伪装的买卖合约(非法贷款) [2010] MLJU 1637

1. 原告是两块土地的地主。 由于原告需要资金，原告在朋友的介绍下，认识了被告。
2. 原告在贷款谈判过程中，受到被告的儿子(一名律师)的诱导，签署了买卖合同，同意把原告的两块地以RM50,000.00卖给被告，原告则有在6个月内以RM60,000.00买回两块地的权利。被告宣称这是贷款协议书，只是贷款抵押作用。
3. 通过查阅合约和双方各自的供词，法庭认为这实际上是一份涉及5万令吉的贷款协议，但却伪装成买卖合约。额外的1万令吉则是贷款的利息，为期六个月。 The fact that the Plaintiff was able to buy-back the lands within six months and that he had to pay RM10,000.00 extra to buy-back the lands confirmed that this was in fact a loan agreement for RM50,000.00 with interest charged at RM10 ,000.00 for the period of six months but disguised as a sale and purchase agreement.
4. 原告也坚称他并无意出售这两块地，因为他是从父亲那里继承了土地。而且以5万令吉的价格出售这两块土地是不逻辑的，因为它们的价值远不止于此。他也展示了由估价师所提供估价报告，报告显示这两块地块当时的市价为 RM2,763,000.00。
5. 另外，被告的儿子在作证时指他在交易中没有参与任何行动。买卖协议、授权书和转让书都是由被告本人准备的。他的儿子只是在文件上见证原告的签名。
6. 法庭表示为避免任何利益上的冲突，原告的签名其实应该由另一名律师见证，而不是由被告的儿子来见证。法庭也认为身为一名律师，以及原告签名的证人，被告的儿子是有责任向原告解释合同的条款和条件及其法律后果。否则这将引起关于交易正当性的质疑。
7. 一个有效的合约必须是双方当事人基于平等地位、自由意志，表示各自的立场而缔结的。如果某一合约是在不正当影响下作出的，则属于可撤销的合约。Although he had testified that he was not acting nor advising the Plaintiff in the transaction, it is his duty as an advocate and solicitor who attested the documents to explain the terms and conditions of the contract and the legal consequences thereof fully to the Plaintiff who was unrepresented to ensure that the Plaintiff fully understood before he signed so that neither of the contracting parties had any unfair advantage over the other. And where there was a conflict of interest, in particular in this case the other party being his father, the 1 Defendant’s son as advocate and solicitor should have also advised the Plaintiff to seek separate and independent legal advice. 
8. 基于上述的原因，法庭裁定这是一份贷款协议，但却伪装成买卖合约。
9. 法庭指示原告向被告支付 RM50,000.00的欠款及每年 8% 的利息。另外，原告也需要土地转让的印花税、登记费、律师费和其他费用。 I make the following consequential orders:-

   • (a) the plaintiff shall pay the first defendant RM50,000.00 with interest thereon at 8% per annum from 06.09.2001 (the date where the Plaintiff signed the SPA) until full payment;

     (b) the Plaintiff shall pay the stamp duty, registration fees, legal fees and other expenses incurred by the 1st Defendant in transferring the 2 parcels of land from the Plaintiff to the 1st Defendant. If the parties are not able to agree on these then to be assessed by the Deputy Registrar;

     (c) the Plaintiff shall be fully responsible for the costs and expenses incurred to transfer the lands from the 1st Defendant to the Plaintiff;

   • (d) the Plaintiff’s action against the 2nd and 3rd Defendants is dismissed with costs to the 2nd and 3rd Defendants; and

     (e) the 1st Defendant shall pay costs to Plaintiff in this action, if not agreed to be taxed.

