Francis Ho See Sin v Toh Ooi Peng (WA-12BNCvC-55-06/2025)

TOH OOI PENG

HO SZE KEEN

HO WYE LUN (NO. K/P: 940114-14-5831) …RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA GUAMAN NO: WA-A52NCVC-266-04/2022)

TOH OOI PENG

HO SZE KEEN

HO WYE LUN (NO. K/P: 940114-14-5831) …PLAINTIF-PLAINTIF 08/08/2026 23:01:20 WA-12BNCvC-55-06/2025 Kand. 43

FRANCIS HO SEE SIN

GIACOMO TRAVEL & TOURS SDN BHD (NO. SYARIKAT: 197098-D) …DEFENDAN-DEFENDAN Diputuskan oleh Puan Hakim Yasmin Binti Abdul Razak di Mahkamah Sesyen di Kuala Lumpur pada 20.05.2025) GROUNDS OF JUDGMENT Introduction [1] The Appellant is the 1st Defendant in a civil suit at the Sessions Court below. There were two claims pleaded within that civil suit filed against him by his sister-in-law and his two brothers. Both claims are based on alleged promises of indemnity. [2] The learned Sessions judge allowed both claims. The first claim is for a sum of RM200,000.00 allegedly lent by the 1st Plaintiff, which loan was released to the 2nd Defendant company, upon a request made by the Appellant/1st Defendant. The 1st Respondent/Plaintiff contends that she had paid out the sum of RM200,000 upon the Appellant/1st Defendant’s promise to indemnify her in the event of the 2nd Defendant failing to repay. The second claim is for a sum of RM76,494.54 allegedly payable in Australia by the 1st Defendant’s son and daughter to the 1st, 2nd and 3rd Plaintiffs. [3] After hearing submissions, this Court decided to allow the Appellant’s appeal in part, i.e. to maintain judgment for the first claim of RM200,000 to be paid by the Appellant/1st Defendant and to dismiss the claim against him for the sum of RM76,494.54 allegedly payable by the Appellant’s son and daughter-in-law. In order to avoid any doubt, the whole of the Sessions Court’s judgement was set aside, and judgment was entered against the Appellant, requiring him to pay the 1st Respondent/Plaintiff only the sum of RM200,000 with interest. [4] My grounds are as set out below. Background Facts [5] As mentioned above, the disputes are between the Appellant/1st Defendant (Francis Ho) with his sister-in-law and his two brothers. [6] The Appellant/1st Defendant does not deny that he approached his brother and sister-in-law for financial assistance in February 2016. The 1st Respondent agreed to help and issued a cheque for RM200,000.00, which upon the Appellant's request, was made payable to Giacomo Travel & Tours Sdn Bhd (the 2nd Defendant), a company in which the Appellant was a director. [7] As it was to be a loan and not gift, promises were made by the Appellant to repay but he failed to fulfill his promise or to make the 2nd Defendant repay the 1st Respondent. When demands were made by his angry sister-in-law (the 1st Respondent), he promised to pay up the RM200,000 but had failed to fulfil his promise. [8] The background facts of the 2nd claim against the Appellant/1st Defendant arose from his son and daughter-in-law being allegedly negligent in managing three properties in Australia for the Respondents/Plaintiffs. It has nothing to do with the first claim for RM200,000. [9] The 1st and 2nd Respondents are co-owners of a property in Australia, identified by its address “The Essence”” while the 2nd and 3rd Respondents co-own two properties with addresses in Garden Street and Hewitt Avenue respectively. The Appellant’s son (Sean Ho Seng Syau) is a nephew of the Respondents. The young man and his wife – who used to be residents in Australia – were apparently appointed by the Respondents to manage those three Australian properties. [10] The Respondents allege that their said nephew (son of the Appellant) had deposited irregular and unexplained amounts of money into the 3rd Respondent's bank account without issuing proper invoices or receipts, despite repeated queries from the Respondents. This resulted in a shortfall in rental income amounting to AUD11,761.26 for the years 2018, 2019 and 2020. [11] The Respondents further alleged that the in or around January 2021, Sean Ho proposed converting the Garden Street property into an Airbnb rental unit. A sum of AUD3,700.00 was used for the purported purchase of furniture and fittings for this conversion. Despite numerous requests, the Agents failed to produce any invoices for these purchases. [12] The Respondents attempted to create a formal contractual relationship in their pleadings by referring to San Ho and his wife as “the Agents”, and allege that they suffered total losses amounting to AUD24,334.97 (“the Australia Claim”). The Respondents did not file any claim against Sean Ho and/or his wife. Instead, they harassed the Appellant to compel him to promise to pay them on behalf of his son. The Respondents’ Position [13] The Respondents contend that a series of WhatsApp voice messages sent by the Appellant on 14th August 2021 and the promise