DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN SIVIL NO. W-02-754-05

ANTARA

T.S SAMBANTHAMURTHI

PERAYU

RESPONDEN

DAN

MALLAND PROPERTY SDN BHD

CORAM:
TENGKU DATO BAHARUDIN SHAH BIN TENGKU MAHMUD, JCA
LOW HOP BING, JCA
A. SAMAH NORDIN, JCA

LOW HOP BING JCA

DELIVERING THE JUDGMENT OF THE COURT

I.

APPEAL
[1]

After a full trial, the High Court dismissed the Plaintiffs claim

and allowed the 5th Defendants counterclaim, holding that there was
a breach of contract by the Plaintiff. The High Court also ordered that
damages be assessed by the learned registrar who after assessment
awarded damages in the sum of RM665,000 to the 5th Defendant,
with interest at 6% p.a from the date of assessment to the date of
realization.

[2]

On the assessment of damages, the Plaintiff appealed to the

Judge In Chambers.

The 5th Defendant had filed a cross-appeal

against the rate of interest awarded by the registrar.

[3]

The learned Judge In Chambers dismissed the Plaintiffs

appeal and allowed the 5th Defendants cross-appeal. Hence, the

Plaintiffs Appeal to us.

II.

FACTUAL BACKGROUND
[4]

At the material time, the Plaintiff was a registered owner of a

piece of land in Kulim, Kedah. The 1st and the 2nd Defendants are
advocates and solicitors, the 3rd defendant a limited company and the
4th Defendant a professional valuer.

[5]

The Plaintiff alleged that on the advice given by the 1st to 4th

Defendants, the Plaintiff agreed to enter into a Sale and Purchase

Agreement dated 28 April 1981 (the SPA) with the 5th Defendant to
sell his land at the purchase price of RM2,800,000.00. The 1st and
the 2nd Defendants acted as solicitors for the 5th Defendant and the
Plaintiff.

[6]

The 5th Defendant paid a sum of RM265,000.00 as deposit. It

was agreed by the parties that the Plaintiff was to obtain approval
from the authorities for conversion, subdivision and layout plan for the
land within five months from the date of signing the SPA.

The

balance of the purchase price would be paid once the Plaintiff had
obtained such approval.

[7]

The Plaintiff failed to obtain the approval. The 5th Defendant

then asked for the refund of the deposit paid earlier, but the Plaintiff
refused to do so. Thereupon, the parties entered into a Revocation
Agreement dated 1 December 1982 whereby it was agreed that the
SPA was revoked and the Plaintiff was to pay RM100,000.00 to the
5th Defendant upon signing the Revocation Agreement.

[8]

The parties also agreed that the Plaintiff was to sell the land to

the intended purchaser (Koperasi Belia Majujaya Bhd) and upon the
land being sold, the Plaintiff would refund the deposit sum and pay
RM400,000.00 to the 5th Defendant as the loss suffered by the 5th
Defendant due to the Plaintiffs breach of the SPA.

[9]

Subsequently, Koperasi Belia Majujaya Bhd offered to buy the

land at a consideration of RM3,300,000.00, but the offer was rejected

by the Plaintiff.

[10] The Plaintiff commenced an action against all the Defendants

on the ground that his consent to sell the land to the 5th Defendant
was obtained by fraud and that the Defendants had breached their
fiduciary duties owed to the Plaintiff.
[11] The 5th Defendant then raised a counterclaim alleging that the
Plaintiff had breached the Revocation Agreement.

[12] After a full trial, the High Court dismissed the Plaintiffs claim
and allowed the 5th Defendants counterclaim. The High Court further
ordered that damages be assessed by the registrar.

[13] On 18 June 2004, the registrar ordered the Plaintiff to pay

damages in the sum of RM665,000.00 (deposit of RM265,000.00 +
RM400,000.00 which was agreed by the parties in the Revocation
Agreement), and further awarded interest at 6% per annum from the
date of assessment until date of realization.

[14] Being dissatisfied with the registrars decision, the Plaintiff

appealed to the Judge in Chambers.

The 5th Defendant cross-

appealed against the rate of interest awarded by the registrar.

[15] On 25 May 2005, the learned Judge dismissed the Plaintiffs

appeal and allowed the 5 th Defendants cross-appeal. The rate of
interest was altered from 6% to 1% per annum, effective from 1 April
1983. Hence this Appeal by the Plaintiff.

III.

DECISION
[16] There are two issues before us in this Appeal viz the award of
damages at RM665,000 and the rate of interest at 1%. These two
issues turn on the true construction of the Revocation Agreement.

[17] We are of the view that the learned Judge had correctly
affirmed the registrars decision:

(1)

in awarding to the 5th Defendant:

(a)

the sum of RM265,000.00 being the deposit paid to

the Plaintiff under the SPA as that was expressly
incorporated in the Revocation Agreement;

(b)

RM400,000.00, being the sum which the 5th

Defendant would be entitled to receive from the
Plaintiff had the land been sold to Koperasi Belia
Majujaya, as expressly agreed in the Revocation
Agreement; and

(2)

in allowing the 5th Defendants cross-appeal against the

award of interest and altering it from 6% to 1% per annum
with effect from 1 April 1983, as this was stipulated in the
Revocation Agreement.

IV.

CONCLUSION
[18] The Plaintiffs Appeal is dismissed.

We also make a

consequential order dismissing the 5th Defendants cross-appeal

(against the said alteration of interest). The entire decision of the
High Court is affirmed. Each party to bear own costs.

[19] Deposit to be refunded to Appellant.

DATUK WIRA LOW HOP BING

Judge
Court of Appeal Malaysia
PUTRAJAYA

Dated this 31st day of March 2011

COUNSEL FOR APPELLANT:

Mr L. H. Chua
Tetuan L. H. Chua
Peguambela & Peguamcara
Blok D, Lot D8, 2nd Floor
Fahrenheit 88 (K.L. Plaza)
Box 337
No. 179, Jalan Bukit Bintang
50100 KUALA LUMPUR

COUNSEL FOR RESPONDENT:

Mr Porres Royan (assisted by Mr Jeremy Lee)

Tetuan Shook Lin & Bok
Peguambela & Peguamcara
20th Floor, Bangunan Arab Malaysian
55 Jalan Raja Chulan
50200 KUALA LUMPUR