The failure to pay the full balance purchase price under a Sale and Purchase Agreement constitutes a fundamental breach, allowing for valid termination of the contract.

JUDGMENT

Azhahari Kamal Ramli JCA:

A. Introduction

[1] These are the appeals by the plaintiff in the court below against the decision of the learned High court Judge (HCJ) namely:

a. Appeal No B-02(NCvC)(A)-939-05/2022 (appeal no 939) against the decision of the learned HCJ in dismissing the plaintiff/appellant Originating Summons no BA-24NCvC-1485-10/2019 (OS 1485).

b. Appeal No B-02(NCvC)(A)-942-05/2022 (appeal no 942) against the decision of the learned HCJ in dismissing the plaintiff/appellant Originating Summons no BA-24NCvC-1031-09/2020 (OS 1031).

[2] In this judgment, the parties will be referred to as they were in the high court ie the appellant will be referred to as the plaintiff and the respondent will be referred to as the defendant.

[3] OS 1485, the plaintiff sought for, among others, the following orders:

(a) a declaration that the termination or the sale and purchase agreement between the plaintiff and defendant was lawful;

(b) that the defendant is to return the original title to the property and transfer the same to the plaintiff; and

(c) that the defendant is to return vacant possession of the property within 14 days of the court's order.

[4] In OS 1031, the defendant, as applicant, sought for, among others, the following orders:

(a) a declaration that the sale and purchase agreement dated 25 October 2018 between the plaintiff and defendant is valid and subsisting;

(b) a declaration that the termination of the SPA was invalid;

(c) an order for the SPA be executed by the parties by way of specific performance;

(d) that specific performance against the plaintiff is enforced to perfect the said sale and transfer of the property to the defendant;

(e) additionally, and/or in the alternative, the plaintiff is to pay the defendant damages in lieu of specific performance; and

(f) a declaration that the registration of the defendant as the owner of the property is valid.

B. Background Facts

[5] The plaintiff (as vendor) and the defendant (as purchaser) have entered into a Sale and Purchase agreement dated 25 October 2018 (the SPA) for the sale of a property held under individual title No HS(D) 167739, Mukim Semenyih, District of Hulu Langat, State of Selangor (the property). The SPA was prepared by Messrs Ng Say Wooi & Partners, the solicitors representing the defendant. The plaintiff, at that material time was not represented.

[6] The salient terms and condition of the SPA, among others, are as follows:

(a) the purchase price was RM4,000,000.00.

(b) the total earnest deposit plus deposit was RM400,000.00.

(c) the defendant shall have three (3) months from the date of the SPA to complete the purchase by paying the balance purchase price of RM3,600,000.00 to the plaintiff.

(d) should the defendant fail to complete the purchase within the time stipulated, the plaintiff shall grant an extension of time of one (1) month from the expiry date of the SPA subject to the payment of interest of 1% per annum.

[7] The completion date of the SPA fell on 24 January 2019 and subsequently the extended completion date fell on 23 February 2019.

[8] At the request of the defendant, the plaintiff agreed to give an extension in writing of time of another three (3) months until 25 May 2019 (the final extended completion date) for the defendant to pay the balance purchase price.

[9] However, after the final extended completion date had lapsed, the defendant was still unable to pay the full balance purchase price to the plaintiff.

[10] Nevertheless, on 24 April 2019 the defendant's financier has paid the redemption sum of RM2,490,988.17 to Hong Leong Bank Berhad, the registered chargee of the Property in order to redeem the charge registered over the said Property. After deducting the payment of the redemption sum, the balance purchase price that was remained unpaid was RM1,109,011.83. Unfortunately, despite the full balance of purchase price remained unpaid, the transfer of the Property was registered by Messrs YC Pang, Chong & Gordon, the defendant's financier's soli