Yogananthy A/P A.S Thambaiya v Idris Bin Osman (J-02(W)-1653-09/2016)

1 IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA (APPELATE JURISDICTION) CIVIL APPEAL NO: J-02(W)-1653-09/2016 BETWEEN YOGANANTHY A/P A.S THAMBAIYA ... APPELLANT AND IDRIS BIN OSMAN … RESPONDENT [In The Matter of the High Court of Malaya at Johor Bahru Civil Suit No: 22-160-1995 Between Yogananthy A/P A.S Thambaiya ... Plaintiff And Idris Bin Osman … Defendant] CORAM: HAMID SULTAN ABU BACKER, JCA MARY LIM THIAM SUAN, JCA SURAYA OTHMAN, JCA 2 JUDGMENT OF THE COURT INTRODUCTION [1] The appeals before us are against the decision of the Judicial Commissioner (“JC”), after a full retrial at Johor Bahru, delivered on 29.7.2016 dismissing the claim by the Appellant/Plaintiff with costs of RM100,000.00 and the Counter-claim by the Respondent/Defendant with costs of RM40,000.00. Both parties appealed against the decision of the learned JC. [2] The claim by the Appellant is for damages, and in the alternative, in lieu of damages, specific performance for breach of contract by the Respondent predicated on two documents, i.e. a Statutory Declaration dated 12.8.1987 and a Loan Agreement dated 8.2.1988. The Counter-claim by the Respondent is for the sum of RM507,999.50 being an alleged overpayment made by the Respondent to the Appellant. [3] At the outset of hearing of the appeals, counsel for the Respondent withdrew his cross-appeal and we struck it out leaving only the Appellant’s appeal for consideration. [4] We proceeded to hear the Appellant’s appeal and dismissed it with costs of RM20,000.00. We now give our reasons. For ease of reference, in this judgment, parties will be referred to as they were in the High Court, the 3 Appellant, Yogananthy A/P A.S Thambaiya, as the Plaintiff and the Respondent, Idris bin Osman, as the Defendant. PLAINTIFF’S CLAIM [5] The Plaintiff is an individual and the Defendant, according to the Plaintiff, was at the material time the legal owner of 100% equity capital in a stock brokering company called R&I Securities Sdn Bhd (“R&I”). [6] The Plaintiff’s claims against the Defendant is for breach of contract by the Defendant predicated on two documents: i) a statutory declaration (“SD”) dated 12.8.1987 (paragraph 4 of the statement of claim (“SOC”)). ii) a written agreement (Loan Agreement) dated 8.2.1988 (paragraph 5 of the SOC). [7] The Plaintiff pleaded in paragraph 4 of the SOC that by the SD, in consideration of the Plaintiff assisting the Defendant in reorganizing a company called R&I of which the Defendant at the material time was the legal owner of 100% equity capital of the said company (pleaded in paragraph 2 of SOC), the Defendant agreed to transfer 55% of the shares in the company to the Plaintiff. [8] In paragraph 5 of the SOC, the Plaintiff pleaded that pursuant and subsequent to the above arrangements, the Plaintiff entered into a written 4 agreement dated 8.2.1988 which inter alia states that the Defendant is to transfer 55% shares in the R&I to the Plaintiff upon the terms and conditions therein stated which the Plaintiff shall refer to the full terms and conditions at the trial of this matter. [9] In paragraph 6 of the SOC, the Plaintiff pleaded that in breach of the Loan Agreement and SD, the Defendant disposed of the said shares to a third party. [10] In paragraph 7 of the SOC, the Plaintiff pleaded that by reason of the breach of the Defendant, the Plaintiff suffered loss and damages and therefore claimed for damages, or alternatively, in lieu of damages, specific performance of the Loan Agreement dated 8.2.1988, costs and interest. [11] To summarize, from the brief pleading, with seven (7) paragraphs, it is the Plaintiff’s case that the Plaintiff had assisted in reorganizing the Defendant’s stock broking company R&I which is under receivership, and in return, the Defendant had promised her 55% of the shares in R&I. The Defendant then had breached the SD and the Loan Agreement by not transferring the 55% shares in the said company to the Plaintiff but instead sold the said shares to a third party. Thus, the Plaintiff suffered loss and prayed among others, for damages, or in the alternative, in lieu of damages, specific performance, costs, interest thereon at the rate of 8% per annum from the date of filing till the date of judgment. 5 DEFENDANT’S DEFENCE [12] The Defendant’s pleaded defence (paragraph 3) is that, though the Defendant acknowledged signing the SD and the Loan Agreement, this was done in haste at the request and representation of one Bala Krishnan Ponniah (“Bala”), the Plaintiff’s husband, who is at all material times, an accountant with the public accounting firm of Hanafiah Raslan & Mohamad, (now known as Arthur Anderson & Co), and was acting for the Receiver of R&I and that the SD was for the use of the Receiver. [13] In paragraph 4 of the Defence, the Defendant pleaded that prior to the signing of the SD, the Defendant had discussions with Bala on the possibility of reviving the operations of R&I. A formal agreement was then drawn up dated 8.2.1988 at Bala’s office. It was only on this occasion that the Defendant was informed that the Plaintiff was to be the party named in the Loan Agreement to finance the revival of R&I and that the Defendant was to give the Plaintiff 55% of the profit derived therefrom. [14] In paragraph 5, the Defendant pleaded that neither he nor his solicitor were given a copy each of the SD and the Loan Agreement, (although Bala had promised to do so), until sometime in the year 1990 when the Defendant’s solicitors demanded for the same for notification thereof to the Inland Revenue Department, Johor Bahru. When the same were perused by the Defendant’s solicitor, the said documents were found to be completely at variance with what had been discussed for the revival of the operation of R&I. The Defendant’s solicitor informed Bala (who was at all material times 6 active in this transaction in place of the Plaintiff) that the validity of the said documents was in question because R&I was a Bumiputra company and a Member of the Kuala Lumpur Stock Exchange and it was contrary to the Defendant’s understanding of the scheme to revive the said company. [15] In paragraph 6, the Defendant pleaded that after the revelation, the relationship between Bala and the Defendant deteriorated and was estranged. At that time R&I was again in financial straits and the Defendant had no choice but to look for buyers of the shares in the company. At this juncture, not being ungrateful for the assistance given by Bala and with the persuasion of the solicitors, the Defendant agreed to give to Bala 50% of the proceeds of sale of the shares in R&I (after deduction of agreed costs and other disbursements). At this juncture, Bala again informed the Defendant that he will nominate the Plaintiff to receive the same. [16] In paragraph 7, the Defendant pleaded that on completion of the sale of the said shares in R&I, sometime on 28.2.1992, the Defendant through his solicitors, fully paid the Plaintiff the 50% of the proceeds of sale as agreed (after deduction of agreed costs and other disbursements) on 2.3.1992 and the Plaintiff duly acknowledged receipt of the same. COUNTER-CLAIM [17] The Defendant pleaded in paragraph 8 that his solicitor had discovered that the Plaintiff had been overpaid by a sum of RM507,999.50 and counter-claimed from the Plaintiff for the refund. The High Court had dismissed this counter-claim and the Defendant had appealed on the dismissal but later 7 withdrew the appeal when the matter came up for appeal before the Court of Appeal. Be that as it may, the facts elicited from the Counter-claim, the Plaintiff’s Reply and Defence to the Counter-claim and the Defendant’s Reply to the Defence to the Counter-claim are important