Yun Nam Hair Care Sdn. Bhd. v Ng May Lean (MA-A72NCvC-190-10/2023)

Loo Yee Mei-PW 1

(ii) Ng Chai Ni-PW2 The Defendant’s Witnesses:

Ng May Lean-DW 1 PLAINTIFF’S CLAIM The Plaintiff’s claims are as follows: -

The Plaintiff’s suit is for the Defendant’s purported breach of agreement and letters of undertaking executed between the Plaintiff and the Defendant by failing to refund the advance commission paid by the Plaintiff to her when she is not entitled to the same based on Clause 3 of the agreement dated 1.5.2022 and two letters of undertaking dated 2.12.2016 and 28.12.2021.

(ii) The Defendant is bound by the agreement dated 1.5.2022 and the two letters of undertaking dated 2.12.2016 and 28.12.2021 entered between the Defendant and the Plaintiff

(iii) The Plaintiff has the right to demand the advance commission at the sum of RM 84, 924.87 paid by the Plaintiff to the Defendant and thus the Defendant is liable to return the advance commission paid to the Defendant during her employment when the Defendant has failed to complete all treatments under the Package by the customer S/N IdyTNiakHka2GjaTdlK4xA DEFENDANT’S CLAIM The Defendant’s contentions are as follows: -

Firstly, the Plaintiff has not suffered any loss arising from the Defendant’s purported breach of contract. It is a fundamental principle of contract law that where a party is unable to prove any loss, it is only entitled to nominal damages.

(ii) Secondly, that the Plaintiff’s claim for RM 84,924.87 is not established on the evidence. The documents produced by the Plaintiff are inconsistent and are not explained by its witnesses to the level needed for the Plaintiff to discharge its burden of proof.

(iii) Thirdly, the Plaintiff’s claim herein, if allowed, will result in it being unjustly enriched.

(iv) Fourthly, that the Plaintiff’s claim herein is aimed at an ulterior motive of oppressing or exerting pressure on the Defendant. It is therefore an abuse of Court process.

Fifthly, the Plaintiff’s claim is barred by limitation. THE LEGAL PRINCIPLES Court’s analysis Sections 101 to 103 of the Evidence Act 1950 I propose to begin by setting out briefly the law on burden of proof in Malaysia. The law on the burden of proof in Malaysia is governed by sections 101 to 103 of the Evidence Act 1950. Section 101 of the Evidence Act 1950 states: Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 of the Evidence Act 1950 states:

On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 of the Evidence Act 1950 states:

Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The Supreme Court in Selvaduray v. Chinniah [1939] MLJ 253 SC per Terrel AG CJ had said- "The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the Plaintiff must establish his case. If he fails to do so it will not avail him to turn around and say that the Defendant has not established his. The Defendant can say 'it is wholly immaterial whether I prove my case or not. You have not proved yours' (see the Judgment of the Privy Council in Raja Chandranath Roy v. Ramjai Mazumdar 6 Bengal Law Reports, page 303)." [10] The burden of proof therefore lies on the plaintiff to prove issues 1 to 3. S/N IdyTNiakHka2GjaTdlK4xA ISSUES TO BE TRIED [11] The following are the issues that require judicial determination:

Whether the agreements and /or the letters of undertaking are valid and enforceable; and

Whether the Defendant had breached the terms of the agreements and/or the letter of undertaking;

Whether the Defendant is liable to pay the Plaintiff the sum of RM 84,924.87 as repayment of the advance commission received by the Defendant from the Plaintiff FINDINGS OF THE COURT [12] This court has set out a schedule of the agreement and letters of undertaking entered between the Plaintiff and the Defendant as follows: - 1st Agreement Letter of Employment Dated 4.5.2015 2nd Agreement An Agreement to confirm Defendant’s promotion and appointment as Supervisor Dated 1.5.2022 Clause 3 of the Agreement provide: - Letters of undertaking The Defendant signed 1st Letter of Undertaking Dated 2.12.2016 S/N IdyTNiakHka2GjaTdlK4xA [13] Based on the first agreement, second agreement and the two letters of undertaking, it is clear that there are valid agreements and letters of undertaking when the said agreements and letters of undertaking had duly signed and executed by the Defendant. [14] The second agreement has clearly stated the terms of the agreement at clause 3 with reference to the issue of commission. Clause 3 of the Agreement provides: “3. COMMISSION

(A) Your Commission for Consultant [herein referred to as the “Commission”] will be based on the commission structure and/or rates of the prevailing scheme for the sale of the Company’s product(s) and/or service(s) Consultant [herein referred to as the “Package”]. You shall only be entitled to the Commission upon: i. the delivery of all products and/or services and the completion of all treatments under the Package by the customer; and ii. the receipt of all payments due from the customer and provided there is no claim for refund and/or compensation by the customer within one year thereafter. (LOU 1) on 2.12.2016 The Defendant has signed 2nd Letter of Undertaking (LOU 2) on 28.12.2021 Dated 28.12.2021 Part A clause in the Letters of Undertaking (1) and (2) written as follows: - S/N IdyTNiakHka2GjaTdlK4xA For the avoidance of doubt, you shall not be entitled to any

Upon receipt of the notice of termination employment with the Company, by you or the Company; or

after termination of your appointment with the Company whichever is earlier

(B) Subject to clause 3(C) below, the Company may, in its entire discretion, make an advance payment [the ‘Draw against Commission’] to you upon your securing of a Package for purchase by a customer or your sale of the Company’s product(s) and/or service(s) to a customer.

(C) The Company has an absolute right, at any time without cause, to demand the return of any Draw against Commission made to you pursuant to Clause 3(B) above on thirty (30) days’ written notice.

(D) Any monies to be returned pursuant to Clause 3(C) shall be a debt due and payable by you to the Company. In the event of termination or breach of employment for whatsoever reason, the Company shall be entitled at its sole discretion to enforce any demand made pursuant to Clause 3(C) above by deducting the Draw against Commission from any money due from the Company to you. If the deduction is insufficient, any outstanding sum shall become immediately due and payable by you to the Company.” [15] The letters of undertaking both clearly written the terms as follows: Part A of the Letter of Undertaking (1) and (2) provides: - PART A Sales Commission (applicable for sales consultant).

I understand that sales commissions only become due and payable by the Company upon the receipt of all payments due from customer as well as the delivery of all products and the completion of all treatment session(s) under the package(s) by the customer.

I understand that the Company will disburse to me advance(s) against commission upon securing treatment packages(s) for purchase by the customer; I further understand that entitlement of sales commissions shall be ceased immediately upon termination of employment. 3. As such, I hereby bind myself to repay the total outstanding advance(s) should I leave the dismissal / termination of employment or the outstanding advance(s) is being recalled by the Company for whatsoever reason by written notice, no later than thirty (30) days.

I further agreed that the Company is entitled to set off from the outstanding advance(s) sum against whatsoever monies due and payable by the Company to me. [16] Based on Clause 3 of the said agreement and Part A of the Letters of Undertaking, the Defendant is entitled to the advance commissions from the Plaintiff. However, this court believe based on the written terms of the said agreement and the letters of undertaking, there are conditions prescribed as to when the Defendant will be entitled to the advance commissions. [17] The conditions according to the said agreement and the letters of undertaking are stated as follow: -

Delivery of all products and /or services and the completion of all treatments under the Package by the customer before the termination of the Defendant’s appointment with the Plaintiff

Receipt of all payments due from the customer under the Package before the termination of the Defendant’s appointment with the Plaintiff; and

