Goh Min Tuck v Chandrasegar a/l Subramaniam (12BNCC-49-11/2016)

Plaintiff appealed against the decision of the learned Session Court Judge (SCJ) who, after full trial, dismissed the Plaintiff’s claim for the sum of RM50,000.00, punitive damages and costs. The Plaintiff’s cause of action was premised on the Defendant’s breach of an undertaking allegedly given by the Defendant via a letter.

Prior to the full trial, the Defendant had filed an application pursuant to Order 14A of the Rules of Court 2012 (RoC 2012) seeking the court’s determination in respect of the construction of a letter dated 22 July 2011 issued by the Defendant to the Plaintiff (Impugned Letter of Undertaking). The application under Order 14A (Order 14A Application) was dismissed and the SCJ ordered for the full trial of the case.

The parties will hereinafter be referred to as they are in the Session Court. 3

Based on his Memorandum of Appeal, it is the Plaintiff’s contentions that the SCJ erred in law and in fact in the following circumstances – a) the SCJ ordered the case to go for full trial after dismissing the Order 14A Application for determination of question of law on the construction of the Impugned Letter of Undertaking. The Session Court ought to have allowed the Plaintiff’s claim after dismissing the Order 14A Application. b) the SCJ decided the Impugned Letter of Undertaking was not an undertaking and that the Defendant acted in his personal capacity even though the said letter was issued using the letterhead of the Defendant’s legal firm. c) the SCJ failed to consider another letter dated 22 July 2011 from R. Malaimany a/l S. Ramasamy (Deceased) to the Defendant where the Deceased agreed to indemnify the Defendant. 4 d) the SCJ allowed and admitted the evidence of the second sale particulars which were never pleaded.

Plaintiff gave a friendly loan of RM50,000.00 (Friendly Loan) to the Deceased vide cheque dated 22 July 2011. It is the Plaintiff’s case that the Friendly Loan was given to the Deceased on the premise of the undertaking given by the Defendant to the Plaintiff via the Impugned Letter of Undertaking. In the said letter the Defendant undertake to pay to the Plaintiff the sum of RM50,000.00 after receiving the balance of the purchase price of a property known as No.2 Jalan BK 9/5D, Bandar Kinrara, 47280 Puchong, Selangor (Said Property).

The Deceased had also authorised the Defendant, via another letter dated 22 July 2011, to return the Friendly Loan to the Plaintiff after receiving the balance of the purchase price of the Said Property. The letter dated 22 July 2011 from the Deceased to the Defendant will be referred to as the Letter of Authorisation.

The Defendant is a solicitor who acted for the Deceased who was the vendor in respect of the sale of the Said Property. 5

The Deceased had also issued another letter dated 22 July 2011 to the Plaintiff acknowledging the friendly loan of RM50,000.00. In the said letter the Deceased informed the Plaintiff that the said loan will be refunded on or before 30 November 2011 and that he had given an irrevocable authorisation to Messrs S. Chandran & Partners, Advocates and Solicitors to release the Friendly Loan to the Plaintiff upon the conclusion of the sale of the Said Property.

It is the Plaintiff’s case that had it not for the Letter of Undertaking and/or the Letter of Authorisation, the Plaintiff would not have given the Friendly Loan to the Deceased who was the Defendant’s client at the material time.

The sale of the Said Property had been concluded and the balance of the purchase price was released to the Defendant and the Deceased. However Plaintiff did not receive the repayment of the Friendly Loan even though the Defendant confirmed via letter dated 21 January 2016 that the Defendant did receive the balance of the purchase price. The Defendant, in breach of the Undertaking, refused to pay the Friendly Loan even though repeated oral demand was made. The Plaintiff pleaded that the Defendant and the Deceased had conspired to deceive the Plaintiff. 6

A letter of demand dated 10 December 2015 was finally issued by the Plaintiff’s solicitor demanding the repayment of the Friendly Loan but the Defendant failed to heed the said demand. It is also pleaded, in the alternative that the Defendant had breached the authorisation given by the Deceased to the Defendant via the Letter of Authorisation.

