Lee Heng Yak v LI Chee Loong (J-02(NCVC)(W)-1830-09/2017)

1 DALAM MAHKAMAH RAYUAN MALAYSIA 5 (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: J-02(NCVC)(W)-1830-09/2017 ANTARA 10 1. LEE HENG YAK … PERAYU-PERAYU (NO. K/P: 710509-01-6555)

2. SNG TECK LOKE (NO. K/P: 690806-01-5270) 15 DAN

1. LI CHEE LOONG … RESPONDEN-RESPONDEN (NO. K/P:780905-01-5697)

2. WOON WEE YUEN VICKY NG PEI CHUN GALOH MUNIRAH BINTI OSMAN CHENG JONG YONG 25 YEE WON SENG (YANG BERAMAL DI ATAS NAMA TETUAN WOON WEE YUEN & PARTNERS) (Dalam Perkara Mahkamah Tinggi Johor Bahru, 30 Guaman Sivil No. JA-22NCVC-138-08/2015) Antara 35 1. Lee Heng Yak … Plaintif-Plaintif (No. K/P: 710509-01-6555)

2. Sng Teck Loke (No. K/P: 690806-01-5270) 40 Dan 2

1. Li Chee Loong … Defendan-Defendan 5 (No. K/P: 780905-01-5697)

2. Woon Wee Yuen Vicky Ng Pei Chun Galoh Munirah Binti Osman 10 Cheng Jong Yong Yee Won Seng (Yang Beramal Di Atas Nama Tetuan Woon Wee Yuen & Partners) 15 CORAM HAMID SULTAN BIN ABU BACKER, JCA 20 ABANG ISKANDAR BIN ABANG HASHIM, JCA KAMALUDIN BIN MD SAID, JCA GROUNDS OF JUDGMENT Introduction 25 [1] The Appellants (Plaintiffs) appealed against the decision of the Learned Judicial Commissioner (JC) which was granted on 28.7.2017 at the Johor Bahru High Court in favour of the Respondents (Defendants).The grounds of judgment of the 30 Learned JC is pages 1 to 31 of the Additional Record of Appeal

(4). [2] We heard the appeal on 29.6.208 and adjourned it to a date for our decision. We had, after perusing the records of appeal and 35 considering the written and oral submissions of the counsels for 3 the Plaintiffs and the Defendants, unanimously dismissed the 5 appeal with costs. We further ordered that the deposit be refunded. Our reasons appear below. The Plaintiffs’ case 10 [3] The Plaintiffs are husband and wife and residing at No. 24, Jalan Jelatang 32, Taman Megah Ria, Johor. [4] The Plaintiffs had claimed that there was no genuine Sales and Purchase Agreement (SPA) entered between the 1st Plaintiff and 15 the 1st Defendant, allegedly signed on 21.5.2014 by the Parties. The Plaintiffs claimed that it was a mere loan transaction and the 1st Defendant had never intended it to be a Sales and Purchase Agreement. 20 [5] The 1st Plaintiff claimed that he had only wanted to borrow some monies from the 1st Defendant who is a money lender and he was then instructed by the 1st Defendant to sign the agreement at the law firm of the 2nd Defendant. The loan taken by the 1st Plaintiff was for the sum of RM 40,000.00. 25 [6] The 1st Plaintiff claimed that he was instructed by the staff of the 2nd Defendant, Ms. Liew to quickly sign at every page of the agreement. None of the 2nd Respondent's solicitors had advised the 1st Plaintiff about the agreement nor witnessed the signing of 30 4 the agreement by the 1st Plaintiff even though the 2nd Defendant’s 5 lawyer's name, "Fauziah Binti Mydin" appeared at page 12 of the agreement as though she had witnessed the signing of the agreement by the 1st Plaintiff. [7] The said agreement was signed by the 1st Plaintiff alone without 10 the presence of the 1st Defendant. The staff of the 2nd Defendant, Ms Liew had only informed that the said agreement was required to be signed as a collateral for the loan taken from the 1st Defendant. The 1st Plaintiff had signed the agreement without any explanation on the terms of the agreement. 15 [8] The 1st Plaintiff had made installment payments to settle the loan of RM 40,000.00 taken from the 1st Defendant. However, before the loan could be fully settled, the Plaintiffs received a letter dated 28.1.2015 from Messrs Woon Wee Yuen and Partners requesting 20 for fresh redemption statement from HSBC Bank for the Said Property. [9] The Plaintiffs’ solicitors then wrote to HSBC Bank on 24.2.2015 to inform them that this was not a genuine Sales and Purchase 25 Agreement. On 27.2.2015 the Plaintiffs’ solicitors had written to the 2nd Defendant that the Plaintiffs are willing to settle the Redemption Sum paid to the Bank totaling RM78,261.00 and the sums borrowed from the money lender i.e. the amount of RM40,000.00. 30 5 [10] The 2nd Defendant counter-offered and stated that the 1st 5 Defendant is agreeable to terminate the agreement upon the refund of the Deposit Sum of RM220,000.00 and the Redemption Sum of RM78,261.01 plus the sum of RM4,738.99 as liquidated damages. 10 [11] Overall, the Plaintiffs contended:

