Oi Kong Gee v Teo How Ken (KA-12A-3-06/2025)

OI KONG GEE (NRIC No. 661004-02-5677)

KHOO LAY SIM (NRIC No. 760401-02-5404) APPELLANT DAN TEO HOW KEN (NRIC No. 600430-10-5101) RESPONDENT [Dalam Mahkamah Sesyen Di Alor Setar Dalam Negeri Kedah Darul Aman, Malaysia Guaman Sivil No: KA-B52NCvC-9-07/2020 Writ Pelaksanaan No. KA-56-10-08/2024] Between TEO HOW KEN (NRIC No. 600430-10-5101) …Judgment Creditor

OI KONG GEE (NRIC No. 661004-02-5677)

KHOO LAY SIM (NRIC No. 760401-02-5404) …Judgment Debtor GROUND OF JUDGMENT

This appeal arose from the decision of the Sessions Court in Alor Setar dated 15.6.2025 which dismissed the Appellants’ application seeking, among others, to set aside and/or stay the execution of the Writ of Possession issued on 13.8.2024, as well as the Order dated 23.7.2024 directing the issuance of the said Writ against the Appellants.

Having heard the parties, I am of the considered opinion that this is a case where appellate intervention is warranted. I allowed the appeal by the Appellants.

Dissatisfied, the Respondent filed a notice of appeal dated 27.10.2025.

The following are my grounds in arriving at my decision.

The Respondent is the proprietor of a piece of land held under Qualified Title HS(D) 1241, PT 1831, Bandar Kuah, District of Langkawi, State of Kedah, having address (based on the assessment record) at No. 51, Persiaran Bunga Raya, Langkawi Mall, 07000 Kuah, Kedah (“the Property”). The Respondent, as the vendor and the Appellants, as the purchasers, entered into an agreement for the sale and purchase of the Property though a Sale and Purchase Agreement dated 7.7.2008 (“SPA”). The consideration was stated to be RM350,000.00 which was to be paid in the manner stipulated in the Agreement.

Suffice to say that the transaction between the parties was anything but straightforward. Dispute soon arose. This led to Appellants, as Plaintiffs instituting a claim vide Civil Suit No. KA-B52-NCvC-9- 07/2020 against the Respondent as Defendant, through which the Appellants sought specific performance of the SPA principally on the ground that the Respondent had refused to transfer the title to the Property within the stipulated period. It was not in dispute that the Appellants had possession of the Property.

The disputes went on for some time and in what appeared to be some light at the end, the parties entered a Consent Judgment on 16.3.2022. One would have thought that would be the end of the matter. But it was not the case. But we are getting ahead of ourselves. We return to the narrative.

The object of the Consent Judgment was clear. It stipulated as follows:

Appellants shall pay RM150,000-00 (Ringgit Malaysia One Hundred Fifty Thousand) as full and final settlement to the Respondent in respect of the SPA;

(ii) The sum of RM150,000.00 (Ringgit Malaysia One Hundred Fifty Thousand) shall be paid in three instalments, namely:

First instalment of RM50,000.00 (Ringgit Malaysia Fifty Thousand) on or before 30.6.2022;

Second instalment of RM50,000.00 (Ringgit Malaysia Fifty Thousand) on or before 30.9.2022; and

Third instalment of RM50,000.00 (Ringgit Malaysia Fifty Thousand) on or before 30.12.2022.

(iii) The time stipulated above shall be final and must be strictly complied with by the Appellants.

(iv) In the event the Appellants fail to pay any of the instalments, the Property, shall be returned to the Respondent.

The Respondent shall discharge all encumbrances on the Property by 30.09 2022.

(vi) Upon full payment of RM150,000.00 (Ringgit Malaysia One Hundred Fifty Thousand), the Respondent shall execute and give effect to all documents relating to the transfer of the Property and deliver the said documents to the solicitors of the Appellants.

(vii) Each party shall bear their own costs.

