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RHB ASSET MANAGEMENT SDN BHD (Registration No.: 174588-X)
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WA-12BNCC-32-12/2024
High Court of Malaysia3 Dec 2025
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“she is entitled to the commission under current industry practice. In the alternative, she submits that she is entitled to some commission on the basis of quantum meruit pursuant to Section 71 of the Contracts Act 1950. II. Defendants’ Case”
“omintel Sdn Bhd [2017] 5 MLJ 292 (FC), the Federal Court held that technical issues which require expert witness’ evidence shall only be decided upon the submission of expert evidence pursuant to the Evidence Act 1950. This is what the Court held: “The Plaintiff’s witnesses, namely PW2 and PW3 were witnesses of facts a”
“. **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 7. The 2nd Defendant (“D2”) is a licensed fund management company under the Capital Markets and Services Act 2007 (“CMSA”). D2 carries out fund management activities dealing with Syariah investments.”
“the parties and has to be proved by positive evidence.” 70. The Plaintiff alternatively seeks payment of commissions on the basis of quantum meruit. In Wisma Panti (Johor) Sdn Bhd v Wan Yin Sdn Bhd [2008] MLJU 696 (CA), Abdul Malik Ishak JCA held: “The Latin term “quantum meruit” means literally “as much as he has earn”
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RHB ASSET MANAGEMENT SDN BHD (Registration No.: 174588-X)
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RHB ISLAMIC INTERNATIONAL ASSET MANAGEMENT BHD (Registration No.: 879478-A) …RESPONDENTS GROUNDS OF JUDGMENT (Enclosure 1)
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This appeal is directed against the Sessions Court’s post-trial judgment dated 30 November 2024. The Appellant was the Plaintiff in the Court below. The Respondents were the Defendants. The parties will be referred to as they appeared in the Court below.
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The Sessions Court dismissed the Plaintiff’s claim for introducer fees amounting to RM271,875. The Plaintiff submits that she is entitled to the introducer fees as she allegedly procured two institutional investors for the 2nd Defendant. The 2nd Defendant denies she is entitled to the fees concerned.
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Although the claim was filed against both the Defendants, the Plaintiff’s claim was essentially only against the 2nd Defendant. The Plaintiff’s Statement of Claim alludes to the 1st Defendant being named as a nominal defendant to show the relationship between the parties. No relief was sought against the 1st Defendant.
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Having considered the Record of Appeal, the written and reply submissions of the parties, and the applicable law, I am satisfied that the learned Sessions Court Judge (“SCJ”) was not plainly wrong in her findings of fact or law.
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The appeal was therefore dismissed with costs. The decision of the learned SCJ was affirmed. The following are my reasons for affirming the judgment of the lower Court.
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The Plaintiff was at all material times a Unit Trust Agent of the 1st Defendant (“D1”). In the course of her employment, the Plaintiff is governed by an Agency Agreement she executed with D1. She is entitled to certain commissions for work she renders for D1.
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The 2nd Defendant (“D2”) is a licensed fund management company under the Capital Markets and Services Act 2007 (“CMSA”). D2 carries out fund management activities dealing with Syariah investments.
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The Plaintiff contends that she introduced Universiti Kebangsaan Malaysia (“UKM”) and Perbadanan Tabung Pendidikan Tinggi Nasional (“PTPTN”) to D2, resulting in investment mandates. The Plaintiff claims that she acted as a marketing representative of D2 when she introduced UKM and PTPTN to D2. These two institutions invested funds with D2. The Plaintiff alleges she is entitled to commissions payable by D2 to the Plaintiff which are as follows: i. RM46,875 for the UKM project; and ii. RM225,000 for the PTPTN project.
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It is not disputed that there is no written introducer agreement between the Plaintiff and D2. It is also not disputed that the Plaintiff was not registered as a Marketing Representative with D2.