to the understanding of the whole scenario of the appeal before us. REPLY AND DEFENCE TO COUNTER-CLAIM [18] The Plaintiff aver that R&I was at all material times a stock broking company that was suspended from trading in the stock market by the Kuala Lumpur Stock Exchange (“KLSE”) sometime in July, 1976. On February, 1979, UMBC Bank appointed a Receiver to manage R&I’s affairs. R&I needed about RM500,000.00 from the Plaintiff to revive the company. The Defendant approached the Plaintiff’s husband, (who was at all material times an accountant with the accounting firm of Hanafiah Raslan & Mohamed), and not the Receivers of the Company, to borrow the sum of RM500,00.00. The Defendant subsequently agreed that in consideration of the loan, the Defendant will transfer 55% share of R&I to the Plaintiff. At the insistence of the Plaintiff, the Defendant willingly signed the SD before a Commissioner of Oath. The Plaintiff aver that it was only after the representation by the conduct of the Defendant, that the Plaintiff subsequently executed the Loan Agreement with the Defendant on 8.2.1988 and accordingly disbursed the sum of RM500,000.00 to the Defendant. The Plaintiff denies the Defendant’s allegation that both the SD and the Loan Agreement were signed by the Defendant in haste and aver that this allegation is an afterthought and without any basis, especially when the Defendant was and is a businessman and a shareholder and director of a stock broking company. 8 [19] The Plaintiff further aver that the loan of RM500,000.00 and the assistance provided by the Plaintiff and/or his agents and servants, (including the Plaintiff’s husband), was instrumental in R&I coming out of its financial difficulties and ‘turning around’. It was at this juncture, after R&I had become financially sound, that the Defendant’s relationship with the Plaintiff turned sour, and thereafter the Plaintiff and her agents were unable to enforce the SD and the Loan Agreement to transfer the 55% equity of R&I to the Plaintiff. The Plaintiff deny that the Defendant had paid 50% of the profit of the sale of the shares in R&I to the Plaintiff’s husband and instead aver that any sums paid to the Plaintiff was in respect of the loan sum extended by the Plaintiff to the Defendant under the Loan Agreement. REPLY TO DEFENCE TO THE COUNTER-CLAIM [20] In reply to the Defence to the Counter-claim, the Defendant contends that the Plaintiff’s husband, Bala, first met the Defendant when Bala was acting as agent for the Receivers of R&I. In the course of several meetings between them, the Defendant sought advice from Bala on how to revive R&I. Arising out of these meetings, arrangements were made to compromise with the creditors of the company. It was at this juncture that Bala indicated to the Defendant that he would finance the revival of R&I to the extent of RM500,000.00 and pay off creditors, in consideration of the Defendant giving him 50% of the profits of R&I. [21] The Defendant aver that Bala failed to meet his obligations in full and R&I could not trade properly with limited funds. When the relationship 9 deteriorated, it was then resolved that R&I would be sold as a going concern and the Defendant agreed, (after much persuasion from his solicitors), to give Bala 50% of the proceeds of sale after deductions for expenses, as full and final settlement of any claim Bala might have for his efforts and financial assistance. The Defendant aver that the Plaintiff’s part/role in the whole transaction was when she executed the Loan Agreement dated 8.2.1988, as Bala’s nominee. SUMMARY OF PLEADINGS [22] To summarize, from the pleadings, it is the Plaintiffs case that the Plaintiff had managed to reorganize and uplift the Defendant’s stock broking company, R&I, (which had been suspended from trading in the KLSE and under receivership in July 1976), through the efforts of Bala who is the Plaintiff’s husband and an accountant with the accounting firm of Hanafiah Raslan & Mohamed and through a loan of RM500,000.00 given by the Plaintiff to the Defendant. In return for the assistance given by Bala and the Plaintiff to turn around R&I, the Defendant had promised the Plaintiff 55% of the shares in R&I to her. The agreement to give 55% of R&I’s shares to the Plaintiff was subsequently crystalized in the SD dated 12.8.1987 and Loan Agreement dated 8.2.1988 which the Defendant had signed willingly. The Defendant then had breached the SD and the Loan Agreement by not transferring the 55% shares in R&I to the Plaintiff but instead sold the said shares to a third party. Thus, the Plaintiff suffered loss and prayed among others, for damages, or in the alternative, in lieu of damages, specific performance, costs, interest thereon at the rate of 8% per annum from the date of filing till the date of judgment. 10 [23] The case of the defence is that the Defendant had discussions with Bala on the possibility of reviving the operations of R&I. To this purpose, Bala then made him signed the SD and the Loan Agreement which he did in haste at Bala’s office. It was only upon signing the Loan Agreement that the Defendant was informed that the Plaintiff was to be the party named in the Loan Agreement to finance the revival of R&I and that the Defendant was to give the Plaintiff 55% of the profit derived therefrom. The Defendant was not given copies of the SD and Loan Agreement until sometime in 1990 and upon perusal of these documents by the Defendant’s solicitors, they were found to be completely at variance with what had been discussed for the revival of the operation of R&I. The Defendant’s solicitors informed Bala that the validity of the said documents was in question because R&I was a Bumiputra company and a Member of the KLSE and it was contrary to the Defendant’s understanding of the scheme to revive R&I. After this revelation, the relationship between Bala and the Defendant deteriorated and became estranged. To resolve this, the Defendant decided to sell R&I as a going concern and with the persuasion of the solicitors, agreed to give to Bala 50% of the proceeds of sale of the shares in R&I as full and final settlement of any claim Bala might have for his efforts and financial assistance to the Defendant. The Defendant then sold R&I’s shares sometime on 28.2.1992, and through his solicitors, paid the Plaintiff 50% of the proceeds of sale as agreed, (after deduction of agreed costs and other disbursements), on 2.3.1992 and the Plaintiff duly acknowledged receipt of the same. The Defendant aver that the Plaintiff’s part/role in the whole transaction was when she executed the Loan Agreement dated 8.2.1988 as Bala’s nominee. 11 FINDINGS OF THE HIGH COURT [24] The findings of the learned JC in his grounds of judgment (“GOJ”) can be summarized as follows:

(ii) On the SD (“P3”) dated 12.8.1987, the learned JC found at paragraph 15 of GOJ that the contents of the SD (“P3”) are inadmissible as evidence and could not be used as proof to establish the truth of its contents that there was in existence an agreement between the Plaintiff and the Defendant for equity sharing in R&l. Further, the learned JC found that the mere admission of executing the SD did not absolve the Plaintiff from discharging its onus of proving the contents of the SD produced in court. Apart from the question of admissibility, on the undisputed evidence of the Defendant’s solicitor, Mr. Robert Lai Poh Fye (“DW1”), the circumstances did not allude to P3 being executed freely and voluntarily by the Defendant but in haste at the request 12 and representation of Bala (“PW2”). The evidence did not disclose that the Defendant was the author/maker of the statement in P3 voluntarily but had merely signed it at the instance of Bala, who, presumably must have already prepared it.

