Abdul Kadir Sulaiman JCA:

[1] On 16 March 2005 two appeals came up for hearing before us. One is Appeal No. W-02-567-2003 and the other is Appeal No. W-02-898-2004. The parties agreed that the disposal of Appeal No. W-02-567-2003 would render Appeal No. W-02-898-2004 academic. On that basis we commenced hearing of Appeal No. W-02-567-2003. We had on that day, 16 March 2005, dismissed the appellant's appeal in Appeal No. W-02-567-2003 with costs. In compliance with the agreement at the commencement of the hearing, the learned counsel for the appellant in Appeal No. W-02-898-2004 withdrew that appeal. In the circumstance, that appeal was struck off with no order as to costs. We directed that the deposit be refunded to the appellant in that appeal. We now give our reasons for the dismissal of Appeal No. W-02-567-2003.

[2] The brief facts leading to Appeal No. W-02-567-2003 are these. The appellant who was the defendant in the court below is the registered proprietor of a piece of land held under Grant No. 10101, Lot No. 14271, Setapak, Kuala Lumpur measuring approximately 283,026 square meters ("the said land").

[3] The appellant and the respondent entered into a sale and purchase agreement on 23 August 1995 whereby the appellant agreed to sell and the respondent agreed to purchase the said land at the purchase price of RM54,500,000 and upon the terms and conditions contained in the agreement.

[4] The 10% deposit of RM5,450,000 was paid by the respondent to the appellant upon the execution of the agreement. There remained the balance purchase price of RM49,050,000 which was to be paid in the following manner. 10% of the purchase price amounting to another RM5,450,000 was to be paid by the respondent to the appellant within 14 days after the respondent is in receipt of both the Layout Plan Approval and the Foreign Investment Committee ("the FIC") approval. The remaining balance of 80% of the purchase price amounting RM43,600,000 was to be paid by the respondent to the appellant's solicitors as stakeholders within three months from the date the agreement becomes unconditional which means that all the conditions precedent have been fulfilled by the parties.

[5] There were three conditions precedent to be fulfilled under the agreement. The first condition was for the appellant to obtain the Layout Plan Approval. The second condition precedent was for the appellant to furnish the respondent the proof of submission of the development order by the appellant to the various relevant authorities. The third condition precedent was for the respondent to obtain the FIC Approval. The time period for the fulfillment of the above three conditions precedent was six months from the date of the agreement or such extended period as to be mutually agreed upon by the parties.

[6] The period of six months stipulated in the agreement had expired on 22 February 1996. The respondent obtained the FIC Approval on 30 January 1996. The appellant obtained the Layout Plan Approval from the relevant authority but only on 12 March 1996, that is after the agreement had lapsed on 22 February 1996. However the appellant did not obtain the Development Order Approval and hence did not fulfill the second condition precedent required of it.

[7] As the second condition precedent was not fulfilled by the appellant and that the Layout Plan Approval was obtained by the appellant only after the agreement had lapsed, the parties were desirous of reviving the agreement and of varying and amending the terms of the agreement ("the principal agreement"). In the result the parties entered into a supplemental sale and purchase agreement on 23 August 1996 upon the terms and conditions contained therein ("the supplemental agreement").

[8] Under the terms of the supplemental agreement the balance purchase price amounting to RM49,050,000 was to be paid by the respondent to the appellant's solicitors as stakeholders within (10) weeks from the respondent's solicitors receiving t