Syed Agil Barakbah FJ:

This was an appeal by the six appellants against the decision of the High Court Judge at Kuala Lumpur dismissing their claims against the respondent with costs. The suits were consolidated by Order of Court dated 26 February 1982 and were heard together by the learned Judge.

As the plaintiffs in the Court below, each of the appellants filed a writ for specific performance of a purported sale agreement in which they alleged to have paid a booking fee of RM5,000 each to the respondent's clerk for the purchase of 3½ storey shophouses at the price of RM250,000 each. They also prayed for a Court order for the execution of the sale agreement with the respondent to enable them to purchase the house at the said price on the ground that they had been denied the opportunity and the right to execute proper sale and purchase agreements for the property which they had booked earlier when the phase 3 housing project was subsequently opened by the respondent to the public. The learned Judge rightly concluded from the evidence before the Court that the claim for specific performance was founded on the receipts issued by the respondent's clerk (DW1) for the payment of the booking fee and on the allegation that DW1 at the material time was acting as the agent for the respondent. The respondent in their defence denied that any contract was concluded or could be inferred. They contended further and in the alternative that there was no enforceable contract between the parties until the execution of proper sale and purchase agreements.

In considering the issue whether there was any valid and enforceable contract between the parties, the crucial point, that arose before the learned Judge was whether DW1 at the material time had authority from the respondent to accept bookings on its behalf from the appellants and whether the respondent had held out that DW1 was so authorised. The learned Judge concluded from the evidence and the surrounding facts and circumstances of the case that DW1 had no such authority on the ground that the acceptance of the appellants' cheques and the issue of the receipts by DW1 were his personal acts for which the respondent could not be held liable. Further, the Judge was satisfied that the respondent had not represented to the appellants that DW1 was authorised to accept bookings on its behalf.

The undisputed facts were that the respondent, a licensed housing developer, was at the material time involved in the construction and development of Taman Connaught at 5½ miles, Jalan Cheras, Kuala Lumpur. The development was in phases. Having completed phase 2, the respondent was contemplating to commence phase 3 which consisted, inter alia, of 66 shophouses to be constructed. The proposed price of each was RM250,000. The appellants came to know about it some time in July 1979 and on learning that one Mr. Liew (DW1) who was working in the respondent's office might be able to assist and arrange for the booking of the shophouses, the appellants approached DW1 in the respondent's office on separate occasions. They were told that the official booking had not yet commenced. However, the appellants issued cheques for RM5,000 each payable in the name of the respondent and handed them to DW1 who in turn issued typewritten receipts acknowledging the payments. DW1 kept the cheques which were not credited into the respondent's bank account until the day of the trial. The learned Judge accepted DW1 as a truthful witness whose evidence was substantially corroborated by that of the respondent's Manager DW2. He also concluded that the testimony of Lee Geok Tian (PW7), an independent witness who also booked for a shoplot about the same time as the appellants, helped to explain the true position. He has taken proper advantage of having seen and heard these witnesses and his conclusion on the facts are well supported by evidence. From the evidence as accepted by the learned Judge, the following facts came to light:

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