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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(COMMERCIAL DIVISION)
SUIT NO: 22NCC-12-01/2013
DENISE DON CORNELIO KANHAMA
v.
SKN CAPITAL SDN. BHD.
GROUNDS OF JUDGMENT
Salient Background Facts
The Plaintiff is an individual of British nationality. The Plaintiff was
approached by a person by the name of Alan Wong from the
Defendant by way of an e-mail on 13.1.2011. He told the Plaintiff that
he had obtained her contact details from a friend of the Plaintiff, one
Jonathan Li. Mr. Li had informed Alan Wong that the Plaintiff was
looking for investments. By an e-mail dated 16.1.2011, Alan Wong
confirmed that the Defendant had investments which provide high
rate of returns, greater than 5%. He explained to the Plaintiff that
it was similar to a fixed deposit with capital protected financing
structure. Attracted by the high rate of returns, the Plaintiff indicated
her interest to invest. This led to further discussions on the terms
of the investments.
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Alan Wong proposed the investment structure options and the terms
of the investments. The Plaintiff was then informed by Alan Wong
that the Defendant does not market their financing products in the
open market. Investors can only invest either through introduction
from private banking or referral clients.
A Private Finance Facility Agreement dated 18.3.2011 (“the Facility
Agreement”) was executed between the Plaintiff and the Defendant.
The Plaintiff agreed to advance a sum USD500,000.00 (“the Facility
Sum”) to the Defendant for a tenure of 24 months and in accordance
with the terms of the Facility Agreement. The terms and conditions
of the Facility Agreement are, inter alia, as follows:(a)
The Defendant agreed, covenanted and undertook to
repay the Facility Sum on or before the expiry of the
Agreed Tenure of 24 months. The expiry date is to be
calculated from the date of the Facility Sum being
granted and paid to the Defendant;
(b)
The Defendant agreed, covenanted and undertook to
pay an income of 7% per annum (“the Agreed Income”)
which shall be paid every 12 months;
(c)
In the event the Defendant:
(i)
Defaults in payment of the Facility Sum or any part
thereof;
(ii)
Fails to observe any of the agreements, covenants,
stipulation, terms and conditions on the part of the
Defendant;
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the Facility Sum for the time being owing shall
immediately become payable by the Defendant to the
Plaintiff;
(d)
The Defendant undertakes to bear amongst others all
costs, charges, fees and other disbursements incurred
by the Plaintiff in enforcing its right under the Facility
Agreement.
The Plaintiff was due to receive the Agreed Income on the Facility
Sum on 16.4.2012. However, the Plaintiff requested that the Agreed
Income for the first 12 months in the sum of USD35,000.00 be added
to the Facility Sum and compounded to the next 12 months. The
Defendant agreed to this request.
Pursuant to the Facility Agreement, the Defendant is obliged to
repay the Facility Sum together with the Agreed Income amounting
in a total of USD572,450.00 to the Plaintiff on 16.4.2013. However,
the Defendant failed, refused and/or neglected to repay the said
amount and thereby breached the terms and conditions of the
Facility Agreement.
The Plaintiff then entered into an Investor Agreement (“Investor
Agreement”) with the Defendant dated 16.4.2013. The Defendant
agreed to repay the Plaintiff the sum of USD572,450.00 together
with a sum of USD17,500.00 (totaling USD589,950.00) payable by
and no later than 16.7.2013. The Defendant however failed, refused
and/or neglected to make any payments as specified in the Investor
Agreement and thereby breached the terms and conditions of the
Investor Agreement.
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The Plaintiff’s Claims
The Plaintiff claims against the Defendant as follows
(i)
a sum of USD589,950.00 as at 16.7.2013;
(ii)
interest at the rate of 14% per annum calculated on a
quarterly basis on the amount in paragraph (i) above
from 16.7.2013 until the date of full settlement; and
(iii)
costs.
The Plaintiff states that based on the aforesaid facts and reasons,
the Defendant is required to refund to the Plaintiff the aforesaid
sum of USD500,000.00, being monies had and received by the
Defendant. The Defendant would be unjustly enriched to retain
the aforementioned sum.
The Trial
The case proceeded by way of a full trial with only one witness, that
is, the Plaintiff herself. The Defendant, at the close of the Plaintiff’s
case elected a no case to answer
The Documents
The documents referred during the trial proceedings are as follow:(i)
Bundle of Pleadings;
(ii)
Common Bundle of Documents – ‘A1’; and
(iii)
Common Bundle of Documents – ‘A2’.
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The Defendant’s Case
The Defendant contends that the transaction is not what it seems
but is instead a money lending agreement and that the contract is
void for contravention of the Moneylenders’ Act 1951.
At the close of the Plaintiff’s case the Defendant elected not to give
evidence and submitted that there was no case to answer.
Decision
No case to answer
The Defendant elected not to give evidence and submitted on the
basis of no case to answer. It is trite law that once a defendant in
civil proceedings makes a submission of no case to answer and
elects not to call evidence, then all the evidence led by the Plaintiff
must be assumed to be correct.
Peh Swee Chin FCJ in Jaafar Shaari & Siti Jama Hashim v. Tan
Lip Eng & Anor [1997] 4 CLJ 509 said:
“ The respondents had chosen to close the case at the end of the
appellants’ case. Although they were entitled to do so, they would be in
peril of not having the evidence of their most important witness and of
having an adverse inference drawn against them for failing to call such
evidence should the circumstances demand it.”.
Gopal Sri Ram, JCA (as he then was) in Jaafar Shaari’s case
said:
“ ... once a defendant in civil proceedings elects not to call evidence,
then all the evidence led by the plaintiff must be assumed to be
true.”.
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His Lordship referred to the case of Wasakah Singh v. Bachan
Singh [1931] 1 MC 125 where Elphinstone CJ in his judgment at pg
128 said:
“ If the party on whom the burden of proof lies gives or calls evidence
which, if it is believed, is sufficient to prove his case, then the judge is
bound to call upon the other party, and has no power to hold that the
first party has failed to prove his case merely because the judge does
not believe his evidence. At this stage the truth or falsity of the evidence
is immaterial. For the purpose of testing whether there is a case to
answer, all the evidence given must be presumed to be true.”.
This principle has found similar expression in a number of judgments
handed down in Wisniewski v. Central Manchester Health
Authority [1998] PIQR 324, Brooke LJ when delivering the
judgment of the Court of Appeal quoted from a number of authorities
including the following passage from the speech of Lord Diplock in
Herrington v. British Railways Board [1972] AC 877:
“ The appellants, who are a public corporation, elected to call no
witnesses, thus depriving the court of any positive evidence as to
whether the condition of the fence and the adjacent terrain had been
noticed by any particular servant of theirs or as to what he or any other
of their servants either thought or did about it. This is a legitimate
tactical move under our adversarial system of litigation. But a defendant
who adopts it cannot complain if the court draws from the facts which
have been disclosed all reasonable inferences as to what are the facts
which the defendant has chosen to withhold.”.
Justice Gopal Sri Ram (FCJ) in Takako Sakao v. Ng Pek Yuen &
Anor [2010] 1 CLJ 381, said:
“ Taking the first issue, it is significant that in the present instance the first
respondent did not attend court nor give evidence nor take any part in
the case. All she did was merely to put forward arguments on why the
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appellant’s caveat ought to be removed. She could have, if she wished,
given evidence and challenged the appellant’s evidence. But as
already noted she refrained from doing that. On the facts of this case,
there were two persons who were privy to the terms of the arrangement
in question and the details of the payments made and the purpose for
which they were made: the appellant and the first respondent. The
appellant took the witness stand and gave her evidence on the terms of
arrangement and about the sums of money she had provided and the
purpose for which they were provided. No evidence was called on the
part of the first respondent to refute the appellant’s testimony.”.
In the instant case, it may be surmised from the submissions made
by Learned Counsel for the Defendant, that the Defendant makes
this submission on the basis that the Plaintiff has not discharged
its burden of proof. It is submitted that the burden is not discharged
because there has been a failure to prove that the USD500,000.00
was not an investment but in essence a money lending transaction.
