Low Hop Bing JCA:

Appeal

[1]Vide an originating summons filed in the Ipoh High Court against the respondent ("the defendant"), the appellant ("the plaintiff") prayed for, inter alia , a declaratory order that pursuant to cl. 2, the plaintiff is entitled to receive from the defendant all gross sale proceeds and any other income derived from the development scheme under the Joint Venture Agreement in the proportion of 11.8958% in respect of wholly residential properties ("the prayer for residential properties").

[2] The learned High Court judge dismissed the prayer for residential properties and held that the plaintiff has to wait until the completion of the development of residential properties.

[3] This is the plaintiff's appeal against that decision.

Undisputed Facts

[4] By consent of the parties herein, U-Meng Corporation Sdn. Bhd and U-Meng Holdings Sdn. Bhd (collectively "U-Meng") were granted leave to intervene in this appeal.

[5] The defendant does not dispute the appointment of Receivers and Managers ("R & M") for the plaintiff.

[6] The Joint Venture Agreement dated 4 May 1996 ("the JVA") was entered into between the plaintiff, the defendant and U-Meng. The plaintiff is the owner of a piece of land, with an area of 133 acres. U-Meng is the owner of another piece of land with an area of 147 acres. Pursuant to the JVA, these two pieces of land are to be developed by the defendant, a licensed housing developer, on a joint venture basis for, inter alia , residential properties. (A reference hereinafter to a clause is a reference to that clause in the JVA).

[7] Clause 2.1 provides, inter alia , that the two landowners would get 25% of the gross sale proceeds from residential properties. More specifically, the plaintiff would get 11.8958% of all gross sale proceeds from residential properties.

[8] Other clauses, relevant to the instant appeal, viz cls. 2.3.1 and 13.1, merit reproduction as follows:

2.3.1. In respect of development falling within the Housing Developers (Control and Licensing) Act 1966 , the Developer shall appoint Keris Properties Sdn Bhd of No. 31 Jalan Ali Pitchay, 30250 Ipoh, Perak as its main contractor and the Developer hereby undertakes to pay to the Landowners the Landowners' Entitlement supported by a statement of the sales and receipts within seven (7) days of receipt of payments by Keris Properties Sdn. Bhd from the Housing Development Account in respect of such development; and

13. Housing Development Account

13.1. Where the type of development within the Development Scheme falls within the Housing Developers (Control and Licensing) Act 1966 , the Developer shall comply with such Act and the regulations thereunder in particular the Housing Development Account. The Developer shall be solely responsible for such Housing Development Account which will be operated by the Developer Provided Always the Landowners shall not be liable in any way whatsoever in respect of such Housing Development Account.

[9]The Housing Developers (Control and Licensing) Act 1966 , referred to in cls. 2.3.1 and 13.1 is now known as the Housing Development (Control and Licensing) Act 1966 ("the Act") . The Housing Developers (Housing Development Account) Regulations 1991 ("the Regulations") were made under the Act to regulate the opening, management and maintaining of the Housing Development Account. (The Act, other regulations made thereunder, and the Regulations are collectively referred to in this judgment as "the housing legislation").

[10] The plaintiff has, prior to the appointment of R & M, received advances from the defendant, amounting to RM2,421,681.63 between May and September 2003.

[11] The prayer for residential properties is allegedly based on cls. 2.1, 2.3.1 and 13.1 and also the sale and purchase agreements entered into between the plaintiff, the defendant and third parties who are the purchasers of residential properties.

Questions For Determination

[12] Plaintiff's learned counsel Mr Robert Lazar argued for immediate