Professional Documents
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PLAINTIFF
V
10
LEMBAGA PELABUHAN-PELABUHAN
SABAH
DEFENDANT
15
NOTES OF PROCEEDINGS
IN OPEN COURT
3 JANUARY 2006
AT 9:00 A.M.
20
Coram:
For Plaintiff:
25For Defendant:
30Sugumar:
Confirm that
35Court:
Sugumar: Not been able to agree on issues and facts. The Plaintiffs
40case is that there was a concluded contract between the Plaintiff and
1
the Defendant in respect of a project and the Plaintiff will show that the
Minister of Communications and Works had pursuant to s 73(1) of the
Sabah Ports Authority Enactment 1981 given directions to the
Defendant wherein she agreed the approve the application of the
5Plaintiff in respect of the said project. [Court: When did the contract
legally come into existence] When the board of the Defendant
approved the said contract on 7 August 1997 and communicated to
Defendant on 11 August 1997 which will be the date of the concluded
contract. Alternatively the Plaintiff will also argue subsequent to the
10Defendants approval of the said contract, a total of 5 draft joint
venture agreements that had gone through the parties until finally at
the meeting on 17 March 1998 between the parties that it was agreed
that the final 5th draft was to be submitted for the Defendants final
approval which contains all the terms of the contract. The Plaintiff will
15show Defendant by letter dated 25 January 1999 had expressly stated
they accepted the terms of the draft joint venture agreement and the
draft power of attorney. BY letter dated 14/12/1999 Defendant
purported to repudiate the approval and the concluded contract by
informing the Plaintiff that the Ministry had decided not to approve the
20project and henece project considered as terminated.
The Defence hinges on an amendment to the principal Act which
requires joint venture agreement to be referred to the Cabinet for
approval. Will show amendment came after approval and has no
25retrospective effect as Plaintiff had accrued right. Defence also that the
said project would involve the giving of guarantee as security for loan
and that would require the cabinet approval and again this requirement
came into being after law came into existence after the parties had
entered into contract and hence no retrospective effect. Main ground
30of the defence is that there is no concluded contract between the parties
as formal agreement had not been executed. [SAG: Would put it in the
draft I have submitted to my learned friend which he refused to agree.]
[Copies of the same reproduced below.]
35
10
3
Court:
SAG:
Contained in Plaintiffs pleadings and in defence
crystallization of the issues. Agreed bundles also support this issue.
10Court:
15
9.35 a.m.
20PW1:
Forwarded
trading licence D31 by letter D30 to the Defendant. P2-34 refers to the
proposal to the Minster of Communications and Works, [Witness went
through the documents.] Equity structure 15% and 85%, with 15% for
the Defendant. Minister responded to proposal by D1. Proposal made to
30Minister and not Defendant because the ministry is in charge of SPA.
Yes
5
5Q
Yes
10
Yes
15A
Yes
Yes
20Q
Yes
25
Yes
6
Yes
5A
Yes. D27-29
Was there any meeting held between Plaintiff and Defendant on
17/3/1998 and what happened
10
15
D81 did the Defendant inform you project not being approved
and hence being terminated
20A
Yes
25Q
Yes
Any receipts
5A
Lost them
Subsequent to the Plaintiff being informed of termination was
the said project or about the same awarded to anybody else
10
9.57 a.m.
Cross-Examination of PW1:
15
26 August 1997.
20A
Yes
25
Sugumar:
Not pleaded
SAG:
Court:
Q
Court:
D1 refers to proposal
The minister can study your terms and conditions and give the
necessary direction
10
Yes
Yes
15
A
20Q
25A
No
A
5Q
Yes
Did you know the condition of the gazette
I do not know
10A
I do not know
P38(b), clause 4(a) - condition precedent land has not been
alienated to SPA
15
Put
A
20Q
25Put
A
5Q
Yes
Valuation of the land is part and partial of the terms and
conditions of the agreement
I do not think so
10A
Yes
15
20A
If the land belongs to SPA they have the power to sell it. I do not
understand the question, sorry
Why wrote the letter stated in para 2
We have to take time to get the land for the project. We have to
25
get the land. We applied for the project on the land, land belongs
to SPA
11
All land matters when vested by the TYT must go through the
cabinet
A
5Q
Not aware
Can minister reject alienation of land
10
A
15Q
Draft D38(e) para (f) right to charge and sell you can sell
the land
20Court:
D38(h) para 14 you could have set up hotel and shops and
could sell
A
25
12
10Q
Yes
15A
For approval
20
A
25Q
Yes
13
Yes
5A
Yes
10Q
No agreement
15
Put
You did not state that you are a partner in pleading because
during the negotiation you have no trading licence
20
Re-Examination of PW1:
Q
25
No
14
D38(a) clause 1
At whose cost
5A
Developer
Court:
10Q
A
15Q
Yes
When negotiation concluded, you mention 1998 D37
17 March 1998
20A
Yes
D66 last substantive para does SPA say they accept the terms
Court:
25
The letter says what it says there, no need for the witness
to tell me
15
Sugumar:
SAG:
.
