Medcellence Manufacturing v 1. ) Getha (1969) Sdn. Bhd (WA-22NCvC-75-02/2021)

GETHA (1969) SDN. BHD. (No. Syarikat: 9061-W)

GET GLOVE SDN. BHD. [No. Syarikat: 202001024085 (1380405-H)] … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (After Full Trial) Background of Parties [1] The Plaintiff, Medcellence Manufacturing is a sole proprietorship owned by Keenan Ong Meng Woey. 01/07/2025 11:52:56 WA-22NCvC-75-02/2021 Kand. 145 [2] The 1st Defendant, Getha (1969) Sdn. Bhd. nature of business is manufacturing and marketing of mattresses and its related products. [3] The 2nd Defendant, Get Glove Sdn. Bhd. nature of business is wholesale of pharmaceutical and medical goods. (B1 p. 11) Get Glove directors are Keenan, Kevin Tan Kah Yien, Brandon Tan Chong Meng and Ahmad Aideed bin Suhaidi. The shareholders of the 2nd Defendant are Medcellence Sdn. Bhd., Kevin Tan, Brandon Tan and Ahmad Aideed. (see Get Glove Corporate Information B2 p. 42) Medcellence Sdn. Bhd. directors and shareholders are Keenan Ong and Lim Ai Poh who is Keenan’s mother. (see Medcellence Sdn. Bhd. Corporate Information B2 p. 48) [4] The nomenclature in this case are used interchangeably as follows:

Plaintiff also referred as Medcellence;

1st Defendant also referred as Getha; and

2nd Defendant also referred as Get Glove. Brief facts [5] The Plaintiff claims that the 1st Defendant failed to deliver 125,000 boxes of nitrile gloves in respect of the Sales and Purchase Agreement of November 2022 at an agreed price of RM8,230.000.00. The Plaintiff made payments totaling RM4,952,500.00 to the 1st Defendant, but only received partial refunds amounting to RM2,323,250.00 resulting in an outstanding balance of RM2,629,250.00. (see PW1 witness statement Q.3) [6] Medcellence is the business partner of Get Glove. The 2nd Defendant has yet to have a functional bank account and/or was unable to make or receive payments at the time of the Agreement as the 2nd Defendant company was only incorporated on 18.8.2020. [7] The purpose of setting up the 2nd Defendant is to source, purchase and/or procure supply of rubber gloves for medical use to be resold to customers for a profit. All payments in respect to the Agreement is to be made into the 1st Defendant bank account and all Pro Forma Invoices would be issued by the 1st Defendant on behalf of the 2nd Defendant. [8] The seller and/or supplier of the nitrile examination gloves is Redwood Global Resources (M) Sdn. Bhd. and Handskar (M) Sdn Bhd. The Plaintiff and Keenan agreed that all payments into the Defendants’ bank account would be transferred immediately to Redwood and to be subsequently transfer monies to Handskar for the purposes of the Agreement. Role of the 1st Defendant [9] The Plaintiff and Keenan were aware of the terms of the Agreement and the role of the 1st Defendant in the Agreement, including, the 1st Defendant’s role of receiving any sum of money in the interim period was for and on behalf of the 2nd Defendant and the deposit with the 2nd Defendant was immediately transferred to Redwood as directed by the 2nd Defendant. [10] The 1st Defendant (for and on behalf of the 2nd Defendant pertaining to the Agreement) received a partial refund of deposit with the 2nd Defendant from Redwood for the sum of RM2,323,250.00. As a gesture of goodwill and for convenience considering that Redwood transferred the partial refund directly to the 1st Defendant, who immediately upon receipt of the partial refund transferred said sum to Medcellence. Role of the 2nd Defendant [11] As reflected in the Get Glove Company Profile (B1 pp 38-40), the 2nd Defendant conducts trading in gloves whereby gloves are purchased from a supplier, repackaged and then sells to customers. The 2nd Defendant paid a deposit of RM1,764,000.00 to Redwood pursuant to Invoice No. PI-BT001/004 and Redwood promised to deliver the goods within a period of 35 days from the date of payment of the deposit. [12] On or around October 2020, Redwood wrongfully terminated the transaction without sufficient notice nor reasonable grounds and promised to refund the deposit paid by the the 2nd Defendant. In this respect both Defendants had filed a suit in the High Court for the refund of the deposit sum of RM2,629.250.00 against Redwood and Handskar. [13] The 2nd Defendant was added into the suit pursuant to joinder application filed by the 1st Defendant by Order for Joinder of Parties granted by Court on 21.10.2021 (Encl. 45). Evidence of PW1 (Keenan Ong Meng Woey) [14] According to PW1 the Plaintiff’s witness, the Plaintiff is suing the Defendants in the sum of RM2,629,250.00, being the outstanding balance owing to the Plaintiff by the 1st Defendant for not being able to produce nitril gloves as promised. [15] Circa November 2022, the Plaintiff and the 1st Defendant have entered into a sales and purchase agreement of nitril gloves, wherein the 1st Defendant has agreed to provide 125,000 boxes of nitril gloves to the Plaintiff at the agreed price of RM8,230,000.00. The 1st Defendant failed to deliver the said nitril gloves and there was a partial refund of RM2,323,250.00 from the 1st Defendant’s bank account to the Plaintiff as follows: a) RM983,250.00 on 1.10.2020; b) RM1,000,000.00 on 26.10.2020; and c) RM340,000.00 on 1.12.2020. [16]

