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2021 MarsdenLR 1026
HIGH COURT MALAYA SHAH ALAM
NEW DESIGN & PRINTING SDN BHD – Appellant
Versus
PRO-LEGEND ENTERPRISE SDN BHD – Respondent
[Originating Summons No: BA-24NCVC-1260-11/2020]
The court emphasized the necessity for the Plaintiff to meet contractual obligations, including GST payment, before the Defendant could be compelled to execute the Memorandum of Transfer.
Headnote:(A) Contracts Act 1950 – Section 38(1) – Power of Attorney Act 1949 – Non-payment of Goods and Services Tax (GST) – Originating Summons for specific performance based on a failed execution of a Memorandum of Transfer (MOT) under the Sale and Purchase Agreement (SPA) – Plaintiff claimed the Defendant's failure to execute MOT after full payment was unconscionable – Defendant, as registered proprietor, claimed contractual obligations remained with the Developer – Court found Plaintiff in default under the SPA terms, specifically regarding GST payment obligations. (Paras 27-30, 41-45)
Facts of the case: The Plaintiff sought relief for specific performance against the Defendant for failure to execute MOT despite full payment and claimed the right to title without GST payment, amidst a complex tripartite arrangement involving the Developer.
Findings of Court: The Plaintiff was responsible for paying the GST as stipulated in the SPA; hence, the Defendant was not in breach. The SPA and Power of Attorney obligations were clearly defined between parties.
Issues: Whether the Defendant was contractually obliged to execute the MOT in favor of the Plaintiff amid GST payment disputes and the legal consequences of their contractual obligations.
Ratio Decidendi: The court upheld the integrity of the SPA, emphasizing that the Plaintiff must fulfill obligations, including GST, before title transfer could occur.
Result: The OS is dismissed with costs.
JUDGMENT
[1] The Plaintiff commenced this Originating Summons against the Defendant for the following reliefs:
1. An order for specific performance against the Defendant to effect the transfer in favour of the Plaintiff pursuant to a Sale and Purchase Agreement dated 12 September 2013 (hereinafter referred to as SPA) to purchase a 2 ½ storey semi-detached factory at Jade Hills i-Park at Bukit Angkat, Kajang Selangor under individual title HS(M) 27118, Lot PT 77042, Mukim Kajang, Hulu Langat, Selangor (the said property);
2. The Defendant to sign or the Deputy Registrar/Senior Assistant Registrar of the Court is authorized to sign any documents on behalf of the Defendant to give effect to the terms of the SPA including but not limited to one Form 14A (Memorandum of Transfer) under the NLC and any application for the permission of transfer (if applicable) in favour of the Plaintiff within 7 days from the date of this Order; and
3. The Defendant shall handover the duly executed Form 14A in favour of the Plaintiff together with the original land title for the said Property to the Plaintiff within 7 days from the date of this order;
4. In lieu of para 2 above, that general damages from and/or in relation to the breach of SPA by the Defendant are to be assessed and be paid to the Plaintiff;
5. And other reliefs deemed fit and proper by this Court.
[2] After considering the cause papers, the exhibits and after deliberation of the submissions by both parties, this Court dismissed the Plaintiff's application with costs. Dissatisfied, the Plaintiff filed an appeal to the Court of Appeal. Herewith are the grounds for that decision.
The Parties And Background
[3] Pursuant to a tripartite SPA dated 12 September 2013 the Plaintiff has agreed to purchase from the Defendant and developer the said property at the purchase price of RM2,788,888.00. To facilitate the purchase of the said property the Plaintiff applied for a loan facility form Maybank Islamic Bhd.
[4] The Defendant is the registered proprietor of the land upon which the said property was built. The subject matter of the said property is a factory built on industrial land.
[5] The developer is Pro-Legend Development Sdn Bhd (the developer). Vide a Power of Attorney dated 17 April 2012 the Defendant appointed the developer.
[6] The contractual obligations of the parties will be referred to in further detail later in this judgment.
[7] It is provided in cl 17.1 of the SPA that vacant possession shall be delivered within 36 months from the date of the SPA, which date is on 12 September 2016. It is not disputed that vacant possession was only given on 21 June 2018. There was a delay of almost 2 years and liquidated damages is due and owing to the Plaintiff.
[8] On or around 16 January 2020 the Developer informed the Plaintiff through its solicitor's letter dated 16 January 2020 that the individual title for the said Property has been issued.
[9] The Plaintiff made several telephone calls to the Defendant and the Defendant's solicitors to enquire on the transfer of title in favour of the Plaintiff but was informed that transfer of title would only be carried out upon payment of the Goods and Services Tax (GST) by the Plaintiff.
[10] The Plaintiff through its solicitors issued a letter dated 19 February 2020 to the Defendant on the basis of it being the proprietor of the development to request for the specimen of the memorandum of transfer (MOT) under the NLC 2020.
[11] According to the Plaintiff it has made full payment of the Purchase Price and fulfilled all of its obligations under the SPA, the Defendant has failed, refused and/or neglected to execute the MOT in favour of the Plaintiff. Hence the filing of this OS.
The Plaintiff's Contentions
[12] It is the contention of the Plaintiff that although it has fulfilled its obligations as provided in cl 3.1(1) of the SPA to settle the purchase price in full, nonetheless as at the date of filing of this claim, the Defendant has failed to execut
