A party cannot enforce a contract unless they are a party to it; privity of contract is essential.

Introduction

[1] This is an appeal against the judgment of the learned Judicial Commissioner of the High Court at Shah Alam dated 15 September 2020 which had allowed the Respondent's application for Originating Summons (encl 1) with costs of RM20,000.00 to the Respondent.

[2] The Appellant was the Defendant in the Court below while the Respondent was the Plaintiff. The parties shall be referred to as they were in the Court below.

Brief Facts

[3] The facts can be elucidated from the records of appeal and the written submission of both Counsels. Score Option Sdn Bhd (Company No 550356-V) ('Score Option') was the registered and beneficial owner of the land held under Geran HS(D) 112510 No PT 2063, Mukim and District of Petaling, Selangor Darul Ehsan measuring approximately 200 acres ('the said Land').

[4] Austral Development Sdn Bhd (Company No 638830-A) ('Austral Development') was granted the absolute right by Score Option to develop the Land into a housing development known as Austral Yarra Link.

[5] By a Sale and Purchase Agreement dated 15 January 2010 ('Principal Agreement') between the Plaintiff, Austral Development and Score Option, the Plaintiff purchased a 2 V2 story link house known as Lot No 69, Jalan Metro 1/10A, measuring approximately 153 square meters in the Austral Yarra Link housing development ('the said Property').

[6] Receiver and Managers ("Receivers and Managers") of Score Option were appointed on 29 January 2010 pursuant to a debenture dated 10 April 2008 between Malayan Banking and Score Option. Subsequently, both Score Option and Austral Development went into winding-up and Liquidators were appointed on 5 December 2014 and 20 January 2015.

[7] On 21 January 2011, the Receivers and Managers of Score Option entered into a Sale and Purchase Agreement with the Defendant ('Glomac Agreement') for a consideration of RM77 million to sell the land on which Autral Yarra Link was developed to the Defendant but strictly excluded 198 houses ('known as Sold Units') that were already sold by Austral Development to purchasers in the Austral Yarra Link Development. The Property purchased by the Plaintiff was one of the Sold Units.

[8] The Plaintiff contended that s 7A of the Glomac Agreement imposes an obligation upon the Defendant to complete the construction and development of those uncompleted Sold Units at its own costs and expenses and hand over vacant possession to the purchasers in Austral Yarra Link including the Plaintiff. However, despite the Defendant having completed the construction of the Sold Units, the Defendant refuses to transfer legal and beneficial ownership and deliver vacant possession of the said Property to the Plaintiff.

[9] The Defendant maintained that the Principal Agreement was null and void, and therefore initiated a suit at the Shah Alam Sessions Court vide Civil Suit No: B52NCvC-259-11/2015 ('Previous Suit') against the Plaintiff for among others, a declaration that the Principal Agreement was null and void and the Defendant was the rightful and/or beneficial owner of the said Property. The Defendant in the Previous Suit was the Plaintiff. Whereas the Plaintiff in the Previous Suit was the Defendant.

[10] The Sessions Court dismissed the Previous Suit ie the Principal Agreement was held to subsist. The Defendant appealed to the High Court and the Court of Appeal and both appeals wer