See Chu Gek v See Choo Giap (JB-22NCvC-8-01/2020)

SEE CHU GEK (No. K/P : 531204-01-5291)

SEE CHU GEK (No. K/P: 531204-01-5291) [Mendakwa sebagai Pemegang Surat Kuasa Wakil See Yen Chian (No. K/P: 810511-01-5843) … PLAINTIF-PLAINTIF

SEE YEW CHIAN (NO. K/P : 810511-01-6843) [See Chu Gek mendakwa selaku Pemegang Surat Kuasa Wakil See Yew Chian] … PLAINTIF-PLAINTIF DAN SEE CHOO GIAP (No. K/P : 560106-01-5995) … DEFENDAN CORAM: SURIA KUMAR A/L DURAIRAJ JOHNSON PAUL JUDICIAL COMMISSIONER 06/05/2024 10:27:31 JB-22NCvC-8-01/2020 Kand. 87 March 27, 2024 2  GROUNDS OF JUDGEMENT  INTRODUCTION [1] This case concerns a bitter dispute between two siblings in respect of a settlement reached over some past litigation between them. [2] The settlement was by way of a transfer of 1/3 share in a piece of land belonging to the 2nd Plaintiff to the Defendant. [3] The Plaintiffs claim the transfer of 1/3 share is worth more than what was due to the Defendant. [4]

separate actions against the Plaintiffs. [10] The first civil action No.: 22NCVC-47-09-2016 (Suit 47) against the Plaintiffs and four (4) other Defendants and the second civil action No.: 22NCVC-48-09-2016 (Suit 48) against the Plaintiffs and two (2) other Defendants. [11] Both these actions were to claim for the Defendant’s share from the proceeds of the lands in accordance with the Judgement obtained on 7.7.2010. [12] Thereafter the 1st Plaintiff through his previous solicitors Messrs. Junaida Afuan & Quek made an offer to the Defendant on 31.01.2017 to resolve these suits by transferring the 2nd Plaintiff’s 1/3 share in the property held under Geran No. 35328 Lot 1357 Mukim Parit Jawa Daerah Muar (“land”) as full and final settlement instead of proceeding with the assessment of damages. [13] However, Defendant was not agreeable and wanted from the 1st Plaintiff RM 1,625,000.00 in cash and another property held under Grant No. 456254 Lot 112, Bandar Maharani Daerah Muar to be transferred to him instead. March 27, 2024 4 [14] Thereafter the 1st Plaintiff’s solicitors responded by informing the Defendant’s solicitors that the 1st Plaintiff will require some time to sell the property to pay Defendant cash RM 1,625,000.00 and is looking for a buyer. [15] However, the 1st Plaintiff was not able to get a buyer and kept insisting that the faster way was to transfer the 1/3 share of the property to Defendant. [16] In the meantime, on 15.06.2017, the parties reached a settlement in respect of the two (2) civil actions filed by the Defendant and recorded separate Consent Judgments in each action. Defendant was to be paid RM 1,854,399.70 in total by the 1st Plaintiff for his share from the proceeds of the lands. [17] This was followed by the 1st Plaintiff changing his solicitors to Messrs. Hishamudin Aziz & Co. on 17.7.2017. His new solicitors wrote to the Defendant’s solicitors proposing that the Plaintiffs are agreeable to transfer the 2nd Plaintiff’s 1/3 share in the land to the Defendant as full and final settlement of the total sum RM 1,854,399.70 as this was the only means available to the 1st Plaintiff to settle these judgement sums. [18] On 25.07.2017, Defendant responded through his solicitors saying that after much consideration he accepted Plaintiffs’ proposal. [19] Thereafter the duly executed transfer from (Form 14A) by the 2nd Plaintiff together with a copy of the quit rent receipt and the original title deed was forwarded by the 1st Plaintiff’s solicitors to the Defendant’s solicitors. March 27, 2024 5 [20] This was followed by the 1/3 share in the land duly registered in the Defendant’s name. [21] However, Plaintiffs now claim the 1/3 share of the land transferred to Defendant is worth more than what was due to Defendant and therefore Defendant must return approximately 5.7 in acres or 2.30671 in hectares or pay him the sum RM 685,266.96 being the equivalent market value for this excess portion. [22] The 1st Plaintiff in the meantime lodged a private caveat on the land to protect his interest to get back the excess portion of the land from the Defendant or its equivalent market value. [23] Hence this led to the filing of this action by the Plaintiffs against the Defendant and the Defendant counter-claiming to have the Private Caveat removed. ANALYSIS AND FINDING Issues to be determined [24] Upon considering the pleadings and submissions of both parties, the following issues need to be determined: -

Whether there was a concluded settlement between the parties in respect of the sum RM 1,854,399.70 due to the Defendant by the 1st Plaintiff agreeing to transfer the 2nd Plaintiff’s 1/3 share in the land. March 27, 2024 6

Whether the Plaintiffs are entitled to recover 5.7 acres or 2.306.71 hectares of the land from the Defendant being the excess portion transferred to settle the sum RM 1,854,399.70 due to Defendant or in the alternative RM 658,266.90 being the equivalent market value for this excess portion.

