Emerico Sdn. Bhd v Agency Pekerjaan Times Management (BA-11BNCVC-2-01/2018)

This is an appeal against the decision of the Learned Magistrate in allowing the Respondent/Plaintiff Writ and Statement of Claim dated 6 July 2017 and dismissing the Appellant/Defendant’s counterclaim dated 16 August with costs of RM6,000 on 8 January 2018.

The Appellant/ Defendant executed the Service Agreement on 13 July 2015 to engage the services of the Respondent/Plaintiff to provide and the supply scope of services for Executive search services which includes identifying, interview, prescreen, select and 3 recommend candidates who match the Appellant/ Defendant’s description and requirement of the jobs;

Thereafter Respondent/ Plaintiff was successful in identifying, interview, prescreen, select and recommend candidates who match the Appellant/ Defendant’s description and requirement of the jobs;

Respondent/ Plaintiff successfully placed 5 candidates in accordance with the Appellant/ Defendant’s requirement.

Teoh Seow Boon was appointed by the

Cham Chiau Ling was appointed as

Chan Mei Ling was appointed by the Appellant/ Defendant as HR cum Administrative Executive on 3 May 2016;

Leok Zheng Hua as appointed by the Appellant/ Defendant as Programmer on 1 July 2016; and 4

Evon Pang Yee Wan was appointed by the Appellant/ Defendant as Administrative Executive on 4 July 2017.

The Appellant/ Defendant’s witness Foong Chee Yoon (SD1) agreed that the above 5 candidates that was introduce by the Respondent/ Plaintiff have been successfully appointed and placed in the Appellant/ Defendant’s organization by the Appellant/ Defendant after being interviewed by the Appellant/ Defendant;

Further Appellant/ Defendant’s witness Foong Chee Yoon (SD1) also agreed that since the 5 candidates has been successfully appointed and placed in the Appellant/Defendant’s organization, the placement fees as per the Service Agreement executed by the Appellant/ Defendant is applicable to the Respondent/ Plaintiff;

Since the Respondent/ Plaintiff is entitled to the placement fees as per the Service Agreement, the Respondent/ Plaintiff proceeded to issue the following invoices:

For Teoh Seow Boon, the invoice SSD/16/0136 was dated 18 January amounting RM19,334-40;

For Cham Chiau Ling, the invoice SSD/16/0431 was dated 18 April 2016 amounting to RM5,088-00; 5

For Chaw Mei Ling, the invoice SSD/16/0505 was dated 3 May 2016 amounting RM6,042-00;

For Leok Zheng Hua , the invoice SSD/16/0704 was dated 1 July 2016 amounting RM7,733-76;

For Evon Pang Wee, the invoice SSD/16/0711 was dated 4 July 2016 amounting RM6,105-60.

The Respondent/ Plaintiff representatives, Mr. Ho Sel Haul (SP1) and Mr. Ng Wai Mun (SP2) have on various occasion followed up with the Appellant/ Defendant’s representative, Mr. Chee Yoon (SD1) and was told that the cheque was ready and waiting for bosses signatory. The Respondent/ Plaintiff’s representatives even hold a meeting at the Appellant/ Defendant’s office with the Appellant/ Defendant’s representatives, Mr Fong Chee Yoon (SD1) to discuss on the outstanding payment issues and the Appellant/ Defendant ask us to check with the finance Manager when the cheque was ready. However till to date no payment was received from them;

The total amount outstanding is RM44,303-76 as stated in the Respondent/ Plaintiff’s statement of account dated 28 February 2017;

The Respondent/ Plaintiff instructed its solicitor to issue a demand letter for the amount outstanding of RM44,303-76 which the solicitor 6 for the Respondent/Plaintiff issued the letter of demand on 29 May 2017;

However, there was no response by the Appellant/ Defendant towards the letter of demand issued against the Appellant/ Defendant, the Respondent/ Plaintiff instructed its solicitor to file a suit in court to claim for the amount outstanding against the Appellant/ Defendant, wherein the present suit before the Magistrate Court . Writ was filed on 6 July 2017.

