Payment made under a mistake of fact is recoverable, regardless of negligence attributed to the payer.

[1] The Plaintiff in this Suit is claiming for amongst others the following relief:-

(i) a declaration that:-

a. the Defendants are constructive trustee for the said RM308,000.00 held in the Syarikat Kear Seng's Account;

b. the Plaintiff is the beneficiary of the said RM308,000.00 which is held in Syarikat Kear Seng's Account;

c. the Defendants are liable to pay the said RM308,000.00 to the Plaintiff as constructive trustee;

(ii) in the alternative to sub-paragraph (i) above, a declaration that the RM308,000.00 held in Syarikat Kear Seng's Account as monies had and received by the 1^st to 4^th and/or 5^th Defendant to the Plaintiff's use;

(iii) an order that the 1^st, 2^nd, 3^rd, 4^th and/or 5^th Defendant do within seven (7) days from the date of the Order is made, pay to the Plaintiff:-

a. the said RM308,000.00;

b. interests on the said RM308,000.00 at the rate of 4.0% per annum calculated from 19 September 2011 to the date of full and final payment thereof or at such rate and for such period as this Honourable Court deems fit and just;

(iv) damages to be assessed;

(v) costs to be taxed by a proper officer of the Court; and

(vi) such further orders or relief as this Honourable Court deems just and fit.

Background

[2] The Plaintiff is a licensed bank under the Banking and Financial Institutions Act 1989. The 1^st, 2^nd and 3^rd Defendants are in a partnership operating under the name and style of Syarikat Kear Seng Trading (Kear Seng) with a place of business in Tawau, Sabah. Kear Seng is a customer of the 5^th Defendant and maintains an account bearing account no. 3062600036 at the 5^th Defendant's branch in Tawau.

[3] Supermax Latex Products Sdn Bhd (Supermax) is a customer of the Plaintiff and maintained a current account with the Plaintiff. On 19 September 2011 the Plaintiff received a letter of authorization dated 19 September 2011 purportedly issued by Supermax authorizing one Ng Kok Wee to represent Supermax for the transfer of the sum of RM308,000.00 to Kear Seng from Supermax. The said authorization letter was accompanied with a manual payment order dated the same day for the said transfer and was purportedly signed by an authorized signatory of Supermax.

[4] Acting on the authorization letter, the manual payment as well instructions by Ng Kok Wee the Plaintiff transferred the sum of RM308,000 into Kear Seng's account via Real Time Electronic Transfer of Funds and Securities also known as RENTAS. On 20 September 2011 Supermax discovered that the sum of RM308,000.00 had been debited form Supermax's account and remitted to Tawau. Supermax immediately notified the Plaintiff that they had not authorized the said transfer.

[5] By a letter dated 20 September 211 Supermax requested the Plaintiff to credit back the sum transferred and at the same time lodged a police report as to the unauthorized transfer. Upon being notified of the unauthorised transfer the Plaintiff immediately issued a RENTAS instruction to the 5^th Defendant for the refund of the said amount. The Plaintiff also contacted the 5^th Defendant at the Tawau Branch and was informed that the said sum would be frozen. The Plaintiff lodged a police report on 23 September 2011 and by a letter through its solicitors requested the repayment of the said sum.

[6] By a letter dated 28 September 2011 the 5^th Defendant's solicitors informed the Plaintiff that since a police report had been lodged the 5^th Defendant had taken steps to freeze the said amount in Kear Seng's account with the consent of Kear Seng pending police investigation.

[7] The Plaintiff has credited the said amount into Supermax's account. By a letter dated 7 December 2011 the 5^thDefendant's solicitors informed the Plaintiff's solicitors that Kear Seng wishes to withdraw the said amount and the that the 5^th Defendant was constrained to obli