The court reiterated that a total failure of consideration allows a party to recover amounts paid under a contract.

(Enclosure 1)

Hayatul Akmal Abdul Aziz J:

Introduction

[1] The parties are:

1.1 The plaintiff:

1.1.1 Is a company incorporated in Hong Kong with a registered business office in Malaysia; and

1.1.2 Its principal representative in Malaysia is one Tan Peng Koon (Tan), a shareholder and a director of the plaintiff.

1.2 The defendant:

1.2.1 A Malaysian individual; and

1.2.2 At the material time was a Director/Officer/Treasurer of Phil Alstron Mining Corp, Philippines (Co. No. CS201329172), (PAMC).

[2] In a nutshell, the facts are:

2.1 Sometime in 2015, the defendant offered the plaintiff, through Tan, an opportunity to partake in a mining venture in the Philippines via an equity investment by acquiring 5% shares in both PAMC and Asia Alstron Mining and Development Corp (AAMDC).

2.2 A formal agreement (the Agreement) was reached on 5 January 2016, where out of the total consideration for the 5% share acquisition of USD 5mil, a sum of RM2mil was transferred to the defendant's account towards the intended purchase under the Agreement, while RM2.8mil was transferred to the defendant via several cash advances intended for operational expenses at the request of the defendant.

2.3 This bargain was subsequently reneged, leading to this suit. Aggrieved with this default:

2.3.1 The plaintiff terminated the Agreement and sued the defendant to return the RM4.8mil, a declaration that the Agreement between the plaintiff and the defendant dated 5 January 2016 was lawfully terminated and other prayers.

2.3.2 The defendant, filed a counterclaim against the plaintiff and Tan for damages on an alleged breach, a declaration that the contract contained in the Letter of Investment has been terminated and other prayers.

[3] On 31 January 2023:

3.1 After considering the facts, all evidence adduced at the trial, and the parties' respective written and oral arguments, on the balance of probabilities, I find the scale of evidence tilted in the plaintiff's favour:

3.1.1 I allowed the plaintiff's claim and ordered that the sum of RM4,800.000.00 is to be returned to the plaintiff;

3.1.2 I find no merits in the counterclaim by the defendant, and it is dismissed; and

3.1.3 Costs of RM40,000.00 are to be paid by the defendant to the plaintiff within 30 days from the date of this Order.

[4] Dissatisfied, the defendant filed three notices of appeal:

4.1 In allowing the plaintiff's claim against the defendant and dismissing the defendant's counterclaim against the plaintiff;

4.2 In declaring that the Agreement dated 5 January 2016 entered between the parties was lawfully terminated on 19 October 2017, the sum of RM4,800,000.00 was held on trust by the defendant for the benefit of the plaintiff, and the said sum is returned to the plaintiff with an interest of 5% per annum from 19 October 2017 until full realisation and costs; and

4.3 In dismissing the counterclaim by the defendant against the plaintiff, Tan, and costs.

The Salient Facts

[5] The breached contractual transaction by the parties includes:

5.1 To eventually participate in an undertaking for a proposed Initial Public Offering (IPO) of PAMC;

5.2 PAMC is given a 25-year lease to carry out mining activities on approximately 305 hectares of land in Tubay, Agusan Del Norte Province, Mindanao, Philippines, with the possibility of an extension of a further 25 years;

5.3 The defendant claimed to hold substantial equity in AAMDC or a company with a similar name that also was given a lease to carry out mining activities on approximately 300 hectares of land in Santiago, Agusan Del Norte Province, Mindanao, Philippines, which is neighbouring the PA