(iii) On the Loan Agreement (P2) dated 8.2.1988, the learned JC found at paragraph 19 of GOJ that it is the sole document that the Plaintiff could rely on to find her claim.

(iv) On the important and central role played by Bala in respect of the execution of the Loan Agreement and the performance of the obligations thereunder, the learned JC found that based on the evidence of the Plaintiff and Bala and the documentary evidence, that all the transactions were between the Defendant and Bala and the Plaintiff was merely being used as a front to pursue monetary benefits for Bala. The learned JC also found that the Plaintiff had no locus standi to institute the suit against the Defendant as both the SD and Loan Agreement did not reflect the truth as to the party who had entered into the agreement with the Defendant.

(vi) On the Loan Agreement being void and unenforceable on the ground of public policy, the learned JC found at paragraph 52 that the Loan Agreement between the Plaintiff and the Defendant is void and unenforceable pursuant to section 24(e) of the Contracts Act 1950 (Act 136) on the ground that it was contrary to public policy. The learned JC found that Bala, in his capacity as agent of the Receiver managing the affairs of R&I, had placed himself in a position of conflict of interest by using that position to benefit and enriched himself through the Plaintiff.

(vii) On the inconsistency/conflict between the evidence and the pleaded claim, the learned JC found at paragraph 28 of GOJ that the Plaintiff’s evidence presented a version that was in conflict or inconsistent with the version that is pleaded in her SOC. At paragraph 54 the learned JC stated that the Plaintiff’s pleaded claim was in direct conflict with the contemporaneous documentary evidence and at paragraph 55, the learned JC concluded that the promise of a 50% stake of the equity was claimed by Bala for all that he had done for the Defendant in regard to R&l which was contrary to the substratum of the pleaded claim contained in paragraphs 4 and 5 of the SOC. All dealings and arrangements were between Bala and the Defendant only whilst the Plaintiff was merely being used as a front to pursue monetary benefits for Bala. The contradiction between Bala's evidence and the pleaded claim on material facts was serious and manifestly clear. As it was not resolved with any credible evidence, it rendered the claim unsustainable on the proven facts. 14 Based on the reasons given above, the learned JC found that the Plaintiff had failed to prove her claim on the balance of probabilities and dismissed the Plaintiff’s claim with costs. GROUNDS OF APPEAL [29] There are twenty grounds of appeal which could be summarized as follows:

(ii) the learned JC erred in law and fact when he held that the SD handed by the Defendant to the Plaintiff in his lifetime was not to be marked as an exhibit and to be identified only when tendered by the Plaintiff despite the Defendant’s Defence admitting to the existence and validity of the SD. The learned JC erred in law and fact when he finally held that the SD can be marked as an exhibit only at the stage of the Defendant’s admission through his solicitor Mr Robert Lai Poh Fye (DW1) and thus reversing his earlier decision in his grounds of decision and judgment; 15

(iii) the learned JC erred in law and fact by failing to hold that the Defendant’s solicitor Mr Robert Lai Poh Fye (DW1) had clearly lied, was inconsistent, was evasive in light of clear documentary evidence, was in a position of conflict and was not credible;

(iv) the learned JC erred in law and fact when he failed to consider that the SD (P3) and the Loan Agreement (P2) were unrebutted documentary evidence to establish the Plaintiff’s 55% right to the Defendants equity in R&I;

(vi) the learned JC erred in law and fact by holding that the party with whom the Defendant had contracted with was the Plaintiff’s husband, Bala (PW2), when the primary and written original and unrebutted documents said otherwise, and when such contention was not pleaded by way of the Defendant’s defence and what was pleaded and conceded to were that the written documents between the Plaintiff and the Defendant was valid; and

(vii) the learned JC erred in law and fact when he held that the Plaintiff has not discharged her burden of proof of her claim. 16 OUR DECISION [30] This civil suit which is the subject of this appeal had a long and chequered history. The civil suit was filed in 1995. The Defendant passed away in 2004 and was substituted by his two sons who were granted Letters of Administration for the Defendant’s estate. The trial commenced in March 2012 and took four years to complete in 2016. The delay was due to the numerous interlocutory applications filed by the parties and orders made by the trial judge which orders were the subject of appeals to the Court of Appeal. [31] The first ground of appeal is on the sufficiency of pleadings, the 2nd ground is the contention that the SD should have been marked as an exhibit P from the onset, the 3rd is on the credibility of the Defendant’s solicitor, Mr Robert Lai Poh Fye (“DW1”), the 4th and 5th grounds are the contentions that the SD (“P3”) and the Loan Agreement (“P2”) are unrebutted documentary evidence that established the Plaintiff’s 55% right to the Defendant’s equity in R&I, the 6th ground is on the finding by the learned JC that the Defendant had contracted with the Plaintiff’s husband Bala (PW2) when this was not pleaded and the primary and written original and unrebutted documents said otherwise and the 7th ground is on the Plaintiff’s contention that it has discharged its burden of proof. Sufficiency of Pleadings [32] The Plaintiff contended that the learned JC erred in law and fact by holding that the SOC had not been sufficiently pleaded with material facts 17 and that the terms of the Loan Agreement (P2) were not pleaded in the SOC and had contravened the principles of pleadings. On this issue the Defendant contended that it is trite that all material facts ought to be pleaded and in the case of an agreement (citing the case of Turquand v Fearon [1879] 48 LJ Q.B. 703 and Ricardo G Tapel v Polar Twin Advanced (M) Sdn Bhd (Nicholas Lee Zse Young & Anor, third parties) [2013] 9 MLJ 69), the material terms in the agreement as to the date of the agreement, the names of all parties to it, the relevant documents identified ought to be pleaded as per the requirement of Order 18 rule 7(2) of the Rules of Court 2012 [P.U. Statutory Declaration [33] We will take grounds (ii),(iii),(iv), (v) and (vi) together as it relates to the SD and the Loan Agreement which are the basis on which the Plaintiff’s claim is found. The complaint by the Plaintiff is that the learned JC refused to mark the SD as an exhibit from the onset despite the Defendant’s Defence admitting to the existence and validity of the SD and that the learned JC only marked the SD as an exhibit at a later stage of trial, that is after the 18 Defendant’s solicitor, Mr Robert Lai Poh Fye, (DW1), admitted it in evidence. On this issue, we agreed with learned counsel for the Plaintiff that since the Defendant did admit in his Defence that he signed the SD, though “in haste”, the SD should have been marked as an exhibit “P” from the onset and the learned JC should not have waited until DW1’s evidence before marking it as an exhibit. Once this is done, the onus is then shifted to the Defendant to bring evidence to the contrary to neutralize or attach little weight to the SD. [34] The SD (“D3”) was signed by the Defendant on 12.8.1987 before a Commissioner for Oaths in Johor Bahru, P.S. Naidu. The SD is reproduced below: “STATUTORY DECLARATION I, IDRIS BIN OSMAN, I/C No. 2649623 of 155, Jalan Beringin, Melodies Garden, Johor Bahru, do solemnly and sincerely declare that :- 1) I am the legal owner of 100% of the equity capital of R & I SECURITIES SDN. with its registered office at Suite 7-1A, Kompleks Tun Abdul Razak, Jalan Wong Ah Fook, Johor Bahru and hereby undertake to transfer 55% of the equity capital to YOGANANTHY A/P A.S. THAMBAIYA, I/C No. 5629441 of No. 4, Jalan Bulat, Century Garden, 80250 Johor Bahru. 2) I am transferring the said 55% of the equity capital in R & I SECURITIES SDN. to YOGANANTHY A/P A.S. THAMBAIYA in consideration for her help in proposing the reorganisation scheme and putting forth the required collateral and cash as deemed necessary by the bankers for the revival and reactivation of the stockbroking business of R & I SECURITIES SDN. 19 3) I shall hold in trust the share certificates for the said 55% of the equity capital of R & I SECURITIES SDN. belonging to YOGANANTHY A/P A.S. THAMBAIYA for the benefit of her or her nominees until such time as the conditions for the holding of equity in the stockbroking company as required by the Kuala Lumpur Stock Exchange is satisfied by her or her nominees. 4) I shall endeavour to purchase or dispose off the said equity or a portion to a qualified person if for any reason the above mentioned equity or a portion cannot be transferred upon the requisite conditions being satisfied and the proceeds so received shall be given to the beneficiary of the equity holder. 5) I will undertake to employ YOGANANTHY A/P A.S. THAMBAIYA as a DEALERS ASSISTANT OR EXECUTIVE in the stockbroking company, R & I SECURITIES SDN. upon its resumption of the company’s business operations and endeavour to train her or nominee as deemed necessary. 6) I will endeavour to make every possible approach to the Committee of the Kuala Lumpur Stock Exchange and Registrar of Companies to enable the beneficiary of the 55% equity holder, YOGANANTHY A/P A.S. THAMBAIYA or her nominees to obtain membership of the Kuala Lumpur Stock Exchange and secure the Dealer’s licence in accordance to the SECURITIES INDUSTRY ACT 1973 upon her or her nominee obtaining more than a year experience as a Dealer’s Assistant or Executive in the stockbroking company. And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declaration Act, 1960. 20 Subscribed and solemnly declared by ) the above named Encik Idris Bin Osman ) signed i/c no. 2649623 at Johor Bahru in the ) presence of P.S. Naidu ) this 12th day of August 1987. ) Before me, signed P.S. NAIDU COMMISSIONER FOR OATHS JOHOR BAHRU Commissioner of Oath” [35] Owing to the death of both the Defendant and the Commissioner for Oaths, P.S. Naidu, prior to the commencement of the retrial, the admissibility of the SD was challenged by the Defendant. The learned JC found at paragraph 15 of the GOJ that the contents of the SD are inadmissible as evidence and could not be used as proof to establish the truth of its contents that there was in existence an agreement between the Plaintiff and the Defendant for equity sharing in R&l. Further, the learned JC found that the mere admission of executing the SD did not absolve the Plaintiff from discharging its onus of proving the contents of the SD produced in court. On this aspect, with respect, we disagree with the findings of the learned JC. As stated earlier, the Defendant had admitted in his Defence that he signed the SD. His solicitor, Mr Robert Lai Poh Fye (DW1), in cross-examination, when showed the SD, (then ID3 dated 12.8.1987) and asked whether the deceased Defendant had instructed him to file the Defence answered in the affirmative. DW1 was further asked whether the Defendant had acknowledged signing the SD in haste at the request and representation of 21 Bala and DW1 agreed. DW1 was then asked whether he could show which SD was acknowledged by the deceased Defendant and DW1 said: “I would rephrase my answer. This was the SD that I was instructed the late Idris signed”. [36] From the evidence of DWI and the admission in the Defence that the deceased Defendant did sign the SD, it is apparent that the SD is an admitted document and is admissible and was rightly marked by the learned JC as exhibit P (though he should have marked it earlier). That being so, the onus does not rest upon the Plaintiff to prove the contents of the SD but instead the onus has shifted to the Defendant to prove to the contrary by forwarding other evidence to neutralize or attach little weight to the SD. Thus in reaching the conclusion that the SD, (P3) is inadmissible and that the Plaintiff had not “proved its contents”, the learned JC erred and is plainly wrong in his finding. [37] On the contention by the Plaintiff that the learned JC had erred in law and fact in failing to hold that the Defendant’s solicitor Mr Robert Lai Poh Fye (DW1) had clearly lied, was inconsistent, was evasive in light of clear documentary evidence, was in a position of conflict and was not credible, we find from the evidence, that there is no basis to support these allegations by the Plaintiff. Loan Agreement [38] Having said that, we are of the view that the SD has been subsumed by the Loan Agreement (P2) dated 8.2.1988 which was a tripartite agreement 22 signed six months after the SD between the Plaintiff, the deceased Defendant and R&I. This is an agreed document and the learned JC is correct in holding that it is the sole document that the Plaintiff can rely upon to establish her claim. For easy reference, the entire Loan Agreement is reproduced below: “ THIS AGREEMENT made this 8th day of February 1988 Between IDRIS BIN OTHMAN (I/C NO. 2649623) of No. 155, Jalan Beringin, Melodies Garden, Johor Bahru (hereinafter referred to as the Qualifier) of the one part And YOGANANTHY A/P A.S. THAMBAIYA (I/C NO. 5629441) of No. 4, Jalan Bulat, Century Garden, 80250 Johor Bahru (hereinafter referred to as the Financier) of the second part and M/s R & I SECURITIES SENDIRIAN (hereinafter referred to as the Company) of the third part.

