Bond Holdings Sdn Bhd v 1. ) Sycal Berhad (WA-22NCvC-590-10/2022)

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1 IN THE HIGH COURT AT MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR WRIT SUMMON NO: WA-22NCvC-590-10/2022 BETWEEN BOND HOLDINGS SDN BHD (Company No.: 879036-W) …PLAINTIFF AND 1) SYCAL BERHAD (Company No.: 62606-V) 2) SYCAL ICC PROPERTIES SDN BHD (Company No.: 369873-D) …DEFENDANTS 27/06/2024 08:59:36 WA-22NCvC-590-10/2022 Kand. 116 S/N UaR1jh/gv0eMzmZxHVQrmQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2

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Schedule 1 of the agreement; [See Enclosure 50 Bundle B15 schedule 1 in B 15 page 3573]. [35] Unfortunately, the agreement failed to state expressly what was the quantum of Advance Funding agreed by parties. [36] From a perusal of the evidence I am of the view the quantum agreed upon was RM 20 million. The evidence shows-i. Sycal in its Amended Counterclaim has admitted Bond agreed to provide advance funding of RM20 million. [See Enclosure 33 Bundle A at paragraph 78[d] Counterclaim in page 70]. S/N UaR1jh/gv0eMzmZxHVQrmQ ii. Ong Teng Boon the CEO of Bond, PW3 testified he and Dato Seow of Sycal agreed RM 20 million was needed to complete the remaining 20% of the construction of the Commercial Suites. [See WSPW3 Q and A 7]. iii. Chin Kok Wah a director of Sycal, DW1 testified that pursuant to the Collaboration Agreement it was estimated that RM 20 million was needed to complete the remaining 20% of the construction of the Commercial Suites. [See WSDW1 Q and A 5]. iv. Parties had agreed the remaining 20% of the construction of the Commercial Suites is to be completed within one year from the execution of the agreement. [See Clauses 2.2 and 2.5 of the Collaboration Agreement]. v. Schedule 1 of the Collaboration Agreement shows a total of RM 20 million advance funding provided within 15 months from the execution of the agreement. [See Enclosure 50 Bundle B15 page 3573]. vi. Sycal in its reply written submissions Enclosure 103 at paragraph 5 stated that Bond agreed to provide advance funding of RM20 million. vii. The cross-examination of SP1 / PW1 by CI who is the counsel for Sycal shows the agreement was to provide advance funding of RM20 million-Pages 12 - 13 of Notes of Proceedings S/N UaR1jh/gv0eMzmZxHVQrmQ “CI But you agree that the defendants are facing financial difficulties? SP1 Yeah. CI Do you agree that the purpose or the intention of party is for Bond, the plaintiff, to come in to assist to completion? CI And the assistance is in the form of financial assistance. Do you agree? CI And the financial assistance comes in the form of advance funding of 20 million. Do you agree? CI So, to rephrase, Bond is coming in with a funding of 20 million to assist the defendant in completing the construction of the commercial suite. Do you agree? CI Now, the way the funding to be paid is in accordance to

Schedule

Schedule 1 of the collaboration agreement. Do you agree? CI And in return for the assistance, Bond is granted sales and marketing rights of 185 units of the commercial suite at that time. Do you agree? SP1 Yes. ... CI So, to complete the remaining 20%, Bond is coming in with the fund of 20 million to complete it. Do you agree? [Emphasis added] S/N UaR1jh/gv0eMzmZxHVQrmQ Agreed issue 1 - Did the parties by agreement and/or conduct agreed not to strictly adhere to the terms of the Collaboration Agreement? Bond’s Contentions [37] Bonds contends that the parties by agreement and/or conduct agreed not to strictly adhere to the terms of the Collaboration Agreement. There were meetings held between PW2 and DW5 whereby an understanding was reached that because of the Covid Pandemic, both parties accepted that there would be delay on parties’ obligation and to adopt some flexibility. Bond relies on Enclosure 95 Notes of Proceedings at pages 572 and 575. [38] Sycal’s Company Secretary and Financial Controller, DW4 also admitted that there was no strict adherence to the timeline provided in the Agreement. [See Enclosure 95 Notes of Proceedings page 401]. [39] A letter was also issued to Sycal confirming the understanding. The said letter informed that Bond was unable to proceed with its obligations under the Agreement due to the enforcement of regulations pertaining to the Covid-19 Pandemic. [See Enclosure 53 Bundle B18 Bond’s letter at pages 4125 - 4126]. [40] Hence, it is unconscionable for Sycal to claimed that there ought to be strict adherence to the payment dates pursuant to Schedule 1 of the Agreement. S/N UaR1jh/gv0eMzmZxHVQrmQ Sycal ‘s Contentions [41] Sycal disagreed that the parties by agreement and/or conduct agreed not to strictly adhere to the terms of the Collaboration Agreement. Court’s analysis Sections 101 to 103 of the Evidence Act 1950 [42] The law on the burden of proof in Malaysia is governed by sections 101 to 103 of the Evidence Act 1950. Burden of proof 101 (1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. (a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. S/N UaR1jh/gv0eMzmZxHVQrmQ (b) A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts. On whom burden of proof lies 102. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. (a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to his possession. Therefore, the burden of proof is on A. (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B. Burden of proof as to particular fact 103. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. S/N UaR1jh/gv0eMzmZxHVQrmQ (a) A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission. (b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it. [43] I need only refer to three decisions of our courts on the construction of sections 101 and 102 of the Evidence Act. [44] The Supreme Court in Selvaduray v Chinniah [1939] MLJ 253 SC per Terrel Ag CJ said - "The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the Plaintiff must establish his case. If he fails to do so it will not avail him to turn around and say that the Defendant has not established his. The Defendant can say 'it is wholly immaterial whether I prove my case or not. You have not proved yours' (see the Judgment of the Privy Council in Raja Chandranath Roy v. Ramjai Mazumdar 6 Bengal Law Reports, page 303)." [45] The Federal Court in U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC per Zulkefli Ahmad Makinudin PCA said - S/N UaR1jh/gv0eMzmZxHVQrmQ 35) On the meaning and application of the term "burden of proof" section 101 of the Evidence Act 1950 ["the Act"] states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The "burden of proof" in section 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The "burden of proof" in section 102 of the Act shifts from one side to the other according to the weight of the evidence. [46] Because sections 101 and 102 both use the phrase “burden of proof”, some judgments in order to draw a distinction between section 101 and 102 call the burden in section 101 as “burden of proof” and the burden in section 102 as “onus of proof’. [See U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC per Zulkefli Ahmad Makinudin PCA at [36]]. [47] Besides being called ‘onus of proof’, the “burden of proof” in section 102 is also called the “evidential burden”. [See Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2004] 1 CLJ 357 CA per Gopal Sri Ram JCA. [48] On “onus of proof’ this is what Zulkefli Ahmad Makinudin PCA said in U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC which bears setting out in extenso – [35] On the meaning and application of the term “burden of proof” s. 101 of the Evidence Act 1950 (“the Act”) states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The “burden of proof” in S/N UaR1jh/gv0eMzmZxHVQrmQ s. 