INTRODUCTION

[1] This is an appeal by the defendant against the decision of the learned judicial commissioner of the High Court at Johor Bahru allowing the plaintiff’s application for summary disposal of the suit filed by the plaintiff against the defendant on a point of law under O 14A of the Rules of the High Court 1980 (‘the RHC’) and entering summary judgment in favour of the plaintiff.

[2] At the appeal stage before the Court of Appeal the defendant filed a notice of motion in encl (24a) pursuant to r 7 of the Rules of the Court of Appeal 1994 and s 69 of the Courts of Judicature Act 1964 for an order that the defendant be at liberty, upon the hearing of the present appeal to adduce and refer to the fresh and further evidence as exhibited in exhs ‘YTC1 ’, ‘YTC2 ’, ‘YTC3 ’, ‘YTC4 ’ and ‘YTC5 ’ to the affidavit of Yiap Toon Cheng affirmed on 16 August 2007. Having heard the arguments of learned counsel for the defendant and the plaintiff we unanimously allowed the defendant’s application in encl (24a) and made an order in terms of the application. We find that the defendant has satisfied the necessary conditions as set out in r 7(3A) of the Rules of the Court of Appeal 1994 and s 69(3) of the Courts of Judicature Act 1964. We also find the defendant has justified the reception of the fresh evidence under the principles as set out in the case of Ladd v Marshall [1954] 3 All ER 745.

[*824] BACKGROUND FACTS OF THE CASE

[3] The relevant background facts of the case are as follows:

(1) By a written agreement dated 19 November 2004 (‘the agreement’) entered

between the plaintiff and the defendant, the plaintiff agreed to sell

to the defendant a piece of land held under Geran 101840 Lot 325, Mukim

Simpang Kanan, District of Baru Pahat, Johor (‘the said property’) for

RM33,500,000 (‘purchase price’), and the defendant agreed to purchase

the same subject to the terms and conditions as agreed by the parties.

(2) One of the terms and conditions of the agreement provides that, the

plaintiff shall be given nine months from the date of the said

agreement to relocate a Chinese school built on the said property,

namely, SJK (C) Hwa Nan ('the said school’) in order to hand over

vacant possession of the said property to the defendant.

(3) It is also a term of the agreement that, from the date the plaintiff

confirms in writing that vacant possession of the said property is

ready to be delivered to the defendant and upon inspection and

confirmation by the defendant, the defendant shall have four months

from the said date to settle the balance purchase price to the

plaintiff, with an automatic extension of two months on condition that

the defendant shall pay late interest to the plaintiff.

(4) It is claimed by the plaintiff that vacant possession of the said

school, hence the said property, was delivered to the defendant on 21

November 2005. However, the defendant is contending that vacant

possession of the said school was not delivered to the defendant on 21

November 2005, but instead, it was on 28 February 2006.

(5) The plaintiff proceeded to file an action against the defendant in the

court below, and in its action, the plaintiff claims against the

defendant, inter alia:

(a) a declaration that vacant possession of the said property has

been delivered by the plaintiff to the defendant on 21 November

2005; and

(b) declaration the defendant has failed to pay to the plaintiff the

balance purchase price and the interest for extended period on or

before 21 May 2006, and therefore, the deposit of 10% of the

purchase price paid by the defendant is forfeited by the

plaintiff.

(6) The plaintiff thereafter filed an application under O 14A of the RHC

vide summons in chambers dated 12 Septemb