JUDGMENT

Azizan Md Arshad J:

[After Full Trial]

[1] This is an appeal filed on 1 October 2025 by the appellant/defendant against the decision of this Court delivered on 23 September 2025 which allowed the plaintiff/respondent's claim and dismissed the appellant/defendant's counterclaims.

[2] This trial was carried out from 13 March 2023 and had concluded on 16 October 2024 with the testimony of three (3) witnesses for the plaintiff and four (4) witnesses for the defendant. The parties in this judgment are referred to as they were in the High Court .

Issues to be Tried

[3] Both parties agree that the following are the common issues that ought to be decided by this Court , namely:

(i) Whether the Joint Venture Agreement dated 4 November 1996 entered between Boon San Tong and Hun Meng (the said Agreement) has been terminated by reason of frustration and if so, whether Boon San Tong is entitled to the prayers prayed for in para 5(aa) to (ll) (or part thereof) of the Amended Statement of Claim.

(ii) Whether Boon San Tong is estopped from raising the issue of frustration due to the matters alleged in para 6A.3 of the Amended Defence and Counterclaim.

(iii) Whether Boon San Tong's claim founded on frustration is time-barred under s 6(1)(a) Limitation Act 1953 as alleged in para 6A.4 of the Amended Defence and Counterclaim.

(iv) In the alternative to i, ii and iii above, whether Hun Meng had materially breached the said Agreement and if so, whether Boon San Tong is entitled to the prayers prayed for in para 5(aa) to (ll) (or part thereof) of the Amended Statement of Claim, subject always to Boon San Tong proving the same.

(v) If the answers to i, ii, iii and iv above are in the negative, then whether Boon San Tong had been in material breach of the said Agreement and/or whether there had been sufficient part performance of the contract in accordance with the said Agreement by Hun Meng, so as to entitle Hun Meng to the following:

(a) specific performance of the said Agreement counterclaimed for by Hun Meng in para 63(i) of the Amended Defence and Counterclaim; and

(b) the grant of the declarations and reliefs as counterclaimed for by Hun Meng in para 6(ii) of the Amended Defence and Counterclaim subject always to Hun Meng proving the same.

[4] The following is a summary of the statement of claim and counterclaim of the present case:

The Plaintiff's Claim

[5] The Plaintiff by their Amended Statement of Claim dated 7 June 2018 seek essentially the following orders, namely:

(aa) an order for declaration that the Agreement is terminated by reason of frustration without the fault of both parties;

(bb) an order for declaration that the plaintiff refunds the deposit in sum of RM30,000.00 to the defendant;

(cc) that the Power of Attorney dated 5 November 2003 given by the plaintiff to the defendant is revoked;

(dd) an order for declaration that the defendant shall deliver vacant possession of the part of the Land known as Geran 18210, Lot 425 Seksyen Bandar 23, Bandar George Town, Daerah Timur Laut, Negeri Pulau Pinang (of which had been subdivided and is now known as Geran Hakmilik 112052, Lot 775, Seksyen 23, Bandar George Town, Daerah Timur Laut, Negeri Pulau Pinang dan Geran No. 112053, Lot 776, Seksyen 23, Bandar George Town, Daerah Timur Laut, Negeri Pulau Pinang 7 days from the date of judgment;

(ee) an order that the license to enter the land known as Geran 18210, Lot 425 Seksyen Bandar 23, Pulau Pinang by the defendant is terminated and cancelled wherein the defendant is to deliver vacant possession of the part of the land known as Geran 18210, Lot 425 Seksyen Bandar 23, Pulau Pinang to the plaintiff in 7 days from the date of judgment;

(ff) an order that the license to enter the land known as Geran 35913, Lot 428 Seksyen Bandar 23, Pulau Pinang by the defendant is terminated and cancelled wherein the defendant is to deliver vacant possession of the part of the land known as Geran 35913, Lot 428 Seksyen Bandar 23, Pulau Pinang to the plaintiff in 7 da