Siva Kumar a/l Jeyapalan & Anor v Firwas Sdn Bhd & Ors

Appellant(s):

• Siva Kumar A/L Jeyapalan
• AMMSA Property Sdn. Bhd.

Respondent(s):

• Firwas Sdn. Bhd
• Thevandran A/L K.Ragavan
• Shoba A/p Govindasamy

• YA Datuk Azhahari Kamal bin Ramli
• YA Dato' Ahmad Kamal Bin Md. Shahid
• YA Dato' Ong Chee Kwan

• A property agent introduced a prospective purchaser to a landowner company for the sale of agricultural land, with negotiations for a total price of RM60 million structured in three tranches, though a Temporary Receipt and draft agreements referred only to RM40 million for the first two tranches.
• After months of unresolved negotiations, the landowner terminated discussions on 18.6.2018 and instead sold the land to a third party for RM58 million; the purchaser nonetheless proceeded to execute a purchase agreement unilaterally and lodged a private caveat over the land.
• The landowner counterclaimed against the purchaser, his nominee company, the agent, and a lawyer (sued as a partner of the conveyancing firm) for removal of the caveat, damages for wrongful lodgement, and breach of fiduciary duty, after it emerged that the person who had handled the conveyancing at the firm was an unqualified impostor.

• Whether the trial judge exceeded the pleaded case by making findings of fraud and civil conspiracy against the purchaser and agent when neither fraud nor conspiracy, nor their constitutive facts, had been pleaded with the particularity required under Order 18 rule 12(1) of the Rules of Court 2012.
• Whether a concluded, binding contract for sale of the land existed despite the "subject to contract" notation and prolonged negotiations, and consequently whether the caveat was wrongfully lodged under section 329 of the National Land Code 1965.
• Whether the agent's fiduciary duty to the landowner survived the termination of his agency, and if breached, whether that breach could independently found liability for the loss caused by the purchaser's wrongful caveat, notwithstanding the earlier dismissal of an interlocutory application to remove that caveat.

• The Court of Appeal set aside the fraud and conspiracy findings in their entirety, holding that neither the label nor the constitutive facts of these distinct causes of action were pleaded against the purchaser or the agent, and that the "trial by consent" exception did not apply given recorded objections at trial; consequently the exemplary and aggravated damages premised on those findings were also set aside, though re-awarded on independent grounds.
• The Court upheld the finding that no concluded contract existed (the true agreed price being RM60 million, not RM40 million, and the purchaser's own conduct showing knowledge of the termination), confirming that the caveat was wrongfully lodged; it held that dismissal of an earlier interlocutory caveat-removal application does not amount to res judicata or issue estoppel precluding a later trial finding of wrongful lodgement, as the standards and issues differ.
• The Court held that the agent's fiduciary duty survived the purported termination of his agency because he continued to deal with the same transaction for his former principal, and that equitable compensation for his breach (assessed without the tort/contract remoteness filter) rendered him jointly and severally liable with the purchaser for the wrongful-caveat damages; it also allowed the landowner's cross-appeal to extend the damages computation period to the date of judgment, holding the purchaser alone responsible for losses during the appeal-related undertaking period.