Fabulous Range SDN BHD V. Helena K Gnanamuthu
Fabulous Range SDN BHD V. Helena K Gnanamuthu
CONTRACT: Rescission – Sale and purchase agreement – Whether there was total
failure of consideration – Whether vacant possession of property already taken by
C purchaser – Whether purchaser already exercised rights under agreement – Whether
innocent misrepresentation made out – Whether defects in property could give rise
to rescission – Whether defects in property rectifiable – Whether omission to rectify
defects amounted to breach of warranty – Whether only entitled to damages
CONTRACT: Termination – Sale and purchase agreement – Claim for rescission
D
and breach of contract by purchaser – Whether there was innocent misrepresentation
or total failure of consideration – Whether purchaser could claim both remedies –
Whether rescission and breach of contract could subsist together – Whether
inconsistent with one another – Whether rescission could be allowed after full
conveyance of property – Grant of rescission and award of damages at same time –
E Whether correct
The respondent (‘plaintiff’) bought a three-storey bungalow residential
building (‘property’) from the appellant (‘defendant’) at the price of
RM2,500,000. The parties signed a sale and purchase agreement (‘SPA’), a
statutory agreement in Housing Development (Control and Licensing) Act
F
1966 (‘HDA’) and in the form of Schedule G of the Housing Development
(Control and Licensing) Regulations 1989, dated 28 June 2010. As the
property was a show unit, the plaintiff also agreed to purchase the property
together with all fixtures, fittings and interior design works in the property
at the price of RM450,000 through a supplemental agreement (‘SA’). On
G 2 September 2013, the plaintiff terminated the SPA and the SA
(‘agreements’) and initiated a suit against the defendant, claiming for,
inter alia, rescission of the agreements. Nevertheless, the plaintiff continued
to pay the purchase price of the property and had fully settled the same on
1 October 2014. The plaintiff then instituted a legal action against the
H defendant. The plaintiff’s pleaded causes of action, in essence, were for the
restoration of her position as if the agreements were never entered into, ie,
restitution, as well as for breach of the agreements. The High Court granted
judgment in favour of the plaintiff, holding, amongst others, that: (i) the
liquidated ascertained damages (‘LAD’) should be calculated until the date
I the plaintiff took the keys to the property; (ii) there was misrepresentation
as the defendant had represented to the plaintiff that it was going to deliver
a ‘luxurious and high end’ property; (iii) there was a breach of the
agreements, in that, the defendant did not obtain a written approval from the
2 Current Law Journal [2021] 8 CLJ
plaintiff before making changes to the landscape and that the fixtures and A
fittings purchased on an ‘as is where is’ basis must be in perfect condition,
without defects and the items delivered by the defendant were full of defects;
(iv) the plaintiff was entitled to rescind the agreements because the defendant
had failed to rectify the various defects in the property and its fixtures.
Aggrieved by the decision of the High Court, the defendant appealed, B
contending that the HCJ erred in His Lordship’s findings on the grounds that:
(i) the plaintiff had affirmed the agreements; (ii) that there was no
misrepresentation; and (iii) there was no total failure of consideration.
Held (allowing appeal in part)
Per Lee Heng Cheong JCA delivering the judgment of the court: C
I
4 Current Law Journal [2021] 8 CLJ
Reported by S Barathi
C
JUDGMENT
Lee Heng Cheong JCA:
Introduction
[1] The respondent/plaintiff bought a three-storey bungalow residential
D
building held under the title particulars H.S.(D) 137542 P.T. 51590 in
Mukim Cheras, District of Ulu Langat in the State of Selangor bearing postal
address No. 18, Jalan Palma 1/1F, Taman Bukit Palma, Sg Long, 43000
Kajang, Selangor (“the property”) from the appellant/defendant, at the price
of RM2,500,000.
E
[2] The parties then signed a sale and purchase agreement dated 28 June
2010 (“SPA”) which is a statutory agreement in Housing Development
(Control and Licensing) Act 1966 (“HDA 1966”) and in the form of
Schedule G of the Housing Development (Control and Licensing)
Regulations 1989.
F
[3] As the property was a show unit, the respondent/plaintiff also agreed
to purchase the property together with all fixtures, fittings and interior design
works in the property at the price of RM450,000 through a supplemental
agreement dated 28 June 2010 (“SA”).
[4] The property was registered in the respondent/plaintiff’s name and G
charged to OCBC Bank (Malaysia) Bhd on 13 October 2010.
