The court affirmed that claims for specific performance must be filed within the limitation period, triggered by notification of a breach.

Shaik Daud Ismail JCA:

This appeal is from the decision of the Penang High Court which had confirmed the order of the learned Senior Assistant Registrar in allowing an application by the respondents to strike out the writ and statement of claim filed by the appellant under O. 18 r. 19(l)(a), (b) and/or (c) of the Rules of the High Court, 1980.

Briefly the facts are that on 11 August 1980, by a sale and purchase agreement made between the appellant of the one part and one Teoh Tiang Ming (deceased) together with the 3rd and 4th respondents of the other part, the appellant agreed to purchase three pieces of land known as Holdings No. 81, 82 & 83, Section 1 Town of Butterworth, Province Wellesly North, for a consideration of RM422,525. Pursuant to the said agreement, the appellant paid a sum of RM42,252.50 as deposit and part payment of the purchase price. The balance of the purchase price was to be paid in three instalments the last of such instalments was to be made within 12 months of the date of the execution of the sale and purchase agreement, or within one month from the receipt of a written notice from the 1st to 4th respondents confirming that vacant possession of the said properties could be delivered to the appellant, whichever was the later.

The 1st to 4th respondents subsequently sold the said properties to the 5th, 6th and 7th respondents on 11 April 1994, who soon thereafter lodged a caveat over the properties.

The sale did not go through because the 1st to 4th respondents could not deliver vacant possession. The appellant filed a writ and statement of claim on 13 January 1995 for specific performance and other ancillary orders. The 1st to 4th respondents filed an application for the action to be struck out under O. 18 r. 19(l)(a), (b) & (c) and a similar application was filed thereafter by the 5th to 7th respondents. The 1st to 4th respondents' reasons for striking out were that the claim was statute barred and the action was vexatious and an abuse of the court process.

The 1st to 4th respondents contend that the cause of action arose around 1982 when the deceased Teoh Tiang Ming conveyed to the appellant's representative that he was unable to sell the land with vacant possession, in accordance with the sale and purchase agreement. Pursuant to this a letter dated 7 June 1982, was sent to the appellant's solicitors, proposing to sell the said properties without vacant possession but at a lower price. The appellant did not accept this offer. Therefore, it is contended that the breach of the 1980 agreement, occurred in 1982 when the 1st to 4th respondents failed to persuade the appellant to purchase the properties without vacant possession but at a lower price. It is further contended that this offer was to make substantive variations to the sale and purchase agreement. Since the 1st to 4th respondents could not perform the agreement a breach had thereby occurred. The cause of action had then arisen to enable the appellant to sue the 1st to 4th respondents. As this was a claim for specific performance of a sale and purchase agreement which essentially is a claim based on contract, s. 6(l)(a) of the Limitation Act, 1953 applies, and the action having been commenced more than six years after the cause of action arose, is caught by limitation. The statement of defence filed by the 1st to 4th respondents centered mainly on limitation but the appellant failed to reply.

The issue, therefore, is when did the period of limitation begin to run in this case. It is contended by the learned counsel for the 1st to 4th respondents that, it ran from 1982 when notice was sent to the appellant that the 1st to 4th respondents were unable to give vacant possession pursuant to the terms of the sale and purchase agreement. In Nasri v. Mesah [1970], the appellant claimed specific performance of a sale and purchase agreement dated 5th June, 1947, for the sale of land by the respondent to him. The appellant had paid the agree