Clju 2024 24 BC10027

[2024] CLJU 24 Legal Network Series
DALAM MAHKAMAH TINGGI DI PULAU PINANG

NEGERI PULAU PINANG
[GUAMAN SIVIL NO PA-22NCvC-150-11/2022]
ANTARA
TANG YOKE LIN

(NO. K/P: 690607-08-5620) ... PLAINTIF
DAN
1. LIM SENG CHIEW

(NO. K/P: 730712-07-5399)
2. CH’NG EWE GHEE

(NO. K/P: 660616-07-5865)
3. LIM PHAIK LEAN

(NO. K/P: 660111-07-5608)
4. CH’NG WEI YING

(NO. K/P: 940107-07-5804) ... DEFENDAN-DEFENDAN
GROUNDS OF JUDGMENT
Introduction/The Claims
[1] The Plaintiff was the previous registered owner of a property in

PN 9266, Lot No. 3246, Seksyen 1, Bandar Tanjong Tokong,
Daerah Timur Laut, Negeri Pulau Pinang (hereinafter referred to
as the “said property”). The Plaintiff then entered into a sale and
purchase agreement on 7 th January 2019 and the said property
was subsequently transferred in the name of the 1 st Defendant.
The said property is currently registered in the names of the 2 nd
to 4 th Defendants pursuant to the sale and purchase agreement
dated 16 th August 2022 between them and the 1 st Defendant.
1
This is yet another case where the Plaintiff is seeking to recover

the said property on the basis that the sale and purchase
agreement with the 1 st Defendant is null and void as it was in
furtherance of an illegal moneylending transaction.
[2] Through her amended Statement of Claim, the Plaintiff contends

that there was an illegal moneylending transaction whereby a
sum of RM470,000.00 with interest of RM23,500.00 per month
was agreed upon with sums being disbursed to the Plaintiff ’s
husband’s company known as Lam Loong Photo House Sdn Bhd
(hereinafter referred to as “Lam Loong”).
[3] The Plaintiff further pleads fraud and/or misrepresentation and

thus seeks a declaration that she is the legal owner of the said
property and for the said property to be registered in her name
on the basis that the 2 nd to 4 th Defendants are not subsequent
bona fide purchasers for valuable consideration.
[4] The 1 st Defendant on the other hand pleads and in essence

contends that there was a proper sale and purchase agreement
and that he had used one Foo Kok Cheng, a director of DNA
Premier Consultancy Sdn Bhd as a broker for the sale and
purchase of the said property. In this regard, the 1 st Defendant
pleads that the purchase price was RM1,350,000.00 of which he
paid the Plaintiff a sum of RM 500,500.00 and subsequently
paid a further sum of RM850,000.00 to Hong Leong Islamic
Bank as the redemption sum for the said property. The 1 st
Defendant denies any knowledge of the loan and pleads that if at
all it was a loan, it was with Lam Loong and had nothing to do
with the 1 st Defendant. The 1 st Defendant pleads that any money
given by the 1 st Defendant to the Plaintiff via Lam Loong ’s
account was for the payment of the said property and nothing to
do with their loan. As such, the 1 st Defendant denies any fraud
and/or misrepresentation and puts the Plaintiff to strict proof
that there was a loan.
2
[5] The 1 st Defendant finally pleads that the subsequent sale of the
said property to the 2 nd and 4 th Defendants is valid. The 1 st
Defendant also mounts a counterclaim in the alternative in that
if the Court is minded to allow the Plaintiff’s claim, the Plaintiff
ought to return the sums of RM500,500.00 and RM850,000.00 to
the 1 st Defendant that have been allegedly paid by the 1 st
Defendant as part payment and redemption sum.
[6] The 2 nd to 4 th Defendants do not deny purchasing the said

property for a purchase price of RM1.4 million but plead that
they are subsequent bona fide purchasers for valuable
consideration and that they are still able, willing and ready to
proceed with such sale. As such, the 2 nd to 4 th Defendants
counterclaim, seeking a declaration that they are the rightful
registered owner of the said property.
[7] Having set out the claims/counterclaims, I will now set out the
chronology and background facts, the issues that arise followed
by my analysis and conclusion as to whether the Plaintiff has
succeeded in proving her claims on a balance of probabilities
and similarly to determine if the Defendants are successful in
their respective counterclaims.
Background Facts/Chronoloqy
[8] The background facts have been summarized by the Plaintiff in

their written submission and parts of the same is reproduced to
set out the chronology of the facts and the progress/timelines of
the various transactions:
Date Event
7.1.2019 A sale and purchase agreement entered between
the Plaintiff as registered owner and the 1 st
Defendant for the purported sale of the said
property for the sum of RM1,350,000.00.
3
7.1.2019 Purported Letter of Confirmation in respect of

the receipt of the full purchase price of RM
1,350,000.00 of the said property.
9.1.2019 The 1 st Defendant deposited a UOB Banker’s
cheque in the sum of RM85,500.00 and
RM300,000.00 vide cash deposit to Lam Loong.
25.2.2019 The 1 st Defendant received State consent for the
transfer of the said property.
18.10.2019 Completion date for the purported sale of the
said property.
18.11.2019 Extended completion date for the purported sale
of the said property.
2.6.2020 The 1 st Defendant’s solicitor went on to request

a fresh redemption statement from Hong Leong
Islamic Bank, the Plaintiff’s financier bank.
13.7.2020 The 1 st Defendant paid the redemption sum of
RM850,000.00 to Hong Leong Islamic Bank.
12.8.2020 The said property was transferred to the 1 st

Defendant and registered in the 1 st Defendant’s
name.
14.8.2020 The Plaintiff lodged a police report in respect of
the transfer of the said property to the 1 st
Defendant.
14.9.2020 The Plaintiff lodged a private caveat on the said
property vide presentation No.
0799B2020007096 (hereinafter referred to as
the “private caveat”).
4
12.7.2021 The Plaintiff filed an Originating Summons in

the Penang High Court vide Originating
Summons No. PA-24NCvC-442-07/2021
(hereinafter referred to as “OS 442”) to seek,
amongst others, an Order for the private caveat
to be maintained/extended.
31.1.2022 OS 442 was heard before His Lordship, Yang
Arif Dato’ Sri Tun Abd Majid bin Dato’ Haji
Tun Hamzah who then on 31 st January 2022
ordered the said private caveat to be removed.
There was no appeal against such Court Order
to remove the said private caveat.
18.6.2022 The 2 nd – 4 th Defendants signed the booking
form and paid the earnest deposit of RM
14,000.00 for the purchase of the said property.
21.6.2022 The 2 n d – 4 th Defendants conducted a land

search on the said property which reveals the
existence of the Plaintiffs private caveat.
16.7.2022 The 1 st and 2 nd Defendants executed a letter of