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Before the lower Court, the parties had formulated their respective issues for determination. In the lower Court’s grounds of decision, the learned SCJ distilled the following issues for determination. i. Whether the Plaintiff’s claim for commissions on account of services rendered is illegal as she does not have a Capital Markets Services Representative's Licence under the CMSA or a Marketing Representative licence from the Securities Commission pursuant to the Securities Commission Guidelines for Marketing Representatives (“SC Guidelines”). ii. Whether there was representation from D1 and D2 to the Plaintiff for the Plaintiff to procure or introduce investors (PTPTN and UKM) to invest their funds in D2 and that the Plaintiff had acted upon those representations. iii. Whether D2 is obligated to pay the sums of RM46,875 and RM225,000 to the Plaintiff as introducer fees for all such services rendered by the Plaintiff in procuring and concluding the contracts for UKM and PTPTN respectively.
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The learned SCJ determined the issues she formulated in the Defendants’ favour. The appeal thus turns on the following issues: i. Whether the SCJ erred in holding that the Plaintiff’s claim was barred by illegality under the CMSA and/or SC Guidelines; ii. Whether there existed a binding agreement, undertaking or representation to pay introducer fees; iii. Whether the Plaintiff established causation; iv. Whether the Plaintiff proved entitlement to payment at the industry rate or quantum meruit; v. Whether the learned SCJ’s findings were plainly wrong so as to warrant appellate intervention. COMPETING SUBMISSIONS OF THE PARTIES I. Plaintiff’s Case
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The Plaintiff submits that she met with the Chief Executive Officer of D2 and the Head of Agency for D1, during which her services were sought to procure UKM and PTPTN as investors by way of a direct mandate transaction. She contends that documentary evidence, in particular email correspondence, supports her position that she was acting as an agent for D2 in relation to the procurement of those investors.
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The Plaintiff further relies on an email from the Head of Agency of D1 which, according to her, confirms that the proposed fee for a Marketing Representative was up to 30% of the annual management fee, payable monthly, together with an additional commission based on performance fee. She argues that this email evidences the agreed remuneration structure and demonstrates that her commission was contemplated to be paid out of the management and performance fees earned from the investments.
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As for the applicability of the CMSA, the Plaintiff submits that the statutory requirement for a Representative’s Licence applies to employees of a licensed institution. As she was not an employee of D2 but an agent of D1, she contends that the CMSA licensing requirement did not apply to her.
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She further submits that the requirement for a CMSA licence was never raised with her at the material time and was only relied upon after the filing of the claim. She characterises the Defendants’ position as an attempt to avoid payment by subsequently invoking licensing requirements.
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The Plaintiff relies on Section 59A of the CMSA, which concerns the civil liability of a principal for acts of its representative. She argues that D2, as principal and holder of a Capital Markets Services Licence, had a statutory duty to take reasonable steps to inform clients that she was not duly licensed, and that liability to pay her rests with D2 by operation of that provision.
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In addition, the Plaintiff contends that D2 had promised her a payment or commission to secure the investments from UKM and PTPTN but later denied payment upon execution of the investment agreements. She submits that, in these circumstances, the doctrine of estoppel applies and that the learned Sessions Court Judge erred in failing to invoke it.
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The Plaintiff then addresses the issue of registration as a Marketing Representative (“MR”) and submits that the contention that she was not duly registered is academic. She refers to the SC Guidelines and contends that the Guidelines permit a MR to act on behalf of multiple principals.
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She further submits that D2 did not have a mechanism or platform to register MRs at the material time, even after the introduction of the MRs requirements by the Securities Commission in 2017. According to the Plaintiff, she was the sole agent acting for D2 in procuring the two investors.
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The Plaintiff relies on the definition of “Marketing Representative” in the SC Guidelines, which describes a MR as a person acting as an introducer for a principal, undertaking marketing services and client support under the Guidelines. She contends that the services she provided since 2014 fall squarely within that definition.
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Finally, she refers to the specific duties of an MR under the Guidelines, which include arranging meetings between customers and the principal and forwarding customers’ particulars to the principal. She submits that these were precisely the functions she carried out for D2 in securing the investments.
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The Plaintiff submits that she is entitled to the commission under current industry practice. In the alternative, she submits that she is entitled to some commission on the basis of quantum meruit pursuant to Section 71 of the Contracts Act 1950.
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The Defendants’ case is that the Plaintiff’s services, even if they were rendered, fall under the definition of services regulated by the CMSA and the SC Guidelines. Hence, unless the Plaintiff possessed the requisite licences, she is not entitled to carry out the services concerned.
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Next, the Defendants submit that there is no contract between the Plaintiff and the Defendants concerning the alleged introducer fees. In fact, the Defendants submit that the alleged work concerning PTPTN was not even pleaded in the Statement of Claim. A party is bound by its pleadings. Relief cannot be granted on matters not pleaded. It follows that absent any contract between the parties, the Plaintiff is not entitled to any introducer fees from D2.
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The Defendants submit that there is no proven link between the investments made by UKM and PTPTN with any work carried out by the Plaintiff. Absent causation or such link, the Plaintiff cannot claim that the investments are the fruits of the Plaintiff’s labour.
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Finally, the Plaintiff also failed to adduce any evidence to support her claim on quantum meruit or what the industry practice was in order for the trial judge to assess payments due to her, if any.
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After a trial lasting five days involving two witnesses for the Plaintiff and four witnesses for the Defendants, the Learned SCJ dismissed the Plaintiff’s claim.
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The learned SCJ found, in substance, that the Plaintiff had failed to discharge her burden of proof. The Court held that no binding agreement, whether written or oral, had been established between the Plaintiff and the Defendants for the payment of introducer fees, and there was no credible evidence of any express promise by D2 to pay the commission claimed.
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The relationship between the Plaintiff and D1 was confined to the existing principal–agent framework under the unit trust agency arrangement, and the Plaintiff failed to prove that she had authority to act for D2 in the manner alleged.
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The Court further accepted that the Plaintiff did not possess the requisite regulatory approval or registration in relation to D2, and considered that such non-compliance undermined the enforceability of the alleged claim. On the facts, the Court found that the Plaintiff had not proven that she was the effective cause of either the UKM or PTPTN mandates. The Court also found that mere introduction or attendance at meetings was insufficient absent proof that her efforts were the operative and causative factor in securing the investments.
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Finally, the Court also found no conclusive proof of an agreed commission rate and held that the alternative claim in quantum meruit was not made out, as the Plaintiff failed to establish the reasonable value of her services or unjust enrichment.
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In Ng Hoo Kui & Anor v Wendy Tan Lee Peng (Administratrix of the Estate of Tan Ewe Kwang, Deceased) & Ors [2020] 12 MLJ 67 (FC), the Federal Court reaffirmed that an appellate court should not interfere with findings of fact unless the trial judge is ‘plainly wrong’. The court must not substitute its own view merely because it would have reached a different conclusion.
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The rationale is clear and it is this. The trial judge enjoys the audio-visual advantage of observing witnesses. The appellate court acts only on the record. Intervention is justified only where findings are irrational, unsupported by evidence, or involve a misdirection in law.
