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IN THE HIGH COURT AT MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY OF KUALA LUMPUR
[CIVIL SUIT NO.: WA-22NCVC-206-04/2023]

BETWEEN

SIM GUAN BOON

(IC NO.: 871120-23-5167) … PLAINTIFF

AND

1) KOON SIEW LIN

(IC NO.: 450806-10-5265)

2) KOON WENG FAI

(IC NO.: 690307-10-6039)

3) KOON WENG WAI

(IC NO.: 750806-14-5085)

4) LIM HONG NGO

(IC NO.: 490228-10-5672) … DEFENDANTS

Judgment

Introduction

[1] Raja Azlan Shah Acting CJ Malaya (as His Majesty then was) said in
Woo Yew Chee v. Yong Yong Hoo [1979] 1 MLJ 131 FC at 133 -

It is a universal principle of law that the court would not allow a

party to take advantage of his own wrong.

[2] This principle of high standing will be tested again in this case.

[3] I had on 22-08-2023 granted the plaintiff’s application for summary

judgment under Order 81 rule 1 of the Rules of Court 2012 for
specific performance of an agreement for the sale of a property to the

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plaintiff.

[4] At the oral hearing, counsel for the defendants said he has 3 triable
issues. These are -

i. The 3 rd defendant [“D3”] who is the beneficiary of a ¼ share in

the property has no right to sell his share and thus the four
defendants [including him] are not bound by their agreement to
sell to the plaintiff.

ii. The SPA has not been signed by the defendants.

iii. There is no certainty as to the terms of sale.

[5] I had dismissed all three alleged triable issues. Only alleged issue [i ]
poses some difficulties as there appears to be a divergence of view
on this issue at the Court of Appeal level due to the fairly recent
decision of Amanah Raya Bhd (representative for Cheng Song Lim,
deceased) v. Ong Chin Hoo [2020] 3 MLJ 463 CA. I will elaborate
more on this below.

[6] Dissatisfied with my decision, the defendants had appealed to the

Court of Appeal. These are my Grounds of Judgment.

Background Facts

[7] The plaintiff had entered into a Letter of Offer and Acceptance dated
09-12-2022 with the four defendants in this suit to buy a piece of
property for RM 2,550,000. The Letter of Offer and Acceptance was
prepared by an estate agent of the defendants. It was signed by the
plaintiff and all four defendants here. [See Enclosure 7 Supporting
Affidavit at page 2 paragraph 4 and Exhibit SGB-1].

[8] The property is a double storey bungalow with an address at No. 68,
Jalan Petaling 5, Sri Petaling, 57000, Wilayah Persekutuan Kuala
Lumpur erected on a piece of land held under Individual Title No.
Pajakan Mukim 3084, No. Lot 22961, Mukim Petaling, Daerah

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Wilayah Persekutuan, Tempat Batu 7, Jalan Sungai Besi, Wilayah
Persekutuan (“Property”).

[9] The 1 st , 2 nd and 4 th defendant are the registered owners of ¼ share

each in the Property. The remaining ¼ share is register ed under the
name of Koon Weng Hoong, who has passed away. The 3 rd defendant
is the named beneficiary in the Will of Koon Weng Hong [deceased]
and it is he who signed the Letter of Offer and Acceptance.

[10] The defendants’ counsel informs the court that “Koon Weng Wai, the
Third Defendant is the named beneficiary in the Will of Koon Weng
Hong. Although the Grant of Probate has been extracted from the
Court, the transfer of the said property to the Third Defen dant is yet
to be completed.”

[See Enclosure 22 Defendant’s Written Submission page 3 at

paragraph 6].

[11] The defendants’ counsel also informs the court that “The parties
have then appointed their own solicitors to negotiate the terms for
the Sale and Purchase Agreement subsequent from the said offer to
purchase. It is to be noted that the condition precedent in the draft
Sale and Purchase Agreement is the sale of the said property is
subject to a condition precedent that ¼ share of the property which
belong to the deceased shall be first transferred and registered in
the name of the Third Defendant.”

