JUDGMENTBY: PEH SWEE CHIN J, MOHAMED AZMI SCJ

PEH SWEE CHIN J On November 5, 1975 the parties here entered into a rather unusual agreement in writing. By the agreement (A 1 or page 1 of the agreed bundle of documents marked A), the defendant, (the owner), the registered proprietor of the land in question, being desirous of subdividing the land, agreed to give 1/2 share of the said land to the plaintiff, (the agent), in consideration of the agent agreeing to pay "all requisite fees and expenses (including conversion and survey fees) to be incurred in connection with such subdivision". The application for such subdivision was to be made, and all such matters incidental to such application, were to be handled by the agent. This was a common ground at the trial and was readily assumed by both parties as an obligation on the agent, though the same was not very clearly set out in (A 1). Both parties agreed that, to quote, "as security for the fees and expenses to be expended by the agent in connection with the intended application for subdivision of the said land", the owner agreed to transfer, beforehand, and did transfer 1/2 undivided share of the said land, so that the application for the subdivision was to be in joint names of the owner and agent as registered co-proprietors. It became increasingly clear as the trial went on that the device of transferring 1/2 share beforehand was also to make the authorities to whom the application was to be made, aware of the presence of the name of the agent, so that, it was believed, the application would be processed sooner or more favourably. It became equally clear at the trial, that the agent had considerable experience in applications of this kind, so that other things being equal, the application would be for this reason also, processed with expedition. On transfer of 1/2 share of the land beforehand, and pending the approval of the application for subdivision, a re-transfer of 1/2 share was to be signed and held as "stake-holder" by Mr. Seah Choon Chye, a well-known Seremban solicitor, who prepared (A 1). This was duly carried out. Now comes the crucial part of (A 1) i.e. Clause 4 which I will set out below:--

"4. PROVIDED THAT:--

(1) In the event the said application for subdivision is not approved

on or before December 31, 1977, or if the Agent shall pass away

before the approval of the said application on or before the said

date, the Landowner or her nominees may on the occurrence of

either of the events aforesaid accept the transfer referred to in

the preceding Clause and thereupon this Agreement shall become

null and void and of no further force or effect and neither party

shall have any claim against the other in connection with this

Agreement.

(2) In the event the Agent shall pass away on or after the approval

of the said application but prior to the issue of the qualified

titles, the said transfer referred to in the preceding Clause may

be accepted by the lawful widow of the Agent and the provisions

of this Agreement shall remain valid and binding on the Landowner

and the Agents widow as if the said widow had been a party

hereto."

Clause 4 set a deadline for the continuing validity or the termination of the agreement or (A 1), i.e. if the application for subdivision was not approved by December 31, 1977, the owner would ask for the retransfer to be implemented and therefore, to quote -- "this agreement shall become null and void and of no further force ...". A race against time fixed was therefore set in motion on the signing of (A 1), and it was not disputed, that by December 31, 1977, the application for subdivision was not approved, and the retransfer in favour of 1/2 share was duly released by the stake-holder to the owner for registration. Subsequently this action was filed. The application for sub