Chan Kim Mun v Wira Haymatulin (BA-11BNCVC-4-02/2018)

This is an appeal against the decision of the Learned Magistrate delivered on 25 January 2017 in allowing the Respondent/Plaintiff Summary Judgment under Order 14 Rules of Court 2012 with cost of RM3,000-00 in the Civil Suit No: BA-A72NCVC-1669-08-2017.

The Appellant herein was the Defendant at the Magistrate Court and the Respondent herein was the Plaintiff named therein.

The Appellant/Defendant’s Case The Appellant/ Defendant’s case is that the monies received was never meant as “friendly loan” but for an investment by the Respondent wherein it was upon the Respondent’s request that the Appellant made these investment (which is known as the NN Invest). The Appellant had returned/ paid out profits from the said investment rightfully to the Respondent. That at all material times there was 3 never Friendly Loan Agreement between the Appellant and the Respondent.

The Respondent/ Plaintiff’s Case

The Respondent/ Plaintiff filed a Writ dated 30 August 2017 and Statement of Claim dated 11 August 2017 against the Appellant/ Defendant for a civil class action for the failure of repayment of RM94,259-00 in total sum which was purportedly given to the Appellant/ Defendant’s as a “friendly loan agreement” which has no agreement or document to confirm the same;

Upon exhausting all pleadings, the Respondent/ Plaintiff filed an Order 14 Summary Judgment Application via a Notice of Application dated 30 November 2017;

After exhausting all the Affidavits and upon reading the submissions filed by both parties the learned Magistrate allowed the Respondent’s application on 25 January

Hence, the Notice of Appeal is filed by the Appellant on 7 February 2018.

The learned Magistrate had made his findings as below: 4 MAKA ADALAH DIPERINTAHKAN bahawa Plaintiff diberi kebenaran untuk memasukkan Penghakiman Terus terhadap Defendan Kedua yang dinamakan di atas di bawah Aturan 14, Kaedah-kaedah Mahkamah 2012 dan Defendan Kedua hendaklah membayar kepada Plaintiff:

Wang sebanyak RM94,259-00 (Ringgit Malaysia: Sembilan Puloh Empat Ribu Dua Ratus Lima Puloh Sembilan sahaja);

Faedah sebanyak 5% setahun daripada tarikh penghakiman sehingga pembayaran penuh; dan

Kos permohonan ini sebanyak RM2,500-00 THE COURT’S FINDING

It is trite law based on a number of great authorities, an appellate court should but rarely interfere with the conclusion arrived at by the trial judge who has had the advantage of hearing the witnesses unless it is satisfied that the trial judge has acted on a wrong principle of law or has made a wholly erroneous estimate of damage suffered, either due to an omission to consider relevant materials or admitting irrelevant consideration. The cases in reference are: Tan Kuan Yau v. Suhindrimani Angasamy (1985) 1 CLJ 429; (1985) CLJ (Rep) 323; Kyros International Sdn. Bhd. v. Ketua Pengarah Hasil Dalam Negeri (2013) 2 CLJ 813; and the case of: Kerajaan Malaysia v. Global Upline Sdn. Bhd. & Another Appeal (2016) 1 LNS 1158; (2017) 1 MLJ 187. 5

In another case of: Datuk Syed Kechik bin Syed Mohamed & Anor v. The Board of Trustees of the Sabah Foundation &Ors. and another appeal (1998) 2 MLJ 137, where the decision of the trial judge was made on affidavit evidence and the court made the following findings: “………….are we in those circumstances entitled to intervene and reversed his decision?? I think not. It has been repeatedly said that this court has no original discretion in an appeal of this nature. Its initial function on appeal is one of review only. It is only after an appellant demonstrates either a serious misdirection by the judge or that the judge has taken into account something that he should not, or that he has failed to take into account something he should not, or that he has failed to take into account something he should have had regard to, or that his order amounts to a miscarriage or failure of justice, that this court would be entitled to intervene and exercise a discretion of its own. Despite the very careful and lucid arguments of Mr. Cherryman, I remain unconvinced that there has been a wrongful exercise of discretion by the judge in each of these cases. It is very sad that the Defendants, indeed the Plaintiffs, have to fight a battle so stale and so late in a day. But that unfortunately is not the fault of the Plaintiffs as found by the learned judge. I realized that the findings of fact by the judge have been made on affidavit evidence but I can do no better than remind myself of the judgement of Raja Azlan Shah FJ (as he then was) in Samar bte Mansor v. Mustafa Kamarul Ariffin (1974) 2 MLJ 71 where his Lordship said (at page 72)…….However much an appellate court maybe in an equal position with the trial judge as to the drawing of the inferences. It ought not to reverse the finding of 6 fact unless it is convinced that it is wrong. It is not whether the inferences are right but whether an appellate is convinced that they are wrong. If that finding is a view reasonable open on the evidence, it is not enough to warrant its reversal just because an appellate court would have come to a different view. Merely differing views do not establish that either view is wrong, but in balancing these two views an appellate should give due weight to the nature of the fact as found by the trial judge. Thus Bennax v. Austin Motor Co. Ltd. (1955) AC 370, is authority for the proposition that an appellate court is not bound by inferences of fact drawn by the trial judge which did not turn out on the credibility of witnesses, seen and heard by him, that it may not examine the matter afresh……………..”

