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 is RM143,590,488.09 (this is the figure as stated in para 48(a) of the statement of defence and counterclaim).

[5]At the conclusion of the trial, the learned trial judge allowed the appellant’s/plaintiff’s claim — but only partially. First, the learned High Court judge granted the appellant’s/plaintiff’s prayer for a declaration that the termination by the appellant/plaintiff of the Al-Istisnaa’ facility agreements, that is, the APA and the ASA dated 14 May 2001 is lawful and valid. That part of the order of the High Court granting the declaration reads:

(1)tuntutan oleh Plaintif untuk satu deklarasi bahawa penamatan Perjanjian-Perjanjian Kemudahan Al-lstisnaa’ bertarikh 14.5.2001 oleh Plaintif adalah sah dan mengikut undang-undang, diberikan.

[6]Secondly, the High Court awarded the appellant/plaintiff nominal general damages in the sum of RM50,000.

[7]The High Court, however, dismissed the appellant’s/plaintiff’s prayer for a declaration that by reason of the lawful and valid termination of the APA and the ASA the respondent/defendant is, as a consequence, not entitled to rely or enforce the securities given by the appellant/plaintiff for the facility agreements (the various security documents eg deeds of assignment, guarantee agreements, debenture, undertaking, are listed in para 33(2) of the statement of claim).

[8]The learned High Court judge also dismissed the appellant’s/plaintiff’s other consequential claims or reliefs (including a prayer for an injunction to restrain the respondent/defendant from enforcing the securities).

[9]The learned High Court judge, however, allowed the respondent’s/defendant’s counterclaim that it be paid in full the sale price under the ASA (minus the undisbursed sum under the APA and the sum paid by the appellant/plaintiff), but subject to certain deductions.

THE APPELLANT’S/PLAINTIFF’S APPEAL

[10]The appellant’s/plaintiff’s appeal is against:

(a)the award of nominal general damages of RM50,000;

(b)the refusal of the High Court to grant consequential reliefs in the form of declarations in respect of the securities;

(c)the refusal of the High Court to grant a consequential relief in the form of an injunction in respect of the securities; and

(d)the allowing of the respondent’s/defendant’s counterclaim against the appellant/plaintiff for full payment of the sale price under the ASA (but with certain deductions).

THE RESPONDENT’S/DEFENDANT’S CROSS-APPEAL

[11]There is, as said earlier, a cross-appeal by the respondent/defendant against the decision of the learned High Court judge in respect of the respondent’s/defendant’s counterclaim — but only on quantum. In its counterclaim before the High Court, the respondent/defendant claims that it be paid in full the selling price of RM185,360,000 as provided for under the ASA but minus the s