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It is also apposite to refer to the guidance provided by Zabariah Yusof, FCJ in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (Administratrix of the Estate of Tan Ewe Kwang, Deceased) & Ors [2020] 12 MLJ 67 (FC) as follows: “It was a long-settled principle, stated and restated in domestic and wider common law jurisprudence, that an appellate court should not interfere with the trial judge’s conclusions on primary facts unless satisfied that he was plainly wrong ...The ‘plainly wrong’ test operates on the principle that the trial court has had the advantage of seeing and hearing the witnesses on their evidence as opposed to the appellate court that acts on the printed records. …” … What is pertinent is that, the ‘plainly wrong’ test is not intended to be used by an appellate court as a mean to substitute its own decision for that of the trial court on the facts.… an appellate court should not interfere with the factual findings of a trial judge unless it was satisfied that the decision of the trial judge was ‘plainly wrong’ where in arriving at the decision it could not reasonably be explained or justified and so was one which no reasonable judge could have reached. If the decision did not fall within any of the aforesaid category, it is irrelevant, even if the appellate court thinks that with whatever degree of certainty, it considered that it would have reached a different conclusion from the trial judge… rather than adopting a rigid set of rules to demarcate the boundaries of appellate intervention insofar as findings of fact are concerned, the ‘plainly wrong’ test as espoused in decisions of this court should be retained as a flexible guide for appellate courts. As long as the trial judge’s conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate court feels like it might have decided differently is irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts.” … “the Court of Appeal had erroneously applied the ‘plainly wrong’ test in a broad and general manner. The Court of Appeal erred in arriving at its conclusion without identifying specifically why the learned trial judge’s findings were plainly wrong on the key issues, … it had erred in taking the approach that it could, on an assessment of the evidence before the trial judge, reach a different conclusion on the facts from that of the learned trial judge because it disagreed with it.” … “It is not sufficient for the Court of Appeal to reverse the findings on fact merely because on a particular point of evidence, it disagreed with the conclusion made by the trial court on whether one party or the other is to be believed on the evidence that they gave in court. Although there may be inconsistencies in the evidence which could mean that another judge would have been persuaded to reach a different conclusion, this is not relevant when considering if a trial judge’s findings of fact could be overturned. The task of the trial judge is hard enough, without having to deal with every single piece of evidence which may emerge in the course of the trial. If such a requirement was to be imposed on a trial judge then their task in hearing a case would be very tedious and the time taken to produce judgments would increase.”
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The key takeaways therefore may be summarized as follows: i. First, the appellate court should not interfere with the lower court’s findings, unless they were plainly wrong. This is because the latter had the audio-visual advantage of accessing the witnesses, while the former only acts on printed records. ii. Second, an appeal is not a substitution exercise. The mere fact that the appellate court might have reached a different conclusion is insufficient. To interfere, the lower court’s decision must be a decision which no reasonable judge could have reached. The lower court should be accorded a ‘margin of appreciation’. iii. Third, a broad or general observation is insufficient. Before appellate intervention is warranted, the appellate court should specifically identify the key issues which were plainly wrong. iv. Fourth, a finding of fact cannot be reversed merely due to disagreement on a particular point of evidence. Otherwise, trial judges would face an unrealistic or overtly cumbersome burden.
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I heard the appeal bearing in mind these salutary observations. ANALYSIS AND REASONS Issue 1: Illegality under CMSA/SC Guidelines
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The statutory framework is clear. Section 58 and 59 CMSA prohibit any person from carrying out regulated activity or acting as representative without licence. The provisions read as follows: Section 58(1) No person shall whether as a principal or agent, carry on a business in any regulated activity or hold himself out as carrying on such business unless he is the holder of a Capital Markets Services Licence or is a registered person. Section 59(1) No person shall act as a representative in respect of any regulated activity or hold himself out as doing so unless he is the holder of a Capital Markets Services Representative’s Licence for that regulated activity or is a registered person with respect to that regulated activity.
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38.
