Yeoh Keng Tat v Sl Land Sdn Bhd (BA-12BNCvC-77-12/2024)

This is an appeal arising from a dispute over a differential sum allegedly payable under a sale and purchase agreement involving twelve units of properties. The Appellant/Defendant contended that the parties shared a close personal relationship at the material time, within which there arose an oral understanding that the differential sum would be waived. The Respondent/Plaintiff rejected this claim, insisting that no such agreement was reached and that the written terms of the contract are clear, binding, and enforceable. The Sessions Court accepted the Respondent/Plaintiff’s position and entered judgment in its favour after full trial. The Appellant now challenges that decision, alleging errors of both law and fact.

The overriding issue is whether the Respondent/Plaintiff is entitled to the reliefs as prayed for in its Amended Statement of Claim and for this appeal to be dismissed.

The relevant background facts were set out by the learned Sessions Court Judge in the following paragraphs of her grounds of judgment.

The Plaintiff is a company engaged in property development and investment. The Defendant is an individual who entered into twelve (12) Sale and Purchase Agreements (SPAs) with the Plaintiff on March 27, 2015, for the purchase of twelve (12) commercial shop parcels (referred to as “12 Parcels”) located in a project known as “Bazar Sentral” on several plots of land in Nilai, Negeri Sembilan. The terms and clauses of the SPAs are identical, except for the purchase prices and specific unit details.

The Defendant is related to the Plaintiff’s former directors, Mr. Yeoh Thiam Soon (referred to as “SP1” in this matter) and Mr. Yeoh Thiam Leong, as their nephew.

The Defendant secured partial financing for the purchase of the 12 Parcels from United Overseas Bank (Malaysia) Bhd (UOB Bank). However, the financing did not cover the entire purchase price, leaving a balance that the Defendant is obligated to pay to the Plaintiff. …

The commercial shop buildings in the Bazar Sentral Project, including the 12 Parcels, were completed in 2016. Vacant possession of the 12 Parcels has either been handed over to or is deemed to have been handed over to the Defendant.

The keys to the 12 Parcels remain in the possession of the Plaintiff as the Defendant has yet to settle the outstanding amount of RM317,562.28. This amount includes interest, charges, and other costs such as quit rent, assessment tax, and electricity deposit as of December 31, 2016 (collectively referred to as “the Outstanding Sum”).

The Sessions Court found that the Plaintiff had proven its case on a balance of probabilities after full trial (see SL Land Sdn Bhd v Yeoh Keng Tat [2024] MLJU 3661). That decision was premised of the following reasons.

First, learned Sessions Court Judge rejected the Defendant’s evidence that both the Plaintiff and the Defendant had reached some understanding or arrangement with regard to the differential sum. According to the learned Sessions Court Judge, the Defendant’s evidence clearly offended the parole evidence rule. The Sessions Court refused to consider any additional terms which were not reduced into writing within the contract (see paragraphs [28] – [34]).

Second, the learned Sessions Court Judge noted that the Plaintiff has denied the alleged agreement of waiving the differential sum. Following the trite principle that a party who alleges must prove it; the findings of the Sessions Court were that the Defendant failed to prove such waiver (see paragraphs [35] – [39]).

In determining whether the purported “Consent by Developer/Landowner” allegedly signed by the Plaintiff and the purported “Bank Release Letter” allegedly issued by United Overseas Bank (Malaysia) Bhd were sufficient to establish that the Plaintiff had waived its right to claim the difference between the purchase price and the Defendant’s bank loan, the Sessions Court found that no full settlement letter or valid release letter, as alleged by the Defendant, had ever been produced in court. The burden lay on the Defendant to prove this 5 allegation, but they failed to discharge it. The learned Sessions Court Judge opined that it is trite that a party must adduce evidence and not rely on speculation. It was further held that the Defendant’s assertions were based on mere conjecture and unfounded assumptions, devoid of evidential support (see paragraphs [40] – [43]).