WHEREAS 1) M/s R & I Securities Sendirian is a Stock Brokering Company with an authorized capital of $3,000,000 divided into shares of $1.00 each of which 1,000,000 have been issued out and registered in the name of the Qualifier. 2) The Company was suspended from trading in the Stock Market by the Kuala Lumpur Stock Exchange on 6th July, 1976. 3) On 12th February, 1979, the Debenture Holder of the Company namely M/s United Malayan Banking Corporation appointed Receivers to manage the Company’s affairs. 4) The Receiver, Ahmad Kamal Al Yafii of Hanafiah Raslan & Mohamad managed the said Company since then and arranged for a composition with the Creditor Banks to pay them off to enable the 23 Company to resume Stock Brokering business with fresh capital injected to the Company. 5) The Financier has agreed to invest Malaysian Ringgit Five Hundred Thousand (MYR500,000.00) in the Company via a personal loan to the Qualifier to enable the company to pay off the creditors partially and the balance due to the creditors to be assumed by the Qualifier’s Company, BRILLIANT LIGHT ENTERPRISES SDN. BHD. and this is to be settled by the Qualifier’s Company in accordance to the Deed of Arrangement from the income or profits of the Company. NOW IT IS HEREBY AGREED as follows:- 1) The Financier shall loan the sum of Malaysian Ringgit Five Hundred Thousand (MYR500,000.00) in the Company via a personal loan to the Qualifier on condition that the Company shall reconstitute itself, pay-off creditors partially in accordance to the Deed of Arrangement and resume business as follows: a) The Company shall reconstitute itself as a Company with limited liability and call itself R & I Securities Sdn. Bhd.; b) The Company shall deem that the amount assumed by the Qualifier’s Company, Brilliant Light Enterprises Sdn. Bhd. in accordance to the Deed of Arrangement as a loan by the Qualifier; c) The deemed loans given to the Company by the Qualifier shall be assumed to be the contribution in cash by the Qualifier for the rights issue. d) The $1,000,000 paid up and issued shares of $1.00 each registered in the name of the Qualifier shall be increased via a 24 rights issue to $3,200,000 and be distributed as per attached Schedule of Shares; e) The Qualifier and Isa bin Mustapha being the only members of the Kuala Lumpur Stock Exchange shall hold all the Shares in the “Schedule of Shares” in the following proportion:- Qualifier 95% or 3,040,000 shares Isa bin Mustapha 5% or 160,000 shares d) The Qualifier shall hold the 95% of the Shares in the Company on his own behalf and as Trustees for the others named in the “Schedule of Shares” in the following proportion:- Qualifier 40% or 1,280,000 shares Yogananthy A/P A.S. Thambaiya 55% or 1,760,000 shares e) The Qualifier and the Receivers shall pay all the creditor Banks the initial sum in accordance to the Deed of Arrangement and get valid receipts and discharges from them.

4. The Stock Brokering business of the Company shall be managed by the Qualifier and Financier. The relevant staff shall be selected by the Qualifier and the Financier except that the Manager and the Accountant managing the Company’s account shall be selected by the Financiers alone.

5. All salaries scale to the staff shall be approved by the Qualifiers and the Financiers.

6. The Qualifier and Isa bin Mustapha shall be paid a salary of $1,500/- per month for two years from the date of commencement of business after which period they shall be paid a salary of not less than $2,500/- per 25 month. In addition the Company shall bear all travelling or motor expenses incurred as well as the house telephone bill.

7. All bank accounts and signatories to cheques shall be in the name of the Qualifier, Financier or her representative and Isa bin Mustapha.

8. After all creditors have been paid and discharged in accordance to the Deed of Arrangement and after paying all expenses, costs and disbursements the balance from the MYR500,000 loaned to the Qualifier shall be utilised to run the Stock Brokering business of the Company and the Company undertakes to repay the loan inclusive of interest on behalf of the Qualifier to the Financiers Company.

9. Pending the conversion of the Company into a private limited company the Company shall carry on business as a private unlimited company.

10. The Directors of the Company shall be the Qualifier and Isa bin Mustapha but at all Board of Directors’ Meetings the Financier or her representative and the Accountant shall attend as observers.

11. The composition of the Company or any appointments to its Board of Directors or any amendments to its Memorandum & Articles of Association (except for reconstituting as a private limited company) shall not be made without the consensus of the Qualifier, Financier and the Company.

12. This Agreement shall take effect upon payment of Malaysian Ringgit Two Hundred Thousand (MYR200,000.00) being deposit and part payment by the Financier, which sum shall be paid upon the signing of this Agreement, to the Company’s Consultant to settle the CONSULTANTS’ fee for restructuring, helping to uplift the Receivership, 26 reactivate the Stock Brokering business and settle all outstanding statutory filing requirements etc. prior to recommencement of trading.

13. If the Financier breach this Agreement or fail to proceed with it after payment of the initial deposit of Malaysian Ringgit Two Hundred Thousand (MYR200,000.00) the said deposit shall be forfeited as agreed liquidated damages to the Qualifier.

