Tay Mary v Capitol Prosper Sdn Bhd (WA-22NCC-529-10/2020)

As in Austen's tales where inheritance and family fortune breed discord among relatives, this case centres on disputed financial dealings that have torn a family apart following the death of a successful businessman. The court is tasked with determining the validity of a mother's claim against her late son's company for repayment of an alleged oral loan of RM2.6 million that was purportedly disbursed through a complex arrangement involving multiple corporate entities. The key issue is whether there was in fact a valid loan agreement between the parties, or whether the impugned transactions were merely internal fund transfers between related companies under common control. This determination requires careful scrutiny of contemporaneous documentary evidence spanning a decade, along with assessment of oral testimony from witnesses with 2 competing interests - most notably between a grandmother and granddaughter who now find themselves on opposite sides of this corporate dispute. The resolution of this matter requires the court to look beyond the fog of family discord to discern the true nature of these financial dealings that took place when family and business relationships were still intact.

The Plaintiff, Tay Mary (“Tay Mary”) is the mother of the late Dato' Tan Tiang Kwong (“Dato' Tan”), who passed away on 1.12.2017. Prior to his passing, Dato' Tan was involved in several business ventures, including Kejuruteraan Bina Optima Sdn Bhd (“KBO”) which was incorporated on 5.3.2002, where both he and Tay Mary were directors and equal shareholders, each holding 50% of the shares.

The Defendant, CP Sdn Bhd (“CP”) was incorporated on 26.9.2008 as an investment holding company. From 2011 to 2013, CP's shareholders were Dato' Tan and his wife Datin Ng Pak Mui, each holding 600,000 shares. During this period, CP's directors were Dato' Tan (appointed 26.9.2008, resigned 27.11.2017), Datin Ng Pak Mui (appointed 26.9.2008, resigned 14.2.2020), and Dato’ Tan’s daughter, Tan Ai Lin (appointed 3.7.2012).

In October 2012, KBO obtained a 15-year term loan of RM18,000,000.00 from CIMB Bank Berhad at the interest rate of Base Lending Rate minus 0.50% per annum (“CIMB Term Loan”).

Between January 2013 and June 2013, KBO issued 12 cheques to CP totalling RM2.6 million, with the following specific amounts and dates: a)

21.1.2013 - RM300,000.00 (Cheque No. 309655) b)

08.2.2013 - RM100,000.00 (Cheque No. 309660) c)

27.2.2013 - RM200,000.00 (Cheque No. 309664) d)

11.3.2013 - RM80,000.00 (Cheque No. 309668) e)

13.3.2013 - RM120,000.00 (Cheque No. 309670) f)

21.3.2013 - RM200,000.00 (Cheque No. 309672) g)

18.4.2013 - RM300,000.00 (Cheque No. 309687) h)

26.4.2013 - RM380,000.00 (Cheque No. 309690) i)

16.5.2013 - RM350,000.00 (Cheque No. 309697) j)

06.6.2013 - RM400,000.00 (Cheque No. 359157) k)

12.6.2013 - RM50,000.00 (Cheque No. 359160) l)

27.6.2013 - RM120,000.00 (Cheque No. 359166) [6] After Dato' Tan's passing in December 2017, several changes occurred in the management of KBO. On 23.5.2019, Dato’ Tan’s brothers, Tan Tiang Kee and Tan Tiang Ee were appointed as directors of KBO. [7] By letters dated 13.1.2020, 19.2.2020, and 18.5.2020, Tay Mary demanded repayment of the amount of RM2.6 million that Tay Mary claims to have been a loan given to CP, via KBO, on the basis that it was repayable on demand. CP responded through letters dated 22.11.2019, 16.1.2020,

28.2.2020, and 9.6.2020. [8] The present proceedings were commenced in October 2020, with Tay Mary seeking to recover the RM2.6 million from CP. This case is one of several legal proceedings that emerged following Dato' Tan's passing, including proceedings relating to Dato' Tan's Will dated 15.1.2017 and various other corporate matters involving KBO and other related companies. [9] Prior to establishing KBO and CP, Dato' Tan and Tay Mary were also partners in two partnerships known as Bina Optima and Bina Altima, which were dissolved by expiration on 1.7.2016, approximately 15 months before Dato' Tan's passing. Tay Mary's pleaded case [10] Tay Mary's pleaded case is that around 2012, CP needed funding. Dato' Tan, in his capacity as director and shareholder of CP, approached Tay Mary to request financial assistance for CP's benefit. By way of an oral agreement (“Oral Agreement”) Tay Mary agreed to provide a loan of RM2.6 million (“the Loan”) to CP on the condition that KBO first repay the director's loan that Tay Mary had previously provided to KBO. [11] In October 2012, KBO obtained the CIMB Term Loan from CIMB Bank Berhad. Part of these proceeds were used by KBO to repay a director's loan owed to Tay Mary by KBO. Following this repayment, as agreed, Tay Mary extended the Loan to CP. The payments of the Loan were made directly by KBO to CP through 12 CIMB cheques between January and June 2013, totaling RM2.6 million. The debt owed to Tay Mary by KBO for the director's loan was recorded in KBO's books as being settled. [12] According to Tay Mary, it was agreed between her and Dato' Tan, acting on behalf of CP, that the Loan would be repayable upon Tay Mary's demand. By letters dated 13.1.2020, 19.2.2020 and 18.5.2020, Tay Mary demanded repayment of the Loan from CP. She alleges that CP has failed, refused and/or neglected to make payment despite these demands. [13] In addition to claiming breach of the loan agreement, Tay Mary alternatively relies on section 71 of the Contracts Act 1950, contending that CP has been unjustly enriched and/or benefited from the sum of RM2.6 million at her expense. [14] The reliefs sought by Tay Mary are: a) Payment/restitution of RM2.6 million within seven days from the date of Judgment or within any period as ordered by the court; b) Interest at 5% per annum on RM2.6 million from 20.1.2020 until the date of Judgment, pursuant to Section 11 of the Civil Law Act 1956; c) Interest at 5% per annum on RM2.6 million from the date of Judgment until full and final settlement; d) Costs; and e) Such further and other relief as the court deems fit. CP's pleaded case [15] CP categorically denies Tay Mary's claim and argues that it has been manufactured for collateral purposes. CP's defence rests on several key contentions. [16] CP asserts that Dato' Tan was the founder, funder and principal of CP and CP (Utilities) Sdn Bhd (collectively “CP Group”) and KBO. According to CP, Dato' Tan was not only the common controlling shareholder but also the operating mind and will of these companies, controlling their day-to-day operations, management and decision-making processes. [17] CP denies that Dato' Tan ever sought financial assistance from Tay Mary for CP's benefit, characterising this assertion as a “blatant falsehood”. CP contends that there was no reason for Dato' Tan to seek a loan from Tay Mary because at the material time, Dato' Tan had already procured the RM18 million CIMB Term Loan through KBO to meet the financial needs of his companies, including CP. [18] CP argues that it would be “incredulous” for Dato' Tan to have routed any loan through Tay Mary when the actual source of funds was the CIMB Term Loan. CP further maintains that any internal arrangements now claimed between Tay Mary and KBO (which CP argues is wrongfully controlled by Tay Mary and her sons) are self-serving and untrue. [19] CP states that there exists an intercompany arrangement between KBO and CP regarding the CIMB Term Loan whereby CP is to pay approximately 60% of the monthly repayment to CIMB with the balance to be paid by KBO until settlement of the CIMB Term Loan. CP maintains that it continues to make the necessary repayments to CIMB in accordance with this arrangement. [20] CP denies that there was any agreement between Tay Mary and Dato' Tan for repayment on demand. It contends there is no evidence in CP's books of funds advanced from Tay Mary to CP or of any repayment towards account of the same. CP argues that any payments by KBO to CP Group were part of the CIMB Term Loan, to be jointly repaid by KBO and CP Group directly to CIMB as determined by Dato' Tan. [21] CP further denies that it has been enriched or benefited at Tay Mary's expense, maintaining that all sums received were transferred from KBO via the CIMB Term Loan. [22] CP seeks for Tay Mary's claim be dismissed with costs. Witnesses [23] Three witnesses appeared for Tay Mary as follows: a) PW1 is Tay Mary, the Plaintiff and mother of the late Dato’ Tan. Her evidence primarily relates to a RM2.6 million loan she claims to have given to CP in 2013. She testifies that she was a director/shareholder of KBO and had independent means from businesses including Bina Optima and Bina Altima. She states that she agreed to loan money to CP at her son Dato’ Tan's request, on the condition that KBO first repay her director's loan. b) PW2 is Kuan Ting Soon, the branch manager of Maybank's TTDI branch. His evidence relates to a letter dated 1.1.2018 purportedly from Law Ah Kuan (PW3). He testified that based on the bank's records, they never received this letter and had not disclosed it to any unauthorised third party. c) PW3 is Law Ah Kuan, Tay Mary's daughter-in-law and account executive of KBO since 2002. Her evidence concerns the preparation of payment vouchers recording the repayment of director's loans through KBO CIMB Current Account checks between January-June 2013. She also handled bookkeeping for CP until Dato’ Tan's death in 2017. She testified about various financial transactions between KBO, CP and the involved parties. [24] Two witnesses appeared for CP as follows: a) DW1 is Tan Ai Lin, the daughter of Dato’ Tan and current director of CP and KBO. Her evidence disputes the legitimacy of the alleged loan, arguing that her father was the sole controller and funder of both companies. She testifies that the payment vouchers issued by KBO showing KBO repaid Tay Mary for director’s loans she made to the company, were created retrospectively in 2017 to “zeroize” amounts and that her grandmother (Tay Mary) had no independent financial means to make such loans. b) DW2 is Tan Sha Lin, a director of CP appointed in December 2018. Her evidence appears limited to confirming that she wrote and issued certain letters on behalf of CP after her appointment as director. Issues [25] From the facts of the case, defences relied on by CP and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Whether on a balance of probabilities, there was an oral agreement entered into between Tay Mary and CP through Dato' Tan in 2012 whereby Tay Mary agreed to provide a loan of RM2.6 million that was repayable upon her demand. b) Whether Tay Mary had provided director's loans totaling RM2,853,627 to KBO between 2003 and 2012, as opposed to the funds recorded as director's loans under her name actually belonging to Dato' Tan. c) Whether the RM2.6 million transferred by KBO to CP in 2013 constituted repayment of director's loans owed to Tay Mary. d) Whether the oral agreement between Tay Mary and Dato' Tan (on behalf of CP) provided for the RM2.6 million loan to be repayable upon Tay Mary's demand, rather than within a reasonable time. e) Whether CP has been unjustly enriched at Tay Mary's expense by receiving and retaining the benefit of the RM2.6 million transferred by KBO in 2013, thus obliging it to make restitution under Section 71 of the Contracts Act 1950. [26] Further subsidiary issues identified are framed as follows: a) Whether the alleged family conflict between Dato' Tan and Law Ah Kuan in 2012 rendered it improbable that Dato' Tan would have requested a loan from Tay Mary for CP during that period. b) Whether the present suit was initiated by Tay Mary as a collateral attack against Dato' Tan's immediate family rather than to pursue a legitimate claim for repayment of the alleged RM2.6 million loan. c) Whether PW2's testimony that Maybank never received Law Ah Kuan's purported letter dated

