The court upheld that a total failure of consideration occurred due to the Appellant's failure to fulfill obligations under the Agreement, entitling the Respondent to rescind the contract and recover payments.

JUDGMENT

Collin Lawrence Sequerah JCA:

Brief Background Facts

[1] On or about 2015, the Appellant offered the Respondent, through a Mr Tan Peng Koon also known as Derrick, a representative of the Respondent, an opportunity to participate in a mining venture in the Philippines through an equity investment by acquiring 5% shares in Phil Alstron Mining Corporation ("PAMC") and Asia Alstron Mining and Development Corp ("AAMDC").

[2] A formal Agreement was reached dated 5 January 2016 where in exchange for a 5% share acquisition of in PAMC and AAMDC for a consideration of USD 5 million, a sum of RM2 million was transferred to the Appellant's account while the sum of RM2.8 million was transferred to the Appellant through several cash advances intended for operational expenses at the request of A.

[3] Although the sums of money were paid, the shares were not transferred despite extensions of time being given. There were also other breaches of the agreement by the Appellant resulting in the Respondent terminating the Agreement and bringing an action against the Appellant while seeking for several remedies.

[4] The Appellant sought to counter-claim against the Respondent. After a full trial, the High Court ("HC") allowed the Respondent's claim while dismissing the Appellant's counter-claim.

High Court's Findings

[5] The Learned High Court Judge's ("HCJ") principal findings were as follows:

a) The Agreement of 5 January 2016 principally governed the obligations and rights of the parties;

b) There was never in existence a partnership agreement between the Appellant and Tan Peng Koon prior to the Agreement of 5 January 2016 and no such Investment letter as alleged;

c) The only parties to the Agreement of 5 January 2016 were the Respondent and the Appellant and not the Philippines Corporation;

d) The Appellant besides failing to effect the transfer of the shares PAMC and AAMC to the Respondent, also failed to appoint Tan Peng Koon to the Board of the Philippines Corporation. There were also other breaches, after which the Appellant could not be contacted;

e) The breaches by the Appellant resulted in a total failure of consideration and the Respondent was rightly entitled to elect to terminate the Agreement on this basis;

f) The Appellant had also received a further sum of RM2.8 million from the Respondent outside of the terms of the Agreement which was not intended to be gratuitous and therefore ought to be returned to the Respondent;

g) The law governing the Agreement are the laws of Malaysia and not that of the Philippines as alleged by the Appellant as evident from the plain terms of the Agreement itself;

h) The Appellant's witnesses including the Appellant himself were not credible witnesses;

i) The Respondent was never supposed to continually finance the Appellant's mining exploits in the Philippines and there was no prior investment of partnership arrangement;

j) The 2nd to the 4th payments under the Agreement were not due and payable due to failure to fulfill conditions precedent such as the failure to appoint professionals for the due diligence exercise;

k) The Appellant's claim that the RM2.8 million were due as shortfall for the 2nd payment under the Agreement had no merit;

l) The Appellant's claim that the sums of RM4.8 million were to be considered burnt lacked merit and resulted in the Appellant's unjust enrichment;

m) The Appellant's claim that he had disposed of his properties to fund the IPO or that he made advances of around PHP12,178,260.00 also lacked merit.

Our Unanimous Findings And Decision

[6] Despite the findings of the HCJ set out above, during the course of the appeal before us, the main plank in the argument of the Appellant was whether the suit should have been instituted by Sungai Wang Investment Ltd ("Respondent") or Tan Peng Koon hereinafter, Derrick.

[7] This argument was predicated on the Appellant's interpretation of the Respondent's letter dated 5 January 2016 that the phrase "us or our nominees" was a reference to Derrick.

[8] T