Tomy Management v Oo Tin Fuan (BA-11BNCVC-16-07/2016)

This is an appeal by the Appellant (Plaintiff) on the Magistrate’s decision which dismissed the Plaintiff’s claim against the Respondent (Defendant) involving a dispute pertaining to one Services Agreement.

I allowed the Plaintiff’s appeal and my reasons follows.

The Plaintiff is a service provider company rendering services to individuals or company to trace unclaimed monies from Unclaimed Money Fund and having its registered address at No. 29-2, Jalan 11/62A, Bandar Menjalara, 52200 Kuala Lumpur, Federal Territory Kuala Lumpur.

The Defendant is an individual, having its house address at 25, Jalan SB Indah 1/12, Taman Sungai Besi Indah, 43300 Seri Kembangan, Selangor Darul Ehsan and business address at No. 6, Jalan Rasa Sayang Satu, Taman Rasa Sayang Batu 8, 43200 Cheras, Kajang, Selangor Darul Ehsan.

The Plaintiff claimed that it has successfully traced a sum of money of RM44,400.00 for the Defendant and the Defendant is to pay RM11,766.00 as consultancy fee consistent with the agreed Services Agreement. The Plaintiff claimed that the services rendered had been carried out till 3 completion and the money had been released and credited into the Defendant’s bank account.

The Plaintiff claimed that the Defendant however refused to pay for the consultant fee and denied that there was a second agreement as alleged by the Defendant.

The Defendant denied that the Services Agreement dated 3.3.2014 was in existence as it had been revoked or cancelled and replaced by another agreement dated 12.3.2014 bearing the number SA 2736 (page 170 of Appeal Record) where the agreed period is from 12.3.2014 until 11.6.2014 (paragraphs 2-4 of Defence, page 14 of Appeal Record) and accused the Plaintiff for breach of contract.

The Defendant alleged that the unclaimed money was made by the Defendant without Plaintiff’s assistance which was received after the completion of appointment period of the second agreement. The Defendant claimed that the Plaintiff failed to claim for the money within the 3 months period.

The Plaintiff claimed that the Defendant had under the law benefitted and should pay for the money received from the Plaintiff (paragraph 2 Plaintiff’s Reply, page 17 of Appeal Record) and claimed that the Defendant’s action was mala fide and an abuse of the court process (paragraph 4, Plaintiff’s Reply, page 18 of Appeal Record). 4

The Magistrate dismissed the Plaintiff’s claim. Being dissatisfied by the Magistrate’s decision, the Plaintiff appealed to this Court.

The learned counsel for the Plaintiff advanced several grounds for this appeal (pages 1-3 of Supplementary Appeal Record) and the main grounds are, briefly as follows:

It was contended that the Magistrate erred in placing the burden of proof on the Plaintiff to prove that the signature of Plaintiff’s witness, SP2 is on document 1D16 which was denied by Plaintiff as it was not Plaintiff’s document and the Defendant did not verify with an expert’s testimony or evidence. It was submitted that the Magistrate had in fact said that the burden is on the Defendant whom produced the document (see page 170 Appeal Record) without stamped, scribbled and signature of SP2 which was denied.

It was submitted that the second agreement was not identified, it was produced by the Defendant which only surfaced during the exchange of documents. The Plaintiff’s counsel submitted that the Defendant is to prove based on section 67 and sections 101-103 of Evidence Act 1950.

It was averred that the Magistrate erred in law by contradicting herself in relying on the document ID16 when she had decided 5 that the said document is for identification that needs to be verified by signature expert before being admitted as evidence.

It was averred that the Magistrate erred in law for deciding that forgery was not pleaded by the Plaintiff when in fact it was pleaded as stated in Plaintiff’s reply dated 22.3.2015 at paragraph 1 with denial that the document ID16 existed accompanied by the statement that SP2 never signed such document. [10] The Plaintiff’s counsel submitted that the Services Agreement was not disputed by the Defendant which is the original stamped document and tendered as exhibit P2 (page 156 of the Appeal Record). The period of completion was from 3.3.2014 until 30.9.2014 whereas the second agreement which was denied by the Plaintiff, was not stamped and the completion dates are 12.3.2014 until 11.6.2014 with additional terms initialled by the Defendant only. [11] The Plaintiff’s counsel pointed to this Court the Defendant’s defence which are, the Services Agreement had been replaced by the second agreement, that the money was traced based on Defendant’s own initiatives and that the consultancy fee of 25% is too excessive. It was averred that the Defendant’s defence of 25% consultancy fee being on the high side is an afterthought to challenge the Plaintiff’s submission. In relation to the claim that the traced money was on Defendant’s own initiatives, the Plaintiff’s counsel pointed out that the Defendant admitted that he has no evidence of copy of application. The copy of application is 6 exhibit P5 to which Defendant testified as had never seen exhibit P5. It was submitted that Plaintiff’s witnesses, SP1 and SP3 had adduced evidence that the application documents were sent by Plaintiff where the proof of posting is through tracking number at the right corner of exhibit P5. [12] In relation to the argument of the existence of the second agreement, Plaintiff’s counsel asserted that it should not be relied as it was marked as an ‘ID’ where the maker and the original document must be produced: the case of Santa A/P Manickam v Teik Joo Chan Bhd & Anor [2015] MLJU 322 and case of Chin Foh Bhd & Anor v Kwan Yun Hong & Ors [2012] 9 MLJ 854 were referred. Defendant’s case [13] The learned counsel for the Defendant, referring to the Magistrate’s decision at page 13 of the Supplementary Appeal Record, argued that the second agreement replaces the Services Agreement (page 156 and page 177 of Appeal Record). The Service Agreement had the dates of 3.3.2014 to 30.9.2014 (6 months), whereas the second agreement (at page 178 of Appeal Record) was for a 3 months period. It was submitted that the Plaintiff’s witness SP1 has no knowledge about the second meeting between SP2 and the Defendant, and that SP2 testified that the handwriting is the same in both copies of agreement and SP2 did not deny that that the signature was his signature. [14] The Defendant’s counsel submitted that the Defendant relied on the Plaintiff’s witness, SP2 whom allegedly stated that the Services Agreement 7 with ‘Office Copy’ (page 156 of Appeal Record) can be revoked at any time and SP2 had given the Defendant a copy of the ‘Client’s Copy’ of the Services Agreement. It was submitted that the Defendant changed his mind and phoned SP2 informing that he wishes to cancel the Services Agreement and submitted that SP2 had asked him to meet him on 12.3.2014 whom the Defendant met with his friend SD2. [15] The Defendant’s counsel averred that the second agreement was marked as ‘ID’ as the Defendant could not submit the original copy of the second agreement of ‘Office Copy’ and the claim by the Plaintiff that it was forged and non-existence is untrue and baseless as SP2’s signature is apparent on the second agreement which is binding on the Plaintiff: Wee Lian Construction Sdn Bhd v Ingersoll-Jati Malaysia SDn Bhd [2010] 3 MLJ 425, Court of Appeal. [16] It was submitted that the evidence of the Defendant is more credible and the Court cannot blame the Magistrate in dismissing the Plaintiff’s claim as there was no expert witness called to verify on the signature. It was also put to the Court’s attention that the money was disseminated later to the Defendant based on exhibit D15 (page 171 of Appeal Record) and the Defendant received the money on 2.7.2014. Plaintiff’s Reply [17] In reply to the Defendant’s counsel submission, the Plaintiff’s counsel averred that the copy of the second agreement which was unstamped (page 178 of Appeal Record) was never given to the Plaintiff. The Plaintiff’s 8 counsel pointed out to the Court that the Magistrate took upon herself to compare the two documents and the signature. [18] The Plaintiff’s counsel submitted that the Services Agreement as testified by SP3 is the actual document where the Plaintiff had done all the work till completion and therefore section 73 of the Evidence Act 1950 ought to apply. APPEAL [19] It is a basic principle of law that an appellate court should be slow in disturbing the findings of facts by a lower court unless there is a clear misdirection of law by the trial judge or the trial judge made a wholly erroneous estimate of damage suffered that warrants this Court to intervene: Multar Masngud v Lim Kim Chet & Anor [1982] CLJ 237, FC and the case of Ming Holdings (M) Sdn Bhd v Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857, FC. In this case, it is the duty of this Court to interfere to which my grounds of judgment are meted out below. [20] It is the Plaintiff who brought this suit and the burden is on the Plaintiff to proof based on the balance of probability following section 101 of Evidence Act 1950. I stand to be guided by the decision of the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014 which illustrates the burden of proof rest on 9 the person who asserts in affirmative, that is the plaintiff and that once the burden is discharged by the plaintiff, the onus than shifts to the defendant. [21] Upon careful perusal of Plaintiff’s pleadings of the Plaintiff, it is this Court’s finding that the Plaintiff pleads on the Services Agreement and not on the second agreement which in the latter, it was submitted by the Defendant. Reverting to the facts and the oral evidence, based on the Plaintiff’s witness, the Managing Director of Plaintiff (SP1), Mr. Yong’s testimony examination-in-chief, this Court finds that the second agreement was produced by the Defendant which is the ‘Client’s Copy’ (pages 24-25 of Appeal Record): “Q4 : Mr. Yong, look at this document that I’ve shown you. Now this is the document which is different from the one, this is the document which is tendered by the defendant, and is dated 12th March. Now look at this document very carefully Mr. Yong. Is this document issued by your company? : No, this was not issued by my company. Q5 : Mr. Yong, the defendant also tendered a document this morning. It is the same as the first copy but it is marked as client’s copy. Have you ever issued this document? Dengan izin Puan, I belum lagi tender the document kepada Mahkamah. 10 MAH : Bila you dapat? Pagi ni? Ya. MAH : Macam mana boleh jadi macam tu? (inaudible). PC : Puan, saya minta saksi untuk jawab soalan saya. Show the original to the witness. Q6 : Mr. Yong, look at this document tendered at the last minute. It was marked as client’s copy. See very carefully and also date the same as the earlier one, 12th of March. Have you ever issued this document? : No.” [22] Based on the notes of evidence (pages 25, 32 and 33 of Appeal Record), SP1 testified the proof of the original document, the Services Agreement, which explains that the signed ‘Office Copy’ will be returned to the Plaintiff’s office with the official receipt stamped apparent on the top right hand corner as exhibited in the original document (number 2772). As there was no official stamped on the Office Copy, it is not considered from the Plaintiff’s office. 11 [23] This is consistent with Plaintiff’s witness (SP2), the Plaintiff’s agent and SP3 (page 65 of Appeal Record). SP2 testified the arrangement of signed agreement where the Office Copy will have the office stamp received dated 4.3.2014 (page 53 of Appeal Record): “Q62: Normally who keeps the office copy : the office. Q63 : So Mr. Lee, you said that you did not sign on the office copy and the client’s copy also you did not signed. : No, I’ve never seen this document. And I never signed this copy. Q64 : Mr. Lee, I want you to make a quick comparison on Bundle B, page 1 and Bundle C, page