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The “burden of proof” in s. 102 of the Act shifts from one side to the other according to the weight of the evidence. [36] In the Federal Court’s case of Letchumanan Chettiar Alagappan (As Executor To SL Alameloo Achi (Deceased)) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418 His Lordship Jeffrey Tan, FCJ cited with approval the principle laid down in the case of Ranchhodbhai v. Babuhai AIR 1982 Guj 308 as regards the “burden of proof” to establish a case which never shift and the shifting burden to adduce evidence in the context of ss. 101 and 102 of the Indian Evidence Act which are identical to ss. 101 and 102 of our Act as follows: It is also well to bear in mind that there is an essential distinction between ‘burden of proof’ and ‘onus of proof’; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. [See Raghavamma v. Chenchamma, AIR 1964 SC 136]. Burden of proof has two distinct meanings, namely, (i) the burden of proof as a matter of law and pleadings, and (ii) the burden of proof as a matter of adducing evidence. Section 101 of the Evidence Act deals with the former and Section 102 of the Evidence Act with the latter. The first remains constant but the second shifts. In a claim application, therefore, the burden of proof, in the first sense, certainly lies on the claimant. If he examines himself and his witness, if any, and if the evidence, S/N UaR1jh/gv0eMzmZxHVQrmQ tested in the light of the principle as set out above, is found to be acceptable, the onus shifts on the tortfeasor to prove those circumstances, if any, which dislodge the assertions of the claimants. If the tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and, on that basis, to make a just award it would thus appear, that though the legal burden, - the burden as a matter of law and pleadings - remains constant on the claimant, the burden as a matter of adducing evidence changes often times as the trial of the claim petition progresses. [Emphasis added] [49] On “evidential burden” this is what Gopal Sri Ram JCA said in Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2004] 1 CLJ 357 CA at 367 – The law on the burden of proof in this case is governed by ss. and 102 of the Evidence Act 1950. In accordance with s. 101, the legal burden of establishing that there is money owing from the respondent to Chan lies on the appellant. However, in accordance with s. 102, the evidential burden may move back and forth from the appellant to the respondent and vice versa in the course of the trial. On this point, we find it sufficient to quote from Sarkar on Evidence, 15th edn, vol. 2, p. 1452: S/N UaR1jh/gv0eMzmZxHVQrmQ There is an essential distinction between the ‘burden of proof’ as a matter of law and pleading and as a matter of adducing evidence. The burden in the first sense is always constant but the burden in the sense of adducing evidence shifts from time to time having regard to the evidence adduced or the presumption of fact or law raised in favour of one or the other (Ajit Pd v. Nandini, A [1975] Or 184). If the prima facie case is not rebutted by cogent evidence and remains unanswered or the answer given does not create serious doubt in the mind of the court, then the burden of proof on the pleadings should be deemed to have been discharged (Mg Hmoot v. Offl Receiver, 14 R 704: A [1937] R 276; see also Bhola v. Bhagwat, 13 CPLR 159; Gangadin v. Bahoram, A [1937] N 230). The true test of onus in the case of ‘shifting’ has been thus put by Lord Hanworth MR: It appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on the one side or the other, and of saying that if there were two feathers on one side and one on the other that would be sufficient to shift the onus. What is meant is, that in the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence. (Stoney v. Eastbourne R D Council [1927] 1 Ch 367, 397). [Emphasis added] S/N UaR1jh/gv0eMzmZxHVQrmQ Application of law to facts [50] The burden of proof therefore lies on Bond to prove issue 1. Enclosure 95 Notes of Proceedings pages 572 and 575 which is the cross-examination of DW5 do not support Bond’s contention that the parties by agreement and/or conduct agreed not to strictly adhere to the terms of the Collaboration Agreement. [51] Sycal’s Company Secretary and Financial Controller, DW4 did admit [See Enclosure 95 Notes of Proceedings at page 401] that there was no strict adherence to the timeline provided in the Agreement based on the letters from Sycal to Bond dated 27-01-2022 and 09-03-2022. The two letters can be seen in Enclosure 60 Bundle B23 pages 27 and 28. [52] However, Sycal’s letter dated 27-01-2022 in fact shows Sycal reminded Bond that Bond had failed to pay the 4th Tranche Payment, the 5th Tranche Payment is deferred to 23-04-2022, the 6th Tranche Payment is deferred to 24-06-2022 and the Final Payment is deferred to 22-10- 2022. [53] The letter dated 09-03-2022 also shows Sycal reminded Bond to pay in accordance with the new deadlines. [54] In conclusion, I hold that although Sycal did gave some extensions to the payment deadlines Bond is still under an obligation to comply with the new deadlines stipulated by Sycal. Thus, Bond has failed to prove that the parties by agreement and/or conduct agreed not to strictly adhere to the terms of the Collaboration Agreement. S/N UaR1jh/gv0eMzmZxHVQrmQ Agreed issue 2 - Whether there is a breach of the Collaboration Agreement by Bond? [55] Sycal’s letter dated 27-01-2022 to Bond shows Sycal reminded Bond that Bond had failed to pay the 4th Tranche Payment, the 5th Tranche Payment is deferred to 23-04-2022, the 6th Tranche Payment is deferred to 24-06-2022 and the Final Payment is deferred to 22-10- 2022. [See Enclosure 60 Bundle B23 page 27]. [56] Sycal’s letter dated 09-03-2022 to Bond also shows Sycal reminded Bond to pay in accordance with the new deadlines. [See Enclosure 60 Bundle B23 page 28]. [57] Bond has failed to adduce any evidence to show it had complied with the new payment deadlines stipulated by Sycal. Nowhere in Bond’s written submissions can I see any assertion and proof to show Bond had raised the full agreed RM 20 million in advance funding in accordance with the new deadlines. [58] In fact, Bond in its written submissions at para 70 admitted that “Sycal received a sum of RM 18,816,000 26 out of the RM 20,000,000.00 that Bond was to raise for Sycal under the Agreement. As such, Bond fulfil 94.08% of its obligation under the Agreement.” [59] In conclusion, I hold that Bond has breached its obligation to raise RM 20 million in advance funding under the Collaboration Agreement. S/N UaR1jh/gv0eMzmZxHVQrmQ Agreed issue 3 - Was the termination of the Collaboration Agreement by Sycal valid? [60] Based on my answer to issues 1 and 2 I hold the termination of the Collaboration Agreement by Sycal is valid. Agreed issue 4 - Is Bond entitled to damages of RM 8,645,04871, or in the alternative, a sum to be assessed by the Honourable Court? Can Bond claim under quantum meruit, section 71 of the Contracts Act 1950 and / or unjust enrichment? The Law on Success fee contract cases [61] I would begin by sating that the facts of our case are different from the “success fee contract” cases whereby the Courts have held that where parties had agreed on the payment of a success fee when the term of payment is met, if the said term is not met the Courts will not allow an alternative claim under quantum meruit and / or unjust enrichment. [See the UK Supreme Court’s decision in Barton v Morris and another (in place of Gywn Jones, decd) [2023] AC 684, the English Court of Appeal’s decision in Contra Holdings Ltd v Bamford [2023] EWCA Civ 374 and KS Lee Energy Llp v Toyo Ink Group Berhad [2023] MLRHU 2227 HC]. [62] In our case the entitlement of Bond under the Collaboration Agreement is not directly linked to Bond successfully raising the RM 20 million S/N UaR1jh/gv0eMzmZxHVQrmQ advance. In short, the contract does not say Bond is entitled to be paid only if it had successfully raised the RM 20 million advance. [63] I next consider whether Bond can claim under quantum meruit and section 71 of the Contracts Act 1950. Thereafter I will consider whether Bond can claim under unjust enrichment. The law on quantum meruit and section 71 of the Contracts Act 1950 [64] Section 71 of the Contracts Act 1950 provides as follows: "Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered." [65] Section 71 of the Contracts Act 1950 is the statutory embodiment of the common law principle of quantum meruit. [See Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] MLRAU 468; [2015] 9 CLJ 1002 CA]. [66] Four conditions must be satisfied to establish a claim under section 71. The doing of the act or the delivery of the thing referred to in the section: a. must be lawful. b. must be done for another person. c. must not be intended to be done gratuitously. d. must be such that the other person enjoys the benefit of the act or the delivery. S/N UaR1jh/gv0eMzmZxHVQrmQ [See the Privy council’s decision in Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 1 MLRA 53; [1967] 2 MLJ 118 which was followed in Usima Sdn Bhd v Lee Hor Fong (trading under the name and style of Pembinaan LH Fong) [2017] 5 MLRA 552; [2017] 5 MLJ 273; [2017] 9 CLJ 646; [2017] 6 AMR 652 FC and Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLRHU 406 per Lee Swee Seng J] Are quantum meruit, unjust enrichment and restitution pleaded in the Statement of Claim? Must a claim in quantum meruit be pleaded? [67] A claim in quantum meruit must be pleaded in the Statement of Claim. [See Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322 CA]. [68] This is what Mohamad Ariff JCA said in Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322 CA – [1] This was an appeal by the defendant from the decision of the High Court after a full trial whereby the learned judicial commissioner dismissed the plaintiffs claim for special and general damages, but nonetheless ordered that damages be assessed by the registrar on a quantum meruit basis in what appeared to be an exercise of the court’s discretion ‘to do justice to the party that deserves it though the pleadings may be less than elegantly worded.’ … S/N UaR1jh/gv0eMzmZxHVQrmQ … [6] We found the learned judicial commissioner had decided based on an unpleaded claim… [7] The High Court had decided to order an assessment of damages by the registrar based on an ‘omnibus’ prayer in the statement of claim, ie the claim for further and other relief, reflected in para 18(g) of the statement of claim, reading: ‘Lain-lain perintah yang difikirkan wajar, sesuai dan manfaat oleh Mahkamah Yang Mulia ini.’ This, in our judgment, was an error in the circumstances of this case. [8] The learned judicial commissioner also held that compensation could also be payable under s 71 of the Contracts Act 1950, if the basis of quantum merit and implied terms was not available. As for incorporating implied terms, we also agreed with the appellant’s submission that this too was not pleaded. [9] The judicial commissioner, in the exercise of his discretion, had therefore misapplied fundamental rules of pleadings. The issue of quantum meruit was raised only after the full hearing of the witnesses ended, coming up only at the close of the trial when the learned judicial commissioner requested parties to raise it during submission. [10] Thus, no evidence on the claim of quantum meruit was led, nor any evidence on the intention of the parties to support the inference of the implied term for reimbursement; the evidence led related to S/N UaR1jh/gv0eMzmZxHVQrmQ the respondent’s claims for special and general damages, which were in fact dismissed by the learned judge… … [22] To decide on an unpleaded claim is to deny the opposing party the valuable right to answer the claim by adducing such material facts at the trial as it might find necessary to forward to the court to advance its case against the claim. On the facts of this appeal, however, the problem was compounded by the absence of supporting material facts in relation to a quantum meruit claim. This claim was never expressly pleaded and was never part of the agreed facts or agreed issues. It never figured even in the summary of the plaintiff’s case, the plaintiff’s case was wholly grounded on a claim for special and general damages for breach of the cooperation agreement. … [27] In our view, a claim for quantum meruit here related to more than a claim based on the legal effects of pleaded material facts; it was a cause of action in itself, which was substantive in nature and therefore required express pleading and the adduction at trial of a sufficient foundation of facts derived from evidence tendered through witnesses’ testimony or relevant, cogent documentary evidence. It was too substantive to be subsumed under the blanket notion of it being based on material facts ‘writ large in the whole claim.’ By the same token, it was difficult to blandly accept that the ‘omnibus’ prayer of ‘further or other relief’ could supply the omission of an express pleading. Resort to the omnibus prayer would only make sense where the main claim was not dismissed, since after all this was for ‘further or other relief’. In our opinion, the decision of the Federal Court in Lim Eng Kay v Jaafar bin Mohamed Said, S/N UaR1jh/gv0eMzmZxHVQrmQ cannot be so liberally read as to countenance a major breach or misapplication of fundamental rules of pleadings and the proper role of the court in our adversarial system of civil justice. [28] There was likewise no basis for s 71 to be applied, especially in the face of clear contractual provisions which made the appointment of the respondent as process designer dependent on further agreement during the post-award stage. Section 71 cannot be interpreted as providing a relief not intended by the parties. To quote this provision for the sake of completeness: Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered. [emphasis added] Did Bond plead quantum meruit in the Statement of Claim? [69] Sycal contends in its reply written submissions at paragraph 5.6 that quantum meruit was not pleaded in the Statement of Claim. [70] Although the words ‘quantum meruit’ were not expressly used in the Statement of Claim, I find that at paragraph 66 the four elements, namely, ‘the advance funding was a lawful act, ‘the advance funding was done for Sycal’, ‘the advance funding was not intended to be done S/N UaR1jh/gv0eMzmZxHVQrmQ gratuitously’ and ‘Sycal enjoyed the benefit of the advance funding’ were pleaded. [See Statement of Claim at paragraphs 66(a) to (d)]. [71] Therefore, I hold that a cause of action based on quantum meruit and section 71 of the Contracts Act 1950 which is the statutory embodiment of the common law principle of quantum meruit has been sufficiently pleaded by Bond. Did Bond plead unjust enrichment in the Statement of Claim? [72] Restitution is also pleaded in the Statement of Claim at paragraphs 64 and 65. We now use the term unjust enrichment for a claim based on restitution. [See Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453 FC per Azahar Mohamed FCJ at [1]]. [73] A perusal of the pleading shows that the words ‘unjust enrichment’ were also pleaded. [See Statement of Claim at paragraphs 64(c) and (f)]. Can Bond claim under quantum meruit and section 71 of the Contracts Act 1950? [74] A more fundamental objection to Bond claiming under quantum meruit and its codification under section 71 of the Contracts Act 1950 is that there cannot be a claim for quantum meruit if there is an existing contract between the parties to pay an agreed sum. This is because a claim under quantum meruit is based on quasi-contract. S/N UaR1jh/gv0eMzmZxHVQrmQ [See Syarikat Binaan Utara Jaya (a firm) v Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 CA, Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLRHU 406 HC , Lumbers & anor v W Cook Builders Pty Ltd (In Liq) 247 ALR 412; [2008] HCA 27 High Court of Australia and Barton v Morris and another (in place of Gwyn Jones, decd), [2023] AC 684 UK Supreme Court]. [75] In Syarikat Binaan Utara Jaya (a firm) v Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 CA, Abdul Malik Ishak JCA in his judgment set out a useful review of the law on quantum meruit which bears reproduction in extenso - [39] According to the case of Gilbert & Partners (a firm) v Knight [1968] 2 All ER 248 (CA), a claim on a quantum meruit cannot arise if there is an existing contract between the parties to pay an agreed sum. The facts in Gilbert & Partners (a firm) v Knight may briefly be stated as follows. There, a surveyor agreed to prepare drawings, arrange tenders and supervise works pertaining to alteration, the cost of which he estimated at roughly £600, for a fee of £30. The employer ordered extra work which brought the total cost to £2,283 but the surveyor did not, while the work was going on, tell the employer that he would require further fees. The court held that the surveyor would be bound by the existing agreement to perform services for £30 and could not recover a reasonable sum on a new implied contract. [40] However, there may be a quantum meruit claim in the following situations: S/N UaR1jh/gv0eMzmZxHVQrmQ (a) when there is an express agreement to pay a reasonable sum; (b) when no price is fixed (thus, if the contractor does work under a contract express or implied and no price is fixed by the contract, the contractor is entitled to be paid a reasonable sum for his labour and the materials supplied (Moffatt v Andrew Laurie & Anor (1855) ER 139; 15 CB 583; Turriff Construction Ltd and Turriff Ltd v Regalia Knitting Mills Ltd (1972) 9 BLR 20; 222 EG 169; [1972] EGD 257; and Holland Hannen & Cubitts (Northern) Ltd v Welsh Health Technical Services Organisation & Ors (1981) 18 BLR 80); (c) in a quasi-contract situation (a classic example would be when work is carried out while negotiations as to the terms of the contract are proceeding but agreement is not reached upon essential terms, the contractor is entitled to be paid a reasonable sum for the work carried out (Trollope & Colls Ltd and Holland & Hannen and Cubitts Ltd, Trading as Nuclear Civil Constructors (a firm) v Atomic Power Constructions Ltd [1963] 1 WLR 333; and Peter Lind & Co Ltd v Mersey Docks and Harbour Board [1972] 2 Lloyd’s Rep 234); (d) when work is performed outside a contract (thus, in a situation where there is a contract for specified work but the contractor does work outside the contract at the employer’s request the contractor is entitled to be paid a reasonable sum S/N UaR1jh/gv0eMzmZxHVQrmQ for the work outside the contract on the basis of an implied contract (Alexander Thorn v The Mayor and Commonalty of London (1875–1876) LR 1 App Cas 120 at p 127 (HL); Parkinson (Sir Lindsay) & Co Ltd v Commissioners of Works [1949] 2 KB 632 (CA); Greenmast Shipping Co SA v Jean Lion Et Cie SA (The ‘Saronikos’) [1986] 2 Lloyd’s Rep 277; and Cana Construction Co v R [1974] SCR 1159; 37 DLR (3d) 418, Supreme Court of Canada); and (e) when work is done under a void contract (this envisages the situation where a contractor carries out work or renders services under a contract subsequently found to be void, the contractor is entitled to a quantum meruit for the work or services (Craven-Ellis v Canons Ltd [1936] 2 KB 403 (CA); and Rover International Ltd & Ors v Cannon Film Sales Ltd [1989] 1 WLR 912 (CA)). … [43] The term ‘quantum meruit’ is a Latin term. In Latin, it means ‘how much he desires. It is a common terminology in an action of general assumpsit to recover payment for the value of labour and services. [Emphasis added] [76] In Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLRHU 406 Lee Swee Seng J when rejecting a claim based on quantum meruit said - S/N UaR1jh/gv0eMzmZxHVQrmQ [103] In Lumbers & anor v. W Cook Builders Pty Ltd (In Liq) 247 ALR 412; [2008] HCA 27, the High Court of Australia dismissed a claim for quantum meruit where there is a clear contractual relationship between the parties. [77] Another case stating the same principle is Barton v Morris and another (in place of Gwyn Jones, decd), [2023] AC 684 where the UK Supreme Court by a 3-2 majority said – 100 As to the quantum meruit claim, McCardie J said: “This point calls for attention, inasmuch as it raises a question of interest and importance to all agents who rely on the payment of commission as their means of income. I must point out that the commission note before me represented the result of discussion between the plaintiffs and the defendants. It embodied their bargain. They reduced their agreement to writing. There was no collateral arrangement whatsoever. The rights of the plaintiffs are to be found in the commission note alone, and so the parties intended. If this be so, then it follows … that the rule 'Expressum facit cessare tacitum' here applies. There is no scope on the present facts for the operation of the quantum meruit principle.” (pp 114–115.) 101 McCardie J cited a number of Court of Appeal authorities supporting his analysis that a plaintiff cannot claim on a quantum meruit where they have chosen to tie themselves down by the express terms of an agreement. There, as in the present case, the contract covers the ground so far as concerns when Mr Barton is S/N UaR1jh/gv0eMzmZxHVQrmQ entitled to receive a commission for the introduction of the purchaser and there is no room for an unjust enrichment claim. 102 Carr LJ arrived at a similar conclusion nearly a century later at para 133 of Dargamo: “However, where the basis of the consideration is expressly and unconditionally spelt out on the face of a valid and subsisting contract, as here, there is no proper scope for inquiring into an alternative basis that is plainly contrary to the express basis freely agreed between the parties. … [Emphasis added] [78] I now move on to consider Bond’s claim based on unjust enrichment. The claim in restitution now known as unjust enrichment [79] At the outset it is important that I stress that, unlike a claim for quantum meruit, there can be a claim based on unjust enrichment even when there exist a contract between the parties. [80] Further, the law of unjust enrichment is not concerned with the issue that a contract breaker should not benefit from his wrong. The fact that a claimant is in breach of contract does not bar a claim for unjust enrichment if the claimant satisfies the four requirements for a claim based on unjust enrichment. [See Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453 FC at paragraphs 106, 129 & 131]. S/N UaR1jh/gv0eMzmZxHVQrmQ [81] Bond relies on the decision in Pavey & Matthews Pty Ltd v Paul (1987) 69 ALR 577 where the Australian High Court relied on the principles of restitution to allow a payment claim for building work done under an oral contract, which was not enforceable under the Builders Licensing Act 1971 due to it not being in writing. [82] The Australian High Court stressed a claim based on restitution arises from the respondent’s acceptance of the benefits accruing to the respondent from the appellant’s performance of the unenforceable oral contract, that the benefits were not intended as a gift and that fair and just compensation for the benefit or enrichment accepted will correspond to the fair value of the benefit provided. [See Held 1[b] and [h]]. [83] Since the Australian High Court’s decision of Pavey & Matthews Pty Ltd v Paul (1987) 69 ALR 577, the doctrine of unjust enrichment has evolved. Earlier cases that have lumped analysis on quantum meruit, restitution and unjust enrichment together do not represent the current jurisprudence. [84] The leading case in Malaysia on unjust enrichment is the 2015 Federal Court decision in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd 2 [2015] 2 CLJ 453 where the material facts are roughly similar to the case before me. [85] The facts are as follows. By a sale and purchase agreement (‘the SPA’), the defendant agreed to purchase a land from the plaintiff with the plan of developing it into a commercial complex. The defendant S/N UaR1jh/gv0eMzmZxHVQrmQ failed to pay the balance purchase price. The plaintiff thus brought an action in the High Court against the defendant to recover vacant possession of the land. [86] At the time of filing the writ, the defendant had already begun construction works on the land to build a mall. Construction proceeded notwithstanding the court action. By the time the trial before the High Court was concluded, a fully functioning completed mall with ongoing businesses was on the land. Two of the questions before the Federal Court were – (i) whether as a matter of law, if the defendant was in breach of contract for the purchase of the land, whether it precluded the defendant from being awarded restitution pursuant to the doctrine of unjust enrichment in respect of the defendant’s improvement and enhancement of the land; (ii) whether the measure of restitution calculated was merely restricted to the costs of construction of a building, without reference to the enhancement of the market value of the said land. [87] Azahar Mohamed FCJ in an instructive judgment of the Federal Court answered both questions as follows - Answers To The Relief Questions [159] In consequence, our answers to the relief questions are as follows: S/N UaR1jh/gv0eMzmZxHVQrmQ Answer to question 1: The defendant is not precluded from being awarded restitution pursuant to the law of unjust enrichment in respect of the defendant’s improvement and enhancement of the land at the defendant’s own costs, effort and experience. Answer to question 2: The measure of for unjust enrichment is the market value of the mall and it is not restricted to the costs of construction of the building. [88] The following principles can be distilled from Dream Property Sdn Bhd v Atlas Housing Sdn Bhd 2 [2015] 2 CLJ 453 FC - i. The law of unjust enrichment is originally called the law of restitution. See Grounds of Judgment at [1]. ii. Section 71 of the Contract Act 1950 and quantum meruit are different from the law of unjust enrichment as we understand it today. See Grounds of Judgment at [101]. iii. There can be a claim based on unjust enrichment even when there exist a contract between parties. iv. The law of unjust enrichment is not concerned with the issue that a contract breaker should not benefit from his wrong. The fact that the claimant is in breach of contract does not bar a claim for unjust enrichment if the claimant satisfies the four requirements for a claim based on unjust enrichment. See Grounds of Judgment at [106, 129 & 131]. S/N UaR1jh/gv0eMzmZxHVQrmQ v. Remedies for contractual disputes are generally compensatory in nature, with damages assessed based on the loss suffered by the claimant. Restitutionary remedies, on the other hand, focus on any unjust enrichment to a party at the claimant’s expense. It is aimed at restoring that enrichment to the claimant. It is clear on principle and on authority that the idea of justice behind this aim is that no one should be made richer through loss to another. See Grounds of Judgment at [10]. vi. The claimant has made out a cause of action in unjust enrichment if he can show: a) the respondent has been enriched, b) that this enrichment was gained at the claimant’s expense, c) that the respondent’s enrichment at the claimant’s expense was unjust, and d) there are no defences to extinguish or reduce the respondent’s liability to make restitution to the claim. [See Grounds of Judgment at 117 &119] [89] In arriving at his decision, Azahar Mohamed FCJ gave the following instructive analysis which bears setting out in extenso - [117] The above passages from the judgments of the House of Lords are instructive and are a significant contribution to the development of the law of unjust enrichment. The principle underlying the cases … is that, …, a