Zamani A Rahim JC:

Introduction

[1] Enclosure 40A is an appeal by the third defendant ('D3') who is dissatisfied with the decision of senior assistant registrar dated 10 May 2006 which disallowed encl 25 which was filed by D3.

[2] Enclosure 25 is an application by D3 pursuant to O 14A of the Rules of the High 1980 ('RHC') for the Court's determination of the proposed three questions without going through a full trial of the action. The three proposed questions are:

(a) whether the plaintiff in the writ of summons dated 14 June 2004 and the statement of claim dated 12 June 2004 is claiming specific performance of the agreement dated 2 March 1996 entered into between the plaintiff of the one part and the first and second defendants of the second and third parts in respect of the property formerly known as Lot Perindustrian (Plot 707) No HS (D) 179/95, No Lot PT 9255, Mukim Pengkalan Kundor, Daerah Kota Setar, Kedah (hereinafter referred to as 'the said property'). For brevity, this question will hereinafter referred to as 'question 1';

(b) whether there is no privity of contract between the plaintiff and the third defendant in respect of the said agreement of 2 March 1996. For brevity, this question will hereinafter referred to as 'question 2'; and

(c) whether the plaintiff is unable to sustain any action against the third defendant in view of the transfer of ownership to the purchasers of and the issuance of the individual titles to the units of residential houses in the project known as Taman Desa Seraya erected on a portion of the said property. for brevity, this question will hereinafter referred to as 'question 3'.

Factual Background

[3] The brief facts leading to this appeal, may be gathered from the plaintiff's statement of claim, the first defendant (D1) and second defendant's (D2) joint statement of defence and the third defendant's (D3) statement of defence.

Summary Of plaintiff's Claim

[4] By an agreement dated 2 March 1996 between the plaintiff as the purchaser of one part, D1 as the vendor of the other part and D2 as the proprietor of another part, the plaintiff agreed to purchase the property which was formerly known as Lot Perindustrian (Plot 707), No HS (D) 179/95, No Lot PT 9255, Mukim Pengkalan Kundor, Daerah Kota Setar, Kedah ('the said property'). A copy of the said agreement dated 2 March 1996 is annexedto the affidavit of Tan Chee Guan affirmed on 25 March 2005 (encl 26) as exh marked 'TCG 1'.

[5] Notwithstanding that the plaintiff had paid a sum of RM180,326 out of a total purchase consideration of RM201,326 to D1, the transaction was not completed (see paras 12-19 of the statement of claim).

[6] The plaintiff and the plaintiff's bank, Southern Finance Bhd had each entered caveats against the said property on 10 August 1998 and 10 February 1998 respectively to protect their respective interest.

[7] Sometime in August 2002, the plaintiff came to know that there were twelve units of double-storey terrace house built or erected on the said property (see para 20 of the statement of claim).

[8] Upon enquiry, the plaintiff discovered that the said property had been trespassed by D3 without the knowledge and consent of the plaintiff despite the subsistence of the said agreement dated 2 March 1996 which was still valid, binding and enforceable (see para 21 of the statement of claim).

[9] D1 and D2 had breached the said agreement in that, D1 and D2 had directly or indirectly encouraged and allowed D3 to trespass the said property without the consent and/or approval of the plaintiff (see para 27 of the statement of claim).

[10] As a result of the trespass by D3, the plaintiff has suffered loss and/or delay and/or failure, neglect, refusal by D1 and D2 in the performance of the said agreement and/or the transfer of the said property to the plaintiff (see para 31 of the statement of claim).

[11] The plaintiff claims against D1, D2 and D3 collectively and/for separately for, inter alia, a specific performance of the said agree