Fourth, the Sessions Court referred to the Defendant’s own admission during the trial that he was fully aware of the notices issued in relation to the Delivery of Vacant Possession, as well as the reminders for him to settle the differential sum, but he chose to ignore them. In light of this, the Sessions Court held that the Defendant’s reliance on Clause 6.6 of the Agreement was misplaced and of no relevance. The Sessions Court further noted the Defendant’s admission that he had never made any payment towards the outstanding differential sum (see paragraphs [44] – [49]).

Fifth, the Sessions Court found that the Plaintiff, as vendor, has testified that vacant possession was ready to be delivered but the keys were withheld due to the Defendant’s failure to pay the outstanding differential sum. In this context, the Sessions Court held that the Appellant/Defendant’s reliance on the notion of “normal practice” in the delivery of vacant possession was both misplaced and irrelevant in the circumstances. The Sessions Court acknowledged that the Plaintiff has addressed and rebutted this contention by establishing, without dispute, that the differential sum remains unpaid. Hence, the Defendant’s continued invocation of “normal practice”, according to the Sessions Court, did not engage with the real issue at hand, namely, the unresolved obligation to pay the differential sum (see paragraphs [50] – [51]).

On the issue of a lease agreement, the Sessions Court held that it was never pleaded by the Defendant, nor was it raised as a line of defence in their Amended Defence (Enclosure 40), which the Sessions Court noted as having been “filed at a very late stage of the case management on 22.5.2023, compared to the initial Defence filed on 8.3.2021” (see paragraphs [52] – [59]).

Seventh, the learned Sessions Court also made a finding that the Plaintiff’s assertion was “well-supported by the contemporaneous documents tendered as evidence, whereas the Defendant’s assertion lacks any substantive or credible support.” (see paragraphs [60] – [65]).

The eighth reason advanced by the Sessions Court was what it termed as the “Commercial rationale for rejecting further discounts beyond the 30% rebate” (see paragraphs [66] – [67]).

Last but not least, the Sessions Court also held that there was no issue of delay/laches in the instant case, as the suit was still filed within the timeframe. The Sessions Court also noted that “prior to this suit, actions were also taken to collect the outstanding sum” (see paragraphs [68] – [69]).

The learned Sessions Court Judge concluded as follows:

Based on the legal principles and authorities cited which emphasize the sanctity of contracts, the inadmissibility of unsupported claims, and the importance of adherence to agreed terms, this court 7 concludes that the Defendant’s attempt to introduce additional terms or to assert an alleged understanding or arrangement regarding the differential sum directly contradicts the express terms of the written Agreement and is inadmissible under the parole evidence rule.

The Plaintiff has fulfilled its obligations under the SPA and sought to enforce the Defendant’s compliance with his financial obligations. The Defendant’s assertion of an understanding between the Plaintiff’s director and himself to waive the differential sum is unsubstantiated, self-serving and lack probative value. The Defendant’s statement of defence lacks cogent evidence and is merely an attempt to mislead the court.

Based on the foregoing, the Plaintiff’s claim is granted, with costs amounting to RM15,000.

The Appellant/Defendant advanced several grounds in support of the appeal, alleging that the learned Sessions Court Judge erred in both fact and law. The grounds advanced were as follows:

Puan Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila tidak mempertimbangan hubungan peribadi Perayu dengan pihak Responden/Plantif/Responden dan bahawanya ia adalah biasa untuk mencapai sesuatu situasi yang akan memberi faedah kepada kedua-dua pihak dan bukan satu perkara aneh untuk pihak-pihak mencapai persefahaman di luar kontrak. Ini adalah keterangan saksi Plantif/Responden/Responden sendiri;