The Defendant denies that he was aware that the Plaintiff gave the Friendly Loan to the Deceased on the basis of the Impugned Letter of Undertaking and/or the Letter of Authorisation. It is the Defendant’s case that the Impugned Letter of Undertaking was premised on the Deceased’s intention to sell the Said Property at the price of RM1,300,000.00 which was intended to be completed within 4 months from securing a buyer. However the sale of the Said Property did not materialised.

Defendant denies that the Impugned Letter of Undertaking tantamount to an undertaking. The Defendant contends that –

the Impugned Letter of Undertaking were unclear, irrevocable and ambiguous and that it was a qualified and 7 conditional undertaking. It was only an instruction from the Deceased to the Defendant. Even if it is held to be an undertaking, the undertaking is conditional upon there being a balance of monies after payment of the redemption sum. Since there is no such balance, the undertaking has become impossible to perform.

the Impugned Letter of Undertaking was issued in his personal capacity and not in his professional capacity qua solicitor as there were no money entrusted to him at the material time.

the Deceased undertook personal liability to repay the Friendly Loan to the Plaintiff on 22 July 2011 and 3 February 2012. [14] With regards to the Letter of Authorisation, the irrevocable authorisation given by the Deceased to the Defendant was a matter between the Defendant and the Deceased. The Plaintiff is not privy to the said authorisation. Thus the authorisation is not enforceable at the instance of the Plaintiff. 8 [15] The Plaintiff’s claim is barred by laches, acquiescence and delay as it took the Plaintiff more than 4 years to make a demand on the Defendant. The Order 14A Application [16] Via the Order 14A Application (page 33 of Rekod Rayuan (Jilid I) the Defendant posed, among others, the following questions –

the following questions of law or construction of a document be determined before the trial of this action:-

Whether, upon its true construction, the letter dated 22 July 2011 [Impugned Letter of Undertaking] from the Defendant to the Plaintiff is an undertaking by the Defendant?

If (a) is answered in the negative, whether as a matter of law, the Plaintiff is entitled to bring this claim against the Defendant for the alleged breach of undertaking?

Whether a breach of an irrevocable authorisation [Letter of Authorisation] given by one Malaimany a/l Ramasamy to the Defendant affords a cause of action by the Plaintiff against the Defendant?

if the answers to 1(b) and 1(c) is in the negative, this action stand dismissed; 9 [17] The grounds for the Order 14A Application was stated as follows:

upon its true construction, the Impugned Letter of Undertaking is not an undertaking by the Defendant to the Plaintiff.

in law, the Plaintiff is not entitled to claim from the Defendant and the Defendant is not obliged to pay the Plaintiff any sum.

the question posed herein are suitable for determination without the full trial of the action, given that they relate to the interpretation of documents only as well as issues of law and involves undisputed facts.

such determination will finally determine the entire cause or substantially dispose of the cause. [18] In the Plaintiff’s Written Submission dated 20 March 2017, learned counsel for the Plaintiff contends that since the Order 14A Application was dismissed by the SCJ, by implication the Impugned Letter of Undertaking was indeed an undertaking and therefore the Plaintiff’s claim ought to be allowed without having to proceed for full trial. The SCJ’s decision dismissing the Plaintiff’s claim after the full trial on the ground that the Letter of Undertaking was not an undertaking was 10 inconsistent with her earlier decision dismissing the Defendant’s Order 14A Application. Decision of the SCJ [19] Based on the Alasan Penghakiman (see Rekod Rayuan Tambahan) the SCJ made the following finding of fact –

at paragraph 81 of the SCJ’s Alasan Penghakiman, the Impugned Letter of Undertaking was not intended to be an undertaking but it was merely a letter notifying the Plaintiff that the Defendant was authorised to release the repayment of the Friendly Loan to the Plaintiff after receipt of the balance purchase price and after deduction of the redemption sum. The grounds which form the basis of the SCJ’s finding are as follows:

in the Impugned Letter of Undertaking the Defendant did not make a promise to the Plaintiff that he will receive a sum in the amount of RM50,000.00. The Defendant also did not promise that the said sum will be paid to the Plaintiff. 11

(ii) the word “undertake” or “promise” is not stated in the Impugned Letter of Undertaking. The said words would have been used if it was meant to be an undertaking to reflect the intention of the parties.

