JUDGMENT

Charles NC Ho J:

The plaintiff in this action entered into a sale and purchase agreement with the 1st defendant on 6 September 1985, for the purchase of a shop house unit developed and built by the 1st defendant. Even though the plaintiff had fully paid the purchase price partly from her own money and partly from the loan she had taken from a credit company called S.Y. Jie Credit Sdn Bhd, the 1st defendant failed to transfer the said shop house unit to her name. Apparently the failure or inability of the 1st defendant in transferring the shop house unit to her was because the property was charged to the Sabah Bank and the 1st defendant was unable to redeem it. Subsequently the shop house unit purchased by the plaintiffs and the other unsold units were put up for sale by Sabah Bank pursuant to the charges with the bank. The plaintiff now brings this action to claim against all the defendants jointly and severally the sum of RM208,587 (which includes the purchase price and other expenses), damages, statutory interest, and costs.

At the outset of the trial counsel for the plaintiff informed the court that judgment in default had been entered against the 1st defendants' company which had since been deregistered by the registrar of company and the plaintiff is not proceeding against 2nd defendant who had passed away.

Facts

The agreed facts are briefly these: The plaintiff agreed to purchase from the 1st defendant the property known as 'Ground Floor, Lot A, Wisma Shing Yin (hereinafter called the 'subject property') for the purchase price of RM170,000. Upon signing of the sale and purchase agreement on 6 September 1985, the plaintiff was given possession of the subject property. The plaintiff was granted a loan of RM102,000 by SY Jie Credit Sdn Bhd towards the purchase of the subject property and a loan agreement dated 6 September 1985, was executed between the said credit company and the plaintiff. The sale and purchase agreement, the loan agreement together with the memorandum of charge in escrow was prepared by and executed in the office of the 4th defendant's legal firm and the legal fees and stamp duty paid by the plaintiff to the 4th defendant amounted to RM2,673. The 3rd defendant was at all material times a registered shareholder (204000 shares) and director and company secretary of the 1st defendant's company as well as the company secretary of the S.Y. Jie Credit Sdn Bhd.

The land upon which the subject property was erected had not been converted to commercial use and was charged to Sabah Bank under a number of memorandum of charges registered with the land office on various dates both before and after the execution of the sale and purchase agreement. The Sabah Bank in exercise of its rights as chargee sold the said land including the subject property on 28 May 1993 to one Datin Rupiah bte Bachee Khan.

Oral Evidence

According to the plaintiff (PW1) who is a 56 year old hawker the events which led to the signing of the sale and purchase agreement and the formalisation of the loan documents are these: After the plaintiff saw an advertisementput up by the 1st defendant in the newspaper for the sale of completed shop houses she and her husband (PW2) went to the office of the 1st defendant. There they met one Mr. Jie Shing Yin (2nd defendant) who dealt with them. When they indicated that they were interested in Lot A Mr. Jie told them that it had already been booked by someone else but he could talk to that person to get that lot for the plaintiff. Mr. Jie also told them that he would arrange for end financing and get a lawyer for them. As Mr. Jie was speaking in Cantonese and the plaintiff did not understand Cantonese, the conversation in the 1st defendant's office was between her husband who understood Cantonese very well and Mr. Jie. These details were given to her by the husband later. A few days later the plaintiff heard from her husband that Lot A was available. The plaintiff and her husband then went to the law