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2025 MarsdenLR 6161
HIGH COURT MALAYA KUALA LUMPUR
FORTUNE HALLMARK SDN BHD – Appellant
Versus
TWIN RIDGE SDN BHD – Respondent
[Civil Suit: WA-22NCvC-174-03/2020]
A party’s conduct can waive compliance with contract terms, and hearsay evidence without personal experience is inadmissible. A valid agreement reached through conduct supersedes prior disputes.
Headnote:(A) Contract Law - Exclusive Marketing and Agency Agreement - Breach of contract - Plaintiff claimed outstanding amount for services and deposit refund - Defendant alleged Plaintiff's breach - Court found arrangement for set-off of outstanding amounts with selected units - Defendant's conduct amounted to a waiver of compliance with contractual requirements. (Paras 19, 63, 106)
(B) Evidence Act 1950 - Principles on hearsay evidence - Testimony deemed inadmissible if not based on personal knowledge - Court emphasized necessity of firsthand evidence for credibility. (Paras 43, 46)
(C) Witness Credibility - Inferences drawn from failure to call certain witnesses - Lack of evidence supports Plaintiff’s claims over Defendant's assertions. (Para 102)
Facts of the case:
The Plaintiff, a marketing agent, entered into an Exclusive Marketing and Agency Agreement with the Defendant, a property developer—disputed sales targets and obligations arose due to multiple breaches by the Defendant leading to this litigation. (Paras 2-8)
Findings of Court:
The Court ruled in favor of the Plaintiff, determining that an agreement for payment by contra of specific units existed, establishing the Defendant's obligation. (Paras 106)
Issues: Key issues included breaches of the EMAA by both parties and the existence of a valid contra agreement. (Paras 18, 106)
Ratio Decidendi: The Plaintiff demonstrated that the Defendant's inadequate provision of end-financiers and breach of regulatory obligations constituted breaches of the EMAA, justifying the imposed obligations and resulting claims. (Paras 19, 76)
Result: Defendant ordered to convey ownership of specified units to the Plaintiff and refund the deposit sum along with interest. (Paras 106, 107)
| Table of Content |
|---|
| 1. parties entered into a contract. (Para 1 , 2 , 3) |
| 2. deposit and sales targets detailed. (Para 4 , 5 , 6 , 7 , 8 , 9) |
| 3. plaintiff claims for deposits and outstanding payments. (Para 10 , 11 , 12) |
| 4. defendant counters with breach allegations. (Para 13 , 14) |
| 5. trial evidence overview. (Para 16 , 17 , 18) |
| 6. court analyzes contractual breaches. (Para 19 , 20 , 21 , 22 , 23 , 24) |
| 7. defendant's arguments on documentation fail. (Para 30 , 31 , 32 , 33 , 34 , 35 , 36) |
| 8. testimonies considered as hearsay lack credibility. (Para 46 , 47 , 48 , 49) |
| 9. court recognizes plaintiff’s obligations. (Para 53 , 54 , 55 , 56) |
| 10. court cites precedent for rights under contracts. (Para 61 , 62 , 63 , 64) |
| 11. disputed whatsapp communication analyzed. (Para 82 , 83 , 84 , 85 , 86) |
| 12. court finds an agreement concerning payments. (Para 101 , 102 , 103 , 104) |
| 13. plaintiff awarded recovery of debts. (Para 106 , 107) |
(After Trial)
Introduction
[1] This case involves a claim arising out of a breach of contract ("this Case") filed by Fortune Hallmark Sdn Bhd ("the Plaintiff") against Twin Ridge Sdn bhd ("the Defendant").
Brief Facts Of The Case
[2] The Plaintiff is a marketing agent for property developers while the Defendant is the developer for the development of 296 units of service apartments with retail parcels known as Nadayu 63, Taman Melawati ("N63").
[3] The Plaintiff and the Defendant had entered into an Exclusive Marketing and Agency Agreement dated 29 August 2018 ("the EMAA").
[4] Pursuant to the EMAA, the Plaintiff agreed to pay the Defendant RM300,000.00 as a deposit ("Deposit Sum") which shall be refunded (free of interest) in full to the Plaintiff in accordance with cl 3.4 of the EMAA.
[5] The Plaintiff committed to secure sales as defined in cl 4.3 of the EMAA in two (2) tranches, the sale target under each of the tranches was RM15,000,000.00 in terms of the purchase price of the units. The first tranche expired three (3) months after the commencement date ("the First Tranche").
[6] However, due to multiple breaches of the EMAA by the Defendant, the expiry date of the First Tranche was later extended to 29 January 2019.
[7] The target of the second tranche was for a further accumulated sale of RM15,000,000.00 ("the Second Tranche") expiring on 1 March 2019. Again, the Defendant extended the expiry date of the Second Tranche to 15 July 2019.
[8] On 23 January 2019, the Plaintiff had achieved the committed sales for the First Tranche. Therefore, the Defendant allocated 5 additional units to the Plaintiff to be completed under the EMAA vide a letter dated 2 April 2019.
[9] The Plaintiff then invoiced for a sum amounting to RM1,780,266.50 for its services rendered ("the Outstanding Sum").
[10] The Defendant however, had not paid any of the Outstanding Sum nor refunded the Deposit Sum. On 3 February 2019, the Defendant proposed to pay the sum owed to the Plaintiff by the conveyance of the ownership of 5 mutually agreed and chosen units valued at RM620.00 nett per square foot of N63 ("the 5 Chosen Units") from the Defendant to the Plaintiff. The nett purchase price of the 5 chosen units amounted to RM2,054,680.00 and the remaining amount of RM76,521.00 was to be paid together with future payments.
[11] The Defendant had again, failed to convey the 5 chosen units to the Plaintiff and the market value for units in N63 had then reduced in value.
[12] Hence, the Plaintiff claimed before this Court for, inter alia, the Outstanding Sum due and owing by the Defendant to the Plaintiff and the sum of RM300,000.00 being the refund of the Plaintiff's security deposit.
The Plaintiff's Claim
[13] The Plaintiff premised that through a meeting held on 3 December 2019 ("the Meeting"), an agreement was reached between the parties that the Outstanding Sums owing by the Defendant shall be contra-ed with selected units of N63. In this regard, the Plaintiff's claims, among others, are as follows:
a) A declaration that the Defendant shall co
