Yayasan Wilayah Persekutuan v Pinnacle Homes Sp Sdn Bhd (WA-22NCvC-896-12/2019)

The costs of relocation of the hawkers situated on the Said Land, for the costs of RM304,784.44.

(ii) The payment of stamp duty for the transfer of the Said Land pursuant to the DBKL SPA of RM908,535.00.

(iii) The payment of real property gains tax (“RPGT”) of RM327,439.50.

(iv) The payment of plaintiff’s solicitors - Messrs Khairul Azwan & Co - ‘s legal fees of RM140,170.20. [7] The defendant filed a counterclaim for this total amount of RM1,680,893.14, and filed a summary judgment application at the Sessions Court. However the Sessions Court held there was a triable issue. The defendant was then successful in its application to transfer the matter to the High Court. The Sessions Court matter had since been transferred to the High Court, and pursuant to a High Court Order dated 12 November 2019, the application was thus deemed as if the matter commenced from the beginning at the High Court. [8] Also, at the same time, the defendant was successful in its appeal against the dismissal of its summary judgment application when the High Court allowed the appeal for the whole amount of claim amounting to RM1,680,893.14. [9] The plaintiff on the other hand appealed against the decision of the High Court granting summary judgment on the counterclaim which S/N Qc1igW/Qkmc/FfxeKpCjg Page 3 of 18 was allowed by the Court of Appeal which ordered the summary judgment application to be heard afresh by this Court. [10] The main suit was filed by the plaintiff claiming that the defendant had committed a breach of contract in respect of the balance of purchase price amounting to RM822,905.37. The Plaintiff had also filed a summary judgment application for its claim for the said amount but the High Court dismissed the same on account of a finding that there were triable issues. [11] In this case, the Court of Appeal remitted the matter for a re-hearing before this because of the issue on monetary jurisdiction of the Sessions Court given that the Sessions Court does not have the requisite jurisdiction over the defendant’s counterclaim of RM1,680,893.14 at the time the Sessions Court heard and decided on the matter. [12] Thus the Court of Appeal did not deal with the merits of the application, and the reason for the re-hearing is to address the monetary jurisdiction issue, and not on the basis that there were no merits in the summary application itself. The Court of Appeal had additionally directed that there shall be no further affidavits, as they had been exhausted since 2019. The essence of the respective case of the parties [13] The position of the defendant was that it was aware that during the execution of the SPA and the Supplemental SPA the plaintiff was only the beneficial owner of the Said Land pursuant to the DBKL SPA, and DBKL was then its registered proprietor. This is not unexpected, for it was the defendant who approached the DBKL to purchase the Said Land. They then agreed on the manner how the purchase should take place. The reason is that the plaintiff, given its charitable function would benefit from the transaction and the profit could be further utilised for such purpose. [14] At all material times, the defendant’s own former director Frankie Wong was instrumental in all the arrangement of the sale and purchase of the property between Datuk Bandar Kuala Lumpur and Defendant. [15] Problem surfaced when the defendant was to pay the final payment amounting to RM822,905.37. The defendant’s purported cheque payment was returned for the reason of “payment stopped”. Subsequently, the instant claim was commenced by the plaintiff against S/N Qc1igW/Qkmc/FfxeKpCjg Page 4 of 18 the defendant. And the defendant, the instant counterclaim against the plaintiff for the sum of RM1,680,893.14. Analysis & Findings Preliminary Objection [16] One principal attack by the defendant against the resistance by the plaintiff to the summary judgment, which is raised as a preliminary objection, is concerning the only affidavit (in reply) filed by the plaintiff to oppose the application, which is that affirmed by Zaizalnizam Zainun on 19 July 2019. The defendant contended that the affidavit is defective and is inadmissible. [17] The defendant argued that the plaintiff failed to adhere to the mandatory requirement of Order 41 r 1(8) of the Rules of Court 2012 (“the RC 2012”) - (8) A jurat shall be in one of the forms in Form 74 - given the word “shall” stated therein, demanding that a jurat in an affidavit shall be in one of the forms in Form 74 of the RC 2012. [18] Every form in Form 74 in fact contains the words “sworn” and/or “affirmed”. However, here, the deponent of the said affidavit did not swear or affirm on the said affidavit. The jurat in the said affidavit does not bear the words “sworn” or “affirmed” by the deponent. This, according to the defendant, constitutes a breach of Order 41 r 1(8), and would render the affidavit defective and consequently cannot be admitted as evidence in Court. And because of this, there is no affidavit filed by the plaintiff such that it has thus failed to show any triable issues to resist the summary judgment application by the defendant. [19] In addition, the defendant argued that the said affidavit of the plaintiff also did not state that the statements therein were taken on oath and/or affirmation. It instead started only with the following: “Saya, Zaizalnizam Zainun (No. K/P: 780701-01-5780) seorang warganegara Malaysia yang cukup umur dan beralamat di Tingkat 11, Menara DBKL 3, Bandar Wawasan, Jalan Raja Abdullah, 50300 Kuala Lumpur”. [20] Furthermore, although such words are absent in the context required, and even though Section 7 of Oaths and Affirmations Act 1949 may not, as correctly, contended by the defendant, assist the plaintiff, it cannot in my view be denied that the affidavit contains the certification of a commissioner of oath on the affirmation made by the deponent. In other words the same was administered before the commissioner of oath. S/N Qc1igW/Qkmc/FfxeKpCjg Page 5 of 18 [21] The plaintiff submitted that reference ought to be made to the endorsement at the last page of its said affidavit which shows that the word “diikrarkan” (affirmed) is not missing, as reproduced below: “AFFIDAVIT JAWAPAN PLAINTIF in telah diikrarkan oleh ZAIZALNIZAM BIN ZAINUN (No. K/P: 780701-01-5789) pada 19 JUL 2019 dan telah difailkan pada 19 JUL 2019 oleh Tetuan Shukor & Associates, Peguamcara bagi pihak Defendan yang beralamat untuk penyampaian di Suite 15.22, 15th Floor, Wisma Zelan, No. 1 Jalan Tasik Permaisuri 2, Bandar Tun Razak, 56000 Kuala Lumpur”. [22] Although I would quite readily agree with the defendant that the said endorsement is not a jurat or the execution part of an affidavit based on Form 74 of the RC 2012, but is instead merely the footer of the affidavit prepared by the law firm, this further goes to demonstrate that the non-compliance is an oversight or irregularity which is essentially technical in nature. [23] Fundamentally the defendant has not stated in what manner the said non-compliance has prejudiced the defendant, or even if it occasioned any prejudice at all, especially considering that the defendant was able to file its affidavit in reply anyway. In other words, the said non-compliance in this case does not impair the integrity of the contents of the affidavit and certainly does not occasion any undue hardship or substantial prejudice to the defendant. [24] Legal ramifications on any irregularity pertaining to the requirements on the preparation of an affidavit under Order 41 of the RC 2012 must always depend on the facts and circumstances of the case. [25] For instance in this case the non-compliance does not any dispute whether the deponent actually averred the affidavit or whether he understood what was stated therein, unlike the situation in for example the case of Maria Yusof v Abdullah Gendak [2015] 9 CLJ 243. In that case, which involved affidavits by an illiterate person, the High Court held that the non-compliance with Order 41 r. 3 to state the certification jurat by the Commissioner for Oaths is a fundamental and incurable breach because it went to the root of the affidavit as it could not be said that the deponents actually understood what was written in the affidavits. [26] There is therefore, given the circumstances, no strong reasons why the provisions of Order 1A and Order 2 of the RC 2012 cannot be invoked to remedy such technical breach of the requirements S/N Qc1igW/Qkmc/FfxeKpCjg Page 6 of 18 of Order 4 on account merely of the missing word “sworn” or “affirmed” in the jurat. [27] Order 1A plainly mandates a judge to have regard to the overriding interest of justice and not only to the technical non-compliance with the rules and this is relevant to the situation here (see also the decision of the Court of Appeal in Redang Paradise Vacation Sdn Bhd v Yap Chuan Bin and Other Appeals [2017] 5 MLJ 35). [28] In any event it cannot be taken that any non-compliance with the requirements concerning affidavit must necessarily render the same defective and to be rejected as inadmissible. After all, even if an affidavit is defective, such affidavit may still be used with the leave of the Court. Order 41 r 4 of the RC 2012 clearly provides this, as follows: Use of Defective Affidavit An Affidavit may, with the leave of the Court, be filed or used in evidence notwithstanding any irregularity in the form thereof. [29] For these reasons, I dismiss the preliminary objection. The attempt to render the said affidavit by the deponent for the plaintiff inadmissible, fails. The summary judgment application [30] The more substantive matter in this appeal is concerning the summary judgment application of its counterclaim against the plaintiff under Order 14 of the RC 2012. It is well-established and already settled law that once an Order 14 application is shown to have been correctly and properly filed, the burden shifts and thus rests on the defendant (the plaintiff in the counterclaim herein) who desires to resist the application to raise a defence which shows a “bona fide triable issue”, in the sense of an issue which justifies and warrants the matter to be considered at the trial proper. [31] This is entirely in keeping with the requirements of Order 14 r 3 of the RC 2012 which provides that unless the said defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that:-

there is an issue or question in dispute which ought to be tried: or

there ought for some other reason to be a trial of that claim or part, S/N Qc1igW/Qkmc/FfxeKpCjg Page 7 of 18 the Court may give such judgment for the Plaintiff against the Defendant on that claim or part as may be just having regard to the nature of the remedy or relied claimed. [32] As such, in the often quoted decision of the Supreme Court in National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 it was authoritatively ruled as follows:- “We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14 the preliminary requirements are:-

the defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and

(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14”. ... If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him” [33] It should be made clear that under Order 14 r 5, a defendant with a counterclaim may apply for summary judgment on the same terms as a claimant. As the defendant (vis-à-vis its counterclaim) in this case has satisfied these preliminary requirements, and this is also not disputed by the plaintiff, the burden is now firmly on the plaintiff to show that there is a triable issue that does not justify summary judgment of the counterclaim be entered against the plaintiff. [34] A counterclaim is after all a separate and independent action by a defendant (see Order 15 r 2(2) of the RC 2012 and the case of Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] CLJ Rep 242). [35] If the plaintiff herein can demonstrate even one triable issue, this Court will not grant summary judgment. But it has to be a genuinely triable issue. As made clear by the Federal Court in Voo Min En & Ors v Leong Chung Fatt [1982] 2 MLJ 241, it is not enough for a plaintiff herein S/N Qc1igW/Qkmc/FfxeKpCjg Page 8 of 18 to raise an issue or any issue. The plaintiff must instead raise such issue as would require a trial in order to determine it. [36] The plaintiff herein advanced a number of arguments which they said constituted triable issues and reasonable defence which would render a summary disposal of this case unsuitable and unjustified. [37] For the defendant however, the thrust and essence of its case is that the plaintiff has a clear contractual obligation to pay for the costs and expenses - the subject matter of the defendant’s counterclaim -

Months from the date of this Agreement” [41] It is also repeated in Section 1(iii) of the Supplemental SPA as follows: “Section 3.02(ii) shall be replaced with its entirety with the following: The Conditions Precedents stated in Section 3.02(i) above shall be fulfilled by the Vendor within S/N Qc1igW/Qkmc/FfxeKpCjg Page 9 of 18 TWELVE (12) Months from the date of this Agreement (hereinafter referred to as the “Condition Period”) In the event that the Vendor is not able to fulfil the Condition Precedent within the Condition Period, the Purchaser shall extend the Condition Period for a further SIX (6) Months commencing immediately upon the expiry of the Condition Period (hereinafter referred to as the “Extended Condition Period”). If at the expiry of the Extended Condition Period, the Vendor is still not able to fulfil the Conditions Precedent, the Purchaser hereby agrees to further extend the Extended Condition Period for such further extended period as the Purchaser shall deem fit”. [42] Much therefore depends on what are the conditions precedent. This is provided for in Section 1 of the Supplemental SPA which clearlys set out that the Conditions Precedent include inter alia: “(i) the receipt of written confirmation from the Registered Proprietor confirming that all the hawkers, peddlers, tenants, occupiers and squatters on the said Land have been relocated;

(ii) the receipt of written confirmation from the Registrar Proprietor confirming that all the night hawkers and peddlers surrounding the said Land have been relocated”. [43] This still does not say which party is to pay for the costs and expenses to fulfil the conditions precedent. The answer is spelt out in Section 10.07 of the SPA to the clear effect that the costs and expenses to satisfy the conditions precedent shall be borne by the plaintiff. It reads as follows: “Each party shall bear its own Solicitors’ fees and costs but the stamp duties registration fees and other charges incidental to this Agreement and the Memorandum of Transfer shall be borne solely by the Purchaser(s). The costs and expenses towards the fulfilment of Conditions Precedent shall be borne by the Vendor(s)”. S/N Qc1igW/Qkmc/FfxeKpCjg Page 10 of 18 [44] Secondly, in respect of the claim concerning payment of the stamp duty (RM908,535.00), Clause 16.1 of the DBKL SPA makes it clear that it is the plaintiff’s obligation to pay for the stamp duty as the purchaser under the DBKL SPA. It reads as follows: “16.1 All stamp duties, premium, registration, search and other fee imposed on this Agreement and the Transfer shall be borne and paid by the Purchaser including any penalty payable thereon except that if the delay resulting in the payment is caused or attributable by Datuk Bandar, Datuk Bandar shall bear the same or shall reimburse the purchase of the same”. [45] At the same time there are no requirements in the SPA for the defendant to pay for the stamp duty for the plaintiff in the sale and purchase transaction under the DBKL SPA involving the latter. [46] Thirdly, pertaining to the payment of the RPGT (RM327,439.50), Section 10.20 of the SPA states that the plaintiff irrevocably agrees, covenants and undertakes with the defendant to pay for all tax payable in respect of the sale of the Said Land, which must therefore include RPGT, and to indemnify the defendant against any liability therefrom. It reads in full as follows: “The Vendor hereby irrevocably agrees covenants and undertakes with the Purchaser to pay all tax that may be payable (if any) by the Vendor pursuant to the Act in connection with the sale herein contained and the Vendor hereby further agrees covenants and undertakes with the Purchaser to keep the Purchaser and the Purchaser’s Solicitors indemnified against the aforesaid Tax liabilities of the Vendors”. [47] And finally, fourthly, in respect of the claim for the payment of the legal fees of the plaintiff’s solicitors (RM140,170.20), Section 10.70 of the SPA in clear terms states that each party shall bear its own solicitors’ fees and costs, as follows: “Each party shall bear its own Solicitors’ fees and costs but the stamp duties registration fees and other charges incidental to this Agreement and the Memorandum of Transfer shall be borne solely by the Purchaser(s). The costs and expenses towards the fulfilment of Conditions Precedent shall be borne by the Vendor(s)”. S/N Qc1igW/Qkmc/FfxeKpCjg Page 11 of 18 [48] There is no denying that Messrs Khairul Azwan & Co were the solicitors who were engaged by and acted for the plaintiff. It must contractually under Section 10.70 of the SPA follow that the plaintiff is liable to pay for the legal fees and costs of its own solicitors. [49] I make a few observations. First, the above provisions are contained in contractual documents. In Leong Ah Kew & Ors v Prisma Suria Sdn Bhd [2015] 8 CLJ 300, the High Court had stated thus:- “[8] Common law has established a number of important principles in the interpretation of contracts, one of which, especially relevant for present purposes is that the construction of contract is a question of law for determination by the court and not by witnesses through their evidence. In Bahamas International Trust Co Ltd v. Threadgold [1974] 1 WLR 1514, Lord Diplock stated the following: In a case which turns, as this one does, on the construction to be given to a written document, a court called on to construe the document in the absence of any claim to rectification, cannot be bound by any concession made by any of the parties as to what its language means. That is so even in the court before which the concession is made; a fortiori in the court to which an appeal from the judgment of the court is brought. The reason is that the construction of a written document is a question of law. It is for the judge to decide for himself what the law is, not to accept it from any or even all the parties to the suit; having so decided it is his duty to apply it to the facts of the case. He would be acting contrary to his judicial oath if he were to determine the case by applying what the parties conceived to be the law, if in his own opinion it were erroneous. [9] This has since been emphatically followed in Malaysian cases, such as in the Court of Appeal decision in NVJ Menon v. The Great Eastern Life Assurance Company Ltd [2004] 3 CLJ 96; [2004] 3 MLJ 38”. [50] Secondly, and no less significantly, in this case, the construction is to be based on the plain and ordinary meaning of the provisions of the contracts, having regard to the entirety of the contractual context, barring genuine ambiguities. In the Court of Appeal decision in Syarikat Binaan Utara Jaya (A Firm) v Koperasi Serbaguna Sungei Glugor Berhad [2009] 2 AMR 50, Abdul Malik Ishak, JCA stated the following key principles:- “[15] Of course, it is trite that when interpreting a contract the language of the contract must be taken into consideration. The intention of the parties is to be primarily gathered from the language employed in the contract itself. If, and only if the S/N Qc1igW/Qkmc/FfxeKpCjg Page 12 of 18 language is vague, the surrounding circumstances may be looked into in order to assist in interpreting the contract (Bipin Behari Deb v. Masrab Ali and Others [1961] AIR Vol. 48, 173 Assam). [16] I am fortunate that the contract here is in writing and so the parties are confined within the four corners of the document in which they have chosen to seal their agreement and neither of them can adduce evidence to say that his intention has been misstated or overlooked in the agreement or that some essential features of the contract has been omitted or ignored. To allow such evidence would involve the plain violation of s. 92 of the Evidence Act 1950 (Afshar M. M. Tacki v. Dharamsey Tricamdas [1947] AIR (34) 98 Bombay)”. [51] In the case of Dato’ Sivananthan a/l Shanmugam v Artisan Fokus Sdn Bhd [2016] 3 MLJ 122, the Court of Appeal emphasised that the intentions of the parties are to be gathered from the language used, that parties are presumed to have intended what they said (see Michael C Solle v United Malayan Banking Corporation [1986] 1 MLJ 45), and that the duty of the Court is to give effect to the clear intention of the parties as expressed in the agreement. [52] And the following passages from the High Court decision in Teoh Chin Kee & Anor v Messrs SB Teh & Ho (sued as a firm) & Anor [2018] 5 AMR 400 also merit reiteration:- “[69] As such, where the Court is persuaded that the language permits competing interpretations, a literal construction of the pertinent words alone will be insufficient. Instead parties must convince the Court that the other party’s interpretation results in a less than reasonable or rational commercial outcome whilst on the other hand, and in contradistinction, a commercially reasonable and logical business sense outcome is produced by the construction promoted by the other party. [70] But in respect of the case now before me, this iterative process of interpretation is not strictly necessary. For the terms of the agreements in question are clear. There are no real ambiguities. They are not complex or even lengthy. The words as they appear are simply incapable of a different or competing interpretation. [53] Similarly here. There is no ambiguity. The terms are clear. In light of the above contractual provisions, the obligation to bear those items of costs and expenses is on the plaintiff who is liable, thereunder, to pay the principal sum of RM1,680,893.14 (made up of the RM304,748.44 + RM908,535.00 + RM327,439.50 + RM140,170.20). S/N Qc1igW/Qkmc/FfxeKpCjg Page 13 of 18 [54] Having said that, it must be stated that the plaintiff had never in fact challenged the presence, validity or binding effect of these very contractual terms. [55] The essence of the issue raised by the plaintiff is that the plaintiff has never sought the defendant’s assistance in the relocation of the hawkers. The payment was instead made by the defendant on its own initiative. As for the various disputed items of costs, not only had the plaintiff never asked for the defendant to make payments, but that there was in fact a mutual consensus between the defendant’s previous directors including in particular one Frankie Wong and plaintiff that the payment for the costs was made on the defendant’s own initiative. [56] Much argument has been made, by both sides, on the question whether payment had been made by the defendant “voluntarily”. I would agree with the defendant here that voluntariness is not quite an issue, because when the advances were made by the defendant, it was never made voluntarily in the sense that it was free or gratuitous. Instead the defendant has never agreed to pay any advance for those items for free and there is no evidence adduced to support the same. [57] The defendant submitted that the plaintiff has never pleaded that the payment was made by the defendant for “free” and/or “gratuitously” and/or “need not be repaid to” which are basic phrases which can be easily pleaded if this is true. [58] Even though the issues raised by the plaintiff may if true mean that they are inconsistent with the clear terms of the said agreements, it cannot be discounted from the issues raised that parties might have agreed to a variation to the said terms by conduct, which would give rise to possible application of the doctrine of estoppel. All these can only be unravelled at a trial proper. [59] It is observed that the plaintiff has only raised the issue of whether the sum of RM1,680,893.14 was allegedly paid by the defendant to the plaintiff “voluntarily”. In both the pleadings and affidavits, no dispute is raised by the plaintiff on the quantum of the defendant’s counterclaim. It is therefore not a triable issue. [60] This is because since the contractual terms in the SPA and the Supplemental SPA are clear that the plaintiff is responsible to pay the payments said to have been made by the defendant, the plaintiff has therefore been unjustly enriched. S/N Qc1igW/Qkmc/FfxeKpCjg Page 14 of 18 [61] The counterclaim by the defendant is premised on the SPA and the Supplemental SPA, and cause of action being unjust enrichment on the part of the plaintiff. These are monies allegedly indebted by the plaintiff for the payments made by the defendant in order to fulfil the relevant pre-condition clauses contained in the two contracts. [62] The plaintiff submitted that the receipts of payment exhibited by the defendant do not establish that the plaintiff is indebted to the defendant for the explanation for the underlying payments, and the veracity of the receipts and invoices must be ascertained. [63] I observe that the plaintiff’s case is that these payments amounting to RM1,680,893.14 were made by the defendant without any request from the plaintiff. [64] In addition, and this is significant, the defendant had also issued a cheque amounting to RM822,905.37 under the name of the plaintiff, but which payment was later retracted by the defendant. The conduct of the defendant issuing the cheque seems to suggest that the plaintiff is entitled to the payment of the said RM822,905.37. The counterclaim is thus an afterthought. Clarification from the oral testimony of witnesses in a trial is in my view thus necessary. [65] It is imperative that witnesses be called to explain on the issue of why payment for these conditions precedents under the said agreements were made by the defendant when the said agreements compelled payment to be made by the defendant. [66] More specifically, it is observed that on the said relocation costs of RM304,748.44, which is a claim in the nature of a special damages allegedly suffered by the defendant, the receipts exhibited do not clearly substantiate the claims of the defendant because the connection with the plaintiff is not established and even if they were related to any relocation works. [67] As for the RM908,535.00 for the cost of stamp duty, where the defendant had alleged it had paid for the plaintiff, documents from the defendant’s own affidavit on the other hand shows that the payment was made by an entity named Terra Mirus Sdn Bhd. Not the defendant. And based on correspondence from the defendant’s solicitors to the plaintiff, the former merely forwarded the receipt of payment of the stamp duty together with a photocopy of the registered title, with no mention of any demand for payment to be made by the plaintiff. S/N Qc1igW/Qkmc/FfxeKpCjg Page 15 of 18 [68] There is no demand made before commencement of this suit, for a payment which appears not even made by the defendant in the first place. [69] There must be an explanation in a full trial, as to who Terra Mirus Sdn Bhd is and why it made such payment and why Terra Mirus never claimed from the plaintiff itself. [70] In respect of the cost of RPGT amounting to RM327,439.50, I find merit in the plaintiff’s contention that the defendant should be aware as to why the defendant effected the said payment. [71] Based on affidavit evidence there was some form of arrangement between the defendant and DBKL. In the affidavit filed on its behalf, the defendant did not deny that Frankie Wong who was a former director of the defendant made all the necessary arrangements and had full knowledge as to what had actually transpired and why payment was made by the defendant when it was made which was also without any assertion then that this was advanced first on behalf of the plaintiff. [72] The plaintiff had specifically identified Frankie Wong. And at the time the SPA was executed, the plaintiff was the existing beneficial owner of the Said Land. I would not outrightly reject the contention that the defendant and DBKL could have simply signed the agreement between them, without the need to bring in the plaintiff. Which in turn suggested that the defendant could have as such agreed to pay all the necessary costs for the benefit of the plaintiff. A triable issue, no less. [73] In relation to the claim for the solicitor’s fees amounting to RM140.170.20, despite the contention that the solicitors acted for the plaintiff, affidavit evidence shows that that the bill for the same dated 10 September 2014 was in fact addressed to the defendant and not the plaintiff. This bill makes absolutely no mention of the plaintiff. Again, this should properly in my view warrant explanation from the testimony of witnesses in a full trial. [74] The defendant’s counterclaim is based on the cause of action of unjust enrichment and pursuant to Section 71 of the Contracts Act

Section 71 of the said Act provides that: Obligation of person enjoying benefit of non-gratuitous act

71.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 S/N Qc1igW/Qkmc/FfxeKpCjg Page 16 of 18 to make compensation to the former in respect of, or to restore, the thing so done or delivered. [75] In a Privy Council decision in the case of Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118, Lord Upjohn held that four conditions must be satisfied to establish a claim under Section 71, in that the doing of the act or the delivery of the thing referred to in the section must be lawful, be done for another person, not be intended to be done gratuitously, and such that the other person enjoys the benefit of the act or the delivery. [76] The jurisprudence underpinning this concept was further helpfully explained by the Court of Appeal in the case of Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] 9 CLJ 1002, as follows: “[31] Section 71 is the statutory embodiment of the common law principle of quantum meruit, which provides for a just compensation as the measure of the work done as opposed to contractual damages (see: Siow Wong Fatt, Craven-Ellis v. Cannons Ltd [1936] 2 KB 403, Delpuri-Harl Corp JV Sdn Bhd v. Perbadanan Kemajuan Negeri Selangor [2014] 1 LNS 1075; Spatial Ventures Sdn Bhd v. Twintech Holdings Sdn Bhd [2013] 1 LNS 729; [2014] 8 MLJ 14). [32] Liability under s. 71 is not based on any existing contract between the parties. Rather it is based on the equitable principle of conscionable conduct and restitution to prevent unjust enrichment by one party at the expense of another party (see: Ramkrishna Shankarrao v. Rangoobai and anr AIR 1959 Bom 519; (1958) 60 BOMLR 459, Abu Mohammed v. Mohammed Kunju Lebba (1995) DMC 316 and Pallonjee Eduljee and Sons v. the Lonavala City Municipality AIR 1937 Bom 417; ; (1937) 39 BOMLR 835)”. [77] As for unjust enrichment, the Federal Court in the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 also held the following: “[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”. [78] These requirements in respect of proof of unjust enrichment and Section 71 action must be established by the defendant on a balance or probabilities. On the facts of the instant case, particularly in light of the issues raised by the plaintiff which are triable in nature, the defendant have not been able to do so by way of a summary proceedings. [79] I can also do no better that echo what had been said by Hashim Yeop A Sani SCJ in Malaysian Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 held the following: “The underlying philosophy in the Order 14 provision is to prevent a plaintiff clearly entitled to the money from being delayed his judgment where there is no fairly arguable defence to the claim. The provision should only be applied to cases where there is no reasonable doubt that the plaintiff is entitled to judgment. Order 14 is not intended to shut out a defendant. The jurisdiction should only be exercised in very clear cases”. Conclusions & Decision [80] As such, it is my findings that in respect of the counterclaims, on the cost of relocation there is an issue whether the receipts exhibited are wholly concerning the relocation cost and especially since the defendant only denied after the plaintiff claimed the defendant had made the payment voluntarily without being requested by the plaintiff. Further, relevant stamp duty documentation showed that payment was made by an entity other than the defendant. The defendant also did not respond to the plaintiff’s claim that a director of the defendant had willingly made a payment without any request by the plaintiff, but instead the defendant now contended that the defendant had made those as advance payments. The same goes for the claims on RPGT and legal costs where the defendant stated that this was merely an advance payment without addressing the plaintiff's claim that among others, the defendant's directors had made such payments on their own initiative, voluntarily. [81] Moreover, despite the defendant now claiming to have paid in respect of pre-condition clauses in the agreement, in advance payment S/N Qc1igW/Qkmc/FfxeKpCjg Page 18 of 18 on behalf of the plaintiff, the defendant still issued the cheque for over RM882,000 in the name of the plaintiff, which was later retracted. [82] As there are triable issue here, including the primary question as to why the defendant made those payments when the agreements required the plaintiff to do so, summary judgment in my view is not justified. This appeal for the application for a summary judgment be entered on the defendant’s counterclaim against the plaintiff in enclosure 7 is therefore dismissed, with costs to the plaintiff. Bertarikh pada 20 Mac 2022 (MOHD NAZLAN BIN MOHD GHAZALI) Hakim Mahkamah Tinggi Mahkamah Tinggi Sivil NCVC 2 Kuala Lumpur Peguam-Peguam: Peguam bagi pihak Plaintif Abd Shukor Tokachil Tetuan Shukor & Associates Kuala Lumpur Peguam bagi pihak Defendan Justin Voon bersama Iris Lim