Wynn Resorts (Macau) S.A v Soong Fan on (BA-22NCC-195-09/2025)

1.0

These are the Grounds of Judgment in respect of the Defendant’s application in Enclosure 7 to strike out the Plaintiff’s Writ and Statement of Claim pursuant to Order 18 rule 19(1)(a),

and (d) of the Rules of Court 2012.

This Court has considered the pleadings, the affidavits filed by both parties, the documentary exhibits exhibited therein, together with the written and oral submissions of learned counsel. At the conclusion of the hearing, this Court dismissed S/N 3rnAceDUlU6Axc6nl8SX3g the Defendant’s application with costs. The Defendant has since filed an appeal. These grounds are now set out in full.

At the outset, it is necessary to identify with precision the limits of the present inquiry. This Court is not concerned, at this stage, with whether the Plaintiff will ultimately succeed at trial, nor is this Court making any concluded determination on the legality or enforceability of the transaction in question. The question before the Court is narrower, but no less important. It is whether the Plaintiff’s claim is so plainly and obviously unsustainable that it ought to be struck out at the threshold.

The jurisdiction under Order 18 rule 19 is a summary jurisdiction. It is to be exercised sparingly and with caution. It is not the function of the Court at this interlocutory stage to resolve disputed questions of fact, to test the credibility of affidavit evidence, or to undertake a final characterisation of a transaction where the material before the Court discloses competing legal and factual possibilities. Where the dispute requires investigation, examination of documents in context, and evaluation of the true nature and operation of the impugned arrangement, such issues are ordinarily to be determined at trial. S/N 3rnAceDUlU6Axc6nl8SX3g

2.0

The Plaintiff is a casino operator in Macau. The Defendant is a Malaysian individual. It is not disputed that the parties entered into a Credit Agreement dated 30.11.2023.

The Plaintiff’s case is set out in the Statement of Claim and supported by the affidavit of Law Wing Chung Vincent affirmed in Enclosure 13. At paragraph 8.3.1 of that affidavit, the Plaintiff deposes that upon the Defendant’s request and application, the parties entered into the Credit Agreement which enabled the Defendant to acquire casino chips on a credit or deferred payment basis.

At paragraph 8.3.6, the Plaintiff further deposes that pursuant to the Credit Agreement and subsequent credit line increases, casino chips were provided to the Defendant on a credit or deferred payment basis, from which the Defendant had fully utilised and benefited in Macau.

The Plaintiff relies on a series of documentary instruments. These include the Credit Agreement exhibited as Exhibit “V-2”, the credit instruments or markers exhibited as Exhibit “V-6”, and the promissory note exhibited as Exhibit “V-7”. At paragraph 8.3.7.1, the Plaintiff deposes that the markers constitute evidence of the Defendant’s receipt of casino chips. At paragraph 8.3.7.2, the Plaintiff describes the promissory note S/N 3rnAceDUlU6Axc6nl8SX3g as the Defendant’s unconditional promise to pay any outstanding credit balance owed to the Plaintiff.

The Plaintiff quantifies the indebtedness at paragraph 8.7, asserting that the Defendant is indebted in the sum of

The Defendant does not deny the execution of these documents. Instead, in the Defendant’s Affidavit (No. 1) in Enclosure 8, the Defendant contends that the Court must look beyond the form of the documents and examine the true nature of the transaction. At paragraph 11, the Defendant asserts that the Credit Agreement forms part of a composite gambling contract. At paragraph 12, the Defendant contends that the Plaintiff’s claim contravenes section 26 of the Civil Law Act 1956 and sections 24 and 31 of the Contracts Act 1950. At paragraph 14, the Defendant invokes the doctrine of lex fori and contends that Malaysian law governs the enforceability of the claim.

The dispute between the parties is therefore not over the existence of the documents, but over the legal character of the transaction and whether the obligation sued upon is enforceable in this Court. S/N 3rnAceDUlU6Axc6nl8SX3g

2.1 The Credit Agreement and Documentary Structure

The Plaintiff’s claim is presented through a contractual and documentary framework.

