Defendants are not liable for fees contingent on project approval that was not obtained, emphasizing contractual conditions precedent and the importance of clear contractual obligations.

Eddie Yeo Soon Chye JC:

[After Full Trial]

Background

[1] Preceding the commencement of this trial, Plaintiff's counsel informed Court that parties have agreed that documents filed in Encls 41 and 49 to be put as Part B documents and marked as B1 and B2 respectively. The Plaintiff's counsel made an oral application to amend the writ and all documents pertaining to the Plaintiff's name from "Tan Kok Soon" to "Termizi Tan Kok Soon". The Court allowed this application as the Defendants' counsel have no objection.

[2] The Plaintiff's claim in a nutshell are as follows:

(a) 2.5% finder's fee on the total Gross Development Value (GDV) of the development project on Risda's two plots of land known as Lot 169 and 170, Section 89, Jalan U-Thant, Kuala Lumpur. The Defendants paid the Plaintiff the RM250,000.00 as initial payment. The Developer for the said project is a company known as Fahad Holdings Sdn Bhd (later known as KOF Holdings Sdn Bhd).

(b) RM19,500.00 per month for salary allowance and other benefits for 3 years amounting to RM19,500.00 x 36 months = RM702,000.00.

[3] The Defendants contended that they are only liable to pay under the said Letter of Undertaking provided that their application for a development order to build 165 unit of apartments (11 storey) plus 2 storey of commercial units on the said Land as approved by Dewan Bandaraya Kuala Lumpur (DBKL) (B2 p. 3). The approval is a "condition precedent to their liability under the said Letter of Undertaking. The application for the Development Order was to build the said 165 units of apartment plus 2 storey of commercial units was rejected by DBKL vide the Notis Penolakan dated 9 March 2015 (B1 p 1). Therefore, the Defendants claimed that they are not liable to pay the Plaintiff under the said Letter of Undertaking.

[4] The Corporate Information (B1 p 61) of KOF Holdings Sdn Bhd (formerly known as Fahad Holdings Sdn Bhd.) on 8 September 2016 reveals that Ong Boon Hee (DW4) is a Director and shareholder of KOF/FHSB. The 1st Defendant was a Director and shareholder of PTS Properties Sdn Bhd (PTS) (now in liquidation). Both the Defendants were Directors of Yuten Development Sdn Bhd (B1 p 31). The 2nd Defendant is a shareholder (30% shares) and PTS (55% shares) as reflected in B1 p 32.

Evidence Of The Plaintiff

[5] The Plaintiff (PW1 in Encl 54) referred to the Letter of Undertaking and state that the finder's fees of 2.5% of the total gross development value of the project to be paid upon the Sales and Purchase Agreement of the sold units between the Vendor and the Buyers. The deal was between Pihak Berkuasa Kemajuan Pekebun Kecil Perusahaan Getah (Risda) and Fahad Holdings Sdn Bhd for Fahad to build 19 units of villas comprising of 7 units of Type A and 12 units of Type B. Reference is made to Risda's Letter of Intent dated 25 July 2014 (B1 pp 15 - 23). Until and unless the villas are actually sold, the Plaintiff was not entitled to any payment from the Defendants.

[6] In his evidence, the Plaintiff states the mathematical calculation of the 2.5% finder's fee, assuming all the 19 villas were to be built and sold based on the total gross development value (GDV) is RM141,950,000.00 x 2.5% = RM3,548,750.00. After deducting the initial payment of RM250,000.00 made to the Plaint