Yong Thien Yew v 1. ) LIM Chee How (KB-22NCvC-8-04/2024)

LIM CHEE HOW (No K/P: 790206-02-5879)

SYARIKAT LIM KIAM HOON (didakwa sebagai firma) -DEFENDAN

submissions heard on 5.8.2025. After careful consideration of the cause papers and the oral and written submissions of the following are the reasons for the decision. 15/10/2025 09:55:44 KB-22NCvC-8-04/2024 Kand. 68 Bundle of pleadings (Exhibit A)

The Plaintiff commenced this civil suit seeking specific performance of an agreement dated 16.8.2023 (Agreement) to transfer properties held under the description of Geran 15133, Lot 13983 and Geran 15132, Lot 13982, both located in Mukim Sungai Pasir, Daerah Kuala Muda, Kedah Darul Ehsan (Properties). The Properties are currently registered in the First 2nd Defendant.

The Plaintiff pleaded that a he advanced monies in the sum of RM 290,000.00 to enable the First Defendant to buy the Properties. The 2nd Defendant was the solicitors acting for the First Defendant in the sale transaction.

The First Defendant agreed to repay the sum on or before 31.12.2023 failing which he would transfer the Properties to the Plaintiff.

Towards this end, the First Defendant executed the Agreement, a sale and purchase agreement (SPA) for the Properties in favour of the Plaintiff and the requisite Form 14A for the transfer of the Properties.

The First Defendant failed to honour the Agreement and instead lodged a private caveat on the Properties on 18.12.2023.

Aside from the specific performance, the Plaintiff also sought payment of RM8,726.10 being the legal fees paid to the 2nd Defendant for the sale transaction, damages, interest and costs.

The First The purchase price for the Properties was RM290,000.00 of which he paid RM160,000.00 in cash. The Plaintiff merely helped pay the remaining RM130,000.00.

He stated that he signed the Agreement, the SPA and the Form 14A for the Properties without knowing the nature of the said documents. He signed the documents under duress.

The statements in the Statement of Agreed Facts between the Plaintiff and the First Defendant include the description of parties, their relationship, related police reports, correspondence and the lodgement of the caveat by the First Defendant.

Vis-à-vis the Plaintiff and the 2nd Defendant, parties agreed that the firm handled the sale transaction between the First Defendant and the original owners of the Properties and that the titles were in their possession.

The 2nd Defendant received payment of RM290,500.00 from the Plaintiff.

The 2nd Defendant was a nominal party in this suit for the purpose of giving effect to the Court orders. Issues to be tried (Exhibit D)

Parties identified and agreed to the sole issue to be tried in this suit was whether the Plaintiff was entitled to the specific performance orders for the transfer of the Properties to him. Burden of proof

The burden of proof in a civil case is on a balance of probabilities and lies on the shoulders of the party asserting the existence of those facts. (section 101 - 102 Evidence Act 1950

In Letchuman Chettiar Alagappan @ L. Allagappan & Anor v. Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418; [2017] 3 MLRA 501, Jeffrey Tan FCJ held at 739 - Section 101(1) give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those Section 101 states that the initial burden of proving (Woodroffe and Amir Ali, Law of Evidence (19th Ed Vol 3) at p 3194). Illustration (b) to s 101 puts it beyond doubt that the Section 102 lies on that person who would fail if no evidence at all were ing the case is Sarkar Law of Evidence 16th Ed at p 1593). Illustration (a) to s 102 puts it beyond doubt that a plaintiff has the initial onus of proof. Thus, a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court, en of proof and the onus of proof coincide: proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof a permanent and enduring burden does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal burden is spoken of, inaccurately, has been engaged, on which the opposite party hears the legal burden of proof. the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor (Woodroffe and Amir Ali, Vol 3 at pp 3190- (Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 5 MLJ 398 di 406)

In a nutshell, the Plaintiff bore the burden of proof that

he paid for the purchase price of the Properties;

(ii) the First Defendant agreed to repay RM230,000.00 on or before 31.12.2023, failing which he would transfer the Properties to the Plaintiff;

(iii) the First Defendant failed to repay the monies advanced and refused to transfer the Properties to him; and

(iv) he was entitled to specific performance of the Agreement and a refund of the legal fees he paid to the 2nd Defendant.

The Defendant bore the burden of proving that he paid RM160,000.00 towards the purchase of the Properties and that any document he signed to the contrary was without knowledge of its contents and under duress. Analysis and findings Payment for the purchase of the Properties

The Plaintiff (SP3) gave evidence that the First Defendant was his nephew and that at his request, he advanced monies amounting to RM290,000.00 towards the purchase of the Properties.

