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Rayner Segismond Balagut ... 1st Plaintiff Lim Siew Moi ... 2nd Plaintiff And Saaid Bin Abdullah & 5 Others ... Defendants [2011] MYSSHC 207 (6 May 2011)

MALAYSIA

IN THE HIGH COURT IN SABAH AND SARWAK

AT SANDKAN

CSS 22 – 35 0F 2008

BETWEEN

RAYNER SEGISMOND BALAGUT

[NRIC NO. 550922-12-5325]

9 LIM SIEW MOI [NRIC NO. 660105-12-5154] ... 2ND Plaintiff

AND

SAAID BIN ABDULLAH

12 [NRIC NO. 550922-12-5325] ... 1ST Defendant

HIEW PAU LU

14 [NRIC NO. 550922-12-5325] ... 2ND Defendant

15 GUNGKIN @ TUNGKIN ... 3rd Defendant

[NRIC NO. 630403-12-5913]

17 KANG JIT SING ... 4th Defendant

[NRIC NO. 531111-01-5903]

19 TAPAK YAKIN SDN BHD ... 5th Defendant

[COMPANY NO. 438175-P]

21 JIANG SUN PLANTATION (SABAH) SDN BHD ... 6th Defendant

[COMPANY NO. 471589-V]

GROUNDS OF DECISION

INTRODUCTION

1. [1] After the commencement of the trial of this case, the Plaintiffs

28 withdrew their action against the 4th, 5th and 6th Defendants. The

Plaintiffs then proceeded with their action against the remaining

2 defendants, namely the 1st, 2nd and 3rd Defendants.
3 [2] The witnesses for the Plaintiffs are the 1st and 2nd Plaintiffs
4 respectively whilst the only witness for the 1st, 2nd and 3rd

Defendants is Mr. Mohd Amir Khan Bin Saaid, the son of the 1st

Defendant and who holds a Power of Attorney dated 10/10/2007

7 granted by the 1st Defendant.

STATEMENT OF AGREED FACTS

2. The relevant parties herein agreed to the following facts and they

11 are that the 1st Defendant is the successful applicant for the land

held under L.A. 77091589 more or less 500 acres situated at

Sungai Pinangah, Kinabatangan, Sabah with R.S.P. No.

2007259012.

STATEMENT OF ISSUES TO BE TRIED

	.	The parties herein agreed to the following issues to be tried and
		they are as follows:
		[1] Whether there is a binding contract or agreement between
		the Plaintiffs and the 1st Defendant since the 1st Defendant had
		refused to sign the draft sale and purchase agreement between
		the 1st Defendant and Jiang Sun Plantations (Sabah) Sdn Bhd?

		[2] If so, whether the 1st Defendant has breached the said
		binding contract or agreement?

		[3] If so, what are the rightful damages entitled by the Plaintiffs?

[4] Whether the Defendants have committed the tort of

conspiracy to injure, to interfere with or to procure the breach of

a contract and/or to induce the breach of a contract against the

Plaintiffs?

CONSIDERATION THE AGREED ISSUES

4. [1] Whether there is a binding contract or agreement between the

9 Plaintiffs and the 1st Defendant since the 1st Defendant had

refused to sign the draft sale and purchase agreement between

11 the 1st Defendant and Jiang Sun Plantations (Sabah) Sdn Bhd?

[a] To determine whether there is a binding or agreement between

15 the Plaintiffs and the 1st defendant, since the 1st Defendant had

refused to sign the draft sale and purchase agreement between

17 the 1st Defendant and Jiang Sun Plantations (Sabah) Sdn Bhd, it

would be necessary to examine the relevant paragraphs of the

Letter of Undertaking dated 6/1/2008, to ascertain the intention of

the parties herein. The relevant paragraphs of the said Letter of

21 Undertaking was signed by the 1st Defendant in favour of the

Plaintiffs are reproduced as follows:

“I, SAAID BIN ABDULLAH (NRIC No. 390708-08-5369 [New

/ H0039895 [Old]) … hereby agree and undertake that:-

[1] authorizes you to seek and introduce a prospective

purchaser or purchasers for the above said Land at the

selling price of not less than Ringgit Malaysia Two

Thousand And Five Hundred (RM2,500.00) only per

1 acre. In the event that you introduce a person who

purchases the above said Land more than

RM2,500.00 (Ringgit Malaysia Two Thousand And Five

Hundred) only per acre, the sum excess shall be

belong to you as your servicing and commission fee.

[2] …

[3] ...

[4] …

[5] Upon the signing of Sale and Purchase

Agreement between the respective purchaser or

purchasers and my goodself. I will also

simultaneously execute the Agency Agreement

made between you and me. I shall be liable to pay

the sum excess under Clause (1) hereinabove to

you from the selling price of the above said Land.”

[Emphasis in mine]

[b] A Letter of undertaking shall be given its natural and ordinary

meaning and this is laid down in the case of Chase Perdana Sdn

20 Bhd (formerly known as Chew Piau Bhd v CIMB Bank Bhd

[2010] 1 MLJ 685:

“An undertaking is defined in the New Shorter Oxford English

Dictionary as, inter alia, ‘a pledge, promise or guarantee’. To

‘undertake’ is defined in Collins English Dictionary as ‘to

contract to or commit oneself to (something) or (to do

something)’.

…

In accordance with the law relating construction of

contracts, the LOU is to be accorded its natural and

ordinary meaning given the context and factual matrix of

4 the contract. In Michael C Solle v United Malayan Banking

Corporation [1986] 1 MLJ 45, Hashim Yeop Sani FCJ

said at p 46 as follows:

The principles of construction to be applied to the

undertaking are similar to those applied to an

9 ordinary contract. The intentions of the

parties are to be gathered from the language used.

They are presumed to have intended what they

said.

The breach of an undertaking attracts damages in the

15 same manner as a breach of contract (see Tan Sri Khoo

Teck Puat & Anor v Plenitude Holdings Sdn Bhd [1994] 3

MLJ 777 at p 786). It is therefore correct to state that an

undertaking is similar to that of contractual relationship.

And how is the intention of parties ascertained? As

stated by Lord Bingham of Cornhill in Bank of Credit and

Commerce International SA v Ali & Ors [2002] 1 AC 251:

To ascertain the intention of the parties the court

24 reads the terms of the contract as a whole, giving

the words used their natural and ordinary meaning

in the context of the agreement, the parties’

relationship and all the relevant facts surrounding

the transaction so far as known to the parties. To

ascertain the parties’ intentions the court does not

of course inquire into the parties’ subjective states

of mind but makes an objective judgment based on

the materials already identified.

…In short the meaning to be accorded to the LOU is to be

contextual. This is indeed significant as pointed out by Lord

Hoffman in Jumbo King Ltd v Faithful Properties Ltd & Ors

[1999] 2 HKC 507:

The construction of a document is not a game with

words. It is an attempt to discover what a

reasonable person would have understood the

parties to mean. And this involves having regard

not merely to the individual words they have used,

but to the agreement as a whole, the factual and

legal background against which it was concluded

and the practical objects which it was intended to

achieve. Quite often this exercise will lead to the

conclusion that although there is no reasonable

doubt about what the parties meant, they have not

expressed themselves very well. Their language

may sometimes be careless and they may have

said things which, if taken literally, mean

something different from what they obviously

intended. In ordinary life people often express

themselves infelicitously without leaving any doubt

about what they meant. Of course in serious

utterances such as legal documents, in which

people are supposed to have chosen their words

with care, one does not readily accept that they

have used the wrong words. If the ordinary

meaning of the words makes sense in relation to

the rest of the document and the factual

background, then the court will give effect to that

language, even though the consequences may

appear hard for one side or the other. The court is

not privy to the negotiation of the agreement —

evidence of such negotiations is inadmissible —

and has no way of knowing whether a clause which

appears to have an onerous effect was a quid prop

quo for some other concession. Or one of the

parties may simply have made a bad bargain. The

only escape from the language is an action for

rectification, in which the previous negotiations

can be examined. But the overriding objective in

construction is to give effect to what a reasonable

person rather than a pedantic lawyer would have

understood the parties to mean. Therefore, if in

spite of linguistic problems the meaning is clear, it

is that meaning which must prevail.”

[emphasis is mine]

[c] Dato’ V.C. George J in the case of Sri Kajang Rock Products

Sdn Bhd v Mayban Finance Bhd & 2 Ors [1992] 1 CLJ 204 held

as follows:

“To constitute a valid contract there must be separate and

definite parties thereto; those parties must be in agreement.

That is there must be a consensus ad idem; those parties

must intend to create legal relations in the sense that the

promises of each side are to be enforceable simply because

they are contractual promises and the promises of each

party must be supported by consideration”.

[d] In the present case I find that all the necessary ingredients of a

binding contract existed in that I find that there are:

[i] an agreement, which consists of offer and acceptance

11 (Please see Hock Hua Bank Bhd v Chan Siew Yan [2005]

7 CLJ 62;

[ii] Intention to create legal relation; and

[iii] Consideration.

[e] In the said Letter of Undertaking, I find that it is clear the 1st

19 Defendant has unequivocally appointed the 2nd Plaintiff to seek
20 and introduce purchasers for the 1st Defendant and that in the
21 event that the 2nd Plaintiff manages to introduce a person who
22 purchases the 1st Defendant’s land at the price of more than
23 RM2,500 per acre, the 2nd Plaintiff shall have the extra income as

her commission.

[f] Paragraph [5] of the said Letter of Undertaking further stated

that upon the signing of Sale and Purchase Agreement between

28 the respective purchaser or purchasers and the 1st Defendant, the
29 1st Defendant will also simultaneously execute the Agency

Agreement made between him and the Plaintiffs. The said Letter of

2 Undertaking further provided that the 1st Defendant shall then be

liable to pay the sum excess under Clause (1) of the said Letter of

Undertaking to the Plaintiffs, from the selling price of the said

Land. Having considered the facts of the present case, I find that

6 the 2nd Plaintiff has fulfilled the relevant conditions of the said

Letter of Undertaking by introducing a purchaser to the 1st

Defendant at the price of RM4,100.00 per acre for the said land, a

draft Sale and Purchase Agreement was prepared but the 1st

Defendant intentionally refused to respond to the said draft Sale

11 and Purchase Agreement at all and avoided the 2nd Plaintiff which

led to the proposed sale of the said land to be aborted.

14 [g] I find that the 1st Defendant sought to resile from the agreement

he had entered into with the Plaintiffs as under the bargain with the

Plaintiffs and if the proposed sale of the said land introduced by

17 the 2nd Plaintiff went through, the 1st Defendant would only

received the total sum of RM1,250,000.00 from the aborted sale to

19 Jiang Sun Plantation [Sabah] Sdn Bhd [6th Defendant herein]
20 whereas under the sale to Tapah Yakin Sdn Bhd [5th Defendant
21 herein] introduced by the 2nd Defendant, the 1st Defendant

obtained about RM1,650,000.00, an extra of RM400,000.00. It is

23 pertinent to note that the final purchaser of the 1st Defendant’s land

is the said Tapak Yakin Sdn Bhd which had the same substantial

shareholder and director as the company introduced by the

26 Plaintiffs to the 1st Defendant, namely the 4th Defendant herein and

that the terms and conditions of the Sale and Purchase Agreement

28 between the 1st Defendant and Tapak Yakin Sdn Bhd is not that

drastically different from the proposed sale to Jiang Sun Plantation

[Sabah] Sdn Bhd introduced by the Plaintiffs which was aborted.

4 [h] I find that it would be grossly inequitable for the 1st, 2nd and 3rd

Defendants to deny the Plaintiffs, the commission due to the

Plaintiff and to reap the fruits of the Plaintiffs’ hard work, bearing in

mind that the Plaintiffs had secured a bona fide buyer for the 1st

8 Defendant’s said land but the 1st Defendant’s reasons for not

concluding and completing the sale of the said land, introduced by

the Plaintiff, are mala fide and not credible.

12 [i] I noted that the 1st, 2nd and 3rd Defendants did not testify despite

various allegations being made against them by the Plaintiffs. I find

despite such clear and serious contention being made, I find that

15 the Defendants did not even bother to call either the 1st, 2nd and 3rd

Defendants to be witnesses, to rebut the various contentions, I

17 hold that such omission or failure to call the 1st Defendant, the 2nd
18 Defendant, Hiew Pau Lu and the 3rd Defendant, Gungkin @

Tungkin, who are represented by the same lawyers or the 4th

Defendant, Kang Jit Sing, will attract the proper invocation of

Section 114(g) of the Evidence Act because the Plaintiffs together

22 with the assistance of the 4th, 5th and 6th Defendants has proven on
23 the balance of probabilities that it was the 1st Defendant who sent
24 the 2nd Defendant, Hiew Pau Lu to see the 4th Defendant, Kang Jit

Sing, after having the benefit of getting the necessary information

from the draft sale and purchase agreement of the aborted sale of

the said land.

[j] The principles for invoking Section 114(g) are stated in the case

of Curvet Transport SA & Anor v Shapadu Trans-System Sdn

Bhd [1999] 4 MLJ 150:

“The defendant contends that the plaintiffs should have

called Jamal to prove the truth or otherwise of his committed

statements, namely, when Jamal said to PW1 during the

dinner in April 1997 when he confirmed that the shipping part

of the project would be the plaintiffs' by saying, 'Don't worry,

if the other people will give you trouble, call me' and further

when on 12 September 1997 after the final freight rate had

been agreed upon between PW2 and Jamal and when PW2

informed Jamal that the plaintiffs had already despatched the

MV 'Enlivener' to South Korea to be in time for the first

shipment and Jamal responded 'Good, at least we can be

sure that there will be no delay'. Jamal was the general

manager of the defendant and chairman of the tender

management committee. The plaintiffs' witnesses confirmed

that Jamal spoke those words. If the defendant wished to

deny them surely it was the duty of the defendant to have

called Jamal more so when Jamal was their own material

witness. It was on account of this that I had earlier invoked s

114(g) of the Evidence Act 1950 against the defendant. As a

matter of fact, before the conclusion of the trial, learned

counsel for the defendant did at one point indicate that

Jamal would be the second witness for the defendant.

This showed that Jamal was certainly available to give

evidence. There was no evidence or explanation led by

the defendant as to why such a material witness as

Jamal did not give evidence.”

[Emphasis is mine]

[k] Another relevant case is the case of Khaw Cheng Bok v Khaw

Cheng Poon [1998] 3 MLJ 457 which held:

“Cheng Bok, Cheng Liat and Cheng Hum leveled distinct

charges against Cheng Poon from the witness-box and led

evidence in support. They called witnesses who testified on

numerous facts in dispute (paraphrased hereinbefore) which

Cheng Poon had knowledge of the whole circumstances to

give evidence to contradict or to deny. But Cheng Poon did

not give evidence nor subject himself to cross-examination,

although he heard, since he was in court throughout the trial

(almost), all that was said or made out against him.

In Common Law, omnia praesumuntur contra spoliatorem, all

things are presumed against a wrongdoer. Therefore, in a

civil proceeding, 'if a man by his own tortious act, withhold

the evidence by which the nature of his case would be

manifested, every presumption to his disadvantage will be

adopted' [1 Smith LC (13th Ed) p 404]. Where a party has

the means in his power of rebutting and explaining the

evidence adduced against him, if it does not tend to the

truth, the omission to do so furnishes a strong inference

against him [ A-G v Windsor 24 Beav 679 at p 706].

That maxim has been codified; s 114(g) of the

Evidence Act 1950 provides that the court may

presume 'that evidence which could be and is not

produced would if produced be unfavourable to the

person who withholds it'. An adverse inference

may be drawn if reason for the absence of

important material witnesses is not given [Guthrie

Sdn Bhd v Trans-Malaysian Leasing Corp Bhd

[1991] 1 MLJ 33]. However, a presumption under s

114 is not mandatory but discretionary [Synn Lee &

Co Ltd v Bank of China [1962] MLJ 395]. 'An

adverse inference can only be drawn if there is

withholding or suppression of material facts and

not merely on account of failure to obtain evidence'

[Munusamy v PP [1987] 1 MLJ 492, per Mohd Azmi

SCJ]. But even then, '(a) presumption may be adopted

if consistent with the proved facts' [CEC v Comptroller

of Income Tax [1971] 2 MLJ 43, per Winslow J]. His

Lordship explained (at p 58):

…

With regard to the presumption arising from a party not

going into the witness box and the presumption arising

from not calling witnesses acquainted with facts and

keeping the adversary out of possession of evidence,

Sarkar on Evidence (4th Ed) pp 1547-1548 provides the

following exposition on s 114(g) of the Indian Evidence

Act, which is in pari materia with the Malaysian

provision:

…

Presumptions are necessarily made against parties who having acknowledge of the facts in dispute will not subject themselves to examination, when a prima facie case is made against them, and when by their own evidence, they might have answered it [Nawab Syed v Amanee 19 WR 149 PC at pp 150-

151 ... Under such circumstances, it is Impossible to overlook the significance attaching to the refusal of the respondents and their son Jot Singh to enter the witness-box. It raises a presumption against them [Durga v Mathura 15 CWN 717, 721-722; 10 IC

963 PC]

Everything is to be presumed against a party who keeps

his adversary out of the possession of evidence by

taking means of retaining the evidence in his own

custody. A similar presumption may also arise when a

party does not call witnesses who are within his reach

and are acquainted with the facts of the case [Thulai v

SA 1973 AIR SC 501; Virendra v Jagiwan 1974 AIR SC

1957; Sooriah v Cotaghery 2 MIA 113, 125; U Po v

Edward 1934 AIR Rang 139; Trailakhya v Kenaram 61

CLJ 551]. When a party failed to call as his witness the

principal person involved and who was in a position to

give first hand account of the matter in controversy and

who could have refuted on oath the allegation on the

other side, it is legitimate to draw an adverse inference.

The court may draw adverse inference against a party

who being in a better position to adduce better evidence

deliberately abstain from doing so. Persons omitting to

produce their best available evidence cannot take

advantage of the abstract doctrine of onus of proof [Md

Hussain v Secretary of State AIR 1939 Lah 330].

In the adversarial system of trials, a litigant has the absolute

right to conduct his case as he sees fit. Nevertheless, for

Cheng Poon, Richard and Howard, the failure of Cheng

Poon to testify or offer himself for cross-examination, which

was not a valuable contribution to their cause, would be a

recurring theme when considering the evidence.”

[Emphasis in mine]

16 [l] I hold that the 1st, 2nd and 3rd Defendants’ contention that Hiew

Pau Lu was actually appointed by Kang Jit Sing is without basis

18 because the 4th, 5th and 6th Defendants at paragraph 13 of their

Statement of Defence filed herein, categorically denied that they

20 knew the 2nd and 3rd Defendants, namely Hiew Pau Lu and
21 Gungkin @ Tungkin at any time. I further noted that the 4th, 5th and
22 6th Defendant’s counsel had also put the same question to the 2nd
23 Plaintiff during the trial and the 2nd Plaintiff agreed to the said

question. Hence, I find that both the Plaintiffs as well as Kang Jit

25 Sing have proved that it was the 1st Defendant who had appointed

Hiew Pau Lu to go and see Kang Jit Sing but not the other way

round.

1 [m] The 1st, 2nd and 3rd Defendants are fully aware of the case put
2 forth by the Plaintiffs as well as the 4th, 5th and 6th Defendants’
3 case against them. However, the 1st, 2nd and 3rd Defendants

omitted and/or failed to attend court as witnesses to rebut such

cases put forth against them. It is very pertinent to note that both

6 the 1st, 2nd and 3rd Defendants are represented by the same

solicitors. No reason or explanation whatsoever was given by the

8 1st, 2nd and 3rd Defendant as to why they did not appear as

witnesses despite the material allegations been made against

10 them. Since the 1st, 2nd and 3rd Defendants were also represented

by a common lawyer, there is no reason why they were not called

as witnesses, unless they have something to hide. Further the fact

13 that the 1st Defendant has made no attempt whatsoever to call the
14 4th Defendant, Kang Jit Sing as a witness is also a good basis to

trigger the invocation of adverse inference under Section 114(g)

Evidence Act 1950.

18 [n] I hold that the irresistible conclusion from the 1st, 2nd and 3rd
19 Defendant’s failure and/or withholding of the 1st, 2nd and 3rd

Defendant’s testimonies and the said Kang Jit Sing’s evidence

must be that their evidences would be unfavourable to the 1st

Defendant, if he had called them to testify in court. In the premises,

23 I find that the contention made by the 1st Defendant or his Attorney

that Hiew Pau Lu was appointed by Kang Jit Sing is not credible.

1 [2] If so, whether the 1st Defendant has breached the said binding

contract or agreement?

[a] For the reasons stated in paragraph 4 above, I find that the 1st

Defendant has breached the said contract or agreement.

7 [b] Furthermore, in the present case, I find that after the 2nd Plaintiff
8 have introduced the 4th Defendant, Kang Jit Sing to the 1st

Defendant pursuant to the said Letter of Undertaking dated

6.1.2008 and handed the draft sale and purchase agreement of

11 the said land between the 4th Defendant’s company namely Jiang
12 Sun (Sabah) Sdn Bhd and the 1st Defendant, to the 1st Defendant,
13 the 1st Defendant together with his attorney and solicitor started to
14 avoid the 2nd Plaintiff. The 1st Defendant had given many reasons
15 and excuses to keep the 2nd Plaintiff away for instance the 1st

Defendant contended that he could not agree to the terms of the

draft sale and purchase agreement, despite the draft sale and

purchase agreement was drafted by taking into account the 1st

Defendant’s instructions. Despite being repeatedly requested for a

counter proposal for amendment of the terms of the draft sale and

21 purchase agreement, the 1st Defendant failed to respond to the 2nd

Plaintiff.

[c] I find that since the signing of the said Letter of Undertaking

dated 6.1.2008, the Plaintiffs have been dutifully performing their

duties pursuant to the said Letter of Undertaking. They had,

pursuant to the said Letter of Undertaking [i] introduced a bona fide

28 purchaser to the 1st Defendant, [ii] forwarded a draft sale and

Defendant claimed that he did not agree to the terms of the

payment, the Plaintiffs requested for an amended proposal from

3 the 1st Defendant but there was no response and [iv] the Plaintiffs

have testified in Court that they are at all material times, willing and

ready to continue performing their part pursuant to the said Letter

of Undertaking, which is to pay for the necessary survey fee,

premiums, registration fee, cesses, rents and other related levies.

9 [d] The 1st Defendant further contended that the Plaintiffs have

breached the undertaking by not paying the 10% deposit allegedly

promised by the Plaintiffs. I find that this contention is not credible

as there was no mention of such payment of deposit whatsoever in

the said Letter of Undertaking dated 6.1.2008.

15 [e] I find and agree with the Plaintiffs’ contention that the 1st,, 2nd
16 and 3rd Defendants’ contentions are afterthoughts in order to justify
17 as to why the 1st Defendant refused to carry through the

undertaking given by him to the Plaintiffs and that the real intention

19 of the 1st Defendant is this: After having received the draft sale and
20 purchase agreement, the 1st Defendant discovered that the selling

price was RM4,100 per acre and that the Plaintiffs were making a

lot of profit from the proposed sale. In the draft sale and purchase

23 agreement, the 1st Defendant knew the identity of the purchaser,
24 hence, the 1st Defendant appointed the 2nd Defedant, Hiew Pau Lu

to approach Kang Jit Sing to negotiate for another deal which

26 would be more lucrative to the 1st Defendant. By doing so, the 1st

Defendant is afraid that the Plaintiff may take action against him,

28 hence, the 1st Defendant requested the 2nd Defendant, Hiew Pau

Lu to sign the indemnity, at page 6 of PBD.

1 [f] The 1st Defendant contended that the reason for the indemnity

was actually to ensure that Hiew Pau Lu was not colluding with the

Plaintiffs. I find that such a contention is not credible and that it is

4 an afterthought because of the conduct of the 1st Defendant, in
5 avoiding the 2nd Plaintiff, after receiving the draft sale and
6 purchase agreement of the said land from the 2nd Plaintiff and also
7 the commission requested by the 2nd Defendant, Hiew Pau Lu for

introducing a purchaser for the said land, is much lower than the

commission agreed to be given to the Plaintiffs.

[3] If so, what are the rightful damages entitled by the Plaintiffs?

[a] Having found that there is a binding and valid contract between

15 the Plaintiffs and the 1st Defendant and that the 1st Defendant has

breached the said Letter of Undertaking, I shall now proceed to

address the issue of damages which consists of 2 sub-issues,

namely the issue of the remoteness of damages and the issue of

quantum of damages.

[b] The remoteness of damages is governed by the celebrated

case of Hadley & Baxendale and Section 74 of the Contracts Act

which is as follows:

“74. Compensation for loss or damage caused by breach of

		contract

	(1)	When a contract has been broken, the party who
		suffers by the breach is entitled to receive, from the

		party who has broken the contract, compensation for
		any loss or damage caused to him thereby, which
		naturally arose in the usual course of things from the
		breach, or which the parties knew, when they made the
		contract, to be likely to result from the breach of it.

	(2)	such compensation is not to be given for any remote
		and indirect loss or damage sustained by reason of the
		breach.

	(3)	When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to
		discharge it is entitled to receive the same compensation from the party in default as if the person
		had contracted to discharge it and had broken his
		contract.”

[c] As regards the issue of quantum of damages. I find guidance in

the textbook written by Krishnan Arjunan in Contract Law in

Malaysia at page 509 which stated as follows:

“The concept of remoteness settles the heads of damage for

which the defendant is legally liable to the plaintiff. But what

amount or quantum or measure of damages should the

plaintiff be awarded in respect of each of these heads? The

issue of quantum is settled by the rule that the plaintiff should

recover such an amount as will put him in the same position,

so far as money can do so, as if the breach of contract had

not taken place. The assessment of damages may take

place on two different bases; ‘expectation loss’ and ‘reliance

loss’. A third basis for the award of damages seems to be

emerging. This is ‘restitutionary damages’.

[d] Since the settled rule for measure of damages is to put the

plaintiff in the position as though the contract is properly

performed, I shall apply this formula to compute the quantum of

damages to be awarded to the Plaintiffs.

[e] I agree with the Plaintiffs’ contention that if the said Letter of

12 Undertaking given by the 1st Defendant to the Plaintiffs had been

completely fulfilled, the Plaintiffs would be entitled to the

commission of RM350,000.00 which is computed as follows:

- Total commission earned (RM4,100 – RM2,500)

x 500 acres = RM800,000

- (Minus) Payment for survey fee, premium,

registration fee, cesses, rents and other

related levies (RM900 per acre as testified

21 by the 2nd Plaintiff during the trial at Q&A

82 of the notes of proceeding) = RM450,000

- Nett commission entitled by the Plaintiffs = RM350,000

===========

[4] Whether the Defendants have committed the tort of conspiracy

to injure, to interfere with or to procure the breach of a contract

and/or to induce the breach of a contract against the Plaintiffs?

5 [a] From the Plaintiff’s written submission dated 26th day of
6 November 2010 and the 1st, 2nd and 3rd Defendants’ written
7 submission dated 25th November, 2010, there were no mention at

all, of this agreed issue, as such I shall not deal with this agreed

issue.

ORDER

	.	In the light of my findings on the above-agreed issues, I therefore
		order as follows:

		[1] Judgment in the sum of RM350,000.00:

		[2] Interests at the rate of 8% per annum on the said sum of
		RM350,000.00 from the date of this Writ until judgment and
		at the rate of 8% per annum from the date of judgment until
		fill and final payment;

		[3] Costs on a solicitors and clients basis

Dated this 6th day of May, 2011.

LEE HENG CHEONG

Judicial Commissioner

Sandakan

For Plaintiffs: Mr. Tsang Hieng Yee

Of Messrs V.K. Liew & Partners

Sandakan

7 1st, 2nd and 3rd Defendants: Mr. Mohammad Nor Yusof

Of Messrs Johari & Zelika

Kota Kinabalu

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