Whether there is duplicity in the Plaintiffs’ claim or it is barred by the doctrine of res judicata.

Whether Defendant was unjustly enriched due to the transfer of the excess portion.

Whether the Private Caveat lodged by the 1st Plaintiff on the land should be removed. [25] In my considered view, both the first and second issues are intertwined and as such they will be considered together.

Whether there was a concluded settlement between the parties.

Whether the Plaintiffs are entitled to recover the excess land transferred to the Defendant or in the alternative the equivalent market value for the excess portion. Defendant’s contention [26] The Defendant submits that the settlement between the parties was concluded. As such it binds the parties solicitors since in the law of contract, it amounts to a binding settlement agreement between the parties. March 27, 2024 7 [27] In support of their submission, Defendant relied on a series of correspondences between both parties leading up to the conclusion of the settlement. The 1st Plaintiff was represented by Messrs. Junaida Afuan & Quek whereas the Defendant was represented by Messrs. K.H. Tan & Co. The relevant parts from the correspondences between both these solicitors are reproduced in the sequence below: -

1st Plaintiff’s proposal from Messrs. Junaida Afuan & Quek to Messrs. K.H. Tan & Co. dated 31.01.2017: - “We are instructed by our client that it is time to put all matters to rest. Instead of the Application for Assessment of damages, our client wished to proposed the following terms. In consideration of our client transferring 1/3 share of the property Geran No. 35328 Lot 1357 Mukim Parit Jawa, Daerah Muar approximately 22.84 acres (worth approximately RM 2.3 million) to your client for full and final settlement of this inclusive of all costs subject to the following terms …”

(ii) Defendant’s reply from Messrs. K.H. Tan & Co. to Messrs. Junaida Afuan & Quek dated 06.02.2017: - “a) that your client shall pay to our client the sum of RM 1,625,000.00 and to transfer all that land held under Grant No. 456254 Lot 112 Bandar Maharani, Daerah Muar forthwith;…” March 27, 2024 8

(iii) Letter reiterating 1st Plaintiff’s proposal from Messrs. Junaida Afuan & Quek dated 10.02.2017 to Messrs. K.H. Tan & Co.: - “(ii) Except for Item (a) which our client would require time to sell his property (1/3 share of Lot 1357) to pay cash to your client the sum of RM 1,625,000.00; dan seterusnya di Terengganu 3 m/s 2 surat tersebut: - “Our client is of the view that a faster way to settle the matter would be for your client to accept the transfer of 1/3 share of the property Lot 1357 (see our letter dated 31.1.2017) and together with See Choo Phan (who owns 1/3 share of Lot 1357) can sell the said property to obtain cash.”

(iv) Follow up letter on the 1st Plaintiffs proposal dated 14.02.07 from Messrs. Junaida Afuan & Quek to Messrs. K.H. Tan & Co.: - “Our client proposed to transfer 1/3 share of Lot 1357 to settle the matter but your client wants cash and Lot 112 for the matter. Our client is trying to look for a buyer to pay cash for the 1/3 share of Lot 1357 before subdivision/partition to comply with your client’s proposal.” March 27, 2024 9

Letter reiterating 1st Plaintiffs proposal from his new solicitors, Messrs. Hishamudin Aziz & Co. dated 17.7.2017 to Messrs. K.H. Tan & Co. after recording the consent judgement: - “We have since obtained instructions from the Defendant/Third Defendant - Mr See Chu Gek to propose to your client for full settlement of the two judgement sum (RM 1,678,753.14 + RM 175,646.56) totaling RM 1,854,399.70 by way of transferring his 1/3 share on Lot 1357 to your client. The estimated value of Lot 1357 is worth around RM 100,000.00 per acre. Currently, this is only means available for the Defendant/Third Defendant to settle the said judgment sums to your client.”

(vi) Letter of acceptance by Defendant from Messrs. K.H. Tan & Co. dated 25.7.2017 to Messrs. Hishamudin Aziz & Co.: - “(2) After much consideration, our client has accepted your client, Mr. See Chu Gek’s offer to transfer his 1/3 share in Lot 1357 in full settlement of the two judgment sums amounting to RM 1,854,399.70. As such please let us have the transfer forms (Form 14A) duly executed by your client together with the original title deed for Lot 1357 and current year quit rent.”

(vii) Letter confirming settlement by Plaintiffs from Messrs. Hishamudin Aziz & Co. dated 2.8.2017 to Messrs. K.H. Tan & Co.: - March 27, 2024 10 “Our client (See Chu Gek) confirms settlement of the two judgment sums by way of transferring his share in Lot 1357 and we are in the process of preparing the MOT (Form 14A) and will forward to you in due course.”

(viii) Reply from Messrs. K.H. Tan & Co. dated 4.8.2017 to Messrs. Hishamudin Aziz & Co.: - “(2) Kindly expedite paragraphs 2 and 3 of your abovesaid letter as these matters are long outstanding.

