A party claiming damages for breach of contract must demonstrate that the breach caused the inability to perform contractual obligations; non-performance by either party exempting the other from liability.

[1] The appellant, Juta Damai Sdn Bhd, appealed to this court against the decision of the High court given on 29 February 2012. The High court had dismissed the appellant's claim against the respondent, Permodalan Negeri Selangor Berhad, with costs.

[2] The appellant and the respondent had entered into a Joint Venture Agreement dated 7 April 1995 (the JVA) and a supplementary agreement dated 15 May 1996 under which the appellant was to undertake a housing, commercial and industrial development including public amenities and infrastructure on a piece of land of 70 acres held under Lot 5317, Mukim Dengkil, District of Sepang, Selangor. Through its solicitor's letter of 2 July 2001, the respondent informed the appellant that the Joint Venture Agreement had expired on 6 April 2001 and would not be renewed. On 21 December 2006, the appellant filed its civil suit.

Appeals Generally

[3] By s 69(1) of the Courts of Judicature Act 1964 (Act 91), appeals to this court are by way of re-hearing. To ensure appeals are bona fide and not mere attempts for a second bite at the cherry, it is trite law that unless it is demonstrated that the court appealed from had erred in law, principle, fact or appreciation of facts, and that such error affected the merits or jurisdiction of the court (see s 72 of Act 91), any intervention by an appellate court is unwarranted. An unwarranted intervention is an interference.

[4] We examined the grounds of judgment of the High court accordingly.

The Witnesses

[5] Having set out a brief background of the civil suit and cls 2(i), 2(v), 2(vii), 2(ix), 3(ii), 4(i) and 18 of the JVA, the High court correctly stated that:

"Pursuant to the joint venture agreement, the plaintiff had submitted the lay out plans to the relevant authorities for approval. The lay out and pre com plans were approved vide letters dated 28 February 1996 and 5 April 1996 and the building plan was approved vide letter dated 20 September 199[6].

It is the plaintiff's case that they are not able to start preliminary works such as survey works to prepare the earthworks plan, the drainage and road plans as the land was occupied by a third party known as Kazabina Sdn Bhd, carrying out sand mining activities."

[6] Then the High court summed up the evidence of SP1 Encik Kenny Lim @ Lim Kah Joo who had:

(a) referred to the appellant's letters of 18 April 1995, 3 May 1995, 29 February 1996 and 1 October 1996 and testified that several complaints were made to the respondent on the sand mining activities and for the respondent to give vacant possession of the land to the appellant in order for them to carry out the said development;

(b) referred to the appellant's letters of 5 March 2001 and 5 April 2001 where the appellant proposed to the respondent to convert the development of housing and industrial into a mixed housing development;

(c) contended that the termination was wrongful; that the respondent had breached the JVA in failing to deliver vacant possession of the land and that the appellant suffered losses amounting to RM5,504,527.49 being the expenses incurred by the appellant for the preliminary works in respect of the development; and loss of profit in the sum of RM21,486,263.75, based on the appellant's entitlement under the supplementary agreement for houses, buildings and/or land lots amounting to RM52,341,263.75 minus the estimated costs of the development.

[7] In respect of the expenses incurred in the sum of RM5,504,527.49, the High court summarised his testimony as follows:

"... SP1 in his evidence referred to sev