Ian H.C. Chin J:

This is an application for summary judgment taken out on 19 July 1994 by Wong Nget Thau and Wong Nget Tsin @ Zaiton ("the plaintiffs") against Tay Choo Foo ("the defendant") for the sum of RM179,648, being the balance of the purchase price of the plaintiffs' shares in a company called Harus Abadi Sdn. Bhd. ("the company"). The Court heard argument on 16 August 1994 and adjourned to today for judgment. The plaintiffs' claim arose in this manner.

On 28 September 1988 the director of Lands and Surveys, Sabah, offered to alienate about 800 acres of land to the company which offer was accepted by the company. At about this time, another company called Golden Spring Development Sdn. Bhd., of which the defendant was at all relevant times a director and shareholder, was also the successful applicant of a parcel of land that was appurtenant to the land approved to the company. On an unknown date and time, one Stella Chin, the plaintiffs' sister ("the sister"), who had been acting with the authority of the plaintiffs about the land application, was approached by the defendant for the purchase of the land approved to the company. The plaintiffs alleged that it was through an undated agreement and various exchange of correspondence that the plaintiffs and the defendant had arrived at an agreement for the sale and purchase of the land of the company through the transfer of the plaintiffs' shares in the company to the defendant or his nominees. The alleged agreed terms of the agreement are as follows:

(1) the total purchase price for the plaintiffs' 2 shares was to be the sum of RM256,640 which was worked out at RM320 per acre of the land; (2) a sum of RM76,992 was to be paid upon the signing of the said undated agreement; and

(3) the balance of RM179,648 was to be paid upon the issue of the title of the land

to the company and upon the execution and submission to the advocate for the

defendant of the various documents to effect the change in the share-ownership

and directorship of the company.

A sum of RM76,992 (less bank charges) was remitted by the defendant to the plaintiffs on 7 June 1990. Certain of the ensuing events had been briefly described in the plaintiffs' affidavit, the relevant averments of which are:

13. In or about June 1990 at the request of the [defendant], the [plaintiffs] each signed forms of transfer of shares of their one (1) shares each in [the company] to unnamed transferees and also each signed an undated letter stating that each of them resign from their respective positions as directors in [the company], and sent the same to the [defendant] in Kuching. Copies of the signed transfer of shares forms and letter of resignation as director are now produced and shown to us marked "WNT-8a-c".

14.On 18 July 1991 or thereabouts, the 2 shares formerly held by us were transferred into the respective names of Tan Mooi @ Tan So Yin (f) (the [defendant's] wife) and either one Milli Anale Buajan or Keraline Bedu (f).......

15.On 22 March 1993 the title to the said land was issued and registered by the lands and surveys department in the name of [the company]...

16.We therefore have fully performed our obligation under the said agreement.

17. However, in breach of the condition of the said agreement, the [defendant] has failed to pay the balance of the purchase price of RM179,648...

The undated agreement and the correspondence, which I referred to earlier, will now be adverted to in some detail for the purpose of considering the contentions of both parties. The existence of these documents are not disputed. A photocopy of the undated agreement ("the agreement") shows that it was prepared by J.B. Singh, an advocate practising in Kuching ("the said advocate"), and though it was made between the plaintiffs of the one part and the defendant of the other part, only the plaintiffs had executed the same. This agreement was handed by the defendant to the plaintiffs for execution and thereafter return