Puvinraajh A/L Subramaniam v Misc Berhad (W-08-141-04/2024)

YUVARAJAN AIL SUBBAIH - APPLICANTS AND MISC BERHAD - RESPONDENT [In the Matter of the High Court of Malaya at Kuala Lumpur (Civil Division) Civil Appeal No: WA-11BNCvC-80-11/2023 Between MISC Berhad - Appellant

Puvinraajh a/I Subramaniam

Paramaswari a/p Muniandy

Yuvarajan a/I Subbaih - Respondents] S/N pbUwsWnDc0eHq2lyB05esg [In the Matter of the Magistrate Court at Kuala Lumpur Civil Suit No: WA-A72NCvC-2858-05/2021 Between MISC Berhad - Plaintiff

And Puvinraajh a/l Subramaniam

Paramaswari a/p Muniandy

Yuvarajan a/I Subbaih - Defendant] CORAM: HADHARIAH BINTI SYED ISMAIL, JCA AZMI BIN ARIFFIN, JCA WAN AHMAD FARID BIN WAN SALLEH, HCJ JUDGMENT Introduction [1] Enclosure 1 dated 25 April 2024 is the Applicants Notice of Motion for leave to appeal against the decision of the Kuala Lumpur High Court dismissing the Applicants appeal against the decision of the Kuala Lumpur Magistrate Court delivered on 30 October 2023. S/N pbUwsWnDc0eHq2lyB05esg Chronology of Events [2] We shall now briefly lay out the background facts leading to the filing of the claim. [3] The Respondent/Plaintiff and the Applicants/Defendants entered into a Cadetship Agreement dated 20 December 2008, whereby the Respondent had offered to sponsor and fund the First Applicant’s training course as a Cadet and the First Applicant had accepted to undergo the said training course which covers academic courses and shipboard duties subject to the terms and conditions of the Cadetship Agreement. [4] The Second and Third Applicants are guarantors to the First Applicant who had agreed jointly and severally to guarantee the due observance by First Applicant of his obligations under the Cadetship Agreement as well as to indemnify the Respondent in the event the First Applicant breaches his obligations, subject to the terms and conditions of the Cadetship Agreement. [5]

