Bestinet Sdn Bhd v Ghl Epayments Sdn Bhd (WA-22NCvC-692-09/2019)

The dispute between the Plaintiff and the Defendant arises out of the contract executed based on the quotation dated 5-4-2017 to develop, manage and maintain an e-wallet white labelling application platform.

Parties agreed that the following issues are to be determined by this

2.1 Whether there was a valid and binding contract between the Plaintiff and the Defendant?

2.2 Whether the Defendant has made the following wrong representations to the Plaintiff?

That the Defendant is the provider of the e-wallet licensed by Bank Negara Malaysia.

That the Defendant failed to inform the Plaintiff that MRuncit is the e-wallet provider licensed by Bank Negara Malaysia and will be managing the project for the Plaintiff.

That the Defendant represented a larger capacity of the e-wallet.

That the Defendant is able to complete the Phase 2 project by February 2018.

That the Defendant can obtain the approval for the e-wallet from Bank Negara Malaysia.

That the Defendant is authorized and licensed to obtain the necessary approvals for the e-wallet from Bank Negara Malaysia to increase the capacity of the e-wallet.

Although this was not stated in the Issues to be Tried by parties, I note that the following issues should be determined by this Court based on the pleadings. They are: -

3.1 Whether the Defendant breached the contract by failing to prepare, manage, and maintain the application (e-wallet) for the Plaintiff under the terms of the contract.

3.2 Whether the Defendant breached the contract by failing to obtain the approval from Bank Negara Malaysia for the said application (e-wallet).

3.3 Whether the termination of the contract by the Plaintiff is wrong. S/N KGdtt530qka2dq8VvSoNKg 4 3.4 Whether the Plaintiff is contractually bound to pay the Defendant for the invoices issued dated 31-12-2018 and 31- 5-2019.

Corollary to the above issues, this Court will also determine whether the Plaintiff or the Defendants are entitled to the damages and remedies pleaded in their Statement of Claim and the Defence and Counterclaim.

The representatives of the Plaintiff and the Defendant met sometime in January 2017 to explore and discuss the proposal to develop an e-wallet for the Plaintiff’s use.

The said meeting was attended by the following individuals:

Representatives from the Plaintiff; - Azril Rizal bin Abdullah. - Azizul Othman

Representatives from the Defendant; - Kenneth Yoh Khai Siang - Tee Kean Kang

Parties could not agree whether the representatives of MRuncit Commerce Sdn Bhd were present at the said meeting. The Defendant contends that the one Aaron Lee Chin Wee, the Chief S/N KGdtt530qka2dq8VvSoNKg Executive Officer of MRuncit and one William, a freelance advisory of the said company.

Parties agreed that the Plaintiff issued a quotation dated 5-4-2017 and this was agreed to by the Defendant.

The quotation contained, inter alia, the following terms: -

8.1 The Plaintiff agreed to a one-time fee of RM 800,000.00 for the Bestpay Mobile Customer App, Merchant CRM Application, Database and Customer / Administration Web Portal Access for Membership Administration, Maintenance and Reporting.

8.2 A one-time fee of RM 75,000.00 for system design and project implementation management based on 3 months projected timeline.

8.3 All the fees chargeable are subject to applicable GST at the material time.

8.4 These one-off fees are to be paid following the following timelines - 20% of total costs (RM 175,000.00) is to be paid by the Plaintiff on the kick-off date of the project. - 20% of total costs (RM 175,000.00) is to be paid by the Plaintiff upon SIT (system integration testing) readiness / UAT (user acceptance test) readiness. S/N KGdtt530qka2dq8VvSoNKg - 20% of total costs (RM 175,000.00) is to be paid by the Plaintiff upon the completion of UAT and the production acceptance for phase 1. - 20% of total costs (RM 175,000.00) is to be paid by the Plaintiff upon the completion of UAT and the production acceptance for phase 2. - 20% of the remaining contract sum (RM 175,000.00) is to be paid upon the completion of the project.

The aforesaid quotation was accepted by the Defendant and was dated 18-4-2017. The Defendant however contends that the document evidencing the Plaintiff’s acceptance was only issued to it sometime in July 2017.

The Plaintiff had also purchased servers from third parties as seen in the invoices and purchase order on various dates beginning from 29-5-2017.

An invoice was issued by the Defendant to the Plaintiff dated 6-7- 2017, under the above payment timeline, for the sum of RM 185,000.00 (RM 175,000.00 plus GST at RM 10,500.00). This sum was paid by the Plaintiff.

The documents indicate that the Defendant had undertaken work regarding the project. I refer to the following documents and correspondence exchanged between parties: - S/N KGdtt530qka2dq8VvSoNKg 7 12.1 Email from Masri Mohd on behalf of the Plaintiff to William Phang of the Defendant dated 31-7-2007 on the “skin” to be used for the application and the functions required for the said application.

12.2 Email from Masri Mohd to William Phang dated 2-8-2017 inviting participants to a meeting on 3-8-2017 to discuss the development of the application.

12.3 Email from Masri Mohd to William Phang dated 13-9-2017 inviting participants to a meeting on 14-9-2017 for a demonstration of the BestCash Mobile application.

12.4 Email exchanged between Masri Mohd and William Phang dated 18-9-2017 containing comments to a powerpoint presentation on BestCash application.

12.5 Email from Masri Mohd to William Phang dated 26-9-2017 inviting participants to a meeting on 27-9-2017 inviting participants to a BestCash UAT briefing session to be conducted by the MCash team.

12.6 Email from Masri Mohd to William Phang dated 25-10-2017 inviting participants to a meeting on 26-10-2017 to discuss the development of the application, rollout plan, 2nd payment deliverables and other pending issues.

12.7 Emails exchanged between Masri Mohd and William Phang dated 25-10-2017 and 26-10-2017 confirm the work S/N KGdtt530qka2dq8VvSoNKg undertaken, acknowledge the work delivered by the Defendant and that the Defendant is entitled to issue its second invoice for 20% of the amount of work undertaken for the said project.

12.8 An invoice dated 26-10-2017 was issued by the Defendant for the 2nd tranche of the contract stage and this invoice was fully paid by the Plaintiff.

12.9 Email exchanged between Masri Mohd and William Phang dated 31-10-2017 discussing the use of Bestinet’s logo, BestLala skin and templates to be used. It was also stated in the email that the “MRuncit team will showcase these templates to BNM for submission tomorrow for their vetting and clearance.

12.10 Inviting participants to a meeting on 3-8-2017 to discuss the development of the application.

12.11 Letter from MRuncit to Bank Negara Malaysia dated 1-11- 2017 notifying the said authority that MRuncit will launch Mcash BestLala. This is being introduced with MRuncit’s partner Bestinet Sdn Bhd who will act as the marketing and business development agent for the MCash Bestlala mobile application. MRuncit shall be the E-money and E-wallet source and the size of the wallet will be at the maximum amount of RM 200.00. S/N KGdtt530qka2dq8VvSoNKg 9 12.12 In the Attachment to the letter dated 1-11-2017 from MRuncit, it is stated that Bestinet Sdn Bhd, the Plaintiff, is the program owner, planner and marketing agent for MCash Best Lala and that MCash Best Lala is operated by MRuncit.

12.13 Email from William Phang to Masri dated 20-11-2017 recording the arrangement going forward for the project. The Plaintiff will provide information to MRuncit to enable the latter to resubmit with Bank Negara Malaysia.

12.14 The aforesaid email also recorded that: -

Phase 1 was fully delivered.

Phase 2 is targeted to be completed by 31-12-2017 and delivered by 31-3-2018.

Phase 3 is targeted to be fully completed by 28-2-2018 and delivery roll out by 31-5-2018

MRuncit will provide system support and training for the MCash Best Lala application.

12.15 Imran Shafie’s emails dated 24-11-2017 and 28-11-2017 to the Plaintiff’s representatives informing them that MRuncit has since written to Bank Negara Malaysia for approval and a copy of the letter was forwarded to the Plaintiff in the said email.

12.16 The Plaintiff issued a letter dated 22-1-2018 to MRuncit confirming that it, Bestinet Sdn Bhd, is the service provider and operator of the Foreign Worker Centralized Management System under the authority of the Ministry of Home Affairs. S/N KGdtt530qka2dq8VvSoNKg The email exchanged between Masri of the Plaintiff and Imran Shafie of MRuncit indicates that Bank Negara Malaysia wanted further information as to the status of the project and the approval from the Ministry of Home Affairs. This issue had to be addressed before any approval could be obtained.

12.17 Email from Imran Shafie of MRuncit to Bank Negara Malaysia dated 23-1-2018 attaching a revised submission of additional information to the authority together with the letter from the Plaintiff confirming the continuity of the FWCM programme.

12.18 Letter from Bank Negara Malaysia dated 13-2-2018 to MRuncit requesting, inter alia, information relating to the relevant approvals from the Ministry of Home Affairs to authorize the use of the Mcash Best Lala application for foreign workers.

12.19 Letter from MRuncit to Bank Negara Malaysia dated 27-2- 2018 attempting to comply with the directions given by the said authority.

12.20 Several subsequent UATs were undertaken by parties as seen in the emails exchanged dated 28-3-2018, 12-4-2018, 18-4-2018, and 3-5-2018.

12.21 Letter from Bank Negara to MRuncit dated 29-3-2018 requesting the latter to provide, inter alia, the approval from the Ministry of Home Affairs on the use of the MCash Best S/N KGdtt530qka2dq8VvSoNKg Lala application for foreign workers, without which the application will not be approved by the said Central Bank.

12.22 MRuncit’s reply to Bank Negara Malaysia dated 13-4-2018 where MRuncit attached a copy of (i) its compliance status with Bank Negara’s approval conditions and (ii) informing Bank Negara Malaysia that it is still waiting for the letter of authorization from the Ministry of Home Affairs regarding the use of the MCash Best Lala application.

12.23 Email exchanged dated 14-5-2018 between Masri and Aaron of the Defendant where Masri accepted the functional test of the application.

12.24 A meeting was also held on 23-5-2018 where parties discussed, among others, the changes to the project timeline and the payment schedule for the project.

12.25 Email exchanged between Imran of MRuncit with Bank Negara Malaysia dated 29-6-2018 where Bank Negara again requested a copy of the letter from the Ministry of Home Affairs authorizing the use of the application for foreign workers. Imran confirmed that Bestinet is still waiting for the letter from the Ministry of Home Affairs to enable the use of the application in particular the Virtual ID function.

Email issued by Kenneth to Masry and Fadzly A Wahab, the CEO of the Plaintiff, dated 15-6-2018 requesting an update as to the S/N KGdtt530qka2dq8VvSoNKg status of the draft addendum forwarded earlier and the discussion as to the amended payment and timeline changes.

Fadzly A Wahab subsequently issued an email to Kenneth dated 21- 8-2018 informing the latter that Hairul will be the person in charge of the project. This is in response to Kenneth’s inquiry on the status of payment and the amended addendum forwarded to the Plaintiff by the Defendant earlier. It was also stated that Masri has since left the Plaintiff.

Kenneth also stated in the aforesaid email that the Defendant did complete the works required and is awaiting confirmation on the payment timeline for work done.

Parties eventually agreed that the 20% of the sums to be invoiced for the 3rd tranche of the project will be divided into 2 equal parts. The first part of this payment will be paid immediately by the Plaintiff to the Defendant and the second part will be paid where the application is operational and accepted by the Plaintiff and all documents are ready and accepted by the Plaintiff. This is seen in the email dated 12-11-2018 and 5-12-2018 exchanged between Kenneth and Hairul Anuar, now representing the Plaintiff.

