Subparagraph
(vi) In Bocotra Construction Pte Ltd v. AG [1995] 2 SLR (R) 15 262, the Singapore Court of Appeal, stated that "a higher degree of strictness applies, as the applicant will be required to establish a clear case of fraud or unconscionability in the interlocutory proceedings. It is clear that mere allegations are insufficient." 20 [8] On what amounts to unjust enrichment, guidance can be found in the Federal Court case of DREAM PROPERTY SDN BHD v. ATLAS HOUSING SDN BHD [2015] 2 CLJ 453; [2015] 2 MLJ 441, where the court opined as follows: 25 “[108] This is a good place to point out that 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 30 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. Page 12 of 20 [109] In Goff & Jones: The Law of Unjust Enrichment (supra), para. 1-08, it is stated: “Whatever may be the underlying moral justifications for the award of restitution all these cases, the "unjust" 5 element in "unjust enrichment" is simply a "generalisation of all the factors which the law recognises as calling for restitution". In other words, unjust enrichment is not an abstract moral principle to which the courts must refer when deciding cases, it is an organising concept that 10 groups decided authorities on the basis that they share a set of common features, namely that in all of them the defendant has been enriched by the receipt of a benefit that is gained at the claimant's expense in circumstances that the law deems to be unjust. The reasons why the 15 courts have held a defendant's enrichment to be unjust vary from one set of cases to another, and in this respect the law of unjust enrichment more closely resembles the law of torts (recognising a variety of reasons why a defendant must compensate a claimant for harm) than it 20 does the law of contract (embodying the single principle that expectations engendered by binding promises must be fulfilled).” [110] Restitution simply means that a party who has received a benefit must 25 restore the benefit received by him. The theoretical foundation of the right to restitution remedy as it is understood today is that it is founded on the law of unjust enrichment which fall outside the domains of contract and tort. The law of contract/tort and the law of unjust enrichment are conceptually distinct. Unjust enrichment 30 describes a cause of action. On the other hand restitution describes a remedy. Restitution as a response to wrongdoing is therefore a different topic from restitution as a response to unjust enrichment (see: Goff & Jones on The Law of Unjust Enrichment (supra) para. 1-04). The courts Page 13 of 20 have found it necessary to make available, independent of the law of contract and civil wrongs, for the restoration of benefits on the grounds of unjust enrichment. [111] As stated by Lord Wright in Fibrosa Spolka Akcyjna v. Fairbairn Lawson 5 Combe Barbour Ltd [1943] AC 32 at p. 61: “It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a 10 man from retaining the money of or some benefit derive from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common 15 law which has been called quasi-contract or restitution.” [112] Since then English law has recognised an independent law of unjust enrichment by recognising a claim for restitution based on unjust enrichment. According to Goff & Jones: The Law of 20 Unjust Enrichment (supra) (see para. 1-05), the highest courts have now conclusively recognised that unjust enrichment is a distinct source of rights and obligations in English private law that ranks alongside contract and civil wrongs in importance and accordingly calls for discrete stand-alone treatment. This was shown in a number of cases which were cited 25 by learned counsel for the defendant, namely Banque Financiere de la Cite v. Parc (Battersea) Ltd and Others [1999] 1 AC 221, Rowe v. Vale of White Horse DC [2003] EWHC 388 (Admin), Cressman v. Coys of Kensington (Sales) Ltd [2004] EWCA Civ 47; [2004] 1 WLR 2775, Chief Constable of the Greater Manchester Police v. Wigan Athletic AFC 30 Ltd [2008] EWCA Civ 1449; [2009] 1 WLR 1580, Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v. Inland Revenue Commissioners and Another [2008] 1 AC 561 and Investment Trust Companies v. HMRC [2012] EWHC 458 (Ch). Page 14 of 20 ….. [114] In the context of our present case, the key part of the judgment is the speech of Lord Steyn as follows: 5 “My Lords, both the judge and Morritt L.J. invoked the vocabulary of unjust enrichment or restitution. Nevertheless both courts ultimately treated the question at stake as being whether B.F.C is entitled to be subrogated 10 to the rights of R.T.B. On the present appeal counsel adopted a similar approach. That position may have seemed natural at a stage when B.F.C. apparently claimed to be entitled to step in the shoes of R.T.B. as charge with the usual proprietary remedies. On appeal to your 15 Lordships' House counsel for B.F.C. attenuated his submission by making clear that B.F.C. only seeks a restitutionary remedy against O.O.L. In these circumstances it seems sensible to consider directly whether the grant of the remedy would be consistent with 20 established principles of unjust enrichment. O.O.L. committed no wrong; it cannot therefore be a case of unjust enrichment by wrongdoing. If it is a case of unjust enrichment, it must in the vivid terminology of Professor Peter Birks, An Introduction to the Law of 25 Restitution (1985), be unjust enrichment by subtraction. If the case is approached in this way it follows that B.F.C. is either entitled to a restitutionary remedy or it is not so entitled. After all, unjust enrichment ranks next to contract and tort as part of the law of obligations. It is an 30 independent source of rights and obligations. Four questions arise. (1) Has O.O.L benefited or been enriched? (2) Was the enrichment at the expense of Page 15 of 20 B.R.C? (3) Was the enrichment unjust? (4) Are there any defences? The first requirement is satisfied: the payment of £10m. of the loan pro tanto improved O.O.L's position. That is conceded. The second requirement was in dispute. Stripped to its essentials the argument of counsel for 5 O.O.L. was that the interposition of the loan to Mr Herzig meant that the enrichment of O.O.L. was at the expense of Mr. Herzig. The loan to Mr Herzig was a genuine one spurred on by the motive of avoiding Swiss regulatory requirements. But it was nevertheless no more than a 10 formal act designed to allow the transaction to proceed. It does not alter the reality that O.O.L was enriched by the money advanced by B.F.C via Mr Herzig to Parc. To allow the interposition of Mr Herzig to alter the substance of the transaction would be pure formalism. 