1.1.2018 requesting to set off the RM5 million fixed deposit against Dato' Tan's overdraft facility should be accepted as credible evidence. Analysis and findings of the court Existence of an oral agreement between Tay Mary and CP through Dato' Tan in 2012 for the provision of a loan of RM2.6 million from Tay Mary to CP [27] CP submits that Tay Mary has failed to prove the existence of the Oral Agreement with contemporaneous documentary evidence. It contends that the documents relating to KBO's loans and transfers actually evidence that the RM2.6 million belonged to Dato' Tan, who had instructed it to be recorded under Tay Mary's name. CP argues that Tay Mary was merely a sleeping partner in Bina Optima and Bina Altima, and has not substantiated her claims of being an equal recipient of the partnerships' profits to fund the alleged loans. Furthermore, it asserts that Tan Ai Lin's evidence, corroborated by the management accounts showing Dato' Tan funded KBO using Bina Optima and Bina Altima's monies, establishes he was the source behind KBO's transfers to CP. Overall, CP maintains the Oral Agreement lacked proof and was a fabrication after Dato' Tan's passing. [28] Tay Mary submits that the contemporaneous documents prove the existence of the Oral Agreement in 2012 for the RM2.6 million loan from her to CP. She argues that CP’s contradictory positions in this suit and KLHC Suit No.: WA- 22NCC-528-10/2020 (“Suit 528”), along with KBO's payment vouchers and Audited Financial Statements evidencing the loan being debited from monies owed to her, corroborate her case. Tay Mary contends that Tan Ai Lin's evidence denying knowledge of the loan is unsubstantiated and unreliable given the documentary proof. Furthermore, she contends that the lack of a specific date for the oral discussions is immaterial when weighed against the wealth of contemporaneous documents. Overall, Tay Mary asserts that the documents establish the Oral Agreement was entered into between her and Dato' Tan on behalf of CP in 2012. [29] Having considered the evidence before me and the submissions of both parties, I find that on a balance of probabilities, the Oral Agreement was entered into between Tay Mary and CP through Dato' Tan in 2012 on the term that the loan of RM2.6 million was repayable upon Tay Mary's demand. [30] While the specific date of the Oral Agreement has not been pleaded, I am persuaded by Tay Mary’s submission, relying on Thiagajen a/l Veluchamy v Suraish Naidu a/l Re Naidu & Anor [2009] 9 MLJ 68, Bukit Kiara Resort Bhd v Dato’ Bandar Kuala Lumpur [2012] 2 MLJ 783 and Chuan Hooi Keat & Anor v Tee Tam [2020] MLJU 2409, that the lack of a pleaded specific date is not fatal where the plaintiff has provided sufficient material facts and evidence to substantiate the existence of the Oral Agreement. [31] In Thiagajen a/l Veluchamy, Nallini Pathmanathan JC (as Her Ladyship then was) held: “The fact that the exact date of the contract as stipulated by the plaintiff may not be exactly accurate does not preclude this court from finding the existence of such an agreement. This is because there is a preponderance of evidence showing the existence of such an agreement (see GN Muey Muey v Goh Poh Choo [2000] 2 SLR 578). The plaintiff has identified the approximate period during which the oral agreement was reached and the parties to this agreement. His evidence on this point was corroborated by the evidence of PW2.” [32] Similarly, in Bukit Kiara Resort Bhd, Amelia Tee J held at paragraph 61: “Whilst it is true that information about the persons who entered into the oral agreement, the date, time, and place of the oral agreement are important, the existence or otherwise of an oral agreement can also be gleaned from other facts and not necessarily from such information alone. The court has thus looked wider at the actions and reactions of the parties to decipher if they are more consistent with there being an oral agreement between the parties.” [33] In Chuan Hooi Keat & Anor, Anand Ponnudurai JC (as His Lordship then was) distinguished Tan Poh Yee v Tan Boon Thien & Ors [2017] 3 MLJ 244 (relied on by CP herein to argue the claim should be struck out for lack of a pleaded specific date) and held at paragraphs 16-17: “[16] On the facts of this case, as we have seen, the Plaintiff has also pleaded the specific instances of part payment of the loan by the Defendant with reference to specific cheque numbers etc. In my considered view, this goes to show the existence of such an oral agreement. The Plaintiff has also identified the approximate period of the oral agreement which was in or about August 2017. [17] In conclusion, having perused the Statement of Claim I am satisfied that it states sufficient facts to formulate a complete cause of action against the Defendant. Whilst it may indeed be deficient by virtue of not specifying the exact date of the alleged oral agreement, I agree with the submission of the Plaintiff that the mere failure to state the exact date cannot and does not in this case amount to the Plaintiff having no cause of action against the Defendant.” [34] In the present case, Tay Mary has pleaded in paragraph 5 of the Amended Statement of Claim that “On or about 2012, the Defendant was in need of funding. Therefore, the late Dato’ Tan, in his capacity as director and shareholder of the Defendant, requested financial assistance from Tay Mary for the Defendant's benefit.” Tay Mary's testimony in her examination in chief via Q&A 5 WS-P1A, was that this request for financial assistance by Dato' Tan took place when he visited her house in 2012. She testified as follows: “S5. Kenapa anda memberikan pinjaman ini kepada CP/Palm Mall? J5. Pada sekitar tahun 2012, Dato' Tan, iaitu pengarah/director dan pemegang saham CP/Palm Mall pada masa material [Saya telah dirujuk kepada Carian Suruhanjaya Syarikat Malaysia CP/Palm Mall di CBOD 1 mukasurat 24-37 yang membuktikan ini] telah beritahu saya bahawa CP/Palm Mall memerlukan bantuan kewangan. Oleh itu, Dato' Tan telah meminta saya untuk meminjam wang kepada CP/Palm Mall.” [35] Viewed in totality, I find that Tay Mary has sufficiently pleaded and testified to the approximate period of the Oral Agreement, which was sometime in 2012 when Dato' Tan visited her house to request financial assistance for CP. The exact date is not essential in the circumstances. What is crucial is that Tay Mary had identified the parties to the agreement (herself and Dato' Tan acting for CP), the approximate period the agreement was reached (in 2012), and critically the subject matter of the agreement (that she would provide financial assistance to CP at Dato' Tan's request). Her testimony on this was not seriously challenged. Accordingly, applying the principles laid down in the authorities cited above, I find that the lack of a specific pleaded date of the Oral Agreement is not fatal to Tay Mary's claim as there are sufficient material facts pleaded and evidence led to establish the existence of the Oral Agreement between Tay Mary and Dato' Tan for the RM2.6 million loan to CP. [36] The existence of the Oral Agreement is supported by the contemporaneous documentary evidence before me. It is not disputed that CP received twelve cheques totalling RM2.6 million from KBO between 21.1.2013 and 27.6.2013. Crucially, these payments correspond with twelve payment vouchers issued by KBO, all executed by Dato' Tan, which clearly record the cheques as being repayments of director's loans owed by KBO to Tay Mary. [37] The contents of these payment vouchers are highly material. By way of example, the payment voucher dated 26.4.2013 at page 224 of Bundle B1 states “Repayment” as particulars and records a payment of RM380,000 via cheque number 309690. This matches the KBO cheque to CP for the same amount and cheque number at page 219. Similar notations of “Repayment” or “Pay Back” are found in all twelve payment vouchers. [38] KBO's Audited Financial Statements for the year ended 30.6.2013 and its general ledgers for that period further corroborate that the RM2.6 million paid to CP was debited against director's loans owed to Tay Mary. The Audited Financial Statements show that as at 30.6.2013, the amount owed by KBO to directors had reduced to RM89,335 from RM2,853,627 the previous financial year, a reduction of approximately RM2.76 million. Tay Mary's testimony, which I accept, was that she had given several director's loans to KBO as evidenced by the KBO Director's Resolutions from 27.10.2003 to 15.12.2012 signed by her and Dato' Tan and the amounts of the director's loans given by Tay Mary were stated in KBO's audited financial statements as amounts owing to directors (Q&A 7, WS-P1A). [39] The general ledgers at pages 168-174 of Bundle B6 in turn show that the RM2.6 million transferred to CP via the twelve cheques were all debited against the director's loan account in KBO's books, with the cheque numbers and amounts matching those issued to CP. Law Ah Kuan, an accounts executive of KBO at the material time, confirmed that she prepared these general ledger entries on Dato' Tan's instructions to record the amounts as repayments to Tay Mary of her director's loans to KBO (see Q&A 20 of WSPW3A). [40] Against this backdrop of clear contemporaneous documentary evidence showing that the RM2.6 million paid by KBO to CP was recorded as a repayment of Tay Mary's director's loan, I find CP's attempt to argue that the monies belonged to Dato' Tan and not Tay Mary to be wholly unsubstantiated and without any credible basis. No good reason has been shown as to why KBO's books and records would falsely record the director's loans as being owed to and repaid to Tay Mary if that was in fact not the case. Viewed objectively and in totality, I find that the contemporaneous documents overwhelmingly support Tay Mary's testimony that she had given director's loans to KBO which Dato' Tan requested be repaid directly to CP in 2013 as a form of financial assistance to CP from her, thus proving the existence of the Oral Agreement between them for this RM2.6 million loan. [41] CP's contention that the payment vouchers were simply created in 2017 to “zeroize” amounts purportedly owed to Tay Mary is untenable and contradicted by the contemporaneous documents. I find Tan Ai Lin's testimony in this regard to be unreliable and self-serving, having regard to her shifting evidence on the payment vouchers. In her Amended Witness Statement (Q&A 42, WS-DW1A), Tan Ai Lin had initially testified that she had only seen the KBO payment vouchers for the first time in February 2021 when Tay Mary's solicitors served the documents. However, when confronted with the evidence of Law Ah Kuan, supported by contemporaneous documents, showing that the payment vouchers had been passed to Tan Ai Lin at the material time to obtain Dato' Tan's approval and signature, Tan Ai Lin later admitted in her Supplementary Witness Statement (Q&A 42, WS-DW1B) that she already had full knowledge of those same payment vouchers from 2017 itself. In fact, Tan Ai Lin also admitted that the payment vouchers had been prepared on Dato' Tan's instructions, and that she had even prepared some of them herself. [42] I find it incomprehensible that payment vouchers totalling a substantial RM2.6 million would be created in 2017 to “zeroize” a fictitious loan if none in fact existed, as CP argues. There is simply no logical reason for Dato' Tan to do so, especially since he had consistently acknowledged Tay Mary's director's loans to KBO in its Audited Financial Statements and Directors' Resolutions from 2005 to 2012. Tan Ai Lin confirmed that Dato' Tan would not make any false or misleading statements in these documents. It defies belief that he would suddenly in 2017 seek to fabricate a non-existent loan via these payment vouchers. In any event, the actual accounting records in KBO's general ledgers clearly show the RM2.6 million as being paid to CP and debited against Tay Mary's director's loan account, not Dato' Tan's. The contemporaneous documents therefore contradict CP's argument on the payment vouchers. [43] The suggestion that Dato' Tan habitually used Tay Mary's name as a nominee is a bare allegation unsupported by evidence. CP did not produce any substantive proof of this practice. On the contrary, the documentary evidence demonstrates