Alliance Bank Malaysia Bhd v. Khee San Food Industries Sdn Bhd & Anor [2021] 12 MLJ 78

The main issue that arose for determination in the case was whether the plaintiff bank owed the borrower and the corporate guarantor the Quincecare duty of care. The High Court agrees with Mr Benjamin Dawson that the Quincecare duty does not apply as the monies alleged to have been siphoned out from the borrower was the plaintiff bank’s own funds by way of financing advanced to the borrower under the bankers acceptance facility as opposed to the borrower’s monies in the bank account. The High Court further held that it is not a rare and exceptional case which attracts the application of the Quincecare duty. The High Court accordingly entered summary judgment in favour of the plaintiff bank for the debt under the bankers acceptance facility and struck out the defendant’s counterclaim against the plaintiff bank.

Khee San Bhd & Anor v. United Overseas Bank (Malaysia) Bhd [2021] MLJU 1457

The primary issue that arose for determination in the case was whether the defendant bank owed the borrower and the corporate guarantor the Quincecare duty of care. The High Court concluded that the Quincecare duty does not apply as the defendant bank has no duty to verify the authenticity of third party documents for the drawdown of the bankers acceptance facility based on the applicable Bank Negara Guidelines which is in line with the common law principles. Mr Benjamin Dawson and Ms Koh San Tee acted for the defendant bank.

Leong Dye Yoong v. Alliance Bank Malaysia Berhad [2020] MLJU 1931

The appeal concerns the issue of whether a appellant borrower is liable to pay the debt owing under the banking facility in situation where the respondent bank had mistakenly reassigned the property to the borrower which in turn enabled the borrower to sell the property without having to pay the redemption sum. The High Court affirms the decision of the Sessions Court and held that the borrower is bound by the equitable principle of unjust enrichment to repay the debt under the facility to the bank. Ms Koh San Tee and Mr Roeshan Gomez acted for the respondent bank.

Million Westlink Sdn Bhd v. Alliance Investment Bank Berhad & Ors [2020] 1 MLJU 1212

The Plaintiff commenced an originating summons seeking various declaratory orders, inter alia, that the 1st Defendant bank was in breach of the Sale and Purchase Agreement dated 5.8.2014, that the 2nd Defendant bank induced or procured the breach of a Sale and Purchase Agreement dated 5.8.2014 by the 1st Defendant bank, that the Sale and Purchase Agreement dated 5.12.2019 entered between the 1st and 2nd Defendants banks is invalid and void and an order that the 2nd Defendant bank be restrained from exercising its voting rights in respect of the 16,592,833 units of the redeemable convertible secured notes, pending the disposal of the originating summons.

The learned High Court Judge agrees with Mr Benjamin Dawson’s argument that the Plaintiff has itself treated the 2014 SPA as coming to an end as it has, through its nominee BBSB, commenced negotiations with the 1st Defendant bank on fresh terms to purchase the Notes held by them,  and there is no indication at all that the Plaintiff had treated the 2014 SPA as still being subsisting while in the negotiations with the 1st Defendant bank. The originating summons was accordingly dismissed with costs.

Chang Yun Thai & Ors v. HSBC Bank (M) Bhd & other appeals [2011] 7 CLJ 909

The primary issue in this appeal was whether an end-financier has a duty to enquire and/or ensure that the sale and purchase agreement is free from illegalities before granting financing. Mr. Benjamin Dawson successfully argued before the Federal Court that no such duty existed.

Court of Appeal citation: [2011] 5 CLJ 589

High Court citation: [2008] 5 MLJ 295

Amal Bakti Sdn Bhd v. Affin Merchant Bank (M) Bhd [2012] 5 MLJ 61

Mr. Benjamin Dawson  acted for the Investors who invested based on negligent misstatement by the merchant banker who prepared the prospectus. The Court of Appeal agreed that the merchant banker owes duty of care to the investors and had failed to make sufficient enquiry on the accuracy of the statements in the prospectus.

Dato’ Jaffar bin Mohd Ali v. Jasatera Bhd (Public Bank, Intervener) [2002] 4 MLJ 207

Conflicting interpretations of a Court Order left the Intervener Bank in the unenviable position of having to follow the instructions of its clients at the risk of possible contempt proceedings. Mr. Benjamin Dawson acting for the Intervener Bank successfully applied to the Court for directions to resolve the issue.

Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd [1996] 1 MLJ 30

The main issue here was whether the default judgment was ambiguous and thus irregular. Mr. Benjamin Dawson sought to maintain the default judgment. Although the Supreme Court did not concur with Mr. Dawson’s submission, they did set down important principles governing the terms of a judgment.

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