Gunn Chit Tuan J

In this suit the plaintiff, Development and Commercial Bank Limited, New Hebrides (In Liquidation), a company incorporated in the New Hebrides (now known as Vanuatu) was at all material times, until it was ordered to be wound up by the New Hebrides High Court on April 30, 1976, (exhibit P8) carrying on the business of a bank. The suit was therefore presented by the plaintiff in 1981 through the Official Receiver of Vanuatu as the liquidator of the plaintiff (exhibit P9) to claim repayment of loans of US$25,000 and US$100,000, alternatively the equivalent thereof in ringgit, from the defendant, New Kok Ann Realty Sdn. Bhd.

It was averred in paragraphs 3 and 4 of the amended statement of claim that by a cheque (which has been duly honoured) dated June 23, 1975, and drawn by the plaintiff on Peninsula National Bank of Burlingame, U.S.A., (P.N.B.), the plaintiff advanced by way of loan to the defendant the sum of US$25,000/-. By a cheque (which has also been duly honoured), dated August 18, 1975, and likewise drawn by the plaintiff on the said Peninsula National Bank, the plaintiff advanced to the defendant by way of loan the further sum of US$100,000/-.

In paragraph 7 of the amended statement of claim it was averred further and in the alternative, if (which is denied), it be held that the said sums of US$25,000 and US$100,000 were not advanced to the defendant on expressed terms that each, was to be a loan, the plaintiff would contend that the defendant received the same to its use and is liable to account therefor as money had and received.

In paragraph 7A of the statement of claim, the amendment of which was objected to by Mr. K.Y. Choo, counsel for the defendant, and allowed by me, it was averred in the further alternative that the plaintiff contends that the defendant is bound by the provisions of section 71 of the Contracts Act, 1950, to repay or to make compensation to the plaintiff in the sum of US$125,000.

The defendant in paragraph 3 of the amended defence averred that it did not at any time or at the material time request the plaintiff for the grant of the alleged advance by way of loan of US$25,000 or the sum of US$100,000 alleged in paragraphs 3 and 4 of the plaintiff's statement of claim, and the plaintiff did not at any time grant to the defendant the said two loans or either of them or at all. It was also stated in paragraph 5 of the amended defence that if, which is denied, that the alleged two sums of US$25,000 and US$100,000 were paid into the account of the defendant, the defendant avers that it had not at the material time or at any time agreed or promised to repay to the plaintiff the said sums or any other sum. The defendant also pleaded that, if which is denied, that the said two sums of US$25,000 and US$100,000 were remitted to the defendant they were not received by the defendant to its use and/or for its benefit. In the further alternative it was averred by the defendant in paragraph 7 of the amended defence that if the said two sums of money were remitted by the plaintiff to the defendant, which is denied, the defendant stated that they were not for the use or benefit of the defendant but for the use and benefit of Mosbert Finance (Hong Kong) Limited and/or other persons or companies.

A solicitor called Murram Bruce Elrington (P.W.2) from the Official Receiver's office, Hong Kong, told the court that a Mosbert Liquidation Unit was set up in 1976. There were many companies in the Mosbert Group in which one Amos Dawe had an interest. There were about 30 companies in Hong Kong, Singapore, New Hebrides and Malaysia. The Official Receiver of Hong Kong was appointed liquidator of some of these companies including the plaintiff and he started work in the said Unit about six months ago. Apart from the said exhibits marked P8 and P9 this witness also produced a copy of the order of the Supreme Court of Vanuatu (exhibit P10) authorising the Official Receiver, Hong Kong, to bring actions anywhere