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2021 MarsdenLR 494
HIGH COURT MALAYA JOHOR BAHRU
COUNTRY GARDEN PACIFICVIEW SDN BHD – Appellant
Versus
ANAND RAJ GIRI HARIPASAR GIRI – Respondent
[Civil Appeal No: JA-11BNCvC-12-10/2020]
A sale and purchase agreement is effective upon acceptance and initial payment, and a purchaser cannot demand refunds after repudiating the contract.
Headnote:(A) Housing Development (Control and Licensing) Act 1966 – Housing Development (Control and Licensing) Regulations 1989 – Sale and Purchase Agreement (SPA) – Dispute over effective date of SPA and sales form – Plaintiff sought refund for purchase cancellation – Court determined SPA effective from 11 October 2017 as initial payment signifies contract formation – Plaintiff had repudiated SPA when he refused to continue – Upholding Defendant's right to terminate based on Deed of Revocation and associated contractual clauses. (Paras 5, 10, 20-22)
(B) Contract Law – Effective contract formation and implications of rescission – Courts will evaluate intentions and adherence to agreements made – The Plaintiff's unilateral cancellation does not negate contractual obligations previously established. (Paras 26, 24)
Introduction
[1] This was an appeal ("this Appeal") by the Appellant against the decision of the learned Magistrate on 12 October 2020, who allowed the Respondent's claim. For ease of reference, the Appellant and Respondent will be referred to respectively as the Defendant and Plaintiff.
The Background Facts
[2] On 11 October 2017, the Plaintiff signed a sale and purchase agreement ("SPA") with the Defendant for the purchase of Parcel E-37-11, Laman Damai Satu ("the Property") for the purchase price of MYR670,384. Together with the SPA, the Plaintiff had also signed a Sales Form, Special Promotional Package, and Reminder; and paid an initial payment of MYR10,000 ("the Deposit"). The Plaintiff continued to make another payment on 9 November 2017, and two more on 16 April 2018, resulting in a total of MYR80,445.20. The Defendant, however, had signed the SPA only on 7 August 2018.
[3] Sometime in August 2018, the Plaintiff had changed his mind about the contract and refused to proceed with it. As a result thereof, the Defendant sent a Deed of Revocation to the Plaintiff which he had signed on 18 January 2019. In accordance with the Deed of Revocation, after deducting from the total sum of MYR80,445.20, 10% of the purchase price in the amount of MYR67,038.40, together with costs and fees in the amount of MYR4,491, incurred by the Defendant, a sum of MYR8,916.68 was returned to the Plaintiff.
[4] The Plaintiff, in filing an action against the Defendant, claimed that, pursuant to clause (f) of the Sales Form, only a deduction of MYR500 should have been made, and that he was entitled to the return of the amount of MYR79,945.20. The learned Magistrate allowed the Plaintiff's claim. As a result thereof, the Defendant appealed to this Court, which appeal was allowed for the following reasons.
Contentions, Evaluation, And Findings
The Effective Date Of The SPA
[5] The Plaintiff's case was pivotal upon the effective date of the contract between the parties, that is, whether it took effect before or after the Plaintiff had indicated that he no longer wished to be bound by it. The crucial issue, therefore, was whether the SPA took effect from 11 October 2017 or 7 August 2018, and if the Sales Form took precedence over the SPA.
[6] The Plaintiff insisted that 7 August 2018 was the relevant date, which was when the Defendant had signed the SPA, and as such, the Plaintiff claimed that he had 'cancelled' the purchase pursuant to clause (f) of the Sales Form, and was, therefore, entitled to a refund of MYR79,945.20. Clause (f) reads:
f. In the event of any cancellation of purchase herein by me/us for any reason whatsoever, I/we hereby confirm and agree that you shall be entitled to charge 5% deposit as administrative fee and the balance of the deposit will be refunded to me/us free of interest and thereafter I/we shall have no claims whatsoever against you and/or the Property and you shall be entitled to deal with Property in any manner you deem fit without further reference to me/us.
[7] The Defendant, however, contended that the SPA had already come into force on 11 October 2017, when the Plaintiff had signed it and made the initial payment.
[8] The Plaintiff averred that the learned Magistrate had made a finding of fact that the terms of the Sales Form prevailed over the SPA, as the termination of purchase of the Property was done by the Plaintiff before the date of SPA, and that this Court should be slow in disturbing such finding of fact.
[9] In my view, the learned Magistrate had merely drawn an inference from the fact that both the Sales Form and SPA were signed by the Plaintiff on 11 October 2017, but that the Defendant had signed the SPA only on 7 August 2018. On this point, I found instructive the Court of Appeal case of China Airlines Ltd v. Maltran Air Corp Sdn Bhd (formerly Known as Maltran Air Services Corp Sdn Bhd) and Another Appeal, , where a distinction was made between a finding of a specific fact which dep
