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arrFiles=new Array();arrFiles[0]=new Array(660,"http://www.kehakiman.gov.my/jugdment/coa/latest/BBMB-SAL-ENTERPRISE-JMENT.htm","2005-09-12","BBMB-SAL-ENTERPRISE-JMENT.htm","","","Unit Teknologi Maklumat Normal Unit Teknologi Maklumat 2 0 2005-09-12T03:44:00Z 2005-09-12T03:44:00Z 1 8004 45624 Unit Teknologi Maklumat 380 107 53521 11.5606 6 pt 6 pt 0 3 false false false false MicrosoftInternetExplorer4              DALAMMAHKAMAH RAYUAN MALAYSIA                         (BIDANGKUASARAYUAN)           RAYUANSIVIL NO: W02 - 324 - TAHUN 1999                                       ANTARA BANKBUMIPUTRA MALAYSIA BERHAD ... PERAYU                                          DAN 1.SAL ENTERPRISE SDN BHD 2.TUAN HAJI MOHD SALDI BIN HJ IBRAHIM 3.SUFIAN BIN MOHD SAID                         ... RESPONDEN                                                                         RESPONDEN       (DALAMMAHKAMAH TINGGI MALAYA DI KUALA LUMPUR                                       (BAHAGIANDAGANG)                          GUAMANSIVIL NO: C1 - 23 - 3570 -86                                                    ANTARA BANK BUMIPUTRA MALAYSIA BERHAD            ... PLAINTIF                                                        DAN 1. SAL ENTERPRISE SDN BHD 2. TUAN HAJI MOHD SALDI BIN HJ IBRAHIM 3. Y.B. DATUK MOHD ARIFF BUN HJ IBRAHIM 4. SUFIAN BIN MOHD SAID                                 ... RESPONDEN                                                                                      RESPONDEN) CORAM : Denis Ong Jiew Fook, JCA Mohd Ghazali Mohd Yusoff,JCA Ariffin Jaka, JCA                               JUDGMENT OF THE COURT This appeal is against the whole of thejudgment of the High Court dated 30 March 1999, which dismissed the appellant’sclaim (the plaintiff in the court below) following a trial of the action. Theappellant’s claim was for the sum of RM333,947.99, being a demand for repaymentof sums disbursed under a facility granted, together with interest. The HighCourt dismissed the appellant’s claim and hence, this appeal. The facts showed that sometime in 1984,the 1 st respondent, a locally incorporated company applied for aterm loan and bridging finance facility from the appellant. On 20 August 1984,by way of a letter of offer (“the said letter of offer”) the appellant grantedthe 1 st respondent an overdraft facility of RM1.4 million (“the saidfacility”). The said letter of offer, inter alia , reads - “Re: Your application for Term Loan & Bridging Finance          facility of 1,422,083-00 under theAccount No. 7059-06           --------------------------------------------------------------------------- Withreference to the above we are pleased to inform you that the Bank has approvedyour application subject to the following terms and conditions:- Facility                : Overdraft for 1,4000,000/- Purpose             :i)   400,000/-                                   For purchase ofa land held under Lot P.T.4672                                 to 4699 Mukimof Rusila, Trengganu.                            ii) 1,000,000/-                                To finance theproposed development of 28                                       unitssingle storey bungalow houses on the                                 above mentionedlot. Security             : Against a 1 st LegalCharge on Title No. HSM 2421                             PT No. 4672 toTitle No. HSM 2448 PT No. 4699.                           Pending issuance ofQT, the facilities will be                           secured against:-                            i) Assignment ofSale and Purchase Agreement.                           ii) Loan Agreement.                          iii) Charge-In-Escrow. Guarantee        : To be guaranteed jointly and severallyby all the                                Directors’sof the Company in their personal                           capacities for1,400,000/-. Duration            : For 2 years or upon completion ofthe project                            whichever isearlier.” It was alsostated in the said letter of offer that the appellant “may, at its absolutediscretion vary the rate of interest from time to time and the variation shalltake effect from the date specified in the notice”. On repayment, it was statedtherein as “To be reduced progressively against the release of titles, theredemption sum of which will be determined later”.   On disbursements, the said letter of offerreads - “ Pre-DisbursementConditions : i)Letter of Offer duly endorsed and returned to us. ii)Directors Guarantee duly executed, stamped and placed in our custody. iii)Board of Director’s Resolution authorising the acceptance of the facilities hasbeen received. iv)Auditor’s confirmation that the paid-up capital has been increased to at least250,000/- in cash. v)The Statutory Approval ie. Building Plan, Lay-out and Sub-division Plan andDeveloper’s Licence have been approved by the relevant authorities. vi)Charge documents duly executed and and presented for registration. DisbursementConditions : i)Upon compliance of all the above pre-disbursement conditions a sum of not lessthan 400,000/- for purchase of the land is to be released direct to the vendorthrough our solicitors with their undertaking to refund the monies so releasedin the event that the discharged cannot be registered for any reasonswhatsoever. ii)The remaining balance of the facility is to be released progressively againstArchitect Certificate of work completed for the above project.” The saidletter of offer further stated, inter alia , the following- “For your information, all facilities granted by us are subject to periodicalreview and repayable on demand. Youare kindly requested to read the abovestated terms and conditions verycarefully. You are also requested to conduct your account satisfactorily. TheBank reserves the right to recall the facility if it is deemed to be necessary,although we do not anticipate exercising this right in normal circumstances.” The 1 st respondent acceptedthe offer and agreed to the terms and conditions stipulated in the said letterof offer. It would be convenient here to summarise that the said facility wasfor the following purposes - (a) RM400,000-00 (hereafter referred toas “the first tranche”) was for the purchase of lands held under Lots P.T. 4672to 4699 Mukim of Rusila, Terengganu (“the said lands”); and (b) RM1 million (hereafter referred toas “the second tranche”) was to finance the proposed development of 28 units ofsingle storey bungalow houses on the said lands (“the said housing project”). The following events then took place :- (i) By letter dated 29 August 1984 the 1 st respondent referred to the said facility and wrote, inter alia ,   as follows - “Re: OVERDRAFT FACILITY OF 1,400,000.00 (RINGGIT: ONE            MILLION FOUR HUNDREDTHOUSAND)                              The teleconversation of today between your Miss Ireen and ourMr C S Lim, refers to the Overdraft facility for 1,400,000.00: a) 400,000.00to Purchase Land Wewould appreciate if you kindly release us the sum of 400,000.00 immediately toenable us to settle the balance of the purchase of the land held under PT No.4672 to 4699 Mukim of Rusila, Trengganu. b) 1,000,000.00to Finance the Construction Wewould appreciate your release, upon Statutory   Approval of building plans, lay-out andsub-division plans and Developers’ licence approved by the relevantAuthorities.” (ii) The appellant replied on 7September 1984 by letter which, inter alia , read as follows- “For your information, none of the conditions under the said termPre-Disbursement Conditions) has been complied with except for the acceptanceof our Letter of Offer date 20 th August 1984 (copy enclosed).” (iii) By letter dated 26 February 1985the 1 st respondent referred to the said letter of offer and wrote asfollows - “ Werefer to your letter of offer dated 20th August, 1984 and should be grateful ifyou could do away with part of pre-disbursement conditions No.(V) whichrequires approval of building plans and the Developer’s licence before400,000.00 can be released to the Vendor through your solicitors. Asyou would appreciate, we cannot now as yet apply for building plan anddeveloper’s licence as the land is not yet registered in our name.” (iv) By letter dated 28 March 1985 theappellant reminded the 1 st respondent that they have not compliedwith the following pre-disbursement conditions as stated in the said letter ofoffer, namely, they have yet to receive the directors’ guarantee duly executedand stamped, the board of director’s resolution authorising the acceptance ofthe facilities and the auditor’s confirmation that the paid-up capital of the 1 st respondent has been increased to at least RM250,000-00 in cash. The appellantsent a further reminder by letter dated 16 April 1985. The evidence showed thatthe 1 st respondent’s board of directors passed the resolutionauthorising the acceptance of the facility only on 7 April 1985. (v) By letter dated 9 May 1985 the 1 st respondent requested that the requirement in respect of its paid-up capital bereduced from RM250,000-00 to RM200,000-00. On 11 June 1985 the 1 st respondent’s auditors confirmed that its paid-up capital as on that date wasRM200,300-00 consisting of 200,300 ordinary shares of RM1/-. (vi) On 14 June 1985 the 1 st respondent’s directors, viz., the 2 nd and 3 rd respondentsand one Datuk Mohd Ariff bin Haji Ibrahim (who was the 3 rd defendantin the court below but not a party to this appeal) executed the guarantee asrequired by the appellant. That letter of guarantee, inter alia , reads - “Inconsideration of you having agreed to advance credit facilities to ... SALENTERPRISE SDN BHD ... (hereinafter called “the Borrower”) up to the sum of ...(1,400,000.00) ... We, Haji Mohd Saldi bin Haji Ibrahim (i.c. No: 2828353),Sufian bin Mohd Said (i.c. No. 4386730) and Datuk Mohd Ariff bin Haji Ibrahim(i.c. No: 1512151) (hereinafter called “The Guarantors”) HEREBY AGREE with andGuarantee you as follows :- 1.I/We will pay you on demand as follows :- (i)The sum of ... (1,400,000.00) (hereinafter called “the Guaranteed Sum”) andany part of the moneys hereby guaranteed which is now or shall at any time beowing or remain due and unpaid to you from the Borrowers. (ii)interest as the aforesaid rate or at such other rate as may be determined bythe Ban from time to time. (iii)commission and other expenses and all cost charges and expenses which you mayincur in enforcing or seeking to obtain payment of all or any part of themoneys hereby guaranteed and to make good any default by the Borrower or itssuccessors-in-title in payment of the sum hereby guaranteed or any partthereof.” (vii) By letter dated 15 June 1985 (“thesaid amended letter of offer”)   the   appellant   wrote to the 1 st respondent as follows - “Re: Overdraft facility for 1.4 Million           AccountNo. 