Tan Sri Halim bin Saad & Anor v Amanah International Finance Sdn. Bhd.

Appellant(s): Hektar Premier Sdn Bhd

Respondent(s): Amanah International Finance Sdn Bhd

• YA Dato' Hashim Bin Hamzah
• YA Datuk Wong Kian Kheong
• YA Datuk Ismail Bin Brahim

• The respondent provided an Islamic financing facility (Tawarruq concept) to the first appellant for Shariah-compliant securities, with funds used for shares including ESB Shares purchased from the respondent by the first appellant's nominee.
• The second appellant subsequently executed an Assignment, agreeing to discharge the first appellant's debt to the respondent.
• The respondent sued both appellants for outstanding sums; the High Court consolidated the suits and dismissed the first appellant's application to refer Shariah questions to the Shariah Advisory Council (SAC), a decision upheld by the Court of Appeal and not further appealed.

• Whether the first appellant was estopped by *res judicata* (issue estoppel) from re-litigating the necessity of referring Shariah principles to the SAC and from challenging the validity of the SPA (ESB) due to prior judgments and unpleaded matters.
• Whether non-compliance with Shariah principles (Tawarruq or Gharar) would *per se* invalidate the financing agreement under s 24 Contracts Act 1950, and if so, whether restitution under s 66 CA should be ordered.
• Whether the Court of Appeal should intervene with the High Court's factual findings on expert evidence, the absence of *Gharar*, the non-drawing of adverse inferences, and the contractual liability of the second appellant under the Assignment.

• The Court dismissed the first appellant's appeal, holding that the first appellant was estopped from re-litigating the SAC referral and the SPA (ESB) validity based on issue estoppel and prior unappealed decisions.
• The Court affirmed that Shariah non-compliance alone does not invalidate a contract under s 24 Contracts Act 1950, and even if void, restitution under s 66 CA was ordered, applying the *Detik Ria* guidelines to prevent unjust enrichment given the first appellant's greater culpability.
• The Court also dismissed the second appellant's appeal, finding clear contractual liability under the Assignment agreement and upholding the High Court's findings on expert evidence and the refusal to draw adverse inferences.