CGS International Securities Malaysia Sdn Bhd v Cheong Yow Kien (JA-22NCC-37-05/2024)

This is an interlocutory application by the Plaintiff vide Enclosure 6 for summary judgment against the Defendant under O.14 of the Rules of Court 2012.

The Plaintiff is a licensed stock broker firm in the local bourse.

On 03.05.2021, the Defendant opened his individual share trade account with the Plaintiff.

By way of Writ and Statement of Claim filed herein, the Plaintiff is claiming against the Defendant for a loss arising from a contra transaction which arose from the sale and purchase of Euro Holdings Berhad shares (“Euro Shares”) transacted by the Defendant between 14.6.2021 to 18.6.2021.

Such loss arose when the Defendant failed to make payment to the Plaintiff at the latest before 2.00 pm on the 2nd business day when the Defendant bought the said Euro Shares as prescribed under Rule 9.09(2) read together with Schedule 2 of the Rules of Bursa Malaysia Securities (Bursa Rules). The said rule is reproduced below:- “9.09 Settlement between a Participating Organisation and Client

If a Participating Organisation is a buyer in a Contract, the buying Client must pay the Participating Organisation by the day and time prescribed in Schedule 2. [6] Due to the failure on the part of the Defendant to make the said payment to the Plaintiff, the Plaintiff in turn had to sell the said Euro Shares back in the stock market through what is commonly known as ‘force sale’. The amount obtained from the force sale was used by the Plaintiff to contra the cost for the said purchase of Euro Shares that have not been paid by the Defendant. [7] The Plaintiff summarized the particulars of the amount due and owing by the Defendant which arose from the losses due to the force sale in the form of a table below. [8] The Defendant had been making payments to the Plaintiff to the tune of RM 564,156.33 for a period of 2/12 years but continue to default thereafter. [9] Thus, the Plaintiff now claims against the Defendant a sum of RM1,594,982.89 calculated as at 24.04.2024. [10] It is the Plaintiff’s position that the Defendant has no valid defence for the claim, hence the summary judgment application filed by the Plaintiff in Enclosure 6. [11] The Defendant on the other hand, either pleads in his defence or avers in his affidavit that the money used by him to purchase the said Euro Shares is actually a loan that he obtained from the Plaintiff. Although admitted that he had signed few documents with the Plaintiff, the Defendant claimed that he did not know the contents of the documents nor was he given with a copy of those documents by the Plaintiff. [12] The defendant also alleges that the Plaintiff had committed fraud against him for the transactions. [13] Thus, those by themselves are triable issues that summary judgment cannot be allowed to be obtained against him, so contends the Defendant. Decision [14] The law on summary judgments is trite. Once the Plaintiff is shown to have (i) served the Statement of Claim to the Defendant; (ii) the Defendant had entered his appearance; and (iii) the Plaintiff had filed the affidavit verifying his claim, the duty then will be shifted to the Defendant for him to show to the court that he has a triable issue that warrant the matter to go for full trial (see National Company For Foreign Trade lwn Kayu Raya Sdn Bhd (1984) 2 MLJ and Bank Negara Malaysia lwn Mohd Ismail & Ors (1992) 1 MLJ ms.

[15] Upon perusing the Plaintiff’s affidavits in support of Enclosure 6, I am satisfied to conclude that the relationship between the Plaintiff and the Defendant is clearly not one of borrower-creditor but a trader-broker for the trading of shares in the stock market. In this regard, reference is made to the following documents as exhibited in the Affidavit in Support affirmed by Toh Seng Kiat dated 13.08.2021 (Enclosure 7) as follows:-

Account application form – exhibit “CGS-2”;

(ii) General Terms and Conditions And Risk Disclosure Statement - Conventional Broking – exhibit “CGS-3”;

(iii) Invoice and Contract Statements – exhibit “CGS-4”;

(iv) Contra/Set Off payment – exhibit “CGS-5”; and

Statements of Account – exhibit “CGS-6” [16] It is also my further finding that in his affidavit resisting Enclosure 6, the Defendant had failed to furnish any document that could support his otherwise contentions against the Plaintiff’s case. Thus, the denials on the part of the Plaintiff are nothing more than mere denials with intent to delay the whole matter from being disposed of swiftly by this Court. [17] Further, there is nothing forthcoming from the Defendant to explain the payment of RM 564,156.33 for a period of 2/12 that he had made to the Plaintiff nor was there any explanation regarding the invoices and statement of accounts exhibited by the Plaintiffs in its affidavit. [18] As such, I am satisfied that the defence of not knowing the contents of the documents he had executed or non est factum raised by the Defendant is totally bereft of any merit. Further, it is a trite principle of law that the Defendant will still be bound by the documents that he has signed notwithstanding that the document was not explained to him [see Rabiah bt Ani v Samsi bin Hj Hasim (t/a Syarikat Perniagaan Jaya) & Anor (2011) 7 MLJ 225]. [19] Finally, it is also a trite rule of pleadings that fraud must be specifically pleaded and particularised, and this I find to be wanting from the Defendant [see Wong Yew Kwan v Wong Yu Ke & Anor

2 MLJ 672]. [20] Thus, it is my finding that the allegation of fraud and deceit are merely bare assertions and not supported by any contemporaneous documents before this Court. Since it is trite that bare assertions are insufficient to raise triable issues, I therefore reject them [see Abdol Mulok bin Awang Damit v Perdana Industri Holdings Bhd (2003) 4 MLJ 441]. Conclusion [21] Based on the reasons as adumbrated above, I am satisfied that the Plaintiff has successfully provided the necessary proof to support its claim against the Defendant. [22] Since the Defendant fails to provide any evidence that can convince this Court that there exists at least a triable issue that merits for the instant matter to go for trial, I allow the Plaintiff’s application in Enclosure 6 for summary judgment to be entered against the Defendant. [23] I also order costs of RM3,000.00 to be paid by the Defendant to the Plaintiff, subject to payment of allocator fee. Dated: 10.02.2026 ……………………………………….. NOOR HISHAM BIN ISMAIL Judge High Court of Johor Bahru For the Plaintiff : Messrs Lee Hishammuddin Allen & Gledhil Aras 6, Menara 1 Dutamas, Solaris Dutamas, No. 1, Jalan Dutamas 1 50480 Kuala Lumpur For the Defendant : MESSRS S. K. SONG No. 75A, Jalan Mutiara 1/9 Taman Mutiara Mas 81300 Skudai, Johor