cause of action in unjust enrichment can give S/N UaR1jh/gv0eMzmZxHVQrmQ rise to a right to restitution where it can be established that: (a) The plaintiff must have been enriched; (b) The enrichment must be gained at the defendant’s expense; (c) That the retention of the benefit by the plaintiff was unjust; and (d) There must be no defence available to extinguish or reduce the plaintiff’s liability to make restitution. [118] … there is now no longer any question that unjust enrichment law is a new developing area of law which is recognised by our courts… [119] Applying those principles, we now turn to consider whether the defendant has made out a cause of action in unjust enrichment: the plaintiff has been enriched, that this enrichment was gained at the defendant’s expense, that the plaintiff’s enrichment at the defendant’s expense was unjust, and whether there are any special defences to the claim. Was The Plaintiff Enriched? … [123] The plaintiff has unquestionably benefited even though it did not request for the mall to be constructed. But the mall was not constructed and maintained by the defendant to benefit the plaintiff gratuitously. ... The plaintiff would receive a massively enhanced asset and this adds to its enrichment. The mall is an indisputable benefit to the plaintiff. Therefore, we conclude that the first requirement is satisfied. S/N UaR1jh/gv0eMzmZxHVQrmQ Was The Enrichment At The Expense Of The Defendant? … [126] The defendant had embarked upon the promotion of the mall and was responsible for the overall running, upkeep and maintenance of the building, road and infrastructure as well as the general administration of the mall. The defendant had expended time, effort, expertise and all at its own costs in establishing and maintaining the business venture known as the mall to the stature and success it had reached to date. … [127] In our judgment, the enrichment or benefit of the plaintiff was undoubtedly at the expense of the defendant. Was The Enrichment Unjust? [128] The most important question which we must now asked is whether it is unjust for the plaintiff to retain to the benefit (the unjust question). The English approach to the unjust question is to ascertain an unjust factor such as, for example, mistake or failure of consideration. This differs with the civilian approach to the unjust question which consider whether there is a lack of juristic basis… [129] We would adopt “the absence of basis” (to borrow the term used by Goff & Jones: The Law of Unjust Enrichment (supra) para. 1-19) approach of the civilian and mixed law systems for the S/N UaR1jh/gv0eMzmZxHVQrmQ reason that, in our view, it would produce a fairer outcome. Applying this approach, the plaintiff can escape restitutionary liability by showing that there was a legal ground for receiving an enormously enhanced and improved asset in the form of the business of a shopping mall. The important point to note here is that the defendant was not required to benefit the plaintiff by legislations or by contract. In our judgment the reason why there is liability in these circumstances is that the plaintiff’s enrichment is unjustified and that there is no legal ground for the plaintiff to claim and enjoy the full commercial value of the mall. Therefore, the defendant has a prima facie right to restitution. [130] On the factual matrix of the present case, in our judgment, injustice has occurred to such an extent that the defendant has not only suffered a loss, but the plaintiff is at the same time made richer by the defendant’s loss by the same amount. On that note, the point to make here is this. This sense of injustice at the defendant’s expense is central to the foundation of the relief of restitution based on the law of unjust enrichment. The plaintiff should not be allowed to reap the windfall at the expense of the defendant. The defendant lawfully constructed the mall on the land not intending to do so gratuitously with the plaintiff enjoying its benefit. On this basis, it warrants judicial intervention as a legal response triggered by an unjust enrichment in the fact situation of the present case. [131] To conclude, we hold that the defendant had made out a cause of action in unjust enrichment in that the plaintiff has been enriched, that this enrichment was gained at the S/N UaR1jh/gv0eMzmZxHVQrmQ defendant’s expense, and that the plaintiff’s enrichment was unjust. [Emphasis added] [90] The principles set out in Dream Property are also the current legal position in England. In the recent 2023 UK Supreme Court decision in Barton v Morris and another (in place of Gywn Jones, decd) [2023] AC 684 on a success fee agreement, this is what Lady Rose (with whom Lord Briggs and Lord Stephens agree) said - 3. The claim in unjust enrichment (a) Failure of basis: the principles 77. The evolution of the claim in unjust enrichment was described in the recent comprehensive and scholarly judgment of Carr LJ in Dargamo Holdings Ltd v Avonwick Holdings Ltd [2021] EWCA Civ 1149, [2022] 1 All ER (Comm) 1244 … see paras 51 onwards. As she states there, there are four factors that a court needs to consider in a claim for unjust enrichment, ... When faced with a claim for unjust enrichment, a court must first ask itself four questions: (1) has the defendant been enriched? (2) was the enrichment at the claimant’s expense? (3) was the enrichment unjust? (4) are there any defences available to the defendant? In the present appeal, it is accepted by Foxpace that the answer to the first two questions is ‘yes’ and that the answer to the fourth question is ‘no’. The issue S/N UaR1jh/gv0eMzmZxHVQrmQ between the parties is therefore whether Foxpace’s enrichment arising from the introduction by Mr Barton of Western as the purchaser of Nash House was unjust unless they pay Mr Barton a reasonable fee. 78. The unjust factor on which Mr Barton relies is ‘failure of basis’ – the terminology which is generally preferred to ‘failure of consideration’ for the reasons explained by Carr LJ in Dargamo at paras 77 onwards. She said at para 79: “The core concept of 'failure of basis' is that a benefit has been conferred on a joint understanding that the recipient's right to retain it is conditional. If the condition is not fulfilled, the recipient must return the benefit (see Goff & Jones [sc 7th edn, 2007] at 12-01). Whilst failure of basis ranks alongside the unjust factors of mistake, duress and undue influence as a factor negativing consent, it differs in that it is concerned with qualification of consent, as opposed to impaired or vitiated consent (see Burrows The Law of Restitution (3rd edn, 2011)).” [Emphasis added] Application of law to facts How much advance funding was in fact raised and provided by Bond? [91] Before I address the issue whether Bond has satisfied the four criteria for a successful claim based on unjust enrichment, it is necessary to S/N UaR1jh/gv0eMzmZxHVQrmQ answer the issue how much advance funding was actually raised and provided by Bond to Sycal. [92] Bond contends it has provided advance funding of RM 19,525,048.71. [See Enclosure 33 Bundle A page 32 Statement of Claim at paragraph 59]. Sycal admitted only receiving a sum of RM 18,816,000. [See Enclosure 33 Bundle A page 56 Defence at paragraph 33]. [93] Bond in its written submissions has now used Sycal’s admitted figure of RM 18,816,000 to now assert it has fulfilled 94.08% of its obligation to raise RM 20 million under the agreement. [See Bond’s written submissions Enclosure 98 at paragraph 70]. [94] In view of the admission by Sycal in paragraph 33 of its Defence that it has received a sum of RM 18,816,000 from Bond and Bond’s reliance on this admission in its written submissions, I therefore hold that Bond has raised a sum of RM 18,816,000. [95] RM 18,816,000 out of RM 20 million is 94.08%. I therefore further hold that Bond has fulfilled 94.08% of its obligation to raise RM 20 million under the Collaboration Agreement. [96] I now address the issue whether Bond has satisfied the four criteria for a successful claim based on unjust enrichment. 