Tangshan New Resource Ecological Sci and Tech Co., Ltd v ROCKWILLS TRUSTEE BERHAD (WA-22NCvC-536-08/2021)

The Plaintiff (Tangshan New Resources Ecological Sci & Tech Co, Ltd.) is a company incorporated in China, engaged in the 26/08/2025 10:27:46 WA-22NCvC-536-08/2021 Kand. 109 S/N Z8wkwRkCdk2rsqjOqiusTQ business of exporting vegetables and fruits to various countries, including but not limited to Malaysia.

The Defendant (Rockwills Trustee Berhad) is a trust corporation incorporated under the Companies Act 1965 (B2 p. 189) and registered under the Trust Companies Act 1949 (B2 p. 144). The Defendant as a trust company is primarily engaged in the business of professional will writing, estate planning and management. The Defendant regularly acts as executor of estates as part of its business in estate planning and management.

The Defendant was appointed by the late Leong Chin Hai (deceased) as the sole executor of his last will and testament dated 18.1.2020 (B2 p. 154). The deceased passed away on 5.3.2020 (death certificate B2 p. 161) and the Defendant applied for the Grant of Probate vide KL High Court WA-32NCvC-977- 05/2021 on 25.5.2021 (B2 p.234). The Grant of Probate dated 23.9.2021 (B2 p. 382) states that the Defendant was a trust company and the sole executor who is currently administering the deceased’s estate.

Preceding the demise of Leong Chin Hai, the deceased was engaged in the vegetable retail business under the trading name of CH Leong Enterprise and the relevant details as reflected in S/N Z8wkwRkCdk2rsqjOqiusTQ the Companies Commission of Malaysia Business Information (B2 p. 383) are as follows:

The Plaintiff’s solicitors, Messrs. Yeoh Shim Siow & Lay Kuan, upon discovering that the Defendant (Rockwill Trustee Berhad) is the deceased’s appointed executor, sent an e-mail to the Defendant on or around 30.10.2020, requesting that the outstanding sum to be included in the Deceased’s list of liabilities. According to the Plaintiff, the Defendant refused, neglected and/or failed to comply with the Plaintiff’s solicitor’s request.

As a result, in concerning that the Deceased’s estate might be distributed without incorporating the outstanding sum, the Plaintiff, vide their solicitors, lodged a caveat against the Deceased’s estate on or around 15.3.2021 which caveat has since lapsed on or around 17.9.2021. In view of the foregoing, the Plaintiff had no alternative but to initiate the present action against the Deceased’s estate to recover the balance outstanding sum.

PW1 (witness statement in Encl. 78) is the Plaintiff’s company employee. PW1 was tasked to manage the Plaintiff’s business operation, including dealing with the customers, arranging for the delivery of vegetables to the customers’ addresses and issuing invoices for vegetables sold. PW1 elaborated on the course of business dealings between the Plaintiff company and CH Leong Enterprise. The deceased would place his orders with the Plaintiff by email and telephone as the standard of procedures and practice after placing the orders with the Plaintiff application for permits prior to delivering the vegetable to the deceased or CH Leong Enterprise business address. The Plaintiff will then arrange for shipment to export the goods to the deceased in Malaysia. Sometimes when deceased placed an order exceeding the limit imposed by the Government, the deceased would instruct the Plaintiff (B3 pp. 568 – 603) by emails for vegetables to be delivered to third parties as follows:

Tanjung Sejahtera Agro Sdn. Bhd.;

Uniko Farm Sdn. Bhd.; and

Indah Import & Eksport Sdn. Bhd.

PW1 referred to the commercial invoices, China’s customs declaration form for exported goods, bills of lading and shipment forms issued by the Plaintiff to CH Leong Enterprise (B1 pp. 2 – S/N Z8wkwRkCdk2rsqjOqiusTQ 62) amounting to USD$247,501.00. CH Leong Enterprise and/or the deceased failed to make any payment for the goods delivered and/or received.

Further, the Plaintiff referred to the commercial invoices, China’s customs declaration form for exported goods, bills of lading and shipment forms issued by the Plaintiff to CH Leong Enterprise and/or 3rd parties (B1 pp. 63 – 136) amounting to USD$248,858.00 whereby CH Leong Enterprise and/or the deceased failed to make any payment for the goods delivered and/or received. In this respect, the Plaintiff never dealt with any of the 3rd parties directly and all instructions and communications were between the Plaintiff and deceased/CH Leong Enterprise.

Upon receipt of the goods or vegetables, the deceased and/or CH Leong Enterprise ought to raise a notice in writing to the Plaintiff if there is any discrepancy on the quality and quantity of the goods delivered, failing which the goods shall be deemed as accepted and the deceased is given a credit term of 14 days from the date of issuance of invoices and the invoices amount must be paid. (see invoices at B2 p. 387)

The deceased and/or CH Leong Enterprise did not dispute any of the goods received and the content of all the invoices issued. On 29.5.2016, the Plaintiff’s director Wang NaiXin and PW1 travelled to Malaysia to meet with the deceased and demanded for the S/N Z8wkwRkCdk2rsqjOqiusTQ payment of the outstanding sum due and owing to the Plaintiff. On 2.9.2016, the deceased and/or CH Leong Enterprise made a paid payment of USD$80,000.00 (see B2 p. 146) to the Plaintiff towards the outstanding sum of USD$496,359.00. The deceased failed and refused to settle the balance outstanding sum of USD$416,359.00 (equivalent to RM1,703,865,95) based on the invoices reproduced B2 pp. 2 to 134). The Plaintiff’s solicitors issued an email on 30.10.2020 (B2 pp 356 and 357) to the Defendant requesting the said amount to be included into the Deceased’s list of liabilities.

PW2 (witness statement in Encl. 79) is the Plaintiff’s company director. According to PW2 the Plaintiff is a company incorporated in China and involved in the business of selling, supplying and/or exporting vegetables internationally to different countries including Malaysia. As the Plaintiff’s director, PW2 is in charged of the Plaintiff’s operation and administration. PW2 is responsible of the financial management of the Plaintiff’s company. At all material times, the Plaintiff had upon the requests of the deceased supplied vegetables to CH Leong Enterprise. (B2 pp. 383 and 384).

The deceased and/or CH Leong Enterprise did not dispute any of the goods received and the content of all the invoices issued. S/N Z8wkwRkCdk2rsqjOqiusTQ Despite numerous attempts of demand against the deceased and/or CH Leong Enterprise, he still failed and/or refused to make any payment to the invoices issued for the goods delivered. As a result, on 29.5.2016 PW1 and PW2 decided to travel to Malaysia from China to meet with the deceased and demand for the payment of the outstanding sum due and owing to the Plaintiff.

The Plaintiff is now claiming against the Defendant for the outstanding amount of USD$416,359.00 due and owing by the deceased’s estate to the Plaintiff. As the executor and/or administrator, the Defendant ought to include this sum into the list of liabilities and pay to the Plaintiff.

DW 1 (witness statement in Encl. 81) was the former employee as an account executive of CH Leong Enterprise from the year 2012 to 2017 (B2 pp 145 and 147). As an account executive who reports directly to the deceased as her immediate superior, DW1 was tasked to record all payments receivable and payable to and from various parties, reconciliation of accounts and various daily accounting task.

The accounting of the business transactions was recorded and kept manually in physical documents whereby the incoming and outcoming payments relating to his business were handwritten S/N Z8wkwRkCdk2rsqjOqiusTQ and recorded in a physical ledger book (B3 pp. 392 to 567). The contents of the ledger consist of transactions and accounting entries recorded in the daily business of the deceased between December 2012 to September 2016.

As the ledger contains accounting entries, DW1 was the person in charge tasked to keep proper accounting records on the deceased’s transaction with various suppliers, including the Plaintiff. The ledger contains inter alia details and accounting of agricultural items purchased from various suppliers as well as prices and payments made for such purchases. The entries records of purchases and payments made with the Plaintiff are reflected in B3 pp. 401 to 407 (translation B3 pp. 489 to 495).

The Plaintiff’s claim was based on the invoices (B2 pp. 2 – 134) and after examining the said invoices and the entries DW1 recalled that the ledger referred to the container numbers as stated on the invoices and the invoices that have been paid by the deceased at the agreed discounted prices. Therefore, the Plaintiff’s claim of non-payment of these invoices is evidently false. DW1 further testified in evidence that the deceased had informed her that he had reached a settlement agreement with the Plaintiff whereby all outstanding sums owed by the deceased to the Plaintiff would be fully settled by the payment of USD$80,000.00. At B3 p. 407, the ledger shows a remark in Chinese (translation B3 p. 495) handwritten by DW1 that all S/N Z8wkwRkCdk2rsqjOqiusTQ outstanding due to the Plaintiff had been fully settled by the payment of USD$80,000.00 made on 2.9.2016 leaving no outstanding balance. According to DW1, this remark was inserted at the time the payment was made. The remittance form showing the payment of USD$80,000.00 made by the deceased to the Plaintiff on the even date can be gleaned from B2 p. 146.

DW1 further states that as shown in the ledger, there was no longer any transaction recorded between CH Leong Enterprise and the Plaintiff since the payment of USD$80,000.00. This shows that there was no longer any dealing between them since this payment. Thereafter according to DW1, she had never received any claim or reminder from the Plaintiff to claim for any purported outstanding sum.

DW1 disagreed with the Plaintiff’s Statement of Claim in paragraph 14 that the deceased should make payment of the invoices issued to the third parties namely Bukit Pengkalen Enterprise, United Merge Sdn. Bhd., Tanjung Sejahtera Agro Sdn. Bhd., Uniko Farm Sdn. Bhd. and Indah Import and Eksport Sdn. Bhd. The fact that these invoices were issued to these entities show that these are not purchases made by CH Leong Enterprise.

DW2 (witness statement in Encl. 83) is a medical officer under the employment of the Ministry of Health Malaysia. DW2 is the nephew of the deceased and is a beneficiary named in the deceased’s will (B2 p. 155). According to DW2, the deceased was a sole proprietor who operated his business of supplying and distributing vegetables and agriculture produce under the name of CH Leong Enterprise. DW2 know that the deceased employed DW1 as an account executive who helped the deceased to keep records of his accounting. At or around the end of 2021, the Defendant had contacted and informed DW2 that the present case was filed by the Plaintiff against the Defendant as the executor of the deceased. DW2 do not have any knowledge relating to the Plaintiff’s claim.

DW3 (witness statement in Encl. 80) is the Defendant’s manager and is the officer in charge in relation to the administration of the deceased’s estate. The Defendant is a trust corporation incorporated under the Companies Act 1965 and registered under the Trust Companies Act 1949. (B2 pp 144 and 189). The Plaintiff alleged that it has a claim against the estate of the deceased, they have commenced this present suit against the Defendant as the appointed executor. The Defendant’s obligation S/N Z8wkwRkCdk2rsqjOqiusTQ is to evaluate and if necessary defend all claims against the deceased’s estate which are frivolous and without basis. The Defendant was required to inter alia pay just debt to the creditors from the estate of the deceased. DW3 states in her evidence that the Plaintiff’s claim was invalid and unlawful and ought to be dismissed with cost. The invoices were issued between 23.10.2010 to 4.11.2014 which were more than 6 years before the filing of this suit on 4.8.2021 and evidently are time barred by the Limitation Act 1953. According to DW3, the significance of the payment of USD$80,000.00 made by the deceased to the Plaintiff as a full settlement of all indebtedness of the deceased. It is the Defendant’s finding that the Plaintiff’s claim in the circumstances is unjustified and therefore not a legal and just debt that the Defendant should recognise as liability which should be paid out from the estate of the deceased. Plaintiff’s submissions (Encls. 96 and 98) Breach of Contract, non-payment for the Plaintiff’s goods by the deceased/CH Leong Enterprise.

The Plaintiff’s submits that the Defendant’s refusal to incorporate the Plaintiff’s claim for the outstanding sum in the deceased’s list of liabilities is outrageous. The deceased and/or CH Leong Enterprise and 3rd Party companies had received the Plaintiff’s goods but wilfully failed and/or refused to make the payment of the outstanding sum. The Plaintiff as the supplier has duly S/N Z8wkwRkCdk2rsqjOqiusTQ performed their obligations by ensuring that the Plaintiff’s goods were delivered to the deceased and/or CH Leong Enterprise and/or 3rd Party companies under the deceased’s instructions. The deceased’s failure to make payment for the Plaintiff’s goods contravenes section 31 of the Sale of Goods Act 1957 as follows: “It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with terms of the contract of sale.” The Deceased’s admission on having received the Plaintiff’s goods arising from the invoices.

The Plaintiff further submits that DW1 conceded to the Plaintiff’s assertion that the deceased did in fact received the goods. In cross-examination by the Plaintiff’s counsel DW1 replied as follows: So, since this is your position, do you agree with me that it would mean the goods arising from these invoices have been received by CH Leong Enterprise? Yes S/N Z8wkwRkCdk2rsqjOqiusTQ AY : So, with the bill of lading, it also means the goods are being delivered to CH Leong Enterprise?

The Plaintiff submits that it was not the common practice between the Plaintiff and the deceased to issue formal purchase and/or delivery order in the course of their dealings. The Deceased’s admission that the 3rd party Companies received the goods on behalf of the deceased.

Although the goods and/or the invoices were transferred to the 3rd party companies, this was necessitated solely by the limitations of custom clearance procedures under the deceased’s instructions. The chain of e mails indicated that the deceased expressly requested that the goods, invoices and bills of lading be directed to the 3rd party Companies. In cross-examination by the Plaintiff’s counsel DW1 confirmed that the 3rd party Companies were in fact receiving the goods solely on behalf of the deceased as follows: I suggest to you that the Plaintiff has been sending to the 3rd party on the deceased instructions, which at the end of the day, the deceased or CH Leong S/N Z8wkwRkCdk2rsqjOqiusTQ Enterprise will be receiving the vegetables, do you agree?

DW1 concurred with the Plaintiff’s counsel that the deceased and/or CH Leong Enterprise shared the same business premise address with the 3rd party Companies and acknowledged that they were all closely associated. What is even more egregious is that whilst the Defendant denied that the 3rd party Companies were receiving the goods on behalf of the deceased, they made no attempt whatsoever to verify with the Companies if they received the goods on behalf of the deceased.

