Loo An Swee v Pang Kim Chon (BA-22NCvC-318-09/2020)

LOO AN SWEE (No. K/P : 671225-10-5557)

MOK KIM LENG PLAINTIF- (No. K/P : 770507-08-5172 … PLAINTIF

PANG KIM CHONG (No. K/P : 630612-01-5593)

LOO BON LAN …DEFENDAN- (No. K/P : 650328-01-5842) DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiffs, having sold their property to the Defendants, now seek to terminate the sale and recover vacant possession as the 04/03/2025 13:58:41 BA-22NCvC-318-09/2020 Kand. 103 Defendants having taken possession of the property, had failed to pay the purchase price. Factual background [2] The material facts giving rise to the present dispute are as follows. These facts are obtained primarily from the documentary evidence adduced at the trial. [3] On 1.7.2016, the parties executed a sale and purchase agreement (“SPA”) in respect of a property identified as HS(D) 97770, PT29956, Mukim Sungai Buloh, Daerah Petaling, Negeri Selangor which comprised of a double-storey semi-detached house bearing postal address No. 21, Jalan TR 3/1, Tropicana Golf & Country Resort, 47410 Petaling Jaya, Selangor Darul Ehsan (“said property”). The purchase price for the said property was RM 1,500,000.00. [4] The Plaintiffs were represented by the firm of Messrs. Isharidah Ho Chong & Menon in respect of the sale. The Defendants did not appoint any solicitors to represent them. [5] The Plaintiffs claim that sometime in May 2016, they delivered vacant possession of the said property to the Defendants. Although the full purchase price had not been made, they obliged the Defendants’ request for vacant possession to enable them to commence renovations. The Defendant’s version is that vacant possession was given around October 2015 and that the renovations were completed in early January 2016. However, I am of the view that nothing turns on this conflict in evidence. [6] The Plaintiffs claim that the 1st Defendant represented to them that payment for the said property will be made upon disposing of his shares in a company named GCCP Resources Ltd., a company listed on the Singapore Stock Exchange. [7] Subsequent to the 1st Defendant’s representation, the Plaintiffs agreed to sign a letter dated 1.7.2016 confirming that a deposit payment of RM 150,000.00 had been paid towards the purchase price. [8] The transfer of the property was subject to the consent of the State Authority. The Plaintiff’s solicitors Messrs Isharidah Ho Chong & Menon, then proceeded to obtain the consent, which was granted 16.8.2016. [9] Shortly thereafter, on 8.9.2016 both Plaintiffs signed a letter of confirm to state that they had received the balance purchase price of RM 1,350,000.00. [10] Registration of the transfer to the Defendants’ names was effected on 26.10.2016. Subsequent thereto, on 9.5.2019, the 1st Defendant transferred his ½ share to the 2nd Defendant. The said property is now wholly owned by the 2nd Defendant. [11] Sometime between the years 2019-2020, the Plaintiffs came to know that the 1st Defendant had disposed of his shares in GCCP Resources Ltd. They claim that notwithstanding the sale, and contrary to the 1st Defendant’s representation, the Defendants failed to make payment for the said property. [12] In view of the Defendants’ failure to honour their obligations to pay, the Plaintiffs instructed their solicitors to issue a notice dated 29.6.2020 to the Defendants to terminate the SPA and to demand for vacant possession to be delivered to the Plaintiffs. The Defendants paid no heed to the demand. [13] Instead the Defendants responded to deny non-payment of the balance purchase price. They contend that full payment had been made in accordance to the terms stated in the SPA. Due acknowledgment as to payment was made, evidenced by the 2 letters confirming that the deposit and balance purchase price respectively had been paid. In addition, upon full settlement of the purchase price, the said property was duly registered in the names of the Defendants. Issues to be tried [14] The Plaintiff’s case is premised upon misrepresentation. This is their pleaded cause of action. In essence, they claim that the misrepresentation led them to sign the letters dated 1.7.2016 and 8.9.2016 respectively, acknowledging full payment of the purchase price even though no payment was made. [15] Arising from the positions taken, in my view, there is only one central factual issue to be determined by this court. It is whether the factual evidence suffice to establish a case of misrepresentation by the 1st Defendant. The other related factual issue is whether the Defendants have made payment for the purchase price and which payment was acknowledged by the Plaintiffs. Analysis and decision of this court [16] It is trite law that in a civil case, the burden of proof lies on a plaintiff, if he is to succeed in establishing his claim. It is only when he has discharged that burden that the evidential burden shifts to the other party (See: Section 101 of the Evidence Act, 1950, Hong Yik Trading v Liziz Plantation Sdn. Bhd. [2017] 8 CLJ 491, Federal Court). whether the Plaintiffs were misrepresented In support of their case, the Plaintiffs called 3 witnesses to testify. [17] PW1, the son of the 1st Plaintiff, is the Chief Executive Officer of GCCP Resources Ltd. He once worked with the 1st Defendant as the latter’s assistant. They stayed together in a rented house in Ipoh in 2016. He was certain that the 1st Defendant never made payment for the said property as he did not witness any such payment. He also claims that the 1st Defendant in fact admitted the fact of non-payment to him. [18] PW2 is the wife of the 1st Plaintiff. She confirmed that the Plaintiffs executed the SPA. She stated that to date, the Defendants have not paid the purchase price of the said property. When asked as to the 2 letters she signed to confirm payment of deposit and balance purchase price respectively, she stated that she signed as she was told by her husband that the 1st Defendant agreed to pay upon selling his shares in GCCP Resources Ltd. [19] The 1st Plaintiff himself testified as the 3rd witness. He stated that he had known the 1st Defendant for about 10 years. They were both friends and business associates. Again, like PW2 his wife, he admitted that he signed the letters acknowledging receipt of the deposit and balance purchase price. However, both Plaintiffs signed only upon the request by the 1st Defendant who wanted to renovate the house. Further his wife would feel more secure if the title to the house was transferred to their names. He was also induced to sign the letters upon the 1st Defendant promising to pay after his shares in GCCP Resources Ltd. were sold. [20] He stated that “As we have been friends for a period of time and he was already working under me at that time, so I agreed to his request upon him informing me that he will pay me after selling his shares.” [21] To substantiate his assertion that the Defendants did not pay the purchase price, he stated that they did not have the means to do so. His reason for so saying was because on 13.4.2016, he had to advance a friendly loan of RM 650,000.00 to the 1st Defendant for the purpose of renovating the said property. This loan was not repaid, which then led the 1st Plaintiff to file a civil suit against the Defendants in the Shah Alam Sessions Court. [22] In the light of the evidence adduced on behalf of the Plaintiffs, it then leaves me to consider if the Plaintiffs have discharged their burden of proving misrepresentation as alleged. [23] I find the Plaintiffs’ story to be incredulous and implausible. It is unbelievable that the Plaintiffs would have signed the letters acknowledging receipt of the purchase price on the mere representation or promise by the 1st Defendant that the purchase price would be made once the GCCP Resources shares were sold. [24] For ease of reference, the letters are reproduced below, [25] These are documents the contents of which have serious implications as it could well absolve the Defendants from liability under the SPA. It appears to me improbable that one could have signed the letters without giving due thought to the consequences and on the mere promise of the Defendants to pay. [26] The 1st Plaintiff is neither uneducated nor illiterate. He was the Chief Executive Officer in GCCP Resources Ltd., not one unfamiliar with business