[Court went into a short recess.]
5
11.20 A.M.
DW1:
10
received a copy of letter of a letter from developer to the minister. P234 proposal came in later, could be in 1997 or may be later. As a result
of a series of communication between SPA and developer they were
requested to submit their JV proposal including details. To tbe best of
20my recollection P2-34 was not given to the minister.
25
D8 1st draft was submitted to us. Negotiation went on until April 1999,
a series of negotiation. D67 valuation is important because in the JV
16
agreement one of the consideration was to provide and alienate the land
to the developer.
Q
5A
10
alienate sell or lease any land without approval of TYT ort rather
the state government
Q
15
Cannot
20A
Yes
Can you enter into agreement with plaintiff without approval of
cabinet and government
Cannot
17
A
5Q
Yes
Why did you disapprove as pere paragraph 2
Land still vested to SPA and not been alienated for project and
any JV and alienation we need approval of government
Q
10A
D71 why
For purpose of getting approval for the JV power of attorney and
proposal as a whole. Wrote to Plaintiff of my action by D76. D77
reminded ministry
Q
15A
20
RM180 million
18
5Q
D81
10
D38(a) preamble A
15
Cross-Examination of DW1:
Q
20
19
5Q
10Q
Cannot recall
15
I cannot recall
20
Court:
interpretation of document
25Q
D65 did the board of SPA approve the final draft of JV and
power of attorney
Not specifically
Put
A
10Put
15
Yes
20A
Put
21
5Q
Yes
10
12.02 PM
Re-Examination of DW1:
15
Yes
20SAG:
Court:
25
4 January 2006
10.30 a.m.
Parties same
5Court:
10Sugumar:
Court:
I need a soft copy and you should know I always want a
soft copy where the submission has been reduced into writing as this
will help me in my arriving at a decision expeditiously taking
15advantage of technology. I adjourn for a short while to enable you to
procure a soft copy.
20
25
23
MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK AT KOTA KINABALU
SUIT NO. K 22 271 OF 2001
5
BETWEEN
IAY & ASSOCIATES
[suing as a firm]
PLAINTIFF
10
AND
LEMBAGA PELABUHAN-PELABUHAN SABAH
DEFENDANT
15
DEFENDANTS SUBMISSION
May it pleases your Lordship,
20For the Plaintiff to succeed in this case the Plaintiff must cross two legal hurdles.
First, the Plaintiff must show that for the Draft Joint Venture Agreement to be
binding and effective against the Defendant, the Defendant need not secure the
approval of the government first even though the land was vested to the Defendant
25by the Yang di-Pertua Negeri with conditions attached to it.
Secondly, the Plaintiff must show that the Statutory Bodies (Supplementary
Provision) Enactment 1997, sections 8(1)(e) and 10(c), which took effect on 31
December 1997, is not applicable in the circumstances of this case.
30
SEEKING APPROVAL OF THE STATE GOVERNMENT
The Plaintiff in their testimony stated that he was not aware that the land is a vested
land. (See Page 9 line 25; Page 10 line 5 and 10 of the Notes of Proceeding)
35
The conclusion to be drawn from this ignorance is that when the Plaintiff prepared
the Draft Joint Venture Agreement, the Plaintiff was on the wrong premise in
believing that the land was alienated to the Defendant. For that reason in the Recital
to the Draft Joint Venture Agreement prepared by the Plaintiff at page 38(a), it
40stated that the land was alienated to the Defendant.
Assuming the Draft Joint Venture Agreement is binding even though not signed, the
end result would be frustration because the status of the subject matter, i.e. the 6.2
acres of land requested by the Plaintiff has not been alienated to the Defendant but
45still vested to the Defendant. Since the land is still vested to the Defendant then the
24
parties cannot proceed with the Project without complying with the prohibitions in
the Gazette Notification No.20.
In the case of Yong Ung Kai v Enting (1965) 2 MLJ 98, paginated in the
5Defendants bundle of authority at page 17 and 18, the court decided, because of
the failure to obtain the necessary licence the agreement became impossible to
perform. It was also decided in the judgment, even if there is no specific term in the
agreement to obtain a licence it is implied. Hence any claim arising from that
failed.