[See Enclosure 22 Defendant’s Written Submission page 3 at

paragraph 8].

[12] The defendants’ counsel further informs the court that “After a few
back-and-forth emails between the Plaintiff’s and Defendant’s
solicitors pertaining to the drafting of the Sale and Purchase
Agreement, then on 24.03.2023 the Defendant ’s solicitors received
instructions from the Defendants to terminate the transactions thus
the Defendant’s solicitors have informed the Plaintiff of the same.”

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[See Enclosure 22 Defendant’s Written Submission page 3 at
paragraph 9].

[13] The defendants’ counsel further informs the court that “For the
purpose of mediation [sic] of damages, the Defendants further offer
compensation to the Plaintiff. However, the Plaintiff has refused to
accept the termination and compensation offered by the Defendants
which in turn has led to this civil suit and this Summary Judgement
application against the Defendants.”

[See Enclosure 22 Defendant’s Written Submission page 4 at

paragraphs 10 and 11].

Analysis by court

[14] From the facts and the statements by learned counsel of the
defendants set out above, it is clear that the only real issue that I
need to deal with is alleged triable Issue 1 - that D3 who is the
beneficiary of a ¼ share in the property has no right to sell his share
and thus the four defendants [including him] are not bound by their
agreement to sell to the plaintiff.

[15] For completeness sake, I will also deal with the other two alleged
triable issues.

The law on Order 81 Rules of Court 2012

[16] The law on Order 81 Rules of Court 2012 is well -settled. The
principles applicable to our case here can be distilled as follows -

i. Order 81 of the Rules of Court 2012 has the same procedural

objective as O. 14 of the same Rules in that it provides for a
speedy mechanism for obtaining summary judgment without
proceeding to a trial. The court needs to be satisfied that there
is no triable issue before the application can be allowed. [Eng
Song Aluminium Industries Sdn Bhd v. Keat Siong Property Sdn
Bhd [2018] 5 MLJ 380 CA, Zaleha Yusof JCA].

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ii. A condition precedent in a contract was not an impediment for
an order of specific performance to be granted. It was merely a
conditional contract which will no longer be co nditional if the
conditions precedent has been fulfilled. In the event the
conditions precedent has not been fulfilled, the contract will
just come to an end. [See paragraph 33 Eng Song].

iii. Order 81 rule 2[2] Rules of Court 2012 states that the
application for summary judgment under Order 81 of the Rules
of Court 2012 shall attach thereto the minutes of the judgment
sought by the plaintiff. However, failure to so attach the said
minutes to the application is not fatal. [See paragraphs 37 & 40
Eng Song]

iv. The rationale for the requirement to attach the minutes of

judgment is to ensure that the final order could be speedily,
promptly and expeditiously issued by the court. As long as the
plaintiff had sufficiently set out the reliefs of the judgment
sought which were supported by an affidavit containing all the
documents and details of parties’ obligation under the
agreement this is sufficient. [See paragraphs 37 & 40 Eng
Song]

Alleged triable issue [1] - D3 who is the beneficiary of a ¼ share in the

property has no right to sell his share and thus the four defendants
[including him] are not bound by their agreement to sell to the
plaintiff

[17] In my view this is not a triable issue. This issue has been well settled
since time immemorial.

A beneficiary to a deceased’s estate can enter into a contract to sell his

interest in the land which he will inherit

[18] A beneficiary to a deceased’s estate can enter into a contract to sell

his interest in the land which he will inherit. It is irrelevant that the

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land is still in the deceased’s name at the time of the contract to sell.
The fact that at the date of contract the beneficiary vendor had
neither title nor power to call for title is not of itself an answer to a
suit of specific performance by the purchaser. The court will grant
summary judgment for specific performance under Order 81 of the
Rules of Court 2012.

