1. ) Terence Conrad Fernandez v Agensi Pekerjaan Vegah Sdn Bhd (WA-A72-174-08/2023)

BETWEEN TERENCE CONRAD FERNANDEZ [NRIC NO: 800711-10-5569]

KARINA KAUR GREWAL [NRIC NO: 880608-14-5098] … PLAINTIFFS AND AGENSI PEKERJAAN VEGAH SDN BHD [COMPANY NO: 0448450-M] …DEFENDANT GROUNDS OF JUDGMENT (After Full Trial)

PRELIMINARY All contracts are founded on trust; once that trust is eroded, even the clearest terms can become contested battlegrounds.

In light of the above, what began as a straightforward agreement for domestic service has unraveled into a dispute marked by unmet expectations, alleged breaches of duty and mutual dissatisfaction; underscoring how the deterioration of trust can render even routine contractual agreements fraught with conflict.

The dispute before me emerges from an agreement entered into by the Defendant, a recruitment agency. This agreement was to supply a domestic helper, Rhea, to the Plaintiffs, based on the terms outlined in a Quotation.

Although the Quotation was not signed by either party, it specified the costs, the three-month replacement period, and a refund policy. The Plaintiffs accepted the terms by making payments, and both parties proceeded according to the Quotation’s provisions.

However, the Plaintiffs later challenged the Quotation’s validity as a binding agreement due to it being unsigned and raised concerns about the services provided.

BACKGROUND FACTS The Defendant is a domestic worker recruitment agency. Sometime in July 2022, the Plaintiffs, who are husband and wife, engaged the Defendant to supply them with a Filipino domestic helper whose primary duty amongst others includes general household duties and to care for the Plaintiffs’ soon-to-be-born baby.

Pursuant to the above, on or about 19.7.2022, the Defendant issued a quotation to the Plaintiffs.

On or about 4.8.2022, the Defendant forwarded the biodata of a Filipino domestic helper to the Plaintiffs named Rhea Cacho Orlando (“Rhea”).

On or about 15.8.2022, the Defendant forwarded a job scope form to the Plaintiffs requesting the Plaintiffs to specify the household duties Rhea was to perform.

The Plaintiffs made two payments to the Defendant for hiring the services of Rhea, the first being RM8,000.00 on 22.8.2022 and the final payment of RM8,300.00 on 17.1.2023.

Rhea commenced work on 17.1.2023, marking the beginning of the three-month warranty period.

The warranty period expired on 17.4.2023.

On 30.5.2023, the Plaintiffs arranged a flight ticket and brought Rhea to the airport, effectively terminating her employment.

A Letter of Demand was issued on 23.5.2023 and this suit was filed on 17.8.2023. CHRONOLOGY OF EVENTS (AS ADOPTED FROM THE DEFENDANT’S SUBMISSIONS) Date Event 19.7.2022 Quotation issued to Plaintiffs 4.8.2022 Biodata of Rhea forwarded to Plaintiffs 15.8.2022 Job scope form sent to Plaintiffs 22.8.2022 First payment of RM8,000 made 17.1.2023 Final payment of RM8,300 made and Rhea commences work 17.4.2023 Warranty period expires 30.5.2023 Rhea leaves employment (flight arranged by Plaintiffs)

23.5.2023 Letter of Demand issued 17.8.2023 Writ filed

The Court adopts the following issues for determination based on both parties' submissions: i. Whether there existed a valid and binding contract between the Plaintiffs and Defendant. ii. Whether the Plaintiffs are entitled to a refund of the fees paid to the Defendant. iii.Whether the Defendant is a party to the Standard Employment Contract. iv. Whether the Defendant has breached its duty of care. v. Whether the Plaintiffs successfully proved the alleged conspiracy between the Defendant and Rhea. vi. Whether there were material interruptions during the trial that warrant judicial comment.

Issue (i): Validity of the Quotation as Contract The Plaintiffs argue that the unsigned Quotation cannot constitute a binding agreement. However, the evidence shows that the Plaintiffs had acted on the Quotation by making payments in accordance with its terms.

This Court refers to Sections 2(a) and 2(b) of the Contracts Act 1950 which provide as follows:- “2(a) when a person signifies to another his willingness to do or abstain from doing anything, with a view to obtaining the assent of that other to the act or abstinence, he is said to make a proposal. 5 2(b) when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted: a proposal when accepted, becomes a promise.”