(ii) the 1st Plaintiff was induced into signing the Sale and 15 Purchase Agreement as well as other related documents as the 1st Plaintiff was misrepresented by the 1st Defendant’s agent i.e. the 2nd Defendant who was the solicitors handling the sale and purchase transaction; 20

(iii) the 1st Plaintiff was not represented by any solicitors in the said “sale and purchase transaction”;

(iv) the 1st Plaintiff had thought that he was executing documents pertaining to the loan granted to him and he did 25 not know that it was a sale and purchase agreement; and

(ii) The Counterclaim of the 1st Defendant was allowed i.e. the remedy for the specific performance of the sale and 15 purchase agreement was granted. The Court further ordered, amongst others:

(iii) Costs of RM40,000.00 to the 1st Defendant and RM20,000.00 to the 2nd Defendant in the main claim and 30 RM10,000.00 to the 1st Defendant in the counterclaim. 10 Principles of Appellate Intervention 5 [24] It is trite law that an appellate court will not intervene unless the trial court is shown to be plainly wrong in arriving at its conclusion and where there has been insufficient judicial appreciation of the evidence. The appellate court will intervene in a case where the 10 trial court had so fundamentally misdirected itself (See: Merita Merchant Bank Singapore Ltd v. Dewan Bahasa dan Pustaka [2014] 9 CLJ 1064). The Federal Court in Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453 reiterated the principle to be adopted by an appellate court when reversing 15 findings of fact by a trial court: "... It is now established that the principle on which an appellate court could interfere with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor (P) v. Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 2 MLJ 1 (at 20 p. 10) per Steve Shim CJ SS. More recently this principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v. Genisys Integrated Pte ltd [2010] 9 CLJ 785 where it was held at p. 800: "It is well-settled law that an appellate court will not generally speaking, intervene with the decision of a 25 trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. (See Chow Yee Way & Anor v. Choo Ah Pat [1978] 11 1 LNS 32; Watt v. Thomas [1947] AC 484; and Gan Yook Chin 5 & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309." [25] The Federal Court in Gan Yook Chin v. Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 held that the test of "insufficient judicial appreciation of evidence" adopted by the Court of Appeal 10 was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. The Federal Court further stated that a court hearing the appeal is entitled to reverse the decision of the trial judge after making its 15 own comparisons and criticisms of the witnesses and of its own view of the probabilities of the case. It is also entitled to examine the process of evaluation of the evidence by the trial court and reverse a decision if it is wrong. 20 [26] The failure to consider the entirety of the evidence and material issues or the failure to make findings of fact or the making of bare findings of fact will invite appellate intervention. Such omissions by a trial judge will require the appellate courts to take on the role of first instance judge and review the evidence in its entirety 25 afresh. [27] Having set out the legal principles underlying appellate intervention, it was our task to determine whether the finding of 12 facts by the learned JC in this case contained appealable error for 5 this court to interfere. The Appeal [28] Both the counsels for the Plaintiffs and Defendants had filed their 10 written submissions and made their oral submissions. [29] The Plaintiffs’ counsel submitted that the learned JC had failed to properly evaluate the evidence and make an erroneous finding that the Sale and Purchase Agreement (“SPA”) is valid. He 15 submitted that the failure of the Learned JC to evaluate the evidence properly in respect of the purported SPA, the Learned JC failed to declare the SPA as invalid and if he had done so, that would save the Plaintiffs’ property being transferred to the 1st Defendant. He submitted that the 1st Plaintiff borrowed money 20 from the 1st Defendant who is the money lender “Ah Long”. The 1st Plaintiff had paid back the loan and without her knowledge the property was taken in execution by the 1st Defendant. [30] The Learned Counsel submitted that the 1st Plaintiff had never 25 met the 1st Defendant. It was submitted the sale was made through an agent by the name of Ah Tan and the option papers were not produced in Court at all. The 1st Respondent had not signed the agreement in the presence of the 2nd Defendant. It was contended that 1st Plaintiff met Ms. Liew at the 2nd 30 13 Defendant’s office but Ms. Liew never explained the terms of the 5 SPA and the nature and contents of the related documents signed by the 1st Plaintiff including the Memorandum of Transfer. [31] The learned Plaintiffs’ counsel also raised misrepresentation by Ms. Liew at the 2nd Respondent office. She had misrepresented 10 that the agreement was only as a security for the loan taken by the 1st Plaintiff. The Plaintiffs’ stand was that the SPA which the 1st Plaintiff entered was as ‘collateral’ or ‘security’ for the loan given by the 2nd Defendant to the 1st Plaintiff and that the 2nd Defendant had convinced him to sign the said agreement. 