14. If the Qualifier shall breach or fail to proceed with this Agreement after the initial Malaysian Ringgit Two Hundred Thousand (MYR200,000.00) has been paid the sum of Malaysian Ringgit Two Hundred Thousand (MYR200,000.00) shall be refunded to the Financier and a further sum of Malaysian Ringgit Two Hundred Thousand (MYR200,000.00) shall be paid to the Financier by the Qualifier as agreed liquidated damages.” Central role played by Bala (PW2) Locus standi of Plaintiff (PW1) [39] The Plaintiff submitted that the learned JC’s finding that Bala played a central role and that all transactions were between Bala and the Defendant and not with the Plaintiff did not take into account the fact that the Plaintiff and Bala are a married couple who have a common interest in protecting the Plaintiff’s investment in R&I. Further, the Loan Agreement (P2) is an admitted document between the Plaintiff and the Defendant and the contents of the agreement showed that Defendant had agreed to transfer 55% of R&I’s shares to the Plaintiff in consideration of the Plaintiff granting him (Defendant) a personal loan of RM500,000.00. The Plaintiff argued that the learned JC had erred in finding that all dealings and arrangements were between Bala and the Defendant and that the Plaintiff was merely used as a 27 front to pursue monetary benefits for Bala and due to that the Plaintiff had no capacity and standing to commence an action against the Defendant, i.e. no locus standi to institute a suit against the Defendant. [40] On perusal of the pleadings, the central role played by Bala has been indirectly pleaded at paragraph 5 in the Defence and Counter-claim where the Defendant averred that “Bala was at all material times active in this transaction in place of the Plaintiff” and at paragraph 3 in the Reply to Defence to the Counter-claim where the Defendant averred that the “Plaintiff’s part in the whole transaction was when she executed the Loan Agreement dated 8.2.1988, as the said Bala Krishnan Ponniah’s nominee.” The learned JC found that Bala played an important and central role in respect of the execution of the Loan Agreement and performance of the obligations thereunder. At paragraph 34 the learned JC posed this question: “Did the evidence support the defence allegation of a scheme devised and engineered by PW2 who had merely used his wife (“PW1”) as a façade as he was then an employee/agent of the Receiver of R&l, then under receivership, and unable to use his own name due to a conflict of interest?” At paragraph 39, the learned JC answered his pose in the affirmative that: “From PW2's own documentary evidence, which was incontrovertible, it was beyond any doubt that under the impugned agreement with the deceased it was PW2 and not PW1 who was supposed to assume 50% equity control of R&l. To be noted is the fact that the purported SD was executed on 12.8.1987 and the Written Agreement on 8.2.1988, both of which clearly predated the letter dated 28.9.198. PW2 in the letter also alluded to the deceased holding 28 in trust 50% of PW2's share in the company and his interest in the equity. Hence, from PW2's own handwritten words, it was crystal clear what his role was in regard to the agreement or arrangement with the deceased in returning R&l to profitability”. [41] And at paragraph 45, the learned JC concluded that: “From the uncontroverted evidence in the form of the series of contemporaneous correspondence from PW2 to the deceased, the weight of evidence points invariably to the present agreement having actually been entered into between PW2 and the deceased without the involvement of PW1 in any share agreement with the deceased. When confronted with the letters personally written by him to the deceased which without doubt reflected the sole participation and central role of PW2 in the restructuring of R&l, PW2 made a desperate attempt to resolve the contradiction between his and PW1's evidence by explaining that by 'I' he meant 'we' referring to his wife and himself. In view of the ample evidence of all the efforts having come from him, this explanation certainly did not make sense at all and had no credibility whatsoever. This explanation did not merit any consideration. On the undisputed facts, he was indeed the deceased's ‘sleeping’ or ‘silent’ partner then.” [42] The learned JC went further to pose the question whether the Plaintiff has locus standi to bring this suit and answered that the Plaintiff has no locus standi to institute the suit against the Defendant since the Power of Attorney (“PA”) issued by Defendant was to Bala and not to the Plaintiff. The PA was executed by the Defendant on 8.8.1988 in the presence of PW11, Balaskanda, an advocate and solicitor. PW11’s role was limited to advising Bala and the Defendant on the legal aspects of some of the restructuring 29 agreements and to draft the PA appointing Bala as his attorney, which the Defendant signed before PW11. At paragraph 46, the learned JC stated: “There was further proof as to the person with whom the deceased ('ldris') had dealt or made arrangement with in regard to the restructuring of R&l. It was a Power of Attorney (P1) which ldris had issued to PW2 and not to PW1. If indeed PW1 was the contracting party with ldris who assisted the latter in reorganizing R&l as pleaded in paragraphs 4 and 5 of the SOC, it was improbable and did not make sense for ldris to have executed P1 in favour of PW2 and not PW1.” And the learned JC concluded that: “From the above circumstances, the only logical conclusion that can be drawn is that it was PW2 and not PW1 who had the capacity and standing to commence this action against the Defendant. On the uncontroverted facts and the contemporaneous documents, no locus standi was vested in the Plaintiff to institute this action. The SD ('Exhibit P3') and the Agreement did not, on a balance of probabilities, reflect the truth as to the party who entered into the Agreement with the deceased and the transaction between the deceased and PW1.” [43] The findings by the learned JC that the party with whom the Defendant had contracted with was Bala and not the Plaintiff since all dealings and arrangements were only between Bala and the Defendant whilst the Plaintiff was merely being used as a front to pursue monetary benefits for Bala and as such only Bala has the locus standi to bring a suit against the Defendant and not the Plaintiff, are findings of facts made by the learned JC based on evidence of witnesses and contemporaneous documents before him. The 30 learned JC has given sound reasons for his findings. In such circumstances we are of the view that the learned JC is not plainly wrong on his assessment of evidence before him. Payment of loan and 50% shares amounting to RM 3,556,000.00 by Defendant to Plaintiff [44] The learned JC stated at paragraph 29 that the Plaintiff was seeking specific performance of the Loan Agreement in that she is seeking for the transfer of the alleged 55% equity share in R&I to her name. At paragraph 29 of GOJ, the learned JC found that the Plaintiff knew about the disposal of R&I’s shares to a third party and had received her portion of the proceeds amounting to 50%. The Plaintiff had admitted receiving payment in the sum of RM3,556,000.00 on 2.3.1992 being payment of premium on 50% shares in R&I from the Defendant’s solicitors as reflected on the payment voucher bearing the same date, exhibit D105. The learned JC stated that this fact was not mentioned or disclosed by the Plaintiff in her SOC, even though it specifically relates to the sale of a quantity of shares in R&I to a third party. Due to this non-disclosure, the learned JC had serious doubts as to the truth and veracity of the Plaintiff’s allegation and found her explanation lacked credibility. At paragraph 33, the learned JC concluded: “From paragraph 6 of the SOC, it is amply clear that the crux of her case is that the alleged breach of agreement by the deceased stems from the sale of shares in R&l to a third party without her knowledge and payment to her of the alleged promised portion of 50 or 55 percent. In view of the uncontradicted evidence of having