that the blue marking on the plan itself must therefore be the monsoon drain. [61] Besides, it is obvious that the alleged drain reserve is located outside Lot 1499. This was indeed reluctantly agreed by PW1 himself in his cross examination- [NOP at page 50 – 52] BT And you referred to this document in your witness statement in the S4 civil suit. YEOH Ok. This is actually my neighbouring owners’ survey, yes. It’s not my survey. It’s my neighbouring owner’s survey. BT Sure. Are you familiar with this document? S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 27 this document via eFILING portal YEOH Yes. BT You are? Very well. Mr Yeoh, you look at this survey, what you called, spot level survey. Look at the, there’s drain shown here, which is marked in blue. Do you agree that this is the existing drain on PT 1499? YEOH I assume that is the drain, existing drain, yes. I assume. BT You what, you assumed that, that is the existing drain? YEOH Yes BT Mr Yeoh, I’ll just remind you that you also filed a witness statement, I mean, stating all these facts. YEOH yes BT So, you confirmed that this is the existing drain on PT 1499, the one in blue? YEOH Yes. BT And do you also agree that in this particular drawing, the reserved drain, which is outside PT 1499, which is not coloured is also shown and marked as drain reserve? YEOH It’s not so clear but it looks like it’s a drain reserve, yes. BT The one which, is not coloured right? YEOH Yes. It’s towards the right hand side after the blue. BT Towards right hand? YEOH It’s to the right of the blue line, right? BT To the right, that’s right, to the right. YEOH Yes. [NOP at page 75] YEOH So, this is the main drain. The blue is the main drain which is the drain reserve. So, you can put up the other way because your west is east, east is west? So, we have to turn the plan upside down. BT Ok. … YEOH Ok, alright. So, the main drain is actually being referred to as the blue line here which is the drain reserve. So – YA The blueline or the blue highlighted area? S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 28 this document via eFILING portal YEOH The blue highlighted, sorry blue highlighted area is actually the main drain which is the drain reserve. … [NOP at pages 76 - 77] BT Very well. Mr Yeoh, my question is this. You are referring to page 253 the plan just now. You agree that the drain reserve which is highlighted in blue is outside PT 1499? YEOH I’m not sure about that. BT You’re not sure? I mean you were able to give an explanation. Now you’re not sure. YEOH No because you refer me to this witness statement. I mean – … BT Mr Yeoh, look at the plan just now. My question is this, do you agree that the drain reserve which was shown just now, highlighted in blue is outside PT 1499? YEOH It appears to be. BT It appears to be? YEOH Yes. [62] This fact that the drain reserve is actually located outside Lot 1499 would bring the definition of ‘Vacant Land’ into total illogicality and non-commonsensible if the submission of the Plaintiff is to be accepted. It was defined in the Settlement Agreement as ‘the portion of the strip of land west of the monsoon drain which forms part of the piece of land held under HS(D) 31777, Lot PT 1499, Mukim Kuala Lumpur, District of Kuala Lumpur, and has not been subdivided and the exact size and area have not been specifically determined.’ If, as alleged by the Plaintiff, the term ‘monsoon drain’ was indeed referring to the drain reserve, how could it (the drain reserve) form part of Lot 1499 whereby PW1 has agreed that it is located outside Lot 1499? How would the requisite subdivision of Lot 1499 be relevant and applicable to it if it is located outside Lot 1499? Thus, the Plaintiff’s contention that the term ‘monsoon drain’ used in the definition of ‘Vacant land’ in the Settlement Agreement was indeed referring to drain reserve is totally misplaced. S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 29 this document via eFILING portal [63] The Plaintiff had also attempted to denounce the Settlement Agreement by arguing that it was prepared by the Defendants and the Plaintiff had never involved in the preparation of it. Yet, PW1 agreed during cross-examination that he was at all material time represented by his solicitors in Suit 215 and in the preparation and execution of the Settlement Agreement. [NOP at page 37] BT … Mr Yeoh, when the settlement agreement was prepared, you were represented by solicitors? YEOH Yes [64] I am of the view that the Plaintiff was clearly aware of the terms and nature of the Settlement Agreement when he executed it in 2012. He cannot retract this now. In the case of United Overseas Bank (Malaysia) Bhd v Lee Yaw Lin & Anor [2016] 2 AMR 638, Her Ladyship Nallini Pathamanthan JCA (as she then was) at p 646 observed that – “Clause 13 (and 14 on limitation of liability) are expressly set out in the 2002 agreement. The plaintiffs signed in the 2002 agreement in its entirety, meaning that they are bound by clauses 13 and 14. The fact that they chose not to read the contract in its entirety does not mean that they are not bound by the terms of the contract (see Saunders v Anglia Building Society (formerly Nothampton Town and County Building Society) [1970] 