JUDGMENT

Gunn Chit Tuan CJ (Malaya):

By a sale and purchase agreement dated 20 August 1984 (p. 275 of the appeal records) Rumah Nanas Rubber Estate Sdn. Bhd. (the second appellant) agreed to sell to Plenitude b Holdings Sdn. Bhd. (the respondent) an estate land at the price of RM47,939,958. The respondent paid a deposit of 10% amounting to RM4,793,995.80 but failed to pay the balance purchase price within the contractual period of six months or within the extended completion periods. The second appellant then terminated the said agreement and forfeited the said deposit by a letter dated 12 December 1988 (p. 309 of the appeal records).

One of the issues raised in the Court below was whether the second appellant and Tan Sri Khoo Teck Puat (the first appellant) in order to induce the respondent to enter into the said sale and purchase agreement had represented orally to the respondent that the appellants undertake to obtain a loan from the National Bank of Brunei or another source for the respondent to enable it to complete the sale and purchase of the said estate land free of encumbrances and with vacant possession, and that if the loan could not be obtained the second appellant would enter into a joint venture with the respondent to develop the said estate land.

The learned trial Judge concluded that on the evidence the respondent had proved that the first appellant, who was DW1 in the Court below, had made the alleged representations and gave three reasons for arriving at his conclusion. The learned Judge in his grounds of judgment stated that the respondent, with a paid up capital of RM5 million was unlikely to have agreed to the terms of the sale and purchase agreement unless the first appellant had unequivocally given an oral undertaking to secure a loan for the respondent. The learned Judge also considered that it was in the appellants' interest for the respondent to secure the loan for in such event the appellants could h complete the sale of the land at a price substantial enough to benefit the appellants. His Lord ship also found that there were serious doubts as to the credibility of the first appellant.

On appeal to the Supreme Court it was contended that despite the learned Judge's declaration that he had considered the contemporaneous documentary evidence his Lordship did not refer to any of the relevant correspondence appearing between pp. 239 to 355 of the appeal records and that when tested against those contemporaneous documents and the overall probabilities, it was not likely that any of the alleged representations were made by the first appellant. It is true that the learned Judge did not refer individually to those letters but in his judgment (p. 52 of the appeal records) his Lordship did state as follows:

On the evidence, both oral and on the contemporaneous documentary evidence, I can only conclude as a fact that the plaintiffs have proved on a balance of probabilities that DW1 had promised to secure a loan for the plaintiffs and that in the event that such loan could not be secured he had given an undertaking to join the plaintiffs in a joint venture scheme to develop the said land.

On this issue of fact we note that the learned Judge had considered and accepted the oral evidence of one Yap Chui Kui (PW1) and had rejected the evidence of the first appellant, who was DWl, especially in the light of glaring contradictions by the first appellant in respect of his resident director, one Encik Sohaimi (p. 240 of the appeal records) who was not called as a witness by the defence.

Another issue raised was whether the notice of termination dated 12 December 1988 issued by the second appellant's solicitors to the respondent was valid and proper. The learned Judge held that the said notice was not a reasonable notice and that the contract was never legally terminated. It was again the contention of the appellants that the Judge had not considered the relevant contemporaneous evidence appearing between p. 301 and p.