[Brickles Snell [1916] 2 AC 599, Kersah La’usin v. Sikin Menan

[1966] 2 MLJ 20 HC Raja Azlan Shah J, Tan Swee Lan v. Engku Nik
Binti Engku Muda & Ors [1973] 2 MLJ 187 FC, Silimuthu v. Amalu
& Anor [1981] 1 MLRH 509 HC and [1983] 1 MLJ 190 HC Yusof
Abdul Rashid J and Anuar bin Abu Bakar v . Samsuri Bin Booyman
[2016] 6 MLJ 96 CA Abang Iskandar JCA].

Cases in favour of the plaintiff

[19] In Kersah La’usin v. Sikin Menan [1966] 2 MLJ 20 HC Raja Azlan

Shah J (as His Majesty then was) said at page 22 –

“The first consideration is whether the plaintiff could enter into a

contract with the defendant’s (deceased) father involving a subject
matter which was then not subsisting in the sense that the said land
was still in his mother’s name. It is not disputed that he was the
sole beneficiary and that he was in such a position that when the
time came he could perfect the title of the purc haser. The fact that at
the date of contract the vendor had neither title nor power to call
for title is not of itself an answer to a suit of specific performance
by the purchaser: Brickles Snell [1916] 2 AC 599. Actual
possession of both the legal estate and any equitable rights are not
prerequisites so long as the vendor is in such a position that when
the time for completion comes he will be in a position to pass on
the title to the purchaser. In those circumstances the contract is
good but only in equity.”

[Emphasis added]

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[20] In Tan Swee Lan v. Engku Nik Binti Engku Muda & Ors [1973] 2
MLJ 187 FC, the Federal Court granted an order for specific
performance of an agreement to sell land entered into by
beneficiaries of an estate. The facts of the case can be seen from the
judgment of Ali FJ –

By a written agreement dated April 12, 1958, the respondents agreed

to sell and the appellant agreed to buy a piece of land held under
Grant 2483, Lot 2451 in the township of Kuala Trengganu. The
agreed price was $3,600 of which $750 was paid by the appellant as
down payment. The balance was to be paid when the land was
transferred to the appellant. On the date of the agreement the land
was part of the estate of the Engku Muda bin Engku Besar and all
the respondents were said to be beneficiaries of the estate.

[Emphasis added]

[21] In Silimuthu v. Amalu & Anor [1983] 1 MLJ 190 HC and [1981] 1
MLRH 509 HC Yusof Abdul Rashid J said at page 191 -

“It is plain that the defendants relied on their position as bare

beneficiaries when they entered into the said agreement to avoid
their obligations. Had the plaintiff applied for specific performance
for the transfer of the said land to him I would have t o consider
whether or not the agreement was binding on the estate. Such
deliberation, under the circumstances, may be deferred since it is not
an issue in the instant action. I need only consider the question
whether the defendants were legally bound to di scharge their
obligations under the agreement to apply for Letters of
Administration and thereafter to apply for permission of the court to
sell the said land to the plaintiff. To my mind, I have no doubt at all
that the defendants were legally competent t o enter into agreement in
the terms as stated above. I do not agree that the agreement was void
ab initio. There is no proposition of law, to my knowledge, which
prohibits beneficiaries of an estate of a deceased person from

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entering into an agreement of this nature. Instead there are
authorities which point to the fact that beneficiaries are competent
to enter into such agreement even before Letters of Administration
has been granted to them. In Tan Swee Lan v. Ungku Nik bte Ungku
Muda & Ors [1973] 2 MLJ 187 which is a Federal Court case, all
the beneficiaries of the estate entered into a written agreement,
agreeing to sell a piece of land which was a part of the estate of the
late Ungku Muda bin Ungku Besar. The High Court refused to allow
specific performance on the ground that the claim was statute-
barred. The Federal Court allowed the appeal and specific
performance was granted. In another Federal Court case of Halijah
v. Morad & Ors [1972] 2 MLJ 166 four beneficiaries entered into an
agreement to transfer a piece of land to the appellant, two of the
four were then minors. The Federal Court agreed with the trial judge
that as regards the two beneficiaries who had attained the age of
majority the agreement was binding on them but since the action was
taken well after the statutory period allowed under the law, the claim
for the transfer was statute-barred. Though the Federal Court in the
above cases did not deliberate on the incapacity or otherwise of the
beneficiaries to enter into such contract, there is no doubt that if the
Federal Court were of the view that the contract was void ab initio,
it would have said so notwithstanding that such view was never
canvassed by the respective parties.

