Lim Yeow Hon v 1. ) Chu Voon Khar (BA-12BNCvC-43-07/2024)

CHU VOON KHAR

WANG LUP MENG

LOW JIAN SHIN

LIM DERK LEON

OON MIN CHUAN (I/C NO.: 840918-08-6509) … RESPONDENTS 29/10/2025 09:50:04 BA-12BNCvC-43-07/2024 Kand. 36 DALAM MAHKAMAH SESYEN DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN SIVIL NO.: BA-B52NCVC-110-05/2020

CHU VOON KHAR

WANG LUP MENG

LOW JIAN SHIN

LIM DERK LEON

OON MIN CHUAN (NO. K/P: 840918 -08-6509) … PLAINTIF-PLAINITF DAN LIM YEON HON (NO. K/P: 840918 -08-6509) … DEFENDAN

This is an appeal by Lim Yeon Hon, Appellant/Defendant, on the decision of the Session Court Judge (SCJ), after a full trial, allowing the Respondents’/Plaintiffs’ claim in paragraph 27(g) and (h) of the Statement of Claim (SOC) with costs of RM8000.

Paragraph 27(g) is an alternative prayer to paragraph 27(a)-(f), reproduced below the whole paragraph 27 for easy reference: “27. Dengan ini Plaintif-Plaintif menuntut terhadap Defendan seperti berikut:

Kerugian sebanyak RM30,000.00 kepada Plaintif

Kerugian sebanyak RM90,000.00 kepada Plaintif

Kerugian sebanyak RM90,000.00 kepada Plaintif

Kerugian sebanyak RM45,000.00 kepada Plaintif ke-Empat;

Kerugian sebanyak RM45,000.00 kepada Plaintif ke-Lima;

Jumlah kerugian Plaintif-Plaintif bersama terhadap pembiayaan fi guaman dalam perjanjian jual beli sebanyak RM3,179.00;

Secara alternative kepada perenggan 27(a) sehingga

disini membayar RM303,179.00 kepada akaun peguamcara Plaintif-Plaintif di “Bernard Francis (Client

Faedah ke atas kerugian pada kadar 5% setahun dari tarikh tindakan ini ke tarikh realisasi;

Kos tindakan ini; dan

Relief lanjutan dan sampingan yang dianggap adil dan suai manafaat bagi Plaintif-Plaintif oleh Mahkamah yang mulia ini.”

After hearing both parties, perused the Appeal Records, and read the submissions filed, I dismissed the appeal with costs.

Appellant now appeals to the Court of Appeal, and below are my grounds of judgment.

Parties are referred to as they were in the Court below.

Both parties were former colleagues and knew each other through past acquaintances.

In January 2019, the Defendant approached the First Plaintiff (P1) and informed him of the opportunity to buy apartments at Damai Vista for as low as RM300,000.00 per unit if purchased in cash.

Acting on the Defendant’s recommendation, P1 agreed to purchase the apartments and persuaded the other Plaintiffs (P2-P5) to invest in buying the suggested apartments. P2-P5 decided to rely on P1 to handle the transaction with the Defendant.

Subsequently, the Plaintiffs were instructed by the Defendant to attend Messrs Toh, Liew & Partners to sign a Sale and Purchase Agreement (SPA), which was allegedly prepared and witnessed by a solicitor, Ong Kar Voi (SP6).

The SPA between the Plaintiffs with the developer, Euroland and Development Sdn Bhd (EDSB), were then allegedly executed. Hence, the Plaintiffs made payments to the Defendant, as tabulated in paragraph 13 of the SOC, amounting to RM303,179.00, including legal fees. Defendant acknowledged receipt of the payments but subsequently evaded the Plaintiffs on any updates on the purchase of the units of apartments.

The Plaintiffs later found out that EDSB had no knowledge of the SPA between them. EDSB asserted that they had not appointed or authorised any personnel or company to receive payments on their behalf. EDSB did not recognise the purported receipt produced by the Defendant as its official receipt.

The Plaintiffs now claim that the Defendant falsely represented them into inducing them to pay a total of RM303,179.00 for the purchase of the apartments.

The SCJ had elected to allow the claim to the extent that the Defendant were to return the money paid with interest, and her reasons were as follows:

The SPA transaction cannot now be performed by both parties.

There is no defect in the Plaintiffs’ SOC, as the misrepresentation was sufficiently pleaded and supported by the evidence of the witnesses.

The Defendant’s duty of care extended to P2-P5, as they made payments to the Defendant, which was not denied.

Defendant had a duty of care towards the Plaintiffs when he made representations to sell the units and had received money from all the Plaintiffs, inducing them to enter into the SPA.

Plaintiffs succeeded in proving, on the balance of probability, that Defendant made a representation to P1, leading the other Plaintiffs to make the payment in accordance with Defendant’s instruction.

The SCJ was of the view that P1 and his partners are entitled to recover all payments made due to the fraudulent misrepresentation by the Defendant. Issues raised in the Memorandum of Appeal

The SCJ had failed to consider that P1 had failed to prove that Defendant had given false representations to the Plaintiffs, committed fraud and acted negligently towards them.

SCJ failed to consider that the Plaintiffs failed to prove that a valid SPA transaction was signed by the developer,

SCJ failed to consider that the Plaintiffs have relied solely on EDSB’s alleged confirmation of the said SPA on the balance of probability.

Plaintiffs failed to call a witness from EDSB, namely an individual named Norman, to provide proof of the said

SCJ failed to consider that the Defendant had never given any representation to P2-P5; in fact, only P1 communicated with P2-P5.

SCJ failed to consider that there was only a unilateral communication and representation by P1 to P2-P5 to mark up the price of the property involved.

Plaintiffs have relied on issues that were not pleaded.

The claim and cause of action of the Plaintiffs was supposed to be against the lawyer representing the Plaintiff, one Gentry Loh Guo Xiang.

It was Gentry Loh, not the Defendant, who had the duty of care and yet acted negligently in the transaction and failed to protect the Plaintiffs’ interests.

The credibility of Plaintiffs’ witnesses is questionable.

An appellate court should be slow in disturbing the findings of facts arrived by the trial court, which had the advantage of seeing and hearing the witnesses (audio-visual advantage) unless there are substantial and compelling reasons for disagreeing with the finding or such finding is clearly against the weight of evidence (see Che Omar Mohd Akhir v. Public Prosecutor [2007] 3 CLJ 281 and PP v. Mohd Radzi bin Abu Bakar (2006) 1 CLJ 457).

Further, the appellate Court will also not interfere unless the trial court is shown to be plainly wrong in arriving at its decision. The Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441, in the judgment written by Azahar Mohamed FCJ (later CJM), reaffirmed the principle to be followed by an appellate court when reversing findings of fact by a trial court: “[60] It is now established 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 (at p 10) per Steve Shim CJ (Sabah & Sarawak). More recently, this principle of appellate intervention was affirmed by the Federal Court in UEM Group Bhd v Genisys Intergrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 where it was held at p 800: It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence (see Chow Yee Wah & Anor v Choo Ah Pat [1978] 1 LNS 32; Watt v Thomas [1947] AC 484; and Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309)”.

In addition, the Court of Appeal in the case of Sivalingam Periasamy v Periasamy & Anor [1996] 4 CLJ 545 held as follows: “It is trite law that this Court will not readily interfere with the findings of fact arrived at by the Court of first instance to which the law entrusts the primary task of evaluation of the evidence. But we are under a duty to intervene in a case, where, as here, the trial court has so fundamentally misdirected itself, that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion”.” The issues in this appeal

From the submissions of the parties, the issues in this appeal can be summarised as follows:

Whether there was any false and/or fraudulent representation, fraud and/or negligence by the Defendant to the Plaintiffs in the sale and purchase of the units of Damai Vista Apartment.