15 [32] The learned counsel argued that the Learned JC did not approach this case entirely from the stance of a claim under specific performance but took Section 91 and 92 of the Evidence Act 1950 approach and refused to exceed the perimeter of what was 20 agreed between the 1st Plaintiff and the 1st Defendant. Hence, the Learned JC had dismissed all other evidence and procured such other evidence which was not available. [33] It was also contended that the 1st Defendant was not aware at all 25 about the house that he alleged to have purchased from the 1st Plaintiff whether the property or the house is a semi-detached house or a single storey terrace house. 14 [34] The learned counsel then raised complaints against the Learned 5 JC’s ruling that, the 2nd Plaintiff was not the party in the SPA and therefore, there was no locus standi for the 2nd Plaintiff to make the claims against the 1st Defendant, had ruled that the 2nd Plaintiff has no caveatable interest in the Said Property and thus, the caveat lodged by her was considered unlawful and had ruled 10 that the Statutory Declaration of the 2nd Plaintiff did not show that she had contributed to the purchase of Property. The learned counsel submitted that the learned JC had failed to consider that by relying that the Property is only under one name that is, under the name of the 1st Plaintiff, defeats the purpose of recognition of 15 contribution by the spouse in matrimonial law. Further, the Learned JC was wrong when she found that the Plaintiffs’ version as to the denial of executing the SPA had not been supported by any independent witnesses. She held that the SPA supported the Defendants’ version. By merely producing before the Court a 20 copy of the SPA, the Learned JC was said to have jumped to the conclusion that the SPA is valid and enforceable. [35] It was also argued that the Learned JC had failed to consider that the 1st Defendant held the burden to prove that he was a bona 25 fide purchaser of the Property. The burden of proof did not lie on the Plaintiffs as the 1st Plaintiff’s title to the Property is already indefeasible. 15 [36] We were persuaded to consider the habitual act of the 1st 5 Defendant in lending out loans and then transfer out the borrowers' houses to him with the assistance of the 2nd Defendant. The Plaintiffs’ counsel referred to the Court of Appeal case Tan Ah Moia, Beah Siew Siang and Beah Ang Motoo v Li Chee Loong [2018] 1 LNS 35 and also the rest of other similar 10 cases in Johor Bahru. It was contended that, the same law firm is involved in money lending scheme through the modus operandi of a sale and purchase transaction. Counsel submitted that the case of Tan Ah Moai had referred to the Federal Court case of Bandar Eco-Setia Sdn Bhd v Angelane Eng [2016] 1 MLJ 764 15 in which it was held by the Court that the Court will consider the conduct of the party who seeks to enforce the contract and the relevant circumstances before granting the specific performance. [37] The Plaintiffs’ counsel submitted that the Learned JC had given 20 great credence to the documents produced by the 2nd Defendant and refused to consider all other evidence available. On this score alone, the Plaintiff’s counsel urged this Court to allow this appeal and set aside the reliefs granted to the 1st Defendant by the High Court. It was submitted that there is no loss to the 1st Defendant 25 if the Said Property is returned to the Plaintiffs and the Plaintiffs pay back the Redemption Sum and the monies that was borrowed for the sum of RM 40,000.00. 16 [38] Based on the above submissions, the Plaintiffs pray that their 5 appeal be allowed with costs. [39] On the other hand, the Defendants’ counsel made a brief submission that the Property had already been transferred to the 1st Defendant as shown in Additional Record of Appeal (5) at 10 pages 5 to 7. The Plaintiffs did not obtain any stay of execution to prevent the transfer of the Property after Judgment was obtained by the Defendants on 28.7.2017. With the transfer of the Property, the substratum of this appeal is no more. The appeal is now academic and rendered nugatory since the Property has 15 been transferred to and registered in the name of the 1st Defendant. [40] The Defendants’ counsel submitted that the appeal has no merit because the Learned JC had made a finding of fact that the SPA 20 is valid and enforceable and such finding is correct and it is supported by evidence of witnesses and documents. The Defendants prayed that the appeal be dismissed with costs. Our Decision 25 [41] To begin with, we would agree with the Learned JC’s finding that there is no requirement of law for the ‘vendor’ (1st Plaintiff) and ‘purchaser’ (1st Defendant) to meet before the signing of SPA and 17 to sign the SPA in the presence of both parties (paragraph 54 of 5 the judgment). [42] At paragraph 41 of the judgment, the Learned JC held that based on the evidence of Plaintiffs’ and Defendants’ witnesses, the Plaintiffs had failed to prove on the balance of probabilities that 10 SPA is invalid and unenforceable against the parties. [43] We had perused the records of appeal and found there were overwhelming evidence to confirm that the Learned JC’s finding of fact is supported by evidence and she had made a correct 15 decision. We found the evidence of DW3, Mr. Woon Wee Yuen, a lawyer by profession and the managing partner of the 2nd Defendant had confirmed that the SPA was duly signed by the parties on 21.5.2014. DW3 confirmed that the SPA and all other documents related to the sale and purchase of the property were 20 executed at his law firm and the documents were all kept at his law firm. DW4, Puan Fauziah Binti