Multi Automotive Service and Assist Sdn Bhd v Proton Edar Sdn Bhd (WA-12BNCvC-73-05/2023)

MULTI AUTOMOTIVE SERVICE AND ASSIST SDN BHD [ No. Syarikat: 199901012647 ]

AUTO RESCUE SDN BHD [ No. Syarikat: 202001004601 ]

THAEVAN A/L VELLAIPOOVAN [ No. K/P: Identity Card No.: 770524146053 ]

VIKNESWARAN A/L SUPPIAH [ No. K/P: 630621106569 ]

HEMMA A/P VIKNESWARAN [ No. K/P: 930719145042 ] …PERAYU-PERAYU DAN PROTON EDAR SDN BHD [ No. Syarikat.: 198501001087 ] …RESPONDEN [Dalam Mahkamah Sesyen Di Kuala Lumpur Dalam Wilayah Persekutuan Kuala Lumpur, Malaysia Guaman No. WA-A52NCVC-394-05/2021 Antara Proton Edar Sdn Bhd (No Syarikat : 198501001087) … Plaintif

Multi Automotve Service And Assist Sdn Bhd (No Syarikat : 199901012647) 26/02/2025 16:21:12

Auto Rescue Sdn Bhd (No Syarikat : 202001004601)

Thaeven A/L Vellaipoovan (No.K/P: 77-524-146053)

Vikneswaran A/L Suppiah (No K/P: 630621-10-6569)

Hemma A/P Vikneswaran (No. K/P: 930719-14-5042) … Defendan-Defendan] GROUNDS OF JUDGEMENT INTRODUCTION [1] The Appellants as Defendants in the Sessions Court, have filed this appeal against the entire decision of the Sessions Court Judge in allowing the Plaintiff’s suit therein. [2] For ease of reference, the respective parties shall be referred to as the Plaintiff and Defendants as they were in the Sessions Court. BRIEF FACTS [3] The Plaintiff is the sales arm of Proton and provides an after sales service to its customers (Members), i.e., the 24-hour Proton Auto Assist Programme (Auto Assist Programme). Any member experiencing a breakdown of vehicle can call a hotline for roadside assistance. S/N YgJp8kr1u02kxAxCn8hn7g [4] The Plaintiff does not operate the Auto Assist Programme, instead it contracted out the services to third parties. In this regard, the Plaintiff appointed the First Defendant (D1) as its service provider pursuant to an Agreement dated 1.9.2012 (Agreement). [5]

