Vijayan A/L S. Chinnasami v Zainab Binti Mohamed (B-02(NCVC)(W)-1930-09/2018)

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: B-02(NCVC)(W)-1930-09/2018 ANTARA VIJAYAN A/L S. CHINNASAMI … PERAYU DAN ZAINAB BINTI MOHAMED … RESPONDEN [Dalam Mahkamah Tinggi Malaya di Shah Alam Dalam Negeri Selangor Darul Ehsan, Malaysia Guaman Sivil No. BA-22NCVC-459-08/2019 Antara VIJAYAN A/L S. CHINNASAMI … PLAINTIF DAN ZAINAB BINTI MOHAMED … DEFENDAN] CORUM HAMID SULTAN ABU BACKER, JCA KAMALUDIN MD SAID, JCA NOR BEE ARIFFIN, JCA 2 GROUNDS OF JUDGMENT Introduction [1] The Appellant/Plaintiff appeals against the whole decision of the Shah Alam High Court on 30.8.2018 dismissing the Appellants’ claims against the Respondent/Defendant for the specific performance of a Sale and Purchase Agreement dated 26.2.2014 (SPA). [2] In this appeal, the appellant is referred to as the Plaintiff and the Respondent as the Defendant in their capacities in the High Court trial. Brief facts [3] The SPA was entered between the Defendant as vendor and the Plaintiff as purchaser in respect of Defendant’s property. Pursuant to the SPA, the Plaintiff agreed to purchase the said Property at the purchase price of RM 800,000.00 [4] The Plaintiff’s pleaded case is that he and the Defendant’s husband, Amir Bin Abdul Rahman has agreed to enter into a joint venture to open up a restaurant business known as Fuddruckers to be undertaken by a company known as AAR Fusion Industries Sdn Bhd. Both the Plaintiff and Amir to be shareholders and directors of AAR Fusion. [5] The Plaintiff averred that the Defendant has agreed to sell the said property vide the SPA and the purchase price shalll be banked into 3 AAR Fusion ‘ bank account and to be utilised for the purpose of the joint venture. [6] On 28.2.2014, at the request of the Defendant and Amir, he banked in a sum of RM 775,000.00 into AAR Fusion’s account and the balance RM 25,000.00 was said to be used to pay legal fees and disbursement for the sale and purchase of the said property. [7] However, despite the payment, the Plaintiff averred that the Defendant had failed to honour her obligations under the SPA including delivering the vacant posession of the said property. [8] Therefore, the Plaintiff seeks for specific performance of the SPA and also declarations that he is the beneficial owner of the said property and that the SPA is valid and enforceable against the Defendant. The Plaintiff is also claiming for damages in lieu of the specific performance. [9] The Plaintiff maintained that there was a valid and binding sale and purchase of the said property vide the SPA and the purchase price was banked into AAR Fusion bank account at the request of the Defendant. The Plaintiff also confirmed that the Winding-Up order was granted against AAR Fusion on 14.7.2016 but averred that the issues relating to the Winding-Up Petition have no connection to the SPA. [10] The Defendant contended that the SPA was merely as collateral or security for the sum of RM 800,000.00 that the Plaintiff has agreed to invest and be used by AAR Fusion in respect of the joint venture restaurant between the Plaintiff and her husband. She was not 4 involved at all in the joint venture. The SPA was not meant to be an outright sale of the said property. It was the Defendant’s case that the business was managed and controlled by the Plaintiff until AAR Fusion was wound-up on the ground that the business ran into financial troubles and that the company owed the Plaintiff a sum of RM 815,000.00. Amir unsuccesfully contested the Winding-Up Petition. The Defendant’s case is that the Plaintiff’s claim herein amounted to double claim since he has made the claim in the Winding-Up Petition. [11] The High Court dismissed the Plaintiff’s claim with costs of RM 10,000.00 subject to payment of the Allocatur fee. Decision of the High Court [12] The High Court judge (the learned judge) was of the view that there is a need for the court to determine the real intention of the parties in entering into the SPA by considering the surrounding circumstances before and after the SPA was signed. From the evidence, there was no evidence showing that the Plaintiff as the purchaser attempted to get the said property transferred to him expeditiously and no evidence that the parties has executed the memorandum of transfer, even the SPA was stamped more than 1 year 9 months later. The stamping of the SPA on 6.11.2015 was done only after the legal notice dated 1.10.2015 was issued by the Plaintiff’s solicitor to the Defendant. 5 [13] The learned judge found, these peculiarities could only mean that the parties did not intend for the SPA to be acted upon immediately. This gives credence to the Defendant’s case that the SPA was never intended to be an outright sale and purchase transaction but rather a collateral agreement or a security for the investment made by the Plaintiff in the joint venture business. [14] The Plaintiff relied on the evidence that the payment of the purchase price of the said property that was made to AAR Fusion and a letter dated 28.2.2014 showed that the Defendant’s husband acknowledged the payment of the purchase price. The Defendant had given the authority to her husband to handle the sale and purchase transaction. However, the essence of the Defendant’s evidence that she authorised her husband to act on her behalf was on the understanding that it was for the purpose of security or collateral to secure the Plaintiff’s investment in AAR Fusion. The said letter was actually issued by AAR Fusion not by Amir personally and Amir merely signed on behalf of AAR Fusion. [15] The learned judge found that the sum of RM 775,000.00 paid by the Plaintiff was the investment money not for payment of the purchase price of the said property. The Plaintiff did not at all act or take any action to have the property transferred to the Plaintiff soon after the payment of RM 775,000.00 to AAR Fusion was made. [16] Therefore, the learned judge held that the SPA entered into by parties was merely for the purpose of a collateral or security to the Plaintiff’s investment in AAR Fusion. 6 Grounds of appeal [17] The Plaintiff sets out several grounds of appeal in the memorandum of appeal that the learned judge has misdirected herself in fact and in law in dismissing the Plaintiff’s claim as follows-