extension for signing the sale and purchase
agreement.
21.7.2022 The 2 nd and 4 th Defendants executed and
accepted for banking facility from Malayan
Banking Berhad for a loan to purchase the said
property.
8.8.2022 The 1 st Defendant’s solicitors, Messrs. Chee
Sun & Associates informed the 2 nd – 4 th
Defendant’s solicitors, Messrs. Khaw Cheow
Poh & Associates that the private caveat had
indeed been removed.
5
9.8.2022 The 2 nd – 4 th Defendants signed and returned

the executed sale and purchase agreement and
other relevant documents together with the
balance deposit of RM84,000.00 to the 1 st
Defendant.
16.8.2022 The sale and purchase agreement between the
1 st Defendant and the 2 nd – 4 th Defendants.
18.10.2022 The transfer and charge of the said property

were registered in the name of the 2 nd – 4 th
Defendants pending the release of the loan for
the balance purchase price.
18.10.2022 The 2 nd – 4 th Defendants’ solicitors issued a
letter requesting their financier bank to release
the balance purchase price.
2.11.2022 The Plaintiff filed the present suit against the
1 st Defendant.
3.11.2022 At the request of the 2 nd – 4 th Defendant’s
financier bank, the 2 nd – 4 th Defendants’
solicitors issued a letter to the 1 st Defendant’s
solicitors to request for the relevant documents
pertaining to the withdrawal of the private
caveat.
11.11.2022 At the request of the 2 nd – 4 th Defendant’s
financier bank, the 2 nd – 4 th Defendants’
solicitors issued a letter to the 1 st Defendant’s
solicitors to seek confirmation on whether there
was any pending legal proceeding against the
1 st Defendant.
6
22.11.2022 The 2 nd – 4 th Defendants’ solicitors received

a letter of confirmation from the 1 st
Defendant’s solicitors that there is currently
a legal proceeding and/or claim against the
1 st Defendant in respect of the said property
by the Plaintiff.
28.2.2023 The 2 n d – 4 th Defendant’s solicitors issued a
letter to the 1 st Defendant’s solicitors
confirming the extension of the completion
of the sale and purchase agreement pending
the resolution of the present suit.
3.3.2023 The Plaintiff’s solicitors, Messrs. Koay

Partnership issued a letter to the 2 nd – 4 th
Defendants’ solicitors, Khaw Cheow Poh &
Associates requesting for the status of the
sale transaction between the 1 st Defendant
and the 2 nd – 4 th Defendants.
3.3.2023 The Plaintiff’s solicitors received a reply

from Messrs. Khaw Cheow Poh &
Associates stating that the sale and purchase
agreement was pending completion.
23.3.2023 The Court allowed the Plaintiffs’ Joinder

application to add the 2 nd to 4 th Defendants
as co-defendants in this Suit.
12.6.2023 The 2 nd to 4 th Defendants’ solicitors issued a
letter to the 1 st Defendant’s solicitors
confirming that they are agreeable to extend
the completion of the sale and purchase
agreement until 30.6.2024.
7
Issues to be Tried
[9] A trial was conducted over several days with a total of eight
witnesses. Having read the parties ’ written submissions, there
are two pertinent issues to be tried/decided:
a. Whether the sale and purchase agreement between

the Plaintiff and the 1 st Defendant dated 7 th January
2019 was a sham to disguise an illegal moneylending
transaction; and
b. If so, whether the 2 nd to 4 th Defendants are

subsequent bona fide purchasers for valuable
consideration.
[10] These two main issues will be considered hereinafter. However,

before I do so, I have not forgotten that the burden of proof lies
on the Plaintiff to prove her claim against the Defendants on a
balance of probabilities as provided under Sections 101,102 and
103 of the Evidence Act 1950. [See cases of Johara Bi Abdul
Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1980] 1
MLRA 385; and Tan Kim Khuan v. Tan Kee Kiat (M) Sdn Bhd
[1998] 1 CLJ SUPP 147].
The Plaintiff’s Contentions/Submissions
[11] The Plaintiff’s contentions/submissions in essence can be

summarized as follows:
a. as there was a loan transaction with interest charged,

the 1 st Defendant failed to rebut the presumption that
there was a moneylending transaction between Lam
Loong and the 1 st Defendant;
b. that the 1 st Defendant and Foo Kok Cheng are owners

of DNA Premier Consultancy Sdn Bhd who were
involved in a moneylending transaction;
8
c. that there were unusual and suspicious circumstances

in the purported sale and purchase transaction of the
said property for the following reasons:
i. the Plaintiff did not receive any monies in

respect of the purchase price from the 1 st
Defendant including the apportionment of
outgoings;
ii. a letter was dated the same day as the date of

signing the sale and purchase agreement
confirming that the full purchase price of
RM1.35 million have been fully paid;
iii. the purported deposit paid by the 1 st Defendant

to the Plaintiff is contrary to the terms in the
sale and purchase agreement dated 7 th January
2019;
iv. the completion period of the sale and purchase

agreement took more than a year;
v. the Plaintiff did not receive a stamped copy of

the sale and purchase agreement dated 7 th
January 2019;
vi. that the 1 st Defendant’s inaction in respect of

the non-delivery of the vacant possession of the
said property by the Plaintiff;
vii. that the 1 st Defendant’s solicitors did not retain

the 3% retention sum and did not claim for the
State consent fees paid on behalf of the
Plaintiff in advance; and
d. that the 2 nd to 4 th Defendants are not subsequent bona

fide purchasers for valuable consideration.
9
The 1 st Defendant’s Contentions/Submissions
[12] The 1 st Defendant contends/submits as follows:
a. that there is no written loan agreement but only a

sale and purchase agreement between the Plaintiff
and the 1 st Defendant;
b. that DNA Premier Consultancy Sdn Bhd was not

named as a party to the case;
c. that the Plaintiff pleaded fraud, misrepresentation,

and collusion against the 1 st Defendant and DNA
Premier Consultancy Sdn Bhd but failed to
particularize the alleged fraud, misrepresentation and
collusion;
d. that the Plaintiff alleged conspiracy, fraud,

misrepresentation and falsification of documents by
the 1 st Defendant and his lawyer, Mr. Mark Liew but
did not make Mr. Mark Liew a party;
e. that the said property is now charged to Malayan

