MAJLIS AMANAH RAKYAT …DEFENDANTS GROUNDS OF JUDGMENT 5 March 2021 ------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------ 2 Introduction [1] This was the Fourth Defendant’s application (“this Application”) in enclosure 38 for summary judgment pursuant to Order 14 of the Rules of Court 2012 (“Rules of Court”) for its counterclaim against the Plaintiff, for rental due in the sum of MYR37,728.40 and for recovery of a loan in the amount of MYR170,185.88. The background facts [2] The Plaintiff is an individual, whilst the First Defendant, the Chief Minister of Johor at the material time, had officiated and launched a Programme known as JohorMart (“the Programme”) on 25 April 2015. The Plaintiff participated in the Programme by entering into an Operator Agreement with the Third Defendant. The Plaintiff had also, entered into a tenancy agreement with the Fourth Defendant, Majlis Amanah Rakyat (“MARA”), through a Tawaran Penyewaan dated 13 June 2016 and a Perjanijian Penyewaan dated 7 August 2016. In addition, the Fourth Defendant, via a letter (“Surat Tawaran Pembiayaan Perniagaan MARA”) dated 28 September 2016, offered the Plaintiff a Bai Al Inah financing facility (“the Facility”) in the amount of MYR150,000, for the purpose of the Plaintiff’s participation in the Programme. The Facility was accepted by the Plaintiff. [3] The Plaintiff’s JohorMart grocery store, under the Programme, was finally opened on 1 April 2017, but due to certain challenges, she suffered losses. As a result thereof, the Plaintiff eventually issued a 5 March 2021 ------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------ 3 letter to the Perbadanan Usahawan Johor Sdn Bhd (a shareholder of the Third Defendant), to surrender the JohorMart grocery store. [4] On 12 February 2020, the Plaintiff instituted an action against the Defendants, for damages for the failure of her business, claiming, inter alia, that the Fourth Defendant had not only misrepresented, but had failed to conduct a feasibility study of the potential risks to the business, and had wrongfully disbursed the money under the Facility to the Third Defendant. Since the Plaintiff had defaulted on the Facility and rental pursuant to the Tenancy Agreement, the Fourth Defendant filed a counterclaim, and on 11 September 2020, filed this Application, which was allowed for the following reasons. The applicable law [5] It is trite law as stated in several cases including National Company For Foreign Trade v. Kayu Raya Sdn. Bhd. [1984] 1 CLJ (Rep) 283, that the Court may order summary judgment only in plain and obvious cases. [6] The burden is on the Plaintiff in this case, to satisfy the Court why judgment should not be given against her in the counterclaim: per George Seah FJ in National Company for Foreign Trade v. Kayu Raya Sdn Bhd [1984] 2 CLJ 220; [1984] 1 CLJ (Rep) 283, which has been followed in a plethora of cases including Cempaka Finance Bhd v Ho Lai Ying & Anor [2007] 1 AMR 525. 5 March 2021 ------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------ 4 [7] It is pertinent to note that the issue that had to be addressed was whether the Plaintiff had a triable defence to the counterclaim. ‘This simply means that it is for the Plaintiff to show on merits, she has a good defence to the counterclaim, or that a difficult point of law is involved, or the dispute is as to the fact which is to be tried or any other circumstances showing reasonable grounds of a bona fide defence:’ per Mohamed Dzaiddin J in Syarikat Kerjasama Serbaguna Tunas Muda Sungai Ara v. Ghazali Bin Ibrahim [1985] 1 LNS 33, [1985] 2 MLJ 225. Contentions, evaluation, and findings Whether the Fourth Defendant was negligent in ensuring the proper management of the Programme [8] The Plaintiff averred that there was a Memorandum of Understanding (“MOU”) (exhibited as A2 to the Affidavit-In-Reply affirmed by the Plaintiff on 1 October 2020), and pursuant thereto, the Fourth Defendant assumed the duty and obligation to conduct a feasibility study of the potential risks to the business that the Plaintiff had embarked on. [9] I found the Plaintif’s argument untenable in view of the fact that the MOU, which was between the Plaintiff and the Third Defendant, was prepared not by the Fourth Defendant, but by the Third Defendant and merely copied to the Fourth Defendant. . Furthermore, there was no 5 March 2021 ------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------ 5 requirement in the MOU or any document whatsoever for a feasibility study to be conducted. [10] Secondly, the Plaintiff on her own volition and without any encouragement whatsoever from the Fourth Defendant, had accepted the Facility and had entered into the Tenancy Agreement, in the absence of any factors, such as misrepresentation, that would have vitiated a binding contract between the Plaintiff and the Fourth Defendant. [11] Thirdly, there