Edgar Joseph Jr FCJ:

The Background Facts

[1] This judgment relates to the proceedings which were a sequel to the judgment of the Supreme Court, dated 23 February 1993, reported under the name of Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd in the Malayan Law Journal, the citation being [1993] 1 MLRA 144, [1993] 1 MLJ 113, and arose in this way.

[2] In the High Court at Johor Bahru, on 23 May 1992, the learned Judge had, in a persuasive judgment (reported in [1992] 2 MLRH 290, [1992] 2 MLJ 68), made an order for specific performance of a contract for sale and purchase of land dated 20 August 1984, ("the Agreement") whereby the second defendant Rumah Nanas Rubber Estate Sdn Bhd ("the Vendor") had agreed to sell to the plaintiff Plenitude Holdings Sdn Bhd ("the purchaser") certain land comprised in Lot No 295 held under grant no 17259, situated in the Mukim of Tebrau, in the district of Johor Bahru, in the state of Johor, in area approximately 1,000 acres ("the land") at a price of RM47,939,958. The Judge had made a further order that the Vendor do pay damages to the purchaser to be assessed for wrongful termination of the Agreement and yet another order that the Vendor and the first defendant Tan Sri Khoo Teck Puat, ("Tan Sri Khoo") the chairman of the Vendor company do pay damages to the purchaser for breach of certain oral undertakings.

[3] By these undertakings, Tan Sri Khoo, on his own behalf and on behalf of the Vendor, had promised to obtain a loan from the National Bank of Brunei or another source, to enable the purchaser to pay the balance of the purchase price ("the Loan Undertaking") and further, by way of alternative, that in the event of their being unable to secure such a loan, then Tan Sri Khoo had promised that his company, the Vendor, would enter into a joint venture scheme to develop the land ("the Joint Venture Undertaking") and this, in turn, would have required the incorporation of a company, with the purchaser and the Vendor having a 10% and 90%, equity therein, respectively.

[4] The appeal by Tan Sri Khoo and the Vendor from the orders of the Judge aforesaid to the Supreme Court had been dismissed on 23 February 1993 on the grounds appearing in its judgment referred to in Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd, [1993] 1 MLJ 113 para 1 supra.

[5] Upon dismissal of the appeal aforesaid, the purchaser had paid the balance of the purchase price of RM43,145,962.20, without recourse to the Loan Undertaking, with the result, that the land had been transferred to the purchaser which became the registered proprietor thereof, though only with effect from 17 March 1993.

(1) RM31,000 and RM31,783.50 for wrongful termination of the Agreement;

(2) RM13,500,000 for loss of profits;

(3) RM867,969 for loss of cash flow investment; and

(4) the sum of RM1,756,772.91 by way of interest on the deposit which had been paid by the purchaser to the Vendor under the Agreement.

[7] In addition, the Judge had also ordered the payment of interest on the above amounts.

[8] It is from the above orders of the Judge made upon the summons for assessment of damages, the reasons for which appear in his subsequent judgment reported in [1994] 1 MLRH 420, [1994] 2 MLJ 273, that the present appeal had been brought by Tan Sri Khoo and the Vendor. There is also a cross-appeal by the purchaser against the order of the Judge awarding the sum of RM13,500,000 for loss of profits, on the ground of its alleged inadequacy.

The Basic Issue

[9] It is indisputable, and indeed it was common ground, that in Law, in appropriate circumstances, compensation may be awarded against a vendor in addition to specific performance. (See, s 18, Specific Relief Act 1950 (Revise