Balia Yusof Wahi J:

[1] The claims of the plaintiff against the defendants are for some declarations and specific performance of a certain agreement. The following are the remaining reliefs sought by the plaintiff against the defendant, namely:

i. A declaration that the defendants' termination notice dated 25 October 2007 is ultra vires the property development agreement and hence is null and void;

ii. A declaration that the defendants' termination notice dated 25 October 2007 was wrongly issued without just cause and/or was issued mala fide and hence is null and void;

iii. A declaration that the defendants have wrongly and unlawfully denied the plaintiff's exercise of the development rights under the property development agreement pursuant to the plaintiff's letters dated 16 November 2007 and 21 November 2007;

iv. A declaration that the defendants have wrongly and unlawfully denied the plaintiff an opportunity to rectify any "material breach" complained of, if indeed there was a "material breach", pursuant to the property development agreement;

v. An order for specific performance of the property development agreement dated 7 January 1993;

vi. Pursuant to specific performance of the property development agreement, the plaintiff be granted a period of 19 months from the date of orders made herein, or such other time frame as deemed just and equitable by this honourable court, to exercise the development rights pursuant to the property development agreement;

vii. Such further or other reliefs deemed just and equitable by this honourable court.

viii. Costs.

Background

[2] By an agreement in writing dated 7 January 1993, between the plaintiff and the defendants, the plaintiff was granted the rights to develop lands measuring approximately 15.5 acres in Damansara Heights. This agreement is hereinafter referred to as "the property development agreement (PDA)". The development rights granted to the plaintiff to develop the property was for a term of 15 years from the date of completion of another related agreement in writing known as, "the property sale agreement". The property sale agreement was completed on or about 4 July 1994.

[3] Accordingly, the plaintiff was granted a term of 15 years from 4 July 1994 to exercise the development rights pursuant to the PDA expiring on 4 July 2009.

[4] The defendants issued a termination notice by way of a letter dated 25 October 2007, giving the plaintiff 30 days notice of its intention to terminate the PDA with effect from the same date. The defendants' termination notice expressly states that they are of the view that the breach complained of is "incapable of rectification".

[5] The plaintiff then commenced an action in the Kuala Lumpur High Court against the defendants for various declarations and orders to the effect that the defendants' termination notice was premature and wrongly issued and for the plaintiff to be allowed to exercise the development rights for the unexpired period that was denied to the plaintiff by the defendants' termination.

[6] The plaintiff also applied for an ex parte injunction orders that were granted by the court on 17 December 2007. The application was heard inter partes on 13 May 2008 together with the defendants' application to set aside the ex parte orders. On 28 May 2008, the court dismissed the plaintiffs' application and allowed the defendants' application to set aside the ex parte orders. The plaintiff then appealed to the Court of Appeal. The Court Appeal allowed the Appeal in that the injunction was reinstated until 4 July 2009 with an order for early trial.

The Plaintiff's Case

[7] The plaintiff was granted the rights to develop the development property for 15 years pursuant to cl. 1.1 of the PDA. Schedule 4 of the PDA provides how the plaintiff is entitled to exercise the rights. The plaintiff is given 15 years to "commence development" by obtaining a development order. Once a development order is obtained, then the plaintiff is "deemed" to