15 That brings me to the third requirement, which was the ground upon which the Court of Appeal decided against B.R.C. Since no special defences were relied on, this was also the major terrain of debate on the present appeal. It 20 is not seriously disputed that by asking for a letter of postponement B.R.C. expected that they would obtain a form of security sufficient to postpone repayment of loans by all companies in the Omni Group until repayment of the B.R.C. loan. In any event, that fact is clearly established. 25 But for B.R.C's mistaken belief that it was protected in respect of intra-group indebtedness B.R.C. would not have proceeded with the refinancing. In these circumstances there is in my judgment a principled ground for granting a restitutionary remedy.” 30 Page 16 of 20 [115] To similar effect is the speech of Lord Clyde: “My Lords, the basis for the appellants' claim is to be found in the principle of unjust enrichment, a principle more fully expressed in the Latin formulation, nemo debet locupletari 5 aliena jactura. The principle is equitable in the sense that it seeks to secure a fair and just determination of the rights of the parties concerned in the case. But it is not a principle which is entirely discretionary in its application so as to enable a court in any case to withhold a remedy where all 10 the necessary elements for its satisfaction have been established, although there may be circumstances where on grounds which may be described as grounds of public policy a remedy may be refused. Without attempting any comprehensive analysis, it seems to me that the principle 15 requires at least that the plaintiff should have sustained a loss through the provision of something for the benefit of some other person with no intention of making a gift, that the defendant should have received some form of enrichment, and that the enrichment has come about 20 because of the loss. The loss may be an expenditure which has not met with the expected return. The remedy may vary with the circumstances of the case, the object being to effect a fair and just balance between the rights and interests of the parties concerned. The obligation to 25 provide the remedy does not rest on any contractual basis but on the general principle of the common law and it may find its expression in a variety of circumstances.” [116] The second House of Lords case is equally important. It is the case 30 of Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v. Inland Revenue Commissioners and Another [2008] 1 AC 561. For our present purpose, it is not necessary to narrate the facts of the case. What is of Page 17 of 20 importance is the elucidation by Lord Hope on the basis of the restitutionary award in the following passage: “I turn then to the basis on which the restitutionary award should be calculated. In Shilliday v. Smith 1998 SC 725, 5 727, Lord President Rodger said that anyone who wants to glimpse something of the underlying realities in the law of unjust enrichment must start from the work of Professor Peter Birks. In the essay which he contributed to Restitution, Past, Present and Future, Essays in Honour 10 of Gareth Jones (1998), Misnomer, p. 1, Professor Birks said that the whole thrust of the law of restitution is towards defining and analysing the event which most commonly brings it about, which is unjust enrichment. Restitution is the response to unjust enrichment, and unjust enrichment 15 is the event which triggers the response. The name of the event ought to predominate over the response. So, he argued, the subject ought to be called unjust enrichment. That is the starting point and, because the concept is one of enrichment not of damages, it determines the nature of 20 the response.” In his introduction to the book which he called Unjust Enrichment (2nd edition, 2005) pp. 3-4, he drew attention to another terminological difficulty. He explained that the 25 law of restitution is the law of gain-based recovery, just as the law of compensation is the law of loss-based recovery: “Thus a right to restitution is a right to a gain received by the defendant, while a right to compensation is a right that 30 the defendant make good a loss suffered by the claimant. The word 'restitution' is not entirely happy in this partnership with 'compensation'. It has had to be manoeuvred into that role. 'Disgorgement', which has no Page 18 of 20 legal pedigree, might be said to fit the job more easily and more exactly.” So, the remedy of restitution differs from that of damages. It is the gain that needs to be measured, not the loss to the claimant. The gain needs 5 to be reversed if the claimant is to make good his remedy. [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 of Banque 10 Financiere de la Cite v. Parc (Battersea) Ltd. And Others (supra) and Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v. Inland Revenue Commissioners and Another (supra) is that, in the context of the present case, a cause of action in unjust enrichment can give rise to a right to restitution where it can be established that: