The obligation to deliver a document title as specified in a contract must be clear and cannot be implied beyond the explicit terms agreed upon.

Introduction

[1] This appeal relates to a decision of the Shah Alam High Court given on 8 May 2013 whereby the defendant Perbadanan Kemajuan Negeri Selangor (PKNS) was ordered to deliver up to the plaintiff Selangor Country Club Sdn Bhd (SCCSB), the original document of title to the subject land with the category of land use "Bangunan" and subject to the express condition "Bangunan Perniagaan" by 7 January 2014 failing which PKNS is to pay SCCSB RM161,252,586.00 in damages.

[2] In this judgment, the appellant shall be referred to as PKNS and the respondent as SCCSB respectively.

Brief Account Of The Salient Facts

[3] On 20 December 1994, PKNS entered into an agreement ("the 1994 Agreement") with Selangor Polo & Equestrian Centre Sdn Bhd ("SPEC") for the sale of a piece of land known as Section 10 Area 6 of Pusat Pertumbuhan Baru Sg Buloh, Mukim Sungai Buloh, Daerah Petaling, Selangor DE comprising of approximately 50 acres ("the land").

[4] Pursuant to an agreement entered on 23 September 1999 ("the 1999 Agreement") between PKNS of the one part, SPEC of the second part and SCCSB of the third part, SPEC, with PKNS's consent, agreed to sell a portion of the land measuring approximately 30.70 acres ("the Club Land") upon the terms and conditions therein contained. SCCSB is a wholly owned subsidiary of SPEC.

[5] For the purposes of this appeal, the pertinent clauses in the 1999 Agreement are as follows:

Clause 1.1

The vendor with the consent of the Corporation hereby agrees to sell and Purchaser hereby agrees to purchase the Club Land free from all encumbrances whatsoever and with vacant possession but subject to all conditions of title whether express or implied affecting the same and to any restrictions in interest applicable thereto.

Clause 3.1

As soon as practical after the execution of this agreement, the Corporation and/or the vendor shall use their best endeavours to cause the issuance of the separate document of title to the Club Land in favour of the vendor to facilitate eventual transfer to the purchaser or alternatively cause the separate document of title to be issued directly in the name of the purchaser.

Clause 3.2

In the event that the separate document of title is issued in the name of the vendor and the approval of the State Authority is required for the transfer of the Club Land to the Purchaser, the Corporation and/ or the vendor shall apply for and obtain such State Approval in favour of the purchaser.

Clause 3.3

The Corporation will pay the premiums payable to the State Authority to facilitate the issuance of the separate document of title to the Club Land abut in the event that the purchaser shall, subsequent to the execution of this agreement, make or apply for any change in the category of land use of the Club Land from that as currently stated in the Layout Plan annexed hereto as ANNEXURE A, the Purchaser shall pay for the different or the additional premiums payable arising from such change in the category of land use from the existing use to such other use.

Clause 5

Each party hereto shall be entitled to the remedy of specific performance against the other in the event of a failure by any party to perform its obligations under this agreement.

[6] On 22 November 2010, the document of title in respect of a portion of the Club Land comprising an area of approximately 6.88 acres was issued. According to the document of title, the category of land use is stated as "Bangunan" and express condition as "Bangunan Perniagaan".

[7] The dispute between PKNS and SCCSB rela