ASLI Working Paper Series

Publication Title The Law of Unjust Enrichment and Restitution in Malaysia: A Search for Principle, Post ‘Dream Property’
Publisher Asian Law Institute
Series WPS045
Publication Date Oct 2020
Author/Speaker Siti Aliza Alias
Part VI of the Malaysian Contracts Act 1950 ('of certain relations resembling those created by contract') embodies the old notion of quasi-contract or implied contract - what is now known under English law and in other Common Law jurisdictions as Restitution of Unjust Enrichment. The landmark decision of the Malaysian apex court, the Federal Court, in the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 AMR 601 (“Dream Property”) gave recognition to Unjust Enrichment as a separate cause of action in Malaysia. However, the law of Unjust Enrichment in Malaysia is still very much at its infancy and developing stage. This research focuses on two main questions that arise from the decision in the landmark case:

1. The legal consequences of the court's apparent adoption of the civilian 'absence of basis' approach to determine whether an enrichment is 'unjust', rather than the traditional 'unjust factor' approach under English law, and how this might affect the future development of Unjust Enrichment as a separate cause of action in Malaysia;

2. On the larger question of what the law of Unjust Enrichment in Malaysia now is or should be - whether the correct approach is to develop Unjust Enrichment within an apparent dual legal regime ie. the statutory regime under the Contracts Act 1950 and the Common Law regime; or rather to use the Common Law by analogy to develop the contents (ie. detailed rules and principles) of the Contracts Act 1950 (Part VI) in a principled approach that may require modern restatement for practical use today.
View/Download (PDF) File :