Kasi A/L K.L. Palaniappan v Gamelan Rentak Sdn Bhd (B-02(NCvC)(W)-474-03/2024)

There are 2 appeals being heard together before this Court which are Civil Appeal No. B-02(NCVC)(W)-474-03/2024 (Appeal 474) and Civil Appeal No. B-02(NCVC)(W)-478-03/2024 (Appeal 478) which involves the same parties who are one Datuk Kasi a/l K.L Palianappan (Kasi) and one Gamelan Rentak Sdn Bhd (Gamelan), and which both appeals arose from the same proceedings at the High Court in Shah Alam.

In essence Appeal 474 is against the High Court's dismissal of Kasi's claim against Gamelan and Appeal 478 is the dismissal of Gamelan's counter claim against Kasi.

Kasi claims that based on his contribution with his business partners Tan Sri Mustapha Kamal (TSMK) and one, Gerard Pereira (Gerard) they had formed Gamelan as a Special Purpose Vehicle to acquire lands and that pursuant to an oral agreement (Agreement), Kasi and TSMK had inter alia purchased a piece of land known as H.S(D) 222399 P.T 44015 measuring 0.99 acres (Land), which was one of three pieces of land purchased by Gamelan in early 2006.

It was contended by Kasi inter alia that the said Land was purchased using funds provided by Kasi and TSMK in the proportion of 35;65 through the legal firm of Messrs SB Teh & Ho.

Kasi had thus sought a declaratory order at the High Court that Gamelan holds 35% of the said Land on trust for him.

Gamelan had in its defence pleaded that

1 Kasi's claim was without any legal basis

2 that it had paid the purchase consideration for the Land

3 the Land is beneficially owned by Gamelan

4 Kasi's allegation is an afterthought

In turn, Gamelan had also filed a counter claim against Kasi wherein Gamelan's counter claim against Kasi it had sought for the sum of RM4,000,000.00 being unauthorized payments made by Kasi to an entity known as P. Kasi Associates (PKA).

Gamelan claims that they had discovered the above unauthorized payments when they were reconciling its records and upon the same being discovered, had immediately terminated MK Project Management Sdn Bhd (MKPM) as project manager of Gamelan's project, Ritze Perdana 1 and changed their bank signatories

In his defence to the counter claim, Kasi had contended inter alia that the payment was an incentive for the performance agreed between TSMK and him and secondly that the counter claim was time barred.

The Learned Judicial Commissioner (LJC) (as she then was) in the High Court had dismissed the said claim for a declaration by Kasi on the main ground that Kasi did not discharge the burden of proving his claim on a balance of probabilities, and that it was incredulous and/or inexplicable that a material agreement such as this was not reduced to writing as Kasi was an experienced developer and businessman.

The LJC further found that no good reason was given in the case why the agreement was not reduced to writing.

The LJC had also in coming to her decision considered Kasi's argument that the Power of Attorney (PA) given by Gamelan in favour of one MK Project Management Sdn Bhd (MKPM) appointing MKPM as project manager of Gamelan's project, Ritze Perdana 1 and a letter dated 12.4.2011 issued by TSMK offering to buy 35% of Kasi's stake in amongst others the Land which was relied on by Kasi as contemporaneous documents which prove the terms of the Agreement and establishes the advance of monies provided by Kasi & TSMK as well as Kasi's 35% stake in the Land.

To the above, the LJC found that the PA '... did not in any way refer to the Agreement nor prove its existence' whilst a letter dated 12.4.2011 issued by TSMK which was relied on by Kasi with regards the alleged Agreement was not addressed to nor issued by Gamelan.

Further to the above, the LJC also held that since TSMK was not called as a witness in the proceedings, 'the import of the letter and the discussions leading to the issuance of it cannot be ascertained nor confirmed'. It is noted that TSMK had only passed away after the Suit was filed.

The LJC had further found that Kasi under cross examination was unconvincing and evasive. Kasi's testimony was also found to be Inconsistent, with either the words or terms 'advancing' or 'lending, which Kasi used under cross examination.

All in, the LJC held that the evidence relied on by Kasi to evidence the said Agreement were flimsy evidence

It was also held by the LJC that Kasi's pleadings were ambiguous and vague as well as 'bereft of particulars..'

As to the counter claim by Gamelan, the LJC had dismissed the same and held amongst others that i. it was against Kasi but the unauthorised payments were made to KPA and that the alleged conspiracy did not name MKPM and/or KPA in the counter claim as parties to the same and failed to give any explanation why ii. the alleged counter claim was time barred as the unauthorized payments were discovered in 2009 but the Suit was filed in 2018 iii. Gamelan had argued fraud but did not plead when fraud discovered. iv. Gamelan had also pleaded facts which do not support the allegation of fraud and/or conspiracy.

