SITI RAMAH MOHD NOOR v Syed Faizal Shah Bin Syed Gulzar Ali Shah (BA-11BNCvC-25-09/2024)

A tenancy agreement is often the starting point of a landlord and tenant relationship. Disputes may nevertheless arise when the parties attach different significance to the written agreement, subsequent communications, alleged repair works, rental deductions, deposits and the handover of possession. This appeal illustrates such a dispute. The appellate enquiry was therefore confined to whether the decision below was plainly wrong, in the sense that the findings were unsupported by the evidence or made without sufficient judicial appreciation of the evidence.

This was the Defendant’s appeal against the decision of the learned Magistrate delivered on 23.8.2024 after a full trial in the Magistrates’ Court. For consistency with the proceedings below, the parties are referred to in these grounds as the Plaintiff and the Defendant.

The learned Magistrate allowed part of the Plaintiff’s claim and ordered the Defendant to pay RM20,950.00 being the balance renovation and repair costs, RM13,125.00 being the security and utility deposits, and RM233.70 being the overpaid water bill. The learned Magistrate also dismissed the Defendant’s counterclaim.

After hearing submissions and considering the appeal record, I found no reason to interfere with the decision of the learned Magistrate. I, therefore dismissed the appeal in its entirety with costs of RM5,000.00 to the Plaintiff, subject to allocator. B.

The dispute arose from a tenancy relationship between the Plaintiff and the Defendant. The Plaintiff’s claim concerned the balance renovation and repair costs, the refund of deposits and an overpaid water bill. The Defendant denied liability and counterclaimed for alleged balance rental, repair costs, and replacement items.

The main factual controversy concerned the repair and upgrading works carried out in relation to the premises. The Plaintiff’s case was that he advanced the cost of those works and that the Defendant agreed to account for the same by way of rental discounts. The Defendant accepted that rental discounts were given, but disputed any further liability to pay the balance claimed by the Plaintiff.

The dispute later extended to the manner in which the tenancy came to an end and the condition of the premises at handover. The Plaintiff sought the return of the security and utility deposits. The Defendant maintained that the Plaintiff had wrongfully ended the tenancy and that she was entitled to withhold the deposits and pursue her counterclaim.

The matter proceeded to a full trial. The Plaintiff called two witnesses, namely PW1 Amar Jeet Kaur a/p Babu Singh and PW2 Syed Faizal Shah bin Syed Gulzar Ali Shah. The Defendant called DW1 Siti Ramah Mohd Noor and DW2 Shazmeer bin Mokhtar. After considering the oral and documentary evidence, the learned Magistrate allowed the Plaintiff’s claim in part and dismissed the Defendant’s counterclaim. C.

The Plaintiff bore the burden of proving his claim on the balance of probabilities. The Defendant, as counterclaimant, bore the same burden in respect of her counterclaim. The appeal before this Court was not an opportunity for the parties to retry the whole case, but to show whether the learned Magistrate had committed an error of fact or law which justified appellate intervention.

The principle governing appellate interference with findings of fact is settled. In UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785, the Federal Court held that an appellate court will not ordinarily interfere with findings of fact unless the trial court is shown to be plainly wrong. A decision is plainly wrong where there is no or insufficient judicial appreciation of the evidence. This principle is relevant to the present appeal because the learned Magistrate had heard the witnesses, observed their demeanour, and assessed their oral evidence against contemporaneous documents.

The Defendant’s appeal substantially invited this Court to prefer the Defendant’s interpretation of the evidence over the learned Magistrate’s findings. With respect, this is insufficient unless the learned Magistrate’s findings were unsupported by the record or were plainly wrong.

The same approach is reflected in the cases of Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 and Ng Hoo Kui & Anor v Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 12 MLJ 67. These authorities are relevant to this case because the central complaints in this appeal concerned factual findings on the renovation arrangement, the rental discount, the letter dated 14.10.2019, the handover of the premises, and the Defendant’s counterclaim.

The Court is also guided by the principle that parties are bound by their pleadings. In The Carbon Co Sdn Bhd & Anor v Ng Lee Hoon (conducting under ‘Forest Wood Flooring’) [2017] 4 MLJ 791, the Court of Appeal explained that pleadings define the parameters of each party’s case and give notice of the case to be met. In Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152, the Supreme Court, referring to Janagi v Ong Boon Kiat [1971] 2 MLJ 196, held that the Court should not displace the case made in the pleadings and give effect to a new case not advanced by a party.

