The court said Ong Koh Hou, 75, was the “architect of his own loss” and dismissed his counterclaim against Lim Swee Choo, 59, and Chiam Eng Huat, 77.
In June 2015, Lim and Chiam purchased four plots of land in Rawang from DA Land Sdn Bhd for RM23 million. However, the transfer of the titles for the plots of land were not completed, as one plot was under a caveat.
A few months later, Lim and Chiam with DA Land’s consent, signed an assignment agreement with Ong for the four plots, valued at RM25.5 million. Ong paid RM23 million, with the remaining RM2.5 million unpaid.
Under the assignment agreement, Ong was to effect the transfer of the titles directly from DA Land to himself.
However, Ong later signed a separate agreement with DA Land to purchase three of the four plots for RM84 million. The RM23 million paid earlier was utilised as a deposit in this new agreement.
The Shah Alam High Court had earlier found that Ong was an unlicensed moneylender (the reason for the price discrepancy above) and had ordered that the RM23 million deposit be forfeited. This happened after a dispute arose between Ong and DA Land, culminating in two suits filed at the Shah Alam High Court.
Due to Ong’s breach of the assignment agreement, Lim and Chiam filed a suit to claim for the balance RM2.5 million. Ong then counter-claimed for the return of the RM23 million. The High Court dismissed both Lim and Chiam’s suit as well as Ong’s counterclaim.
The Court of Appeal subsequently dismissed Lim and Chiam’s appeal but allowed Ong’s. Lim and Chiam were ordered to return the RM23 million on the basis of a total failure of consideration.
In a unanimous decision, the apex court last week held that Lim and Chiam need not return the RM23 million to Ong. The court also ordered Ong to pay the duo the RM2.5 million, plus 5% annual interest from the date of the judgment.
The court, led by Justice Abdul Rahman Sebli, stated that Ong had used the RM23 million in a deal that Lim and Chiam had no part in. It found there was no total failure of consideration, and Ong was not entitled to restitution.
“The respondent (Ong) was the architect of his own loss and is barred from making a claim,” the court said.
The other judges on the bench were Justices Zabariah Yusof, Rhodzariah Bujang, Abdul Karim Abdul Jalil and Ahmad Terrirudin Salleh.
The apex court also ruled that refunds would not apply when the other party had performed part of their obligation. The court also said in using the RM23 million in a separate deal with DA Land, Ong was doing so at his own risk.
The court also awarded general damages to Lim and Chiam, which would be assessed by the High Court, and ordered Ong to pay RM150,000 in costs.
Lawyers Cyrus Das, Low Weng Tchung and Jaden Phoon appeared for Lim and Chiam. Alfred Lai and Toh Mei Swan acted for Ong.