Org Vs Sdn Bhd v Zhou Jianmei (WA-11BNCvC-24-06/2025)

This is an appeal brought by the defendant, now the appellant, against the decision of the Magistrate Court delivered on 23 May 2025. Following a full trial, judgment was entered in favour of the plaintiff, now the respondent, in the sum of RM37,435.66 for arrears of rent, together with a further sum of RM3,000.00 by way of damages for repair costs.

In the court below, the respondent herself gave evidence in support of her claim. The appellant, for its part, relied upon the testimony of four witnesses: Alan Siow Chuan Bun (SD1), an estate agent; Chan Huan Haw (SD2), its director; Tan Eu Huat (SD3), its operations manager; and Tan Ee Teng (SD4), its administration and finance manager.

The appeal concerns whether the learned Magistrate erred in concluding that the respondent was entitled to outstanding rental and repairs, notwithstanding the appellant’s reliance on alleged rental adjustments approved through the respondent’s appointed agent, SD1, as well as the respondent’s conduct throughout the tenancy period affected her entitlement to the claimed amounts.

Having carefully reviewed the record of proceedings, including the evidence adduced below, the written submissions of both parties, and the Magistrate’s written grounds of judgment, this Court now delivers its decision.

The material facts are not in serious dispute. The respondent, a national of the People’s Republic of China, is the owner of a condominium unit, namely No. D‑25‑01, Platinum Suites, 1020 Jalan Sultan Ismail, Kampung Baru, Kuala Lumpur. On 10 September 2020, she entered into a tenancy agreement with the appellant, through her duly appointed agent, SD1.

By the said tenancy agreement, the respondent, as landlord, demised the unit to the appellant, as tenant, for a term of one year commencing 1 September 2020 and expiring on 1 September 2021. The rent was agreed at RM2,300 per month for the period September 2020 to January 2021, thereafter increasing to RM3,000 per month.

During the entire tenancy period, the respondent resided abroad and entrusted the management of the property fully to SD1, whom she had authorised by a letter of authority. This letter conferred upon SD1 wide powers, including: dealing with enquiries and complaints; assisting in the handling of vacant possession; managing and collecting deposits; monitoring rental payments; supervising the payment of utilities; and inspecting the unit upon termination of the tenancy.

The tenancy was subsequently renewed on three occasions: first from 1 September 2021 to 31 August 2022; second from 1 September 2022 to 31 August 2023; and lastly from 1 September 2023, though this final renewal was terminated prematurely on 15 October 2023. No fresh tenancy agreement was executed for these renewals, notwithstanding repeated requests by the appellant.

The appellant contends that during the tenancy, and particularly during the Covid-19 pandemic, rental adjustments including temporary waivers and reduced monthly payments were discussed and approved through SD1 with the respondent’s knowledge and acquiescence. All payments were made directly into the respondent’s HSBC account.

In September 2023, the respondent travelled to Malaysia and, upon inspection of the unit, elected to terminate the tenancy. The appellant vacated the premises on 15 October 2023, surrendered vacant possession through SD1, in what SD1 described as, in good and clean condition albeit requiring a minor repairs.

The respondent thereafter issued a demand for alleged rental arrears and repair costs, which the appellant disputes. It is against this backdrop that the matter proceeded to trial.

The learned Magistrate correctly identified the core issue in the proceedings as whether the respondent had, through her agent, waived or agreed to a reduction in the monthly rent during the tenancy, and if so, whether she was estopped from recovering the alleged arrears. Her judgment on this point was expressed as follows: “The core issue before this court is whether the plaintiff had waived or authorised expressly or impliedly, the deductions in rental payments made over a three-year tenancy period through her agent, and if so, whether she is estopped from subsequently recovering the alleged arrears. Ancillary issues include the credibility of witnesses, the admissibility of documentary evidence, and whether the plaintiff is entitled to damages for repairs allegedly incurred after the defendant vacated the premises.” [Emphasis is mine]

Having thus identified the core issue, the learned Magistrate proceeded to frame five specific issues for determination:

Whether SD1 was authorised to negotiate or vary the rental;

(ii) Whether the respondent was estopped from claiming the rental shortfall;

(iii) Whether the respondent was entitled to the sum of RM5,560 for repairs and cleaning;

(iv) Whether the document marked ID1, being the rental payment summary spreadsheet prepared by SD1, was admissible under section 90A of the Evidence Act 1950;

Whether the appellant had fully discharged its rental obligation.

