JUDGMENT

Zaleha Zahari JCA:

[1] This appeal is against the decision of the learned Judicial Commissioner High Court Kuala Lumpur entering summary judgment under O. 81 of the Rules of the High Court 1980 ("the Rules") on the application of the respondent (the plaintiff in the court below) against Cherating Development Sdn. Bhd. (the 1st defendant in the court below, who is not a party in this appeal), and Woolley Development Sdn. Bhd. (the 2nd defendant in the court below), the appellants in this appeal. In this judgment, parties will be referred as cited in the court below.

[2] The dispute in this appeal is concerned with the rights and interest of a victim of an abandoned project as against firstly, the original developer from whom the properties had been purchased and to whom the purchase price had been paid, and secondly, as against a rehabilitating developer who has taken over the abandoned project from the original developer.

[3] The Judicial Commissioner had on the facts of this case found no difficulty in granting an order-in-terms of the alternative prayer applied for by the plaintiffs in encl. (7). She granted an order of rescission of 12 Sale and Purchase Agreements, all dated 28 August 1997, executed between the 1st defendant as vendor of the one part, and the plaintiffs, as purchaser on the other part ("the 12 Agreements"). In addition to the order of rescission, the 2nd defendant was directed, jointly or severally with the 1st defendant, to refund the total purchase price paid by the plaintiffs to the 1st defendant in respect of all of the 12 Agreements amounting to RM2,316,580 together with interest at 11% per annum from 28 August 1997 to the date of realization.

[4] The 2nd defendant appealed against the judgment recorded against them, which is the subject matter of this appeal. The 1st defendant did not. The 2nd defendant's appeal was heard by this court on 16 May 2007 and dismissed by a majority. With respect, I was unable to agree with the majority decision and am of the view that this appeal should be allowed with costs and the case be remitted back to the High Court for trial. My reasons are as follows.

[5] An application which is the subject matter under appeal can successfully be resisted by a defendant if it can be shown that there are bona fide issues to be tried. Each case necessarily turns on its own peculiar facts. The issue for determination is whether, on the facts of this case, the 2nd defendant had discharged the burden of establishing that there are bona fide issues to be tried, and accordingly, not an appropriate case for summary judgment to be entered against them.

[6] The background facts are as follows: The 1st defendant, a developer, is the registered and beneficial owner of lands held under Geran No. 15113, Lot No. 190, Geran No 4500 Lot No 198, Geran No 14423 Lot No. 374, Geran 4501 Lot 784, Geran No. 4502 Lot No 786, Geran No. 4503 Lot No. 788, all at Sek 2 Bandar Butterworth, Pajakan Negeri 1146 Lot No. 1, Geran No. 4508 Lot No 5, Geran No 13528 Lot No. 6, Geran No. 15167 Lot No. 564 Sek 3, Bandar Butterworth, Geran No. 13786 Lot No. 1961, Geran No. 45091 Lot No. 180, Geran No. 4511 Lot No. 674 all at Sek 3, Bandar Butterworth, Geran Mukim No. 754 Lot 117, Geran Mukim No. 770 Lot No. 134, Geran Mukim 757 Lot No. 120, Geran Mukim 755 Lot No. 118 all at Mukim 9, in the district of Seberang Perai Utara, State of Pulau Pinang ("the said lands").

[7] The 1st defendant took steps to develop the said lands into a commercial centre and shop office known as "Raja Uda Commercial Centre" ("the development project"). By the 12 Agreements executed, the plaintiffs agreed to purchase, and the 1st defendant agreed to sell, shop offices more particularly described in the respective Sale and Purchase Agreement ("the said properties"), free from all encumbrances upon delivery of vacant possession subject to the terms and conditions specified therein for a total purchase price of RM2,316,580.

[8] Clause 7