10.080,000 35 3,528,000 [37] The Defendants discovered Redwood paid Handskar to buy the glove supply and paid huge amounts of money to Handskar. Get Glove has no relationship with Hankskar but the Defendant’s deposit was paid to Hankskar. Redwood had lodged a police report against Handskar claiming they were fraud. What is the 2nd Defendant’s position with regards to the Plaintiff’s claim? [38] The Plaintiff’s claim ought to be dismissed. As a director of Get Glove, the Plaintiff personally signed the transfer slip of RM1,764,000.00 being 35% deposit payment to Redwood and the Plaintiff is estopped from claiming from the Defendants instead of Redwood and Handskar. Submissions of the Plaintiff The Finalised Contract is based on Invoices and Purchase Order [39] The Plaintiff involvement in the 2nd Defendant company is merely as a representative of the Medcellence Sdn Bhd. The Plaintiff’s claim is supported by the Invoices and Purchase Order and the grounds are as follows: a) there are no other official documents to state that 1st Defendant is accepting the money on behalf of the 2nd Defendant; b) there is no formal contract being finalised reflecting that the sum of RM4,952,500.00 is made pursuant to the alleged private agreement entered between the Plaintiff and the Defendants; c) the only evidence being produced by the Defendants to show the existence of the alleged agreement are whatsapp conversation which was denied by the Plaintiff; d) the Invoices required 50% down payments to be committed by the Plaintiff upfront; e) the Invoices specified the outstanding 50% payment to be paid 7 days before ETD (estimated time of departure); and f) the Invoices specification requires the descriptions of nitril gloves and quantity to be stated. Submissions of the 1st Defendant [40] The Plaintiff’s action against the Defendants is premised on a purported agreement between the Plaintiff and the 2nd Defendant on or about September 2020. The 1st Defendant submits as follows: a) the 1st Defendant role was purely that of an intermediary acting on behalf of the 2nd Defendant with no contractual obligations; b) the Plaintiff and/or Keenan were fully aware that the 1st Defendant was acting only as an intermediary for the 2nd Defendant and had no direct involvement in the Agreement; c) the Plaintiff and/or Keenan were well aware of the roles played by Redwood and Handskar in the supply of goods under the Agreement; and d) it is undisputed that the Plaintiff understood that the Defendants would not retain any of the Plaintiff’s purported funds as these were to be transferred solely for the purpose of payment to Redwood and Handskar. [41] For the purposes of facilitating and assisting the purpose, object and execution of the Agreement, it was mutually agreed by the Plaintiff, Keenan and the 2nd Defendant that until the 2nd Defendant’s bank account was established, all payments in relation to the Agreement would be made in the interim using the 1st Defendant’s bank account. The 1st Defendant submits that all monies had been refunded back to the Plaintiff by the 1st Defendant as its role as an intermediary. Submissions of the 2nd Defendant [42] The 2nd Defendant submits in a nutshell as follows:

there is no sale and purchase agreement for supply and delivery of gloves between the Plaintiffs and the Defendants;

the conduct of the parties, exchange of documents and conversations between the Keenan Ong and the Defendants revealed that a deposit was paid through the Defendants’ bank account for transmission to Redwood Global Resources (M) Sdn. Bhd. as payment to secure the performance of a contract for supply of gloves; and

the exchange of purchase orders and invoices between the Plaintiff and the Defendants was merely to facilitate the transmission of deposits to Redwood since the 2nd Defendant was a new Company. Burden of Proof [43] The Plaintiff claims there is a contract between the Plaintiff and the 1st Defendant based on the Purchase Orders and Invoices issued. The law on the burden of proof is provided in the Evidence Act 1950 as follows: “Section 101

Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” [44] The High Court in the case of Prism Leisure Sdn. Bhd. v. Lumut Marine Resort Bhd. [2002] 5 CLJ 391 decided as follows: “To constitute a valid contract there must be a separate and definite parties thereto; those parties must be in agreement, that is there must be a consensus ad idem; those parties must intend to create a legal relations in the sense that the promises of each side are to be enforceable simply because they are contractual promises and the promises of each party must be supported by consideration. Conduct of The Parties This would certainly be an important indicator as to whether a concluded contract had been entered between the parties.” [45] The Supreme Court in the case of Ayer Hitam Tin Dredging Malaysia Bhd. v. Y.C. Chin Enterprises Sdn, Bhd. [1994] 3 CLJ 133 decided as follows: “In other words, in its tasks of ascertaining the intention of the parties, the Court will, generally speaking, apply an objective test; more particularly, it will ask itself what would the intention of reasonable men be if they were in the shoes of the parties to the alleged contract.” Analysis and Findings [46] I have read and perused the Written Submissions and Authorities filed by the the Plaintiff, 1st Defendant and the 2nd Defendant. I have also considered the Oral Submissions and Arguments articulated and presented by the respective parties’ counsel. [47] The undisputed fact is that the Plaintiff had paid the sum of RM4,952,200.00 to the 1st Defendant. When Redwood breached the obligations to deliver the gloves, Redwood partially refunded the sum of RM2,323,250.00 to the 1st Defendant and thereafter the 1st Defendant returned the said sum to the Plaintiff. Hence the balance of RM2,629,250.00 is still owing by Redwood to the Plaintiff. [48] In this respect, Keenan Ong admitted during the cross-examination by the 2nd Defendant’s counsel that the amount of RM2,629,250.00 is owing to Medcellence is actually due from Redwood. Keenan Ong further agrees that there are no deposits retained by Getha and Get Glove because all the deposits were paid over to Redwood as the the supplier. (see Notes of Proceedings Encl. 129 at pp. 102 & 104) [49] Needless to say, from the analysis of the evidence before this Court, the Plaintiff had paid the sum of RM4,952.500.00 to the 1st Defendant. This money was immediately transferred to Redwood which would then transfer the said funds to Handskar. [50] When Redwood breached their obligations to deliver the gloves, Redwood partially refunded the sum RM2,323.250.00 to the 1st Defendant and thereafter the 1st Defendant returned the sum to the Plaintiff. This analysis of evidence is further fortified in the evidence by DW1. (Witness Statement Q. 7 in Encl. 123) [51] Be that as it may, the 1st Defendant was merely acting as an intermediary for the 2nd Defendant. It is crystal clear that it was mutually agreed by all parties that the 1st Defendant shall not assume any responsibility other than this immediary role. In National Union of Bank Employees v. Mayban Securities Sdn Bhd [2014] 1 LNS 391, the Court of Appeal decided as follows: “[12] The reasons inter alia were articulated by the learned judge at paragraph 26 of the judgment which is as follows: “In the present case, the Plaintiff is not the party benefited or received advantage from the illegal contract. The Plaintiff is only an intermediary or an agent to execute the orders given by the First Defendant and/or its representatives. The benefit did not go to the Plaintiff's coffers.” Conduct of Parties [52] The Court is of the considered view that when determining the intention of the parties in this case as to whether there was a valid and binding contract, this can be best demonstrated when scrutinising the communication and conduct amongst the parties in particular PW1 (Keenan Ong), DW1 (Kevin Tan) and DW2 (Brandon Tan) when dealing with Get Glove’s business, negotiation between buyer and supplier, financial arrangements, banking transactions, sharing of documents and invoices on Whatsapp during the resticted movement period. The participants of the Chat Groups include inter alia Keenan, Kevin and Brandon of “Glove Factory – GOV” (B2 pp.23-31), “Get Glove x MedC Accounts” (B2 pp. 32-40) and “Get Glove BOD” (B2 pp. 152-269). [53] The Court finds the unchallenged evidence of DW1 (Notes of Proceedings Encl. 129 pp 150 and 151) in explaining the Purchase Orders and Pro Forma Invoices between Medcellence and Getha are documents merely to facilitate the transactions between Medcellence and Get Glove. [54] The financial arrangement involving “back to back invoicing” was acknowledged and confirmed by PW1 in cross-examination by the 2nd Defendant when asked about the Purchase Orders issued by the Plaintiff to Get Glove for Get Glove to source the gloves from Redwood in the sum of RM5,040,000.00. PW1 admitted for the purpose of procuring the glove supply from Redwood that there were five invoices issued to Getha and one invoice issued to Get Glove. (Notes of Proceedings Encl. pp 87 – 89) [55] The Court is therefore inclined to agree with the submissions of the 2nd Defendant that the conduct of parties as a whole revealed that it was the Get Glove who is in the forefront of negotiating the price, the containers and the reduction of deposit with Redwood and that the gloves transaction for the supply of gloves was not between Medcellence and Getha since Getha was never in the business of manufacturing or supply of medical gloves. (see Encl. 130 paras 29 & 37) Plaintiff and PW1 was aware of Redwood and Handskar role [56] PW1 in his evidence confirmed that the Plaintiff and PW1 was diriectly involved with the negotiations and dealings of the goods with Redwood and/or Handskar. PW1 in his cross-examination was referred to one Interbank Transfer signed by him in his capacity as a director of Get Glove in respect of a sum of RM1,764,000.00 to Redwood on 28.9.2020. (see B2 p. 128) [57] PW1 in cross-examination confirmed in evidence that the Plaintiff and PW1 was directly involved with the negotiations and dealings of the goods with Redwood and/or Get Glove. Based on the Pro Forma Invoice dated 28.9.2020 (B2 p. 127) in the amount of RM5,040,000.00 which was issued by Redwood to Get Glove whereby a deposit of 35% in the amount of RM1,764,000.00 to Redwood by PW1. [58] The involvement of the Plaintiff and/or Keenan Ong in direct communication with Redwood regarding the goods is clearly demonstrated in the evidence of PW1 during cross-examination. (Notes of Proceedings Encl. 129 p. 175) [59] In this regard, the Court is inclined to agree with the submissions of the 1st Defendant (para 7.6) that based on the contemporaneous documents produced, it is clear that the Plaintiff’s conduct in proceeding to make payments to the Defendants was done with the knowledge that the payments would be transferred to the suppliers. PW1 confirmed this during his cross-examination (see Notes of Proceedings Encl. 129 at p. 104) by the 2nd Defendant as follows: “Q : There are no deposits retained by Getha and Get Glove because all the deposits were paid over to Redwood the supplier. Do you agree? A : I agree.” [60] Based on the totality of the evidence adduced, it was clear that Redwood breached its obligations to deliver the gloves as agreed and thereafter Redwood refunded the deposit sum of RM2,323,250.00 to Getha and the said same amount was then refunded to Medcellence. The balance deposit sum of RM2,629,250.00 is still owing by Redwood. Redwood as the ultimate recipient of the deposit sums paid by Medcellence to Getha and Get Glove makes Redwood the vendor of the gloves. [61] The Federal Court in the case of Morello Sdn. Bhd. v. Jaques International Sdn. Bhd. [1995] 2 CLJ 23 decided that in determining whether the amount paid is a deposit or part payment, considerable weight is to be given to the label attached by the parties whereby the purpose of a deposit is to secure due performance of the contract. Clearly without a doubt in the instant case, the deposits paid by Medcellence to Getha and Get Glove through the Purchase Orders and Pro Forma Invoices were merely to facilitate the payments arrangement to the supplier (Redwood) in order to achieve the purpose of the supply of gloves to Medcellence. Decision [62] Based on the aforesaid reasons, the Court makes the following orders:

the Plaintiff’s Claim in Encl. 68 against the 1st Defendant is dismissed with costs of RM25,000.00 (subject to allocatur); and

the Plaintiff’s Claim in Encl. 68 against the 2nd Defendant is dismissed with costs of RM25,000.00 (subject to allocatur). Dated: 30 May 2025 sgd ……….………………………… (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur COUNSEL Solicitors for the Plaintiff Tan Han Sam Messrs. Law Chambers of Han & Zi Kuala Lumpur. Solicitors for the 1st Defendant Bahari Yeow Tien Hong and Lim Zhi Jian Messrs. Rosli Dahalan Saravana Partnership Kuala Lumpur. Solicitors for the 2nd Defendant Ms. Ng. Siok Lyn and Tan Jing Xuan Messrs. Chung Chambers Pulau Pinang.