Abdul Hamid Mohamad FCJ:

[1] I have the advantage of reading both the judgments of my brothers Augustine Paul FCJ and Abdul Aziz Mohamad FCJ. I agree with them that the appeal be allowed with costs here and below and that the orders of the Court of Appeal be set aside and the orders of the High Court be restored. As for the reasons, I associate myself with those given by my brother Abdul Aziz Mohamad.

Augustine Paul FCJ:

[2] This appeal raises for consideration the extent to which decisions of the Lembaga Akitek Malaysia ("LAM") can operate as res judicata and the effect of a contract where one party disables himself from performing his part.

[3] The facts of the case as found by the courts below are as follows. The defendant (the respondent in this Court), formerly known as Bandar Incorporated Development Sdn Bhd, was at all material times, the registered proprietor and beneficial owner of all the pieces of land held under GM 755 Lot 19, GM 776 Lots 23 and 25, GM 872 Lot 34, GM 753 Lot 21, all in s 95A Town of Kuala Lumpur ("the lands"). In 1982 the plaintiff (the appellant in this Court) was appointed by one Lim Pak Tow & Sons Realty Sdn Bhd ("Lim Pak Tow") to submit plans for the commercial development of part of the lands, that is to say, Lots 19 and 21 as the relevant authorities had intended to compulsorily acquire the said lots. By a letter dated 2 November 1982 the plaintiff submitted an application to the Jabatan Perancang for change of use of the lands and also for an increase of the population density with the accompanying layout plan for Lots 19 and 21.

[4] By a letter dated 8 November 1982 to Lim Pak Tow the Plaintiff set out the terms of his appointment as an architect for the submission of plans for the change of land use and for the increase in density of Lot 19. The terms were as follows:

(a) On submission to Planning Department for change of use and increase in density, the plaintiff would be paid a lump sum fee of RM20,000.

(b) Should the project proceed further requiring the full professional services of the plaintiff, the lump sum fee of RM20,000 would be deemed to be part payment towards the plaintiff's fees of 5% of the total construction costs.

Lim Pak Tow then engaged the plaintiff to prepare a comprehensive development plan for a township encompassing the lands and the surrounding land which belonged to the State. The development proposal was then handed over to the Datuk Bandar together with a letter on 3 November 1982. The proposal was then formally submitted to the Datuk Bandar by way of a letter dated 10 January 1983 together with photographs of the architectural model to the original proposal through Lim Pak Tow. Following this, Lim Pak Tow and PW1, a Director of the plaintiff, attended a meeting at Dewan Bandaraya on 1 April 1983. The Datuk Bandar agreed to withdraw the Government's intention of acquiring the lands provided that a company was incorporated for the purpose of developing the lands on a joint venture basis with the Datuk Bandar. The defendant is the company that was incorporated. A report prepared by the plaintiff was used by Jordan Lee Jaafar Sdn Bhd to prepare their valuation reports which the Datuk Bandar used as a basis for his acquisition of the neighbouring lots. At a meeting held at the Dewan Bandaraya on 8 August 1983 the plaintiff was requested to submit the comprehensive report on behalf of Lim Pak Tow and the Datuk Bandar then agreed in principle to the joint venture contract between the Datuk Bandar and the defendant. By a letter dated 1 September 1983 the plaintiff set out two alternative proposals for low cost flats to be built on the Government land as requested by the Government at the meeting held on 8 August 1983. At a meeting held at the plaintiff's office on 21 September 1983 Lim Pak Tow then requested the plaintiff to proceed with the preparation of detailed design drawings for the construction of the apartments. By its letter dated 28 September 1983 the plainti