Mohd. Ariffin Bin Ahmad v Lift Mech Sdn. Bhd. (JA-11BNCvC-1-01/2025)

This is an appeal by the Appellant (“Defendant”) against the whole of the judgment of the Magistrate delivered on 9 January 2025, whereby the Plaintiff’s (Respondent’s) claim was allowed and the Defendant was ordered to pay RM54,583.20 together with costs of RM5,608.00.

The Plaintiff commenced an action based on the Defendant's alleged failure to pay outstanding machinery rental used for the "Jom Heboh" event in 2022. In his defence, the Defendant denied any direct dealing with the Plaintiff. The issue before this Court is whether the Magistrate was right in treating a third party as the Defendant's agent when that was not the Plaintiff's pleaded case.

For consistency, I will refer to the parties as they were in the Magistrate’s Court.

The Plaintiff is a company engaged, inter alia, in the rental of machinery and equipment. The Defendant carries on business under the registered business name Asia Platinum Management, which is a partnership registered under the Registration of Businesses Act 1956, with the Defendant and one Mohd Helmi bin Mohd Zahidin as partners.

The Plaintiff’s pleaded claim was that, at the Defendant’s request, it supplied machinery and equipment on rental for an event (commonly referred to as the “Jom Heboh” event) in December 2022. Three invoices were issued, leaving an alleged outstanding balance of

The Plaintiff pleaded that despite several demands, including a letter of demand dated 3.7.2023 issued through its solicitors, the Defendant failed, refused and/or neglected to pay the said sum. On that basis, the Plaintiff sued the Defendant personally (trading as Asia Platinum Management) for RM54,583.20.

In his Statement of Defence, the Defendant’s position was essentially that –

he was not involved in any business dealings between the Plaintiff and one Mohamed Azrin bin Othman (also known as “John”);

he did not sign any agreement with the Plaintiff;

he had no knowledge of any business dealing between the Plaintiff and the said Mohamed Azrin; and

he did not receive any letters, notices or documents pertaining to the Plaintiff’s claim, including the invoices and letter of demand.

At the trial, the Plaintiff called two witnesses (SP1 and SP2). The Defendant gave evidence as SD1.

Based to the Grounds of Judgment, the Magistrate essentially found as follows –

The Plaintiff had received a purchase order P0701002-LSB and pursuant thereto, supplied and delivered the machinery under several rental agreements dated 8.12.2022;

A payment of RM33,708.00 was made towards the rental charges, leaving an outstanding balance of RM54,583.20;

The Plaintiff had issued invoices and a debtor statement to the Defendant and later caused a letter of demand dated 3.7.2023 to be issued;

The Magistrate accepted that the dealings were undertaken through Mohamed Azrin and treated him as an agent of the Defendant (or someone whose acts must be borne by the Defendant as principal/proprietor of Asia Platinum Management); and

The Magistrate further invoked section 114(g) of the Evidence Act 1950 [Act 56] against the Defendant for not calling his business partner, Helmi and drew an adverse inference that Helmi’s evidence would not have assisted the Defendant.

On that basis, the Plaintiff’s claim was allowed in full.

The Defendant’s appeal challenges, in substance, the Magistrate’s findings on liability and the legal basis upon which the Defendant was held personally liable for the outstanding rental.

Based on parties written submissions, the following issues arise for determination –

whether, on the pleadings and evidence, the Plaintiff proved a direct contract between the Plaintiff and the Defendant;

whether the Magistrate erred in law in deciding the case on an agency/partnership basis that was not pleaded;

whether the reliance on section 114(g) Evidence Act 1950 [Act 56] against the Defendant was proper; and

whether the alleged evidential irregularities materially affected the outcome. Issue (a) : Whether there was a direct contract between Plaintiff and

The Plaintiff’s Statement of Claim, pleaded a direct contract between the Plaintiff and the Defendant, under which the Defendant allegedly requested and procured the rental of machinery from the Plaintiff and became liable to pay the rental charges as invoiced.

The Defendant’s primary case, on the other hand, was that all dealings were in fact with one Mohamed Azrin bin Othman and not with the Defendant.

This Court views that the Plaintiff’s own witnesses supported, in significant respects, the contention that it was Azrin who was the operative figure in the transaction –

SP2 accepted that the purchase order P0701002-LSB was sent by WhatsApp from Azrin, not from the Defendant;

SP1 agreed in cross-examination that it was Azrin who received the equipment; and

as to the payment of RM33,708.00, SP1 accepted that the payment was made on the direction of Azrin and could “be considered” as payment by Azrin. The Defendant’s Affin Bank business account statement showed no such payment and this was not contradicted by other documentary evidence.

