Homii Management Sdn Bhd v Agensi Pekerjaan Kawasama (M) Sdn Bhd (WA-12ANCC-65-10/2025)

This is an appeal by the Appellants, Homii Management Sdn Bhd and Loong Cheng Lin, against the decision of the learned Sessions Court Judge, Tuan Harith Sham bin Mohamed Yasin, delivered on 23 September 2025. In the Sessions Court, the Respondent was the Plaintiff, the Appellants were the 1st and 2nd Defendants, and Sam Yau Fui was the 3rd Defendant.

The learned Sessions Court Judge allowed the Respondent’s application for summary judgment under Order 14 of the Rules of Court 2012 against the Appellants for the sum of RM328,500.00, together with interest and costs. The 3rd Defendant is not an appellant before this Court.

Having considered the Record of Appeal, the Grounds of Judgment of the learned Sessions Court Judge, the pleadings, the affidavits, the contractual documents, and the parties’ submissions, I dismissed the appeal. These are my grounds. Appellate Approach 4. This Court sits in its appellate jurisdiction. The question is not whether this Court would have expressed the reasoning in precisely the same way as the learned Sessions Court Judge. The question is whether the learned Sessions Court Judge committed an appealable error in allowing summary judgment under Order 14.

Appellate intervention is justified where there is an error of principle, a material misappreciation of the evidence, or a conclusion that is plainly unsustainable. The appellate court should not interfere merely because another judge might have expressed the reasoning differently. The approach in Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 is instructive on the restraint to be exercised before interfering with a lower court’s evaluative findings. Background Facts 6. On 28 December 2024, the 1st Appellant and the Respondent entered into a document described as a Property Management Agreement. For convenience, I refer to it as the PMA.

Under the PMA, the Respondent provided the sum of RM300,000.00 to the 1st Appellant. The 2nd Appellant executed a Letter of Guarantee or Undertaking in relation to the transaction.

The Respondent’s case was that the RM300,000.00 was provided as investment capital or funding under the PMA. The Appellants did not dispute that the relevant documents were executed. They also did not dispute that the RM300,000.00 was received.

The Appellants’ defence was that the PMA was not a genuine investment agreement. They alleged that it was a sham or disguised loan transaction intended to circumvent the Moneylenders Act 1951. They relied particularly on the fact that the Respondent provided RM300,000.00 but claimed RM328,500.00, with the difference of RM28,500.00 allegedly representing interest or a fixed return over 3 months.

The Respondent commenced the Sessions Court action on 5 May

The Appellants filed their Statement of Defence on 24 June

The Respondent then applied for summary judgment under Order 14 of the Rules of Court 2012.

On 23 September 2025, the learned Sessions Court Judge allowed the Respondent’s application and entered summary judgment against the Appellants for RM328,500.00. Separately, an Amended Judgment in Default of Appearance was entered against the 3rd Defendant, Sam Yau Fui, for the same sum.

The appeal raises three principal issues. a. First, whether the learned Sessions Court Judge erred in finding that the Appellants’ allegation of a sham or disguised moneylending transaction did not raise a bona fide triable issue. b. Secondly, whether the existence of the Amended Judgment in Default against the 3rd Defendant for the same sum rendered the summary judgment against the Appellants defective on the ground of double recovery, res judicata, or merger. c. Thirdly, whether the learned Sessions Court Judge erred in finding that the 2nd Appellant had not raised a bona fide triable issue as to the extent of his liability under the Letter of Guarantee or Undertaking.

The principles governing summary judgment under Order 14 require the plaintiff to first establish a prima facie case for judgment. Once this is done, the evidential burden shifts to the defendant, who must demonstrate a bona fide and substantive issue or question that ought to be tried, or some other reason for trial. A bare denial or speculative assertion is insufficient, as the court is entitled to reject a defence that is equivocal or lacking in substance, examining whether the defence is real and triable without conducting a full trial.

Applying these principles, the Respondent successfully established a prima facie case in the present matter by producing the PMA, the Letter of Guarantee or Undertaking, evidence of payment, and the pleaded basis of the claim for RM328,500.00. Consequently, the burden shifted to the Appellants to raise a triable defence.

Issue 1: The Sham or Moneylending Defence The Appellants’ main ground is that the PMA was a sham or disguised loan transaction. They submit that the learned Sessions Court Judge should not have treated the words “investment”, “fund”, or “investment capital” as conclusive. They rely on authorities such as Global Globe Property (Melawati) Sdn Bhd v Jangka Prestasi Sdn Bhd [2020] 5 MLRA 140 for the proposition that where a transaction is alleged to be a camouflage for illegal moneylending, the Court should look at substance and not merely form.

