Failure to fulfill conditions precedent in a contingent contract renders it void, emphasizing the essence of time and obligation.

Introduction

[1] The Plaintiff's claim against the Defendants is for specific performance of a joint venture agreement (JVA) dated 5 July 2011 to develop a piece of land registered under the name of the 2nd Defendant held under GRN 11254, Lot 32292, Mukim Petaling, Kuala Lumpur ("the project"). The ancillary claims are for a loss of profits, a share of land acquisition compensation and special damages.

[2] The basis of the Plaintiff's claim is the unlawful and unilateral termination of the JVA by the Defendant on the alleged non-fulfilment of the condition precedent of the JV by the Plaintiff within the time stipulated.

[3] This case went for full trial where both parties relied on oral testimony as well as documentary evidence. The Plaintiff called 6 witnesses whereas the Defendants called 4 witnesses. The documentary evidence is contained in the Bundle of Documents filed.

Brief Facts

[4] The Plaintiff is a private limited company incorporated under the Companies Act 1965 whereas the 1st Defendant is a statutory body established under the Sarawak Foundation Ordinance 1971 and the 2nd Defendant is a body incorporated under the State Financial (incorporation) Ordinance 1948.

[5] Under the JVA the Plaintiff was assigned to erect, at its own cost, a building known as "Wisma Sarawak" and in consideration would be given the remaining portion of the land for its own use.

[6] The subject matter of dispute in this case is the construction of the Wisma Sarawak within the stipulated time frame after a number of condition precedent were fulfilled within the time stipulated.

[7] Amongst the condition precedent was for the 2nd Defendant to execute a Power of Attorney in favour of the Plaintiff to execute and perform all acts in relation to the JVA. This was duly executed on 5 July 2011.

[8] Another condition precedent was for the Plaintiff to remove all the squatters on the land. This was ultimately done but not within the time stipulated. The Defendant agreed to extend the time of removal of the squatters.

[9] Despite this extension the Plaintiff still failed to remove the squatters necessitating the entering of a supplementary agreement between the Plaintiff and the Defendants to extend the time of removal of squatters by another 18 months until 5 January 2014.

[10] Eventually the squatters were removed by the end of 2014. Upon the removal of the squatters the Plaintiff obtained an approval of the Development Order on 5 March 2015 subject to amongst others a payment of RM3, 693,000 development charges.

[11] However, the project came to a halt on a notice that the part of the proposed land would be acquired by the Federal Government through Prasarana Malaysia Berhad for the construction of the Mass Rapid Transit Line 2. After a prolonged negotiation it was determined that only portion of the land referred to as the Layby area would be affected. As a result of the acquisition the 2nd Defendant was given a compensation of RM23,723,817.00.

[12] The decision to acquire the Layby area is the actual source of the dispute between the Plaintiff and the Defendants. It is the Plaintiff's stand that the Wisma Sarawak had to be redesigned to accommodate the acquisition. The Defendants are of the view that the original design of Wisma Sarawak can be maintained, as the acquired land did not encroach any part of the building but would only affect a small portion of the land which was at the back of the building.

[13] This disagreement between the parties allowed the time frame for construction of Wisma Sarawak to be lapsed as contained in a supplementary agreement dated 16