At paragraph 8.3.2 of Enclosure 13, the Plaintiff sets out the material provisions of the Credit Agreement. Those provisions include, among others, that each draw against the Defendant’s credit line is to be treated as a separate advance of money by the Plaintiff, that the Defendant acknowledges his ability and intent to repay such advances, and that all outstanding sums are due and payable within fourteen days. The Agreement also contains provisions on governing law, interest at the rate of 18% per annum, and recovery costs.

The Plaintiff further relies on the credit instruments or markers and on the promissory note. The Plaintiff’s pleaded position is that these documents, taken together, record and support an enforceable debt obligation owed by the Defendant.

At the same time, the Plaintiff’s own affidavit evidence at paragraphs 8.3.1 and 8.3.6 makes clear that the facility was not pleaded as a general-purpose commercial loan. The Plaintiff’s own case is that the arrangement enabled the Defendant to acquire casino chips on a credit or deferred payment basis and that those chips were fully utilised in Macau. S/N 3rnAceDUlU6Axc6nl8SX3g

The Plaintiff’s claim therefore rests not merely on the existence of the documents, but on the legal effect to be given to that documentary structure in light of the factual use of the facility.

2.2 Defendant’s Case

The Defendant applies to strike out the claim on the basis that it discloses no reasonable cause of action, is frivolous or vexatious, and amounts to an abuse of process.

The Defendant places principal reliance on the decision of the Federal Court in Dato’ Ting Ching Lee v Ting Siu Hua & Ors [2025] 2 MLJ 295 (FC). The Defendant submits that the Court must look at the substance of the transaction and not merely its form, and that a credit arrangement which is in reality part of a composite gaming transaction cannot be enforced merely by being expressed in contractual language.

The Defendant further submits that the Court must examine the transaction in its entirety and relies on the Plaintiff’s own affidavit evidence to show that the credit facility was used to obtain casino chips. It is argued that the arrangement is inseparable from gaming activity and therefore constitutes a wagering transaction which is unenforceable under Malaysian law. S/N 3rnAceDUlU6Axc6nl8SX3g

The Defendant contends that once the Court takes the Plaintiff’s own evidence at face value, the illegality is apparent and no trial is required.

2.3 Plaintiff’s Case

The Plaintiff resists the application and maintains that the claim is founded on a contractual framework supported by documentary instruments.

The Plaintiff submits that the Defendant’s arguments cannot be resolved without examining how the arrangement operated in practice. The Plaintiff contends that the documents sued upon, including the Credit Agreement, the markers, and the promissory note, cannot simply be collapsed into a wagering claim without first determining their legal effect in their full factual context.

The Plaintiff further submits that even if the primary contractual claim is challenged, alternative bases arise under sections 66 and 71 of the Contracts Act 1950, and those issues likewise require a full evidential examination. S/N 3rnAceDUlU6Axc6nl8SX3g

3.0

3.1 Principles governing striking out under Order 18 rule 19

The principles governing the striking out of pleadings are settled. The jurisdiction is draconian and must only be exercised in plain and obvious cases where the pleading is clearly unsustainable.

In Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, the Supreme Court held that the power to strike out should be exercised only where the claim is obviously unsustainable and incapable of amendment.

In Sri Kelangkota-Rakan Engineering JV Sdn Bhd v Arab-Malaysian Prima Realty Sdn Bhd [2003] 3 CLJ 349, the Court of Appeal emphasised that where issues require investigation and examination of evidence, the matter ought to proceed to trial.

Likewise, in Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1, the Privy Council cautioned against determining disputed questions of fact at an interlocutory stage.

The Court must therefore ask whether the Plaintiff’s claim is plainly and obviously unsustainable, and not whether the Defendant has raised a serious defence. A serious defence does not by itself justify a striking out. The defence must show S/N 3rnAceDUlU6Axc6nl8SX3g that the claim is doomed to fail even if the matter were permitted to proceed to trial.

3.2 Statutory provisions on illegality and wagering

Section 24 of the Contracts Act 1950 provides: “The consideration or object of an agreement is lawful, unless -

it is forbidden by a law;

it is of such a nature that, if permitted, it would defeat any law;

it is fraudulent;

it involves or implies injury to the person or property of another; or

the court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” S/N 3rnAceDUlU6Axc6nl8SX3g

Section 31 of the Contracts Act 1950 provides: “Agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made.”