Mydin, a lawyer by profession and the lawyer in charge of the SPA had also confirmed that both the 1st Plaintiff and the 1st Defendant had signed the SPA on 21.5.2014 but they signed separately. DW4 confirmed she had 25 explained the essential terms of the SPA to the 1st Plaintiff before he signed the SPA and if he was not agreeable, DW4 will not force the 1st Plaintiff to sign it. 18 [44] We saw nothing wrong with the learned JC’s finding on this 5 matter. We had perused the SPA at page 229 of the Appeal Record Vol 1 and it was not in dispute he had signed it and witnessed by DW4. The SPA is dated 21.5.2014. [45] The SPA was in fact signed by the 1st Plaintiff. It was also evinced 10 by the Plaintiffs’ own pleadings in the Amended Statement of Claim at paragraph 8 and 9 which stated that he signed the SPA. At paragraph 11 he said that he signed the SPA on 21.5.2014 and after the SPA was signed by the 1st Plaintiff and the 1st Defendant, the 1st Plaintiff was brought to a bank and deposited 15 RM 220,000.00 in the 1st Plaintiff’s Maybank A/C No: MBB 551258507311 by way of Bank Transfer. Parties are bound by their own pleading. [46] On the allegation that Ms. Liew at the 2nd Defendant’s office had 20 misrepresented to the 1st Plaintiff that the agreement was only as a security for the loan taken by the 1st Plaintiff, we agreed that the learned JC had also considered this allegation and found the allegation was not supported by any evidence or documentary evidence. What she had before her was only the SPA in support 25 of the Defendants’ pleadings that the 1st Plaintiff had signed the SPA. We reproduced the learned JC’s finding as follows - “[53] Plaintif-Plaintif hanya mempertikaikan bahawa mereka telah menandatangani SPA tersebut melalui keterangan- 30 19 keterangan lisan di Mahkamah tanpa disokong oleh mana- 5 mana keterangan-keterangan lain atau keterangan dokumen. Malah keterangan yang ada di hadapan Mahkamah ini adalah SPA yang menyokong pernyataan Defendan-Defendan.” [47] The SPA shows that it was signed by him. If the document is 10 signed it will normally be impossible or at least difficult, to deny its contractual character, and evidence of notice, actual or constructive, is irrelevant. In the absence of fraud or misrepresentation, a person is bound by a written document onto which he has put his signature, whether he has read its contents 15 or has chosen to leave them unread. [48] Lord Justice Mellish in Parker v South East Rail Co [1934] 2 K.B, 394 illustrated the distinction between the signed and the unsigned document which was emphasized in L’ Estrange v 20 Graucob [1934] All E.R Rep.16. The Plaintiff bought an automatic machine from the defendants on terms contained in the document, described as “Sales Agreement,” and including a number of clauses in “legible, but regrettably small print,” which she signed but did not read. The Court of Appeal held that she 25 was bound by these terms and that no question of notice arose. Scrutton, L.J at pg. 403 held that - “…. When the document containing contractual terms is signed, then, in the absence of fraud, or, I will add, 30 20 misrepresentation, the party signing it is bound, and it is 5 wholly immaterial whether he has read the document or not.” [49] It was stated in the grounds of judgment that the Plaintiff had also raised an issue of forgery on the SPA. However, the Learned JC found that the Plaintiffs never pleaded fraud or 10 gave particulars of fraud in their Statement of Claim. The learned JC had correctly held that the Plaintiffs are bound by their own pleading (see paragraphs 57 and 58 of the grounds of judgment). The forgery issue raised by him therefore had no merit. 15 [50] In Gasing Heights Sdn Bhd V Aloyah Bte Abd Rahman & Ors [1996] 3 MLJ 259, Mahadev Shankar J held that – “Apart from the bare assertion of conspiracy based on the 20 joint filing of the action no particulars of any kind were alleged against these six defendants to show they were linked to the misdemeanours alleged against the fifth defendant. Just as fraud must be pleaded with great particularity, so also all the constituent ingredients 25 going to make up the conspiracy must be pleaded. On this ground alone, the claim for conspiracy failed (see p 269B)”. [Emphasis is mine] 21 [51] On the claim for failure by the Learned JC to apply the provisions 5 of Section 91 and 92 of the Evidence Act 1950 properly in not exceeding the perimeter of what was agreed between the 1st Plaintiff and the 1st Defendant but to dismiss all other evidence and procured such other evidence which was not available, our view is that the position as provided in sections 91 and 92 of the 10 Evidence Act 1950 is very clear. Under section 91, once the contract is reduced into writing, which is the case here, no evidence shall be given in proof of the terms of the contract. Under section 92, the provisos allow certain exceptions as stated in paragraphs (a) to (f) thereof. Based on the evidence before the 15 learned JC, she had considered that the 1st Plaintiff had failed to bring his case within any one of the exceptions. [52] Similarly, even if the 1st Defendant was not aware at all about the house that he alleged to have purchased from the 1st Plaintiff 20 whether the property or the house is a semi-detached house or a single storey terrace house, our view is that it cannot be a factor that falls within the exception of section 92 of the Evidence Act 1950 in the circumstances of this case. The SPA which was entered between the 1st Plaintiff and the 