Dato' Tan's consistent recognition of Tay Mary's interests in KBO. KBO's Directors' Resolutions spanning 2003 to 2012, all signed by Dato' Tan, repeatedly acknowledge Tay Mary's substantial director's loans to KBO. This was further confirmed in KBO's Audited Financial Statements over the same period, likewise approved by Dato' Tan as director. Tan Ai Lin also testified in cross-examination that CP had no documentary evidence of any trust arrangement between Dato' Tan and Tay Mary for her KBO shares. In the premises, I find CP's unsubstantiated allegation of nominee arrangements between Dato' Tan and Tay Mary to be wholly unconvincing when contrasted against the objective contemporaneous documentary evidence showing Dato' Tan's recognition of Tay Mary's director's loans to KBO. Accordingly, I reject CP's contention on the payment vouchers and purported nominee arrangement. [44] Further, CP's pleaded position in Suit 528 that it only received RM7,838,558 as a loan from KBO, which its witness Tan Ai Lin confirmed did not include the RM2.6 million, supports the inference that the source of the RM2.6 million was Tay Mary and not KBO. Specifically, in paragraph 8.2(a) of its Amended Defence in Suit 528, CP pleaded that: “a total sum of RM7,838,558.00 was transferred by KBO to the 1st Defendant [CP] from 17.12.2012 to 25.7.2013” [45] Under cross-examination, Tan Ai Lin unequivocally confirmed that CP's pleaded position was that the loan from KBO to CP was only RM7,838,558 and that this amount was separate and distinct from the RM2.6 million. The relevant exchange was as follows: “ND: And again, based on the Defence filed by the Defendant in 528 suit, a total sum of RM7,838,558 was transferred by KBO to CP, the Defendant? DW1: Yes. Based on this document. ... ND: Of course, these cheques are different to the cheques we showed you yesterday at bundle B1 pages 209 to 232. DW1: Yes.” [46] The cheques at pages 209 to 232 of Bundle B1 refer to the twelve cheques totalling RM2.6 million issued by KBO to CP. I find Tan Ai Lin's admission highly significant. If the RM2.6 million had also been a loan from KBO as CP now claims, there would be no reason for CP to limit its pleaded position in Suit 528 to only RM7,838,558. The inescapable conclusion is that CP's own pleadings and evidence support Tay Mary's case that the source of the RM2.6 million was not KBO but was in fact Tay Mary. [47] CP has also failed to produce any evidence as to how the RM2.6 million was recorded in its own accounts. One would expect that if the RM2.6 million was a loan from KBO as alleged, CP would have been able to show documentarily how this amount was accounted for in its books. However, despite being questioned on this, the best Tan Ai Lin could offer was that there were no such records and that she could produce CP's financial statements if needed. With respect, that is not good enough. It was incumbent on CP to produce its own documentary evidence to support its case, and the failure to do so leads to the adverse inference that such records would not assist CP's case. [48] No records were produced to evidence its claim that the RM2.6 million was a loan from KBO. In the circumstances, I draw the necessary adverse inference against CP on this issue. When viewed in light of CP's own inconsistent pleaded position in Suit 528 that it only received RM7,838,558 from KBO, I find CP's belated assertion that the RM2.6 million also came from KBO rather than Tay Mary to be an unmeritorious afterthought and contrary to the evidence. Accordingly, the irresistible conclusion is that the RM2.6 million originated from Tay Mary and not KBO, thus further supporting the existence of the Oral Agreement between Tay Mary and Dato' Tan for this loan to CP. [49] I also accept Tay Mary's evidence that the term of the Oral Agreement was for CP to repay the loan upon her demand, which is consistent with the terms of her previous director's loans to KBO as reflected in its Audited Financial Statements. This is explained in more detail below. [50] In conclusion, I find that Tay Mary has established on a balance of probabilities the existence of the Oral Agreement and its key term of repayment on demand. Tay Mary’s director's loans totaling RM2,853,627 to KBO from 2003 to 2012. [51] The Plaintiff, Tay Mary, contends that she provided director's loans totalling RM2,853,627 to KBO between 2003 and 2012. CP disputes this, arguing that the funds recorded as director's loans under Tay Mary's name in fact belonged to Dato' Tan. CP alleges that Tay Mary was merely a sleeping partner or nominee in the businesses of Bina Optima and Bina Altima from which she claims the funds for the loans originated. [52] Having considered the evidence before me and the submissions of the parties, I am satisfied that Tay Mary has proven on a balance of probabilities that she did provide director's loans amounting to RM2,853,627 to KBO from 2003 to 2012. [53] Firstly, the contemporaneous documentary evidence, namely KBO's Directors' Resolutions and Audited Financial Statements, consistently recorded substantial director's loans as being owed by KBO to Tay Mary between 2003 to 2012. [54] Specifically, there were 10 Directors' Resolutions of KBO dated between 27.10.2003 to 15.12.2012 which were signed by both Dato' Tan and Tay Mary. All of these resolutions stipulated that Tay Mary had given director's loans to KBO which amounted, at the peak, to approximately RM3.7 million. The resolution dated 15.12.2012 expressly stated that the amount owed to Tay Mary as a director as at 30.6.2012 was RM2,853,627.00. [55] These Directors' Resolutions are found in Bundle B1 at pages 122 to 131, while the specific resolution dated 15.12.2012 is at page 131. [56] This documentary evidence of Tay Mary's substantial director's loans to KBO is powerfully corroborated by KBO's Audited Financial Statements for the financial years 30.6.2005 to 30.6.2014, which were also signed by both Dato' Tan and Tay Mary. The Audited Financial Statements for 30.6.2005 to 30.6.2012 confirmed that KBO had received director's loans in the total amounts stated in the corresponding KBO Directors' Resolutions. These Audited Financial Statements are exhibited in Bundle B1 at pages 132 to 208, and Bundle B6 at pages 12 to 167. [57] Notably, CP's own witness Tan Ai Lin confirmed under cross-examination that the amounts in KBO's Audited Financial Statements tallied with the information provided in KBO's Director's Resolutions. Crucially, Tan Ai Lin admitted that her father Dato' Tan would not have made any false or misleading statements in KBO's Audited Financial Statements, as seen in this extract from the Notes of Proceedings on 23.8.2023: “ND: And Ms. Tan, you are of course aware, being a director of several companies yourself, that any misstatements or false statements in financial statements are in breach of the Companies Act 2016. DW1: Yes. ND: And you've also confirmed earlier that your father would not make any false or misleading statements. DW1: Correct.” [58] The amounts recorded as director's loans owed by KBO to Tay Mary are further supported by KBO's general ledgers for the financial years ending 30.6.2009 to 30.6.2014, which corroborate that the sums stated as “Loan From Directors” in those ledgers match the figures in KBO's Directors' Resolutions and Audited Financial Statements for the corresponding years. These general ledgers are found in Bundle B6 at pages 168 to 176. [59] In Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229, Chang Min Tat FJ delivering the Federal Court's judgment held: “For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity.” [60] Applying this established principle to the present case, the clear and consistent documentary trail of KBO's Directors' Resolutions, Audited Financial Statements and general ledgers, all signed off by Dato' Tan himself over several years, constitute incontrovertible contemporaneous documents proving Tay Mary's provision of substantial director's loans to KBO. This carries far greater evidentiary weight than CP's subsequent bare allegation that the loans actually belonged to Dato' Tan, for which no credible documentary proof has been furnished. Accordingly, the contemporaneous evidence overwhelmingly supports Tay Mary's position. [61] Secondly, it is undisputed that Tay Mary was an equal partner with Dato' Tan in the profitable Bina Optima and Bina Altima partnerships. The partnership documents for Bina Optima and Bina Altima clearly show that Tay Mary and Dato' Tan each held a 50% stake in these businesses. This is evidenced by the Bina Optima partnership documents at pages 4 to 7 of Bundle B6, and the Bina Altima partnership documents at pages 8 to 11 of the same bundle. [62] Despite this, CP contended that Tay Mary was a mere sleeping partner or bare nominee in these partnerships and therefore had no right to any profits from which she could have provided loans to KBO. However, this allegation was made by CP's witness Tan Ai Lin, who by her own admission was never involved in the business of Bina Optima and Bina Altima. Crucially, Tan Ai Lin failed to substantiate her assertion that Tay Mary did not receive any income from these partnerships with any documentary proof whatsoever. [63] On the contrary, Tan Ai Lin confirmed during cross-examination that there was no evidence that Bina Optima and Bina Altima paid more money to Dato' Tan compared to Tay Mary. The relevant extract from the Notes of Proceedings on 23.8.2023 reads: “ND: Is there any document to show that Bina Optima and Bina Altima paid more money to Dato' Tan compared to the money it paid to his partner, Madam Tay? DW1: No.” [64] Far from being a sleeping partner, Tay Mary gave evidence, which I accept, of her active involvement in the partnerships' construction projects. She testified in cross-examination that she worked at the construction sites, handling matters such as ordering materials, managing workers, assisting with manual labour when required, and even doing traffic control. Her evidence in this regard is found in the Notes of Proceedings on 1.3.2022. [65] Given Tay Mary's undisputed position as an equal partner in these profitable partnerships as reflected in the contemporaneous partnership documents, I find that she did in fact have the means to provide director's loans to KBO from her share of the partnership profits, as she testified. [66] It is not disputed that Bina Optima and Bina Altima were profitable partnerships at the material time. Bina Optima and Bina Altima are partnerships that were dissolved by expiration on 1.7.2016 (some 15 months before Dato' Tan's passing) indicates that they were not wound up by reason of insolvency. It is not disputed that Bina Optima and Bina Altima were profitable partnerships, although they had not carried out revenue generating activities since 2008. [67] As an equal partner in these profitable partnerships, it is beyond dispute that Tay Mary was entitled to 50% of the income generated by Bina Optima and Bina Altima. She had every right to deal with her share of the partnerships' profits as she deemed fit, including by extending loans to KBO. This is notwithstanding CP's argument that the funds were transferred directly from the partnerships' accounts to KBO, rather than from Tay Mary's personal account. [68] There is nothing untoward about this. Tay Mary's entitlement to the partnerships' profits is not diminished merely because the funds were paid over directly to KBO instead of being first transferred into her personal account. The critical point is that the source of the funds was Tay Mary's portion of the partnerships' profits. The manner in which those funds were channeled to KBO does not change the fact that the monies belonged to Tay Mary. [69] Indeed, Tay Mary provided a reasonable explanation for this, as recorded in the Notes of Proceedings on 20.4.2022: In cross examination, the evidence was: “TAY: ... Saya tak ada macam banyak lagi. Dulu saya simpan-simpan duit semua-PR: No, no, no, no. Nanti, nanti, nanti. Nanti. Ini wang yang besar, simpan dalam syarikat, bukan simpan dalam akaun Madam. Betul? TAY: Tak ada. Simpan dalam Syarikat KBO.” [70] In re-examination, the evidence was: “ND: Madam, sekarang saya pergi kepada bahagian baharu, Madam, iaitu tentang wang Madam. Dan ini, Madam, lawyer CP ada tanya Madam bila Madam beri wang ini kepada KBO, Madam, wang, angkat wang itu dari mana untuk beri kepada KBO. Dan Madam kata 'wang itu daripada syarikat-syarikat sayalah.' Apa maksud Madam Tay bariawa itu adalah wang dari syarikat-syarikat Madam? TAY: Wang itu adalah keuntungan; keuntungan wang hak saya daripada syarikat-syarikat, keuntungan hak saya sendiri daripada Bina Optima dan Bina Altima.” [71] From the testimony, the funds Tay Mary provided as director's loans to KBO originated from her share of profits in the Bina Optima and Bina Altima partnerships, which she kept within KBO and not her personal accounts. [72] Far from undermining her claim, the fact that the monies were paid directly from the partnerships' accounts to KBO actually supports Tay Mary's narrative that these were her funds which she caused to be loaned to KBO. It is plainly more convenient for the funds to be paid over from the partnerships directly to KBO, rather than being first transferred into Tay Mary's personal account only to then be paid out again to KBO. [73] Such an arrangement is entirely consistent with Tay Mary's position as an equal partner who was entitled to the profits of Bina Optima and Bina Altima, which she then channeled directly to KBO as director's loans in order to facilitate the transaction, as clearly documented in the requisite accounting records that she signed off on. In these circumstances, I find that the mere fact that the monies were transferred directly from the partnerships to KBO does not detract from the undeniable reality that the source of those funds was Tay Mary's share of the partnerships' profits to which she was indisputably entitled to as an equal partner of these profitable businesses. [74] Further, CP has adduced no evidence whatsoever to show that Dato' Tan provided any loans to KBO after 30.6.2005. Based on KBO's Directors' Resolutions in Bundle B1, the last time a loan from Dato' Tan to KBO was recorded was in the resolution dated 12.12.2005 found at B1 page 124. In contrast, the same series of resolutions record director's loans from Tay Mary to KBO up until 15.12.2012. [75] When questioned on this glaring lack of documentary proof of direct loans from Dato' Tan to KBO after 2005, CP's witness Tan Ai Lin was unable to point to any such evidence. The relevant extract from the Notes of Proceedings on 21.8.2023 reads as follows: “ND: Do you have a document to show that he paid for his shares in KBO? I am not asking you about money from Bina Optima. I am not asking about monies from Bina Ultima. I am asking for monies that show Dato' Tan subscribed for share in KBO because neither Bina Optima or Bina Ultima are shareholders of KBO. It is on paper Dato' Tan, 50%. So, I want a document that says Dato' Tan paid for the shares. DW1: Yes, these are the documents because my father funded all these companies with his own money. ND: So, can I take it then, there is no document that shows payment by Dato' Tan in his personal capacity for these shares. These are loans, Ms. Tan, these are not payments for shares. DW1: If you allow me to clarify, yes, my father funded all the shares in KBO.” [76] It is clear from the above that when pressed to produce documentary evidence of direct payments by Dato' Tan to KBO for his shares, Tan Ai Lin could only insist, without any proof, that Dato' Tan had funded KBO through Bina Optima and Bina Altima. Crucially, Tan Ai Lin herself confirmed that these were loans to KBO from the partnerships, not direct payments by Dato' Tan for his KBO shares. [77] This is fatal to CP's case, as it is an undisputed fact that Tay Mary was an equal 50% partner in Bina Optima and Bina Altima, which CP itself describes as “profitable partnerships”. Therefore, even if one accepts Tan Ai Lin's unsubstantiated assertion that Dato' Tan funded KBO through these partnerships, the ineluctable conclusion is that he could only have done so to the extent of his 50% interest in the partnerships. The other 50% of the partnerships' loans to KBO would undoubtedly be attributable to Tay Mary. [78] Tan Ai Lin's answers, far from supporting CP's case, actually reinforces Tay Mary's position that she provided funds to KBO from her entitlement to Bina Optima and Bina Altima's profits. The fact that CP is unable to show any direct loans by Dato' Tan to KBO after 2005, and can only rely on loans from partnerships in which Tay Mary had an equal stake, coupled with the utter lack of evidence that Dato' Tan received more than Tay Mary from the partnerships, critically undermines CP's contention that the impugned director's loans to KBO came from Dato' Tan and not Tay Mary. [79] Accordingly, I find that CP has failed to discharge its evidential burden to prove that the source of funds for KBO's director's loans post-2005 was Dato' Tan. If anything, CP's own evidence points to the loans to KBO originating from Tay Mary's share of Bina Optima and Bina Altima's profits, there being no proof of Dato' Tan personally extending any loans to KBO after 30.6.2005. [80] In any event, the source of Tay Mary's director's loan to KBO is irrelevant to the present suit against CP. The court agrees with Tay Mary on this point for the reasons below. [81] First, Tay Mary has rightly pointed out that KBO itself is not a party to this suit and has raised no complaint about the source of the director's loans recorded as being from Tay Mary. The contemporaneous documents signed by Dato' Tan, such as KBO's audited financial statements and directors' resolutions, clearly record these loans as coming from Tay Mary. As KBO has accepted this, there is no need for Tay Mary to further prove the source of these loans to KBO against CP in this case. [82] Second, the court agrees that the relevant issue here is the source of the RM2.6 million loan that Tay Mary alleges she made to CP, not the earlier director's loans to KBO that formed the basis for transferring the RM2.6 million. Tay Mary has produced ample documentary evidence, including payment vouchers prepared by KBO staff, showing that the RM2.6 million transferred to CP was debited from the director's loans owed to her. The source of the RM2.6 million transferred has therefore been sufficiently established as coming from repayment of Tay Mary's loans to KBO, whatever their original source. [83] Third, it would be unreasonable to expect Tay Mary to provide detailed evidence of the original source of director's loans given to KBO approximately 20 years ago, especially when KBO itself is not disputing that the loans were from Tay Mary based on its own contemporaneous records. The focus should remain on the evidence relating to the RM2.6 million loan that is the subject matter of this suit. [84] Therefore, the court finds that while CP has raised questions about the original source of Tay Mary's loans to KBO as far back as the early 2000s, this is ultimately irrelevant to determining whether the RM2.6 million transferred to CP in 2013 constituted a loan from Tay Mary, based on the documentary evidence before the court. [85] Therefore, I find that the contemporaneous documents signed by Dato' Tan himself acknowledging the director's loans as owing to Tay Mary are compelling evidence that she did provide those loans, which remained outstanding as at 30.6.2012 in the sum of RM2,853,627. CP has failed to adduce any cogent evidence to the contrary. Accordingly, Tay Mary has established this issue. The purpose of the RM2.6 million transferred by KBO to CP in 2013 [86] CP submits that the RM2.6 million transferred by KBO to CP in 2013 did not belong to Tay Mary as repayment of any director's loans she provided to KBO. It argues that despite KBO's records showing the transfers being debited against loans under Tay Mary's name, the funds originally came from Bina Optima and Bina Altima, partnerships where Tay Mary was merely a sleeping partner. CP contends that the payment vouchers and ledger entries were prepared later in 2017 on Dato' Tan's instructions to “zeroize” the loan amounts recorded under Tay Mary's name, as the money belonged to him. Furthermore, it asserts that Law Ah Kuan's testimony corroborates that the vouchers were backdated on Dato' Tan's orders. Overall, CP maintains the documentary records do not prove the RM2.6 million was repayment to Tay Mary, but rather an internal transfer of Dato' Tan's funds. [87] Tay Mary submits that the contemporaneous documents prove the RM2.6 million transferred by KBO to CP in 2013 belonged to her as repayment of her director's loans to KBO. She contends that KBO's audited financial statements, directors' resolutions, payment vouchers and general ledgers all record the RM2.6 million being debited against the outstanding directors' loans owed to her. Tay Mary argues that these documents were executed by Dato' Tan himself, corroborating her case. Furthermore, she asserts that Tan Ai Lin's attempts to discredit the payment vouchers as being prepared later in 2017 to “zeroize” her loans are contradictory and unreliable. Overall, Tay Mary maintains that the comprehensive documentary records establish beyond doubt that the RM2.6 million transfer was a repayment of loans provided by her to KBO. [88] Having considered the evidence adduced and the submissions of the parties, I am satisfied that Tay Mary has proven on a balance of probabilities that the RM2.6 million transferred by KBO to CP in 2013 was a repayment of Tay Mary's director's loans and therefore belonged to her. [89] It is not in dispute that KBO transferred RM2.6 million to CP via twelve cheques issued between 21.1.2013 and 27.6.2013. Critically, KBO issued corresponding payment vouchers for each of these cheques, all of which were executed by Dato' Tan, that clearly recorded the payments as being “Repayments” and “Pay back” for payments to Tay Mary. [90] Tan Ai Lin's claim that these vouchers were created in 2017 to “zeroize” amounts owed to Tay Mary is not credible, given her inconsistent and shifting testimony on this issue. In Q&A 42 of her Amended Witness Statement (WS-DW1A), Tan Ai Lin initially asserted that she had only seen the payment vouchers for the first time in February 2021 when they were served in the Bundle of Documents, leading her to request an examination of the originals. However, when confronted with the evidence of Law Ah Kuan that the payment vouchers had been passed to Tan Ai Lin at the material time in 2013 to obtain Dato' Tan's approval and signature, Tan Ai Lin made an about-turn in her Supplementary Witness Statement (WS-DWB), Q&A 2 to 6, suddenly claiming that she had full knowledge of the vouchers from 2017 and had even prepared some of them on Dato' Tan's instructions. [91] Then, when pressed on the glaring inconsistencies in her testimony during cross-examination on 24.8.2023, Tan Ai Lin prevaricated and claimed that while she had indeed seen and written on the vouchers in 2017, the other details had purportedly not been filled in at that time. This is seen from the Notes of Proceedings: “ND: Ms. Tan, you say Ms. Law cheated the money but you then say she actually loaned it to someone else. DW1: That's what I got to know from my father. ND: So how did she cheat the money if she never had the money? DW1: My father put his money in her name, and she cheated the money. That's how--- ... ND: Ms. Tan, you were referred to the payments in your supplemental witness statement, you were referred to these exact vouchers, and you say in your supplemental witness statement that it was your handwriting on these vouchers. Yes or no? That is your answer to Q&A 2. DW1: That is my handwriting, but other details are not filled by me. When I give the vouchers back, it is--- when Law Ah Kuan give me the vouchers, it was empty, it only has KBO chop on it. And I only wrote those pencil markings. That is the main reason why I said I only saw these vouchers for the first time, because the other details were not filled in when I saw it.” [92] Therefore, Tan Ai Lin claimed that while she had written the particulars in pencil on the payment vouchers in 2017, the other details like dates, amounts, payee names etc. were not filled in at that time when she saw the vouchers. This is yet another material contradiction which was never mentioned in her Supplementary Witness Statement (WS-DW1B) when she first attempted to change her story. [93] Further, Tan Ai Lin's suggestion that the payment vouchers had nothing to do with CP is simply untenable and defies belief. The vouchers expressly correspond with the cheques issued by KBO to CP, which CP has admitted to receiving and encashing. It is illogical to argue that these vouchers, which on their face record the cheques as repayments of Tay Mary's loans, are completely unrelated to the recipient of those cheques. [94] Given Tan Ai Lin's inconsistent statements and the irreconcilable discrepancies in her testimony on the payment vouchers, I find her evidence on this issue to be completely lacking in credibility. I reject her belated attempt to cast doubt on these vouchers, which I find clearly evidence the fact that the RM2.6 million transferred by KBO to CP via the twelve cheques were in repayment of the director's loans owed by KBO to Tay Mary. [95] Instead, I accept the evidence of Law Ah Kuan that the payment vouchers were issued in 2013 on the instructions of Dato' Tan and Tay Mary to record the repayment of Tay Mary's director's loans by transferring the funds to CP on her behalf. Law Ah Kuan testified that she prepared the payment vouchers after receiving instructions from both Dato' Tan and Tay Mary. Law Ah Kuan explained that the RM300,000 payment voucher and cheque to CP on 21.1.2013 was done based on instructions from Dato' Tan and Tay Mary, where Dato' Tan wanted to borrow money from Tay Mary, so Tay Mary instructed Law Ah Kuan to write the cheque to CP from the amount owed by KBO to Tay Mary. Specifically, she stated in her re-examination: “ND: Ok. Thank you, Madam Law. I will now bring you to bundle B1 at page 210. This is the payment voucher for a repayment of RM300,000 to Madam Tay. And you were asked… the question was, “At 21/01/2013 the RM300,000 repayment to Madam Tay, is there a corresponding cheque to show the repayment?” And you said, “Yes, it is at page 209,” which is a cheque from KBO to CPous Sdn Bhd. Could you explain this? LAW: In the actual, the KBO is amount, is owing to Madam Tay of the sum under there. And then the arrangement by Dato' and Madam Tay said that he want to borrow money around RM2.6 million, so he already discussed. Then Madam Tay told me that whatever Dato' need the money, right from my account to repayment from my KBO account directly to CP. That's the actual thing like that.” [96] When asked about the arrangement between Dato' Tan and Tay Mary regarding these payments, Law Ah Kuan testified that the arrangement was for Dato' Tan to borrow money from Madam Tay, using whatever amount KBO owed to her. The arrangement was that whatever money Dato' Tan needed, up to the total of RM2.6 million owed to Madam Tay, Law Ah Kuan would follow Dato' Tan's instructions. Specifically, she stated in her re-examination: “ND: Ok. Thank you, Madam Law. And you were then asked, “And when you prepared these cheques, did you speak to Madam Tay or only Dato’ Tan?” And you said you spoke to both of them and you were then questioned, “And what did Madam Tay tell you?” You responded, she told you follow Dato’ Tan as he gave the arrangement already. What is this arrangement? If you are aware. LAW: The arrangement is that Dato' want to borrow money from Madam Tay. Whatever, whichever is a KBO owing to her. So, the arrangement that whatever Dato' need money, whatever the figure they give to Dato' for the RM2.6 million, total RM2.6 million then ask me to follow the Dato's instruction.” [97] When questioned in her re-examination about the series of payment vouchers at B1 pages 209-232, Law Ah Kuan confirmed that her answer regarding the RM300,000 payment applied to all those payment vouchers and cheques as well. The evidence was: “ND: Can I, just for completeness purposes, confirm that this is your answer in respect of all the payment vouchers and cheques which are exhibited at pages 209 to 232 of bundle B1? I think my learned friend has taken you to them earlier, so I won't repeat. PW3 Yes.” [98] Law Ah Kuan's testimony on the purpose of the payment vouchers is consistent with and corroborated by the contemporaneous accounting records of KBO. KBO's Audited Financial Statements for the financial year ended 30.6.2013 found at page 165 of Bundle B1 show a reduction of approximately RM2.7 million in the total director's loans compared to the previous financial year ended 30.6.2012. This reduction is only slightly more than the RM2.6 million recorded in the payment vouchers as being transferred to CP. [99] Importantly, as stated in Q&A 19 and 20 of her Witness Statement (WS-PW3A), Law Ah Kuan testified that she prepared KBO's general ledgers for the financial years 30.6.2009 to 30.6.2014. KBO's general ledger for the year ended 30.6.2013 clearly records the RM2.6 million paid to CP as debit transactions against the loan amounts owed to KBO's directors. The cheque numbers in the ledger match those in the payment vouchers. Law Ah Kuan confirmed that these entries were made on Dato' Tan's express instructions to record the payments to CP as a repayment to Tay Mary of her director's loans. Her evidence: “Q19: Where was the amount of RM2,600,000.00 recorded in KBO's general ledger for the financial year ending 30.6.2013? A19: The amount of RM2,600,000.00 was recorded in KBO's general ledger for the financial year ending 30.6.2013 as being debit transactions in repayment of loan amounts owing to KBO's directors. Q20: Why was the amount of RM2,600,000.00 recorded in KBO's general ledger for financial year ending 30.6.2013 as being debit transactions reflecting repayment of loan amounts owed to KBO's directors? A20: Dato' Tan had told me to record the amount of RM2,600,000.00 as repayment to Tay Mary for the directors' loans provided by her to KBO. Therefore, I had recorded the amount of RM2,600,000.00 as debit transactions in the general ledger for financial year ending 30.6.2013 for loan amounts owed to KBO's directors.” [100] Further, in WS-PW3B: “Q8: At Q&A6 of your Witness Statement, you had stated that you had helped out with the bookkeeping and administrative work of CP from 26.9.2008 until the passing of Dato' Tan. Please refer to CBOD 1 pages 243 and 244. Can you please explain these payments purportedly made by CP to Madam Tay? A8: Around June 2010, CP, through Dato' Tan, had obtained a loan of approximately RM2,000,000.00 from Madam Tay. This is a separate loan from the loan of RM2,600,000.00 which Madam Tay had provided to CP, via KBO in 2013, is the repayment of which is being claimed by Madam Tay in this action.” [101] Therefore, the objective documentary evidence in KBO's audited financial statements and general ledgers strongly supports Law Ah Kuan's testimony that the payment vouchers were genuine documents issued in 2013 to record the repayment of director's loans owed by KBO to Tay Mary via the transfer of RM2.6 million to CP on her behalf. Law Ah Kuan's evidence on this issue is credible and reliable, and I accept the same. [102] Crucially, CP's attempt to characterise the RM2.6 million as part of a loan from KBO is inconsistent with its own pleaded case in Suit 528. In its defence in those proceedings, CP asserted that it only received RM7,838,558 from KBO, which Tan Ai Lin confirmed in cross-examination did not include the RM2.6 million. CP has not provided any cogent explanation for this discrepancy. Further, despite admitting to receiving the RM2.6 million, CP failed to adduce any evidence as to how this substantial sum was recorded in its own accounts. I draw an adverse inference from this failure, which leads me to conclude that CP's financial records would not support its contention that the RM2.6 million was a loan from KBO. [103] Therefore, I find that the available evidence, in particular the clear terms of the contemporaneous payment vouchers and accounting records, establishes that the RM2.6 million transferred by KBO to CP in 2013 was a repayment of director's loans owed to Tay Mary and thus belonged to her. CP has not shown that this amount was part of the CIMB Term Loan or any inter-company arrangement. Accordingly, Tay Mary succeeds on this issue. The terms of repayment of the RM2.6 million loan from Tay Mary to CP [104] CP submitted that the Oral Agreement between Tay Mary and the late Dato' Tan on behalf of CP was not proven, in particular the term that the alleged loan of RM2.6 million was repayable on demand. CP contended that save for Tay Mary's own testimony, there was no other evidence that the alleged loan was agreed to be repayable on demand. CP highlighted that when Tay Mary first informed CP of the purported existence of the alleged loan by letter dated 17.9.2019, there was no mention that it was repayable on demand. This term only surfaced in Tay Mary's letter of demand dated 13.1.2020, which Tay Mary admitted was prepared by her son, Tan Tiang Ee. As such, CP submitted this was an afterthought concocted by Tay Mary and her sons. [105] CP further submitted that Tay Mary's pleaded case at paragraph 9 of the Statement of Claim, that it was agreed the alleged loan would be repaid upon Tay Mary's demand, was inconsistent with Tay Mary's submission that there were no fixed terms of repayment. CP argued this was irreconcilable as either there was a term of repayment or there was not. CP also submitted that where there is no fixed repayment term, the loan would only be repayable within a reasonable time and not immediately upon demand. [106] Tay Mary in response submitted that it was not in dispute CP received 12 cheques from KBO totalling RM2.6 million. Tay Mary's evidence was that she had instructed KBO, via her daughter-in-law Law Ah Kuan, to issue these cheques to CP on Dato' Tan's instructions. Tay Mary highlighted CP's main witness Tan Ai Lin's evasive answers during cross-examination, where she refused to directly answer that there was no requirement for Tay Mary to make the loan in one instalment, despite admitting CP had received a separate loan from KBO via instalments without issue. [107] Having already found that the Oral Agreement has been established, I now turn to consider whether Tay Mary has proven that the agreement provided for the RM2.6 million loan to be repayable on demand. [108] Tay Mary's testimony was clear and consistent that she had agreed to provide the loan to CP on the condition that it would be repaid to her upon her demand for repayment, as no fixed repayment schedule was set. Her evidence in WS-PW1A: “S13. Apakah perjanjian anda dengan Dato’ Tan atas pinjaman RM2,600,000.00 kepada CP/Palm Mall? J13. Ia telah dipersetujui antara saya dan Dato' Tan bahawa pinjaman RM2,600,000.00 tersebut akan dibayar balik oleh CP/Palm Mall kepada saya apabila saya tuntut wang tersebut.” [109] Under cross-examination, Tay Mary maintained this position when she explained that there were no fixed repayment terms for the loan to CP as it was an arrangement between family members, and that repayment would be made upon her demand. Tay Mary’s evidence in cross-examination is she cannot demand repayment of the entire loan amount at once, as it is a family business loan without any fixed terms. Her evidence is: “PR: Mengapa you hanya tuntut RM2.6 juta? Mengapa you tak tuntut semua sekali? TAY: Saya tak boleh tuntut semua lagi. Pinjaman keluarga saya, business keluarga saya. Bila saya tak keluarkan, macam business keluarga saya, anak-anak saya dulu, tak boleh berkembang, tak boleh menjadi kaya.” [110] Importantly, I find that this term is supported by the available documentary evidence. The previous director's loans given by Tay Mary to KBO, as recorded in its Audited Financial Statements, similarly did not provide for any fixed repayment dates and were thus in effect repayable on demand. Given that it is not disputed the RM2.6 million was advanced by KBO to CP on Tay Mary's behalf as a repayment of her director's loans to KBO, it is inherently probable that the same repayment term would apply to the sum now owed by CP to Tay Mary. [111] I find it wholly unsurprising that the loan to CP would be on similar terms as this was in effect a continuation of Tay Mary's financial assistance, structured as director's loans to KBO which were then repaid to CP on her behalf. The repayment on demand term is also commercially logical as CP was facing financial difficulties