Section 26 of the Civil Law Act 1956 provides: “(1) All contracts or agreements, whether by parol or in writing, by way of gaming or wagering shall be null and void.

No action shall be brought or maintained in any court for recovering any sum of money or valuable thing alleged to be won upon any wager, or which has been deposited in the hands of any person to abide the event on which any wager has been made.”

These provisions reflect a clear legislative policy that wagering agreements are not enforceable in Malaysian courts. S/N 3rnAceDUlU6Axc6nl8SX3g

3.3 Proper approach to characterisation at the interlocutory stage

In the present case, the existence of the statutory prohibition is not in dispute. The real difficulty lies in its application. The Defendant says that the Plaintiff’s claim falls squarely within that statutory prohibition. The Plaintiff says that the claim is founded on a contractual credit arrangement supported by independent instruments and, in the alternative, on restitutionary principles.

Whether the transaction falls within the statutory prohibition depends on its proper characterisation. That characterisation cannot be undertaken in the abstract. It requires the Court to consider not only the language of the documents, but also how the arrangement operated in practice and whether the obligation sued upon has an independent juridical existence apart from gaming activity.

That exercise may, in an appropriate case, ultimately result in a finding of illegality. But the anterior question under Order 18 rule 19 is whether that conclusion can properly be reached on the present affidavit record without trial. S/N 3rnAceDUlU6Axc6nl8SX3g

4.0

The Court now turns to determine the issues arising from the Defendant’s application.

Although the Defendant relies on the different limbs of Order 18 rule 19, the substance of the dispute centres on a single controlling question. The question is whether the Plaintiff’s claim is so plainly and obviously unsustainable that it ought to be struck out at this stage, or whether the dispute raises issues which require a full trial where the evidence can be properly examined and tested.

In addressing that question, the Court must consider the Plaintiff’s pleaded case, the affidavit evidence, the documentary structure of the transaction, and the Defendant’s challenge founded on illegality.

4.1 The Plaintiff’s cause of action as pleaded and supported by evidence

The starting point must be the Plaintiff’s own pleaded case. The Statement of Claim pleads the existence of a Credit Agreement dated 30.11.2023, the grant of a credit facility, the utilisation of that facility by the Defendant, the execution of credit instruments and a promissory note, and the Defendant’s failure to repay the outstanding sum. These are not bare assertions or formulaic S/N 3rnAceDUlU6Axc6nl8SX3g pleadings unsupported by particulars. They are supported by affidavit evidence affirmed by Law Wing Chung Vincent in Enclosure 13 and by contemporaneous documents exhibited thereto.

At paragraph 8.3.1 of Enclosure 13, it is expressly deposed that the Credit Agreement enabled the Defendant to acquire casino chips on a credit or deferred payment basis. At paragraph 8.3.7.1, the Plaintiff refers to the execution of the credit instruments or markers as evidence of the Defendant’s receipt of those chips. At paragraph 8.3.7.2, the Plaintiff relies on the promissory note executed by the Defendant as an unconditional promise to pay any outstanding credit balance. The indebtedness is quantified at paragraph 8.7 in the sum of

Those averments are supported by documentary exhibits, including the Credit Agreement (Exhibit “V-2”), the markers (Exhibit “V-6”), and the promissory note (Exhibit “V-7”).

When these matters are taken at their highest, as the Court is required to do at this stage, the Plaintiff has advanced a structured claim in debt supported by written instruments. On the face of the pleadings and documents alone, the Plaintiff’s claim discloses a recognised cause of action in law. Applying Bandar Builder, this Court cannot conclude at this stage that the Plaintiff’s claim is plainly devoid of legal foundation. S/N 3rnAceDUlU6Axc6nl8SX3g

4.2 The Plaintiff’s own evidence and the nexus with gaming activity

That, however, is not the end of the matter. The Defendant’s challenge derives significant force from the Plaintiff’s own affidavit evidence.

At paragraph 8.3.1, the Plaintiff itself acknowledges that the Credit Agreement enabled the Defendant to acquire casino chips. At paragraph 8.3.6, the Plaintiff further deposes that casino chips were provided to the Defendant on a credit basis and that the Defendant had fully utilised and benefited from those chips in Macau.

