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2021 MarsdenLR 789
HIGH COURT MALAYA KUALA LUMPUR
ASIA NEW VENTURE CAPITAL HOLDINGS SDN BHD – Appellant
Versus
MALAYSIA PACIFIC CORPORATION BERHAD – Respondent
[Writ Summons No: WA-22NCC-41-01-2020]
Court established that the unconditional date in a sale agreement can differ based on contract conditions, providing clarity on party obligations regarding costs prior to that date.
Headnote:(A) Sale and Purchase Agreement – Conditions precedent – Unconditional date – Plaintiff claimed RM4,395,210.97 as cost of funds; the court allowed RM2,726,955.71. Unconditional date determined to be 24 September 2019 based on contractual obligations. Defendant's liability established for early redemption payments. (Paras 30, 44, 70)
(B) Burden of Proof – The burden lies on the plaintiff to prove entitlement of cost of funds on a balance of probabilities. (Paras 69)
Facts of the case: Plaintiff purchased property for RM189,000,000. Defendant counterclaimed payments based on tenancy agreement. Both parties disputed the unconditional date and cost claims.
Findings of Court: Plaintiff entitled to claim costs incurred for early payment of redemption, RM2,726,955.71 awarded.
Issues: Determination of unconditional date and entitlement to cost of funds.
Ratio Decidendi: Court held that JV arrangements fulfilled obligations on the part of the Defendant; absence of requirement for estate caveat notification did not estop the Plaintiff's claim.
Result: Judgment granted to the Plaintiff.
JUDGMENT
Introduction
[1] This claim revolves and relates to a purchase by the Plaintiff from the Defendant of a building known as Wisma MPL for a purchase price of RM189,000,000.00 through a Sale and Purchase Agreement dated 11 March 2019 ("the SPA").
[2] The Plaintiff's claim is for a sum of RM4,395,210.97 which it contends the Defendant is liable to pay it being cost of funds incurred by the Plaintiff in releasing the redemption sum earlier.
[3] The Defendant denies the Plaintiff's claim. The Defendant also launched a counterclaim against the Plaintiff for various payments based on an alleged agreed Tenancy Agreement between the parties which was to be effective post completion of the sale of Wisma MPL.
[4] Upon conclusion of a full trial with a total of 5 witnesses testifying, and upon consideration of the evidence and respective submissions, I allowed the Plaintiff's claim but for a lower amount of RM2,726,955.71 only. I had also allowed the Defendant's counterclaim in part for the sum of RM34,895.00.
[5] The Plaintiff has not appealed against my decision to order such lower amount nor on my allowing part of the Defendant's counterclaim. The Defendant however has appealed against my decision in allowing the Plaintiff's claim.
[6] As such, I will herein below set out the salient facts, the rival contentions/submissions and reveal my reasons for allowing the Plaintiff's claim.
The Facts
[7] The background facts relating to the sale and purchase of Wisma MPL and the contents of the agreements between the parties are largely undisputed and are as encapsulated in the Statement of Agreed Facts which are as follows:
7.1 By a Sale and Purchase Agreement in writing dated 11 March 2019 (hereinafter referred to as "the SPA"), the Plaintiff agreed to purchase and the Defendant agreed to sell the specific property held under Geran 9980, Lot 1203, Section 57, Bandar of Kuala Lumpur, Daerah of Kuala Lumpur and Negeri Wilayah Persekutuan Kuala Lumpur consisting of land and units in the building known as Wisma MPL as identified in the SPA (hereinafter referred to as "the Property") for the purchase price of RM189,000,000.00 (hereinafter referred to as "the said purchase price") which was payable by the Plaintiff to or for the benefit of the Defendant in accordance with the mechanism as set out in the SA;
7.2 At the time of execution of the SPA, the relevant land and buildings erected thereon were charged to RHB Bank Bhd (hereinafter referred to as "RHB") by way of security for loans granted by RHB to the Defendant;
7.3 The SPA was subject to conditions precedent which, inter alia, provided that:
a. The Defendant was to obtain the approval of its shareholders for the disposal of the Property as well as the approval of all other relevant authorities. This condition precedent was fulfilled upon approval of the Defendant's shareholders being obtained at an Extraordinary General Meeting held on 28 August 2019;
b. The Plaintiff was to obtain the approval of the EPU if required. This condition precedent was fulfilled upon approval of the EPU being obtained vide a letter dated 12 July 2019;
c. The units held by ASA Enterprises Sdn Bhd and Oriental Pearl City Properties Sdn Bhd which were to be sold to the Plaintiff under the SPA were to be assigned to the Defendant for the purposes of such sale. This condition precedent was fulfilled through the registration of Power of Attorney documents both dated 7 March 2019 vide Kuala Lumpur High Court, Registration No WA-SKW(IR)-9764-03/2019 and WA-SKW(IR)-9763-03/2019;
d. The Defendant was to obtain approval from the High Court pursuant to s 472 of the Companies Act 2016 for the sale of the Property to the Plaintiff (hereinafter referred to as "The Section 472 Validation Order"). This condition was fulfilled upon the granting of the s 472 Validation Order dated 3 April 2019 vide Kuala Lumpur High Court Post Winding Up No WA-28PW-222-03/2019;
e. The Joint Management Body of Wisma MPL (hereinafter referre