Schedule
Schedule 2 CMSA defines “dealing in securities” as follows: Dealing in securities" means, whether as principal or agent: ... (b) making or offering to make with any person, or inducing or attempting to induce any person to enter into or to offer to enter into- (i) any agreement for or with a view to acquiring, disposing of, subscribing for or underwriting securities; or (ii) any agreement, other than a derivative, the purpose or avowed purpose of which is to secure a profit to any of the parties from the yield of securities or by reference to fluctuations in the value of securities. 39. The Plaintiff’s own pleadings describe her role in allegedly arranging meetings, facilitating investment mandates, and inducing institutional investment from UKM and PTPTN for the purpose of these institutions obtaining or subscribing for securities with D2. The purpose of such subscriptions was for these institutions to obtain profit from the yield of securities. 40. I find that the learned SCJ was right in holding that the Plaintiff’s activities as described in her pleadings fall squarely within the regulated activity as defined in Section 2 of the CMSA. As she was not licensed under the CMSA when she carried out her alleged “work” with UKM and PTPTN, any services she rendered will be in contravention of the CMSA. It is no defence under the CMSA for the Plaintiff to say that D2 did not have a platform for registration of her license. The Plaintiff knew or ought to have known that carrying out such services without licence is illegal under the CMSA. Hence, whatever “work” or “services” she did where UKM and PTPTN are concerned, she did at her peril. 15 41. The Plaintiff also does not dispute that she was not licensed or registered with D2 as a Marketing Representative. 42. The SC Guidelines define a Marketing Representative as an introducer registered with the principal. SC Guidelines, Item 2.01 defines “Marketing Representative (MR)” as “a person who acts as an Introducer for a principal, undertakes marketing of the services, provides client support services and is registered with the principal under these Guidelines”. 43. In cross-examination, the Plaintiff’s own witness (“SP1”) accepted that the Plaintiff was not registered as an MR. Her evidence is as follows: PD : Kalaulah Plaintif tidak merupakan seorang marketing representative, maka, Plaintif tidak boleh menjalankan apa-apa aktiviti sebagai seorang marketing representative. Puan setuju? Tadi saya ada tunjukkan kepada Puan apakah peranan dan tugas seperti marketing representative. Kalau seseorang itu tidak berdaftar sebagai satu market rep, maka, adakah Puan setuju bahawa beliau tidak boleh menjalankan aktiviti sebagai seorang market rep? SP1 : Setuju. 44. Based on the documentary and oral evidence, it is beyond doubt that the pleaded services allegedly rendered by the Plaintiff were services carried out by her without the requisite registration with D1 or D2 (as the principal) and were in contravention of the provisions under the SC Guidelines. 45. The Plaintiff seems to suggest that the Defendants are estopped from raising her lack of licence or registration as D2 did not have a platform to enable her to be registered under the relevant provisions. I find this submission misplaced. First, the provisions are designed by the legislature to protect the general public to ensure only properly qualified and licensed individuals are allowed to carry out the regulated activities. Allowing the Plaintiff’s claim goes against the manifest intention of Parliament. 46. Secondly, estoppel does not defeat statutory provisions. In Silver Corridor Sdn Bhd v Gallant Acres Sdn Bhd [2016] 5 MLJ 1 (FC), Ramly Ali FCJ held as follows: “ … the Plaintiffs’ claim is based on statutory provisions of s 293 of the CA read together with s 52 of the BA. These statutory provisions, as we have discussed earlier, are clear and unambiguous. Estoppel, being an equitable principle cannot operate to defeat clear statutory provisions of law. This settled principle of law was adopted by Edgar Joseph Jr in United Malayan Banking Corporation Bhd v Syarikat Perumahan Luas Sdn Bhd (No 2) [1988] 3 MLJ 352 when His Lordship ruled that: ‘The defence of estoppel accordingly fails since there cannot be an estoppel to evade the plain provisions of a statute, ... particularly when the non-compliance goes to the root of the thing’. 