1. ) Wong Zheng Kai v 1. ) Mohd Shahrizal Bin Sharif (WA-22NCvC-299-05/2024)

WONG ZHENG KAI (No. K/P: 810906-02-5525)

JOHAN BIN ABDUL SAMAD (No. K/P: 721207-10-5425)

CHIANG WAI LAM (No. K/P: 790402-06-5165)

TING TIK CHAI (No. K/P: 860101-08-5163) [menyaman dibawah nama peribadinya dan sebagai perniagaan milikan tunggal di bawah gaya dan nama Vizifix Enterprise) (No. Pendaftaran Perniagaan: 202303104870 (Ra0099925-v)]

LEE WEE HOU (No. K/P: 770809-01-6105) …PLAINTIF-PLAINTIF

MOHD SHAHRIZAL BIN SHARIF (No. K/P: 800118-14-5201) 29/07/2025 15:10:22 WA-22NCvC-299-05/2024 Kand. 53 (disaman di bawah nama peribadinya dan sebagai Perniagaan perkongsian di bawah Gaya dan nama Kona Kotdan Production) [No Pendaftaran Perniagaan: 202203252626 (RA0092747-V)]

MOHD HAZREL BIN MOHAMED (No. K/P: 800205-02-5849) (disaman dibawah nama peribadinya dan sebagai perniagaan perkongsian di bawah gaya dan nama Kona Kotdan Production) [No Pendaftaran Perniagaan: 202203252626 (RA0092747-V)] …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT INTRODUCTION [1] This matter was set for full trial on 14.4.2025. The Plaintiffs had called three (3) witnesses to testify in Court. The Defendants had none. In fact, this Court had earlier struck off the Defendants’ defence and counter claim on 19.2.2025 for non-compliance of an Unless Order pertaining to the filing of pre-trial documents. Both the Defendants were present on that day. Thereafter, a trial date was fixed for the matter and the Defendants were informed, accordingly. [2] The Defendants have not filed an appeal to the Court Order dated 19.02.2025 that struck off their defence and counterclaim under Order 34 Rule 2 of the Rules of Court (ROC 2012). BRIEF FACTS [3] These facts were derived from the Plaintiffs’ case summary. [4] The First Defendant (D1) had approached the First Plaintiff (P1) with a proposal to venture into a café business somewhere in October to November 2022, but P1 was not interested. [5] Later, sometime in March 2023, D1 again approached P1 regarding the same contemplated cafe business. D1 explained that UM Properties is offering to give a 3-year tenancy for a building described and/or known as "Bangunan Mural Ibrahim Hussein" (Demised Premises) to a business with the name of "Kona Kotdan Production" where he was one of two (2) partners. Following from this, D1 requested P1 to meet and be introduced to his fellow partner, the 2nd Defendant (D2). [6] The Defendants sought P1’s involvement due to their lack of funds to cover the cafe's setup costs, such as renovations, machinery, and staff salaries. The Defendants assured P1 of high revenue projections. The Defendants had also intimated that they were looking to collaborate with P1 and/or other potential business partners who possesses the relevant experience and/or expertise in starting up and running new businesses. [7] Subsequently, P1 introduced the other Plaintiffs to the venture in the said cafe business and after several meetings, on or about May 2023, the Plaintiffs and Defendants had orally agreed to enter into a joint venture agreement based on the following structure and terms- i) The cafe would operate under the already registered business known as Kana Kotdan Production as the tenancy for the Demised Premises had already been offered to the said business; ii) the operating costs and expenses for operating the cafe business was to be taken from the gross revenue generated from the said business; iii) at the end of every month, the Defendants would receive 20% of the net revenue/profits, while 80% would be paid to the Plaintiffs in exchange for their financial investment and non-monetary contributions towards the renovation costs, purchase of equipment/appliances as well as the deposits to be paid to the Landlord; iv) although the Defendants were to principally operate the cafe business, all material decisions governing the same, shall be made only after consultation with and approval given, by the Plaintiffs. [8]