was no nexus between the Fourth Defendant and the Plaintiff that would render the former liable for the failure of the Plaintiff’s business with regard to the Programme. The challenges that the Plaintiff had faced in the running of the business could not be attributed to the Fourth Defendant, whose only obligation was to provide the Facility according to its terms. This is fortified by the fact that the Fourth Defendant is not a bank, but a government agency, which in this case was merely providing financial assistance to Bumiputra entrepreneurs, including the Plaintiff. [12] The Plaintiff had also averred that she had not received the goods or assets pursuant to the Programme. However, it is to be noted that the Fourth Defendant had nothing to do with goods or assets that the Plaintiff was bound to have received under the Programme, and as such, the Fourth Defendant could not be denied its contractual rights pursuant to the Facility. 5 March 2021 ------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------ 6 Whether the Plaintiff’s dispute on the documents raised triable issues [13] In attempting to raise a triable issue, the Plaintiff claimed that she had not received Annexure D of the Surat Tawaran Pembiayaan Perniagaan MARA (exhibited as MSH1 to the Fourth Defendant’s Affidavit-In-Support, affirmed by the Deputy Director (Management Services), one Mohd Shazwanul Hakim bin Ismail, dated 10 September 2020). [14] In my view, this was a claim that was bare, unsubstantiated, and lacking in precision. At this juncture, I found it apt to refer to Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 CLJ 14, where it was stated by Mohd Azmi SCJ, in the following passage: Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. In our opinion, unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application. Thus, apart from identifying the issues of fact or law, the court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue. [Emphasis added.] [15] Secondly, Annexure D was merely a summary of the details of the Facility, particulars of which were acknowledged by the Plaintiff. Thirdly, the Plaintiff had signed Annexure E (Memorandum Penerimaan) of the Surat Tawaran Pembiayaan Perniagaan MARA, 5 March 2021 ------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------ 7 which was admitted by her in paragraph 21 of her amended Statement of Claim dated 17 June 2020. The Plaintiff had also admitted to entering into the Tenancy Agreement in paragraph 18 of her amended Statement of Claim. I was, therefore, unable to accept this contention, as it had not reached the threshold of raising a triable issue. [16] What remained undeniable and undisputed was the fact that the Plaintif had signed the following documents (exhibited respectively as MHS1-MSH4 to the Fourth Defendant’s Affidavit-In-Support affirmed by the Deputy Director (Management Services), one Mohd Shazwanul Hakim bin Ismail, dated 10 September 2020): a) Tawaran Menyewa dated 13 June 2016 – MHS1; b) Surat Perjanjian Penyewaan dated 7 August 2016 – MHS2; c) Surat Tawaran Pembiayaan Perniagaan MARA dated 28 September 2016 – MHS3; d) Perjanjian Pembelian Harta and Perjanjian Penjualan Harta both of which were dated 3 October 2016 – MHS5; e) Surat Jaminan dan Tanggung Rugi dated 3 October 2016 – MHS6; and f) Permohonan Pengeluaran Wang Pembiayaan dan Baucar Bayaran dated 9 October 2016 – MHS7; [17] The Plaintiff had also disputed the statement of account dated 31 May 2020 (exhibited as MSH12 to the Fourth Defendant’s Affidavit-In-Support affirmed by the Deputy Director (Management Services), one Mohd Shazwanul Hakim bin Ismail, dated 10 September 2020). ). In 5 March 2021 ------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------ 8 my view, merely disputing such documents amounted to a bald statement, as the Plaintiff had failed to demonstrate a manifest error in such account, as provided in clause 13 of the Perjanjian Penjualan Harta, which reads: Adalah dengan ini dipersetujui bahawa satu penyata akaun secara bertulis yang menyatakan jumlah (jumlah-jumlah) yang perlu dibayar dan disahkan sewajarnya oleh pegawai MARA atau mana-mana orang yang diberi kuasa hendaklah dalam ketiadaan kesilapan manifest menjadi keterangan muktamad bahawa amaun sedemikian adalah sebenarnya terakru dan kena dibayar oleh Pelanggan. [Emphasis added.] [18] The Plaintiff’s dispute on the statement of account was also not supported by any documentary evidence. There was, therefore, no merit in such contention. The issues raised were mere bare denials, and on that note, I found instructive the words of Lord Blackburn in Wallingford v Mutual Society (1880) 5 App Cas 685, in the following passage: I think that when the affidavits are brought forward to raise that defence they must, if I may use the expression, condescend upon particulars. It is not enough to