The Appellants duly paid the first and second instalments on time. In respect of the third and final instalment, although an extension was granted until 12.4.2023, payment was only made on 18.4.2023.

On the same day that the final payment was deposited by Appellants’ solicitor to the Respondent’s solicitors’ client account, the Respondent’s solicitor, issued a letter to the Appellants’ solicitor stating that no payment had been received as at 12.4.2023. The letter further asserted that the Appellants had breached the Consent Judgment and demanded the return and delivery of vacant possession of the Property. In the letter, the Respondent’s solicitor informed the Appellants’ solicitor that their client would not entertain any further offer of payment by the Appellants to fulfil their obligation under the Consent Judgment, unless the Appellants agreed to reimburse the Respondent for quit rents and assessments on the Property paid to the relevant governmental authorities from 2008 to date.

As stated earlier, possession of the Property is with the Appellants. Given that the Respondent maintained that the terms of the Consent Judgment had not been strictly complied steps were taken to obtain possession of the Property by the Respondent. Based on the Appeal Record, the Respondent made the necessary application which becomes the crux of this appeal. The Respondent sought and obtained leave on 23.7.2023. A Praecipe for a Writ of Possession was filed on 13.8.2024. A Writ of Possession was issued on 13.8.2024. It is to be noted that the Praecipe stated the following: - ‘Sila keluarkan Writ Milikan terhadap OI KONG GEE dan KHOO LAY SIM, Penghutang-Penghutang Pelaksanaan untuk menyerahkan pemilikan di premis PT 1831, Bandar Kuah, Daerah Langkawi, Negeri Kedah yang dipegang di bawah hakmilik Sementara No. HSD

(D) 1241 dan beralamat penyampaian di No. 51, Persiaran Bunga Raya, Langkawi Mall, 07000 Kuah, Kedah di bawah penghakiman persetujuan dalam ini bertarikh 16 Mac 2022.

Whereas the Writ of Possession stated: - ‘Bahawasanya baharu-baharu ini, mengikut penghakiman Mahkamah kami tersebut bertarikh 3.2.2021, telah dihakimkan bahawa OI KONG GEE dan KHOO LAY SIM hendaklah memberi TEO HOW KEN pemilikan PT 1831, Bandar Kuah, Daerah Langkawi, Negeri Kedah yang dipegang di bawah hakmilik Sementara No. HSD

(D) 1241 dan beralamat penyampaian di No. 51, Persiaran Bunga Raya, Langkawi Mall, 07000 Kuah, Kedah.

The Appellants subsequently filed a Notice of Application (Enclosure 6) pursuant to Order 45 Rule 11, Order 42 rule 13 and/or Order 92 rule 4 of the Rules of Court 2012 which, in summary, seeking for the Writ of Possession dated 13.8.2024 against the Appellant, named as the Judgment Debtors, be immediately set aside; that the Order dated 23.7.2023 granting leave for the issuance of the Writ of Possession over the Property be immediately set aside; and that the entirety of the said Writ of Possession together with its execution be stayed on an interim basis pending the full disposal of this application by this Honourable Court.

The grounds of the Appellant’s application are as follows:

The Appellants were the purchasers of the Property under a SPA, wherein the Respondent was the vendor for a consideration of RM350,000.00, payable by way of several instalments as agreed between the parties.

(ii) By a Consent Judgment dated 16.3.2022, the parties agreed that the Appellants shall pay a settlement sum of RM150,000.00 as the balance consideration to complete the transfer of the Property to the Appellants.

(iii) To-date, the Appellants have paid a substantive sum amounting to RM478,000.00 as consideration for the purchase of the Property, to the Respondent through their solicitors, Messrs Arifin & Partners.

(iv) With full payment of the consideration, the Appellants became the beneficial owners of the Property. The Respondent has no beneficial interest in the Property and is merely a trustee of the Property upon receipt of the full consideration.

If the Writ of Possession is allowed to be executed, the Respondent has been and will be unjustly enriched, which is contrary to the principles of fundamental justice.

(vi) The Appellants have been given a legitimate expectation and permission to occupy the Property, having acquired beneficial rights therein.

(vii) The Writ of Possession and the Order granting leave are defective and invalid as the particulars of the Property stated therein are inaccurate. The designation of the parties as “Judgment Creditor” and “Judgment Debtors” in the intitulement is also technically erroneous.

(viii) The Respondent has breached its agreement to transfer the Property to the Appellant despite having received the full agreed consideration.

(ix) Any allegation of delay by the Appellant in paying the final instalment of RM50,000.00 for six days is an afterthought by the Respondent.

The allegation that the sum of RM50,000.00 was returned to the former solicitors demonstrates that the Respondent had in fact received the full consideration for the purchase of the Property, but attempted to return it in order to create the appearance of default in payment by the Appellant.

(xi) The Respondent’s intention is solely to embarrass, humiliate, and inconvenience the Appellant, knowing that the mother of the Appellants, aged 80, currently resides on the upper floor of the Property, is immobile, and with the Chinese New Year festivities approaching.

(xii) There exist special circumstances in this case which warrant a suspension of the execution of the Writ of Possession and the Order against the Appellants. THE RESPONDENT’S CASE

The Respondent opposes the Appellant’s application on the following grounds:

The Appellants were granted an extension of time to settle payment for the third instalment no later than 12.4.2023. In the event the Appellant failed to comply with the said payment condition, it was the Appellants’ responsibility to return the property to the Respondent on 13.4.2023 without any objection. However, as at 12.4.2023, the Appellants had failed to make payment of the third instalment within the extended time granted;

(ii) Following the Appellants’ failure to put forward any form of settlement proposal, the Respondent instructed his solicitors, Messrs Arifin & Partners, to return the sum of RM50,000.00 to the solicitors representing the Appellants.

(iii) This Writ of Possession was taken out against the Appellants by the Respondent due to the Appellants’ failure to fully perform and comply with the terms of the Consent Judgment;

(iv) As early as 8.10.2024, the Appellants were already aware and had clear knowledge of the execution of this Writ of Possession, as evidenced by the document produced and marked as exhibit ‘TKH-13’ in these proceedings. The Appellants can no longer contend that they were unaware of or had overlooked the existence and effect of the execution of the said Writ of Possession upon the ownership rights over the Property which is the subject of these proceedings.

Despite having knowledge of the Writ of Possession, the Appellants deliberately delayed the proceedings by filing the application to set aside the said Writ of Possession only at a late stage and after a reasonable period had passed. Such conduct demonstrates that the application was not made bona fide or in good faith. On the contrary, it was a step taken as an afterthought, solely to obstruct or restrain the Respondent from exercising his lawful right to regain possession of the Property.

(vi) Furthermore, this belated action reflects the Appellants’ intention to unlawfully retain possession of the Property notwithstanding their clear failure to comply with the terms of the Consent Judgment. The failure to comply with the Consent Judgment demonstrates that the Appellants had no genuine intention of returning possession of the Property to the Respondent.

(vii) It would be improper and contrary to the principles of justice to allow this application, which has been filed belatedly, tardily and without any reasonable justification. In essence, the Appellants’ application serves only to delay the execution process of the Writ of Possession and to deny the rights of the Respondent. THE DECISION OF THE SESSION COURT

The application by the Appellant was refused by the Sessions Court. Among other the learned Sessions’ Judge was not impressed with the grounds advance by the Appellants. It was found that based on the terms mutually agreed upon by both parties and incorporated into the Consent Judgment recorded in Court, it is evident that time is of the essence in the performance of the agreed obligations. This means that all dates and time periods stipulated in the Consent Judgment must be strictly complied with by the Appellants without any failure or delay.

The Respondent, in good faith, granted the Appellant an extension of time to comply with their obligations under the Consent Judgment, particularly in relation to the payment required to resolve this matter. However, to date, the Appellant has continued to fail to comply with the agreed terms, including failing to make full payment as required.

Accordingly, the Respondent is entitled to enforce the Consent Judgment by repossessing the Property concerned in accordance with the rights conferred upon him through the Consent Judgment itself.

The alleged issue of an encumbrance that has yet to be discharged over the Property, together with the claim concerning the beneficial ownership of the Property, is irrelevant in view of the Appellants’ failure to fulfil their primary obligation, namely to make full payment as agreed. Had full payment been made within the stipulated time, the issues now raised would likely not have arisen.

Accordingly, the Sessions Court was of the view that the Respondent has a lawful right to enforce the Consent Judgment against the Appellants on the basis of their failure to comply with the agreed terms.

An appellate court will not interfere with the findings of fact made by a trial court unless it is satisfied that the trial court has plainly gone wrong. Where the trial court has failed to properly evaluate the evidence, or has altogether omitted to consider material evidence, then the appellate court is not only entitled but is duty-bound to intervene. This principle was articulated by Gopal Sri Ram JCA (as he then was) in Lee Ing Chin @ Lee Teck Seng v. Gan Yook Chin & Anor [2003] 2 CLJ 19, where His Lordship observed: ‘Very recently, this Court in Arab Malaysian Finance Bhd v. Steven Phoa Cheng Loon & Ors [2003] 1 CLJ 585 CA, reviewed some of the leading authorities on appellate intervention and identified the general rule of appellate non-interference. We also considered some of the categories in which appellate interference is warranted. We find it unnecessary to repeat what we there said. Suffice to say that we re-affirm the proposition that 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 insufficient judicial appreciation of the evidence. It is, we think appropriate that we say what judicial appreciation of evidence involves. (Emphasis added)

Accordingly, in determining whether the lower court had made a proper assessment, the appellate court bears the responsibility of scrutinising the evidence adduced through the oral testimony of witnesses, documentary evidence, and the grounds of judgment of the Sessions Court Judge (“SCJ”), in order to ascertain whether there exists any manifest error (plainly wrong) in the SCJ’s findings of fact.

The issue in this case concerns the enforcement of the Consent Judgment dated 16.3.2022 and whether it may be executed by way of a Writ of Possession.

The basis of the Respondent’s application for leave to issue the writ of execution is to enforce the Consent Judgment on the ground that the Appellant failed to pay the final instalment of RM50,000.00 within the stipulated period.

What was the stipulated period? Was it in accordance with the date stated in the Consent Judgment, namely on or before 30.12.2022?

An undeniable fact is that, by way of the Respondent’s solicitors’ letter dated 30.9. 2022, the Respondent sought an extension of time to discharge all encumbrances over the property in the form of an overdraft facility and a charge to Public Bank, which the Respondent had undertaken to settle by 30.9.2022 pursuant to the express terms of the Consent Judgment. In the same letter, the Respondent also requested to utilise the first and second instalments, which had been duly paid by the Appellant within the stipulated time, to redeem the overdraft facility and thereby redeeming the Property charged with Public Bank. In return, the Respondent offered an extension of time for the Appellants to make the final instalment, extending the deadline from 31.12.2022 to 31.3.2023. The Respondent’s request for an extension to redeem and the application to utilise the first and second instalments was agreed to by the Appellants. This necessarily means that the Appellants had until 31.3.2023 to make the final instalment.

Subsequently, on 5.4.2023, the Respondent’s solicitors wrote to the Appellants’ former solicitors demanding payment of the final instalment and stipulating a new deadline of 12.4.2023. In any event, on 18.4.2023, with a minor delay of six days, the Appellants duly paid the full and final instalment of RM50,000.00 to the Respondent.

The Respondent, however, altered his position by way of a letter from his solicitors dated 18.4.2023, asserting that the Appellants had breached the terms of the Consent Judgment by failing to make payment within the extended period, namely by 12.4.2023. Furthermore, the Respondent’s solicitors reiterated the Respondent’s stance that no offer of payment from the Appellants would be entertained unless the Appellants agreed to reimburse the Respondent for the quit rents and assessments of the property which the Respondent had paid to the relevant governmental authorities from 2008 to the present.

At that material time, the payment of RM50,000.00 being the final tranche was already deposited in the Respondent’s solicitor clients’ account.

The Appellants contend that they had paid a total sum of RM478,000.00 towards the purchase price, and that notwithstanding the Respondent’s reliance on the alleged breach of the Consent Judgment in seeking to regain possession of the Property, the Respondent failed to offer any refund of the amount paid by the Appellants.

In my view, this is inequitable and amounts to unjust enrichment on the part of the Respondent. I sustain the Appellant’s submission that the filing of the Writ of Possession by the Respondent constitutes a malicious attempt to unjustly enrich himself by receiving the full purchase consideration while simultaneously seeking to evict the Appellants, as though they hold no beneficial or equitable interest in the property.

The Appellants’ counsel cited the Federal Court case of Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] MLJU 3 ; “[109] In Goff & Jones on The Law of Unjust Enrichment (supra), para 1-08, it is stated: 'Whatever may be the underlying moral justifications for the award of restitution all these cases, the "unjust" element in "unjust enrichment" is simply a "generalisation of all the factors which the law recognises as calling for restitution". In other words, unjust enrichment is not an abstract moral principle to which the courts must refer when deciding cases, it is an organising concept that groups decided authorities on the basis that they share a set of common features, namely that in all of them the defendant has been enriched by the receipt of a benefit that is gained at the claimant's expense in circumstances that the law deems to be unjust. The reasons why the courts have held a defendant's enrichment to be unjust vary from one set of cases to another, and in this respect the law of unjust enrichment more closely resembles the law of torts (recognising a variety of reasons why a defendant must compensate a claimant for harm) than it does the law of contract (embodying the single principle that expectations engendered by binding promises must be fulfilled).' ….. [111] As stated by Lord Wright in Fibrosa Spolka Akcyjna Appellants; And Fairbairn Lawson Combe Barbour Limited Respondents [1943] Ac 32 at p 61: "It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derive from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution."

I am in agreement with the submission of the Appellant’s counsel that the principle underlying the case of Banque Financiere de la Cite, Appellants And Parc (Battersea) Ltd and Other Respondents [1999] 1 AC 221 and Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners and Another [2008] 1 AC 561 cited by the Federal Court case of Dream Property Sdn Bhd is that, in the context of the present case, a cause of action in unjust enrichment may give rise to a right of restitution where it is established that :

the defendant must have been enriched;

(ii) the enrichment must have been obtained at the expense of the claimant;

(iii) the retention of the benefit by the defendant must be unjust; and,

(iv) there must be no defence available to extinguish or reduce the defendant’s liability to make restitution.

On this basis, the Sessions Court Judge erred in allowing the issuance of the Writ of Possession on the ground that the Appellant had failed to fulfil their obligations under the Consent Judgment, without taking into account that the Appellants was not a judgment debtor per se and that the Appellants was in fact a party aggrieved, while the Respondent obtained unjust enrichment at the expense of the Appellants.

Accordingly, the appeal is allowed. The leave dated 23.7.2023 and the Writ of Possession dated 13.8.2023 are hereby set aside.

The Respondent is to bear cost of RM5,000.00 to be paid to the Appellants subject to payment of allocator. Dated : 21 December 2025 (Mohd Aimi Zaini Bin Mohd Azhar) Judicial Commissioner High Court Malaya Alor Setar Kedah Darul Aman Solicitors for the Appellant: Hee Ying Peng (Quah Chien Chieh with him) Messrs. Cindy Ng & Co Solicitors for the Respondent: James Ng Kean Yip (Tengku Mohd Hazwanhisyam with him) Messrs. Arifin & Partners