17 47. The totality of the evidence shows that the Plaintiff’s alleged activities in getting investments from UKM and PTPTN were prohibited under the CMSA and the SC Guidelines. The learned SCJ was therefore entitled to treat illegality as a threshold bar. She was correctly guided by the evidence and concluded in favour of the Defendants on the illegality issues. I do not find that conclusion to be either irrational or unsupported. Issue 2: Existence of Contract / Undertaking 48. The Plaintiff’s pleaded case under this heading is found in paragraphs 9, 10 and 23 of her statement of claim. They read as follows: Para 9 … In the year 2014 the Plaintiff had a meeting with [SD1] and [SD2], Head of Agency for [D1] to discuss on the potential of the Plaintiff prospects to introduce investors for [D1] and to get a Direct Mandate with D2 for UKM.” Para 10 The Plaintiff had later a Meeting with [SD1], who told her that she will be paid, the introducer fee between 25%–35% off the profit sharing from the annual management fee. Para 23 … Defendant breached the agreement or undertaking with the Plaintiff and refused, reluctant and failed to pay the Plaintiff for the services rendered by the Plaintiff as Introducer / Negotiator / Agent / Marketing Representative to the Defendant … 18 49. The burden lay on the Plaintiff to prove a concluded agreement. In this regard, having perused the Statement of Claim, I find that the pleading is fatally lacking on a proper plea of any contract or agreement. 50. The Appellant merely pleaded that she would meet with the Defendant’s first and second witness (SD1 and SD2) to introduce investors for direct mandate. Even then, the pleading only alludes to UKM. Nothing is pleaded on PTPTN. 51. There is neither a plea nor evidence adduced as to any written introducer agreement. There are no contemporaneous documents evidencing a binding commitment by the Defendants to pay any percentage of fees, much less on the 25%-35% of the annual management fees for the private mandate as claimed by the Plaintiff. 52. I take cognisance that the amounts involved in the investments by UKM and PTPTN total RM125 million. This is not a small amount. The Plaintiff’s claim for her commission amounts to RM271,875. It beggars belief that the Plaintiff would risk rendering work or services on such a large scale without so much as a written contract. Neither was there any oral evidence adduced to show the existence of any contract between the parties. 53. The Plaintiff produced voluminous documents including emails and WhatsApp conversations but these too do not prove the existence of any such agreement as the Plaintiff wished the Court to believe. If at all, the email shows that any payment for a Marketing Representative is subject to management approval. This is contained in the email dated 11 October 2017. In the said e-mail, the Plaintiff requested that she be advised on the payment for Marketing Representative. SD2 then replied as follows: Dear Azlina The proposed fee for Marketing Rep is max 30% of the annual fee charged to be payable monthly. There is another comm based on the performance fee (80% investor, 20% management), ie 20% on the fee to be earned by the management (20% of the 20%). All this is subject to the final approval of our management. 54. The documentary evidence before the lower Court was inconsistent with the existence of a concluded contract. There was no oral evidence adduced that supported the Plaintiff’s allegation of the existence of any contract between the parties. As between the Plaintiff’s self-serving oral evidence and the contemporaneous documentary evidence, the trial judge correctly accepted the latter and concluded that there was no binding obligation for the Defendants to make any payments to the Plaintiff. I hold that it was a factual determination firmly anchored within permissible bounds and is not one where appellate intervention is warranted. Issue 3: Causation 55. The Plaintiff bore the burden of proving that her acts caused the UKM and PTPTN agreements. The evidence adduced, meanwhile, showed institutional dealings and multiple actors involved. 56. Evidence demonstrates that the investment materialised through independent institutional processes unrelated to the Plaintiff’s efforts. The relationship between UKM and D1 pre-dated the alleged introduction by the Plaintiff by many years. UKM had been dealing with entities within the RHB group long before the events relied upon by the Plaintiff. The mandate ultimately awarded was therefore not the product of a fresh introduction engineered by the Plaintiff, but the continuation or development of an existing institutional relationship. 57. I find that although the Plaintiff may have attended meetings or facilitated preliminary discussions, she did not participate in the substantive structuring, negotiation, or approval processes that culminated in the mandate. The investment required internal deliberations within UKM, including review by its investment and governance committees, as well as eventual regulatory and ministerial approvals. These processes were undertaken at the institutional level between UKM and D2, independent of the Plaintiff. 