Nemonia Investment Limited v 1. ) Ambank Islamic Berhad (WA-22NCvC-306-05/2018)

High Court of Malaysia10 Aug 2023

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18/08/2023 10:40:34 WA-22NCvC-306-05/2018 Kand. 226

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Malaysian judgment

Case metadata

Court: High Court of Malaysia
Decision date: 10 Aug 2023
Case number: WA-22NCvC-306-05/2018
Coram: YA Dato' Indera Mohd Arief Emran Bin Arifin
Practice area: Negligence-Duty of care- Breach of duty of care of banks and non-customer- fraudulent scheme or scam- Defendants had credited payments to some bank accounts after receiving the appropriate instructions from the instructing banks via the notices issued to the Swift system -Various notices concerning the invalid payments or fraudulent transactions were issued by the following entities to the Defendants-Existence of duty of care even not a customer- evidence tendered or produced of the standards at which the Banks should be adjudged. Burden of proof- Plaintiff to prove the Defendants owed a duty of care - that the breach of the said duty caused losses to the Plaintiff-Defendant alleged did not owe any duty of care to the Plaintiff -not their clients - it would be too remote to expect their actions may have any impact on the Plaintiff- Tests to prove duty of care
Version: Alasan Penghakiman 2
Published: 18 Aug 2023
Source ID: b3321ac5-d86a-4285-92a4-1248afa0c0df

Catchwords

Negligence-Duty of care- Breach of duty of care of banks and non-customer- fraudulent scheme or scam- Defendants had credited payments to some bank accounts after receiving the appropriate instructions from the instructing banks via the notices issued to the Swift system -Various notices concerning the invalid payments or fraudulent transactions were issued by the following entities to the Defendants-Existence of duty of care even not a customer- evidence tendered or produced of the standards at which the Banks should be adjudged. Burden of proof- Plaintiff to prove the Defendants owed a duty of care - that the breach of the said duty caused losses to the Plaintiff-Defendant alleged did not owe any duty of care to the Plaintiff -not their clients - it would be too remote to expect their actions may have any impact on the Plaintiff- Tests to prove duty of careproximity test-foreseeability test- policy consideration- to be determined on the factual matrix of each case- Defendants claimed did not have any direct relationship with the Plaintiff. Standard of care -“whether a reasonably prudent banker, faced with the same circumstances, would regard the action taken on the facts justifiable”- the standard expected of a reasonably prudent banker and test what the reasonably prudent banker would have done - section 14 and section 22 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceedings of Unlawful Activities Act 2001(AMLA)- estoppel- not barred- not successfully recovered the full sums wrongly withdrawn from its account. Breach of duty of care- Burden on the Plaintiff to show the standard must be complied with by the Defendants and that the Defendants did not comply with the said standard- Plaintiff had not produced guidelines or regulations made by the Central Bank of Malaysia or internally of these banks or other banks to enable this Court to ascertain the standard of care required of a professional banker- not for the Defendants to refute the Plaintiff’s contention until such time the burden of proof is discharged- failure to discharge burden of proof

Parties

NEMONIA INVESTMENT LIMITED - plaintiff - ejudgment_parties
1. ) AMBANK ISLAMIC BERHAD - defendant - ejudgment_parties
2. ) ALLIANCE BANK MALAYSIA BERHAD - defendant - ejudgment_parties
3. ) AL RAJHI BANKING & INVESTMENT - defendant - ejudgment_parties
4. ) ALLIANCE ISLAMIC BANK MALAYSIA - defendant - ejudgment_parties

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Catchwords

Parties

NEMONIA INVESTMENT LIMITED - plaintiff - ejudgment_parties

1. ) AMBANK ISLAMIC BERHAD - defendant - ejudgment_parties

2. ) ALLIANCE BANK MALAYSIA BERHAD - defendant - ejudgment_parties

3. ) AL RAJHI BANKING & INVESTMENT - defendant - ejudgment_parties

4. ) ALLIANCE ISLAMIC BANK MALAYSIA - defendant - ejudgment_parties