7059-06                             Theabove matter refers. Pleasebe advised that the Bank has made the following decision on the requestssubmitted by your goodselves :- (i)to exempt Mr Lim Chan Soon from having to sign the Letter of Guarantee (ii)to release the 400,000-00 to meet the purchase price of the land direct to thevendor through our solicitors upon their undertaking to refund the same in theevent that the Charge could not be registered for any reasons what so eversubject to compliance of the following pre-disbursement conditions :- a)Auditor’s confirmation that the paid-up capital has been increased to at least200,000-00 in cash. b) Afresh Directors’ Guarantee be taken excluding the name of Mr Lim Chan Soon.(The existing guarantee includes his name). (iii)The remaining balance of the facility could only be released as per paragraph(ii) under ‘Disbursement conditions’ in our Letter of Offer dated 20 th August 1984, upon compliance of all pre-disbursement conditions including :- a)Auditors’ confirmation that the paid-up capital has been increased to at least250,000-00 in cash (as in the original terms and conditions) plus one (1)additional condition i.e. b)Since the land to be developed is under the name of a third party, anirrevocable power of attorney is to be given by the land-owner to yourselves. (iv)Interest is to be charged at 14.75% per annum (i.e. 3.5% above our Base LendingRate which is presently 11.25% p.a.) and to be serviced monthly. Therefore,you are to sign an undertaking to this effect.” The 1 st respondent accepted the above-mentioned terms and conditions laid down in thesaid amended letter of offer and undertook “to service the monthly interestsand instalments promptly and regularly”. (viii) The appellant consequentlyreleased the sum of RM400,000-00 to its solicitors, Messrs Abdullah, Abd.   Rahman & Co to meet the purchase price ofthe said lands which has to be paid direct to the vendor as required by theappellant and agreed to by the 1 st respondent. However, by letterdated 26 June 1985 Messrs Abdullah, Abd   Rahman & Co informed the appellant as follows - “Dear Sir OVERDRAFTFACILITY FOR 1.4 MILLION - ACCOUNTNO: 7059-06 Withreference to the above matter we wish to inform you that the balance of thePurchase Price is only 291,000.00 and not 400,000.00. We have thus remitted291,200.00 to the Vendor vide acknowledgment receipt dated 25/6/1985 a copy ofwhich is enclosed herewith for your retention. Inour hands now we have a balance of 108,800.00. Messrs Sal Enterprise Sdn Bhdhas requested that this balance sum of 108,800.00 be handed over to it forother necessary expenses such as fees for Lawyers, Architects and valuers,travelling expenses by the Directors to the Lands and other expenses connectedto the purchase of the lands. Weshould be grateful if we could at your earliest convenience give furtherinstructions as to what we have to do with this balance sum of 108,800.00.” (ix) By letter dated 24 July 1985 theappellant informed Messrs Abdullah, Abd. Rahman & Co that the 1 st respondent’s request for the release of the said sum of RM108,800-00 to meetother expenses is rejected and requested for the return of that said sum. (x) By letter dated 22 October 1985 tothe appellant, the 1 st respondent requested that it be allowed toutilise the said sum of RM108,800-00 which it intended to use also to pay theinterest outstanding under the said facility amounting to RM13,940-56 due tothe appellant. (xi) By letter dated 5 December 1985 theappellant requested the 1 st respondent to provide details on theprogress of the said housing project for it to consider the request made by the1 st respondent to utilise the said sum of RM108,800-00. (xii) By letter dated 14 February 1986the appellant wrote to the 1 st respondent as follows - “Re:    Overdraft Facility For 1.4 MillionApproved Under Account             No. 015-7059-06 With Our WismaDamansara Branch                   Werefer to your letter date 15/1/1986 addressed to the Manager of our WismaDamansara Branch whereby you appealed for the release of the 108,800 being thebalance of the 400,000 overdraft facility approved for the purchase of theland at Mukim Rusila, Terengganu. Beforewe can reach to any decision, kindly provide us with the following information:- i)Whether the statutory approvals with regard to the building plan, lay-out andsubdivision plan and developer’s licence have been approved by the relevantauthorities. If so, please submit a copy of the approvals. ii)Whether the paid-up capital has been increased to 250,000 in cash. If so,please submit the auditor’s confirmation. iii)Whether any work has commenced on the proposed project (to be certified by thearchitect). Further,we also note that you have failed to service on the monthly interest charged onthe 291,200 being the partial sum released to pay the balance of the purchaseprice of the land. As a result, the account is now showing the followingbalance :- BalanceAs At 14-2-1986           - 319,194-69 Limit                                           - 291,200-00 Excess                                       -    27,994-69 (due to interest                                                                                      accumulation). Therefore,we would appreciate it if you could settle the excess of 27,994-69 in theaccount as soon as possible or submit an acceptable proposal for ourconsideration. Wehope to receive your reply within two (2) weeks from the date of this letter,otherwise, we would consider your appeal on the available information.” (xiii) Since there was no response, byletter dated 16 April 1986, copies of which were also extended to the directorsof the 1 st respondent, the appellant informed the respondents thatit has decided that the said facility is to be recalled. That letter reads - “Re: Overdraft facility of 1.4 million          Under account number 015-07059-06          --------------------------------------------------- Werefer to the above matter. Pleasebe informed that the Bank has reviewed your overdraft facility and has decidedthat the abovesaid facility is to be recalled. Foryour further information, we append below the outstanding balance as at todate:- Facility         Approved             Present             Outstanding Balance                     Limit                     Limit                  as at 16/4/1986 ---------          -------------             ----------              ---------------------------- Overdraft      1,400,000-00     291,200-00       326,115-92 Therefore,you are hereby given fourteen days (14) notice from the date of this letter toeffect settlement of the outstanding balance of 326,115-92 plus interestthereafter until full settlement failing which legal action will be takenagainst you. Kindlytake note that when credit facility has been recalled but is unpaid upon expiryof this recall notice, the Bank will charge a maximum rate of 4.5% per annumabove our Base Lending Rate (presently the Bank’s Base Lending Rate is 9.75%per annum).” There was no response from the 1 st respondent as well as its directors as a result of which on 25 October 1986 theappellant filed this suit against the 1 st , 2 nd and 3 rd respondents and the said Datuk Mohd Ariff bin Haji Ibrahim claiming that as at31 May 1986 there was a sum of RM333,947-99 due to the appellant in respect ofthe said facility with interest thereon at the rate of 14.25% per annum onmonthly rests basis from 1 June 1986 until payment. In their “Defence and/or set-off (asalternative to defences on the merits)”, the respondents contended, interalia , as follows - (i) that the appellant has not releasedthe whole sum of RM1.4 million to the 1 st respondent and had as suchbreached the terms and conditions of the said facility; (ii) as the appellant has not releasedthe whole amount of the said facility, there is a variance of the contract ofguarantee without the consent of the 2 nd and 3 rd respondents as guarantors and as such ought to discharge them from anyliability; (iii) alternatively, if, which isdenied, the respondents are liable to the appellant, the respondents will seekto set-off against such liability the sum claimed as estimated profit, viz.,RM520,946-82 due from the appellant to the respondents as claimed; (iv) by virtue of the appellant failingand or refusing to release the whole of the said facility to the 1 st respondent in breach of the agreement to grant the said facility, the 1 st respondent has suffered losses and damages in that it was unable to proceedwith the said housing project. At the outset of the trial in the HighCourt, the respondents’ counsel informed the court that - (i) the said Datuk Mohd Ariff bin HajiIbrahim, viz., the 3 rd defendant in the court below, a director andguarantor of the 1 st respondent, is a bankrupt; (ii) that there is no counter-claim butthere is a set-off; (iii) that the reply to thecounter-claim includes the reply to the set-off. At the end of the trial, the learnedtrial judge dismissed the appellant’s claim and hence, this appeal. Before the learned trial judge, therespondents contended the following - (a) that by failing to release theremainder of the amount approved under the said facility, the appellant was inbreach of the agreement as result of which the 1 st respondent wasunable to proceed with the said housing project and had therefore suffered lossand damages totalling RM520,946-82, which the respondents sought to set-offagainst the appellant’s claim so as to extinguish the claim; (b) that on a true construction of thesaid letter of offer which constituted the agreement, the said facility was abridging-loan facility to finance the said housing project and to be repayableonly after the houses were sold and hence by not releasing the remainder of thesaid facility and instead recalling the same before repayment was due, theappellant was in breach of the agreement. The learned trial judge agreed with therespondents that “it was a bridging loan facility repayable only when thehouses were sold, and that by not releasing the