UNI CONSTRUCTION & REALTY SDN BHD 1. ) FANG MENG KONG 2. ) INTERNATIONAL CONSTRUCTION & CIVIL ENGINEERING SDN BHD

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR SUIT NO. WA-22NCvC-468-08/2020 Between UNI CONSTRUCTION & REALTY SDN BHD ... Plaintiff And 1. FANG MENG KONG 2. INTERNATIONAL CONSTRUCTION & CIVIL ENGINEERING SDN BHD ... Defendants GROUNDS OF DECISION Introduction 1. The Plaintiff (“P”) filed an application vide Enclosure 9 (“Ene 9”) for the determination of certain preliminary questions of law. Enc 9 was made under Order 14A (“O.14A”) and/or Order 33 rule 2 of the Rules of Court 2012 (“ROC”). 2. 0.14A enables the court to “determine any question of law or construction of any document” where it appears to the court that “such question is suitable for determination without the full trial of the action” and “such determination will finally determine the entire cause or matter or any claim or issue therein”. |t is designed to expedite the disposal of an action at interlocutory stage in order to save costs and time. (See the Court of Appeal case of Petroleum National Bhd v Kerajaan Negeri Terengganu & Another Appeal [2003] 4 CLJ 337 at 349-3571). 3. 1am satisfied that the questions posed in Enc 9 are questions of law. The said questions of law are a dominant feature of the instant suit. If decided in favour of P, it would effectively determine the entire action. In my view, this suit can properly be disposed of without viva voce evidence or a full trial. 4. The 1% Defendant (“D1”) agreed to this action being disposed of via an O.14A process. The 2" Defendant (“D2”) (In Liquidation) is named as a nominal defendant in this suit. | proceeded to hear Enc 9 and answered the questions posed therein in the manner described below. Background 5. On 30.5.1997, D1 purchased a three storey shop office measuring approximately 4,950.30 square feet held under title H.S.(D) No. 111016, PT No. 32925, Pekan Baru Subang, Daerah Petaling, Selangor (“Property”) at a purchase price of RM440,000. 6. The Property is part of a commercial development project comprising 59 units of three-storey shop offices at Pekan Baru Subang (‘Project’). The developer of the Project was one Kumpulan Bumiklas Sdn Bhd (In Liquidation) (“Developer’). 7. The construction of the Project commenced in 1996, but was abandoned in 2004. Although the Project was uncompleted in 2004, for reasons unknown to P, the title to the Property was subdivided and subsequently transferred to D1 on 10.7.2001. 8. The Developer was wound up by an order of court dated 19.11.2007. Following the Developer's winding-up, the Project and the Property were left idle between the years 2007 up to 2013. 9. After the Project had been left abandoned for about 9 years, a Scheme of Arrangement was sanctioned by the High Court on 19.3.2013 (“Scheme”). Pursuant to the Scheme, D2 was appointed as the proverbial ‘White Knight’ to complete the construction work of the Project at RM58.60 per square foot. 10. The funding requirements for the formulation of the Scheme and construction work of the Project was provided by P. In the Scheme, P was named as the ‘White Knight’s Funder’. 11. P provided the requisite financing to rehabilitate and complete the Project, which included the Property. P avers that its involvement in the funding of the Project was necessary in order for D2 to carry out its obligation as the ‘White Knight’. This is because D2 was a relatively new construction company without the requisite financial muscle to complete the rehabilitation of the Project on its own. 12. The projected top up construction sum in relation to the Property was RM290,087.58. This construction cost was based on 4,950.30 square feet (i.e. the area of the Property) multiplied by RM58.60 per square foot. 13. Under the Scheme, the purchasers of units in the Project had to comply with the criteria below: (a) pay the construction cost (top-up sum) for their particular unit within the stipulated timeframe; or (b) for units in which the ownership remained unverified by the liquidators of the Developer, obtain a court order confirming their ownership of the same; failing which these purchasers would be declared as ‘Non-Participating Purchasers’. And their units would be declared as ‘Non-Participating Units’. 