The learned counsel for the Appellant/Defendant had advanced nine grounds of appeal which include:

Despite the finding that the Respondent was still in contract with the candidates after they were placed with the Appellant, the Respondent had not committed any wrongdoing;

When he decided that the agreement by the Respondent to waive the charges was not proven;

To have failed to take into account that the agreement by the Respondent to waive the charges was as a result of the Respondent kept contacting the candidates; 7

Despite the finding that the evidence of PW1 and PW2 were inconsistent with each other, the learned Magistrate accepted their testimonies;

In accepting the evidence of PW1 and PW2 which were inconsistent , the learned Magistrate gave undue weight to their evidence and decided that there was no agreement to waive the charges;

In deciding against the existence of an agreement to waive the charges, the learned Magistrate found that the Appellant must prove candidates must leave the Appellant’s company due to the Respondent’s actions in contacting them;

In deciding against the existence of an agreement to waive the charges, the learned Magistrate found that such agreement amounts to an additional term of the existing agreement between the Respondent and the Appellant;

In failing to consider that the Respondent ‘s actions in contacting the candidates amount to a breach of implied term and a wrongdoing in tort;

In deciding that the agreement for headhunting services required only the acceptance from the Appellant to be effective; and 8

When the learned Magistrate interest in favour of the Respondent. THE LEARNED MAGISTRATE’S DECISION

The learned Magistrate had made his findings as below:

Merely approaching the candidates by the Respondent/ Plaintiff without them proving that because of the approach made that the candidates has accepted the further offers made by the Respondent/ Plaintiff’s agent, does not cause the candidates leaving the employment within the Appellant/Defendant because the respondent/Plaintiff and they has to bear such responsibility;

(ii) The “purported agreement” to waive the amount in the invoice was never be an agreed additional term apart from the terms on Service Agreement that bound both parties;

(iii) The invoices issued based on the Service Agreement is valid and could be the basis of the Respondent/Plaintiff’s claim; and

(iv) As the Appellant/Defendant had failed to prove that the candidates’ resignation were due to approach made by 9 the Respondent/Plaintiff, their counter claim shall be doomed a failure. 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.

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. 10 FIRST ISSUE Despite the finding that the Respondent was still in contract with the candidates after they were placed with the Appellant, the Respondent had not committed any wrongdoing;

In the beginning, the learned counsel for the Appellant submitted that the learned Magistrate had made a finding that the Respondent had in fact approached the candidates. The learned Magistrate had made an error when imposed a condition that The learned counsel had Appellant must prove that the Respondent’s action has caused the candidates to leave the Appellant’s company. In view of this, the learned counsel submitted that the Respondent/ Plaintiff had approached the said candidates to work for another companies after the guarantee period expires hence causing losses to the Appellant/ Defendant and the Respondent/ Plaintiff admits to this alleged wrong doing and as settlement agreed to waive the said invoices. The allegation of the Appellant/ Defendant’s is merely based on the evidence of (SD1) and gave example of the candidate, Teoh Seow Boon resignation. Having considered the evidence of (SD1), I have the opportunity to view again the appointment letter at page 241 Rekod Rayuan, C & D 2. Based on this letter, his commencement of work was on 18 January 2016 and has to serve the probationary period of 6 months before his is confirmed, that would be in 17 July

According to (SD1), Teoh’s performance was not good enough and decided to extend his probation period for another 3 month until 18 October 2016. This would means that (SD1) would have 11 confirmed Teoh after 18 October 2016. Nevertheless Teoh’s has given two months notice of resignation which ends in July 2016. As such it is consistent with the requirement of the Letter of Appointment wherein 2 month’s notice need to be given during the probation period. To my mind (SD1) evidence is contradicted with the letter of appointment and the resignation letter. As such Teoh’s resignation during his probation period due to (SD1) was not happy with his performance and wanted to extend the probation period and not because of the Plaintiff’s conduct trying to convince Teoh to apply to other job position in other companies of the Plaintiff’s client. Having perused the documentary evidence ie. the letter of appointment and the letter of resignation of another two candidates, namely Chan Mei Ling and Evon Pang Yee Wan, I hardly find that the Respondent/ Plaintiff had approached them to apply to other job position in other companies of the Respondent/ Plaintiff’s client after the guarantee period. As there was no such wrong doing, what is there any form of settlement to waive the invoices as submitted by the Appellant? In the case of: Kim Guan & Co. Sdn. Bhd. v. Yong Nyee Fan & Sons Sdn. Bhd.

