The onus of proof lies with the party asserting claims and allegations, and failure to provide substantial evidence results in dismissal.

JUDGMENT

SM Komathy Suppiah J:

The Trial

[1] This action is brought by the plaintiff, Lee Teck Lip against the defendants Lee Kok Thian and Thien Seng Chan Sdn Bhd for the refund of monies arising out of an agreement to purchase two shoplots.

Background Facts

[2] Save where otherwise indicated, the following facts were all agreed or not disputed.

[3] The plaintiff and the first defendant were goods friends who had many business dealings with each other. The first defendant is a director and shareholder in the second defendant, a property development company.

[4] In 2012, the second defendant was involved in a housing development project known as D' Kebun Commercial Centre at Kota Kemuning, Selangor. The project involved the construction of 5 storey shoplots for sale to the public. The plaintiff approached the first defendant to inquire about the development and was informed that the selling price was yet to be determined and the estimated selling price for each unit was between RM2 million to RM2.3 million.

[5] On 3 January 2012, the plaintiff and the first defendant met at a coffee shop. There, the plaintiff handed to the first defendant a banker's cheque for RM500,000.00 made payable to the second defendant. There is a dispute as to the purpose of this payment. The parties' versions of events differ on this point.

[6] On 20 September 2012, the second defendant, sold two shoplots to the plaintiff's nominess, Vicmeta Composite Sdn Bhd and Foamcrete Cornice JV Sdn Bhd (who are named as the third and fourth defendants in the counterclaim). The transaction was effected via 10 sale and sale and purchase agreements (hereinafter referred together as 'the agreement') ie one agreement for each level. The agreement was prepared by the defendants solicitors.

[7] Clause 12.10 of the agreement provided "this Agreement shall supersede any other agreements, letters, correspondences (whether oral or written or expressed or implied) entered prior to this Agreement." It further stated that the purchase price for each shoplot was RM2.2 million.

[8] The total purchase price payable under the agreement was therefore RM4.4 million. The second defendant issued credit notes for RM1.4 million and as a result the plaintiff paid only RM3 million for the two shoplots.

[9] In April 2018, the plaintiff instituted this action against the first and second defendants for the return of the deposit with interest and costs. No notice of demand was issued to the defendants prior to the filing of this action. The defendants denied liability and brought a counterclaim for the balance of the purchase price amounting to RM1.4 million.

Case For The Plaintiff

[10] It was the plaintiff's case that the defendants had on 3 January 2012, agreed to sell to him two shoplots at RM3 million on condition he paid in advance a sum of RM500,000.00 as deposit and/or upfront payment towards the purchase price. This first defendant signed a document ("the disputed document") acknowledging the terms agreed between them. According to the plaintiff, the cheque for RM500,000.00 was handed to the first defendant pursuant to this oral agreement as upfront payment. The balance payable to the defendants was RM2.5 million.

[11] It was also the plaintiff's case that, however, before the signing of the agreement, the defendants told him that the initial payment of RM500,000.00 would not be reflected in the agreement, and required him to pay the full RM3 million on their promise to refund the said sum on the date of the signing of the sale and purchase agreement. The plaintiff alleged that in breach of the promise made, the defendants have failed to refund the deposit paid.

Case For The Defendants

[12] The defendants denied that the first defendant had signed the disputed document. It was the defendants case that the plaintiff paid the RM500,000.00 as commission or consideration to persuade them to sell the two shoplots at a special discounted price of RM1.5 million each. The defendants alleged that it was for