Michelle Lim Soik Kah (KP No: 820501-02-5796) v Percaya Jaya Bandar Builders (No. Syarikat: 557034-D) (K-02(IM)(NCVC)-326-02/2018)

MICHELLE LIM SOIK KAH [K.P NO: 820501-02-5796] …. PERAYU

PERCAYA JAYA BANDAR BUILDERS (NO. SYARIKAT: 557034-D]

PERCAYA JAYA DEVELOPMENT SDN BHD [NO. SYARIKAT: 547432-M)

LOW AI LIN (DISAMAN SEBAGAI PENTADBIR HARTA PUSAKA OOI POEY KEE (SIMATI) … RESPONDEN-RESPONDEN (Dalam Perkara Mengenai Mahkamah Tinggi Malaya di Alor Setar) Dalam Negeri Kedah, Malaysia Guaman Sibil No: 22NCVC-42-06/2017)

Antara Michelle Lim Soik Kah [K/P: No: 820501-02-5796] … Plaintif Dan

Percaya Jaya Bandar Builders [No. Syarikat: 557034-D]

Percaya Jaya Development Sdn. Bhd [No. Syarikat: 547432-M] CORUM: VERNON ONG LAM KIAT, JCA KAMARDIN BIN HASHIM, JCA YEW JEN KIE, JCA 2

This is an appeal against the decision of the learned Judicial Commissioner, given on 5th June 2018, in dismissing the Appellant’s application to strike out the statement of defence under Order 18 rule 19(1)(a), (b), (c) and (d) of the Rules of Court 2012 ["ROC"].

The Appellant is the Plaintiff and the Respondent is the Defendant. They will be hereinafter referred to as in the original action.

The Plaintiff’s case against the Defendants is for a sum of RM1,050,000.00 being the remaining balance of the consultancy fee allegedly due and owing to the Plaintiff by the 1st, 2nd and 3rd Defendants.

The Plaintiff alleged that there was an oral contract allegedly entered into by the Plaintiff and the late Ooi Poey Kee [“the Deceased”] whereby the Deceased engaged the plaintiff as a consultant to the 1st and 2nd Defendants for the sum of RM1.5 million or 15% of the profits (whichever is the lower). The Deceased was at the material time the Managing Director of the 1st and 2nd Defendants.

In pursuance of this oral agreement, the Deceased did pay RM450,000.00 of the agreed RM1.5 million for her services and she is now seeking RM1,050,000.00 being the purported balance sum due to her.

The Plaintiff now seeks payment for the purported balance against the 1st and 2nd Defendants and against the 3rd Defendant as the administrator of the Deceased. [1st, 2nd and 3rd Defendants are hereinafter collectively referred to as “the Defendants”] 3

In their respective statements of defence, the 1st, 2nd and 3rd Defendants disputed and denied the Plaintiff’s appointment as consultant. They alleged that the sum of RM450,000.00 was given to the Plaintiff as an interest free loan.

The Plaintiff vide Enclosure 8 applied to strike out the Defendants’ statements of defence under Order 18 rule 19(1)(a), (b), (c) and (d) of ROC on the following grounds: a. Their statements of defence do not disclose a reasonable defence as the Defendants do not deny that RM1,050,000.00 is still and owing to the Plaintiff; b. The Defendants do not deny that the Deceased had paid RM450,000.00 to the Plaintiff; c. The Defendants do not deny that the receipts for RM450,000.00 was delivered to the Deceased; d. The Defendants do not deny paragraph 15 & 16(a), (b), (c) and (d) of the Plaintiff’s statement of claim; e. The statements of defence is scandalous, frivolous or vexatious; f. The statements of defence may prejudice, embarrass or delay the fair trial of the action; and 4 g. The statements of defence are otherwise an abuse of the process of the court. Decision of the High Court

The learned Judicial Commissioner found that the Plaintiff’s reliance on Order 18 rule 19(1)(a) ROC is misplaced on the ground that the Plaintiff had exhibited several documents to her Affidavit in Support in contravention of the said provision, which expressly provides that no evidence shall be admissible on an application under sub-paragraph (1)(a).

The learned Judicial Commissioner dismissed Enclosure 8 on the ground that the Defendants have in their respective statements of defence clearly disputed the Plaintiff’s appointment as a consultant to the 1st and 2nd Defendants as alleged by the Plaintiff. They had alleged that the sum of RM450,000.00 was given to the Plaintiff as an interest free loan. The cheque for the sum of RM450,000.00 was in fact issued by the Deceased from the Deceased’s personal account. Hence, there is no relationship between the payment and the 1st and 2nd Defendants [which are companies]. The Defendants also denied knowledge of the receipt issued by the Plaintiff purportedly for the remuneration fees. [Exhibit lSK-2 annexed to the Affidavit in Support is referred].

Premised on the above, learned Judicial Commissioner found that there are issues which required to be tried and that the Defendant’s defence are obviously arguable. The Appeal 12. It is amply clear from the Memorandum of Appeal and the submission before this Court that the main thrust of the Plaintiff’s appeal is that there 5 is failure on the part of the learned Judicial Commissioner in considering that the Defendants had failed to deny the Plaintiff’s pleading in paragraphs 15 and 16 (a), (b), (c) and (d) of the statement of claim. As such, there is non-compliance of the procedural requirement under Order 18 Rule 13(3) of ROC.