In this regard, the Defendant made a proposal through the Quotation, detailing the fees and services associated with recruiting Rhea. The Plaintiffs’ payments, made in regard to the terms of the Quotation, establishes their acceptance of this offer thereby establishing a contract.

The Plaintiffs’ main contention appears to be the fact that the Quotation was not signed. The finding of the Court however is that the unsigned Quotation does not invalidate its binding nature. In Unifortune Holding Sdn Bhd v Lea Centre Sdn Bhd [2020] CLJU 2076 [HC] , the Court of Appeal held as follows:- “[30] Courts have also accepted the conduct of parties. In Nippon Express (M) Sdn. Bhd. v Che Kiang Realty Sdn. Bhd. & Another appeal (2014) 1 MLRA 558, the Court of Appeal held that an unsigned contract involving sale of properties was valid despite the failure of parties to sign the agreement. In this case, the unexecuted contract had a clause that stated the “Sale is confirmed upon compliance with payment of 10% of purchase price, the contract became binding”, notwithstanding that the contract itself was never signed. Taking cue from this decision, the conduct of parties in this case is also a valid consideration, wherein the plaintiff Unifortune, has by conduct evinced its intention to pursue with the tenancy with defendant Lea, albeit the tenancy agreement unsigned but had issued offer letters with varied terms and conditions of rental to include attractive rebates which were fully adhered to by defendant, superseding the unsigned tenancy agreement.[…]“

Bearing the above in mind, the Plaintiffs have demonstrated their acceptance by following the payment schedule and this can be seen by their reliance on the terms of the Quotation when engaging the Defendant’s services. Therefore, the Plaintiffs, by conduct, have shown their intention to proceed with the agreement with the Defendant.

Further, in the present case, the conduct of both parties namely, the issuance of the quotation, forwarding of the maid’s biodata, and the payment of fees establishes a course of dealing consistent with a valid contract.

This Court also refers to the definition of consideration under Section 2(d) of the Contract as follows: - “2(d) when, at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called consideration for the promise.”

In this regard in consideration for the provision of the services to recruit a domestic helper on the part of the Defendant, the Plaintiff had paid monies in pursuance of the said services.

Hence, the Court finds that there existed a binding contract between the Plaintiffs and the Defendant based on the Quotation.

Issue (ii): Refund Entitlement The Quotation specifies a 3 month replacement period. Rhea commenced employment on 17.1.2023 and the replacement period expired on 17.4.2023.

The Plaintiffs made no formal complaints or requests for replacement or refund within this period.

On this ground, the Court finds that the Plaintiffs are not entitled to a refund.

The Plaintiffs’ further argument in respect of invalidating the Quotation is that there were negotiations between parties which led to the reduction in the sum that the Plaintiffs are to make payable to the Defendant. In this regard, the argument advanced by the Plaintiffs is that the reduction in the total final sum to be paid not being reflected in the Quotation caused the terms to be uncertain and therefore void and/or voidable.

In regard to the alterations made to the Quotation, the initial total amount stated in the Quotation was RM16,500.00. This amount covered all recruitment related costs, including processing and service fees. Following negotiations, the Defendant extended a goodwill discount of RM500 to the Plaintiffs, reducing the total to RM16,000. This discount was explicitly communicated to the Plaintiffs through WhatsApp messages where the Defendant confirmed the revised amount, and the Plaintiffs acknowledged this adjustment.

In addition to the discounted amount, an extra charge of RM500 was subsequently added to cover administrative expenses associated with Rhea’s documentation. This additional amount was also communicated to the Plaintiffs and agreed upon as part of the final fee structure. Thus, the Plaintiffs were fully informed of both the discount and the additional charge through written communication prior to making the final payment wherein upon making the final payment, they have signified their willingness to the sums stated above.