By mutual agreement and arrangement between the parties, goods may be delivered to any party and in any manner as the parties have agreed. Section 33 of the Sale of Goods Act 1957 reads as follows: “Delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorised to hold them on his behalf.” S/N Z8wkwRkCdk2rsqjOqiusTQ The Defendant/Deceased admitted having received the invoices

The Defendant implicitly acknowledged that the deceased received the invoices and/or bills of lading issued to the deceased and/or CH Leong Enterprise (B1 pp. 2 – 97) and to the 3rd party Companies (B1 pp. 98 – 136) but on the other hand expressly denied receipt of the same. DW1 admitted in cross-examination that the deceased and/or CH Leong Enterprise had received all the invoices including those issued to the 3rd Companies as follows: Do you agree with me that the late Mr. Leong never dispute for the receipt of the invoices? Do you agree?

The deceased did not challenge the quality and quantity of the goods and there is no evidence suggesting that any of the goods were returned to the Plaintiff, the deceased and/or CH Leong Enterprise is deemed to have unequivocally accepted the goods. Upon proven that the goods have been delivered with the invoices, the deceased and/or CH Leong Enterprise is obliged to make payment for the same. The High Court in the case of Ablefoam Sdn. Bhd. v. Khoo Pang Poey [2015] 8 MLJ 480 decided as follows: S/N Z8wkwRkCdk2rsqjOqiusTQ “[25] In this claim, the evidence shows that between the periods of March 2011–September 2011, the plaintiff had supplied goods to second defendant who bought and took delivery of the goods on behalf of Petty Enterprise amounting RM512,287.55 as at 10 September 2011 (refer statement of account for the defendant p 313-B) whereby the plaintiff demanded the said amount through a letter of demand dated 9 November 2011. Therefore, the defendants are required by law to make payments by virtue of s 32 of the Sales of Goods Act 1957 that stipulates: Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the, seller shall he ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer shall be ready and willing to pay the price in exchange for possession of the goods.” Payment of USD$80,000.00 as part payment or settlement?

According to DW1, the deceased informed her that the USD$80,000.00 payment was the result of a settlement agreement and/or negotiation with the Plaintiff’s representatives. DW1 conceded that there is no documentary evidence to substantiate such settlement arrangement and confirmed that S/N Z8wkwRkCdk2rsqjOqiusTQ she was not personally involved of any settlement negotiations with the Plaintiff. Do you agree with me that you are not involved if there’s any negotiations between the Plaintiff and the deceased, correct? DW1: Yes, agree.”

The deceased and/or CH Leong Enterprise despite having received the goods, failed, refused and/or neglected to pay the outstanding sum to the Plaintiff, the deceased and/or CH Leong Enterprise and/or beneficiaries of the deceased’s estate would be unjustly enriched if the Plaintiff remain unpaid.

The Federal Court in the case of Dream Property Sdn. Bhd. v. Atlas Housing Sdn. Bhd. [2015] 2 MLJ 441 at p. 484 decided as follows: “[119] Applying those principles, we now turn to consider whether the defendant has made out a cause of action in unjust enrichment: the plaintiff has been enriched, that this enrichment was gained at the defendant’s expense was unjust, and whether there are special defences to the claim.

The Plaintiff has successfully established its claim against the Defendant on the balance of probabilities based on the following reasons:

the Defendant’s witness admitted having received the invoices and goods from Plaintiff;

the Defendant’s witness admitted that the 3rd Party Companies indeed received the goods on behalf of the deceased and/or CH Leong Enterprise; and

the Defendant failed to prove that full payment has been made towards the outstanding sum. Defendant’s submissions (Encl. 94 and 100)

The Defendant submits that the claims are time-barred, the Plaintiff was unable to explain years of inaction in recovering the alleged outstanding sum, especially when the deceased is still alive. On the evidence, the Plaintiff’s claim against the Defendant for the recovery of money should therefore fail. Such inaction is only explainable by the entry in the deceased’s ledger which recorded the settlement agreement between the Plaintiff and the deceased that all outstanding payments were settled with the final payment of USD$80,000.00.

The Defendant substantially refuted the Plaintiff’s contention that the sum claimed is not payable based on following reasons:

the entry of the Defendant’s ledger shows that all the outstanding sums for the purchases of goods from the Plaintiff have been settled by the final payment of USD$80,000.00 made on 2.9.2016;

the deceased is not a contracting party and not privy to some of the invoices which were issued to unrelated 3rd parties;

the Plaintiff is unable to show that the manner of importation of the goods by way of nominee purchases as alleged by the Plaintiff is legally valid and enforceable;

the Plaintiff failed to show the delivery of the of the goods to the deceased; and

the Plaintiff’s claim is not a just debt to be paid out of the deceased’s estate.

The Plaintiff had only tendered invoices issued between 23.10.2010 to 29.8.2015, bills of lading (B1 pp. 2 -136) and a S/N Z8wkwRkCdk2rsqjOqiusTQ statement of account (Payment Request Statement B2 pp. - 165) issued after the passing of the deceased as basis of its claim. There was no evidence to show any of the goods in those invoices were delivered. The Plaintiff conceded that the bills of lading did not show delivery of the goods. PW2 in the cross-examination (Notes of Evidence p. 132) admitted as follows: The bill of ladings all of them in this bundle, did not state the date of the goods arriving at Port Klang, correct?

