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