After having read the respective parties submissions and the LJC's written Grounds of Judgment we unanimously agree with the LJC that Kasi had failed to establish the existence of the Agreement.

From our observation of the matter before us, Gamelan had denied Kasi's claim and apart from contending that the Land was purchased by Gamelan, they had averred that any private arrangement between Kasi & TSMK cannot bind Gamelan.

We have accordingly examined the evidence before us and in particular the alleged contemporaneous documents being the letter dated 12.4.2011 and the 22.9.2014 letter from Gamelan to Kasi and find after reading the said letters that the words expressed therein, in particular the latter letter of 22.9.2014, we find that the said letters we have referred to do not in fact evidence that the Land was purchased by advances from both TSMK and Kasi as the same only seeks for Kasi to lift the private caveat lodged on the Land to facilitate the sale on the basis of 35% of the purchase price... Will be paid directly to YBhg Datuk from the purchase price paid by the potential purchaser.".

With respect, we hold that the said letter of 22.9.2014 only states that 35% of the sale price will be paid to Kasi but does not refer to the Agreement as alleged by Kasi. The evidence of Kasi being entitled to receiving monies for the Land via correspondences between Kasi and Gamelan does not in our view equate to Kasi having beneficial interest in the Land.

For the sake of completeness, it is also in the LJC's Written Grounds that she had found that the contemporaneous letter dated 16.8.2018 from the Third Party buyer (Saujana Triangle) confirming full settlement of the purchase price proves that Gamelan had paid for the purchase price of the Land. We have since had the opportunity to read the said document and we agree with the LJC on this point and that this evidence shows that Gamelan is in fact a bona fide purchaser and true beneficial owner of the Land.

After combing through the totality of the evidence before us, we also find that it would be incredulous for the Agreement to only be done on an oral basis, and as stated by the LJC, that it would be inexplicable in the circumstances bearing in mind that Kasi was an experienced and rather astute business man.

We are convinced, after reading the LJC's Written Grounds in its entirety, that the LJC had in our opinion arrived at her decision only after considering the totality of Kasi's evidence and testimony at trial and weighing it against the contemporaneous documents before her, after which the LJC found that Kasi's oral testimony was not supported by the said contemporaneous documents

We must also state that we agree with the LJC that there is no evidence before the Courts herein of a trust being created in the absence of any express trust deed. For a valid trust to exist, there must be 3 essential elements as stated by the Supreme Court in Yeong Ah Chee @ Yan Hon Wah v Lee Ching Chai and 13 other appeals [1994] 2 MLJ 614, all of which are missing in the case before us. The elements are as follows "The three essentials of a valid trust are: (a) certainty of words; (b) certainty of subject; and (c) certainty of object."

A trust is void if there is uncertainty in any of these 3 elements, see the Court of Appeal in Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd and anor appeal [2006] 1 MLJ 505.

To this we must add that we have looked at the cases put forth by counsel for Kasi i.e. the Federal Court decision in Deutsche Bank (M) Bhd v Mbf Holdings Bhd & Anor [2015] 6 MLJ 310 and John Ambrose v Peter Anthony 7 Anor [2017] 4 MLJ 374 which held in the former that oral agreements are enforceable when proved and in the latter that an oral agreement existed in that case. We however hold that the aforesaid mentioned cases are not applicable before us as the alleged oral Agreement in our case was not established on a balance of probabilities by Kasi based on the reasons afforded by this Court and the Court below.

We would instead quote and adopt the High Court in Alliance Bank Malaysia Bhd v W Shalihudin b W Ibrahim (2013) 10 MLJU 374 where it was held "...in this time and era any allegation of oral agreement that too by corporate personalities relating to corporate transactions, must be frowned by courts."

In this respect we also wish to refer to Deutsche Bank (M) Bhd (supra) where Jeffrey Tan FCJ in delivering the judgment of the Federal Court held "...in Cheverny Consulting Ltd v Whitehead Mann Ltd [2007] 1 All ER (Comm) 124, the English Court of Appeal observed in general that 'the more complicated the matter the more likely the parties were to want to enshrine their contract in some document ...'

All said and done, we have ourselves tested Kasi's viva voce evidence against the contemporaneous documents being inter alia TSMK's letter, the 21.4.2015 letter, the Project Management Agreement dated 3.11.2013, the PA, Gamelan's letter 1.7.2013 and find that these documents which were produced at trial do not evidence that Kasi had funded the purchase of the Land.

There was in our view, further no proof whatsoever that showed Kasi had paid the monies to the solicitors when he had under cross examination repeatedly stated that the monies were given to the solicitors to buy the Land.

Kasi was also vague as to the time the monies was allegedly paid to the solicitor's, stating that it was paid in 2006 or 2007 and conceded that he did not have any records of the same. We, as did the LJC, find that this defies logic especially so when the sums paid were rather substantial.

We once again agree with the LJC that overall Kasi's testimony was vague, evasive and inconsistent with either 'advancing' or 'lending', terms which Kasi used when under cross examination.

We thus hold that Kasi had failed to prove that he is the beneficial owner of 35% of the Land and that Gamelan was holding 35% of the Land on trust for Kasi as Kasi's allegations are inconsistent with the contemporaneous documents and are as such inherently improbable.

We had in coming to our decision, further considered the LJC's findings that TSMK had only passed away after the Suit was filed & neither TSMK nor Gerard were called as witnesses. It is also noted by us that the Solicitor's, Messrs SB Teh & Ho, who were purportedly the lawyers who were holding the monies for TSMK and Kasi were also not called to testify and no reasons were put forth to the Court on why the solicitors were not called as witnesses. We feel that it would have been easy enough for Kasi to just call Messrs SB Teh & Ho but this was not done for reasons unbeknown to us.

We reiterate, at the risk of being repetitious, that the only persons who could testify on the alleged Agreement would be TSMK and Gerald but neither were called as witnesses in the proceedings.

This will in our view raise the presumption of an adverse inference when such witnesses were not called pursuant to s 114(g) of the Evidence Act 1950 which reads: The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume:-

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;

See also Curet Transport SA & Anor v Shapadu Trans-System Sdn Bhd [1999] 4 MLJ 150 on the principles for invoking s 114 (g)

It is also to be noted that Kasi had also claimed that he had a fallout with Gerard, but we hold that this is not a valid reason for Gerard not being called as a witness as we agree with the LJC that Gerard is in fact a material witness to prove the existence, if any, of the business relationship between Kasi, TSMK and Gerard as contended by Kasi.

With regards the LJC's observation that Kasi was under cross examination unconvincing and evasive, we need only say that it is trite law that the trial judge is the best arbiter of the witnesses' testimony, conduct and demeanor at the trial as the said judge had had the advantage of seeing and assessing the witnesses first hand. See Yusoff Bin Kassim v Public Prosecutor [1992] 2 MLJ 183 where the Supreme Court therein stated amongst others "We recognized that the learned trial judge had a great advantage, denied to this court, of seeing and hearing the witnesses and the appellant testify..."

This Court would also like to touch on Kasi's contention that Gamelan's directors and shareholders were in fact nominees of Kasi and TSMK. We find that there is no such evidence on the documents and/or evidence before the Court below. This Court further observes that the said directors and shareholders were never produced before the Court below to support or prove such allegations. In the circumstances, we hold that the said allegations are thus unsustainable and irrelevant in the matter before us.

As to the dismissal of the Counter Claim by the LJC, we agree, after due consideration of the same, with all her findings as mentioned in her grounds herein above as stated in paragraph 18 of our grounds herein and reiterate that we have made a similar finding as per the LJC's said grounds.

To surmise our decision on the counter claim, we have noted that Gamelan had counter claimed for RM4,000,000.00 which they claimed was wrongly paid to PKA by Kasi through his nominees in Gamelan being one Ganeswaran and one Avtar Singh between May to September 2009 via 5 cheques from the Public Bank account of Gamelan.

It was also alleged by Gamelan that Kasi, who was then a shareholder of MKPM, had abused his fiduciary position in MKPM and conspired with it by authorizing the payments to PKA.

It is our finding from the proceedings at the Court below, that

1 neither PKA nor MKPM were made parties to the counter claim and no reason was put forth by Gamelan why they were not made parties to the counter claim action

2 the alleged signatories of the cheques were not called as witnesses

3 the allegation of conspiracy by Kasi with MKPM was not proven at trial as the evidence was only based on DW1's oral evidence and not supported by any documents

4 the elements of the tort of conspiracy as per Gamelan's counter claim has not been fulfilled. We would refer to, as did the LJC, to Global Ventures Network Sdn Bhd v Lokman b Dato Mohd Kamal and anor [2018] 6 MLJ 103 where the Court of Appeal held " [18] As the learned judge quite rightly recognised, in order to make out a case of conspiracy, the plaintiff would need to establish that there was an agreement between two or more persons to injure the plaintiff; and that the acts done in execution of that agreement resulted in damage to the plaintiff. "