These pleading authorities are relevant because the Defendant sought to rely on objections to the letter dated 14.10.2019 and on Clause 7.5 of the tenancy agreement in a manner which was not properly pleaded. The Plaintiff was entitled to conduct his case based on the pleaded issues. A party cannot raise a materially different objection at trial or on appeal after the opposing party has already conducted the case on another footing.

On contractual construction, the Court is guided by Catajaya Sdn Bhd v Shoppoint Sdn Bhd & Ors [2021] 3 CLJ 159, where the Federal Court held that the Court must interpret the words used by the parties and should not improve or rewrite their bargain. This principle is relevant to the Defendant’s reliance on Clause 7.5 and to the Plaintiff’s reliance on the rental discount arrangement and the letter dated 14.10.2019.

In relation to the objection that the letter dated 14.10.2019 was marked “without prejudice”, the Court must consider the substance and purpose for which the document is relied upon. The relevance of Malayan Banking Bhd v Foo See Moi [1981] 2 MLJ 17 is that the mere label “without prejudice” does not, without more, determine the admissibility of a document for every purpose. In the present case, the issue was whether the letter could be considered as part of the contemporaneous documentary matrix, especially when the objection was not properly pleaded and was only raised belatedly. D.

The appeal may be considered under four broad issues. First, whether the learned Magistrate erred in allowing the Plaintiff’s claim for RM20,950.00 and in relying on the letter dated 14.10.2019. Secondly, whether the learned Magistrate erred in ordering the refund of the security and utility deposits amounting to RM13,125.00. Thirdly, whether the learned Magistrate erred in allowing the refund of the overpaid water bill of RM233.70. Fourthly, whether the learned Magistrate erred in dismissing the Defendant’s counterclaim. E. FINDINGS E1. Whether there was appealable error in the learned Magistrate’s approach

The Defendant’s appeal was substantially directed at the learned Magistrate’s findings of fact. The Defendant contended that the learned Magistrate wrongly accepted the Plaintiff’s version and wrongly rejected the Defendant’s version. In my view, this contention could not be sustained because the learned Magistrate considered the evidence as a whole and gave reasons for the findings made.

The learned Magistrate considered the oral evidence, the parties’ communications, the letter dated 14.10.2019, the handover evidence, and the documents relied upon for the counterclaim. The findings were not based on demeanour alone. They were tested against the contemporaneous record and the probabilities of the case.

I was not satisfied that the learned Magistrate had failed to judicially appreciate the evidence. The Defendant was, in substance, asking this Court to prefer another view of the same evidence. That is insufficient unless the findings below were plainly wrong or unsupported by the record. E2. The claim for RM20,950.00 and the letter dated 14.10.2019

The Defendant’s main complaint was that the learned Magistrate erred in allowing the Plaintiff’s claim for RM20,950.00. The Defendant argued that the Plaintiff carried out the works voluntarily, that the Plaintiff had already obtained the agreed rental discount, and that there was no express agreement for any further cash payment.

I did not accept this argument. The learned Magistrate found that the Defendant had knowledge of the repair and upgrading works, that the Plaintiff had obtained the Defendant’s consent for the works, and that the parties had agreed that the Plaintiff would first pay the costs, which would then be accounted for by rental discounts. The learned Magistrate further found that the Plaintiff had advanced RM57,850.00, that the Defendant had given rental discounts amounting to RM36,900.00, and that the balance claimed was RM20,950.00.

The Defendant’s argument that there was no express clause requiring payment of RM20,950.00 did not show any appealable error. The learned Magistrate did not rewrite the parties’ agreement. The finding was based on the factual arrangement acted upon by the parties, the rental structure, the WhatsApp communications, the Plaintiff’s evidence, and the documentary record.

The letter dated 14.10.2019 was relevant in that context. It recorded the Plaintiff’s position that he had advanced RM57,850.00, that RM36,900.00 had been accounted for by rental discount, and that RM20,950.00 was the balance not included in the discount. The learned Magistrate did not treat the letter as a stand-alone contract, but as part of the surrounding documentary record.

The Defendant’s objection to the letter was also not properly pleaded. If the Defendant intended to say that the letter was inadmissible, protected by without prejudice privilege, or incapable of being relied upon because there was no consensus ad idem, those matters ought to have been clearly pleaded. They were not.

The Defendant also did not raise any contemporaneous objection to the letter or its contents. The late objection raised at trial did not displace the rental discount arrangement, the parties’ communications, and the Plaintiff’s evidence that the balance sum had not been waived.

I also found that the words “without prejudice” did not automatically render the letter inadmissible for all purposes. The relevant question was the purpose for which the letter was relied upon. In the present case, it was relied upon as part of the factual history and documentary matrix of the parties’ arrangement.

On the totality of the evidence, I was not persuaded that the award of RM20,950.00 was speculative or unsupported by the record. The learned Magistrate was entitled to find that the Plaintiff had proved the balance renovation and repair costs on the balance of probabilities. E3. Refund of the security and utility deposits

The Defendant next contended that the Plaintiff was not entitled to the refund of the security and utility deposits amounting to RM13,125.00. The Defendant relied on two main reasons. First, the Plaintiff allegedly failed to give sufficient notice before vacating. Secondly, the premises allegedly required repair works after the Plaintiff vacated.

The learned Magistrate rejected the Defendant’s reliance on Clause 7.5. I agreed with that approach. The Defendant’s pleaded basis for withholding the deposits was substantially tied to alleged damage and repair costs. The specific argument that the deposits were forfeitable because of non-compliance with Clause 7.5 was not properly pleaded as a defence to the deposit claim.

On the condition of the premises, the learned Magistrate accepted the evidence that the premises had been returned in good condition. The learned Magistrate was entitled to rely on the evidence of PW1 and to consider the photographs and the conduct of the parties at and after the handover.

The Defendant did not make a clear contemporaneous demand to the Plaintiff identifying the alleged damages or setting out proposed deductions from the deposits within a reasonable time. That omission was material. A landlord who intends to withhold deposits because of alleged damage would ordinarily be expected to notify the tenant of the damage relied upon and the proposed deductions.

I found no error in the learned Magistrate’s conclusion that the Plaintiff was entitled to the refund of the security and utility deposits. The award of RM13,125.00 is affirmed. E4. Overpaid water bill

The learned Magistrate also allowed the Plaintiff’s claim for RM233.70 being the overpaid water bill. This was a discrete claim supported by the record. The Defendant did not show any sufficient basis on appeal to disturb this finding.

I found no appealable error in the award of RM233.70. The learned Magistrate was entitled to find that the Plaintiff had overpaid the said sum and that the Defendant had no basis to retain it. E5. The Defendant’s counterclaim for balance rental

The Defendant counterclaimed RM49,000.00 for alleged balance rental. The claim was premised on the allegation that the Plaintiff wrongfully vacated before the end of the extended tenancy period.

The learned Magistrate rejected this claim. The WhatsApp communications between the parties were material. The Defendant had stated in substance that she would rather have the house empty than continue arguing, that the tenancy had already expired, and that it would be better for the Plaintiff to find a newer and better house.

The Plaintiff then asked whether the Defendant was asking him to move out despite the alleged agreement to extend the tenancy. The Defendant did not give a clear reply denying that this was her position. The learned Magistrate was entitled to consider the ordinary meaning and effect of those communications.

The Plaintiff’s notice of discontinuance was therefore not considered in isolation. It was considered against the Defendant’s prior message and her failure to clarify her position when asked. On the evidence, the learned Magistrate was entitled to find that the Defendant had not proved that the Plaintiff wrongfully and unilaterally terminated the tenancy.

The Defendant also failed to satisfactorily prove the alleged rental loss. The learned Magistrate was entitled to consider that repair works were undertaken after the Plaintiff vacated and that the advertisements relied upon by the Defendant did not sufficiently prove that the premises remained unrented because of any breach by the Plaintiff.

The Defendant bore the burden of proving both liability and loss. She failed to discharge that burden. I, therefore affirmed the dismissal of the RM49,000.00 counterclaim. E6. The Defendant’s counterclaim for repair costs and replacement items

The Defendant counterclaimed RM12,551.00 for alleged repair works. The learned Magistrate dismissed this claim after considering the evidence on the condition of the premises at handover.

The Defendant had to prove that the alleged damage existed, that it was caused by the Plaintiff, that the repair works were necessary, and that the amount claimed was reasonable. It was not sufficient merely to produce photographs or invoices without proving the necessary causal link between the alleged damage, the Plaintiff’s occupation and the sums claimed.

