JUDGMENT

Noor Hisham Ismail J:

Introduction

[1] This is a Writ action filed by the Plaintiff ("P") against the Defendant ("D") for unlawful termination of contract and for damages arising therefrom.

[2] At the conclusion of the trial, this Court found for D and dismissed the action with consequential order for D to return to P a sum of RM5,058,631.10 being deposit paid by P to D for the contract. Each party was also ordered to bear their own costs.

[3] D has since filed an appeal at the Court of Appeal.

[4] The followings are the Court 's grounds for dismissing P's action.

Salient Facts

[5] P and D entered into a Joint-Venture Agreement on 6 February 2017 ("the JVA").

[6] The main object of the JVA was to construct medium and low-cost houses, commercial units and public amenities ("the development").

[7] Upon execution of the JVA, P paid D a sum of RM5,058,631.10 as deposit as required in the terms of the JVA. The JVA provides that P shall complete the development within seven (7) years from the date of the signing of the JVA.

[8] There are however conditions precedent stipulated in the JVA. One of those is at cl 4.1(d) where it is stated that P is required to submit designs and drawings to Pihak Berkuasa Tempatan (PBT) Pengerang for the purpose of obtaining approval for the development plans.

[9] The drawings in respect of the development were given by P to D, where the latter had signified its acceptance by signing them off on 21 March 2017. The drawings were then submitted to PBT Pengerang together with the application for planning approval.

[10] On 18 May 2017, PBT Pengerang gave conditional approval for the submitted plans.

[11] Under the terms of the JVA, namely cl 2.5(g), it is stated that following the submission of the designs and drawings to PBT Pengerang, and the fulfillment of other conditions precedent, D is required to set up a Management Consultative Committee (MCC).

[12] After obtaining conditional approval from PBT Pengerang, D wrote two (2) letters to P, dated 1 January 2018 and 10 January 2018, notifying P of the proposed meeting of the MCC, which was scheduled to be held on 18 January 2018. The two (2) letters were sent pursuant to cl 2.5(g) of the JVA. However, it is not in dispute that no meetings had in fact took place.

[13] On 5 February 2018, P, with D's consent, obtained sewerage planning approval from Indah Water Consortium Sdn Bhd D then provided assistance to P to obtain a valuation report on the lands involved in the development from Jabatan Penilaian dan Perkhidmatan Harta Johor Bahru.

[14] On 9 July 2018, PBT Pengerang wrote to P to say that P's application for planning approval had been rejected (ditolak) on the following grounds:

"i. Tidak mendapat sokongan rasmi daripada Jabatan Alam Sekitar.

ii. Tidak mematuhi ulasan teknikal Indah water Consortium Sdn Bhd."

[15] Upon receiving the letter of rejection dated 9 July 2018, P appealed to PBT Pengerang against the rejection.

[16] On 28 October 2018, PBT Pengerang wrote to P, informing that P's appeal could not be considered as it had not been filed within the 30 days as prescribed by the relevant rules. This letter was copied to D.

[17] On 29 October 2018, D wrote to P notifying it that its failure to obtain planning approval was a breach of the JVA and had caused the JVA to be "frustated". To quote the letter:

"... merupakan satu pelanggaran di bawah Perjanjian ini tidak boleh diteruskan dan kecewa (frustrated). Di atas kegagalan pihak Tuan, maka KEJORA (Defendant) dengan ini memberi notis penamatan Perjanjian Pembangunan (JVA) bertarikh 6 February 2018."

[18] On 6 January 2019, D wrote to P terminating the JVA on account of the rejection of the P's appeal to PBT Pengerang to reconsider the latter's withdrawal of the conditional approval. D further claimed in the letter that the JVA had been terminated due to frustration of the contract due to PBT Pengerang's rejection of P's appeal against a decision to not grant planning approval.

[19] P's solicitors replied to D