Mohd Hishamudin JCA (partially dissenting judgment):

[1]This is an appeal against the decision of the High Court of Kuala Lumpur of 1 June 2010. Before the High Court, the appellant was the plaintiff, and the respondent, the defendant.

[2]There is also a cross-appeal by the respondent on its counterclaim, but only in respect of quantum.

[3]The claim of the appellant/plaintiff against the respondent/defendant before the High Court is for breach of Islamic financing agreements called Al-Istisnaa’ agreements, namely, the Al-Istisnaa’ purchase agreement (‘the APA’) and the Al-Istisnaa’ sale agreement (‘the ASA). The appellant/plaintiff sought before the High Court several declarations, an injunction and general damages.

[4]The respondent/defendant, on its part, denies that it was in breach of the Al-Istisnaa’ agreements and made a counterclaim against the appellant/plaintiff for the full payment of the sale price under the ASA, minus the following sums: (1) the sum under the APA that was not released to the appellant/plaintiff; and (2) the sum that had been paid by the appellant/plaintiff (see para 46 of the statement of defence and counterclaim). The net sum claimed under the counterclaim