This establishes a direct nexus between the credit facility and gaming activity. This is not a side feature of the Plaintiff’s case. It is central to the Defendant’s challenge. The Defendant is entitled to rely on those very passages to argue that the facility was not an ordinary commercial loan, but part of a gaming-related arrangement.

This Court accepts that the Plaintiff’s own evidence gives rise to a serious issue as to the true nature of the transaction. However, the existence of that nexus does not by itself conclude the character of the transaction. It raises a serious issue for determination, but it does not answer it conclusively. S/N 3rnAceDUlU6Axc6nl8SX3g

4.3 The contractual structure and the dual aspect of the transaction

The Plaintiff relies heavily on the terms of the Credit Agreement and the associated instruments.

At paragraph 8.3.2 of Enclosure 13, the Plaintiff sets out provisions to the effect that each draw against the credit line is to be treated as a separate advance of money, that the Defendant acknowledges his ability and intention to repay such advances, and that all outstanding amounts are due and payable within fourteen days. The Agreement further provides for interest at the rate of 18% per annum and for costs of collection. The Plaintiff also relies on the promissory note as an unconditional promise to pay and on the markers as documentary evidence of the drawdowns.

If these provisions are read in isolation, they bear the hallmarks of a conventional credit arrangement giving rise to an enforceable obligation to repay.

But they cannot be read in isolation. They must be read together with the Plaintiff’s own description of how the facility was used. The same arrangement that is framed in documentary and contractual language as an advance of money is also described in paragraphs 8.3.1 and 8.3.6 as having enabled the Defendant to acquire casino chips on a credit basis and to use them in Macau. S/N 3rnAceDUlU6Axc6nl8SX3g

That tension between the documentary form of the arrangement and its pleaded use in gaming is the central issue raised in this application. The contractual form suggests a credit obligation. The pleaded operation of the facility points to an arrangement directly linked to gaming activity. The legal effect of the transaction cannot be determined by isolating one aspect and disregarding the other.

4.4 Whether the transaction can be conclusively characterised at this interlocutory stage

The Defendant invites this Court to conclude, at this stage, that the transaction is in substance a wagering or gaming arrangement and that the Plaintiff’s claim must therefore fail as a matter of law.

In order to accept that submission, this Court would have to determine the true character of the transaction on a concluded basis. That, in turn, would require findings on matters such as whether the “advance of money” described in the Agreement had any independent legal existence, whether the obligation to repay arose independently of gaming outcomes, whether the markers and promissory note constitute standalone obligations or merely record gaming-related liabilities, and whether the facility had any commercial purpose apart from enabling gaming activity. S/N 3rnAceDUlU6Axc6nl8SX3g

These are not matters that can be resolved merely by reading the contractual language in isolation. Nor can they fairly be resolved on an untested affidavit record. At this interlocutory stage, there has been no cross-examination. The Court does not yet have the benefit of a complete evidential record as to how the arrangement operated in practice, what the parties intended in substance, and how the documents functioned in the actual course of dealings between them.

As cautioned in Tractors Malaysia Bhd v Tio Chee Hing, the Court should not determine disputed questions of fact at an interlocutory stage. In the present case, the issue is not merely one of construing a document in the abstract. It is one of characterising a transaction by reference to both its documentary structure and its practical operation.

This Court is therefore not prepared, on the present interlocutory record, to make a concluded finding as to the true character of the transaction.

4.5 The Defendant’s reliance on Dato’ Ting Ching Lee v Ting Siu Hua (2025).

The Defendant places substantial reliance on Dato’ Ting Ching Lee v Ting Siu Hua & Ors [2025] 2 MLJ 295 (FC). This Court accepts, without reservation, the principle articulated in that decision. The Federal Court made it clear that the Court must look at the substance of the transaction and not merely its form, S/N 3rnAceDUlU6Axc6nl8SX3g and that where a credit arrangement is in reality part of a composite gaming transaction, it cannot be enforced merely by being presented in the language of a contractual debt. The Court must examine the transaction in its entirety and must not permit statutory prohibitions against wagering to be circumvented by drafting devices.