balance of the facility butinstead recalling it” the appellant was in breach of the agreement. In relation to the set-off, the learnedtrial judge said : “For proof of damages in the form of loss of expected profits from the project,the defendants relied on their statement of projected estimated profits whichwas submitted to the plaintiffs and with the knowledge that of which theplaintiffs approved the loan. The reasonableness of the estimate had not beenquestioned. As neither from the cross-examination of the fourth defendant norin the submission of the plaintiff’s counsel could I find that the firstdefendants would not have made any profits or would have made profits only of acertain amount which would be less than the amount claimed by the defendants, Ihad to accept the amount of RM520,946-82 as the first defendants’ losses, whichwas more than enough to extinguish the plaintiffs’ claim. I therefore dismissedthe plaintiffs’ claim. Inany event, the claim against the second defendant   had to be dismissed because there was noproof that he had been served with a demand for payment.” Before us,the appellant’s counsel insisted that the said facility was an overdraftfacility and this can clearly be seen from the said letter of offer. He pointedout the facts showed that the 1 st respondent did not comply with thepre-disbursement conditions and delayed in pursuing the matter. The 1 st respondent even wanted to change the guarantors and upon its request theappellant agreed to exclude one Lim Chan Soon as one of the guarantors. Simplyput, the balance of the monies could not be disbursed because of non-complianceof the pre-disbursement conditions by the 1 st respondent.   Theappellant’s counsel further pointed out that the purpose of the first trancheof the said facility, viz., the amount of RM400,000-00, was for the purchase ofthe said lands. The evidence showed that the said lands were purchased in thename of the 3 rd respondent. The sale and purchase agreement showedthat the 3 rd respondent purchased the same from one Noriah binteAshari for the sum of RM364,000-00. The transfer forms (Form14A) were executedon 11 October 1984. A deposit of RM72,800-00 was paid by the 3 rd respondent as purchaser thus leaving a balance of RM291,200-00. The appellantreleased the first tranche, viz. the sum of RM400,000-00 to its solicitors andthe solicitors paid the said sum of RM291,200-00, i.e., the balance sum of thepurchase price for the said lands to the vendor on 25 June 1985 as that was theonly sum then due to the vendor. The appellant’s solicitors returned to theappellant the balance sum of RM108,800-00. The appellant’s counsel pointed outthe appellant declined to release that sum of RM108,800-00 direct to the 1 st respondent upon its request as the 1 st respondent wanted to utilisethat sum for a different purpose, namely, to use it for expenses such as feesfor lawyers, architects and valuers and travelling expenses by its directors. The appellant’scounsel stressed that the purpose of the first tranche of RM400,000-00 was forthe purchase of the said lands. As such, the appellant was not wrong indeclining to release that sum of RM108,800-00 to the 1 st respondentupon its request. Counsel then submitted the respondents are liable to payinterest on the said sum of RM291,200-00 released under the first tranchepursuant to the terms and conditions as laid down in the said letter of offerread together with the said amended letter of offer. In thecourse of the appellant’s submission, the respondents’ counsel interjected tosay he agreed   with all the above factsand informed this court that he would only be raising one issue, namely, thatthe repayment clause found in the said letter of offer denotes that the saidfacility was a bridging loan. In answerto this, the appellant’s counsel pointed out that in their defence and/orset-off, the respondents clearly admitted that it was an overdraft facility;they never pleaded that it was a bridging loan. Counsel then referred to thefollowing paragraphs in the respondents’ defence and/or set-off, namely - 3. Save that the 1 st Defendanthad applied for an overdraft facility of RM1.4 million , the rest ofparagraph 6 of the Statement of Claim is denied and the Plaintiff is put tostrict proof thereof. Further the Defendants contend and will contend that thePlaintiff had not released the whole sum of RM1.4 million to the 1 st Defendant and have as such breached the terms and conditions of theoverdraft facility which the Plaintiffs had themselves imposed. 5. The 2 nd , 3 rd and 4 th Defendants contend and will contend that as the Plaintiff had not released thewhole of the Overdraft Facility , there is a variance of the contract ofguarantee without the consent of the 2 nd , 3 rd and 4 th Defendant as guarantors and as such ought to discharge them from any liability. 10. The Defendants repeat paragraphs 1-8 pfthe Defence herein above. By virtue of the Plaintiff failing and or refusing torelease the whole of the overdraft facilities to the 1 st Defendant in breach of the Plaintiff’s agreement to grant the said facilities,the 1 st Defendant has suffered losses and damages in that it wasunable to proceed with the development of the project for which theoverdraft facilities had been applied for. Counsel argued the above showed the fact that itwas an overdraft facility was not disputed. He pointed out it was only raisedin the trial that it was a bridging loan. He then referred to Mayor Singh vLau Geok Swee (1960) 26 MLJ 285 where it was held that a party cannot raiseissues of fact which were never pleaded before the trial court. Inopposing the appeal, the respondents’ counsel submitted they are not disputingthat the said facility was not an overdraft facility, but it is their case thatthe manner in which the said facility was granted as described in the saidletter of offer was such a facility that can only be recalled after thecommencement of construction of the said housing project and when progressivepayments are received from the end-purchasers, i.e., the ultimate buyers of thehouses. That being the position, it was a bridging loan. He then referred to BankBumiputra Malaysia Bhd Kuala Terengganu v Mae Perkayuan Sdn Bhd & Ors   [1993] 2 MLJ 76 where as to what is a bridgingloan was discussed. In delivering the judgment of the Supreme Court, AbdulHamid Omar LP said (at pages 84 - 85) : “According to Encik Arsam, an overdraft hadtwo things in common, ie: (i) the drawdown of the loan is by way of issue ofcharge; and (ii) there is no fixed period. He said that what the bankhad granted to the first respondent in exh P2 was not an overdraft facility,but a bridging finance operated under an overdraft. Bridging finance is afacility to finance the construction of the houses by the first respondent. Thefinance is to bridge the period between the time when the developer starts toprepare the ground works and the period when the developer will start toreceive the proceeds of sales of the houses from purchasers which is when thesale and purchase agreements are signed. Thus the first respondent would receive 10%of the sale price of a house when it enters into a sale and purchase agreementwith a purchaser. Upon receipt of this 10%, the first respondent would pay overthe same to the bank to reduce its indebtedness to the bank. Similarly, when apurchaser pays to the first respondent a second instalment under the sale andpurchase agreement upon certification by the architect that a certain stage ofthe house was completed, the first respondent would pay this over to the bank;and this procedure would continue until the house was completed, and by whichtime the purchaser would have paid the total sale price of the house and, ifall houses are sold, the bank would by then be repaid all their money plusinterest. It follows that until the first respondentcommenced receiving the proceeds of sale from the house purchasers, it wasunder no obligation to pay to the bank anything towards the principal sum ortowards the interest. But the bank had to fulfill its obligation to the firstrespondent in providing the bridging finance, otherwise the project would fail,in which case the first respondent would suffer losses and the bank would notbe able to recover its money plus interest. The bridging finance is the amount which thebank, after careful study, finds to be what the first respondent actually needsto carry out the works on the land, before the first respondent starts to getincome from the project.” Therespondents’ counsel however conceded that the facts of   Mae Perkayuan were different from thefacts in this instant appeal and that he is not disputing that the saidfacility was an overdraft facility but notwithstanding that he argued that theappellant has breached the agreement by only releasing RM291,200-00   and by recalling the said facility. Hestressed that the 1 st respondent could not progress further becauseit did not receive the balance of the funds. He then pointed out that in hisevidence, the 3 rd respondent stated that the said facility is abridging loan. In relation to this, the witness statement of the 3 rd respondent showed as follows - Q. How would you describe this facility? A. This is actually a bridging loan.   