Vincent Ng Kim Khoay J:

The defendant applied by way of a summons-inchambers (Enclosure 8) for:

(i) The injunction (Encl. 5) dated 6 October 1993 restraining the defendant from demolishing a structure known as No. T1 866, Sungai Ara, 11900, Pulau Pinang to be set aside; (ii) The writ of summons dated 6 October 1993 (Encl. 1) to be struck off under O. 18 r. 19(1)(a) or (b) or (c) of the Rules of the High Court 1980 (RHC); (iii) Damages consequential upon the implementation of the said injunction, to be assessed by the SAR, and (iv) Costs of the action.

The defendant's case is as follows:

The defendant are building contractors who have entered into a joint venture agreement with Sg. Ara Holdings Sdn. Bhd. to develop a large area of land which encompasses an area in which the plaintiff resides with several others.

After entering into the joint-venture agreement the defendant, acting in concert with Sg. Ara Sendirian Berhad, agreed to give compensation to the genuine licensed occupiers of the land, whereby Sg. Ara was to sell the land at fixed rates and the defendant to build houses of certain specifications free of charge for such occupiers.

In order to find out who were the legitimate licensed occupiers, a census was held in 1984 ("the said census").

According to the census record of licensees occupying the large area of land as at 20 December 1984 was interalia, a house no. 107 Block E, Mukim 12 Sungei Ara, 11900 Pulau Pinang (said house no.107) occupied by one named Muniandy a/l Pavadi (Muniandy) who held a license No. D3/41 issued by Sg. Ara Holdings Berhad. Staying with Muniandy at the time of the census, were 10 other family members including the plaintiff who was the wife of Muniandy, and Muniandy's two other brothers namely Tharumalingam a/l Pavadai, (Tharumalingam) and Ganapathy a/l Pavadai (Ganapathy). The details of the 11 occupiers and their relationship to Muniandy recorded in the census were as follows:

No. Name I/C No. Sex Marital Age Rela- Occu- Status tion pation

1. Muniandy 1346178 M M 7/1/47 Licensee Laboua/p Pavadai rer 2. Suppuletchmi 4096621 F M 8/7/57 Wife - a/p Karpaya 3. Mazraviran 5230057 M S 12/9/57 Brother- Laboua/l Krishnan in-law rer 4. Moganambal BCD 650750 F - 19/4/78 daughter - a/l Muniandy 5. Thyagarajan BC C531401 M - 9/4/74 Son - Pillay a/l Muniandy 6. Vijaya- BC D165239 M - 21/6/76 daughter - Letchumy a/p Muniandy 7. Ganapathy 4240281 M M 26/2/52 Brother - a/l Pavadai 8. Raja Mani 5336740 F M 18/5/57 Sister- - a/p Vaitha- in-law nianathan 9. Tharuma- T. 126444 M M 2/11/48 Brother Army lingam a/l Pavadai 10. Muniammal 4888289 F M 5/8/55 Sister- - a/p Muthuvelu in-law

11. Linggam BC E500616 M - 20/7/79 - -

On 23 October 1991 the defendant received a letter of even date from Muniandy, plaintiff's husband and Ganapathy which confirmed that both of them had surrendered all their rights in respect of house no.107 to their mutual brother Tharumalingam. Consequently upon and pursuant to the said letter the defendant reached an agreement with Tharumalingam on compensation - which was subsequently reduced into writing vide a detailed written agreement dated 17 June 1993 ("said agreement") - wherein it was agreed that the house no.107 was to be pulled down and demolished at the latter's cost ''Together with all buildings and structures (if any) appurtenant or appertaining to'' the said house no.107, and the defendant was to compensate Tharmalingam by constructing for him free of charge, a double storey detached house according to plans as detailed in the said agreement. Another agreement was then also simultaneously executed between Tharumalingam and Sg. Ara Holdings Sendirian Berhad in which the relevant land whereupon the said house was to be erected was sold to the former at RM2.00 per sq. ft.

The letter dated 23 October 1991 from the two brothers namely Muniandy and Ganapathy (exhibit "WPS 2" of Encl. 6) and the defendant's letter to Tharumalingam dated 9 June 1993 (exhibit "WPS 3