2 MLJ 8 (PC), it was held that: “…………..on the fact of the case and in the light of the documentary evidence it is impossible to support the conclusion reached by the trial judge. The Federal Court, which lost no advantage because it did not see and hear the witnesses, was fully justified in reversing and indeed was bound to reverse the trial judge………” 12

On the other hand, to further support the Appellant’s contention, the learned counsel had referred to the evidence of Cham Chiau Ling (SD2), one of the candidates which the Respondent/ Plaintiff placed with the Appellant/ Defendant. This witness had confirmed working with the Appellant/Defendant for 1 year 7 months and later tendered her resignation in November. This witness had confirmed that the Respondent/Plaintiff’s staff by the name of Tee Soon Keong (RW1) had called her on 19 July 2017 to enquire whether she was interested for a software developer job in another company which she informed she was interested however (RW1) followed up with the email. Nevertheless, when (RW1) was called in by the Respondent/Plaintiff as rebuttal witness, this witness gave evidence as follow: “……….he did not know Cham Chiau Ling was placed at the Appellant/ Defendant’s company by the Respondent/ Plaintiff’s company on 18 April 2016 as he joined the Respondent/ Plaintiff after Cham Chiau Ling was place at the Appellant/Defendant’s company and further I got the detail from Job Street website and not from the Respondent/ Plaintiff’s database”

Having considered the admission of (RW1) and his explanation, I accepted his evidence as a witness of truth. In this context, the learned Magistrate in his grounds of judgment at page 26-28, 32-34 of Rekod Rayuan A&B1 had fully considered as follows: 13 [17] With the above kind of evidence presented before this court it is my view that the Defendant must prove the 4 candidates were or is leaving the Defendant due to the approach made by the Plaintiff or its agent. [18] Among these 4, the Defendant was calling only Cham (SD2) came to prove the contact and her evidence are ... [19] During the cross examination, SD2 was so persistent with her mew that she had rejected the offer. But in her additional questing during examination in chief, she confirmed that she would be leaving the Defendant company. There was no question put to her that she was leaving because of the Plaintiff or its agent. At this juncture, I am satisfied to hold that she was not leaving because of the Plaintiff. [20] Based on the above evidence, it could be perceive that the Plaintiff was in contact still with the only SD2 candidate placed within the Defendant, but the big but here is, whether the SD2 was leaving due to such contact was not proven. [30] After satisfying that the Plaintiff through it agents had still in contact with the candidates placed with the Defendant, we must examine whether the consequence of the contact the candidates left the Defendant. As far as the SD2 is concerned, I am satisfied the answer was negative. [31] For Teoh, Chaw and Evon, there was no evidence led by the Defendant why all of them resigned from the Defendant. Their evidence to me is crucial and very important to determine their leaving was due and because of the conduct 14 of the Plaintiff’s agent and they were moving to the company recommended as the said agent. [32] If they could come and testify why they are leaving and who caused them leaving and whether the Plaintiff was conspiring for their leaving, the cause could be linked to the Defendant. Even if they could testify that the reasons for their resignation was because of the Plaintiff’s offer, whether they really accept the offers and moving to the company they were offering to, it matters. [33] Without their evidence in Court, the allegation that their resignation was due and caused by the Plaintiff or Plaintiff’s agent is merely speculative. On speculative litigation, I love to quote the decision of Abdul Aziz Mohammed J (as he then was) in Perumahan NCK Sdn Bhd v Arab Malaysia Merchant Bank & Anor f1999] 4 MLJ 444 (TAB 2) which he held that:- A prospective plaintiff should before plunging into litigation ensure upon sufficient preparation that he is able to make out a case. Failure to do so, would render the pleadings wanting in particulars, and upon a request being made for such particulars, the action may be deemed to be speculative litigation. Such speculative litigation [as was revealed in the Wharf case] is an abuse of the process of the court, and would be enormously and unfairly burdensome to a defendant and should not be allowed to continue. [34] Apart relying on the resignation letters in page 67-69 of the Ikatan B, such could not be sufficed to show that their resignation was due and because the recommendation 15 made by the Plaintiff either. The said letters were silent on the reasons for resignation and fot the Plaintiff to be linked as to cause it. [36] Based on the above, I am satisfied to answer the 1st issue in positive that the Plaintiff was approaching the candidates. However, merely approaching without them proving that because of the approach made that the candidates has accepted the further offers made by the Plaintiff’s agent, does not cause the candidates leaving the employment within the Defendant because the Plaintiff and they has to bear such responsibility. [37] Such assertion is consistent to a bare assertion unsupported as discussed by the Plaintiff’s solicitor while referring to Kim Guan & Co Sdn Bhd v Yong Nyee Fan & Sons Sdn Bhd [1983] 2 MLJ 8 (TAB 1). As the learned Magistrate had considered this issue at length, it is my considered view that the Appellant/Defendant’s allegation that the Respondent/ Plaintiff had approached the said candidates to work for another companies after the guarantee period expires and incurred losses is baseless and unfounded. In furtherance, having considered the above, the question of whether there was an agreement for the Respondent/ Plaintiff to waive the amount payable by the Appellant/ Defendant as to the approach by the Respondent/ Plaintiff had caused losses does not arised. To this effect, the learned Magistrate had also considered at length in his judgement at page 34 to 36 Rekod Rayuan, para 38, 39, 43 and 46. 16 SECOND ISSUE Status of Letter of Demand - wrongly issued by the Respondent/Plaintiff’s administration?

