Abdul Malik Ishak JCA:

[1] I shall refer to the parties like what they were referred to in the High Court. Thus, MMI Industries Sdn Bhd (224071-U) shall be referred to as the plaintiff while Let Sin Industries Sdn Bhd (58773-H) shall be referred to as the defendant.

The High Court Action

[2] The plaintiff filed an action in the High Court for specific performance of the sale and purchase agreement ("SPA") dated 8 February 2006 in respect of a piece of industrial land identified as HS(D) 181259 PTD 2571 Mukim of Pulai, District of Johor Bahru measuring approximately 1.214 hectares and having the postal address of Lot 2571, No: 4, Block A, B, C & D, Jalan Semangka, Kampong Sri Jaya, 81200 Johor Bahru ("the said land") and other ancillary orders.

[3] The prayers sought by the plaintiff in its statement of claim as reflected at pp. 65 to 67 of the appeal record (Jilid 1) ("ARJ1") were worded in this way:

30. AND the Plaintiff claims:

30.1 Specific performance of the SPA with an abatement of the balance purchase price in respect of the sum of RM1,591,000.00 paid by the Plaintiff to the Defendant as rent for the period of February 2006 until September 2007 and as deposit under the SPA;

30.2 Further or alternatively, damages for breach of contract;

30.3 All ancillary orders necessary for parties to complete the SPA and in particular an Order that:

a. The Defendant do within 7 days of the date of judgment submit the necessary application for State Authority Approval or renewal.

b. The Defendant do within 7 days of the date of judgment procure from the existing chargee a fresh Redemption cum Undertaking.

c. That in the event State Authority Approval is not obtained within 6 months, the SPA will be deemed terminated and the Defendant shall return to the Plaintiff within 7 days the sum of RM590000;

d. That upon State Authority Approval and the Redemption cum Undertaking being obtained (whichever is the later), the SPA shall be completed by payment of the sum of RM4,309,000.00 to the Defendant's solicitors by way of a bankers' draft within 30 days;

e. That the Defendant's solicitors be authorised to release to the existing chargee from the sum stated in paragraph 30.3(d) above the sum necessary to redeem the charge on the said Land and to secure a discharge of charge from the chargee;

f. That upon payment of the sum in paragraph 30.3(d) above, the Defendant shall execute and deliver to the Plaintiff's solicitors within 7 days a Memorandum of Transfer to the said Land in favour of the Plaintiff failing which the Registrar of the Court be authorised to execute the said Transfer in the Defendant's stead, together with the duly executed and stamped discharge of charge; and

g. Once the documents in paragraph 30.3(f) are released to the Plaintiff's solicitors, the Defendant's solicitors be authorised to release the balance of the purchase price in their hand (if any) to the Defendant.

30.4 Interest on any damages awarded at the rate of 8% per annum for such period as permitted by Section 11 of the Civil Law Act 1956.

30.5 Costs.

30.6 Any further or other relief as this Honourable Court deems fit.

[4] By way of a summons in chambers dated 8 May 2008, the plaintiff sought for an order pursuant to O. 81 of the Rules of the High Court 1980 ("RHC") for specific performance of the SPA together with costs to be borne by the defendant and paid to the plaintiff. The grounds to support the summons in chambers alleged that the defendant refused to perform its obligations under the SPA and that the defendant had no defence to the action together with the other grounds deposed to in the affidavit in support of Wong Sook Shyan. This summons in chambers was marked as encl. 9 and basically it was the plaintiff's summary judgment application under O. 81 of the RHC for specific performance of the SPA. On 4 September 2008, the High Court dismissed the plaintiff's application in encl. 9 and ordered that this matter proceed to trial. It is against this dec