[5] On 2 September 2013, the respondent/plaintiff terminated the SPA
and the SA (collectively “the agreements”) and initiated a suit against the
appellant/defendant on 30 December 2013, claiming for inter alia, rescission
of the agreements. H
[10] We heard the appeal and after due deliberation and having carefully A
considered the submissions of both parties, we found that there are merits in
the appeal and unanimously allowed the appeal in part with costs. We
propose to give reasons for our decision with respect to the appeal.
[11] For ease of reference, the parties herein shall be referred to their
B
respective capacities before the High Court.
Applicable Laws And Principles
[12] It is trite law that the function of an appellate court is one of review
only. However, where the discretion has not been exercised judicially, that
is to say, when the judge has committed an error of law or misconceived the C
facts or has not given sufficient weight to the relevant considerations or the
decision would result in injustice, the court can interfere (see Vijayalakshmi
Devi d/o Nadchatiram v. Dr Mahadevan s/o Nadchatiram & Ors [1995] 3 CLJ
493; [1995] 2 MLJ 709 (FC); Tien Ik Sdn Bhd & Ors v. Peter Kuok Khoon
Hwong [1993] 1 CLJ 9; [1992] 2 MLJ 689 (SC); Hadmor Productions Ltd D
v. Hamilton [1983] 1 AC 191; Evans v. Bartlam [1937] AC 473 (SC);
New Zealand Insurance Co Ltd v. Ong Choon Lin [1992] 1 CLJ 44; [1992]
1 CLJ (Rep) 230; [1992] 1 MLJ 185 (SC) and Egerton v. Jones [1939] 2 KB 702).
[13] We were mindful of the limited role of the appellate court in relation
to findings of facts made by the court of first instance. In the case of Lee Ing E
Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97, the
Court of Appeal held as follows:
... an appellate court will not, generally speaking, intervene unless the trial
court is shown to be plainly wrong in arriving at its decision. But appellate
interference will take place in cases where there has been no or F
insufficient judicial appreciation of the evidence.
(emphasis added)
[14] Reference is also made to the decision of the Federal Court in
Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309 where the
Federal Court held that the test of “insufficient judicial appreciation of G
evidence” adopted by the Court of Appeal was in relation to the process of
determining whether or not the trial court had arrived at its decision or
findings correctly on the basis of the relevant law and the established evidence.
[15] Bearing in mind, the above principles distilled from the above
H
authorities, we will now consider the defendant’s appeal.
Findings Of High Court
[16] The learned High Court Judge made inter alia the following findings
in his grounds of judgment:
I
(i) that the liquidated ascertained damages (“LAD”) should be calculated
until the date the plaintiff took the keys to the property (see paras. 36
to 45 of the grounds of judgment).
Fabu lous Range Sdn Bhd
[2021] 8 CLJ v. Helena K Gnanamuthu 7
A (ii) The learned High Court Judge found that there was misrepresentation as
the defendant had represented to the plaintiff, to deliver a “luxurious
and high end” property, such as described in exh. P34 which is brochure
of the property (see para. 52 of the grounds of judgment).
(iii) that there was a breach of the agreements in that the defendant did not
B
obtain written approval from the plaintiff before making changes to the
landscape (see para. 59 of the grounds of judgment) and that the fixtures
and fittings purchased on an “as is where is” basis must be in perfect
condition, without defects and the items delivered by the defendant are
full of defects (see para. 62 of the grounds of judgment);
C
(iv) that the defendant failed to show that the defects occurred when the
property was in the custody and control of the plaintiff (see paras. 63
to 65 of the grounds of judgment);
(v) that he prefers the evidence of the plaintiff’s expert (PW3) over the
D defendant’s expert (DW3) as DW3 did not visit and inspect the property
(see para. 74 of the grounds of judgment); and
(vi) that the plaintiff is entitled to rescind the agreements because the
defendant has failed to rectify the various defects in the property and its
fixtures (see paras. 77 and 80 of the grounds of judgment).
E
The Appellant/Defendant’s Contentions
[17] Before us, the defendant contended that the learned High Court Judge
has inter alia erred in his various findings on the following grounds:
(i) the plaintiff has affirmed the agreements;
F
(ii) there is no misrepresentation; and
(iii) there is no total failure of consideration.