Whether the Plaintiff’s claim for fraudulent misrepresentation is defective.

Whether Defendant made any representation to P2-P5.

Whether all payments for the sale and purchase of the Damai Vista unit were made through the Defendant. Analysis and Findings

It was rather undisputed that the Plaintiffs made payments to the Defendant for dealings that were successfully transacted but later could not be performed.

The main issue before the Court below was whether Defendant had full knowledge of the units offered for purchase, which Defendant later extended to the Plaintiffs.

The SCJ found that the Defendant’s representation was proven false, as EDSB confirmed that they never authorised the alleged transaction.

After reviewing the witness statement of P1 and considering the WhatsApp communications between both parties, I am of the view that the Defendant positively represented/recommended the opportunity to the Plaintiffs and directed P1–P5 to be present at a legal firm to execute the agreements, requesting that payments be made to a specified account. Furthermore, the instruction to pay, as reflected in the messages, was not disputed, and the payments were accepted in evidence as authentic (Part B documents). In addition, these facts were not challenged in cross-examination; therefore, the SCJ was correct to accept the evidence as proven.

Hence, no doubt that Plaintiff eventually made payment of RM303,179.00 to the Defendant as per the agreed arrangement.

This transaction amounted to a representation by the Defendant to P1 that he, or EDSB, had offered to sell the units, and that Plaintiffs had accepted the offer to buy. The Defendant’s failure to conclude the deal would constitute a misrepresentation to the Plaintiffs.

I find no merit in the Defendant’s contention that misrepresentation was not particularised or pleaded by the Plaintiff in his SOC. Misrepresentation was properly pleaded, and therefore, Plaintiff’s pleading is not defective.

A misrepresentation is a false claim or statement of a material fact made by one party which persuades the other party to sign a contract. Under section 18 of the Contract Act (CA), misrepresentation is defined as a false statement that is made in good faith but without intent to defraud. In Sim Thong Realty Sdn Bhd v Teh Kim Dar @ Tee Kim [2003] 3 MLJ 460, the Court of Appeal held: “…it is trite that the expression’ misrepresentation’ is merely descriptive of a false pre-contractual statement that induces a contract or other transaction. But it does not reflect the state of mind of the representor at the relevant time. The state of mind of the representor at the time he made the representation to the representee varies according to the circumstances of each case. It may be fraudulent. It may be negligent. Or it may be entirely innocent…”

That being the case, misrepresentation is a cause of action that, once pleaded, the party alleges needs to prove, on the balance of probability, the elements of the same as provided in section 18 of the CA.

In the present appeal, Plaintiffs clearly stated and pleaded in their SOC that they had suffered a loss of the amount paid in furtherance of the Defendant’s representation that they would purchase the units, which, in turn, was a false transaction, as such an offer does not exist from EDSB.

In the case of ALW Car Workshop Sdn Bhd v AXA Affin General Insurance Bhd (2019) 4 MLJ 561, the Court of Appeal held as follows: “[45] On this point, we agree with the Court of Appeal in its findings, as stated in para 33 of its judgment, that: Whether any particular claim is tainted with fraudulent intent is a question of fact to be inferred from the surrounding circumstances. Making a false statement in the belief that it is true constitutes misrepresentation. However, making a false statement with the knowledge that it is false or not believing it to be true and the intention to deceive amounts to fraudulent misrepresentation. The test of fraudulent misrepresentation as enunciated by the Privy Council in Baron Akerheilm v. Rolf De Marc [1959] AC 789 PC is as follows: The question was not whether the Defendant in any given case honestly believed the representation to be true in the sense assigned to it by the Court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense which he understood it albeit erroneously, when it was made. “Whether any particular claim is tainted with fraudulent intent is a question of fact to be inferred from the surrounding circumstances. Making a false statement in good faith, believing it to be true, constitutes misrepresentation. However, making a false statement with the knowledge that it is false, or not believing it to be true, and to deceive, amounts to fraudulent misrepresentation”.