Further, the evidence regarding service of invoices and debtor statement was as follows –

SP1 admitted that there was no documentary proof that the invoices or the debtor statement were ever delivered to the Defendant; they were said to have been sent by ordinary post, with no acknowledgment or stamp of the Defendant’s business;

The debtor statement itself was undated by signature or stamp, prepared about six and a half months after the event and bore no acknowledgment of receipt by the Defendant.

As for the letter of demand dated 3.7.2023, the Plaintiff relied on an AR registered card showing that it was received by one “Sam” with an IC number that is facially invalid (not twelve digits). The Defendant testified that he did not know who “Sam” was.

This Court accept that, strictly speaking, whether or not a letter of demand was received does not determine the existence of a contract. It is, however, relevant to the Plaintiff’s pleaded narrative that demands were made upon the Defendant personally. The lack of reliable proof of service is one of several indicators that the Plaintiff’s dealings, in practice, were not with the Defendant himself.

This Court also holds that there is no evidence that the Defendant personally signed any rental agreement or other contractual document with the Plaintiff. SP1 confirmed that all rental agreements were signed by one Mohd Faizal, described merely as a “person in charge” and not by the Defendant.

SP1 also agreed that he had never met the Defendant prior to the first day of trial. This is inconsistent with the pleaded case of a direct contract concluded with the Defendant.

Accordingly, on the record as a whole, the Plaintiff’s evidence, fairly read, shows –

a purchase order sent by Azrin;

delivery of equipment to Azrin;

rental agreements signed by Faizal; and

payment of RM33,708.00 arranged by or attributable to Azrin.

It does not demonstrate any direct communication, negotiation or agreement between the Plaintiff and the Defendant personally.

In light of this, this Court is unable to uphold the Magistrate’s finding that the Defendant was a contracting party on the basis of a direct contract with the Plaintiff as pleaded. The Plaintiff’s own evidence points instead to dealings with Azrin and Faizal.

The Plaintiff sought to rely, at the submission stage, on the fact that Azrin allegedly held a business card describing himself as "Managing Director" of Asia Platinum Management, that Azrin was an "unofficial" or "shadow" partner whose income was a share of the firm's profits, and that Faizal acted as Azrin's assistant in receiving the equipment. Whatever the merits of those factual contentions, and even taken at their highest, they go to a case in agency or partnership-by-holding-out, neither of which was pleaded. They do not cure the absence of proof of a direct contract between Plaintiff and Defendant as pleaded. Issue (b) : whether the Magistrate erred in law in deciding the case on an agency/partnership basis that was not pleaded;

From the appeal record and submissions, it is apparent that the Magistrate ultimately treated Azrin as an “agent” of the Defendant and imposed liability on the Defendant in that capacity, i.e. as principal.

However, the Plaintiff’s Statement of Claim did not plead any agency, partnership-by-holding-out or “unofficial partner” theory. The pleaded case was simply that the Defendant requested the rental, that the Plaintiff supplied equipment pursuant to that request and that the Defendant became liable for the rental charges. There was no pleading that Azrin acted as agent of the Defendant, nor that the Defendant was liable for Azrin’s acts as an “unofficial partner”.

In the Plaintiff’s written submissions at the High Court (as recounted in the Defendant’s reply submissions), the Plaintiff openly contended that Azrin was an “unofficial partner” and that the Defendant was therefore liable as partner / principal. The Defendant complains that this amounted to a radical and complete departure from the Plaintiff’s pleaded case.

This Court agrees with the Defendant that the cause of action on which the Magistrate based liability - namely the Defendant’s alleged liability as principal of Azrin or as a partner vis-à-vis an “unofficial partner” - was not pleaded. On this, its trite that the well-known principle that parties are bound by their pleadings and that a court is not entitled to grant relief based on unpleaded material facts or a different cause of action is applicable. (See : Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1, AmBank (M) Bhd (formerly known as Arab-Malaysia Bank Bhd) v Luqman Kamil bin Mohd Don [2012] 3 MLJ 1, Tan Keng Yong @ Tan Keng Hong & Anor v Tan Hwa Ling @ Tan Siew Leng & Ors [2022] 2 MLJ 805 and Boustead Naval Shipyard Sdn Bhd v Dynaforce Corp Sdn

At the hearing, counsel for the Plaintiff relied on the Federal Court decision in Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619 to submit that the court may, in the exercise of its inherent powers, determine the dispute on an agency/principal footing notwithstanding the absence of specific pleadings. Counsel for the Defendant, on the other hand, drew this Court’s attention to Dato’ Hamzah bin Abdul Majid v Omega Securities Sdn Bhd [2015] 6 MLJ 725 and Kunci Semangat Sdn Bhd v Thomas Varkki a/l MV Varkki & Anor [2022] 3 MLJ 857, as well as RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188, to emphasise that, save in cases of ex facie illegality, a court is not entitled to embark on a radical departure from the pleaded case.

Having considered those authorities, this Court accepts the Defendant's submission. Properly understood, Merong Mahawangsa was concerned with questions of illegality and does not stand for the proposition that a court may recast a party's case and impose liability on an unpleaded agency or partnership basis in an ordinary commercial dispute. Of the authorities cited by the Defendant, RHB Bank Bhd v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188 is directly on point. There, the Federal Court set aside a Court of Appeal decision which had imposed liability on a defendant as principal of an agent in circumstances where no such agency case had been pleaded. Dato' Hamzah and Kunci Semangat address the cognate question of unpleaded illegality and apply the same underlying pleading principle. Read together, these authorities establish the consistent position that material facts giving rise to a distinct basis of liability, including any alleged agency or partnership relationship must be distinctly pleaded so as to avoid trial by ambush. To uphold the Magistrate's decision on an unpleaded agency/"unofficial partner" theory would therefore be contrary to these authorities.

In this case, the Plaintiff did not plead that Azrin was the Defendant’s agent, or that the Defendant should be fixed with liability by reason of Azrin being an “unofficial partner” or “managing director”. On the contrary, the Plaintiff denied his existence in the Reply. To then treat Azrin as the Defendant’s agent for the purposes of fixing contractual liability, without any amendment to the pleadings, is a departure of the very kind cautioned against in the authorities.

A related but distinct difficulty arises from the Plaintiff's Statement of Reply itself. At paragraph 3 of the Reply, the Plaintiff denied paragraphs 3(a)-(e) of the Statement of Defence, being the paragraphs which set out the Defendant's assertions about Mohamed Azrin bin Othman's role in obtaining projects for the partnership. The Plaintiff before this Court characterised that as a denial only of "knowledge of internal arrangements" within the Defendant's business. The Defendant characterised it as a denial of Azrin's existence and involvement. Whichever characterisation is preferred, the Plaintiff cannot simultaneously deny those very averments in its Reply and then, at the submission stage, invite the court to fix liability on the Defendant by treating Azrin as the Defendant's agent or unofficial partner. The Federal Court in Saiman bin Umar v Lembaga Pertubuhan Peladang [2015] 6 MLJ 492, observed that where a party in its pleading "denied" rather than "admitted" the opposing party's averments, it cannot thereafter advance a case in submissions which depends on the very facts it has denied. The court "should not decide an issue, which was not pleaded by the parties". That principle applies here with full force.

There is a further independent reason why the Plaintiff's late attempt to fix the Defendant with liability on an agency/holding-out footing cannot succeed on the present record. The undisputed evidence of SP1 was that, before the Jom Heboh event in December 2022, the Plaintiff had carried out an SSM search on Asia Platinum Management and was aware that the registered partners were the Defendant and Mohd Helmi bin Mohd Zahidin only and that Mohd Azrin's name did not appear in that search. Notwithstanding that knowledge, the Plaintiff proceeded to transact with Azrin (the purchase order, the delivery and the receipt of payment) and with Faizal (who signed the rental agreements). In Danaharta Manager Sdn Bhd v Khairol Anuar bin Amran and Others [2009] MLJU 446, the Court applying Lord Tenterden's dictum in Thomson v Davenport (1829) 109 ER 30, held that where a seller knows at the time of dealing that the person with whom he is dealing is not the principal but is an agent and knows who the true principal is said to be and nevertheless chooses to deal with that intermediary alone, the seller cannot afterwards "shift the goalpost" and seek to charge a different principal. That observation has some force on the facts established by the Plaintiff's own witnesses and reinforces the conclusion that the agency/holding-out theory advanced at submissions cannot rescue the Plaintiff's pleaded case.

This Court therefore find that the learned Magistrate fell into error in law in allowing the Plaintiff’s claim on the footing of an unpleaded agency/partnership theory.

For completeness, it is also pertinent for this Court to highlight that Asia Platinum Management, being a business registered under the Registration of Businesses Act 1956, does not, by itself, determine whether an agency/partnership case exists in fact. What is critical here is that such a case was not pleaded. It is unnecessary, in view of this Court other findings, to express any concluded view on the broader proposition that the Defendant advanced about the legal status of “enterprise” or partnership business names.

The Plaintiff placed considerable reliance on sections 7, 8 and 11 of the Partnership Act 1961 [Act 135], and on the Court of Appeal decision in Ng Chooi Kor v. Isyoda (M) Sdn Bhd [2010] 3 CLJ 162, to contend that Mohd Azrin's acts in obtaining the purchase order, taking delivery and arranging payment were acts done in the firm's business and so bound the partnership and its partners. Two short answers are sufficient. First, the statutory provisions on partner authority and the firm's liability under the Act 135 only become engaged once a partnership/firm case has been pleaded. Here, the Statement of Claim pleads neither a partnership relationship nor any reliance on Azrin's authority to bind the firm. The Defendant was sued in his personal capacity as the proprietor of Asia Platinum Management, not as a partner of an alleged partnership comprising himself, Helmi and Azrin. Secondly, Ng Chooi Kor is distinguishable. There, the Court of Appeal was satisfied on the totality of the documentary and oral evidence that the supply of goods had in substance been requested by the corporate respondent. Here, by contrast, the Plaintiff's own evidence that the purchase order from Azrin, the delivery taken by Azrin, the rental agreements signed by Faizal, the payment attributable to Azrin's Maybank account, points consistently away from the Defendant and towards Azrin. Ng Chooi Kor therefore does not assist the Plaintiff on the facts of the present appeal. Issue (c) : Whether the reliance on section 114(g) Evidence Act 1950 [Act 56] against the Defendant was proper

One of the grounds of appeal concerns the learned Magistrate’s reliance on section 114(g) of the Evidence Act 1950 [Act 56], drawing an adverse inference against the Defendant for failing to call his business partner, Mohd Helmi bin Mohd Zahidin.

The Defendant’s written submissions emphasised that the presumption of adverse inference under section 114(g) of Act 56 should not be drawn unless there has been a deliberate withholding or suppression of material evidence. (See : Krishnan Nambiar s/o Perabakaran & Ors v Dr P Mahendran & Anor [2009] 4 MLJ 267 and Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim [2015] 3 MLJ 609), where the courts stressed that mere failure to call a witness does not automatically justify such an inference and that there must be some indication of suppression or withholding of material evidence.

On the facts, the Defendant explained that Helmi was not involved in the site work for the Jom Heboh event at Puteri Harbour (where the Plaintiff alleged the equipment was delivered), as Helmi was occupied with work at Forest City. SD1’s testimony was that while business decisions were shared, the operational work at Puteri Harbour was handled by the Defendant himself.

The Defendant further submitted that there is “no property in a witness” and that if the Plaintiff considered Helmi’s evidence to be supportive of its case, it was always open to the Plaintiff to call him. The authorities cited in the submissions reiterate that where the burden of proof lies on the plaintiff, the plaintiff’s failure to call an available witness may itself justify an adverse inference against the plaintiff, rather than the defendant.

On the record, there is no indication of deliberate withholding or suppression of Helmi’s evidence by the Defendant. Rather, the Defendant’s case was that Helmi was not directly involved in the particular site where the Plaintiff alleged the rental equipment was delivered.

In any event, this Court is of the view that section 114(g) of Act 56 cannot properly be used to fill fundamental gaps in a party’s case. As analysed under Issues (a) and (b), the central deficiencies in the Plaintiff’s claim lie in –

the failure to prove a direct contract with the Defendant, as pleaded; and

the reliance, at judgment, on an unpleaded agency/partnership theory.

Even if an adverse inference were properly drawn against the Defendant for not calling Helmi, such an inference could not cure these basic defects in the Plaintiff’s case.

In these circumstances, this Court finds that the invocation of section 114(g) of Act 56 against the Defendant was misplaced. The Magistrate erred in law in drawing an adverse inference in a manner that effectively shifted or diluted the Plaintiff’s primary burden of proof. Issue (d) : Whether the alleged evidential irregularities materially affected the outcome

The Defendant also complains that the Magistrate erred in considering documents that were said to be inadmissible, including the purchase order, rental agreements, delivery orders, debtor statement and AR card, on the basis that the makers were not called and that the documents constituted hearsay.

The Defendant’s submissions pointed out, for example, that the WhatsApp communications allegedly evidencing the purchase order from Azrin were never tendered, despite SP2’s evidence that the purchase order was sent via WhatsApp.

There is force in the argument that greater care should have been taken to ensure that the relevant business documents and electronic communications were properly proved in accordance with the Evidence Act. That said, SP1 and SP2 did give oral evidence and some documents appear to have been admitted without objection at trial.

The Defendant relied, in particular, on the recent Federal Court decision in Live Capital Sdn Bhd v. Pioneer Conglomerate Sdn Bhd [2025] 6 CLJ 855, and on the Court of Appeal decision in Kong Ming Trading Sdn Bhd v MTS Construction & Trading Sdn Bhd & Anor [2017] 3 MLJ 267, for the propositions that –

where documents are tendered to prove the truth of their contents, the maker must be called or their non-production properly accounted for, failing which the contents remain hearsay; and

inadmissible evidence remains inadmissible irrespective of whether objection was taken at trial.

For purposes of this appeal, however, it is unnecessary to make definitive rulings on the admissibility of every impugned document. Even if those documents are taken at their highest in favour of the Plaintiff, they show dealings primarily with Azrin (and signatures by Faizal), not a direct contract with the Defendant personally and they do not overcome the pleading defects already identified. The authorities cited by the Defendant on admissibility have been considered, but it is not necessary to make a concluded finding on them in view of this Court's disposition of the appeal on the pleading and contract grounds.

Accordingly, while the concerns raised by the Defendant on evidential irregularities are noted, this Court’s decision to allow the appeal rests principally on –

the Plaintiff’s failure to prove its pleaded case of a direct contract with the Defendant; and

the impermissible reliance on an unpleaded agency/partnership theory to fix the Defendant with liability. “illegality”

In additional submissions (enclosure 20), the Defendant addressed a further point raised in the Plaintiff’s submission in reply (enclosure 16), namely the assertion – founded on the Federal Court decision in Merong Mahawangsa - that “illegality” need not be pleaded and that the court could in any event invoke its inherent powers to uphold the judgment.

The Defendant contended that this was an over-reading of Merong Mahawangsa and relied instead on subsequent decisions of the Federal Court and Court of Appeal, particularly Dato’ Hamzah and Kunci Semangat. Those cases make clear, in line with O 18 r 8 of the Rules of Court 2012, that facts giving rise to illegality must be specifically pleaded, save only in cases of ex facie illegality.

On the material before this Court, any alleged “illegality” relied upon by the Plaintiff was neither clearly articulated nor pleaded in the Statement of Claim or the Reply. In any event, in view of this Court’s findings on the core issues of contract, pleadings and the misuse of s 114(g) Evidence Act, it is unnecessary to reach a concluded view on the illegality point. It suffices to observe that Merong Mahawangsa does not permit a court to uphold a judgment on an unpleaded and unparticularised basis of illegality in circumstances such as the present and that the approach in Dato’ Hamzah and Kunci Semangat is consistent with the general pleading principles already discussed.

In summary, this Court finds as follows –

the Plaintiff’s pleaded case was one of a direct contract between the Plaintiff and the Defendant. On the evidence, that case was not proved. The dealings, in substance, were with Azrin and Faizal, not the Defendant personally;

The Magistrate effectively imposed liability on the Defendant on the footing of an agency/“unofficial partner” theory involving Azrin. That theory was not pleaded; indeed, the Plaintiff had expressly denied Azrin’s existence in the Reply;

It is impermissible to sustain a judgment on a cause of action or material facts that have not been pleaded. The Magistrate thereby fell into error in law;

The invocation of section 114(g) of the Evidence Act 1950 against the Defendant was misplaced and could not properly be used to cure fundamental deficiencies in the Plaintiff’s case; and

Even assuming the impugned documents are admissible and taken at their highest, they do not establish the Plaintiff’s pleaded case of a direct contract with the Defendant.

In these circumstances, the Magistrate’s decision cannot stand. The appeal is therefore allowed with RM 7,000.00 subject to allocator.

The judgment of the Johor Bahru Magistrate’s Court in Writ No. : JA-A72NCvC-737-08/2023 dated 9 January 2025 is set aside and the Plaintiff’s claim is dismissed. Dated on 28 November 2025 -signed-YA Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Appellant : : Tan Meng Khong Messrs. G. K. Sritharan & Co. Solicitor for the Respondent : : Mohamed Fairoz Elyas Majeed Messrs. Lau Kok Guan Liana & Kuan