A concluded contract requires certainty and acceptance of terms; the mere proposal or counter-offer does not satisfy contract formation.

[1] The central issue in the appellant's claim against the 1st and 2nd respondents, who are the receivers & managers [R&M] of the 3rd respondent, is whether there is a concluded contract between the parties upon which the appellant can validly launch its claim for the primary relief of specific performance. The appellant answered the poser in the affirmative, relying specifically, on the R&M's letter dated 17 October 2011 sent to the appellant. The respondents, on the other hand, dispute the existence of any concluded contract, arguing that at best, that letter contained their counter-offer.

[2] The appellant sued the respondents for specific performance and various other remedies when the R&M refused to complete the contract of sale. Pending resolution of its claim, the appellant lodged a caveat on the properties which form the subject matter of the contract of sale. The respondents counterclaimed seeking an order that the caveat be lifted and further that damages be assessed for the wrongful lodgement of the caveat.

[3] The eight interveners are parties who also expressed interest in the subject properties; the respondents are said to have sold the subject properties to these interveners. The interveners too, had sued the respondents at the High Court at Shah Alam claiming that the respondents were in breach of contract when the respondents sought to add several new terms after a contract of sale was said to have been concluded between them. That suit was eventually settled where the interveners accepted the new terms. A settlement agreement and eight sale and purchase agreements over the subject properties were entered between the interveners and the respondents. Following this, the suit at Shah Alam was withdrawn.

[4] The appellant's claim was dismissed by the High Court while the counterclaim was allowed. Upon hearing all learned counsel and after due consideration of the appeal record and the grounds for the learned judge's decision, we adjourned for deliberation. This is our decision.

Background

[5] A debenture was created by the 3rd respondent in favour of RHB Bank Berhad from whom the 3rd respondent secured banking facilities. The 3rd respondent defaulted on those facilities causing RHB Bank to appoint the R&M to sell certain charged properties of almost 1,400 acres in size by way of a tender exercise [subject properties]. These subject properties are located in the township of Lembah Beringin and amongst the subject properties are abandoned mixed developments, residential lots, a golf course, an abandoned college and approximately 1,100 acres of estate land.

[6] On 5 May 2011, the R&M advertised in the Star newspapers seeking expressions of interest from the public to purchase the subject properties. The R&M prepared an information memorandum [IM] that was made available, for a fee, to interested bidders.

[7] Several expressions of interest for the subject properties were received by the close of the period specified for submission of tenders. The appellant was one of them. On 3 June 2016, the appellant submitted an initial tender offer of RM60,080,000.00. This offer was increased to RM83.8 million on 17 June 2011 ["the 17 June 2011 offer"]. The 1st and 2nd interveners [Interveners] also expressed interest and submitted their bids for RM50 million which were also later increased to RM84 million.

[8] After these bids were received, the R&M decided to include "13 additional terms and conditions" which they wanted the interested bidders to consider.

[9] On 28 September 2011, the R&M's representative, one Mr Urn Litt [DW1] met with the appellant to discuss the 13 additi