3 All ER 961; Chai Then Song v Malayan United Finance Bhd [1993] 1 AMR 907; [1993] 2 CLJ 640; UMW Industries (1985) Sdn Bhd v Kamaruddin Abdullah & Anor [1989] 2 CLJ (Rep) 619.” [Emphasis added]. [65] Furthermore, during the trial, the above line of questioning was objected by the Defendants because the validity of the Settlement Agreement was never pleaded or challenged by the Plaintiff in his statement of claim. I concurred with the Defendants’ argument that the Plaintiff is estopped from disputing the validity and enforceability of the Settlement Agreement. [66] Moreover, in regard to the DBKL’s letter, I do not see the relevancy of it. It was enquired by the Plaintiff after the Settlement Agreement has been duly signed by the S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 30 this document via eFILING portal parties. DBKL has never been a party to the Settlement Agreement. Therefore, I do not see the weight of the DBKL’s letter in our current case. [67] I am guided by the Court of Appeal case of Sim Ah Hee @ Lim Ah Hee & Anor v Affin Bank Bhd and another appeal [2010] 5 MLJ 1 for this. In this case, Tengku Baharudin Shah JCA held that in every case, the courts strive to ascertain, on an objective basis, what the parties intended a written instrument to mean (at pages 6 – 7) – “[10] The law is that when the terms of a contract is reduced into a form a document, no evidence shall be given in a proof of the terms of the contract except the document itself (see s 91 of the Evidence Act 1950). The Federal Court in Union Workshop (Construction) Co v Ng Chew Ho Construction Sdn Bhd [1978] 2 MLJ 22 held that when the meaning of a contract was clear there could be no resort to other documents to give another meaning to it. And it is trite that it is not legitimate to use as an aid in the construction of a contract anything which the parties said or did after it was made. Otherwise, the contract might mean one thing on the day it was signed and something else a month or a year later because of the intervening events (see Perwik Sdn Bhd v Lee Yen Kee (M) Sdn Bhd [1996] 1 MLJ 857 at p 863 … [13] With the terms of the LIs so clearly expressed as aforesaid resort cannot be had to other documents to give them another meaning (see Union Workshop. LIs are commercial contracts. The principles to be applied in construing such contracts are expressed by Lord Diplock in Pioneer Shipping Ltd & Ors v BTP Tioxide Ltd [1982] AC 724 at p 736 (HL) in the following words; The object sought to be achieved in construing any commercial contract is to ascertain what were the mutual intention of the parties as to the legal obligations each assumed by the contractual words on which they … chose to express them; or, perhaps more accurately, what each would have led to other reasonably to assume were the acts that he was promising to do or to refrain from S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 31 this document via eFILING portal doing by the words in which the promises on his part were expressed. [14] In short, the question to be asked is the meaning of what the parties have said and what they mean to say. In other words, if the contract is reduced into a document it must be read within its four corners. As contended by Puan Lee for the respondent, if you seek to bring in other documents then it must be incorporated and stated to include those documents, which is not the case here.” [Emphasis added.] [68] To sum up, the facts leading to the entering of the Settlement Agreement clearly confirm that all parties recognized and understood that the “monsoon drain” stated in the definition of “Vacant Land” referred to the existing drain, the one and only drain flowing through Lot 1499. There has never been any mutual mistake to that. The Plaintiff himself was also fully aware that the reference provided under the definition of “Vacant Land” referred to the existing drain and not the drain reserve. To now interpret it otherwise would be a drastic departure from the intention of the parties evidenced from the natural language used, the marking in blue in the 1st Schedule and the factual matrix leading to the execution of the Settlement Agreement. [69] Ultimately, I find it evidently that the intention of the parties was to refer the monsoon drain as the existing drain which separates PT 1499 into west and east portions. Regardless whether the existing drain was an actual monsoon drain or not, the fact remains that the existing drain is to demarcate PT 1499. DW1 in during cross- examination by the 2nd Defendant counsel has firmly averred that- [NOP at pages 192 – 193] BT Pn Azlina. Thank you, My Lord. Pn Azlina, during the cross- examination by my learned friend, you answered that you are not a technical person. And your technical team evaluated the plans which were enclosed as Schedule 1 to the settlement agreement. Can you explain, I mean, how did you all evaluate the plan and what did you mean by you are not a technical person in respect of the main drain and monsoon drain and so forth? AZLINA I think there is no reference to a particular definition of monsoon drain or whatever, but it was not based on the existing structure S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 32 this document via eFILING portal that we have on ground. So the technical team verified that that is where the drain is, and which part, the portion that belongs to the Plaintiff BT Very well. As you also said that you are not a technical person. Can you explain? What do you mean by you are not a technical person? AZLINA Meaning whatever definition you want, monsoon drain or whatever, concrete drain whatever, it doesn’t, it’s not – if that’s a technical thing, I wouldn’t know. But what we know is that ‘as is where is’ basis the line of the drain, the existing drain that we constructed is the determining factor to determine west of that particular drain that was constructed in which – BT Yes. I think will..Just one more question, My Lord. Pn Azlina, you also mentioned that, I mean you confirmed that as far as the existing drain is concerned, that was constructed by SPPK? AZLINA Yes. [70] Also in the recent Court of Appeal case of Tan Tay Vui v. Mc Global Sdn Bhd [2021] 1 MRLA 42, the appellant argued that the words “more or less” import the meaning of indefiniteness and uncertainty thus renders the Joint Venture Agreement and the Deed of Power of Attorney void. Her Ladyship Mary Lim Thiam Suan JCA (as she then was) in delivering the judgment held that at page 42, paragraphs [33] – [35] – “[33] Section 30 provides that agreements are void when the meaning of the agreements is not certain or when the meaning of such agreements which requires certainty and not particular word(s) used because the meaning of any of the words or terms in the agreement may be gleaned from reading the whole agreements, and not the particular words complained of in isolation. [34] The whole object of construing or interpreting any agreement is to determine the real intention of the parties so that effect can be given to their bargain. When construing and interpreting commercial agreements, the court frequently reminds itself to give business efficacy to the agreements made, upholding them as opposed to examining them as if some lab specimen under a scientific microscope, subjecting each and S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 33 this document via eFILING portal every word used in the agreements to the kind of scrutiny that one may deploy in a language and grammar exercise. [35] What the court does is to presume that each word used in the agreements was intentionally chosen for a purpose, and then proceed to give the words used their plain and ordinary meaning. A purposive construction will be engaged where it gives the words used a meaning that would accord with the purpose of the agreements.” [Emphasis added] [71] In the case of Maser (M) Sdn Bhd v FCB Construction (M) Sdn Bhd [2019] 1 LNS 1667, His Lordship Darryl Goon Siew Chye J (as he then was) referred to para [41] of Arnold v Britton [2015] AC 1619 and lucidly outlined 7 factors to interpret a given agreement of which, this Court find the fifth point (para [21]) extremely useful and relevant to our present case in view that the term “monsoon drain” was not defined in the Settlement Agreement– “16. For present purposes, I think it is important to emphasis seven factors. 17. First, the reliance placed in some cases on commercial common sense and surrounding circumstances (e.g. In Chartbrook [2009] AC 1101, paras 16 – 26) should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focusing on the issue covered by the provision when agreeing the working of that provision. 18. Secondly, when it comes to considering the centrally relevant words to be interpreted. I accept that the less clear they are, or to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. That is simply the obverse of the sensible proposition that the clearer the natural meaning the more difficult it is to justify departing from it. However, that does not justify the court embarking on an exercise of searching for, let alone S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 34 this document via eFILING portal constructing, drafting infelicities in order to facilitate a departure from the natural meaning. If there is a specific error in the drafting, it may often have no relevance to the issue of interpretation which the court has to resolve. 19. The third point I should mention is that commercial common sense is not to be invoked retrospectively. The mere fact that a contractual agreement, if interpreted according to its natural language, has worked out badly, or even disastrously for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made… 20. Fourthly, while commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed. Experience shows that is by no means unknown for people to enter into arrangements which are ill-advised, even ignoring the benefit of wisdom of hindsight, and it is not the function of a court when interpreting an agreement to relieve a party from the consequences of his imprudence or poor advice. According, when interpreting a contract a judge should avoid re-writing it in an attempt to assist an unwise party or to penalise an astute party. 