Q. Why do you call this a bridging loan? A. Because re-payment is only to be madeafter the units are constructed, sold and payments are received from the endpurchasers. You will see this under the caption “Repayment” at page 2 of ABD-1. Q. If this is a bridging loan, why is thisfacility expressed as an “overdraft”? A. This is the way in which the monies areto be disbursed i.e. through an overdraft account. Q. What was the balance owing on purchaseprice of the land when you applied for the loan? A. RM291,200-00. Q. If that is so, why is the 1 st tranche for the purchase of the land, RM400,000-00? A. This is because the balance of overRM100,000-00 was intended to be used to cover pre-construction costs such asthe director’s expenses, clearing the land and submission of layout andbuilding plans. The respondents’ counsel pointed out the 3 rd respondent’s averment that the said facility was a bridging loan was “neverseriously challenged nor submission made to rebut at the trial”. In relation toparagraphs 3, 5 and 10 of the respondents’ defence and/or set-off, reproducedearlier, counsel conceded that the words “bridging loan” did not appear thereinbut he argued the said letter of offer and the evidence of the 3 rd respondent clearly showed that the said facility was a   “bridging loan” although it was categorisedas “an overdraft facility”. The learned trial judge agreed with therespondents that “it was a bridging loan facility repayable only when thehouses were sold, and that by not releasing the balance of the facility butinstead recalling it” the appellant was in breach of the agreement and such, hedismissed the appellant’s claim. We are of the view that the mainquestion which we would need to determine is whether the learned trial judgewas right in deciding that the appellant was in breach of its obligations owedto the 1 st respondent when it released a sum of RM291,200-00 onlyunder the first tranche and refused to release the balance of the saidfacility. It was a term of the said letter ofoffer that the 1 st respondent must first satisfy the “Pre-DisbursementConditions” before the appellant would release the monies. It was not disputedthat from August 1984 to June 1985, the 1 st respondent had notcomplied with any of the pre-disbursement conditions. On 15 June, 1985, uponthe request of the 1 st respondent, the appellant agreed to vary theterms of the said letter of offer as follows - (i) that the appellant would release thefirst tranche, viz. RM400,000-00 to meet the purchase price of the said landsdirect to the vendor through its solicitors upon their undertaking to refundthe same in the event that the charge could not be registered for any reasonswhat so ever subject to compliance of the following pre-disbursement conditions- (a) the auditor’s confirmation that the1 st respondent’s paid-up capital has been increased to at leastRM200,000-00 in cash; (b) a fresh directors’ guarantee betaken with the exclusion of the said Lim Chan Soon as guarantor; (ii) that the remaining balance of thesaid facility could only be released as per paragraph (ii) under ‘Disbursementconditions’ as stated in the said letter of offer dated 20 August 1984, uponcompliance of all pre-disbursement conditions including :- (a) the auditor’s confirmation that the1 st respondent’s paid-up capital has been increased to at leastRM250,000-00 in cash as stated in the said letter of offer dated 20 August1984; (b) that since the said lands to bedeveloped is under the name of a third party, viz., the 3rd respondent, anirrevocable power of attorney is to be given by the 3 rd respondent,as land-owner to the 1 st respondent; and (iii) that interest will be charged at14.75% per annum, i.e.,   3.5% above theappellant’s base lending rate then at 11.25% per annum   and to be serviced monthly. The 1 st respondent acceptedthe above terms and conditions and expressly undertook to pay and service theinterest on a monthly basis. Consequently the appellant released thesaid monies comprising the first tranche, i.e., RM400,000-00 to theirsolicitors for onward transmission to the vendor, i.e. the 3 rd respondent. As the balance purchase price for the said lands was onlyRM291,200.00, the appellant’s solicitors released only that amount to thevendor and refunded the excess balance of RM108,800.00 to the appellant. The 1 st respondent consequently applied to the appellant to release that excess balanceRM108,800.00 purportedly for payment of other necessary expenses such as feesfor lawyers, architects and valuers, travelling expenses by the 1 st respondent’s directors and other expenses connected to the purchase of the saidlands. The 1 st respondent later made another request by letter dated22 October 1985 for that said amount of   RM108,800-00 which it explained will also be used to pay interestoutstanding under the said facility then amounting to RM13,940-56. Theappellant turned down the request and in our view quite rightly so under thecircumstances seeing that the said letter of offer and also the said amended letterof offer clearly stated that the monies under the first tranche was for thepurpose of the purchase of the said lands and was to be paid directly to thevendor through the appellant’s solicitors.    Further, it was not disputed that as at14 February, 1986, the outstanding balance owing under the first tranche stoodat RM319,194-96 against the drawing limit of RM291,200-00, thereby creating anexcess of RM27,994-96.   It was also notdisputed that since the release of the sum of RM291,200-00 under the firsttranche, the 1 st respondent failed to service the monthly interestor make any payments whatsoever to the appellant. It was further not disputedthat at all material times, the 1 st respondent had not commencedconstruction of the 28 units of single storey bungalow houses on the said landsand had yet to obtain a housing developer’s licence.   For the above reasons, we are of theview that the learned trial judge was wrong in making the decision that he did.The terms and conditions found in the said letter of offer read together withthe said amended letter of offer clearly showed that the said facility was anoverdraft facility. The terms and conditions laid down therein imposed anobligation upon the 1 st respondent to service the interest chargedon a monthly basis and which obligation the 1 st respondent expresslyundertook to fulfill. The said facility was given for specific purposes and the1 st respondent has to satisfy several conditions before the moniesunder the said facility could be released. The 1 st respondent cannotutilise the monies under the said facility for purposes other than that speltout in the said letter of offer read together with the said amended letter ofoffer. The respondents themselves conceded thatthe said facility was an overdraft facility. The respondents in their defenceand set-off admitted that the said facility granted was an overdraft facilityand had repeatedly referred to the same as an overdraft facility in theirpleadings. Further, all documentary evidence referred to at the trial clearlyreferred to the said facility as an overdraft facility. Nowhere is the facilityreferred to as a bridging loan. The words “bridging loan” only surfaced whenthe 3 rd respondent took the stand at the trial as a witness for therespondents. Before us, learned counsel for therespondents incessantly referred to Mae Perkayuan althoughhe did concede that the facts there were different from the facts of thisinstant appeal. In Mae Perkayuan the appellant, Bank Bumiputra MalaysiaBerhad Kuala Terengganu (“the bank”) gave to the 1 st respondentthere (“the company”) an overdraft facility also made up of two tranches whichwere as follows - (i) thefirst tranche of RM2.4 million was as building finance for a proposeddevelopment of 6 lots of land in Dungun, Terengganu belonging to “Yang TeramatMulia Yang Di-pertuan Muda, Terengganu (now DYMM Sultan of Terengganu)”; and (ii) thesecond tranche of RM2.1 million was to purchase a piece of land in Alor Gajah,Melaka, including incidental cost of RM100,000-00. In thebank’s letter of offer, dated 25 June 1983, it was clearly spelt out under aparagraph entitled “Disbursement” that the first tranche was a “Bridgingfinance for RM2,400,000” and that “it was to be released progressively againstarchitect’s certificate of completion, after compliance of all conditionsprecedent and security document on the properties in Dungun have been executedand consent to charge has been obtained”. On “repayment” the bank’s letter ofoffer stated as follows - “ To be reduced progressively by way ofredemption sums for the proposed housing development in Dungun. The redemptionsum shall also cover the facility for land purchase and is to be fixed later,upon request for release of tiles to end-financiers.” Thecompany accepted the terms and conditions as specified in the bank’s letter ofoffer. At the end of July 1985, although there was evidence that the companyhad completed the earthworks and site preparation, there was no evidence thatthe amount disbursed by the bank had not been spent by the company for purposesof the development of the Dungun project. On 30 July 1985, the bank’s headoffice in Kuala Lumpur issued a directive to the bank to say, inter alia ,that “it has already been decided the customers service the monthly accruinginterest since November 1984 and to take steps to regularize the position oftheir account failing which the facility to be recalled”. On 14 October the bankwrote to the company to say that it has decided to withdraw the facility andthat legal action will be taken. On 21 July 1986 the bank caused a writ to beissued for recovery of the amount owing on the overdraft facility. The companyand its guarantors filed a defence and counterclaimed for breach of contractand special damages of RM45 million and general damages. In theHigh Court, the learned trial judge found that RM2.1 million had been disbursedfor the purchase of the land in Alor Gajah and that a total sum ofRM1,104,286-50 had been disbursed by the bank upon the production ofarchitect’s certificates showing that the works specifed therein had beencompleted. At the end of the day the learned trial judge found that the bank hadcommitted a breach of the bridging loan and dismissed the bank’s claim. Heallowed the counterclaim of the company and awarded damages of RM6 million forthe Dungun project and RM6 million for the Alor Gajah “project”, a sum of RM5million as   aggravated damages for injuryallegedly suffered by the Sultan of Terengganu and ordered payments totallingmore than RM1.7 million to be made by the bank to third parties. The bankappealed against the learned trial judge’s conclusion that it had committed abreach of the agreement and also against the quantum of damages awarded on thecounterclaim against it. Inallowing the appeal in part, the Supreme Court, inter alia , held - (i) therehad been negotiations between the bank and the company before the bank gave thebridging finance in the terms appearing in the agreement and that the bank knewthat the company would receive no income whatosever from the project until saleand purchase agreements were signed; until the company commenced receiving theproceeds of sale from the house purchasers it was under no obligation to pay tothe bank anything towards the principal sum or towards the interest; therefore,the bank was not entitled to issue the recall letter purely on the ground thatinterest had not been serviced by the company;   the bank, in recalling the loan mid-term, had committed a breach of theagreement; (ii) theloss of profits on the housing project which the company suffered was