at the time and required the RM2.6 million as financial assistance from Tay Mary. In those circumstances, it would make little sense for Tay Mary to agree to a fixed repayment term. The flexibility of a repayment on demand term was clearly to her benefit. [112] While CP points out that Tay Mary's initial letter dated 17.9.2019 to CP and its accountant asserting the existence of the loan did not stipulate that it was repayable on demand, this does not in my view detract from the consistency of Tay Mary's evidence as to the agreed term. The letter, which was not a formal demand for repayment, does not purport to set out all the terms of the Oral Agreement. I do not find the omission of reference to the repayment term in this letter to be material. [113] I am mindful of the line of authorities cited by CP such as Kathryn Ma Wai Fong (f) v WTK Realty Sdn Bhd [2015] MLJU 361 (HC) and Riders Lodge Sdn Bhd v Tropik Sentosa Sdn Bhd & Anor [2020] MLJU 1598 (HC) which suggest that where there is no agreed repayment term, the court may imply that repayment be made within a reasonable time. However, this does not assist CP. The present facts are clearly distinguishable. Tay Mary did not merely plead that there was no fixed repayment date. She specifically pleaded and testified that the agreed term was for repayment upon her demand. In my view, this is sufficient to exclude any implication of a reasonable time for repayment. Her evidence on this was not seriously challenged and I find no reason to disbelieve her. [114] Further, I do not consider the case of Tan Leng Keat v Kayangan Mutiara Sdn Bhd [2019] MLJU 1026 (HC) cited by CP to be applicable in the present case. The court rejected the plaintiff's claim that repayment was subject to a notice, as this contradicted the company's audited financial statements showing the loan had no fixed repayment term. This is distinct from the present case where I find there was a clear agreement for repayment on demand. As such, Tay Mary's claimed repayment term is not inconsistent with the agreement. [115] In conclusion, I am satisfied that Tay Mary has established on a balance of probabilities that the Oral Agreement contained a term that the RM2.6 million loan would be repaid by CP upon Tay Mary's demand. Tay Mary therefore succeeds on this issue. Satisfaction of the elements of unjust enrichment of CP in respect of the RM2.6 million [116] CP submits that the elements for unjust enrichment have not been satisfied by Tay Mary. It argues that Tay Mary failed to prove her source of funds for the alleged RM2.6 million loan, meaning CP was not enriched at her expense. CP contends that Tay Mary also did not establish the loan was repayable on demand. Furthermore, it asserts there is evidence of an intercompany arrangement between CP and KBO to repay the CIMB Term Loan, for which the RM2.6 million transfer was part of. Overall, CP maintains Tay Mary cannot rely on the doctrine of unjust enrichment or Section 71 of the Contracts Act to recover the RM2.6 million as she failed to prove the required elements. [117] Tay Mary submits that CP has been unjustly enriched by receiving the RM2.6 million loan from her. She argues that the contemporaneous documents establish CP received the RM2.6 million which was debited against the director's loans owed to her by KBO. Tay Mary contends that by retaining the RM2.6 million without repaying her, CP has been enriched at her expense unjustly. Furthermore, she asserts that CP has failed to plead or provide any defense to extinguish its liability to restitute the RM2.6 million to her. Overall, Tay Mary maintains that the four elements for unjust enrichment have been satisfied, entitling her to restitution of the RM2.6 million loan from CP under Section 71 of the Contracts Act 1950. [118] The Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 authoritatively set out the elements that must be established for a claim in unjust enrichment: (a) that the defendant has been enriched; (b) the enrichment was gained at the plaintiff's expense; (c) the retention of the benefit by the defendant is unjust; and (d) there is no defence available to extinguish or reduce the defendant's liability to make restitution. Applying these principles to the evidence before me, I am satisfied that Tay Mary has made out her claim for unjust enrichment. [119] First, CP has plainly been enriched by the receipt of RM2.6 million from KBO, a fact it does not dispute. This enrichment was undoubtedly at Tay Mary's expense. I have found that the contemporaneous evidence, in particular KBO's payment vouchers and accounting records, establishes that the RM2.6 million transferred to CP was a repayment of Tay Mary's director's loans. The sums therefore originated from Tay Mary and were transmitted to CP for her benefit. There is no credible evidence that the RM2.6 million was part of the CIMB Term Loan or any wider inter-company arrangement, especially given CP's own inconsistent position on this issue in Suit 528. [120] In the circumstances, it is clearly unjust for CP to retain the benefit of the RM2.6 million. CP would be obtaining an unwarranted windfall if it is allowed to keep the funds which rightfully belong to Tay Mary and were transferred to CP on the basis of an obligation to repay the same to her. [121] Finally, CP has not raised any valid defence to counter Tay Mary's claim in unjust enrichment. The bare allegation that the enrichment was not at Tay Mary's expense as the money belonged to Dato' Tan has not been made out, for the reasons I have articulated above. Similarly, the assertion that the transfer of the RM2.6 million is subject to an inter-company loan repayment arrangement between KBO and CP remains unproven, particularly since CP itself did not plead or adduce any evidence of such an arrangement in respect of this specific sum in the present proceedings. [122] Indeed, CP's failure to provide any evidence to show how it recorded the receipt of the RM2.6 million in its own accounts leads to an adverse inference that its financial documents would not support its defence to the unjust enrichment claim. As held in Pioneer Conglomerate Sdn Bhd v Tenggara Kapital Sdn Bhd [2023] 5 MLJ 581, where a defendant fails to produce positive evidence within its custody and control to prove a particular fact it asserts, the burden of proof shifts and an adverse inference may be drawn against it. This principle applies in CP’s defence to the unjust enrichment claim. [123] I further find there was no bona fide change of position or other defences raised by CP that would make it inequitable for restitution to be granted. CP clearly received the benefit of the RM2.6 million from Tay Mary via KBO, and justice requires that this benefit be returned to Tay Mary. [124] For all the above reasons, I am amply satisfied that Tay Mary has proven that CP has been unjustly enriched at her expense in respect of the RM2.6 million, with no defence available to CP to avoid liability to make restitution. Accordingly, pursuant to Section 71 of the Contracts Act 1950, CP is obliged to repay the said sum to Tay Mary. Judgment is entered for Tay Mary on this issue. The family conflict between Dato' Tan’s extended family and his immediate family [125] CP argued that there was a family conflict between Dato' Tan and Tay Mary as well as Dato' Tan's sister-in-law, Law Ah Kuan in 2012 over alleged monetary disputes. CP contended that the existence of this 2012 family conflict meant it was improbable that Dato' Tan would have requested loans from Tay Mary in 2012. [126] CP highlighted that Tay Mary had initially disagreed with the suggestion that Dato' Tan was angry with Law Ah Kuan and her husband over the dispute, and that Dato' Tan was distant with Tay Mary between 2012 to 2015 as he believed she was taking Law Ah Kuan's side. However, when confronted with her alleged previous testimony in KLHC Civil Suit No. WA-22NCvC-662-10/2018 (“Suit 662”), CP argued that Tay Mary changed her evidence and agreed that Dato' Tan was angry with Law Ah Kuan/her husband, and became distant from Tay Mary, only reconciling after his father's passing in 2015. [127] CP also pointed to Law Ah Kuan's admission under cross-examination that there was a dispute with Dato' Tan, albeit over a lesser sum than the RM30 million initially suggested by counsel. [128] Therefore, CP submitted that the existence of this 2012 family conflict and the distance between Dato' Tan and Tay Mary until 2015 supported its case that the Oral Agreement for the loan was not entered into in 2012 and had been fabricated by Tay Mary after Dato' Tan's passing. [129] Tay Mary argues that CP's allegations about a family conflict or dispute between Dato' Tan and Law Ah Kuan is merely a red herring - an irrelevant and distracting side issue raised by CP. Tay Mary contends that CP sought to lead evidence about this alleged conflict, but did not provide any documentary evidence to substantiate the details of the purported dispute. [130] Furthermore, Tay Mary points out that Tan Ai Lin's own testimony undermines CP's position on this matter. Tan Ai Lin confirmed under cross-examination that despite alleging Law Ah Kuan had stolen RM30 million from Dato' Tan, he did not lodge any police report or commence legal proceedings against her. Tan Ai Lin also admitted that Dato' Tan continued trusting and engaging Law Ah Kuan to manage the accounts of his companies even after this supposed dispute. [131] Tay Mary highlights that Tan Ai Lin's evidence that Law Ah Kuan had cheated Dato' Tan's money but then also loaned it out to others was contradictory. Based on these factors, Tay Mary argues that the alleged conflict between Law Ah Kuan and Dato' Tan is an unsubstantiated red herring that does not detract from the contemporaneous documentary evidence showing Tay Mary did in fact provide the RM2.6 million loan to CP. Tay Mary dismisses this issue as irrelevant to the main subject matter of the loan. [132] Having considered the evidence and the parties' respective submissions on this issue, I find that the alleged family conflict between Dato' Tan and Law Ah Kuan in the 2012- 2015 period does not materially detract from or undermine the credibility of Tay Mary's evidence that the Oral Agreement for the RM2.6 million loan was entered into in 2012. [133] While I accept that there was a monetary dispute between Dato' Tan and Law Ah Kuan/her husband during that period, the evidence falls short of establishing that this caused such a severe estrangement between Dato' Tan and Tay Mary that he would not have approached her for financial assistance for CP in 2012. Tay Mary's initial testimony was that Dato' Tan was not angry with her and continued to see her, albeit less frequently, during this time. It was only upon being pressed by counsel and referred to her purported testimony in Suit 662 that Tay Mary conceded Dato' Tan was “kurang rapat” with her until 2015. However, Suit 662 is a separate proceeding and without being provided with the full context of that testimony, I am unable to place much weight on this purported prior inconsistency. [134] Importantly, the mere fact that a dispute existed between Dato' Tan and Law Ah Kuan does not necessarily mean that his relationship with Tay Mary was so irreconcilably damaged that he could not have sought her assistance for CP in 2012. Family disputes, even acrimonious ones, do not automatically preclude all financial dealings between the family members. Here, it is significant that Tay Mary is Dato' Tan's mother. Their bond would arguably be stronger and more resilient than his relationship with his sister-in-law Law Ah Kuan. The fact that Dato' Tan still met with Tay Mary during this period, even if less regularly, suggests that the lines of communication between them remained open. [135] CP's argument also does not account for Dato' Tan's role as a director and shareholder of CP. Even if his personal relationship with Tay Mary was strained, it is entirely conceivable that he would put aside those differences for the benefit of CP which was in dire need of funds at the time. As noted in Q&A 5 of Tay Mary's Witness Statement, the financial assistance she extended to CP was premised on Dato' Tan's request in his capacity as a director and shareholder of CP. In these circumstances, the