Further, the Plaintiffs argue that due to adjustments in the Quotation amount, the contract terms became uncertain. It is trite that the treatment of the courts as to oral agreements contradicting terms of the written agreement can be accepted. This position has been entrenched in the Evidence Act 1950 wherein proviso (d) to Section 92 provides that:- “When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms: Provided that-

the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents;”

In the High Court case of Pembinaan Wasmegah Sdn Bhd v Ecofirst Construction Sdn Bhd [2015], Hadhariah Ismail, J held as follows:- “[27] In the instant case, it is clear to me that evidence of surrounding circumstances and factual background is admissible, especially the conduct of the parties In his reply, learned counsel for the plaintiff submits that s 91 is not applicable in this case because the plaintiff had no issue with the meaning of cl 1.1. What the plaintiff is saying is by the parties subsequent conduct, they have agreed to vary cl 1.1 in that the defendant has allowed the plaintiff to claim for variation of price and be paid to the plaintiff. This variation by subsequent conduct is allowed under s 92(d) of the Evidence Act 1950. “Section 92 Evidence Act provides as follows: […] [28] In this case, DW1 agrees that notwithstanding cl 1.1, the parties can mutually agree to vary the contract price. This is evident from the defendant’s interim payment No 26 wherein the estimated variation of price is stated to be RM728,759.38. This interim payment No 26 was evaluated and recommended by one Ashley, checked by DW1 and approved by the CEO of the defendant. Further evidence to support the fact that parties had agreed to vary cl 1.1 is the purported final account prepared by the defendant. In the said final account, the estimated variation of price was stated to be RM566,812.85. Based on these two documents, it is my finding that the parties have agreed that variation of price is claimable for the works carried out by the plaintiff. I further find that the letter of award does not contain the usual clause prohibiting variation or amendment of the terms of the contract. I was of the opinion that cl 1.1 ought to be given wide interpretation as variation in contract sum is unavoidable if it involves variation orders or additional works. Such variation also is not caught by s 92(d) of the Evidence Act 1950 if its effect is only to give justice to the parties. In a further attempt to evade liability, the defendant contend that by a supplemental agreement, JKR does not allow variation of price. I find this contention is not true at all. Perusal of the supplemental agreement does not indicate that JKR disallows variation of price to be claimed. That agreement merely sought to amend the names of the officers empowered to take action on behalf of JKR and provides the authority to approve variation order. There is no reference whatsoever to variation of price in this supplemental agreement. For the aforesaid reasons, I hold the plaintiff is entitled to claim variation of price in the sum of RM728,759.38.”

In view of the authority above, it is clear that a variation of a sum in the agreement is a common practice where the varied sum may sometimes not be stated in any written documents.

Bearing the above in mind, it is submitted that the Plaintiff had never disputed that it was supposed to pay a certain figure to the Defendant and when both parties agreed for a discounted sum, the Plaintiffs cannot now avail itself to any defence of uncertainty of terms as it purported. This is particularly so when both parties’ minds have met on the issue of how much exactly the Plaintiff is supposed to pay to the Defendant. Issue (iii): Whether the Defendant is a party to the Standard Employment Contract

This Court is in agreement with the Defendant that the Defendant is not a party to the SEC executed between Terence and the domestic worker, Rhea. The agreement as per the SEC specifically states that it is between the Plaintiffs, in their capacity as the employer and Rhea as the employee. It is further submitted that the Defendant’s role in the SEC is limited to witnessing the agreement, without assuming any direct obligations or responsibilities under its terms.

This Honourable Court has decided that contracts should be given their plain and natural meaning as was held in the case of Alexander John Shek Kwok Bun v Rich Avenue Sdn Bhd & Anor [2008] 7 CLJ 754 [HC]. Issue (iv): Whether the Defendant has breached its duty of care.

The Plaintiffs claim that the Defendants have breached their duty/ that they were negligent.

However, there is insufficient evidence to prove a breach of a specific duty of care. Rhea was interviewed and accepted by the Plaintiffs, and no substantiated misconduct was proven against the Defendant.

The Court is guided by Donoghue v Stevenson [1932] AC 562, but finds no facts here establishing a proximity of duty and breach by the Defendant.

Therefore, this claim fails on the balance of probabilities.

It is also clear that there is no breach of the Defendant’s duties pursuant to the SEC as there are no contractual obligations imposed upon it to take any steps in the event of a dispute between Rhea and the Plaintiffs.

Further, the Plaintiffs have failed to prove the existence of a non-delegable duty of care for the Defendant to step into an agreement which it is not privy to in order to perform the obligations of the parties thereto.

In a nutshell, there is also no duty imposed upon the Defendant to refer the dispute between Rhea and the Plaintiffs to the Philippines Embassy and as such, there is no breach of such a duty.

Issue (iv): Allegation of Conspiracy The Plaintiffs pleaded conspiracy between the Defendant and Rhea but failed to cross-examine the Defendant’s witness, Ms. Lim, on this issue.

