1. ) OI KONG GEE 2. ) KHOO LAY SIM v TEO HOW KEN

Case Significance

Illustrates that enforcement of a consent judgment by a writ of possession will not be permitted mechanically for a delayed instalment where the paying party is in substance the aggrieved purchaser in possession and the other party would be unjustly enriched, applying the four-element unjust-enrichment test.

This High Court decision at Alor Setar is an appeal against a Sessions Court's refusal to set aside a writ of possession, and it turns on the effect of a consent judgment and the doctrine of unjust enrichment. The respondent was the proprietor of land in Langkawi which he had agreed to sell to the appellants under a sale and purchase agreement for RM350,000; the appellants had possession of the property. When the respondent refused to transfer the title within the stipulated period, the appellants sued for specific performance, and the dispute was ultimately compromised by a consent judgment under which the appellants were to pay RM150,000 as full and final settlement in three instalments. A delay in paying the final instalment led the respondent to obtain leave and a writ of possession against the appellants, which the Sessions Court declined to set aside. On appeal, the court held that appellate intervention was warranted. It reasoned that the appellants were not judgment debtors in the ordinary sense but were in substance the aggrieved party, having contracted to buy and taken possession of the property, while the respondent had obtained unjust enrichment at their expense. Applying the four elements of an unjust-enrichment claim recognised in the authorities following Dream Property Sdn Bhd — that the defendant was enriched, at the claimant's expense, that the retention of the benefit was unjust, and that there was no defence to reduce the liability to make restitution — the court held that the Sessions Court had erred in allowing the writ of possession on the basis of the appellants' delay under the consent judgment without regard to these matters. It allowed the appeal, set aside the leave and the writ of possession, and ordered the respondent to pay costs of RM5,000 to the appellants, subject to allocatur.