Banking Berhad (hereinafter referred to as “MBB”)
by the 2 nd to 4 th Defendants (subsequent owners) but
MBB was not named as a party;
f. that the Plaintiff had received consideration as her

loan to Hong Leong Islamic Bank Berhad was
redeemed completely;
g. that to allow the Plaintiff’s claim would be unfair

and unjust enrichment; and
h. that it was the Plaintiff and her husband who

participated in a transaction with Foo Kok Cheng
10
(also referred to as “KC Foo”) who was a broker for

the 1 st Defendant.
The 2 nd to 4 th Defendants’ Contentions/Submissions
[13] The 2 n d to 4 th Defendants contends/submits as follows:
a. that they are the subsequent bona fide purchasers for

valuable consideration and they have indefeasible
title to the said property pursuant to the proviso to
Section 340(3) of the National Land Code 1965.
Analysis/Decision
First Issue: Whether the sale and purchase agreement between the
Plaintiff and the 1 st Defendant dated 7 th January 2019 was a sham
to disguise an illegal moneylending transaction
The circumstances leading to the execution of the alleged sale and

purchase agreement dated 7 th January 2019 and whether the same was
suspicious
[14] In determining whether the said sale and purchase agreement

dated 7 th January 2019 is a sham in disguise of an illegal
moneylending transaction, the Court will have to examine the
circumstances surrounding the entering into such sale and
purchase agreement and the conduct of the parties to consider
whether there are suspicious circumstances which would negate
the existence of a genuine sale and purchase agreement. In this
regard, the Court of Appeal decision in Mahmood bin Ooyub v.
Li Chee Leong and another appeal [2020] 6 MLJ 755 is
instructive as it held as follows:
“(2) Whenever it was alleged that an agreement before

the court was a sham and a fabrication with the
object of circumventing the law, it behoved the court
to examine the external evidence to see if the pieces
11
of the puzzle formed a coherent whole. The court had

to probe further to see if there were unusual
features in the agreement and examine the
circumstantial evidence, such as the conduct of the
parties, that might arouse suspicion (see para 211).
(3) ln scrutinising the transaction, the court was duty -

bound to shine the search-light of consistency and
coherence and to see if there were contradictions
that cried out for an explanation. No one factor was
conclusive, but if when taken together there were
more questions raised than there were satisfying
answers, then in all probability the agreement was a
sham and fabrication to camouflage the real
transaction which, if allowed to prevail, would
contravene the law (see paras 214–215).
(4) The unusual features, suspicious circumstances,

anomalies and aberrations in the instant three
appeals, when taken together, strongly negated the
existence of any genuine SPA in each case and
showed that the agreements and related documents in
each case were all a sham to distract and deceive the
enforcement authority and the appellants. In each
case, on balance of probabilities, the true
transaction was an illegal moneylending transaction
(see paras 60–61 & 216).”
[15] Similarly, in Pannir Selvam a/l Sinnaiyah & AnorvTan Chia Foo
& Ors [2021] 7 MLJ 384, Evrol Marietta Peters JC (as Her Ladyship
then was) held as follows:
“[34] In order to determine whether the agreement is a sham, it

is pertinent to note that the court ought to have regard to
12
all the circumstances, both before and at the time of the

execution of the agreement.
[92] The above facts are strong indications that the parties had
not intended to enter into a sale and purchase agreement
but instead, executed the relevant documents to facilitate
the property to be used as a security for a loan. The
execution of the agreement, Form 14A, letter seeking
redemption statement from HSBC and the CKHT forms
(exhibited at pp 104–129 of Part B of the CBD), point to
an irresistible conclusion that the agreement dated 4 May
2016 and other documents in relation to the same were a
fagade to a money lending transaction and, therefore, a
sham agreement to cloak the true intention of the parties.”
[16] From the abovementioned cases, it is clear that it is incumbent

on this Court to consider and examine the circumstances both
before and at the time of the execution of the said sale and
purchase agreement including the conduct of the parties at the
material time and various conversations through WhatsApp
messages and the deposit transaction records to further
determine whether there were unusual features, suspicious
circumstances, anomalies and aberrations in terms of the said
agreement.
[17] In this regard, it is to be noted that the Plaintiff pleads at

paragraphs 6 to 8 of the amended Statement of Claim that Lam
Loong has borrowed a sum of RM470,000.00 from the 1 st
Defendant and/or DNA Premier Consultancy Sdn Bhd with an
interest of RM23,500.00 per month.
[18] It is also the Plaintiff’s pleaded case that Foo Kok Cheng was a
partner of DNA Premier Consultancy Sdn Bhd and that as
13
consideration for the moneylending agreement, DNA Premier

Consultancy Sdn Bhd had provided a loan to the Plaintiff ’s
husband’s company. It is also not disputed that the address of
DNA Premier Consultancy Sdn Bhd is the same as the 1 st
Defendant as reflected in the sale and purchase agreement dated
7 th January 2019.
[19] As to be background circumstances leading to the loan, the

Plaintiff’s husband, Mr. Yuong Moon Hee (PW1) testified
during examination in chief as follows:
“Q: Could you clarify to this Honourable Court

what happened in January 2019?
A: In January 2019, I was approached by an agent

who offered to lend me a sum of RM 470,000.00
via Whatsapp.
However, I was told to charge a piece of

property known as... belonging to my wife to
the lender.
Q: Please briefly set out the terms of the loan

agreement...
A: The agreed loan sum between us was RM

470,000.00 with monthly interest of 5%
amounting to RM23,500.00.
Having deducted the sum of RM70,500.00 as

the advance payment for the interest for the
month of January 2019, February 2019 and
March 2019 and the legal fees of
RM14,000.00....”
14
[See Question and Answer Nos. 5 and 7 of the Witness

Statement, WSPW-1]
[20] It is not disputed that the said Lam Loong had received on 9 th
January 2019 a total sum of RM385,500.00. In my view, this
amount of RM385,500.00 received by Lam Loong is clearly
consistent with PW1’s evidence (as well as a WhatsApp
conversation) which was the balance from the RM470,000.00
after deducting the above three months ’ interest and legal fees
totalling RM84,500.00. Whilst the 1 st Defendant has pleaded that
he had paid a further sum of RM115,000.00 in cash, no evidence
whatsoever was led to prove this and I would conclude that the
only monies paid by the 1 st Defendant to the Plaintiff/Lam
Loong was RM385,500.00.
[21] The Plaintiff’s husband (PW1) had further testified that he had
made payment for the interest incurred for the loan borrowed
from the 1 st Defendant via Foo Kok Cheng and/or DNA Premier
Consultancy Sdn Bhd. PW1 testified during examination in chief
as follows:
Q: What happened after you received the sum of

RM385,500.00?
A: Foo Kok Cheng had requested me to make loan

repayment on behalf of Lam Loong to DNA Premier
Consultancy Sdn Bhd (“DNA Premier”).
Subsequently, I made 7 repayments to DNA

Premier’s UOB Account No. 2653008874 whereby
the particulars are as follows: -
No. Date Amount (RM)
1 15.4.2019 23,500.00
2 16.5.2019 23,500.00
15
3 11.6.2019 23,500.00
4 22.7.2019 23,500.00
5 13.8.2019 23,500.00
6 27.9.2019 23,500.00
7 4.11.2019 23,500.00
[See Question and Answer No. 9 of the Witness Statement,

