Gopal Sri Ram JCA:

This is an important case. It has to do with whether our jurisprudence recognises a doctrine of inequality of bargaining power independent of the well-established doctrine of undue influence. This is the first time, at least as far as I am aware, that this issue has come up for decision at the appellate level. It is a matter upon which careful argument supported by the citation of authority would have been most helpful.

Let me narrate the facts in outline.

The appellant is a farmer. He earns part of his income by harvesting coconuts from land that he rents from the respondents. The appellant also owns two pieces of land. I will refer to them as "the subject property". The appellant's predecessor in title had acquired the subject property by prescriptive right under the land law in force in Penang at the material time. The appellant's root of title was therefore under a cloud and was defeasible.

On 11 November 1975, the appellant entered into an agreement to sell the subject property to the respondents for RM42,000. There is mention made in the agreement of the payment of a deposit of RM4,200. As an issue has been raised in respect of this, I will deal with it in some detail later. For the moment, let me complete the story.

The agreement made it plain that the appellant's title to the subject property was under a cloud and was defeasible. An indorsement on the title said as much. A clause in the agreement required the appellant to make good title within 12 months of the agreement. This included the obtaining of an order of court establishing his right of ownership of the subject property. The result was to be a cancellation of the indorsement on the title by the appropriate authority in order to produce indefeasiblity of title. Another clause in the agreement (cl. 6) provided that in the event of the appellant failing to make good his title, that is to say, failing to convert it into an indefeasible title, within the aforesaid period of one year, the respondents would be entitled to a refund of the deposit paid to the appellant under the agreement. As it happened the appellant did not obtain the necessary cancellation of the indorsement until 22 January 1981. But he never obtained the order of court at all. Meanwhile, on 24 October 1979, while his application for cancellation of the indorsement was pending, the appellant, by a letter of that date, purported to terminate the agreement with the respondents. The respondents refused to accept the termination. But they did not bring proceedings until 25 May 1981.

The appellant defended the claim on two broad grounds. First, he claimed that the agreement had been vitiated by undue influence. His second line of defence was that the respondents were barred by laches from seeking relief.

The learned judge who heard the action rejected the defence of undue influence. But he declined specific performance apparently on the ground that - and I quote his words - "both parties were equally to blame for the predicament in which they found themselves." The judge then awarded the respondents damages of RM1.2 million representing half the current market value of the subject property. The appellant's appeal is directed against this order of the learned judge. The respondents cross-appealed against the judge's refusal to decree specific performance. However, at the conclusion of his argument, counsel for the respondents informed us that he was abandoning the cross-appeal.

The appellant's case on the appeal was directed along two lines. First, it was argued that while the learned judge was entitled to reject the defence of undue influence, he ought to have gone on to hold that the appellant had established a case of unfair advantage. The second submission made in support of the appeal is that in any event the claim ought to have been dismissed on grounds of laches. I will address each of these heads of argument in turn.

The appellant's case under the first head of argumen