The court affirmed the principle that a claim for unjust enrichment is valid even if a contract has been repudiated, and such claims must be adequately pleaded without being statute-barred upon timely discovery of breach.

JUDGMENT

Mohd Sofian Abdul Razak JCA:

Introduction

[1] This is the appellant/plaintiff's appeal against the decision of the High Court in dismissing the appellant/plaintiff's claim against the 2nd defendant with no order as to costs.

[2] For ease of reference, parties shall be referred to as they were in the proceedings before the High Court namely the appellant as plaintiff and the respondent as the defendant.

[3] Having considered the appeal records and the submissions of the parties in the appeal, it is our unanimous decision that the appeal is allowed with no order as to costs. We now give our reasons for the same.

Background Facts

[4] The plaintiff and the 1st defendant are father and son. They worked together and ran what is known today as the Konkasaki Group. The 1st defendant worked as the Office Manager and was appointed Directors in several companies in the Konkasaki Group. The 2nd defendant was also given shares in the companies in the Konkasaki Group.

[5] Due to some misunderstanding they both agreed to amicably part ways. It all started in early 2005 when the 1st defendant allegedly assaulted the plaintiff over a heated argument with his wife (the mother of the 1st defendant). It would appear that the heated argument was due to the plaintiff's infidelity.

[6] The plaintiff had wanted the 1st defendant to resign as Directors in all companies in Konkasaki Group and to return all the 1st defendant's shares in Konkasaki Group to the plaintiff.

[7] The plaintiff was not only angry with the 1st defendant, but he appeared to no longer want to have to do anything with him. It would appear that he needed to renounce the 1st defendant as his son.

[8] The plaintiff had called his brother, Paul Kong Pak Nam (Mr Paul) to help out. There were discussions with Paul on how best for them to part ways. The discussions being successful, Paul had then prepared a Memorandum of Understanding ("MOU") setting out the terms of their parting which was then signed by both the plaintiff and the 1st defendant. The MOU was dated the 14 May 2005.

[9] Subsequent to that, the plaintiff discovered that the 1st defendant had breached the MOU and had caused AKL Construction Sdn Bhd (previously known as Pembangunan Daspel Sdn Bhd) to enter into various sale and purchase agreements (SPA) dated on or about 18 April 2006 with one Usin Bin Jatin in respect of Lots 3 to 7, 18 to 20, 30 to 36 at Kolombong Light Industrial Centre (14 units), which had already been agreed to be transferred to Mohamad Sari Bin Datuk Haji Nuar and Sandralilah Bte Mohd Said or their respective nominees.

[10] The plaintiff therefore alleged that the 1st defendant had repudiated his obligations under the MOU and acted as he was no longer bound by its terms Hence, this Plaintiff's suit against the 1st and 2nd defendant.

[11] Plaintiff, in para 17 of the Statement of Claim prayed as in the following:

17. as a result of the 1st defendant's actions, the plaintiff has suffered losses and damage.

Wherefore, the plaintiff claims against the 1st and 2nd defendants:

(a) a declaration that the 1st defendant has repudiated his obligation under the MOU dated 14 May 2005 between the plaintiff and the 1st defendant;

(b) an order that the 1st defendant cause all the shares in AKL Construction Sdn Bhd to be re-transferred to the plaintiff and/ or his nominees within 7 days;

(c) an order the 2nd defendant transfer all the shares in AKL Construction Sdn Bhd and Sabalight Sdn Bhd to be re-transferred to the plaintiff and/or his nominees within 7 days;

(d) further or in the alternative, that the Registrar of the High Court execute share transfer form for the transfer of all the shares in AKL Construction Sdn Bhd and Sabalight Sdn Bhd to be re-transferred to the plaintiff and/or his nominees;

(e) further on in the alternative, damages to be assessed;

(f) interest on damages, as may be ordered by this Honourable Court, at the rate of 5% or at such rate, as may be ordered by this Honourable Court, from the date hereof until