(iii) the Plaintiff did not respond to the Impugned Letter of Undertaking. As an experienced successful businessman the Plaintiff would have asked the word “undertaking” to be used if the Plaintiff intended it to be an undertaking.

(iv) the terms of the Impugned Letter of Undertaking was not clear and ambiguous. This is because the sale of the Said Property has yet to be completed and there is no certainty that the Defendant will receive the money from the sale of the Said Property. In fact the sale did not go through.

there was no money placed with the Defendant at the time the Impugned Letter of Undertaking was issued.

(vi) the Impugned Letter of Undertaking was conditional upon there being a balance of the purchase price after the redemption sum is deducted from the purchase price. Since there was no balance, the undertaking cannot be performed. 12

at paragraph 96 of the Alasan Penghakiman, the Friendly Loan was given by the Plaintiff based on the Deceased’s intention to sell the Said Property for RM1,300,000.00. The grounds which form the basis of the SCJ’s finding are as follows:

in his oral testimony Plaintiff admitted that the Deceased had shown to the Plaintiff a letter referred to as Exclusive Authorisation to Sell issued by the Deceased to Reapfield Sdn Bhd (Reapfield) for the sale of the Said Property for RM1,300,000.00 within 3 months from 15 May 2011;

(ii) the sale of the Said Property mentioned in the Impugned Letter of Undertaking actually refers to the sale of the Said Property by Reapfield;

(iii) the sale by Reapfield did not materialise. Instead the sale of the Said Property was carried out by another agent called Dave Properties to one Chai Kee Mal at the price of RM1,100,000.00;

(iv) Chai Kee Mal’s letter of offer dated 25 October 2011 to purchase the Said Property was made after the expiry 13 of the period given by the Deceased to Reapfield to sell the Said Property, namely, 14 August 2011.

Via the Letter of Authorisation, the Deceased had in fact given an irrevocable authorisation to the Defendant to release the sum RM50,000.00 to the Plaintiff. However Plaintiff has no cause of action against the Defendant on the following grounds:

the said irrevocable authorisation is a matter between the Deceased and the Defendant. The Plaintiff cannot enforce it against the Defendant because – (aa) the Plaintiff is not privy to the said irrevocable authorisation; and (bb) the Deceased had sent a letter dated 3 February 2012 to the Plaintiff where the Deceased had given his guarantee that he will settle the Friendly Loan by 15th the 20th February 2012.

(ii) the SCJ found that the Defendant did not breach the said authorisation because the release of the said sum is subject to there being a balance from the purchase 14 price after the deduction of the redemption sum. Such finding is based on the following – (aa) the SCJ accepted the Defendant’s evidence that the purchase price was utilised to pay Sparkling Gateway and the Defendant himself; (bb) the SCJ accepted the Defendant’s evidence that there was an agreement via letter dated 2 November 2011 between the Deceased and Sparkling Gateway where it was agreed that Sparkling Gateway will terminate the sale and purchase agreement entered by the Defendant and Sparkling Gateway in respect of the Said Property and that Sparkling Gateway will withdraw a caveat lodged on the Said Property after Sparkling Gateway receive the whole balance of the purchase price after the redemption sum and payment of RM30,000.00 to the Defendant is deducted;

(cc) as a result of the payment made to Sparkling Gateway and the Defendant, there was no balance left from the purchase price of the Said Property; 15