完整的内容，请阅读英文版

1. The Plaintiff was the registered owner of two parcels of land described as Tawau Town Lease No. 107504923 and 107504932, measuring 20,000 sq. feet more or less, situated in the District of Tawau which he inherited from his late father. The Plaintiff seeks a declaration inter alia that a Sale and Purchase Agreement (SPA) dated 6.9.2001 in respect of the two parcels of land was null and void because it was entered into based on wrongful misrepresentations and under influence; it was tainted with illegality as the sale and transfers were contrary to the special provisions stated in the title deeds and for lack of consideration. The Plaintiff prays that the land register and title deeds in respect of the lands be rectified and for damages to be assessed. The 2nd and 3rd Defendants did not file any defence and were not involved in the trial. They agreed to abide by any decisions of the court as to rectification of the land register and title deeds, if any.
2. The Plaintiff said that in August 2001 he went to borrow RM50,000.00 from his best friend by the name of Freddie Sua @ Freddy Gerald Suah. He said that Freddie Sua did not have this amount of money to lend to him but arranged for him to see the 1st Defendant to get the loan. The Plaintiff said that he went with Freddie Sua to see the 1st Defendant who subsequently agreed to give him the loan of RM50,000.00.
3. The Plaintiff said that the 1st Defendant’s office was in a legal firm called Messrs. Chung & Associates which is solely owned by the 1st Defendant’s son Chung Jiun Dau. The Plaintiff said that during the negotiation for the loan he was induced by the 1st Defendant to retain and engage the services of the legal firm. The Plaintiff said that the 1st Defendant and his son had advised, induced and unduly influenced him to enter into the SPA instead of a loan agreement. The Plaintiff said that he agreed to enter into the SPA based on the wrongful misrepresentations and advice given by the 1st Defendant and his son. He said he trusted the 1st Defendant as the 1st Defendant was introduced to him by Freddie Sua, that the 1st Defendant was highly educated and appeared to be an honest person and the 1st Defendant’s son was a lawyer. He said he did not expect them to cheat him. For the record, the Plaintiff did not sue the 1 Defendant’s son as a party to this suit and Freddie Sua did not testify as a witness although he was subpoenaed to appear as such.
4. The Plaintiff in his re-amended Statement of Claim pleaded and he also testified that he was deceived and induced by the 1st Defendant and his son as follows:

(a) he was told the 1st Defendant was not a licensed moneylender and it was illegal for the 1st Defendant to lend money to him;

(b) he was told the 1st Defendant was only able to lend money to him by way of sale and purchase of the lands instead of a loan agreement to protect both parties’ interest as to the question of legality of the transaction;

(c) he was told a specific clause would be inserted in the SPA that he could redeem the lands from the 1st Defendant by paying the loan of RM50,000.00 with an additional payment of RM10,000.00 being interests for the loan at any time;

(d) he was told that as security for the loan the 1st Defendant would keep the title deeds until he paid off the loan and the agreed interests; and

(e) although he would sign a sale and purchase agreement the transaction entered into by him was a loan for RM50,000.00 only from the 1st Defendant and it was not for the sale of his lands.

5. The Plaintiff said that

(a) he was made to understand the SPA would be prepared by the 1st Defendant’s son and the 1st Defendant would call him once the SPA was ready for signing. He said that subsequently he was informed and he went back to the office of Chung Jiun Dau on 6.9.2001 to sign the SPA. Before he signed the SPA, both the 1st Defendant and his son explained to him that the SPA was to enable the 1st Defendant to lend to him the sum of RM50,000.00 legally and that he could buy back the lands by paying back the RM50,000.00 and paying RM 10,000.00 as agreed interests at anytime. It was also explained to him that as the law did not allow uncertainty under a contract, they had inserted a time-frame of 6 months buy-back option. He said based on the assurance and promise made by the 1st Defendant and his son, he agreed for the 6 month period to be inserted and he agreed to sign the SPA;

(b) he was also asked to sign a memorandum of transfer in-escrow as a formality and it was a common procedure in a sale and purchase transaction. He signed the documents in front of the 1st Defendant and his son;

(c) a few months after he signed the documents, he called the 1st Defendant to inform the 1st Defendant that he was still unable to come up with the money to pay the loan. He said subsequently he tried to contact the 1st Defendant at his office several times but was told the 1st Defendant was not in the office. He said he also went to the office but was told the 1st Defendant was not around;

(d) he managed to arrange a meeting with the 1st Defendant at his son’s office on 16.1.2006. The Plaintiff said that during the meeting they agreed that the Plaintiff could buy back the lands by paying the RM50,000.00 plus the RM10,000.00 interest at the end of January 2006. The Plaintiff said that he wrote a letter on 18.1.2006 to confirm the agreement made at the meeting and that he was willing to pay another RM10,000.00 as additional interests to the 1st Defendant in view of the lapse of time in paying back the loan.