The Respondent/Plaintiff’s Contentions
G [18] The plaintiff’s pleaded causes of action in the SOC are in essence as
follows:
(i) that the plaintiff alleged that there was misrepresentation by the
defendant and that the defendant had breached the defendant’s
representation; and/or
H
(ii) that there was a breach of contract by the defendant.
Our Decision
[19] From the pleadings and evidence of the plaintiff, we find that the
plaintiff is seeking for rescission and restitution only. This is confirmed by
I the plaintiff during the course of trial, that what she sought from the
defendant, is to “take back the property and just refund me what I have paid
8 Current Law Journal [2021] 8 CLJ
for”. In essence, the plaintiff is only seeking for restoration of her position A
as if the agreements were never entered into, that is, restitution. However,
at the same time, the plaintiff also pleaded in sub-para. 15 of the SOC that
the defendant had breached the agreements.
[20] In a situation where there is rescission by way of termination arising
B
out of breach of contract, guidance can be found in Berjaya Times Square
Sdn Bhd v. M-Concept Sdn Bhd [2010] 1 CLJ 269, where Zulkefli Makinudin
FCJ (as he then was) held that:
As regards the law on rescission of contract which is the main issue to
be decided in the present case, I am of the view on the factual matrix of
the case s. 56(1) should be read together with s. 40 of the Act in C
determining the question as to whether the appellant as the party that was
obliged to perform its promise had refused to perform its promise in its
entirety by not doing any of the things it promised to do within the time
specified by the contract. A reference to ss. 40 and 56(1) of the Act clearly
showed that the right to rescind a contract by way of termination only
D
arises when there has been a total failure of consideration.
(emphasis added)
[21] As to what amounted to a total failure of consideration, the case of
LSSC Development Sdn Bhd v. Thomas Iruthayam & Anor [2007] 2 CLJ 434;
[2007] 4 MLJ 1 is pertinent. This is what the court held: E
It follows that this is not a case where there was a fundamental breach by the
defendant which resulted in the plaintiffs being deprived of - to borrow the words of
Lord Diplock in Photo Productions -substantially the whole benefit which it was the
intention of the parties that they should obtain from the contract. The defendant’s
breach did not go to the root of the contract. The contract was therefore not “voidable‘ F
under s 56(1). Hence, the plaintiffs were not entitled to terminate it. Their termination
was therefore unlawful.
(emphasis added)
[22] In LSSC Development Sdn Bhd v. Thomas Iruthayam & Anor, supra, the
court further held that rescission by way of termination arising from a breach G
of contract is a common law right, which is set out in s. 40 read together with
s. 56(1) of our Contracts Act 1950. This is what the court held:
The question, then, in each case must be this: Did the defendant fail to perform every
part of his promise? If the answer is ‘No’, then s. 56(1) has no application.
In my judgment, given the facts of the present instance, ss. 40 and 56(1) H
should be read together. When that is done, the question that arises for
determination is whether the instant defendant refused to perform its promise in its
entirety by not doing any of the things it promised to do within the time specified
by the contract.
[23] The plaintiff, in seeking for rescission by way of termination of the I
agreements as prayed for in the SOC, must prove that there has been a total
failure of consideration whereby the defendant committed a fundamental
breach of the agreements which goes to the root of the agreements.
Fabu lous Range Sdn Bhd
[2021] 8 CLJ v. Helena K Gnanamuthu 9
A [24] In the absence of any total failure of consideration, the plaintiff can
not avail herself of the right to rescind. This is what the court in Berjaya Times
Square Sdn Bhd v. M-Concept Sdn Bhd (supra), said, at p. 284:
Absent a total failure of consideration, the common law right to rescind does not exist.
Goff & Jones “The Law of Restitution” (6th edn) which is the leading text
B on the subject has this to say at p. 502, para. 20-007:
A breach of contract may be so fundamental that it deprives the ‘party who
has further undertakings still to perform of substantially the whole benefit
which it was the intention of the parties as expressed in the contract that he
should obtain as the consideration for performing those undertakings.’ (Hong
C Kong Fir Shipping Co Ltd v. Kawasaki Kaisen Kaisha Ltd [1962] 2 QB
26). The innocent party has then an election. He may affirm the contract
or he may bring it to an end. In the latter event, if he has paid money to
the defendant under the contract, he can, as an alternative to claiming
damages, sue for recovery of the money provided that the consideration for
the payment has wholly failed; if the consideration has partially failed, his
D only action is for damages.