PW1 in the cross-examination (Notes of Evidence p. 30) conceded as follows: The bill of ladings did not state when the goods were received, correct?

The Defendant submits that there was no explanation for the failure to produce confirmation or evidence from the shipping companies on the alleged delivery of the goods. PW2 in cross-examination conceded that he did not ask the shipping companies like Wan Hai Pacific International Line, Yang Ming, S/N Z8wkwRkCdk2rsqjOqiusTQ Evergreen Line, Mediterranean Shipping Company, CNC Line, Zhonghe to issue written confirmation that the goods have reached Port Klang. PW2 states that the Plaintiff is not calling the shipping agents as witness. PW2 finds the question difficult to answer regarding whether he has proof that the containers and the goods have reached Port Klang. On the tracking report produced by these shipping companies, PW2 in the cross-examination (Notes of Evidence p. 145) admitted as follows: But do you have any tracking reports of these shipments? PW2: No.” No proof that the Deceased placed the Orders

The invoices produced in Court were unilaterally prepared by the Plaintiff and there was no indication that the deceased ordered the goods as stated in those invoices. PW1 in cross-examination confirms that the commercial invoices were not signed and acknowledged by the deceased. Even during the purported meeting, the Plaintiff did not get the deceased to sign on these invoices. (Notes of Evidence pp 45 & 46 of PW1). S/N Z8wkwRkCdk2rsqjOqiusTQ Statement of Account Issued After the Demise of the Deceased.

The Plaintiff’s director, PW2 knew about the deceased passed away on 5.3.2020. The Statement of Account (Payment Request Statement) was only issued on 14.9.2020 more than 6 months after the demise of the deceased. The said Statement of Account (B2 pp. 323 – 326) are not a contemporaneous document but an ex-post facto concoction with no probative value.

It is plainly absurd to suggest that the Plaintiff continues to supply goods amounting to USD$496,359.00 to the Defendant for a period of 6 years (2010 to 2016) without receiving any payment and PW2 confirms in cross-examination (Notes of Evidence p. 124) that for this 6 years, CH Leong Enterprise did not make any payment and the Plaintiff allowed CH Leong Enterprise to default on the payment for a period of 6 years. Even after defaulting for so long, the Plaintiff still continue to supply vegetable to CH Leong Enterprise.

There was no explanation provided to account for the Plaintiff’s lack of demand for the alleged outstanding sum during the lifetime of the deceased. PW2 agreed in cross-examination that when the deceased was still alive, the Plaintiff itself did not issue to him demanding for this amount and failed to sue him when the S/N Z8wkwRkCdk2rsqjOqiusTQ deceased was alive. The absence of demand for such large outstanding amount does not therefore accord with any commercial logic. It is expected that a prudent and reasonable business entity would have rigorously demanded for any outstanding sum without delay. The Plaintiff had only made demand for the purported outstanding invoiced amount against the executor of the deceased’s estate after his demise.

I have read and perused the Written Submissions and Authorities filed by the Plaintiff’s and the Defendant’s counsel. I have also considered and deliberated the Oral Submissions and Arguments articulated and presented by the respective parties’ counsel.

Section 101 of the Evidence Act 1950 reads as follows: “(1) Whoever desires any court to give judgment to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

The law on burden of proof is enshrined in the case of Tenaga Nasional Bhd v. Perwaja Steel Sdn Bhd [1995] 4 MLJ 673 where the High Court decided as follows: “Under s 101(1) of the Evidence Act 1950, whoever desires the court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. In other words, the plaintiff must prove such facts as the plaintiff desires the court to give judgment as to its right to claim against the defendant or the defendant's liability to pay the plaintiff. The burden of proof is on the plaintiff: s 101(2). In order to succeed here, the plaintiff must prove its claim affirmatively.”

In the book The Law and Practice of Compromise by Sir David Foskett, the effect of a settlement agreement or a compromise is succinctly summarised as follows: “Given the normal meaning, purpose and effect of a compromise, the natural inference is that the common intention of the parties is that the compromise will henceforth govern their legal relationship in connection with the disputes S/N Z8wkwRkCdk2rsqjOqiusTQ in which they had been engaged and that, accordingly, those disputes would still be regarded as “dead” even in the event of breach of the compromise. In the circumstances, it is submitted that recourse to the original claims will not be permitted.”

This elementary proposition is fortified by the case of Capitalcorp Securities Sdn Bhd v. Kweh Chen Seng [2002] 5 MLJ 699 as follows: “Further, the parties to the compromise or settlement were sui juris, and therefore the settlement or compromise so entered into between them had constituted a new and independent agreement, made for good and valuable consideration, the full effect of which was to put an end to the earlier cause of action which became spent and exhausted, unless the parties to the proceedings herein had reserved for themselves the liberty to enforce the original cause of action or claim in the event the compromise agreement was vitiated.”

