DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO: P-02-960-2002
BRIJNANDAN SINGH S/O GURCHARAN SINGH … PERAYU
1. YUEN KONG SENG
2. LEONG OY FOON … RESPONDEN-
3. FESTIVAL DEVELOPMENT SDN BHD RESPONDEN
[Dalam perkara Mahkamah Tinggi (1) Pulau Pinang Guaman Sibil No. 22-139-1980
Brijnandan Singh S/O Gurcharan Singh
1. Yuen Kong Seng
2. Leong Oy Foon
3. Festival Development Sdn Bhd
(1) TENGKU BAHARUDIN SHAH BIN TENGKU MAHMUD, JCA
(2) ABU SAMAH BIN NORDIN, JCA
(3) SYED AHMAD HELMY BIN SYED AHMAD, JCA
GROUNDS OF JUDGMENT
1. The claim herein is in respect of a penthouse apartment known as unit No. 2 (hereinafter called the penthouse) in the apartment block known as Festival Apartments, Jalan Kelawai, Penang.
2. The 1st and 2nd Respondents were the initial purchasers of the penthouse from the 3rd Respondent developers at the purchase price of RM360,000.00 (hereinafter called the Principal sale). The 1st and 2nd Respondents only paid that 3rd Respondent the sum of RM36,000.00 towards the purchase price and failed to pay the subsequent progressive payments.
3. The 1st and 2nd Respondents thereafter appointed the 3rd party from New Bob Realty as their marketing agent and gave him an option dated 6/1/89 to sell the property at RM355,000.00.
4. The Appellant made an offer on 27/1/89 to purchase the penthouse at the price of RM355,000.00 (hereinafter called the Subsale).
5. The Subsale did not go through and was aborted owing to the failure of the 3rd Respondent to give their consent on the ground that the Principal sale between the 1st and 2nd Respondent and the 3rd Respondent had been mutually terminated and for non payment of the progressive payments.
6. In March 1989 the penthouse was sold to a Taiwanese purchaser for RM380,000.00.
7. The Appellant filed the proceedings in the Court below alleging, inter alia, as follows:-
(a) The 1st and 2nd Respondents had wrongfully refused to complete the Subsale.
(b) The 3rd Respondent had conspired with the 1st and 2nd Respondents to deprive the Appellant the purchase of the said Property and in furtherance of the conspiracy, the 3rd Respondent had, amongst other things, wrongfully refused to consent to the Subsale and had aborted the Principal sale.
8. The Appellant therefore prayed for, inter alia, specific performance of the Subsale, damages for breach of contract in lieu of or in addition to specific performance and damages for conspiracy.
9. The learned trial Judge after a full trial allowed the Appellant’s claim against the 1st and 2nd Respondents with costs and had assessed damages for breach of contract at RM55,000.00. The Appellant’s claim against the 3rd Respondent was dismissed with costs.
10. In deciding as such, the learned trial Judge, Y.A. Dato’ Mohd. Noor bin Haji Abdullah, made the following findings:-
(a) that there was a binding contract for the sale and purchase of the penthouse between the 1st and 2nd Respondents and the 3rd Respondent notwithstanding
that the 3rd Respondent did not sign any Sale and Purchase Agreement.
(b) that there was a binding contract for the sale and purchase of the penthouse between the 1st and 2nd Respondents and the Appellant when the Appellant made payment of a sum of RM35,500.00, being the 10% deposit of the purchase price of RM355,000.00, to the 1st and 2nd Respondents.
(c) that the 3rd Respondent was entitled to decline from giving its consent to the Subsale as the 1st and 2nd Respondents had only paid the deposit of RM36,000.00 towards the purchase of the penthouse notwithstanding that the penthouse was almost completed. In the circumstances, there was no conspiracy between the 1st and 2nd Respondents and the 3rd Respondent.
11. The Appellant’s claim against 3rd Respondent was dismissed as the Court found that there was no privity of contract between Appellant and 3rd Respondent.
12. The Court ordered the 1st and 2nd Respondents to pay the Appellant damages in the sum of RM55,000.00 based on the following formula:-
(a) Difference in sale price of RM380.000.00
to Taiwanese purchaser and sale price or RM355,000.00 to the Appellant. RM25,000.00
(b) Add the sum of RM30,000.00 being part
of the balance of 10% deposit of RM36,000.00 refunded by 3rd Respondent to the 1st and 2nd Respondents. RM30,000.00
Total damages awarded to Plaintiff/
The Court rejected the Appellant’s claim for damages in the sum of RM320,000.00 as it opined that it was not only oppressive but also inapplicable as the Appellant did not effect full payment of the purchase consideration of RM355,000.00. The Appellant’s formula for his claim for damages in the aforesaid sum of RM320,000.00 was based on the difference between the market value of RM675,000.00 and the sale price of RM355,000.00.
The Court also found that there was no conspiracy between 1st and 2nd Respondents with the 3rd Respondent not to sell the penthouse to the Appellant.
The Appellant’s appeal herein relates to that part of the judgment dated 17/7/2001 pertaining to the amount of damages awarded. It is the Appellant’s contention that in the light of the trial judge’s findings that there was a breach of the Subsale by the 1st and 2nd Respondents the damages awarded should be assessed in the sum of RM320,000.00 based on the Appellant’s formula aforesaid.
It is the Appellant’s further contention that the trial judge erred in not awarding damages for conspiracy to deprive the Appellant to purchase the penthouse.
16. The 1st and 2nd Respondents cross appeal against that part of the judgment dated 17/7/2001 awarding the Appellants damages in the sum of RM55,000.00.
17. The appeal was heard before us on the 10th August 2010 and after considering the appeal record and reading and hearing the written and oral submission of the respective Counsels we dismissed the appeal with costs and allowed the cross appeal with costs and set aside the judgment of the learned trial judge in awarding damages against the 1st and 2nd Respondents for the reasons hereafter following:-
18. The whole foundation of the Appellant’s claim against the 1st and 2nd Respondents lies on whether there was a concluded Subsale for the penthouse between the Appellant and the 1st and 2nd Respondents and as against the 3rd Respondent whether there was privity of contract between Appellants/Plaintiff and the 3rd Respondent. The learned trial Judge found there was a concluded Subsale between 1st and 2nd Respondents and the Appellant for the penthouse based on the agreed sale price of RM355,000.00 negotiated through the 3rd party option holder from the estate agent New Bob Realty and payment of the 10% deposit. On the issue of whether there was a duly concluded and enforceable Subsale we have embarked upon a close scrutiny of the appeal record and upon evaluating the evidence appearing therein and having considered the submissions both written and oral made by
respective Counsels we are of the view that the learned trial Judge erred in law and in fact in holding that there was a concluded Subsale of the penthouse between the 1st and 2nd Respondents and the Appellant. There was in our view judicial misappreciation of evidence on the part of the learned trial Judge. There was the undisputed evidence that there was no Subsale agreement executed by the 1st and 2nd Respondents as vendors on the one part and the Appellant on the other part. It is also pertinent to note that the option dated 6/1/89 (at page 358 of appeal record) was subject to the execution of a sale and purchase agreement and the purported 10% deposit cheque for RM35,500.00 was made out not in favour of the 1st and 2nd Respondents but to Messrs Goh Eng Kee & Co the solicitors for the 3rd Respondent. Interestingly the cheque for RM35,500.00 was never utilised and was returned to New Bob Realty the estate agent by Messrs Goh Eng Kee & Co. (see page 363 of appeal record). Hence the failure of the learned trial Judge to evaluate and appreciate the aforesaid evidence warrants us to intervene and set aside his finding that there was a concluded Subsale contract.
19. There is absolutely no nexus, contractual or otherwise between the Appellant and the 3rd Respondent and we uphold the learned Judge’s finding that there was no privity of contract between them for any claim to be sustained against the 3rd Respondent. It is also of significance to note that the purchase of the penthouse by the 1st and 2nd Respondents from the 3rd Respondent was aborted at the request of the 1st and 2nd Respondents on 26/1/89 and the Appellant was aware of the abortment (see pages 363, 367 and 379 of the appeal record). The significance aforesaid lies towards
negativing the issue of the subsale of the penthouse by the 1st and 2nd Respondents to the Appellant.
20. On the issue of conspiracy we see no reason to interfere with the learned trial Judge’s findings. The concept of conspiracy is in essence an agreement of two or more persons/parties to do an unlawful act, or to do a lawful act by unlawful means. Hence the burden is on the appellant to prove:-
(a) where the means are lawful the predominant objective is to injure him; or
(b) where the means are unlawful to show an intention to injure regardless of any other mixed motive.
21. The Appellant’s conspiracy argument was based on his allegation that the letter of 26/1/89 at page 378 of the appeal record aborting the sale was backdated to deprive the appellant of the purchase of the penthouse. The contemporary events as evidenced by the admission by the appellant that prior to the filing of the writ he did not allege any conspiracy nor was there any police report lodged are strong pointers towards negativing conspiracy. Further the trial Judge had judicially considered and was of the view that the 3rd Respondent by reason of their non-execution of the sale and purchase agreement believed that there was no subsisting contract to sell the property to the 1st and 2nd Respondents which invariably accounted for their partial forfeiture of the sum of RM6,000.00 from the deposit of RM36,000.00 and the incapacity of the 1st and 2nd Respondents to settle the outstanding progressive payments which had adversely affected the 3rd
Respondent to suffer loss in having to service the bank interest which consequently led them to dispose off the penthouse. There is also no evidence to suggest that the 3rd Respondent orchestrated and backdated the letter to deprive the Appellant of the purchase of the penthouse.
22. Given the circumstances of the case the 3rd Respondent actions cannot be said to be unlawful and or unreasonable and evidence is lacking that the predominant objective of the conspiracy is to injure the Appellant.
23. For the reasons aforesaid the appeal is dismissed with costs and the cross appeal is allowed with costs. The order of the learned trial Judge in awarding damages against the 1st and 2nd Respondent is hereby set aside.
(DATUK SYED AHMAD HELMY BIN SYED AHMAD)
Court of Appeal,
Dated this 30th day November of 2011
Counsel for the Appellant
Y.Bhg. Dato’ Mahinder Singh Dulku Tetuan Mahinder Singh Dulku & Co., Peguambela & Peguamcara,
No. 25, Green Hall,
10200 Pulau Pinang.
Counsel for the 1st and 2nd Respondents
Ms Lucia Minta
Tetuan Allen Muttiah & Co.,
Peguambela & Peguamcara,
No. 6 Jalan Bunga Kaca Piring,
Off Jalan Gajah,
11200 Pulau Pinang.
Counsel for the 3rd Respondent
Ms Christina Siew
Tetuan Lim Kean Siew & Co.,
Peguambela dan Peguamcara,
5th Floor, Wisma Penang Garden, 42, Jalan Sultan Ahmad Shah, 10050 Pulau Pinang.