There is no claim or refund and /or compensation by the customer within one year thereafter. [18] Thus, the Defendant will only be entitled to the advance commission when the Defendant fulfill the requirement of the conditions S/N IdyTNiakHka2GjaTdlK4xA prescribed as stated above. The Defendant in this case however has failed to fulfill all the conditions prescribed and therefore the Plaintiff shall be entitled to demand any advance commissions paid to the Defendant during her employment. [19] Furthermore, the agreement also stated clearly when the Defendant failed to fulfill the terms stated above, the Company i.e. the Plaintiff has absolute right at any time to demand the return of any draw against commission made to the Defendant on 30 days written notice. [20] In the case of OCBC BANK (MALAYSIA) BERHAD V. HEKTAR ANEKA SDN BHD & ORS HIGH COURT MALAYA, KUALA LUMPUR [2024] CLJU 2083 which reiterate the case of Polygram Records Sdn Bhd v. The Search & Anor [1994] 3 CLJ 806; [1994] 3 MLJ 127 at 147 (Court of Appeal)), it is trite that a party who signs a written contract is bound by its terms, save in limited exceptional circumstances like fraud which have not been pleaded here. The Defendants are therefore bound by the loan and security documents, including the Letter of Guarantee, which they have undoubtedly executed as evidenced by the contemporaneous documentation exhibited by the Plaintiff. [21] In this case, it is very clear that the Defendant is bound by the terms of agreement signed between the Defendant and the Plaintiff dated 1.5.2022 and the two letters of undertaking dated 2.12.2016 and 20.12.21. [22] In the case of Obata Ambak Holdings Sdn Bhd v. Prema Bonanza Sdn Bhd & Other Appeals [2024] 8 CLJ 519, it is very clear principle that the Court has laid as such; it is trite law that the Court should not be moved by any party to rewrite the terms of the contract between the parties [23] In the full trial the Defendant clearly stated that Defendant is aware of the clause regarding advance commission given to her and that she has to return the advance commission when she resigned from S/N IdyTNiakHka2GjaTdlK4xA the Plaintiff’s company. [24] However the Defendant did not agree on the amount of the advance commission claimed from the Plaintiff. It is even worst when the court asked the Defendant what is actually the amount that the Defendant should pay to the Plaintiff, unfortunately the answer is negative. The Defendant did not know as to how much the amount of the advance commission should be returned.

s. Rujuk statement akaun page 60 to 80. pernyataan akaun yang dikemukakan oleh pihak plainitf? ini dasar-dasar tuntutan plainitif terhadap kamu. rujuk ms 80 yang column terakhir RM84,924.87 ini tuntutan p/f terhadap kamu. kamu tidak pertikai telah terima jumlah tersebut? j. Tidak pertikaikan [25] Based on the terms of the agreement in clause 3D, it is clearly stated that the advance commission shall be a debt due and payable by the Defendant to the Company. In the event of termination or breach of employment for whatsoever reason, the Plaintiff shall be entitled at its sole discretion to enforce any demand made pursuant to Clause 3(C) above by deducting the Draw against Commission from any money due from the Company to the Defendant. If the deduction is insufficient, any outstanding sum shall become immediately due and payable by the Defendant to the Company. [26] Therefore it is right for the Plaintiff to claim the advance commission paid to the Defendant during her employment since that advance commission paid by the Plaintiff shall be a debt due and payable by the Defendant based on Clause 3C and 3D of the said agreement upon resignation / termination. [27] This Court is disagreed with the Defendant’s contention that the Plaintiff has not suffered any loss and thus the Plaintiff’s cannot make any demands on the advance commission paid to the Defendant. The Court is in the opinion that this is an employment agreement where both parties need to fulfill their obligations upon entering the said agreement. On the facts of this case it is clear that S/N IdyTNiakHka2GjaTdlK4xA the Plaintiff claim is for the refund of the advance commission of RM84,924.87 based on the terms of the agreement and the letters of undertaking (1) and (2). [28] It clearly stated that the advance commission shall be a debt due and payable to the Plaintiff by the Defendant when the Plaintiff demand to return the advance commission. The Plaintiff has proved its case on balance of probabilities which supported by the following documents i.e. Statement of Account; Customer Package Balance Report; Customer Cards; e-Customer Cards; and the Defendant payslips from 2015 to 2023. [29] Even there is a loss suffered, the Court is in the opinion it is the Plaintiff that suffered loss since the Plaintiff had paid advance commission to the Defendant based on the customer total payment and package subscribed even though the Defendant has not rendered full services on the package subscribed by the customer. Furthermore, the Plaintiff need to incur more expanses to engage another consultant to complete full sessions paid by the customer. Q: Refer PAGE 703, although customer didn’t pay in full system reflect 10 sessions, customer signed 10 session but pay 5 sessions, your record is 1/10 what is your claimed against the Defendant A: The advance commission for 5 sessions [30] Should the Defendant felt unfair to the terms of the agreement and letters of undertaking entered between them, the Defendant should raise a disagreement during her employment period. Somehow the Defendant did not raise any disagreement on the terms of the contract during her employment period but enjoy the advance commission paid to her within the period. However, the said agreements clearly stated the conditions as to when the Defendant will be entitled to the advance commission paid to her as stated paragraph 17 of this judgment. In the case of Integrated Training and Services Sdn Bhd v. Kerajaan Malaysia, [2022] 4 CLJ 697 the Federal Court held: S/N IdyTNiakHka2GjaTdlK4xA [26] Coming back to the appeal before us, there was no denial on the part of the respondents that they had agreed to the appointment of the independent auditor to assess the amount due and payable to the appellant. This agreement to refer the matter for expert determination is a contract that can be enforced according to their terms. In any written agreement, there must be strict adherence to the agreed terms of the agreement by the parties. See the decision of this court in Catajaya Sdn Bhd v. Shoppoint Sdn Bhd & Ors [2021] 3 CLJ 159; [2020] 1 LNS 2037. Parties are free to enter into contract; hence, they are bound by it. This principle had been reiterated by this court in CIMB Bank Bhd v. Anthony Lawrence Bourke & Anor [2019] 2 CLJ 1 as follows: [26] We agree with the Defendant that parties are bound by the terms of the contract which they entered into and that it is the court's duty to give effect to the clear and plain meaning of the words in the said clause. That is quite trite. [27] The law recognises the principles of freedom of contract. Parties to a contract are free to determine for themselves what their obligations are. As Sir George Jessel MR said in Printing and Numerical Registering Company v. Sampson (1875) LR 19 Eq 462 at 465: ... men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice. Therefore, you have this paramount public policy to consider that you are not lightly to interfere with this freedom of contract". [31] Therefore, this Court is in the opinion that the Defendant has breach the said agreement entered between the Defendant and the Plaintiff when she failed to pay the sum of advance commission paid to her i.e. RM 84,924.87 during her employment. S/N IdyTNiakHka2GjaTdlK4xA [32] Moreover when was asked by the Court during the trial, the Defendant did not dispute that she had received the advance commission and she also did not dispute that she has to return the advance commission paid to her. The only thing that she disputed is the amount of advance commission she must pay to the Plaintiff. Somehow the Defendant does not have any amount as to how much was the advance commission she received that need to be returned. [33] On the other hand, the Plaintiff’s had enclosed this suit with a full and complete statement of account calculated the advance commission need to be returned back. The Plaintiff has enlightened the Court on the amount claimed through their AES account system. [34] Hence the only sum that the Court can hold onto as a debt of advance commission paid by the Plaintiff to the Defendant during her employment is RM84,924.87. There is no other sum being established in this Court. The Defendant just deny the sum of advance commission but she did not know what is the sum due and payable by the defendant to the Plaintiff. On the other hand, the Plaintiff has laid a complete statement of account through their AES account system. [35] The Defendant also claimed that the Plaintiff action against the Defendant has barred by the limitation of time. This court find this argument has no basis. The cause of action for this suit is occur when the Defendant failed to pay the advance commission due to the Plaintiff’s company based on the agreement. [36] To this Court understanding, when the Plaintiff has notified the Defendant through its letter of demand dated 19.5.2023, the cause of action accrued 30 days dated from that letter of demand in which the Defendant failed to pay the advance commission. Later, on 2.10.2023 the Plaintiff has filed a suit against the Defendant through a writ of summons dated 2.10.2023 when the sum of RM84,924.87 has become debt due to the Plaintiff’s company. S/N IdyTNiakHka2GjaTdlK4xA [37] The claim made by the Plaintiff against the Defendant prior to her resignation or prior to the termination of the Defendant with the Plaintiff will be pre-mature. Hence, the Plaintiff’s claim against the Defendant is within the time and is not barred by the limitation period. Therefore, this Court is determined that the claim is within the limitation of time as prescribed in Section 6 of the Limitation Act 1953 which prescribes a time limit of 6 years for a claim for breach of contract. [38] The Defendant also alleged that the suit was filed against the Defendant because the Plaintiff is unhappy that the Defendant has joined another company and also the Plaintiff has an ulterior motive and/or collateral purpose of exerting pressure on the Defendant. However, the Court’s finding on this issue has no basis. It is merely speculative and devoid of merit as there is no evidence adduce before the court on this issue. It is only the contention of the Defendant that remains as contention without any prove. This contention is only a speculation by the Defendant. Therefore, it has no basis. [39] Based on the above reasons, this Court is answering the three issues to be tried in the affirmative. Hence, the Plaintiff has proved the suits on balance of probabilities. Therefore, this trial Court is allowing the Plaintiff’s claims with cost RM 10,000.00. Dated 11th June 2025 (Nabilah Nizam)