(1) In concluding that there is no conclusive agreement between the Plaintiff and the Defendant for an order for specific performance to be given;

(2) Failed to consider a valid and enforceable contract was signed by both the Plaintiff and the Defendant;

(3) In concluding that the agreement is a collateral/guarantee when there is nothing in the agreement mentioned that the sale and purchase agreement is for collateral/guarantee and by doing so, she failed to consider all the evidence produced during the trial;

(4) In concluding that the payment of RM 775,000.00 paid by the Plaintiff is for an investment in AAR Fusion and not payment for the sale of the property and in doing so, she failed to consider all the evidence produced during the trial;

(5) Failed to consider all the documents in the common agreed bundle are in part A which are agreed documents; 7

(6) Failed to consider the Defendant had given the authority to her husband to manage the sale and purchase transaction;

(7) In concluding that the total sum of RM 815,000.00 which was ordered by the Kuala Lumpur High Court on 14.7.2016 in AAR Fusion’s Winding-Up Petition includes the sum of RM 775,000.00 which is the basis of Plaintiff’s claim and in doing so, she failed to consider all the evidence produced during the trial;

(8) In concluding that the Plaintiff in paying the purchase price of RM 775,000.00 had breached the sale and purchase agreement entered into by both of them;

(9) In concluding that there was delay by the Plaintiff to transfer the title of the property from the Defendant to him without considering the Plaintiff’s evidence during the trial that the Defendant had asked for time to find another place was never challenged by the Defendant’s counsel during cross-examination;

(10) In concluding that there was delay in the stamping of the sale and purchase agreement by the Plaintiff when there was no cross-examination from the Defendant’s counsel regarding such delay by the Plaintiff in stamping the sales and purchase agreement; 8

