JUDGMENT

Alwi Abdul Wahab JC:

Introduction

[1] This is the plaintiff's originating summons for specific performance under ss 4(b), 7, 8(2) and 11 of the Specific Relief Act 1950 to compel the defendant to perform the term under the tenancy agreement dated 6 January 2011, in particular cl 6(b), being the option to purchase, which the plaintiff alleges that the defendant failed to allow the plaintiff to exercise. In the alternative, the plaintiff prays for damages as a result of their loss due to the defendant's failure to observe the said cl 6(b).

[2] The plaintiff is a tenant of a shop house at the premises described as Lot 1, Section 51, Kuching Town Land District ("the said property"). The defendant is the wife and legal representative of Luk Tai Lik ("Mr Luk") appointed pursuant to two order of court granted by Sibu High court in OS No: 24-335- 2006-II and OS No:24-38-2007.

The Facts Of The Case

[3] The plaintiff had entered into a tenancy agreement with Mr Luk from 1998-2001 (first tenancy agreement). This tenancy agreement was extended for three more terms, ie from 2001-2004 (second tenancy agreement), from 2005-2009 (third tenancy agreement) and from 2010-2014(fourth tenancy agreement). This fourth tenancy agreement was only executed on the 6 January 2001. The dispute arose during the period of the fourth tenancy agreement after the said property was sold to Rainbow Majestic Sdn Bhd ("Rainbow Majestic") for RM780,000.00 and the transfer of ownership was completed sometime in April 2012. The plaintiff claimed that the defendant had sold the said property to Rainbow Majestic without consulting the plaintiff prior to the sale. As such, the plaintiff alleged that they had been denied a "right of first refusal" in breach of para 6(b) of the fourth tenancy agreement.

[4] Para 6(b) reads as follows:

"That if the tenant(s) shall be desirous of taking a new tenancy of the demised premises after the expiration of the five years term hereby granted and of such their desire shall give the landlord notice in writing less than three months before the expiration of the said term and if the Landlord shall then be desirous of granting a new tenancy, the landlord shall at or before the expiration of the term hereby created grant to the tenant(s) a new tenancy of the demised premises commencing from and after the expiration of the term hereby granted for a further term of five years subject to such rent stipulations terms and conditions as may be agreed between the landlord and the tenant(s), unless the landlord is desirous of selling the said premises, in which case he shall offer to the tenant(s) the right of first refusal to purchase the same at the prevailing market rate exercisable within 90 days of an offer ..."

The Issues

[5] Although the above said para 6(b) refers to the right of the plaintiff to purchase the said property as "right of first refusal", the plaintiff used the terms "option to purchase" instead. The plaintiff contends that both terms bear similar meaning and consequences and used them interchangeably in the present case. Be that as it may, for the purpose of my determination, the issues are framed in the following manner:

(a) Whether the plaintiff is entitled to right of first refusal pursuant to para 6(b)?

(b) Whether the defendant was in breach of para 6(b) when the defendant sold the said property to Rainbow Majestic?

(c) Whether the plaintiff can claim for specific performance to compel the defendant to repurchase the said property from Rainbow Majestic and be compelled to sell the same to the plaintiff?

Whether The Plaintiff Is Entitled To Right Of First Refusal Pursuant To Paragraph 6(b)?

[6] The defendant's intention to sell the said property was communicated by one Mr Chai Jin Fatt ("Mr Chai") who was acting as agent of the defendant to Carolyne Lee, the plaintiff. Mr Chai offered the price of RM580,000.00. It was made verbally. Carolyne Lee told Mr Chai that she would have to consult the management of the plaintiff's compa