TAN KIM LIN (No. K/P: 681017-10-6036) WANG SING FOE (No. Passport: E3723252N)

TAN KIM LIN (No. K/P: 681017-10-6036) WANG SING FOE (No. Passport: E3723252N)

The Tripartite Agreement conferred an irrevocable credit for a specific purpose contingent on the 2nd Defendant selecting a property and the parties entering a construction management agreement; the 2nd Defendant did not select a property, did not enter the required agreement and instead entered a separate supplementary agreement with Terra Firma to receive payments including the plaintiff's credit, amounting to a total failure of consideration by the 2nd Defendant and entitling the plaintiff to recovery of CAD146,920.00; the 2nd Defendant failed to prove her counterclaim on the balance of probabilities.

Citation
WA-12BNCC-17-08/2019 (Mahkamah Tinggi)
Parties
2nd Defendant / Appellant: Tan Kim Lin; Plaintiff / Respondent: Wang Sing Foe; 1st Defendant / Co Defendant: TFDC Asiacorp Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
13 December 2019
Case Number
WA-12BNCC-17-08/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Sessions Court (commercial Division) / High Court Judgment on Appeal
Outcome
Appeal dismissed; Sessions Court judgment upheld.
Legal Topics
Total Failure of Consideration, Money Had and Received, Unjust Enrichment, Pleading Requirements, Burden of Proof on Counterclaimant
Source Language
Malay/English
Contract Law Restitution / Quasi Contract Commercial Law Civil Procedure Total Failure of Consideration Money Had and Received Unjust Enrichment Pleading Requirements +1 more

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Parties

Tan Kim Lin

2nd Defendant / Appellant

Wang Sing Foe

Plaintiff / Respondent

TFDC Asiacorp Berhad

1st Defendant / Co Defendant

Procedural Posture

Civil Appeal From Sessions Court (commercial Division) / High Court Judgment on Appeal

Legal Issues

  1. 1 Whether the Tripartite Agreement created an enforceable obligation and whether conditions precedent existed
  2. 2 Whether the 2nd Defendant's conduct amounted to total failure of consideration justifying restitution (money had and received)
  3. 3 Whether the 2nd Defendant was unjustly enriched by payments from Terra Firma inclusive of the plaintiff's credit

Ratio Decidendi

The Tripartite Agreement conferred an irrevocable credit for a specific purpose contingent on the 2nd Defendant selecting a property and the parties entering a construction management agreement; the 2nd Defendant did not select a property, did not enter the required agreement and instead entered a separate supplementary agreement with Terra Firma to receive payments including the plaintiff's credit, amounting to a total failure of consideration by the 2nd Defendant and entitling the plaintiff to recovery of CAD146,920.00; the 2nd Defendant failed to prove her counterclaim on the balance of probabilities.

Court Disposition

Appeal dismissed; Sessions Court judgment upheld.

Orders

  • Appeal dismissed with costs
  • Judgment entered for plaintiff in the sum CAD146,920.00 (or equivalent in Malaysian Ringgit) jointly against the 1st and 2nd Defendants