Court upheld that summary judgment was inappropriate due to existing serious issues requiring trial.

[1] This is the Plaintiffs application (encl 6) under O 14 of the Rules of 2012 ("ROC") for summary judgment of its claim for the refund of deposits forfeited by the Defendant following the Plaintiff's termination of the Agreements (as defined below).

[2] At the hearing before me on 1 June 2017,1 dismissed the Plaintiff's application for summary judgment. The reasons for my dismissal are as set-out herein.

Background Facts

[3] The Plaintiff is a Malaysian incorporated company whose shares are wholly owned by Yew Lee Seng Metal Pte Ltd a company incorporated in Singapore.

[4] The Defendant is a Malaysian incorporated company. It was wound up by Ann Joo Corporation Sdn Bhd on 20 January 2014. Mok Chew Yin and Ong Hock An, both of BDO Consulting Sdn Bhd (Liquidators), were appointed as joint liquidators of the Defendant on 26 February 2015 in place of the Official Receiver.

[5] Prior to the Defendant's winding up and for periods thereafter, the Plaintiff occupied four (4) plots of the Defendant's land in Johor (which included of two (2) plots of land known as (i) PN 55795, Lot 186580, Mukim Plentong, Daerah Johor Bahru, Negeri Johor (PN 55795); and (ji) H S (D) 266013, PTD 148197, Mukim Plentong, Daerah Johor Bahru, Negeri Johor (H S (D) 266013) ("Lands") and two (2) premises situated thereon ("Premises")).

[6] Pursuant to a public tender exercise on 25 August 2010, the Liquidators accepted the Plaintiffs offer to purchase PN 55795 and H S (D) 266013 and the premises situated thereon.

[7] The Plaintiff and the Defendant then entered into the following agreements both dated 29 October 2015 (collectively referred to herein as the Agreements):

a. two sales and purchase agreements for the sale and purchase of PN 55795 and H S (D) 266013 respectively ("SPAs"); and

b. an asset sale agreement for the sale and purchase of a scrap metal shredder located on PN 55795 ("ASA"),

[8] The terms and conditions of both SPAs are identical (save for details of the land, the purchase price and the amount of deposit payable). Completion of both SPAs are subject to the fulfilment of the Plaintiffs CPs within the Conditional Period, which is two months from the date of the SPAs, unless extended by the parties by mutual agreement in writing.

[9] One of the CPs that the Plaintiff had to fulfil was to obtain the approval of the state authority for the transfer of the lands from the Defendant to the Plaintiff within the Conditional Period. Per clause 2.3(a) of the SPAs, the Conditional Period would expire on 29 December 2015, unless extended by the parties by mutual agreement in writing.

[10] The Plaintiff paid to the Defendant deposits in the sum of RM1,060,000.00 and RM540,000.00 pursuant to each of the SPAs respectively and RM50,000,00 pursuant to the ASA. The total amount of deposits paid by the Plaintiff to the Defendant is RM1,650,000.00 (collectively referred to herein as "the Deposits"),

[11] The Plaintiff did not apply for the state authority's approval for the transfer of the lands to the Plaintiff by or before 29 December 2015. By a letter to the Defendant's solicitors dated 7 January 2016, the Plaintiff terminated the Agreements ("Termination Notice") and demanded the refund of the Deposits from the Defendant

[12] The Defendants by a letter dated on 14 January 2016 to the Plaintiff's solicitors stated, inter alia, that:

a. the issuance of the Termination Notice to the Defendant is not in accordance with the provisions of the Agreements and constitutes a wrongful repudiation of the Agreements by the Plaintiff;

b. the Defendant has decided to accept the Plaintiff's wrongful termination and as damages for the wrongful termination forfeits the Deposits.

[13] The Chronology of Events relating to the CP for the state authority approval for the transfer of the Lands to the Plaintiff under the SPAs is as below: