Vernon Ong JC

[1]Aw Boon Hwa (‘the defendant’) is the registered owner of the land held under EMR 5199 Lot No 7839 Mukim Tanjung Sembrong, Daerah Batu Pahat, Johor (‘the land’). By a joint venture agreement dated 7 November 1994 (‘the JVA’) entered into between the defendant and Poh Boon Construction Sdn Bhd, (‘the plaintiff’) the plaintiff agreed to develop the land into a housing and/or industrial estate. The plaintiff contends that the defendant breached his obligations under the JVA and is claiming for (a) a declaration that the JVA is null and void, and (b) loss and damages. On the other hand the defendant contends that the plaintiff breached their obligations under the JVA and counterclaims for (a) the return of the document of title to the land, (b) the removal of a caveat lodged by the plaintiff over the land, and (c) vacant possession of the land.

THE FACTS AS PRESENTED BY THE EVIDENCE

[2]The JVA was prepared by Mr Lim Kian Ser (‘DW2’) of Messrs Chin Hin Lam & Co solicitors for the defendant. On 7 November 1994 the defendant executed the JVA and the power of attorney which was subsequently registered at the Johore Bahru High Court. On or about 10 December 1994 the defendant executed the memorandum of transfer (‘MOT’). On 18 December 1994 the defendant deposited the title deed to the land with Messrs Chin Hin Lam & Co. The approval for the conversion and subdivision of the land was obtained on 28 July 1997. The plaintiff obtained a developer’s licence on 4 August 1999 for the period from 2 August 1999 to 1 August 2002. The plaintiff renewed the developer’s licence on 1 August 2000 for the period from 2 August 2000 to 1 August 2004. The plaintiff also obtained a sales and advertising permit on 2 September 1999. The sales and advertising permit was subsequently renewed on 22 June 2000, 9 July 2001, 2 August 2002 and 4 August 2003.

[3]Between March 1998 to April 2003 the plaintiff and the defendant exchange numerous correspondence. These correspondence form the main body of documentary evidence shedding light upon the conduct of the plaintiff and the defendant. On 2 March 1998 the plaintiff wrote to the Chin Hin Lam & Co informing that the approval for the conversion and subdivision had been obtained and asked for the transfer of the land pursuant to cl 4(d). Chin Hin Lam & Co replied on 5 March 1998 asking the plaintiff to arrange with the defendant to call at their office in order to prepare a supplementary agreement for the transfer of the land. On 6 October 1998 the plaintiff wrote to Chin Hin Lam & Co informing that they are planning to start the project and asking for the transfer documentation to be prepared. Meanwhile on 23 October 1998 the plaintiff also wrote to the defendant to select the subdivided lots as the layout plan has been approved. Messrs CL Boo & Associates (‘the plaintiff’s solicitors’) then wrote to Chin Hin Lam & Co on 19 November 1998 requesting for the transfer documentation for the land and a copy of the letter of guarantee (‘L/G’) for the plaintiff’s approval. On 10 December 1998 Chin Hin Lam & Co replied confirming that they have custody of the duly executed ‘transfer forms’ and enclosed a draft L/G for the plaintiff’s perusal and comments. They also asked the plaintiff to furnish the total consideration to be specified in the ‘transfer forms’ and the number of housing units to be allocated to the defendant. The plaintiff’s solicitors replied on 15 December 1998 stating the property to be transferred is the land and not the approved subdivided lots. As such the defendant’s request for the number of housing units was premature. The plaintiff’s solicitors also proposed the deletion of cll 1(a) and (b) of the draft L/G.

[4]On 17 December 1998 the defendant’s solicitors provided the details of the lots selected by the defendant and rejected the plaintiff’s proposed deletion of cll 1(a) and (b). Meanwhile, on 19 December 1998 the plaintiff wrote to the defendant enclosing a layout plan identifying the