thenatural and probable result of the breach of agreement by the bank and when thebank agreed to provide the bridging finance to the company, the bank well knewof the loss that the company would incur should the bank break the contract; inrelation to this, the total net profit of the Dungun project, estimated atRM5,394,722 by the quantity surveyor, was preferred to the assessment of RM6.2million made by the learned trial judge; (iii) theloss of profits claimed in respect of the Alor Gajah “project” was dependent onthe application of profits expected from the Dungun project and would be tooremote and should not be allowed; the learned trial judge’s award of RM6million was therefore set aside; (iv) thecompany had not established its claim for exemplary damages and therefore theaward of RM5 million made by the learned trial judge in this respect should beset aside; (v) thecompany’s claim for reimbursement of damages paid to third parties had not beenproperly substantiated as no evidence was adduced from the third parties thatthey had received damages from the company; the learned trial judge’s award inthis respect should be set aside; (vi) thedismissal of the bank’s claim in respect of the sum owing by the company to thebank on the overdraft facility on the ground that it was in breach of contractin recalling the overdraft prematurely could not be justified; the bank isentitled to repayment of the loan with interest up to the date when theoverdraft was prematurely withdrawn; the bank was also entitled to simpleinterest under the Rules of the High Court 1980. We are ofthe view that the circumstances in the instant appeal are clearlydistinguishable from those in Mae Perkayuan. In Mae Perkayuan thecompany had already obtained all the necessary approvals including a housingdeveloper’s licence; at page 85 of the report, Abdul Hamid Omar, LP said: “In any event, before the overdraftfacilities were terminated he had already obtained all the necessary givernmentapprovals including a housing developer’s licence.   The only licence which had then yet to beapproved by the government was an advertising and sale permit without which thefirst respondent would not be able to advertise in the newspapers about thesales of the dwelling houses and the shop houses to be built. He could beginconstruction of the houses only after getting all these necessary approvalsfrom the government agencies as required by law. Up to the time of thetermination of the overdraft facilities, a considerable sum of money had beenspent by the first respondent but it had received no income because no sale andpurchase agreement could yet be signed.” The factsin Mae Perkayuan also showed that the company had completed the “earthworksand site preparation” as a result of which the bank had disbursed part of themonies available under the first tranche, viz., the bridging loan. In theinstant appeal, as far as the second tranche is concerned, the 1 st respondent has yet to obtain a developer’s licence neither is there anyevidence to show it has commenced construction works.   Part of the pre-disbursement conditions foundin the said letter of offer and also the said amended letter of offer, includingthe requirement that the 1 st respondent must possess a developer’slicence, had yet to be fulfilled. Without fulfilling the pre-disbursementconditions, we cannot see how the monies available under the second tranchecould be released to the 1 st respondent. The monies available underthe second tranche could only be released progressively against an architect’scertificate of work completed for the said housing project. Further, in Mae Perkayuan it wasfound by the court that the reason why the bank recalled the loan was solelybecause the company had not paid the interest. It was found that the bank nevernotified the company that if interest was not paid, it would recall the loan.It was also found that nowhere in the bank’s letter of offer was it stated thatthe company was required to pay the interest monthly or at any other intervals.In the instant appeal, it was clearly stated in the said amended letter ofoffer that interest had to be serviced monthly. The documents adduced at thetrial clearly showed that the 1 st respondent had admitted andaccepted this condition that it had to service the interest on a monthly basis.As pointed out earlier, the 1 st respondent had even, by letter dated22 October 1985, requested that it be allowed to utilise the balance of themonies under the first tranche to pay for interest outstanding under the saidfacility which had by then amounted to RM13,940-56. The 1 st respondent knew it had to service the interest on a monthly basis but chose notto do so notwithstanding it had in fact expressly agreed to service theinterest monthly. Furthermore, in Mae Perkayuan the bank withdrew thefacility without prior demand being made whereas in the instant appeal severalletters of demand with copies extended to the directors and/or guarantors weresent requesting the 1 st respondent to service the monthly interest. As far as the first tranche under thesaid facility in the instant appeal is concerned, we are of the view that thatpart of the said facility cannot be described as a “bridging loan” as thepurpose was solely for the purchase of the said lands prior to development.According to the judgment in Mae Perkayuan , a bridging loan is a type offacility that is given to cover the period between the time when constructionhad begun until it is completed and “the finance is to bridge the periodbetween the time when the developer starts to prepare the ground works and theperiod when the developer will start to receive the proceeds of sales of thehouses from purchasers which is when the sale and purchase agreements aresigned”. In relation to the second tranche of RM1million in the instant appeal, the appellant’s counsel conceded in hissubmission that that part of the said facility may well be considered as abridging loan but as this tranche has yet to be applied for release and couldnot under the circumstances be applied for as the 1 st respondent hasyet to comply with the pre-disbursement conditions, it is not an issue in theseproceedings. We would fully agree with this contention. We cannot fathom theobjective of the respondents in raising the contention that the said facilitywas a bridging loan. The first tranche was clearly not a bridging loan. It wasan overdraft facility to purchase the said lands. That part of the facility wasfor the 1 st respondent to utilise to purchase the said lands but thefacts showed it was the 3 rd respondent who was the purchaser. Bethat as it may, upon seeing that the said lands were to be developed under thename of a third party, viz., the 3 rd respondent, the appellant inthe said amended letter of offer required the 1 st respondent toforward an irrevocable power of attorney to be given by the 3 rd respondent as land-owner to the 1 st respondent. On the whole, we are of the view thatthe only issue in these proceedings was whether the balance of the firsttranche amounting to RM108,800-00 ought to have been released to the 1 st respondent. We have adumbrated earlier that we were of the view that theappellant was under no obligation to release the said sum of RM108,800-00 tothe 1 st respondent to utilise the monies for purposes other than forthe purchase of the said lands. In Mae Perkayuan we noted that theletter of offer there provided that the purpose of the second tranche of RM2.1million was to purchase the Alor Gajah land “including incidental cost ofRM100,000”. In the instant appeal, there was no such provision for any“incidental cost”. Under the circumstances in the instant appeal, no such wordsappear and that being the case, we cannot see how it can be argued that theappellant was in breach of the agreement by failing to disburse the balance ofthe monies under the first tranche to pay for any “incidental cost” includinginterest outstanding under the said facility. We are of the view that thedecision in Mae Perkayuan has no bearing upon this instant appeal. Thefacts there were clearly different. In conclusion, we are of the view that theappellant was never in breach of the terms and conditions of the said facilitywhen it did not release the balance of the monies to the 1 st respondent under the first tranche. In relation to the second tranche, we wouldagree with the submission of the appellant that it was a non-issue in theseproceedings. The monies available under the second tranche cannot under thecircumstances be released to the 1 st respondent as the 1 st respondent has failed to comply with the pre-disbursement conditions. That beingthe position, we cannot see any merits in the respondents’ defence and set-off.The respondents are liable to pay the sum claimed by the appellant as per itsstatement of claim. The 1 st respondent was never in a position toproceed with the development of the said housing project as it did not possessa developer’s licence at the material time. We would agree with the contentioncanvassed by the appellant’s counsel that the 1 st respondent couldnot have suffered any loss or damage as it was, at all material times, not evenin a position to commence construction. In our view the learned trial judgeerred in accepting the 1 st respondent’s claim that it had sufferedloss and damages totalling RM520,946-82 “which was more than enough toextinguish” the appellant’s claim notwithstanding there was no evidence tosupport or substantiate such a claim. The appellant was clearly not in breachof the terms and conditions of the said facility and had the right to recallthe said facility on demand. We are also of the view that the 2 nd and 3 rd respondents are liable under the guarantee for the amountsowed inclusive of interest under the said facility. They executed the letter ofguarantee dated 14 June 1985 and undertook to pay any monies owing or remainingdue and unpaid to the appellant from the 1 st respondent includinginterest and all cost charges and expenses which the appellant may incur inenforcing or seeking to obtain payment and to make good any default by the 1 st respondent. It is our view that thelearned trial judge erred in dismissing the appellant’s claim and hence thisappeal must be allowed. We would accordingly set aside all the orders made bythe learned trial judge and order that the 1 st , 2 nd and 3 rd respondents pay to the appellant the sum of RM333,947-99 claimed with interestthereon at the rate of 14.25% per annum on monthly rests basis from 1 June 1986until payment with costs on a solicitor and client basis as prayed for. Wewould also order that the 1 st , 2 nd and 3 rd respondents pay the costs of this appeal to the appellant and order that thedeposit be refunded to the appellant. We heardthis appeal on 17 August 2004 and at the conclusion reserved our judgment. Amember of the quorum, Ariffin Jaka, JCA retired before this judgment waswritten. This judgment is the opinion of the majority of the remaining judgesof the quorum given pursuant to the provisions of section 42 of the Courts ofJudicature Act, 1964. (MohdGhazali Mohd Yusoff) Judge Court ofAppeal Malaysia Dated this19 day of August, 2005.   