Goh Ah Chai @ Goh Tow Sim v Tan See Shin (WA-22NCC-678-09/2023)

This is a trial heard over 6 days in 2025. Oral submissions by counsel were held before me on 15-10-2025. On conclusion of hearing, I allowed the plaintiff’s claim in the Statement of Claim at paragraphs 17[a] to [c] with costs of RM 40,000 subject to allocatur.

I also dismissed the defendant’s Counterclaim with costs of RM 45,000 subject to allocatur.

On 10-11-2025 an appeal was filed by the defendant to the Court of Appeal against both my decisions. These are my Grounds of Judgment.

The Agreed Facts are as follows: - i. The plaintiff (as purchaser) and the defendant (as vendor) had entered into and signed a Sale of Shares Agreement dated 08- 09-2020 [SSA in Enclosure 16 B1 page 143 - 159], which provided, among others, as follows: -

The defendant had agreed to sell and the plaintiff agreed to purchase 600,000 units of the defendant’s shares in a company known as Cita Peuchoon Paper

The purchase price of the Shares to be paid by the plaintiff to the defendant is RM 15,000,000.00 (“Purchase Price”). ii. On 14-09-2020, the defendant had transferred the Shares to the plaintiff. iii. The plaintiff was registered as a shareholder of Cita Peuchoon in September 2020. Background facts

The plaintiff, a Chinese lady aged about 64 in 2020, had agreed in 2020 to buy the Shares from the defendant.

The defendant requested his solicitor, one Tan San Hoon DW3 to prepare the SSA. [See Enclosure 77 NOP page 226 lines 1 - 10]. Defendant acknowledged receipt of the Purchase Price

In the SSA, the defendant had acknowledged receipt of the Purchase Price at clause 2.3 (a) of the SSA under the heading “Satisfaction of the Purchase Price”. [See Enclosure 16 B1 page 145]. Defendant agreed to provide a “Vendor’s guarantee”

In the SSA, the defendant had also agreed in clause 5.4 (a) of the SSA to provide a “Vendor’s guarantee” whereby the defendant as vendor warrants to the plaintiff that Cita Peuchoon shall declare dividend and to pay the sum of RM 75,000.00 per month to the plaintiff as buyer, failing which the defendant shall pay RM 75,000.00 per month to the plaintiff. [See Enclosure 16 B1 page 147].

The plaintiff had earlier on 19-08-2020 paid a sum of RM 16,200,000.00 to the defendant. The defendant has returned the excess payment of RM 1,200,000.00 which was paid to the plaintiff and her former husband equally. [See Enclosure 50 WS-PW2 Q and A 14 - 15]. Plaintiff’s pleaded case

The plaintiff contends that Cita Peuchoon did not pay any dividend to the plaintiff from the date of the SSA to date.

Consequently, the plaintiff demanded for the defendant to pay the guaranteed profit in the sum of RM 2,158,064.52 pursuant to Clause 5.4 (a) of the SSA, calculated from the date of the SSA till the date of the defendant’s resignation as a director of the Company (“Guaranteed Profit”).

As the defendant had failed to pay the Guaranteed Profit after repeated demands, the plaintiff filed the current suit against the defendant. The defendant’s Defence & Counterclaim

In response, the defendant denies any liability to pay the Guaranteed Profit on the ground the plaintiff did not pay the purchase price of the Shares in full and counterclaims the plaintiff for the sum of RM 3,433,896.77.

The defendant also denies any liability to pay the Guaranteed Profit on the grounds [See defendant WS Enclosure 80]-

The Defendant respectfully submits that the Company was unable to declare dividends as it was operating at a loss. It is trite that a company may only declare dividends if it is making a profit. …

Further, the declaration of dividends lies solely within the discretion of the Company’s management and is contingent upon the Company generating profits. It is entirely beyond the Defendant’s control or responsibility.

The following witnesses testified during the trial for the plaintiff: - i. Pung Jun Yuan (“PW1”) who is the plaintiff’s grandson. Witness Statement (Enclosure 48); ii. Goh Ah Chai @ Goh Tow Sim (“PW2”) who is the plaintiff in this case. Witness Statement (Enclosure 50); and iii. Ooi Cheng Cheng (“PW3”) who is the plaintiff’s daughter. Witness Statement (Enclosure 50).

The defendant called these witnesses-i. Ooi Yoo Chai (“DW-1”) who is the plaintiff’s ex-husband. Witness Statement (Enclosure 54); ii. Tan See Shin (“DW-2”) who is the defendant in this case. Witness Statement (Enclosure 54); and iii. Tan San Hoon (“DW-3”) a subpoenaed witness who is the lawyer who drafted the SSA.