transactions. In any event, he did not claim to have been misrepresented as to the contents. Neither did he allege that he misunderstood the contents, or that he did not know what he appended his signature to. [27] In Tan Sri Abdul Khalid Ibrahim v Bank Islam Malaysia Bhd & Anor case [2010] 4 CLJ 388, Her Ladyship Rohana Yusof J (as she then was), dealt with the contention of a collateral agreement by the Plaintiff in this manner, …it is a known fact that Tan Sri Khalid is an experienced and astute businessman. He was then the Chief Executive Officer of Guthrie Berhad and now the Menteri Besar of Selangor. It is too preposterous to expect a person of such standing to rely on oral promises which contradict the agreements he signed freely and voluntarily. He surely must have understood and was fully aware of the implications of what he signed. This is not an appropriate case where a party to a contract can be said to have relied on oral promises that run contradictory to what he has agreed in a written document. To use oral evidence to contradict his written obligations under an agreement or to allow extrinsic evidence be used to contradict or avoid obligations under the written agreements will run foul of s. 91 of the Evidence Act. [28] I find it unlikely and most imprudent on the part of the Plaintiffs, particularly the 1st Plaintiff, to acknowledge that payment had been made when it was not. It is difficult to fathom any compelling reason for such an acknowledgment unless it was true. [29] Upon weighing the evidence, I find there is only one conclusion to be made; that Plaintiffs must be taken to have agreed to the fact of payment. In the circumstances, the 1st Plaintiff’s claim that both Plaintiffs were induced to sign on the 1st Defendant’s promise to pay later is not capable of being believed. [30] The evidence of PW1 and PW2 are of no assistance to the Plaintiffs’ case. On the issue of payment, PW1 merely said he did not see money pass hands from the 1st Defendant to the 1st Plaintiff. PW2’s evidence is also in the negative when she said she did not receive any money. I would regard their evidence to be merely self-serving and unsubstantiated by other more convincing evidence. It has no probative value. [31] To prove their case of no payment by the Defendants, the Plaintiffs also rely on the fact that the Defendants led no evidence to show otherwise. The Plaintiffs contend that the Defendants claim of having paid cash of RM 1,500,000.00 was not substantiated with documents such as income statement, bank statement, or bank withdrawal slip. Thus, the Plaintiffs argue, oral assertion of the 1st Defendant that payment was made must be regarded with caution. [32] I find the Plaintiffs to be misconceived in this contention. The burden of proof lies on the Plaintiffs throughout. Where they have not made out a prima facie case, there is no requirement for rebuttal evidence to be adduced by the Defendants. The fact that the defence case is weak cannot in itself, bolster the Plaintiffs’ case. Where the case for the Plaintiffs has not been made out on the available evidence, the defence can even rest on their silence. [33] The judgment of the Federal Court in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd. [2017] 5 CLJ 418 is instructive as follows, [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. …. [60] It would pan out that the respondent, who was the plaintiff, had both the ‘burden of proof’ to make out a prima facie case as well as the initial onus of proof to adduce evidence to prove the claim. The onus of proof would only shift to the appellants if the respondent had made out a prima facie case. [34] There is one other fact that my attention was drawn to. The Defendants obtained registration of the said property in their names on 26.10.2016. However, it was not until 2020, some 4 years later that the Plaintiffs raised the matter of non-payment for the first time. The length of time it took the Plaintiffs to make these allegations raises doubts as to the credibility of their claim. A reasonable vendor would have been anxious to obtain his money, especially when vacant possession was given as far back as May