(e) on 28.1.2006 he received a letter from the 1st Defendant advising that it was too late as the lands had been transferred to the 1st Defendant in early 2005; and

(f) he made a search at the Central Land Registry in Kota Kinabalu on 4.10.2006 and discovered that his ownership in the 2 parcels of land had been transferred to the 1st Defendant without his knowledge or consent on 5.2.2005. The Plaintiff said that pursuant to paragraph 20 of the special provisions in the title deeds all dealings between the plaintiff and the 1st Defendant were forbidden as the 1st Defendant is a Chinese and the transfers to the 1st Defendant were unlawful.

1^st Defendant’s Version

6. The 1st Defendant disputed the Plaintiff’s versions of the story and said that:

(i) the Plaintiff visited his office in August 2001 on his own, and not together with Freddie Sua, with the intention of selling the lands because he needed money urgently;

(ii) after negotiation he agreed to purchase the lands for the total consideration of RM50,000.00;

(iii)  the Plaintiff then informed him that the Plaintiff was expecting to receive a large sum of money soon and that the Plaintiff would like to buy back the lands when he received the money. The 1st Defendant said he agreed to give the Plaintiff the option to buy back the lands under the following terms and conditions: The buy back option was to be exercised within 6 months from the date of the SPA, that is before 6.3.2002. If the Plaintiff exercised the buy-back option, the buy-back price would be RM60,000.00 and if the 1st Defendant so requested, the Plaintiff would have to agree to enter into an agreement with the 1st Defendant or his nominee to jointly develop the lands in the future;

(iv) the SPA, the Power of Attorney and the Memorandum of Transfer for the lands were all prepared and typed by himself and not by his son’s legal firm. He said that at the Plaintiffs request, his son agreed and merely attested the Plaintiff’s signatures on the relevant documents but was not involved and was not acting for either of them. His son corroborated his statements;

(iv)  after signing the SPA, the Power of Attorney and the Memorandum for Transfer, tie Plaintiff requested the 1st Defendant to give him a letter of undertaking not to transfer the lands within six (6) months from the date of the SPA. The 1st Defendant said he agreed to the request because of the buy-back option and gave the Plaintiff the letter of undertaking dated 6.9.2001 as requested.

(v) before the expiry of the six (6) month buy back option, that is before 6.3.2002, and also for a period of more than one (1) year thereafter, he had enquired with the Plaintiff on numerous occasions whether the Plaintiff wanted to buy back the lands and to sign a development agreement with him. He said that each time the Plaintiff just ignored him. He said that under the circumstances he had no option other than to proceed to register the transfers of the lands to himself at the end of 2004. He said that he did not breach paragraph 20 of the title deeds as he is a Sino-Kadazan. He exhibited a certificate issued by the Native Court at Kota Kinabalu which certified that he is a native of Sabah and that the transfers of the lands to him were in fact lawful.

(vi) on 18.1.2006 he received a letter from the Plaintiff offering to “redeem” the lands by paying an amount RM70,000.00. The 1st Defendant said that by then the lands had already been transferred to him and he had paid the stamp duties and registration fees. Therefore he rejected the offer.

