1. ) Dirk Johann Quinten v Yeoh Teen Eam (BA-22NCvC-468-11/2024)

DIRK JOHANN QUINTEN … PLAINTIFFS [JERMAN PASSPORT NO. : C4K504PHV]

SIMONE QUINTEN [JERMAN PASSPORT NO. : C4K53NJ4Y]

WOLGANG ALBERT DORNER [JERMAN PASSPORT NO. : CGFX12JPC]

HEIDRUN GERTRUD DORNER [JERMAN PASSPORT NO. : CGFX12PR5] AND YEOH TEEN EAM … DEFENDANT [IDENTITY CARD NO. : 590405-07-6023] (Doing Business as a Sole Proprietor Under the Name and Style of Retirement Planners & Consultants) [Busienss No. : 201503239308 (002466794-D)] 24/07/2025 23:27:01 BA-22NCvC-468-11/2024 Kand. 148 GROUNDS OF JUDGMENT (Enclosure 33 – Summary Judgment) A.

Enclosure 33 is the plaintiff’s application for a Summary Judgment under Order 14 of the Rules of Court 2012 (ROC).

After hearing both parties, this Court allowed the application with costs. B.

The Plaintiffs are German citizens who, in 2022, participated in the investment programme operated by the defendant known as Retirement Planners and Consultants, and were appointed as member distributors of the defendant’s range of food and beverage products, all of which are sold overseas.

The defendant is a sole proprietor operating under the name and style of Retirement Planners and Consultants (Business No.: 201503239308 (002466794-D)) (“RPC”). The defendant provides business consultancy, retirement planning, advisory services, and investment planning services.

It is acknowledged that the relationship between the parties is governed by the Retirement Planners & Consultants (RPC) Membership Application Form and Contract, as detailed in Exhibit C of the affidavit supporting Dirk Johann Quinten.

6.

First plaintiff: RM400,000.00

(ii) Second plaintiff: RM100,000.00

(iii) Third plaintiff: RM200,000.00

(iv) Fourth plaintiff: RM200,000.00

From the trades, the defendant utilised the trading funds provided by the plaintiffs. The plaintiffs then received Direct Sales Profit (DSP) and Referral Commission (RC) each month. Exhibit E displays the plaintiffs' bank statements showing the amount paid by the defendant to the plaintiffs under the contracts, totalling RM559,944.00, which are as follows –

Total DSP and RC received by the first plaintiff: RM216,199.00;

(ii) Total DSP and RC received by the second plaintiff: RM125,760.00;

(iii) Total DSP and RC received by the third plaintiff: RM87,153.00; and

(iv) Total DSP and RC received by the fourth plaintiff: RM130,832.00.

On or about 03.05.2024 and/or 04.05.2024, the Plaintiffs issued the Defendant with one month's written notice to fully withdraw their trading amounts, along with all outstanding DSP and RC, and to terminate the Contracts in accordance with clause 7 of their Contracts.

The defendants acknowledged the withdrawal and termination of the first and second plaintiffs on 9.5.2024. The withdrawal and termination of the third and fourth plaintiffs were acknowledged on 21.5.2024. Both documents can be found in Exhibit F of the Affidavit in Support (Enclosure 5) on pages 177 and 180.

Upon the defendant's failure to pay the trading amounts, including all outstanding DSP and RC of RM1,387,400.00, within the stipulated period, the plaintiffs filed this suit on 18 November 2024.

The plaintiff is now seeking prayer 1 and 3 of Enclosure 33 as follows -

a sum of RM1,387,400.00 being a sum due and owing by the defendant to the plaintiffs as at the date of Enclosure 1;

(ii) for the sum of RM261,836.00 being the total 1% of the DSP appropriated monthly by the defendant from the DSP generated for the plaintiffs as at the date of Enclosure 1 and which remain unaccounted for;

(iii) for the sum of RM155,600.00 being the RC and DSP (including the 1% purported charity contribution) due and owing to the plaintiffs for November 2024, December 2024, January 2025 and/or February 2025.

