Abdul Wahab Patail J:

The Agreed Facts

The defendant is a company with a business address at No. 10. Jalan 1/70D Off Jalan Bukit Kiara, 60000 Kuala Lumpur. The defendant is a developer of and manages a golf and country club known as Kuala Lumpur Golf and Country Club ("the club").

The Club has issued a brochure (as referred to at p. 332-350 of agreed bundle of document (s. 1)). Facilities and features of the club as listed in the said brochure included inter alia, library, health centre, 100 covered car parks, 500 open car parks, 4 tennis courts and a practice court.

At the material time, the club had also issued a Prospectus (as referred to at p. 360 of agreed bundle of document (s. 1)). Facilities and features of the club as stated in the said prospectus shall include inter alia,library, health centre, 100 covered car parks, 500 open car parks, 4 tennis courts and a practice court.

The plaintiff had applied to become a member of the club by filling up an application form provided by the club (as referred to at p. 28-30 of agreed bundle of document (s. 1)).

The defendant has on 9 August 1993 accepted the plaintiff's application to become a member of the club (as referred to at p. 29 of agreed bundle of document (s. 1)).

The purchase value of Individual License Certificate (membership) of the club applied by the plaintiff is RM90,000. The plaintiff has paid a down payment of RM15,000 when submitting the application form to the club. The balance of RM75,000 was paid to the club by way of a fixed loan obtained by plaintiff from D & C Bank.

The club has issued statements under s. 90 of the Companies Act 1965 dated:

(i) 18 March 1993 (as referred to at p. 1-27 of agreed bundle of document (s. 1));

(ii) 30 September 1993 (p. 38-91 of agreed bundle of document (s. 1));

(iii) 14 April 1994 (p. 113-160 of agreed bundle of document (s. 1));

(iv) 6 May 1997 (p. 164-237 of agreed bundle of document (s. 1)); and

(v) 13 April 2002 (p. 246-359 of agreed bundle of document (s. 1))

which were circulated to all club members providing a detailed account of the club's state of finance, facilities and development progress.

To date, 100 covered car parks, 4 tennis courts and a practice court have not been constructed at the club.

The plaintiff had lodged a written complaint to the defendant regarding the non-existence of the above-said facilities in his letter dated 4 April 1997 (as referred to at p. 163 of agreed bundle of document (s. 1)).

The club has a gymnasium with shower, changing rooms and sauna facilities and 440 open car parks.

By this action plaintiff seeks orders as follows:

(i) A declaration that the agreement for the purchase of membership be annulled;

(ii) Return of RM90,000; or alternatively

(iii) Damages;

(iv) Interest; and

(v) Costs.

His complaint is based upon misrepresentation as follows:

(i) LIBRARY: the brochure and prospectus represented that there will be a library, but no library is provided.

(ii) HEALTH CENTRE: the brochure represented that there will be a gymnasium and a health centre but only a gymnasium and a massage facility was provided.

(iii) CAR PARKS: the brochure represented there will be 110 covered car parks and 500 open car parks.

(iv) TENNIS AND A PRACTICE COURT: the brochure represented there will be four tennis courts and one practice court between the driving range and the clubhouse, but none was provided.

It is trite law that for such action in misrepresentation to succeed it must be shown there was 1) a representation; 2) the plaintiff was induced by it; 3) the representation is untrue; and 4) it is a suitable case for recission. To recover damages, loss must be proven: Letchemy Arumugam v. N Annamalay; [1982] 2 MLJ 198. If the representation was merely innocent, the affected party is entitled only to a recission: Abdul Razak Datuk Abu Samah v. Shah Alam Properties Sdn Bhd & Anor[1999] 3 CLJ 231CA. It is equally trite that mere exaggeration is not representation, but if it has the object and res