11. What amounts to misrepresentation is provided for in Section 18 of the Contracts Act and it has been explained in Balakrishnan Devaraj & Anor v Admiral Cove Development Sdn Bhd (2010) 7 CLJ 152 as follows: “it is quite common that in the course of the formation of a contract, one party may make representation to another party. A representation is a statement by one party to the other party which relates to an affirmation, a denial, a description of a certain fact, present or as to the future. And if the representation is untrue it is termed as a misrepresentation. It is incumbent on the representatee (the Plaintiff in this case) to prove that the misrepresentation was in respect of a material fact which induced him to enter into the contract.”
12. There is no requirement to prove an intent to deceive. A misrepresentation includes any breach of duty which gives an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice (18(b)). It includes causing innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement (18( c)).
13. Section 16(1) of the Contracts Act provided that a contract is said to be induced by ‘undue influence‘ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. Section 16(2)(a) provides that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other.
14. However it was held in Tengku Abdullah Ibni Sultan Abu Bakar & Ors v Mohd Latiff Shah Mohd & Ors and other Appeals (1997) 2 CLJ 607 that the proof of dominance of the will of a party to a transaction by another party to the transaction is not a sine qua non of the doctrine of undue influence. It was said that undue influence, like all equitable doctrines, is an extremely flexible concept and therefore Section 16 of the Contracts Act should be interpreted in a board and liberal fashion. The domination of the will of a person may occur in a variety of fact patterns and it may occur even in commercial transactions i.e in a sale and purchase transaction.
15. In the SPA dated 6.9.2001, it was stated that it was for the sale and purchase of the 2 parcels of land free from all encumbrances and with vacant possession for the purchase price of RM50,000.00. Clause 9(a) provided that the plaintiff had the option to purchase the lands from the Defendant within 6 months from the date of the SPA. Clause 9(b)(i) provided that the option was to be exercised by a written notice before the expiry of the 6 month option period.
16. From the testimonies of the parties and the SPA, this was not an ordinary or simple sale and purchase of the lands. The fact that the 1st Defendant did not transfer the lands to himself, after he had paid the purported purchase price of RM50,000.00 in full but waited for more than three years before the transfers, confirmed that it was not a straight forward sale and purchase. The fact that the Plaintiff was able to buy-back the lands within six months and that he had to pay RM10,000.00 extra to buy-back the lands confirmed that this was in fact a loan agreement for RM50,000.00 with interest charged at RM10,000.00 for the period of six months but disguised as a sale and purchase agreement.
17. It was disguised as and entered into as a sale and purchase agreement apparently to avoid the provisions of the Moneylender Ordinance (Sabah Cap. 81). Although there was no evidence to establish that the 1st Defendant is a moneylender within the definition of the Ordinance, the fact remained that in substance this was a moneylending transaction and was a loan.
18. This was especially true when the Plaintiff had insisted that he was only getting a loan of RM50,000.00 from the 1st Defendant and not selling the 2 parcel of land. The fact that the 1st Defendant had agreed to include a buyback option and to subsequently agree to give the Plaintiff the letter of undertaking not to sell the lands before the expiry of the option supported the Plaintiff’s contention that he could take back the lands by paying the agreed sum of RM60,000.00 to the 1st Defendant, the extra sum of RM10,000.00 being the interest charge for the loan.
19. The Plaintiff insisted that he had no intention to sell the 2 parcels as he had inherited the lands from his father. Further, he testified that it did not make any sense to him to sell the 2 parcels for only RM50,000.00 they were worth very much more than that. He had exhibited a valuation report dated 6.10.2006 prepared by a valuer CH. Williams Taijnar & Wong to establish that the 2 parcels were at the time valued at RM2,763,000.00. This evidence was not challenged by the 1st Defendant.
20. Obviously the Plaintiff had entered into the SPA on the representation made by the 1st Defendant that the SPA was in fact a loan agreement. The Plaintiff was induced into signing the SPA believing it was for the loan of RM50,000.00 only. The Plaintiff would not have signed if it was to sell the 2 parcels for only RM50,000.00. The SPA showed that the Plaintiffs signature was attested by the 1 Defendant’s son who is an advocate and solicitor. Both the 1st Defendant and his son testified that his son was not acting nor advising the Plaintiff in the transaction and that the SPA, the Power of Attorney and the transfers were prepared by the 1st Defendant himself.