degree of estrangement between Dato' Tan and Tay Mary in their personal capacities is less material than his responsibilities and actions as a director of CP. [136] Therefore, while I recognise that a dispute existed between Dato' Tan and Law Ah Kuan in 2012 to 2015, I am not persuaded that this necessarily leads to a finding that the Oral Agreement could not have been entered into in 2012 as Tay Mary testified. The personal strain between Dato' Tan and Tay Mary needs to be balanced against his responsibilities as a director of CP which required him to seek funding assistance, from whatever source, at a time when CP was in financial difficulty. When viewed against the overall evidence, I find that the family conflict does not sufficiently undermine the credibility of Tay Mary's evidence regarding the Oral Agreement such as to render her claim unbelievable. Accordingly, I conclude that Tay Mary has the better of this issue and I reject CP's contention that the family dispute precludes the existence of the Oral Agreement in 2012. Tay Mary’s alleged collateral purpose in filing this suit [137] CP submitted that the present suit was initiated for a collateral purpose due to the family dispute between Dato' Tan's extended family (Tay Mary and his brothers) and his immediate family (wife and daughters), stemming from the filing of Suit 662. In October 2018, Tay Mary and Desaminium Jaya Sdn Bhd through Suit 662 challenged the validity of Dato' Tan's Will. Dato' Tan's immediate family were named as the 1st to 4th Defendants therein. After Dato' Tan's passing, control of KBO was taken over by Tay Mary and her sons, Tan Tiang Ee and Tan Tiang Kee, who were appointed as additional directors of KBO on 23.5.2019. CP contended that immediately after the additional directors were appointed, KBO ceased its monthly repayments towards the CIMB Term Loan pursuant to an alleged intercompany arrangement. On 30.10.2020, KBO filed Suit 528 against CP and CP Utilities Sdn Bhd to demand the sum of RM14,241,558.00 (RM16,841,558.00 minus RM2.6 million). Simultaneously, Tay Mary filed the present suit, demanding RM2.6 million. CP thus argued that the filing of this suit appears to be a coordinated attempt by Dato' Tan's extended family to file suits against the immediate family. [138] In response, Tay Mary submitted that CP's assertion was nonsensical as CP is not a party to any other proceedings beyond Suit 528 and the present suit. Furthermore, an analysis of the various suits between Dato' Tan's immediate family and his mother/siblings shows that the majority were initiated by Dato' Tan's immediate family. This was admitted by CP's witness Tan Ai Lin under cross-examination. Out of 6 proceedings, only one was filed by Tay Mary. Tay Mary argued that if Tan Ai Lin takes the position that the 5 suits lodged by her and/or her immediate family are to protect their interests, then Tay Mary is equally entitled to initiate the present proceedings to recover a loan made by her to KBO, which is supported by contemporaneous documents. [139] Having considered the submissions of both parties and the evidence adduced, I find that Tay Mary's claim was not initiated for any collateral or improper purpose. The mere fact that there are multiple ongoing suits between family members does not ipso facto mean that the present claim by Tay Mary is vexatious or an abuse of process. Each claim must be assessed on its own merits based on the pleadings and evidence presented. [140] CP has not adduced any cogent evidence to show that the present suit is frivolous, vexatious or an abuse of process. CP's contention that the present suit was filed as a coordinated attempt against Dato' Tan's immediate family is speculative and unsupported by evidence. On the contrary, based on the testimony of CP's own witness Tan Ai Lin, it appears that the majority of suits were in fact initiated by Dato' Tan's immediate family against Tay Mary. If Tan Ai Lin believes that those suits were filed to protect the Immediate Family's legitimate interests, then there is no reason why Tay Mary should be barred from similarly initiating a claim to recover monies which she contends is rightfully owed to her. [141] Upon examining Tay Mary's pleaded case and the supporting evidence, I am satisfied that Tay Mary's claim is properly constituted and supported by contemporaneous documentary evidence including directors' resolutions, accounting records and correspondence. Tay Mary should be afforded the opportunity to ventilate her grievances and have her claim adjudicated by this court. CP has not shown any exceptional circumstances that would warrant striking out Tay Mary's claim on the grounds of being frivolous, vexatious or an abuse of process. [142] In the circumstances, I find no merits in CP's contention that the present suit was filed for a collateral purpose of retaliating against Dato' Tan's immediate family. On the contrary, the evidence suggests that it is part of a larger family dispute where multiple law suits have been filed by both sides of the family. Be that as it may, this court must deal with Tay Mary's claim based on its factual and legal merits, and not be distracted by the motivations and disputes between the feuding family members. Law Ah Kuan’s letter to Maybank dated 1.1.2018 [143] CP was relying on the letter dated 1.1.2018 purportedly issued by Law Ah Kuan to Maybank to support its contention that the fixed deposit of RM5 million placed in Law Ah Kuan's name with Maybank actually belonged to Dato' Tan and not Tay Mary. [144] According to CP, the 1.1.2018 letter was a request by Law Ah Kuan to Maybank to set off the fixed deposit of RM5 million against Dato' Tan's outstanding overdraft facility with the bank. CP argued that this showed the RM5 million was in fact Dato' Tan's money which he had placed in Law Ah Kuan's name, and Law Ah Kuan was authorised to utilise those funds to settle Dato' Tan's liabilities. [145] CP sought to rely on this to support its broader assertion that Dato' Tan had a practice of placing his own monies under other people's names, including Tay Mary's. By extension, CP contended that the director's loans recorded in KBO accounts as owing to Tay Mary were actually Dato' Tan's funds that he had parked under his mother's name. [146] CP's reliance on the 1.1.2018 letter was therefore part of its overall attempt to show that Dato' Tan was the true source of funds in KBO and CP, and that Tay Mary was merely a nominee who did not actually extend any loans to these companies. The letter was intended to bolster CP's narrative that Dato' Tan was in the habit of using nominees to hold his monies. [147] However, Tay Mary called Kuan Ting Soon (PW2) to testify that Maybank had no record of ever receiving the 1.1.2018 letter, and there was no evidence of such a letter in the bank's files. PW2, as the branch manager of Maybank's Taman Tun Dr Ismail branch, testified that there was no evidence of Maybank ever receiving the said letter. [148] Kuan's testimony was in response to Law Ah Kuan's evidence that she had no knowledge of issuing the 1.1.2018 letter until it was produced by CP in these proceedings. To verify Law Ah Kuan's position, Tay Mary issued a subpoena to PW2 to produce the relevant documents from Maybank's records. [149] In his testimony, PW2 confirmed that he had conducted a search of Maybank's records upon receiving Law Ah Kuan's letter dated 16.8.2021 enquiring about the existence of the 1.1.2018 letter. Following his search, PW2 issued a letter dated 2.9.2021 to Law Ah Kuan confirming that Maybank had no record of receiving the 1.1.2018 letter and that there was no evidence of the said letter in Maybank's files. [150] This was consistent with Law Ah Kuan's evidence that she did not issue any such letter and had no knowledge of it until it was produced by CP in these proceedings. [151] By establishing that the 1.1.2018 letter was never received by Maybank and did not exist in its official records, Tay Mary successfully rebutted CP's attempt to rely on the letter to support its case. Tay Mary successfully established that the letter was a fraudulent document fabricated to bolster CP's untenable position. The court will not give any weight to the letter and CP’s allegations about Dato' Tan's use of nominees is still unproven. [152] On the issue of PW2’s credibility CP's position regarding the credibility of PW2 can be summarised as follows: a) PW2's evidence regarding the 1.1.2018 letter is hearsay as he only became the branch manager in September 2018 and had no personal knowledge. He merely checked with the previous branch manager Mdm Kong who also lacked personal knowledge. b) PW2 did not seem to fully understand the contents of the 2.9.2021 letter he issued, for example being unable to explain the meaning of “without prejudice” used in the letter. This raises doubts about how the letter was prepared. c) PW2 admitted the 2.9.2021 letter was drafted with assistance from the bank's legal department but he was unable to identify the legal officer involved. d) Despite being subpoenaed to produce all relevant documents, PW2 only selectively produced the original 2.9.2021 letter in court as he was allegedly “told” to only bring that letter. e) The original 2.9.2021 letter produced in court differed from the copy in the bundle of documents, as it contained an acknowledgment from Law Ah Kuan while the copy did not. [153] Therefore, CP argued that PW2 is not a credible and independent witness as his evidence is hearsay, he did not disclose all relevant documents, was instructed to only produce a particular letter, and was not forthcoming about his meetings with Tay Mary's son and daughter-in-law. [154] On the other hand, Tay Mary submitted that PW2 is an independent and credible witness. Despite being subjected to rigorous cross-examination, PW2 answered honestly based on the information and documents in his possession. CP never called any witness from Maybank to rebut PW2's testimony. [155] Having considered the rival submissions, I found that PW2's evidence is credible and ought to be accepted for the following reasons: [156] PW2's evidence that Maybank has no record of receiving the 1.1.2018 letter is based on his check of the bank's records upon receiving Law Ah Kuan's enquiry letter dated 16.8.2021. The fact that he had no personal knowledge of events prior to becoming branch manager in September 2018 does not render his evidence of searching the bank records inadmissible hearsay. [157] While PW2 may have been assisted by the bank's legal officer in drafting the 2.9.2021 reply letter, this is not unusual and does not by itself cast doubt on the veracity of the letter's contents. PW2 confirmed the accuracy of the letter under oath. [158] PW2's inability to recall the name of the legal officer is unsurprising given the passage of time. This minor lapse in memory does not significantly impact his overall credibility on the material issue of whether Maybank received the 1.1.2018 letter. [159] The difference between the original 2.9.2021 letter and the copy in the bundle of documents is immaterial. The key point is PW2's confirmation that the bank did not receive the 1.1.2018 letter based on its records. [160] Most importantly, CP did not call any witness from Maybank to contradict PW2's evidence despite the opportunity to do so. In the absence of contrary evidence, PW2's testimony that Maybank did not receive the 1.1.2018 letter stands unchallenged. [161] In conclusion, I accept PW2 as a credible witness and I found that his evidence supports Tay Mary's case that Maybank did not receive the 1.1.2018 letter allegedly issued by Law Ah Kuan. CP's attempt to discredit PW2 is unpersuasive in light of the totality of the evidence. Credibility of Tan Ai Lin as a witness [162] CP submits that Tan Ai Lin is a reliable and credible witness, whose evidence should be accepted by this court. CP contends that Tan Ai Lin had personal knowledge of the lack of any loan given by Madam Tay Mary to CP, as Tan Ai Lin was involved in assisting her father Dato' Tan in his businesses from 2012 onwards, including the construction of Palm Mall and Palm Seremban Hotel undertaken by the CP Group. [163] CP argues that Tan Ai Lin's testimony that Dato' Tan told her there were no loans from Madam Tay is reliable, as