5 Gamelan had failed to discharge its burden of proof with regards the counter claim

6 The pleadings vis a vis the Counter Claim has not mentioned the time the statutory records were being reconciled i.e. when the alleged acts of Kasi were purportedly discovered but had only pleaded "Upon discovery of the unauthorized payment, the board of directors of the Defendant immediately took action to terminate the services of MKPM and change the bank signatories”

7 In any event, limitation had set in as far as the counter claim is concerned as it was alleged by Kasi that the alleged payments were discovered when Gamelan were reconciling their records whilst preparing their statutory accounts and as such we rely on sections 6 (with regards the tort of conspiracy) and 29 of the Limitation Act 1953 which provides respectively that

Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

actions founded on a contract or on tort;

actions to enforce a recognisance;

actions to enforce an award;

actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture.

An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action. Section 29

Where, in the case of any action for which a period of limitation is prescribed by this act, either:

the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or

the right of action is concealed by the fraud of any such person as aforesaid; or

the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:

It is settled law that appellate intervention is only allowed where the Court below is plainly wrong. Reference is also made to Tengku Dato Ibrahim Petra Tengku Indra Petra v Petra Perdana Bhd & Anor Appeal [2018] 1 MLRA 263 [2018] 2 MLJ 177 [2018] 2 CLJ 641 where our Apex Court held [94] The law is clear and well settled in that the principle on which an appellate court could interfere with findings of fact by the trial court is 'the plainly wrong test' principle (see the Federal Court in Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1, UEM Group Berhad (dahulunya dikenali sebagai United Engineers (Malaysia) Berhad) v Genisys Integrated Engineers Pte Ltd & UEM Genisys Sdn Bhd and another appeal [2010] MLJU 2179; [2010] 9 CLJ 785, In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911; and Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441; [2015] 2 CLJ 453). This court has said this before, and we adhere to it now."

We also refer to the Federal Court case of Gan Yook Chin (P) & anor v Lee ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 where it was held: "14 In our view, the Court of Appeal in citing these cases had clearly borne in mind the central feature of appellate intervention, ie to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase 'insufficient judicial appreciation of evidence' merely related to such a process. This is reflected in the Court of Appeal's restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention, ie that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the established plainly wrong test."

Based on the lack of compelling evidence before us, we have thus come to the inescapable conclusion that Kasi has failed to establish and prove his case against Gamelan.

It is also our decision that the Counter Claim by Gamelan has no legal basis to stand on.

We thus hold that the LJC had properly analyzed the entirety of the evidence and drawn the proper inferences and had thus sufficiently exercised proper judicial appreciation in the matter before her when coming to her findings and decision, see Gan Yook Chin (P) & Anr v Lee Ing Chin @ Lee Teck Seng & Ors (2005) 2 MLJ 1 where the Federal Court held "14 In our view, the Court of Appeal in citing these cases had clearly borne in mind the central feature of appellate intervention, ie to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase 'insufficient judicial appreciation of evidence' merely related to such a process. This is reflected in the Court of Appeal's restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing[2005] 2 MLJ1 at 11and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention, ie that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the established plainly wrong test."

We have found that the LJC had weighed the evidence on a balance of probabilities and had looked at all the surrounding factors. We further find that the LJC had evaluated the contemporaneous documents which would have establish the truth or otherwise of the claim. This is unlike the case of Guan Teik Sdn Bhd v Haji Mohd Noor Bin Haji Yakob & Ors [2000] 4 MLJ 433 which was relied on by Kasi's lawyers to argue that the LJC had failed to test the oral evidence against the surrounding circumstances and contemporaneous documents where the learned trial judge therein failed to direct his mind as to the probative effect of the contemporaneous documents.

Hence, we find no reason to interfere with the LJC's decision and findings and uphold the LJC's decision in both matters.

It is thus our unanimous decision that Appeal 474 is hereby dismissed and Gamelan's counter claim in Appeal 478 is also dismissed on our grounds aforementioned. Each party to bear its own costs Dated the $ 2 1^{\mathrm{s t}} $ day of January 2026 NADZARIN WOK NORDIN JUDGE COURT OF APPEAL MALAYSIA COUNSEL FOR THE PLAINTIFF: CK Yeoh, Villie Nethi (Messrs. Ranjit Singh & Yeoh) COUNSEL FOR THE DEFENDANT: Dato' George Varughese, Johan Mohan Abdullah, Vinobha Doss Wan Fazila, Salmi Wan Fazila Salmi (Messrs. Johan Arafat Hamzah & Mona)