Emails were exchanged between Kenneth and Hairul dated 10-1- 2019 where Kenneth attached a copy of the invoice dated 31-12- 2018 for 10% of the contract sum being the 3rd tranche and requested an opportunity to meet to give a physical copy of the invoice and for the test of the MCash Best Lala application.

Email issued to Kenneth by Ismail bin Mohd Noor from the Plaintiff dated 31-1-2019 in response to the request for payment from Kenneth. Ismail stated that they will undertake a due diligence report and present the same to the Plaintiff board for deliberation.

Email issued by Kenneth to Ismail dated 4-2-2019 attaching the latest APK (the file format used by an android operating system) and technical specification for the Plaintiff’s consideration.

Email issued by Kenneth to Ismail dated 30-5-2019 attaching the second invoice of the 3rd tranche. The invoice is dated 31-5-2019 for a total sum of RM 92, 750.00.

I also note that the notice of termination issued by the Plaintiff’s solicitors dated 1-8-2019 and the response issued by the Defendant’s solicitors dated 8-8-2019.

The following witnesses gave evidence on behalf of the parties from 9th April 2021 to 28th January 2022: - Plaintiff 22.1 Ismail bin Mohd Noor 22.2 Hairul Anuar bin Rapai Defendant 22.3 Tee Kean Kang 22.4 Yeo Khai Siang (Kenneth) S/N KGdtt530qka2dq8VvSoNKg 14 22.5 Imran bin Shafie 22.6 Nik Dalila binti Mohd Roni E. Decision of this Court

After considering the evidence tendered by parties and the written submissions, I find in favour of the Defendant and dismiss the Plaintiff’s claim in toto.

I find that the Plaintiff has failed to prove its claim on the balance of probabilities and that the Defendant has shown that it has completed its part of the bargain under the terms of the contract and that the 3rd tranche of the contract sum is due and payable as invoiced by the Plaintiff to the Defendant.

My reasoning for coming to the above conclusion is contained in the following paragraphs. F. Reasoning of this Court

(I) Plaintiff’s Claim Issue 1 – Whether there was a valid and binding contract between the Plaintiff and the Defendant?

I find that it is irrefutable that there was a valid and binding contract between the Plaintiff and the Defendant.

I note that no single written instrument records the detailed terms of the contract, but this is not essential to the creation of a binding contract under Malaysian law. For a contract to come into existence it must be shown that (i) there was consensus ad idem between parties to create legal relations on the essential terms of the contract, (ii) that there was an offer and acceptance between parties and (iii) that there existed consideration of the contract. The formality of an executed instrument is not an essential requirement.

I refer to the decision of the Federal Court in Deutsche Bank (Malaysia) Bhd v MBF Holdings Berhad and MBF Cards (M’sia) Berhad [2015] 8 CLJ 1068, where Jeffrey Tan FCJ stated: - “Unless required by law, the formality of an executed agreement is an exception rather than the rule. Where there is no executed agreement, the court will be required to find whether negotiations and exchanges had crystallised into a concluded, albeit informal, contract. Each case must turn on its own facts. “The established rule is that in interpreting a contract, it is permissible to look at the factual matrix, but the evidence of negotiations and statements of subjective intention must be disregarded … But it is inapplicable when the issue is, 87 instead, one of contract formation. It is likewise inapplicable when rectification is claimed: evidence of negotiations and all other surrounding circumstances will be received” (Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd per Richardson P, Keith, Blanchard and McGrath JJ). In the case of a complex bargain, it will be more challenging to find the consensus ad idem on the terms. “The general principle in English law is that all contracts are governed by the same principles; and that the rules for the formation, contents and remedies apply equally to all contracts” (Contract Law, An Introduction to the English Law of Contract for the Civil Lawyer by John Cartwright at page 53). Unless required by law, there is no rule that a S/N KGdtt530qka2dq8VvSoNKg complex and intricate bargain cannot be concluded by an informal contract. To ensure that no premature binding contract is concluded through negotiations and exchanges, whether written or oral, it should be made amply clear that all negotiations and exchanges are subject to contract, and that parties are not bound until execution and exchange of a formal contract, as in the 3rd case stated in Masters v Cameron. There is, arguably, a 4th case of ‘subject to contract, similar to the 1st and 2nd cases, arising where the parties to be bound immediately with the expectation to include additional terms to be negotiated upon in a further contract in substitution of the first contract (see Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310 at 317, John R Keith Pty Ltd v 88 Multiplex Constructions (NSW) Pty Ltd & anor [2002] NSWSC 43 at 218 – 237, and Baulkham Hills Private Hospital Pty Ltd v G R. Securities Pty Ltd (1986) 40 NSWLR 622; see also Michael Furmston & G.J. Tolhurst ‘Contract Formation: Law and Practice’ at paras 9.20, 9.61-9.63). There is no special form of words to be used in order that there shall be no binding contract before execution of the agreement, so long as the formality by choice of an executed agreement to bring about a binding contract is disclosed by the language employed as a whole.”

A contract could come into being through correspondences and even by the act of accepting the terms of the quotation. One could see this in Lim Keng Siong & Anor v Yeo Ah Tee [1983] CLJ 231 (Federal Court), Lau Sieng Nguong v Hup Shing Co Ltd [1969] 1 MLJ 190 and Ng Brothers Construction v Kaolin (Malaysia) Sdn Bhd [1985] 1 MLJ 245.

The facts of this case as discerned from the documents indicates that there was a contract between the parties. The quotation issued by the Defendant dated 11-4-2017 was accepted by the Plaintiff. S/N KGdtt530qka2dq8VvSoNKg The quotation constituted the offer to undertake the project planned by the Plaintiff at the total costs quoted. The quote contained the essential terms of the contract, and the terms were accepted by the Plaintiff without any reservations or any amendments.

This was also confirmed by the evidence of the following witnesses: -

31.1 Evidence of Ismail bin Mohd Noor Question 59 - witness statement “Justeru itu, Defendan telah menawarkan perkhidmatannya kepada Plaintif melalui surat Sebut Harga Rasmi bertarikh 5/4/2017 dan Plaintif telah menerimanya melalui Penerimaan sebut harga pelanggan bertarikh 18/4/2017.”

31.2 Evidence of Yoh Khai Seng Question 14 witness statement “Yes. Bestinet signed off the client quotation acceptance at CBD Volume 1 page 23 and CCB page 2 and dated it 18-4-2017. Even though the acceptance by Bestinet was dated 18-4-2017, the acceptance was only conveyed to me some time in July 2017. I recall I collected the acceptance from Encik Azril Rizal bin Abdullah once notified.”

I also find that the terms as agreed by parties at the initial stage are as follows: -

32.1 Payment terms

20% of total costs (RM 175,000.00) is to be paid by the Plaintiff on the kick-off date of the project.

(ii) 20% of total costs (RM 175,000.00) is to be paid by the Plaintiff upon SIT (system integration testing) readiness / UAT (user acceptance test) readiness.

(iii) 20% of total costs (RM 175,000.00) is to be paid by the Plaintiff upon the completion of UAT and the production acceptance for phase 1.

(iv) 20% of total costs (RM 175,000.00) is to be paid by the Plaintiff upon the completion of UAT and the production acceptance for phase 2.

20% of the remaining contract sum (RM 175,000.00) is to be paid upon the completion of the project.

I am however of the opinion that parties had only agreed at the initial stage as of November 2017 on the fees and the general project plan. The Defendant had proposed that the project be undertaken in 3 phases and as seen earlier, payment of the contract sum will be paid in 5 tranches based on the completion of the 3 phases.

However, I do not find any documentary evidence to suggest that the parties had agreed as to the exact date on which the contract was to be completed or any specific date for the completion of each of the phases. The emails exchanged during this period do not indicate that parties had pinned down the exact dates on which the project will be implemented but had only agreed on general timelines for phases and payment structure for the work to be undertaken by the Defendant.

I am aware that the Plaintiff’s witness, Ismail bin Mohd Noor suggests that the Defendant had allegedly promised that the project will be completed in May 2018, and he refers to the email dated 21- 11-2018 issued by Kenneth. The said witness refers to the document attached to the email titled “Proposed Software Design, Implementation & Rollout and Project Repayment Plan (v2)” which does indicate that the Defendant did suggest that the project should be completed in May 2018.

However, this email and the said attachment only came into being after the contract has been duly executed and work started. I also note that the email dated 21-11-2018, was issued after Phase 1 and Phase 2 were completed with the invoices issued and paid. The 1st invoice was issued on 6-7-2017 on the kickoff date of the said project and fully paid and the second invoice was issued on 26-10-2017.

I also find that the email exchanged between the Plaintiff’s representative, Masri Mohd, and the Defendants’ representative, William Phang, dated 20-11-2017 shows that the Plaintiff acknowledges that phase 1 of the project was fully delivered and that the Defendant is entitled to issue the 2nd invoice. The documents also show that work did start and several UATs and SITs were discussed and undertaken between the Plaintiff and the Defendant between the period from 6-7-2017 to 20-11-2017.

The timeline was not set in stone initially but eventually, parties did agree that the following project timeline will be applicable as seen in the aforesaid email dated 20-11-2017: -

An acknowledgement that phase 1 is completed.

(ii) Phase 2 is targeted to be completed by 31-12-2017 and to be delivered by 31-3-2018.

(iii) Phase 3 is targeted to be completed by 28-2-2018 and delivery roll out by 31-5-2018. However, most importantly, the Plaintiff agreed that it will provide detailed information that is required to be submitted to Bank Negara Malaysia. The Plaintiff also agreed that payment for phase 3 will be split into 2 equal payments as indicated in the timeline highlighted in the earlier paragraphs.

Parties then went ahead to change the payment timeline for phase 2 as seen in the emails exchanged between Hairul and Kenneth from 22-11-2018 to 5-12-2018. Parties agreed that the payment for the 2nd phase will also be divided into a further 2 equal parts where

the Plaintiff will pay the first part immediately upon commencement of work and (ii) the remainder will be paid once the UAT is accepted, and all documentation provided to the Plaintiff.

Given the above, I find that there is a binding contract between the Plaintiff and the Defendant based on the terms of the quotation dated 11-4-2017. The terms of the contract were however varied by agreement between parties as seen in the email dated 20-11-2017. The terms of the contract could be summarized as follows: -

20% of total costs (RM 175,000.00) is to be paid by the Plaintiff on the kick-off date of the project.

(ii) 20% of total costs (RM 175,000.00) is to be paid by the Plaintiff upon SIT (system integration testing) readiness / UAT (user acceptance test) readiness.

(iii) 20% of total costs (RM 175,000.00) is to be paid by the Plaintiff upon the completion of UAT and the production acceptance for phase 1.

(iv) 20% of total costs (RM 175,000.00) is to be paid by the Plaintiff upon the completion of UAT and the production acceptance for phase 2. Payment for the 2nd phase is divided into a further 2 equal parts where (i) the Plaintiff will pay the first part immediately upon commencement of work and (ii) the remainder will be paid once the UAT is accepted, and all documentation provided to the Plaintiff.

20% of the remaining contract sum (RM 175,000.00) is to be paid upon the completion of the project. This is to be divided into two invoices and will be paid on (a) phase 3 requirement sign-off and (b) phase 3 delivery.

(vi) The Plaintiff shall provide all necessary documents to obtain Bank Negara Malaysia approval.

At the danger of repetition, I also find that parties did eventually agree on the following: -

An acknowledgement that Phase 1 is completed.

(ii) Phase 2 is targeted to be completed by 31-12-2017 and to be delivered by 31-3-2018.