Our client confirms that the police report lodged against Mr. See Chu Gek and the complaint to the BAR Council against Mr. Quek Cheng Chui will be withdrawn upon full settlement of all the above. However, we have to stress that our client has no control over the DPP and the BAR council and gives no representation whatsoever that either party will not proceed or intervene.”

(ix) Letter from Messrs. Hishamudin Aziz & Co. dated 30.8.2017 to Messrs. K.H. Tan & Co. enclosing the duly executed transfer form, quit rent receipt and original title: - “We refer to the above matter and to our letter dated 02.08.2017 and to your letter dated 04.08.2017 and 15.8.2017. March 27, 2024 11 As agreed, we enclose herewith the following documents for your further action: - a) From 14A duly executed by See Yew Chian; b) Copy of Quit Rent Receipt 2017; and; c) Original Title Deed for Lot 1357. On another note, we also enclose herewith a copy valuation report on Lot 1357, issued by M/S Henry Butcher Malaysia (MUAR) SDN. BHD. for your client to consider that based on the value of RM 110,000.00 per acre, the value of 1/3 undivided share is well above the amount of three judgment sums. Our client proposes that your client could agree that our client would retain around 5 Acres of Lot 1357. Kindly let us have your client’s stand on this.”

Reply from Messrs. K.H. Tan & Co. dated 5.9.2017 to Messrs. Hishamudin Aziz & Co.: - “Our client is not agreeable to paragraph 4 of your said letter. By letter dated 17.07.2017 your client proposed to transfer the said 1/3 undivided share to our client in full settlement of the judgment sum and interest and that offer has been accepted by our client. Our client will resist any attempt to vary the agreement.” [28] According to Defendant, based on the correspondence between the parties, the 1st Plaintiff knew all along when he proposed the settlement that the Judgement sum was RM 1,854,399.70. This is March 27, 2024 12 because from February 2017 until July 2017, the 1st Plaintiff was not able to sell the land as he was not able to get a buyer and therefore decided to offer the 2nd Plaintiff’s 1/3 share in the land as full and final settlement unconditionally. [29] As such, Defendants submit the offer made by the 1st Plaintiff and accepted by the Defendant amounts to a concluded Settlement Agreement that binds both parties. [30] In support of their submission, Defendant relies on the following authorities: -

In Preston Corporation Sdn Bhd v Edward Leong & Ors [1982] 2 MLJ 22 the Federal Court held: - “An offer Is an intimation of willingness by an offeror to enter into a legally binding contract. Its terms either expressly or impliedly must indicate that it is to become binding on the offeror as soon as it has been accepted by the offeree.”

(ii) In Reebok (M) Sdn Bhd v CIMB Bank Bhd [2019] 6 MLJ 653, the Court of Appeal held: - “[22] In our opinion, a settlement agreement such as this must be construed in just the same way as any other contract. The aim is to ascertain what a reasonable person would have understood the parties to mean by using the language of the agreement (per Edgar Joseph Jr FCJ in Ayer March 27, 2024 13 Hitam Tin Dredging Malaysia Bhd v YC Chin Enterprises Sdn Bhd [1994] 2 MLJ 754; [1994] 3 CLJ 133). [23] Also, in Berjaya Times Squares Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v M Concept Sdn Bhd [2010] 1 MLJ 597; [2010] 1 CLJ 269, the Federal Court has stated that it is trite that an agreement must be construed by the words used in the agreement and the court is not empowered to improve upon the instrument which it is called upon to construct. This was again reiterated in the recent Federal Court case CIMB Bank Bhd v Anthony Lawrence Bourke & Anor [2019] 2 MLJ 1; [2019] 2 CLJ 1 (FC). [24] In our judgment, the inescapable conclusion from the foregoing is that parties intended by the settlement to compromise all issues in dispute between them, the issues on the outstanding judgment sum and the foreclosure proceeding.” [31] To corroborate the fact a Settlement Agreement was reached between both parties, Defendant also relies on the depositions made by the 1st Plaintiff in his Affidavit in Support of his application to amend the Consent Judgement to reflect the terms of the settlement reached by both parties in Suit No. 47 and Suit No.48. [32] For easy reference, the relevant parts of the 1st Plaintiff’s Affidavit in Support of Suit No. 47 are reproduced below: - March 27, 2024 14 “5) Bahawa melalui surat-surat peguamcara saya dan Plaintif bertarikh 17.07.2017 dan 25.07.2017, Plaintlf dan saya telah bersetuju bahawa keseluruhan lumlah penghakiman tersebut akan dijelaskan sepenuhnya secara muktamad melalui pindahmilik 1/3 bahagian yang tidak dipecahkan atas sebidang tanah yang dikenali sebagai Geran 35328 Lot 1357, Mukim Parit Jawa, Daerah Muar, Johor di atas nama anak saya See Yew Chian kepada Plaintif. (Dilampirkan sesalinan surat-surat bertarikh 17.07.2017 dan 25.07.2017 tersebut secara kolektif dan ditanda sebagai Ekshibit ‘SCG-1’) 6) Saya dinasihatkan bahawa permohonan ini adalah perlu bagi meminda/menambah Perintah tersebut dengan menambah perenggan-perenggan berikut: - ‘d(i) sebagai penyelesaian penuh dan muktamad iumlah penghakiman yang perlu dibayar oleh Defendan, SEE CHU GEK beriumlah RM 894,539.86 berserta faedah dan kos di dalam tindakan ini, SEE YEW CHIAN (No. K/P: 810511- 01-6843) memindahmilik kepada Plaintif 1/3 bahagian yang tidak dipecahkan di bawah Hakimilik GRN 35328 Lot 1357 Mukim Parit Jawa, Daerah Muar, Johor;