further letters dated 23 November 2015 and 28 July 2016 respectively, notifying the Applicants that the Applicants are jointly and severally liable to compensate the Respondent for any losses suffered due to breach of the Cadetship Agreement by the First Defendant. [7] On 30 December 2020, the Respondent through its solicitors, Messrs. Ram Reza & Muhammad issued a Notice of Demand to the Applicants demanding payment of the compensation sum of RM83,754.00. However, there was no response from any of the Applicants’ to the said Notice of Demand. Proceedings At The Magistrate Court [8] On 3 May 2021, the Respondent filed an action in the Kuala Lumpur Magistrates Court against the Applicants claiming for the compensation sum of RM83,754.00 due to the Applicants’ breach of the Cadetship Agreement. The claim against the Second Defendant (Paramaswari a/p Muniandy) in the Magistrate Court was subsequently withdrawn as she had passed away. [9] The trial for the matter commenced on 24 July 2023 and the Respondent’s called two (2) witnesses, whereas the Applicants made a submission of no case to answer. [10] On 30 October 2023, the learned Magistrate delivered her decision and dismissed the Respondent claim with costs of RM6,075.00. S/N pbUwsWnDc0eHq2lyB05esg [11] The learned Magistrate in her ground of judgment, which we reproduce herein below, inter alia held as follows: “Berkenaan isu kemungkiran kontrak Perjanjian Kadet, Mahkamah telah mendapati bahawa D1 telah gagal untuk melaporkan diri untuk menjalankan tugas di atas kapal Plaintif. Perkara tersebut dengan jelas menunjukkan bahawa D1 telah memungkiri kontrak Perjanjian Kadet di bawah Klausa 6.1.4. Kegagalan D1 untuk memasukkan notis persediaan untuk menaiki kapal adalah dengan jelas menunjukkan bahawa D1 telah memungkiri kontrak Perjanjian Kadet dibawah Klausa 6.1.4. Oleh yang demikian, isu berkenaan kemungkiran kontrak telah selesai. Meneliti klausa 6.2 dan 8.3 tersebut, Mahkamah ini bersetuju dengan hujahan Peguam Plaintif bahawa proviso “upon demand” telah menjadikan keperluan untuk mengisukan notis tuntutan perlu dipatuhi dan tempoh masa untuk kausa tindakan Plaintif terakru adalah dikira daripada tarikh notis tuntutan diisukan oleh Plaintif. Oleh itu, tempoh had masa adalah bermula daripada tarikh Notis Tuntutan diisukan oleh Plaintif kepada Defendan-Defendan, dan bukannya mengikut tarikh Perjanjian Kadet tersebut ditandatangani atau dimungkiri. Mahkamah ini berpendapat bahawa S.74 Akta Kontrak adalah terpakai bagi kes ini. S/N pbUwsWnDc0eHq2lyB05esg Pliding Plaintif hanya menyatakan bahawa Plaintif menuntut RM83,754.00 tanpa memberikan butiran terperinci di dalam Plidingnya tentang bagaimanakah jumlah keseluruhan RM83,754.00 tersebut diperolehi. Amaun RM83,754.00 tersebut hanyalah dinyatakan di dalam Pliding tanpa mengulas lanjut bagaimana jumlah tersebut diperolehi. Mahkamah ini mendapati bahawa cara pengiraan bagi amaun RM83,754.00 adalah tidak diplidkan secara specifik dan ianya adalah “fatal” kepada tuntutan Plaintif disini. Lebih teruk lagi, butiran ataupun resit kepada jumlah-jumlah yang dinyatakan tersebut tidak berjaya dibawa dan gagal dibuktikan melalui SP2 dan keterangan dokumentari. Semasa perbicaraan penuh juga, SP2 telah bersetuju bahawa tiada bukti yang dikemukakan untuk menyokong pembayaran wang RM83,754.00 melainkan hanya satu “Statement of Training Costs & Expenses” yang disediakan oleh SP2 itu sahaja Dalam ketiadaan butiran penting di dalam pliding, maka keterangan oral dan dokumentari yang diberikan kepada Mahkamah tidak boleh dipertimbangkan oleh Mahkamah ini. Kesimpulannya, Mahkamah ini berpendapat bahawa Plaintif telah gagal untuk membuktikan tuntutannya di atas imbangan kebarangkalian apabila Plaintif gagal untuk memplidkan secara spesifik berkenaan bagaimanakah jumlah RM83,754.00 diperolehi.” S/N pbUwsWnDc0eHq2lyB05esg Proceedings At The High Court [12] Being dissatisfied with that decision, on 9 November 2023, the Applicants filed a Notice of Appeal against the whole of the Magistrate's decision. [13] On 27 March 2024, the learned Judicial Commissioner set aside the learned Magistrate's decision and granted the appeal in favour of the Respondent ordering the Applicant to pay the sum of RM83,754.00 to the Plaintiff with no order as to costs. [14] Aggrieved with the learned Judicial Commissioner's decision, the Applicants filed the Motion herein on 25 April 2024. The Relevant Provisions of Law

Section 68 Court of Judicature Act 1964 which reads: Non-appealable matters

No appeals shall be brought to the Court of Appeal in any of the following cases:

when the amount or value of the subject-matter of the claim (exclusive of interest) is less than two hundred and fifty thousand ringgit, except with the leave of the Court of Appeal;

where the judgment or order is made by consent of parties; S/N pbUwsWnDc0eHq2lyB05esg

where the judgment or order relates to costs only which by law are left to the discretion of the Court, except with the leave of the Court of Appeal; and

where, by any written law for the time being in force, the judgment or order of the High Court, is expressly declared to be final.

(ii) Section 74 of the Contracts Act 1950 (Act 136) which reads: Compensation for loss or damage caused by breach of contract

(1) When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.

(iii) Section 5(b) of the Contracts (Amendment) Act 1976 (Act A329) which reads: Remedy in the event of breach Where a scholarship agreement has been broken by the scholar:- S/N pbUwsWnDc0eHq2lyB05esg

(a); or

if no such sum is mentioned in the scholarship agreement, the scholar and the surety shall be jointly and severally liable to pay and the appropriate authority shall be entitled to be paid-

the whole amount expended by the appropriate authority under the agreement; and

(ii) the whole of such further amount as it will cost the appropriate authority or another authority designated by it to engage a person with qualifications and experience similar to those which were to be obtained by the scholar to perform the services required of the scholar on the completion of his course or study for the period specified in the scholarship agreement. Applicants Main Grounds in Support of Motion [15] The First Applicant (Puvinraajh a/l Subramaniam) in his Affidavit in Support affirmed on 23 April 2024 said as follows:

The learned Judicial Commissioner had erred in law in ordering the Applicants' to pay the Respondent a sum of RM83,754.00 even though the Respondent had not strictly proven how the sum of RM83,754.00 was derived;

(ii) The learned Judicial Commissioner had erred in law in concluding that the Respondent is entitled to claim for the RM83,754.00 as compensation pursuant to section 74 of the Contracts Act 1950 S/N pbUwsWnDc0eHq2lyB05esg and/or section 5(b) of the Contracts (Amendment) Act 1976 without strictly proving how the sum of RM83,754.00 was derived; and

(iii) The Respondent failed to produce documentary evidence in support of its claim for the RM83,754.00. Principle of Law Governing Leave Application [16] In Pang Hon Chin v. Nahar Singh [1986] 2 MLJ 145, Edgar Joseph Jr J (as he then was) held as follows: “The circumstances in which leave to appeal will be granted would include cases where the applicant is able to demonstrate a prima facie case of error (see (1907) 123 LT Jo 202) or if the question is one of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to the public advantage.” [17] This principle was further echoed in the Court of Appeal case of United Oriental Assurance Sdn Bhd v. Penang Medical Centre Sdn Bhd [1999] 2 MLJ 542 wherein: [a] The applicant, United Oriental Assurance Sdn Bhd, applied for leave to appeal to the Court of Appeal, under section 68 (1) of the Court of Judicature Act 1964. The High Court at Penang had held that applicant was generally liable to the respondent as insurer per se. The applicant is not satisfied with the whole decision and since the claim of the respondent is for less than RM250,000.00 i.e RM S/N pbUwsWnDc0eHq2lyB05esg 120,288.40, leave to appeal to the Court of Appeal is therefore required. [b] The applicant contended that leave to appeal should be given on the following grounds:

It is decision affecting a fundamental principle of law;

(ii) It is decision of vital importance in the public interest;