1st criteria - Has Sycal been enriched? [97] Sycal has obtained from Bond advance funding of RM 18,816,000 out of the RM 20,000,000.00 that Bond agreed to raise under the S/N UaR1jh/gv0eMzmZxHVQrmQ Collaboration Agreement. Sycal admitted receiving this sum of RM 18,816,000 in its Defence. [See Enclosure 33 Bundle A page 56 Defence at paragraph 33]. [98] RM 18,816,000 out of RM 20 million is 94.08%. As such, Bond has fulfilled 94.08% of its obligation under the Agreement. Sycal has enjoyed the benefit of this RM 18,816,000 to use for its construction of the remaining 20% of the Commercial Suites. [99] Further, from the sales of the 74 units of Commercial Suites since the Collaboration Agreement, Sycal has continued to receive its Sycal’s Entitlement under the formula set out in Clause 2.7 of the Collaboration Agreement. I had earlier set out the details on the division of Sycal’s Entitlement and Bond’s Entitlement from the sale proceeds in the Background Facts above. [100] I hold Sycal has indeed been enriched by Bond. 2nd criteria - Was the enrichment at Bond’s expense? [101] The answer is yes as Bond used its own funds and moneys to carry out the marketing and sales of the remaining 185 Commercial Units that were unsold. [See Clauses 2.6 and 6.1 (a) of the Collaboration Agreement]. [102] PW2 Hew Lee Kuen has testified that Bond managed to sell 74 units of the remaining 185 Commercial Units that were not sold. [See Enclosure 69 Plaintiff’s Witness Statement of Hew Lee Kuen Q and A 3]. S/N UaR1jh/gv0eMzmZxHVQrmQ [103] Further, Bond has fulfilled 94.08% of its obligation under the Collaboration Agreement by raising RM 18,816,000 out of the agreed RM 20 million for Sycal to use for its construction of the remaining 20% of the Commercial Suites. [104] I hold the enrichment was at Bond’s expense. [105] Before I proceed to consider the 3rd criteria for a claim for unjust enrichment which is ‘Was the enrichment unjust?’ it is necessary for me to consider two other issues - i. How much is Bond entitled to receive if it has raised RM 20 million? ii. How much is Bond entitled to receive as Bond only raised 94.08% of the RM 20 million? How much is Bond entitled to receive if it has raised RM 20 million? [106] Bond’s witness Hew Lee Kuen the CFO of Bond, PW2 has testified [Enclosure 69 Q and A 3 paragraph 4] that under the Collaboration Agreement’s ‘Perfect Scenario projection’ Bond is supposed to received RM 10,066,845.46 if it had raised 20 million. For the Perfect Scenario projection see Enclosure 65 Bundle B27 at page 183 bottom right. [107] Bond in its post-trial written submissions has now conceded and now said Bond’s entitlement under the Collaboration Agreement is RM 9,946,389.46 if it had raised the agreed RM 20 million. [See Enclosure 98 Bond’s written submissions at paragraphs 7 and 71]. S/N UaR1jh/gv0eMzmZxHVQrmQ [108] In view of the concession by Bond to a lower sum, unless rebutted by Sycal by cogent evidence, I accept that Bond’s entitlement under the Collaboration Agreement is RM 9,946,389.46 if it had raised 20 million. [See Enclosure 98 Bond’s written submissions at paragraph 71]. [109] Therefore, based on the testimony of Bond’s witness Hew Lee Kuen the CFO of Bond, PW2 and the evidence referred to by her [i.e. the Perfect Scenario projection in Enclosure 65 Bundle B27 page 183 bottom right], I hold that Bond has discharged the legal burden imposed on Bond under section 101 of the Evidence Act. [110] In accordance with section 102 of the Evidence Act, the evidential burden also known as onus of proof has now shifted to Sycal to rebut Bond’s contention that Bond’s entitlement under the Collaboration Agreement is RM 9,946,389.46 if it had raised the agreed RM 20 million. [See Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2004] 1 CLJ 357 CA at 367 per Gopal Sri Ram JCA and U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC per Zulkefli Ahmad Makinudin PCA at [36]] [111] Sycal in its reply written submissions has not offered any figure save for a bare denial. [See Enclosure 103 defendants’ reply submissions at paragraph 62]. S/N UaR1jh/gv0eMzmZxHVQrmQ [112] Therefore, I hold that Sycal has failed to rebut Bond’s contention that Bond’s entitlement under the Collaboration Agreement is RM 9,946,389.46 if it had raised the agreed RM 20 million. How much is Bond entitled to receive as Bond only raised 94.08% of RM 20 million? [113] Bond contends Bond is entitled to 94.08% of RM 9,946,389.46 namely RM 9,357,563.20. This sum must however deduct the sum Bond has already received. Bond has produced two different figures. [114] Hew Lee Kuen the CFO of Bond, PW2 testified that Bond has received RM 6,430,000. [See Enclosure 69 Q and A 4]. [115] However, subsequently in Bond’s written submissions Enclosure 98 at paragraph 71, Bond now admits Bond has received RM 6,773,738.99 based on the table in Enclosure 88 Bundle B31 page 12. I will accept this concession from Bond’s counsel that Bond has received RM 6,773,738.99. [116] Therefore, I hold that Bond has discharged the legal burden imposed on Bond under section 101 of the Evidence Act. [117] In accordance with section 102 of the Evidence Act, the evidential burden also known as onus of proof has now shifted to Sycal to rebut Bond’s contention that Bond has only received RM 6,773,738.99 by showing Bond had received more than RM 6,773,738.99. S/N UaR1jh/gv0eMzmZxHVQrmQ [See Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2004] 1 CLJ 357 CA at 367 per Gopal Sri Ram JCA and U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC per Zulkefli Ahmad Makinudin PCA at [36]]. [118] However, Sycal in its written submissions never seriously challenged these figures put forward by Bond. All that Sycal did was to make bare denials. [See Enclosure 103 Sycal’s reply written submissions at paragraph 62]. [119] In the premises, I hold that Sycal has failed to rebut Bond’s contention. I therefore hold that Bond has received RM 6,773,738.99. [120] Therefore RM 9,357,563.20 [Bond’s entitlement based on 94.08% of RM 20 million] less RM 6,773,738.99 [that had earlier been received by Bond] would leave a sum of RM 2,583,824.21 that Sycal has yet to receive from Bond. 3rd criteria - Was the enrichment unjust? [121] In my view, it would be unjust for Sycal to keep this RM 2,583,824.21 since it was earned by Bond from its fulfilment of 94.08% of its obligation to raise RM 20 million under the Collaboration Agreement. [122] It is also unjust as under Clause 6.1 (e) of the Collaboration Agreement all the expenses and costs incurred for the marketing and sales purposes for the Commercial Suites including promotion, advertising, S/N UaR1jh/gv0eMzmZxHVQrmQ hiring of agents and third parties are borne by Bond. [See Enclosure 50 Bundle B15 page 3551]. [123] Of the remaining 185 Commercial Suites that were unsold Bond’s efforts led to the subsequent sales of 74 units of the Commercial Suites prior to the termination. [See Enclosure 69 PW2 Hew Lee Kuen Witness Statement Q and A 3]. 