Payments advanced for land purchases subject to illegal agreements may be recoverable if based on independent mutual undertakings, regardless of potential illegality in agreements.

The plaintiffs claim is for RM522,500.00 being money paid to the defendant pursuant to a mutual understanding to refund between the plaintiff and defendant in respect of sale a purchase of Lands from the land applicants. The defendant denies the claim on the ground that the purchase of Lands was tainted with illegality. Counsel for the parties had agreed to deal with this suit by way of agreed issues of the parties pursuant to Order 14A rule (1) and (2) and Order 33 rule 5 and they are as set out below.

Background facts;

The plaintiff on or about 2003 was approached by the defendant for the sale of between 93 and 98 lots of land purported to be suitable for agricultural purpose of approximately 15 acres each located at Kampong Bangol, Sinusut situated in the District of Tenom, Sabah (Lands) to the plaintiff or its nominees by the respective land applicants of the Lands. Between the months of October 2003 and April 2007, at the defendant's request, the plaintiff made advances totalling RM522,500.00 to the defendant, the receipt of which is not denied. Those advances were made to facilitate the defendant to process the land application of the Lands by the Lands applicants. The defendant has to this date failed or neglected to procure the survey permit or the necessary approval(s) from the relevant Lands and Surveys Department for the survey of the said Lands and in view of this failure, the plaintiff now claims for the refund of the money advanced on the alleged the mutual understanding and agreement of the parties that if the defendant failed to procure the necessary survey permits in respect of the Lands, the defendant would refund all the advances or moneys advanced by the plaintiff as evidenced in writing dated 13th November, 2003 duly signed by the Defendant in person.