Toh Mei Swan

On the court record

Engages the illegality and restitutionary consequences of void moneylending agreements, the doctrine of failure of consideration, and the interpretation of shareholders' agreements.

Toh Mei Swan's appearances in this corpus engage moneylending, restitution and shareholder disputes. In the Court of Appeal (Mahkamah Rayuan) she acted as counsel for the appellant in a matter concerning a licensed moneylender and moneylending agreements under the Moneylenders Act 1951. The questions engaged statutory illegality: whether the agreements were void ab initio for illegality under the Moneylenders Act, whether they offended section 24 of the Contracts Act 1950, and whether restitution under section 66 of the Contracts Act 1950 was available to a party to an agreement found to be void. Section 66 provides that a person who has received an advantage under a void agreement must restore it, and its interaction with statutory illegality is a recurring and difficult question in moneylending litigation.

In the Federal Court (Mahkamah Persekutuan) she acted as counsel for the respondents in a matter engaging the doctrine of failure of consideration and restitution. The catchwords list an array of doctrinal themes — assignment, breach, illegality, partial and total failure of consideration, partial performance, repudiation, restitution, unconscionability, and the techniques of statutory interpretation, judicial precedent and prospective overruling — reflecting an appeal that ranged widely over the principles governing when money paid under a contract may be recovered.

Before the High Court (Mahkamah Tinggi) she also acted as counsel for a defendant in a claim for breach of a shareholders' agreement, where the questions were whether shares were unconditionally and fully owned by the defendant, whether the defendant was obliged to surrender the shares, whether the defendant had breached his duties as a director, and whether the contra proferentem rule applied to the construction of the agreement. Across these matters, Toh Mei Swan's practice engages the illegality and restitutionary consequences of void moneylending agreements, the doctrine of failure of consideration, and the interpretation of shareholders' agreements.