WSPW-1]
[22] It is to be noted that the testimony of PW1 of paying the interest

of RM23,500.00 is further corroborated by various bank
statements.
[23] I have also noted that the sum of RM385,500.00 was all paid to
Lam Loong’s account of which RM300.000.00 was by cash
deposit and a sum of RM85.500.00 from the 1 st Defendant’s
personal bank account.
[24] In my view, if there was indeed a genuine sale and purchase

agreement, the burning question is then why is the Plaintiff
paying the 1 st Defendant and/or DNA Premier Consultancy Sdn
Bhd a consistent amount of RM 23,500.00 from April to
November 2019 i.e. three months after the execution of the sale
and purchase agreement dated 7 th January 2019. It was clearly
interest for the said loan which have been discussed previously.
In this regard, I find that the WhatsApp conversation between
PW1 and the said Foo Kok Cheng very telling and clearly
indicative that the transaction was in fact in furtherance of a
loan with interest and that the said sale and purchase agreement
dated 7 th January 2019 was in effect collateral for the said loan.
It is perhaps apt that I set out in verbatim the WhatsApp
conversation at the material time of signing the sale and
purchase agreement which in my view indicated that it was in
fact in furtherance of a loan transaction:
16
17
18
19
20
21
22
23
[25] The above WhatsApp conversation has been placed in part B of

the Common Bundle of Documents and Foo Kok Cheng (DW2)
does not dispute the conversation. DW2 testified during cross -
examination as follows:
“KOAY So, this is the Whatsapp conversation

between you and the Plaintiff husband.
FKC Correct.”
[See page 80 of the Notes of Evidence dated 1 st August 2023]
[26] Further, in my view, the WhatsApp conversation from 3 rd to 7 th

January 2019 as highlighted above are indeed relevant to shed
light on the circumstances leading to the execution of the sale
and purchase agreement dated 7 th January 2019. [See the High
Court case of Pannir Selvam (supra)].
[27] Having perused the WhatsApp conversation from 3 rd to 6 th

January 2019 and thereafter from 8 th to 11 th January 2019, the
irresistible conclusion that I reach are as follows:
a. The Plaintiff’s husband did indeed have a discussion

with Foo Kok Cheng pertaining to taking a loan and
that the said property owned by the Plaintiff was to
be used as a collateral. The 1 st Defendant has
admitted using Foo Kok Cheng as a broker;
b. A loan sum has been agreed upon at a sum

RM470,000.00 with interest of RM23,500.00 per
month;
c. A sale and purchase agreement dated 7 th January

2019 had to be executed and stamped with the Form
14A being kept in escrow with the understanding that
upon full repayment, the said sale and purchase
agreement dated 7 th January 2019 will be rescinded;
24
d. In the event the borrower fails to pay 3 months

interest, the lender (1 st Defendant) will proceed to
transfer the said property to his name;
e. The 1 st Defendant’s personal bank account details in

UOB was provided to facilitate payments; and
f. Discussions were had and enquiries made as to how

the Plaintiff’s husband would repay the principal
loan amount to which it was indicated that it will be
repaid from the sale of other properties.
[28] Quite apart from the WhatsApp conversation above being

indicative that it was a loan transaction, I agree with the
Plaintiff’s submission and I am also of the view that there are
indeed suspicious circumstances surrounding the terms and
conditions of the sale and purchase agreement which would tend
to negate that it was a genuine sale and purchase agreement.
[29] Firstly, as correctly pointed out by the Plaintiff, the purchase

price stipulated in the said sale and purchase agreement dated 7 th
January 2019 was RM1,350,000.00 with the deposit being 10%
of the purchase price i.e., RM135,000.00. The purported deposit
of RM500,500.00 allegedly paid by the 1 st Defendant constitutes
almost 40% of the purchase price of the said property which in
my view is suspicious and indicative that it was not a genuine
sale and purchase agreement.
[30] However, whilst there was evidence of the payment of

RM385,500.00, there was no evidence of payment of the sum of
RM115,000.00 which in my view have not been proven. In fact,
at best, the evidence of the 1 st Defendant (DW3) is that it was
paid to Foo Kok Cheng. DW3 testified as follows:
“JUDGE Yes. But can I ask why was this, when we

saw RM300,000 was paid cash deposit to
25
the bank account. Why wasn’t this RM115

done similarly?
LSC I don’t know because of the broker told

me that they need the cash for
RM115,000.
KET So, you also paying the cash of

RM115,500 to the Plaintiff.
LSC To Mr Foo.
JUDGE Not RM500, RM115.
KET RM115 to Mr Foo.
KET Do you receive any proof of receipt of the,

of this cash amounting to RM115,000 -
LSC No.
KET By Plaintiff from Mr Foo.
LSC No.
KET Can I put it to you that you never paid

this RM115,000 to Plaintiff or Plaintiff
husband?
LSC They mention what pay to Mr Foo.”
[See pages 146-148 of the Notes of Evidence dated 1 st August

2023]
26
[31] Another suspicious aspect of the sale and purchase agreement

was that although clause 15.1 stipulated that the 1 st Defendant
was to pay the Plaintiff the apportionment of outgoings, the
evidence revealed that it was not calculated nor paid. In this
regard, DW1 testified during cross-examination as follows:
“KET Mr Mark, do you agree with me that to

calculate the apportionment of the
outgoings is part of the process to
complete the whole conveyancing
procedure?
LSH Not necessary. A lot of KL lawyer they

don’t calculate one.
KET If it is not necessary, why did you put the

clause in your S&P?
LSH We do calculate.
KET So for this, you do calculate? So for this

case, whether you calculate or you did
not calculate?
LSH Did not calculate because the vendor

didn’t deliver vacant possession.”
[32] Another critical and important factor to consider is that the 1 st

Defendant had never met or talked to the Plaintiff nor viewed
the said property prior to the execution of the sale and purchase
agreement dated 7 th January 2019. In this respect, the 1 st
Defendant (DW3) testified during cross -examination as follows:
“KET So, Mr Lim, have you ever met Plaintiff

before?
27
LSC No.
KET You never met Plaintiff before? Have you

talked to Plaintiff before?
LSC No.
KET Have you met Plaintiff husband before?
LSC Never.
KET I refer you to Bundle A, page 26. Ok, Mr

Lim?
LSC Yes.
KET Ok. So, page 26 is part of your Defence.

Ok. So now, page 26, paragraph 8A, in
your Defence, you have mentioned that, 1
read it to you, “Suami Plaintif, En Yuong
telah beberapa kali menghubungi
Defendant 1”. Is that correct?
LSC I am not understand your Malay.
KET Ok.
LSC I am sorry.
JUDGE Ok, never mind. This document is your

pleadings for your case in the Court. Your
statement of defence. This para 8A, it
says, that the Plaintiff’s husband Mr
Yuong had on various occasions
contacted you to tawar-menawar, to
discuss on a transaction of buying the
28
property before the S&P was signed.

