JUDGMENT

Mohd Sofian Abd Razak J:

[1] On 26 September 2006 the court heard the defendant's summons in chambers (encl. 13) dated 3 January 2006 pursuant to O. 14A and . Upon reading encl. 13 and perusing the affidavit in support (encl. 14) and the affidavit in reply by the plaintiff (encl. 15) and the written submissions by both parties, the court allowed the defendant's application and dismissed the plaintiff's claim with costs. The plaintiff who was dissatisfied with the said decision has since filed an appeal.

The Pleadings

Plaintiff's Claim

[2] On or about 25 March 1996, the plaintiff entered into a sale and purchase agreement (hereinafter called the tripartite JVA) (exh. 'N1') with the defendant whereby the plaintiff agreed to buy and the defendant agreed to sell property held under H.S.(D) 1789/95 No. Lot PT 9254, Mukim Pengkalan Kundor, Daerah Kota Setar, Kedah at the purchase price of RM135,002 (hereinafter called the 'said property').

[3]Inter alia the salient terms of the tripartite JVA are as follows:

a) the purchaser is the plaintiff and the vendor is the defendant.

b) the defendant had represented to the plaintiff that the defendant was at all material times the beneficial owner and was in the position to sell the 'said property' and acting upon the said representation, the plaintiff entered into the tripartite JVA.

[4] The other expressed or implied terms of the tripartite JVA are as follows:

a) Upon signing the tripartite JVA, the plaintiff was required to pay a deposit of RM13,500.20 being the 10% of the purchase price to the defendant.

b) The balance purchase price shall be paid by way of progress payment pursuant to the schedule.

c) The plaintiff was entitled for specific performance of the tripartite JVA if the defendant failed to transfer the said property to the plaintiff in accordance with the provisions of the tripartite JVA.

d) In accordance with the tripartite JVA, the plaintiff had to date made payment of RM45,002 to the defendant, particulars thereof are as follows:

4 September 1994	RM7,000
24 September 1994	RM6,500
18 May 1996	RM20,250.30
26 May 1996	RM6,750.30
3 December 1997	RM4,501.40

e) The plaintiff upon payment of RM13,500 had entered a private caveat presentation No: 22271/1998.

f) On or about 1 August 2002 several houses were constructed on the said property without the consent of the plaintiff.

g) After enquiries and complaints made to the Ministry of Housing, the plaintiff came to know that the defendant had entered into an agreement with a third party.

h) The plaintiff averred that the second agreement with the third party had prejudiced his beneficial rights on the said property.

[5] In its statement of defence, the defendant avers as follows:

1) The defendant had entered into the tripartite JVA and had given consent to Caymen Development (Kedah) Sdn. Bhd. to enter into a joint venture agreement with Yayasan Islam Negeri Kedah.

2) The defendant denied that terms of the agreement as alleged by the plaintiff are binding on the defendant. The defendant is not liable to the plaintiff as there was no consideration given to the defendant.

3) Save and except that the defendant was aware of the purchase price agreed between the plaintiff and Caymen Development (Kedah) Sdn. Bhd. for the said property but denied that the defendant was the vendor in accordance with the terms of the agreement.

4) Save and except for the terms of the said agreement, the defendant denied receiving any payment from the plaintiff.

5) Upon signing the agreement, the defendant handed over the said property to Caymen Development (Kedah) Sdn. Bhd.

6) The defendant were informed that the said tripartite JVA was to develop the said property into an industrial estate but could not materialize due to factors beyond the control of Caymen Development (Kedah) Sdn. Bhd. In view of the fact that the terms of the tripartite JVA was between the plaintiff and Caymen Development (Kedah) Sdn. Bhd., the plaintiff had no locus standi to claim against the defendant.

7) The