21. The fifth point concerns the facts known to the parties, when interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time that the contract was made, and which were known or reasonably available to both parties. Given that a contract is a bilateral, or synallagmatic, arrangement involving both parties, it cannot be right, when interpreting a contractual provision to take into account a fact or circumstances known only to one of the parties. 22. Sixthly, in some cases, an event subsequently occurs which was plainly not intended or contemplated by the parties, judging from the S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 35 this document via eFILING portal language of their contract. In such a case, if it is clear what the parties would have intended, the court will give effect to that intention… 23. Seventhly, reference was made in argument to service charge clauses being construed ‘restrictively”. I am unconvinced by the notion that service charge clauses are to be subject to any special rule of interpretation.” [Emphasis added] [72] In essence, it is undisputed that the Settlement Agreement was derived from the counterclaim in Suit 215. In that counterclaim, the Plaintiff had argued that because of the 1st Defendant’s failure to take any reasonable steps and/or to remedy the soil erosion at the rear of the RE Wall and the Vacant Land, the Property had suffered damage. In the re-amended defence and re-amended counter-claim (of Suit 215), the Plaintiff at paragraph 6 and 7 had defined the Vacant Land as follows – [Common Bundle of Documents (CBOD) Volume 1 at pages 154-155] “6. The No. 43 and No. 45 Properties (collectively referred to as “the Properties”) which are adjacent to each other, both sit on land which slopes downwards towards a monsoon drain. The Properties are located in backfilled land with a common Reinforced Earth Wall (“RE Wall”) constructed by the 3rd Defendant at their respective boundaries at the rear of the Properties. 7. Prior to April 2006, the vacant strip of land (“the Vacant Land”) between the boundary of the RE Wall and the monsoon drain was covered with heavy vegetation and trees. In and around end of April 2006 the trees at the Vacant Land had fallen and uprooted thus depriving the Vacant Land of the benefit of vegetative cover and tree roots to prevent and/or reduce the risk of erosion of the sand and earthfill beneath and/or at the rear of the RE Wall.” [Emphasis added] [73] Moreover, the Plaintiff also had used the term “monsoon drain” in the re- amended defence and re-amended counter-claim as the existing drain on PT 1499. [CBOD Volume 1 at page 155] 10. The 1st Defendant subsequently discovered that there was extensive erosion of the sand and earthfill at the rear of the RE Wall of both the Properties, S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 36 this document via eFILING portal and that the heavy vegetation and trees on the Vacant Land had eroded and fallen resulting in the blockage and clogging up the monsoon drain. [CBOD Volume 1 at page 165] 33. (a): Failing to consider that the RE Wall was constructed adjacent to a monsoon drain with an inert level of approximately 2 meters below (aa): Failing to construct the monsoon drain of sufficient distance from the RE Wall. (ab): Failing to maintain and ensure that the monsoon drain remained free from any interference of the water flow therein and/or from clogging up. [CBOD Volume 1 at page 168] 36. The 5th Defendant (in the Counterclaim) Bungsar Hill Developments Co. Sdn Bhd who is the registered proprietor of the Vacant Land held under H.S(D) 31777 and No. PT 1499, of Mukim Kuala Lumpur located between the RE Wall and the monsoon drain. [74] This corroborates the fact that even before the Settlement Agreement was agreed by the parties, the understanding of the ‘Vacant Land’ had never constituted the whole PT 1499. PW1 in his testimony also confirmed this during cross-examination by the 2nd Defendant’s counsel – [NOP at page 54] BT And look at page 161. A specific question was asked here, to say, ‘Please identify No. 43, 45, the vacant land, the monsoon drain and the school in the plan’. So, you were asked to identify what is the vacant land and monsoon drain. And this is your answer, Mr Yeoh, ‘If one starts at the top left hand of the plan and move downwards, plots No. 45 and 43 are the 5th and 6th plots. Moving down to the bottom of the survey, the school is visible at the bottom left-hand corner of the plan. Going back No. 43 and No.45, one can see the RE wall, which is described as a concrete wall, sitting at the boundary of both properties. At the back of both S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 37 this document via eFILING portal properties, one finds a drain reserve. The vacant land is a piece of land between the concrete wall and the drain reserve which I assumed was described as PT 1499 in the plan. The monsoon drain is shaded in blue.’ Mr Yeoh, you agree if you looking at your answer to, in paragraph 2 here, to Question 21, you have made specific reference to a drain reserve and a monsoon drain? Do you agree? YEOH Yes [75] The Plaintiff’s witness in Suit 215 also testified in his prepared witness statement that the existing drain was referred to as a monsoon drain. [CBOD Volume 1 at page 190] 21. Q : In paragraph 3.4 of your Report, you are of the view that the existing Monsoon Drain may be temporarily constructed at a location that is not consistent to the approved plan. What approved plan are you referring to? A : I was provided with a Detail and Spot Level Survey (“Plan”) by Patriek Yeoh (the 1st Defendant) in respect of No. 43 and No. 45; the Vacant Land, the Monsoon Drain and the new development (“New Development”) on the adjacent land behind the Vacant Land. Patriek informed me that this was the plan that he obtained from the developer of the New Development. This Plan is found at [CBD 7 / 8] 22. Q: In your Report, you suggest that the Monsoon Drain may have been temporary construction. Why do you say that? A: From the Plan, it is apparent that the Monsoon Drain was constructed at a location that was not designated as a drain reserve. 23. Q: Please explain what difference it would have made if the Monsoon Drain had been constructed at the location of the drain reserve. A: The back of No. 43 and No. 45 sit on a slope of that forms a ravine. The Monsoon Drain appears to have been constructed at a low point of the ravine and some distance away from the area designated for the drain reserve. If the Monsoon Drain had been constructed at the area designated for the drain reserve then the slope behind No.43 and No. 45 would have been gentler and less critical to failure. S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 38 this document via eFILING portal [76] This was also averred and confirmed by the Plaintiff’s own testimony during cross-examination-- [NOP at pages 105 and 106] BT No, what I’m saying Mr Yeoh, and what you are saying is that plot 1 is based on the west side. YEOH Yes. BT The existing monsoon drain and plot 2 is on the east side of the existing monsoon drain. YEOH This refers to the drain reserve as the reference point. BT Ok. So, in other words, what you are saying is that plot 1 is meant for you and plot 2 is meant for Second Defendant? Is that correct? YEOH Second Defendant? Well, is this was just an attempt by our side to follow the settlement agreement drawings because we were running out of time to subdivide. BT No, my question is this Mr Yeoh. You have plot 1 and plot 2. YEOH Yes. BT That means in other words you’re not asking for – YEOH Attempted, we attempted to subdivide this based on plot 1 and plot 2, yes. BT Yes, so based on this particular drawing here, what you intended is to have plot 1, correct? YEOH Yes BT And plot 2 – YEOH To subdivide the lot, yes. BT Sorry, Mr Yeoh? YEOH Subdivide, we tried to subdivide these two plots. BT Yes, plot 1 and plot 2. Why, I mean, plot 1 is, what you are saying is that, it’s for you is it, Mr Yeoh? That’s the vacant land you are talking about? YEOH Yes [77] Therefore, I agree with the 2nd Defendant’s submission that, from his pleadings in Suit 215, it is clear that the Plaintiff was fully aware that the Vacant Land was the S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 39 this document via eFILING portal strip of land on the west side of the existing drain on PT 1499. That has been the understanding and intention of the parties all along. [78] In a nutshell, it is the view of this Court that there was no such mistake and all parties have a common intention and were well verse of the real meanings and effects of both “Vacant Land” and “monsoon drain” (namely the existing drain flowing through Lot 1499) in entering into the Settlement Agreement. [79] Therefore, applying the ratio in SPM Membrane (supra), Berjaya Times Square Sdn Bhd (supra) and Tan Tay Vuit (supra) to the circumstances leading to the Settlement Agreement and the contemporaneous documents and the conducts of the parties, it is without a doubt that, the intention of all parties was that the term ‘monsoon drain’ refers to the existing drain on PT 1499. To further, looking at the Settlement Agreement as a whole, it is also obvious that the parties had agreed to subdivide Lot 1499 and thus the term ‘Vacant Land’ is as defined in the Settlement Agreement to refer to the strip of land (marked in red in the 1st Schedule) and not the entire Lot 1499. ii – ‘As is where is’ Basis [80] Under clause 3.1.3 of the Settlement Agreement it was stated that the Vacant Land is to be transferred on ‘as is where is’ basis. Clause 3.1.3 is as follows – “3.1.3 YEK’s acknowledges that the registered proprietorship of the Vacant land is to be transferred to him on “as is where is” basis and that the actual area and size of the Vacant Land has not been determined.” [81] In Mensa Mercantile (Far East) Pte Ltd v Eikobina (M) Sdn Bhd [1989] 2 MLJ 170, Her Ladyship Siti Norma Yaakob J (as she then was) defined ‘as is where is’ basis (at page 176,paragraph I (left)) – “The term ‘as is where is’ appearing in a sale transaction is defined in the Encyclopaedia of Practical Usages of Terminology for Business Agreements, at p 40, as being a sale of goods ‘without warranty or guarantee as to quality, character, condition, size, weight or kind.’ In other words, to quote PW1, ‘I take them as I see them’. S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 40 this document via eFILING portal [82] The 2nd Defendant’s counsel also cited Tan Kim Eng (supra) where Choo Kah Sing J held – “[30] This Court, after having scrutinized the agreements in both cases, could not agree with the plaintiff’s submission as to the manner the term ‘as is where is basis’ was used. When the term is used in an agreement, one has to read the entire clause with care as to how and in what context it is being used and being referred to. The term cannot be treated as an all-pervading term that encompasses every aspect of an agreement.” [83] I am also guided by the recent decision of the Court of Appeal in Open Country Dairy Limited v Able Food Sdn Bhd [2021] 7 CLJ 716 where His Lordship S Nantha Balan JCA reasoned that – “[79] it is therefore clear that there was an exclusive jurisdiction clause per c.19.2 of the terms of trade and this was incorporated in the contracts for the purchase of the IWMP. Therefore, the respondent must be held to their bargain and a Malaysian court is obliged to give effect to the exclusive jurisdiction clause, unless the respondent, as the party seeking to avoid the application of the clause, are able to establish that there are exceptional circumstances to justify the contrary (see: Word Triathlon)” . [Emphasis added] [84] PW1 in his testimony during cross-examination has admitted that the Vacant Land would be transferred to him on ‘as in where is’ basis – [NOP at page 135] KB Do you agree that under Clause 3.1.3 you have accepted that the vacant land will be transferred to you on ‘as is where is’ basis? YEOH Yes [85] Thus, based on the above authorities, the Plaintiff was fully aware that the term “Vacant Land” was related to a portion (west) of PT 1499 with the existing drain as its demarcation. In light with the “as in where is” basis, that demarcation had been the status and condition of Lot 1499 as agreed by the parties. This Court do not have the power to add or vary or insert terms that were not agreed upon by the parties in the S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 41 this document via eFILING portal first place. Regardless whether the Plaintiff dislikes that notion, in all fairness, this Court is unable to agree with the Plaintiff’s stand in this matter. [86] To support, the 1st Defendant also quoted the case of One Visa Sdn Bhd v Telekom Malaysia Bhd [2015] 10 CLJ 569 where the Court held that– “[57] The court is of the view that the application of “as is where is” is regarding the plaintiff’s purchase of the lands according to its existing condition. The plaintiff is fully aware that it had purchased the lands on the basis of “as is where is”. [58] The plaintiff ought to have known, or is otherwise deemed to have known of the defendant’s infrastructure existing on the lands and of any squatters on the lands prior to the plaintiff’s purchase of the same. In fact, this was confirmed by PW1 who admitted under cross-examination that the lands were sold subject to the existing condition and rights (if any) on the lands. PW1 confirmed that the plaintiff did not buy the lands with vacant possession.” [87] There has not been any mentioning of drain reserve in the Settlement Agreement or in Suit 215. By the same token, the Plaintiff himself also confirmed that he only knew of the drain reserve after the Settlement Agreement. Therefore, this Court answer the first issue in negative. Unfortunately, the Plaintiff has failed to prove to this Court that there was such mutual mistake in defining the “Vacant Land” or in the usage of the term “monsoon drain”. Neither was there any basis to justify the interpretation of “monsoon drain” as the drain reserve. This is because objectively, all parties agree and point out that the monsoon drain was the existing drain and it is the drain that divided Lot 1499. Under the Settlement Agreement, the parties had intended that only the strip (as marked in red in the 1st Schedule) to the west of the existing drain was to be transferred to the Plaintiff for free. [88] Moreover, it is also a trite law that unilateral mistake, if at all, is not sufficient to invoke section 30 of the Specific Relief Act 1950. I refer to the case of Southwind Development Sdn Bhd v Hass Plantation Sdn Bhd [1996] 5 MLJ 85 where His Lordship Richard Malanjum J (as he then was) held at page 89 that – “Thus, it is accepted that: S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 42 this document via eFILING portal ‘…to establish a right of rectification of a document it is necessary to show that there has been either fraud or common mistake and that rectification will not be granted unless it is distinctly claimed. This does not affect the jurisdiction of the court to correct manifest or undisputed errors without any formal rectification. The mistake of one party to a contract is not a ground for rectification.’ Further, for a mistake to be mutual, it ‘must be common to both parties, and it is essential that the parties should have had precisely the same intention on the point on which the document is inaccurate.’ Indeed, I do not think it is subject to challenge that ‘in a proper case the court will amend the language of an instrument for the purpose of making it accord with the true intention of the parties, having ascertained what that intention was and also that the words as they stand failed to express it’ (see Pollock & Mulla on Indian Contract and Specific Relief Acts (10th Ed) at pp 1038, 1040)” [Emphasis added] [89] Thus, I am of the view that it there was no mutual mistake and it was at all times the intention of the parties to refer the existing drain as the monsoon drain in the definition of ‘Vacant Land’ in the Settlement Agreement. iii. Estoppel [90] In the alternative, the Plaintiff also argued that the following facts may give raised to estoppel: i) The construction of the temporary existing drain on PT 1499 was within the knowledge of the Defendants; ii) The plan under Schedule 1 of the Settlement Agreement was prepared by a surveyor appointed by the 2nd Defendant and inserted into the Settlement Agreement by the 1st Defendant without any input by the Plaintiff; iii) The Plaintiff suffered a loss as a result of withdrawing the Counterclaim against the 1st Defendant as the High Court in Suit 215 held the 1st Defendant 40% liable for the damage that was caused by the Plaintiff’s neighbour; and S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 43 this document via eFILING portal iv) The Defendants as developers were aware that PT 1499 could not be sub-divided by reference to the existing drain given that there was no access to PT 1499 and PT 1499 was merely a qualified title. [91] The Plaintiff further contended that it would be unconscionable for the Defendants to take advantage of his ignorance and consequent mistake that he laboured under in circumstance where both of the Defendants benefited from the withdrawal of the counterclaim. The Plaintiff quoted the observation of His Lordship Jeffery Tan FCJ in Menta Construction (supra) (at para [59] MLJ; para [58] CLJ) to support this– “... More recently, the basis on which rectification will be ordered for unilateral mistake has widened beyond cases of fraud” (Snell’s Equity 32nd edn. at 16- 019) to unconscionable conduct. “Where only one party makes a mistake in the recording of a contract, the relevant document may be rectified if, in addition, the non-mistaken party was guilty of fraud, or misrepresentation, or the requirements for an estoppel have been met.” [92] In short, the Plaintiff tried to submit that there was unconscionable conduct by the Defendants and thus, estoppel should operate against them. [93] In reply, the Defendant argued that it should be the Plaintiff who is to be estopped because the Plaintiff himself has testified that the existing drain was at all times referred to as monsoon drain both in this Suit and Suit 215. The Plaintiff also cannot disregard the fact that the 1st Defendant already performed its part under Clause 3.1.4 of the Settlement Agreement. DW1 in her witness statement has said-- [DW1’s Witness Statement at page 8] 20. Q : Is there any obligation of SPPK under the Settlement Agreement that is still not performed? A: No, SPPK has fully performed its obligation under the Settlement Agreement when it paid to the Plaintiff the sum of RM2,473.33 being 1/3 of the cost of subdividing the Vacant Land pursuant to Clause 3.1.4 of the Settlement Agreement, as evinced by the letters dated 23.8.2013 and 30.12.2013 (refer to CBOD (Volume 1) / TABs 11 & 12 / pages 76 – 79). S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 44 this document via eFILING portal [94] Further, the 1st Defendant further premised that the Plaintiff has not adduced any evidence to prove that the Defendants knew that he was labouring under a mistake. The Plaintiff had never raised in any of his correspondences about any mistake, post-signing of the Settlement Agreement. [95] In addition, the 2nd Defendant also submitted that it was never discussed under the Settlement Agreement about the drain reserve. The only purpose the parties entered into the Settlement Agreement was to transfer the Vacant Land which was between the RE Wall and the existing drain to the Plaintiff. [96] As discussed above, this Court is of the view that there was no mutual mistake between the parties in defining the Vacant Land. Likewise, in respect of estoppel, I am again with the Defendants. I am guided and bound by the Federal Court decision in Sumatec Engineering and Construction Sdn Bhd v Malaysian Refining Co Sdn Bhd [2012] 4 MLJ 1 where His Lordship Abdull Hamid Embong FCJ concurred with the Court of Appeal decision – “[17] The Court of Appeal used the following tests and principles in coming to its conclusion, in determining the issue at hand as found in the following passages from its judgment: (i) The principle concerning ‘unconscionability’ was initially propounded by Lord Denning in the case of Llyods Bank v Bundy [1975] QB 326 where it was held that unconscionable transactions between parties may be set aside by the court of equity. This ‘unconscionable’ category is said to extend to all cases where unfair advantage has been gained by an unconscientious use of power by a stronger party against a weaker (see also Halsbury’s Law of England, (3rd Ed), Vol 17 [1956] at p 682). (ii) On an application for relief against unconscionable conduct, the court looks at the conduct of the party attempting to enforce, or retain benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so (see S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 45 this document via eFILING portal Commercial Bank of Australia Ltd v Amadio and Another [1983] 46 ALR 402). (iii) In the Singapore High Court, Lai Kew Chai J in the case of Min Thai Holdings Pte Ltd v Suniable Pte Ltd & Anor [1999] 2 SLR 368 opined that ‘the concept of unconscionability involves unfairness, as distinct from dishonesty or fraud, or conduct so reprehensible or lacking in good faith that a court of conscience would either restrain the party of refuses to assist the party.’ (iv) It is not possible to define ‘unconscionability’ other than to give some very broad indications such as lack of bona fides. What kind of situation would constitute ‘unconscionability’ would have to depend on the facts of each case. This is a question which the court has to consider on each occasion where its jurisdiction is invoked. There is no pre-determined categorisation (see Dauphine Offshore Engineering and Trading Pte Ltd v The Private Office of HRH Sheikh Sultan bin Khadifa bin Zayed Al- Nahyan [2000] 1 SLR (R) 117; and Shanghai Electric Group Co Ltd v PT Merak Energi Indonesia [2010] 2 SLR 329)…” [Emphasis added] [97] Based on the ratio of Sumatec Engineering (supra), with all due respect to the Plaintiff’s counsel, I do not find that any such unconscionable conduct of the Defendants in our present case. It is proven from the beginning that the intention of all of the parties including the Plaintiff was very clear: that the Vacant Land was to be referred as a portion of PT 1499 that was situated on the west side of the existing drain and PT 1499 was to be divided and that portion to the west of the existing drain was to be transferred to the Plaintiff. The Plaintiff has not shown or gave clear evidence to this Court could in any way establish such unconscionability or lack of bona fides by the Defendants. As mentioned earlier, the Settlement Agreement was not something done in abrupt. It was prepared, negotiated and agreed upon by the parties after consultation with their own solicitors. The Plaintiff has not adduced any evidence to prove any element of fraud or undue influence or inducement. Nothing has been tendered to support the allegation of unconscionability. Hence, this allegation of the S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 46 this document via eFILING portal Plaintiff is again baseless accusation. Thus the Plaintiff has again failed under this. I do not think the point calls for any consideration. I have also considered the other arguments of the learned counsel for the Plaintiff. With respect, I find no merit in them. C. Conclusion [98] To sum up, this Court find that the Plaintiff had failed to prove to this Court that there was a mutual mistake by the parties. Subsequently, the Plaintiff has failed to establish his case for the relief of rectification under Section 30 of the Specific Relief Act 1950 and for all other reliefs sought. This Suit is hereby dismissed with cost. Dated: 18th April, 2022 Dr John Lee Kien How @ Mohd Johan Lee Judicial Commissioner High Court Malaya Kuala Lumpur For the Plaintiff Ravindran Shanmuganathan & Dhanusha Raj Selva Raj Messrs. Sreenevasan Young For the 1st Defendant Karlos Bendlin & Angeline Chin Messrs. Amin Karlos For the 2nd Defendant B Thangaraj & M Nalani Messrs. Thangaraj & Associates S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 47 this document via eFILING portal Table of Authorities Cases Chee Lui Teen v Keet Hoe Development Sdn Bhd [1987] 2 MLRH 235 Joscelyne v Nissen [1970] 2 QB 86 Kedah Cement Sdn Bhd v Masjaya Trading Sdn Bhd [2007] 3 MLJ 597 Kotak Malaysia (KOM) Sdn Bhd v Perbadanan Nasional Insurans Sdn Bhd formerly known as Union Insurance Malaysia Sdn Bhd [2005] 4 MLJ 402 Lo Jian Hooi (No. KP: 380820-08-5087) v Urban Home Spring Sdn Bhd [2017] MLJU 1304 Maser (M) Sdn Bhd v FCB Construction (M) Sdn Bhd [2019] 1 LNS 1667 Mat Roni bin Daud v Siti bte Hussin & Ors [2005] 5 MLJ 605 Mensa Mercantile (Far East) Pte Ltd v Eikobina (M) Sdn Bhd [1989] 2 MLJ 170 Menta Construction Sdn Bhd v Lestari Puchong Sdn Bhd [2015] 6 MLJ 633 Norwest Holdings Pte Ltd v Newport Mining Ltd [2010] 3 SLR 956 One Visa Sdn Bhd v Telekom Malaysia Bhd [2015] 10 CLJ 569 Open Country Dairy Limited v Able Food Sdn Bhd [2021] 7 CLJ 716 Public Bank Bhd v National Feedlot Corp Sdn Bhd And Another Appeal [2018] MLJU 938 Sim Ah Hee @ Lim Ah Hee & Anor v Affin Bank Bhd and another appeal [2010] 5 MLJ 1 Southwind Development Sdn Bhd v Hass Plantation Sdn Bhd [1996] 5 MLJ 85 SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 Sumatec Engineering and Construction Sdn Bhd v Malaysian Refining Co Sdn Bhd [2012] 4 MLJ 1 Tan Kim Eng v Lee Eng Kok & Ors [2020] MLJU 624 Tan Tay Vui v. Mc Global Sdn Bhd [2021] 1 MRLA 42 Teras Tegap Sdn Bhd v Perbadanan Kemajuan Negeri Melaka [2017] 3 AMR 817; [2017] MLJU 73 Tucker v Bennet (1887) 38 Ch D 1 United Overseas Bank (Malaysia) Bhd v Lee Yaw Lin & Anor [2016] 2 AMR 638 Statutes Section 30, Specific Relief Act 1950 Section 31, Specific Relief Act 1950 Section 32, Specific Relief Act 1950 Treaties 34/0/2 , Malaysian Civil Procedure 2021 (Whitebook) S/N 8HolJQudGUiIDni5dyrXLQ **Note : Serial number will be used to verify the originality of 48 this document via eFILING portal