Kamalanathan Ratnam J

Facts

The plaintiff's claim herein is for the refund of monies totalling RM60,020.21 paid by the plaintiff to the fifth defendant pursuant to a sale and purchase agreement ('the said agreement') for the purchase of lands of which one involved a piece of land with Certificate of Title No 19963, Lot No 25, Seksyen 85A, in the Town of Kuala Lumpur, District and State of Kuala Lumpur ('Lot 25'). The purchase price of the said Lot 25 was RM687,828.

The plaintiff first met the first defendant on or about 20 May 1995 to negotiate the purchase of lands, one of which was Lot 25. The first defendant had conducted negotiations on behalf of Fathiah bte Abdul Halim ('Fathiah') and himself (the joint holders of a power of attorney granted by the fifth defendant) which led to the execution of the said agreement on 12 July 1995.

Consequently, the plaintiff's solicitors conducted the customary land searches with the land office and queried the first defendant regarding the existence of a private caveat entered on Lot 25. The first defendant explained that the reason for the existence of the said caveat was to prevent foreclosure proceedings commenced by one Fleet Management Sdn Bhd. The first defendant further stated that the foreclosure proceedings would be resolved and the caveat withdrawn as it was entered by a friendly party, one Lim Siew Wah @ Lim Tian Wah ('Lim') for the purposes of delaying the foreclosure proceedings commenced by Fleet Management Sdn Bhd. In actual fact the fifth defendant had entered into a sale and purchase agreement on 28 Janaury 1994 with Lim for the sale of Lot 25 for a sum of RM850,000 and it was because of this agreement that Lim had entered a caveat.

On 1 December 1995, the said agreement was terminated by the plaintiff as a result of the fifth defendant's non-compliance with the special conditions in the said agreement. The plaintiff demanded of the fifth defendant, a full refund of all monies paid pursuant to the said agreement. The fifth defendant's solicitors had agreed to withdraw the caveat lodged on Lot 25 by Lim and by the two donees of the power of attorney, by a fixed time but failed to do so.

The special conditions

The special conditions are particularized in cl 4 of the said agreement. Clause 4 reads as follows:

Special Conditions

4 The parties hereto agree that notwithstanding anything contained in this agreement, completion of this agreement shall be subject to the following:

(i) The parties hereto agree and understand that the purpose of this transaction is to enable the purchaser to submit to the state authority an application to amalgamate the said property with the properties held under the titles and particulars as described in Sch 1 annexed hereto ('the other properties') with a view to joint development of the said property and the other properties.

(ii) The due completion of the related agreements pertaining to the sale and purchase of the other properties.

(iii) The vendor shall ensure that the development order from DBKL issued in respect of the said property, details of which are shown in Sch 2 annexed hereto ('the development order') shall be valid until the transfer of the said property and the other properties whereupon the vendor shall procure that the development order shall be vested in the purchaser's name.

(iv) The vendor shall furnish the purchaser with the original letter from the relevant state authority approving and consenting to such application to reinstate/convert the status of the title of Lot 121 from leasehold to freehold on or before the completion date or the extended period.

(v) The vendor shall secure the undated and unqualified letter of release of the vendor's architect presently involved in the development and the said property subject to the vendor being responsible for all the said architect's costs incurred up to the date of this agreement.

(vi) The purchaser's solicitors shall have received from the vendor's solicitors, the grant of le