Counsel : For the appellant:               Alex de Silva                                           P.Theyabaraja                                           S.L.Ling                                            Tetuan Shariff Thomas & Lau For the respondents:          David Morais                                           Puteri Shehnaz Majid                                           Tetuan Kim & Partners",180);arrFiles[1]=new Array(672,"http://www.kehakiman.gov.my/jugdment/coa/latest/SOO-LIP-HONG-JB-JGMENT.htm","2005-09-12","SOO-LIP-HONG-JB-JGMENT.htm","","","Unit Teknologi Maklumat Normal Unit Teknologi Maklumat 2 0 2005-09-12T03:49:00Z 2005-09-12T03:49:00Z 1 4493 25613 Unit Teknologi Maklumat 213 60 30046 11.5606 6 pt 6 pt 0 3 false false false false MicrosoftInternetExplorer4              DALAMMAHKAMAH RAYUAN MALAYSIA                         (BIDANGKUASARAYUAN)                RAYUANSIVIL NO: J - 02 - 446 - 2001                                        Antara SOOLIP HONG                                           ...Perayu                                          Dan TEEKIM HUAN                                            ...Responden                        [Dalamperkara Guaman Sivil No. 22-3-96                   dalamMahkamah Tinggi Malaya di Johor Bahru                                                      Antara Tee Kim Huan                                                            ... Plaintif                                                        Dan Soo Lip Hong                                                             ... Defendan] CORAM : Mokhtar Sidin, JCA Mohd Ghazali Mohd Yusoff,JCA Nik Hashim Nik Ab Rahman,JCA                        DECISION OF THECOURT The appellant (the defendant in thecourt below) is the owner of a 3-storey shophouse in Johor Bahru known asNo.194A, 194B,& 194C, Jalan Sri Pelangi, Taman Pelangi Johor Bahru(hereinafter referred to as “the said property”). It was the respondent’s case (theplaintiff in the court below) that on 19 May 1990, between 10.00am and 11am,the appellant and him signed an option for the sale and purchase of the saidproperty for the purchase price of RM400,000-00 (hereafter referred to as “theoption”). The option, which was drafted in the English language by therespondent in his own handwriting, reads - “                                                   Option I,Mr Soo Lip Hong i/c 2345628 on 19 th May 1990 Give the optionto Mr Tee Kim Huan i/c 7657233, Agree to sell the 3 storey shophouse whichaddress at 194ABC Jln Sri Pelangi Tmn Pelangi 80400 JB. Total selling priceM400,000-00. Option conditions :- 1)Within one month have to sign the sell & purchase agreement. 2)Option money M1000/-. 3)If within one month didn’t sign the agreement the option money will beforfeited.        (Sign.)                                                            (Sign.) SooLip Hong                                                   Tee Kim Huan Dated19 th May 1990     ”.      Therespondent claimed, pursuant to the signing of the option, he paid the optionsum of RM1,000-00 to the appellant vide Perwira Habib Bank cheque No:083862 and made out in the appellant’s name. The respondent testified that thecheque was issued from the account of T-Mart Holdings Sdn Bhd, a company inwhich he is the major shareholder. He then appointed Messrs Chew, Ong &Partners as solicitors to act for him and deposited with them the sum ofRM39,000-00 vide Perwira Habib Bank cheque No. 083881 dated 5 June 1990being, according to him, the balance of 10% of the purchase price. He statedthat this cheque was a post-dated cheque and was also issued from the accountof T-Mart Holdings Sdn Bhd. On 28 May 1990 his solicitors wrote to theappellant; that letter reads - “RE: SALE OF 194A/194B/194C          JALAN SRI PELANGI, JOHOR BAHRU           ---------------------------------------------------- Weact for Mr Tee Kim Huan of No. 8, Jalan Jim Quee, Johor Bahru. Werefer to the option dated 19/5/1990 given by you to our client. Pleasecall on us to sign the Agreement, so that we can pay you the 1 st 10%of the purchase price.    ” There wasno response to the above letter. Consequently, his solicitors wrote anotherletter dated 8 July 1990 which reads - RE:SALE OF 194A/194B/194C        JALAN SRI PELANGI, JOHOR BAHRU        ---------------------------------------------------- Werefer to our letter to you dated 28/5/1990 and regret that you have notresponded to same. Kindlycall at our office forthwith to sign the Sale and Purchase Agreement andcollect the 1 st 10% of the Sale price.   ” There was also no response to thatsecond letter. The respondent claimed that several telephone calls were made tothe appellant but the latter failed, refused and/or neglected to sign the saleand purchase agreement and to collect the said sum of RM39,000-00 that hedeposited with his solicitors. Sometime in that same month, i.e., July 1990 therespondent’s solicitors returned the said sum of RM39,000-00 to T-Mart HoldingsSdn Bhd upon its request. Nothing happened until 18 January 1995,i.e., about 4 ½ years later when the respondent’s solicitors issued a thirdletter which reads - “   RE: SALE OF 194A/194B/194C    JALAN SRI PELANGI, JOHOR BAHRU    ---------------------------------------------------- We refer to our letter dated 8/7/1990. TAKE NOTICE that unless you come and sign the sale agreementwithin 7 days from date hereof, our instruction is to file summons for specificperformance against you.     ” On 4 January 1996, i.e., about 5½ yearsfrom the date of the option, the respondent filed this action claiming forspecific performance of the option, loss of rental at RM3,000-00 per month from1 October 1990 up to the date of settlement, interest at 8% per annum from thedate of the writ of summons up to the date of settlement, damages and costs. In his defence, the appellant deniedhaving signed the option and having ever received the cheque for the sum ofRM1,000-00 as payment for the option sum as alleged. He then contended that theoption was void as it was an agreement made without consideration. He stressedthat the evidence clearly showed that no such cheque, if at all issued, wasever presented for payment. The evidence adduced at the trial by the respondentto show that such a cheque was issued was in the form of a cheque-butt from theaccount of T-Mart Holdings Sdn Bhd. In relation to this, the appellantcontended that if at all such a cheque was ever issued for the purpose ofpayment of the option sum, it was a cheque from the account of T-Mart HoldingsSdn Bhd and not the respondent. In his grounds of decision in dealing with thiscontention, the learned trial judge said - “Aspointed out earlier, there was no dispute that PW1 was, at allmaterial times , the main and majority shareholder of the Co. In thatcontext, in so far as the assets   of theCo. was concerned then , PW1 personally and the Co. can besaid to be “the one and the same person” having full control over suchassets of the Co. In the absence of fraud or similar illegal acts, how PW1administered the Co’s assets should not be of any concern to theDefendant. Thus the Defendant’s contention that, there was a failure ofconsideration in the sale and purchase (“S&P”) of the relevant property inissue vide P1, has also to be rejected.” In relationto the two cheques issued from the account for T-Mart Holdinsg Sdn Bhd for thealleged payment of the option sum and the balance of 10% of the purchase price,respectively the learned trial judge said - “Asearlier discussed, the act of PW1 issuing both the aforesaid cheques to DW1 and his solicitor for the reasons stated above defies logic if they wereissued without any good reason, but just for the pleasure of draggingDW1 to Court. There was not an iota of evidence throughout thewhole trial that there was any personal or commercial misunderstanding or “ bad blood ” between PW1 and DW1. There was also no evidence of anypolice report or similar things alike to suggest that PW1 was attempting tocheat DW1. In the absence of such evidence, the only irresistible factualinference I could draw would be for the purpose(s) of purchasing therelevant property by PW1 from DW1 as agreed by both parties asevidenced by P1. The genuineness of PW1 \'s intention to purchasethe said property was further enhanced by his act of engaging his solicitorsfollowed by the deposit of RM39,000-00 to them for the reasons explainedearlier and below.” Withregards to the three letters to the appellant issued by the respondent’ssolicitors, especially the third letter dated 18 January 1995 (exhibit P8), thelearned trial judge said - “Thattoo received no response from DW1. There was no evidence tosuggest that DW1 did not receive P8. Thus, the intention of PW1 to buy thematerial property of DW1 was made clearly known to DW1 as early as8/1/95. If P1 was not duly executed by both PW1 and DW1, then theleast DW1 should have done was to response to at least P8 by, for example,objecting PW1 \'s intention of applying for the specific performance. His passive response to P6, P7 and P8, led me to conclude that DW1 did , in actualfact, signed P1 as contended by PW1. His vague explanation in respect of P6 canbe found in his evidence-in-chief.” The learnedtrial judge also did not accept the appellant’s claim that he did not sign theoption as he was in Singapore on that material date, i.e., 19 May 1990. Afterperusing the evidence in relation to this, he said - “Theculmulative ( sic ) effect of the above, compelled me to draw thenecessary conclusion that, even though he did go to Singapore on thematerial date, he still did actually sign   P1 either before he left for Singaporeor after coming back from Singapore as there was no time statedin D22 as to when he went into