Zulkefli Makinudin JCA:

Introduction

[1] This is an appeal by the defendant against the decision of the learned Judicial Commissioner of the High Court at Johor Bahru allowing the plaintiffs application for summary disposal of the suit filed by the plaintiff against the defendant on a point of law under O 14A of the Rules of the High 1980 ("RHC 1980") and entering summary judgment in favour of the plaintiff.

[2] At the appeal stage before the Court of Appeal the defendant filed a notice of motion in encl (24a) pursuant to r 7 of the Rules of the of Appeal 1994 and s 69 of the courts of Judicature Act 1964 for an order that the defendant be at liberty, upon the hearing of the present appeal to adduce and refer to the fresh and further evidence as exhibited in exhs "YTC1", "YTC2", "YTC3", "YTC4" and "YTC5" to the affidavit of Yiap Toon Cheng affirmed on 16 August 2007. Having heard the arguments of learned counsel for the defendant and the plaintiff we unanimously allowed the defendants application in encl (24a) and made an order in terms of the application. We find that the defendant has satisfied the necessary conditions as set out in r 7(3A) of the Rules of the of Appeal 1994 and s 69(3) of the courts of Judicature Act 1964. We also find the defendant has justified the reception of the fresh evidence under the principles as set out in the case of Ladd v. Marshall [1954] 3 All ER 745.

Background Facts Of The Case

[3] The relevant background facts of the case are as follows:

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(1) By a written agreement dated 19 November 2004 ("the agreement") entered between the plaintiff and the defendant, the plaintiff agreed to sell to the defendant a piece of land held under Geran 101840 Lot 325, Mukim Simpang Kanan, District of Baru Pahat, Johor ("the said property") for RM33,500,000 ("purchase price"), and the defendant agreed to purchase the same subject to the terms and conditions as agreed by the parties.

(2) One of the terms and conditions of the agreement provides that, the plaintiff shall be given nine months from the date of the said agreement to relocate a Chinese school built on the said property, namely, SJK (C) Hwa Nan ("the said school") in order to hand over vacant possession of the said property to the defendant.

(3) It is also a term of the agreement that, from the date the plaintiff confirms in writing that vacant possession of the said property is ready to be delivered to the defendant and upon inspection and confirmation by the defendant, the defendant shall have four months from the said date to settle the balance purchase price to the plaintiff, with an automatic extension of two months on condition that the defendant shall pay late interest to the plaintiff.

(4) It is claimed by the plaintiff that vacant possession of the said school, hence the said property, was delivered to the defendant on 21 November 2005. However, the defendant is contending that vacant possession of the said school was not delivered to the defendant on 21 November 2005, but instead, it was on 28 February 2006.

(5) The plaintiff proceeded to file an action against the defendant in the Court below, and in its action, the plaintiff claims against the defendant, inter alia:

(a) a declaration that vacant possession of the said property has been delivered by the plaintiff to the defendant on 21 November 2005; and

(b) a declaration the defendant has failed to pay to the plaintiff the balance purchase price and the interest for extended period on or before 21 May 2006, and therefore, the deposit of 10% of the purchase price paid by the defendant is forfeited by the plaintiff.

(6) The plaintiff thereafter filed an application under O 14A of the RHC 1980vide summons in chambers dated 12 September 2006 ("plaintiffs O 14A application") for the Court to determine the date of delivery of vacant possession of the said school (hence, the said property) to the defendant.

(7) The defendant opposed the plaintiffs O 14A application, inter alia, on the ground that ther