k-02ncvcw-206-02-2023 — PUSAT KHIDMAT PEMBANGUNAN USAHAWAN YaPEIM SDN BHD v 1. ) PEH LIAN HWA 2. ) KHOR SIANG TEIK 3. ) CHEW POH ENG 4. ) ENG CHONG HIM

Catchwords

Issue: Whether the High Court erred in concluding that the Agreement had not been frustrated and that clause 2.1(d) had been fulfilled. Appellant’s Arguments: (i) Frustration doctrine applies – MOF cancelled the funds that YaPEIM needed to pay for the shares – The Agreement made no provision for this situation – The event was beyond the appellant’s control and made performance impossible under Section 57 CA 1950 – The Agreement should be void, entitling the appellant to a refund of the deposit (Section 66 CA 1950). (ii) Clause 2.1(d) not fulfilled – Required government approval (MOF) – Since MOF did not approve funding, the condition was not satisfied – Appellant’s solicitors never confirmed the fulfilment of conditions precedent. Court’s Findings: (i) No Frustration of contract – The obligation to pay remained with the appellant, not YaPEIM – YaPEIM’s failure to secure MOF funds was self-induced (MOF revoked approval due to non-compliance) – Self-induced frustration is not frustration. (ii) Clause 2.1(d) was fulfilled – MOF’s approval was not required under this clause – the Agreement concerned a private sale, and MOF had no jurisdiction over it – The appellant warranted in Clause 4 that all required approvals were secured. (iii) Deposit Rightfully Forfeited – Clause 5.4 allowed the respondents to forfeit the RM1,000,000 deposit – The amount was reasonable and appropriate. Conclusion: The trial Judge’s factual findings were not plainly erroneous and that no errors which would warrant appellate intervention – Appeal dismissed – RM20,000 costs awarded to the Respondents, subject to allocator – the High Court’s decision was upheld.

Practice Areas

Issue: Whether the High Court erred in concluding that the Agreement had not been frustrated and that clause 2.1(d) had been fulfilled. Appellant’s Arguments: (i) Frustration doctrine applies (ii) Clause 2.1(d) not fulfilled Court’s Findings: (i) No Frustration of contract (ii) Clause 2.1(d) was fulfilled (iii) Deposit Rightfully Forfeited Conclusion: The trial Judge’s factual findings were not plainly erroneous and that no errors which would warrant appellate intervention

Judges (3)

Hanipah binti Farikullah Coram Mariana binti Haji Yahya Coram Mohamed Zaini bin Mazlan Delivered

Counsel (8)

Azmi & Associates Firm Burhan & Co Firm Abu Daud Abd Rahim Counsel Appellant Ahmad Iqbal Rohaizan Counsel Appellant Koay Jun Hui Counsel Respondent Mohd Wafiy bin Azman Counsel Appellant Victor Paul A/L Doraj Raj Counsel Respondent Wardah Yumma binti Yunus Counsel Appellant

Parties (5)

PUSAT KHIDMAT PEMBANGUNAN USAHAWAN YaPEIM Sdn Bhd Appellant Chew Poh Eng Respondent Eng Chong Him Respondent Khor Siang Teik Respondent Peh Lian Hwa Respondent

Summary

YaPEIM's subsidiary appealed after the High Court dismissed its claim for refund of a RM1,000,000 deposit forfeited under a share sale agreement for seven Pasaraya Aneka companies. The appellant argued the agreement was frustrated when the Ministry of Finance cancelled funding, and that a condition precedent requiring government approval was not fulfilled. The Court of Appeal dismissed the appeal, finding the frustration was self-induced, the MOF approval clause did not apply to the private sale, and the deposit forfeiture under Clause 5.4 was reasonable.

What was the outcome of PUSAT KHIDMAT PEMBANGUNAN USAHAWAN YaPEIM SDN BHD v 1. ) PEH LIAN HWA 2. ) KH...?

<p>YaPEIM's subsidiary appealed after the High Court dismissed its claim for refund of a RM1,000,000 deposit forfeited under a share sale agreement fo...

Statutes Cited

Contracts Act 1950

s 57

Cases Cited (4)

MY (4)

[1996] 3 CLJ 163 [2000] 3 CLJ 666 [2005] 3 CLJ 238 [2007] 4 MLJ 201