(iii) There is a serious and important issue of law involved; and

(iv) There is a question of general principle upon where further argument and a decision of a higher tribunal will be of public advantage. The Court of Appeal speaking through Abu Mansor JCA (as he then was) held as follows: “unless it can be shown the lower court had erred. In an application to the Court of Appeal where leave is sought, the matter is still dealt with by the principle enunciated in Pang Hon Chin v. Nahar Singh [1986] 2 MLJ, where Edgar Joseph Jr J (as he then was) held that leave can only be given where the applicant is able to demonstrate a prima case of error.” [18] In Harcharan Singh Sohan Singh v. Ranjit Kaur S Gean Singh [2011] 1 MLRA 108, the Federal Court speaking through Hashim Yusoff FCJ (as he then was) held as follows: S/N pbUwsWnDc0eHq2lyB05esg [12] We agree with the Court of Appeal’s decision in Mohd Tahir Mohd Sheriff v. Ramlah Abdullah [2004] 1 MLRA 84; [2004] 1 CLJ 865; [2004] 6 AMR 165, that s 68 (1) of the Act is unambiguous. It clearly states that no appeal shall be brought to the Court of Appeal when the amount or value of the subject matter of the claim (exclusive of interest) is less than RM 250,000, except with leave of the Court of Appeal. [19] In Country Garden Danga Bay Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor [2020] 4 CLJ 865, the Court of Appeal speaking through Harmindar Singh Dhaliwal JCA (as he then was) held as follows: [7] Applications for leave to appeal to the Court of Appeal are governed by s. 68(1)(a) of the CJA 1964 which effectively states that no appeal shall be brought to the Court of Appeal when the amount or value of the subject-matter of the claim (exclusive of interest) is less than RM250,000, except with the leave of the Court of Appeal. [8] Where appeals are filed without leave having been obtained, and where leave is required, the court has no jurisdiction to hear the appeal (see Harcharan Singh Sohan Singh v. Ranjit Kaur S Gean Singh [2011] 3 CLJ 593 ("Harcharan Singh"). The requirement for leave serves as a filter against frivolous or unmeritorious proceedings (O'Reilly v. Mackman [1983] 2 AC 237). It must follow that no appeal can be filed against the decision of the Court of Appeal regarding leave as otherwise the filter principle would be defeated (Lam Kong Co Ltd v. Thong Guan Co Pte Ltd [2000] 1 CLJ 1; [2000] 1 MLJ 129 ("Lam Kong"). S/N pbUwsWnDc0eHq2lyB05esg Our Decisions [20] To begin with, it must be borne in mind that the Applicants have not filed an Affidavit in Reply to the Respondent's Affidavit in Reply. Hence, to us, the Applicants' are taken to have admitted and accepted the contents of the Respondent's Affidavit in Reply without replying or rebutting to the same. [21] To fortify this finding, the Court of Appeal speaking through Gopal Sri Ram JCA (as he then was) in Ng Hee Thoong & Anor v. Public Bank Berhad [1995] 1 CLJ 609 had laid down the position as follows: “Now, it is a well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict is usually treated as an admission by him of the fact so asserted: Alloy Automotive Sdn. Bhd. v. Perusahaan Ironfield Sdn. Bhd. [1986] 1 CLJ 45; Overseas Investment Pte. Ltd. v. O'Brien [1988] 2 CLJ 238; [1988] 3 MLJ 332.” [22] In addition, it is significant to emphasise that the Applicants also elected not to call any witnesses. [23] Be that as it may, we accept the argument of the learned counsel for the Applicants that the legal burden to prove the claims and how the sum of RM83,754.00 is derived still lies on the Respondent as the claimant in the present action. In Syarikat Kemajuaan Timbermine Sdn. Bhd v. Kerajaan Negeri Kelantan Darul Naim [2015] 3 MLJ 609 the S/N pbUwsWnDc0eHq2lyB05esg Federal Court speaking through Azahar Mohamed FCJ (as he then was) held as follows: [57] We therefore agree with the submission of learned counsel for the defendant to the effect that despite the fact the defendant did not call any witness and that even if the plaintiffs evidence is unopposed (and therefore presumed to be true), this does not automatically equate to that evidence satisfying the burden of proving the existence of the settlement agreement borne by the plaintiff, or mean that the burden of proving on the balance of probabilities no longer applies, or that a case to answer is automatically made out. The evidence adduced by the plaintiff must still be sufficient to prove the existence of the settlement agreement. This crucial point was overlooked by the learned High Court judge. On the factual matrix of the case, it is patently clear that the plaintiff has not discharged the burden. On this basis, the Court of Appeal was in every respect justified in holding that the leamed High Court judge was plainly wrong in making a ruling of law that the settlement agreement had come into existence based on the conduct of both parties. Indeed, the election by the defendant to call no evidence at trial does not preclude the reversal of a plainly wrong findings of the learned High Court judge by the Court of Appeal. [24] Upon perusing the terms of the Cadetship Agreement in its entirety, it is apparent there was a clear breach of the agreement on the part of the First Applicant when he failed to report for duty onboard the Respondent’s vessel. For ease of reference, the relevant clauses of the said agreement are reproduced below: S/N pbUwsWnDc0eHq2lyB05esg Clause 6.1 of the Cadetship Agreement states as follows:- During the period of the CADET's COURSE OF TRAINING, if the CADET shall at any time be gullty of any one or more of the following:

6.1.3 desert ship while on shipboard duties;

6.1.4 abandon the COURSE OF TRAINING before completion without the consent of the COMPANY;

6.1.7 commits any breach of the provisions of this AGREEMENT; the COMPANY shall be entitled to demand that the CADET withdraw from the COURSE OF TRAINING and thereupon he shall cease to have any claim to any benefit of this AGREEMENT or under any term or condition of the COMPANY applicable to the CADET and the CADET shall be deemed to have breached this AGREEMENT and the CADET and the SURETIES shall be jointly and severally liable for themselves, their heirs, executors or assigns to pay the COMPENSATION SUM to the COMPANY upon demand.

6.2 After completion of the COURSE OF TRAINING by the CADET, the CADET commits any one or more of the following:-

6.2.1. resigns or leaves the service of the COMPANY within the BOND PERIOD without the consent of the COMPANY, or …..

6.2.4. commits any breach of the provisions of the AGREEMENT: S/N pbUwsWnDc0eHq2lyB05esg The COMPANY shall be entitled to terminate the CADET’s employment and thereupon he shall cease to have any claim to any benefit or interest accruing under this AGREEMENT or under any term or condition of employment of the COMPANY applicable to the CADET and the CADET shall be deemed to have breached this AGREEMENT and the CADET and the SURETIES shall be jointly and severally liable for themselves their heirs, executors or assigns to pay for the COMPENSATION SUM to the COMPANY upon demand.

