Peh Swee Chin SCJ:

We had allowed the appeal earlier making also certain consequential orders and we now give our reasons.

The appeal arose out of one of those frequent transactions in which parties have negotiated with each other where one party alleges they have reached a definite binding agreement while the other alleges to the contrary viz., they were then still negotiating with each other. In the instant case, the learned trial Judge found a binding and concluded agreement and we differed, hence the appeal was allowed.

The plaintiff, a solicitor in fact practising under the name and style of L.S. Tan & Co., claimed specific performance of an agreement for the sale to him of a few pieces of land by the defendant, (hereafter the said land), the said agreement had been said to be made by a document in the form of a letter dated 10 March 1989 and addressed to the name of the plaintiff's legal firm, (hereafter the said document). It is to be borne in mind that in all the correspondence and the said document, the name of "L.S. Tan & Co." was used instead of the plaintiff's personal name, though in two different drafts of the agreement of sale and purchase to be dealt with later, the plaintiff's personal name was used. Both parties appeared to have tacitly agreed that the use of the name of the legal firm of plaintiff was meant to refer to plaintiff, so it should be so regarded.

The said document dated 10 March 1989 is set out below:

Kam Mah Theatre Sendirian Berhad

360 (2nd Floor) Jalan Raja Laut

Tiong Nam Settlement, Kuala Lumpur

10 March 1989

Our Ref. YCC/AFY/nbl

M/s. L.S. Tan & Co. 11 Jalan Cheng Lock 50000 Kuala Lumpur

Attention: Mr. L.S. Tan

Dear Sirs,

Lot Nos. 1095, 1610 & 1611, Mukim 12, South West District, Penang

This letter serves to confirm that we have agreed to sell the following properties: Particulars Pegangan Gross Area Net Area of Title No. before after surrender surrender (sq. ft.) (sq. ft.)

1. Perakuan Pendahuluan Mengenai Hakmilik (Advance Certificate of Title) Mukim 12, Daerah Barat Daya, Balik Pulau Negeri Pulau Pinang 1095 106,412 84,961

2. " 1610 111, 895 98,553

3. " 1611 125,507 17,362

Total 343,814 200,876

(approx.)

to you as trustee at Malaysian Ringgit Nine (RM9) only per square foot of the total net saleable area of 200,876 (more or less) square feet in consideration of your payment of a deposit sum of Malaysian Ringgit Ninety Thousand Three Hundred and Ninety Four and Cents Twenty (RM90,394.20) the receipt of which is hereby acknowledged upon terms and conditions as follows:

1. that the purchase price is at Malaysian Ringgit Nine (RM9) only per square foot of the net saleable area of 200,876 (more or less) square feet 2. that the aforesaid lands shall be free from all encumbrances 3. that the purchase price shall be paid as follows:

(i) 15% of the purchase price on or before 18 March 1989 (which shall include

the 5% paid hereinbefore)

(ii) another 30% of the purchase price on or before 18 April 1989 (iii) another 30% of the purchase price on or before 18 May 1989 (iv) another 25% of the purchase price on or before 18 June 1989

provided that the sale and purchase agreement shall incorporate all the terms and conditions herein and other usual terms and conditions and shall be signed on or before 18 March 1989 otherwise the aforesaid sum of RM90,394.20 (equivalent to 5% of the purchase price) shall be refunded to you free of interest without demand forthwith.

4. that the vendor' solicitor shall be stakeholder for 5% of the purchase price for the payment of Real Property Gain Tax (if any) and the vendor shall provide a bank guarantee to the purchaser's solicitor 5. that the purchaser's solicitor is authorised to pay the total proceeds of the sale to Malayan United Finance Berhad or any financial institution for the purpose of discharging the aforesaid properties for completion of sale and purchase of the aforesaid properties. In the event that the payment of the aforement