Agreements can be void for being contrary to public policy even if not illegal, based on the circumstances surrounding their formation.

[1] This judgment is prepared pursuant to s 78(1) of the Courts of Judicature Act 1964, as my learned brother Justice Ramly Ali FCJ and my learned sister Justice Alizatul Khair Osman Khairuddin FCJ have since retired. My learned brother Ahmad Maarop PCA, and my learned brother Justice Idrus Harun FCJ had read this judgment in draft and both of them agreed that this be our Judgment.

Salient Facts Of The Case

[2] The plaintiff in this case, Yogananthy A S Thambaiya ("the appellant") claims against Idris bin Osman ("the deceased") 55% of the deceased's shareholding in the latter's stock broking company, R & I Securities Sdn Bhd ("R & I") which at the material time was under receivership. It was a consideration for the appellant who gave financial assistance in the reorganisation of R & I by injecting monies into the latter to salvage it from financial difficulties.

[3] The deceased passed away in 2004 and his sons were substituted into the action as administrators of the estate of the deceased pursuant to the Federal Court's Order dated 12 September 2018. The estate of the deceased is thus referred to as the respondent.

[4] The appellant's claim is grounded on two documents listed as 'a' and 'b' below, namely:

a. A Statutory Declaration ("SD") allegedly affirmed by the deceased, dated 12 August 1987 which, according to the appellant evinced the fact of an agreement between the appellant and the deceased. The material part of the SD is set out in paras (2) and (3), where the deceased had stated as follows:

"(2) I am transferring the said 55% of the equity capital in R & I SECURITIES SDN to YOGANANTHY A/P A S THAMBAIYA in consideration for her help in proposing the reorganization scheme and putting forth the required collateral and cash as deemed necessary by the bankers for the revival and reactivation of the stock broking business of R & I SECURITIES SDN.

(3) I shall hold in trust the share certificates for the said 55% of the equity capital of R &I SECURITIES SDN belonging to YOGANANTHY A/P A S THAMBAIYA for the benefit of her or her nominees until such time as the conditions for the holding of equity in the stock broking company as required by the Kuala Lumpur Stock Exchange is satisfied by her or her nominees."

b. An agreement dated 8 February 1988 ("the Agreement") between the deceased ("as Qualifier"), the company, and the appellant ("referred to as the Financier") which articulated the broad terms established by the SD. Clause 1(d) of the Agreement provides:

"1) the Financier shall loan the sum of Malaysia Ringgit Five Hundred Thousand (MYR $500,000.00) in the company via a personal loan to the Qualifier on condition that the Company shall reconstitute itself, pay off creditors partially in accordance with the Deed of Arrangement and resume business as follows ..."

(d) the Qualifier shall hold 95% of the Shares in the company on his own behalf and as Trustees for the other names in the "Schedule of Shares" in the following proportion:

Qualifier 40% or 1,280,000 shares

Yogananthy NP A.S Thambaiya 55% or 1,760,000 shares"

[5] The appellant contended that the deceased had breached the SD and the Agreement by not transferring the 55% shares in R & I to the appellant. The deceased had instead sold the entire said shares to a third