14. Pursuant to the Scheme, D2 and/or P would acquire the rights to purchase the Non-Participating Units from the Non-Participating Purchasers at a purchase consideration of RM1.10 for every RM1.00 paid. 15. On 12.8.2014, D2 and P completed the rehabilitation of the Project (including the Property), and obtained a Certificate of Completion and Compliance from Majlis Bandaraya Shah Alam. 16. At all material times, D1 was aware of the rehabilitation and construction of the Project and the Property carried out by D2 and P. Various reminders were sent to D1 to pay up the construction cost as per the terms of the Scheme. ~~ eee 17. Due to D1’s refusal to pay the construction cost in time, D1 was declared as a Non-Participating Purchaser in November 2014. The Property belonging to D1 was declared as a Non-Participating Unit. Shah Alam High Court suit 18. Thereafter, P commenced proceedings against D1 and certain other purchasers in Shah Alam High Court Originating Summons No. BA- 24NCC-16-02/2016 (“SP Suit”). Vide the SP Suit, P sought to enforce the terms of the Scheme against D1, and to compel the transfer of the Property to P. 19. Inthe SP Suit, P sought the following reliefs against D1: “ (2) A declaration that the 1° — 6 Defendants to be deemed as Non- Participating Purchasers pursuant to the Scheme of Arrangement (‘Scheme’) as set out in the Explanatory Statement as annexed herein and marked as Schedule ‘A’ for failing to settle the Construction Costs for their respective Units within 21 days after the issuance of the Certificate of Completion and Compliance; (3) Consequent fo (2) above, subject to international Construction and Civil Engineering Sdn Bhd (“the White Knight”) [i.e. D2 herein] making payment of RM1.10 to a ringgit upon final verification of the principal sum paid towards the units purchased by the 1%t — 6!" Defendants as at the winding up date of the 7 Defendant [i.e. the Developer]:- (i) |The 18* Defendant [i.e. D1 herein] shall execute all such documents necessary for the purpose of transferring all that unit of a three storey shop office known as Unit No. P.T 32925 measuring approximately 4,950.30 square feet in area and held under H.S.(D) 111016, P.T. 32925 Pekan Baru Subang, Daerah Petaling, Negeri Selangor (“Unit No. PT 32925”) to the Plaintiff [i.e. P herein] and deliver the same together with the original issue document of title to the Plaintiff's solicitors within 14 days from the service of the Order,” 20. The SP Suit was short lived as the Shah Alam High Court on 6.4.2017 allowed a striking out application filed by inter alia D1 (“HC Decision’). In his Grounds of Judgment dated 6.4.2017, the learned High Court judge found that P did not have locus standi and there was no nexus between P and D1. 21. The relevant portion of the Grounds of Judgment pertaining to D1 reads: “[38] With regards to the 1st Defendant's position, | am agreeable with the Plaintiff submission that he is the Purchaser as defined under the Explanatory Statement in the Scheme however | am more agreeable to the 2" Defendant’s counsel submission thought not for the 1st Defendant, that as the Plaintiffs derived it cause of action from the Explanatory Statement and the Specific Power of Attorney under the Scheme which was endorsed by the court under the 2" Order, the Plaintiff should have to go back to the same court who granted the 2" Order. [89] The law is trite that under the provision of section 176 of the Companies Act 1965, the scheme approved by the majority binds the minority. The Plaintiff here is neither a member of the majority nor minority. In this instance, only the party to the 2°? Order have right to apply to the Court. [40] It is maintained by the Plaintiff that it is empowered by the specific Power of Attorney to claim the Construction Cost from the Defendants, however | am agreeable with the 24 Defendant's counsel submission at paragraphs 20, 21 and 22 that there is no evidence of any formal and or legal assignment between ICEM and the Plaintiff. | find the Plaintiff lack of locus and there was no nexus between the Plaintiff and the 1%‘ Defendant.” 22. From the Grounds of Judgment, it is evident that the SP Suit was struck out as against D1 premised on P’s lack of locus standi. As such, the terms of the Scheme were not enforceable by P against D1. Plaintiff's case————— 23. P avers that it is now placed at an unfair disadvantage due to the HC Decision. The HC Decision has caused the terms of the Scheme to be unenforceable against D1, despite the work done by P in completing and rehabilitating the Project and the Property. 