Chong Siew Fai FCJ:

[1] By an origanating summons the plaintiff sought against the 1st and the 2nd defendants the following relief:

(a) a declaration that the plaintiff was the lawful owner of the following 13 lots of land in the Mukim of Seremban:

(b) a declaration that the lst and the 2nd defendants did not possess any interest in the said above 13 lots;

(c) for an order to change or alter ("untuk mengubah") the prohibitory order dated 10 August 1990 against the said above 13 lots; and

(d) for an order that the 1st defendant or the Assistant Registrar of the Court transferred the ownership of the said above 13 lots to the plaintiff as the lawful owner.

[2] After hearing Counsel for both sides and considering the evidence adduced, the learned trial Judicial Commissioner dismissed the application. (See [1993] 4 MLRH 778, [1994] 4 CLJ 113). At the concluding part of his grounds of judgment he said:

In my view, the second defendant was entitled to obtain the prohibitory order in the circumstances and the plaintiff could not seek the re-transfer of the land to him without first satisfying the judgment sum. Having so considered the matter, I dismissed the plaintiff's application with costs.

[3] Against the order of dismissal the plaintiff appealed to this Court.

[4] Having heard the appeal, we dismissed it with costs. However, since we differed with the learned Judicial Commissioner on the point of partnership which formed the substantial basis of his judgment, we considered it desirable to give our reasons.

Facts

[5] Initially the plaintiff's father was the registered, owner of all that parcel of land under CT 773 lot 633 in the Mukim of Seremban (the 'parent' land).

[6] By an agreement dated 21 December 1976 entered into between the plaintiff's father, Chooi Tai Fun, and one Lim Ching Kwui (Lim), (hereinafter referred to as the "joint venture agreement") the parties agreed to embark upon a joint-venture project in which the plaintiff's father would contribute the parent land and Lim would, at his own entire costs and expense, convert and subdivide it into not less than 513 sublots, and build and complete thereon in 2 phases terrace houses and shophouses which were to be shared between the parties in the ratio of 17:83 in the 1st phase, and 23:77 in the 2nd phase, all in Lim's favour. The whole project was to be completed within some 3 years and 8 months, subject, however, to delay for certain permissible causes.

[7] Clause 11 of the agreement requires the plaintiff's father as the registered landowner, upon being requested by Lim (developer) to charge the parent land to a bank or financial institution as security for bridging finance to be used for developing the parent land.

[8] Under cl 8 of the agreement Lim (developer) was, while pending the approval of conversion and layout plan, entitled to enter into sale agreements for the sales to intended purcha-sers of all the sublots that were to belong to Lim (developer), and all sale prices payable thereunder were to be paid direct to and belonged absolutely to Lim (developer) who need not account to the plaintiff's father in respect thereof. In view of the significance of the clause, I would reproduce it below:

8. Pending approval of conversion and layout plans, the landowner hereby agrees that the developer has the full right and liberty to accept bookings and to enter into sale agreements with intended purchasers in respect of the developer's lots which said sale agreements shall also be executed by the landowner provided the requisite approval for sub-division and conversion has already been obtained and that the sale agreements are in respects in conformity with the provisions of R 12 of the Housing Developers (Control and Licensing) Rules 1970. Further all monies paid or payable by purchasers on account of the purchase price in respect of the developer lots shall absolutely belong and be payable directly to the developer who shall not have to account to the owner for all such monie