10
The Defendant in their testimony had clearly stated that the land is a vested land
which contains prohibitions as stated in the gazette notification no.20 dated
13.1.1983 which reads, inter alia:
15
(2)
The Sabah Ports Authority shall not sell, lease or otherwise alienate
the said land without the prior approval of the Yang di-Pertua
Negeri.
For the Draft Joint Venture Agreement to be binding the Defendant must seek the
20approval of the State Government and the Yang di-Pertua Negeri to remove the
caveat attached to the vesting order because the Draft Joint Venture Agreement
contains the following provisions.
I refer to exhibit D38(c)
25
At Clause 5(d) of the Draft Joint Venture Agreement, it clearly stipulates that the
land will be subject to sale and purchase Agreement together with transfer
document in connection with the sale and purchase of the properties developed
herein.
30
At Clause 5(f) of the Draft Joint Venture Agreement, the Plaintiff was To apply
and obtain a developers License if necessary, to develop and sell the properties
according to the Housing (Control and Licensing of Developers) Enactment, 1978.
35At Clause 5(h) of the Draft Joint Venture Agreement, the Plaintiff was To deliver
vacant possession of those completed properties to the respective purchasers with
the Certificate of Fitness for Occupation.
Without the approval of the State Government and without degazetting the said
40gazette notification, the Draft Joint Venture Agreement cannot be effected whether
it is signed or unsigned. The end result would be frustration of the Draft Joint
Venture Agreement.
Even if the Defendant approves the Proposed Draft Joint Venture Agreement, which
45the Defendant submits is conditional approval; the State Government must consent
25
to the removal of the vested land first. DW1 in his testimony stated that the
Defendants approval was conditional upon the State Governments approval.
The Defendant had sought the approval of the State Government to give effect to
5the Draft Joint Venture Agreement. This is reflected in the various letters written by
the Defendant to the Ministry.
In exhibit D66, letter dated 25.01.1999, addressed to the Plaintiff, Defendent
informed the Plaintiff that detail of the proposed project and the Draft Joint Venture
10Agreement and the Draft Power of Attorney are in the process of being submitted
to the State Government for approval.
In exhibit D70, the Defendant qualified it approval by stating that though the
Defendant had approved the Draft Joint Venture Agreement, it has to refer to the
15Ministry of Infrastructure Development for approval. As stated by DW1, they have
to refer the Draft Joint Venture Agreement to the State Government because it
affected the status of the vested land.
In exhibit D71, (i) the Defendant submitted the Draft Joint Venture Agreement, (ii)
20the Draft Power of Attorney (iii) and the Defendant also brought to the attention of
the Ministry that the said land is a vested land and that the Defendant will submit
its application for the said land for the purpose of the project. (iv) The Defendant
also brought to the attention of the Ministry the provision of the Statutory Bodies
(Supplementary Provisions) Enactment 1997 which requires the Defendant to
25obtain the approval of the State Government before it enters into the joint venture
agreement with the Plaintiff.
In exhibit D77, the Defendant reminded the Ministry of Infrastructure Development
of its application for approval of the Draft Joint Venture Agreement.
30
DW1 in his testimony stated that around May, the Cabinet conveyed to the
Defendant through the Ministry that the Defendant was required to develop the
proposed site on their own.
35In the same letter, D77, the Defendant also enquire about the instruction of the
State Government for the Defendant to construct the passenger ferry terminal
facilities itself. From this letter it is clear that the Defendant had done everything
possible to give effect to the Draft Joint Venture Agreement and this letter also
reflect the State Governments intention that the Defendant not to enter into any
40joint venture agreement with any party.
In exhibit D79, in response to the Defendants enquiry in D77, the Ministry rejected
the Defendants proposal to develop the said land with the Plaintiff on a joint
venture basis. The Defendant to preserve the status of the vested land. This would
45mean that the status of the vested land remains intact and whatever agreement
entered between the Plaintiff and the Defendant rightly or wrongly cannot be
26
carried out unless the status of the vested land can be changed to suit the
requirement of the Draft Joint Venture Agreement. The proposed draft JointVenture Agreement is an exercise in futility and it is frustrated by the State
Governments decision.
5
THE APPROVAL
CONDITIONAL.
OF
THE
JOINT-VENTURE
AGREEMENT
IS
Exhibit D1, the approval of the Minister is conditional in that it stated that sila
10ambil tindakan sewajarnya meaning that the Defendant should take reasonable
action which impliedly suggest that all procedures must be adhered to.