(iii) Phase 3 is targeted to be completed by 28-2-2018 and delivery roll out by 31-5-2018. S/N KGdtt530qka2dq8VvSoNKg Issue 2 –Allegation of Misrepresentation Whether the Defendant misrepresented the following facts to the Plaintiff ; Sub Issue A - Whether the Defendant represented it was the provider of the e-wallet licensed by Bank Negara Malaysia and the Defendant can obtain the approval for the e-wallet from Bank Negara Malaysia.

Firstly, I must note that the Plaintiff did not allege that the Defendant is guilty of fraudulent misrepresentation. This allegation was not pleaded by the Plaintiff in paragraph 34 of its Statement of Claim. The Plaintiff had only pleaded that the Defendant’s representations were not true and misleading.

It is trite law that the burden of proof lies on the Plaintiff to show that the Defendant had made the above representations that induced the Plaintiff to agree to the terms of the contract. I refer to the judgment of Dzaiddin Abdullah SCJ (as he then was) in KPM Khidmat Sendirian Berhad v Tey Kim Suie [1994] 3 CLJ 1 where it was held that the burden of proof always lies on the Plaintiff to prove his claim.

I also refer to the decision of the Court of Appeal in The Carbon Company Sdn Bhd v Ng Lee Hoon [2017] 6 CLJ 189, where Asmabi JCA stated: - “[49] The law on the burden of proof is so settled. Pursuant to s. 101(1) of the Evidence Act 1950, a party who desires the court to give judgment in its favour as to the legal right or liability bears the burden to prove its S/N KGdtt530qka2dq8VvSoNKg case. The burden of proof on that party is twofold, firstly the burden of establishing a case and secondly the burden of introducing evidence. This burden lies on the party throughout the case and the standard of proof is on the balance of probabilities. Once that party has discharged its evidential burden of proof then the burden would then shift to its adversary. If a party has failed to discharge its burden of proof on the standard required by the law, his adversary does not bear the burden to adduce any evidence. In the case at hand, the plaintiff, a sole proprietor has to discharge her burden of proof to prove her case as well as to introduce evidence in support of her pleaded case. It is not the defendant's duty to fill up the gaps in the plaintiff's case/or be accused of not establishing their defence (see Yeohata Machineries Sdn Bhd & Anor v. Coil Master Sdn Bhd & Ors [2016] 2 CLJ 414; Selvaduray v. Chinniah [1939] 1 LNS 107; [1939] MLJ 253 SC; s. 2 of the Evidence Act 1950; Abrath v. North Eastern Railway Co [1883] 11 QBD 440 (CA)). [50] The question we need to ask ourselves is that, given these factual matrix can the plaintiff be said to have discharged the burden of proof placed on her by the law, on the balance of probabilities. Our answer is in the negative.”

For a claim for misrepresentation, it must be shown that the said representations that are alleged to be false led parties to agree to the terms of the contract. The said representations must be shown to have induced the innocent party to agree to the terms of the contract. In this case, I find that the Plaintiff did not plead any claim for fraudulent misrepresentation.

I refer to Sections 10, 14, and 18 of the Contracts Act 1950 which are reproduced below: - S/N KGdtt530qka2dq8VvSoNKg “"What agreements are contracts 10(1) All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.

"Free consent" Consent is said to be free when it is not caused by -

coercion, as defined in section 15;

undue influence, as defined in section 16;

fraud, as defined in section 17;

misrepresentation, as defined in section 18; or

mistake, subject to sections 21, 22 and 23. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation, or mistake.

"Misrepresentation"9999 "Misrepresentation" includes -

the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

any breach of duty which, without an intent to deceive, gives an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; and

causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement."

The applicable principles of law can be discerned from the decision of the Court of Appeal in Balakrishnan Devaraj & Anor v Admiral Cove Development Sdn Bhd [2010] 7 CLJ 152, where Abdul Malik Ishak JCA summarized the applicable law as follows: - “[25] It is quite apparent that misrepresentation as defined in the Contracts Act 1950 covers situations of innocent misrepresentation as understood in common law. The difference between misrepresentation and fraud is this. In fraud, the person making the representation does not himself believe in its truth. In misrepresentation, the representor may believe the representation to be true. [26] By virtue of s. 19(1) of the Contracts Act 1950, a contract entered into by a party either through innocent or fraudulent misrepresentation is voidable at the option of the party whose consent was so obtained. Thus, the innocent party who had been induced to enter into the contract through an innocent misrepresentation, may choose to set aside the contract of his own accord or by seeking the assistance of the court under the Specific Relief Act 1950 (Abdul Razak Datuk Abu Samah v. Shah Alam Properties Sdn Bhd & Anor Appeal [1999] 3 CLJ 231 CA). [27] To trigger an inducement, two essential elements are necessary. Firstly, the representee must in fact rely on the representor's statement in the contract concerned. Secondly, the representor at the time of entering the contract, must have the intention, or at least realise, that the statement will, or probably will, be relied upon by the representee. S/N KGdtt530qka2dq8VvSoNKg [28] Thus, both the representee's reliance on a misstatement and the representor's intention to induce are material in cases of misrepresentation. The court would infer that the representor intended to induce by looking at the circumstances in which the representation was made. In William Smith v. David Chadwick, John Oldfield Chadwick, Ebenezer Adamson, And Edwin Collier [1883-84] 9 App. Cas. 187, at p. 190, HL, the Earl of Selborne LC had this to say: the intention which the law justly imputes to every man to produce those consequences which are the natural result of his acts.... [29] In I.B.Coaks, C.J. Bunyon, F.E. Watson, W. Cadge, E. K. Harvey, C. Bailey, And J. Cross v. J.F. Boswell and Others [1886] 11 App. Cas. 232, at p. 236, the House of Lords observed through Earl of Selborne that: A man is presumed to intend the necessary or natural consequences of his own words and acts; and the evidentia rei would therefore be sufficient without other proof of intention. [30] A representation is said to be material if by its nature, it displays a tendency to induce the representee to enter into the contract. In Smith v. Chadwick [1881-82] 20 Ch. D 27, at p. 44, CA, Jessel MR aptly said that the representation was: of such a nature as would induce a person to enter into the contract, or would tend to induce him to do so,..... [31] All the representee has to prove is that he was, in fact, induced to enter into the contract by the representor.” (Although the case was reversed on different grounds by the Federal Court see - [2011] 9 CLJ 133)

Reference must be made to the decision of Gopal Sri Ram JCA (as he then was) in Sim Thong Realty Sdn Bhd v Teh Kim Dar [2003] 3 CLJ 22 where the Court of Appeal explained: - “Now the elements of an actionable misrepresentation are well settled. They are set out as follows in Professor McKendrick'sContract Law, 3rd edn, a leading work on the subject: A misrepresentation may be defined as an unambiguous, false statement of fact which is addressed to the party misled and which materially induces the contract. This definition may be broken down into three distinct elements. The first is that the representation must be an unambiguous false statement of fact, the second is that it must be addressed to the party misled and the third is that it must be a material inducement to entry into the contract. Section 18 of our Contracts Act 1950 defines "misrepresentation" as follows 'Misrepresentation' includes:

the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

any breach of duty which, without an intent to deceive, gives an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; and

causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement. This section is ipsissima verba s. 18 of the Indian Contract Act 1872. It is to be noted at once that the definition in that section is inclusive or open-S/N KGdtt530qka2dq8VvSoNKg ended and not exclusive. Hence, the circumstances set out under each of its three paragraphs are not the only instances of misrepresentation to which the section is confined. In our judgment, it is the duty of a court to find the facts and then determine whether those facts fall within one or more of the three paragraphs under s. 18. If they do, then the statement complained of is an actionable misrepresentation. This is the approach adopted in one of the leading cases on the section. In In re Nursey Spinning and Weaving Co. Ltd [1881] ILR 5 Bom. 92, 97, Sargent J said: Now here we have the Company by their Directors acting in their authority, and admittedly in perfect assurance, selling a bill to the Bank on behalf of the Company as a bill upon which the Company was liable, which, however, turns out to be one upon which the Company was not liable. I say, acting within their authority, for the transaction was in its very nature, and was understood by the Bank to be, one for the purpose of raising money for the Company, as provided by clause 102 of the Articles of Association; and, indeed, it was, I think, admitted to be one of the ordinary modes by which spinning and weaving companies, in the course of their business, anticipate the sales of their yarn and piece-goods exported to the China markets. The only difference between the cases I have referred to and the present case is that, in the former, the bill sold was different from what, on the face of it, it purported to be, while in this case it is different from what it was expressly represented to be by the agents of the Company in the ordinary course of business which they were authorised to transact. In all three cases what was sold was different from what the vendor professed to sell; in other words, there was a misrepresentation within the meaning of section 18 of the Indian Contract Act, which, coupled with section 19, provides that a contract shall be voidable when there has been a misrepresentation, 'causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.' It was said that the exception to section 19, which excludes from the operation of the S/N KGdtt530qka2dq8VvSoNKg section the case where the party whose consent was obtained by misrepresentation had the means of discovering the truth with ordinary diligence, is applicable to the present case. But no ordinary diligence would have enabled the Bank to discover that the Company was not liable on this bill. We will in due course express our views on s. 19 of the Contracts Act (referred to in the foregoing passage) and in particular the applicability of the Exception to that section to the facts of this case. For the present, however, we would merely observe that in the instant appeal, as happened in the Nursey case, the very thing that was transacted, namely, the land in question was represented to be something very different from what it actually was. The plaintiff's authorised agent (Wong), as found by the learned judge, expressly represented the land as having access. The truth was quite the contrary. It is therefore difficult to envisage a clearer case of an actionable misrepresentation than the present. …. It is clear from s. 19 (1) that it reproduces the English common law whereby a misrepresentation, whether innocent or fraudulent, would entitle the innocent party to rescind a contract. The Explanation to s. 19(1) enacts the common law requirement that the misrepresentation must induce the contract. Now we think that we should say a word about this point. It has to do with the onus of proof. As a general rule, the burden is on a representee to show that the misrepresentation induced him to enter into the contract: Kuppuswami Chettiar v. Arumugam Chettiar AIR [1967] SC 1395. But this general rule should not be taken too far. This is because in a particular case where the defendant has made a material misrepresentation calculated to induce the plaintiff to act as he or she has acted, and where the loss is consistent with the plaintiff having acted on the misrepresentation as alleged, the legal burden of proof shifts to the defendant to prove that the plaintiff did not rely, at all, on the misrepresentation. (per Finch J in Sidhu Estate v. Bains ((1996-06-07) S/N KGdtt530qka2dq8VvSoNKg BCCA V02469), citing Anderson JA in Parallels Restaurant Ltd v. Yeung's Enterprises Ltd. [1990], 4 CCLT (2d) 59). (emphasis added.) See also, Redgrave v. Hurd [1881] 20 Ch. D 1.

I will now deal with each of the alleged misrepresentations that the Plaintiff alleges were made by the Defendant. I must first determine whether there were representations as alleged by the Defendant. It is for the Plaintiff to show that: - “The first is that the representation must be an unambiguous false statement of fact, the second is that it must be addressed to the party misled and the third is that it must be a material inducement to enter into the contract.”

Therefore, it is for the Plaintiff to prove that the following representations were made by the Defendant: -

50.1 The Defendant is the provider of the e-wallet licensed by Bank Negara Malaysia.

50.2 That the Defendant can obtain the approval for the e-wallet from Bank Negara Malaysia.

3 That the Defendant is authorized and licensed to obtain the necessary approvals for the e-wallet from Bank Negara Malaysia to increase the capacity of the e-wallet.

The main issues raised by the Plaintiff during the trial were whether the Defendant is (i) the provider of the e-wallet licensed by Bank Negara Malaysia and (ii) it could obtain approval from the said central bank for the Plaintiff’s use.

The Plaintiff contends that it did not know that the provider of the e-wallet was MRuncit. It alleges that the Defendant presented that the e-wallet utilized was to be provided by the Defendant and that the Defendant was duly licensed by Bank Negara Malaysia with the ability to extend such license to the Plaintiff for the use of the said e-wallet.

I find the evidence shows that it is common ground that the project involved the use of an existing E-wallet that is known as the MCash E-wallet owned and developed by MRuncit. The existing MCash E-wallet would be reskinned, would be white-labelled for the Plaintiff and would be eventually known as MCash Best Lala. The term White labelling essentially involves the process where a manufacturer develops an item or product and then labels or sells the same product based on the request of the marketer or end purchaser.

The evidence relied on by the Plaintiff to show that there were such representations made by the Defendant lies in the oral evidence of

Ismail bin Mohd Noor and (ii) Hairul Anuar bin Rapai. S/N KGdtt530qka2dq8VvSoNKg 32 55. Ismail bin Mohd Noor in his evidence stated: - S7: Sila terangkan kepada Mahkamah bagaimana Defendan terlibat dalam projek dompet digital tersebut. J: Pada masa itu, Kenneth Yoh Khai Siang ( Knneth Yoh) sedang bekerja di salah sebuah syarikat Plaintif, iaitu BestPay Sdn Bhd. Kenneth Yoh sedia maklum berkenaan keputusan strategic diambil oleh Plaintif untuk meneruskan projek Dompet Digital tersebut. Kenneth Yoh telah menamatkan pekerjaannya di syarikat Plaintif sebelum Plaintif bersetuju untuk membuat perjanjian dengan Defendan. Kenneth Yoh telah mencadangkan kepada Plaintif untuk berbincang dengan syarikat Defendan berkenaan perlaksanaan Projek Dompet Digital tersebut memandangkan syarikat Defendan adalah pengeluar atau pembangun dompet digital ( “ e-wallet issuer/provider”) Syarikat Plaintif telah bersetuju untuk berbincang dengan Defendan atas cadangan Keeneth Yoh. Maka pada atau lebih kurang dalam bulan Aptil 2017 wakil Plaintif iaitu Encik Azril Rizal Abdullah dan Encik Azizul Othman telah membincangkan penyediaan pembangunan dan perlaksanaan Projek Dompet Digital tersebut dengan Kenneth Yoh, S.8 Sila terangkan kepada Mahkamah, adakah Defendan mengetahui yang Bestpay adalah salah sebuah syarikat Plaintif. J: Bestpay sebenarnya ditubuhkan oleh Plaintif untuk memberikan perkhidmatan dan penyelesaian pembayaran kepada warga asing dengan menggunakan dompet digital. Pada masa itu, kakitangan-kakitangan Bestpay ada hadir dalam mesyuarat dan atau perbincangan antara laintif dan Defendan untuk Projek Dompet Digital ini. Defendan semeemangnya mengetahui dan mengakui kehadiran Bestpay di dalam Projek Dompet Digital ini. Selain itu, Defendan juga ada berurusan dengan kakitangan-kakitangan Bestpay semasa mesyuarat dan/atau perbincangan antara Plaintif dan Defendan. S/N KGdtt530qka2dq8VvSoNKg S9 : Sila terangkan kepada Mahkamah hasil perbincangan antara Plaintif dan Defendan berkenaan projek dompet digital tersebut. J : Perbincangan dibuat dengan defendan dan adalah dipersetujui di antara Plaintif dan Defendan bahawa Defendan akan menyediakan dan membangunkan satu aplikasi Dompet Digital untuk Plaintif berdasarkan e-wallet White Labelling Solution dengan kapasiti RM 200,000.00 untuk setiap Dompet Digital pada kos keseluruhan sekali bayar ( one time payment) sebanyak RM 875,000.00 ( termasuk Cukai Barangan dan Perkhidmatan(GST)). Bagi mengenapasti kapasiti ewallet white labelling solution saya merujuk kepada surat MRuncit Commerce Sdn Bhd bertarikh 1/11/2017 kepada Bank Negara Malaysia di mukasurat 34, sehingga 37 IDB2 dan mukasurat 178 hingga 181 ITD Defendan juga telah menerangkan kepada Plaintif bahawa Defendan akan menyediakan, mengendalikan, menguruskan dan menyelenggara aplikasi domept digital tersbut bagi pihak plaintif, termasuk segala urusan kelulusan daripada Bank Negara Malaysia dan pihak-pihak lain yang berkenaan akan diuruskan oleh Defendan. Justeru itu, Defendan telah menawarkan perkhidmatannya kepada Plaintif melalui suatu sebut harga Rasmi bertarikg 5/4/2017 dan Plaintif telah menerimanya melalui Penerimaan Sebut Harga Pelanggan bertarikh 18/4/2017. Salinan Sebut Harga dan Penerimaan Sebut Harga Pelanggan masing-masing bertarikh 5/4/2017 dan 18/4/2017 di mukasurat 22 dan 3 Ikatan Dokumen Bersama Jilid 2 ( IDB1) serta mukarurat 1 dan 2 ITD ( M/s 22 dan 23 IDB1 & m/s 1 dan 2 ITD ditandakan sebagai ekhibit ) S14. Defendan mengatakan bahawa Plaintif mengetahui peranan MRUncit Commerce Sdn Bhd dari awalan Projek Dompet Digital lagi. Adakah ini benar? S/N KGdtt530qka2dq8VvSoNKg J : Perkara ini adalah tidak benar. Hal ini demikian kerana Defendan telah bersetuju untuk mmenyediakan dan membangunkan aplikasi dompet digital tersebut untuk Plaintif memndangkan Plaintif mempunyai modul “ eWages dan boleh mengembangkan nilai tambah modul ‘ eWages’ melalui “e-wallet”. Setakat pengetahuan Plaintif, penglibatan MRuncit Commerce Sdn Bhd adalah untuk menguruskan dan mengoperasikan Dompet Digital tersebut setelah Defendan meneydiakan dan membangunkan aplikasi Dompet Digital tersebut bagi pihak Plaintif serta mendapatkan kelulusan daripada Bank Negara Malaysia. Gambarajah di bawah memberikan penerangan lanjut mengenai peranan Defendan dan MRuncit dalam Projek Dompet Digital tersebut. Perjanjian ‘ Mcash Master Merchant Partner Agreement’ yang dikemukakan oleh Defendan di mukasurat 13 shingga27 IDB2 serta mukasurat 157 dan 171 ITD adalah untuk tujuan tersebut. S/N KGdtt530qka2dq8VvSoNKg S27 : Sila terangkan kepada Mahkamah, apakah maksud anda dengan Defendan telah memberi representasi yang salah kepada Plaintif? J: “ ( v) : Plaintif telah mendapati daripada dokumen-dokumen BestLaLa dan APK tersebut yang telah diserahkan oleh Defendan bahawa;

Dokumen-dokumen BestLaLa dan APK tersebut telah disediakan oleh MRuncit dan bukannya oleh Defendan; dan

Pengurus Projek tersebut Bersama Plaintif adalah MRuncit Commerce Sdn Bhd dan bukannya Defendan.

(vi) Disebabkan itu, Plaintif mendapati bahawa Defendan telah memberi representasi salah kepada Plaintif iaitu;- ( a) Defendan bukannya pembekal dompet digital ( e-wallet provider/issuer) yang dilesenkan oleh Bank Negara Malaysia;

Defendan tidak menerangkan kepada Plaintif bahawa MRuncit adalah pengeluar dompet digital (e-wallet issuer/provider) yang dilesenkan oleh Bank Negara Malaysia dan akan menguruskan Projek tersebut bagi pihak Plaintif;

Defendan telah emberi representasi salah kepada Plaintif dari permulaan projek ini berkenaan kapasirti Dompet Digital; ( d) Defendan gagal menyiapkan Fasa 2 Projek tersebut dalam masa yang ditetapkan iaitu dalam bulan

setakat Februari 2018, defendan gagal untuk mendapatkan kelulusan daripada Bank Negara Malaysia untuk menambahkan kapasiti Dompet Digital tersebut;dan

Defendan bukannya pihak yang dibenarkan memohon untuk mendapatkan daripada Bank Negara S/N KGdtt530qka2dq8VvSoNKg Malaysia untuk menambah kapasiti Dompet Digital tersebut. S29. Apakah yang Plaintif dijumpai oleh Plaintif setelah membuat pencarian tersebut? J : Plaintif telah mendapat tahu bahawa Defendan adalah pemberi perkhidmatan pereoleh saudagar bukan Bank (“ merchant acquiring services Non-Bank”) yang dilesenkan oleh BNM. Ini bermakna Defendan bukannya pihak yang dibenarkan untuk memohon kelulusan daripada BNM untuk mengeluarkan Dompet Digital dan menambah kapasiti Dompet Digital tersebut.

Hairul Anuar bin Rapai in his evidence stated: - S10. Mengapakah garismasa dan cadangan bayaran untuk Fasa 2 Projek diubah? J Ini adalah kerana dalam bulan Oktober 2017, Defendan telah memaklumkan kepada Plaintif bahawa kapasiti setiap Dompet Digital tersebut perlu ditambah daripada RM200.00 kepada RM1,500.00 Selain itu, kelulusan daripada BNM juga diperlukan. Akan tetapi, garismasa dan cadangan bayaran untuk Fasa 2 Projek diubah kerana Defendan gagal mendapatkan kelulusan dari BNM untuk menambahkan kapasiti Dompet Digital tersebut. Oleh itu, segala kerja-kerja untuk Fasa 2 tergendala sementara menunggu kelulusan daripada BNM

I find that, although these witnesses allege that their evidence is based on their knowledge, these two witnesses only came on board for the project, on 25-6-2018 (Hairul) and 20-2-2019 (Ismail). Therefore, I find that these individuals are unlikely to have known what was represented by the Plaintiff at the inception of the contract and the progress of the project before they became personally involved.

I say this for the following reasons;

Firstly, Ismail, although he was the Chief Executive Officer of the Plaintiff effective from 1-1-2018, he did not have any direct involvement in the project until 20-2-2019. This is reflected in his witness statement that is reproduced below: - Ismail bin Mohd Noor S6. Sila terangkan kepada Mahkamah skop penglibatan anda dalam Projek Dompet Digital ini. J: Penglibatan saya dalam Projek Dompet Digital ini adalah mulai 25/07/2018 iaitu sebulan selepas tarikh kemasukan saya ke Bestpay pada 25/05/2018 25/06/2018 sehingga Projek ini gagal pada tahap Fasa 2 untuk dilaksanakan tanpa kelulusan dari Bank Negara Malaysia

Hairul on the other hand was not employed by the Plaintiff before then and was only appointed on 25-6-2018. S/N KGdtt530qka2dq8VvSoNKg Hairul Anuar S2. Sila terangkan kepada Mahkamah, berapa lamakah anda sudah bekerja di syarikat Plaintif? J: Saya sudah bekerja di syarikat Plaintif selama 2 Tahun, bermula di Bestinet Payment Services S / B , bermula pada 25/06 / 2018 dan sekarang saya bekerja di Bestinet Sdn Bhd sejak 01/03/2019

Therefore, I believe these two witnesses did not have the prerequisite knowledge to show that the Defendant did make the alleged representation that it was duly licensed by Bank Negara Malaysia, that the e-wallet utilized would be developed by the Defendant and that the Defendant was able to obtain the approval for the use of the Mcash Best Lala application/ e-wallet.

