[1] The appellant, Tan Chee Hoe & Sons Sdn Bhd, was the defendant in the High Court, and the respondent, Code Focus Sdn Bhd, was the plaintiff there. For the purpose of this judgment, the appellant will be referred to as the defendant and the respondent as the plaintiff, as they were referred to at the High Court.

[2] The present appeal before us is by the defendant against the unanimous decision of the Court of Appeal on 14 August 2012 in allowing the plaintiff s appeal against the decision of the High Court, and ordering the defendant to refund the plaintiff s deposit of RM1.6 million and damages to be assessed or alternatively the defendant to pay the plaintiff damages in the sum of RM3.2 million as agreed liquidated damages stipulated in the sale and purchase agreement (SPA) dated 10 November 1995 between the parties.

[3] On 23 May 2013, leave to appeal was granted by this Court to the defendant on the following questions of law, namely:

(i) where the Court of Appeal makes a decision on a subject matter affecting the rights and liabilities of litigants based on a non-existing statutory provision, whether or not the Federal Court should, as a matter of course, review that decision