Subsection
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In the recent case of Letchumanan Chettiar Alagappan (As Executor to SL Alameloo Achi (deceased)) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418 the Federal Court stated: The "burden of proof" in s. 101 is the burden to establish a case which rests throughout on the party who asserts the affirmative of the issue. 15 [23] It is also trite law that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. This is provided for in Section 103 of the Evidence Act 950. [24] The plaintiff had exhibited what purports to be a copy of the covering letter dated 7th March 2016 enclosing the original consent to the defendant at enclosure 14 exhibit TLC 6. [25] It is clear on scrutiny of TLC 6 that it is a faxed copy of a letter dated 7th March 2016 which was sent to the plaintiff by their former solicitors. It is not the 'acknowledgment copy". The original of the letter is addressed to the defendant. Although the words 'FAX / POST' appear in TLC 6 to indicate the mode by which the original letter was to be delivered to the defendant, the plaintiff have not provided any proof by way of facsimile report or any acknowledgment of receipt by the defendant of the original letter. [26] This Court is of the view that it would not be unreasonable to assume that in such circumstances an acknowledgement of receipt or proof by way of facsimile report should have been obtained and exhibited by the plaintiff. This is especially so when the document concerned was the original consent and the subject matter of a condition precedent to the SPA. 16 [27] The conduct of the plaintiff's previous solicitors here would be in stark contrast to a similar situation regarding another letter dated 23rd December 2015 (exhibit TCL 3 enclosure14) that was sent by the plaintiff to the defendant which had enclosed the original drawing plans of the buildings. In that instance, an acknowledgement of receipt was obtained from the defendant. This begs the question why a similar acknowledgement could not have been obtained by the plaintiff for the consent? [28] The plaintiff had submitted that the raising of this issue by the defendant at this late stage was an "afterthought" as it was not raised earlier by the defendant in these proceedings or in their earlier correspondences before the purported termination of the SPA. [29] After considering the evidence as a whole, I accept the defendant's explanation that TCL 6 came to their knowledge only when enclosure 14 was filed. The defendant had sight of the fresh consent for the first time only when it was exhibited as TCL 9 by the plaintiff in enclosure 19 dated 5th August 2016. [30] In the circumstances, this Court finds that it would have been reasonable for the defendant not to inquire about the consent until they realised following TCL 9 that such a consent was in existence and it had not been duly delivered to them. As I mentioned in paragraph 14 above, 17 the plaintiff did request the defendant to write in for the fresh consent. The defendant did comply through their letter dated 14th January 2016 (exhibit LASB-5 enclosure 10) stating that a fresh consent should be forthcoming. One cannot then blame the defendant of inaction as the ball was now at the plaintiff's court. It is at this point that the plaintiff needed to prove that the consent was actually sent. It was, after all, their obligation to do so under the SPA. [31] In the light of the fact that the plaintiff was unable to produce any proof that the consent had been duly sent to or received by the defendant, this Court finds that the plaintiff had failed to discharge the burden imposed on them. On the same score, the "completion period" as mentioned by the plaintiff in their 7th of March letter is ineffectual and not binding on the defendant.” [16] The next finding by the learned JC dealt with the question of the validity of the certificate of fitness (“CF”). The issue was whether the CF was valid and current as the CF that was issued was later supplemented by two letters from the authority, Majlis Perbandaran Manjung (“MPM”). It was argued by the defendant that the CF needed to be reissued. On this score, the learned JC found as follows at paragraphs [36] to [40]: 18 “[36] With those principles in mind, this Court is of the opinion that the word "current" should be given its' ordinary dictionary meaning. This would best reflect the intentions of the parties. The Oxford Concise English Dictionary 11th Edition states that the word "current" means "happening or belonging to the present time". Thus, a valid and current CF should contain information reflecting and encompassing the prevailing situation at the time of the signing of the SPA. [37] Any other meaning would render the SPA to lose its efficacy. This Court finds that to ensure that the CF is "current" the CF would have to be reissued to include the "workshop". The reference number to the layout plans would also have to be amended to correspond to that in the CF. [38] In coming to the above finding, this Court had to consider the particular circumstances of this case. In this, I had taken into consideration the nature of the property, the purpose it is being used for, the importance of the particular document vis-à-vis the property and the value of the transaction. [39] The subject matter of the SPA is a commercial and manufacturing concern dealing with prefabricated steel. There are several buildings having specific functions within the property. The transaction itself involved a large sum of money. It thus behoves the parties to ensure that 19 the documentation, in particular the CF, is both valid and current. A current CF would be important, for example, in any future dealings with the property or may even affect the value of it. The request by the defendant for the reissuance of the CF is not unreasonable in the circumstances. In saying so, I realise that the power to reissue a CF was within the authority of the MPM. This however does not detract from the clear wordings of the SPA that the plaintiff "shall irrevocably obtain the valid and current certificate of fitness". [40] With respect, this Court is not in agreement with learned counsel for the plaintiff's submission that any inadequacies or shortcomings in the CF could be remedied by the two letters from the MPM supplementing it. Further to this, regarding the discrepancy in the reference number to the approved building plans, even if it were a mere typographical error, the consequences of such error on such an important document can be significant. This is especially so if the explanation for the error is contained in a separate document such as a letter in this case. This situation is made worse when another document has to come to the aid of the CF to reveal that the CF includes the workshop as well.” [17] The third finding was on the issue of whether the termination of the SPA by the defendant was justified. In this context, the learned JC found at paragraphs [45] to [47]: 20 “[45] The defendant's contention that they were justified in making time of the essence must also be assessed in the light of the delay by the plaintiff in obtaining the CF in the first place. The defendant should have received the CF within six months from the date of the SPA. That would have been on the 15th December 2014. Instead the defendant only received it (with all its short comings) on the 29th September 2015, some 15 months after the SPA was entered into. [46] In the circumstances of the case, the Court finds that the defendant was justified in making time of the essence and to determine a date for the fulfilment of the conditions precedent. This was so even though they did not make time of the essence earlier on when there was a delay in obtaining the CF on the part of the plaintiff. In the case of Sim Chio Huat v. Wong Ted Fui [1983] CLJ Rep 363; [1983] 1 CLJ 178; [1983] 1 MLJ the Supreme Court had this to say on time being made of the essence: If in a contract in which time is of the essence, a party fails to perform it by the stipulated time, the innocent party has the right either to rescind the contract, or to treat it as still subsisting. If he treats it either expressly or by conduct as still continuing, the contract exists but time ceases to be of the essence and becomes at large. Consequently he cannot claim the liquidated damages under the contract unless there is a provision as to the extension 21 of time. However, this cessation can be revived and so time can be restored to be of the essence by the innocent party serving a notice to the party in default giving a new date of completion. (See Hudson, pp. 604 & 612). [47] As this Court finds that the termination of the SPA by the defendant was justifiable in the circumstances, the letter which was addressed to the plaintiff from the MPM dated 25th April 2015 would have no effect in the factual matrix of this case. This is because it was written after the termination date of 6th April 2016. In any event the defendant denies receiving this letter.” [18] It was urged upon us that the findings of the learned JC were more substantially findings of fact rather than of law. It was submitted that the learned JC failed to take into consideration that the court should abstain from making any determination of issues upon disputed facts in an application under Order 14A or Order 33 rule (2) ROC 2012. [19] In this connection, it was plain to us that the learned JC had embarked on mostly making findings of fact from affidavit evidence. In particular, the issue of whether the defendant’s solicitor did or did not receive the fresh consent to transfer was seriously disputed and may even be said to have been credibly controverted. The issue of whether 22 there was fulfilment of Clause 2.1(a) and (b) also appeared to have been decided summarily even after affidavit evidence was adduced to credibly rebut the matters raised by the defendant. [20] In our view, once contentious issues of facts are raised in the affidavits, the learned JC should have declined to answer the questions raised under Order 33 ROC 2012. Such questions cannot be answered on disputed facts unless what is raised in dispute is inherently implausible. The truth of any such disputed assertions ought to be determined in the usual and long established manner after examination and cross-examination of witnesses in a trial. [21] Our view of the law in this regard is supported by the provisions in Order 33 r 2 ROC 2012 which reads: “The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised in the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.” 23 [22] The scope of this provision has been noted in a number of cases. It may be sufficient to refer to the observations of this Court in Majlis Peguam Malaysia & Ors v Raja Segaran a/l Krishnan [2005] 1 MLJ 15 where after citing in support the cases of Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474 and Arab Malaysian Finance Bhd v Meridian International Credit Corporation Ltd London [1993] 3 MLJ 193, the Court held that for Order 33 r 2 of the then Rules of the High Court 1980 (“RHC”) to apply, the issues in a case should be clear and not riddled with complexities and the facts should not be in dispute. Where the issues on point of law to be decided involve the consideration of facts, resort to O 33 r 2 of the RHC is inappropriate. It is undesirable to resolve such issues on a purely hypothetical state of facts. [23] On the question of resolving disputes through affidavit evidence, it is now trite law that if allegations are made in affidavits by one party and those allegations are credibly denied by the other party’s affidavits, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations and decide the matter by consideration of the undisputed facts (see Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 MLJ 433). 24 [24] In a similar vein, this Court held in Sykt Telekom Malaysia v Business Chinese Directory Sdn Bhd [1996] 3 MLJ 692 that “while it was undesirable to resolve disputes on affidavit evidence, judges were expected to be critical of the affidavit evidence which must on the face be at least plausible. If allegations were made in affidavits by one party and those allegations were credibly denied by the other party, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations and decide the fate of the case by consideration of the undisputed facts” (at the head-notes). [25] Reverting now to the instant appeal, it was evident that the learned JC was faced with disputed allegations especially with regard to the question of whether the consent to transfer was obtained by the plaintiff and duly delivered to and received by the defendant and also the issue of whether the termination of the SPA by the defendant was justified. Although the learned JC made a valiant attempt to sieve through the disputed allegations and arrive at a finding, it is our view that he was not entitled to do so. As we said earlier, the learned JC ought to have declined to answer the questions raised and set the matter down for trial. [26] In this respect, we are obliged to note that O 33 r 2 and also O 33 r 5 ROC 2012 are intended to save time and unnecessary costs by avoiding 25 the substantial expense of a trial. However, in order for Order 33 to have any efficacy, it is necessary for the judge to ensure, at the outset, that the relevant facts are not disputed. This can be done by ordering the parties either to agree to the facts stated in the pleadings or to file an agreed statement of facts. [27] Additionally, such agreed facts must deal completely with the issues or questions that are intended to be raised for disposal under Order