24. P alleges that as a result of its work, the estimated current market value of Property, after completion and rehabilitation, stands at approximately RM1.5 million. This represents an unjustly retained benefit of approximately RM1,060,000 to D1 (i.e. RM1.5 million less the RM440,000 purchase price). 25. P says that the HC Decision had also placed D1 in an unfair advantage over other Non-Participating Purchasers of the Project. The other Non-Participating Purchasers of the Project were compelled to surrender their respective units in accordance with the terms of the Scheme. 26. In the Statement of Claim dated 11.8.2020, P prayed for the following relief against D1. Restitution in the sum of RM1,060,000 (i.e. RM1.5 million less the RM440,000 purchase price). Alternatively the sum of RM290,087.58, being the construction cost attributable to the Property. 1*t Defendant’s case 27. In his Statement of Defence, D1 pleaded the following defences: (a) Res judicata. P had previously filed the SP Suit against D1 and certain other purchasers. The SP Suit was struck out by the Shah Alam High Court. The Court of Appeal upheld the striking out order of the High Court. P then applied to the Federal Court for leave to appeal, but leave was not granted by the Federal Court. (b) This suit is in respect of the same Property as in the SP Suit and is an abuse of process of court. (c) This action is tantamount to making claims in instalment. (d) There is no privity of contract between P and D1. There is no nexus between P and D7 in relation to the Property. P has no locus to bring this action against D1. (e) This claim is against public policy. If allowed, all contractors engaged by the developer and not paid by the developer can sue the purchaser for the construction cost. (f) This claim is time barred. Decision 28. Vide Enc 9, P posed 4 questions for determination. My corresponding answers are as follows: (a) Whether D1 has been unjustly enriched by the rehabilitation and completion of the Project and the Property by D2 and P; Answer: Yes. “(by Whether the HC Decision in the SP Suit gives rise to res judicata; ~~~" Answer: No. (c) Whether the action herein amounts to a claim made in instalments, and if so, the effect thereof, Answer: No. (d) Whether the claim is time-barred. Answer: No. 29. Based on my answers, | allowed P’s claim. | entered judgment in favour of P for the sum of RM290,087.58, being the construction cost attributable to the Property. As prayed for in paragraph 33(b) of the Statement of Claim. My reasons are as follows. 30. P did not produce any evidence regarding the purported market value of the Property. The averment that the current indicative value of the Property is RM1.5 million is a bare assertion. Thus, | was not inclined to award the sum of RM1,060,000, as prayed for in in paragraph 33(a) of the Statement of Claim. Question 1 — 1% Defendant has been unjustly enriched 31. | begin by addressing the issue of whether P’s claim of unjust enrichment is barred by the absence of privity of contract or lack of locus standi. My answer to this is no. 32. | am of the opinion that P has the requisite locus standi to commence this action against D1. As privity of contract is not a prerequisite for P to seek relief in the form of unjust enrichment or quantum meruit damages from D1. 33. D1’s argument that there must be privity of contract for P to pursue a claim for unjust enrichment is misconceived. Unjust enrichment is a cause of action which stands independenily of the law of contract. 34. Unjust enrichment describes a cause of action. Restitution describes a remedy. The right to the remedy of restitution is founded on the law of unjust enrichment, which fall outside the domains of contract. 35. This was recognised by the Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441. The Court said (at page 480): ‘[110] Restitution simply means that a party who has received a benefit must restore the benefit received by him. The theoretical foundation of the right to restitution remedy as it is understood today is that it is founded on the law of unjust enrichment which fall outside the domains of contract and tort. The law of contract/ort and the law of unjust enrichment are conceptually distinct. Unjust enrichment describes a cause of action. On the other hand restitution describes a remedy. Restitution as a response to wrongdoing is therefore a different topic from restitution as a response to unjust enrichment (see Goff & Jones on The Law of Unjust Enrichment para 1-04). The courts have found it necessary to make available, independent of the law of contract and civil wrongs, for the restoration of benefits on the ground of unjust enrichment.” 