Azmi LP:

This is an appeal by the plaintiffs, administrators of the estate of Ng Lye Hoong (f) deceased, against the judgment of the High Court dismissing their claim for the return of $10,000, deposited by the deceased with the defendant, a company incorporated in Malaysia and the owner of a housing estate situated in Kuala Lumpur.

On 23 April 1964, Ng Lye Hoong to whom I shall refer as the deceased, during her life-time executed a printed document marked as Exh. P3, under which she confirmed her intention to purchase from the defendant company a three storey shophouse in Jalan Tiong in Kuala Lumpur at a price of $88,750. She paid the defendant company $10,000 on the execution of the exh. P3.

Clauses 3 and 4 of Exh. P3 read as follows:

Clause

3: I/We will enter into formal agreement in the form and on such terms and conditions as your solicitors shall prescribe within fourteen (14) days from your giving notice requiring me/us to do so (time being of the essence). Failure to comply with such notice shall entitle you to forfeit the said deposit as liquidated damages and this agreement shall become null and void and of no further effect and I/we shall not be entitled to make any claim against you nor to any right title or interest in the property.

4: You may at your absolute discretion rescind this agreement by giving notice in writing and returning the said deposit to me/us (but without costs, interest or any other additions whatsoever) and the same shall be accepted by me in full satisfaction of all claims hereunder. This sale is also subject to building plans being approved by authority.

Written at the foot of the document are the following words and figures:

(1)Payment .. .. .. .. $10,000

(2)Payment .. .. .. .. $18,750

(3)Payment .. .. .. .. $15,000

Balance .. .. .. .. $45,000

$88,750

Oral evidence was given to explain that those figures represent periodical payments to be made by deceased though the dates for those payments were not given.

It would be seen from the above that the deceased would have to sign the formal agreement (to be prepared by the company's solicitor) within 14 days from the notice given to her and that time was the essence of the agreement, and that if she should fail to sign the agreement and pay the next instalment within the time prescribed the company would be entitled to forfeit the deposit. On the other hand the defendant company may rescind the contract by giving notice in writing and returning the deposit but without costs, interest and any other addition whatsoever and she was to accept the deposit in full satisfaction of all claims.

On 1 June 1964 the defendant company sent a notice to the deceased requesting her to go and see the defendant company's solicitors to sign the formal agreement and to pay the sum of $18,910 to meet the second payment including solicitors' charges and stamp fees.

Apparently deceased did not comply; so another letter dated 8 July 1964 was sent to her with a similar request. Again another letter dated 5 August 1964. She acknowledged receipt of the letter but merely asked for a copy of the agreement for her perusal.

On 20 August 1964 the defendant company wrote again to the deceased requesting her to go and sign the agreement and at the same time informed her that if she should fail to do so within seven days of the date of this letter the defendant company will sell the property to other purchasers on its list. Deceased in acknowledging receipt of that still insisted on having a copy of the agreement.

On 15 September deceased wrote to the defendant company and requested it to sell the property to other purchasers and to return her deposit of $10,000.

On 5 October the defendant company again wrote requesting deceased to go and sign the agreement. No reference to deceased's letter of 19 September was made, though the defendant's director admitted in his evidence that this letter had been received by the company.

On 14 December 1964 the defend