I accept the general proposition advanced by the Appellants. A document described as an investment agreement may, in a proper case, be shown to be something else in substance. Where a genuine allegation of sham, illegality, or statutory avoidance is properly supported, the Court is not confined only to the labels used in the written documents.

I also accept that section 92 of the Evidence Act 1950 does not prevent the Court from considering a properly supported allegation that a written instrument is a sham or was structured to evade a statute. Authorities such as Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] CLJU 119 are important on the sanctity of written terms, but they do not mean that illegality or sham can never be examined.

However, that does not mean that every allegation of sham or moneylending automatically defeats summary judgment. The defendant must still place before the Court sufficient affidavit evidence to show that the defence is real, bona fide, and not merely speculative.

The narrower question in this appeal is therefore this: was the learned Sessions Court Judge entitled, on the material before him, to find that the Appellants had not shown a bona fide triable issue that the Respondent was carrying on an illegal moneylending transaction? In my judgment, the answer is yes.

First, the contemporaneous documents did not describe the transaction as a loan. The PMA used commercial expressions such as “funder”, “fund”, “investment”, and “investment capital”. These expressions are not conclusive, but they are relevant evidence of how the transaction was documented and understood at the material time.

Secondly, the Appellants willingly entered into the PMA and the related undertaking. There was no allegation that their signatures were forged. There was no allegation that they signed under duress. There was also no sufficient affidavit evidence that they were misled as to the nature of the documents.

Thirdly, the Appellants received the sum of RM300,000.00 pursuant to the PMA. This is significant. They accepted the benefit of the transaction and did not raise any contemporaneous protest when the money was received.

Fourthly, the Appellants only advanced the sham or moneylending characterisation after payment became due and after the Respondent commenced proceedings. The learned Sessions Court Judge was entitled to consider that sequence of events in assessing whether the defence was bona fide.

A party who voluntarily enters into a written commercial agreement, receives money under it, and then refuses to pay cannot avoid summary judgment merely by asserting that the agreement was a sham. There must be credible material showing that the allegation is real and triable.

Fifthly, and most importantly, the Appellants did not produce sufficient material to show that the Respondent was carrying on the business of moneylending. The Moneylenders Act 1951 is concerned with moneylending as a business. The Appellants did not show evidence of repeated lending, advertisement, solicitation, lending to the public, prior similar transactions, standard lending documentation, collection practices, or other features from which such business could reasonably be inferred.

The Appellants relied substantially on the alleged fixed return of RM28,500.00 over 3 months. I accept that this is a relevant factor. It is not irrelevant. However, it is not conclusive. A fixed or agreed commercial return may exist in various commercial arrangements. Standing alone, it does not necessarily show that the Respondent was carrying on an illegal moneylending business.

The Appellants had to show something more connecting the alleged fixed return to an illegal moneylending business. They failed to do so. The learned Sessions Court Judge was entitled to find that the defence was unsupported by sufficient affidavit evidence.

The Court is not deciding, as a general proposition, that a transaction labelled as an investment can never be a disguised loan. Nor is the Court deciding that an allegation of moneylending can never defeat summary judgment. The finding is narrower: on the specific affidavit evidence in this case, the Appellants did not produce sufficient material to show a bona fide triable issue that the Respondent was carrying on an illegal moneylending transaction.

I therefore find no appealable error in the learned Sessions Court Judge’s rejection of the sham or moneylending defence at the Order 14 stage. Issue 1 is answered against the Appellants. Issue 2: Judgment Against the 3rd Defendant and Alleged Double

Recovery The Appellants’ second ground is that an Amended Judgment in Default was entered against the 3rd Defendant for the same sum of RM328,500.00. They submit that the summary judgment against them creates duplicative judgments and exposes them to double recovery. They also rely on res judicata and merger.

I do not accept this ground. The law does not prohibit a plaintiff from obtaining judgment against more than one defendant where more than one defendant is liable for the same debt or obligation. What the law prohibits is double satisfaction, not necessarily multiple judgments.

The principle in Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian Nagappan @ Marie [2021] 5 MLRA 178 supports the proposition that a judgment creditor is not entitled to recover more than the full amount lawfully due. It does not mean that the existence of judgment against one defendant automatically bars judgment against another defendant who is also liable.

The Amended Judgment in Default against the 3rd Defendant did not extinguish the Respondent’s claim against the Appellants. The Appellants were not the parties against whom the default judgment was entered. The claim against them remained to be determined based on their own contractual obligations under the PMA and the Letter of Guarantee or Undertaking.

The doctrine of res judicata does not assist the Appellants because there was no prior final determination between the Respondent and the Appellants which barred the claim against them. The doctrine of merger also does not assist them. A judgment against one defendant does not automatically extinguish a claim against other defendants who may be jointly, severally, or independently liable.

The proper safeguard is to make clear that the Respondent cannot obtain double recovery. The Respondent may not recover more than the total judgment sum of RM328,500.00, together with lawful interest and costs, regardless of the existence of judgment against more than one defendant.

I therefore find no appealable error on this issue. Issue 2 is answered against the Appellants.

Issue 3: The 2nd Appellant’s Liability Under the Undertaking The 2nd Appellant contends that the learned Sessions Court Judge erred in imposing full liability on him under the Letter of Guarantee or Undertaking. He submits that his liability should not be treated as 100% or unlimited liability. He relies on the need to construe the undertaking in its factual matrix, including cases such as CIMB Bank Berhad v Maybank Trustees Berhad & Other Appeals [2014]

The Respondent relies on the wording of the undertaking. On the material before the Court, the undertaking states in substance that the 2nd Appellant accepted full responsibility and guaranteed the return of the relevant sum, failing which he would be liable to any claim made by the funder.

The wording is sufficiently clear for the purposes of Order 14. It does not state that the 2nd Appellant’s liability is limited to 50%. It does not state that his liability is apportioned. It does not contain any express limitation to a particular part of the debt.

If the 2nd Appellant intended to limit his liability, that limitation should have been clearly stated in the undertaking. The Court cannot rewrite the undertaking to insert a limitation which is not found in its terms.

The 2nd Appellant’s reference to an enclosed schedule did not, on the material before the learned Sessions Court Judge, sufficiently displace the clear wording of the undertaking. Further, his challenge was tied to the wider sham or moneylending defence, which for the reasons already given was unsupported by sufficient affidavit evidence.

The learned Sessions Court Judge was therefore entitled to find that the 2nd Appellant had not raised a bona fide triable issue as to the extent of his liability. I find no appealable error on this issue. Issue 3 is answered against the Appellants.

Conclusion The Respondent established a prima facie case for summary judgment. The Appellants admitted the execution of the relevant documents and the receipt of RM300,000.00. Their principal defence was that the PMA was a sham or disguised moneylending transaction. That type of defence may be triable in a proper case, but the Appellants did not support it with sufficient affidavit evidence in this case.

The learned Sessions Court Judge was entitled to take into account the contemporaneous documents, the voluntary execution of the documents, the receipt of the funds, the absence of contemporaneous protest, the timing of the sham allegation, and the absence of evidence that the Respondent was carrying on the business of moneylending. The learned Sessions Court Judge was also entitled to find that the double recovery argument and the challenge to the 2nd Appellant’s liability did not raise bona fide triable issues.

For the reasons stated above, the appeal is dismissed. The Summary Judgment granted by the Sessions Court on 23 September 2025 is affirmed. For avoidance of doubt, the Respondent shall not be entitled to recover more than the total judgment sum of RM328,500.00, together with lawful interest and costs, notwithstanding the existence of judgment against more than one defendant. Costs of this appeal are awarded to the Respondent in the sum of RM1,500.00, subject to allocatur. Dated 15hb May 2026 (MOHAMAD REDZUAN BIN IDRUS) JUDICIAL COMMISSIONER KUALA LUMPUR HIGH COURT NCC 5 WILAYAH PERSEKUTUAN KUALA LUMPUR APPEARANCES For the Plaintiff: Nga Ching Sim (Lim, Wong & CO. (Kuala Lumpur) Advocates & Solicitors) For the Defendant: Rosamirah Insyirah binti Zamri (C.S. Tan Seah & Partners (Petaling Jaya))

Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 2. Global Globe Property (Melawati) Sdn Bhd v Jangka Prestasi Sdn Bhd [2020] 5 MLRA 140 3. Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] CLJU 119 4. Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian Nagappan @ Marie [2021] 5 MLRA 178 5. CIMB Bank Berhad v Maybank Trustees Berhad & Other Appeals [2014] 4 MLRA 677

Rules of Court 2012 — Order 14 2. Moneylenders Act 1951 3. Evidence Act 1950 — section 92