Unjust enrichment claims cannot override the terms of an existing contract.

[1] This was an appeal by Kosbina Konsult (K) Sdn Bhd ("the appellant") against the decision of the High Court in allowing Madu Jaya Development Sdn Bhd's ("the respondent") claim for inter alia certain monies that the appellant obtained from the Government of Malaysia ("the Government").

[2] We had unanimously allowed the appeal. These are our full reasons.

The Background Facts

[3] On 12 June 2003, the appellant was awarded a contract by the Government for a project known as 'Naik Taraf Laluan Persekutuan 136 Dari Persimpangan Jalan Masuk ke Lebuhraya Utara/Selatan Hingga Bandar Baru (Km 42-Km 50)' ("the main contract").

[4] By way of a subcontract dated 5 May 2004 entered into between the appellant and Danaukhas Holdings Sdn Bhd ("Danaukhas") (now in liquidation), the entire works of the main contract was awarded to Danaukhas. The terms of the subcontract between the appellant and Danuakhas, inter alia was that the appellant was entitled to 10% commission of the subcontract sum. The value of the main contract and the subcontract was RM48,325,771.65.

[5] Due to the slow progress of the works by Danaukhas, by a letter dated 13 January 2005, Danaukhas assigned the subcontract to Madu Jaya Enterprise Sdn Bhd ("MJE"). On 20 January 2005, a subcontract agreement was entered into between the appellant and MJE where MJE was awarded the subcontract works. The same contract terms between the appellant and Danaukhas were adopted except that with regards the commission, the ratio between MJE and the appellant was adjusted to 92:8.

[6] As it turned out, most of the correspondences and work flow during the project was not between the appellant and MJE but between the appellant and the respondent. The common factor between MJE and the respondent was Angie Ng Suat Leh, PW2 ("Angie") who owns 99.99% shares of both MJE and the respondent.

[7] Several problems arose in the course of the works resulting in four extensions being given by the Government to the appellant. As at 16 February 2007, 90% of the main contract works were completed.

[8] By a letter dated 21 February 2007, the Government terminated the main contract. Consequently, the subcontract between the appellant and the respondent was also terminated.

[9] Initially, the respondent was supposed to cooperate with the appellant to commence arbitration proceedings against the Government for the purported wrongful termination of the main contract. However, as the matter progressed, the appellant proceeded on its own against the Government without any contribution of finance or witnesses from the respondent.

[10] In the arbitration against the Government, the appellant claimed for various heads of damages while the Government had also counterclaimed against the appellant.

[11] On 6 July 2011, an interim award of RM7,781,369.05 was made in favour of the appellant. By a final award dated 10 October 2012, the appellant was awarded the sum of RM14,092,007.68 and the Government's counterclaim was allowed for the sum of RM295,000.00. After making adjustments for the counterclaim, the appellant was awarded a total sum of RM21,873,376.73.

Proceedings In The High Court

[12] In 2014, MJE commenced an action against the appellant in the High Court Kuala Lumpur claiming for compensation for works done in the project. Amongst others, MJE claimed against the appellant a sum awarded against the Government in the arbitration based on the sharing formula of 92:8 in the subcontract dated 20 January 2005.

[13] The action was dismissed by the High Court on 26 June 2015 principally on the ground that MJE was the wrong entity; that MJE was out of time in filing the action and that the various claims were not properly proven ("the first suit"). The decision of the High Court was affirmed by this Court o