A plaintiff in a claim for unjust enrichment must establish that the defendant is unjustly enriched by proving all elements under Section 71 of the Contracts Act, including non-gratuitous intent and the enjoyment of benefits.

Celestina Stuel Galid J:

Introduction

The Parties

[1] The parties will be referred to herein as they were in the Sessions Court.

[2] The Plaintiff and the Defendant are siblings and sons of the late Hsu, Shui-Mao ("the late "Hsu") and his wife, the late Yen, Shu-Ying. They are nationals of the Republic of China.

The Claim

[3] The Plaintiff sued the Defendant for the sum of New Taiwan Dollar Two Million (NT$2,000,000.00) ("the said sum") (equivalent to RM295,270.00 as at the date of the judgment of the Sessions Court) which he claimed to have lent for the latter's personal expenses and consumption sometime in May of 2017. The said sum was to be repaid, however, the Defendant failed, refused and or neglected to do so. Therefore, the Plaintiff sued for unjust enrichment and restitution.

The Defence

[4] The Defendant did not deny having received the said sum but pleaded that the said sum was money remitted by the Plaintiff to him for and on behalf of the late Hsu.

The Sessions Court's Decision

[5] The learned Sessions Court Judge ("LSCJ") allowed the Plaintiff's claim, inter alia, holding that it was more probable than not that the said sum which was remitted by the Plaintiff into the bank account of the Defendant with Public Bank Berhad was made with non-gratuitous intent. The LSCJ also found the Plaintiff to be a credible witness.

[6] The LSCJ did not accept the Defendant's evidence that the said sum which was deposited into the Defendant's account and later transferred into a bank account held by Bowang PVC Products Sdn Bhd ("Bowang"), a company owned by the Defendant and the late Hsu, belonged to the latter.

Principles On Appellate Intervention

[7] As it is trite law, this Court will not belabour on the principles on appellate intervention but it is suffice to refer to the case of Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors 2020 MarsdenLR 756 ; ; [2020] 10 CLJ 1 where the Federal Court looked at the approach taken and applied by the UK Supreme Court and by the Malaysian courts.

[8] Speaking for the Justices of the Federal Court, Zabariah Yusof FCJ, inter alia, stated the following:

"...whilst there is slight difference in approach of appellate intervention, both the UK Supreme Court and our Federal Court effectively shares a common thread where it has been held that appellate intervention is justified where there is lack of judicial appreciation of evidence.

[75] The Court of Appeal in Singapore applies the plainly wrong test which is similar to our Federal Court, as illustrated in Damu Jadhao v. Paras Nath Singh 1965 MarsdenLR 73; [1976] 1 MLJ 151, when it held:

The principles under which an appellate Court acts when an appellant seeks to displace the conclusion arrived at by a trial judge on questions of fact have been very recently restated by the Privy Council in the case of Tay Kheng Hong v. Heap Moh Steamship Co Ltd 1964 MarsdenLR 141; 1960 MarsdenLR 359 at 153 need only refer to a passage of the judgment of Lord Guest when dealing with the matter, where he states:

Before the Court of Appeal in Singapore was entitled to reject the trial judge's estimate of the credibility of the appellant and Goh Leh, they would have to be satisfied that the trial judge's view was plainly wrong and that any advantage which he enjoyed by having seen and heard the witnesses was not sufficient to explain his conclusion.

This case seems to me to be completely dependent on the trial judge's estimate of the credibility of the appellant and his witnesses and nothing that counsel for the appellant has put forward in