1st Defendant clearly 25 prescribed the particulars of the said Property purchased by the 1st Defendant is Geran 388511 Lot 70050 (Formerly known as H.S. (D) 58395 PTD 31836) Mukim of Johor, Johor Bahru, District of Johor Bahru, State of Johor containing the area of 491, 6268 square meters together with a single storey terrace house erected 30 22 thereon and known as No: 24, Jalan Jelatang 32, Taman Megah 5 Ria, 81750, Masai, Johor. It is clearly the single storey house which was the subject matter of the SPA. Therefore, the Plaintiffs’ argument has no merit. [53] It was argued that the Learned JC’s decision was wrong when 10 she decided that the 2nd Plaintiff had no locus standi to make the claims against the 1st Defendant. We found that the Plaintiffs’ argument has no merit. The position of the 2nd Plaintiff had also been considered. She had made a finding that the 2nd Plaintiff has no cause of action against the 1st Defendant because she has no 15 locus standi to claim for any relief either under the SPA or in relation to the Property (see paragraph 45 of the grounds of judgment). We agreed with her finding based on reasons that the 2nd Plaintiff is not a party to the SPA (see paragraph 42). The 2nd Plaintiff is not a registered owner of the Property (see paragraph 20 43 and also issue document title at pg. 273 to 277 of Additional Record of Appeal Part C Vol 1) and the 2nd Plaintiff was not a co-borrower for the housing loan granted by HSBC Bank Malaysia Berhad (see paragraph 43 and at pg. 327 to 348 of Additional Record of Appeal Part C Vol 1) 25 [54] On the argument that the Learned JC had failed to consider that the 1st Defendant held the burden to prove that he was a bona fide purchaser of the Property. The burden of proof did not lie under the Plaintiffs as the 1st Plaintiff’s title to the Property is 30 23 already indefeasible. We did not agree with learned counsel’s 5 submission. The Learned JC had subsequently held that the burden of proof lies on the Plaintiffs throughout the trial and Section 110 of the Evidence Act 1950 did not apply in the circumstances (see paragraph 55 of the grounds of judgment). We agreed with the Learned JC. In the circumstances of this 10 present case, our view is that the burden of proof rests with the Plaintiffs throughout to prove their claim to avoid the SPA. It was the Plaintiffs who had alleged the existence of the alleged loan, that the SPA was collateral for the alleged loan and that the Property was a matrimonial property. These factual allegations 15 were not necessary to the 1st Defendant’s claim for specific performance of the SPA, which only required the 1st Defendant to prove the existence of the SPA. The Court of Appeal referred to Section 103 of the Evidence Act 1950 and held that the burden of proof did not shift to the Respondent as the Respondent never 20 raised the allegation (see: Juhair bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627). [55] Section 110 of the Evidence Act 1950 does not apply as the 1st Defendant is not disputing or challenging the ownership status of 25 the 1st Plaintiff. In fact, it is the opposite. The 1st Defendant knew that the 1st Defendant is the registered owner of the property and hence entered into the SPA with 1st Plaintiff to purchase the property. This can be seen when the Recital and terms of the SPA clearly confirmed that the 1st Plaintiff is the owner of the 30 24 property and had decided to enter into the SPA to sell and 5 transfer the property to the 1st Defendant. [56] Sarkar Law of Evidence (Malaysia Edition), Volume 11, page 2543 where the Commentary to Section 110 states - 10 “This section embodies the well-known principle that possession is prima facie proof of ownership. Possession of property, movable or immovable, affords prima facie presumption of ownership, as men generally own the property they possess. 15 … As per section 110 of the Evidence Act, when a person is in possession of property, the burden of proving that he is not the owner lies on the person so asserting. An individual in possession starts with a presumption of title in his favour and it 20 is for the other side to show that the formers possession is not the evidence of title and the has a superior title in himself …” [57] Be that as it may, as we had alluded to earlier, the learned JC had found that the SPA was signed by the 1st Plaintiff which she 25 based her finding on the evidence i.e. the SPA. She held that the 1st Plaintiff failed to provide evidence or documentary evidence to support 1st Plaintiff’s contention that he did not sign the SPA. His claim only based on her own oral testimony. She held that the SPA supported the Defendants’ version. We did not agree with 30 25 the learned counsel suggestion that by merely produced before 5 the Court a copy of the SPA, the learned JC had jumped into conclusion, that there was a valid SPA entered between the Parties. We did not see any fault in the learned JC’s finding because it is trite that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of 10 facts which he asserts, must prove that those facts exist. [58] In Alliance Bank Malaysia Berhad v. Sail Bin Yalang [2010] 7 MLJ 316 the Court held that: 15 “There can be no dispute that the respondent’s liability depends on the existence of the appellant’s assertion that he executed the second letter of guarantee. Clearly therefore the burden of proof lies on the appellant by virtue of s 101 of the Act which provides: - 20 101 Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. 25