Instead, the evidence shows that the individuals who were involved, as gleaned from the documents recording the discussions and the emails exchanged, from the date of inception of the project to 25-6- 2018 were Tee Kean Kang (Kenneth), Yoh Khai Seng (both representing the Defendant), and Azril Rizal Abdullah, Azizul Othman, Masri Mohd and Fadzly A Wahab, (the three representing the Plaintiff). Hairul and Ismail were not directly involved until much later. Therefore, they could not have known what was represented by the Defendant at the time the contract was entered. Neither could they make any representation as to the contents as to what was discussed at the time the contract was negotiated and eventually concluded.

I also note that the Plaintiff did not call their key individuals to show that such representations or statements of facts were made. The best person to show to this Court that such representations were made by the Defendant would have been the individuals who had direct contact with Kenneth and who had negotiated the terms of the contract at its inception. No reasons were put forward why these key individuals, identified earlier, were not called by the Plaintiff to give evidence at trial.

Although I do not believe section 114(g) of the Evidence Act should be invoked, as there is no evidence of suppression of evidence, the fact remains that it is for the Plaintiff to prove the allegation that such representations were made. I opine the Plaintiff has failed to do so based on the evidence before me.

As I have referred to earlier, it must be shown by sufficient available evidence, that the contract was procured by the wrong representations made by the Defendant. Such evidence would have helped to convince this Court that its versions of events are true. To merely rely on the evidence of Ismail and Hairul, both of which only came on board after the contract was agreed upon, does not lend much credence to the Plaintiff’s allegation.

This is to be contrasted to the evidence and witnesses brought forward by the Defendant. Unlike the Plaintiff, the Defendant produced the key individuals who were involved in the project. Kenneth and Tee Kean Kang who were at the initial meeting in January 2017 and who were involved throughout the lifetime of the project gave evidence. They also produced emails exchanged S/N KGdtt530qka2dq8VvSoNKg between parties that recorded what was discussed and the progress of the project from its inception to the date when the dispute started to creep in.

The evidence of the referred witnesses and the contemporaneous documents produced do not show that such representations were made by the Defendant.

The evidence of Kenneth and Tee Keang Kan is also consistent with the evidence of Lee Chin Wee, the Chief Executive Officer of MRuncit. Lee Chin Wai contends that he was at the meeting in January 2017 and had explained MRuncit’s involvement in the project from day one. Again, this is consistent with the chain of emails shown to me at trial by the litigants.

I also find that the evidence of Imran bin Shafie of MRuncit shows that the Plaintiff was aware of MRuncit’s involvement and its role in the whole project. The application, license and approval process from Bank Negara Malaysia was to be obtained through MRuncit and not from the Defendant. This can be seen from the following excerpts of the witness statement of Imran Shafie, and Kenneth (Yoh Khai Siang): - Imran Shafie A5. Ya, saya mengetahui perjanjian tersebut. S/N KGdtt530qka2dq8VvSoNKg Saya mengetahui bahawa MRuncit sebagai pembekal perkhidmatan terurus teknologi maklumat kepada GHL ePayments Sdn Bhd ('eGHL) supaya eGHL membina platform teknologi bagi Bestinet dalam permohonan e-wallet white-labelling. Saya terlibat dalam beberapa perbincangan dan mesyuarat memandangkan ini adalah satu projek yang diambilkan oleh MRuncit tetapi freelancer yang dilantik oleh kami untuk bertanggungjawab sebagai pengurus projek. Saya membuat koordinasi yang sepatutnya dan saya turut melapor kepada Aaron Lee Apabila saya menerima semua e-mel disalin kepada saya, saya hanya membalas terhadap perkara-perkara tindakan atau tugas yang perlu dilakukan oleh saya Saya telah disalinkan beberapa surat-menyurat e-mel seperti emel pada 26.10.2017 [CBD Jilid 2 m: 28 dan ITB ms 172] dan e-mel pada 25.10.2017 [CBD Jilid 2 ms 31 dan ITB ms 175]. Daripada dokumen, ianya adalah jelas terdapat perbincangan dan mesyuarat yang dihadin oleh ketiga-tiga pihak iaitu MRuncit, Bestinet dan eGHL Yoh Khai Siang Q8. What was discussed at the meeting? A8. At the meeting, parties had a discussion relating to the e-wallet application requested by Bestinet. Bestinet, mainly Encik Azril Rizal bin Abdullah had explained their intention to create a digital wallet application in order to facilitate the migrant’s financial transactions. Aaron Lee Chin Wee of MRuncit explained that creation or development of a new e-wallet S/N KGdtt530qka2dq8VvSoNKg application would incur high cost and require long lead time due to the technology/solution involved to build an e-wallet application as well the necessary approval required from Bank Negara Malaysia (‘BNM’). As MRuncit is an e-wallet issuer/provider, they then proposed to develop a white labeled e-wallet for Bestinet. As I understand it, MRuncit and Bestinet will collaborate to create a different branding product (white labeled e-wallet) in which Bestinet as the marketing and business development agent and MRuncit as e-money and e-wallet source. In this regard, the white labeled e-wallet can be developed by using MRuncit’s existing e-wallet technology/solution and approval to be obtained by MRuncit for such new product (white labeled e-wallet). Hence, the white labeled e-wallet proposal would eliminate the high cost and long lead time of developing an e-wallet from scratch for Bestinet. For eGHL part, Tee Kean Kang indicated that eGHL can then empower the online payment gateway services to Bestinet. Nevertheless, as Bestinet approached us first, the arrangement was that eGHL would provide the e-wallet white labelling solution/technology platform to Bestinet but in turn eGHL would engage MRuncit as information technology managed service provider for the project. Of course, as MRuncit is the e-wallet issuer/provider, the issue of the necessary approval from BNM remains with MRuncit. All three parties agreed to the arrangement

I do not find any documentary evidence that indicates either directly or otherwise, that the Defendant made any such alleged representations to the Plaintiff. The documents indicate that the version of events relied on by the Defendant is true. I specifically refer to the following documents: -

Emails exchanged between Masri and Kenneth dated 2-8- 2017, 26-9-2017, 25-10-2017, 20-11-2017, 22-1-2018 and 18- S/N KGdtt530qka2dq8VvSoNKg 43 4-2018 where Imran and representatives of MRuncit were invited to meetings to discuss the progress of the project.

(ii) Email from Imran 24-11-2017 to members of the project including concerning the application for approval from Bank Negara Malaysia that would be obtained by MRuncit.

(iii) The Plaintiff’s letter dated 21-2-2018 issued by Ismail Mohd Noor confirms that the MRuncit is authorized to carry out virtual ID for foreign workers to be used in the application on behalf of the Plaintiff.

(iv) Application dated 1-11-2017 by MRuncit to obtain the approval for the use of the application to Bank Negara Malaysia. This letter was forwarded to the Plaintiff via email dated 24-11-2017 from Imran Shafie of MRuncit and was never objected to.

Email from Masri to members of the project dated 26-9-2017 where Masri confirmed that UAT briefing session for the application / e-wallet will be undertaklen by MCash team.

(vi) Email from William Phang to Masri as well as other members of the project dated 31-10-2017 where it was clearly stated that “MRuncit will showcase these templates for production to BNM for submission”.

(vii) Mcash Master Merchant Partner Agreement between the Plaintiff and MRuncit stamped on 10-8-2017 where the Plaintiff is appointed as one of the Master Merchant Partner to participate in the MCash E-wallet payment programme.

The above-referred evidence indicates that the Plaintiff is aware that MRuncit was part of the team undertaking the project and it was this entity that would be applying for approval from Bank Negara S/N KGdtt530qka2dq8VvSoNKg Malaysia. Otherwise, why did the Plaintiff issue above referred letter dated 1-11-2017.

I also refer to the MCash Master Merchant Partner Agreement between the Plaintiff and MRuncit entered about 21-6-2017. Under this agreement, parties had also failed to state specifically which party has the obligation to provide or obtain the approval from Bank Negara.

Parties had also exchanged emails dated 20-11-2017 between William Phang attaching the notes of the meeting and the reply by one Khairil Sabri. In the said email, it was highlighted that the Plaintiff will provide the appropriate approvals from the relevant authorities including from the Malaysian Immigration Department.

MRuncit had first submitted to Bank Negara on 1-11-2017. Bank Negara Malaysia reverted by 13-2-2018 seeking, inter alia approval from the Immigration Authorities. This information was then subsequently informed to the Plaintiff by the representative of MRuncit, Imran bin Shafie, that such approvals from were required from the Plaintiff. I reproduce parts of the evidence of Imran bin Shafie that explains this: - … “S6. Bolehkah anda beritahu Mahkamah tentang permohonan kepada Bank Negara Malaysia? J6. Sebelum permohonan boleh dibuat, maklumat atau dokumen yang dikehendaki untuk mengemukakan permohonan BNM termasuk ciri-ciri dan fungsi produk, peranan dan tanggungjawab syarikat, seni bina sistem dan mana-mana dokumen sokongan. Kebenaran / kelulusan dari Bestinet diperlukan untuk permohonan BNM adalah perjanjian antara Bestinet dan MRuncit bagi “white labeled e-wallet”. Maka, sekitar bulan Jun 2017, “MCash Master Merchant Partner S/N KGdtt530qka2dq8VvSoNKg Agreement” [CBD Volume 2 pg 13—2 dan ITB ms 157-171] antara Bestinet dan MRuncit telah ditandatangani. Selepas mendapat kesemua maklumat dan dokumen, saya menyediakan permohonan dan selepas Aaron Lee Chin Wee meluluskannya, saya akan mengemukakan permohonan tersebut ke BNM. Ini merupakan kali pertama MRuncit memohon kelulusan bagi penjenamaan yang berbeza untuk produk/perkhidmatan produk whitelabel. Melalui surat bertarikh 1.11.2017 [CBD Jilid 2 ms 34-37 dan ITS ms 178-181], kami memohon kepada BNM bagi mendapat kelulusan untuk permohonan mudah alih “MCash BestLala”. Pengemukaan variasi produk / perkhidmatan yang sedia ada [MCash BestLala Digital Wallet] [CBD Jilid 2 ms 65-78 dan ITB ms 209-221] dan surat bertarikh 26.8.2015 dari Kementerian Dalam Negeri kepada Bestinet [CBD Jilid 2 ms 1-2 dan ITB 146-147] disediakan dan dikemukakan kepada BNM bersama-sama dengan surat bertarikh 1.11.2017. Pada 23.1.2018 [CBD Jilid 2 ms 39 dan ITB ms 183 ], kami juga menghantar pengemukaan semakan maklumat tambahan [CBD Jilid 2 ms 79-85 dan ITB ms 222- 228] yang dikehendaki oleh BNM bersama-sama dengan surat Bestinet bertarikh 22.1.2018 kepada MRuncit [CBD Jilid 2 ms 38 dan ITB ms 182], melalui e-mel. Surat yang bertarikh 22.1.2018 [CBD Jilid 3 ms 17- 21 dan ITB ms 397- 401] dihantar melalui emel dari Masri kepada saya. Se-awal November 2017, segala permohonan ke BNM telahpun dikemukakan kepada Bestinet melalui emel bertarikh 24.11.2017 dari saya kepada Masri. Seterusnya, kami menerima surat bertarikh 13.2.2018 [CBD Jilid 2 ms 40 dan ITB ms 184] dari BNM untuk mencari maklumat dan dokumen bagi memudahkan penilaian mereka. Kemudiannya, kami membalas BNM melalui surat bertarikh 27.2.2018 [CBD Jilid 2 ms 42-50 dan ITB ms 186-194] dengan melampirkan dokumen sokongan dan surat bertarikh 21.2.2018 dari Bestinet kepada MRuncit [CBD Jilid 2 ms 41 dan ITB ms 185]. Namun begitu, pada 29.3.2018 [CBD Jilid 2 ms 51 dan ITB ms 195] , BNM membalas dan berpendapat bahawa dokumen-dokumen dan maklumat yang diberikan tidak mencukupi dan tidak memadai bagi mereka untuk mengambil permohonan itu dalam pertimbangan. Mereka secara spesifik meminta, antara lain, surat kelulusan yang diberikan oleh pihak berkuasa yang berkenaan mengenai cadangan untuk melaksanakan fungsi ID elektronik bagi pekerja asing di bawah aplikasi mudah alih MCash BestLala. S/N KGdtt530qka2dq8VvSoNKg Melalui surat bertarikh 13.4.2018 [CBD Jilid 2 ms 52-63 dan ITB ms 196-207], kami membalas pada syarat pertama dan melampirkannya dengan dokumen sokongan. Dalam surat yang sama, kami memaklumkan BNM bahawa MRuncit masih menunggu Bestinet untuk mengemukakan surat pemberikuasaan yang dijangka akan didapati pada Mei 2018 dari pihak berkuasa berkenaan. Tanpa surat pemberikuasaan, MCash Bestlala tidak akan dibenarkan untuk pergi live/ dilancarkan. Saya telah menyalinkan dan memaklumkan Bestinet tentang permohonan BNM serta meminta atau menyusul dengan Masri dua minggu sekali tentang surat pemberikuasaan dari Bestinet melalui WhatsApp atau panggilan telefon pada 2018. Namun begitu, Masri membalas saya bahawa dia memerlukan masa untuk 2193364-16 menyediakan surat pemberikuasaan sehingga saya menerima e-mel daripada Bank Negara Malaysia. Komunikasi terakhir saya dengan BNM adalah melalui e-mel bertarikh 25.9.2018 [CBD Jilid 3 ms 28-29 dan ITB ms 408-409]. E-mel daripada BNM bertanya tentang sebarang kemaskini dari MRuncit mengenai surat pemberikuasaan di mana saya kemudiannya menjawab bahawa surat pemberikuasaan masih belum diterima dari Bestinet….”

