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2013 MarsdenLR 1754

COURT OF APPEAL PUTRAJAYA
DREAM PROPERTY SDN BHD – Appellant
Versus
ATLAS HOUSING SDN BHD – Respondent


Petitioner Advocates:Cecil WM Abraham,Idza Hajar Ahmad Idzam ,Respondent Advocate: Cyrus v. Das,Gan Techiong,Steven Thiru,Faisal Moideen,Darmain Segaran

Judgement Key Points

Based on the provided legal document, the grounds to appeal may include the following:

  1. Misinterpretation or improper construction of contractual clauses regarding the date of vacant possession and completion, which affected the court’s findings on when vacant possession was effectively delivered (!) (!) (!) .

  2. Erroneous assessment of the evidence related to the confirmation of vacant possession, particularly the significance of the handwritten note by the appellant’s representative and the interpretation of the joint inspection process, which may have led to a wrong conclusion on the actual date of possession (!) (!) (!) .

  3. Incorrect application of the contractual terms that define the automatic termination clause, especially in relation to whether the clause was enforceable and whether the breach constituted a fundamental breach warranting automatic termination, which could be grounds for challenging the validity of the court’s order on contract termination (!) (!) (!) .

  4. Inadequate consideration of the contractual obligations and the circumstances surrounding the automatic extension provisions, including whether the extension was validly exercised or whether the breach was properly established, which could impact the court’s decision on the validity of termination and forfeiture (!) (!) (!) .

  5. Flawed findings or failure to properly evaluate the existence or non-existence of fiduciary or trust relationships, particularly in light of the conduct of the parties and the authority granted, which could be grounds to challenge the court’s refusal to declare such a relationship (!) (!) (!) .

  6. Errors in assessing the remedies available, especially regarding the calculation of damages, profits, or income derived from the land or building, and whether the court correctly applied principles relating to unjust enrichment, account of profits, or damages (!) (!) (!) .

  7. Procedural or evidentiary issues, such as the court’s acceptance or rejection of certain evidence or the manner of construing written confirmations and conduct of the parties, which may have led to an incorrect factual or legal conclusion (!) (!) (!) .

  8. The court’s approach to the interpretation of contractual language, especially the construction of the special conditions and whether it appropriately reflected the true intent of the parties, which could be grounds for appeal if the interpretation was unreasonable or inconsistent with commercial realities (!) (!) .

These grounds collectively suggest that an appeal could be based on misinterpretation of contractual provisions, improper evaluation of evidence, procedural irregularities, or incorrect application of legal principles relating to contract termination, fiduciary duties, and remedies.


Table of Content
1. sale agreement details and conditions. (Para 1 , 2 , 3)
2. events leading to joint inspection. (Para 4 , 5 , 6 , 7)
3. arguments regarding the completion date. (Para 12 , 18 , 19 , 20)
4. court's view on vacant possession delivery. (Para 13 , 14 , 15)
5. issues surrounding fiduciary duty. (Para 21 , 22 , 24)
6. rulings on the assessment of profits. (Para 30 , 31 , 32)

[1] We do not propose in this judgment to set out in great detail the background facts since they are already set out in the judgment of the learned trial judge. However, the salient facts relevant for this judgment are that by the sale and purchase agreement dated 19 November 2004 ('the SPA'), the appellant contracted to purchase the respondent's land held under Geran 101840 Lot 325, Mukim Simpang Kanan, District of Batu Pahat, Johor ('the land') covering an area of 5.8274 hectares (14.4 acres) at the price of RM33.5 million. Pursuant to the terms of the SPA, the appellant paid the 10% deposit of RM3.35 million leaving a balance of RM30.15 million payable four months from the date the vendor confirms that vacant possession is ready to be delivered and upon inspection and confirmation by the purchaser wit

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