In a civil dispute, the burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendants as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v. Secure Plantation Sdn Bhd (2017) 5 CLJ 418; (2017) 4 MLJ 697. Based on Letchumanan Chettiar Alagappan (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue.

In matters pertaining to a summary judgment under Order 14 of ROC 2012 had been decided in a plethora of cases that it is a procedural device to expedite a Plaintiff’s action where there is no dispute as to facts and law: Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn 7 Bhd (1987) 2 MLJ 183. It is trite law that the burden to prove is on the Plaintiff to establish a prima facie case: Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors. (1992) 1 CLJ (Rep) 14 (SC). Once a prima facie case had been established by the Plaintiff, the burden then shifts to the defendant to show why an order for summary judgment ought not to be entered against the Plaintiff, that is, the Defendant must show that there are issues to be tried: Shell Malaysia Trading Sdn. Bhd. v. Filotek Trading Sdn Bhd (1999) 8 CLJ 592; Fira Development Sdn. Bhd. v. Goldwin Sdn. Bhd.(1989) 1 CLJ 34 (FC). ISSUE Is it a “Friend Loan” or an Investment known as NN Invest in China upon the Respondent’s request?

In the beginning, there is no dispute by either party in this case there is no written document to prove the existence of a friendly loan or otherwise. Having said so, the learned counsel for the Appellant had submitted that since there is no written agreement, the only way to establish whether it is a friendly loan agreement or an investment, it can only be deduced through trial by calling witnesses to give evidence on the stand. To conclude that the monies were for the purpose of a friendly loan is a mere speculation and is completely wrong. Furthermore, the counsel submitted that the learned Magistrate had placed the burden on the Appellant to proof that the investment are for a scheme which no documents was produced by 8 the Appellant, hence the Application by the Respondent was allowed. The learned Magistrate has erred in failing to consider the fact that there is no documents or evidence shown to back the claim that the money is for a friendly loan agreement.

Having scrutinized the Affidavits and exhibits filed by both parties, it has come to my mind that through the Respondent’s account in HSBC Malaysia Berhad whereby the money was debited by way of “fund transfer” to another account under Malaysian Banking Berhad on 2 August 2013. The account was under the name of the Appellant’s company – Rock Distribution which the Appellant has full knowledge of that account. To this effect, I noticed that the Appellant had never denied receiving it from the start, having knowledge that such sum has been debited into his account and as alleged by the Respondent/ Plaintiff it was meant for a “friendly loan” based on their mutual trust and for their long years of friendship. Having considered this, to my mind, the Respondent/Plaintiff had already prove a “prima facie case” on the issue of “friendly loan” and the burden is now shifted to the Appellant to proof to this Honourable Court that the sum owned in not a friendly loan. In the case of: Ridzuan Ahmad bin Idrus & Anor v. Mohd Yusof bin Omar (2017) MLJU 678, the court held that: “…………it was an appeal against the decision of the High Court which allowed the Plaintiff’s claim for the repayment of a friendly loan given by the Plaintiff to the Defendant. In that case, the Defendant admitted that he received the money but denied that 9 it was a friendly loan. No loan agreement was made between the Plaintiff and the Defendant but there were two cheques issued to the Defendant which the Court of Appeal held it is irrelevant as to how the Plaintiff got the amount and the Defendant’s argument that the cheque cashed did not belong to the Plaintiff plainly not true. The Court of Appeal decided that the Defendant made up the evidence to avoid paying the friendly loan given by Plaintiff…………….” Similarly, in the case of: Tan Aik Teck v. Tang Soon Chye (2007) 5 CLJ 441 (CA), where the Court of Appeal had dismissed the Appellant’s appeal and decided that: “……the Plaintiff admitted that there was no loan agreement in respect of the loan given to the Defendant. The loan could only be proved by the two cheques which were paid into the Defendant’s account and also the admission by the Defendant that he had put the money into the account. Since the Defendant had admitted that he had received the two cheques and had credited them into his account, the Plaintiff had discharged his burden that the money was a loan unless proven otherwise by the Defendant. As such, the burden was on the Defendant to prove that the money given to him by the Plaintiff was not a friendly loan……”

