Gopal Sri Ram JCA:-

Preliminary

[1] There are two appeals before us arising from the same suit. One is by the plaintiff; the other is by the defendant. The plaintiff complains that it was not awarded the sums it was justly entitled to. The defendant says that the plaintiff should have received nothing.

[2] The action is essentially one for breach of contract. But there is also an alternative claim by the plaintiff for the breach of an express trust. The defendant, apart from defending the action also mounted a counterclaim claiming a number of declarations which I will deal with at the appropriate place in this judgment.

[3] The action was originally tried by Steve Shim J (as he then was) before whom a substantial part of the case was completed. What remained of the action was tried before the learned trial judge against whose orders these appeals have been preferred. But nothing turns on this. For, it must be said at once in fairness to the trial judge who completed the trial that he correctly held that the case essentially depends on the construction of certain clauses in the contracts entered into between the parties and the interpretation of unchallenged facts and circumstances forming common ground between the disputants.

[4] There were, in broad terms, two issues before the learned judge. One in respect of liability; the other in respect of quantum. He resolved the first in the plaintiff's favour but refused to award the lump sum claimed by it. He also refused to make any award for future loss which the plaintiff claimed as being due to it as a matter of contract or alternatively under a trust. Having found liability in the plaintiff's favour, he dismissed the counterclaim. The plaintiff's appeal is directed upon the quantum issue whilst that of the defendant is against the issue of liability.

[5] To understand precisely why the parties at loggerheads it is necessary to tell the story that has brought about this litigation. Here it is.

Facts And Background

[6] Dato' Fawziah is an enterprising business person. She formed two companies. They are the plaintiff and the defendant. But at that time the defendant was known as Syarikat Teratai K.G. Sdn Bhd, or STKG for short. That is the name you will find in the several documents in this case. Dato' Fawziah and her mother were the only two shareholders of these companies. In 1986, the City Hall of Kuala Lumpur or DBKL called for an open tender to design, construct, finance and operate the privatisation of certain roads in and around Kuala Lumpur. There were other bidders. But it was the defendant that succeeded in its bid. On 20 November 1987, the defendant entered into an agreement ("the first concession agreement") with DBKL. Then on 31 January 1989, the defendant entered into a licence agreement with DBKL.

[7] A large sum of money was required to carry out the works. The defendant did not have it. Funds had therefore to be obtained from investors. A firm of professional financial consultants, called Schroder, was engaged to advise on the matter. They prepared an Information Memorandum meant for potential investors. That document contained, among other things, a proposal to restructure the defendant so as to divest it of all its non-concession businesses. This was important because no potential investor wants to buy into an ongoing business that may have problems. It makes better commercial sense to invest in an entirely new venture which is poised to start on a clean slate, as it were. The restructure was carried out by way of a sale agreement dated 31 March 1988 (which I find convenient to refer to as the restructure sale agreement) entered into between the plaintiff and the defendant. Later, a supplemental sale agreement dated 12 September 1988 was also executed which provided for some further consideration for the restructure by way of sale. These agreements; in particular certain clauses in the restructure sale agreement; formed the subject matter of attack in t