36. In Dream Property (supra), the Federal Court went on to explain that a cause of action in unjust enrichment can give rise to a right of restitution where it is established that: (a) the defendant has been enriched; (b) the enrichment was gained at the plaintiff's expense; (c) the retention of the benefit by the defendant was unjust; and (d) there is no defence available to extinguish or reduce the defendant's liability to make restitution. 10 37. That D1 was exonerated from compliance with the Scheme by virtue of the HC Decision, does not prevent P from pursuing the fruits of its labour expended into the Project and the Property. P is entitled to rely on section 71 of the Contracts Act 1950, as pleaded in paragraph 32 of the Statement of Claim. 38. Section 71 of the Contracts Act 1950 reads: “71 Obligation of person enjoying benefit of non-gratuitous act 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 to make compensation to the former in respect of, or to restore, the thing so done or delivered.” 39. The rationale of section 71 of the Contracts Act 1950 was explained in the Court of Appeal case of Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] 9 CLJ 1002. The Court said (at page 1020-1021): 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 ... [32] Liability under section 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”. 40. The Court of Appeal case of Kraas Solutions Sdn Bhd v Konsesi Kota Permatamas Sdn Bhd [2018] 6 MLJ 202 is instructive. The Court said (at page 220): ‘[64] ... Section 71 is precisely to facilitate recovery against a party with whom there is no contractual relationship but who has nevertheless received the 11 benefit of the appellant’s lawful act which was never intended to be done gratuitously.” 41. P’s claim under section 71 of the Contracts Act 1950 does not require any privity of contract between P and D1. P is entitled to restitution for the work done in rehabilitating the Project and the Property. Given that the benefit of P’s work is with D1, for which P never received any compensation from D1. The benefit of the rehabilitated and completed Property now enjoyed by D1, was derived at the cost and expense of P. Thus, D1 may be said to have been unjustly enriched. (See the Court of Appeal case of Mega Mayang M & E Sdn Bhd v Utama Lodge Sdn Bhd & another appeal (2018) MLJU 1323). 42. P’s stance is supported by D2. In its Statement of Defence, D2 pleaded that as funder of the Project, P has vested interest under the Scheme upon which P derives the right to bring this action. It does not therefore now lie in the mouth of D1 to challenge P’s locus, since D2 is a party to the instant suit and takes a common position with P. Thus, P has the necessary locus standi to institute this suit. 43. D1 has now obtained the incontrovertible benefit of a fully completed Property under the Project. This was obtained at the expense of P, who provided the funding to enable the rehabilitation and completion of the Project and the Property. Evidently, P never ‘intended to do so gratuitously. P’s provision of financial assistance for the construction and completion of the Project and the Property has benefited D1 in the form of the value of the Property. 12 44. In the circumstances, D1 has been unjustly enriched as he has now obtained the benefit of a greatly improved and enhanced Property at the expense and efforts of P without paying for the same. It is therefore unjust for D1 to retain such benefit or enrichment for free. Question 2 — Res judicata does not apply 45. P’s cause of action in the instant suit is founded on unjust enrichment. This is a separate and distinct cause of action from the proceedings in the SP Suit, which led to the HC Decision. As such, it is my opinion that res judicata does not apply. 46. In Sykt Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor [2019] MLJU 79, the Federal Court examined what is involved in the burden of showing res judicata. The Court referred to the elements which constitute res judicata as being: (a) the decision was judicial in the relevant sense; (b) it was in fact pronounced; (c) the tribunal had jurisdiction over the parties and the subject matter; (d) the decision was final and on the merits; (e) it determined the same questions as that raised in the later question; and 13 (f) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem. 47. The SP Suit was mounted by P to enforce the terms of the Scheme against D1 and certain other purchasers. The SP Suit failed when the HC Decision pronounced that D1 was not bound by the terms of the Scheme, thus allowing D1 to retain the benefit of the Property. 