Puan Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila tidak mempertimbangkan bahawa Saksi Plantif/Responden juga memberi keterangan bahawa dia berjumpa dengan perayu pada Oktober 2017 dan Jun 2018 untuk berbincang kononnya mengenai hutang perayu dengan Plantif/Responden dan Plantif/Responden juga berhutang dengan Defendan/Perayu. Saksi Plantif/Responden memberi keterangan bahawa kedua-dua pihak bersetuju membayar hutang sesame lain. Saksi Plantif/Responden kemudiannya memberi keterangan bahawa bayaran sebanyak dua kali dibuat oleh Plantif/Responden, pertama pada Oktober 2017 dan keduannya pada Jun 2018. Pada semua masa material, tiada apa-apa bayaran dibuat oleh perayu kepada Plantif/Responden untuk jumlah yang kononnya terakru. Jika pihak mempunyai pemahaman untuk membayar hutang sesama lain dan tiada bayaran daripada Defendan/Perayu, ianya tidak berasas untuk Plantif/Responden membuat bayaran kepada Defendan/Perayu pada dua (2) tahun berlainan.;

Puan Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila tidak mempertimbangan bahawanya terdapat klausaklausa dalam perjanjian jual beli dan juga perjanjian pinjaman yang jelas menyatakan bahawanya jika terdapatnya tunggakan, jumlah pinjaman tidak akan dilepaskan oleh pihak bank;

Puan Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila tidak memtimbangkan bahawanya ia adalah satu “common practice” untuk bank untuk hanya melepaskan jumlah pinjaman selepas semua tunggakan dibayar dan surat dihantar oleh peguamcara Plantif/Responden dan/atau Plantif/Responden kepada bank, iaitu surat “clearance”;

Puan Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila mendapati bahawa Defendan/Perayu gagal untuk menyertakan surat “clearance” tersebut apabila peguamcara yang mengendalikan perjanjian jual beli harus mengemukakan satu surat yang mengatakan bahawa Defendan/Perayu telahpun membayar semua tunggakan dan tiada apa-apa jumlah yang masih tertunggak. Ini hanya boleh dilakukan oleh peguamcara tersebut setelah mendapatkan arahan daripada Plantif/Responden. Memandangkan jumlah pinjaman tersebut diserahkan kepada Plantif/Responden, ini adalah satu fakta yang tidak dipertikaikan oleh mana mana pihak, ini menunjukkan bahawa Plantif/Responden telahpun memberi arahan kepada peguamcaranya untuk memberi pihak bank suatu surat “release letter” yang menyatakan bahawa tiada apa-apa tunggakan.

Puan Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila gagal untuk mempertimbangkan bahawa milikan kosong sedia diberikan kepada Defendan/Perayu untuk semua 12 unit dan ia adalah satu fakta yang tidak dipertikaikan memandangkan terdapatnya surat daripada Plantif/Responden kepada Defendan/Perayu untuk mengambil milikan kosong.

Puan Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila tidak mempertimbangkan bahawa

Puan Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila mengambil tidak mempertimbangkan,ia adalah satu amalan biasa di Malaysia bahawa sebelum pemaju boleh menghantar milikan kosong , mereka mesti memastikan bahawa: a) Sijil Tamat dan Pematuhan (CCC) telah dikeluarkan oleh pihak berkuasa tempatan. Dokumen ini mengesahkan bahawa harta tersebut telah siap dan selamat untuk diduduki. b) Bekalan elektrik dan air sedia untuk disambungkan. c) Pembeli telah membayar baki harga pembelian mengikut jadual pembayaran. Sebaik sahaja ketiga-tiga syarat telah dipenuhi, notis akan dikeluarkan kepada pembeli untuk mengambil kunci hartanah sama ada di pejabat pemaju atau pejabat peguam. Pembeli akan dikehendaki menandatangani satu set borang yang disediakan oleh pemaju untuk mengakui penerimaan kunci, CCC dan senarai kelengkapan dan lekapan;

Puan Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila tidak mempertimbangan bahawa Plantif/Responden tidak dapat menjelaskan kenapa milikan kosong diberikan kepada Defendan/Perayu jika terdapatnya kononnya tunggakan-adakah Plantif/Responden tidak mengikut klausa-klausa seperti dalam perjanjian jual beli dan adakah Plantif/Responden tidak mengamalkan standard biasa amalan semua pemaju;