(viii) and (x), which this Court has allowed. ANALYSIS AND FINDINGS [20] As mentioned earlier, this Court had struck off the Defendants’ defence and counter claim for non-compliance of an Unless Order pertaining to the filing of pre-trial documents. [21] On the day fixed for trial, the Defendants’ counsel attended court, asked for adjournment and informed that the Defendants have filed applications to strike out the 2nd, 3rd and 5th Plaintiff’s claim against them, as well as to amend their defence. [22] The Plaintiffs did not agree to the postponement and insisted for the trial to proceed and that it was a tactical manoeuvre to delay the matter. The Learned Counsel for the Defendants, objected and informed that he was just been appointed on 8.4.2025. For the record, the Defendants were not present in Court. [23] The Plaintiffs contended that Order 18 Rule 22 of the ROC applies, but the Defendants disagree. This Court finds that Order 18 Rule 22 is not applicable based on the fact that the Defence was struck off earlier due to the non-compliance of an unless order. [24] This Court then refused adjournment and proceeded with the trial. Only the Plaintiffs’ witnesses testified and the learned Counsel for the Defendants objected. [25] In this regard, reference is made to the case of Sa'Amran a/l Atan lwn. Fazlina binti Mihad & Satu Lagi [2019] MLRHU 927; [2019] MLJU 919, where it was held- [8] Ketiadaan pliding oleh Responden-Responden menjadikan setiap pengataan dalam setiap kandungan Pernyataan Tuntutan Plaintif dipersetujui oleh Responden-Responden. Bagi menyokong hujahan Perayu merujuk kepada keputusan kes Dato' Mohamad Salim Fateh Din v. Nadeswaran Rajah [2012] 3 MLRH 689; [2012] 10 MLJ 203 yang memutuskan seperti berikut: "[8] At the outset, the court had asked parties to address the court as regards the effect of there being no defence in this case. From the authorities, it is clear that where the defendant has failed to serve a defence or where a defence has been struck off, the defendant would be deemed to have admitted the averments of the plaintiff. The defendant would be allowed to testify but only to mitigate as to damages. [23] Mahkamah ini juga berpendapat sekiranya tiada pembelaan difailkan dan tiada sebarang serahan mengenainya, Perayu selepas tamat 14 hari boleh memasukkan penghakiman interlokutori terhadap Responden-Responden dan gantirugi boleh ditaksirkan sebagaimana yang diperuntukkan di bawah A 19 k 3 ROC 2012: "Default of defence: Claim for unliquidated damages (O 19 r 3) Where the plaintiff's claim against a defendant is for unliquidated damages only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules for service of the defence, enter interlocutory judgment against the defendant for damages to be assessed and costs, and proceed with the action against the other defendants, if any." [26] Mahkamah ini juga berpendapat sekiranya kes diteruskan dengan saksi-saksi Perayu, kesemua versi Perayu patut diterima kerana Mahkamah hanya mempunyai versi Perayu sahaja dan tiada versi Responden-Responden untuk mahkamah membuat pertimbangan mengenai tahap kecuaian antara Perayu dan Responden. Mahkamah menerimapakai keputusan kes Tan Sri Dato' Vincent Tan Chee Yioun v. Haji Hasan Hamzah & Ors [1994] 3 MLRH 203; [1995] 1 MLJ 39; [1995] 1 CLJ 117; [1995] 1 AMR 069 yang memutuskan seperti berikut: "As such for all intents and purposes, there is no defence filed by these defendants. Since no defence has been filed, the defendants are deemed to admit the averment pleaded by the plaintiff. Though the first, second, third, fifth and sixth defendants gave evidence in court, I have allowed them to do so only for the purposes of mitigating the damages against them and not as evidence as to their defences." [26] Likewise, in Khairy Jamaluddin Abu Bakar v. Mohd Rasyiq bin Mohd Alwi, [2025] MLRHU 1469; [2025] MLJU 2099, the Court held- “[70] It is obvious that the defendant did not participate in the trial of this action. As a result, the defendant did not provide any evidence to rebut the plaintiffs case. Accordingly, the trite position of the law dictates that any evidence given by the plaintiff must be presumed true. It is in this regard that I draw my guidance from the decision of the Federal Court in Takako Sakao v. Ng Pek Yuen & Anor [2009] 3 MLRA 74; [2009] 6 MLJ 751; [2010] 1 CLJ 381; [2010] 2 AMR 609, where His Lordship Gopal Sri Ram FCJ stated in great detail at pp 398, 399 & 400: "[4] In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. As Elphinstone CJ said in Wasakah Singh v. Bachan Singh [1931] 1 MC 125 at p 128: If the party on whom the burden of proof lies gives or calls evidence which, if it is believed, is sufficient to prove his case, then the judge is bound to call upon the other party, and has no power to hold that the first party has failed to prove his case merely because the judge does not believe his evidence. At this stage, the truth or falsity of the evidence is immaterial. For the purpose of testing whether there is acase to answer, all the evidence given must be presumed to be true. Now, what the trial judge did in the present case is precisely what he ought not to have done. He expressed dissatisfaction with the appellant's evidence without asking himself that most vital question: does the first defendant/respondent have a case to answer? This failure on the part of the trial judge is a serious non-direction amounting to a misdirection which occasioned a miscarriage of justice. The trial judge was at that stage not concerned with his belief of the appellant's evidence. She had given her explanation as to the discrepancies in the figures. And her evidence does not appear to be either inherently incredible or inherently improbable. In these circumstances it was the duty of the judge to have accepted her evidence as true in the absence of any evidence from the first respondent going the other way. He however failed to direct himself in this fashion thereby occasioning a serious miscarriage of justice. [5] The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant's contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference. See Guthrie Sdn. Bhd. v. Trans-Malaysian Leasing Corp. Bhd [1990] 1 MLRA 532; [1991] 1 MLJ 33; [1991] 1 CLJ Rep 155. See also, Jaafar Shaari & Siti Jama Hashim v. Tan Lip Eng & Anor [1997] 1 MLRA 605; [1997] 3 MLJ 693; [1997] 4 CLJ 509; [1997] 4 AMR 3744 where Peh Swee Chin FCJ said: "The respondents had chosen to close the case at the end of the appellants' case. Although they were entitled to do so, they would be in peril of not having the evidence of their most important witness and of having an adverse inference drawn against them for failing to call such evidence should the circumstances demand it." There are two other authorities that are of assistance on the point. In Wisniewski v. Central Manchester Health Authority [1998] PIQR 324, Brooke LJ when delivering the judgment of the Court of Appeal quoted from a number of authorities including the following passage from the speech of Lord Diplock in Herrington v. British Railways Board [1972] AC 877: The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold. Brooke LJ then went on to say this: From this line of authority I derive the following principles in the context of the present case:

In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

If the reason for the witness's absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified. The other case is Crawford v. Financial Institutions Services Ltd (Jamaica) [2005] UKPC 40, where Lord Walker of Gestingthorpewhen delivering the Advice of the Privy Council said: It is well settled that in civil proceedings the court may draw adverse inferences from a defendant's decision not to give or call evidence as to matters within the knowledge of himself or his employees. [6] Sarkaron Evidence 16th edn at p 1837 states: It is the bounden duty of a party personally knowing the whole circumstances to give evidence and to submit to cross-examination. Non-appearance as a witness would be the strongest possible circumstance to discredit the truth of his case Gurbakhsh v. Gurdial, A [1927] PC 230." [27] In the absence of the Defendants during the trial as well as that there was no defence by the Defendant, and based on the evidence given by the Plaintiffs’ witnesses namely; PW-1, PW-2 and PW-3, this Court has then allowed the Plaintiffs’ claim with costs (see Nur Ibrahim Masilamani & Anor v. Joseph Lopez [2013] 4 CLJ 1202 [2013] 4 MLRH 573; Raub Australian Gold Mining Sdn Bhd v. Hue Shieh Lee [2016] CLJU 660; [2016] 1 LNS 660; [2016] 5 MLRH 307; Standard Confectionery Sdn Bhd & Anor v. Amanah Raya Berhad & 3 Ors [2015] CLJU 627; [2015] 1 LNS 627; [2015] 6 AMR 822). [28] This Court finds that since the evidence tendered by the Plaintiffs was not rebutted, thus the Plaintiffs has on a balance of probabilities, successful in proving their case in accordance with section 101 of the Evidence Act. CONCLUSION [29] Therefore, the Plaintiffs’ claim for prayers (i), (ii), (iii), (vii), (viii) and

(x), is allowed with costs. Dated: 29 JULY 2025 -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commisionner of the High Court NCVC 1 Kuala Lumpur COUNSELS For The Plaintiffs : Eugene Choong dan Crystal Tiah Messrs PC Choong & Co. For The Defendants : Arivom Namasivaya Messrs Arivom & Co.