received more than RM 2.7 million as her portion from the 31 new purchaser and her explanation which lacked any credibility, there arose serious doubts as to the truth and veracity of the Plaintiff’s allegation of breach of contract by the deceased as pleaded in paragraph 6 of the SOC”. [45] Further, as stated at paragraph 30 of the GOJ, the Plaintiff in her testimony whilst under cross-examination, gave evidence explaining the receipt of RM6,293,333.00 by R&l for the sale of R&I’s shares of which her 55% share was the sum shown in exhibit D105. The figure 50% was an error as it should correctly read 55%. She explained that it was a first disposal which was actually a subscription issue where new investors purchased the rights of the Defendant and herself in R&l. In other words, it was a rights issue where a premium was paid to the owners by the subscribers. The voucher which she signed was prepared by the legal firm, M/S Jackson & Masacorale and the cheque was handed over to her by DW1 to whom she pointed out the error in the percentage which should correctly read 55%. Apparently DW1's response was that as the amount actually paid represented 55% of the proceeds, there was no need to change the percentage. The Plaintiff denied ever having made any statement to DW1 on the alleged error but maintained that Bala, her husband and her, did point out the error to DW1 when they went to collect the cheque but DW1 declined to correct it as the accounting figure was correct. [46] On this, the learned JC concluded at paragraph 51 of GOJ that: “In the light of the above evidence, the defence contended that PW1 had failed to prove her case on a balance of probabilities that she was entitled to 50% of the shares as, inter alia, despite being aware of the sale, the relevant and material facts pertaining to the sale were withheld and not pleaded. A 32 perusal of the SOC would show that nowhere in it is this sale of R&l shares mentioned nor receipt of the substantial payment by PW1. As alluded to, the Plaintiff's contention of this payment is that it was pursuant to a subscription exercise and not a sale from which she was not claiming anything. Nevertheless, the evidence points to an inference that PW1 had duly received compensation for the services rendered by PW2 to Idris in uplifting R&I which is the thrust of this claim as reflected in paragraph 4 of the SOC”. Loan Agreement is void and unenforceable on the ground of public policy [47] On the Loan Agreement, the learned JC found at paragraph 52 of the GOJ that the Loan Agreement between the Plaintiff and the Defendant is void and unenforceable pursuant to section 24(e) of the Contracts Act 1950 (Act 136) on the ground that it was contrary to public policy. This court’s decision of Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chren & Ors and Another Appeal [1995] 2 MLJ 770 was cited in support of his findings. At paragraph 53 of the GOJ, the learned JC stated that: “While there was no question of fraud by PW2 and PW1 having been proven, based on the conduct and role of PW2 as the evidence disclosed, there was indication of PW2, in his capacity as agent of the Receiver managing the affairs of R&I, having used that position to enrich himself by using PW1 as a means to receive a substantial monetary benefit and to shield himself from being discovered assisting R&I. Although he asserted that the Receiver was fully aware of this role, he failed to produce any evidence disclosing that the Receivers knew of this role and approved of it. It should be noted that PW2 had placed himself in a conflict of interest situation by attempting to wrongfully profit from his appointment as agent of the Receiver of R&I. At the 33 material time, PW2, a Chartered Accountant by profession acted for the Receivers of R&l. To condone his act of obtaining a substantial benefit wrongfully from this position would be tantamount to allowing abuse and exploitation of his privileged position without disclosing his interest to his employer and also to debenture holders.” [48] The Plaintiff in her submission before us contended that the Defendant did not plead in their Defence that the Loan Agreement is void on the ground of public policy. On perusal of the Defence, we found that the Defendant did plead at paragraph 5 that the validity of the said documents was in question because R&I was a Bumiputra company and a Member of the KLSE and it was contrary to the Defendant’s understanding of the scheme to revive R&I. This plea, though it does not directly plead on the illegality of the Loan Agreement due to public policy, does to our minds, challenged the validity of the documents, (the SD and the Loan Agreement), on the basis that the documents are invalid by virtue of R&I being a Bumiputra company. Further, there was testimony on this issue, though there is nothing in the notes of proceeding nor in the Plaintiff’s submission that showed that the Plaintiff took objection to the failure to plead such an issue at trial. [49] It is to be noted that the plaintiff is seeking to rely on her own illegality to overturn the finding of the learned JC. It is true that illegality was not pleaded affirmatively though indirectly by the defence, but though not pleaded affirmatively, it emerged in evidence in the course of the trial showing clearly the illegality of the Loan Agreement. In Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619, the Federal court quoted the Supreme Court case of Lim 34 Kar Bee v Duofortis Properties (M) Sdn Bhd [1992] 2 MLJ 281 which held that: “Courts have always set their face against illegality in any contract. It is very well settled that the courts take judicial notice of such illegality and refuse to enforce the contract, and such judicial notice may be taken at any stage, either at the court of first instance or at the appellate stage irrespective of whether illegality is pleaded or not where the contract is ex facie illegal. When the contract is not ex facie illegal, then on the question of pleadings, there is only one situation where illegality need not be pleaded when the court can still take judicial notice and refuse to enforce it. The situation is when facts which have not been pleaded emerge in evidence in the course of the trial showing clearly the illegality, eg the illegal purpose of the contract, or its illegal consideration, with the presence of all relevant circumstances, see Palniappa Chettiar v Arunasalam Chettiar, Leong Poh Chin v Chin Tin Sun and North Western salt Co Ltd v Electrolytic Alkali Ltd just to mention a few. The existence of such a situation in the instant appeal is warranted by the facts that emerged in evidence, including affidavit evidence.” [our emphasis added] [50] The Federal court in Merong Mahawangsa (supra) went through extensively the numerous cases on illegality and at paragraph 35 which is summarized at held 1 of the judgment, state that the courts are bound at all stages to take notice of illegality, whether ex facie, or which later appears, even though not pleaded, and to refuse to enforce the contract. The Federal Court went further at paragraph 35 to state that: 35 “[35] ... In that regard, we endorse the following statement of law by the Court of Appeal per Hamid Sultan JCA, delivering the judgment of the court, in China Road & Bridge Corp & Anor v DCX Technologies Sdn Bhd and another appeal [2014] 5 MLJ 1: At the outset we must say that the trial courts must be vigilant not to provide any relief on contracts which is void on the grounds of public policy, or illegality… whether or not it is the pleaded case of the parties or whether the issue was raised during the trial. The case of Blay v Pollard & Morris [1930] 1 KB 628 where Scrutton LJ observed: Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment. which has been followed in a number of local cases will not stand to tie the hands of judges to deal with the above issues, or arrest impropriety on its own motion at limine …” [51] In our instant appeal, the Plaintiff was used as a façade by her husband Bala. In that we could infer that Bala knew that it was contrary to public policy for him to own 55% shares in R&I which is a Bumiputra company. Bala, a chartered accountant in Hanafiah Raslan & Mohamad stood in a position of conflict of interest as he, in his capacity as the agent of the Receiver who is managing the affairs of R&I, had used that privileged position to wrongfully profit or enriched himself. He now claims or seeks remedy in an illegal transaction in which he had participated in. As the learned JC stated: “To condone his act of obtaining a substantial benefit wrongfully from this position would be tantamount to allowing abuse and exploitation of his privileged position without disclosing his interest to his employer and also to debenture holders.” 