swear, "I say I owe the man nothing." Doubtless, if it was true, that you owed the man nothing, as you swear, that would be a good defence. But that is not enough. You must satisfy the Judge that there is reasonable ground for saying so. [Emphasis added.] [19] On the conclusiveness of the statement of account, reference was made also to Arab-Malaysian Finance Bhd v. Siva Subramaniam 5 March 2021 ------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------ 9 Appupillai [1999] 8 CLJ 23, where it was stated by Azmel Maamor J, in the following passage: The appellant had produced a statement of account showing the amount outstanding. In the light of the conclusive evidence clause in the guarantee, it would not be open for the respondent to dispute the amount as stated by the appellant in the final account. [20] I also drew guidance from the cases of Huo Heng Oil Co (EM) Sdn Bhd v. Tang Tiew Yong [1984] 1 LNS 45 and Southern Finance Bhd v. Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 46, where in the latter, it was stated by Vincent Ng J: It is not sufficient for the defendant to merely deny the debt; he must plead any cogent and relevant facts which negative the existence of the debt or which show that the claim is not maintainable on other grounds. [Emphasis added.] [21] In the same way, the Plaintiff could not merely deny the debt without any cogent evidence to support such averment. It is also pertinent to note that the Fourth Defendant had issued notices of demand and reminders as well as the notice of termination of rental and surrender of premises (exhibited as MSH8-11 to the Fourth Defendant’s Affidavit-In-Support affirmed by the Deputy Director (Management Services), one Mohd Shazwanul Hakim bin Ismail, dated 10 September 2020), the importance of which had been highlighted by the Court of Appeal in The Pacific Bank Bhd v. Chan Peng Leong [1998] 2 MLJ 613, through Gopal Sri Ram JCA (as he then was), in the following passage: 5 March 2021 ------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------ 10 So far as authority is concerned, the point is, I think, concluded against the appellant by the decision of the Saskatchewan Court of Appeal in Anglo-Canadian Mortgage Investment Corp v Shaw (1921) 59 DLR 152, the headnote to which reads as follows: If under the terms of an agreement for the purchase of land, a demand for payment is necessary before commencing action, and if prior to launching a first action the plaintiff has in fact made a demand for payment but at the trial of that action has failed to prove the demand and the action is dismissed, a subsequent action will not lie for the same cause, but if in fact no demand has been made, the dismissal of the first action is no bar to recovery in a second action, after demand has been made, because until a demand is made no cause of action exists and any action brought before demand is made is premature. [Emphasis added.] [22] As such, this was a case suitable for summary judgment. Whether the contra proferentum rule applied [23] The Plaintiff submitted that the contra proferentum rule applied, a rule which was explained by Holroyd J in Edis v. Bury (1827) 108 E.R. 511, as follows: ...if there be any ambiguity in the words of [an] instrument, they ought to be construed favourably for the plaintiff, and against the defendant who made the instrument. [24] This rule was also addressed by the Federal Court in Malaysian Motor Insurance Pool v. Tirumeniyar Singara Veloo [2019] 10 CLJ 731 by Alizatul Khair Osman FCJ in the following passages: 5 March 2021 ------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------ 11 Coming to the contra proferentum rule, it provides that where a term is ambiguous, such ambiguity ought to be construed against the party who prepared it. In general contracts, common law courts have been quick to apply against 'unfair terms' like exclusion or exemption clauses. But the rule sees particular application in insurance contracts. This point is aptly summarised in MacGillivray on Insurance Law (12th edn), at pp. 317-318: The common law rule of construction, that verba chartarum forties accipiuntur contra proferentum, means that ambiguity in the wording in a policy, or slip, is to be resolved against the party who prepared it. It has been said that a party who proffers an instrument cannot be permitted to use ambiguous words in the hopes that the other party understand them in a particular sense and that the court which has to construe them will give them a different meaning, but the ambiguity usually arises inadvertently from including conflicting standard printed clauses in the same policy. [Emphasis added.] [25] It must be borne in mind, however, that the contra proferentum rule does not apply if the words in the clause are clear. This was explained in CIMB Bank Bhd v. Anthony Lawrence Bourke & Anor [2019] 2 CLJ