JUDGMENT

Hasnah Mohammed Hashim FCJ:

Introduction

[1] This appeal raises the questions whether the law in Malaysia regarding termination clauses ought to be strictly interpreted, and whether headings in a contract can be used to assist in the interpretation of that contract.

[2] On 9 May 2019 this Court granted leave in respect of these two questions:

Question 1

Whether the law in Malaysia should be that termination clauses ought to be construed strictly; and

Question 2

Whether headings in a contract can be used to assist in the interpretation of the contract.

[3] At the commencement of the hearing of this appeal, learned counsel for the appellant had applied by an oral application to include an additional question for this court's consideration and determination. This oral application, however, was objected by learned counsel for the respondents. The proposed additional question is as follows:

In a sale of shares of a company (that is in liquidation), whether time for payment of the balance purchase consideration is suspended in the face of the operation of s 223 of Companies Act 1965 (CA).

[4] In support of his application, learned counsel for the appellant argued that the operation of s 223 CA was a legitimate concern at the material time when payment of the balance purchase consideration was due and the purported termination of the agreement between the appellant and the respondents. There were winding-up petitions filed against Mampu Jaya Sdn Bhd (Mampu Jaya), the previous owner of the Land, and that the Land, a subject matter of this appeal, was sold after the winding-up process. In the light of the winding up of Mampu Jaya the balance purchase price would first be finalised.

[5] Learned counsel for the respondents objected to the third question as not only was the question proposed at the eleventh hour but more importantly it had bypassed the whole leave process application. According to learned counsel, the third question proposed is based on a completely new argument, different from the arguments raised and considered in the courts below. The issue relating to the sale of the Land and that Mampu Jaya was in liquidation was an afterthought. The appellant knew when it entered into the Share Sale Agreement (SSA) that Mampu Jaya was in liquidation. In support of this learned counsel for the respondents referred to the letter of the solicitor dated sometime in March 2009 after the termination notice.