Order 18 of ROC is reproduced below for ease of reference.

Admissions and denials (O. 18 r. 13)

The provision in Order 18 Rule 13(3) of ROC clearly provides that each party should fully admit or clearly deny every material allegation made against him. An allegation which is not specifically denied or traversed 6 will be deemed to have been admitted: Mayor Singh v Lau Geok Swee [1960] MLJ 285.

It is the contention of the Plaintiff that the defences of the Defendants are a bare denial of the claim. Given the failure of the Defendants to specifically deny paragraph 15 and paragraph 16 (a), (b), (c) and (d) of the Statement of Claim which prayed for RM1,050,000.00 being the balance of the consultant fees owed by the Deceased [the late husband of the 3rd Defendant], the Defendants’ defences ought to be struck out and Judgment entered against them accordingly.

In Malaysia Civil Procedure 2018 volumn 1, under paragraph 18/13/2 “Denial or non-admission” it is commented: A traverse may be made either by a denial or non-admission, but a refual to admit must be specifically as a denial: Thorp v Holdsworth [1876] 3 Ch D 637 at 640; Hall v London and North Western Rly Co p1877] 35LT 848 at 849. “Defendant puts plaintiff to proof” and “Defendants do not admit correctness” have been held to be insufficient traverses: Harris v Gamble [1878] 7 ChD 877; Butter v Tregent [1879] 12 ChD 758. The defence will be assessed as a whole to determine whether it amounts to a denial or non-admission of the plaintiff’s claim by necessary implication: Mat Roni bin Daud v Siti bte Hussin & Ors [2000] AMEJ 0302; [2000] 5

In paragraphs 15 and 16 statement of claim, the Plaintiff pleaded: 15) Tuntutan Plaintif ialah untuk mendapatkan RM1,050,000.00 baki yuran konsultansi yang masih dihutang oleh defendan-defendan. 7 16) Dan Plaintif menuntut: a. Defendan-Defendan sesama atau berasingan membayar RM1,050,000.00 kepada Plaintif balik baki Yuran Konsultansi yang dijanjikan oleh Ooi Poey Kee (simati) semasa Hayatnya; b. Faedah 4% setahun dari tarikh simati meninggal dunia iaitu dari 2/3/2016 sehingga penyelesaian sepenuhnya atas RM1,050,000.00. c. Kos tindakan ini. d. Lain-lain relif Mahkamah yang Mulia ini fikir suai manfaat.

Upon assessing the respective statements of defence of the Defendants [which are in pari materia] on a whole , We are unable to agree that there was no specific traverse merely because the Defendants did not specifically traverse paragraphs 15 and paragraph 16 (a), (b), (c) and (d) of the statement of claim.

In paragraph 6 of the statements of defence, the Defendants specifically referred to paragraph 6 statement of claim and denied that the former managing director, the Deceased, had requested the Plaintiff to provide consultancy services for the 1st and 2nd Defendants’ companies. 8

In paragraph 8 of the statements of defence, the Defendants specifically refer to paragraph 8 of the statement of claim and denied that there was any dealing by the Deceased with the Plaintiff for the purported payment of RM1.5 million as consultation fee to be paid to the Plaintiff.

In paragraph 11 of the statements of defence, the Defendants specifically refer to paragraph 11 of the statement of claim and deny that the Defendants had paid RM450,000.00 to the Plaintiff as part payment toward the consultancy fees leaving a balance of RM1,050,000.00 unpaid and instead aver that the RM450,000.00 is an interest free loan to the Plaintiff. The Defendants also denied they had received the receipt for the payment of RM450,000.00 .

In paragraphs 15 and 16 of the statements of defence, the Defendants pleaded:

Selain daripada apa yang diakui sebelum ini, Defendan pertama menafikan tiap-tiap dan setiap dakwaan dalam Penyataan Tuntutan seolah-olah ianya dinyatakan di sini satu per satu dan disangkal dengan khusus.

Oleh itu, Defendan Pertama dengan rendah diri memohon Mahkamah yang Mulia ini Menolak tuntutan Plaintif dengan kos. 9

When the Defendants’ defences are assessed as a whole, they have fully denied that the Plaintiff was engaged as a consultant and pleaded that the sum of RM450,000.00 is an interest free loan.

For the reasons aforesaid, we find that the learned Judicial Commissioner had not fallen into error in her finding that there are issues which required to be tried and that the Defendants’ defence are obviously arguable.

Accordingly, the appeal is dismissed with costs of RM5,000.00. Dated: 20 March 2019 Sgd YEW JEN KIE (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellants : En. Jamil b. Mohamed Shafie Cik Nur Syazwani Ilyana bt. Iskandar Dzulkarnain (MESSRS JAMIL MOHAMED SHAFIE & ASSOC) For Respondents : En. Victor Paul a/l Doorai Raj