Gopal Sri Ram JCA (majority):

This appeal has been brought against the decision of the High Court of Ipoh entering judgment for the respondent/plaintiff in the sum of RM663,000 and consequential relief. Judgment was also entered for the appellant/defendant on his counterclaim in the sum of RM100,640.99 together with interest and other ancillary relief. A cross appeal against judgment on the counterclaim has also been pursued before us.

The main thrust of the appeal is directed against the judge's finding that the respondent had established a cause of action in the quasi-contractual claim for money had and received on the ground that there had been a total failure of consideration. In a carefully developed argument, Dato' Mahinder Singh has submitted that the statement of claim delivered by the respondent has failed to set out the essential ingredients to sustain an action for money had and received. He complains, not without justification, that the pleaded case of the respondent is woefully bad because it does not allege either a contract or other equivalent legal basis on which a claim for money had and received is grounded.

I accept, as did the learned judge, that the statement of claim is less than adequate as a perfect pleading. But equally, I must say that I am in agreement with the learned judge and with Mr. Abraham, who has argued the respondent's case before us, that the necessary facts to sustain a cause of action for money had and received, have been sufficiently pleaded in the statement of claim. The fact that the defendant was in no way misled by what the plaintiff was seeking to prove or establish is confirmed by the defendant's defence: in the way in which the appellant has answered the allegations in the statement of claim.

In Lever Brothers Ltd v. Bell[1931] 1 KB 557, (applied by this court in Quah Swee Khoon v. Sime Darby Berhad [2001] 1 CLJ 9), Scrutton LJ adverted to the necessity of pleading only material facts. He said:

The practice of the courts is to consider and deal with the legal result of pleaded facts, although the particular legal result alleged is not stated in the pleading.

So too here. The respondent has sufficiently set out the fact pattern on which it seeks to rely in support of its claim for money had and received.

The central question in the appeal is therefore whether the learned judge was right in concluding that there was a total failure of consideration warranting the making of a restitutionary order. And it is upon this issue that counsel on both sides have focussed their arguments.

Dato' Mahinder Singh has argued that the learned judge's assessment of the evidence in the round was misconceived. In other words, there was no judicial appreciation of the evidence. Counsel has in his usual manner, painstakingly taken us through the important areas of the evidence both oral and documentary. He submits that the proper conclusion to be drawn from the totality of the evidence is that the appellant had acted as a mere conduit and had done all that was required of him. There was therefore no factual basis upon which the learned judge could have come to the conclusion that he did. I trust that I will be forgiven if I do not deal with every argument and sub-argument that Dato' Mahinder has advanced to us on this part of the case. I think I have done counsel no injury in the way in which I have summed up his arguments.

For the respondent, Mr. Abraham has argued that the real question is whether the applicant received the moneys in question, and used them for the purpose for which they were given to him. He says that on the pleaded facts, there is revealed sufficiently, a contract between the appellant and the respondent, by the terms of which the appellant was to obtain for the respondent's benefit, certain joint venture agreements of certain lands for cultivation into an oil palm plantation. Counsel argues that the consideration for this agreement was the payment of the moneys set out in