In the case of Huat Hing Rubberwood Sdn Bhd v. Goodnite Sdn Bhd [2024] CLJU 193, the High Court decided that when presented with conflicting factual narratives of two parties, greater weight is placed on the accounting entries of a party over the other party’s testimonies which were not supported by any S/N Z8wkwRkCdk2rsqjOqiusTQ contemporaneous documents: “In weighing the evidence, the court is guided by the doctrine that contemporaneous documentary evidence often provides the most reliable indication of the parties' intentions. These routine accounting entries made amidst fast-unfolding events surely constitute reliable guides too over Mr. Gan's subsequent testimony shaped by emerging litigation incentives. Indeed, whilst the Plaintiff protests inadequate accounting records on its part, this cannot invert its legal burden nor entitle this court to conveniently accept Mr. Gan's conflicting account in lieu, otherwise unsubstantiated. For the law protects persons who formally document key transactions contemporaneously against counterparties who do not but later claim otherwise via oral testimony alone.”

Needless to say, the Court shall therefore analyse the contemporaneous documents produced by parties for the determination of the Plaintiff’s claim. PW2 agreed in cross-examination (Notes of Evidence p. 126) that between the date of the said payment till the date of the deceased’s demise it was 3 years 6 months. It makes no commercial sense for a commercial S/N Z8wkwRkCdk2rsqjOqiusTQ entity like the Plaintiff not to pursue for the payment of the balance outstanding as substantial as the present claim of USD$416,359.00 Lapse of time

The Court is inclined to agree with the Defendant’s submission that the lapse of time and staleness of the claim irresistibly point to the conclusion that the Plaintiff had previously treated the USD$80,000.00 as final settlement sum only to be disavowing the same after the death of the deceased. The conduct and the prolonged inaction on the part of the Plaintiff in pursuing this claim are as follows:

all purported debt (if existed) was conclusively settled by the payment of USD$80,000.00 from the deceased to the

the late claim initiated only after the deceased’s demise was an attempt to renege against the settlement agreement. Inaction by the Plaintiff to pursue the alleged outstanding balance.

52.

It was admitted during cross-examination that both PW1 and PW2 had on 29.5.2016 met the deceased in Malaysia for negotiation of settlement as conceded by PW2 in cross-examination (Notes of Evidence p. 166). The Plaintiff was unable to show any evidence that effort was taken to have the deceased to acknowledge the purported debt arising from all the invoices tendered. In the cross-examination of PW1 (Notes of Evidence pp. 45 & 46), it was agreed that the commercial invoices were not signed and acknowledged by the deceased and that during the meeting, PW1 did not get the deceased to sign on these invoices, or to get the deceased to sign anything to acknowledge delivery of the goods stated in the invoices and also to get the deceased to sign anything to admit the purported outstanding payment of USD$496,359.00. Credibility of PW2 as a witness

In the course of PW2 testimony, PW2 was found to be giving evidence on the frolic of his own without reference to the witness statements or pleadings and were contradicting. At one stage of S/N Z8wkwRkCdk2rsqjOqiusTQ PW2 cross-examination (Notes of Evidence p. 167 & 168) PW2 was prone to exaggeration and gave a colourful and incredible account on how the deceased had attempted to kill the deceased and there was evidence that PW2 was carried away by the strong resentment he bore against the deceased.

Despite the claim that the USD$80,000.00 was a part payment, the Plaintiff could not furnish any explanation (Notes of Evidence p. 80) why it did not rigorously demand further for the balance sum within the payment date of 2.9.2016 until 5.3.2020 (death of the deceased). PW2 also in cross-examination (Notes of Evidence p. 147) conceded that there was proof that the containers mentioned in the invoices have been unloaded, however when challenged by the Defendant’s counsel to find proof of the same, PW2 answered that he does not know. The Court finds that PW2 evidence cannot lend credence to the Plaintiff’s claim and therefore the Court finds his evidence contradicts with the contemporaneous documents filed in Court. The relevant portion of the evidence of PW2 regarding the above are outlined as below: On whether any demand was made AH : You are saying that you have never asked the deceased Leong Chin Hai to make payment? S/N Z8wkwRkCdk2rsqjOqiusTQ Yes. On absence of proof that containers were unloaded : But you have no proof that the containers mentioned in the invoices have been unloaded right? No : So, no proof, yes? There is proof. : If you say that there is proof, I’m going to challenge you to find. I do not know.

The High Court in the case of Huat Hing Rubberwood Sdn Bhd v. Goodnite Sdn Bhd & 2 Ors. [2018] CLJU 1770 the effect of a settlement agreement was explained succinctly as follows: “It is trite law that the effect of settlement agreement extinguishes the earlier agreement and constitutes a fresh S/N Z8wkwRkCdk2rsqjOqiusTQ agreement between parties.”

