JUDGMENT

Lee Hun Hoe CJ (Borneo):

For the purpose of this appeal the facts may be set out briefly. Appellants and respondents are both limited companies. Appellants own a piece of land on which are six units of bungalows. On 3 February 1983 they entered into an agreement whereby the respondents agreed to buy and the appellants to sell the property. Payment was to be made in two lump sums. The first payment of RM190,000 was to be made on the date of execution and the balance on or before 31 November 1983. Clause 4 of the agreement provides that vacant possession of the six bungalows was to be delivered to the respondents on the execution of the Memorandum of Transfer on 31 November 1983. It is not in dispute that RM190,000 was made by the respondents on the execution of the agreement and that the appellants gave vacant possession of the six bungalows to the respondents before the execution of the Memorandum of Transfer. One of the important terms of the agreement is Clause 8(a) which provides that in the event of the agreement becoming impossible of performance due to acts of either the State or the Federal Government not within the control of either the appellants or the respondents, then the appellants shall, on demand by the respondents, refund all monies received under the agreement. One month after the execution of the agreement the State Government indicated its intention to acquire the said land together with the six bungalows for the Labuan Airport Runway Extension vide Gazette Notification No. 82 dated 20 January 1983 under s. 4 of the Land Acquisition (Cap.69) Ordinance. The State Government confirmed the acquisition vide Gazette Notification No. 155 dated 3 March 1983 under s. 5 of the said Ordinance. On 7 January 1983 the respondents gave notice to the appellants of revocation of the agreement and requested for the refund of RM190,000. The appellants refused to do so and the respondents sued the appellants. In their defence the appellants admitted the respondents' claim but alleged that this was subject to a set-off against rentals received by the respondents. By para. 6 of their counterclaim the appellants alleged that the respondents leased the six bungalows to E.D. Zublin A.G. and that therefore the rentals received "represented monies collected by the plaintiffs to the account of the defendants and that the plaintiffs held such monies in trust for the defendants".

The respondents allowed Sacon Construction Sdn. Bhd. the use of the six bungalows without payment of rent. The latter entered into an arrangement with E.D. Zublin A.G. for the use of the six bungalows.

The respondents took out two summonses, one under O. 18 r. 19 of the Rules of the High 1980, to strike out the counterclaim and the other under O. 14 for summary judgment.During the hearing of the first summons the parties agreed that the only issue before the Court was whether the appellants were entitled to the alleged rentals for the six bungalows.

It was contended that the respondents, in obtaining possession of the six bungalows,received a valuable benefit. It is the contention of the appellants that since the full purchase price has not been paid the appellants remain the legal owner of the property and all profits from the property rightly belong to the appellants. Although the agreement was silent on this, the appellants argued that under s. 15 of the Civil Law Act 1956 the respondents were accountable to the appellants for the benefit arising out of th