48. Conirariwise, in the present suit, P does not seek to enforce the Scheme against D1. Instead, P’s claim herein lies in the equitable relief of restitution premised on unjust enrichment. This is conceptually different from the attempted enforcement of the Scheme. 49. It seems to me that the questions or issues to be determined in the instant case will not conflict with or override the previous HC Decision, which are altogether distinct and separate. In my opinion, the cause of action herein only arose as a result of the HC Decision. Which allowed D1 to retain the rehabilitated Property and had placed P in a disadvantageous position. 50. The cause of action herein, i.e. unjust enrichment, is totally different from the SP Suit. It could not have been raised or decided earlier in the SP Suit, simply because the issue did not exist then: 51. As stated by the Federal Court in Sykt Sebati (supra): “[52] In the premises, the learned judge was correct fo hold that “... the issue of res judicata does not apply as the cause of action is totally different and has not been decided earlier simply because the issue did not exist earlier.” 14 [53] The issue of compensation arose only after the issuance of letter of termination by the defendants which letter was issued only after Civil Suit 136 had been disposed of.” 52. The doctrine of res judicata means that a final decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation, and over the parties thereto, disposes once and for all of the matters decided. So that they cannot afterwards be raised for relitigation between the same parties or their privies. 53. In the present case however, the plea of res judicata cannot apply as the law to be applied here (i.e. the law of unjust enrichment) is different from the law that was applied in the SP Suit (ie. the law relating to the Scheme and striking out). The cause of action and the issues too are different. Furthermore, the prayers sought in the SP Suit were different from that of the instant case. As such, D1 cannot be said to be ‘vexed twice for the same cause’. (See the High Court case of Chan Yuow Seng v Ling Ong Hua (1995) 2 MLJ 580 at 585). 54. As the present claim of unjust enrichment is a cause of action which arose after the HC Decision, res judicata does not bite. Despite the instant suit involving similar parties, and a co-relation between the factual background here with that narrated in the SP Suit, the cause of action and issues to be determined herein arose only as a result of the HC Decision. Therefore, the relief of unjust enrichment and restitution could not possibly have been included by P in the SP Suit. 55. Furthermore, the HC Decision is a striking out order based on an interlocutory application. As such, there was no final decision on the merits of the case. The questions or issues raised in the instant suit were 15 not dealt with in a full and final manner in the SP Suit. In view thereof, res judicata does not apply. 56. | am guided by the Court of Appeal case of Metroplex Holdings Sdn Bhd v Commerce International Merchant Bankers Bhd [2013] 8 CLJ 329. The Court said (at page 349): ‘[47] ... it must not be forgotten that res judicata only arises from a judgment obtained on the merits. And that no estoppel would arise from a final order which is not a judgment ... An interlocutory order ... and an order which requires further action before it is enforceable ... are not final orders. Likewise here, the order for sale made pursuant fo s. 256 of the NLC is open to challenge by the appellant by way of a collateral proceeding as reflected in the current suit. We wish to add that interlocutory orders on matters of practice and procedure do not give rise to res judicata estoppels. And subject to the restraints of the abuse of process doctrine, a second application may be brought by the aggrieved party to set aside a default judgment, or to obtain an extension of the limitation period.” 57. | rely on the Federal Court case of Ali bin Tan Sri Abdul Kadir & Ors v Simpang Empat Plantation Sdn Bhd [2008] 4 MLJ 813. The Court said (at page 826): [22] So, the decision of this court then was based on the facts and circumstances of the case before the court then and relevant for the determination of the issue raised in the preliminary objection. It was not a ‘final judgment’ after a full trial of the suit that would close any attempt to relitigate. All that the court said was that based on the facts and circumstance then before the court the directors —-————--——had-not-shown-that-they-had-satisfied-the-requirements-laid-down-by-the-court- — The action was dismissed on the issue of locus standi alone, even then not because there was an absolute prohibition on the directors from bringing an action, but because they, then, had not satisfied the conditions to justify them to do so. [23] That being so, in my view, there is nothing to prevent the directors from bringing another action.” 16 58. Similarly here, there is nothing to prevent P from bringing another action. As it has now done via this instant suit. Given that the previous SP Suit was struck out on the issue of locus standi. Question 3 — Plaintiff's claim is not made in instalment 59. For the reasons explained above, P’s action herein does not amount to a claim made in instalment. Notwithstanding that the instant suit involves the same Property, common parties and similar set of background facts. The cause of action here, i.e. unjust enrichment, arose as a result of the HC Decision. Thus, the present claim for restitution could not possibly have been included by P in the previous SP Suit. 60. Clearly, this is not an instance of P making claims in instalment to suit its convenience. Nor relitigating its cause for the same relief, in respect of which a judgment based on merits had been obtained. The present suit is not an abuse of the process of court. Question 4 — Plaintiff's claim is not time barred 61. Statutes of limitation do not begin to operate unless a cause of action becomes vested in the plaintiff. (See the Court of Appeal case of Sia Siew Hong & Ors v Lim Gim Chian & Anor (1995) 3 MLJ 141 at 151). 62. My view is that P’s cause of action (based on unjust enrichment), only arose when the HC Decision was delivered on 6.4.2017. It was then that D1 was enriched or the ground of restitution was established. 17 63. | refer to the High Court case of Madu Jaya Development Sdn Bhd v Kosbina Konsult (K) Sdn Bhd (2017) MLJU 1517 which said: ‘[114] The cause of action in unjust enrichment would arise differently from that of a breach of contract. In a case of a breach of contract the cause of action would have arisen from the date of breach of contract. [115] The cause of action in unjust enrichment would arise from the date the Defendant here is enriched. [121] The learned author Low Weng Tchung in his book ‘The Law of Restitution and Unjust Enrichment in Malaysia’ ... also opined as follows ... : The better view is that a claim for restitution accrues at the date when the enrichment is received or the date the ground of restitution is established, whichever is latter.” 64. To my mind, when the SP Suit to enforce the Scheme against D1 failed, P’s cause of action for unjust enrichment then arose. As the effect of the HC Decision was to allow D1 to retain the benefit of the Property at the cost and expense of P. It was only upon the pronouncement of the HC Decision, could the cause of action herein be conceived against D1. 65. | am of the view that 6.4.2017, being the date of the HC Decision which allowed D1 to retain the Property, is the date on which the cause of action for unjust enrichment vested in P. The Statement of Claim was filed on 11.8.2020, well within the 6 years limitation period which began to run from the date of the HC Decision on 6.4.2017. Accordingly, P’s claim is not time barred. 66. Paragraph 14 of D1’s Statement of Defence simply states: “14. The Plaintiffs claim against the 1% Defendant is time barred.” 18 67. Absent is any reference to specific dates or time periods. It is a bare assertion. The applicable dates or time periods going towards computation of the limitation period were not pleaded. 68. The affidavit that was filed by D1 in connection with Enc 9 is not any more enlightening. Paragraph 16 of D1’s affidavit affirmed on 22.12.2020 merely says: “16. | state that the Plaintiff's claim against me is time barred.” 69. When did the 6 years limitation period begin to run, according to D1? | am left to speculate as to what is envisaged by D1. Perhaps two possible dates. 70. First, the date of the sale and purchase agreement entered into by Di in respect of the purchase of the Property. Namely 30.5.1997. This date, in my view, is not applicable because P’s claim herein is not founded on contract or on that sale and purchase agreement. 71. Second, the date of the Certificate of Completion and Compliance in respect of the Property. Namely 12.8.2014. If so, the 6 years limitation period stipulated in section 6 of the Limitation Act 1953 will expire on 11.8.2020. The Statement of Claim was filed on 11.8.2020. It would siill be within time. 72. Moreover, any limitation period expiring in August 2020 is displaced by section 12 of the ‘Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020’ (“Covid-19 Act’). Section 12 of the Covid-19 Act reads: 19 “Any limitation period specified in section 6 of the Limitation Act 1953 which expires during the period from 18 March 2020 to 31 August 2020 shall be extended to 31 December 2020.” 73. If D1 is saying that limitation sets in on 11.8.2020, that limitation period was extended to 31.12.2020 by virtue of the Covid-19 Act. P’s claim, filed on 11.8.2020, is still within the extended limitation period of 31.12.2020. D1’s defence of limitation therefore fails. 74. In any event, | am of the view that the date of issuance of the Certificate of Completion and Compliance is irrelevant to the determination of P’s accrual of the cause of action herein. The present suit of unjust enrichment cannot be equated to that of a right of action for payment in relation to work done in respect of a construction contract, where such right accrues when the certificate of completion is issued. Contractual claims have no relevance in the instant suit. Public policy defence 75. D1 contends that P’s claim is against public policy. Paragraph 13 of his Statement of Defence reads: “13. The claim against the 1%‘ Defendant is contrary to public policy. If this claim is allowed all contractors engaged by the developer and not paid by the developer can sue the purchaser for the construction cost.” 76. It is unclear who are the ‘contractors’, ‘developer’ and ‘purchaser’ referred to by D1. Perhaps D1 means ‘contractors’, ‘developer’ and ‘purchaser’ generally in property development projects. However, no evidence was adduced by D1 at all in this regard. 20 77. This contention is devoid of merit. | do not see any public policy concern here. | fail to understand how allowing P’s claim will lead to a slew of claims by contractors engaged by developers against purchasers for the construction cost. 78. Moreover, this is a claim by a ‘White Knight’s Funder’ in the context of a scheme of arrangement. The underlying facts regarding the Scheme and the HC Decision are peculiar to the present claim. It cannot be compared to one of a contractor suing a purchaser for recovery of sums owing by the developer. 79. My decision is based purely on the facts and circumstances of this case. It does not purport to set any precedent of general application or lay down any principle of law relating to claims by contractors in property development projecis. Conclusion 80. For the reasons above, | answered the questions posed vide Enc 9 in favour of P. | entered judgment in favour of P for the sum of RM290,087.58. | ordered D1 to pay costs of RM5,000 to P. - Dated 3 May 2021 © RL Quay Chew Soon Judicial Commissioner High Court of Malaya, Kuala Lumpur Civil Division NCvC 10 21 Counsels Kelly Khoo (Messrs Malis & Khoo) for the Plaintiff. R.S. Sodhi (Messrs Sodhi Chambers) for the 1° Defendant. Mr Ho Kok Yew (Messrs Ho Kok Yew) for the 2°¢ Defendant. Cases cited Petroleum National Bhd v Kerajaan Negeri Terengganu & Another Appeal [2003] 4 CLJ 337 Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] 9 CLJ 1002 Kraas Solutions Sdn Bhd v Konsesi Kota Permatamas Sdn Bhd [2018] 6 MLJ 202 Mega Mayang M & E Sdn Bhd v Utama Lodge Sdn Bhd & another appeal (2018) MLJU 1323 Sykt Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor [2019] MLJU 79 Chan Yuow Seng v Ling Ong Hua (1995) 2 MLJ 580 Metroplex Holdings Sdn Bhd v Commerce International Merchant Bankers Bhd [2013] 8 CLJ 329 Ali bin Tan Sri Abdul Kadir & Ors v Simpang Empat Plantation Sdn Bhd [2008] 4 MLJ 813 Sia Siew Hong & Ors v Lim Gim Chian & Anor (1995) 3 MLJ 141 Madu Jaya Development Sdn Bhd v Kosbina Konsult (K) Sdn Bhd (2017) MLJU 1517 Legislation cited Order 14A and Order 33 rule 2 of the Rules of Court 2012 Section 71 of the Contracts Act 1950 Section 6 of the Limitation Act 1953 Section 12 of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020 22