and came back from Singapore as explainedearlier.” Asdiscussed earlier, the appellant denied that the signature on the option washis. In relation to this, the learned trial judge found that the signature wasthat of the appellant and that he did sign the option on that material date.The learned trial judge accepted the opinion of a handwriting expert, called bythe respondent, who was of the view that that signature was that of theappellant. At the endof the day the learned trial judge concluded that the respondent hadsuccessfully proved his case and accordingly entered judgment for therespondent and hence, this appeal. Before us,learned counsel for the appellant submitted that the learned trial Judge erred, inter alia , in - (i)   ruling that there was a valid contract for sale and purchase of the saidproperty when the evidence adduced at the trial had in fact conclusively provedthat the appellant had received no consideration from the respondent; (ii) disregarding the law on specificperformance; and (iii) ordering the appellant, the ownerof the said property, to pay damages in the form of rental for a period of morethan 10 years notwithstanding that no evidence at all was adduced by therespondent during the trial to prove any loss or damage and ordering interestat 8% per annum on “arrears of rental” as if there was outstanding rent due andowing by the appellant to the respondent who has no proprietary interestwhatsoever in the said property. In opposing the appeal, learned counselfor the respondent submitted the option merely states that the appellant agreesto sell to the respondent the said property at the selling price ofRM400,000-00 with the following conditions - (i) the sale and purchase agreement isto be signed within one month; (ii) the option money is RM1,000-00; (iii) if the sale and purchase agreementis not signed within one month, the option money is to be forfeited. Counsel for the respondent contendedthese terms are clear and unambiguous and can be easily understood by both theparties. He submitted that the appellant would not have signed the optionwithout receiving the said cheque for the sum of RM1,000-00 and the fact thatthe cheque was not presented at the bank does not mean that the appellant did notreceive it. He then argued that section 11 of the Specific Relief Act 1950provides that unless and until the contrary is proven, the court may presumethat the breach of a contract to transfer immovable property cannot beadequately relieved by compensation in money and hence the respondent wasentitled to specific performance and to loss of rental. Counsel pointed out hadthe transaction been completed in 1990 the respondent would have been able torent the said property for valuable consideration and that a monthly rental ofRM3,000-00 for the said property is a reasonable figure. From our reading of his grounds ofdecision, we noted that the learned trial Judge had made the following findingsof fact, namely - (i) that the option was signed by theappellant and respondent on 19 May 1990; (ii) that the appellant received thecheque for the option sum of RM1,000-00. We do not intend to disturb thesefinding of facts. Be that as it may, in our view, the question before us inthis appeal is whether the learned trial judge has adequately approached themain issue before him in making the decision that he did, namely, whether thefacts supported his finding that there was a concluded contract and that allthat need to be done was to execute a formal sale and purchase agreement. What is an option? According to Osborn’sConcise Law Dictionary (8 th edition) an “option” is “a right ofchoice; a right conferred by agreement to buy or not at will any propertywithin a certain time”. In the instant case, the respondent was given theoption to buy the said property from the appellant. Upon payment of the optionsum of RM1,000-00 the legal effect would be that the respondent was conferredwith a right to purchase the said property at RM400,000-00. He can exercisethat right to purchase within one month and if he does so, the parties willhave to execute a sale and purchase agreement within that one month. The optionsum will be forfeited by the appellant if the sale and purchase agreement isnot executed within one month. The learned trial judge found that the chequefor the option sum of RM1,000-00 was issued although it was never presented forpayment. Looking at the facts, the respondentwould seem to have exercised his right to purchase the property when, throughhis solicitors, he requested the appellant to present himself before thesolicitors and sign the sale and purchase agreement which they have prepared. From our reading of his grounds ofdecision, the learned trial judge seems to be of the view that once it wasproved that the option was signed by the appellant and the cheque for theoption sum of RM1,000-00 was received by him, there was a concluded contractand it would follow that all that need to be done after that was to execute asale and purchase agreement. It would also seem to follow that he was of theview that the execution of a sale and purchase agreement of the said propertywould be a mere formality once the option to purchase the same was exercised bythe respondent. We wouldapproach this appeal before us in the following manner, namely, when therespondent exercised his right to purchase, was there a concluded contract sothat the parties are bound by it and the appellant would have to sign the saleand purchase agreement that was prepared by the respondent regardless ofwhether he would agree to its terms, or should that exercise of right topurchase be treated as merely a preliminary act with the result that until asale and purchase agreement the terms of which are agreeable to both parties issigned, there was no concluded contract as yet? In VooSyun Mui v Yap Mooi Mooi   [1984] 2MLJ 48, which was included in the respondent’s bundle of authorities but notspecifically referred to, the defendant gave the plaintiff an option in writingin the following terms - “In consideration of the sum of 300.00 paidby Madam Yap Mooi Mooi (f) (NRIC NO. 0487210) of No. 34, Cross Street, KualaLumpur (the receipt of which I hereby acknowledge) I hereby grant to Madam YapMooi Mooi an option to purchase my property known as Lot 39, Bukit Seputeh,Kuala Lumpur at the price of 270,000.00 only. On exercising the option a deposit of 10% ofthe sale price shall be paid and the balance of the sale price shall be paidwithin one (1) month from the payment of the deposit. This option shall be valid for 2 weeks fromthe date hereof.” Theplaintiff alleged that a letter exercising the option together with a cheque inthe sum of 27,000.00 being payment of deposit of 10% of the purchase price wasgiven and acknowledged by a servant or agent of the defendant within time. Theplaintiff then alleged that in spite of the fact that the option had beenexercised, the defendant refused to complete the sale and therefore asked foran order of specific performance of the option of the sale of the property. Inopposing the plaintiff’s claim, the defendant, inter alia , contendedthat the option was subject to contract being signed and that no contract wasever signed and therefore there was no concluded contract between the parties.The learned trial Judge gave judgment for the plaintiff and granted an orderfor specific performance. The defendant’s appeal to the Federal Court againstthat order was dismissed. In delivering the judgment of the Federal Court, SyedAgil Barakbah, FJ said (at page 52) : “Substantially the appeal revolves around aquestion of fact. ... In the circumstances of this case we see nomerit in the appellant’s contention. In our view the evidence and exhibits inthis case and also the conduct of the appellant clearly show that it was theintention of the parties to come to a definite and complete agreement on thesubject of the sale. What remained to be done was for the respondent toexercise the option in accordance with the terms stated in the option. The merefact that it was subject to an agreement to be signed did not necessarily meanthere was no legal binding and enforceable agreement.” We wouldthink that the above case has to be distinguished on the facts. In that case,the parties to the transaction, the property, the price and the terms theyconsidered essential have been identified in the option, viz., that uponexercising the option, a deposit of 10% of the sale price shall be paid and thebalance of the sale price shall be paid within one month from the payment ofthe deposit. It was clearly a firm offer. In theinstant case, we are of the view that several essential terms have not beenidentified in the option. The question which we feel that the learned trialjudge did not sufficiently consider in finding that there was a concludedcontract is whether the parties have ascertained the terms and agreed and allthat was contemplated was the mere reduction of the terms into a more formalshape. If there is an essential term which hasyet to be agreed and there is no express provision for its solution, the resultin point of law is that there is no binding contract. In DaimanDevelopment Sdn Bhd v Mathew Lui Chin Teck [1981] 1 MLJ 56, Sir GarfieldBarwick in delivering the judgment of the Privy Council said (at page 58) : “ The question whether parties have enteredinto contractual relationships with each other essentially depends upon theproper understanding of the expressions they have employed in communicatingwith each other considered against the background of the circumstances in whichthey had been negotiating, including in those circumstances the provisions ofany applicable law. Where they have expressed themselves in writing the properconstruction of the writing against that background will answer the question. Thepurpose of the construction is to determine whether the parties intendpresently to be bound to each other or whether, no matter how complete theirarrangements might appear to be, they do not so intend until the occurrence ofsome further event, including the signature of some further document or themaking of some further arrangement.” Under the circumstances of the instant case, we areof the view that until a proper and formal contract had been prepared,concluded and executed there was no agreement at all. Looking at the facts weare of the view that what was intended was that the option sum paid should beconditional on the execution of a