Puan Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila tidak mempertimbangkan hakikat bahawa surat pemilikan kosong telah dikeluarkan, secara langsung menyokong pembelaan Defendan/Perayu bahawa tiada jumlah terhutang kepada Plantif/Responden. Hakikat bahawa pinjaman telah dikeluarkan sepenuhnya juga menyokong pertikaian ini. Tiada apa-apa yang dikemukakan oleh Plantif/Responden untuk menunjukkan sebaliknya;

Puan Hakim Yang Bijaksana telah terkhilaf dari segi undang-undang dan fakta apabila tidak mempertimbangkan bahawanya Plantif/Responden telah memulakan pengisuan bil-bil penyelenggaraan (“maintenance fees”) fakta yang tidak dipertikaikan oleh mana-mana pihak dan juga disokong oleh dokumen yang difailkan di Mahkamah yang Mulia ini. Fakta ini jelas menunjukkan bahawa milikan kosong diberikan dan tiadanya apa-apa tunggakan. [16] The Respondent/Plaintiff’s responded with the following contentions, that is:

The Sessions Court did not commit any error of law and/or fact in allowing the Respondent/Plaintiff’s claim against the

The court is not duty bound to go beyond the documents adduced;

No Promises were made to waive the differential sum;

The purported consent by the Developer/Landowner and/or the release letter by United Overseas Bank do not exists; and