After evaluating the evidence, the learned Magistrate made findings that were, in large measure, favourable to the appellant. She found that SD1 had implied and ostensible authority to manage tenancy matters, and that the respondent’s silence over a period of three years amounted to acquiescence to the reduced rental payments.

Despite these findings, which would typically support the appellant’s position, the Magistrate reached a decision that appears inconsistent with her conclusions. In a ruling that gives rise to significant legal difficulty, she held that the appellant liable for rental arrears of RM37,435.66, together with further costs for repair amounting to RM3,000. The Magistrate did not adequately explain how her findings on authority, acquiescence, and estoppel could be reconciled with her decision to award the full amount claimed.

It is against this contradictory backdrop, where findings of fact appear to contradict the final judgment that the present appeal is brought before this Court.

Arising from the learned Magistrate's decision, the appellant raises two principal grounds of appeal, which may be formulated as follows:

Whether the learned Magistrate erred in law and/or fact in holding the appellant liable for rental arrears, notwithstanding her own findings that:

SD1 had implied and ostensible authority to manage the tenancy, including negotiating rental variations; and

the respondent was estopped from denying the reduced rental payments by reason of her three-year acquiescence and conduct.

(ii) Whether the learned Magistrate erred in law and/or fact in awarding the sum of RM3,000.00 for repair costs, when the respondent failed to adduce any admissible evidence to substantiate the necessity or quantum of the alleged damages.

In support of its appeal, the appellant contends that the Magistrate's judgment contains a fundamental inconsistency. It is argued that her findings on the agent's authority and the respondent's estoppel are determinative and should have led to a dismissal of the rental claim. The appellant further submits that the award for repairs was speculative and unsupported by the evidence on record.

The respondent, in opposing the appeal, maintains a contrary position. She asserts that SD1 acted outside the scope of his authority in agreeing to any rental reductions. Crucially, she claims she was completely unaware of the reduced payments until after the tenancy had ended and therefore could not have acquiesced to them. The respondent further contends that the award for repairs was justified based on the condition of the property upon its return. Legal Analysis and Determination Whether SD1 was authorised to negotiate or vary the rental

This Court is in full agreement with the learned Magistrate’s finding that SD1 was clothed with both implied and ostensible authority, which arose from the respondent’s comprehensive delegation of duties. The Magistrate correctly based this conclusion on the testimony of SD1 and the communication between the respondent and SD1, which demonstrated that the respondent was kept informed of matters pertaining to the tenancy.

The evidence supporting this finding is compelling. The respondent's complete reliance upon SD1, her undisputed acceptance of reduced monthly rental payments over a significant three-year period, and the consistent nature of communications between herself and SD1 collectively establish that SD1 possessed authority to negotiate rental variations. These factors, considered together, provide an irrefutable foundation for the conclusion that SD1 had both implied and ostensible authority to act as he did.

The legal principles governing an agent's authority are well-established under Malaysian law. Sections 140-141 of the Contracts Act 1950 provide the statutory framework: 140 – Definitions of express and implied authority An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case. ILLUSTRATION A owns a shop in Kajang, living himself in Kuala Lumpur, and visiting the shop occasionally. The shop is managed by B, and he is in the habit of ordering goods from C in the name of A for the purpose of the shop, and of paying for them out of A's funds with A's knowledge. B has an implied authority from A to order goods from C in the name of A for the purposes of the shop. 141 – Extent of agent's authority

An agent having an authority to do an act has authority to do every lawful thing which is necessary in order to do the act.

An agent having an authority to carry on a business has authority to do every lawful thing necessary for the purpose, or usually done in the course of conducting such business. ILLUSTRATIONS

A is employed by B, residing in London, to recover at Telok Anson a debt due to B. A may adopt any legal process necessary for the purpose of recovering the debt, and may give a valid discharge for the same.

A constitutes B his agent to carry on his business of a shipbuilder. B may purchase timber and other materials, and hire workmen, for the purpose of carrying on the business. [Emphasis is mine]

Applying these principles to the present case, SD1's implied authority arose from the circumstances of his appointment, including the comprehensive delegation of property management responsibilities and the respondent's course of dealing with him over three years.

Furthermore, SD1 had ostensible authority, as the respondent's conduct, particularly her acceptance of reduced rental payments without objection for an extended period, would have led a reasonable person in the appellant's position to believe that SD1 was authorised to negotiate such variations.

In the final analysis, the finding of the learned Magistrate on this issue is amply supported by the evidence and is consistent with established legal principles. The respondent's conduct over the three-year tenancy period, including her acceptance of reduced rental payments and her reliance on SD1 for all property management matters, conclusively demonstrates that SD1 possessed both implied and ostensible authority to negotiate rental variations. This finding is accordingly affirmed. Whether the respondent was estopped from claiming the rental shortfall

I turn next to consider whether the respondent is estopped from claiming the alleged arrears of rent. The learned Magistrate, in my judgment correctly, recognised that the respondent had maintained a position of silence and, had accepted rental payments at a reduced rate for a considerable period approaching three years. Such conduct, when viewed in its totality, plainly constitutes acquiescence and is, in law, capable of giving rise to an estoppel

The appellant’s case on this point is straightforward and, in my view, compelling. The appellant relied upon the respondent’s prolonged inaction and upon the representations that were made, and which continued to be made through the agent SD1. It is a matter of significance that the payments, albeit at the reduce rate, were made directly into the respondent’s own bank account. At no material time during this extended period did the respondent see fit to raise any objection whatsoever to the state of affairs. This pattern of conduct establishes all the elements necessary for estoppel by representation: (1) a representation (through SD1 and by acceptance of reduced payments) that the reduced rent was acceptable; (2) reliance by the appellant on this representation by continuing to pay the reduced amount; and (3) detriment to the appellant in the form of financial planning based on the reduced rental obligation.

This conclusion is firmly supported by established legal principles concerning post-contract conduct, as elucidated in Sri Kelangkota-Rakan Engineering JV Sdn Bhd & Anor v

Arab-Malaysian Prima Realty Sdn Bhd & Ors [2003] 3 CLJ In this case, the Federal Court adopted a passage from the judgment of the Court of Appeal, holding that: “Applying the principles enunciated in the above cited case, the Court of Appeal concluded that the court may look at subsequent conduct, not to interpret an agreement, but to prevent parties from asserting that an agreement had a different meaning from the meaning that they had proceeded upon, albeit mistakenly,…..” [Emphasis is mine]

The principle articulated in Sri Kelangkota-Rakan (supra) is particularly pertinent to the present case. The respondent's subsequent conduct—accepting reduced rental payments without objection for nearly three years—establishes a course of dealing that demonstrates her acceptance of the modified rental terms. This is consistent with the approach taken in Hughes v Metropolitan Railway Co (1877) 2 App Cas 439, which established that if parties are in a contractual relationship, and one promises to excuse the other from strict legal duties, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between them.

In light of the respondent’s conduct and the clear guidance provided by the authorities, this Court has no hesitation in agreeing with the appellant’s submission that the doctrine of estoppel applies. The respondent, having permitted the appellant to believe that the reduced rent was acceptable for such a significant period, cannot now be heard to assert a contrary position. To allow her to do so would be to sanction an injustice and would contravene the fundamental principle that a person must not be permitted to blow hot and cold in their dealings with others. Whether the respondent was entitled to the sum of RM5,560 for repairs and cleaning

I now turn to consider the respondent’s claim in respect of the costs of repairs. A critical examination of the record reveals that the invoice, upon which the respondent relied to support her claim for the sum of RM5,560, was never formally tendered in evidence. The learned Magistrate, with respect, fell into error when she stated in her grounds of judgment that the invoice in question had been admitted as exhibit P7. The factual position is that P7 was, in fact, the witness statement of the respondent. The invoice to which reference was made was merely included at part C of the bundle of documents. Critically, the maker of that invoice was not called to give evidence, and the document itself was never formally tendered or admitted into evidence.

It follows that the learned Magistrate's reliance on what she perceived to be Exhibit P7, an alleged invoice for repairs, was misplaced. Under section 5 of the Evidence Act 1950, evidence may be given of facts in issue and relevant facts, but only if it is properly admitted in accordance with the rules of evidence. The document in question, having never been formally tendered and admitted through proper testimony, could not form a proper foundation for the Magistrate's finding. The evidential gap in this regard is substantial. No contractor was called to testify to the work said to have been done, no receipts were tendered to prove payment, and no photographs were placed before the court and duly proven through the testimony of a witness.

This lack of proof stands in stark contrast to the uncontroverted evidence of SD1, who confirmed that the premises had been returned to the respondent in a good and clean condition, save for minor issues. The burden of proof in civil cases rests on the party who asserts the affirmative of an issue.

In the circumstances, it is plain that the respondent has failed to discharge the legal burden that rested upon her to prove the necessity and cost of the repairs she alleges on the balance of probabilities. The award of RM3,000 in this regard is, in my judgment, unsustainable. It cannot stand. Whether the document marked ID1, being the rental payment summary spreadsheet prepared by SD1, was admissible under section 90A of the Evidence Act 1950

I come now to the question of the admissibility of a document marked as ID1, being a summary of monthly rental payments prepared by SD1. The learned Magistrate considered this computer-generated document and ruled that it was inadmissible, refusing to formally admit it as exhibit D1. Her ruling was predicated upon the finding that SD1 had failed to comply with the requirements of section 90A (6) of the Evidence Act 1950. The portion of the section as reproduced by the learned Magistrate in her grounds of judgment reads as follows: “A statement contained in a document produced by a computer shall not be admissible unless the party tendering it adduces oral or affidavit evidence to describe the manner in which the document was produced and to satisfy the court of the reliability of the system.”

With respect to the learned Magistrate, there appears to have been a misapprehension as to the correct wording of the relevant provision. The section of the Act as set out above does not correspond with the text of section 90A (6) of the Evidence Act 1950. The correct wording of that subsection is as follows: 90A Admissibility of documents produced by computers, and of statements contained therein

A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry, in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.

It is to be observed that section 90A of the Evidence Act 1950 stands as exception to the common law rule, which generally demands that a document be tendered by its maker. Insofar as computer-generated documents are concerned, the section provides a distinct and more expeditious route to admissibility. Such a document may be tendered by the production of a certificate that satisfied the statutory requirements, thereby obviating the need of calling the maker to give oral testimony. The relevant provisions are as follows: 90A Admissibility of documents produced by computers, and of statements contained therein

In any criminal or civil proceeding a document produced by a computer, or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement.

For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used.

(3)

It shall be sufficient, in a certificate given under subsection (2), for a matter to be stated to the best of the knowledge and belief of the person stating it.

A certificate given under subsection (2) shall be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate. [Emphasis is mine]

The correct interpretation and application of this section was authoritatively considered by the Federal Court in PP v Azilah Hadri & Anor [2015] 1 CLJ 579. In that judgment, their Lordships affirmed the earlier decision of the Court of Appeal in Gnanasegaran Pararajasingam v PP [1997] 4 CLJ 6, clarifying the circumstances in which computer-generated document may be admitted. The pertinent passage from the Federal Court’s judgment states as follows: “[62] In this case, the call logs were produced by computers in the course of their ordinary use by the very makers, namely PW61, PW62 and PW63 hence dispensing with the requirements of tendering to the court signed certificates that they were responsible for the management of the operation of the computers, or for the conduct of the activities for which those computers were used for. The need to adduce the certificates as required by s.90A(2) of the Evidence Act 1950 had thus become redundant.” [Emphasis is mine]

The principle established in PP v Azilah Hadri (supra) is clear: where the maker of a computer-generated document is present in court and available to testify to its accuracy and the circumstances of its creation, the formal requirement of producing a certificate under section 90A (2) becomes redundant. The purpose of the provision is to provide a reliable foundation for the document's authenticity, which in such cases is achieved through the direct testimony of the maker.

In the instant case, the position is directly analogous to that in PP v Azilah Hadri (supra). The maker of the summary of payments, SD1, was present in court and testified to its accuracy and the circumstances of its creation. Having heard the evidence of SD1, the learned Magistrate ought to have been satisfied as to the document's reliability and, accordingly, ought to have admitted the summary of payments as a full exhibit, D1. The learned Magistrate's failure to do so constitutes an error of law.

This error is not merely technical but substantive, as the document contained crucial evidence regarding the rental payments made by the appellant over the tenancy period. Its exclusion deprived the court of important evidence that was directly relevant to the central issue in dispute—whether the respondent had accepted reduced rental payments and was therefore estopped from claiming the alleged arrears. Whether the appellant had fully discharged its rental obligation