In other words, where there has been a total failure of consideration, the innocent
party has the alternative remedy of suing to recover monies paid under the contract
to the guilty party. But he can under no circumstances have his money returned and
claim damages. And if the consideration has only partially failed, he may only claim
E damages. (emphasis added)
[25] In the instant appeal, we find that there is no total failure of
consideration as the plaintiff took vacant possession of the property and
exercised her rights under the agreements, by taking the keys of the property
on 12 September 2012, inspecting the property on 12 September 2012 and
F submitting her defect checklist to the defendant and again submitted her
defect checklists on 26 September 2012 and 3 October 2012 respectively
(see senarai semak kerosakan (defect checklist) at pp. 218 to 222 of CCB
Vol. 2 and senarai kerosakan (list of defects) at pp. 368 to 372 of CCB
Vol. 3), claiming for LAD pursuant to cl. 22(2) of the SPA and continuing
G to pay the bank loan taken out to purchase the property notwithstanding
having terminated the agreements and having the property transferred to her
name. In the light of the above, we also find that the plaintiff has also
affirmed the agreements. Thus the plaintiff cannot rescind the agreements and
seek restitution.
H [26] Guidance can be found in TTDI Jaya Sdn Bhd v. Yew Hong Teng
& Anor [2017] 1 CLJ 436 which facts are similar to the instant appeal before
us where the Court of Appeal found that the claim by the plaintiff in the said
case for a rescission is an afterthought. This is what the Court of Appeal in
TTDI’s case (supra) said:
I [53] The High Court had also failed to consider the conduct of the
plaintiffs in submitting their complaints form dated 10 November 2004
which was done about two months after the defendant’s letter dated 29
September 2004 had been issued notifying them that the property was
10 Current Law Journal [2021] 8 CLJ
[27] The Court of Appeal in TTDI’s case supra subsequently further held
that under such circumstances, there was no total failure of consideration:
[58] The facts as shown in para. 37 were significant to demonstrate to the
court that the plaintiffs had exercised their rights pursuant to the SPA to affirm
G
the terms and conditions of the SPA. The plaintiff could not at this stage claim that
there was total failure of consideration especially when they had sat on their
rights to pursue a claim for rescission. The plaintiff had further exercised
their rights under cl. 25(1) to request the defendant to rectify the 160
defects complained in the Complaint Forms No. 01463.
... H
[64] Guided by the above high authorities, we were of the view that the
remedy of a rescission ought not to be allowed by the High Court as we
were satisfied that there was no total failure of consideration. The defendant in the
instant case did not refuse or had failed to perform the promise in its entirety. There
was overwhelming evidence that the property had been completed and a certificate I
Fabu lous Range Sdn Bhd
[2021] 8 CLJ v. Helena K Gnanamuthu 11
A of practical completion dated 5 July 2004 and the certificate of fitness dated
29 September 2004 had been issued by the relevant authority. The property had
been registered in the names of the plaintiffs about three years before the
filing of the current action.
[65] In view of the fact that the plaintiffs had not formally rejected the
B said property and rescinded the SPA at the first opportunity available to
them but had instead elected to affirm the SPA by submitting the defects
list and threatening to rectify the defects on their own (see p. 871 of lkatan
Teras Bersama (Bahagian C) Jilid 2), we were of the view that the order
of rescission made by the learned judge was improper and ought to be set
aside by this court.
C
(emphasis added)
[28] Since the plaintiff has affirmed the agreement, the learned High Court
Judge ought not to have granted an order of rescission.
[29] Support can be found in TTDI’s case (supra) where the court also held
D that:
[64] ... The plaintiffs had not taken any steps to stop the release of the
financing from their financier, Maybank and/or the transfer of the
property in their names on 12 September 2006, when they knew about the
condition of the property very early ie, on 10 November 2004.
E [65] In view of the fact that the plaintiffs had not formally rejected the
said property and rescinded the SPA at the first opportunity available to
them but had instead elected to affirm the SPA by submitting the defects list and
threatening to rectify the defects on their own (see p.871 of lkatan Teras Bersama
(Bahagian CJ Jilid 2), we were of the view that the order of rescission made by the
learned judge was improper and ought to be set aside by this court.
F
(emphasis added)
[30] We thus find that in granting an order of rescission and LAD
simultaneously to plaintiff, the learned High Court Judge erred in law and
in fact, in granting inconsistent remedies and in disregard of the Court of
G Appeal’s decision in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd (supra)
where the Court of Appeal held inter alia:
In other words, where there has been a total failure of consideration, the innocent
party has the alternative remedy of suing to recover monies paid under the contract
to the guilty party. But he can under no circumstances have his money returned and
H claim damages. And if the consideration has only partially failed, he may
only claim damages. (emphasis added)
[31] In the event, the alleged breach of contract is not fundamental, it is
only a breach of warranty; this is what the court in Ching Yik Development
Sdn Bhd v. Setapak Heights Development Sdn Bhd [1997] 1 CLJ 287; [1996]
I 3 MLJ 675 held:
12 Current Law Journal [2021] 8 CLJ
Where the term that has been flouted is fundamental to the contract, the A
innocent party is entitled to treat himself as being discharged from further
obligations under it. But where the obligation that has been breached is only
subsidiary or minor in nature, the innocent party may not treat himself as being free
of his obligations under the contract, although he may sue and recover damages for
the non-performance of the subsidiary term.
B
(emphasis added)
[32] We also noted that the learned High Court Judge did in fact find the
defects in the property and that such defects did not render the property
inhabitable. This is what he said:
[83] Tidak dinafikan bukan semua kerosakan/kecacatan yang C
disenaraikan oleh Plaintif dalam Defect List dan aduan susulan beliau
adalah serius. Saya bersetuju dengan peguam terpelajar Defendan
bahawa terdapat ‘kerosakan/kecacatan’ yang bukanlah diakibatkan oleh
kerja pembinaan yang tidak sempurna tetapi tidak dijaga dan tidak
diselenggara selama lebih 2 tahun. Sebagai contoh kesan lumut (moss)
D
dan rumput liar. Saya bersetuju ‘kecacatan’ tersebut suatu yang tidak
membuat rumah tersebut tidak boleh dihuni (inhabitable). ‘Kecacatan’
tersebut boleh diperbetulkan dengan m udah. Pada hemat saya
kerosakan/kecacatan kecil sebegitu semata-mata tidak mencukupi untuk
Plaintif menamatkan Perjanjian-perjanjian dengan Defendan.
(emphasis added) E
[33] We are of the considered opinion that from the learned High Court
Judge’s above finding namely that the defects were not as a result of building
defect and that the property was not inhabitable, there is no total failure of
consideration on the part of the defendant. Thus, we find that the learned
F
High Court Judge has erred in fact and/or in law when he granted the
plaintiff’s claim for rescission when there is no total failure of consideration
and whilst at the same time he found that the defects in the property did not
render the property, inhabitable.
Misrepresentation G
[34] From our reading of the plaintiff’s pleading in respect of
misrepresentation in her SOC, we noted that the plaintiff did not plead
whether such misrepresentation was fraudulent or negligent. In the light of
such a situation, the plaintiff’s claim for misrepresentation shall be treated
as one of innocent misrepresentation. H
[35] Support can be found in Sim Thong Realty Sdn Bhd v. Teh Kim Dar
[2003] 3 CLJ 227; [2003] 3 MLJ 460, where the Court of Appeal held inter
alia as follows:
It is clear that the defendant’s pleaded case alleges neither fraud nor
I
negligence. All the defendant has pleaded is the misrepresentation about
the access to the land. Absent a specific and particularised plea of fraud
or negligence, the defendant must be taken as asserting a case of innocent
misrepresentation in the sense already discussed.
Fabu lous Range Sdn Bhd
[2021] 8 CLJ v. Helena K Gnanamuthu 13
HELENA Yes. A
FML After you paid the booking fees, how many times you
went?
HELENA I can’t remember, maybe another three times.
Cross-examination of the respondent on 21.5.2015 at pages B
577 to 578 of ROA Vol. 2(8).
[47] From the above, we find that the learned High Court Judge’s findings
hence are inconsistent with his finding of misrepresentation based on
exh. P34 which is the brochure of the property. We find that the plaintiff did
not rely on exh. 34, in coming to a decision to purchase the property but C
rather as a result of inspections made on several visits to the property.
[48] We further find that there is no misrepresentation based on exh. P34
because after the plaintiff saw exh. P34 and subsequently went to view the
property, she was in fact impressed with the property. This is consistent with
the learned High Court Judge’s finding. Since the plaintiff had seen and D
inspected the property after having looked at exh. P34, there is no issue of
the plaintiff, relying solely on exh. P34.
[49] In light of the above, we are of the opinion that the learned High Court
Judge erred in holding that there was misrepresentation and in allowing the
E
plaintiff’s claim for rescission. Further, since there is no innocent
misrepresentation, the remedy of rescission is not available to the plaintiff.
[50] One of the plaintiff’s contentions is that the defendant is in “breach of
the agreements” namely the SPA and SA. Based on the plaintiff’s pleadings
in sub-paras. 15.2 and 15.3 of the SOC, the plaintiff pleaded that the F
defendant had breached the agreements, by not delivering the property in
accordance to the agreements and that the defendant did not remedy the
defects in the property.
[51] At paras. 59 and 60 of the grounds of judgment of the learned High
Court Judge, he agreed with the plaintiff’s contention and held that the G
defendant has breached cl. 13 of the SPA when the defendant made changes
to the landscape of the property.
[52] This is what cl. 13 of the SPA states:
Material and workmanship to conform to description
H
13. The said Building shall be constructed in a good and workmanlike
manner in accordance to the description set out in the Fourth Schedule
hereto and in accordance with the plans approved by the Appropriate
Authority in the Second Schedule) which descriptions and plans have
been accepted and approved by the Purchaser, as the Purchaser hereby
acknowledges. No changes thereto or deviations therefrom shall be made I
without the consent in writing of the Purchaser except such as may be
required by the Appropriate Authority. The Purchaser shall not be liable
Fabu lous Range Sdn Bhd
[2021] 8 CLJ v. Helena K Gnanamuthu 17
A for the cost of such changes or deviations and in the event that the
changes or deviations involve the substitution or use of cheaper materials
or the commission of works originally agreed to be carried out by the
Vendor the Purchaser shall be entitled to a corresponding reduction in the
purchase price herein or to damages, as the case may be.
B [53] A perusal of cl. 13 of SPA would reveal that the landscaping of the
property was never provided for or described in the second and fourth
schedules of the SPA. Thus, there cannot be a breach of the SPA in a such
situation. In the premises, we find that the learned High Court Judge’s above
finding is erroneous as cl. 13 of the SPA referred to the material and
C
workmanship to conform to description and not landscaping.
[54] Further, at para. 62 of the grounds of judgment of the learned High
Court Judge, he held that the fixtures and fittings under the SA must be in
“keadaan sempurna” when the plaintiff purchased them from the defendant,
on an “as is where is” basis. This again is erroneous.
D [55] Support can be found in Chua Moh Huat, Dennis v. Harvester Baptist
Church Ltd [1992] 1 CLJ 229; [1992] 4 CLJ (Rep) 258, where the Court of
Appeal stated as follows:
In our view, that construction is also wrong. Clause 6 served the same function as
an “as is where is” clause in an agreement for the sale of goods, the purpose of which
E is to exclude any of the warranties as to merchantability, etc. implied under legislation
relating to the sale of goods. Accordingly, Clause 6 expressly excluded any warranty
or condition as to the state and condition of property, and also, in consequence, its
fitness for habitation.
(emphasis added)
F
[56] It is undisputed that there are defects in the property and we find that
not all the defects were rectified. We further find that there is an issue of
whether the plaintiff’s contention that the breach of the agreements is a
breach of condition of the agreements or that of warranty.
G [57] We noted that the learned High Court Judge found as follows:
Saya bersetuju ‘kecacatan’ tersebut suatu yang tidak membuat rumah
tersebut tidak boleh dihuni (inhabitable). ‘Kecacatan’ tersebut boleh
diperbetulkan dengan mudah. Pada hemat saya kerosakan/kecacatan kecil
sebegitu semata-mata tidak menamatkan perjanjian-perjanjian dengan
Defendan.
H
[58] The learned High Court Judge further found that the plaintiff was
entitled to rescission because the defendant purportedly refused to continue
rectification at para. 84 of his grounds of judgment:
[84] Namun dalam kes kita ini, oleh kerana terdapat begitu banyak
I kecacatan/kerosakan yang mana Defendan memutuskan untuk tidak
meneruskan pembaikan. Dalam keadaan itu, pada hemat saya tindakan
Plaintif menamatkan Perjanjian-Perjanjian adalah sah dan seterusnya
18 Current Law Journal [2021] 8 CLJ
(emphasis added)
Fabu lous Range Sdn Bhd
[2021] 8 CLJ v. Helena K Gnanamuthu 19