Chong Siew Fai CJ (Sabah & Sarawak):

The postponement on 11 June 1999 enabled us to deliberate more closely the submissions of counsel for both sides in the light of the evidence adduced in this case.

Respecting the correspondences attacked by counsel for the appellant, they were classified as follows:

(a) Appeal Record (A.R.) 300C, AR 300D and AR 300E which counsel impugned both as to their makings and their contents, and

(b) AR 251, AR 275 and AR 277 respecting which formal proof was dispensed with but their contents were called in question.

(a) AR 300C was a letter dated 3 October 1988 purported to be from the respondent, Anvest Corporation Sdn. Bhd. ("Anvest") to Appraisal (Malaysia) Sdn. Bhd. (Estate Agent) agreeing to purchase the land in question on certain conditions and requesting to keep Anvest's identity confidential.

(b) Both AR 300D and 300E dated 4 October 1988 and 5 October 1988 respectively were purported to be from the Estate Agent to Miss Kheoh And Yeng (PW2) of Anvest. In AR 300D, the Estate Agent informed Miss Kheoh, inter alia, that they (the Estate Agent), as instructed, had forwarded $1,000 to the "landowner" and did not reveal the purchaser's identity, while in AR 300E the Estate Agent, inter alia, pointed out the "landowner's" amendment of nine months to six months for payment of the balance of the purchase price and requested Miss Kheoh to confirm acceptance of the terms and conditions of sale as contained in letter dated 4 October 1988 (AR 254).

(c) AR 251 was a letter dated 17 August 1988 from Anvest to the Estate Agent indicating Anvest's intention to purchase a property and agreeing to pay agency fee.

(d) AR 275 was a letter dated 22 November 1988 from M/s Yusuf Lee Pathma & Marbeck (acting for Anvest) to M/s Raja Eleena Siew Ang & Tan (acting for Zodiac Development Sdn. Bhd.) in which the phrase "your agreement to assign" was used and which also indicated that any negotiation had to be subject to Anvest "obtaining the appropriate Court Order for specific performance against the Seller."

(e) AR 277 was a letter dated 30 November 1988 from M/s Raja Eleena Siew Ang & Tan (acting for Zodiac Development Sdn. Bhd.) to M/s Yusuf Lee Pathma & Marbeck (acting for Anvest) in which there was mention, inter alia, that Zodiac "are still interested in the property and are willing to enter into fresh negotiations with your clients for the purchase of the same from your clients only after your clients have purchased the above property from the Vendor."

As to the attack on the making and the contents of letters AR 300C, AR 300D and AR 300E:

(a) AR 300C and the contents therein, were proved by PW1 Tan Loy Fatt (Estate Agent's managing director) and by PW2 Kheoh And Yeng (Anvest's director) in AR 99 A-B, 104 C-D, 122 E-F and 133A.

(b) The making and contents of AR 300 D were proved by PW1 Tan Loy Fatt in AR 99 B-C and substantiated by PW2 Kheoh And Yeng in AR 123 A-B.

(c) Likewise, the making and the contents of AR 300E were proved by PW1 Tan Loy Fatt in AR 99 E-F and by PW2 Kheoh And Yeng in AR 123 D-F.

As regards the correspondences AR 251, 275 and 277, formal proof of their making was dispensed with except that their truth or veracity was disputed:

(a) the contents of the letter AR 251 were proved by PW2 Miss Kheoh in AR 121 E-F and substantiated by PW1 Tan in AR 97F. (b) Letter AR 275 was in reply to AR 273 and AR 274 (see PW3 Lee Lim Huat's evidence in AR p. 141C). The contents of AR 275 were proved by PW3 Lee Lim Huat (Anvest's solicitor) in AR 141 A-B. As regards the contradiction in AR 275 suggested before us by counsel for the appellant, this was not specifically so raised at the trial in the High Court. It is therefore not surprising that there was no explanation from PW3. But PW3's evidence is clear that the intended assignment was to be from Anvest to Zodiac (see AR 140 C-D, 159 E to 160 A) (under reexamination)).

(c) As to the letter AR 277 (Zodiac's admission of taking assignme