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 30 26 [59] In the case of MBf Finance Berhad v. Low Achee & Anor 5 [2011] 7 MLJ 621, the Court held as follows: - “It is elementary that the party who asserts the existence of facts upon which judgment should be given to him must prove the existence of those facts (see s 101 of the Evidence Act 10 1950). Further, s 103 of the Evidence Act provides that unless it is provided by any law that the burden of proof of a particular fact lies with a particular person, then the burden of proof lies with the person wishing the court to believe in the existence of that particular fact. “ 15 [60] The trial was not based on the SPA alone but oral testimonies of witnesses. SPA amongst other documents was a contemporaneous document. In determining the issue whether the 1st Plaintiff signed the SPA, the learned JC relied on 20 contemporaneous documents that may tend to establish the truth or otherwise (see Guan Teik Sdn Bhd-lwn-Haji Mohd Noor Bin Haji Yakob & Ors [2000] 4 MLJ 433, Tindok Besar Estate Sdn Bhed v Tinjar Co. [1979] 2 MLJ 229 and Eastern & Oriental Hotel (1951) Sdn Bhd v Ellarious George Fernandez 25 & Anor [1989] 1 MLJ 35). [61] We agreed with the Defendants that in this case the 1st Defendant had relied entirely on the SPA to deny the 1st Plaintiff’s claim that he did not sign the SPA. The Learned JC had held that 30 27 the SPA is valid because there is no other evidence or 5 documentary evidence produced by the 1st Plaintiff to prove that he did not sign the SPA. The SPA is a conclusive proof that the 1st Defendant had purchased the Property from the 1st Plaintiff. [62] It was the finding of the Learned JC at paragraph 56 of her 10 grounds of judgment that the 1st Defendant had paid the deposit payment of RM220,000.00 and paid the redemption sum of RM78,261.01. The Learned JC held that the 1st Defendant was ever ready and willing to complete the SPA and therefore, was entitled to specific performance of the said SPA. In our view, it is 15 quite illogical for the 1st Plaintiff to deny that the sum of RM220,000.00 was not payment made by the 1st Defendant when the 1st Plaintiff in his own evidence at page 243 of the Notes of Evidence in Additional Record of Appeal, Part B, Vol 2 said that the 1st Defendant brought him to the bank and deposit 20 RM220,000.00 into his account. This evidence is also consistent with his pleading at paragraph 11 of his Statement of Claim that after the SPA was signed by the 1st Plaintiff and the 1st Defendant, the 1st Plaintiff was brought to a bank and deposited RM220,000.00 in the 1st Plaintiff’s account by way of Bank 25 Transfer. [63] It cannot be disputed that the bank in slip made at Public Islamic Bank Berhad for a cash sum of RM220,000.00 dated 21.5.2014 shown at page 279 of the Appeal Record, Part C, Vol 1 was made 30 28 in the 1st Plaintiff’s name. It is not in dispute that the Maybank 5 Cheque dated 10.2.2015 for the sum of RM 78,261.00 was paid to HSBC Bank Malaysia Berhad to redeem the Property. The request for Discharge of Charge in respect of the property to HSBC Bank dated 21.5.2014 was signed by the 1st Plaintiff (see pg. 280 and 281 of the Appeal Record, Part C, Vol 1. 10 [64] Clause 2.1 of the SPA expressly provided for the purchaser to pay the deposit and part payment toward account of the purchase price upon signing the SPA. It was not disputed that the SPA was signed on 21.5.2014 and RM 220,000.00 which was paid into 1st 15 Plaintiff’s bank account is part payment of the purchase price described in paragraph 8 of the Schedule to the SPA. Therefore, the 1st Plaintiff’s argument that he did not know who deposited the money, thereby forcing the 1st Defendant to prove that this sum of RM220,000.00 was paid by the 1st Defendant for the purchase of 20 the property, cannot be sustained. With respect, we cannot accept such argument. [65] The evidence of DW3 and DW4 confirmed that the deposit sum had been paid to the 1st Plaintiff by the 1st Defendant into the 1st 25 Plaintiff’s bank account. The 1st Defendant in the cross-examination confirmed that he was the one who had paid the deposit sum. The 1st Plaintiff then claimed that Mr. Sam had taken away RM190,000.00 from the deposit sum. The 1st Plaintiff’s claim in our view shows that the deposit sum of 30 29 RM220,000.00 was in fact paid into his account. This is also 5 confirmed in his police report dated 29.7.2015 (see pg. 260 of Appeal Record, Part C, Vol 1). [66] Again, we found that if the 1st Plaintiff is contending that he has been cheated, the police report was only lodged about 5 months 10 after 13.2.2015 when the 2nd Plaintiff received a letter from the 2nd Defendant that the balance payment of RM78,826.01 would be used to redeem the house and the said