Section 63 of the Contracts Act 1950 (Act 136) reads as follows: “If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.”

Once it is established that the Plaintiff and the deceased had agreed to accept the payment of USD$80,000.00 as full and final settlement of all outstanding amount, a valid settlement agreement had been constituted. Such settlement between the Plaintiff and the Defendant would then supersede and abrogate all claims arising from the Plaintiff’s invoices. The tendering of the invoices is clearly insufficient to establish a claim based on goods sold and delivered. If there was any settlement reached between the Plaintiff and the deceased to settle all outstanding amount by way of the payment of USD$80,000.00, then all liabilities (if any) would be discharged and those invoices would no longer be payable. Defendant’s role

The Plaintiff submits that as a professional estate manager, the Defendant failed to take the necessary steps to clarify the S/N Z8wkwRkCdk2rsqjOqiusTQ Plaintiff’s request for the incorporation into the list of liabilities. The Court finds that the Defendant has taken reasonable steps to deal with the claim by the Plaintiff in respect of the alleged outstanding payment. DW3 in her evidence testified in no uncertain terms that after reviewing the records of the deceased which were accessible to the Defendant, the Plaintiff’s claim was not considered as just debt. Pursuant to an accounting entry in the deceased’s company ledger produced (B3 p. 407 and translation B3 p. 495) both the deceased and the Plaintiff have agreed to accept USD$80,000.00 paid on 2.9.2016 as full settlement of the outstanding payment between them. Payment of USD$80,000.00

The deceased made a payment of USD$80,000.00 on 2.9.2016 via telegraphic transfer to the Plaintiff (see transmission form B2 p. 146) and the said payment was recorded in the deceased’s company ledger by DW1 as instructed by the deceased that this payment was meant to be a full and final settlement of all outstanding payments payable to the Plaintiff. DW1 made the following handwritten remark on the ledger see B3 pp. 407(Chinese) & 495 (English) as follows:

The evidence by DW1 demonstrated in detail how the purchases and payments were made and recorded in the handwritten ledger (see Notes of Evidence p. 209) and after the final settlement payment of USD$80,000.00, there was no further transaction between the deceased and the Plaintiff. This piece of evidence can be gleaned from DW1’s witness statement (witness statement Question 16 Encl. 81) as follows: “Q : Please tell us what happened after the payment of USD$80,000.00 was paid to the Plaintiff. S/N Z8wkwRkCdk2rsqjOqiusTQ A : As shown in the Ledger, since the payment of USD$80,000.00, there was no longer any transaction recorded between C H Leong Enterprise and the Plaintiff. This shows that there was no longer any dealing between them since this payment. Thereafter, I have also never received any claim or reminder from the Plaintiff to claim for any purported outstanding sum.” Invoices issued to 3rd Parties

The question that arose for the Court’s determination is whether the deceased was a contractual party in invoices (B1 pp. 98 – 128) issued by the Plaintiff to Tanjung Sejahtera Agro Sdn. Bhd., Uniko Farm Sdn. Bhd. and Indah Import & Eksport Sdn. Bhd. The Plaintiff in their pleaded case (Statement of Claim para. 16) stated that the goods were purchased by the deceased and then instructed the Plaintiff to issue the said invoices to these 3rd parties.

The Plaintiff’s allegation that the deceased was the contracting or invoiced party in respect of these invoices issued to 3rd parties must be considered by Court in the light of section 91 and section 94 of the Evidence Act 1950 (Act 56) (“EA”). The provision in S/N Z8wkwRkCdk2rsqjOqiusTQ section 91 EA precludes the admission of other evidence (oral otherwise) other than the document itself to prove the terms therein and by virtue of section 94 EA when the identities of the invoiced parties were stated in these invoices, evidence may not be given to show that it was not meant to apply to such facts when the document is plain in itself and when it applies accurately to existing facts whereby it was crystal clear that the invoices were sent to the 3rd parties companies and not to the deceased or CH Leong Enterprise.

I am of the considered view, after evaluation of the evidence adduced before me that the deceased or CH Leong Enterprise were not contractual parties privy to those invoices issued the the 3rd party companies (Tanjung Sejahtera Agro Sdn. Bhd., Uniko Farm Sdn. Bhd. and Indah Import & Eksport Sdn. Bhd.).

In furtherance to this, the Plaintiff did not adduce any evidence to show or prove that the 3rd parties were the Approved Permits holders allowed to import vegetables into Malaysia. (Notes of Evidence pp. 138 and 139).

For ease of reference the provisions of section 91 of the Evidence Act 1950 (Act 56) is reproduced as follows: “When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of S/N Z8wkwRkCdk2rsqjOqiusTQ the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.”

Section 94 of the Evidence Act 1950 (Act 56) reads as follows: “When language used in a document is plain in itself and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. ILLUSTRATION A conveys to B by memorandum of transfer "my estate at Kranji containing 100 acres." A has an estate at Kranji containing 100 acres. Evidence may not be given of the fact that the estate meant was one situated at a different place and of a different size.” Approved Permits for importation of vegetables

The question that arose for the Court’s determination is whether the deceased instructed the invoices to be issued to 3rd parties so S/N Z8wkwRkCdk2rsqjOqiusTQ as to circumvent the need for the deceased to obtain approved permits for the importation of vegetables (Question 8 witness statement of PW1). It was the Plaintiff’s pleaded case (para. Statement of Claim) that the deceased had no approved permits and had purchased goods from the Plaintiff company through the 3rd parties who were approved permits holders.

On the contrary, the unchallenged evidence of PW1 that deceased would only make payment on the invoices issued to CH Leong Enterprise and no other party. (Question 17 witness statement of PW1). PW2 admitted that the deceased had in the past between October 2010 to November 2014 purchased and imported vegetables with his own Approved Permits.

However, PW1 have not seen the deceased’s Approved Permit (Notes of Evidence p. 13 & p. 151) and PW1 admitted in cross-examination (Notes of Evidence p. 10) that the Plaintiff do not have records of the customer’s approved permits. The Plaintiff’s claim is not time-barred.

The Plaintiff tendered a total of 42 invoices in this case dated between 23.10.2010 to 29.8.2015 (B1 pp. 2 to 134). The Defendant referred to section 6 (1) (a) of the Limitation Act 1953 (Act 254) which provides that actions founded on a contract shall S/N Z8wkwRkCdk2rsqjOqiusTQ not be brought after the expiration of six years from the date on which the cause of action accrued.

The law is trite that a part payment would render a fresh accrual of the limitation period, commencing from the date of the last payment in which was made. (see section 26 (2) of the Limitation Act 1953). The deceased and/or CH Leong Enterprise made a part payment on 2.9.2016, the payment date of which is not disputed by either party. Therefore, the six years limitation period shall commence from the date of the deceased’s last payment on the even date and the filing of the Writ and the Statement of Claim was on 4.8.2021 which is within the 6 years limitation requirement.

The Defendant submits that the raison d’étre of Approved Permit is to regulate the competition of the local market, in this case the supply of vegetables. On the assumption that the invoices were issued for both parties to enable the import vegetables which the deceased would not otherwise be entitled to, and by issuing the invoices to 3rd party companies would violate section 4 of the Competition Act 2010.

The Court finds that the Defendant has not raised the issue that the Plaintiff was in breach of the Competition Act 2010 in their Amended Defence. The law is trite that parties are bound by their S/N Z8wkwRkCdk2rsqjOqiusTQ pleadings and the Defendant are estopped from raising such issues. (see Maybank Islamic Berhad v. Golden Base

The Court of Appeal in the case of Ribaru Bina Sdn. Bhd. & Ors. v. Bakti Kausar Development Sdn. Bhd. [2007] 2 MLJ 221 decided that to raise triable issues by way of submission on a point not raised in a defence would not meet the requirements of procedural fairness.

The Court is of the considered view that the Plaintiff’s submissions that the Plaintiff has successfully established its claim against the Defendant and that the Defendant failed to prove that full payment has been made towards the outstanding sum is devoid of any merits. Summary of Court’s evaluation

The Court makes the following findings in a nutshell:

the Plaintiff’s invoices adduced without concrete proof of purchase and delivery of the goods is insufficient to show liability for payment by the deceased or CH Leong

the inaction or lack of action by the Plaintiff over a lapse of time demonstrated an irresistible conclusion that both the Plaintiff company and the deceased/CH Leong Enterprise had settled all outstanding amount via the payment of USD$80,000.00 on 2.9.2016; and

the deceased/CH Leong Enterprise was not liable to make any payment whatsoever for the invoices issued to the 3rd party companies as the deceased/ CH Leong Enterprise was neither privy nor a party to the same.

The Court is therefore of the considered view that all outstanding sums have been abrogated by the settlement payment of USD$80.000.00. Needless to say, the Plaintiff’s claim ought to be dismissed.

In the circumstances, the Court finds that on the totality of the evidence adduced by both Plaintiff and Defendant witnesses, the Plaintiff has failed to prove the claim of USD$416,359.00 against the Defendant on a balance of probabilities. S/N Z8wkwRkCdk2rsqjOqiusTQ

Based on the aforesaid reasons, the Plaintiff’s claim of USD$416,359.00 (RM1,703,865.94) in the Statement of Claim (Encl. 2) in paragraphs 31 (a), (b), (c) and (d) are hereby dismissed with costs of RM60,000.00 (subject to allocatur). Dated: 25 July 2025 Sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur Plaintiff’s counsel: Andy Yeoh & Nick Lee Ming Hong Messrs. Yeoh Shim Siow & Lay Kuan Kuala Lumpur Defendant’s counsel: Amos Ho Chern Wey Messrs. Amos Ho, Sew & Kiew Kuala Lumpur. S/N Z8wkwRkCdk2rsqjOqiusTQ