Ong Lay Kiong (Australian passport No E 4096543) 1. Sivarajan s/o Boominathan (IC No 790721-07-5467) 2. Gaanapathy s/o Ramakrishnan (IC No: 801026-07-5159)

Ong Lay Kiong (Australian passport No E 4096543) 1. Sivarajan s/o Boominathan (IC No 790721-07-5467) 2. Gaanapathy s/o Ramakrishnan (IC No: 801026-07-5159)

On the totality of evidence the court found the third sale and purchase agreement to be a sham disguising a money‑lending transaction because contractual terms were inconsistent, not performed and payments were handled outside normal conveyancing channels; accordingly the declaration nullifying that agreement (Suit No. 75) was justified on balance of probabilities, while there was insufficient evidence of fraud against Ong in Suit No. 198 and no award of damages.

Citation
PA-22NCvC-198-12/2018 (Mahkamah Tinggi)
Parties
Plaintiff (suit No. 198): Ong Lay Kiong; Defendant 1 (suit No. 198); Plaintiff (suit No. 75): Sivarajan s/o Boominathan; Defendant 2 (suits No. 198 and 75): Gaanapathy a/l Ramakrishnan
Court
High Court
Jurisdiction
Malaysia
Judgment Date
2 March 2020
Case Number
PA-22NCvC-198-12/2018 (Mahkamah Tinggi)
Procedural Posture
Civil Actions Seeking Declaratory Relief and Damages Arising From Property/trust Dispute / Judgment After Full Trial (concurrent Hearing of Two Suits)
Outcome
Judgment entered finding the third S&P was a sham; declaration granted in Suit No. 75; limited relief in Suit No. 198 with costs against Gaanapathy; no damages awarded to Ong.
Legal Topics
Sham Transactions, Disguised Loan, Declaratory Relief, Caveat, Costs, Assessment of Damages
Source Language
Malay/English
Property Law Trusts and Equity Contract Law Civil Procedure Sham Transactions Disguised Loan Declaratory Relief Caveat +2 more

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Parties

Ong Lay Kiong

Plaintiff (suit No. 198)

Sivarajan s/o Boominathan

Defendant 1 (suit No. 198); Plaintiff (suit No. 75)

Gaanapathy a/l Ramakrishnan

Defendant 2 (suits No. 198 and 75)

Procedural Posture

Civil Actions Seeking Declaratory Relief and Damages Arising From Property/trust Dispute / Judgment After Full Trial (concurrent Hearing of Two Suits)

Legal Issues

  1. 1 Whether the sale and purchase agreement dated 25.9.2016/25.9.2017 was a sham disguising a money‑lending transaction
  2. 2 Whether Sivarajan had authority to sell the trust property
  3. 3 Whether assessment of damages should be awarded against Sivarajan and Gaanapathy

Ratio Decidendi

On the totality of evidence the court found the third sale and purchase agreement to be a sham disguising a money‑lending transaction because contractual terms were inconsistent, not performed and payments were handled outside normal conveyancing channels; accordingly the declaration nullifying that agreement (Suit No. 75) was justified on balance of probabilities, while there was insufficient evidence of fraud against Ong in Suit No. 198 and no award of damages.

Court Disposition

Judgment entered finding the third S&P was a sham; declaration granted in Suit No. 75; limited relief in Suit No. 198 with costs against Gaanapathy; no damages awarded to Ong.

Orders

  • In Suit No. 198 only Prayer (4) in Enclosure 50 is allowed with costs against Gaanapathy; no order as to costs against Sivarajan.
  • In Suit No. 75 only Prayer (1) in the Statement of Claim is allowed with costs.