The court determined that a sale agreement falsely presented as genuine was, in fact, a sham contract facilitating illegal moneylending, rendering it unenforceable.

Introduction

[1] The Plaintiffs' case arises from an agreement entered into with the 1st Defendant to buy her house. Having fully paid for the property, the 1st Defendant failed to deliver vacant possession. They seek for a declaration to the effect that the various documents executed by the 1st Defendant giving effect to the sale of her house to them is valid and for an order that she delivers vacant possession to them.

[2] The 1st Defendant in turn, claims that she never intended to sell her property. She only wanted a loan, and had executed documents pertaining a loan. She was shocked to later discover she had executed documents relating to a sale and purchase agreement. She claims she was deceived into doing so.

Salient Facts

[3] The facts in so far as they are reflected in the documentary evidence adduced at the trial, are as follows.

[4] On 8 September 2015, the Plaintiffs and the 1st Defendant ("D1") executed a Sale and Purchase Agreement ("SPA") to sell the latter's property held under title HS(M) 8846, PT No 42, Mukim Petaling, Daerah Petaling, Selangor Darul Ehsan ("said property") for a sum of RM 150,000.00. The said property was a double storey link house bearing address No 14, Jalan PJS 4/20, Taman Medan, 46000 Petaling Jaya, Selangor. The SPA was dated a day later, on 9 September 2015.

[5] The said property is currently occupied by D1 and her son, the 2nd Defendant ("D2").

[6] Simultaneous with the execution of the SPA, D1 also signed a Trust Deed whereby the D1 acknowledged the Plaintiffs as beneficial owners and that she was a mere trustee of the property.

[7] A Power of Attorney ("PA") was also executed the same day, the Plaintiffs as her attorneys for D1 to execute and perform all acts in relation to the said property.

[8] In addition, the parties also executed an undated Memorandum of Transfer in Form 14A.

[9] The SPA, T rust Deed, PA and Form 14A were prepared by the firm of Messrs. Nurliny, Pannir Mannar & Co at the request of the Plaintiffs. Mr Pannirselvam a/l Mannar (PW1), an advocate and solicitor from the firm, attended to the documentation. He also witnessed and authenticated the signature and thumbprint of D1 on the documents.

[10] Subsequent to the execution, parties attended the office of Messrs. Nurliny, Pannir Mannar & Co on a later date to pay and collect the purchase price monies. There is a dispute as to whether it was14.9.2015 or 15 May 2015. I am of the view that the difference in dates is not significant and nothing turns on it.

[11] However, the amount paid and received by the respective parties is in serious contention. This conflict in evidence will be dealt with it in greater detail later.

[12] At the material time, the said property was charged to Hong Leong Bank Berhad. D1 signed a letter dated 8 October 2015 authorizing Messrs. Nurliny, Pannir Mannar & Co to attend to the discharge of charge of the property. The redemption sum of RM 58,400.00 was paid by the firm to Hong Leong Bank Berhad. Upon receipt of the redemption sum, the bank released the original security documents to Messrs. Nurliny, Pannir Mannar & Co on28.10.2015 for its further action. The title to the said property is currently with PW1 's firm.

[13] Clause 10 of the SPA states that "Vacant Possession of the said Property shall be delivered to the Purchaser(s) upon execution of this Agreement." Nonetheless, parties by consent agreed to a late