That’s what it says.
LSC No.
KET So, you mean that Mr Yuong, the Plaintiff

husband never contact you and offer you
for the sales and purchase of this
property which 1 mean, No. 2 of the
property, correct?
LSC Yes.
KET Ok. I refer you to the paragraph 8B which

also in Malay. In paragraph 8B, it is
stated that, you have stated in your
Defence that the Plaintiff husband has
contacted you several times for the
transfer of the money for the payment of
the purchase price, for the property.
LSC No.
KET Ok, Mr Lim. So, you never talked to

Plaintiff or Plaintiff husband, correct?
LSC Never.
KET Ok, Mr Lim. Is it true that, refer to page

26, what you have stated in your Defence
is incorrect, right? Is it untrue?
LSC Yes.
29
KET Ok, 1 rephrase. Mr Foo asked you

whether you are interested to purchase
the property from the Plaintiff, correct?
LSC Yes.
KET Ok. Did he bring you to view the

property?
LSC No.”
[See pages 130,131 and 137 of the Notes of Evidence dated 1 st

August 2023]
[33] In my view, quite apart from the fact that the 1 st Defendant’s
evidence contradicted his pleaded case, I find that the fact that
he never met or spoke to the Plaintiff or her husband nor viewed
the said property is another factor which casts doubts on the
genuineness of the sale and purchase agreement.
[34] Despite the 1 st Defendant’s pleaded defence that the Plaintiff’s

husband had on several occasions contacted the 1 st Defendant to
offer the said property for sale, from the testimony of DW3, it is
clear that no such offer for sale was made nor was there viewing
of the said property. As to why the said property was never
viewed is beyond me but in my view, this evidence corroborates
the Plaintiff’s contention that the circumstances leading to the
execution of the sale and purchase agreement were suspicious
and consequently that it was in fact to be used as collateral for
an illegal moneylending transaction.
[35] I also further note that there was a delay of more than 12 months
from the original completion date. One may argue that the delay
was caused by the need to obtain the state consent in respect of
the said property. Firstly, the 1 st Defendant did not testify on
this delay in completing the sale and purchase agreement.
30
Secondly, given that Lam Loong was in financial difficulty at

the material time, it would be reasonable for me to conclude that
in dire need of money, it is illogical for the Plaintiff to
agree/allow such a lengthy completion period of more than 12
months. [See the case of Pannir Selvam (supra) where the High
Court referred to the case of Poraviappan s/o Arunasalam Pillay
v. Periasamy s/o Sithamharanm Pillai & Anor [2001] 1 MLJU
742].
[36] I have also considered the fact that no stamped sale and
purchase agreement was ever provided to the Plaintiff. All the
Plaintiff received was a sale and purchase agreement with the 1 st
Defendant’s name being redacted without any explanation for
such anomaly.
[37] Further, whilst DW1 testified that he had advanced the state
consent fees on behalf of the Plaintiff, he however did not claim
the same from the Plaintiff to date as entitled to with no
explanation given for such failure.
[38] In addition, another peculiarity is that the 1 st Defendant appears

to have not taken any legal action against the Plaintiff in respect
of the non-delivery of vacant possession. It is the Plaintiff ’s
case that in accordance with the sale and purchase agreement, it
was the Plaintiff’s obligation to deliver vacant possession of the
said property to the 1 st Defendant as purchaser within 5 working
days upon full payment of the balance purchase price of the said
property by virtue of Clause 11 and Section 2 of the Fifth
Schedule of the sale and purchase agreement. However, the
Plaintiff testified that she never passed the keys to anyone
including the 1 st Defendant and the 1 st Defendant’s solicitor.
This is also consistent with the testimony of the 1 st Defendant’s
solicitor when he admitted that the Plaintiff did not deliver
vacant possession. In addition, the 1 st Defendant during cross-
31
examination has also admitted to unilaterally changing the locks

because he considered the said property to belong to him.
[39] In any event, it is to be noted that DW1 admitted that he did not
take any action for any alleged breach of the agreement despite
the non-delivery of vacant possession and under cross -
examination testified that he merely left it in the hands of the
purchaser. DW1 testified as follows:
“JUDGE The vendor refused to give vacant

possession, right. So your duty as a
lawyer is not finished until the S&P is
completed, right?
LSH Yes.
JUDGE So what transpired? So the vendor didn’t

give vacant possession, your client is the
purchaser, you are acting for the
purchaser, right? You didn’t act for the
vendor. What did you do? What happened
next? Do you know?
LSH I leave it to the purchaser.”
[40] Interestingly, the 1 st Defendant’s testimony on this issue of

vacant possession during cross-examination is as follows:
“KET Did your lawyer Mr Mark ask you to

contact Plaintiff herself?
LSC No. This is not my duty what.This is

their duty what.
KET You mean this is your lawyer’s duty.
32
LSC Of course. But since I cannot get the key,

I straightaway go to change the lock
because the property is belong to me.”
[41] Having considered all the matters highlighted above, it is my

view that both parties were not ad idem nor had any intention to
enter into a sale and purchase agreement but that the Plaintiff ’s
husband and the 1 st Defendant together with or via his broker,
Foo Kok Cheng had agreed that the said property be used as
collateral for a loan of RM470.000.00 with an interest of
RM23,500.00 per month with the understanding that the said
property would be transferred to the 1 st Defendant if the Plaintiff
defaulted three months’ interest. Since the Plaintiff’s husband
paid interest for seven months but defaulted thereafter, the 1 st
Defendant then utilised Form 14A to transfer the said property
to himself.
[42] In my view, from all the observations and findings made herein
above, the sale and purchase agreement was clearly a sham and
was in furtherance of a moneylending transaction.
[43] With this finding, there is no necessity to consider the issue of

fraud and misrepresentation as pleaded. As such the 1 st
Defendant’s contention that Mr. Mark Liew being the 1 st
Defendant’s solicitors and Foo Kok Cheng not being made a
party to this Suit a non-starter. In my view, bearing in mind that
the 1 st Defendant was involved in the loan transaction, was the
“purchaser” in the sale and purchase agreement and
subsequently the title being transferred to his name, it was
sufficient for the 1 st Defendant to be made a party to this Suit.
[44] Since I have concluded that the sale and purchase agreement was
a sham, the Plaintiff’s claim against the 1 st Defendant would
33
ordinarily be allowed and the said property revert to the Plaintiff

as the title of the 1 st Defendant is defeated pursuant to Section
340(2)(c) of the National Land Code 1965. However, as seen
earlier the 1 st Defendant has subsequently sold the said property
to the 2 nd to 4 th Defendants and I will deal with that later in the
judgment. However, in the meantime, having concluded that it
was a sham agreement, I will deal with the 1 st Defendant’s
counterclaim. [See the High Court case of Kuan Chee Jon & Ors
v. SSF Construction Sdn Bhd [2016] MLJU 1173].
The 1 st Defendant’s Counterclaim
[45] The 1 st Defendant in their amended Statement of Defence and

