Leong Kum Toh v Eng Lai Seong (BA-22NCvC-377-09/2023)

LEONG KUM TOH (I/C No.: 730719-08-5602) [As the Trustee under the Court Order dated 28.02.2014 in the Divorce Petition No.: 33-174-03/2013 High Court of Malaya in Shah Alam and as the 'next of kin' to ENG WAN YING (I/C No.: 110525-10-2382)]

ENG WAN CHI (I/C No.: 011120-10-1708)

ENG KAI SIANG (I/C No.: 040827-10-1141) …PLAINTIFFS AND ENG LAI SEONG (I/C No.: 760412-14-5137) …DEFENDANT 30/10/2024 14:41:48 BA-22NCvC-377-09/2023 Kand. 26 GROUNDS OF JUDGMENT

This is the Plaintiffs’ application for summary judgment under Order 14 rule (1) of the Rules of Court 2012 (ROC 2012) (the Application) against the Defendant for a sum of RM1.5 million.

The First Plaintiff and the Defendant are the biological parents of the Second and Third Plaintiffs, as well as Eng Wan Ying, a minor (the children). All the children are currently under the care and custody of the First Plaintiff.

The marriage between the First Plaintiff and the Defendant was dissolved by a Decree Nisi on 28 February 2014, pursuant to divorce petition No. 33-174-03/2013, in the High Court of Malaya at Shah Alam (the said Order).

Among the orders issued by the court, the Defendant was required to pay a total of RM3 million, specifically allocated as RM1 million for each child, to cover their educational and living expenses.

The First Plaintiff was appointed as a joint trustee to hold and manage the said RM3 million for the benefit of the children.

Around 2019, citing financial difficulties in his business, the Defendant repeatedly urged, pressured, and/or demanded that the First Plaintiff lend him money from the RM3 million, despite being fully aware that these funds were intended for the children’s needs. The Defendant assured the First Plaintiff that any borrowed amount would be repaid by 8 November 2019.

Due to the pressure, demands, and assurances from the Defendant, and in light of the Defendant's history of violence and aggression towards the First Plaintiff, she felt compelled to lend him RM1.5 million (the borrowed amount) from the said funds. It is pertinent to note that on 6 June 2012, the Defendant was charged and fined by the Magistrates’ Court for committing domestic violence against the First Plaintiff. Consequently, the First Plaintiff has lived in constant fear and anxiety, concerned for her safety and that of the children.

Despite the assurances, the Defendant failed to repay the borrowed amount by the agreed deadline of 8 November 2019 and has since refused to make any repayments. His failure to fulfil this obligation resulted in the Second Plaintiff having to defer her higher education in the United States from January 2020 to September 2022.

The Plaintiffs have made repeated demands for the repayment of the borrowed amount to ensure the welfare and well-being of the children, however, the Defendant has responded only with empty promises and unfulfilled assurances.

Furthermore, the Defendant's conduct has escalated to acts of violence against the Plaintiffs, prompting the First Plaintiff to file a police report against him on 16 February 2021.

The Defendant argued that he had already paid the Plaintiffs a total of RM5.5 million for the maintenance of the ex-wife and the children.

Additionally, the Defendant allowed the Plaintiffs to reside in one of his properties at 12A, Jalan Setia Nusantara U13/22H, Setia Eco Park, 40170 Shah Alam, which is situated near his residence.

Beyond the maintenance payments, the Defendant provided the First Plaintiff with approximately RM1.5 million following the sale of a bungalow previously owned jointly by the Defendant and the First Plaintiff, located at No. 32, Jalan Serindit 19, Taman Eng Ann, Kapar (the old bungalow), on 2 August 2016.

The Defendant entirely funded the purchase and financing of the old bungalow. The First Plaintiff received the full proceeds from its sale.

In early 2019, the Defendant's company, Thien Hong Machinery (M) Sdn. Bhd., faced significant financial challenges as several clients defaulted on machinery rental payments.

Between September 2018 and early 2019, due to escalating operational costs, the Defendant's company initiated legal proceedings against multiple clients. One notable case involved a substantial claim exceeding RM5 million against MRCB Builders Sdn. Bhd., filed in the Arbitration Court.

The company incurred substantial legal expenses to recover the outstanding rental payments.

Aware of the Defendant's financial difficulties at the time, the First Plaintiff voluntarily transferred funds from her account to the Defendant's account to assist him in overcoming his business challenges.

Both parties mutually understood that the Defendant would repay the First Plaintiff once his company's financial situation improved.

Unfortunately, the Defendant's business suffered further losses during the COVID-19 pandemic when government-imposed movement control orders severely restricted business activities.

Despite these circumstances, the First Plaintiff did not demand repayment, understanding that the Defendant’s company had not yet recovered from significant financial setbacks, amounting to approximately RM2,253,860.00 in losses.

In February 2021, the Second Plaintiff, Eng Wan Chi, the Defendant's daughter, arrived at the Defendant's residence seeking refuge after a dispute with the Third Plaintiff.

During her stay, the Second Plaintiff allegedly caused problems with the Defendant's girlfriend and called the Third Plaintiff, Eng Kai Siang, the Defendant's eldest son, to come over, further escalating the situation.

Frustrated by the disturbances caused by the Second and Third Plaintiffs, the Defendant asked them to leave his residence.

Following these incidents, the First Plaintiff, dissatisfied with the situation, instructed her solicitors to issue a Letter of Demand to the Defendant for failing to repay the loan within the specified deadline.

Subsequently, on 6 September 2023, the Plaintiffs initiated legal action against the Defendant, seeking to recover the RM1.5 million allegedly transferred to the Defendant in 2019.

The principles of law relating to Summary Judgment applications are trite. The Plaintiff, in an application for Summary Judgment, must satisfy the primary requirements under Order 14 of the Rules of Court 2012. The preconditions for the application for Summary Judgment were stated in the case of National Company for Foreign Trade v Kayu Raya Sdn. Bhd. [1984] 2 MLJ 300, the Federal Court held that: “For the purposes of an application under Order 14 the preliminary requirements are: i. The defendant must have entered an appearance; ii. The statement of claim must have been served on the defendant; and iii. The affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14.”

Once the primary requirements have been satisfied, the burden then shifts to the Defendant to satisfy the court that there is in existence the triable issue that warrants a trial and why judgment should not be entered against it (see: National Company for Foreign Trade v Kayu Raya Sdn. Bhd. [1984] 2 MLJ 300; Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685).

In the case of Ng Hee Thoong & Another v Public Bank Bhd [1995] 1 MLJ 281, Gopal Sri Ram JCA (as His Lordship was then) stated: “In Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 at p 185, Hashim Yeop A Sani SCJ explained the basis of the summary jurisdiction in clarity of language that is usually associated with that eminent judge: The underlying philosophy in the O 14 provision is to prevent a plaintiff clearly entitled to the money from being delayed his judgment where there is no fairly arguable defence to the claim. The provision should only be applied to cases where there is no reasonable doubt that the plaintiff is entitled to judgment. Order 14 is not intended to shut out a defendant. The jurisdiction should only be exercised in very clear cases.”

This Court is satisfied that the Plaintiffs, in this case, have fulfilled the preconditions for the application for Summary Judgement as provided for under Order 14 rule 2 of the ROC 2012. Therefore, once the preconditions are fulfilled, the Plaintiffs have established a prima facie case and become entitled to the judgment. The burden has now shifted to the Defendant to prove that there is an existence of a triable issue that warrants a trial.

It is well settled in an Order 14 application, that if the Defendant succeeds in raising even a single triable issue it will not be a fit and proper case to order Summary Judgment (see: South East Asia Insurance Bhd. v Kerajaan Malaysia [1998] 1 CLJ 1045).

This Court finds that the Defendant has failed to satisfy this Court that there are triable issues that could not be dealt with summarily. The reasons are as stated below.

The Defendant in his Affidavit in Reply raised the following triable issues: a. The Defendant has paid the First Plaintiff RM2.5 million in alimony, along with RM1.4 million from the proceeds of a bungalow sale. b. The Defendant denies any insistence or pressure on the First Plaintiff to borrow money intended for the children’s needs, claiming that such allegations are fabrications made by the First Plaintiff. c. The funds transferred by the First Plaintiff were intended as financial support to the Defendant, based on an understanding and trust between them as former spouses and parents of three children.

It is important to highlight that the Defendant did not specify the amount he had taken but admitted receiving a loan from the Plaintiffs. The Defendant's counsel conceded that the sum of money was indeed taken; however, there was uncertainty about the exact amount and the agreed repayment date, thus disputing both the sum and the timeline for repayment.

I find the learned counsel for the Defendant's argument that the Defendant could not ascertain the loan amount to be utterly absurd. It is tantamount to saying, "I took the money, but I don’t know how much I took." This contention appears to be a deliberate attempt to sidestep the issue and create the illusion of triable matters.

Furthermore, the documentary evidence presented before this Court clearly demonstrates that the sum of RM1.5 million was indeed transferred to the Defendant and remains unpaid. The audio recording and corresponding transcript, as exhibited in the Plaintiffs' Affidavit in Reply (enclosure 10), further substantiate the Defendant's admission of having taken the loan of RM1.5 million, with a promise to repay the amount within four months from 8 July

This assertion in enclosure 10 was never challenged or rebutted by the Defendant, and therefore, in accordance with Ng Hee Thoong & Another v Public Bank Bhd (supra), it is deemed to be admitted.

Regarding the issue of additional sums and maintenance payments purportedly received by the Plaintiffs from the Defendant, this Court finds it inappropriate to address such matters, as the Defendant did not file a counterclaim. These issues should have been raised and addressed during the divorce proceedings that have already been decided.

Furthermore, the Defendant’s claim of entitlement to recover additional sums has not been pleaded in his Statement of Defence, nor has there been any formal demand for such amounts. Thus, the claim appears to be an afterthought, unsupported by any evidence.