That despite its readiness to deliver vacant possession of the 12 parcels, the Respondent/Plaintiff was still withholding the keys to the 12 parcels due to the non-payment of the Outstanding Sum by the Appellant/Defendant [17] In his submissions in reply, the Appellant/Defendant reiterated, inter alia, that the Sessions Court’s decision warrants appellate intervention due to material errors of law, critical findings of fact unsupported by the evidence, and a failure to properly consider relevant and corroborative evidence. It was submitted that the Sessions Court wrongly applied the doctrine of estoppel and the parole evidence rule inconsistently between parties, and erroneously recorded that the Appellant/Defendant had admitted to receiving notices of the outstanding sum. [19] The Appellant/Defendant further asserted that the trial court gave undue weight to the testimonies of the Respondent/Plaintiff' witnesses (SP1 and SP2) while failing to consider the full contractual context, the natural sequence of events, and the Appellant's evidence. [20] The Appellant maintained that there was an oral understanding between the parties concerning a waiver of the differential sum, which was supported by the conduct of the parties, including two separate payments made by the Respondent/Plaintiff to the Appellant/Defendant. [21] In this regard, reliance was placed on the Federal Court’s decision in Yogananthy A S Thambaiya v Harta Pusaka Idris Osman [2021] 3 AMR 360; [2020] 6 CLJ 151; [2020] 5 MLJ 455; [2020] 3 MLRA 393, for the proposition that a court may have recourse to extrinsic evidence, including the conduct of parties, when interpreting contractual arrangements. [22] In the Respondent/Plaintiff’s reply submissions it emphasized that “it is an undisputed fact that the Appellant never paid the differential sum stipulated in the sale and purchase agreement”. The core of the Appellant/Defendant’s case, namely, an alleged understanding that the differential sum was waived or discounted, was heavily disputed. The Respondent/Paintiff highlighted that this alleged understanding is unsupported by any written documentation and only arose from the Appellant/Defendant’s own testimony. [23] The Respondent/Plaintiff further submitted that the burden of proof lies with the Appellant/Defendant to establish the existence of such an agreement, pursuant to sections 101 and 102 of the Evidence Act 1950, and this burden has not been discharged. Reference was made to the Federal Court decision in Rosliza Ibrahim v Kerajaan Negeri Selangor [2021] 2 AMR 551; [2021] 3 CLJ 301; [2021] 2 MLJ 181; [2021] 2 MLRA 70 and the High Court case of Harvinder Singh Santa Singh v Pu Say Chiang & Anor [2022] CLJU 2476; [2022] MLJU 3619; [2022] MLRHU 2966, where the courts underscored the importance of contemporaneous documentary evidence in establishing any variation to a contractual agreement. [24] The Respondent/Plaintiff contended that the Appellant/Defendant failed to adduce critical evidence, including any written clearance letter or testimony from the financier or their solicitors, despite the Appellant/Defendant’s reliance on such a document to support the alleged waiver. It was submitted that adverse inference should be drawn against the Appellant/Defendant pursuant to section 114(g) of the Evidence Act 1950, as the Appellant/Defendant failed to call these key witnesses. Case authorities including AB Latef & Associates (M) Sdn Bhd v. Govindasamy A/L Suppiah [2016] 10 CLJ 1; [2016] 5 MLJ 508; [2016] 4 MLRA 163 and Yong Chou Chuen v Ling Ming Sing & Anor [2003] CLJU 676; [2004] 5 MLJ 551; [2003] 5 MLRH 261 were cited in support of this contention. [25] The Respondent/Plaintiff also rebutted the Appellant/Defendant’s reliance on alleged family ties to justify any variation to the contractual terms, arguing that such a basis has no standing in law. The Respondent/Plaintiff invoked the principle of contractual sanctity, referring to Bank Islam Malaysia Bhd v Lim Kok Hoe & Anor [2010] 2 AMR 647; [2010] 6 CLJ 22; [2009] 6 MLJ 839; [2009] 2 MLRA 397 and section 19 of the Contracts Act 1950. [26] In response to the Appellant/Defendant’s argument on delay, the Respondent/Plaintiff noted that the limitation period for a breach of contract is six years under section 6(1)(a) of the Limitation Act 1953. [27] Finally, the Respondent/Plaintiff maintained that vacant possession was not delivered as the Appellant/Defendant failed to pay the full purchase price, including the differential sum, and asserted that the Respondent/Plaintiff had consistently demanded payment and had not terminated the agreement. The Decision of this Court [28] This Court has approached this appeal by way of a re-hearing, as mandated by Order 55 rule 2 of the Rules of Court 2012. [29] As a starting point, it is important to recall the guidance and reminder issued by the Court of Appeal in Nor Hazliza bt Ismail & Anor v Mohamed Yusoff bin Shaik Madar [2024] AMEJ 0258; [2024] 4 CLJ 353; [2024] 4 MLJ 770; [2024] 3 MLRA 371, which this Court is bound to follow and apply, in approaching an appeal by way of re-hearing. The principles, as set out by the Court of Appeal, warrant reproduction in full for clarity and proper application. [31] Firstly, when an appeal is heard by way of a re-hearing, the appellate court should not regard the appeal as a review of the exercise of the judge’s discretion (see Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 (SC) and National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 (FC). [32] Secondly, the word ‘re-hearing’ is defined in Black’s Law Dictionary as a second consideration to bring to the appellate court’s attention any error, omission, or oversight in the first consideration, as can be seen below: REHEARING. Second consideration of cause for sole purpose of calling to court’s attention any error, omission, or oversight in first consideration. Lake v State 100 Fla 373; 129 So 827, 829. A retrial of issues and presumes notice to parties entitled thereto and opportunity for them to be heard. Yee v State Board of Equalization of California 16 Cal App 2d 417; 60R2d322, 323. (Emphasis added.) [33] Thirdly, the appellate court is authorised to make such an order on appeal as ought to be made according to the law at the date of appeal and not at the date of the trial. In Government of Malaysia v Zainal bin Hashim [1977] 2 MLJ 254b, the Federal Court, through His Lordship Suffian LP (as he then was), cited with approval the decision by the UK Court of Appeal in Quilter v Mapleson (1882) 9 QBD 672 and held as follows: Appeals to this court are by way of rehearing and we may give any judgment, make any order which ought to have been given or made (by the trial court and make such further or other orders as the case requires, ss 69(1) and (4) of the Courts of Judicature Act No 7 of