In light of the above, I agree with the Plaintiffs that misrepresentation was sufficiently pleaded and was later properly adduced through the evidence of the witnesses. From the surrounding circumstances, even if his defence was true, that one Thomas Thong defrauded him himself, his act of informing Plaintiffs of the availability of the property, which he knew was false, even if made in good faith, is still a misrepresentation. More so if Defendant actually knew that it was untrue, this would amount to a fraudulent misrepresentation.

On the issue of the alleged representation, which was conveyed only to P1 and not directly to P2-P5, I am of the view that it does not disengage the Defendant from his duty of care towards all Plaintiffs, as they had acted on the Defendant’s direction in making the payments of the purchase price.

I am also of the opinion that the Plaintiffs had acted and were induced into the signing of the SPA in reliance on the Defendant’s representation with regard to the existence of the property.

Again, the Defendant received payment. This was tendered from the exhibits in the bundle of documents, which was under Part B of the Bundle of Documents.

At this juncture, it is relevant to note that the classification of a Part B document is pursuant to the direction made under Order 34 Rule 2(2) of the Rules of Court 2021 (ROC), which provides that such documents are not documents which authenticity is disputed. However, their contents are subject to cross-examination. If the matter was not raised or examined during the witnesses’ testimony, it could be accepted as true or genuine. I refer to the case of Wong Swee Chin v PP (1981) 1 MLJ 212, where it was held that: “..On this point we need only say there is a general rule that failure to cross examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony”

Given the circumstances of the case, SCJ was right in her findings that Defendant committed fraudulent misrepresentation and that he had actual knowledge that the transaction was, from the outset, fraudulent.

I agree with the contention that the Plaintiffs believed such representation to be true when it was made. The SPA was prepared by a solicitor and signed at a law firm, thereby indicating some truth in the Defendant’s representation.

With regard to the issue that a person named Norman was not called to prove the alleged fraud, the SCJ relied on the evidence of SP6, who stated that he or his firm did not prepare the SPA, and that the signature appearing on the SPA was not his. Therefore, there is no necessity to call Norman from EDSB to prove the same.

I do not see any misdirection on the part of the SCJ in declining to require further evidence from Norman, as the SCJ was satisfied with SP6’s evidence that the SPA had been executed fraudulently.

The SCJ was also correct to rely on the case of Selvaduray v Chinniah (1939) MLJ 253, which held: “It is trite that the party who desire the Court to give judgment as to any legal right or liability bears the burden of proof (s. 101(1) Evidence Act 1950). The burden of proof is on that party is twofold: (i) the burden of establishing a case; and (ii) the burden of introducing evidence. The burden of proof lies in the party throughout the trial. The evidential burden of proof is only shifted to the other party once that party has discharged its burden of proof. If that party fails to discharge the original burden of proof, then the other party need not adduce any evidence, in this respect it is the Plaintiff who must establish their case. If they fail to do so, it will not do for the Plaintiff to say that the Defendant have not established their defence.” - emphasis added

In this case, the Plaintiffs have proven the existence of fraudulent misrepresentation, and it is now, therefore, on the Defendant’s shoulders to prove otherwise. Not only has the Defendant failed to do so, but he has also failed to prove that he himself was defrauded by a third party (Thomas Thong).

Although the Defendant repeatedly mentioned Thomas Thong as the true fraudster, the Defendant did not attempt to call Thomas Thong as a witness, nor was he added as a third party. Thus, Thomas Thong’s involvement doesn’t seem to fit the circumstances of this case.

After careful consideration of the Appeal Record, I find that the Appellant had attempted to pursue on technicalities and failed to address or raise appealable issues to warrant this Court’s intervention. I also find that the SCJ had sufficiently considered all the evidence before her and had not misdirected herself on facts and the law.

This appeal is dismissed with costs of RM10,000.00, subject to allocator. Dated this: 28nd October 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA