A binding contract can exist despite a 'subject to contract' clause if subsequent conduct shows intent to be bound; specific performance is warranted for unique properties under the Specific Relief Act.

Atan Mustaffa Yussof Ahmad J:

[1] Enclosure 1 is allowed. Order in terms is given for prayers (a), (b), (c) and (f). Costs of RM15,000.00 is ordered for the applicant on a standard basis. My broad grounds are as below.

Jurisdiction Of The High Court Of Malaya In Kuala Lumpur

[2] The respondent raised a preliminary objection on the jurisdiction of this Court to hear the present application. The respondent contended that the proper forum should be the High Court in Sungai Petani, Kedah as the subject property is located in Kulim, Kedah and the respondent's place of business is also in Kulim, Kedah. The respondent submitted that based on s 23(1) of the Courts of Judicature Act 1964 , the High Court in Malaya shall have jurisdiction in civil proceedings where the cause of action arose, where the defendant resides or has its place of business, where the facts on which the proceedings are based exist or are alleged to have occurred, or where the land in dispute is situated, within the local jurisdiction of the Court . The respondent argued that on the facts, three out of the four connecting factors point towards the High Court in Sungai Petani, Kedah as the appropriate forum.

[3] In response, the applicant submitted that since the respondent had entered appearance in this proceeding and did not apply to transfer the matter to the High Court in Sungai Petani, the respondent must be taken to have submitted to the jurisdiction of this Court and is estopped from raising any jurisdictional challenge at this stage. The applicant contended that the KL High Court is the more appropriate forum as the applicant's office and its solicitors are located in Kuala Lumpur and the applicant's representative had signed the letter of offer in Kuala Lumpur. The applicant further argued that based on the nature of the application, which essentially involved the interpretation of documents, there was no necessity for any witness testimony and therefore no prejudice to the respondent for the matter to be heard in this Court .

[4] It is trite law that the jurisdiction of the High Court in civil proceedings shall be determined by reference to the factors stipulated in s 23(1) of the Courts of Judicature Act 1964 . In Sova Sdn Bhd v. Kasih Sayang Realty Sdn Bhd ; , the High Court held that the definition of "local jurisdiction" in s 3 of the refers to the territorial jurisdiction of the High Court in Malaya.

[5] The Court in Sova Sdn Bhd clarified that the High Courts located in the various States are merely branches of the singular High Court in Malaya, and each branch has concurrent jurisdiction to entertain any civil proceedings in Malaya, regardless of where the cause of action arose. This is based on art 121(1) of the Federal Constitution, which vests judicial power only in two High Courts - the High Court in Malaya and the High Court in Borneo. The Court went on to state that although jurisdiction exists, the Court before which a matter is instituted may not be the proper or convenient forum to determine the dispute. The choice of forum should enable parties to have easy access to Court and facilitate the speedy disposal of cases without causing undue hardship or inconvenience.

[6] Applying the above principles, I am of the considered view that the KL High Court is the proper forum to hear the present application. As rightly submitted by the applicant, the respondent had failed to raise any objection on the issue of jurisdiction when entering appearance in this action and did not take any steps to apply for a transfer of the proceedings to the Sungai Petani High Court . The respondent must therefore be deemed to have acquiesced to the jurisdiction of this Court and is estopped from raising this challenge as an afterthought at the hearing of the application.

[7] In any event, upon a careful consideration of the connecting factors, I find that the KL High Court is the more appropriate forum to determine th