house would be transferred to the 1st Defendant. In his police report the 1st Plaintiff alleged that the loan transaction by the Defendants is an offence 15 of money laundering under the Money Laundering Act. The said police report was also lodged about 2 months after the Plaintiffs filed the Writ of Summons on 24.5.2015. [67] We were also of the view that other complaints raised by the 20 Plaintiffs related Memorandum of Transfer duly signed and stamped and there is no evidence of assessment being paid by the Defendants were not considered by the learned JC had no merits and irrelevant because the Discharge of Charge of his property requested by the 1st Plaintiff upon redemption of balance 25 amount with HCBC Bank were for intent and purpose for the transfer of the property to the 1st Defendant. [68] Based on the oral and contemporaneous documentary evidence led before the Learned JC, we found that the findings on the 30 30 validity of the SPA of the Learned JC are predicated on both oral 5 and documentary evidence that was presented before her. Hence, we found no appealable error on the part of the Learned JC on her decision that merit intervention. [69] We have read the Court of Appeal case of Tan Ah Moia, Beah 10 Siew Siang and Beah Ang Motoo v Li Chee Loong [2018] 1 LNS 35 and we agreed that Plaintiff/Respondent in that case and the 1st Defendant in the present case appears to be the same person who is said to be the buyer of the property or the money lender. Plaintiff (Li Chee Loong) and Defendants entered into a 15 Sale and Purchase Agreement dated 20.2.2014 for the sale of property for sum of RM250,000.00. It was handled by Messrs Woon Wee Yuen & Partners appointed by the Plaintiff. [70] The 1st Defendant is the mother of the 2nd Defendant whilst the 3rd 20 Defendant is the 2nd Defendant’s father. Each Defendants hold 1/3 ownership of the property and the 2nd Defendant took a housing loan from Citibank Berhad to finance the purchase property which was charged and sum of RM59,000.00 was still owing to Citibank. The Plaintiff contended that he had initially 25 paid sum of RM40,000.00 on 20.2.2014 to the 2nd Defendant and the Plaintiff alleged that 2nd Defendant was authorized by the 1st and 3rd Defendants to receive all payments. The Plaintiff stated that he had made 2 payments to the 2nd Defendants. However, in June 2014, Messrs Woon received the redemption statement 30 31 from Citibank. The Plaintiff stated that he had contacted the 5 Defendants but they refused to give reasons why they instructed Citibank to cancel the redemption. The Defendants contended that they do not know the Plaintiff and were induced into signing SPA as well as other related documents as they were misrepresented by the Plaintiff or his solicitors or his agents. The 10 Defendants had lodged a police reports and complaint to the Advocates & Solicitors Disciplinary Board. They denied receiving any payments to the alleged sale of the property and claimed that they have not met the Plaintiff prior to the commencement of the action. The property is a residential house occupied by the 15 Defendants since May 2003 and the Defendants are still paying the housing loan monthly instalments to Citibank. The 1st and 3rd Defendants are not fluent in English; they did not intend to sell the property. They were induced to sign SPA which were never explained to them. They thought they were executing documents 20 relating to personal loan granted to the 2nd Defendant. Therefore, SPA cannot be enforced [71] The learned High Court Judge found there were two conflicting versions as to who were present when the alleged SPA was 25 signed in Messrs Woon’s office and what was the purpose of the 3 payments handed over to the 2nd Defendant. However, the High Court accepted the evidence of the Plaintiff as being more probable. The Court ruled that the Plaintiff had successfully proven that the parties indeed executed the SPA on 20.2.2014 30 32 and the terms of SPA were explained by Liew Shw Wee. It was in 5 evidence that upon the execution of SPA the 1st payment of RM40,000.00 by bank draft was handed over to the son i.e. the 2nd Defendant and he had acknowledged receipt on the cover file. The evidence and allegations made by the Defendants that they were not explained as to the contents of the documents were just 10 mere bare assertions. They lacked corroboration by independent witnesses. The Court also found that there was no proof of fraud on the part of PW1 and PW2 when the SPA was executed. The Court concluded that on the balance of probabilities the Plaintiff has proven his case against all the Defendants. Therefore, the 15 High Court Judge allowed the Plaintiff’s claim against all three Defendants with costs of RM15,000.00 and granted remedies of specific relief to the Plaintiff. [72] On Appeal, the Court of Appeal found that the findings on liability 20 of the learned High Court Judge are predicted on both oral and documentary evidence that was presented before him and therefore the Court of Appeal found no appealable error on the part of the learned High Court Judge on liability that merit any curial intervention. However, on the issue of granting specific 25 reliefs, the High Court Judge did not give any reasons for such decision. The Plaintiff has not paid the balance of the purchase price of RM60,000.00 neither has the Plaintiff deposited the said balance purchase price with his solicitors as stakeholders. There 33 was also no evidence to indicate the ability of the Plaintiff to 5 complete the sale transaction of the property. [73] It was held by the Court of Appeal that the relief of specific performance is an equitable remedy. The Court of Appeal found no plausible explanation given by the Plaintiff on the nine months’ 10 delay before commencing suit against the Defendants and no evidence that the Plaintiff was continuously able and willing to settle the balance of the purchase price of the property. Therefore, the equitable relief of specific performance should not be granted. Furthermore, in the pleadings, the Plaintiff had stated 15 that he agreed to cancel the SPA and demanded the refund of the sums paid (RM190,000.00) plus damages of RM40,000.00. [74] The Court of Appeal allowed the appeal in part. It set aside the Order of the Learned High Court Judge on the remedies in 20 paragraphs 1 to 5 and substituted the same with the following order that the Defendants to refund the sum of RM190,000.00 paid to the 2nd Defendant, to the Plaintiff within 30 days from the date of this Court judgment together with interest of 5% from the judgment of the High Court until full realization of the payment. 25 Costs of RM10,000.00 subject to the payment of allocator. The deposit to be refunded. [75] We found the facts in the above case can be distinguished from the facts in our case. In the above case, the Court of Appeal 30 34 found that the balance of the purchase price of RM60,000.00 and 5 neither has the Plaintiff deposited the said balance purchase price with his solicitors as stakeholders. There was also no evidence to indicate the ability of the Plaintiff to complete the sale transaction of the property. In the present case the balance purchase price of RM220,000.00 was paid into the 1st Plaintiff’s Public Bank 10 account on 21.5.2014 i.e. the same date the SPA was signed. The 1st Plaintiff’s Public Bank account statement showed that on 21.5.2014 the amount RM190,000.00 was debited from the said account. The 1st Plaintiff claimed that the amount of RM190,000.00 was taken by Mr. Sam, however, there is no 15 evidence to support such contention neither any demand made against Mr. Sam. The 1st Defendant had pleaded that after the balance purchase price was paid, the 1st Defendant was keeping silent during the duration of the SPA which the 1st Defendant believed that the 1st Plaintiff intended to proceed with the SPA. 20 The 1st Defendant issued Maybank Cheque dated 10.2.2015 for the sum of RM78,261.00 which was paid to HSBC Bank Malaysia Berhad to redeem the property. [76] In the police report lodged by the 1st Plaintiff, it was stated that the 25 2nd Plaintiff discovered that the balance payment of RM78,826.01 would be used to redeem the house and the said house would be transferred to the 1st Defendant after receiving a letter from the 2nd Defendant dated 13.2.2015. However, the police report was lodged 5 months later on 29.7.2015. We noted in the police report 30 35 the 1st Plaintiff alleged that the RM190,000.00 was given to 5 Vincent and William. There is no evidence to connect the two persons with the Defendants. [77] In the present case, the evidence is clear in that the 1st Plaintiff had paid the balance deposit of RM220,000.00 into the 1st 10 Plaintiff’s bank account followed by the redemption payment of the property for RM78,826.01. The Learned JC had found that the 1st Defendant was able and willing to complete the SPA transaction and was therefore entitled to specific performance. 15 Conclusion [78] Our decision is unanimous in that the Plaintiffs’ appeal has no merit. The appeal is dismissed with costs of RM10,000.00 each to the 1st Defendant and 2nd Defendant subject to allocator. 20 Deposit is ordered to be refunded. Dated this 18th September, 2018 25 Sgd KAMALUDIN MD. SAID JUDGE 30 COURT OF APPEAL MALAYSIA PUTRAJAYA 36 5 Parties

1. Ravi G and Aida Hassan for the Appellants 10 (Messrs G Ravi & Co.)

2. Tan Vincent for the 1st Respondent (Messrs Tan Vincent & Azmi) 15

3. T.Gunavati for the 2nd Respondent (Messrs Albert Ding, Lee & Partners)