made during a meeting on 20th August 2021 constituted a contract of indemnity under s.77 of the Contracts Act 1950 to pay the 1st Respondent the sum of RM200,000 and the other Respondents the Australian Dollars under their second claim. The Appellant’s Position [14] The Appellant did not deny the authenticity of those WhatsApp messages and the meeting held on 20th August 2021. However, his learned counsel argues that those promises were, at most, bare promises to pay and not a legal promise of indemnity. He draws a distinction between a promise to pay, a guarantee, an undertaking, and a contract of indemnity, arguing that different legal requirements are applicable. He submits that the Sessions Court conflated these distinct categories and erred in elevating an informal promise into an enforceable indemnity agreement. Crucially, he points out that the word "indemnity" was never used by the Appellant in any of the WhatsApp messages or at the said meeting, and that the Appellant did not reply to the 1st Respondent’s email of 20th September 2021. Analysis of the Evidence and Law [15] The central dispute between the parties revolves around the question of whether the documentary evidence relied upon by the Respondents – primarily the WhatsApp messages and the 20th September 2021 email – was admissible and sufficient to establish a valid contract of indemnity. [16] The learned Sessions Court judge answered the above question in the affirmative in respect of both claims; for the RM200,000 and the Australia Claim. [17] The Whatsapp messages were rightly admitted in evidence and were not denied by the Appellant/1st Defendant. Be that as it may, in my view, the learned Sessions Court judge was right in allowing the 1st Respondent/Plaintiff’s claim for RM200,000 but had erred in allowing the Australia Claim as well. [18] The fact that the Appellant/1st Defendant did not use the word “indemnity” in his Whatsapp messages does not preclude the Sessions Court from finding that the Appellant had made a promise of indemnity. This finding is consistent with the principles enunciated by the Court of Appeal in Bank Pembangunan Malaysia Bhd v Spring Hill Bioventures Sdn Bhd [2020] 4 MLJ 42 that the court is not bound by the label used when construing legal documents. The following passages from the said judgment are illuminating: [35] Thus having regard to the fact that a court has to construe a document as a whole, taking into consideration the language used and the other admissible evidence to determine the true nature and purport of the document and not just be bound by the label affixed onto a particular document, has the learned judge in this case taken the correct approach with regard to the construction of the impugned letters? The learned judge at para 24 of her grounds of judgment (GOJ) referred to the cases of Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131 and Addiscombe Garden Estates Ltd v Crabbe [1958] 1 QB 513 on the need to always look beyond the terminology of an agreement to the actual facts of the situation in the construction of a document. [36] The learned judge had applied/adopted the objective approach taken/propounded by the Supreme Court in Malayan Banking Bhd v PK Rajamani [1994] 1 MLJ 405 at p 410 where in referring to Woo Yew Chee, the court stated that ‘the correct approach would be to look at the substance, not just the label which had been attached to the letter’ (see also Bekalan Sains P&C Sdn Bhd v Bank Bumiputra Malaysia Bhd [2011] 5 MLJ 1 at pp 57–58 [152]). The learned judge went further by referring to the Court of Appeal’s case of Cipta Cermat Sdn Bhd v Perbandaran Kemajuan Negeri Kedah [2007] 2 MLJ 746 where in referrence to the case of Bank of Credit and Commerce International SA (in liq) v Ali [2002] 1 AC 251, the court state that essentially the approach in construction of a document is an objective approach and the court is not concerned with the subjective intention of the parties but their imputed intention that is relevant. [48] As to the construction of the letter of indemnity, we agree with the respondent’s submission that applying the law to the present facts, the learned trial judge correctly found that although the impugned letters employed the phrase ‘… we hereby declare, confirm and undertake …’, what is important is the purport of the letter, which is in fact that of a contract of guarantee pursuant to s 79 of the Contracts Act. Construing the impugned letters as a whole, it cannot be disputed that the commercial purport of the documents was that the respondent surety, in consideration of the appellant creditor making available the facilities to the borrower Alpha Biologics, undertakes to cover any shortfalls and meet all repayments under the two term loan facilities. The learned judge is thus correct to find the two impugned letters to be