(dd) the Defendant’s action in making payment to Sparkling Gateway and the Defendant himself was right and reasonable as payment to both Sparkling Gateway and the Defendant takes priority over the Plaintiff because if payment in the sum RM337,600.00 is not paid to Sparkling Gateway, the sale of the Said Property to Chia Kee Mal will not materialise as the Said Property must be free from encumbrances for it to be sold to Chia Kee Mal; and (ee) there was actually a balance in the sum of RM52,500.00 from the purchase price. However the Defendant did not receive the said balance sum as Chia Kee Mal had paid the said balance sum directly to the Deceased. The law [20] With regards to the duty and function of an appellate court, cases of high authorities has held that as a general principle, an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts of the trial judge unless it appears that those findings are 16 clearly wrong (China Airlines Ltd. v Maltran Air Corp. Sdn. Bhd. & Another Appeal [1996] 3 CLJ 163, Perembun (M) Sdn Bhd v Conlay Construction Sdn Bhd [2012] 1 LNS 1416, Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395). Findings of the Court [21] The issues to be determined in this case essentially relate to the Impugned Letter of Undertaking and Letter of Authorisation. In respect of the Impugned Letter of Undertaking, the main issue is whether it tantamount to an undertaking and if it is so, whether the Defendant had breached the undertaking given. With regards to the Letter of Authorisation, the issue is whether the Defendant was given an irrevocable authorisation to settle the Friendly Loan and whether the Defendant had breached the said authorisation. [22] With regards to the Order 14A Application, based on fair copy of the order dated 30 June 2016 (page 62 of Rekod Rayuan (Jilid I), the said application was dismissed. There were no documents in the record of appeal to show the reason for the dismissal. Nevertheless the Plaintiff contends by dismissing the Order 14A Application the implication is that the Impugned Letter of Undertaking is an undertaking 17 and therefore judgment ought to have been entered in favour of the Plaintiff. On the other hand the Defendant submits such argument is misleading as the SCJ dismissed the Order 14A Application without answering the questions posed. [23] It is to be noted there is nothing in the Rekod Rayuan which shows the reason why the Order 14A Application was dismissed. The fair copy of the order dated 30 June 2016 (page 62 Rekod Rayuan (Jilid I) ) merely recorded the dismissal of the said application. As such this court is not in the position to agree with the Plaintiff. Looking at the questions posed in the Order 14A Application and the issues raised and ventilated by the parties at the trial, one may reasonably infer that the SCJ took the view that the questions posed are not suitable to be determined without full trial and that such determination would not finally determine the entire cause or matter. It is obvious the Plaintiff is dissatisfied with the decision of the SCJ for failure to enter judgment in his favour. The Plaintiff ought to have appealed. However there was no appeal filed. As such it is not for this court to speculate whether the SCJ ought to have allowed the Plaintiff’s claim when she dismissed the Defendant’s Order 14A Application. 18 [24] Learned counsel for the Plaintiff had raised a pertinent issue as one of his grounds of appeal. It is this – the SCJ had erred when she took into consideration facts which were not pleaded by the Defendant in deciding against the Plaintiff. The facts which were said not to have been pleaded by the Defendant were those facts in relation to the second sale of the Said Property. The objection raised by the Plaintiff in respect of the second sale can be found in the Notes of Proceedings at page 118 onwards of Rekod Rayuan (Jilid I). [25] I have perused the Defendant’s Statement of Defence (SoD) dated 21 March 2016 and I have to agree with the Plaintiff that facts related to the second sale of the Said Property was never pleaded by the Defendant. The only facts relating to the sale of the Said Property which were pleaded in the Defendant’s SoD is reproduced below –

Paragraphs 3, 4 and 9 of the Statement of Claim are admitted insofar as they are consistent with contemporaneous documents. The Defendant contends as follows:-

5.1 At the material time, the Defendant acted for R. Malaimany A/L Ramasamy (“the deceased”) in respect of the sale of a property known as No. 2, Jalan BK 9/5D, Bandar Kinrara, 47810 Puchong (“Property”).

5.2 The deceased intended to sell the property at the price of RM1,300,000.00 and to complete the transaction within 4 19 months from securing an interested purchaser (“intended transaction”).

