Ooi Chong Seong v Lim Kean Tin (WA-22NCC-104-03/2021)

LIM KEAN TIN

MBI INTERNATIONAL SDN BHD

KOLEJ UNIVERSITI LINTON SDN BHD (NO. SYARIKAT: 449905-P) …DEFENDANTS GROUNDS OF JUDGMENT (APPLICATION FOR ASSESSMENT) Introduction [1] The Plaintiff succeeded in its claim against the Defendants for an action to declare a sale of shares by the Plaintiff to the 1st Defendant void for illegality. Background [2] In handing down my decision, I had on 24.11.2023 made several orders including the following order:

(iii) an order that the Plaintiff returns/restores to the 1 st Defendant the monies (if any) which are lawfully due and payable, in consequence of prayer (i) above, subject to the set off of all or any damages that has been suffered by the Plaintiff as a consequence of the 1 st Defendant’s occupation, control and management of International Institute of Science Mantin Sdn. Bhd. (Company No.663209- A); ITP Sdn Bhd (Company No.188561-U); ITP Ventures Sdn Bhd (Company No.602842-K); Jati Cerah Sdn. Bhd (Company No.266085-H); Kolej Universiti Linton Sdn. Bhd. (Company No.449905-P); Linton International School Sdn. Bhd. (Company No.848937-U); Legenda Education Group Sdn. Bhd. (Company No.683871-T); Janabadi Sdn. Bhd. (Company No.733654-X); Ideal Metro Development Sdn. Bhd (Company No. 954531-K); Jendela Cerdik Sdn. Bhd (Company No. 740324-P) and Premier Gold Sdn. Bhd. (Company No. 709969-K) (“Target companies”) and/or the educational companies, as well as the four colleges;

(viii) a date for the assessment of the sums due to be returned by the Plaintiff to the 1st Defendant pursuant to paragraph (iii) above will be fixed;

(ix) the 1st Defendant’s counter claim against the Plaintiff is dismissed; [3] Before the assessment exercise was fixed, Plaintiff counsel wrote to this Court stating their position. They opined that there is no necessity to carry out such an assessment given the finding by this Court in the main suit and the dismissal of the Defendant’s counterclaim. As such, there are no monies that are lawfully due and payable to the 1st Defendant. Therefore, the 1st Defendant would be estopped from proving the same at the assessment. [4] The 1st Defendant however argued that the assessment was required in order to put into effect s.66 of the Contracts Act 1950. Issue [5] The issue is whether this Court ought to embark upon on an exercise to assess given the previous finding of this Court. Analysis and decision [6] The issue to be determined is whether there is a need to proceed with an assessment to determine if the Plaintiff ought to return or restore to the Defendants the monies which are lawfully due and payable. [7] I find no reason to carry out the assessment. The primary reason being the fact that the Sale and Purchase Agreement (“SPA”) was tainted by illegality. It would be contrary to public interest to enforce a claim if to do so would be harmful to the integrity of the legal system. [8] This is also consistent with the fact that I had dismissed the Counterclaim which in essence is for the return of the sums paid under the SPA and other agreements. The alternative prayer in the said Counterclaim mirrors the prayer of the 1st Defendant if such an assessment is carried out. [9] The Federal Court decision of Triple Zest Trading & Suppliers & Ors v. Applied Business Technologies Sdn Bhd [2023] 1 LNS 2016 is instructive. the Federal Court held that the party who received the friendly loan which in reality was pursuant to an illegal moneylending agreement need not return the purported financing. [10] In arriving at its decision, the Federal Court held that such an agreement was void by statute. Under section 24 of the Contracts Act 1950, an agreement is void if the object or consideration of the agreement is unlawful. [11] On the issue of restitution, the apex court made the following remarks on the remedy of restitution: “The court will not render assistance to those who come before it with unclean hands and the remedy of restitution under section 66 of the Contracts Act will not avail such litigants. The remedy under that section is only available where the contract is discovered to be void or when it becomes void and not where it is void ab initio as is the case with the loan agreement in the present case.” [12] Although references to Patel v. Mirza [2016] UKSC 42 were made by both parties, I find the decision of the Federal Court in Triple Zest to be binding on me. [13] As the said SPA is invalidated pursuant to section 24 of the Contracts Act 1950, on grounds of illegality and breach of public policy, then none of the terms of the SPA would be enforceable as the entire SPA would be invalid. As such, I am in law, unable to order the return of the monies under any of the provisions of the SPA. [14] Further, the 1st Defendant has not sought the return of the monies by way of restitution under a cause of action in unjust enrichment or monies had and received, and as such, there is no effective plea in law for the return of the monies. [15] The 1st Defendant in this case ought to have sought restitution on a cause of action grounded on unjust enrichment, or money had and received in order to claim back the monies paid under an invalid SPA. The failure to do so is fatal. Conclusion [16] In the foregoing, I hold that an assessment is not necessary as there are no monies that are lawfully due and payable to the Defendants. Even if the assessment exercise is carried out, the outcome is patently obvious-no monies unlawfully obtained is to be refunded. -Sgd- (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge High Court of Malaya Kuala Lumpur Dated: 17th December 2024 Counsel Dato' V Manokaran, Yohendra Nadarajan and M R Kumar for the Plaintiff Messrs. Yohendra Nadarajan Mr. Phang Soon Mun, Mr. Chin Choon Loong & Mr. Chew Chun Wei for the 1st Defendant Messrs. Han & Partners Mr. Loh Chun Hoo and Mr. Fong Yi On for the 2nd Defendant Messrs. Chun Hoo & Partners