(11) Failed to take into consideration that the Plaintiff was not represented by a lawyer in the execution of the sale and purchase agreement. However, the Defendant was represented by a lawyer in the execution of the sale and purchase agreement;

(12) Failed to consider the AAR Fusion’s letter dated 28.2.2014 issued by the Defendant’s husband which clearly said that the amount of RM 775,000.00 received by AAR Fusion Company is from the sale of the Defendant’s property to the Plaintiff;

(13) In concluding that the sale and purchase agreement is a collateral when the terms of the sales and purchase agreement does not mentioned that it is a collateral;

(14) In concluding that the sales and purchase agreement is related to the winding-up of Fusion company when it is clear that both the transactions are different from each other; [18] The Plaintiff also averred that the decision of the learned judge is contrary to the evidence before her and in the circumstances, this court would intervene and allow the Plaintiff’s claim. The appeal [19] The Plaintiff’s counsel made oral submissions of the grounds of appeal and the Defendant’s counsel replied accordingly and parties also relied on their written submission. 9 [20] The submission of the Plaintiff centred on the agreed documents which contents are not disputed by the Defendant. The documents are placed in Part “A” of the Common Agreed Bundle. Parties are bound by the facts stated in those documents and on this basis, there are more than sufficient evidence to support the Plaintiff’s case which the learned judge ought to have allowed the Plaintiff’s claim for specific performance. [21] We followed the argument and the sufficiency of the evidence referred to by the Plaintiff are none other than the SPA dated 26.2.2014 entered into between Plaintiff and the Defendant. There is no issue of the non-payment of money under the SPA because the payment was paid and confirmed by the Defendant’s husband in a letter dated 28.2.2014. The money was banked in after the execution of the SPA by the Defendant. The SPA is a negotiated document as evidenced in the correspondence vide e-mails and finally the SPA was executed by both parties. There is no issue on the validity of the SPA because the solicitor is not called to give evidence on the making of the SPA. The title to the property is still with the Defendant. All these facts contained in documents agreed upon and placed in Part “A” which are agreed and bind the parties. [22] The Defendant on the other hand, submitted that the SPA was to be used merely as collateral or security for a sum of RM 800,000.00 that the Plaintiff has agreed to invest and be used by AAR Fusion in respect of the joint venture restaurant business between the Plaintiff and her husband. The Defendant was not involved at all in the said joint venture. The SPA was not meant to be an outright sale of the said property. The business was managed and 10 controlled by the Plaintiff. The business ran into troubles and the Plaintiff vide Winding-Up Petition obtained an order that AAR Fusion be wound-up on the ground, inter alia, that the company owed the Plaintiff a sum of RM 815,000.00. The Defendant’s husband, Amir (DW2) unsuccesfully contested the Winding-Up Petition. It is also the Defendant’s case that the Plaintiff’s claim amounted to double claim since he has made the claim in the Winding-Up Petition. [23] Having heard the submissions from both the Plaintiff and the Defendant and after reading the grounds of judgment of the learned judge and the records of appeal, we are satisfied that there is no appealable error found in the learned judge’s decision. Her decision is not plainly wrong. We incline to disturb the finding of the learned judge. It is our unanimous decision that the Plaintiff’s appeal is dismissed with cost of RM 5,000.00 subject to allocator fee. [24] We now give our reasons as follows. Our finding [25] The Plaintiff claims for an order for specific performance of the SPA dated 26.2.2014 entered into by the Plaintiff and the Defendant, declaration that he is the beneficial owner of the property, declaration that the SPA is still valid, enforceable and binds the Defendant, damages in lieu of specific performance and damages to be assessed. 