However, it is equally important to recognise the procedural posture in which those principles were applied. In Dato’ Ting, the Federal Court arrived at its conclusion after a full evaluation of the evidence and upon a complete evidential record. The Court was therefore in a position to determine whether the credit arrangement had any independent existence apart from the gaming activity.

The present case stands in a materially different procedural posture. Here, the Court is being asked, under Order 18 rule 19, to reach a concluded determination on the character of the transaction based on affidavit evidence alone. There has been no cross-examination. The evidence has not been tested. The Court does not yet have the benefit of the fuller evidential picture that informed the decision in Dato’ Ting.

Indeed, the very reasoning in Dato’ Ting demonstrates that the exercise of characterisation is fact-sensitive. It requires a detailed examination of both the contractual terms and the surrounding circumstances. The Defendant’s reliance on Dato’ Ting therefore does not answer the anterior procedural S/N 3rnAceDUlU6Axc6nl8SX3g question under Order 18 rule 19, namely whether the present record permits a concluded characterisation of the transaction without the benefit of trial.

Accordingly, while this Court accepts the principle that substance must prevail over form, the application of that principle in the present case cannot properly be undertaken in a conclusive manner at this interlocutory stage. In that sense, Dato’ Ting does not support the striking out of the Plaintiff’s claim at this stage. Rather, it underscores the need for a full trial where the evidence can be properly examined and the true nature of the transaction determined.

4.6 Illegality and the statutory prohibition against wagering

There is no dispute as to the governing legal principle. Section 31 of the Contracts Act 1950 provides that agreements by way of wager are void and that no suit shall be brought to recover anything alleged to be won on any wager. Section 26 of the Civil Law Act 1956 provides that all contracts or agreements by way of gaming or wagering shall be null and void. Section 24 of the Contracts Act 1950 further provides that every agreement of which the object or consideration is unlawful is void.

The Defendant’s reliance on illegality is therefore not speculative or fanciful. It is grounded in established statutory policy. S/N 3rnAceDUlU6Axc6nl8SX3g

However, the application of those provisions depends on whether the transaction in question falls within the statutory prohibition. That question cannot be answered merely by pointing to the existence of gaming activity. The real issue is whether the legal obligation sued upon is itself a wagering obligation, or whether it is an independent obligation which, despite its connection with gaming activity, must be analysed on its own juridical footing.

That inquiry again brings the Court back to the need for proper characterisation of the transaction. At this stage, the Court is not in a position to conclude that the Plaintiff’s claim is plainly and obviously a wagering claim such that it must be struck out without trial. To do so would require findings of fact and legal characterisation which are more properly to be made after the evidence has been fully tested.

4.7 Lex fori and cross-border considerations

The Defendant relies on the doctrine of lex fori and submits that Malaysian law governs the enforceability of the Plaintiff’s claim in this Court. The Plaintiff, on the other hand, relies on the contractual provision that Macau SAR law governs the credit instruments.

The interaction between foreign law, the contractual choice of law clause, and Malaysian public policy raises additional issues requiring careful consideration. These include the extent to S/N 3rnAceDUlU6Axc6nl8SX3g which a contract or instrument valid under foreign law may nevertheless be unenforceable in a Malaysian court on grounds of domestic statutory policy or public policy.

Those are serious issues. But they are not purely abstract legal questions detached from the facts. Their resolution may depend in part on the true nature of the transaction, the juridical basis of the obligation sued upon, and the precise relationship between the documents relied on by the Plaintiff and the underlying gaming activity described in the affidavit evidence.

This Court is therefore not persuaded that the lex fori point can be treated as conclusively determinative at this interlocutory stage in the absence of fuller factual findings.

4.8 Alternative causes of action raised by the Plaintiff

The Plaintiff’s claim is not confined to a single legal basis. In addition to its contractual claim, the Plaintiff raises alternative bases for relief, including restitutionary relief under sections 66 and 71 of the Contracts Act 1950.

