Introduction

1. We heard both the above appeals together as they earlier seem to revolve around the same issues of law relating to frustration of contract and the same vendor Silver Concept Sdn. Bhd. being the common party. In the first appeal Civil Appeal No. W-02-555-2000 Brisdale Rasa Development Sdn. Bhd. (the First Appeal) is named as respondent whereas in the second appeal Civil Appeal No. W-02-178-2001 Maxisegar Sdn. Bhd. (the Second Appeal) is the appellant. Having heard arguments of counsel for the respective parties over several days we reserved our judgment.

2. My learned brother Abdul Kadir Sulaiman JCA who chaired the panel of this court had graciously given me his judgment in draft a few days before we sat to deliver our decision on 5.5.2005. Upon studying the said draft I had my misgivings on the reasoning and outcome of the First Appeal and was inclined to allow the respondent's cross-appeal. I indicated to my learned brother that I ' would be dissenting and would prepare my dissenting judgment in due course. As regards the Second Appeal, I expressed my concurrence with the finding and conclusion arrived at as well as the reasons therefor.

3. Unfortunately I was not ready with my judgment when we sat to deliver our majority decision on the First Appeal and unanimous decision on the Second Appeal. Now I am. This is my decision on both appeals.

CIVIL APPEAL NO. W-02-555-2000 - The First Appeal

4. This is a partial appeal by Silver Concept Sdn Bhd (the Appellant) against Brisdale Rasa Development Sdn. Bhd. (the Respondent) on the low quantum of damages for breach of contract awarded by the learned trial Judge. The Respondent is also cross -

appealing to reverse the entire finding of the learned Judge dismissing its claim for a declaration that the said contract was terminated for non-fulfilment of the condition precedent or for frustration. The High Court judgment as reported in (2001) 1 AMR 1087 was arrived at after a full trial.

5. At the hearing of the appeal, we directed the learned counsel for the Respondent to address us first on the cross-appeal in view of the fact that the opposing claims between the parties arose from the same transaction and such determination would settle the issue of liability between them. We only heard the Appellant's quantum appeal after the response of its counsel on the liability question.

Background

6. The dispute is over the sale of three pieces of land in Batang Kali, Selangor with a total area of 397.2 acres (the said land) with the Appellant as the vendor and the Respondent as the purchaser. By an agreement dated 31.3.1997 (the Agreement) the Appellant agreed to sell and the Respondent to purchase the said land for the price of RM75,468,000 upon the terms and conditions contained therein. The conversion of the category of use of the said land had been approved for the development of a comprehensive township with the premium therefor contemplated to be paid from a portion of the purchase money. The transaction was not however completed by the Respondent for reasons the cross appeal is concerned with.

Uncontroverted Facts

7.The Respondent, a property developer, is at all material times a wholly owned subsidiary of Pembangunan Brisdale Sdn. Bhd. which in turn is a subsidiary of a public company Brisdale Holdings Bhd. The Appellant is the registered proprietor of the said land is also a subsidiary of a public company Promto Bhd.

8.It was envisaged in the Agreement that the Respondent would require a loan from financial institutions to enable it to complete the said purchase (see Recital 7 and Clauses 3.1, 4.3, 4.6 and 6.2 of the Agreement). A syndicated loan of RM90,000,000 was arranged by the financiers Aseambankers Malaysia Bhd. for the purpose, and a Loan Facility Agreement was executed by the Respondent within the stipulated time on 4.11.1997. It provides for RM50,000,000 as a term loan for the said purchase and RM40,000,000 as bridging finance and revolving credit f