I also find that the evidence shows that the Plaintiff is aware that the software or e-wallet application is owned and operated by MRuncit and that the white labelling was undertaken using the existing application owned by MRuncit. I find that the Plaintiff agreed that MRuncit will be undertaking the process of obtaining the approval of the white labelling of the application from Bank Negara Malaysia. If not, they would have surely complained and made the necessary objection with the Defendant. Instead, they dealt directly with MRuncit, had discussions with them and liaised directly with MRuncit as to the need to obtain approval from Bank Negara Malaysia.

I further find that the application for approval from Bank Negara Malaysia was undertaken by MRuncit with the approval and consent of the Plaintiff. As I said earlier, there was no evidence that the Defendant promised or represent that it would be responsible for the said application or that it could get the said approval. If such was the promise or representation made by the Defendant, then the Plaintiff would have raised an objection to such application being made by MRuncit and would have made a loud hue and cry even as early as November or December 2017 when the above-referred letters were issued by MRuncit and by the Plaintiff itself. I find that the evidence presented by the witnesses called by the Defendant is consistent with contemporaneous documents.

I am guided by the decision of the Federal Court in Tindok Besar Estate Sdn Bhdv Tinjar Co [1979] 1 LNS 119 where Chang Min Tat FJ held: “Nevertheless the learned trial Judge expressed himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent's oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested S/N KGdtt530qka2dq8VvSoNKg against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity.”

I also refer to the decision of the Federal Court in Tengku Dato Ibrahim Petra Tengku Indra Petra v Petra Perdana Berhad & another appeal [2018] 2 CLJ 641, where Azahar Mohamed FCJ delivering judgment of the Court, inter alia, stated: - “[63] A point to note in this case is that substantial relevant evidence was reduced to writing. As observed by the learned High Court Judge, "the minutes form a valuable and objective study of the proceedings of the plaintiff at the material time. Matters as encompassed in the minutes of meeting, in conjunction with these other documented events, are therefore directly relevant and assist the court to ascertain the rationale or purpose underlying the decision to sell the subject PEB shares vide the second and third divestments". One could see the force of the learned High Court Judge's reasoning. Given that this was a "document-heavy dispute", the learned High Court Judge was entitled to make her decision, among others, based on those contemporaneous documentary evidence produced at the trial (see Len Min Kong v. United Malayan Banking Corp Bhd & Another Appeal [1998] 2 CLJ 879; [1998] 2 MLJ 478, Eastern & Oriental Hotel (1951) Sdn Bhd v. Ellarious George Fernandez & Anor [1987] CLJ Rep 579; [1989] 1 MLJ 35 and Syarikat Kemajuan Timbermine Sdn Bhd v. Kerajaan Negeri Kelantan Darul Naim [2015] 2 CLJ 1037). In our judgment, the learned High Court Judge was properly guided by these principles and we find no error in her reasoning.”

After considering the evidence presented by the witnesses for the Plaintiff and the Defendant, I prefer the evidence of the Defendant’s witnesses. I do not believe that the evidence presented by the S/N KGdtt530qka2dq8VvSoNKg Plaintiff’s witnesses on the alleged representation and the alleged obligation by the Defendant to obtain such approval from Bank Negara Malaysia is credible.

I am further of the view that the approval from Bank Negara Malaysia was not forthcoming as the Plaintiff did fail to provide the necessary letters from the Ministry of Home Affairs as directed by the Central Bank.

Given the substantial body of contemporaneous documents that sides with Defendant’s version of events, I find on a balance of probabilities that Plaintiff’s allegation is incorrect.

I prefer the evidence of the Defendant’s witnesses on this issue. I find that Plaintiff’s allegation is merely an afterthought created to justify this suit against the Defendant. The allegations are contrary to contemporaneous documents, and I, therefore, reject the contentions raised by the Plaintiff.

Based on the above, I opine that the Defendant did not make the representations as alleged by the Plaintiff. The obligation to obtain Bank Negara Malaysia’s approval lies with MRuncit. The failure to obtain such an approval lies with the Plaintiff as it had failed to procure the necessary approval from the relevant authorities as I have highlighted earlier. S/N KGdtt530qka2dq8VvSoNKg Sub Issue B - Whether the Defendant represented that it will be able to complete Phase 2 of the project by February 2018.

I have found earlier that the Defendant did promise the Plaintiff the following timelines will be implemented for the project: -

84.1 Phase 2 is targeted to be completed by 31-12-2017 and to be delivered by 31-3-2018.

84.2 Phase 3 is targeted to be completed by 28-2-2018 and delivery roll out by 31-5-2018.

However, the issue raised by the Plaintiff’s witness concerns the approval by Bank Negara Malaysia and the alleged failure to obtain such approval by the Defendant.

I refer to the following excerpts from the witness statement of the Plaintiff’s witnesses: -

Hairil Anuar bin Rapai S6. Sila terangkan kepada Mahkamah skop penglibatan anda dalam Projek Dompet Digital ini. J: Penglibatan saya dalam Projek Dompet Digital ini adalah mulai 25/07/2018 iaitu sebulan selepas tarikh kemasukan saya ke Bestpay pada 25/05/2018 25/06/2018 sehingga Projek ini gagal pada tahap Fasa 2 untuk dilaksanakan tanpa kelulusan dari Bank Negara Malaysia (BNM) S/N KGdtt530qka2dq8VvSoNKg S10. Mengapakah garismasa dan cadangan bayaran untuk Fasa 2 Projek diubah? J Ini adalah kerana dalam bulan Oktober 2017, Defendan telah memaklumkan kepada Plaintif bahawa kapasiti setiap Dompet Digital tersebut perlu ditambah daripada RM200.00 kepada RM1,500.00 Selain itu, kelulusan daripada BNM juga diperlukan. Akan tetapi, garismasa dan cadangan bayaran untuk Fasa 2 Projek diubah kerana Defendan gagal mendapatkan kelulusan dari BNM untuk menambahkan kapasiti Dompet Digital tersebut. Oleh itu, segala kerja-kerja untuk Fasa 2 tergendala sementara menunggu kelulusan daripada BNM

Sila terangkan kepada Mahkamah, mengapakah Projek Dompet Digital tersebut masih lagi tergendala. J Projek Dompet Digital tersebut masih lagi tergendala disebabkan kegagalan oleh Defendan untuk mendapatkan kelulusan daripada BNM yang mana ianya adalah suatu keperluan yang mandatori bagi meneruskan Projek Dompet Digital tersebut.

(ii) Ismail bin Mohd Noor

Sila terangkan kepada Mahkamah, mengapa Plaintif mengatakan bahawa Fasa 2 tidak berjaya dilengkapkan oleh Defendan. J: Fasa 2 tidak berjaya dilengkapkan kerana Defendan dan MRuncit Commerce Sdn Bhd gagal mendapatkan kelulusan daripada Bank Negara Malaysia (BNM) yang mana BNM telah menyatakan dengan jelas dalam surat bertarikh 29/03/2018 bahawa....MCash Bestlala mobile application S/N KGdtt530qka2dq8VvSoNKg will not be processed further. MRuncit is reminded to adhere to the approval conditions stipulated in BNM's letters dated 17 January 2013 and 15 August 2017 and not to offer the proposed service without prior approval from BNM Surat daripada BNM kepada MRuncit Commerce bertarikh 29/03/2018 boleh dirujuk di mukasurat 51 IDB2 dan mukasurat 195 ITD.

Sila terangkan kepada Mahkamah, siapakah yang sepatutnya mendapatkan kelulusan daripada Bank Negara Malaysia. J: Menurut perjanjian di antara Plaintif dan Defendan, pihak yang sepatutnya mendapatkan kelulusan daripada BNM adalah Defendan

Sebelum Penyata Invois No. 1003586 bertarikh 16/04/2018 dikeluarkan, pernahkah-Defendan memberikan penjelasan berkenaan perkara ini?

J: Tidak Apakah tindakan Plaintif sementara Plaintif menunggu untuk defendan mendapatkan kelulusan daripada Bank Negara Malaysia J: Memandangkan niat Plaintif adalah untuk membangunkan dan mempromosikan aplikasi Dompet Digital tersebut, Plaintif telah menempatkan beberapa kakitangan kakitangan Bestpay di tempat-tempat yang strategik di Lapangan Terbang Kuala Lumpur (KLIA) 1 dan 2 untuk memberikan sim kad percuma kepada warga asing yangi memasuki Malaysia sambil memperkenalkan aplikasi Dompet Digital tersebut Saya merujuk kepada surat Plaintif untuk memohon pas keselamatan kepada Jabatan Imigresen Malaysia bertarikh 18/12/2018 di mukasurat 142 hingga 145 IDB2 dan mukasurat 282 hingga 285 ITD. S/N KGdtt530qka2dq8VvSoNKg Dan kemudiannya, Jabatan Imigresen meluluskan permohonan pas keselamatan untuk Plaintif melalui suratnya bertarikh 10/01/2019 di mukasurat 146 hingga 147 IDB2 dan mukasurat 286 hingga 287 ITD Manakala, permohonan Plaintif untuk mengedarkan kad sim kepada warga asing telah diluluskan oleh Jabatan Imigresen Malaysia melalui suratnya bertarikh 21/03/2019 kepada Plaintif yang boleh dijumpai di mukasurat 148 IDB2 dan mukasurat 288 ITD Saya juga merujuk mukasurat 149 hingga 150 A IDB2 dan mukasurat 289 hingga 291 ITD adalah senarai kakitangan-kakitangan Bestpay yang bertugas di KLIA 1 dan 2 untuk memberi sim kad percuma kepada warga asing.