As stated earlier the defendants raised a defence that they had no

legal right or interest at the said time to alienate or dispose the said
land" and they cannot possibly be in a position, legally, to enter into
contract with the plaintiff purporting to sell the said land. In answer
to this, I need only cite part of the speech of His Lordship Raja
Azlan Shah, J. [as he then was] in the case of Kersah La’usin v.
Sikin Menan [1966] 2 MLJ 20 at 22

“… The fact that at the date of contract the vendor had neither title
nor power to call for title is not of itself an answer to a suit of
specific performance by the purchaser: Brickles v. Snell [1916] 2 AC

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599. Actual possession of both the legal estate and any equitable
rights are not prerequisites so long as the vendor is in such a
position that when the time for completion comes he will be in a
position to pass on the title to the purchaser. In those circumstances
the contract is good but only in equity."

[Emphasis added]

[22] In Silimuthu v. Amalu & Anor [1983] 1 MLJ 190 HC and [1981] 1
MLRH 509 HC Yusof Abdul Rashid J also cited the universal
principle of law that the court would not allow a party to take
advantage of his own wrong -

In passing, assuming that it was wrong for the defendants to bind

themselves in such a manner as in the instant case (which in my
opinion it was not), in the interest of public policy, it is pertinent to
ask the question whether the court would allow the defendants to
take advantage of their own wrong. The defendants were fully aware
that when they entered into agreement they were bare benefici aries
and were in no position, without first obtaining Letters of
Administration and leave of the court, to dispose of the said land to
the plaintiff. His Lordship, Raja Azlan Shah, Acting C.J. (Malaya)
[as he then was] in delivering the judgment of the Federal Court
case of Woo Yew Chee v. Yong Yong Hoo [1979] 1 MLJ 131 said at
page 133—

"… It is a universal principle of law that the court would not allow a
party to take advantage of his own wrong (See Rede v. Fair 105 ER
1188, 1189)"

[23] In Anuar bin Abu Bakar v. Samsuri Bin Booyman [2016] 6 MLJ 96
CA, Abang Iskandar JCA said -

[14]… we agreed with the plaintiff’s learned counsel’s submission

that the defendant was competent to enter into an agreement such as
the joint venture agreement. In the case of Silimuthu v. Amalu &

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Anor [1983] 1 MLJ 190; [1981] 1 MLRH 509 (‘Silimuthu’s case’)
learned justice Rashid J had said at p 510 of the report, as follows:

It is plain that the defendants relied on their position as bare

beneficiaries when they entered into the said agreement to avoid
their obligations. Had the plaintiff applied for the spe cific
performance for the transfer of the said land to him I would have to
consider whether or not the agreement was binding on the estate.
Such deliberation, under the circumstances, may be deferred since it
is not an issue in the instant action. I need o nly consider the
question whether the defendants were legally bound to discharge
their obligations under agreement to apply for letters of
administration and thereafter to apply for permission of the court to
sell the said land to the plaintiff.

[15] At this juncture, we can see some parallel with our instant case
with regards to the factual matrix thus far. But what the learned
justice went on to say hit the nail on its head. His Lordship had
said:

To my mind, I have no doubt at all that the defendants wer e legally

competent to enter into agreement in the terms as stated above. I do
not agree that the agreement was void ab initio. There is no
proposition of law, to my knowledge, which prohibits beneficiaries
of an estate of a deceased person from entering i nto an agreement
of this nature. Instead there are authorities which point to the fact
that beneficiaries are competent to enter into such agreement even
before letters of administration had been granted to them .

[16] It would be apt for us to advert to the final order that was made
by the learned justice Rashid J in the Silimuthu ’s case like so:

In my judgement the agreement entered into by the defendants with

the plaintiff on July 20, 1980 was valid and the plaintiff was entitled
to the court order requiring the defendants to apply for the letters of
administration and subsequently to apply for permission of the court

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to sell the land to the plaintiff in accordance with the said
agreement. Accordingly, the defendants were ordered to apply for
letters of administration within one month of the date of this
judgment and within one month of the grant of the letters of
administration, duly extracted, the defendants were required to apply
for leave of the court to have the said land transferred to the
plaintiff.

[17] See also the decision of Raja Azlan Shah J (as His Majesty then
was) in the case of Kersah La’ Usin v. Sikin Menan [1966] 2 MLJ
20; [1964] 1 MLRH 528.

[18] In gist, the defendants in Silimuthu’s case were competent to

enter into the agreement with the plaintiff, although they were
merely beneficiaries, ‘even before letters of administration had
been granted to them.

[Emphasis added]

Case relied on by the defendants

[24] The defendants rely on Amanah Raya Bhd (representative for Cheng
Song Lim, deceased) v. Ong Chin Hoo [2020] 3 MLJ 463 CA. In this
case, the Court of Appeal struck out the buyer ’s suit for specific
performance and held at [2] that –

The vendors who were mere beneficiaries were not entitled to s ell
their future interest in the properties which they expected to inherit.
They should have waited until the grant of the letters of
administration was issued and after the appointed administrator
completed the distribution of the properties to them, befo re executing
any sale and purchase agreements in respect of the estate properties.

[25] The case of Amanah Raya, on the face of it, appears at first blush to
take a contrary view to the line of cases which I have set out above.

[26] However, upon closer reading, it is clear that the Court of Appeal in

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Amanah Raya decided based on the critical fact that the owners of
the properties in that case had passed away intestate, section 39 of
the Probate and Administration Act 1959 provides that when a
person passes away without leaving a Will all his property will first
vest in Amanah Raya Berhad [“ARB”] until the grant of letters of
administration. This means that before the estate is administered, the
property remains under ARB. On this basis, the Court of Appeal in
Amanah Raya decided that the letters of administration have to be
issued and the property distributed before the beneficiaries can sell
the subject land.

[27] The relevant extracts of the judgment of the Court of Appeal in

Amanah Raya are reproduced below -

[43] In order to determine whether beneficiaries are entitled to sell

their future interest in immovable property of the estate, we consider
the relevant legislation as to probate as provided for under the PAA
1959 (Revised 1972).

[44] The owners of the said properties, Chong Siew Koey and
Choong Siew Thean, both passed away intestate. Section 39 of the
PAA 1959 (Revised 1972) provides that when a person passes away
without leaving a will, all his property will first vest in ARB until
the grant of letters of administration. After the grant of letters of
administration, the deceased’s property will vest in the
administrator. This provision is set out below for ease of reference:

39. Vesting of property of an intestate

(1) Where a person dies intestate his movable and immova ble
property until administration is granted in respect thereof shall vest
in the Corporation in the same manner and to the same extent as it
vests in the Probate Judge in England.

(2) On the making of an order for a grant of administration by the

Court all such property shall vest in the administrator.

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[Note: the word ‘Corporation’ is defined as ARB in section 2
which is the interpretation provision of the PAA 1959 (Revised
1972).]

[45] The natural result of the sequence of s . 39 stated above where

property of the deceased first vests in ARB, then the administrator
of the deceased’s estate, means that before the estate is
administered, the property remains under ARB .

