Lee Hun Hoe (Borneo) CJ:

This is an appeal against the dismissal by the learned Judge on a retrial of a claim for damages with costs. The action was earlier dismissed with costs by the learned Judge on 6 November 1972. This Court dismissed the appeal on 13 March 1973 but made an order remitting the case back to the High Court for retrial on the issue of damages for breach of contract as pleaded in para. 15 of the amended statement of claim.

Paragraph 15 reads:

15. Further and in the alternative the plaintiff says:

(a) It was expressly and/or impliedly provided by the agreement that in the event of the plaintiff being successful in procuring Shin Fung (Borneo) Co. to enter into an agreement with the defendant firm to extract and purchase timber in forest area covered by Licence No. T/0015, the plaintiff should thereon become entitled to his service and entertainment fees and his commission as stated in the said agreement for a period of ten years or

until the total production of logs up to fifty thousand tons or alternatively that the defendant firm should not by any default on his part after the plaintiff's work as referred to in para. 5 herein was complete deprive the plaintiff of the said commission and entertainment and service fees for a period of ten years from the signing of the said agreement or alternatively that the defendant firm impliedly agreed not to do anything which would prevent the plaintiff from earning his commission and entertainment and service fees for a period of ten years.

(b) On or about the year 1965 the defendant firm assigned all their rights and interest and together with all the interests under the said Chinese Agreement dated 29 June 1962 made with the said Company to one Lin Fatt Co, (Ltd) Miri another company owned by the partners of the defendant firm or Alternatively-

(c) To some third parties further and better particulars whereof the plaintiff is unable without discovery to furnish.

By para. 9 of the defence respondents/defendants denied the claim and put appellant/plaintiff to strict proof of his claim. At the retrial parties agreed to be bound by the previous record and relied on submissions on relevant points of law. During the course of the hearing plaintiff abandoned his claim relating to entertainment and service fees. He claimed as commission a sum of $21,866.96.

Plaintiff is a broker, commission agent, timber agent and general merchant. Defendants are a timber firm. Both carry on business in Miri Sarawak. By an agreement (Exh. P1) made on 29 June 1962 defendants agreed to pay plaintiff commission, entertainment and service fees if plaintiff was successful in getting a Korean concern, Shin Fung (Borneo) Co. (referred to as SF (B) Co.) to enter into a contract to extract and purchase timber from the concession area covered by Forest Licence No. T/0015.

Clauses 1 and 2 of the agreement (Exh. P1) provide that:

1. The partners/shareholders of Lian Fatt Sawmill willingly agree to pay commission to Mr. Tang Chiok Sing for Tang Chiok Sing's assistance/help to Lian Fatt Sawmill Co. and Shin Fung (Borneo) Co. of Miri in the making of a contract for the production/extraction of logs in forest under Licence T/ 0015 and the purchase and sale of logs and the profit/benefit derived therein.

2. Party 'A', willingly agrees to give Party 'B' commission of 5% of the total benefits and profits derived by Party 'A' from the contract signed between Party 'A' and Shin Fung Co.

The said agreement was to be valid for ten years or until the production of logs reached 50,000 tons. Subsequently, on 10 July 1962 defendants and SF (B) Co. executed an agreement (Exh. P2) for the extraction and purchase of timber in the said area.

In 1963 the Forest Department, in carrying out the policy of the State Government, issued a circular requesting all forest licencees to form into limited liability companies and forest licences would then be issued to those companies incorporated under the Sarawak C