In Exhibit P1 at page 35, the Defendant requested for a detailed proposed
development from the Plaintiff for the Defendants consideration and further action.
15
As stated by DW1, the proposal in Exhibit P1 at page 2 to page 34 came later. In
this Exhibit, the size of the proposed area also was not clearly identified. The
proposal was uncertain.
20At Exhibit D1, page 24, the Defendant was to pay the premium and stamp duty.
This is only a proposal not a binding agreement.
In the proposed Draft Joint-Venture Agreement submitted on 17.3.1998, the
proposal has been amended in that the premium and the stamp duty were to be
25borne by the plaintiff. This fact suggests that the proposal is not a binding contract
as at the year 1997 because the terms and conditions were only finalized on
12.3.1999 at page 67 of D1 where the Plaintiff agrees to the valuation of the land.
Even if the Defendant agrees on the valuation of the land this does not make it a
30binding agreement because until and unless the State Government agrees to lift the
prohibitions of the vested land the Defendant cannot agree on the valuation of the
land on behalf of the State Government. The State Government has got its own
valuer to determine the value of the land. The agreement is still uncertain.
35In Exhibit D1, page 68, the Plaintiff in their own letter dated 13.2.1999, recognised
that their proposal is conditional upon the land matter being resolved with the State
Government.
The Defendant will rely on the earlier submission and Exhibits to indicate that the
40approval is conditional subject to the State Governments approval.
Defendant humbly submits, the fact that the Draft Joint Venture Agreement is
submitted to the Ministry for the approval it clearly shows that the Draft Joint
Venture Agreement is still conditional.
45
27
On the face of the Draft Joint Venture Agreement is also reflect a conditional term
of approval.
Clause 4.1 contains conditions precedent. What is the point of contending the Draft
5Joint Venture Agreement as valid and binding on the parties when even before they
could enter into a binding agreement, the Defendant must seek the approval of the
Cabinet.
Since the Plaintiff was the party who made the offer, it is up to the Defendant to
10decide on the condition of acceptance. In the circumstances of this case the
Defendant had clearly indicated to the Plaintiff that the approval is subject to the
Ministrys approval on the Draft Joint Venture Agreement.
Since the Plaintiff had enquired about the status of the Draft Joint Venture
15Agreement in D 74, this only confirms the Defendants stand that the Plaintiff was
aware that the approval of the Draft Joint Venture Agreement was conditional. D76
was the Defendants reply.
STATUTORY BODIES (SUPPLEMENTARY PROVISION) ENACTMENT
201997, - SECTION 8(1)(e) and SECTION 10 (c)
These provisions took effect on 31.12.1997.
25From exhibits tendered in this proceeding, the Draft Joint Venture Agreement was
not finalized until the year 1999.
PW1 stated that the Draft Joint Venture Agreement was finalized in 1998.
30If this facts stand, then the Defendant must seeks the approval of the Cabinet before
the Defendant could enter into any joint venture agreement.
The Cabinet decision as stated by DW1 came in the month of May and this was
35conveyed to the Defendant as reflected in Exhibit D1 at page 77. The decision of
the Cabinet was further conveyed to the Defendant in Exhibit D1 at page 79.
The decision of the Cabinet and the State Government is final and it is in
accordance with section 8(1)(e) of the Enactment.
40
Section 10 (c) of the same Enactment provides that No Statutory body shall,
without the prior written approval of the Cabinet, guarantee or provide any form of
security for any loan, liability or obligation, contractual or otherwise, of any of its
holding or subsidiary or related companies.
45
28
The Draft Joint Venture Agreement in Exhibit D1 at page 38(c) Clause 5 (g),
provides for charging of the land as security for the purpose of bridging finance.
Since the Draft Joint Venture Agreement requires the approval of the Cabinet, it
5cannot be said that the Draft Joint Venture Agreement amounts to a binding
contract. The Plaintiff cannot pre-empt the Cabinets approval.
In the circumstances of this case, the Cabinet has already rejected the Draft Joint
Venture Agreement and the Power of Attorney.
10
The Ministers approval was also rejected by the Government.
Section 3 of the Enactment provides that In the event of any inconsistency
between the provisions of this Enactment and of the State Law pursuant to which
15a statutory body is incorporated, the provisions of this Enactment shall prevail
and the State Law shall, to the extent of inconsistency, be void..