58. There was a significant temporal gap between the Plaintiff’s alleged involvement and the eventual award of the mandate. The mandate was only formalised after further presentations, internal assessments, and approvals in which the Plaintiff had no involvement. This temporal discontinuity, to my mind, effectively negates any suggestion that her earlier acts were the operative cause of the transaction. 59. It is axiomatic that in transactions of this nature, mere introduction or attendance at meetings does not entitle a claimant to commission unless the claimant proves that her efforts were the ‘effective cause’ or causa causans of the transaction (see: Miller v Radford [1903] 19 TLR 575). In this regard, the Plaintiff failed to prove that but for her efforts, the mandate would not have been secured. Even if the Plaintiff initially introduced contact, such introduction was not shown to be the proximate, dominant, or effective cause of the final mandate. 60. In the premises, the Plaintiff has failed to discharge her burden of proving that she was the effective cause of the UKM investment. 61. As for the PTPTN engagement, again, while the Plaintiff may have participated in early discussions or facilitated initial contact, she was not involved in the subsequent negotiations, structuring of the mandate, or formal presentations that led to PTPTN’s eventual investment. 62. The decision-making process within PTPTN involved multiple internal committees and layers of approval, including evaluation of investment products, risk profiles, and compliance considerations. The Plaintiff had no role in these substantive evaluation stages. 22 63. The subsequent dealings and presentations to PTPTN were conducted without the Plaintiff’s involvement. There were later meetings and proposals in which the Plaintiff was neither present nor consulted. This, to me, demonstrates that the eventual mandate was secured independently of the Plaintiff’s earlier involvement. 64. As with the UKM engagement, I find that the mere introduction, attendance at meetings, or preliminary facilitation is insufficient to ground a claim for commission. The Plaintiff must prove that her actions were the effective and causative factor leading to the concluded transaction. The Plaintiff has not discharged this burden. 65. Then, there is again the temporal gap between the Plaintiff’s alleged acts and the final investment decision by PTPTN. The Plaintiff alleges that her engagement was in 2014. As at 2019, no investment took place. The third witness for the Defendant (SD3) then came into the picture. After SD3’s involvement, the PTPTN investment materialised culminating in the signing of an agreement between PTPTN and D2 on 12 April 2021. This timeline further weakens any causal nexus as the eventual placement occurred after further institutional processes and interactions which were not shown to be connected to the Plaintiff’s involvement. 66. In the premises, the Plaintiff has not proven that she was the effective cause of the UKM and PTPTN investments. On the evidence, the learned SCJ found no causal link between the Plaintiff’s alleged involvement and the investments concerned. The Plaintiff did not call any witnesses from either UKM or PTPTN to prove that she was in fact the cause of the investments. The findings by the learned SCJ in this regard were a quintessential factual finding. The findings are supported by the evidence adduced. Those findings cannot be said to be plainly wrong. Issue 4: Industry Rate / Quantum Meruit 67. The Plaintiff merely claimed for industry rate without so much as bringing in any evidence to prove what such rate is. There is absent any expert evidence on what was being claimed as the industry rate. The Plaintiff admitted in cross-examination that there is no evidence of industry rate before the trial court. 68. Industry rate ought to be properly pleaded and reasoned by reliance on expert evidence. In U Television Sdn Bhd v Comintel Sdn Bhd [2017] 5 MLJ 292 (FC), the Federal Court held that technical issues which require expert witness’ evidence shall only be decided upon the submission of expert evidence pursuant to the Evidence Act 1950. This is what the Court held: “The Plaintiff’s witnesses, namely PW2 and PW3 were witnesses of facts and could not be characterised as experts. It was not, but was found by the learned High Court judge, a question of accepting the testimony of Plaintiff’s witnesses PW2 and PW3 and disbelieving the testimony of the defendants’ witnesses, DW1 and DW2, on the issues raised. There being no expert evidence, the learned High Court judge was in no position to make a determination of these technical issues. … … when it was determined that there was a need for technical evidence, it was incumbent on the Plaintiff to lead evidence through experts. It did not do so and by reason of that failure had failed to discharge its ‘burden of proof’ under ss 101 and 102 of the Act. Consequently the ‘onus of proof’ did not shift to the defendants to dislodge the assertions made by the Plaintiff as the claimant.” 