[46] As submitted by ARB, before any land of a deceased may be

sold, the personal representative of the deceased must obtain
permission of court. Section 60 of the PAA 1959 (Revised 1972)
differentiates between the power of sale granted to executors and
administrators. The former does not require court sanction to sell
property of the deceased. The latter requires court sanction to do so.
This is clear from a reading of the provisions of s . 60(3) and (4),
which are set out below for ease of reference:

(3) A personal representative may charge, mortgage or otherwise

dispose of all or any property vested in him, as he may think proper,
subject to any restriction which may be imposed in this behalf by the
will of the deceased, and subject to this section:

Provided that an executor may dispose of any property

notwithstanding any restriction so imposed, if he does so in
accordance with an order of the Court.

(4) An administrator may not, without the previous permission of

the Court —

(a) mortgage, charge or transfer by sale, gift, exchange or

otherwise any immovable property situate in any State and for the
time being vested in him; or

(b) lease any such property for a term exceeding five years.

[47] An important requirement to note in s. 60(3) and (4) is that

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before the executor or the administrator of the estate may sell the
property of the deceased, the property must first vest in them. This is
also seen in s. 68 of the PAA 1959 (Revised 1972) which provides
that the personal representatives of the deceased must hold the
property before proceeding to sell it or deciding to delay the sale:

68 Duties of representative

(1) On the death of a person intestate as to any property, the

property shall be held by his personal representatives —

(a) as to the immovable property upon trust, subject to section 60,

to sell the same; …

[48] Section 346 of the National Land Code (‘the NLC’) provides
that no personal representative of a deceased may sell land until his
name has been registered upon the title as representative, pursuant
to the procedure provided:

346 Registration of personal representatives

(1) The personal representative or representatives of any deceased

person may apply to the Registrar under this section to be
registered as such in respect of any land, or share or interest in
land, forming part of that person’s estate; and the Registrar, if
satisfied that any estate duty due in respect of the estate has been
paid, or a postponement of payment allowed in respect of the land,
share or interest in question, shall give effect to the application in
accordance with the provisions of sub-sections (3) and (4).

(2) Any such application shall be accompanied by —

(a) the grant of probate or letters of administration;

(b) if available, the issue document of title to the land or,

where the application relates to a lease or a c harge, the
duplicate thereof; and

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(c) such other documents or evidence as the Registrar may
require, or as may be prescribed.

(3) The Registrar shall give effect to any such application by

endorsing on the register document of title to the land to which, or
a share or interest in which, it relates a note of the date of death
of the deceased person and a memorial to the effect that the said
land, share or interest is vested in the applicant or applicants ‘as
representative’ or, as the case may be, ‘as representatives’.

(4) Every such memorial shall be signed and sealed by the

Registrar, and a copy thereof shall be made on the issue document
of title or, as the case may be, duplicate lease or charge, if sent
with the application or subsequently obtained by him.

(5) No personal representative or representatives shall be capable

of executing any instrument of dealing in respect of any land,
share or interest until it has become registered in his or their
name or names pursuant to this section.

(Emphasis added.)

[49] We emphasise that an application under s . 346 of the NLC

MUST be accompanied by the grant of probate or letters of
administration pursuant to s. 346(2) which utilises the mandatory
word ‘shall’. Therefore, at the risk of belabouring the point, until t he
grant of letters of administration, the personal representatives of the
deceased cannot even apply for their names to be registered upon the
issue document of title as provided for in s . 346(3), let alone sell the
deceased’s property.

[50] In this case, it is not disputed that the vendors were mere
beneficiaries of the estates of Chong Siew Koey and Choong Siew
Thean, who both passed away intestate. At the time the SPA was
executed, the grant of letters of administration had not been
obtained. We are of the view that beneficiaries were not entitled to

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sell their future rights in immovable property in the deceased ’s
estate.

[Emphasis added]

[28] The facts in our case are different from the facts in Amanah Raya.
Our case is not an intestacy case. D3 is the named beneficiary in the
Will of Koon Weng Hong [deceased]. Recitals A to C of the final
draft SPA clearly state that the Executor of the Will of Koon Weng
Hong was in the course of transferring the ¼ share of the said
deceased to D3. [Supporting Affidavit pdf page 99]. Amanah Raya
can therefore be distinguished on the facts.

[29] In addition, I note that the series of cases I have referred to above,
which held that a beneficiary to a deceased’s estate can enter into a
contract to sell his interest in the land which he will inherit, were not
referred to the Court of Appeal in Amanah Raya. If these cases were
so drawn to the attention of the Court of Appeal, the Court of Appeal
may well have come to a different opinion on the legal issue.

Two additional grounds against the defendants

[30] In my view, besides the principle that D3 is competent to enter into

the agreement to sell the property, the defendants are also not
allowed to raise the argument that D3 is not competent to enter into
the agreement to sell the Property as it is a universal principle of law
that the court will not allow a party to take advantage of his own
wrong. In addition, the defendants are estopped from raising the said
argument. I note that these two grounds were not raised by counsel
in Amanah Raya. I will deal with these two additional grounds one
by one.

The court will not allow a party to take advantage of his own wrong

[31] Raja Azlan Shah Acting CJ Malaya (as His Majesty then was) said in
Woo Yew Chee v. Yong Yong Hoo [1979] 1 MLJ 131 FC at 133 -

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It is a universal principle of law that the court would not allow a
party to take advantage of his own wrong (see Rede v. Farr 105 ER
1188 1189). This principle was in the early cases applied to grants
of leasehold interest where a lessee sought to take advantage of his
own breach of covenant by calling into operation a clause which
rendered the lease void in such an event. This principle has been
extended to contracts generally (see Abouloff v. Oppenheimer [1882]
10 QBD 295 303; Gallie v. Lee [1969] 1 All ER 1062 1081).

[Emphasis added]

[32] In my view, this universal principle of law must be applied in this

case. The Court cannot condone the defendants ’ act to rely on D3’s
own wrong [assuming it’s wrong which is not the case here] to evade
their contractual obligations.

The defendants are further estopped from raising the said argument

[33] In my view, the defendants are further estopped from raising the said
argument. I need only cite the Federal Court d ecision in Boustead
Trading [1985] Sdn Bhd v. Arab-Malaysian Merchant Bank Berhad
[1995] 4 CLJ 283 FC, where Gopal Sri Ram JCA said at pages 344 to
348 –

The time has come for this court to recognize that the doctrine of
estoppel is a flexible principle by which justice is done according to
the circumstances of the case. It is a doctrine of wide utility and has
been resorted to in varying fact patterns to achieve justice. Indeed,
the circumstances in which the doctrine may operate are endless …

The doctrine may be applied to enlarge or to reduce the rights or

obligations of a party under a contract: …

It has operated to prevent a litigant from denying the validity of an

otherwise invalid trust … It has been applied to prevent a litigant
from asserting that there was no valid and binding contract
between him and his opponent … It may operate to bind parties as

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to the meaning or legal effect of a document or a clause in a
contract which they have settled upon …or which one party to the
contract has represented or encouraged the other to believe as the
true legal effect or meaning: …

We would add that it is wrong to apply the maxim ‘estoppel may be

used as a shield but not a sword’ as limiting the availability of the
doctrine to defendants alone. Plaintiffs too may have recourse to it…

We take this opportunity to declare that the detriment element does

not form part of the doctrine of estoppel. In other words, it is not an
essential ingredient requiring proof before the doctrine may be
invoked. All that need be shown is that in the particular
circumstances of a case, it would be unjust to permit the
representor or encourager to insist upon his strict legal rights. In
the resolution of this issue, a judicial arbiter would, when making
his assessment of where the justice of the case lies, be entitled to
have regard to the conduct of the litigant raising the estoppel .

[Emphasis mine]

[34] In conclusion issue [1] is not triable.

Alleged triable issue [2] - The SPA has not been signed by the
defendants

What are the terms that need to be agreed before a binding contract
can arise in an exchange of correspondence?

[35] Issue [2] is not triable.

[36] A valid contract to sell can exist even if a SPA had not been signed
by the seller. What is important is that all the elements of a binding
contract exist. If the parties, the offer and acceptance, the property,
the price and the terms had been identified with sufficient certainty a
valid and enforceable contract had materialised between the parties.
[See paragraphs 20 - 21 Eng Song].