The learned Magistrate was entitled to accept the evidence that the premises had been returned in good condition. The learned Magistrate was also entitled to consider the absence of a clear contemporaneous complaint or demand made to the Plaintiff immediately after handover.

The Defendant’s failure to call the relevant contractor or maker of the invoices was also a matter which the learned Magistrate could properly consider. In a claim for repair costs, evidence from the person who inspected or repaired the alleged damage may be material to prove causation, necessity and quantum.

The Defendant’s counterclaim for RM3,499.00 for a washing machine was dismissed. The learned Magistrate was entitled to find that the Defendant had not proved that the washing machine was supplied in working condition, that it stopped functioning because of the Plaintiff’s breach, and that the amount claimed was the proper measure of loss. The Defendant’s reliance on a replacement cost or internet quotation did not, without more, prove that the Plaintiff was legally responsible for that sum.

The Defendant’s claim for RM3,253.85 for replacement curtains was likewise not proved. The Defendant had to prove what curtains were supplied, what was missing or damaged, that the Plaintiff was responsible, and that the full amount claimed was payable. The learned Magistrate was entitled to find that the Defendant had not discharged that burden.

These were factual findings made after the learned Magistrate heard the witnesses and considered the documents. I was not persuaded that those findings were plainly wrong. E7. Credibility and consistency of the evidence

A material feature of the appeal was the learned Magistrate’s assessment of the Defendant’s credibility. The learned Magistrate found that the Defendant shifted positions and gave contradictory evidence when confronted with contemporaneous documents.

This finding was relevant to the material issues in the appeal, including the renovation arrangement, the letter dated 14.10.2019, the refund of deposits, the termination issue and the counterclaim. The finding was not speculative. It was connected to the documents and the probabilities of the case.

I accepted that the learned Magistrate’s credibility findings were entitled to weight. There was no sufficient basis for this Court to displace those findings. F.

Having considered the appeal record, the submissions of the parties and the grounds of judgment of the learned Magistrate, I found that the learned Magistrate did not commit any appealable error of fact or law. The learned Magistrate considered the competing versions, tested the oral evidence against contemporaneous documents, and made findings which were open on the evidence.

On the first issue, I found no error in the learned Magistrate’s decision to allow the Plaintiff’s claim for RM20,950.00. The learned Magistrate was entitled to find that the Plaintiff had proved the balance renovation and repair costs after taking into account the rental discounts already given. The learned Magistrate was also entitled to admit and rely on the letter dated 14.10.2019 as part of the documentary matrix, particularly where the Defendant did not properly plead her objections to that letter and only raised them belatedly.

On the second issue, I found no error in the order for the refund of the security and utility deposits amounting to RM13,125.00. The Defendant did not establish a properly pleaded and proven basis to forfeit or withhold the deposits. The learned Magistrate was entitled to accept the evidence that the premises had been handed over in good condition and that the Defendant had not made a clear contemporaneous demand identifying the alleged damages or proposed deductions.

On the third issue, I found no error in the award of RM233.70 for the overpaid water bill. This was a discrete claim supported by the record, and the Defendant did not demonstrate any sufficient basis for interfering with the learned Magistrate’s finding on this item.

On the fourth issue, I found no error in the dismissal of the Defendant’s counterclaim. The Defendant failed to prove, on the balance of probabilities, her claims for alleged balance rental, repair costs, washing machine costs and curtain costs. The learned Magistrate was entitled to reject the counterclaim after considering the WhatsApp communications, the evidence on handover, the absence of sufficient proof of causation and quantum, and the inconsistencies in the Defendant’s evidence.

Accordingly, each of the issues framed at paragraph 17 is answered against the Defendant. This was not a case where there was no judicial appreciation of evidence. The Defendant’s appeal did not establish any basis for appellate intervention, and the decision of the learned Magistrate is therefore affirmed.

For the reasons stated above, the Defendant’s appeal is dismissed in its entirety. The decision of the learned Magistrate delivered on 23.8.2024 is affirmed.

Costs of the appeal are fixed at RM5,000.00 to be paid by the Defendant to the Plaintiff, subject to allocatur. Dated 3 July 2026 -sgd-ANITA HARUN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Appellant : Izzat Asyraf bin Zamri & Ammera binti Hadi (Messrs Azmi & Associates) For the Respondent: Rajwinjit Kaur Khalae a/p Ajit Singh Khalae (Messrs Rabinder Budiman & Associates)