69. Judicial notice cannot be taken of alleged industry rates. In Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd [1986] 2 MLJ 30 (SC), Syed Agil Barakbah SCJ held that an estate agent’s commission is not a matter which can be taken judicial notice of. The Court held: “... we do not think that it has been repeatedly recognised by the courts in this country, superior or otherwise that there exists a custom that a real estate agent is entitled to a commission of the purchase price and that the commission is at 2% thereof. There may, however, be a common practice that estate agents are paid commissions either by the vendor or by the purchaser or sometimes by both. That is a rule which yields to circumstances and depends on negotiations between the parties … it has not developed into a recognised custom or usage as to entitle it to be judicially noticed. Whether an agent or broker is entitled to any commission depends on the agreement between the parties and has to be proved by positive evidence.” 70. The Plaintiff alternatively seeks payment of commissions on the basis of quantum meruit. In Wisma Panti (Johor) Sdn Bhd v Wan Yin Sdn Bhd [2008] MLJU 696 (CA), Abdul Malik Ishak JCA held: “The Latin term “quantum meruit” means literally “as much as he has earned”. Usually a quantum meruit will be awarded where one party has conferred a benefit on another in circumstances where he or she cannot be compensated or remunerated for that benefit in any other manner ...” 71. A claim for quantum meruit presupposes that service was rendered by the Plaintiff to the Defendants and such service benefitted the Defendants. The rendering of service per se without more is insufficient. In Syarikat Binaan Utara Jaya (a firm) v Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 (CA), the Court held: “… A claim in quantum meruit would be made on the basis that the respondent employer had derived a benefit from the work done by the appellant contractor and; if this is so, a reasonable remuneration has to be paid to the contractor. But the learned judge of the High Court found that there was no evidence to support the appellant contractor’s claim for quantum meruit. We agree with the findings of the learned judge of the High Court in regard to the second issue. 72. The learned SCJ found the Plaintiff failed to prove a causative benefit attributable to her. The learned SCJ also found there was absent any evidence of rates on industry practice as well as the benefit element where a claim on quantum meruit was concerned. On the evidence before the trial court, such finding was not perverse. CONCLUSION 73. I have perused the appeal records and the grounds of judgment of the learned SCJ. The learned SCJ correctly identified the issues, applied the proper legal principles, and made findings supported by evidence. 74. The appellate court’s function is not to retry the case. It is to determine whether the trial judge was plainly wrong. On the record before me, she was not. 75. The lower Court’s decision falls well within the range of reasonable determinations open to a trial court. There is therefore no basis for appellate intervention. 76. Accordingly, the appeal was dismissed with costs. Dated the 19th day of February 2026 -sgd- ……………………………………………………………………… MUHAMMAD ADAM @ EDWARD BIN ABDULLAH Judicial Commissioner (Commercial Division NCC 4) High Court of Malaya In the Federal Territory of Kuala Lumpur, Malaysia Counsel for the Appellant : Annie Gomez Messrs. Kamarudin & Partners Counsel for the Respondents : Lee Xin Div Messrs. Gan Partnership CASE REFERENCE: 1. Ng Hoo Kui & Anor v Wendy Tan Lee Peng (Administratrix of the Estate of Tan Ewe Kwang, Deceased) & Ors [2020] 12 MLJ 67 (FC) 2. Silver Corridor Sdn Bhd v Gallant Acres Sdn Bhd [2016] 5 MLJ 1 (FC) 3. Miller v Radford [1903] 19 TLR 575 4. U Television Sdn Bhd v Comintel Sdn Bhd [2017] 5 MLJ 292 (FC) 5. Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd [1986] 2 MLJ 30 (SC) 6. Wisma Panti (Johor) Sdn Bhd v Wan Yin Sdn Bhd [2008] MLJU 696 (CA) 7. Syarikat Binaan Utara Jaya (a firm) v Koperasi Serbaguna Sungai Glugor Bhd [2009] 2 MLJ 546 (CA) LEGISLATION REFERENCE: 1. Section 71 of the Contracts Act 1950 2. Evidence Act 1950 3.
Schedule
Schedule 2; Section 2; Section 58; Section 59; Section 59A; of the Capital Markets and Services Act 2007
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