Tf Land Sdn Bhd v 1. ) Khor Ah Hooi (PA-12ANCvC-55-12/2020)

KHOR AH HOOI (No. K/P: 410323-07-5165)

KHOR CHUN MOOI (No. K/P: 530428-02-5398)

KHOR KE XIN (No. K/P: 880710-01-5156) ….. RESPONDEN-RESPONDEN ALASAN PENGHAKIMAN [1] The appellant/defendant appealed against the decision of the learned Sessions Court Judge allowing the 2nd and 3rd respondents/2nd and 3rd plaintiffs ’(“applicants”) application to enter summary judgment. Having heard the arguments I dismissed the appeal with costs. The parties are referred to as they were in the court below. The defendant in the notice of appeal dated 2.8.2022 confined its appeal against my decision in respect of Enclosure 1 only. 13/10/2022 08:58:50 PA-12ANCvC-55-12/2020 Kand. 47 S/N l9Twz/N9oE6an9jleg6Gmw Facts [2] In the main suit the plaintiffs ’claim against the defendant for a sum of RM145,000.00 owing to them. The facts are as follows. The 1st plaintiff had advanced a sum of RM200,000.00 as investment into one company known as Wealthy Achievers Sdn Bhd (“WASB”) following a representation by one Ang Teng Kok (“ATK”) and that the plaintiffs would receive return in the sum of RM600,000.00. ATK was the Managing Director of the defendant and another company known as Multi-Usage Holdings (“MUH”). WASB acted as the white knight which restructured the loans taken by MUH and its subsidiaries from various financial institutions. The defendant is one of MUH’s subsidiaries. As regards repayment to the plaintiffs, ATK further represented that RM80,000 cash would be paid to the 1st plaintiff and a 3-storey shop lot (“property”) valued at RM522,000.00 would be sold or transferred to the 1st plaintiff within 3 years. [3] The cash was paid to the 1st plaintiff and the 1st plaintiff named the 2nd plaintiff as the transferee and beneficiary of the property who would refund the balance sum of RM2000.00 to the defendant. While the property at the material time was still under construction the 1st plaintiff was in financial difficulties and requested the defendant to advance a sum of RM200,000.00 where repayment will be made according to the progress of the construction of the said property. However, the defendant could not meet the said request. ATK then represented to the 1st plaintiff that a bank loan can be arranged through a sale and purchase agreement (“SPA”) in respect of the said property to be entered between the 2nd plaintiff and the defendant and when the bank released the money to the S/N l9Twz/N9oE6an9jleg6Gmw defendant, the money could be given to the 1st plaintiff. As the 2nd plaintiff being an elderly person the 3rd plaintiff had to come in as co-purchaser. The said SPA was entered on 26.7.2013 and the RM2000.00 was refunded to the defendant by the 2nd plaintiff on 9.7.2013. The purchase price was RM580,000.00 and a discount of RM58,000.00 was given. [4] The defendant thereafter created a voucher journal where a sum of RM520,000.00 was credited to the 2nd plaintiff and the same amount was debited from MUH’s account. The loan of RM200,000.00 applied by the applicants were approved by Public Bank and the money was released to the defendant. The defendant in turn released a sum of RM55,000.00 to the plaintiffs but refused to release the balance sum. [5] The defendant in its defence alleged that the 1st plaintiff has no locus to initiate this action as parties to the said SPA were the defendant and the applicants. It was further alleged that the RM80,000.00 was paid by WASB to the 1st plaintiff and he had nothing to do with the defendant and that the defendant had no knowledge of the arrangement between WA and the 1st plaintiff. The defendant alleged that it was impressed upon the defendant that WASB undertook to pay RM520,000.00 on condition that the 2nd plaintiff would resign as a nominee director of WASB. The defendant denied any monetary transaction with the 1st plaintiff. [6] The defendant further denied that the 1st plaintiff requested for the RM200,000.00 loan. However, the defendant did not deny that the RM200,000.00 loan taken by the applicants from Public Bank was for the purchase of the said property as part payment. The defendant further alleged that WASB withdrew the undertaking because the 2nd plaintiff S/N l9Twz/N9oE6an9jleg6Gmw refused to resign. The defendant further pleaded that RM55,000.00 was given to the plaintiff as instructed by WASB but there was no instruction thereafter to release the balance sum amounting to RM145,000.00 because of the feud between WASB and the 2nd plaintiff. The defendant further pleaded that the plaintiffs were estopped from raising the issue between the 2nd plaintiff and WASB as it had been adjudicated in an earlier suit namely Civil Suit No. 22NCVC-108-07/2015 (“Suit 108”). [7] The applicants vide Enclosure 23 (the 1st plaintiff was struck out) applied to enter summary judgment against the defendant. The said application was premised upon the admission pursuant to Order 27 rule 3 of the Rules of High Court 2012 (“RC 2012”). The applicants relied on three documents namely Confirmation of Balance dated 30.3.2016 from Deloitte, Confirmation of Balance dated 30.4.2016 from Baker Tilly and Confirmation of Balance dated 31.7.2018 from the defendant. All confirming the balance due to the applicants was RM145,000.00. Decision of the Sessions Court [8] The learned SCJ accepted the three documents as admission and rejected the allegation by the defendant that the admission was no longer valid as the defendant failed to produce any supporting evidence apart from contending that the audit report had been updated. He further rejected the argument that the allegation against ATK was caught by res judicata as the 1st and 3rd plaintiffs and the defendant were not parties in the earlier suit. S/N l9Twz/N9oE6an9jleg6Gmw Submissions [9] The learned counsel for the defendant submitted that the learned SCJ’s decision in allowing this application contradicted with his decision in striking out the 1st plaintiff’s claim against the defendant. He contended that the main suit was premised upon the representation allegedly made by ATK to the 1st plaintiff and since the 1st plaintiff’s claim against the defendant had been struck out on the ground of res judicata the learned SCJ erred in allowing this application. [10] It was further submitted that the applicants were estopped from raising the issue against WASB as it had been determined by the High Court in Suit 180 where the claim by the plaintiffs therein against WASB was dismissed. In arguing that there was a triable issue the learned counsel argued that the applicant would need to show that the representation raised herein differed from the one raised and determined in Suit 108. He further contended that the applicants could not rely on the three documents as the audit report had been updated and that the defendant had surrendered the RM145,000.00 to WASB after Suit 108 was disposed of. In addition the learned counsel submitted that whether the application was premised upon the SPA or the representation by ATK was also an issue to be tried as well as whether the defendant was bound by the dispute between the applicants and WASB. S/N l9Twz/N9oE6an9jleg6Gmw [11] The learned counsel for the applicants pointed out that this application was not filed by the 1st plaintiff but by the applicants and this was correctly held by the learned SCJ. The claim was over the balance sum resulting from the SPA entered between the applicants and the defendant. The learned counsel for the applicants further argued that the three Confirmation of Balance clearly an admission by the defendant in respect of the sum RM145,000.00 due to them and there was no supporting document to revoke, dispute or correct the contents of the said documents. Further the decision of the High Court in Suit 108 had been reversed by the Court of Appeal. It was further contended that the SPA between the applicants and the defendant was not an issue raised in the said trial. Decision [11] The three Confirmation of Balance from two auditors and the defendant itself clearly showed that a sum of RM145,000.00 was due to the applicants or at least to the 2nd plaintiff. The learned SCJ accepted them as admission pursuant to Order 27 rule 3(1). These came in the form of letters to the 2nd plaintiff. In Vithal Kumar Jayaraman v. Azman Md Nor [2009] 3 MLRA 610 held that an admission can be in the pleadings or from other evidence. The defendant argued that there was an updated audit report but no such report was adduced. Therefore, the learned SCJ rejected the contention. I did find any error by the learned SCJ in accepting the said admission. The learned SCJ was perfectly entitled to dismiss the contention on the updated auditor report which was not produced for his consideration. The defendant could have exhibited the said report in responding to this application. S/N l9Twz/N9oE6an9jleg6Gmw [12] The defendant relied on the letter issued by WASB to the defendant dated 17.12.2018 where WASB demanded the defendant to refund the said sum to WASB. This demand came following the decision of the High Court in Suit 108. The defendant further averred that after the sum of RM55,000.00 was given to the applicants it did not receive further instruction from WASB to release the balance sum amounting to RM145,000.00 to the applicants. It was my view that these averments and the letter issued by WASB did not alter the position as far as the defendant’s debt towards the applicants. The defendant did release RM55,000.00 to the applicants but failed to further release the balance. Thus in this circumstance the defendant cannot deny that it owed the applicants any money. [13] The learned SCJ further decided that the applicants were not estopped from pursuing this application by raising the issue of representation given by ATK. It was his finding that the 3rd plaintiff and the defendant were not parties in Suit 108. He found that the issue of RM145,000.00 was not raised for determination in that suit and the representation by ATK was different from the representation given by ATK relied upon by the applicants in this application. [14] In Dato ’Sivananthan a/l Shanmugan v. Artisan Fokus Sdn Bhd [2016] 3 MLJ 122 the Court of Appeal held that it was not necessary for the plea of res judicata to apply the parties must be the same on issue estoppel. The learned SCJ may have erred in this respect however, he did not dismiss the argument on this ground alone. The learned SCJ was correct in finding that the issues were dissimilar. The issues among others in Suit 108 concerned the transfer of shares. I agreed with the learned S/N l9Twz/N9oE6an9jleg6Gmw SCJ that neither the SPA nor the representation by ATK were issues raised in Suit 108. In the main action here the applicants were claiming for the balance sum due to them from the defendant. Further, the High Court’s decision was reversed by the Court of Appeal. [15] Based on the reasons aforesaid, I was satisfied that the learned SCJ had not erred in allowing the application, I therefore dismissed the appeal with costs. (TUN ABD MAJID BIN TUN HAMZAH) Hakim Mahkamah Tinggi Malaya, Pulau Pinang Tarikh: 13 Oktober 2022 Peguamcara-Peguamcara:- Peguamcara Pihak Perayu TETUAN CHAN, DE VRIES & CO Peguambela dan Peguamcara No. 51, Jalan Westlands 10400 PULAU PINANG Tel : 04-2282932 Faks : 04-2282931 S/N l9Twz/N9oE6an9jleg6Gmw Peguamcara Pihak Responden-Responden TETUAN M. KANESAN & ASSOCIATE Peguambela dan Peguamcara No. 2-C, Solok Tavoy 10050 PULAU PINANG Tel : 04-2277484 Faks : 04-2277254 S/N l9Twz/N9oE6an9jleg6Gmw