Tan Ai Lin worked closely with her father for about six years so that she could learn and eventually take over the business from him. CP points out that Tan Ai Lin was truthful in her testimony and did not seek to embellish or speculate to further CP's case. Where she was unable to speak on behalf of her late father, such as on the reason for his resignation as director of KBO, Tan Ai Lin candidly stated so instead of concocting an answer. [164] CP maintains that Tan Ai Lin's evidence on the payment vouchers and her late father's practice of placing monies under Madam Tay's name is consistent with the objective evidence showing that Dato' Tan was the true funder of KBO and CP. CP submits that Tan Ai Lin has proven herself to be a truthful witness and any minor discrepancies in her testimony do not detract from her overall credibility. [165] On the other hand, Tay Mary argues that Tan Ai Lin is an evasive and unreliable witness, whose evidence is riddled with inconsistencies and contradictions that fatally undermine her credibility. Tay Mary contends that Tan Ai Lin has demonstrated a lack of personal knowledge of material issues, and her testimony is based on bare assertions of what her late father purportedly told her, without any documentary evidence to substantiate her claims. [166] Tay Mary submits that Tan Ai Lin's account of the payment vouchers being prepared in 2017 to “zero out” the director's loans is illogical and contradicted by the contemporaneous documents showing actual payments by KBO to CP which were debited against Madam Tay's loans. Tay Mary argues that Tan Ai Lin's conflicting testimony on the alleged family conflict in 2012, her interactions with Madam Tay after her father's passing, and her inability to substantiate her claims of Dato' Tan solely funding KBO and CP all point to her being an untruthful witness. [167] Tay Mary maintains that Tan Ai Lin's evidence must be viewed with great caution given her clear motive to mislead the court to preserve CP's unjust enrichment. Tay Mary highlights Tan Ai Lin's central role in CP taking inconsistent positions on the quantum of funds received from KBO in Suit 528 and relying on a fraudulent letter purportedly issued by Law Ah Kuan. Tay Mary submits that the material inconsistencies and contradictions in Tan Ai Lin's testimony render her an unreliable witness whose evidence should be rejected. [168] Having considered the diametrically opposing submissions on Tan Ai Lin's credibility, I find that Tay Mary's arguments are more persuasive and better supported by the evidence. Applying the principles set out in Protasco Bhd v PT Anglo Slavic Utama & Ors [2023] MLJU 2435 on assessing witness credibility, I conclude that Tan Ai Lin's testimony is not reliable for the following reasons. [169] Firstly, despite asserting personal knowledge from her involvement in her father's businesses from 2012, Tan Ai Lin was unable to produce any credible evidence to corroborate her claims that Dato' Tan was the true source of funds in KBO and CP. Her bare assertions of what Dato' Tan purportedly told her are contradicted by the contemporaneous documents such as KBO's audited financial statements, directors' resolutions and general ledgers recording director's loans from Madam Tay. Tan Ai Lin's attempts to explain these discrepancies by suggesting that Dato' Tan had a habit of placing monies in Madam Tay's name are unsubstantiated and illogical. [170] Secondly, I find Tan Ai Lin's testimony on the payment vouchers to be highly suspect. Her initial denial of knowledge of the vouchers, followed by an abrupt change in story after being confronted with evidence from Law Ah Kuan, strongly suggests a lack of candour. Tan Ai Lin's claim that the vouchers were prepared in 2017 to “zero out” the director's loans recorded under Madam Tay's name is inconsistent with the documentary trail showing actual payments by KBO to CP. Her belated attempt to justify this by asserting that Madam Tay never gave any loans to KBO is a bare allegation devoid of documentary proof. [171] Thirdly, the material inconsistencies in Tan Ai Lin's testimony on the alleged family conflict between Dato' Tan and Law Ah Kuan in 2012, as well as her inconsistent account of interactions with Madam Tay after Dato' Tan's passing, further undermine her credibility. Tan Ai Lin's convenient shifts in position when confronted with contrary evidence demonstrate a propensity to mould her testimony to suit her narrative. [172] Fourthly, I find it telling that Tan Ai Lin was evasive during cross-examination and repeatedly fell back on stock answers that she was unable to speak for her late father whenever confronted with difficult questions. While the court appreciates the difficulty of testifying on behalf of a deceased person, Tan Ai Lin's selective assertions of what Dato' Tan allegedly told her, without any documentary substantiation, raise serious doubts over her truthfulness. [173] Finally, I cannot ignore the fact that Tan Ai Lin has a clear motive to mislead the court, as a dismissal of Madam Tay's claim would result in a windfall for CP which is controlled by Tan Ai Lin's family. This motive to mislead is evident from CP's unexplained shift in position on the quantum of funds received from KBO in Suit 528, as well as its reliance on a dubious letter dated 1.1.2018 which has been disclaimed by both Law Ah Kuan and Maybank. Tan Ai Lin's key role in both these developments raises grave reservations over her credibility. [174] Therefore, having carefully weighed the parties' submissions in light of the evidence, I find that Tan Ai Lin is not a credible witness. I accept Tay Mary's contention that Tan Ai Lin's testimony is riddled with too many material inconsistencies and contradictions to be reliable. Her bare assertions are not only uncorroborated by the documentary evidence but in fact directly contradicted by it. Accordingly, I place little weight on Tan Ai Lin's testimony. Tay Mary has successfully impugned her credibility through meticulous cross-examination and comparison against the objective evidence. Consequently, CP's attempts to portray Tan Ai Lin as a truthful witness are unpersuasive and must fail. Credibility of Tay Mary as a witness [175] CP submits that any lapses in memory or inability by Madam Tay Mary to explain matters clearly should be held against her, implying that this affects her credibility as a witness. CP highlights that Tay Mary was subjected to five days of examination across three and a half months, which would have caused significant stress to any witness, more so for one of Tay Mary's age and educational background. [176] On the other hand, Tay Mary contends that Tay Mary's credibility ought not to be attacked or discredited on account of her educational background. Tay Mary refers to Sarkar, Law of Evidence in India, Pakistan, Bangladesh, Burma, Ceylon, Malaysia & Singapore, Malaysia Edition, Vol. which states that where witnesses are rustic villagers, it is but natural that there may be some discrepancy in their evidence and a rustic witness cannot always be expected to have an alert mind so as to be able to answer all questions such as directions, area, and distance with precision. [177] Tay Mary also cites the Indian Supreme Court decision of The State of Uttar Pradesh v Krishna Master & Ors (Criminal Appeal No. 1180 of 2004) where it was observed that a rustic witness subjected to gruelling cross-examination for days together is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to gruelling cross-examination should not be blown out of proportion. [178] I have given due consideration to the submissions of both parties. I bear in mind that Tay Mary is over 80 years of age, has little formal education, and requires assistance in understanding written materials. These are relevant factors in assessing her testimony, as rightly pointed out by Tay Mary. The law recognises that some discrepancies are to be expected when a witness of limited educational background is subjected to lengthy and gruelling cross-examination, and such discrepancies should not be given undue weight if the witness' evidence is otherwise reliable. [179] Viewed in totality, I find Tay Mary to be a credible witness despite her age and lack of formal education. While her testimony may at times have been unclear or inconsistent on minor details, her evidence on the material issues has remained cogent and unwavering. Crucially, the key aspects of her testimony are corroborated by the contemporaneous documentary evidence. [180] Tay Mary's evidence that she had provided director's loans to KBO which were repaid in 2013 by transferring RM2.6 million to CP is supported by KBO's audited financial statements, directors' resolutions, general ledgers and payment vouchers showing the flow of funds. Her explanation that the source of her loans to KBO was from her share of profits in the Bina Optima and Bina Altima partnerships, where she was an equal partner with her eldest son Dato' Tan, is consistent with the documentary records of her 50% interest in those businesses. [181] While Tay Mary, as a layperson, may not be able to perfectly articulate the technicalities of how she provided the director's loans to KBO, what emerges clearly is that she had the means to do so from her involvement in various profitable construction businesses, and this is borne out by the objective documentary evidence. Her inability to recall the precise amounts in her multiple fixed deposit accounts during cross-examination is understandable given her age and the passage of time, and does not detract from the veracity of her testimony as a whole. [182] I find it significant that CP has not impugned the authenticity of the contemporaneous documents supporting Tay Mary's evidence, but merely sought to advance a bare assertion that the director's loans recorded under her name actually belonged to Dato' Tan. However, this assertion is devoid of any documentary proof. CP's attempt to portray Tay Mary as a mere housewife by relying on a Borang Soal Keselamatan (JKR Form) from the 1980s is unpersuasive, as this information is outdated and fails to account for Tay Mary's active involvement in Bina Optima, Bina Altima and other construction projects from the 1990s onwards. Tay Mary's testimony of her varied roles at construction sites, including supervising workers, managing invoices and orders, and even controlling traffic, was not seriously challenged. [183] Therefore, having carefully evaluated the evidence in totality, I accept Tay Mary as a witness of truth. Tay Mary has established on a balance of probabilities that Tay Mary had given director's loans to KBO which were subsequently repaid by transferring RM2.6 million to CP in 2013. Tay Mary's testimony is credible as it is corroborated by the objective documentary trail and has not been displaced by CP's unsubstantiated assertions. Accordingly, I find no reason to doubt Tay Mary's credibility as a witness. Conclusion [184] Having evaluated all the evidence and considered the submissions of both parties, I am satisfied that Tay Mary has proven her claim against CP on a balance of probabilities. The contemporaneous documentary evidence, particularly KBO's payment vouchers, accounting records and audited financial statements, clearly establishes that the RM2.6 million transferred to CP in 2013 constituted a repayment of director's loans owed by KBO to Tay Mary. CP's bare assertions that the funds belonged to Dato' Tan are unsubstantiated and contradicted by the objective evidence. Accordingly, CP has been unjustly enriched at Tay Mary's expense and must make restitution. [185] I therefore order that: a) CP pay/make restitution of RM2.6 million to Tay Mary within 7 days from the date of Judgment; b) Interest at 5% per annum on RM2.6 million from January 20, 2020 until the date of Judgment pursuant to Section 11 of the Civil Law Act 1956; c) Interest at 5% per annum on RM2.6 million from the date of Judgment until full and final settlement; and d) CP pay costs of RM80,000 to Tay Mary subject to allocatur. 12 December 2024 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Nimalan Devaraja with Wong Shun Yong and Lum Ker Parn (PDK) (Messrs Skrine) For the Defendant: Dato Prem Ramachandran with Puvvana Muthuvelu (Messrs Kumar Partnership)