Ang Teck Wang v Big Sdn Bhd (W-04(IM)(NCC)-397-07/2019)

BIG Sdn Bhd (Company No. 913144-A) 2

Benjamin Yong Kwet Yue (NRIC No. 771124-14-5021) … Judgment Creditors And Ang Teck Wang … Judgment Debtor] CORAM: MARY LIM THIAM SUAN, JCA HANIPAH BINTI FARIKULLAH, JCA HAS ZANAH BINTI MEHAT, JCA JUDGMENT OF THE COURT [1] These are the broad grounds of decision of the Court. [2] This appeal arises from orders made following a Judgment Debtor Summons [JDS] application to examine the appellant judgment debtor. [3] Upon hearing evidence in the examination, the learned Sessions Court judge exercised her discretion under section 4(6)(b) of the Debtors Act 3 1957 [Act 256] and ordered the appellant to pay the judgment sum by instalments of RM2,500.00 per month for a period of 19 years. [4] The respondent before us who is the judgment creditor was dissatisfied and appealed because the effect of the Sessions Court’s order would mean that the judgment debt of RM526,445.21 including interest and costs [RM576,870.63] would take almost 19 years to be repaid when that sum was paid over in a lump sum by the respondent. [5] The High Court allowed the appeal and made 6 orders:

appeal allowed with costs;

Appellant be re-examined again under section 4 of the Debtors Act 1957;

order of discovery of certain documents, etc.;

order of discovery to be made by or before 17.9.2019;

Sessions Court order dated 14.3.2019 affirmed and maintained until the disposal of the re-examination; and 6. costs of RM5,000.00. [6] First of all, the matter of multiple orders which are said to be prejudicial and inconsistent. The orders include an order for retrial or re-examination. 4 [7] We find the orders made are erroneous. The order for a re-trial is without merit, erroneous in law and on the facts. A re-trial is exceptionally ordered; say for where there is miscarriage of justice. Not only is there no such claim, there is none here. The 2nd, 3rd and 4th orders therefore cannot stand. [8] As for the 1st and 5th orders, they are inconsistent with each other. [9] In arriving at his decision leading to the 1st order of allowing the appeal, the learned Judge agreed with the respondent that the appellant had not provided full and frank disclosure of his financial position at the JDS; and that the Sessions Court had wrongly relied on bare assertions of the appellant. [10] We have perused the records of appeal and this is what we find. [11] In agreeing with the respondent, the learned Judge ordered the appellant to produce the documents which His Lordship felt were relevant and important to the determination of his ability to pay the judgment debt. On the complaint of bare assertion that there was an unaccounted sum of RM100,000.00 following the sale of the appellant’s property for RM1.59 million, the learned Judge found that the Sessions Court did not critically evaluate the relevant evidence. [12] The respondent had at both the Sessions Court and the High Court invited the Court to draw an adverse inference against the appellant in the 5 face of non-production of documents. We find that both the High Court and the Sessions Court did not do so. [13] However, it may be reasonably inferred from both decisions that the conditions for drawing such adverse inference were not met. Having looked at the evidence, we agree that there is no reason to draw an adverse inference. [14] As for the bare assertions, we disagree. The assertions were anything but bare. It was a full hearing before the Sessions Court. We also find that contrary to the High Court’s conclusion that there was failure to consider and address the undisputed debt – see paragraphs 13 to 15 of the grounds, the issue is actually irrelevant in a JDS application. In any case, the whereabouts of the RM526,445.21 had been examined and explained – see pages 245-246 of the record of appeal. [15] We are satisfied with the explanation given. [16] As for the appellant’s ability to pay and how much he ought to be ordered to pay, there is the issue of the proceeds of the sale of property in Malaysia for RM1.59 million. The learned Judge had found that the Sessions Court judge had not dealt with the matter since the sale took place before the debt arose. See paragraph 18 of the grounds of judgment. [17] On perusal of the notes of evidence and the grounds of the Sessions Court and upon submissions before us, we find that that is unfortunately an 6 erroneous conclusion. The Sessions Court has clearly dealt with the evidence quite carefully, identified the income, expenditure, before concluding that it was reasonable for the appellant to have the expenses that he claimed to have, before finally ordering him to pay RM2,500.00 monthly. [18] In evaluating the evidence; the Sessions Court had rejected the respondent’s claim that the appellant could pay the debt by way of a lump sum and had also rejected the appellant’s claim that he could only pay RM1,000.00 per month; and had instead ordered the appellant to pay by way of monthly instalments of RM2,500.00. [19] We find no reason to disturb the findings of the Sessions Court as it is well supported and reasoned. [20] Consequently, for the reasons explained, the appeal is allowed. The High Court decision is set aside and the decision of the Sessions Court is restored. Costs of RM10,000.00 subject to allocatur. [21] The case management date of 17.3.2020 before the Sessions Court is hereby vacated. Dated: 12 March 2020 Sgd (MARY LIM THIAM SUAN) Judge Court of Appeal Malaysia 7 Counsel/Solicitors For the appellant: A. Lourdes Abishegam (Kavetha Murugaya with him) Messrs. Messrs Zahir Jeya & Zainal Unit No. L26-3A PJX-HM Shah Tower, No. 16A Persiaran Barat 46050 Petaling Jaya Selangor For the respondent: Michelle Lim Li Ann (Colin Liew Ket Lip with her) Messrs. Chris Lim Su Heng T109, 3rd Floor Centerpoint Bandar Utama No. 3, Lebuh Bandar Utama 47800 Petaling Jaya