(iv) for the Defendant to account and pay to the Plaintiffs the RC and DSP (including the 1% purported charity contribution) generated using the Plaintiffs’ trading amounts totalling RM900,000.00 from February 2025 until full payment of the Plaintiffs’ trading amounts totalling RM900,000.00; and

interest and costs. ANALYSIS AND FINDING

The main issue to be decided is whether there is an issue to be tried.

The plaintiff’s application for summary judgment is supported by the affidavit in support of Dirk Johann Quinten on 20.1.2025 and his affidavit in reply on 26.2.2025. The defendant filed an affidavit in reply on 12.2.2025.

The summary judgment application was filed on 21.1.2025, after the statement of claim was served on the defendant on 2.1.2025, and he entered an appearance on 15.1.2025. This Court finds that the plaintiffs complied with the requirements under Rule 2 of the ROC.

In Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 CLJ Rep 14, the Supreme Court concludes as follows-Under an O. 14 application, the duty of a Judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other on affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable in itself, then the Judge has a duty to reject such assertion or denial, thereby rendering the issue as not triable. In our opinion, unless this principle is adhered to, a Judge is in no position to exercise his discretion judicially under an O. application. Thus, apart from identifying the issues of fact or law, the Court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue.

Based on the statement of defence and affidavit in reply, the defendant denied the claims and stated that several issues need to be tried, which are – a) The defendant did not receive the withdrawal and termination notice from the plaintiffs. b) The termination notice must be sent by AR Registered Post / Courier Service under clause 11 of the Contracts. c) The contract does not specify that the trading amount paid by the plaintiffs must be returned.

It is important to refer to the material terms and conditions of the contracts between the parties related to the member distributor, which are as follows -

If the Member Distributor introduces a new distributor for RPC, as a reward, RPC will pay the Member Distributor 1% Referral Commission (RC) based on the monthly purchases/sales of the new distributor. But if any member distributor ceases to be a distributor or becomes an inactive distributor, no such payment shall be paid to him/her.

If the Member Distributor total monthly personal group sales is RM50,000.00 and above, the Member Distributor may get Group Sales Rebate of 4% based on his/her monthly personal purchases. If the member distributor total monthly purchases is less than RM50,000, he or she may be entitled for a rebate of 2% only.

RPC hereby agrees to contribute 1% of the Member Distributor’s monthly purchases towards the RPC Dialysis Charity Fund for establishing RPC Dialysis Centres for the poor and less fortunate. However, the management of the RPC Charity Fund will be entirely at the discretion of RPC’s management and/or the appointed Board of Trustees, and an independent auditor will audit the accounts.

According to the plaintiffs, they have paid the defendant the sum of RM900,000.00, which was intended for the defendant to purchase local food and beverage products to be sold to third parties overseas on behalf of the plaintiffs. This Court finds that the defendant did not deny receiving the sum of RM900,000.00.

The plaintiffs submit that once they have given the defendant one month's advance written notice to terminate the Contracts, the defendant must pay the plaintiffs their trading amounts, along with all outstanding DSP and RC, within that one month.

The plaintiff submits that the cause of action against the defendant is for breach of clause 7 of the contract. Clause 7 of the RPC details the procedure for terminating membership, which is as follows-Both parties may terminate the Member/Distributorship Agreement by giving one month written advance notice to the other party. In such event, all dues to either party must be fully settled within this one month period.

The plaintiff alleges that once the plaintiff has given the defendant one month's advance written notice to terminate the Contracts, the defendant must pay the plaintiff their trading amounts, along with all outstanding DSP and RC, within that one month.

This Court is of the view that clause 7 of the Contact should be given its natural and ordinary meaning. In Catajaya Sdn Bhd v Shoppoint Sdn Bhd & Ors [2021] 3 CLJ 159, the Federal Court concludes as follows – [49] In any written agreement there must be strict adherence to the agreed terms of the agreement by the parties unless expressly provided otherwise. The SSA represents the intention of the parties, defining the obligations and commitments of the parties. Whether there was a valid termination would be based on whether in the first place there was a valid reason to terminate as stipulated by the terms of the agreement. There must be a proper construction of the terms of the agreement, in this case the SSA.

The learned counsel for the plaintiffs relies on the case of Esso Standard Malaya Bhd v Southern Cross Airways (Malaysia) Bhd [1972] 1 MLJ 168, where Raja Azlan Shah J (then HRH) held as follows – If one simply has a short matter of construction with a few documents, the court on summary application should decide what in its judgment is the true construction. There should be no reason to go formally to trial where no further facts could emerge which would throw any light upon the letters that have to be construed.

According to the plaintiff, the words ‘all dues’ in clause 7 of the contracts refer to the plaintiff’s trading capital of RM900,000, together with all unpaid DSP and RC. Upon termination, there no longer exists any relationship, contractual or otherwise, between the parties that would entitle the defendant to retain the trading capital funded by the plaintiff.

In the case of Catajaya Sdn Bhd v Shoppoint Sdn Bhd & Ors (supra), the Court rules that the termination of an agreement brings the parties' obligations to an end.

The defendant averred that he did not receive any notice from the plaintiffs pursuant to clauses 7 and 11 of the RPC. According to the defendant, the plaintiffs failed to take necessary steps to terminate the Member Distributor of RPC. He also submits that there is no provision within the RPC requiring the defendant to return the money paid by the plaintiff as business capital. Consequently, the defendant is free to utilise the money for the business, and the plaintiffs will earn profit based on the percentage outlined in the RPC.

This Court refers to the reply email dated 9.5.2024 from the defendant to the first plaintiff, as seen in Exhibit F of the Affidavit in Support. The defendant responded to the notice of termination and refund sent via email on 4.5.2024, and the defendant stated, “Noted with thanks.”

In the case of Sunshine Fleet Sdn Bhd v Jabatan Kerja Raya Malaysia & Anor (GM Healthcare Sdn Bhd & Anor, third parties) [2018] 7 MLJ 530, the Court, in applying the business common sense approach, held as follows – wherein the court would be more concerned with the issue of whether the plaintiff has been given due notice of its breach rather than being preoccupied with the question of whether the defendant had complied with the strict procedure of serving the notice of determination as laid down in the contract.

This Court is of the view that the defendant’s allegation failed to raise an issue to be tried. It cannot be denied that the RPC is a trading investment business. This Court agreed with learned counsel for the plaintiffs' contention to adopt a business common-sense approach in interpreting the contract.

Furthermore, if the defendant’s argument that the RPC does not require the defendant to return the money paid by the plaintiff as business capital, and that the defendant is free to use the money for the business so that the plaintiffs will earn profit based on the percentage outlined in the RPC, then why is clause 7 included in the Contract?

Besides that, the defendant had also retained and used the plaintiff’s trading amount for DSP and RC generation, which included a 1% charity contribution and the amounts shown in the plaintiff’s statements of account issued by the defendant.

In SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 CLJ 177, the Federal Court concludes as follows - [23] It is trite law that there is a need for there to be a valid reason to terminate, and that reason must have existed at the time of termination, even if the wrong reason was given at that time (see Chitty on Contract, 31st edn, E. Peel (eds) at 24-014). At common law, that usually means repudiatory breach, or breach of condition, or that there is a particular circumstance which gives rise to a contractual right to terminate. However, there appears to be no need for termination, where it happens by notice, to include particularised reasons as a matter of general common law, unless there are circumstances that give rise to a duty to do so, as in the case of a statutory duty or by the terms of a contract upon proper construction.

Guided by the above legal principle, this Court is of the opinion that the contract between the plaintiffs and the defendant has been terminated by the issuance of the notice, which was permitted under the terms of the Contract.

Based on the reasons above, the application for summary judgment (Enclosure 33) is allowed with costs. Dated : 24th July 2025. Signed HAZIZAH KASSIM Judicial Commissioner High Court of Malaya (NCvC 10) At Shah Alam, Selangor

1.

For the Plaintiffs For the Defendant : : Jeremy Khalif dan Olivia Lee Messrs Khalif Isaac Lee (Wilayah Persekutuan Kuala Lumpur) Muhammed Zahid Hazim bin Kasim Messrs Yeoh & Partners (Petaling Jaya, Selangor)