The enforcement of contractual agreements in determining rights to common property and distinguishing between common facilities and additional commercial facilities is paramount.

[1] The appellant/defendant who had purchased some condominium units as well as some parts of the common property from Danaharta under a statutory sale, appeals against the decision of the learned High Court Judge who had ruled that the condominium project consists of 550 parcels of condominium only and the balance of the land etc, which is referred to common property, cannot be a subject matter of sale, even when that part related to the 550 parcels which is referred to common property as well as facilities in the sale and purchase agreement ("S&P") and the deed of mutual covenant ("DMC").

[2] In essence, the only issue in this case is whether the Court should give effect to the S&P as well as the DMC. If it is enforceable, the plaintiffs/respondents in this case will not be entitled to the prayers claimed. Other issues relating to law and rights of the parties will only lead to circuitous jurisprudence if in law it is not sufficient to set aside the terms of the DMC, taking into consideration that the defendant is not in breach of the DMC terms in this case. The real issue is whether the S&P agreement as well as the DMC are binding on the parties. In this appeal, the parties will be referred to as they were in the High Court.

[3] The appeal came before us on 19 June 2015 and was fixed for continued hearing on 30 November 2015. We reserved judgment because of the convoluted arguments and the plaintiffs' refusal to recognise the DMC and attempt to get out of the contractual bargain which they have entered into purportedly on the ground that the DMC attempted to give away the part of the land and/or facilities in the area which is referred to common property to the original developer and which the defendant had acquired, that too by statutory sale through Danaharta. The plaintiffs' case from the pleadings, evidence and submission appears to be to unjustly enrich themselves for property or facilities which they have not contracted for.

[4] The learned counsel for the plaintiffs puts the issue before the trial Court as follows:

"The singular core issue that arose for determination was what is common property under the relevant and applicable laws in the context of a housing development."

[5] The answer to the issue is simple and straight forward, taking into consideration the time the sales and purchase agreement was concluded. At that time, there was no statutory control as to how the common property is to be used or divided or reserved by the developer. It was all based on contractual terms. The Housing and Development (Control and Licensing) Act 1966 and/ or the Housing Development (Control and Licensing) Regulations 1989 only required a S&P to be signed as per the statutory form. The issue of common property etc was done through a DMC. There was no law prohibiting DMC or any case laws to say DMC is illegal, bad in law or against the Housing and Development (Control and Licensing) Act 1966, Housing Development (Control & Licensing) Regulation 1989 or Strata Titles Act 1985 at the time of the S&P was entered into. Both parties concede there are no case law to that effect. If that is the case, the plaintiffs' contention has no merit as the cases relied on by the plaintiffs have no relevance to the factual matrix of this case. In any event, we will set out the facts and argument of the parties for the purpose of completeness only and our grounds is substantially based on this paragraph.

[6] The statement of claim and prayer reads as follows:

"1. The plaintiffs' claims against the defendant are in relation to the luxury resort condominium housing development at Tanjung Kling, Melaka known as the Riviera Bay R