The payments of entire purchase price and legal fees were done in stages as follows Date Amount (RM) Mode of payment Documents (Exhibit B)

15.11.2022 24,000.00 cheque -

27.12.2022 30,000.00 cheque page 39 17.4.2023 80,000.00 pages 33-34 25.4.2023 151,000.00 pages 35-38 27.4.2023 5,500.00 cheque page 40 5.7.2023 2,776.10 cheque -

Thong Weng Chong (SP2), the lawyer having charge of the SPA of the Properties from the original owners to the First Defendant.

He testified that although the First Defendant was the purchaser, the Plaintiff paid the entire purchase price and legal fees in stages as follows

Documents (Exhibit B)

11.2022 24,000.00 page 41 27.12.2022 30,000.00 page 42 18.4.2023 80,000.00 page 43 25.4.2023 151,000.00 page 44 27.4.2023 5,500.00 page 45 5.7.2023 2,776.10 page 46

As against this, the First Defendant maintained that he paid RM160,000.00 for the purchase of the Properties. These monies were paid in cash in instalments of RM 30,000.00, RM 100,000.00 and lastly RM30,000.00 respectively to the Plaintiff to pay the 2nd Defendant on his behalf.

balance RM130,000.00 due to economic hardship.

On this issue, this Court is satisfied that it was the Plaintiff who paid the purchase price for the Properties in its entirety. His evidence is supported by contemporaneous documents.

ed totally unsubstantiated with any documentary or corroborative evidence. He was no able to provide the dates on which the alleged RM160,000.00 was paid to the Plaintiff in instalments nor from where the monies were sourced. It stretches the imagination that the First Defendant or for that matter anyone to have RM160,000.00 in cash in hand at any given time.

Further, his evidence that he had paid RM160,000.00 towards the purchase price by giving the Plaintiff the monies in cash, this evidence as contrary to his defence (para 5.2, 5.4 page 14 & para 9.4 page 9 Exhibit A). These contradictions are material. The documents and intention of parties

The Plaintiff testified that

the First Defendant was to repay RM230,000.00 on or before 31.12.2023, failing which he would transfer the

(ii) this agreement was reduced in writing in page 68 Exhibit B and signed in the presence of Low Pek Heng (SP1) and SP2;

(iii) parties also signed the SPA and Form 14A (pages 70-89 & 90-93 Exhibit B) for the transfer of the Properties from the First Defendant to the Plaintiff in the presence of SP2;

(iv) the First Defendant wrongfully lodged the caveat on the Properties (Exhibit B pages 47-49 & 50-52); and

he did not coerce the First Defendant into signing any of the documents and that at all material times, the First Defendant knew the contents of all the documents and executed them voluntarily.

In particular, SP1 testified that the Plaintiff and the First Defendant had discussed the contents of the document before signing the same and at no point in time did the First Defendant object to signing the document nor was he compelled to do so.

SP1 also referred to a statutory declaration affirmed on 11.6.2024 (page 69 Exhibit B).

On this issue, SP2 testified that

he prepared the Agreement, the SPA and the Form 14A for the transfer of the Properties from the First Defendant to the Plaintiff (pages 68, 70-89 & 90-93 Exhibit B) and attested the signatures of both the Plaintiff and the First Defendant on these documents;

(ii) the First Defendant knew and understood the contents of all the documents he signed;

(iii) the First Defendant sent a letter dated 27.12.2023 (pages 53-54 Exhibit B) informing them that

he was forced to sign documents including the SPA and Form 14A;

they should refrain from transferring the Properties without his instructions; and

they should surrender the titles of the Properties to him immediately; and

(iv) on 5.1.2024, the 2nd Defendant responded (pages 56-57 Exhibit B that they would not comply with his demand to release the titles to him.

As against this evidence, the First Defendant testified that

the Plaintiff asked him to sign some documents which he did in good faith believing the Plaintiff as they were related;

(ii) all the documents were signed in a coffeeshop and at that time, only the Plaintiff and SP1 were present; SP2 was not present;

(iii) he was accompanied by his sister;

(iv) he was shocked when the Plaintiff asked him to transfer the Properties for failing to pay RM 230,000.00; and

he lodged a police report (page 62 Exhibit B) and the caveat on the Properties (pages 58-61 Exhibit B).

On the issue of what were the intention of parties in executing the documents, this Court was guided by Nor Bee Arifin JCA dicta in Tay Yew Chong v. Koh Hooi Siang (suing as the executor for the estate of Low Yew Sun) & Ors and another appeal [2021] 5 MLJ 880 wherein Her Ladyship held at 892 of the court in construing a document is with a view to finding the intention of the parties. In Raja Zainal Abidin bin Raja Haji Tachik & Ors v. British American Life & General Insurance Bhd [1993] 16, Peh Siew Chin SCJ in delivering the decision of the the words, for such meaning is equivalent to such intention of the parties for

The contents of the Agreement are set out in simple unambiguous language which this Court found to be self-evident.

On this issue of whether the First Defendant understood the contents of the documents he signed, the common principles that govern the law of contract is that the person who contracts by a written document, whether or not he understands the language in which it is written, is bound, in the absence of fraud or misrepresentation, by the terms of that contract (Ismail bin Savoosah & Ors Hajee Ismail (1889) 4 Ky 453 458).

This Court is satisfied that the defence of non-est factum as explained in Lin Wen-chih & Anor v. Mycom Bhd [2014] 3 MLJ 691 at 699 did not apply in the present case. This was based coffeeshop regarding the repayment of the monies advanced on behalf of corroborated by both SP1 and SP2 who were present during the discussion and signing.

This Court found that the First Defendant knew and understood the contents of the SPA and the Form 14A made out in favour of the Plaintiff as he had already executed similar documents to effect the transfer of the Properties from the original owners to himself.

On the issue of coercion, section 15 Contracts Act 1950 and section 101 Evidence Act 1950 clearly placed the burden of proof on the First Defendant (Hasina bt Meera Maidin v. Tetuan Rajinder & Goh (sued as a firm) & Ors [2025] 9 MLJ 236 at 257, Pao On v. Lau Yiu Long [1980] AC 614 at 635; Pang Chow Huat v. Tan Li Sin [2024] MLJU 1167 at para [22]).

with him at the coffeeshop during the discussion and the signing of the documents. That made her a material witness yet he chose not to call her.

It is a trite principle of law that the failure to call a material witness would give rise to an adverse inference against the party who withheld such evidence. In Sarkar on Evidence (14th edition), the learned author stated adversary out of possession of evidence by taking means of retaining the evidence in his own custody. A similar presumption may also arise when a party does not call witnesses who are within his reach and ae acquainted with the rty failed to call as his witness the principle person involved and who was in a position to give a first hand account of the matter in controversy and who could have refuted oath the allegation on the other side. It is legitimate to draw an adverse

This Court did so against the First Defendant under section 114(g) EA.

As a whole, the First Defendant merely sought to render the said documents voidable by denying knowledge of the contents and consent on his part.

testimony to the contrary must fail. His assertions were nothing more than bare denials. Money lending

were a money lending transaction and that the documents were executed to disguise this. This argument was mounted on the 60,000.00 short of the purchase price of the Properties and his failure to eat.

The Plaintiff denied this allegation and his evidence was supported by both the other witnesses. It is noteworthy that SP2 was an independent witness with no interest in the

firstly, because the First Defendant merely made this allegation without pleading any element which were necessary to maintain this defence in his Statement of Defence (Kunci Semangat Sdn Bhd v. Thomas a/l MV Varkki [2023] 3 MLJ 857 at 885).

Secondly, the Plaintiff explained the reason the agreement was only for the repayment of RM230,000.00 as follows RM30,000.00 dan dia juga ada beri satu post-dated cek saya pun setuju dengan jumlah yang berbaki RM230,000 ya. Saya dapat cek dahulu baru keluar surat ini sebab tu jumlah

In PP v. Dato' Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1; [1999] 2 CLJ 215; Augustine Paul J (as His Lordship then was) summed up the tests for determining the credibility of a witness at 79 - accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see Bhojraj v. Sitaram [1936] AIR PC 60)....It must, however, be observed that being unshaken in cross-examination is not per se an all-sufficient acid test of credibility. The inherent probability or improbability of a fact in issue must be the prime consideration (see Muniandy & Ors v. Public Prosecutor [2016] CLJU 592; [2016] 1 LNS 592

This Court had the opportunity of observing the First Defendant during the trial and more particularly when he gave evidence. He was evasive and conveniently vague as to the turn of events.

He noticeably avoided direct questions and kept adding on details to his narrative like the presence of the unnamed sister at the coffeeshop where the discussion and signing of the documents took place. At no point were the Plaintiff and his witnesses asked about this sister during cross examination.

This lacked credibility and his demeanour only reinforced the unreliability of his account.

This Court found that the Plaintiff was entitled to specific performance on the strength of the letter dated 16.8.2023 and the other contemporaneous documents which were interconnected and reflect the intention of the parties.

of merit in light of the overwhelming and compelling evidence adduced by the Plaintiff.

This Court agreed that it would be manifestly unjust to allow the First Defendant to enjoy ownership of the Properties for which the Plaintiff paid the full purchase price.

For the reasons set out above, this Court allowed claim and made the following orders against the First Defendant -

within 14 days of the service of the sealed judgment to his solicitors Messrs Y.C. Wong, the First Defendant was to execute the Form 14A and the forms for removal of his private caveat, failing which the Senior Assistant Registrar of this Court would do the needful; and

(ii) the First Defendant was to pay the Plaintiff the sum of RM8,726.10 with interest thereon at 5% per annum from For the Plaintiff Chang Chen Choong JC Lau Imanina Wahid (PDK) Messrs Ng & Anuar For the 1st Defendant Elsen Beh Khor Cindy Messrs Y.C. Wong For the 2nd Defendant Jamaluddin Harun Messrs Lim Kiam Hoon