Investment agreements lacking necessary licenses are void; however, parties can still seek recovery of principal amounts under the Contracts Act 1950 despite such illegality.

JUDGMENT

Tee Geok Hock JC:

Introduction

[1] The Respondents/Plaintiffs sued the Appellants/Defendants in respect of an investment agreement and claimed for restitution of the investment monies and ancillary orders. At the application of the Respondents/Plaintiffs the Sessions Court granted summary judgment in their favour.

[2] On 22 July 2021 this Court dismissed the Appellants/Defendants' appeal against the Sessions Court's decision which granted summary judgment in favour of the Respondents/Plaintiffs.

[3] Dissatisfied with the dismissal of the appeal, the Appellants/Defendants by Notice of Appeal dated 11 August 2021 filed an appeal against the entirety of this Court's decision dated 22 July 2021 to the Court of Appeal.

Law On Summary Judgment

[4] In Alloy Automotive Sdn Bhd v. Perusahaan Ironfield Sdn Bhd , [1986] 1 MLJ 382; 1985 MarsdenLR 30 it was held:

"The summary jurisdiction conferred by O 81 must be used with great care. It provides a procedure similar to O 14. Where all the issues are clear, summary judgment should be given. A defendant ought not to be shut out from defending unless it is very clear that he has no case in the action. A complete defence need not be shown. The defence set up need only show that there is a triable issue or question or that for some reason there ought to be a trial...."

[5] South East Asia Insurance Bhd v. Kerajaan Malaysia , 1996 MarsdenLR 650 held as follows:

"[1] If a defendant in an O 14 application succeeds in raising even a single triable issue, it will not be a fit and proper case to order summary judgment. It is only in plain and obvious cases where there are no issues to be tried that recourse should be had to O 14."

[6] In an application for summary judgment, the Court has to analyse the allegations and defences put forward by the defendant to assess whether they have raised any real or genuine triable issue and not merely taking the face value of such allegations and defences

Background Facts

[7] On or about 3rd to 4th quarters of 2017, the Plaintiffs' were approached by North Western Services ("NWS"), ie the Defendants' company through its agent(s), representative(s) and/or proxy(s) and subsequently were introduced to the investment schemes set up by NWS [see para 6 of the Plaintiffs' Affidavit in Support ("P AIS"), p 142 of Appeal Records or Rekod Rayuan "RR"].

[8] The representations regarding the investment schemes were explained and given in the form of a brochure [see Exhibit CYL-1, P AIS, p 246, RR]. In this regard, it must be emphasized that the Defendants had not challenged the authenticity of the brochure in all the Defendants' affidavits.

[9] Relying on the written representations, the Plaintiffs then made various investments with NWS by transferring money into NWS designated accounts, which includes both NWS [see Exhibit OWL-2, D2 Affidavit in Reply ("D2 AIR"), p 470, 471 and 472, RR] and BlackBull Markets Academy ("BlackBull") accounts [see Exhibit OWL-2, D2 AIR, p 469, 473 to 479, RR]. The 1st to 6th Plaintiffs (abbreviated as "P1" to "P6") were then given their respective investment agreements, investment confirmation letters and portal screenshots. The confirmation letters and/or portal screenshot were summarised in the table below:

[10] From the exhibits referred above, it can be seen that:

10.1 For P1 to P3, the exhibits referred to were confirmation letters issued by NWS and signed by D1 himself; and

10.2 For P4 to P6, they had not obtained the confirmation letters from NWS, however, they do have the portal screenshots and further, their proofs of transfer were exhibited at Exhibit OWL-2, D2 AIR, p 475 to 479, RR.

[11] On or about July 2018, NWS issued a statement dated 2 July 2018 to say that NWS "had decided to stop all further interest payout and proceed with recovery to clear all the hedging position" [see Exhibit CYL-8, P AIS, p 316, RR].

[12] This then led to an official announcement from NWS later and finally partial refunds of the invested sum on or about January 20