What is the difference in this document that you can see visually? : Usually when I sign up the client, I went back to the company. Company will chop received. But this second copy, there is no chop at all. And the first copy, we have the stamping, the second copy we have no stamping at all. The first one that Mr. Oo signed, there was chop by the company that has been received by 4th of March

And subsequently, we stamp, but the second one, nothing. 12 ….. Q66 : What is the different between 1 and 2, apart from stamping? : There’s one more thing that I want to highlight here. The paragraph number 4. I know my handwriting especially on figures. You see the 25%, there is difference. The second one is totally not my writing. Q67 : What else can you spot the difference : My signature is not mine.” [24] It was testified by SP2 that the signature on the second agreement was not his (pages 52, 53, 56 and 59 of Appeal Record). This Court finds that as the assertion on SP2’s signature on the second agreement was adduced by the Defendant, the Defendant failed to call a signature expert to verify the signature on the second agreement which the burden to proof signature rests on the Defendant as embedded under section 67 of Evidence Act 1950: “67. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting shall be proved to be in his handwriting.” 13 [25] The Magistrate failed to appreciate that the Plaintiff’s witness SP2 in fact denied that the signature was his. Following section 67 of Evidence Act 1950, where the person who asserts that the signature was purportedly made by the Plaintiff’s agent, which was by the Defendant, the burden rests on the Defendant to prove and in order to prove, the Defendant should call witness to prove to the satisfaction of the court that the signature on the second agreement was made by SP2. I find that the Magistrate had misdirected itself on the burden of proof which is plainly wrong in law and it is incumbent upon this Court to intervene. [26] In relation to the forgery issue and that it was not pleaded by the Plaintiff raised by the Defendant, this Court had the benefit to scrutinise both parties’ pleadings. Matters shall be specifically pleaded following Order 18 rule 8 of the Rules of Court 2012 (ROC 2012) which could be any matters that includes forgery so as not to take the opposite party by surprise: Gimstern Corp (M) Sdn Bhd v Global Insurance Co Sdn Bhd [1987] 1 MLJ 302. [27] Based on Order 18 rule 8 ROC 2012, parts (1)(a) or (b) or (c) must be satisfied. This Court finds that the Defendant did not raise the issue of Plaintiff’s signature nor the issue that Plaintiff signed the second agreement in its Defence (pages 14-16 of Appeal Record) which could not possibly be replied by the Plaintiff that its signature or its agent’s signature, to be precise, was forged. Briefly, based on the Plaintiff’s Reply (paragraph 1, page 17 of Appeal Record), Plaintiff vehemently denied that the Services Agreement was replaced by another agreement dated 12.3.2014 and Plaintiff pleaded that the Defendant had benefitted and should pay the 14 Plaintiff for the money received from Plaintiff’s services (paragraph 2, page 17 of Appeal Record) and that the Defendant’s action was mala fide (paragraph 4, page 18 of Appeal Record). Based on the fact that the Plaintiff denied the second agreement and the signature as in Plaintiff’s Reply to Defendant’s Defence, in light of Order 18 rule 14 ROC 2012, I agree with Plaintiff’s counsel that it would apply where the joinder of issue operates as a denial of allegation of the Defendant: Malaysian Court Practice Rules of Court 2012, Desk Edition 2017, Lexis Nexis. [28] In essence, the crux of the matter is the proof of contractual obligation under the Services Agreement. It was the Defendant’s contention that it was superseded by the second agreement. This is the Plaintiff’s pleaded case on the Services Agreement where the original copy (Office Copy) was produced and the evidence of the second agreement photo stated copy of ‘Client’s Copy’ was relied upon without the original copy produced by the Defendant. [29] In effect, the oral evidence of the Defendant’s witness, SD1 was not supported by any evidentiary documents of the second agreement which tantamount that the Defendant failed to prove the existence of the second agreement: Green Crescent Resources v Ching Miew Yoke & Ors. Case [2016] MLJU 25. This Court holds the view that the court must test the witnesses’ evidence against the evidentiary documents in proving the truth of such documents: Lee Ing Ching & Ors v Gan Yook Chin & Anor [2003] 2 CLJ 19, Court of Appeal. 15 [30] I cannot agree with the Defendant’s counsel’s reliance of the Court of Appeal case in supporting its submission on the Plaintiff’s witness’s signature. The case of Wee Lian Construction (supra) must be distinguished from the instant case as it involves the acceptance of the contract without reading the terms, which is binding upon plaintiff’s signature of acceptance of the purchase order. Unlike in this case, the undisputed signature was on the Services Agreement and not on the second agreement. [31] Pertinent to the dispute on the existence of a contract, if new terms were to be agreed upon to override the earlier terms, they must be communicated and accepted by the other party. In search of the acceptance of the new terms by both parties, I did not find any. The Defendant failed to verify the discrepancy on the second agreement which is a photo stated Client’s Copy that should be a duplicate of the ‘Office Copy’. I had the benefit of hearing contractual disputes for instance in a recent decision, in the case of Seroja Anggerik Development Sdn Bhd v MHNB Reka Sdn Bhd (Civil Appeal No: 12BNCVC-4-01/2016 where even a counter-offer must be communicated less so amounts to rejection of the original offer. The fact that it was the Defendant’s averment to cancel the Services Agreement and replaced with the second agreement, bears the burden to prove and in this instant case the Defendant failed to prove. [32] The chain of process of the services rendered, as submitted by the Plaintiff (pages 41-42 of Appeal Record), from the time the appointment was made to the application to ‘Jabatan Akauntan’ until the money was disbursed to the Defendant was adduced with the supporting documents of 16 the Plaintiff (pages 43, 44 and pages 66 and 71 of Appeal Record) could not be rebutted by the Defendant, proves to show the completion of the services and the money had been paid to the Defendant. [33] Based on the facts and the evidence before this Court, on the balance of probability, it is this Court’s finding that the Plaintiff had proved that the Services Agreement was the basis of the services rendered and the Defendant benefitted from the traced unclaimed money received. This Court viewed that onus shifted to the Defendant to prove the true content of the second agreement following sections 101-102 of Evidence Act 1950, remained with the Defendant and was not rebutted by the Defendant. In light of the above reasons, I therefore allowed the appeal with cost. Dated: 2 January 2018 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 17 COUNSEL FOR THE APPELLANT/PLAINTIFF C Y CHONG Tetuan CY Chong & Associates Peguambela & Peguamcara No. A5, Tingkat 2, Bangunan Khas, Jalan 8/1E, 46050 Petaling Jaya Selangor Darul Ehsan [Ruj. No.: CY/L/4060/6/2016] Tel: 03-7956 5471 COUNSEL FOR THE RESPONDENT/DEFENDANT H Y LEE Tetuan H.Y. Lee & Co. Peguambela & Peguamcara 54 (1st Floor), Jalan Raja Haroun 43000 Kajang, Selangor Darul Ehsan [Ruj. No.: 3209/15/HYL/OTF/L]