proper sale and purchase agreement to beprepared and signed within one month. The option money paid was an expressionof a desire for a further contract and until that further contract was executedthere should be no binding contract. It was nothing more than a conditionaloffer and acceptance, and would only ripen into a contract when a sale andpurchase agreement, the terms of which have been agreed to between the parties,is executed. We do notthink that the signing of a sale and purchase agreement under the circumstancesof this case is just a mere formality. From the facts, it was clear that themain denominator of the option is that it was agreed that the parties willexecute a sale and purchase agreement within one month. Until that has beendone, we cannot see how it can be said that there was a concluded contract.What is clear is that the parties have yet to agree on the terms to be includedin the sale and purchase agreement. The option did not provide that it would bea term of the sale and purchase agreement that the respondent as purchaser isrequired to pay a sum of 10% of the purchase price on the date of execution ofthe sale and purchase agreement. Further, as regards the balance of 90% of thepurchase price, it has yet to be agreed what the terms would be unlike thesituation in Voo SyunMui v Yap Mooi Mooi ( supra ) where it was clearly stated “onexercising the option a deposit of 10% of the sale price shall be paid and thebalance of the sale price shall be paid within one (1) month from the paymentof the deposit”. In theinstant case, the respondent deposited the sum of RM39,000-00 with hissolicitors on the assumption that he would have to pay 10% of the purchaseprice upon execution of the sale and purchase agreement to be entered intobetween the parties. Looking at the option, that was surely not one of the conditionsspecified or identified as an agreed term. We do not think that the court cangive credence to such an assumption or even imply that that will be a term ofthe contract. What is clear is that the parties have yet to agree as to theterms on payment of the purchase price, e.g. should it be paid in the form of alump sum payment or will there be allowance for the respondent to pay thepurchase price by way of instalments within a certain period of time. The terms in the contract to be enteredinto must be made clear to the parties that it was on those terms. There isalso no evidence to show that the parties agreed that a 10% deposit will bepaid upon the signing of the sale and purchase agreement. Thatbeing the situation, we are of the view that what would be the terms andconditions that seem to have been agreed to between the parties would remainlargely a matter of conjecture and as such, an order for specific performanceshould not have been granted under such circumstances. Section 20 of the Specific Relief Act1950 reads - (1)Thefollowing contracts cannot be specifically enforced : (c)a contract the terms of which the court cannot find with                   reasonable certainty; . Section 21of the same reads - (1)The jurisdiction to decree specific performance is discretionary, and the courtis not bound to grant any such relief merely because it is lawful to do so: butthe discretion of the court is not arbitrary but sound and reasonable, guidedby judicial principles and capable of correction by a court of appeal. (3)A case in which the court may properly exercise a discretion to decree specificperformance is where the plaintiff has done substantial acts or suffered lossesin consequence of a contract capable of specific performance. We wouldagree with the submission of learned counsel for the appellant that the learnedtrial judge did not seem to have considered section 21(3) of the SpecificRelief Act at all. The facts clearly did not show that the respondent had donesubstantial acts or suffered losses in consequence of the refusal, if any, ofthe appellant to sign the sale and purchase agreement prepared by therespondent’s solicitors.   Upon perusing his grounds of decision,we find that the learned trial judge had failed to adequately approach the mainissue, viz., whether there was a concluded contract susceptible of beingenforced by way of specific performance. In Von Hatzfeldt-Wildenburg vAlexander [1912] 1 Ch 284, an alleged contract for the sale of a leaseholdhouse were contained in letters.   Theissue before the court was whether the letters constituted a binding contract.The court held, on the construction of the documents, there was no completecontract susceptible of being enforced by way of specific performance. In hisjudgment, Parker J said (at page 288) : “It appears to be well settled by theauthorities that if the documents or letters relied on as constituting acontract contemplate the execution of a further contract between the parties,it is a question of construction whether the execution of the further contractis a condition or term of the bargain or whether it is a mere expression of thedesire of the parties as to the manner in which the transaction already agreedto will in fact go through. In the former case there is no enforceable contracteither because the condition is unfulfilled or because the law does notrecognize a contract to enter into a contract. In the latter case there is abinding contract and the reference to the more formal document may be ignored.The fact that the reference to the more formal document is in words whichaccording to their natural construction import a condition is generally if notinvariably conclusive against the reference being treated as the expression ofa mere desire.” Further, in the instant case, the option identifiedthe respondent as the person to whom the right to purchase was granted. It didnot provide or imply that the respondent can appoint another person to be thepurchaser. The two cheques involved were issued from the account of the T-Mart Holdings Sdn Bhd, a company and hencea separate legal entity. The question which would remain unanswered would bewhether it would be a term of the sale and purchase agreement that T-MartHoldings Sdn Bhd is the purchaser. In M.Ratnavale v S. Lourdenadin [1988] 2 MLJ 371, Hashim Yeop A. Sani, SCJ (ashe then was) said the power of the court to grant specific performance isdiscretionary and a question whether specific performance should be grantedmust be considered in the light of surrounding circumstances.   He said (at page 377): “Specificperformance is an equitable relief which may be granted by the court to enforceagainst the defendant the duties and obligations which he had agreed bycontract to perform. The remedy is special and extraordinary in its characterand the court has a discretion either to grant it or not. However, the discretionis not an arbitrary or capricious discretion but it is to be exercised on fixedprinciples. The conduct of the plaintiff such as delay or laches or breach onhis part or some other circumstances outside the contract may render itinequitable to grant the remedy of specific performance.” In theinstant case we are of the view, as discussed above, that until a sale andpurchase agreement has been executed by the parties, there was no concludedcontract as yet. The respondent’s solicitors sent two letters within the onemonth time-frame as agreed requesting the appellant to appear at their officeto sign the sale and purchase agreement. The appellant did not respond to thoseletters. The evidence showed that the said sum of RM39,000-00 was subsequentlyreturned to T-Mart Holdings Sdn Bhdin July 1990 upon its request, i.e., 2 months after the option was signed.This, to us would denote that the respondent has abandoned any desire toseriously pursue the matter. He did not take any further action when there wasno response from the appellant until 18 July 1995, i.e., about 4½ years laterafter the option was signed, when his solicitors wrote to the appellantthreatening to take legal action for specific performance unless the lattershowed up at their office to sign the sale and purchase agreement. We alsonoted that the option was stamped on 17 January 1996, i.e., 13 days after theaction was filed. Specific performance surely should not be granted under suchcircumstances. On the issue of damages, viz., thearrears of rental ordered and which, in the light of what we have said above,is now a non-issue, we would think that had there been a concludedcontract, the computation of damages made by the trial judge would be erroneous.Damages has been defined as the sum of money which a person wronged is entitledto receive from the wrongdoer as compensation for the wrong and the principleis that the injured party should be put as nearly as possible in the sameposition, so far as money can do it, as if he had not been injured. The objectof an award of damages is only to give the respondent, in the instantcase,   compensation for the damage, lossor injury he has suffered owing to the breach of contract and thus the measureof damages has to be based on the actual damage directly arising from thebreach and actual expenses incurred are also recoverable in the form ofdamages. The cheque for the option sum was never cleared for payment and thusthat RM1,000-00 would remain the property of T-Mart Holdings Sdn Bhd.   T-Mart Holdings Sdn Bhd had also requestedfor the said sum of RM39,000-00 deposited with the respondent’s solicitors tobe returned to them and it was in fact returned. There is nothing in evidenceto show that the respondent has suffered any actual damage, loss or injury. On thewhole, we are of the view that what was contemplated was that a formal contractwill be executed which would embody certain terms or conditions which have yetto be ascertained. Until that has been done, we cannot see how it can be saidthat there was a concluded contract. It is our decision that the learned trialjudge had erred in granting specific performance under the circumstances andhence this appeal must be allowed. The respondent’s claim must fail and wewould accordingly set aside all the orders made by the learned trial judge andorder that the respondent bear the costs here and below. (MohdGhazali Mohd Yusoff) Judge Court ofAppeal Malaysia Dated this19 day of August, 2005.   Counsel : For the appellant:              Gan Techiong                                          TetuanGan & Lim For the respondent:           Wong Kim Fatt and K.M. Ong                                          Tetuan K.M. Ong, Lee & Co",95);