4th criteria - Are there any defences available to Sycal? [124] The facts do not show any defences to extinguish or reduce Sycal’s liability to make restitution to the claim. [125] On agreed issue 4 therefore, I am satisfied Bond has made out a cause of action in unjust enrichment in that Sycal has been enriched, that this enrichment was gained at Bond’s expense, that Sycal’s enrichment was unjust and there are no defences to extinguish or reduce Sycal’s liability to make restitution to the claim. [126] In conclusion, I hold that Sycal is liable to pay to Bond RM 2,583,824.21 under the principle of unjust enrichment. [127] I now consider Agreed issue 5. S/N UaR1jh/gv0eMzmZxHVQrmQ Agreed issue 5 - Whether Sycal is entitled to the reliefs sought in the Counterclaim? [128] I have earlier set out above all the reliefs sought by Sycal in its Counterclaim under the heading ‘The Pleaded Defence and Counterclaim of Sycal’. [129] Based on my answers to Agreed Issues [1] to [3], I hold that Sycal is entitled to its Counterclaim in paragraph 78 prayers [a] to [c]. [130] Sycal is not entitled to the prayers in paragraph 78 [ d], [e], [g] to [j] and [l]. This is because no evidence has been led on the quantum of general damages suffered and no submissions have been made to me to justify a claim for aggravated and exemplary damages. [131] Sycal has not led any evidence to show that the failure of Bond to raise the balance RM 1,184,000 of the agreed RM 20 million had prevented Bond from selling more than the 74 units of the Commercial Suites that Bond had sold, and therefore reduced the sales proceeds that Sycal would have received under Clause 2.7 of the Collaboration Agreement. Sycal has failed to prove Bond could have sold more than the 74 units of the Commercial Suites that were sold by Bond prior to the termination. [132] Sycal has earlier dropped paragraph 78 prayer [f]. [133] I thank counsel for the parties for their submissions which had greatly assisted me. S/N UaR1jh/gv0eMzmZxHVQrmQ Decision [134] For the reasons above, in respect of the plaintiff’s suit – i. The prayers in paragraph 68 [a] to [e] are dismissed. ii. For prayer in paragraph 68[f], [i] and [j] I hold that the defendants are liable to pay to the plaintiff RM 2,583,824.21 with interest at 5% per annum from the date of judgment till full payment. iii. The prayers in paragraph 68 [g] to [h] are dismissed. [135] The defendants are entitled to their Counterclaim in paragraph 78 prayers [a] to [c]. Paragraph 78 prayers [d] to [l] are dismissed. [136] Each party to bear own costs since the plaintiff and the defendants have won and lost some prayers each. ………(signed)………….. Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 05th June 2024 S/N UaR1jh/gv0eMzmZxHVQrmQ COUNSEL: 1) Ivanpal Singh Grewal and Pang Li Wei for plaintiff. (A J Ariffin Yeo & Harpal (Kuala Lumpur)) 2) Christopher Ik Chu Jek and Siti Hajar Aziz for defendants. (Jim Neoh & Ik (Kuala Lumpur)) CASES REFERRED TO: 1) Ajit Pd v. Nandini, A [1975] Or 184. 2) Alexander Thorn v The Mayor and Commonalty of London (1875– 1876) LR 1 App Cas 120 at p 127 3) Barton v Morris and another (in place of Gywn Jones, decd) [2023] AC 684. 4) Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLRHU 406. 5) Bhola v. Bhagwat, 13 CPLR 159. 6) Cana Construction Co v R [1974] SCR 1159; 37 DLR (3d) 418, Supreme Court of Canada 7) Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2004] 1 CLJ 357 CA. 8) Contra Holdings Ltd v Bamford [2023] EWCA Civ 374. 9) Craven-Ellis v Canons Ltd [1936] 2 KB 403 CA 10) Dargamo Holdings Ltd v Avonwick Holdings Ltd [2021] EWCA Civ 1149, [2022] 1 All ER (Comm) 1244. 11) Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453 FC. 12) Gangadin v. Bahoram, A [1937] N 230. S/N UaR1jh/gv0eMzmZxHVQrmQ 13) Gilbert & Partners (a firm) v Knight [1968] 2 All ER 248 CA 14) Greenmast Shipping Co SA v Jean Lion Et Cie SA (The ‘Saronikos’) [1986] 2 Lloyd’s Rep 277 15) Holland Hannen & Cubitts (Northern) Ltd v Welsh Health Technical Services Organisation & Ors (1981) 18 BLR 80 16) KS Lee Energy Llp v Toyo Ink Group Berhad [2023] MLRHU 2227 HC. 17) Letchumanan Chettiar Alagappan (As Executor To SL Alameloo Achi (Deceased)) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418. 18) Lumbers & anor v. W Cook Builders Pty Ltd (In Liq) 247 ALR 412; [2008] HCA 27 19) Mg Hmoot v. Offl Receiver, 14 R 704: A [1937] R 276 20) Moffatt v Andrew Laurie & Anor (1855) ER 139; 15 CB 583. 21) Parkinson (Sir Lindsay) & Co Ltd v Commissioners of Works [1949] 2 KB 632 CA 22) Pavey & Matthews Pty Ltd v Paul (1987) 69 ALR 577. 23) Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322 CA 24) Peter Lind & Co Ltd v Mersey Docks and Harbour Board [1972] 2 Lloyd’s Rep 234 25) Raghavamma v. Chenchamma, AIR 1964 SC 136. 26) Raja Chandranath Roy v. Ramjai Mazumdar. 6 Bengal Law Reports, page 303 27) Ranchhodbhai v. Babuhai AIR 1982 Guj 308 28) Rover International Ltd & Ors v Cannon Film Sales Ltd [1989] 1 WLR 912 CA 29) Selvaduray v Chinniah [1939] MLJ 253 SC. 30) Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 1 MLRA 53; [1967] 2 MLJ 118. 31) Stoney v. Eastbourne R D Council [1927] 1 Ch 367, 397. S/N UaR1jh/gv0eMzmZxHVQrmQ 32) Syarikat Binaan Utara Jaya (a firm) v Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 CA 33) Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] MLRAU 468; [2015] 9 CLJ 1002 CA. 34) Trollope & Colls Ltd and Holland & Hannen and Cubitts Ltd, Trading as Nuclear Civil Constructors (a firm) v Atomic Power Constructions Ltd [1963] 1 WLR 333 35) Turriff Construction Ltd and Turriff Ltd v Regalia Knitting Mills Ltd (1972) 9 BLR 20; 222 EG 169 36) Usima Sdn Bhd v Lee Hor Fong (trading under the name and style of Pembinaan LH Fong) [2017] 5 MLRA 552; [2017] 5 MLJ 273; [2017] 9 CLJ 646; [2017] 6 AMR 652 FC. 37) U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC. LEGISLATION REFERRED TO: 1) Builders Licensing Act 1971. 2) Section 71 of the Contracts Act 1950. 3) Sections 101 of the Evidence Act 1950. 4) Sections 102 of the Evidence Act 1950. 5) Sections 103 of the Evidence Act 1950. LITERATURE REFERRED TO: 1) Burrows The Law of Restitution (3rd edition, 2011) 2) Goff & Jones The Law of Unjust Enrichment [ 7th edition, 2007]. 3) Sarkar on Evidence (15th edition, vol. 2). S/N UaR1jh/gv0eMzmZxHVQrmQ