In the circumstances of this case, since the Draft Joint Venture Agreement was
finalized either in 1998 according to the Plaintiff or in 1999 according to the
20Defendant, the Ministers approval made in 1997 is overtaken by Section 3 of the
Enactment. Hence, any inconsistency between the Ministers approval and the
Cabinets decision, the latters decision prevails.
Section 24(b) of the Contracts Act 1950 provides that The consideration or object
25of an agreement is lawful unless it is of a nature that, if permitted, it would defeat
any law.
On this premise, it cannot be said that the proposal or the Draft Joint Venture
Agreement is binding on either party because the consideration offends sections
308(1)(e) and section 10 (c) of the Statutory Body Enactment and section 24(b) of the
Contracts Act 1950 if it is not referred for the Cabinet approval.
29
45
30
11.00 a.m.
4 January 2006
Parties same
5
Court:
I Have a soft copy of the submission of counsel for the
Plaintiff which I reproduce below. Anything else to add.
10
31
MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT KOTA
KINABALU
BETWEEN
IAY & ASSOCIATES
10PLAINTIFF
AND
15LEMBAGA PELABUHAN-PELABUHAN SABAH
DEFENDANT
to in D1 has to be P2-34.
DW1 at page 16 lines 15 contended that P2-34 was not the proposal
submitted to the minister and according to him the Defendant received
32
D1 together with a letter from the Plaintiff to the Minister but could not
produce the purported letter. Submit if there was such a purported
letter, it must surely be in the possession, custody or power of the
Defendant and since the Defendant has not produced the purported
5letter nor was PW1 cross examined on the purported letter, this court
ought to draw the adverse inference under Section 114 (g) of the
Evidence Act 1950. In any event DW1 at page 19 lines 23-24 did admit
that the Plaintiff did submit P2-34.
10The Plaintiff readily admits that D1 by itself does not create any
the Sabah Ports Authority Enactment 1981 clearly states that the
Defendant is competent to enter into contracts.
33
it is submitted that since Sections 8 (1) (e) and 10 (c) have the effect of
affecting substantive rights under P35-36, the 1997 Enactment must be
construed as having prospective effect only.
25The five Draft JV Agreements arose as a direct result of P35-36. The
Plaintiff that the Draft JV Agreement was being submitted to the State
Government for approval was on 25.01.1999 vide D66. However, the
point to be noted here is that State Government had way back on
25.04.1997 approved the said Project vide D1 and it is therefore
15superfluous to seek the State Governments approval in 1999.
35
is a nullity.
ISSUE 3 OF THE DRAFT STATEMENT OF AGREED ISSUES
20It is submitted that given the fact that the Defendant is taking the stand
that there was no binding contract as per the Draft JV Agreement, the
fulfillment or otherwise of the conditions precedent therein will not
arise. In order for the Defendant to take the stand that the conditions
precedent have not been fulfilled they would have to first accept that
25there was a binding contract. Assuming the Defendant accepts that
there was a binding contract, the condition precedent in Clause 4.1 (a)
36
months from the date of the Agreement to prepare and submit the
development plan for approval. The Plaintiff vide D62 had asked the
Defendant when the Defendant was ready to execute the Agreement
and instead of executing the Agreement the Defendant informs the
10Plaintiff in D81 that the said Project is considered as terminated.
37
to furnish the Defendant with the names and places of residence of the
partners in the firm. Since commencement of this action no such notice
has been served by the Defendant on the Plaintiff or their solicitors.
The answer is obvious since vide D19 prior to commencement of this
20action the necessary particulars have been disclosed to the Defendant.
Thus, way back on 09.02.1998 when D19 was received the Defendant
knew who the partners were and they also knew that the Plaintiff was a
partnership firm. The law on partnership is govern by the Partnership
25Act 1961 and not founded on a trading license. Section 3 (1) of the
38
Section 7 provides that the acts of a partner shall bind the partnership
firm and Section 8 provides that partners are bound by acts on behalf of
the partnership firm.
5In the light of the aforesaid, it is submitted that this fact not been
39
and admitted document. Counsel for the Defendant did not at all
challenge the projections set out in P25 31. It is also an
uncontroverted fact that the Defendant did have a copy of P2 34 as
admitted by DW1 at page 19, lines 23 24. Both the Minister vide D1
20and the Defendant vide D35 36 approved the proposal which was P2
34 including the projected profits set out therein. Hence, it was within
the contemplation of the parties that the Defendant.
Based on P2 34, the projected net income from the development was
25RM82,495,000.00 while the projected income from the terminal was
Sugumar Balakrishnan
Counsel for the Plaintiff
41
Court:
10
15
20
42