Parties agreed there are only two issues before me. They are-i. Whether the plaintiff has fully paid the purchase price for the Shares in the sum of RM 15,000,000.00 to the defendant; and ii. Whether the plaintiff is entitled to claim against the defendant for the profit guarantee pursuant to Clause 5.4(a) of the SSA from 08-09-2020 – 31-01-2023 in the sum of RM 2,158,064.52. Issue 1 - Whether the plaintiff has fully paid the purchase price for the Shares in the sum of RM 15,000,000.00 to the defendant Court’s analysis

In my view this issue is answered in the affirmative. I find the defendant not a credible witness. My reasons are as follows. Defendant acknowledged receipt of the Purchase Price

In the SSA, the defendant had acknowledged receipt of the Purchase Price at clause 2.3 (a) of the SSA under the heading “Satisfaction of the Purchase Price”. [See Enclosure 16 B1 page 145]. SSA prepared by the defendant’s own solicitor

As mentioned earlier, the SSA was prepared by the defendant’s own solicitor, one Tan San Hoon - DW3. [See Enclosure 77 NOP page 226 lines 1 - 10]. Defendant’s solicitor testified the entire terms of the SSA explained and fully understood by the defendant before execution

The defendant’s solicitor (DW3) testified the entire terms of the SSA were explained and fully understood by the defendant before execution: - NOP 2 enclosure 77 p 229 lines 27-47 AH: …Good afternoon Ms. Tan. You said during Examination in Chief that you explained the terms of the sales, sales, Sales of Shares Agreement to Mr. Tan. So my question to you that did you went through the entire content of this SSA with him? DW3: Yes. AH: Thank you. And he told you that he understood fully of the terms that you drafted, correct? DW3: Yes. … AH: Thank you. So he signed the agreement after he said to you that he fully understands the terms as explained by you, correct? DW3: Yes No evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to, or subtracting from the terms of a document

Based on sections 91 and 92 of the Evidence Act 1950, when the defendant had acknowledged receipt of the full Purchase Price in the SSA, he is not entitled to contradict the written words by asserting that he has not received the same.

Sections 91 and 92 of the Evidence Act 1950 read as follows-Section 91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document. When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. … Section 92. Exclusion of evidence of oral agreement. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms: … [Emphasis added] Documentary proof of receipt of Purchase Price

The evidence shows that before even the signing of the SSA, the plaintiff had on 19-08-2020 arranged for two separate payments of RM 8,100,000.00, amounting to RM 16,200,000.00 to be paid into the defendant’s bank account. [See Deposit Slips dated 19-08-2020 and Screengrab of the defendant’s online banking account at Enclosure 16 B1 pages 194 - 196]

In his witness statement, the defendant has admitted having received the payment of RM 16,200,000.00. [See defendant’s Witness Statement (Tan See Shin - DW2), page 3, Q & A 7]. Acknowledgments and admissions are binding

An acknowledgment of payment in Clause 2.3 (a) of the SSA is a form of admission under section 17 of the Evidence Act 1950.

As held by Idris Yusoff J in Esso Malaysia Bhd v Hills Agency (M) Sdn Bhd & Ors [1994] 1 MLJ 740 HC, at 752, an admission is the strongest form of evidence: - Admissions are the strongest evidence possible.

Way back in 1902, in Rimmer v Webster (1902) 2 Ch. 163, Farwell J held at 173 - 174 that: - If a man acknowledges that he has received the whole of the purchase money from the person to whom he transfers property, he voluntarily arms the purchaser with the means of dealing with the estate as the absolute legal and equitable owner, free from every shadow of encumbrance of adverse equity, and he cannot be heard to say that he has not in fact received the purchase money. [Emphasis added] Estoppel and receipt clause based on untrue facts

Even where payment was never in fact received, the presence of the receipt clause would prevent the defendant from denying receipt of payment.

In the 2013 Privy Council decision of Prime Sight Ltd v Lavarello [2014] 2 WLR 84 PC, on appeal from the Court of Appeal of Gibraltar, the facts from the headnotes are as follows-By a deed of assignment M assigned the lease of an apartment to a company, the shares in which were owned by his wife. The deed recited that as consideration for the assignment of the unexpired term of the lease the sum of £499,950 had been paid by the company to M and that payment and receipt of that sum was acknowledged by M. However, both parties were aware that no payment had in fact been made by the company to M. Subsequently M was adjudicated bankrupt. The official trustee of M’s property issued a statutory demand on the company for the purchase price of £499,950 as being due under the deed of assignment. The company denied liability. [Emphasis added]

Lord Toulson JSC [delivering the judgment of the Board] held that parties are free to transact on assumed facts (even if they are untrue). The Privy Council further held that a receipt clause would establish a convention between both parties, and hence the official trustee for the vendor was estopped by the said convention to recover the purchase price from the purchaser: Held “in accordance with the principle of party autonomy which underlay the common law of contract, where parties, knowing the facts to the full, were shown to have entered into a transaction by assuming a different state of facts or law as between themselves for the purposes of that transaction, a convention would be established under which the parties would be estopped from denying or challenging the assumed state of facts or law; that declaratory statements in a deed which were intended to be a contractually binding agreement to treat something as if it were true even though the parties knew that it was not, and which were not vitiated by factors such as illegality or misrepresentation, were as effective for that purpose as any other express or implied contractual convention; and that, while contractual estoppels were subject to the same limits under the general law of contract as other contractual provisions, there was nothing inherently contrary to public policy in parties agreeing to contract on the basis that certain facts were to be treated as established for the purposes of their transaction, although they knew the facts to be otherwise. [Emphasis added]

In conclusion, I can only echo the words of the Court in Re C (A Child) (Financial Provision: Non-disclosure) [2024] EWFC 115 where the learned Judge expressed his disbelief that a businessman would acknowledge receipt of a large amount of money without actually receiving it: - 151 I consider it wholly implausible that he would have signed a contract acknowledging receipt of the sum of $3 million if that money had not in fact been received by him. I cannot see any reason why he would have done something so obviously foolish.

I now move to issue 2. Issue 2 - Whether the plaintiff is entitled to claim against the defendant for the profit guarantee pursuant to Clause 5.4(a) of the SSA from 08-09-2020 to 31-01-2023 in the sum of RM 2,158,064.52.

In the SSA the defendant had agreed in Clause 5.4 (a) of the SSA to provide a “Vendor’s guarantee” whereby the defendant as vendor warrants to the plaintiff that Cita Peuchoon shall declare dividend and to pay the sum of RM 75,000.00 per month to the plaintiff as buyer, failing which the defendant shall pay RM 75,000.00 per month to the plaintiff. [See Enclosure 16 B1 page 147].

It is an undisputed fact that Cita Peuchoon did not declare any dividend and failed to pay the sum of RM 75,000.00 per month to the plaintiff.

It is equally an undisputed fact that the defendant did not pay the sum of RM 75,000.00 per month to the plaintiff pursuant to clause 5.4 (a) of the SSA.

The defendant has denied any liability to pay the Guaranteed Profit on the ground that it is the failure of Cita Peuchoon. [See defendant’s written submission in reply Enclosure 80 paragraphs 86 and 88]

I reject this defence as the defendant had undertaken a personal obligation to pay the sum of RM 75,000.00 per month to the plaintiff pursuant to Clause 5.4 (a) of the SSA in the event Cita Peuchoon fails to do so.

An authority on point is Foster v Wheeler (1888) 38 Ch. D 130 CA where Bowen LJ said at 134- If a person agrees to do what’s impossible in fact you have only to consider whether on the fair construction of the agreement he made himself liable to pay damages if he did not do it; but if a person binds himself to do what depends in the caprice of the third person he must suffer if he cannot get that third person to exercise his caprice in his favour. [Emphasis added]

The defendant does not disagree with the total sum claimed by the plaintiff in the event I find there is liability to pay.

For the reasons above, I allow the plaintiff’s claim in the Statement of Claim at paragraphs 17[a] to [c] with costs of RM 40,000 subject to allocatur.

I also dismiss the defendant’s Counterclaim with costs of RM 45,000 subject to allocatur. Dated: 01st December 2025 …………(signed)…………… Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for plaintiff: Amos Ho and Ivy Poo. Amos Ho, Sew & Kiew (Kuala Lumpur) Counsel for defendant: Gan Yi Yang, Vilasiny Gannasen and Sajanee Sukumaran (Pupil in Chamber). Vilasiny Gan & Co. (Petaling Jaya)

Esso Malaysia Bhd v Hills Agency (M) Sdn Bhd & Ors [1994] 1

Foster v Wheeler (1888) 38 Ch. D 130 CA

Prime Sight Ltd v Lavarello [2014] 2 WLR 84 PC.

Re C (A Child) (Financial Provision: Non-disclosure) [2024] EWFC

115.

Rimmer v Webster (1902) 2 Ch. 163.

Evidence Act 1950, sections 17, 91 and 92.