This means, on the authority of Quilter v Mapleson (1882) 9 QBD 672 that we are authorised to make such order on this appeal as ought to be made according to the law as it stands not at the time of the trial but at the time of this appeal. (Emphasis added.) [34] Fourthly, the appellate court is entitled to touch upon issues not touched upon by the learned trial judge. This court in Datuk Bandar Majlis Bandaraya Shah Alam & Anor v Yusuf bin Awang & Ors [2007] 7 MLJ 327 held as follows: [60] On this ground alone, I find it justified to allow prayer 1 of end

Though it is true that the learned trial judge had not touched on this principal issue despite having heard arguments on it during the hearing of end 1, nevertheless, since this appeal is by way of a re-hearing s 69(1) of the Courts of Judicature Act 1964) I am permitted to arrive at the conclusion as stated. (Emphasis added.) [35] Lastly and most importantly, the provision that an appeal is a rehearing means that the appeal is a re-hearing of what was placed as evidence before the trial court. In short, the appellate court may look at and re-assess the evidence presented before the trial court for the sake of justice in the case. We affirm our earlier decision in Young Yean Chin & Ors v Quek Yak Kang & Ors [2016] MLJU 1737; [2016] 6 CLJ 860, in which it was held as follows: [27] Though the learned High Court judge had disregarded the defendants’ afidavit balasan, (and we agree for the reason we have stated above), we as the appellate court may look at the evidence for the sake of justice of the case. This is permissible under s 69(1) of the CJA 1964 and r 5(1) of the Rules of the Court of Appeal 1994 where it provides that hearing of civil appeal by the Court of Appeal is by way of rehearing. That means that we can reassess the evidence adduced before the trial court. (Emphasis added.) [30] What may be distilled from the above are as follows. [31] First, when an appeal is by way of rehearing, an appellate court is not confined to reviewing whether the trial judge correctly exercised discretion. Instead, it conducts a fresh examination of the matter, as reaffirmed in by our apex courts in Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] CLJ Rep 182; [1987] 2 MLJ 183; [1986] 1 MLRA 269 and National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 1 CLJ Rep 283; [1984] 2 MLJ 300; [1984] 1 MLRA 190. [32] Second, the term “rehearing” implies a second consideration of the case, allowing an appellate court to address any errors, omissions, or oversights in the trial court’s decision, with the parties being given a fresh opportunity to be heard. [33] Third, an appellate court may apply the law as it stands at the time of the appeal, not merely as it was at trial. This principle ensures the decision reflects the legal position at the time of appellate determination. [34] Fourth, an appellate court may address issues not decided upon by the trial judge, particularly where such issues were raised but not ruled on below. [35] Fifth, as the appeal is by way of rehearing, the appellate court is entitled to re-evaluate the evidence that was before the trial court, in the interest of justice. [36] Having carefully considered the entirety of the evidence presented before the Sessions Court, the applicable legal principles, and the respective submissions advanced by learned counsel for both parties, this Court, in its appellate capacity, has conducted a fresh examination of the matter. [37] This Court has also afforded the parties with a fresh opportunity to be heard, thereby addressing any errors, omissions, or oversights that may have occurred in the trial court’s decision. [38] Guided by the above principles, and bearing in mind that the central issue remains the dispute between the parties as ventilated at trial, this Court finds no cogent or justifiable reason to depart from or disturb the findings and conclusion of the learned Sessions Court Judge. [39] Accordingly, the decision of the Sessions Court is hereby affirmed. [40] This appeal is dismissed with costs of RM30,000.00 to be paid by the Appellant/Defendant to the Respondent/Plaintiff. Dated: 25 June, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Patricia Louis a/p Ronald Louis for the Appellant (Messrs. Vinodhan Kuppusamy) Tirasak Chiranakorn Chua for the Respondent (Messrs. Enho Grace & Partners)