(ii) bahawa Pengarah Tanah dan Galian Johor dan/atau pihak-pihak berkenaan yang lain March 27, 2024 15 hendaklah memberi kesan kepada perintah ini dan menerima keesahan borang-borang dan/atau dokumen yang ditandatangani menurut Perintah ini;

(iii) bahawa penyelesaian ini adalah muktamad dan pihak-pihak tidak ada apa-apa tuntutan lagi antara satu sama lain sama ada sivil atau jenayah.” [33] Whereas the relevant parts of the 1st Plaintiff’s Affidavit in support of Suit No. 48 are reproduced below: - “5) Bahawa melalui surat-surat peguamcara saya dan Plaintif bertarikh 17.07.2017 dan 25.07.2017, Plaintlf dan saya telah bersetuju bahawa keseluruhan lumlah penghakiman tersebut akan dijelaskan sepenuhnya secara muktamad melalui pindahmilik 1/3 bahagian yang tidak dipecahkan atas sebidang tanah yang dikenali sebagai Geran 35328 Lot 1357, Mukim Parit Jawa, Daerah Muar, Johor di atas nama anak saya See Yew Chian kepada Plaintif. (Dilampirkan sesalinan surat-surat bertarikh 17.07.2017 dan 25.07.2017 tersebut secara kolektif dan ditanda sebagai Ekshibit ‘SCG-1’) 6) Saya dinasihatkan bahawa permohonan ini adalah perlu bagi meminda/menambah Perintah tersebut dengan menambah perenggan-perenggan berikut: - March 27, 2024 16 ‘d(i) sebagai penyelesaian penuh dan muktamad iumlah penghakiman yang perlu dibayar oleh Defendan, SEE CHU GEK beriumlah RM 72,389.00 berserta faedah dan kos di dalam tindakan ini, SEE YEW CHIAN (No. KIP: 810511- 01-6843) memindahmilik kepada Plaintif 1/3 bahagian yang tidak dipecahkan di bawah Hakimilik GRN 35328 Lot 1357 Mukim Parit Jawa, Daerah Muar, Johor;

(ii) bahawa Pengarah Tanah dan Galian Johor dan/atau pihak-pihak berkenaan yang lain hendaklah memberi kesan kepada perintah ini dan menerima keesahan borang-borang dan/atau dokumen yang ditandatangani menurut Perintah ini;

(iii) bahawa penyelesaian ini adalah muktamad dan pihak-pihak tidak ada apa-apa tuntutan lagi antara satu sama lain sama ada sivil atau jenayah.” [34] An order in terms for these Applications was obtained but sealed copies of the amended Consent judgement were never extracted. However, draft copies of the Order granting the amendment which was approved by both parties are produced in evidence. [35] According to the Defendant, the amended Consent Judgement fortifies the fact that there was a concluded Settlement Agreement between the parties by relying on the Federal Court’s decision in March 27, 2024 17 Tan Geok Lan v La Kuan @ Lian Kuan [2004] 3 MLJ 465 wherein it was held: - “… a consent judgment or order is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the court, and Its force and effect derives from the contract between the parties leading to, or evidenced by. or incorporated in, the consent judgment or order. A consent order must be given its full contractual effect, even if it relates to an interlocutory step in the action (see para 390 at p 286, Halsbury’s Laws of England (4th Ed Vol 37) We gather from this proposition that: -

the agreement on the terms reached between the parties at the interlocutory stage of an action is a contract between the parties; and