5.3 It was on that basis that the Defendant issued the letter dated 22 July 2011 to the Plaintiff.

5.4 However that intended transaction did not materialise. …

Further or alternatively, if the 22 July 2011 letter is held to be an undertaking (which is denied), the Defendant will contend as follows: …

7.4 the alleged undertaking is conditioned upon there being a balance of monies after payment of the redemption sum in respect of the sale of the Property;

7.5 absent a balance, the alleged undertaking has become impossible to perform; [26] Nothing was pleaded about a second sale of the Said Property to a person known as Chai Kee Mal and other material facts relating to the said second sale. Neither was facts in relation to a prior sale with an entity known as Sparkling Gateway was pleaded. 20 [27] In the Alasan Penghakiman, the SCJ recorded the objection of the counsel for the Plaintiff and explained the reason why such objection was overruled – [100] Peguamcara Plaintif berhujah bahawa pengataan Defendan bahawa penjualan Hartanah tersebut tidak disempurnakan oleh Reapfield tetapi telah dijual oleh ejen Hartanah yang lain iaitu Dave Properties tidak diplidkan dalam Penyataan Pembelaan Defendan. Sehubungan dengan itu, keterangan berkenaan dengan transaksi penjualan Hartanah tersebut oleh Dave Properties tidak boleh diterima oleh Mahkamah. [101] Setelah meneliti Penyataan Pembelaan Defendan, Mahkamah mendapati Defendan telah memplidkan fakta material berkenaan dengan penjualan Hartanah tersebut yang tidak terjadi dalam Perjanjian Jual Beli yang pertama dan akujanji yang dikatakan tersebut adalah mustahil untuk dilaksanakan memandangkan tidak terdapat baki wang selepas pembayaran jumlah penebusan berkenaan penjualan Hartanah tersebut. [102] Mahkamah berpendapat keterangan berkenaan dengan penjualan Hartanah tersebut kepada Chai Kee Mal dan pembayaran bagi harga jualan Hartanah tersebut oleh Chai Kee Mal merupakan keterangan yang membuktikan fakta material yang telah diplidkan dalam Penyataan Pembelaan Defendan. [103] Oleh itu, Mahkamah menolak hujahan Peguamcara Plaintif bahawa keterangan berkenaan dengan transaksi penjualan Hartanah tersebut oleh Dave Properties tidak boleh diterima oleh Mahkamah. Ini kerana berdasarkan Aturan 18 kaedah 7(1) Kaedah-Kaedah Mahkamah 2012, Defendan hanya perlu plidkan fakta material sahaja dan keterangan berkenaan dengan transaksi penjualan Hartanah 21 tersebut oleh Dave Properties kepada Chai Kee Mal dan juga penerimaan bayaran bagi jualan Hartanah tersebut daripada Chai Kee Mal merupakan keterangan bagi membuktikan fakta material yang telah diplidkan dalam Penyataan Pembelaan Defendan tersebut. [104] Aturan 18 kaedah 7(1) Kaedah-Kaedah Mahkamah 2012 memperuntukkan seperti berikut:

Tertakluk kepada peruntukan kaedah ini dan kaedah 10, 11 dan 12, tiap-tiap pliding hendaklah mengandungi, dan hanya mengandungi, suatu pernyataan dalam bentuk ringkas tentang fakta material yang bersandarkannya pihak itu membuat pliding bagi tuntutan atau pembelaannya, mengikut mana-mana yang berkenaan, tetapi bukannya keterangan yang melaluinya fakta itu hendak dibuktikan, dan pernyataan itu hendaklah seringkas sebagaimana sifat kes membenarkan. [105] Selain itu, Peguamcara Plaintif juga telah membangkitkan bantahan berkenaan isu ini semasa Pemeriksaan Balas oleh Peguamcara Defendan terhadap SP1, namun Mahkamah telah menolak bantahan yang dibangkitkan oleh Peguamcara Plaintif tersebut. Oleh itu, Mahkamah berpendapat Peguamcara Plaintif tidak boleh membangkitkan bantahan ke atas isu yang sama. [28] Thus it was the SCJ’s views that via paragraphs 5, 7.4 and 7.5 of the Defendant’s SoD, the evidence relating to the sale of the Said Property to one Chai Kee Mal were evidence to prove the material facts which were pleaded in the Defendant’s SoD. With respect I do not agree. 22 [29] It is trite law that parties are bound by their pleadings and are not allowed to adduce facts and issues which are not pleaded (Blay v Pollard & Morris [1930] 1 KB 628; State of Government of Perak v Muniandy [1986] 1 MLJ 490; Annuar bin Mat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313; Lee Ah Chor v Southern Bank Bhd [1991] 1 MLJ 428). In The Chartered Bank v Yong Chan [174] 1 MLJ 157; [1974] 1 LNS 178 it was held that as the trial judge decided on issues which were not raised on the pleadings, the judgment must be set aside and a new trial ordered. [30] In Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd [2018] 2 MLJ 292 the functions of pleading was clearly spelt out – [22] The function of pleading is to give fair notice of the case which has to be met: Rosita bte Baharom (an infant) v Sabedin bin Salleh [1993] 1 MLJ 393, Perniagaan Kinabalu (S) Sdn Bhd v Sua Ah Yoke & Ham Jon See [2002] MLJU 601. This is to prevent the opposing party from being taken by surprise by evidence which departs from pleaded material facts, for such evidence if allowed, will prejudice and embarrass or mislead the opposing party: see Superintendent of Lands and Surveys (4th Div) & Anor v Hamit bin Matusin & Ors [1994] 3 MLJ 185; [1994] 3 CLJ 567; Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis & Ors [1995] 1 MLJ 308. A good pleading should contain a statement of: (1) facts, not law, (2) material facts only, (3) 23 facts, not evidence, and (4) facts stated in a summary form: see Halsbury’s Laws of England (4th Ed, Reissue), para 13. [23] What are material facts? All facts which must be proved in order to establish the ground of claim or defence are material: Philipps v Philipps (1878) 4 QBD 127 at pp 133-134. Parties are bound by their pleadings. This is a rule which will be strictly enforced by the court. … [31] Based on the aforesaid it is therefore incumbent upon the Defendant for purpose of notifying the Plaintiff, to plead the material facts he is relying upon and the issues arising from the facts pleaded. In the instant case it is pertinent to note that the Defendant’s SoD made no averment whatsoever in respect of the following facts which is material to the Defendant’s defence –

that there was a second sale of the Said Property conducted by another property agent called Dave Property.

that there was a Sale and Purchase Agreement (SPA) between the Deceased and Chai Kee Mal dated 1 December 2011 for the sale of the Said Property.

that prior to the SPA with Chai Kee Mal, that there was a SPA between the Deceased and his wife and Sparkling Gateway dated 27 August 2010 for the sale of the Said Property for RM800,000.00 and that RM300,000.00 was paid by Sparkling Gateway as deposit for the sale and that a 24 private caveat was lodged by Sparkling Gateway on the Said Property.

that vide letter dated 2 November 2011 Sparkling Gateway agreed to terminate the SPA and withdraw the caveat with condition that the whole balance from the purchase price of the sale of the Said Property (after deduction of the redemption sum and payment of RM30,000.00 to the Defendant) is paid to Sparkling Gateway.

that from the sale of the Said Property to Chai Kee Mal a sum of RM337,600.00 and RM30,000.00 was paid to Sparkling Gateway and the Defendant respectively.

that a balance sum of RM52,500.00 was paid directly by Chai Kee Mal to the Deceased, thus the Defendant did not receive any money for purpose of paying the Plaintiff. The above facts will hereinafter be referred to as “Unpleaded Facts”. [32] Despite the Unpleaded Facts, the SCJ had allowed evidence relating to the Unpleaded Facts to be admitted via testimony of the Defendant himself. This can be seen from paragraph 51 to 71 of the Alasan Penghakiman. 25 [33] I am of the view the SCJ had erred in fact and in law when she admitted the evidence in relation to the Undisputed Facts. It would appear the decision made by the SCJ will have to be set aside. However my perusal of the Alasan Penghakiman shows the SCJ did not decide/rely solely on the issues based on the Unpleaded Facts and the evidence relating thereto. This will be discussed below. [34] With regards to the issue whether the Impugned Letter of Undertaking is an undertaking or otherwise, the SCJ did not rely on the inadmissible evidence relating to the Unpleaded Facts when she concluded the Impugned Letter of Undertaking is not an undertaking. Based on paragraphs 73 – 94, 108 – 111, 112 – 118 of the Alasan Penghakiman the SCJ relied on the following facts in deciding the Impugned Letter of Undertaking was not intended to be an undertaking –

