JUDGMENT

This is an action for specific performance of a sale and purchase agreement dated 27 February 1990 for the sale by the defendant and the purchase by the plaintiff of two landed properties ("the agreement"). The price was RM254,700, of which RM25,470 had been paid, RM2,000 direct to the defendant and RM23,470 to the stakeholders, Messrs Alex R. Anthony & Associates, who were acting as stakeholders for both parties. There was therefore a balance of RM229,230, which was to be paid by the completion date, which had been extended from 27 August 1990 to 20 November 1990.

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On 26 October 1990 Arab-Malaysia Finance Berhad advised the plaintiff and his wife that they agreed to grant them a housing loan of RM215,000 to pay for the properties. This approval was amended by the finance company on 29 October 1990 so that the loan was granted to the plaintiff only, his wife now having to provide a personal guarantee instead.

The loan that was approved was short of the outstanding amount under the agreement by RM 14,230. This the plaintiff paid to the stakeholders, as confirmed by the stakeholders to the defendant in a letter dated 6 November 1990, before the completion date.

The defendant had purchased the properties from Syarikat Perumahan Pegawai Kerajaan Sdn Bhd ("SPPK"), who had on 12 February 1990 agreed to give their consent to the defendant to sell them to the plaintiff provided the defendant paid SPPK a sum of RM207,857.10 due to SPPK in respect of the properties. That sum was to be settled, if not settled direct by the defendant himself, by the stakeholders when they received the loan amount from the finance company, at which time the stakeholders, with the initial payment of RM23,470 and the shortfall of RM 14,230, would be holding RM252,700 of the purchase price. See section 111(b) of the Second Schedule to the agreement. The defendant did eventually [Page 3] settle direct with SPPK fully. See SPPK's letter to their solicitors dated 14 November 1990 (P5).

On 6 November 1990 the plaintiff's solicitors, who were also the stakeholders, wrote to the defendant to say that the plaintiff desired to include his wife as a joint purchaser, that the plaintiff and his wife had obtained a loan of RM215,000 from the finance company, that the shortfall had been paid to the stakeholders, and that the stakeholders undertook to pay the surplus of the purchase price to the defendant after deducting any payment due to SPPK and to the revenue as property gains tax. The solicitors informed the defendant that to enable SPPK to make a direct transfer of the properties to the plaintiff, SPPK needed the defendant to execute a letter of nomination, which was forwarded with the solicitors' letter for execution.

Had the defendant executed the letter of nomination, SPPK would have executed a transfer to the plaintiff, the necessary documentation for the charging of the properties to the finance company would have been prepared, the finance company would have disbursed the loan and the defendant would have been paid whatever was due to him.

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But on 19 November 1990, the day before the completion date, the defendant's solicitors replied to say that the defendant did not desire to proceed with the sale. One of the reasons given was that he had not contracted, and did not wish, to sell the properties to the plaintiffs wife.

That, in my judgment, was no valid reason for not proceeding with the sale because it is clear from clauses 3.1 (a) and 4.4 of the agreement that it covered a sale to the plaintiffs nominees and the plaintiffs wife could not have been other than his nominee.

Written submissions were prepared for both sides.

On the day for highlighting of the written submissions, both counsel agreed that the main issue was whether clause 2(a) and (b) of the agreement had been complied with before the completion date, 20 November 1990, and they proceeded to submit on that issue only. I think there is no other issue. The only argument prese