11 [26] The Plaintiff’s pleaded case is that the full purchase price of the property has been paid to the Defendant and the Defendant failed to carry out her obligation under the SPA to deliver the property to him. Therefore, the Defendant had breached the SPA and the Plaintiff is entitled to specific performance of the said property. [27] Specific performance is granted where damages would be inadequate compensation for the breach of an agreement, the contractor may be compelled to perform what he has agreed to do by a decree of specific performance. An order for specific performance is an order of court requiring a party to perform in terms the very obligations he undertook to discharge on entering into the contract. The purpose of an order of specific performance is to put the parties in the position, relative to each other, in which the due performance of their obligations would have placed them (see Contract Law in Malaysia, Second Edition, Lexis Nexis). [28] Contracts which can be specifically enforced are set out in our Specific Relief Act 1950. Section 11 of the Act states that the specific performance of any contract may, in the discretion of the court, be enforced. The passages in the Court of Appeal case of Eagaivallinayagi Ammal V Chin Min Hua & Ors [2020] 2 MLJ 771 quoted below is instructive - [14] As regards specific performance, according to section 11 of the SRA, it can be granted in matters pertaining to breach of contract to transfer immovable property where an award of damages is not a sufficient remedy. [See, Zaibun Sa binti Syed Ahmad v. Loh Koon May & Anor (1982) 2 MLJ, p 92 (PC). Similarly, this relief could not also be granted in the executory contracts: Mohamad v. Ho Wai (1961) MLJ, p. 12 7 and where actual losses could not be ascertained: Gan Realty Sdn. Bhd. & Ors v Nicholas & Ors (1969) 2 MLJ, p. 110. [15] For the cause of action to accrue, there must have been a breach of the contractual duty. Cause of action also means ‘a right to sue’. There cannot be ‘right to sue’ until and unless there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that the right of the defendant against whom the suit is instituted. [See, the ratio of Alauddin Mohd Sheriff J [as he then was] in Padang Serai Kilang Kayu Bhd v. Khor Kia Fong & Ors (1997) 5 CLJ 428. [29] The learned judge dismissed the Plaintiff’s claim. It means that the Plaintiff is not entitled to the specific performance of the said property. [30] First of all, the learned judge in her grounds of judgement stated that she has considered the testimonies of the witnesses for both sides. The Plaintiff himself (SP1) was the only witness. The Defendant called herself (DW1) and her husband, Amir (DW2). It was stated by the learned judge that the testimonies of the witnesses were viewed with caution and tested with the entirety of the evidence. The pleadings are in Bundle A and the documentary evidence are in Bundle B. She has also considered the oral submissions and the written submissions of learned counsel for both sides. In other words, it must be understood that the conclusion reached by the learned judge on such finding of fact and the decision to dismiss the Plaintiff’s claim was based on the evidence before her. [31] In this appeal, we are asked to review the finding of facts of the 13 learned judge. However, it is settled law that the findings of fact by the trial Judge on such evidence is entitled to great weight, and unless that finding flies in the face of the mute evidence, cannot warrant appellate intervention. The appellate Court did not have the specific audio-visual advantage that a trial judge has is in respect of the assessment of the credibility of the oral evidence (See: Lin Wen-Chih & Anor v Mycom Bhd (2014) 3 MLJ 691). It is also held that the court should only upset a decision of the High Court where there is a clear error leading to a perverse finding or resulting in miscarriage of justice. The decisions of the Federal Court in Pushpaleela a/p R Selvarajah & Anor v Rajamani d/o Meyappa Chettiar and other appeals [2019] MLJU 135 also held that the decision of the Court below will be reviewed if the findings were plainly wrong or perverse. [32] In our view, in order to succeed in this appeal, the Plaintiff ought to demonstrate that the decision of the learned judge was plainly wrong. We read the grounds of judgement of the learned judge and with the records of appeal which contains the relevant evidence, whether she has made the correct decision. [33] The learned judge has considered the argument of both parties and the principal and main issue before her is whether the SPA was an outright sale and purchase transaction or whether it was merely intended to be a collateral or security for the so-called Plaintiff’s investment in AAR Fusion for the