I find the defence contention that the Plaintiffs’ case is an afterthought to have merit. [35] Upon considering the totality of the evidence for the Plaintiffs, and mindful of the principle on burden of proof, I do not find a case of misrepresentation made out. [36] Nonetheless I shall proceed to consider the defence case and deal with the evidence adduced on their behalf. [37] The Defendants contend that the contemporaneous documents establish the fact of full payment of the purchase price. Having considered the documentary evidence, I agree with the defence contention. [38] The SPA contains the relevant clauses as to payment. The provisions relating to the payment of deposit are as follows,

AGREEMENT TO SELL In consideration of the Deposit Sum as stated in item 1 now or hereinbefore paid to the Vendor the payment whereof the Vendor hereby duly acknowledges as deposit and towards part payment of the Purchase Price as stated in Item G…

2.1 Deposit Sum

2.1.1 Upon the execution of this Agreement, the Purchaser shall pay the Deposit Sum as stated in Item 1 to the Vendor upon the Vendor’s execution of this Agreement. [39] From the wordings employed, the only reasonable construction to be given is that the deposit sum had been paid. This fact was then acknowledged by the Defendants in the letter dated 1.7.2016, which is the same date as the SPA. [40] With regard to the payment of the balance purchase price, the relevant clauses of which I have taken the liberty to summarise, the SPA provide that the balance purchase price is to be paid within 3 months from the date of obtaining the State Authority’s written consent to transfer. [41] On 5.9.2016, the solicitors for the Plaintiffs wrote to inform the Defendants that they had received the State Authority’s written consent on 30.8.2016. They were further informed that in the light of the consent obtained, the completion date would now be 29.11.2016. [42] It is significant that the letter by Messrs Isharidah Ho Chong & Menon was copied to the Plaintiffs with a request stated at the bottom of the letter which states “Please let us have your written confirmation once the Purchaser has settled the full Balance Purchase Price of RM 1,350,000.00 by way of cash and/or exchange of shares in any company in Malaysia and/or Singapore as may be agreed upon between you and the Purchaser. In accordance to Clause 2.3 of the Sale and Purchase Agreement.” [43] Implicit in the statement by the Plaintiff’s solicitors is that deposit of RM 150,000.00 had been paid. Therefore, at the time of the solicitor’s letter, the Plaintiffs accept that only the amount of RM 1,350,000.00 for the purchase price was outstanding. [44] Soon thereafter, the Defendants then obtained the second written confirmation from the Plaintiffs dated 8.9.2016 that the balance purchase price had been paid. The Defendants contend that the written confirmation is consistent with clause in the SPA which reads,

2.3 Method of Payment

2.3.1 The Parties hereby agree that and confirm that the Purchase Price shall be paid by the Purchaser directly to the Vendor by way of cash and/or exchange of shares in any company in Malaysia and/or Singapore as may be agreed between the Parties.

2.3.2 The Parties hereby further agree that the Vendor shall furnish the Vendor’s Solicitors a confirmation in writing of the full settlement or any partial settlement of the Purchase Price when such payment has been effected by the Purchaser to the Vendor… [45] Both the letters of 1.7.2016 and 8.9.2016 were also addressed to Messrs. Isharidah Ho Chong & Menon, the Plaintiff’s solicitors. They serve as written confirmation of the settlement of the purchase price. There is therefore due compliance with the terms of the SPA. [46] It was upon the written confirmation to the Plaintiff’s solicitors that action was then taken to procure the registration of the title in the names of the Defendants. [47] The SPA, letter dated 5.9.2016 from Messrs. Isharidah Ho Chong & Menon as well the letters dated 1.7.2016 and 8.9.2016 confirming receipt of the purchase price are all contemporaneous documents, which I consider to have more probative value than oral assertions which conflict with the documentary evidence. [48] In this regard, I am guided by the Federal Court case of Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 where it was stated, Nevertheless the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent's oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity [49] I am therefore of the view that from the documentary evidence, it is more probable than not, that the full balance purchase price had been paid. [50] In addition, if the payment of the purchase price is only upon the sale of the 1st Defendant’s GCCP shares, this would be tantamount to a variation of the terms of the SPA. Having provided for the time frame for completion of the sale of the said property in the clauses aforementioned, any amendment to the terms must be in accordance to the clause providing for variation. [51] Clause 27 on variation states, VARIATION No modification, amendment or variation of this Agreement shall be valid or effective unless it was made by mutual consent and in writing by way of one or more instruments or documents duly signed by the Parties hereto and in accordance to this Agreement. [52] There was no variation in the manner provided for. The 1st Plaintiff candidly admitted this to be so in cross examination. I would have expected that a variation to such a fundamental term as payment, if indeed there was, to have been reduced to writing. This would have been prudent action to protect the interest of the Plaintiffs, particularly when they were legally represented in the sale of the said property. [53] In any event, any oral evidence to vary the terms of the contract would offend the parol evidence rule. [54] In the circumstances, even if the Plaintiffs’ evidence had established a case for the Defendants to rebut, the preponderance of the evidence is in the latter’s favour. In the result, I find that the Plaintiffs have not proven their case on a balance of probabilities. Conclusion [55] Premised on the foregoing reasons, I find the Plaintiffs to have failed to discharge the legal burden of proving their pleaded case. In the circumstances, their claim is dismissed. I also order that costs of RM 30,000.00 be paid to the Defendants. Dated : 3rd day of March 2025. -sgd- ....………………..….... Alice Loke Yee Ching Judge High Court in Malaya at Shah Alam Counsel for the Plaintiffs: Ms. Chin Yin Choi The Law Office of Wong & Ang Counsel for Defendants: Dato’ K. Kirubakaran (Mr. Kek Boon Wei and Ms. Lee Wen Qian together with him)