The purpose of damages under Section 329 of the National Land Code is to provide compensation for proven losses due to wrongful actions, avoiding unjust enrichment.

Mohd Sofian Abd Razak JCA:

[1] There are two separate appeals before this court emanating from the decision of the High court dated 22 March 2019, namely:

(a) In Civil Appeal No: W-03(IM)(NCVC)-30-04-2019, the appellant is the 1st defendant in the High court and the respondent is the plaintiff. The appellant is appealing against the whole of the decision of the learned Judicial Commissioner setting aside the decision of the learned Deputy Registrar and awarding damages, interest and cost to the respondent; and

(b) In Civil Appeal No: W-03(IM)(NCVC)-32-04-2019, the appellant is the plaintiff and the respondent is the 1st defendant. The appellant is appealing against part of the decision the learned Judicial Commissioner disallowing the appellants claim for diminution of the value of the land in the amount of RM9,190,560.00.

[2] For ease of reference, parties will be referred to as they were in the proceedings before the High court.

[3] Having considered the appeal records and the submissions of the parties in these appeals, it is our unanimous decision that both appeals be dismissed with cost to be borne by each party.

Background Facts

[4] On 3 June 2011, both the plaintiff and the 1st defendant had entered into a sale and purchase agreement ("the SPA") whereby the plaintiff agreed to sell to the 1st defendant a piece of freehold land held under GRN 181086 ("the said Land") with the purchase price of RM36,019,241.28 for the purpose of operating the business of shopping centres and departmental stores but subjected to conditions precedent set out in paras (a) to (f) of cl 2.1 of the SPA.

[5] Clause 2.2 stated the consequences of such non-fulfilment whereby upon the expiry of the Conditional Period or such other mutually extended period, either party shall be entitled to terminate the agreement by serving a written notice. Upon receipt of such notice:

(a) The plaintiff shall refund or cause to be refunded the 1st defendant all monies paid with interest accrued; and

(b) In exchange thereof, the 1st defendant shall withdraw any Private Caveat or other encumbrances at its own cost and expenses.

[6] On 4 July 2011, the 1st defendant entered a private caveat against the title to the plaintiffs land ("the Private Caveat").

[7] Unfortunately, the conditions precedent in the SPA could not be fulfilled in time. The plaintiff then issued a letter to the 1st defendant stating that the agreement had lapsed and refused for the extension.

[8] In reaction to that, the 1st defendant took out an Originating Summons No: 24NCC-375-10-2012 for a decree of a specific performance of the SPA ("SP Suit"), which had been allowed by the court on 2 September 2013, whereby the court allowed a conditional decree for specific performance by granting an extension of six months for the 1st defendant to fulfill the conditions precedent. Under the terms of the order in the SP Suit, the court further stated that if the 1st defendant failed to fulfil the conditions precedent by 2 March 2014, the agreement would lapse and become void.

[9] However, the 1st defendant failed to fulfil the conditions precedent and applied to the court for further extension. On 7 July 2014, the 1st defendants application for an extension of time was dismissed. The 1st defendant appealed against this decision.

[10] The 1st defendant had also refused to have the Private Caveat withdrawn.

[11] Therefore, in September 2014, the plaintiff filed an Originating Summons No: 24NCC-1425-09-2014 ("OS 1425") under O 37 r 1 of the Rules of 2012 ("ROC 2012") to have the Private Caveat removed together with other ancillary reliefs.

[12] On 8 December 2014, the 1st defendant took out another application in the SP Suit for a further extension of time of the SPA. However, such application had been dismissed by the court on 15 January 2015 with costs. The 1st defendant appealed against this decision.

[13] On 29 March 2016, the court of Appeal dismissed with costs both of the aforesaid appeals filed by the 1st defen