A buyer cannot claim misrepresentation where contractual terms are based on approximation, and failure to verify details prior to agreement subjects to caveat emptor principles.

[1] The plaintiff, Richard Curtis & Co Sdn Bhd previously known as Inter-Bell Realty Sdn Bhd ("the plaintiff") had commenced this action against the defendant seeking for the return of the sum of RM748,024.50, which sum was said to have been overpaid to the defendant pursuant to a sale and purchase agreement dated 16 March 2001 ("the agreement"). The subject matter of the agreement was a piece of land known as HS (D) 77734, Mukim Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur ("the subject land"). The plaintiff alleged that the defendant had only delivered land measuring 3003 square meters instead of 3602 square meters as stated in the agreement. Hence the plaintiff alleged that defendant had not conveyed land measuring 599 square meters the value of which worked out to be RM748,024.50 (RM4,381,123 divided by 3602 square meters = RM1,216.30 per square meter).

[2] The defendant denied liability and pleaded that she had strictly complied with all the terms and conditions stipulated in the agreement and had not in any manner misrepresented any material facts to the plaintiff as alleged by the plaintiff in its amended statement of claim ("ASOC"). In her defence to the plaintiff's claim the defendant had added a counterclaim alleging that the plaintiff had abused the process of court and or that the plaintiff had committed the "tort of abuse of process" with the intention to oppress and or intimidate the defendant. Therefore the defendant prayed for general damages for lost of reputation, emotional distress, suffering and mental torture, as well as interest, The defendant further claimed damages for the tort of abuse of process of court, exemplary and aggravated damages plus interest.

[3] The defendant did not live long to see through the whole process of this litigation as she had passed away on 25 April 2008. The defendant's son one Bakhtiar Ghazali bin Muhammad Ghazali @ Bachtiaer A Gazali filed an application to continue with the action and to be substituted for the defendant as the personal representative of defendant and continued to be so after order in terms of the application had been granted in his favour on 25 April 2011. For the purpose of this case Khatijah binti Abdul Majid would be referred to as the "defendant" and the personal representative of Khatijah binti Abdul Majid would be referred to as the "new defendant" respectively.

[4] This case proceeded by way of a full trial and two witnesses having testified for the plaintiff and six witnesses for the defendant. After having given much consideration to the evidence, both documentary as well as testimonial, and the submissions by all the learned counsels for the respective parties I find that the plaintiff had failed to prove its case on the standard required of it based on its pleaded case as stated in its ASOC, which was on the balance of probabilities Hence I dismissed the plaintiff's case with costs The defendant's counterclaim was also dismissed with cost for the same reason.

[5] Aggrieved by the said decisions both the plaintiff and the defendant appealed and cross-appealed to the court of Appeal Malaysia against the whole of the said decision.

The Documents

[6] At the outset of the trial parties have agreed for the following documents to be used:

Description

Document

i.

Bundle of pleadings

-

"A"

ii.

Common bundle of document

-

"B"

iii.

Statements of disputed facts

-

"D"

iv

Plaintiff's opening statement

-

"E"

v.

Defendant's opening statements

-

"F"

The Issues to Be Tried

[7] Parties could not agree to the issues to be tried. Hence I took the liberty to summarise the issues for this court's determination as follows:

(i) whether it was the intenti