(ii) the consent judgment or order arising out of that contract is also a contract between the parties except that the latter is superadded by the command of the court.” [36] It must be noted that the 1st Plaintiff had affirmed under oath in both these applications to amend the Consent Judgement that the transfer of 1/3 share in the land is the full and final settlement of the Consent Judgement sums of RM 72,389.00 and RM 894,539.00 plus interest and cost. [37] The Defendant also submits that the Plaintiff must obey the Consent Judgement by relying on the Supreme Court’s decision in Puah Bee Hong & Anor v Pentadbir Tanah Daerah Wilayah Persekutuan March 27, 2024 18 Kuala Lumpur & Anor (Teo Keng Tuan Robert, Intervener) And Another Appeal [1994] 2 MLJ 601 wherein it was held: - “We are of the considered view that an order of a superior court such as the High Court, even if it is eg, an order obtained ex parte or a default judgment; until it is set aside, must be obeyed by everyone whether its validity is challenged or not and ‘it is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until the order is discharged’, per Romer LJ in Hadkinson v Hadkinson.” [38] The Plaintiffs adduced a valuation report in support of their claim for the return of the excess portion. [39] The Plaintiffs’ valuer (PW3) had valued the entire land at a market value of RM 7,538,000.00. Therefore, according to the Plaintiffs, the value of 1/3 share in the land is RM 2,512,666.66 (RM 7,538,000.00/3 = RM 2,512,666.66) which is more than the Judgement sum RM 1,854,399.70. [40] The Defendant attacked this valuation report on the grounds that the value for 1/3 share of the land should be lower because it is a co-proprietorship, consent is required from other co-proprietors and difficulties in obtaining finance from banks for the purchase of a part share in the land because it cannot be used as collateral. [41] Defendant further attacked the valuation report on the grounds it was prepared for internal management purposes only and not to March 27, 2024 19 claim the return of 5.7 acres of land or the equivalent market value for this excess portion. [42] In addition to these attacks on the Plaintiff’s valuation report, Defendant also produced the notice of assessment from the stamp duty office stating that the market value for the 1/3 share in the land is RM 2,033,333.00 to prove that the actual value for the 1/3 share is lower than the Plaintiffs valuation i.e RM 2,512,666.66 and that the sum RM 2,033,333.00 is not very much apart from the Judgement sum of RM 1,854,399.70. Plaintiffs’ contention [43] According to the Plaintiffs, their proposal to transfer the 1/3 share in the land was based on an estimated value of RM 100,000.00 per acre and they required time to execute the transfer form pending obtaining a valuation for the land. It was also pending confirmation of the withdrawal of a police report lodged by the Defendant on 15.7.2016 against the 1st Plaintiff and the complaint lodged against the 1st Plaintiff’s previous solicitors, Messrs. Junaida Afuan & Quek to the Bar Council. [44] The police report concerns the failure of the 1st Plaintiff to include the name of Defendant as one of the beneficiaries in the application for letters of administration for the estate of their late sister, See Kim Hui @ See Char Boh, deceased. [45] The complaint to the Bar Council was in respect of the conduct of the previous solicitors in not including the name of the Defendant as a beneficiary when handling the application for letters of March 27, 2024 20 administration for the estate of their late sister, See Kim Hui @ See Char Boh, deceased. [46] Pursuant to the police report lodged by the Defendant, the 1st Plaintiff was arrested on 30.8.2017. [47] The Plaintiffs submit that the land having an area of 27,7336 hectares (65,5312 acres) was valued at RM 7,538,000.00 in the valuation report obtained by them from PW3. Therefore 1/3 share value is RM 2,512,666.66 which is more than the judgement sum of RM 1,854,399.70. Hence, there is a difference of RM 658,266.96 in excess. [48] On 30.8.2017, the 1st Plaintiff’s solicitors forwarded the duly executed transfer form together with a valuation report for the land to the Defendant’s solicitors and told them to ask Defendant to consider whether Defendant would agree if Plaintiffs retained 5 acres of the land given the fact the actual value of the land being RM 110,000.00 per acre and therefore the value of 1/3 undivided share exceeds the Judgement sum. [49] However, Defendant replied through his solicitors’ letter dated 5.9.2017 disagreeing with the 1st Plaintiff’s request and also said he would resist any attempt to vary the settlement agreement. [50] Based on these facts and events, the Plaintiffs two-pronged submissions are as follows: - March 27, 2024 21

A mistake on their part in estimating the valuation of the land at the time when they proposed the settlement to the

(ii) The 2nd Plaintiff was coerced to execute and forward the transfer form to the Defendant as the 1st Plaintiff was arrested and remanded on 30.8.2017. [51] Plaintiffs seek to rely upon Section 73 of the Contract’s Act, 1950 which provides as follows: - “73 Liability of person to whom money is paid, or delivered, by mistake or under coercion A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it. ILLUSTRATIONS