letters of guarantee.” (emphasis added) [19] From the evidence adduced at the Sessions Court trial, I could find no plain error in the finding made by the learned Sessions Court judge regarding the 1st Respondent’s claim for RM200,000. It was intended from the outset to be a friendly loan to her brother-in-law (the Appellant) and not a gift. The cheque was issued to the 2nd Defendant which was a company controlled by the Appellant upon the Appellant’s express request. There was every reason for the Appellant to promise repeatedly to repay his sister-in-law (the 1st Respondent) even though he had testified that he thought the “financial assistance” came from his brother. In the circumstances, I am constrained to affirm the finding made by the learned Sessions Court judge that the Appellant1st Defendant had indeed given a promise of indemnity to indemnify the 1st Respondent since he had failed to ensure repayment was made to the 1st Respondent by the payee of the cheque, i.e. the 2nd Defendant company. [20] As for the Australia Claim, the evidence shows no legal basis for the Respondents’ claim in Malaysia against Sean Ho – and all the more so, no legal basis to mount a claim at the Sessions Court against Sean Ho’s father (the Appellant). First, the cause of action, if any, for the Respondents to sue Sean Ho obviously arose in Australia and not in Malaysia. The Respondents ought to be suing Sean Ho for payment in Australian Dollars in Australia instead of in Malaysia. [21] Secondly, the amount claimed in the Australia Claim appeared to have been ‘plucked from thin air’ and ‘pushed down the throat’ of the Appellant – coercing him to accept estimated figures as owing by his son. The Respondents were attempting to turn an unproven claim by saying a father should pay up for his son. From the evidence, the Appellant’s son is not a minor. He is a married man who resided in Australia. There is no law in Malaysia that makes fathers liable for the financial liabilities (if any) of their adult sons. [22] The Respondents had probably wanted to save money paying property agents to manage their three properties in Australia, and had thereby asked their nephew (the Appellant’s son) to find tenants and collect rentals, etcetera, for them. There was no evidence of any formal contract or consideration for any contract between them and Sean Ho. When dissatisfied with the young man, they pressured the Appellant to promise to pay them. With respect, such a claim should not have been allowed by the learned Sessions Court judge. Conclusion [23] This Court finds that the 1st Respondent’s claim against the Appellant for the sum of RM200,000.00 is justified by the indemnity that he had unequivocally given to the 1st Respondent. [24] As for the Australia Claim against the Appellant, as explained above, I am constrained to over-rule the learned Sessions Court judge. It could be different had the Respondents obtained a judgment in Australia against the Appellant’s son. In that event, the Respondents could argue that there was consideration in that the Appellant was making a promise of indemnity to save his son from facing execution of a judgment. Based on the evidence in this case, the Respondents obviously could not prove any claim against the Appellant’s son and/or daughter-in-law. There was absolutely no consideration given by the Respondents. It is an unsustainable claim against the Appellant and therefore the judgment for the Australia Claim in Ringgit based on a purported conversion rate of Bank Negara Malaysia for the sum of AUD24,334.97 ought to be set aside. [25] The Appellant’s appeal is allowed in part. The neatest consequential order to be made is to set aside the whole judgment dated 20th May 2025 that was issued by the Sessions Court judgment and to order judgment to be entered, to require the Appellant to pay only RM200,000.00 to the 1st Respondent. Interest at 5% p.a. on the RM200,000.00 is payable, to be calculated from the date of the Writ of Summons until payment. Since the Appellant’s appeal is partially allowed, each party is to bear own costs here and at the Sessions Court below. Date of Decision: 19th November 2025 ………………………… Gan Techiong Judicial Commissioner High Court of Malaya at Kuala Lumpur (NCvC9) Counsel for the Appellant: Ng Choong Meng SOLICITORS FOR THE APPELLANT: MESSRS SUBRAMANIYAN Advocates & Solicitors Tingkat 6, Wisma Harwant No. 106, Jalan Tuanku Abdul Rahman 50100 KUALA LUMPUR. Counsel for the 1st & 2nd Defendant: Harneshpal Singh Bullar (Sophia Au with him) SOLICITORS FOR THE 1ST & 2ND DEFENDANT: MESSRS LUI & BHULLAR Advocates & Solicitors J-7-8, Solaris Mont Kiara, No. 2, Jalan Solaris, Mont Kiara, 50480 KUALA LUMPUR. 3rd Defendant acting in person

Bank Pembangunan Malaysia Bhd v Spring Hill Bioventures Sdn Bhd [2020] 4 MLJ 42.

Section 77 of the Contracts Act 1950.