When the Letter of Demand by the Re 20.

spondent/ Plaintiff was put to the Appellant/ Defendant, they had approached (SP1), stating that there is no amount owing since based on the settlement reached for the alleged Respondent/ Plaintiff’s wrong doing, hence (SP1) had told to ignore the letter of demand as it was wrongly issued by the Respondent/ Plaintiff. From the Rekod Rayuan, I hardly find anything that (SP1) had ever stated the above. The next question arised, is why did the Appellant/ Defendant did not respond to the letter of demand. To this effect, I am fully satisfied with the explanation given by the learned Magistrate in his ground of judgments at page 35 and 36 Rekod Rayuan A & B 1 as follows: [44] Putting the above aside, if the SD1 was so certain that such agreement was reached, he should have replied to the Letter of Demand issued by the Plaintiff at page 76-78 of the Bundle B. Even the agreement after the meeting was not confirmed in writing, if the Defendant replied to this letter of demand and stating the said agreement, their averment on waiver could have been accepted by this Court. In isolation, as Leok is still with the Defendant the said invoice pertaining to Leok was not settled? It is evident that the Defendant was neglecting to pay. 17 [45] There are numerous authorities reported to say the non-replying of the letter of demand tantamount to the admission of the demand in the said letter and such principle could be upheld against the Defendant here. THIRD ISSUE Invoice SSD/16/0136 and SSD/16/0431 Were it Invalid?

It is to be noted that the two invoices are related to the placement of the candidate Teoh Seow Boon who was appointed by the Appellant/Defendant as Senior System Analyst on 18 January 2016 and Cham Chiau Ling was appointed as Web Programmer on 18 April 2016 by the Appellant/ Defendant. The learned counsel for the Appellant/ Defendant had submitted that as the invoices were issued prior to the Respondent/ Plaintiff signing the Service Agreement on 19 April 2016, and hence invalid. In deciding this issue, it was not disputed that the Appellant/ Defendant had executed the Service Agreement on 13 July 2015. The Appellant/ Defendant had agrees and confirmed that the two candidates above was introduce by the Respondent/ Plaintiff have been successfully appointed and placed in the Appellant/ Defendant’s organization by them after being interviewed. As such, the placement fees as per the Service Agreement is payable. At page 185 and 189 of Rekod Rayuan C & D 2, the Service Agreement provides as follows: 18 “………….by signing on this Service Agreement, the client herewith gives formal permission to the supplier to commence the candidate executive search service. The client also agrees to allow the supplier to communicate information pertaining to clients to the candidates…………..” The learned Magistrate had also considered this issue at length at page 40 Rekod Rayuan A & B 1 as follows: [56] J had examined the Service Agreement in close scrutiny and I found that the basis of the Defendant’s submission in relying on Signature clause of the said agreement alone shall be construed as misdirection. This is because, reading the Acceptance clause of the Service Agreement, it clearly states that upon signing this Agreement, the Defendant was giving their formal permission to the Plaintiff to commence the candidate executive search service. This clause does not require both signatures to be concurrently produced but rather limit it to the Defendant being the client. [57] Based on the fact, as it was signed by the Defendant before the said invoices issued, it is perceivable that Defendant had authorized the Plaintiff to search for the said candidates inclusive the candidates as per two invoices in dispute. [58] As such, the invoices issued based on the Service Agreement is therefore valid and could be the basis of the Plaintiff’s claim. 19 To this effect, I have view the case of: PB Securities Sdn. Bhd. v. Raja Abd. Rahman bin Raja Mansor (2010) 8 MLJ 770, Mahkamah Weng Kwai J held that: Having agreed that he had signed the service undertaking and the contract for service, the defendant cannot now be heard to say that he did not enter into the said agreements with the plaintiff and thus was not aware of the terms therein. There was no evidence whatsoever to show that the defendant had signed the two documents under duress or that the terms thereof had been misrepresented to him or that he was induced into signing the documents through fraud. It was unacceptable that an educated person like the defendant, holding a senior position would have been made to enter into two agreements with the plaintiff without his knowledge or consent. The defendant was entering into contracts for his professional services with the plaintiff and was not signing them as a mere formality (see paras 22-23). The defendant was entering into contracts for his professional services with the plaintiff and was not signing them as a mere formality. In the case cited by plaintiff’s counsel of Serangoon Garden Estate Ltd v Marian Chue [19591 MLJ 113 Chua J adopted the words of Denning J in the case of Curtis v Chemical Cleaning and Dyeing Co Ltd [1951] 1 All ER 631 that a 'signature is irrefragable evidence of (a person's) assent to the whole contract'. At p 114 Chua J held: I think it is quite clear that when a party signs a contract knowing it to be a contract which governs the 20 reiations between them, then, to use the words of Denning J in the case of Curtis v Chemical Cleaning and Dyeing Co Ltd 'his signature is irrefragable evidence of his assent to the whole contract, including the exempting clauses, unless the signature is shown to be obtained by fraud or misrepresentation'. Chua J went on to quote Scrutton LJ in the case of L'Estrange v Graucob Ltd [1934] 2 KB 394, who said When a document containing contractual terms is signed, then, in the absence of fraud; or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not. I find without hesitation that the defendant did enter into the two agreements with the plaintiff. There is no suggestion whatsoever that the defendant's signature is a forgery. As such the defendant is bound by the terms contained therein. Based on the above, I am fully agreed with the Magistrate’s decision and does not warrant anything for this court to disturb with the finding. FOURTH ISSUE Appellant/ Defendant’ counter Claim Was it justified??

It is to be noted that the defence and counter claim pleaded by the Appellant/ defendant is specific and never pleaded negligence or the 21 particulars of negligence on the part of the Respondent/Plaintiff. To this issue, the learned Magistrate had endorsed in his ground of judgment at page 37 to 39 Rekod Rayuan A & B 1 as follow: [47] It was the Defendant’s averment that the purported action by the Plaintiff in contacting and dealing with candidates has caused the damage to the Plaintiff’s business with an intention to injure the Defendant. Due to that the Defendant was suffering the losses and damages due to that action. [48] On the said losses, it could be imported from the evidence of SD1 as below... [49] Based on the above evidence, the losses explained was in pertain to Teoh’s resignation only. There were no losses explained for the remaining two as well as for SD2’s leaving. Be it as it may, the query to my mind is, if Teoh is good as the above explanation, why there is need for Teoh’s probation to be extended. Why there is need for him to warn Teoh, should he consider him as senior. [50] Upon Teoh’s resignation, SD1 states that it disrupted the Defendant’s department, but how such department was disrupted and how disruption had caused losses to the Defendant’s revenue was not explained. There was no evidence led by the Defendant that as result of Teoh’s resignation, the Defendant’s profit tumbling. [51] SD1 had also stated that because of Teoh’s resignation, he had no choice but again spending time in training the recruit 22 of the skills required for the position as Teoh was holding. But the Defendant had failed to show what kind of training that he had given to Teoh to consider the special training was given. In such absence, I must say, the Defendant’s averment is baseless. [52] I must also state, in order for the Defendant to succeed in their counter-claim, they must prove that Teoh’s resignation was due to approach made by the Plaintiff. Without that evidence, their counter claim shall be doomed a failure.

In the light of the foregoing and in the upshot, after hearing 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 allowing the Respondent/Plaintiff’s claim and dismissing the Appellant/Defendant’s counter claim. I hardly find anything in the judgment of the Magistrate that warrant judicial interference. As such, this appeal is dismissed with cost RM5,000.00. Dated 26 September 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan 23 Counsel For the Appellant : C.B Loh (Messrs. Ivan & Ang) For the Respondent : S. Vengadeswaran (Messrs. S. Vengadeswaran)