7.3 Upon the COMPANY making a demand to the CADET and/or SURETIES to pay the COMPENSATION SUM and/or any other costs as provided for under Clause 7.2 above, pursuant to any provision of this AGREEMENT, the CADET and/or the SURETIES shall immediately pay to the COMPANY the full COMPENSATION SUM as well as such other costs, as the case may be, as demanded by the COMPANY.

8.3 Save for termination of this AGREEMENT in accordance with Clause 8.1(b) above, in the event this AGREEMENT is terminated, the CADET and the SURETIES shall be jointly and severally liable for themselves, their heirs, executors, or assigns to pay the COMPENSATION SUM and/or any other sums to the COMPANY upon demand. [25] The main thrust of the submission by the learned counsel for the Applicants revolved around the failure of the Respondent to specifically pleaded the details or calculation of the amount of RM83,754.00 in the Respondent’s pleadings which was said to be fatal to the Respondent’s S/N pbUwsWnDc0eHq2lyB05esg case and the non-production of any documents to support its entire claim of RM83,754.00. [26] With greatest respect, we beg to differ. From the evidence which we have endeavoured , we find that the Respondent had specifically pleaded in paragraph 13(a) of the Respondent's Statement of Claim and proven its compensation sum for RM83,754.00 through the tendering of a 'Statement of Training Costs & Expenses' document whereby the maker of the said document, Shafie bin Shihabudin (SP2) testified that he was the person responsible for the preparation of the Statement of Training Costs and Expenses, which is prepared based on information provided by Akademi Laut Malaysia (ALAM). We find that the said statement is sufficient proof of expenses. We see no necessity to reproduce the detail Statement of Training Costs & Expenses here. [27] Reference in this connection may also be made to the evidence of SP 2 during cross examination when he said as follows: “SP2: Ok. The first day when they entered ALAM, they get a letter from MISC, that has been selected as a cadet. And then, after that, bila dia masuk, memang kita tak ada ini... how much the total of cost because that one, cadet ini dia ada tiga tahun. Dua tahun di ALAM, setahun di practical. Jadi, that's why the agreement not said any total of ini. Because apa? We worry tahun pertama dia lari. Kita tak tahu how much he has to pay. That's why bila ada BOC dia lagi, sebab ini dia dah as a Third Officer, I think if I'm not mistaken, dia breach of contract. Jadi, kita akan aaa… Macam saya, Umi akan bagitahu. S/N pbUwsWnDc0eHq2lyB05esg Budak ini dah breach of contract. Dan saya akan menghubungi ALAM what is the... apa, this cadet, this officer already completely study as a cadet. And then he, the staff ALAM will give me the cost. I mean the... all the expenses were written in the statement. Then, I will writelah. I will fill up. Then, this is the total RM70,000 is when he was two years in ALAM. Two years in ALAM. And then the balance is the practical on-board vessel. Selama 12 bulanlah. So, when we compile together all the total, then we get this total of the sum. The RM83,754.00. That is the total of this package where the aaa... MISC had spent for his studies, for the Defendant.” [28] To sum up, the above oral and documentary evidence speak volume. It detailed out the exact cost, expenses and breakdown incurred by the Respondent for the three (3) years Course of Training undergone by the First Applicant. Thus, we find that the learned counsel ’s for the Applicants argument on this issue is totally devoid of merit. [29] Finally, based on the provisions of section 74 of the Contracts Act 1950 and section 5(b)(i) of the Contracts (Amendment) Act 1976 and the terms of the Cadetship Agreement, we are fully satisfied that the learned Judicial Commissioner was perfectly right to order that the Respondent be entitled to claim the Compensation Sum of RM83,754.00 as it is a direct and consequential loss due to the Applicants' breach of the said agreement. Conclusion [30] For all the above reasons, we have reached our unanimous decision. S/N pbUwsWnDc0eHq2lyB05esg [31] The Applicants' failed to demonstrate to this Honourable Court a prima facie case of error in the High Court's decision in allowing the Respondent's Appeal. Neither we find any important question of law involved. The Applicants' have failed to meet the threshold requirement of section 68(1) of the Courts of Judicature Act 1964. [32] Leave is refused with costs of RM10,000.00 to the Respondent subject to allocator. Date: 29 July 2024 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant : Encik Amareson a/l k. Velu [Amareson & Meera]

Cik Nasyitah Ruzanna binti Abd Raman

Cik Anis Amirah binti Amran [Abdul Raman Saad & Associates] S/N pbUwsWnDc0eHq2lyB05esg