GROUNDS OF JUDGMENT

BACKGROUND

This is an appeal by the defendants against my decision in dismissing the defendants' application in Enclosure 29 with costs. Enclosure 29 is the defendants' application for the following prayers:

(a) Bahawa Perintah Ex-Parte untuk melanjutkan Kaveat persendirian No.4250/2005 yang dimasuki terhadap tanah-tanah yang dipegang di bawah PN Lot 1065 dan PN 20276 Lot 1064, kedua-duanya Mukim Bertam, Daerah Melaka Tengah, Negeri Melaka, yang diberi oleh Hakim yang bijaksana Yang Arif Dato' Hj Abdul Malik b. Hj Ishak pada 26.5.2006.

(b) Bahawa Kaveat tersebut dipotong dengan segera.

(c) Ganti rugi ditaksirkan dan dibayar oleh plaintif kepada defendan pertama.

(d) Kos bagi permohonan ini dibayar oleh plaintif kepada defendan pertama.

(e) Lain-lain perintah dan relief mahkamah yang mulia ini anggapkan adil dan sesuai diberi.

I had dismissed Enclosure 29 based on the following reasons.

FACTS OF THE CASE

I am of the opinion that it is pertinent to lay down the brief facts of this case in order to fully understand the circumstances that resulted in the defendants filing Enclosure 29.

By a Letter of Award dated 19.7.2001, the 1st defendant had appointed the plaintiff to carry out various works ie,. "Proposed renovation works for Joyous Seasons Sdn Bhd as trustee of Calvary Life Assembly (Chinese) A/g No.2 Buildings and the connecting building held under HS(D)34798, Lot 1385 & 1386 both at Mukim Bertama Daerah Melaka Tengah Negeri Melaka"

In the Letter of Award, the contract price for the said works was RM8 million encompassing 4 phases. The payment for the said works for each phase is as follows: for phase 1 RM2.9 million; phase 2 RM4 million; phase 3 RM1.5 million and phase 4 RM2.5 million. The defendants were also to make advance minimum payment inter alia for phase 1, that is the phase related to the application in Enclosure 29, on the following dates ie, in August 2004 the amount of RM300,000.00; in September 2004 the amount of RM300,000.00 and in December 2004 the amount of RM400,000.00.

On the same date as the Letter of Award ie, 19.7.2001, the directors for the 1st defendant executed an irrevocable power of attorney (the said power of attorney) in line with the terms of the Letter of Award. The said power of attorney was executed by the 1st defendant's directors to secure the payment of the balance of the contract price or any part thereof still owing to the plaintiff subject to the terms of the said power of attorney.

After receiving the Letter of Award, the plaintiff had entered the construction site and commenced with the renovation works. As at the end of 2004, the plaintiff had completed 50% of the works for phase 1 but had only received payment from the 1st defendant in the amount of RM230,000.00. The plaintiff had not received the minimum advance payment of RM1 million as promised in the Letter of Award.

As a result of the 1st defendant's failure to fulfill the terms of the Letter of Award, the plaintiff had instituted the present suit by filing a writ of summons and statement of claim on 3.8.2005 claiming for the balance payment amounting to RM1.07 million for the 50% renovation works completed and RM1.2 million as damages for alleged loss of business profits.

On 21.9.2005, the plaintiff entered a private caveat on the said land via No. 4250/2005. The reasons for entering the private caveat are as follows:

"Pemilik tanah gagal membayar wang yang dicatat dalam surat bertarikh 19.7.2004 bagi kerja-kerja renovasii yang dibuat atas tanah tersebut oleh Lim Lee Construction Sdn Bhd (102500-H) dan Pemilik tanah telah memberi Power of Attorney bertarikh 19.7.2004 kepada kami untuk menjamin pembayaran wang kepada kami"

Subsequently, on 9.2.2006, the plaintiff was served with Form 19C by the Registrar of the Land Office, Melaka regarding the proposal to remove the caveat entered by the plaintiff.

On 19.5.2006, the plaintiff took steps by filing an ex parte application in Enclosure 21 for an order to exten

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