Haidar Mohd Noor JCA:

In this suit the respondents (plaintiffs) filed two applications (encl. 52 and 60) in the court below.

In respect of encl. 52, the learned judge granted the application for a Mareva injunction and ordered that a sum of RM1.7 million be deposited in a bank under the joint-account of the solicitors for the respondents and the solicitors for the appellants until the disposal of this suit. This was on the premise that the lands belonging to the first appellant company had been sold when encl. 52 was heard.

The appellants appealed against this order (Civil Appeal No. N-02-802-97), that is, the appeal before us.

In respect of encl. 60, the learned judge dismissed the application for the return of the grants of titles for Lot 2330 to Lot 2334, Mukim Setul, Negeri Sembilan Darul Khusus owned by the second respondent and deposited with the appellants as security by the first respondent.

The respondents appealed against this order (Civil Appeal No. N-02-3-96).

The two orders made in respect of encls. 52 and 60 are embodied in one order of the court dated 5 December 1997 (see the supplementary record).

When we allowed the appeal before us and set aside the order of the learned judge, the counsel for the respondents, as appellants, in Civil Appeal No. N- 02-3-96 withdrew their appeal and prayed that no order as to costs be made against them. However, the counsel for the appellants, as respondents, in Civil Appeal No. 02-3-96 pressed for costs in any event.

We dismissed Appeal No. 02-3-96 and in the exercise of our discretion, made no order as to costs. We ordered the deposit to be refunded.

We now give our reasons for the order made in the Appeal No. N-02-802-97 before us.

Brief Facts

In this suit, the first respondent alleged that on or about February or March 1992, the second, third and fourth appellants entered into an oral agreement with him whereby he was informed that he was appointed the chairman for the first appellant company and it was his duty to ensure approval is obtained from the State Exco Negeri Sembilan Darul Khusus for the amalgamation, change of condition and sub-division of Lots 1162, 1353, 1671, 1673, 1674, 3327 and 3328 Mukim Setul Daerah Seremban ("the said lands") belonging to the first appellant company. The said lands were originally under the category 'agriculture'. It is not disputed that a letter of appointment of the first respondent as chairman of the first appellant company dated 16 March 1992 was issued to him (p. 543 of the record, vol. 4). It is to be noted that the authority given was to obtain approval of the said lands to "industry".

The second, third and the fourth appellants are directors of the first appellant company.

The second, third and the fourth appellants, according to the first respondent orally agreed to pay him the sum of RM1.7 million if he was successful in obtaining the said approval and also to transfer 337,917 shares in the first appellant company to him. At the same time, grants of titles for Lot 2330 to Lot 2334 Mukim Setul, Negeri Sembilan Darul Khusus owned by the second respondent (first respondent's mother) were deposited with the appellants as security by the first respondent. However, the appellants contended that the deposit of those grants of titles belonging to the second respondent was for a loan of RM650,000 given to the first respondent by the appellants.

The first respondent contended that through his efforts, the State Exco Negeri Sembilan Darul Khusus did on 30 May 1995 approve the first appellant company's application for amalgamation, change of condition and sub-division of the said lands to housing and therefore the first respondent has fulfilled his obligation under the oral agreement.

The appellants, however, contended that the first respondent was not successful in getting the said lands converted to housing. It was the contention of the first appellant company that it was the one who successfully obtained the approva