A and B jointly owe RM100 to C. A alone pays the amount to C, and B, not knowing this fact, pays RM100 over again to C. C is bound to repay the amount to B. A railway company refuses to deliver up certain goods to the consignee, except upon the payment of an illegal charge for carriage. The consignee pays the sum.” [52] In my considered view, Plaintiffs are estopped from relying on the grounds of mistake since it is not their pleaded case. March 27, 2024 22 [53] It is a trite law that parties are bound by their pleadings. Please see the Federal Court’s decision in Samuel Naik Siang Ting v Public Bank Berhad [2015] 8 CLJ 944. [54] I will now proceed to discuss the other ground which is coercion relied on by the Plaintiffs. [55] According to the Plaintiffs, they were pressured or coerced to execute the transfer form and to forward it to the Defendant’s solicitors due to the police report lodged by the Defendant which led to the 1st Plaintiff being arrested and remanded. [56] As I have mentioned above, the police report lodged by Defendant on 15.7.2016 was in respect of the failure by the 1st Plaintiff to include the name of Defendant as one of the beneficiaries in the application for letters of administration for the estate of their late sister. [57] Plaintiffs further argue that the arrest and remand of the 1st Plaintiff took place despite the 1st Plaintiff having already amended the list of assets for the estate of their late sister to include the Defendant’s name. [58] In support of their submission, the Plaintiffs rely on the case of Da Land Sdn Bhd v Ong Koh Hou @ Won Kok Fong and another case [2018] MLJU 195 where a threat to send gangsters was made by the Defendant in that case if the Supplementary Agreements were not signed. March 27, 2024 23 [59] On the other hand, the Defendant submits that the police report and the arrest have nothing to do with the settlement that was already concluded between the parties. [60] The Defendant submits that the proposal to transfer the 1/3 share in the land was made way back on 31.01.2017 and the settlement between the parties was concluded on 25.07.2017. [61] Furthermore, according to the Defendant, the 1st Plaintiff was represented by solicitors and he was only remanded for a day on 31.8.2017 and released on 31.8.2017. [62] As such, Defendant submits that Plaintiff's claim on the ground of coercion has no basis. Evaluation and Findings [63] In respect of the burden of proof in civil cases, the Federal Court in Letchumanan Chettiar Alagappan (as executor to Sl Alameloo Achi (deceased)) & Anor v. Secure Plantation Sdn Bhd 2017 5 CLJ referred to Sections 101, 102 dan 103 of the Evidence Act 1950 and concluded as follows: - “Thus, a plaintiff has both the burden of proof as well as the initial onus of proof.” [64] It is my finding that based on the oral and documentary evidence, the proposal to transfer 1/3 share in the land to settle the Defendant’s share from proceeds in other lands which was subsequently agreed to RM 1,854,399.70 and reduced to a Consent March 27, 2024 24 Judgement between the parties was made unconditionally by the Plaintiffs. [65] The Plaintiffs knew from the beginning that the value of the 1/3 share in the land exceeded the judgement sum of RM 1,854,399.70. This is obvious from their solicitor's letter of proposal dated 31.01.2017 wherein their solicitors had specifically mentioned that the 1/3 share in the land is worth approximately RM2.3 million. [66] It is also my finding that Defendant had accepted the 1/3 share in the land and nothing less than the 1/3 share as full and final settlement of the judgement sum of RM 1,854,399.70 instead of cash. [67] There is no evidence that Defendant agreed to return 5.7 acres or 2.30671 hectares to the Plaintiffs. [68] The settlement between the parties was concluded via the correspondence between their solicitors when Defendant accepted the 1st Plaintiff’s proposal. [69] The concluded settlement agreement is also reflected in the terms of the Amended Consent Judgement. [70] Both the settlement agreement and the Amended Consent Judgement bind the parties. [71] The 1st Plaintiff also had sworn under oath Affidavits in both Suit No. 47 and Suit No. 48 that the transfer of the 1/3 share in the land is the full and final settlement of the judgement sums RM 72,389.00 March 27, 2024 25 and RM 894,539.00 plus interest and cost. This amounts to an admission of the concluded settlement between the 1st Plaintiff and the Defendant. [72] I also find the 1st Plaintiff (PW1) who is the main witness to be not truthful and credible from his answers during cross-examination and his demeanor. He kept giving contradictory and evasive answers when asked about the correspondences between solicitors resulting in a concluded settlement and the amendment to the consent judgement to reflect the concluded settlement. [73] He kept putting the blame in respect of the concluded settlement on his previous solicitors Messrs. Junaida Afuan & Quek by saying it was done without his consent. [74] He did not stop there and continued to blame his new solicitors, Messrs. Hishamudin Aziz & Co., who took over from the previous solicitors. [75] However, in my judgement, the 1st Plaintiff’s (PW1) complaint against his solicitors is devoid of merit when tested with contemporaneous documents in respect of the settlement that was referred to throughout the trial by both parties. [76] Neither did the Plaintiff produce any evidence that he had objected to his solicitors negotiating and concluding the settlement without his consent or lodged a police report against them pertaining to the same. March 27, 2024 26 [77] Hence, in my judgement the 1st Plaintiff should not be allowed to renegade from his agreement on the terms of the settlement now. [78] If it was true that the 1st Plaintiff’s intention from the beginning was only to transfer an area of land equivalent to the judgement sum RM 1,854,399.70, then the Plaintiffs ought to have made it known to the Defendant from the onset and not after executing the transfer form (Form 14A) and forwarding it to the Defendant’s solicitors. [79] In addition, the Plaintiffs too ought to have obtained a valuation before proposing to Defendant and not after having concluded the settlement. [80] Whereas as for the police report lodged by the 1st Defendant against the 1st Plaintiff and the complaint made against the 1st Plaintiff’s previous solicitors to the Bar Council, it is my finding that the concluding of the Settlement Agreement between both parties did not depend on these subsidiary matters. [81] At all material times, the 1st Plaintiff was represented by solicitors. His interest was protected by his solicitors and he could seek advice from them. [82] It is also my finding that the 1st Plaintiff was only remanded on 31.08.2017 which is way after the Settlement Agreement was concluded by the Defendant’s acceptance through his solicitors’ letter dated 25.07.2017. [83] In my opinion, if at all the 1st Plaintiff is aggrieved that he was wrongfully arrested and remanded based on the Defendant’s police March 27, 2024 27 report, that will be an entirely separate cause of action against the Defendant. [84] It must be borne in mind that upon conclusion of the settlement agreement, what was left is only the execution of the transfer form and registration of the same with the Land Office. [85] It is my finding that there is no evidence that the 1st Plaintiff was pressured or coerced to enter into the settlement agreement or to amend the terms of the Consent Judgement to reflect the Settlement Agreement. [86] Therefore, the decision in Da Land Sdn Bhd v Ong Koh Hou @ Won Kok Fong and another case [2018] MLJU 195 relied on by the Plaintiffs is distinguishable because the facts in our present case prove that the settlement agreement was concluded before the 1st Plaintiff was remanded. [87] Whereas the two other cases cited by Plaintiffs in respect of refund of overpayment in excess i.e. Liow Sat Fung @ Patricia (sole proprietor trading under the name and style of PL Co Enterprise) v Martin Samuel Labo & Anor [2022] MLJU 3238 and Imej Parking Sdn Bhd v Koperasi Permodalan Felda Malaysia Bhd [2023] MLJU 1832 can be distinguished from the facts in our present case. [88] It’s my finding that the Plaintiffs only decided to change their stand on the settlement upon realizing the market value of the land was higher than what they thought it was at the time they proposed the settlement. In other words, the Plaintiff got wiser after the event. March 27, 2024 28 [89] Hence, the Plaintiffs should not be allowed to renegade from their agreement on the terms of the settlement now after the settlement has been duly concluded. [90] To conclude on this issue, I agree with the submissions by the learned counsel for the Defendant and the Federal Court’s decision in Preston Corporation Sdn Bhd (supra) and the Court of Appeal’s decision in Reebok (M) Sdn Bhd (supra) cited in support that the Settlement Agreement was duly concluded unconditionally. [91] In the foregoing, I find that Plaintiff has failed to prove on the balance of probabilities that Defendant must return approximately 5.7 in acres or 2.30671 in hectares or pay him the sum RM685,266.96 being the equivalent market value for this excess portion.

Whether there is a duplicity of claim or the Plaintiff’s claim is barred by the doctrine of res judicata. [92] Plaintiffs also submit that their claim herein is not similar to the 3 actions filed by the Defendant previously i.e. Civil Action No: 22-91- 2006, Civil Action No. 22NCVC-47-09-2017 and Civil Action No. 22NCVC-48-09-2017. As such, they are not barred by the doctrine of Res Judicata or duplicity of claim. [93] In my judgement, the Plaintiffs are misconceived in raising this argument. It was the Defendant who had filed those 3 civil actions and as such I cannot see how the plea of res judicata or duplicity of claim applies. March 27, 2024 29 [94] In any event, this issue is not pleaded by both parties and in the circumstance, the Court need not make any determination. Accord and Satisfaction [95] Although the defence of accord and satisfaction is not pleaded and argued by the Defendant, however in my judgement it can be considered by the Court if the relevant facts are pleaded and there exists a body of evidence in support of this plea. [96] I am satisfied that sufficient facts are pleaded by the Defendant in his defence and evidence adduced for this Court to consider the doctrine of accord and satisfaction. [97] This doctrine was succinctly described by His Lordship Peh Swee Chin J (as he then was) in Amusu Properties Sdn Bhd v Muruchadayah s/o Ams Pillay [1989] CLJU 91 as follows: - “A contracting party in respect of his obligation towards another is released from such obligation if there is accord and satisfaction between the two parties. ‘An accord and satisfaction’, according to that great judge from the early part of this century, ie Lord Justice Scrutton, in British Russian Gazette & Trade Outlook Ltd v Associated Newspapers Ltd [1933] 2 KB 616 at p 643, ‘is the purchase of a release from an obligation, whether arising under contract or tort, by means of any valuable consideration, not being the actual performance of the obligation itself. The accord is the agreement by which the agreement is discharged. The March 27, 2024 30 satisfaction is the consideration which makes the agreement operative.’ In my view, the valuable consideration referred to in the above passage refers to some substituted obligation in place of the original obligation. Without satisfaction, that is, the substituted obligation, mere accord would not bar an action based on the original obligation. The simplest form of such substituted obligation is usually the payment of money, in satisfaction of the original obligation.” [98] Whereas in Tiun Eng Jin v Wong Sie Kong [1974] CLJU 180, it was held by BTH Lee J as follows: - “A debt may be discharged by the acceptance of something different in nature from part payment of the debt, such as ‘a horse or a canary, or a tomtit’, for then there is accord and satisfaction. Even if the satisfaction accepted is much less in value than the debt, it will constitute a good discharge, since the Courts will not inquire into the adequacy of consideration. Also payment by a debtor at an earlier time or in a different place from that required by the original contract, if made at the request of the creditor, will effect a discharge.” Please also see Section 64 Contacts Act 1950. [99] Given my findings above, in my judgement the transfer of the 1/3 share in the land by the 1st Plaintiff to settle the Consent Judgement for the sum RM1,854,399.70 as full and final settlement is accord and satisfaction. March 27, 2024 31

