Syber Quest Aerospace Sdn Bhd v Peischl Philipp (WA-12BNCC-39-10/2022)

SYBER QUEST AEROSPACE SDN BHD

AMROU BAKOUR (NRIC NO.: 830814-88-5059) APPELLANTS AND PESICHEL PHILIPP (PASSPORT NO.: U1907487) RESPONDENT GROUNDS OF JUDGMENT

The Appellants have appealed against the decision of the Sessions Court dated 11-10-2022 that was delivered after a full trial.

This Court having considered the record of appeal, the submissions filed by the litigants and after hearing counsels finds that this matter should be resent back to the Sessions Court for a rehearing of the issues raised by the Appellant as they were not fully considered by the learned Sessions Court Judge. B. Reasoning of this Court

I have considered the decision of the Sessions Court and I find that the learned Judge has failed to consider fully the defence of money lending that was put up by the defendant.

In this case, the learned Sessions Court Judge had only dismissed the said defence on the grounds that the agreement mentioned that it was only an investment agreement and did not mention that it was not a loan agreement. Please refer to paragraph 18 of the grounds of the learned Sessions Court Judge.

However, having considered the submissions of learned counsel for the Appellant and Respondent, I find that this issue should have been canvassed carefully by the lower Court and reconsidered. The decision should have been a “speaking judgment” to enable this Court to understand the reason why the said defence was rejected in accordance with the current legal position stated by the superior courts.

More so when the Appellant’s counsel has shown to me that the Respondent himself has agreed that there was an interest element to the loan agreement that is made up in the said agreement between the parties. This issue has to be deliberated and considered in detail by the learned Sessions Court Judge.

When I consider the agreement as a whole, the terms may contain an element of interest, as parties did agree that once the aircraft is sold then the monies to be repaid may include an interest element of 50% from the of the net profit from the sale of the aircraft to the sum of USD 325,000.00.

This was not explained or considered by the learned Sessions Court Judge and to dismiss this defence within a single paragraph merely on the ground of what allegedly parties decided to refer to the agreement as an investment agreement is wrong. What the learned Sessions Court Judge should have done is to analyze the defence claimed based on the totality of the evidence before her more so when one has to deal with section 100A of the Money Lenders Act 1951. See Triple Zest Trading & Suppliers & Ors v Applied Business Technologies Sdn Bhd [2023] 10

I am however not convinced that the appeal should be allowed in full as suggested by the Appellant based on the circumstances of this case.

However, I find that this case should be remitted back to the Sessions Court Judge and this issue be reconsidered. The Defence of moneylending should be analyzed and reconsidered by the Court below in detail based on the evidence available and heard before her.

I make this decision as the learned Sessions Court Judge had the benefit of hearing and seeing the said witness in question and the evidence relied on by the Appellant. She would then be able to ascertain whether the said statement relied on by the Appellant was explained or otherwise and whether the Respondent was in the business of moneylending as suggested by the Appellant. As it stands, this was not explained by the learned Sessions Court Judge, and I find it to be unsatisfactory.

I refer to Dr Hari Krishnan & Anor v Megat Noor Ishak Megat Ibrahim [2018] 3 CLJ 427 where Md Raus Sharif CJ held: - Non-speaking Judgment Of The High Court [35] In order to determine whether a judgment is a speaking judgment, one has to look into its contents and decide whether it has sufficient coverage of material facts to enable one to determine the legal issues, with reference to the crucial arguments for and against as raised by the parties.

I am also guided by the recent decision of the Court of Appeal in Karen Yap Chew Ling v Binary Group Services Bhd [2023] 7 CLJ 534.

Guided on the above, I find that the defence of moneylending should have been dealt with in detail by the learned Sessions Court Judge. The Court below had summarily considered it in a single paragraph without any detail as to the issues raised by the Appellant. This does not warrant a full dismissal of the Respondent’s claim, but I believe warrants this Court to exercise its power to direct the Sessions Court Judge to rehear the arguments and decide on this issue. This does not mean that this Court agrees with the Appellant and this Court leaves this issue to be decided solely by the learned Sessions Court Judge based on the evidence before her.

Therefore, I find this is a suitable case for the case to be remitted back to the Sessions Court Judge to reconsider this defence as she had the opportunity to have seen the witnesses and this defence should have been fully ventilated by her in the written judgment. I also do not find it suitable for the case to be retried as that would be a waste of judicial time. I only direct that the defence be considered in detail by the Sessions Court.

A point that needs to be noted is that during the hearing of this appeal, the Respondent’s counsel was asked whether the learned Sessions Court Judge had dealt with the issue of moneylending in detail and, even he agreed that this was not done by the learned Sessions Court. In view of the said admission, this case is best to be reheard in the interest of justice. The parties will be able to resolve the issues again based on the same evidence before the Sessions Court without the need for a retrial.

For the above reasons, I allow the Appellant’s appeal, but I send this case back for reconsideration. There is no need for a retrial but only for a reconsideration of the defences raised by the Defendant. No order as to costs. Dated 19th January 2024 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya at Kuala Lumpur NCC 5 Counsel RS Sodhi for the Appellant Messrs. Sodhi Chambers Advocates & Solicitors Ramesh Sivakumar together with Calvin Lim Sin Guan for the Respondent Messrs. Goik, Ramesh & Loo Advocates & Solicitors