21. However, if the 1st Defendant’s son was only attesting the Plaintiff’s signatures in the documents, then the 1st Defendant’s son could easily have attested the 1st Defendant’s signatures as well and there was no necessity for another solicitor to attest the 1st Defendant’s signature in the documents. In this case the 1st Defendant’s signatures in the documents were attested by Mr. Alex Pang Hock Foh, an advocate and solicitor. To avoid any allegations or suspicion or possible conflict of interest, in fact the Plaintiff’s signatures should have been attested before and by another solicitor instead of by the 1st Defendant’s son and that the 1st Defendant’s signatures could easily be attested by his son without arousing any suspicion.
22. In National Westminster Bank v Morgan (1985) 1 ALL ER 821 it was held that whatever the legal character of the transaction, the authorities show that it must constitute a disadvantage sufficiently serious to require evidence to rebut the presumption that in the circumstances of the relationship between the parties it was procured by the existence of undue influence. The difference in the value between RM2,763,000.00 and RM50,000.00 was so great that it would be unconscionable for the 1st Defendant to take advantage of such a transaction to transfer the lands to himself when the plaintiff did not pay the RM50,000.00 within time. Further, the 1st Defendant at all material times did not write to the Plaintiff giving the Plaintiff notice to redeem the loan and take back the lands before the 1st Defendant transferred the lands to himself. Section 16(3)(a) of the Contracts Act provides that the burden of proving that the contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other i.e. the 1st Defendant. On the evidence before the court, the 1st Defendant has failed to do so.
23. In this case the 1st Defendant’s son had attested the Plaintiff’s signatures in the documents. Although he had testified that he was not acting nor advising the Plaintiff in the transaction, it is his duty as an advocate and solicitor who attested the documents to explain the terms and conditions of the contract and the legal consequences thereof fully to the Plaintiff who was unrepresented to ensure that the Plaintiff fully understood before he signed so that neither of the contracting parties had any unfair advantage over the other. And where there was a conflict of interest, in particular in this case the other party being his father, the 1 Defendant’s son as advocate and solicitor should have also advised the Plaintiff to seek separate and independent legal advice: Letchemy Arumugam v N. Annamalay (1982) 2 MLJ 198, Lee Cheong Fah v Soo Man Yoh Saw @ Man Yoke (1996) 2 BLJ 356. Unfortunately, these were not done and it raised a lot of doubts as to the propriety of the transactions, bearing in mind the value of the lands involved. On the acts and circumstances of this case, the Plaintiff had established on a balance of probabilities that the sale and purchase agreement and transfers should be avoided. It would be unjust for 1st Defendant to take advantage of the transaction for a loan of RM50,000.00 to transfer to himself the lands valued at more than RM2.7 million under the loan agreement disguised as a sale and purchase agreement.
24. If a wrong is found to have occurred in circumstances which disclose an abuse of confidence in respect of which a Court of Equity may grant relief, it is open to the court to grant such relief as would meets the ends of justice: Tengku Abdullah Ibni Sultan Abu Bakar & Ors v Mohd Latiff Shah & Ors & other Appeals (supra).
25. For the reasons given the SPA and transfers shall be avoided and be set aside and the 1^st Defendant shall transfer the 2 parcels of land to and in the name of the Plaintiff subject to terms and conditions.
26. The Plaintiff had acquired monetary benefits and use the sum RM50,000.00 since 6.9.2001. It was as a result of his faults and non payment of this sum to the 1st Defendant which resulted in the 1st Defendant in transferring the lands to himself. The 1st Defendant had to pay the stamp duty, registration fees and other expenses incurred to transfer the lands. It is only fair that the Plaintiff is responsible to pay and reimburse the 1st Defendant for these.
27. I make the following consequential orders:-

(a) the plaintiff shall pay the first defendant RM50,000.00 with interest thereon at 8% per annum from 06.09.2001 (the date where the Plaintiff signed the SPA) until full payment;

(b) the Plaintiff shall pay the stamp duty, registration fees, legal fees and other expenses incurred by the 1st Defendant in transferring the 2 parcels of land from the Plaintiff to the 1st Defendant. If the parties are not able to agree on these then to be assessed by the Deputy Registrar;

(c) the Plaintiff shall be fully responsible for the costs and expenses incurred to transfer the lands from the 1st Defendant to the Plaintiff;

(d) the Plaintiff’s action against the 2nd and 3rd Defendants is dismissed with costs to the 2nd and 3rd Defendants; and

(e) the 1st Defendant shall pay costs to Plaintiff in this action, if not agreed to be taxed.

Source: Othman bin Mohd. Yaqub @ Terry v. Chung Mui Fatt & Ors [2010] MLJU 1637. High Court Kota Kinabalu. Stephen Chung JC.

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