In the light of the above cases and the burden is now shifted to the Appellant to prove otherwise, the learned Magistrate in her judgment at page 7 Rekod Rayuan Tambahan Jilid 2 had said this: 10 “……Setelah meneliti ekshibit yang dikemukakan serta pernyataan-pernyataan Defendan Kedua, tiada sebarang dokumen yang dikemukakan oleh Defendan Kedua yang mengaitkan Plaintiff di dalam pelaburan skim cepat kaya sepertimana yang didakwa oleh Defendan Kedua dalam kes ini…. ……………………. Berdasarkan kepada penelitian Pembelaan dan Affidavit Jawapan Defendan Kedua, mahkamah mendapati Defendan Kedua telah gagal untuk menunjukkan terdapat isu-isu yang perlu dibicarakan. Jelas dalam kandungan Affidavit Jawapan Defendan Kedua bahawa transaksi-transaksi yang dinyatakan adalah di antara Defendan Kedua dengan individu bernama Lee Hock Hin dan Sam Kam Heng dan bukan Plaintiff di dalam tindakan ini…….” In justifying the learned Magistrate findings, I hardly find anything or evidences in which the Appellant/ Defendant’s had produced or tender any documents to support their story. There is no such brochure or documents that related to the alleged NN Invest Investment Scheme was tendered. There was nothing to show that the sum RM94,250-00 transferred into the account was for the investment in China. A point of interest, there is nothing to show that the Respondent had gain any profit from the investment “purportedly” made by her. It is quite surprisingly, though the Appellant admitted that the sum of money was debited into his account, but failed to proof in exhibits that the sum received was for investment. As such, to my mind, the Appellant’s allegations is not conclusive and not supported by any exhibits, in the case of: Chen Hing Ping @ Tian Seow Hock & 5 Ors. v. Intradagang Merchant Bankers (M) Berhad (1995) 3 CLJ 690, it was held that: 11 “…….when an application is made for summary judgment under order 14 supported by affidavit which goes to show that there is no defence, the Defendant must show cause why leave to defend must be given. This means that the Defendant must provide an answer on oath which constitute evidence that they have defence which fit to be tried. The Appellants in the present case do not appear to have appreciated this. Their affidavit merely relied on the defence they pleaded, which consists of bare denials and points of law which they could not sustain…….” Similarly, in the case of: Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors. (1992) 1 CLJ (Rep) 14 (SC), the court held that: “…..under Order 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. 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 deponents or is inherently improbable in itself. Then the judge has a duty to reject such assertion or denial thereby rendering the issue not triable. Unless this principles is adhered to, a judge is in no position to exercise his discretion judicially in order 14 application……”

In the premised, having heard the submission by both parties, based on the facts and case law, it is very clear that the learned Magistrate had applied the correct principles of facts and law in 12 her finding that the Appellant/ Defendant has failed to prove any triable issues which require a full trial and there is no merit in the Appellant’s defence. I hardly find anything in the judgment of the Magistrate that warrant judicial interference. To my mind, the Appellant is not genuine in seeking legal redress against the Respondent and tantamount to a blatant abuse of the court process. As such, this appeal is dismissed with cost RM5,000.00. Dated 24 September 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan Counsel For the Appellant : Aravind Raj (Messrs. V Samy & Co ) For the Respondent: Nurul Hafeeza Mohd Zaidi (Messrs. Manjit Singh Sachdev Mohammad Radzi & Partners)