36 The High court refused to assist him. We are of the view that this court too, should not render assistance to him to pursue this appeal to overturn the decision of the learned JC. Inconsistency/conflict between the evidence and the pleaded claim [52] On inconsistency/conflict between the evidence and the pleaded claim, the learned JC was correct in finding that the Plaintiff’s version, particularly as presented through the evidence of her husband, Bala, is completely at variance and in conflict or inconsistent with the version that is pleaded in her SOC which rendered her claim unsustainable on the proven facts. The case of the Plaintiff is simple and straightforward: that in consideration of the Plaintiff assisting in the reorganization of the Defendant’s stock broking company R&I which is under receivership, the Defendant in return, agreed to transfer 55% of the shares in R&I to the Plaintiff. The Defendant then had breached this agreement, (the terms of which were crystalized in the SD and the Loan Agreement), by not transferring the 55% shares in R&I to the Plaintiff but instead sold the said shares to a third party. [53] From the evidence elicited at trial, R&I’s shares were indeed sold to a third party, but it was with the knowledge of the Plaintiff and 50% or 55% of the proceeds of sale were paid and received by the Plaintiff in repayment for the loan of RM500,000.00 given by her and for payment to Bala as fees for his assistance in reorganizing and turning around R&I. These findings of facts were summarized at paragraph 54 of the GOJ where the learned JC stated that the Plaintiff’s pleaded claim was in direct conflict with the 37 contemporaneous documentary evidence and at paragraph 68 of the GOJ where the learned JC concluded that: “The Court finds that the Plaintiff's version, particularly as presented through the evidence of her husband (“PW2”) is completely at variance and in conflict with her pleaded claim as per paragraphs 4) and 5) of the SOC. Fundamentally, the weight of evidence clearly points to the agreement or arrangement to rescue or revive and reorganize R & and I Securities was wholly between D and PW2 without the involvement of P (“PW1”). Hence, PW 1 not being the actual contracting party was not the right party to bring this action in the manner it is pleaded against D. On the facts and evidence, P clearly does not have a valid cause of action against D. This action is, therefore, fundamentally flawed and must fail. The uncontroverted documentary evidence adduced by P herself through PW2 manifestly discloses the primary and exclusive role played by PW2 pertaining to the revival and reorganization of R and I without any participation by PW1. The said role of PW1 (PW2) does not equate to participation by PW1 which is the very basis of this action. It establishes beyond doubt that the contracting party with D in respect of the above scheme was PW2 and not PW1 as pleaded”. The learned JC surmised that: “Further, the weight of evidence, leans towards the defence allegation that any alleged loan advanced by PW1 to D has been repaid in full together with her equity share in R&I as per the evidence of DW2, the advocate & solicitor acting for the deceased at the material time, including the admitted documents tendered by him”. As stated earlier, the learned JC went extensively through the oral and documentary evidence before coming to his conclusion and we are of the view that his finding is correct. 38 Credibility of Witnesses [54] The finding by the learned JC that the Plaintiff and Bala are not credible witnesses is evident from a reading of the judgment as a whole. The learned JC had assigned reasons as to why he concluded that the Plaintiff and Bala are witnesses unworthy of credit. We find that such findings are findings of facts based on evidence that were before the learned JC. We see no reason to disturb these findings since the learned JC had the audio visual advantage of seeing and hearing the witnesses. (See the cases of Lee Ing Chin @ Lee Teck Seng & 4 Ors v Gan Yook Chin (P) & Anor [2003] 2 AMR 357, [2003] 2 MLJ 97, [2003] 2 CLJ 19; Lau Yoke Yee (P) (Sebagai Pentadbir Harta Pusaka Low Sau Chin @ Lau Chaik Tong @ Lau Sau Chuin, simati) & Anor v Ting Liang Teng & Anor [2005] 5 AMR 274). [55] The learned JC had arrived at his findings on credibility by assessing and weighing the evidence of the Plaintiff and Bala against the contemporaneous documents presented before him. (See UEM Group Bhd v Genisys Intergrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785). In the circumstances, can we say that the conclusion/findings reached by the learned JC based on the evidence on record is not plausible or unreasonable that no reasonable judge in the same circumstance would not have reached the same findings? (See Lee Chee Keong v Fadason Holdings Sdn Bhd [2017] 3 MLJ 728; Wong Sin Fan & Ors v Ng Peak Yam @ Ng Pyak Yeow & Anor [2013] 2 MLJ 629). If the answer is no or in the negative, then the learned JC is not plainly wrong and the appellate court is not at liberty to reverse or interfere in those findings even if the appellate court forms a different opinion on the same evidence or is of the view that it would not have 39 reached the conclusion the learned JC did on the evidence on record before it. CONCLUSION [56] For the foregoing reasons, after taking into consideration the pleading rules as well as the evidence and credibility issues involved in this appeal, we are unanimous in our view that there was sufficient judicial appreciation by the learned JC of the evidence before him and as such this was not a fit and proper case for appellate intervention. We therefore affirmed the decision of the learned JC and dismissed the appeal with costs of RM20,000.00 to the Defendant subject to the payment of allocator fee. The deposit is refunded to the Defendant/Respondent. We hereby order so. -signed-Dated: 30th November 2018 (SURAYA OTHMAN) Judge Court of Appeal Malaysia 40 CASE(S) REFERRED TO: 1) Turquand v Fearon [1879] 48 LJ Q.B. 703; 2) Ricardo G Tapel v Polar Twin Advanced (M) Sdn Bhd (Nicholas Lee Zse Young & Anor, third parties) [2013] 9 MLJ 69; 3) Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chren & Ors and Another Appeal [1995] 2 MLJ 770; 4) Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619; 5) Lim Kar Bee v Duofortis Properties (M) Sdn Bhd [1992] 2 MLJ 281; 6) Lee Ing Chin @ Lee Teck Seng & 4 Ors v Gan Yook Chin (P) & Anor [2003] 2 AMR 357, [2003] 2 MLJ 97, [2003] 2 CLJ 19; 7) Lau Yoke Yee (P) (Sebagai Pentadbir Harta Pusaka Low Sau Chin @ Lau Chaik Tong @ Lau Sau Chuin, simati) & Anor v Ting Liang Teng & Anor [2005] 5 AMR 274; 8) UEM Group Bhd v Genisys Intergrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785; 9) Lee Chee Keong v Fadason Holdings Sdn Bhd [2017] 3 MLJ 728; and 10) Wong Sin Fan & Ors v Ng Peak Yam @ Ng Pyak Yeow & Anor [2013] 2 MLJ 629. LEGISLATION REFERRED TO: Section 24(e) of the Contracts Act 1950 (Act 136); Order 18 rule 7(2) of the Rules of Court 2012 [P.U. (A) 205/2012] 41 COUNSEL: For the Appellant Tommy Thomas (With him Ragumaren Gopal and Renu Zechariah) Messrs G. Ragumaren & Co Advocates & Solicitors No. 56-1, RGA Chambers Jalan Telawi, Bangsar Baru 59100 Kuala Lumpur For the Respondent T. Gunaseelan (With him P.K. Nathan, Fadzilah Mansor and Keshvinjeet Singh Sidhu) Messrs P.K. Nathan & Co Advocates & Solicitors Unit 706 & 707, Level 7 City Plaza, 21, Jalan Tebrau 80300 Johor Bahru Johor