Cekap Air Sdn. Bhd. v Jovian Mandagie (WA-22NCC-314-05/2023)

The cause of action in the current suit was premised on a breach of a friendly loan. The Plaintiff applied for summary judgment against the Defendant pursuant to Order 14 of the Rules of Court 2012. At the conclusion of the hearing, the application was allowed. The Defendant appealed against the decision.

The reliefs sought by the Plaintiff are: S/N 2wcok81F0kyajZKR1tNw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 a) Penghakiman berjumlah RM5,000,000-00 ke atas Defendan; b) Faedah ke atas RM5,000,000-00 pada kadar 5% setahun dari 5/4/2023 sehingga tarikh penghakiman; c) Faedah ke atas RM5,000,000-00 pada kadar 5% setahun dari tarikh penghakiman sehingga penyelesaian penuh; d) Kos tindakan ini; dan e) Lain-lain perintah yang difikirkan adil, wajar dan sesuai untuk diberikan oleh Mahkamah Yang Mulia ini.”.

The undisputed facts as narrated by the Plaintiff are as follows: [3.1] at all material time, the director of the Plaintiff, Yong Zhen Wei is an acquaintance of the Defendant; [3.2] on February 25, 2022, the Plaintiff, in response to a verbal request from the Defendant, provided a friendly loan by transferring an amount of RM5,000,000.00 through AmBank

(M) Berhad (Account No.8881039189741). This transfer was made to a client account held by Messrs. Ahmad Deniel Ruben & Co, a law firm representing the Defendant. The loan was for a duration of 12 months; S/N 2wcok81F0kyajZKR1tNw [3.3] Messrs. Ahmad Deniel Ruben & Co has affirmed the reception of the said sum on behalf of the Defendant upon the Defendant's instructions; and [3.4] despite several verbal requests from the Plaintiff to the Defendant for the repayment of the RM5,000,000.00, no action has been taken. The Plaintiff has also issued a Letter of Demand dated 5.4.2023 to the Defendant and/or his solicitors, Messrs. Ahmad Deniel Ruben & Co. However, the Defendant has failed to repay and return the said amount to the Plaintiff, resulting in a financial loss to the Plaintiff. [4] The Defendant contended that there was no written agreement or documents to substantiate claim for a friendly loan. Instead, the sum of RM5,000.000.00 was given for the purposes of an investment. As such, there are issues to be determined at trial. Issue [5] Whether the RM5,000,000.00 was given as an investment and therefore is a triable issue. Analysis [6] It is trite that the duty is on the Defendant to demonstrate that there are triable issues. In an application for summary judgment, the burden is on the defendants to show that there are bona fide triable issues that summary judgment ought not to be granted (see S/N 2wcok81F0kyajZKR1tNw Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685, 689, FC). [7] Apart from the Statement of Defence, it is the requirement under O.14 for the Court to be satisfied on affidavit evidence that the defence not only has raised an issue but also that the said issue is triable (see Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 CLJ rep 14). [8] It is my finding that the contention that the RM5,000,0000.00 was for an investment is wholly unsubstantiated. I say this for the following reasons: A. Failure to plead particulars of the purported investment. [9] It is pertinent to note that the Defendant failed to plead particulars of the purported investment and why it was given in the first place. [10] The Defendant in paragraphs 5 and 6 of his Defence as well as paragraph 8 of his Affidavit in Reply merely stated that the sum of RM5,000,000.00 transferred by the Plaintiff to the Defendant was not a friendly loan, but rather, an investment by the Plaintiff to the Defendant’s Company. [11] Even if the agreement to invest was made verbally, particulars of the investment can surely be particularised. The failure to do so diminishes the probability of the Defendant’s contention. S/N 2wcok81F0kyajZKR1tNw [12] Once again, reference is made to Bank Negara Malaysia (supra), where it was held “Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable in itself, then the Judge has a duty to reject such assertion or denial, thereby rendering the issue as not triable.” B. Bare averments without evidential support. [13] There were no documents produced by the Defendant to corroborate his stance. Thus, it is evident from the Defence and Affidavit in Reply that the issue of the purported investment raised by the Defendant is nothing more than a mere assertion without any supporting documents to corroborate the Defendant’s claim. [14] Despite the involvement of a solicitor as an intermediary, nothing was forthcoming to demonstrate the existence of an investment. [15] It is trite that bare denials or assertions do not constitute evidence and they cannot give rise to triable issues. [16] Reference is made to the case of Ashby Construction Sdn Bhd V. Cheng Thiam Seng [1999] 3 CLJ 829 where Hamid Embong J with clarity explained mere averments cannot be triable issues and the ramifications if they are accepted - “Penilaian saya secara kritikal terhadap perenggan 6 afidavit defendan yang telah dipetik di atas tidak membawa saya kepada kesimpulan bahawa ada isu yang perlu dibicarakan S/N 2wcok81F0kyajZKR1tNw di dalam kes ini. Dakwaan yang dibuat di dalam perenggan itu tidak disokong oleh apa-apa dokumen yang boleh sekurang-kurangnya menunjukkan bahawa defendan sebenarnya telah membuat perbelanjaan untuk membina premis,…. ….Dakwaan seperti ini adalah senang sekali dibuat dan jika mahkamah ini menerimanya secara bulat-bulat, tanpa bergantung kepada sedikit keterangan bebas yang lain pun, maka akan timbul satu keadaan di mana dakwaan kosong sebegini boleh dijadikan asas bagi mengecewakan sesuatu permohonan untuk penghakiman terus di bawah A. KMT.’’. [17] As such, without any independent corroborative evidence, the contention of the Defendant that such an issue is triable must be rejected. C. Conduct inconsistent with an investment agreement [18] Parties did not conduct themselves consistent with an investment in place. There was no evidence of updates or follow-up by the Defendant to support the contention of the existence of an investment either verbally or documentarily. Again, even if the arrangements were conducted orally, the terms of the investment could have been provided. The failure to do so supports an outright fund utilization as a result of a loan. D. Failure to respond at the earliest opportunity. [19] A Letter of Demand was issued to the Defendant. However, the Defendant did not reply to the said demand. It could certainly have S/N 2wcok81F0kyajZKR1tNw laid the foundation of the Defendant’s case. Although the failure to respond per se does not automatically prove the case of the Plaintiff, nevertheless, it supports the argument that the investment argument was an afterthought. Applying the principles of law [20] In Tan Aick Teck v Tang Soon Chye [2007] 5 CLJ 441 the Court of Appeal defined “friendly loan” as follows: “....The defendant contended that from the evidence of the plaintiff himself, the plaintiff met the defendant about two or three times before the loan was given and as such it could not be a friendly loan. ...A friendly loan is opposed to the normal borrowing from a moneylender or financial institution. A friendly loan is a loan between two persons based on trust. There may be an agreement such as an I.O.U. or security pledged to repayment but most important there will be no interest imposed. ... In my view, a friendly loan is a loan given by the lender to the borrower based on mutual trust whereby the borrower was to repay the loan amount within the specified time with no interests charged...” [21] I find the assertion of the existence of an investment inherently improbable in itself. As such, I have a duty to reject such an assertion, thereby rendering the issue as not triable. Considerations when granting summary judgment S/N 2wcok81F0kyajZKR1tNw [22] This Court is cognizant of the principles laid down by high authorities when considering summary judgment application. The Defendant ought not to be shut out from defending a claim unless it is very clear he has no case in the action. A complete defence need not be shown (Alloy Automotive Sdn. Bhd. v. Perusahaan Ironfield Sdn. Bhd. [1986] 1MLJ 382 SC). The defence set up need only show that there is a triable issue (Bank Negara Malaysia v. Mohd Ismail (supra)). The provision should only be applied to cases where there is no reasonable doubt that the Plaintiff is entitled to judgment (Malayan Insurance (M) Sdn. Bhd. v. Asia Hotel Sdn. Bhd. [1987] 2 MLJ 183 SC). An application under O. 14 of the ROC order should only be made only if the court thinks it is a plain case and ought not go to trial (Esso Standard Malaysia v. Southern Cross Airways (M) Bhd [1972] 1 LNS 31). [23] In the final analysis, the question whether the issues raised were triable must be considered in light of the guidance by the Federal Court in Voo Min En & Ors Leong Chung Fatt [1982] 2 MLJ 241. The pertinent principle being one where it is not enough for the defendant “to raise an issue or any issue”. The Defendant must instead raise such issue as would require a trial in order to determine it. [24] The sole issue raised by the Defendant in the present suit clearly has failed to meet the test of being a triable issue. [25] It is in this context that cumulatively, I find the Plaintiff being entitled to a summary judgment on the trite principles laid down in National Company for Foreign Trade v. Kayu Raya Sdn Bhd [1984] 2 S/N 2wcok81F0kyajZKR1tNw MLJ 300. The Defendant failed to discharge the burden of proving that there were issues that merit a trial. Conclusion [26] It would be a waste of judicial time if the suit is allowed to proceed to trial. This is fit and proper case to allow for judgment to be entered summarily. [27] The application found in Enclosure 18 is allowed. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge High Court of Malaya Kuala Lumpur Dated: 31st July 2024 Counsel Aizul Rohan Anuar, Nur Afiqah bt Mohd Ashriee and Nor Azureen bt Ibrahim for the Plaintiff Messrs. Saiful, Roger & Co Masha Sylverster for the Defendant Messrs. Ahmad Deniel, Ruben & Co. S/N 2wcok81F0kyajZKR1tNw