Ong Led Seng v 1. ) Lee Kam Sun (BA-22NCvC-277-06/2018)

LEE KAM SUN … DEFENDANTS [IDENTIFICATION CARD NO. : 591017-10-5915]

2.

COMPLETE COLLECTION SDN BHD [COMPANY NO. : 311001-K] GROUNDS OF JUDGMENT Background [1] This judgment concerns the plaintiff's application for assessment of damages against the first defendant for unjust enrichment pursuant to the High Court order dated 22 December 2021 (Enclosure 142). [2] The plaintiff’s claim against the defendants has been heard before Justice Tee Geok Hock. The Court has entered a judgment in default of 22/07/2024 16:58:24 BA-22NCvC-277-06/2018 Kand. 150 S/N Evx7khqBrkCE4gunPUe5DA defence against the first defendant and ordered the damages for unjust enrichment is to be assessed. On 22 December 2021, the Court also dismissed the plaintiff's claims against the second defendant and the third defendant with costs. The Salient Facts [3] The first defendant is the beneficial owner of an intermediate 4 ½ storey shop located under Title No. HSD 86348, Lot PT31, Section 62 of the City of Kuala Lumpur (referred to as the said property). The plaintiff's pleaded cause of action against the defendants are fraudulent conspiracy to cheat the plaintiff. [4] According to the plaintiff, the first defendant had sold the said property to the plaintiff for RM2,288,000.00 by way of a sale and purchase agreement dated 19 January 2012. The first defendant later sold the same property to the third defendant on 14 March 2014 for RM3,300,000.00. [5] The plaintiff's claim against the first defendant is for a declaration that the sale and purchase agreement dated 19 January 2012 is valid, a specific performance and an order for the first defendant to sign the transfer documents of the said property to the plaintiff. Alternatively, the plaintiff seeks the return of the purchase price and redemption money paid by the plaintiff, or for the plaintiff to pay damages as ordered by the Court. S/N Evx7khqBrkCE4gunPUe5DA Legal Principle [6] With regards to the claim of unjust enrichment, Federal Court in the case of Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453; [2015] 2 MLJ 441, held as follows: "[117] The above passages from the judgments of the House of Lords are instructive and are significant contribution to the development of law of unjust enrichment. The principle underlying the cases of Banque Financiere de la Cite v. Parc (Battersea) Ltd and Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v. IRC 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:

the plaintiff must have been enriched;

the enrichment must be gained at the defendant's expense;

that the retention of the benefit by the plaintiff was unjust; and

there must be no defence available to extinguish or reduce the plaintiff's liability to make restitution". [7] In the case of Datuk Mohd Ali bin Hj Abdul Majid & Anor (Both practicing as Messrs Mohd Ali & Co) v Public Bank Berhad [2014] MLJU 473, Federal Court held that- “[32] It is trite law that a claimant claiming damages must prove that he has suffered the damage. The claimant has the burden of proving both liability and quantum of damages, before he can recover the sum claimed.” “[33] Therefore, in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, he must prove the damage that he had in fact suffered to the satisfaction of the court.” [8] Considering that the judgment in default of defence was entered against the first defendant, this Court has to examine whether the plaintiff S/N Evx7khqBrkCE4gunPUe5DA has discharged his burden of proving unjust enrichment against the first defendant. The Plaintiff’s Application for Assessment of Damages [9] Following the order of High Court dated 22 December 2021, the Plaintiff filed a Notice of Assessment of Damages (Enclosure 142) supported by Affidavit in Support dated 19 March 2024 and Supplementary Affidavit dated 13 May 2024. [10] The plaintiff averred that he had purchased the said property and paid a sum of RM2,288,000.00 under the agreement dated 19 January

The plaintiff further refers to the testimony of the third defendant, who confirmed that on 14 March 2014, the first defendant sold the said property to the third defendant for RM3,300,000.00. According to the plaintiff, the first defendant has profited the sum of RM712,000.00 from selling the said property. [11] The plaintiff further submitted that the first defendant should be ordered to pay to the plaintiff the sum of RM3,000,000.00 being damages for unjust enrichment. The sum of RM3,000,000.00 consist of the sale price of the said property between the plaintiff and the first defendant amounting to RM2,288,000.00 and the profit gained by the first defendant from the sale of the said property to the 3rd defendant of RM712,000.00. S/N Evx7khqBrkCE4gunPUe5DA Issue [12] Paragraph 3 of the High Court Judgment dated 22 December 2021 ordered as follows- “3. Penghakiman ingkar pembelaan diberi kepada Plaintif terhadap Defendan Pertama (Lee Kum Sun) berkaitan dengan tuntutan pengkayaan tidak adil (“unjust enrichment”), dengan gantirugi pengkayaan tidak adil itu akan ditaksirkan oleh Mahkamah”. [13] Therefore, the issue to be decided before this Court is whether the plaintiff has discharged his burden of proof for the damages for unjust enrichment against the first defendant. Analysis and Finding [14] Upon examining the plaintiff's affidavits and submissions, I find that the plaintiff has relied on the said agreements to proof damages for unjust enrichment. [15] My finding is based on paragraph 6 and 7 of the plaintiff's Affidavit in Support, which states as follows: “6. Jadi kekayaan tidak adil yang diperolehi oleh Defendan Pertama adalah seperti berikut:

6.1 Kekayaan tidak adil yang diperolehi daripada harga jualan antara saya dengan Defendan Ketiga RM712,000.00 6.2 Harga belian yang dibayar RM2,288,000.00 S/N Evx7khqBrkCE4gunPUe5DA Plaintif kepada Defendan Pertama bagi harta tersebut

RM3,000,000.00 Ini adalah keuntungan yang tak adil yang diperolehi oleh Defendan Pertama dalam transaksi-transaksi ini dan saya dengan rendah diri pohon supaya gantirugi bagi saya ditaksirkan oleh Mahkamah yang Mulia ini sebanyak RM3,000,000.00 atau sebagaimana yang difikirkan wajar dan suaimanfaat oleh Mahkamah yang Mulia ini.” [16] It is my considered view that the plaintiff is merely stating the amount of damages that he is claiming against the first defendant. The plaintiff failed to show any documents to support his averment that the sum of RM2,288,000.00 has been paid by him to the first defendant to the satisfaction of this Court. I also take into consideration that the High Court had dismissed the plaintiff's claims against the second defendant and the third defendant. [17] The sale and purchase agreement dated 19 January 2012 only indicates that the plaintiff and the first defendant agreed to the purchase price of RM2,288,000.00. Furthermore, the testimony of the third defendant's witness (Benny Soh Seow Leng) has no assistance to the plaintiff’s claim for unjust enrichment. [18] I also refer to a letter dated 12 March 2013 from OCBC Bank, as shown in the plaintiff’ Supplementary Affidavit. Again, the plaintiff did not exhibit any documents to proof that payment for the redemption sum of RM788,000.00 has been settled by the plaintiff to OCBC Bank. S/N Evx7khqBrkCE4gunPUe5DA [19] To discharge his burden of proof, the plaintiff exhibited a copy of a document knowns as "Acknowledgement" in the Supplementary Affidavit as shown below – [20] To my mind, the "Acknowledgement" letter merely contains a statement that payment has been made by the plaintiff to the first defendant. S/N Evx7khqBrkCE4gunPUe5DA [21] I find the "Acknowledgement" letter highly questionable to be accepted as evidence to support the plaintiff’s averment that payment for the purchase price of the said property is settled. Despite the presence of two signatures on the said letter, other important details such as signatory's name, identity card number and date of signing have been left blank. The said document also does not disclose when the payment of RM1,500,000.00 made by the plaintiff to the first defendant. [22] If the plaintiff had deposited the redemption sum to Messrs Khor Rafidah, the evidence of such payment should have been disclosed during trial or in the hearing of Enclosure 142. [23] I have also referred to the Grounds of Judgment after full trial as follows:

Para 30 – In any event, the Plaintiff at the trial has failed or neglected to prove that he had in fact paid the purchase price of a substantial part thereof to the 1st Defendant. No documentary evidence of any payment of purchase price by the Plaintiff to the 1st Defendant was ever produced at the trial here.

(ii) Para 79 – As regards Plaintiff’s claim of unjust enrichment against 1st Defendant, the Plaintiff has not produced documentary proof of the alleged payments said to have been made to the 1st defendant. [24] The plaintiff did file an appeal against that decision but was dismissed by the Court of Appeal. S/N Evx7khqBrkCE4gunPUe5DA [25] This Court finds that on the balance of probabilities, the plaintiff has failed to proof the damages for unjust enrichment amounting to RM3,000,000.00 against the first defendant. Conclusion [26] In the premises, no damages for unjust enrichment shall be awarded to the plaintiff. Therefore, Enclosure 142 is dismissed with no order as to costs. Dated 22 July 2024 Signed ........................................................... HAZIZAH KASSIM Judicial Commissioner High Court of Malaya (NCvC10) Shah Alam The decision was delivered on 12 June 2024 Counsel for the Plaintiff: John Henry Louis Messrs John & Associates (Kuala Lumpur) S/N Evx7khqBrkCE4gunPUe5DA