Whether Defendant unjustly enriched due to the transfer of the excess portion. [100] I note this issue is not pleaded by the Plaintiffs. In this circumstance, the Plaintiffs are estopped from raising this issue. [101] In any event, given my above findings that there is a concluded settlement agreement and accord and satisfaction, in my judgement the question of the Defendant being unjustly enriched due to the transfer of the excess portion does not arise. Counter Claim [102] The 1st Plaintiff lodged a Private Caveat on the land on 6.10.2021 due to the Defendant failing to meet his demands to return 5.7 acres (2.30671 hectares) of the land or the sum RM 685,266.96 being the equivalent market value for the excess portion. [103] The Private Caveat was lodged to protect the 1st Plaintiff's interest and to ensure that Defendant does not sell or transfer the 1/3 share in the land to third parties. [104] Defendant in his counterclaim seeks for this Private Caveat to be removed on the ground the 1st Plaintiff has no caveatable interest. [105] The counterclaim was added by the Defendant without the leave of the Court. [106] It was added pursuant to Order 20 Rule 12 ROC, 2012 by way of an agreement between both parties’ solicitors. March 27, 2024 32 [107] In my considered view, a counterclaim cannot be added without leave of the Court. [108] More so when the pleadings are closed and pre-trial directions were given to parties. [109] If parties agree between themselves that a counterclaim can be added without leave of the Court after pleadings are closed and pre-trial directions are given, this would deprive the Court of managing the case when a counter claim is added and to give directions in respect of the counterclaim. [110] In the Ho Yoke Kwei & Anor v Ong Eng Hin [1997] 4 MLJ 292, His Lordship Augustine Paul J (as he then was) held: - “In the circumstances the addition of the counterclaim by the appellants without leave of court is an irregularity that can be remedied. However, no application had been made by the appellants to have the irregularity rectified. Thus the counterclaim remained an irregularity.” [111] However, given my above finding which in essence concludes that the Plaintiffs have no interest in the land upon the transfer of the 1/3 share, the fact that the counterclaim is closely related to the Plaintiff’s claim and in the interest of justice not to prolong the dispute between both parties, the irregularity in obtaining leave of the Court is hereby waived based on the facts and circumstance peculiar to this case. March 27, 2024 33 [112] I wish to add that whether the irregularity in obtaining leave of the Court to add a counterclaim after the close of pleadings can be waived would depend on the facts and circumstances of each case. [113] Given my above findings, the Defendant has succeeded in proving on the balance of probabilities that the Private Caveat lodged by the 1st Plaintiff has no basis and can no longer remain. The Private Caveat lodged by the 1st Plaintiff must therefore be removed forthwith.

[114] In the foregoing, the Plaintiffs have failed to prove their claim on the balance of probabilities and the Defendant has proven his counterclaim on the balance of probabilities. [115] Wherefore, the Plaintiffs’ claim is dismissed with cost and the Defendant’s counterclaim in prayers 15 (a), (b) and (c) is allowed with cost. [116] As for Defendant’s counter-claim in prayers 15 (d), (e) and (f) in respect of cost and consequential cost for removal of caveat, damages and exemplary damages, no evidence was led and submissions made by Defendant. Learned counsel for the Defendant also informed the Court prior to the decision was delivered that the Defendant does not intend to pursue these prayers. In this circumstance, these prayers are not allowed. March 27, 2024 34 Dated this 27th March 2024 at Muar in the State of Johore. t.t. SURIA KUMAR DJ PAUL Judicial Commissioner High Court of Malaya Muar Johore Darul Ta’zim Counsels: For the Plaintiffs : Hishamudin Bin A. Aziz For the Defendant : Tan Koon Heo with Amy Chia Mei Yan Solicitors: For the Plaintiffs Messrs Hishamudin Aziz & Co. Advocates & Solicitors No. 50, 1st Floor, Jalan Perdana 15 Off Jalan Abdul Rahman 84000 Muar Johor [Ref. No. : HADCO/CV-0349/2019(M)(NA)] March 27, 2024 35 For the Defendant Messrs K. H. Tan & Co. Advocates & Solicitors No. 5-18, 1st Floor Jalan Ibrahim 84000 Muar Johor [Ref. No. : TKH/OR/1202/22/ac] Hearing Date : 18th October 2022, 21st February 2023, 23rd February 2023, 1st June 2023, 7th August 2023, 8th August 2023, 18th October 2023, 19th October 2023, 14th December 2023, 20th February 2024 Decision Date : 27th March 2024