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[37] Even when the correspondence is ‘subject to contract’, [which is not
the case here] the court can always scrutinise the correspondence
between the parties to construe whether a contract had been made.
[See paragraphs 20 - 21 Eng Song].

Alleged triable issue [3] - There is no certainty as to the terms of sale

[38] Issue [3] is not triable.

[39] M/S MC Lai & Co the defendants’ solicitors had by an email dated
14- 03-2023 to M/S JP Chong & Co the plaintiff’s solicitors said
“Please be informed that our Client has agreed on the final draft .”
[See Enclosure 7 Supporting Affidavit pdf page 164 and Exhibit
SGB-8].

[40] The final draft SPA that was agreed to by the defendants ’ solicitors
was attached in the plaintiff’s solicitors’ earlier email dated 10-03-
2023 to the defendants’ solicitors. [See Enclosure 7 Supporting
Affidavit pdf page 117 and Exhibit SGB-7].

[41] Recitals A to C of the final draft SPA also clearly state that the
Executor of the Will of Koon Weng Hong was in the course of
transferring the ¼ share of the said deceased to D3. [See Enclosure 7
Supporting Affidavit pdf page 99].

[42] In conclusion, there is certainty as to the terms of sale.

Decision

[43] I allow Enclosure 6 and grants summary judgment under Order 81

Rules of Court 2012 against the defendants with costs.

[44] I allow prayer [a] with the addition of these words “dalam draf SPA
di Affidavit Sokongan Exhibit SGB-7” after the words “telah di
persetujui sebelum ini oleh defendan dan plaintif”.

[45] I allow prayers (b) and (d) but for prayer [d] the words “jumlah
wang pemulangan tersebut” are to be deleted.

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[46] I allow prayers (e) and (f).

[47] Costs of RM 8,000 subject to allocatur be paid by the defendants to

the plaintiff.

Dated: 13 SEPTEMBER 2023

(LEONG WAI HONG)

Judicial Commissioner
High Court of Malaya
Kuala Lumpur (NCVC 10)

COUNSEL:

For the plaintiff - Chong Jock Peng & Mohd Nurhazman Nurham; M/s J P
Chong & Co
(Kuala Lumpur))

For the defendant - Kayshanteny; M/s Lim, Wong & Co

(Kuala Lumpur))

CASES REFERRED TO:

Abouloff v. Oppenheimer [1882] 10 QBD 295 303

Amanah Raya Bhd (representative for Cheng Song Lim, deceased) v . Ong
Chin Hoo [2020] 3 MLJ 463 CA.

Anuar bin Abu Bakar v. Samsuri Bin Booyman [2016] 6 MLJ 96 CA.

Brickles v. Snell [1916] 2 AC 599.

Boustead Trading [1985] Sdn Bhd v. Arab-Malaysian Merchant Bank

Berhad [1995] 4 CLJ 283 FC.

Eng Song Aluminium Industries Sdn Bhd v. Keat Siong Property Sdn Bhd
[2018] 5 MLJ 380 CA.

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Gallie v. Lee [1969] 1 All ER 1062 1081

Halijah v. Morad & Ors [1972] 2 MLJ 166.

Kersah La’usin v. Sikin Menan [1966] 2 MLJ 20.

Rede v. Farr 105 ER 1188.

Silimuthu v. Amalu & Anor [1983] 1 MLJ 190 and [1981] 1 MLRH 509.

Tan Swee Lan v. Engku Nik Binti Engku Muda & Ors [1973] 2 MLJ 187
FC.

Woo Yew Chee v. Yong Yong Hoo [1979] 1 MLJ 131 FC.

LEGISLATION REFERRED TO:

Rules of Court 2012, O. 14, O. 81 r. 1

Probate Administration Act 1959, ss. 39, 60(3), (4), 68

National Land Code 1965, ss. 346

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