As I have found earlier, there is no evidence that the Defendant had made any representation that it would be making the application for approval to Bank Negara Malaysia. I have also found, based on contemporaneous documents and oral testimony of the Defendant’s witnesses, that the said application was made by MRuncit with the consent of the Plaintiff. The Plaintiff understood the application was made by MRuncit and participated in the said application process.

One could see this in the email that was issued as early as 20-11- 2017 issued by William Phang (on behalf of the Defendant) to Masri, Khairil (on behalf of the Plaintiff) and Imran Shafie (on behalf of MRuncit) where it was clearly stated: - “BNM updated require more details pertaining to:- - FWCMS (system ownership, how it works and relationship to MCash Best Lala) S/N KGdtt530qka2dq8VvSoNKg - Bestinet & KDN / Jabatan Imigresen Malaysia roles and responsibility. Bestinet team to provide details explanation for resubmission for BNM”

I find that the required information and approvals were not forthcoming from the Plaintiff. The Plaintiff only gave a copy of its letter to MRuncit and there was no confirmation or any authorization from the relevant Ministries. This caused Bank Negara Malaysia via its letter dated 29-3-2018 to request “an approval letter by the relevant authority” on the proposal to implement an electronic functionality for foreign workers under the MCash Best Lala mobile application. This was reiterated in the email from Bank Negara Malaysia to Imran Shafie dated 24-9-2018 where the central bank stated if the said approval is not forthcoming from the Ministry of Home Affairs is not received, the said central bank will not proceed with the process of considering the application filed by MRuncit.

My views are further fortified by the emails that were exchanged at the time when the invoices were issued for the performance of Phase 2. These have been referred to me earlier in paragraphs 67 and 68.

I note that the Defendant did issue the first tranche of the amount due before Phase 2 is implemented as agreed between parties. This was issued to the Plaintiff by the Defendant on 31-1-2019 for the sum of RM 92, 750.00. The Plaintiff failed to pay the said invoice and did not provide any reasons for doing so at the material time.

This was followed with work undertaken by the Defendant as seen in the emails exchanged dated 31-1-2019 with the attachment issued to Ismail bin Mohd Noor. Thereafter, an invoice for the second portion for Phase 2 was issued by the Defendant via email dated 30-5-2019. The Plaintiff did not issue any response to this email. Neither did they raise any letters or emails at the said time alleging that work was incomplete or that Phase 2 had failed. This allegation was also not raised by the Plaintiff’s witnesses and their sole ground denying liability lies on the issue of the pending approval from Bank Negara Malaysia.

Therefore, I find that it is not correct that the Plaintiff blames the failure, if any, for the implementation of Phase 2 on the Defendant. I opine that the contemporaneous documents show that it was the Plaintiff who had failed to ensure that the Ministry of Home Affairs and the Immigration Department of Malaysia to provide the said authorization letter to MRuncit.

Even if I were to take the Plaintiff’s case to its highest, the said obligation should lie with MRuncit. Even under those circumstances, the evidence of MRuncit’s representatives indicates to me that they had informed the requirements of Bank Negara Malaysia many times to the Plaintiff’s representatives. It was only the Plaintiff who could have obtained the approvals for their business plans from the relevant authorities.

It is wrong for the Plaintiff to now push the blame to the Defendant or even to MRuncit for the failure to obtain such approvals that were mandatory before Bank Negara Malaysia could agree to the S/N KGdtt530qka2dq8VvSoNKg proposals before it. The Plaintiff should have taken all steps to obtain such approvals before any submission is filed with Bank Negara Malaysia. This was also confirmed by MRuncit’s representatives at trial.

I also find the issue of whether there was any representation by the Defendant that the project could be finalized before the end of February 2018 is moot. Parties had by their actions caused the time to shift. They agreed to continue with the project even after the end of December 2018. The only hindrance lies with the failure of the Plaintiff to obtain the necessary documents from the authorities. I opine that this failure lies solely at the feet of the Plaintiff. Sub Issue C – Whether the Defendant represented that the e-wallet or the application known as MCash Best Lala can hold a larger capacity of up to RM 1500 than what was provided to the maximum sum of RM 200.

I also find that this allegation is not supported by any credible evidence before me to show that the Defendant did make the above representation to the Plaintiff.

The only evidence relied on by the Plaintiff to support this contention is the oral evidence of Hairul Anuar bin Rapai where he stated: - S10. Mengapakah garismasa dan cadangan bayaran untuk Fasa 2 Projek diubah? J Ini adalah kerana dalam bulan Oktober 2017, Defendan telah memaklumkan kepada Plaintif bahawa kapasiti setiap Dompet Digital S/N KGdtt530qka2dq8VvSoNKg tersebut perlu ditambah daripada RM200.00 kepada RM1,500.00 Selain itu, kelulusan daripada BNM juga diperlukan. Akan tetapi, garismasa dan cadangan bayaran untuk Fasa 2 Projek diubah kerana Defendan gagal mendapatkan kelulusan dari BNM untuk menambahkan kapasiti Dompet Digital tersebut. Oleh itu, segala kerja-kerja untuk Fasa 2 tergendala sementara menunggu kelulusan daripada

As I have alluded earlier, Hairul Anuar was not employed by the Plaintiff in October 2017. He was not involved in the project at that time. The appropriate person who could have shed some light on this issue would have been those who were present and who were involved in the project in October 2017. The representatives of the Plaintiff at that time, Azizul Othman, Azril Rizal Abdullah and Masri were not called to give evidence for the Plaintiff.

Whereas, those representing the Defendants, who were present and involved at the said time gave evidence and denied that such representations were made. Tee Kean Kang and Yoh Khai Siang explained that the subject of the increase in the wallet capacity was discussed but MRuncit’s representative informed parties that the current limit remained at RM 200.00 and any increase must be approved by Bank Negara Malaysia. This was also confirmed by Aaron Chin’s testimony, who was also present at the said meeting in October 2017.

Therefore, I reject the Plaintiff’s contention and find that the Defendant did not make any representation that the E-wallet S/N KGdtt530qka2dq8VvSoNKg capacity could be increased to RM 1500.00. The evidence relied on by the Plaintiff is not credible as he was not involved at the material time and there is no written documentation to support such contention. Sub Issue D – Whether the project will be managed by the Defendant

On this issue, again I find that the evidence relied on by the Plaintiff to support the allegation is not credible. I repeat that the witnesses relied on by the Plaintiff were not involved at the inception of the project and only became involved at the later stage. There is also no documentary evidence to support the Plaintiff’s allegation.

Even if I am wrong on the above, I find that the Defendant did show that it was managing the project together with MRuncit. The emails and documents produced indicate that the Defendant was involved and was attempting to address all issues directly with the Plaintiff.

I accept that MRuncit was dealing with the application process with Bank Negara Malaysia. However, this was undertaken with the consent of the Plaintiff as they had even issued a letter informing the central bank of their involvement with MRuncit. This is also a natural part of the project as the application that was being reskinned and white-labeled for the use of the Plaintiff, is that of MRuncit and the license held under the name of MRuncit.

I also find that the witnesses called on behalf of the Defendant, Yoh Khai Siang and Tee Kean Kang showed that they were aware of the project progression and were involved in the management. They S/N KGdtt530qka2dq8VvSoNKg were able to explain the discussions they had with the representatives of the Plaintiff, timelines and changes requested by the Plaintiff. This indicates to me that these individuals were managing the project for the Defendant.

Therefore, it cannot be said that the Defendant was not managing the project.

Given the above, I reject the Plaintiff’s contention on this issue. I find that on the balance of probabilities that (i) the representations were never made in the first place and (ii) that the Defendant did manage the project but certain tasks, such as dealing with Bank Negara Malaysia, were left with MRuncit with the express knowledge and consent of the Plaintiff.

Based on the aforesaid, I dismiss the Plaintiff’s claim in Toto against the Defendant. As I have found that the Plaintiff has failed to prove that the Defendant is liable for the claim against it, I will not deal with the issues of damages claimed by the Plaintiff as that is now academic. Issue 3 – Whether the Defendant is entitled to damages and remedies prayed in the Counterclaim

The Defendant in its Counterclaim prays for the following remedies: -

A declaration that the termination of the contract between the Plaintiff and the Defendant is unlawful.

(ii) An order that the Plaintiff pays the earlier referred 2 outstanding invoices and interest.

(iii) Loss of profits in the sum of RM 1, 855,000.00.

As I have found that Plaintiff has failed to prove that the Defendant is guilty of misrepresentation as alleged in the Plaintiff’s Statement of Claim and as alleged in the Plaintiff’s solicitors letter dated 1-8- 2019, which forms the basis for the Plaintiff’s termination, I find that the said termination is unlawful and unsubstantiated.

I find that, on the balance of probabilities, that the Defendant did undertake the work in accordance with the terms of the contract and that the work of phase 2 of the contract was finalized resulting in the issuance of the 2 invoices by the Defendant. It was the Plaintiff who had failed to provide the necessary documents or approvals from the Ministry of Home Affairs or any relevant authority as required by Bank Negara Malaysia. The burden of shouldering the said fault lies solely on the shoulders of the Plaintiff. The emails and documents exchanged between the participants of the project, which I have alluded earlier, indicate that the failure to obtain the approval from the Central Bank lies solely on the Plaintiff.

To repeat I do not find that the Defendant had made any representation about the capacity of the e-wallet and the evidence indicates that the representative of MRuncit had indicated from the outset the limits of the e-wallet and that any enlargement will have to be undertaken with the approval from Bank Negara Malaysia. The S/N KGdtt530qka2dq8VvSoNKg same applies to the timeline of the project. The delay of completion, if any, lies solely on the Plaintiff as it did fail to provide the authorization letters necessary to enable Bank Negara Malaysia to process the application by MRuncit.

Therefore, given the above, I find that the Defendant is entitled to the following orders: -

A declaration that the termination of the contract between the Plaintiff and the Defendant by the Plaintiff was unlawful;

(ii) The outstanding invoice no. 10000867 dated 31.12.2018 and invoice no. 2019000225 dated 31.5.2019 above be paid by the Plaintiff to the Defendant;

(iii) Interest on the sum of RM92,750,00 at the rate of 2% per month from 30.1.2019 to the date of judgment,

(iv) Interest on the sum of RM92, 750.00 at the rate of 2% per month from the date of 30.6.2019 to the date of judgement,

Interest on the sum of RM92, 750.00 at the rate of 5% per annum from the date of Judgment to the date of full realization of the same.

I am however not convinced that the Defendant is entitled to the sum of RM 1, 855,000.00 as its alleged loss of profits claimed in the Counterclaim.

It is trite law that a party claiming damages must prove that he suffered such losses.

