JUDGMENT

Peh Swee Chin SCJ:

The appellant/defendant has been at all material times and still is the registered owner of some valuable land at Batu Ferringhi, Penang, (the appellant is hereinafter called the landowner of the land, the said land). The plaintiff/company has been at all material times, a company registered under the Companies Act (hereinafter called the prospective transferee).

The prospective transferee filed the originating summons herein, on the face of it, for the construction of a trust deed dated 26 April 1985 and for a subsequent order to transfer the said land to the prospective transferee in pursuance thereof. The trust deed is set out below:

This Declaration of Trust is made on 26th day of April 1985 by Lim Kar Bee (Nric No. 1341996) of No. 515-M, Jalan Hashim, Tanjong Bungah, Penang (hereinafter called "the Trustee").

WHEREAS by an Agreement of Sale dated 1st April 1985 made between the Trustee as vendor of the one part and Duofortis Properties Sdn. Bhd., a company incorporated in Malaysia and having its registered office at Suite 302-A, Penang Plaza, Burma Road, Penang, as purchaser of the other part, the Vendor sold and the Purchaser purchased all those four (4) pieces of land known as Lot Nos. 370, 371, 372 and 373, Town of Batu Ferringhi, Section 2, North East District, Penang, (hereinafter called "the Lands") subject to the two existing charges to Ban Hin Lee Bank Berhad vide Presentation No. 5917/81 Jilid 210 Folio 66 and Presentation No. 5918/81 Jilid No. 210 Folio 67 to secure overdraft facilities to the extent of RM1,000,000 for use by Lim Kar Bee & Sons Sdn. Bhd. (hereinafter called "the Charges").

And WHEREAS the full purchase price of RM18,970,000 has been paid by the Purchaser to the Trustee.

And WHEREAS pending the discharge of the said Charges the said lands may not be transferred to the said Purchaser .

NOW THIS DEED WITNESSETH as follows:

1. The Trustee hereby declares that he holds the said Lands in trust for the said Purchaser, Duofortis Properties Sdn. Bhd. and hereby agrees that he will at the request and costs of the said Duofortis Properties Sdn. Bhd. execute all documents and do all acts and things as may be necessary to effect the transfer and registration of the said Lands in the said Purchaser's name.

2. The trustee shall during the subsistence of the Trust herein collect, and receive the rents, profits and income arising thereon for the benefit of the Purchaser.

IN WITNESS WHEREOF the Trustee hereto has here unto set his hand and seal the day and year first above written.

Signed and Sealed and Delivered )

by the Trustee, the aforesaid )

Lim Kar Bee in the presence of: )

sgd.

Gan Teik Chee,

Advocate & Solicitor, Penang

The agreement of sale of the said land dated 1 April 1984 and referred to herein, and the basis of the trust deed is set out below:

AN AGREEMENT is made on 1 April 1985 between Lim Kar Bee (Nric No. 1341996) of No. 515-M, Jalan Hashim, Tanjong Bungah, Penang, (hereinafter called "the vendor") of the one part and Duofortis Properties Sdn. Bhd., a company incorporated in Malaysia and having its registered office at Suite No. 302-A, Penang Plaza, Burma Road, Penang, (hereinafter called "the Purchaser ") of the other part.

IT IS HEREBY AGREED as follows:

1. Subject to the stipulations herein contained the vendor will sell and the Purchaser will purchase the land and hereditaments more particularly described in the Schedule hereto (hereinafter called "the said Property").

2. The purchase price shall be the sum of Ringgit eighteen million nine hundred and seventy thousand only (RM18,970,000) of which the said sum is now paid by the Purchaser to the vendor (the receipt of which sum the vendor hereby acknowledges).

3. The sale and purchase shall be subject to:

(a) the vendor deducing a good marketable and registrable title to the said Property;

(b) the said Property being freehold land;

(c) any defect in title to be rectified and perfected by the vendor at his own expe