Section 66 provides that when an agreement is discovered to be void, a person who has received an advantage under the agreement is bound to restore it or make compensation for it. Section 71 provides that a person who lawfully does anything for another, not intending to do so gratuitously, is entitled to compensation if the other person enjoys the benefit thereof. S/N 3rnAceDUlU6Axc6nl8SX3g

Whether those provisions ultimately assist the Plaintiff is not a question this Court is deciding here. The present point is narrower. The question is whether those alternative bases are so hopeless on their face that they too should be struck out summarily. In this Court’s view, they are not.

Whether sections 66 and 71 are engaged will depend on findings of fact, including whether the Defendant received a benefit, the nature of that benefit, whether the benefit is one cognisable in law for the purpose of restitution, and whether the surrounding circumstances permit restitution notwithstanding the Defendant’s illegality arguments. Those issues are not suitable for summary disposal on the present material.

The existence of these pleaded or identified alternative bases further reinforces the conclusion that the dispute is not one that can properly be shut out at the threshold.

4.9 Whether illegality is plain and obvious on the present record

The Defendant’s central submission is that illegality is apparent on the face of the Plaintiff’s own evidence and that no further inquiry is required.

This Court is unable to accept that submission in the present procedural context. S/N 3rnAceDUlU6Axc6nl8SX3g

The Plaintiff’s evidence undoubtedly establishes that the facility was linked to the acquisition and use of casino chips. That much is clear from paragraphs 8.3.1 and 8.3.6 of Enclosure 13. But the question is not merely whether gaming activity took place. The question is whether the legal obligation sued upon is independent of that activity or inseparable from it. That is a question of characterisation requiring the transaction to be examined as a whole.

On the material presently before the Court, illegality is a serious issue. It is not, however, so plain and obvious as to justify the striking out of the Plaintiff’s claim without trial.

4.10 Overall assessment

Applying the principles in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, the Court must determine whether the Plaintiff’s claim is plainly and obviously unsustainable.

This Court is not so satisfied.

The Defendant has undoubtedly raised a serious challenge founded on illegality, wagering, public policy, and lex fori. Those issues are substantial and deserve full consideration. But the existence of a serious challenge is not the same as demonstrating that the claim is plainly hopeless. The Plaintiff has advanced a structured case supported by documents and S/N 3rnAceDUlU6Axc6nl8SX3g affidavit evidence. The Plaintiff has also identified alternative legal bases which cannot be dismissed summarily on the present material.

Once the matter is viewed in its full context, this Court is satisfied that the dispute requires a full examination of the evidence. The true character of the transaction, the legal effect of the documentary instruments, the applicability of the statutory prohibitions, and the viability of any alternative causes of action are matters that ought to be determined at trial and not foreclosed at the interlocutory stage.

This is therefore not a proper case for striking out under Order 18 rule 19.

5.0

Having considered the pleadings, the affidavit evidence, the documentary exhibits, and the submissions of parties, this Court is not satisfied that the Plaintiff’s claim is so plainly and obviously unsustainable as to warrant striking out under Order 18 rule 19(1)(a), (b) or (d) of the Rules of Court 2012.The Defendant has raised a serious challenge founded on illegality, wagering, and lex fori. Those are substantial issues. However, their resolution depends on the proper characterisation of the transaction, including the legal effect of the Credit Agreement, the markers, the promissory note, and the factual operation of the facility in practice. Those matters cannot be conclusively S/N 3rnAceDUlU6Axc6nl8SX3g determined on the present affidavit record without the benefit of a full trial.

The Plaintiff’s claim, as presently pleaded and supported by documentary instruments, discloses a cause of action known to law. Whether that claim will ultimately succeed is a matter for trial. At this interlocutory stage, the Court cannot conclude that the claim is plainly unsustainable.

Accordingly, Enclosure 7 is dismissed. S/N 3rnAceDUlU6Axc6nl8SX3g

Enclosure 7 is dismissed and costs of RM5,000.00 to the Plaintiff, subject to allocatur. Dated 18 May 2026 -sgd-DATO’ ANITA BINTI HARUN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiff : Richard Lee Wen Gee & Koh Jo Vin (Messrs Mathews Hun Lachimanan) For the Defendant : Woon Ling Li & Lam Mei Yee (Messrs S L Goon & Partners) S/N 3rnAceDUlU6Axc6nl8SX3g