restaurant business. [34] We agree with the Plaintiff’s submission that the SPA is an agreed documents and in fact the learned judge found the signing of the SPA is not disputed by the Defendant. At the same time, the Plaintiff 14 and Amir (DW2) have agreed to enter into a joint venture for the said restaurant business. The fact that a sum of RM 775,000.00 was banked in into AAR Fusion’s bank account by the Plaintiff is also not in dispute. Those undisputed facts come from the agreed documents listed under Part “A” at page 165 in the Common Agreed Bundle of Document. [35] From the given facts, the learned judge was of the view that what is in dispute is whether or not the said money was indeed the payment for the purchase price of the said property as alleged by the Plaintiff. We agree with her view. [36] The learned judge then evaluated the evidence before her. The Plaintiff (PW1) said the sum of RM 775,000.00 was paid to AAR Fusion at the request and instruction of the Defendant (DW1) and Amir (DW2). This is found in the letter dated 28.2.2014 issued by AAR Fusion and signed by DW2 which said that the sum of RM 755,000.00 was for the payment of the purchase price of the property while the balance (the sum of RM 25,000.00) shall be used for payment of the lawyer’s fee and interest to the bank. [37] On this basis, the Plaintiff’s submission is that the purchase price has been fully paid. The learned judge acknowledged the evidence that DW1 has fully authorised DW2 to handle the sale and purchase of the said property. In essence, the SPA is a valid and binding agreement and no evidence to show that it is a ‘sham’ agreement or that it was intended to be a collateral or security agreement. However, the Defendant (DW1) and DW2 maintained that the SPA was merely for the purpose of securing the Plaintiff’s investment in the joint venture business. Following this, we are satisfied that the 15 evidence has been appreciated properly and the learned judge did not misdirect herself on the facts. [38] With the established facts, the learned judge’s view is as follows- “[9] I am of the considered view that there is a need to determine the real or true intention of the parties in entering into the SPA and in so far as the contract is concerned, the court will not lend its aid to enforce pretended obligations and only real obligation will be enforced-see the obiter of Abdul Malik Ishak, JCA (as he was then) in Ong Thean Chye & Ors v Tiew Choy Chai & Anor [2011] 4 MLJ 616 at page 644. There have been cases where upon reviewing and considering the evidence in its entirety, found that a sale and purchase agreement to be either a sham to disguise a money lending transaction or merely intended to be a security or collateral to a loan. For example see the cases of Datul Jagindar Singh & Ors v Tara Rajaratnam [1983] 2 MLJ 196 and Kuan Che Jon & Ors v SSF Construction Sdn Bhd [2016] MLJU 1173. In my view, in order to determine the true intention of the parties in executing the SPA, the court may look and consider the surrounding circumstances before and after the SPA was signed,” [39] We agree with her view. Intention is a matter of evidence and it can be established by way of inference (Emas Offshore v Suhaimi Maryani [2014] 10 CLJ, 279). Section 11 (1) (a) of the Specific Relief Act 1950 provides that the specific performance of any contract may, in the discretion of the court, be enforced when the act agreed to be done is in the performance, wholly or partly, of a trust. It has been held in trust matter that a person's intention for a trust is to be gathered from the totality of the particular circumstances of the case, including the words written or spoken 16 and the conduct of the parties (ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2004] 4 CLJ 674). In respect of the certainty of intention, there had to be clear evidence of an intention to create a trust and this could be inferred not only from the alleged settlor's words and conduct but also of the surrounding circumstances and the interpretation of any agreements that might have been entered into (Guy Neale v Nine Squares Pty Ltd [2014] SGCA 64). [40] We are satisfied that the learned judge did not misdirect herself in applying the law. In fact, we noted the learned judge has gone through the evidence and circumstances of the case that enable her to produce her reasoned judgment. [41] From the evidence, the learned judge found many peculiarities pertaining to the SPA in respect of the said property which are summarised as follows-

(1) The SPA was prepared by the lawyer for the Defendant;

(2) The Plaintiff was not represented by a lawyer;

(3) The SPA bore the signature of the Plaintiff and the Defendant but no witnesses to the signature;

(4) The SPA was dated 26.2.2014 but was only stamped on 6.11.2015 almost 1 year 9 months later;

(5) The SPA stipulated that the purchase price of RM 800,000.00 was to be paid by three (3) stages, that is: 17 a. Earnest deposit of RM 16,000.00-paid prior to the SPA; b. Balance deposit of RM 64,000.00-to be paid upon execution of the SPA; c. Balance purchase price of RM 720,000.00 to be paid within ninety (90) days from the date of SPA.

(6) According to the Plaintiff, the purchase price of RM 800,000.00 was paid as follows-a. A sum of RM 775,000.00 was paid to AAR Fusion on 28.2.2014, that is two (2) days after the SPA was signed; and b. The balance RM 25,000.00 was to be utilised for payment of legal fees and bank’s interest.

(7) Paragraph (6) was against what was stipulated under the SPA;

(8) The use of RM 25,000.00 seems to be contrary to clause 13 and Part 7 of the 1st Schedule of the SPA where the stamping and registration of the transfer of the said property was to be borne by the Plaintiff as the purchaser;

(9) Even though the Plaintiff averred that the purchase price was paid in full two (2) days after signing the SPA, there was no evidence showing the Plaintiff as purchaser, attempted to get the property transferred to him expeditiously; 18

(10) There is no evidence that the parties has executed the MOT. The SPA was stamped more than 1 year 9 months;

(11) There seems to be no haste in completing the sale and purchase of the said property;

(12) The stamping of the SPA on 6.11.2015 was done after the legal notice dated 5.10.2015 was issued by the Plaintiff’s solicitor to the Defendant; and

(13) The Plaintiff asserted that he tried to get the property transferred to him but the Defendant requested for time but such assertion was not supported by any contemporary documentary evidence. [42] The learned judge was of the view that when taken into account these peculiarities collectively, it could only mean that the parties did not intend for the SPA to be acted upon immediately. This according to her gives credence to the Defendant’s case that the SPA was never intended to be an outright sale and purchase transaction but rather a collateral agreement or security for the investment made by the Plaintiff in the joint venture business to be undertaken through AAR Fusion. Further, the two (2) events, i.e. the signing of the SPA between the Plaintiff and the Defendant and the joint venture between the Plaintiff and DW2 happened at the same time. They were connected to each other. We are satisfied with the learned judge’s explanation and she did not make any error in forming her 19 view. In our position, the peculiarities stated above would give rise to presumption that the SPA is not to be strictly enforced. [43] The Plaintiff heavily relied on the AAR Fusion’s letter dated 28.2.2014 issued by DW2 to show that the payment of the purchase price of the said property has been paid and acknowledged by DW2. It was submitted that the evidence by both DW1 and DW2 clearly show that DW2 was given the authority by DW1 to handle the sale and purchase transaction. However, the learned judge assessment of DW1’s evidence found that although DW1 had given the authority to DW2 in respect of the SPA, it was on the understanding that it was for the purpose of security or collateral to secure the Plaintiff’s investment in AAR Fusion and not as an outright sale. Therefore, the issuance of the said letter dated 28.2.2014 must be viewed in that context. Further, the said letter was issued by AAR Fusion and not by DW2 and DW2 merely signed it on behalf of AAR Fusion. On our part, we see no reason to disagree with the view arrived at by the learned judge because she has the specific audio-visual advantage in respect of the assessment of the credibility of the oral evidence. [44] Having considered the evidence before her, the learned judge made a finding that the said sum of RM 775,000.00 paid by the Plaintiff to AAR Fusion was the investment money and not payment of the purchase price of the said property. She also concluded that with the finding, it also mean that there was no payment of the purchase price for the said property in accordance with the SPA. As we have alluded to earlier, the findings of fact by the trial Judge on such evidence is entitled to great weight. With that, we did not see any 20 reason to disturb her finding or that her finding appear to be a misdirection to warrant appellate intervention. [45] The crux of Plaintiff’s counsel argument is based on the principle of law that parties are bound by the contract and its terms and conditions. It does not matter whether parties have read and understood its terms and conditions except the present of fraud and misrepresentation. We noted that such argument has been addressed by the learned judge in her grounds of judgment. Most importantly, the learned judge did not view the case from the perspective of breaches of terms and conditions of the contract or whether the SPA was signed by both parties but rather whether the SPA was an outright sale or whether it was intended to be merely a collateral or security. [46] Before her, there are two versions and her approach is when faced with two versions, she has to consider the evidence in totality. Having done that, she found the Defendant’s version is more probable. In other words, she found that the Defendant has, on the balance of probabilities proved that the SPA was not intended to be an outright sale but merely as a security to the Plaintiff’s investment in AAR Fusion. In our view, the learned judge is entitled to make her decision on which versions she would believe to be more probable having analysed all the evidence before her. We are satisfied that the learned judge has applied her mind properly and followed the correct principle of law in making her decision in this matter. [47] The learned judge has found that the parties did not intend for the SPA to be acted upon immediately. The action of parties is seen very glaring particularly the Plaintiff who did not at all act or take any 21 action to have the property transferred to him soon after the payment of RM 775,000.00 to AAR Fusion was made. The evidence shows that the Plaintiff only took action for the first time on 5.10.2015 when his solicitors sent a letter to the Defendant’s solicitor. Even at the material time the SPA was not stamped yet. It was also in evidence that, at the material time according to the Plaintiff, he has taken control of AAR Fusion and there already existed internal dispute in the company between the Plaintiff and DW2. It is not disputed that the Plaintiff being the shareholder and a director of AAR Fusion filed a petition to wind-up the company on 16.2.2016 for the sum of RM 815,000.00. The court on 14.7.2016 ordered AAR Fusion to be wound-up. [48] The Plaintiff contended that the sum of RM 815,000.00 was separate from the RM 775,000.00 that he has paid purportedly for the purchase price of the said property. However, the learned judge found the Plaintiff has not sufficiently proved and showed that he has in fact pumped in that additional sum of money into AAR Fusion (see Notes of Evidence at pg. 79-80 of the Appeal Record). Accordingly, the learned judge was of the view that it is probable that the sum RM 815,000.00 could be part of the RM 755,000.00 that was paid earlier at the time when the SPA was signed. This according to her is another factor that supports the Defendant’s case that the SPA was merely entered for the purpose of being a security to the Plaintiff’s investment in AAR Fusion. In our view, based on the available facts, it is not wrong for the learned judge to have come to such view. 22 [49] Based on the above facts and circumstances of the case, the Plaintiff’s claim was dismissed with cost of RM 10,000.00. We have read the whole decision of the learned judge and armed with the same facts and circumstances of the case we would arrived at the same conclusion of the learned judge that the SPA was entered into by the parties merely for the purpose of collateral or security to the Plaintiff’s investment in AAR Fusion. Conclusion [50] We see no error on the part of the learned judge in exercising her discretion in the manner that she did. She did not take into account irrelevant considerations. Appellate courts generally do not disturb the manner in which a judge exercises her discretion unless there is a blatant error. Here, there was no such blatant error. It is our unanimous decision that the Plaintiff’s appeal is dismissed with costs of RM 5,000.00 subject to allocator. Dated this 9 December, 2020 sgd KAMALUDIN MD. SAID JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA 23 Parties

1. Samreet Singh and Parvinder Kaur Sandhu for the Appellant (Messrs Lovelace & Hastings)

2. Jennifer Thomas for the Respondent (Messrs Jennifer Thomas & Co.)