Following the rule in Browne v Dunn (1893) 6 R 67 and applied in Aik Ming (M) Sdn Bhd v Chang Ching Chuen [1995] 3 CLJ 639, failure to put forward the case in cross-examination is fatal.

Furthermore, Rhea was not made a party to these proceedings. The Court of Appeal in SCK Group Bhd v Sunny Liew Siew Pang [2010] 9 CLJ 389 held that failure to name co-conspirators undermines the entire conspiracy claim.

Additionally, in Leing Ti Kang v Lau Tian Kit [2020] CLJU 2085, the High Court held that absence of particulars in a conspiracy pleading is fatal.

Hence, the Court finds the Plaintiffs have failed to prove conspiracy.

Issue (v): Whether there were material interruptions during the trial The Plaintiffs alleged that this Court had unduly interfered or interrupted their counsel during re-examination.

However, this Court finds no merit in the allegation that the Plaintiffs were denied a fair trial or that any such interruptions amounted to judicial misconduct or partiality.

Re-examination is governed by section 138 of the Evidence Act 1950, which clearly restricts the scope of questions to matters arising in cross-examination and mandates that new matters may only be introduced with leave of court.

The record reflects that this Court merely enforced this rule to prevent improper or leading questions during re-examination. In various instances, the Court specifically advised the Plaintiffs’ counsel on how to frame re-examination questions appropriately (e.g. Situation 1 through Situation 8 as detailed in the Defendant’s submissions).

In Mohd Samsudin Ismail v Tan Yeow Hwa & Anor [2000] 4 CLJ 398, it was held that the object of re-examination is to clarify ambiguity from cross-examination and not to enable witnesses to undo their earlier evidence.

In Muhammad Zulkarnain bin Mohamed Rokani & Ors v Pengarah Hospital Sultan Ismail Johor Bahru & Ors [2021] 8 MLJ 762, the High Court confirmed the judge’s discretion under section 165 of the Evidence Act to ask questions and guide proceedings to obtain proper proof of facts.

The conduct of this Court was also consistent with the duties described in Hong Yik Plastics (M) Sdn Bhd v Ho Shen Lee (M) Sdn Bhd & Anor [2020] 4 CLJ 479 (COA), where the appellate court emphasized that judges must preserve procedural fairness while controlling the examination of witnesses.

Ultimately, in each situation cited by the Plaintiffs, the questions disallowed were either: (a) Not arising from cross-examination, (b) Leading in nature (contravening s. 142 EA), or (c) Seeking to introduce new evidence improperly.

Moreover, where objections were not raised by the opposing counsel, this Court allowed the questions to proceed, underscoring its impartiality.

This Court concludes that no improper interruptions occurred and that the trial was conducted in accordance with law and procedural fairness.

CONCLUSION Having considered the pleadings, the evidence adduced during trial, the submissions of both parties and the applicable legal authorities, this Court finds that the Plaintiffs have failed to discharge the burden of proof to establish the Defendant’s liability on a balance of probabilities. The Quotation, albeit unsigned, was acted upon by both parties and payments were made and accepted in accordance with its terms.

The claims regarding breach of contract and duty have not been substantiated with credible or cogent evidence. The Plaintiffs’ position that the Quotation was not binding is inconsistent with their conduct and the documentation presented.

On the issue of alleged material interruptions during trial, having reviewed the Record of Proceedings and applying the provisions of Section 138 and 165 of the Evidence Act 1950, this Court finds that there were no improper interruptions. The Court merely exercised its authority to ensure that re-examination complied with legal requirements, especially in curbing leading questions and limiting new matters. In fact, many questions were allowed in the absence of objections from the opposing counsel. This conduct is consistent with the Court’s duty to uphold fairness and procedural integrity.

For all the foregoing reasons, the Plaintiffs’ claim and the Defendant’s counterclaim are both dismissed.

Costs of RM5,000 are awarded to the Defendant for the Plaintiffs’ claim. Costs of RM1,000 are awarded to the Plaintiffs for the Defendant’s counterclaim. Dated: 8 July 2025 SIGNED SIGNATURE SANGITAA A/P SUBRAMANIAM Magistrate Civil Magistrate Court 4 Plaintiff’s Solicitors : Messrs A J ARIFFIN YEO & HARPAL Defendant’s Solicitors : Messrs S RAVENESAN