I refer to section 74 of the Contracts Act and the decision of the Court of Appeal in Cahaya Berlian Sdn Bhd v Bandar Kuala Lumpur [2021] 1 LNS 839, where Nor Bee Ariffin JCA stated: - [25] Section 74 of the Contract Act 1950 governs the law on compensation for loss or damage caused by breach of contract ( Toeh Kee Keong v. Tambun Mining Company Ltd [1967] 1 LNS 197; [1968] 1 MLJ 39; The Supreme Court case of Bank Bumiputra Malaysia Bhd. Kuala Terengganu v. Mae Perkayuan Sdn. Bhd. & Anor [1993] 2 CLJ 495; Malaysian Rubber Development Corporation Berhad v. Glove Seal Sdn Bhd [1994] 4 CLJ 783; Nikmat Masyhur Sdn Bhd v. Kerajaan Negeri Johor Darul Ta'zim [2008] 9 CLJ 46)). [26] In Malaysian Rubber Development Corporation Berhad, supra, the Supreme Court held that at page 790 – ".... It is important to bear in mind that the normal measure of damages for breach of contract in this country is prescribed by s. 74(1) of the Contracts Act 1950, which is the statutory enunciation of Hadley v. Baxendale [1854] 9 Exch. 341: (Toeh Kee Keong v. Tambun Mining Company Ltd [1967] 1 LNS 197; [1968] 1 MLJ 39; Bank Bumiputra Malaysia Bhd. Kuala Terengganu v. Mae Perkayuan Sdn. Bhd. & Anor [1993] 2 CLJ 495 SC. In essence, the section states that the party may recover any loss or damage for any breach which (a) naturally arose in the usual course of things or (b) which the parties knew, when they made the contract, to be likely to result from the breach of it. For the sake of completeness, it should be mentioned that our Courts have treated the position under the second limb of the section to be similar to the second limb of Hadley v. Baxendale, which is, the party may recover damages S/N KGdtt530qka2dq8VvSoNKg which may "reasonably be supposed to have been in contemplation of both the parties, of the time they made the contract"...". [27] In Nikmat Masyhur Sdn Bhd, supra, Vernon Ong Lam Kiat JC (as he then was ) explained at page 54 – "[7] In short, the common law rule in the assessment of damages consists of two limbs. The first limb concerns damages flowing naturally, ie, in the normal course of things from the breach. The second limb concerns the damages that the parties at the time of the making of the contract may reasonably be supposed to have contemplated, as the probable result of the breach. This court is also mindful that in the assessment of damages for breach of contract, the general rule is that the aggrieved party be put in the same as if the contract had been performed; so that normally he is entitled to recover from the contract breaker his loss of profits, or the benefit of the bargain, as it is often called,(see Central Malaysia Development Company Ltd v. Chin Pak Chin [1967] 1 LNS 15.)" [28] It is elementary that the burden of proving damages or the loss claimed lies with the appellant (see Guan Soon Tin Mining Company v. Wong Fook Kum [1968] 1 LNS 43; [1969] 1 MLJ 99; Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd [1995] 1 CLJ 15; Popular Industries Limited v. Eastern Garment Manufacturing Sdn Bhd [1990] 2 CLJ Rep 635; [1990] 1 CLJ 133; [1989] 3 MLJ 360). [29] It must also be borne in mind that it is trite law that in event the appellant failed to adduce sufficient evidence to sustain the appellant's case on the appropriate quantum, the appellant ought to be awarded nominal damages.”

I find that the Defendant had failed to show the amount of damages or loss of profits suffered by it. There is no documentary evidence to justify the said losses and the only evidence relied on by the Plaintiff is the evidence of Tee Kean Kang.

Nonetheless, that does not mean that all is lost for the Plaintiff. In view of the wrongful termination by the Plaintiff, I find that the Defendant is entitled to nominal damages to the sum of RM 10,000.00 to be paid by the Plaintiff to it.

I refer to the decision of Lee Swee Seng JCA in Koperasi Kastam Diraja Malaysia Bhd v Yi Go Group Sdn Bhd [2021] 10 CLJ 31, where he stated: - “[73] The Federal Court in Guan Soon Tin Mining Company v. Wong Fook Kum [1968] 1 LNS 43; [1969] 1 MLJ 99 at p. 100 enunciated this principle as follows: The respondent, as plaintiff, of course had to discharge the burden of proving both the fact and the amount of damages before he could recover. Where he succeeded in proving neither fact nor amount of damage he must lose the action or, if a right was infringed, he would recover only nominal damages. Where he succeeded in proving the fact of damage, but not its amount, he would again be entitled to an award of nominal damages only. This statement of the law is concisely stated in Mayne & McGregor on Damages (12th Ed.) para 174... (emphasis added) [74] The learned Registrar had awarded RM100,000 as nominal damages. We are rather uncomfortable in calling such a substantial amount as "nominal". Generally, the term "nominal" means minuscule or small in terms of amount or just a token sum. [75] In Beaumont v. Greathead (1846) 2 CB 494 at 449, Maule J described nominal damages as "a sum of money that may be spoken of, but that has no existence in point of quantity". Often nominal damages are referred to S/N KGdtt530qka2dq8VvSoNKg as a token sum awarded where the amount could be small or minuscule (see Sapwell v. Bass [1910] 2 KB 486). [76] However, a sum of RM100,000 as nominal damages for breach of contract is not without precedent as can be seen in the case of Delpuri-Harl Corp JV Sdn Bhd v. Perbadanan Kemajuan Negeri Selangor [2014] 1 LNS 1075; [2015] 2 MLJ 24 where the Court of Appeal explained as follows: [42] As the appellant had failed to elect to claim either for loss of profits or for wasted expenditure only, and the claim being bad for uncertainty in the circumstances, we decided to award the sum of RM100,000 which sum included the sum of RM70,575.45 assessed by DW1, as nominal damages to the appellant. This is on the basis that this court recognises the fact that the appellant did suffer some loss as a result of the wrongful termination. As for nominal damages they are said to be 'a sum of money that may be spoken of, but that has no existence in point of quantity' as held by Maule J in Beaumont v. Greathead (1846) 2 CB 494 at 499. A token sum is usually awarded for nominal damages and the amount could be small or minuscule. Just like sixpence in Feize v. Thompson (1808) 1 Taunt 121; a farthing in Mostyn v. Coles (1862) 7 H & N 872 and a shilling in Sapwell v. Bass [1910] 2 KB 486. Undoubtedly, the cases cited above were decided in England in yesteryears. However, today it is not uncommon for nominal damages to be awarded in Malaysia in the thousands of ringgit, depending of course on the circumstances of the case. And in the case of Tahan Steel Corp Sdn Bhd v. Bank Islam Malaysia Bhd [2012] 1 CLJ 959; [2012] 2 MLJ 314 (CA), my learned brother Justice Mohd Hishamudin had occasion to say that the learned trial Judge was correct in awarding nominal damages of RM50,000 in the circumstances of that case. S/N KGdtt530qka2dq8VvSoNKg Where it is clear that the appellant had failed to furnish credible evidence to prove the amount of damages it claimed to have suffered but where it is equally clear that the appellant did suffer some loss and damage, then it will be an appropriate case for the court to award nominal general damages (see Lee Sau Kong v. Leow Cheng Chiang [1960] 1 LNS 56; [1961] 1 MLJ 17 per Thompson CJ). Conclusion [43] In the result, the court held that while the unilateral termination of the contract by the respondent was unlawful, the quantum of damages awarded to the appellant would only be in the sum of RM100,000 as nominal damages as the appellant had failed to prove its loss of profits or the wasted expenditure. We also award interest at the rate of 5%pa on the said sum, the interest to run from 24 September 2008 (ie the date the cause of action arose) until date of realisation. (emphasis added) [77] In Tahan Steel Corporation Sdn Bhd v. Bank Islam Malaysia Bhd [2012] 1 CLJ 959; [2012] 2 MLJ 314 the Court of Appeal did not disturb the award of nominal damages granted by the learned trial judge though it observed that the sum was rather generous as follows: [47] The appellant/plaintiff is appealing against the award of nominal general damages in its favour amounting to RM50,000. Although this award is in favour of the appellant/plaintiff, nevertheless, the appellant/plaintiff is aggrieved by this award on the ground that this sum is manifestly inadequate. It is the contention of the appellant/plaintiff that the award of damages should not have been nominal; it ought to have been substantial. [48] In the statement of claim, although there is a prayer for general damages (see para 33(10)), there is, however, no prayer that the damages be assessed at a later stage by a separate inquiry (be it by the trial judge or by a registrar); nor did the appellant/plaintiff ask either at S/N KGdtt530qka2dq8VvSoNKg the trial or in submission before the High Court that the general damages be assessed at a later stage. [49] Needless to say that the burden of proof on the issue of quantum lies on the appellant/plaintiff. [50] In my judgment, the learned trial judge was correct in awarding only nominal general damages of RM50,000 (which, I think, is a generous sum, considering that it is meant to be only nominal). This is because having examined the evidence it is clear to me that the appellant/plaintiff had failed to furnish clear evidence as to the amount of damages that it suffered. It is true that the learned trial judge, in her grounds of judgment, after having quoted what Thomson CJ (as he then was) in Lee Sau Kong v. Leow Cheng Chiang [1960] 1 LNS 56; [1961] MLJ 17 at p 20, said: Guided by the same case, though I know that the plaintiff would suffer damages resulting from the defendant's breach, the assessment of damages is virtually impossible. (emphasis added)” Issue 4 – Whether the Defendant’s notice to wind up the Plaintiff is wrong

The last issue I would like to address concerns the Notice to Wind Up issued by the Defendant is wrong and whether the Plaintiff is entitled to claim the costs incurred by it in filing the Suit bearing number WA-24NCVC-1098-05/2019 to restrain the filing of a winding-up petition by the Defendant.

I note that the said suit was eventually withdrawn by parties as seen in the notice of discontinuance dated 30-5-2019 with no order as to costs and with liberty to file afresh.

Under those circumstances, I am of the opinion that the Plaintiff is not entitled to recover any costs that were incurred by it relating to those proceedings. If this Court were to direct such an order, it would be contrary to the notice of discontinuance that was agreed to between parties.

Secondly, I do not find that the Plaintiff has shown any evidence of mala fides on the part of the Defendant in serving the notice to wind up based on the amount due under the two referred invoices.

Therefore, I am of the opinion that the claim for such losses or costs by the Plaintiff is also unsubstantiated.

I, therefore, dismiss the said claim by the Plaintiff. G. Orders of this Court

Based on the aforesaid, I hereby make the following orders: -

The Plaintiff’s Claim is dismissed.

The Defendant is entitled to the following remedies: -

A declaration that the termination of the contract between the Plaintiff and the Defendant is unlawful;

(ii)The outstanding invoice no. 10000867 dated

31.12.2018 and invoice no. 2019000225 dated 31.5.2019 as be paid by the Plaintiff to the Defendant;

(iii) Interest on the sum of RM92,750.00 at the rate of 2% per month from 30.1.2019 to the date of judgment,

(iv) Interest on the sum of RM92, 750.00 at the rate of 2% per month from the date of 30.6.2019 to the date of judgement,

Interest on the sum of RM92, 750.00 at the rate of 5% per annum from the date of judgment to the date realization.

The Plaintiff is directed to pay the Defendant the nominal sum of RM 10,000.00 as nominal damages suffered by the Defendant for breach of contract and for unlawful termination of the aforesaid contract.

Costs of RM 30,000.00 subject to allocator to be paid by the Plaintiff to the Defendant. Dated 30th May 2022 Dato’ Indera Mohd Arief Emran bin Arifin Judicial Commissioner High Court Malaya Kuala Lumpur NCvC 8 S/N KGdtt530qka2dq8VvSoNKg R Thayalan for the Plaintiff Messrs. Shukor Baljit & Partners (Kuala Lumpur) Advocates And Solicitors Nad Segaram and Ow Jeng Jun counsels for the Defendant