Similarly, the Defendant did not raise the issue of the Plaintiffs' alleged misinterpretation of the Divorce Order, nor did he address the role of Leong Lin Kee, the younger brother of the First Plaintiff, as a co-trustee of the children’s maintenance in any of his pleadings. Consequently, these issues are not to be considered by this Court.

The Defendant asserted that repayment to the Plaintiffs could only occur once his company's financial situation improved. However, he did not refute the Plaintiffs' contention that he had agreed to repay the loan within four months from 8 July 2019 (as stated in the Plaintiffs' Affidavit in Reply, enclosure 10).

Moreover, the Plaintiffs have made repeated demands for repayment and issued letters of demand for the loan amount, none of which have been contested by the Defendant.

It is trite in a summary judgment application that mere bare denials or assertions do not constitute evidence and they cannot give rise to triable issues. As observed in the case of Independent Oil Tools Malaysia Sdn. Bhd. v Olio Resources Sdn. Bhd. [2018] MLJU 1245, the High Court stated as follows: “[71] The observations I made in another summary judgment case of Affin Bank Bhd v Tes Steel Products Sdn Bhd & Ors [2017] 8 MLJ 733 are similarly applicable here. I had said: - [35] When viewed in totality, the averments and arguments raised by the first defendant are considerably inflicted by various shortcomings that do little, if at all, to advance its resistance to this summary judgment application. [36] Above all, the case of the defendants is also riddled with averments which are not substantiated. These are bare averments without real support. No documents were produced by the first defendant to corroborate its stance on virtually all the arguments to challenge this summary judgment application. It is trite that mere bare denials or assertions do not constitute evidence and they cannot give rise to triable issues… [72] In my view, denials of plain and non-controversial facts ought to be deprecated for they are often a clear sign of the absence of any valid issues of real dispute, more so when the defendant had undoubtedly benefitted from the business relationship with the plaintiff.”

In the case of Chen Heng Ping @ Tian Seow Hock & 5 Ors v. Intradagang Merchant Bankers (M) Berhad [1995] 1 MLRA 606 wherein Justice Mahadev Shankar of the Court of Appeal stated that:- “…This means that the defendants must provide answers on oath which constitute evidence that they have a defence which is fit to be tried. Denials in a defence do not constitute evidence…” [emphasis added]

Hence, there are sufficient contemporaneous documents adduced by the Plaintiffs to prove that the Defendant owes the amount claimed by the Plaintiff. The Plaintiff had adduced the bank statement proving the transfer of the money. Ultimately, the loan was conceded and admitted by the Defendant.

The Defendant must plead all the material facts on which the Defendant proposed to rely upon. It is trite, failing to do so, parties are barred from adducing any evidence on such non-pleaded facts. I refer to the case of TSC Education Sdn. Bhd. v Kolej Yayasan Pelajaran MARA & Anor [2002] 5 MLJ 577, Abdul Malik J (as his Lordship was then) held that: “…The learned counsel for the second defendant submitted, quite rightly, that the issue of the first defendant operating under the approval of the Ministry of Education was never raised by the plaintiff in its statement of claim or in its affidavits. Thus, so the submission went, the plaintiff was barred from raising this new issue that was not pleaded nor alluded to in its affidavits. Cotton LJ aptly said in Philipps v Philipps & Ors (1878-79) 4 QBD 127 at p 139: But in my opinion, it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial. In Hadmor Productions Ltd & Ors v Hamilton & Anor [1983] 1 AC 191 at p 233, Lord Diplock echoed the same sentiments: Under our adversary system of procedure, for a judge to disregard the rule by which counsel are bound has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice: the right of each to be informed of any point adverse to him that is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is. In short, each party must plead all the material facts which that party proposes to rely upon otherwise that party will be barred from adducing any evidence of them in the course of the trial. The same principle would also apply when the party is making a submission of its case in that such a submission must be confined to the material facts that have been pleaded.” [emphasis added]

When considered in its entirety, the evidence presented by the Plaintiffs remained unchallenged. I find that the issues the Defendant claimed were triable are unsubstantiated and were not addressed in the Defendant’s Statement of Defence or affidavit. Consequently, the Defendant has failed to meet the burden of demonstrating the existence of a triable issue that would warrant a trial.

Thus, it is evident that this is a straightforward case where the Defendant has failed to repay the outstanding amount owed to the Plaintiffs after acknowledging the debt.

For these reasons, I ordered that the Plaintiffs' claim in enclosure 7 be granted for prayers I and IV, with interest accruing from the date of the first letter of demand dated 28 February 2021 until the date of judgment, and prayer V, along with costs amounting to RM8,000.00. Dated: 30 October 2024 -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the 1st – 3rd Plaintiffs : Kanesrau a/l Appalanaidu (Messrs Seah Balan Ravi & Co.) For the Defendant : Jefrey Wong (Messrs Peng Ann Law Firm)