When the Agreement expired in December 2019, Services from January to August 2020 were not provided by D1 to the Plaintiff, despite the issuance of the invoice, and that portion of the sums has to be refunded. S/N YgJp8kr1u02kxAxCn8hn7g [8] The Plaintiff then, commenced a Writ action against the Defendants in the Sessions Court claiming for the Overpayment. [9] In the meantime, D1 ceased operations around July 2020, and according to the Plaintiff, Auto Rescue, the Second Defendant (D2) was established to take over D1’s business without change of ownership and directorship. The Plaintiff’s contention [10] The Plaintiff claims that D2 was established as a device to defraud the Plaintiff in an attempt to avoid refunding the Overpayment. [11] The Third Defendant (D3), Fourth Defendant (D4) and Fifth Defendant (D5) respectively were directors and shareholders of D1 and D2. [12] The Plaintiff sought to lift the corporate veil to enable D3, D4 and D5 to be personally liable for the Overpayment. The Defendants’ contention [13] D3, D4 and D5 denies any relationship with the Plaintiff’s business and that the Plaintiff has failed to prove the alleged elements of fraud S/N YgJp8kr1u02kxAxCn8hn7g warranting for the lifting of the corporate veil to find D3, D4 and D5 as liable for the sum claimed. Note D1 and D2 have been wound up and D4 and D5 are bankrupts during the hearing of this appeal. ANALYSIS AND FINDINGS Appellate Intervention [14] The “plainly wrong” test is the applicable test when determining whether an appellate Court should intervene with the lower courts’ decisions. The “plainly wrong” test means when the “learned trial Judge had gone plainly wrong … in the sense that it could not reasonably be explained or justified and so was one which no reasonable Judge could have reached.” (See: Tengku Dato' Ibrahim Petra Tengku Indra Petra v Petra Perdana Bhd & Another Appeal [2018] 2 MLJ 177; [2018] 2 CLJ 641; [2018] 1 MLRA 263 (FC), Ng Hoo Kui & Anor v Wendy Tan Lee Peng, Administrator Of The Estates of Tan Ewe Kwang, Deceased & Ors [2020] 12 MLJ 67; [2020] 10 CLJ 1; [2020] 6 MLRA 193 (FC), Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; [2004] 4 CLJ 309; [2004] 2 MLRA 1 (FC). S/N YgJp8kr1u02kxAxCn8hn7g [15] Further, in Merita Merchant Bank Singapore Ltd v Dewan Bahasa dan Pustaka [2014] MLJU 1807; [2014] 9 CLJ 1064 (FC), it was held- “[45] It is trite law that an appellate court will not readily interfere with the findings of fact arrived at by the court of first instance to which the law entrust the primary duty of evaluation of the evidence. However, the appellate court is under a duty to intervene in a case where the trial court has so fundamentally misdirected itself. In our judgment, we find that there was insufficient judicial appreciation by the learned trial Judge of the pleadings and contemporaneous evidence in the instant case when she allowed Merita’s claim. Such erroneous finding warranted appellate interference which the Court of Appeal rightfully done so, and we have no reason to disagree.” The Learned Sessions Court Judge’s Decision [16] Based on the facts, it is clear that the claim is one for refund and not for breach of contract. Accordingly, the Learned Sessions Court Judge has fully appreciated the dispute from the following observations in her Grounds of Judgment (GOJ). [17] The Agreement was not disputed by the Defendants. It was an undisputed fact that the Agreement expired on 31.12.2019. The arrangement pursuant to the customer count based on the Register was also not disputed. The fact that D1 has been paid in full by the Plaintiff S/N YgJp8kr1u02kxAxCn8hn7g based on the invoices issued by D1 was also clearly evidenced from the documents produced during the trial and testimony by SP-4 (para 22, 23 and 24 of the GOJ). [18] The Learned Sessions Court Judge had not erred in her finding of fact when she stated that if no Services was rendered, the Overpayment, was a mistake that must be paid back. Otherwise it would be an unjust enrichment (para 36 of the GOJ). [19] Accordingly, it was the also the findings of the Sessions Court Judge that the Defendants had failed to prove any discrepancy in the amount claimed by the Plaintiff. On the contention by the Defendant that since there was no terms in the Agreement for refund of the Overpayment, thus, the Defendants are under no obligation to pay. The Learned Sessions Court Judge opined that such a