Counterclaim is seeking the remedy of restitution by seeking the
return of the sum of RM1,350,000.00 where RM500,500.00
being the sum loaned to the Plaintiff and/or her husband as well
as the redemption sum of RM850,000.00.
[46] In this respect, reference is made to the recent Federal Court

case of Triple Zest Trading & Suppliers & Ors v. Applied
Business Technologies Sdn Bhd [2023] 10 CLJ 187 where it was
held that in cases where it is clear that there is an illegal
moneylending transaction, the lender is not entitled to the
principal sum and the interest. The recent case of Triple Zest
Trading & Suppliers (supra) considered the High Court case of
Yeow Guang Cheng v. Tang Lee Hiok & Ors [2020] MLRHU
1539 (affirmed by the Court of Appeal in Tang Lee Hiok & Ors
v. Yeow Guang Cheng [2022] 6 MLRA 607; [2022] 5 MLJ 584)
where it was enunciated that “to deter unlicensed moneylenders
from continuing with their nefarious business, it is in the public
interest for unlicensed moneylenders to be deprived of their
illegal “principal loan sums”, interest and whatever ill-gotten
property or benefit enjoyed from their unlawful moneylending
business”.
34
[47] More recently, the Federal Court case of Triple Zest Trading &
Suppliers & Ors v. Applied Business Technologies Sdn Bhd
[2023] 10 CLJ 187 was considered in the Court of Appeal case
of Lee Kuang Gen v. Tan Sri Dato’ Seri Dr M Mahadevan
Mahalingam & Another Appeal [2023] CLJU 2410; [2023] 1
LNS 2410 where the Court of Appeal held that the agreement
between parties was void ab initio and the effect of such illegal
transaction is that the “loss lies where it falls”.
[48] As such, I am of the firm view that the 1 st Defendant ought not
to be entitled to be repaid the sum of RM500,500.00 or
RM385.500.00 which have been loaned to the Plaintiff and/or
the husband’s company. In respect of the 1 st Defendant’s
counterclaim for the sum of RM850,000.00 being the redemption
sum, I will deal with this in the next issue pertaining to the 2 nd
to 4 th Defendants.
Second Issue: Whether the 2 nd to 4 th Defendants are bona fide

purchasers for valuable consideration
[49] Having considered that the said sale and purchase agreement
dated 7 th January 2019 was a sham to disguise an illegal
moneylending transaction, I now move on to consider if the 2 nd
to 4 th Defendants are subsequent bona fide purchasers for
valuable consideration.
[50] As the title of the 1 st Defendant is defeated pursuant to Section

340(2)(c) of the National Land Code 1965, it would also
follow that the title transferred to the 2 nd to 4 th Defendants is
also liable to be set aside unless the 2 nd and 4 th Defendants are
able to establish that they are subsequent bona fide purchasers
for valuable consideration pursuant to the proviso under Section
340(3) of the National Land Code 1965. In this case, there is
no dispute that the 2 nd to 4 th Defendants became the registered
35
proprietors on 18 th October 2022 upon executing the sale and

purchase agreement with the 1 st Defendant on 16 th August 2022.
[51] The 2 nd to 4 th Defendants contend that they are subsequent bona

fide purchasers for valuable consideration and therefore
sheltered under the proviso to Section 340(3) of the National
Land Code 1965.
[52] On the other hand, the Plaintiff contends that the 2 nd to 4 th

Defendants are not bona fide purchasers for valuable
consideration on the following grounds:
a. The 2 n d to 4 th Defendants were aware of the

Plaintiff’s adverse claim on the said property;
b. The 2 nd to 4 th Defendants had acted in a careless

manner and were negligent;
c. The 2 n d to 4 th Defendants failed to exercise their right

to terminate the sale and purchase agreement; and
d. The 1 st Defendant has yet to receive the balance 9%

deposit sum and balance purchase price from the 2 nd
to 4 th Defendants’ financiers.
[53] Again, the Court will have to scrutinise the circumstances

leading to the sale and purchase agreement to consider whether
or not they are subsequent bona fide purchasers for valuable
consideration and in this regard the evidence of the 2 nd
Defendant is crucial.
[54] The 2 nd Defendant during cross-examination testified that prior

to signing the Letter of Confirmation to Sell & Purchase to
purchase the said property, he was brought by a property agent
to view the said property and the property was found to be
vacant. Further, the evidence will also reveal that the 2 nd to 4 th
Defendants have through their solicitors, conducted a title
36
search of the said property on 21 st June 2022 and the same had
revealed that there existed a private caveat lodged by the
Plaintiff on 14 th September 2020 and the same being set aside
vide Court Order on 31 st January 2022.
[55] However, the 2 nd to 4 th Defendants through their solicitors then

undertook various steps to ascertain the status of the private
caveat and did not execute the sale and purchase agreement until
the removal of the private caveat. The solicitor then conducted a
Court file search on Originating Summons No. PA -24NCvC-
442-07/2021 (hereinafter referred to as “OS 442”) and
discovered that the said private caveat was removed pursuant to
the Court Order dated 31 st January 2022 in OS 442.
[56] The 2 nd to 4 th Defendants then received a letter dated 8 th August

2022 confirming that the private caveat was removed and that
there was no appeal filed by the Plaintiff. The 2 nd to 4 th
Defendants then executed the sale and purchase agreement and
proceeded to obtain a loan from MBB. It was only subsequently
did the Plaintiff commence this claim against the 1 st Defendant
in November 2022 and thereafter the 2 nd to 4 th Defendants being
added as co-defendants in March 2023 when the Plaintiff
discovered that the said property have been sold by the 1 st
Defendant to the 2 nd to 4 th Defendants. On these facts, the 2 nd to
4 th Defendants submit that they are subsequent bona fide
purchasers for valuable consideration as they had halted the
signing of the sale and purchase agreement upon discovering the
said private caveat and/but only executed the said sale and
purchase agreement subsequently after having enquired and was
satisfied that the said private caveat has been removed by Court
Order dated 31 st January 2022 with no appeal filed and no other
claim filed by the Plaintiff.
[57] Further, the 2 nd to 4 th Defendants contend that they were aware

that no appeal was filed by the Plaintiff against the said Court
37
Order removing the private caveat dated 31 st January 2022 and it

has been admitted by the Plaintiff and the Plaintiff ’s husband
during crossexamination that the Plaintiff’s private caveat had
no legal impact since 31 st January 2022 pursuant to the High
Court Order. This would have meant that the 1 st Defendant was
free to sell the said property to the 2 nd and 4 th Defendants. As
such, it is contended that they are bona fide purchasers for
valuable consideration.
[58] On the other hand, it is the Plaintiff’s contention that having

knowledge that there was private caveat previously, the 2 nd to 4 th
Defendants were indeed aware of the Plaintiff’s adverse claim
on the said property.
[59] To this end, the Plaintiff relies on the case of Lee Siok Ching v.
Eden Realty Sdn Bhd & Ors [2021] MLJU 1020 where the High
Court cited the Federal Court case of T Sivam a/l
Tharamalingam (as representative/administrator for the estate
of Nagamuthu a/l Periasamy, deceased) v. Public Bank Bhd
[2018] 5 MLJ 711 which held as follows:
“[48] Therefore a purchaser who is not guilty of any fraud but

who has knowledge that his predecessor ’s title or
interest is tainted with fraud is not entitled to the
benefit of the proviso under s. 340(3). In the
circumstance of that case, it was held that mere
knowledge of the fraud would suffice to negate good
faith.”
[60] Further, the Plaintiff contends that the 2 nd to the 4 th Defendants

had also failed to take ordinary precaution and investigation of a
reasonable prudent purchaser when they failed to seek
confirmation from the Plaintiff or the Plaintiff ’s solicitor as to
whether they intend to file a civil suit in respect of the said
property. [See cases of Mohd Najib Yusof v. Mak Offshore Sdn
38
Bhd & Ors [2023] 4 MLRH 228 and Liputan Simfoni Sdn Bhd v.
Pembangunan Orkid Desa Sdn Bhd [2019] 4 MLJ 141].
[61] In my considered view, whilst knowledge of a predecessor ’s title

or interest may disentitle a purchaser to the benefit of a proviso
to Section 340(3) of the National Land Code 1965, in my
considered view, the 2 nd to 4 th Defendants have taken the
necessary precautions prior to entering into the sale and
purchase agreement. As seen earlier, they halted the purchase
upon discovering the private caveat entered by the Plaintiff. It
was only upon receiving confirmation in writing that the said
private caveat had been removed and that there was no further
appeal did the 2 nd to 4 th Defendants proceed with the sale. Whilst
the solicitor for the 2 nd to 4 th Defendants testified that she did
not delve further, the issue is to what extent should
investigations be made. On the facts of this case, I am unable to
conclude that bearing in mind that the private caveat had been
removed almost 9 months earlier with no appeal and with no suit
commenced, there was no need to investigate further and cannot
translate to a lack of bona fides. In fact, in my view, it is the
Plaintiff who is at fault in that once the private caveat was
removed without any appeal by her, she should have
immediately commenced proceedings against the 1 st Defendant.
If she had done so, the 2 nd to 4 th Defendants would certainly not
have purchased the said property. Unfortunately, the suit was
filed in November 2022 after the sale and purchase between the
1 st Defendant and the 2 nd to 4 th Defendants was perfected and the
title transferred and registered in the names of the 2 nd to 4 th
Defendants on 18 th October 2022.
[62] As such, I would conclude that the 2 nd to 4 th Defendants have

successfully proven that they have taken all reasonable
steps/precautions and are subsequent bona fide purchasers for
valuable consideration. As such, I will allow the 2 nd to 4 th
39
Defendants’ counterclaim for the declaration that they are the

rightful registered proprietors of the said property and beneficial
owners.
[63] This is still not the end of the matter. As highlighted earlier in
this judgment, although the transfer has been perfected and the
title currently registered in the 2 nd to 4 th Defendants, the initial
deposit is still being held by the 1 st Defendant’s solicitor as
stakeholder and the 2 nd to 4 th Defendants’ financier bank have
yet to release the balance loan sum pending the determination of
this Suit. With my conclusion above that the 2 nd to 4 th
Defendants are subsequent bona fide purchasers for valuable
consideration, the sale and purchase between the 1 st Defendant
and the 2 nd to 4 th Defendants (with the completion date
extended) can now be completed. The question then is to who is
the purchase price/monies to be paid to? On the one hand, the
cases alluded to earlier such as Triple Zest Trading &
Suppliers (supra) will suggest that the effect of any illegal
transaction will result in the “loss lies where it falls” and that a
party cannot claim entitlement from an illegal act. In my view,
applying this, the 1 st Defendant certainly cannot be entitled to
restitution in the amount of the alleged loan sum of
RM500,500.00. Does this however apply to the redemption sum
that was paid to the bank for the said property. In my view, it
should not and a distinction ought to be made between a loan
sum paid to a borrower as opposed to a redemption sum paid to
a third party bank. In the case of Yeow Guang Cheng v. Tang
Lee Hiok & Ors [2020] CLJU 1696; [2020] 1 LNS 1696
(affirmed by the Court of Appeal in Tang Lee Hiok & Ors v.
Yeow Guang Cheng [2022] CLJU 1510; [2022] 1 LNS 1510), it
was stated that the rationale of not allowing an unlicensed
moneylender to recover his money was ‘‘to deter unlicensed
moneylenders from continuing with their nefarious business, it
is in the public interest for unlicensed moneylenders to be
40
deprived of their illegal “principal loan sums”, interest and

whatever ill-gotten property or benefit enjoyed from their
unlawful moneylending business”. In my considered view, the
1 st Defendant will certainly be deprived of its illegal principal
loan sum and interest and will not be enjoying the benefit of the
said property by the orders made so far. In my considered view,
bearing in mind that the sum of RM850,000.00 was paid to Hong
Leong Islamic bank to redeem the said property, the 1 st
Defendant ought to be allowed to retain that sum as it cannot be
considered to be a part of a principal loan sum or interest.
[64] As such, considering all the above, I would order that upon
payment of the full purchase price of RM1.4 million to the 1 st
Defendant, which is to be paid to the 1 st Defendant’s solicitor as
stakeholder, the 1 st Defendant is entitled to retain RM850,000.00
being the redemption sum paid to the bank previously and that
the balance RM550,000.00 is to be immediately transferred to
the Plaintiff.
[65] As highlighted earlier, all parties are in agreement that the 2 nd to