It is at this juncture that the decision of the learned Magistrate reveals a fundamental inconsistency. Having made clear and, in my view, correct findings that SD1 possessed the authority to negotiate rental variations and that the respondent was estopped by her conduct from claiming the shortfall, the learned Magistrate nevertheless, and with respect, perplexingly concluded that the alleged rental arrears remained payable. The relevant portion of her grounds of judgment merits reproduction: “Upon consideration of the evidence, the Court finds that although the Defendant made regular payments during the tenancy, those payments were not always in compliance with the monthly rental amount expressly agreed in the tenancy agreement. The Defendant admitted that in several months, it paid less than the stipulated RM4,150.00, relying on Alan’s representations or institutions. However, as found under issue 1, Alan’s authority to manage the tenancy did not extend to permanently varying the contractual rental rate. Moreover, there is insufficient evidence to suggest that the Plaintiff had ever expressly or impliedly waived her right to claim the balance. Notably, the Defendant did not tender a complete or reconciled payment record of its own. The only document relied upon, the payment summary marked as D1, has been rejected by the Court under Issue 4 due to non-compliance with section 90A of the Evidence Act 1950. In contrast, the Plaintiff's records, which include specific figures supported by bank-in documentation and contemporaneous messages, remain unchallenged in material respects. In the circumstances, the Court concludes that the Defendant has not fully discharged its rental obligations. The arrears claimed by the Plaintiff are sufficiently supported by the documentary and testimonial evidence adduced at trial, and the Defendant’s reliance on informal adjustments through Alan cannot operate to absolve liability for the outstanding balance.” [Emphasis is mine]

With the greatest respect to the learned Magistrate, this conclusion does not logically follow from the factual findings she herself had made. The law is well-settled: if it is established that an agent had the requisite authority to effect a variation and that the principal is estopped from denying the validity of that variation, then the amounts which were in fact accepted by the principal must constitute the operative rental for the period in question. As stated by Diplock L.J. in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480: “An "apparent" or "ostensible" authority, on the other hand, is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the "apparent" authority, so as to render the principal liable to perform any obligations imposed upon him by such contract. To the relationship so created the agent is a stranger. He need not be (although he generally is) aware of the existence of the representation but he must not purport to make the agreement as principal himself. The representation, when acted upon by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract. It is irrelevant whether the agent had actual authority to enter into the contract. In ordinary business dealings the contractor at the time of entering into the contract can in the nature of things hardly ever rely on the "actual" authority of the agent. His information as to the authority must be derived either from the principal or from the agent or from both, for they alone know what the agent's actual authority is. All that the contractor can know is what they tell him, which may or may not be true. In the ultimate analysis he relies either upon the representation of the principal, that is, apparent authority, or upon the representation of the agent, that is, warranty of authority.” [Emphasis is mine]

The learned Magistrate's finding on estoppel and authority necessarily rendered the original contractual rate, for the purposes of calculating arrears, irrelevant. By accepting the reduced rental payments over a period of three years without objection, the respondent led the appellant to believe that these payments constituted full satisfaction of the rental obligation.

It follows inexorably that, for the duration of the tenancy, the appellant had fully discharged its rental obligations by paying the sums that were, by virtue of SD1's authority and the respondent's acquiescence, lawfully due. The Magistrate's conclusion to the contrary represents a fundamental inconsistency in her reasoning and constitutes an error of law that vitiates her judgment on this issue.

For the reasons set forth above, this appeal must succeed. The learned Magistrate, having correctly identified the existence of both implied and ostensible authority on the part of SD1, and having properly found that the respondent was estopped from asserting a right to the full contractual rent by reason of her prolonged acquiescence, nevertheless fell into error in her final determination.

The finding of estoppel was pivotal. It operated to vary the terms of the tenancy agreement as a matter of law, with the consequence that the sums actually accepted by the respondent constituted the rent lawfully due. The learned Magistrate's subsequent finding that the appellant was liable for arrears based on the original contractual sum was, therefore, inconsistent with her own assessment of the evidence and cannot be sustained.

Furthermore, the award of RM3,000 for repair costs was similarly flawed. The respondent failed to discharge the burden of proof that rested upon her, as the crucial invoice was never properly admitted in evidence and no witness was called to prove the necessity or value of the works claimed. This award must be set aside.

The learned Magistrate also erred in her treatment of the payment summary, ID1. Her reliance on an incorrect version of section 90A (6) of the Evidence Act 1950 led her to exclude a document which, in light of the testimony of its maker SD1, was plainly admissible.

In the result, the appellant's appeal against the judgment of the Magistrate's Court is allowed in its entirety. The order for rental arrears in the sum of RM37,435.66 and the order for repair costs in the sum of RM3,000 are hereby set aside. Costs of RM6,000 is awarded to the appellant, subject to allocatur. Dated the 18th day of December 2025 … SGN … ……………………………………………….. MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA Counsel for the Appellant : Ang Khoon Cheong and Ch’ng Gin Yee Messrs C P Ang & Co Counsel for the Respondent :