intentions of the parties by construing the wordings of the

the definition of the words “undertaking” and “promise” in Black’s Law Dictionary and that such specific words were not used in the Impugned Letter of Undertaking;

by the wordings of the Impugned Letter of Undertaking and the Defendant’s evidence, the Defendant did not promise 26 that he will receive a sum of RM50,000.00 and that the said sum will be paid to the Plaintiff;

the SCJ rejected the Plaintiff’s evidence that the Impugned Letter of Undertaking was worded in such a manner because it was prepared by the Defendant as there was nothing to stop the Plaintiff from requesting the words “undertake” or “promise” to be used. The Plaintiff also did not respond to the Impugned Letter of Undertaking, an indication that the Plaintiff is satisfied with the wordings of the said letter;

based on the wordings of the Impugned Letter of Undertaking, the letter was actually a notification by the Defendant to the Plaintiff that the Defendant was authorise by the Deceased to release a sum of RM50,000.00 after receiving the balance of the purchase price of the Said Property after deducting the redemption sum;

the terms in the Impugned Letter of Undertaking was unclear, ambiguous and equivocal. This is because there was no certainty that the sale of the Said Property will materialise; [108 – 111]

there was no money entrusted to the Defendant at the time the Impugned Letter of Undertaking was issued; and [112 – 118] 27

the payment of RM50,000.00 as stated in the Impugned Letter of Undertaking was conditional upon there being a balance from the purchase price of the Said Property. As there was no balance, it is impossible to perform the undertaking. [35] The Impugned Letter of Undertaking issued by the Defendant (who was the Deceased’s solicitor for the sale of the Said Property) to the Plaintiff read as follows: We act for the Vendor of the above property which sale is yet to be concluded. We are irrevocably authorized by the Vendor to release a sum of RM50,000.00 to you upon receipt of the balance purchase price on the sale of the property after payment of the redemption sum. We expect to received the purchase price on or before 31st November 2011. [36] Having considered the pleadings and the evidence adduced I agree with the findings of the SCJ that the Impugned Letter of Undertaking is not intended to be an undertaking in the legal sense of the word. The reasoning for such finding is consistent with the weight of 28 evidence adduced. As such there is no reason for this court to intervene with such finding. [37] With regards to the Plaintiff alternative claim that the Defendant had breached the terms of the Letter of Authorisation, it is the finding of the SCJ that the Defendant did not breached the said authorisation because there was no balance from the purchase price and that the Defendant did not receive a sum of RM50,000.00. As such it was impossible for the Defendant to carry out the authorisation. [38] In arriving to such finding the SCJ had taken into consideration the Unpleaded Facts and the evidence relating to such facts. This can be seen at paragraphs 142 – 150 of the Alasan Penghakiman. Based on the said findings the SCJ ruled there was no breach and therefore the Plaintiff has no cause of action against the Defendant (see paragraph 141 of the Alasan Penghakiman). As stated above, it was wrong for the SCJ to admit evidence in relation to the Unpleaded Facts and relied on it and conclude that the Letter of Authorisation disclose no cause of action against the Defendant. On this ground the decision of the SCJ that the Letter of Authorisation disclosed no cause of action ought to be set aside as the evidence were inadmissible. 29 [39] However it must be noted that the SCJ had also ruled the Letter of Authorisation disclosed no cause of action against the Defendant on a point of law – that the Letter of Authorisation was a matter between the Defendant and the Deceased. At paragraphs 151 – 158 the SCJ found the Letter of Authorisation was issued by the Deceased to the Defendant and the Plaintiff is not privy to the arrangement between Defendant and the Deceased. As such the Plaintiff cannot enforce the Letter of Authorisation against the Defendant. [40] The SCJ also relied on a letter issued by the Deceased to Plaintiff dated 3 February 2012 where the Deceased had guaranteed that he will settle the Friendly Loan by 15 – 20 February 2012. It is the SCJ’s finding that the Plaintiff’s cause of action should be against the estate of the Deceased to recover the Friendly Loan. [41] In so far as the finding of the SCJ that the Plaintiff cannot enforce the authorisation against the Defendant because the Plaintiff is not a party to such arrangement between the Defendant and the Deceased, I am of the view the SCJ is justified in making such a finding. The Letter of Authorisation from the Deceased to the Defendant which was produced by the Plaintiff in his evidence in chief (Witness Statement of 30 the Plaintiff Question and Answer No. 6 at page 68 of Rekod Rayuan (Jilid I) ) read as follows – RE: Sale of property No. 2 Jalan BK 9/5D, Bandar Kinrara, 47180 Puchong, Selangor _______________________________________________________________ I hereby irrevocably you to release a sum of RM50,000.00 to Mr. GOH MIN TUCK (Nric. No: 580521-05-6369) of Suite 2B—23-2 Level 23 Block 2B Plaza Sentral Jalan Sentral, Sentral 5 50470 Kuala Lumpur from balance purchase price received from the sale of the above property. I indemnify you and keep you indemnified against any chain by any third party. Thank you. Yours faithfully, sgd ............................................................ R. MALAIMANY A/L S. RAMASAMY [42] I am also of the view the SCJ’s reliance on the Deceased letter dated 3 February 2012 to the Plaintiff to support her findings that the Plaintiff’s cause of action is against the estate of the Deceased is not misplaced. The said letter states – 31 Mr. Richard Goh, Managing Director, KL Maritime (M) Sdn Bhd, Jalan Stesen Sentral 5, 50470 Kuala Lumpur. R. Malaimany a/l S. Ramasamy 52 – C, Jalan Padang Belia, 50470 Kuala Lumpur. 3rd Feb 2012 Dear Sir, Friendly Loan of RM50,000 Reference to the above loan I assure your goodself that I will make payment of RM5000 to RM10000 by 15th – 20th Feb 2012. My sincere apology for the delay in repayment. Forgive me for the previous promises. I would appreciate if you could accept my request. Thank you. Your faithfully, sgd _________________________ R. Malaimany a/l S. Ramasamy i/c 570505-06-5809 32 [43] Premised on the aforesaid there is no ground for this court to intervene with the findings made by the SCJ that the Plaintiff has no recourse against the Defendant under the Letter of Authorisation. The findings were made based on facts pleaded and the evidence relating thereto including the contemporaneous evidence adduced before the SCJ. It is pertinent to note the basis of the findings was not based on the inadmissible evidence allowed by the SCJ. [44] On the issue of delay on the part of the Plaintiff, it is noted that the SCJ did not deal with the said issue in her Alasan Penghakiman. Be that as it may I am of the view the Plaintiff ought not to be precluded from pursuing this action against the Plaintiff as this action, even though filed 5 years after the cause of action arose in 2011, was filed within the statutory limitation period. Conclusion [45] Based on the aforesaid reasons, it is my considered opinion the decision of the SCJ is not manifestly wrong in light of the evidence adduced. Thus I am in agreement with the SCJ that the Plaintiff has 33 failed to prove his claims on balance of probabilities. The Plaintiff’s appealed was accordingly dismissed. ( KHADIJAH BINTI IDRIS ) JUDICIAL COMMISSIONER HIGH COURT (COMMERCIAL DIVISION) DATED 10 OCTOBER 2018 Counsel: Plaintiff/Appellant : Harpal Singh Gill of Messrs Harpal Singh & Co. Defendant/Respondent :