4 th Defendants are subsequent purchasers and would have good
title in the event I were to find and conclude that there are bona
fide purchasers for valuable consideration. On the facts of this
case, since the purchase price of the said property was fully paid
and proper searches and enquiries done and proper conveyancing
documentations adhered to, I am satisfied and find that the 2 nd to
4 th Defendants are subsequent bona fide purchasers for valuable
consideration. Further, following the decision of the Court of
Appeal in a recent case in Bitara Angkasa Sdn Bhd v. Cheok
Lam Chuan & Ors [2023] MLJU 2545, which facts are similar to
the current, it appears that the 2 nd to 4 th Defendants are
subsequent bona fide purchasers for valuable consideration and
ought to retain their title.
41
Conclusion
[66] In the upshot, the Court makes the following conclusions and
orders:
i. The Plaintiff has successfully proven that the

said sale and purchase agreement with the 1 st
Defendant was a sham to cloak an illegal
moneylending transaction;
ii. The 2 nd to 4 th Defendants are bona fide

purchasers for valuable consideration and as
such the 2 nd to 4 th Defendants are entitled to the
full beneficial interest of the said property; and
iii. The sale and purchase price of RM1.4 million

is to be paid to the 1 st Defendant’s solicitors as
per the sale and purchase agreement between
the 1 st Defendant and the 2nd to 4 th Defendants
whereby the 1 st Defendant would be entitled to
retain a sum of RM850,000.00 being the
redemption sum he paid and the balance of
RM550,000.00 to be paid to the Plaintiff
through her solicitors.
[67] In light of the peculiar facts of the case, I will not order any
costs between the Plaintiff and the 1 st Defendant. However, I
order the Plaintiff to pay the 2 nd to 4 th Defendants costs of
RM5000.00 subject to allocator.
42
Dated: 5 JANUARY 2024
(YA ANAND PONNUDURAI)

Judge
Georgetown High Court
Penang
Counsel:
For the plaintiff - Koay Ee Teng & Koay Chun Hian; M/s Koay
Partnership (Bukit Mertajam)
For the 1 st defendant - John Khoo Boo Lai & Nurbaridah Ahmad; M/s
Ismail Khoo & Associates (Penang)
For the 2 nd to 4 th defendants - Teoh Boh Choon Walter; M/s Winston

Ng & Teoh (Penang)
Cases referred to:
Bitara Angkasa Sdn Bhd v. Cheok Lam Chuan & Ors [2023] MLJU
2545
Johara Bi Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor
[1980] 1 MLRA 385
Kuan Chee Jon & Ors v. SSF Construction Sdn Bhd [2016] MLJU
1173
Lee Kuang Gen v. Tan Sri Dato’ Seri Dr M Mahadevan Mahalingam

& Another Appeal [2023] 1 LNS 2410; [2023] 1 LNS 2410
Lee Siok Ching v. Eden Realty Sdn Bhd & Ors [2021] MLJU 1020
43
Liputan Simfoni Sdn Bhd v. Pembangunan Orkid Desa Sdn Bhd [2019]
4 MLJ 141
Mahmood bin Ooyub v. Li Chee Leong and another appeal [2020] 6

MLJ 755
Mohd Najib Yusof v. Mak Offshore Sdn Bhd & Ors [2023] 4 MLRH
228
Pannir Selvam a/l Sinnaiyah & Anor v. Tan Chia Foo & Ors [2021] 7
MLJ 384
Poraviappan s/o Arunasalam Pillay v. Periasamy s/o Sithamharanm

Pillai & Anor [2001] 1 MLJU 742
Tan Kim Khuan v. Tan Kee Kiat (M) Sdn Bhd [1998] 1 CLJ SUPP 147
Tang Lee Hiok & Ors v. Yeow Guang Cheng [2022] 6 MLRA 607;
[2022] 5 MLJ 584
Triple Zest Trading & Suppliers & Ors v. Applied Business

Technologies Sdn Bhd [2023] 10 CLJ 187
T Sivam a/l Tharamalingam (as representative/administrator for the

estate of Nagamuthu a/l Periasamy, deceased) v . Public Bank Bhd
[2018] 5 MLJ 711
Yeow Guang Cheng v. Tang Lee Hiok & Ors [2020] MLRHU 1539
Legislations referred to:
National Land Code 1965, S. 340
Evidence Act 1950, S. 101,102,103
44

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[2024] CLJU 24 Legal Network Series

DALAM MAHKAMAH TINGGI DI PULAU PINANG

TANG YOKE LIN

1. LIM SENG CHIEW

2. CH’NG EWE GHEE

3. LIM PHAIK LEAN

4. CH’NG WEI YING

[1] The Plaintiff was the previous registered owner of a property in

This is yet another case where the Plaintiff is seeking to recover

[2] Through her amended Statement of Claim, the Plaintiff contends

[3] The Plaintiff further pleads fraud and/or misrepresentation and

[4] The 1 st Defendant on the other hand pleads and in essence

[6] The 2 nd to 4 th Defendants do not deny purchasing the said

[8] The background facts have been summarized by the Plaintiff in

7.1.2019 Purported Letter of Confirmation in respect of

2.6.2020 The 1 st Defendant’s solicitor went on to request

12.8.2020 The said property was transferred to the 1 st

12.7.2021 The Plaintiff filed an Originating Summons in

21.6.2022 The 2 n d – 4 th Defendants conducted a land

16.7.2022 The 1 st and 2 nd Defendants executed a letter of

9.8.2022 The 2 nd – 4 th Defendants signed and returned

18.10.2022 The transfer and charge of the said property

22.11.2022 The 2 nd – 4 th Defendants’ solicitors received

3.3.2023 The Plaintiff’s solicitors, Messrs. Koay

3.3.2023 The Plaintiff’s solicitors received a reply

23.3.2023 The Court allowed the Plaintiffs’ Joinder

a. Whether the sale and purchase agreement between

b. If so, whether the 2 nd to 4 th Defendants are

[10] These two main issues will be considered hereinafter. However,

The Plaintiff’s Contentions/Submissions

[11] The Plaintiff’s contentions/submissions in essence can be

a. as there was a loan transaction with interest charged,

b. that the 1 st Defendant and Foo Kok Cheng are owners

c. that there were unusual and suspicious circumstances

i. the Plaintiff did not receive any monies in

ii. a letter was dated the same day as the date of

iii. the purported deposit paid by the 1 st Defendant

iv. the completion period of the sale and purchase

v. the Plaintiff did not receive a stamped copy of

vi. that the 1 st Defendant’s inaction in respect of

vii. that the 1 st Defendant’s solicitors did not retain

d. that the 2 nd to 4 th Defendants are not subsequent bona

The 1 st Defendant’s Contentions/Submissions

[12] The 1 st Defendant contends/submits as follows:

a. that there is no written loan agreement but only a

b. that DNA Premier Consultancy Sdn Bhd was not

c. that the Plaintiff pleaded fraud, misrepresentation,

d. that the Plaintiff alleged conspiracy, fraud,

e. that the said property is now charged to Malayan

f. that the Plaintiff had received consideration as her

g. that to allow the Plaintiff’s claim would be unfair

h. that it was the Plaintiff and her husband who

(also referred to as “KC Foo”) who was a broker for

The 2 nd to 4 th Defendants’ Contentions/Submissions

[13] The 2 n d to 4 th Defendants contends/submits as follows:

a. that they are the subsequent bona fide purchasers for

The circumstances leading to the execution of the alleged sale and

[14] In determining whether the said sale and purchase agreement

“(2) Whenever it was alleged that an agreement before