defence as “tidak wajar” (para 25 GOJ). [20] The Sessions Court Judge has not erred when she lifted the corporate veil as stated in her GOJ at paras 41 and 42. [21] It was observed that D1’s witnesses also admitted that the reason why D2 was set up was to continue serving D1’s existing customers under a new company-S/N YgJp8kr1u02kxAxCn8hn7g “VIKNES […] They refused to tow, to provide service to the members. So MASA is basically could not function, so what happened was I got no choice but to start a new company, so that this service provider will go there and will provide service. That was the whole idea why this company was formed. So, the function of Auto Rescue was to provide service. […]” “VIKNES […] This was formed to take care of my other clients. Puan, I’m committed and I have promised and signed agreement with other clients to provide the service. So, this has affected me a lot. So, the damages by my clients resigning or terminating their contract with me was tremendous. But I struggle through that time to provide the service through Auto Rescue. Now how relevant is Auto Rescue? Let’s talk about that. Auto Rescue is just to provide towing services for Multi Automotive and Service and Assist Sdn Bhd. […]” [22] Therefore, the Learned Sessions Court Judge did not err on her finding of fraud and conspiracy and the lifting of the corporate veil. Additionally, there was also no error in the dismissal of the Counterclaim. [23] Further, the Learned Sessions Court Judge had not misdirected herself when she referred to the Federal Court case in Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors [2021] 3 MLJ 622. In Ong Leong Chiou (supra), where the Federal Court held that they are two (2) exceptions to the general rule of separate corporate entity, that is by reason of fraud and piercing of the corporate veil. S/N YgJp8kr1u02kxAxCn8hn7g [24] This Court also refers to the Federal Court findings in the case of Gurbachan Singh Bagawan Singh & Ors v. Vellasamy Pennusamy & Others Appeals [2015] 1 CLJ 719 - “[96] But in the event that we should, we are of the view that it is now a settled law in Malaysia that the court would lift the corporate veil of a corporation if such corporation was set up for fraudulent purposes, or where it was established to avoid an existing obligation or even to prevent the abuse of a corporate legal personality.”. [25] The Learned Sessions Court Judge thereafter, has made a finding that there was fraud as stated in her GOJ at para 42 which was based on the documents tendered in court and after due consideration given to the witnesses’ testimony. In conclusion, the Learned Sessions Court Judge did not commit any error and did not misdirect herself on any facts or law. CONCLUSION [26] Finally, under O. 55 of ROC, this appeal is by way of a rehearing and this court has assessed and weighed all the evidence and laws placed before this Court in its entirety. In this regard, for all the reasons aforesaid, this Court finds that there is no merit in the Defendants’ appeal to warrant appellate intervention (See Ong Leong Chiou & Anor v Keller (M) Sdn S/N YgJp8kr1u02kxAxCn8hn7g Bhd & Ors (FC) [2021] 4 MLRA 211; [2021] 3 MLJ 622; [2021] 4 CLJ 821, Tengku Dato' Ibrahim Petra Tengku Indra Petra v Petra Perdana Bhd & Another Appeal [2018] 2 MLJ 177; [2018] 2 CLJ 641; [2018] 1 MLRA 263 (FC), Ng Hoo Kui & Anor v Wendy Tan Lee Peng, Administrator Of The Estates Of Tan Ewe Kwang, Deceased & Ors [2020] 12 MLJ 67; [2020] 10 CLJ 1; [2020] 6 MLRA 193 (FC), Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; [2004] 4 CLJ 309; [2004] 2 MLRA 1 (FC); and MMC Oil & Gas Engineering Sdn Bhd v. Tan Bock Kwee & Sons Sdn Bhd [2016] 3 MLRA 144; [2016] 2 MLJ 428; [2016] 4 CLJ 665 (COA)). [27] Appeal dismissed with cost. SGD- (YA DR. SUZANA BINTI MUHAMAD SAID) JUDICIAL COMMISSIONER OF THE HIGH COURT NCVC 1 Kuala Lumpur High Court. Dated: 26 February 2025 S/N YgJp8kr1u02kxAxCn8hn7g COUNSELS FOR THE PLAINTIFF Tetuan Shearn Delamore & Co. Peguambela & Peguamcara Tingkat 7, Wisma Hamzah-Kwong Hing No. 1, Leboh Ampang 50100 Kuala Lumpur FOR THE 3RD DEFENDANT Tetuan Alwin Rajasurya Peguambela & Peguamcara Unit 1305, Amcorp Tower, Amcorp Trade Centre 18, Persiaran Barat 46050 Petaling Jaya Selangor Darul Ehsan FOR THE 1, 2, 4 & 5 DEFENDANTS Tetuan Guna Perumal & Associates Peguambela & Peguamcara No. 6-3A-6, Floor 3A, Block 6 Queens Avenue Jalan Bayam off Jalan Peel 55100 Kuala Lumpur