Issue for Determination
The only issue for determination is whether the transaction between
the Plaintiff and the Defendant is an investment or a money lending
transaction.
Whether USD500,000.00 given by the Plaintiff to the Defendant
is an investment or a loan/money lending transaction
Money Lending
In order to determine whether the transaction is an investment or
a money lending transaction, the terms of the Agreement as well as
the oral and documentary evidence must be examined thoroughly.
Before a transaction may be considered a money lending transaction
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under the Moneylenders Act 1951 (Act 400), the Defendant will have
to show:
(i)
that there is borrowing from one party and lending to the
other party;
(ii)
the borrowing must be in the form of money; and
(iii)
the consideration for the act of borrowing is for a larger
sum being repaid to the lender.
Section 2 of Act 400 defines moneylender as,
“ any person who lends a sum of money to a borrower in consideration of
a larger sum being repaid to him..”.
Money lending is defined under section 2 of the same Act as “the
lending of money at interest, with or without security, by a
moneylender to a borrower..”. A money lending agreement is defined
as “….an agreement made in writing between a moneylender and
a borrower for the repayment, in lump sum or installments, of money
borrowed by the borrower from the moneylender…”.
The terms of the Facility Agreement is clear that the purpose
was for investment with returns. It is pertinent to determine the
intention of the Parties at the material time. The Federal Court in
Chooi Siew Cheong and repeated by the Court of Appeal in
Sinnathamby Klondakoundan & Ors v. Brijkishore Shuparshad
[1997] 4 CLJ 568. Stated that the “intentions of the parties as
appearing from the whole facts of the case and the contract they had
made.”. The Plaintiff gave evidence that throughout her e-mail
communications with the Defendant, it was the Defendant who
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had proposed the structure and terms of the investment. There was
no offer by the Plaintiff to lend monies to the Defendant.
The e-mails communication between the Plaintiff and the Defendant
clearly support the submission of the Plaintiff that it was an
investment. Alan Wong had even provided the Plaintiff with power
point slides of the Defendant’s projects. By an e-mail dated
10.3.2011 (pg 27 A1), the Defendant gave the following option to
the Plaintiff;
Option 1
Min
: USD500k
Tenure : 2 years
Rate
: 7%
Income : Yearly Payable
Option 2
Min
: USD1,000,000.00
Tenure : 2 years
Rate
: 7.8%
Income : Yearly Payable
Option 3
Min
: Above USD1 million can be USD 1 million
Tenure : 2 years
Rate
: 9%
Income : Yearly Payable
This is not a case of money lending by the Plaintiff as contented by
the Defendant.
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The Court of Appeal in Pan Global Equities Sdn. Bhd. & Anor v.
Taisho Company Sdn. Bhd. [2005] 3 CLJ 734; [2006] 1 MLJ 158,
said:
“ First and foremost, although this may already be quite obvious, there
must surely be a borrowing by one party and a lending to the other
party. That borrowing and lending must also be of money. After all, Act
400 is legislation to regulate and control the business of money lending,
the protection of borrowers of the monies lent in the course of such
business, and for matters connected therewith. The Act does not
envisage an agreement to borrow and lend money’s worth. It has to
be the borrowing and lending of money. Also, money that is borrowed
and lent must change hands between these principal parties or to
the benefit of these principal parties. This view is regardless of whether
one is looking at Act 400 before it was revised or amended. Act 400
regulates and controls the business of money lending through a system
of licensing and that system has not altered or shifted in any manner
whatsoever with the amendments through the years..”.
No evidence oral and documentary was adduced by the Defendant
that it was borrowing and lending of monies by the Plaintiff. The
documentary evidence, in particular the e-mails overwhelmingly
show that the Plaintiff had invested pursuant to the Facility
Agreement.
It is submitted by the Learned Counsel for the Defendant that the
terms of the Facility Agreement shows that the said Agreement is
a pure money lending agreement between the parties for a fixed
term with interest at 7% per annum payable every 12 months. The
Plaintiff, Miss Denise Kanhama gave evidence that she was
contacted through e-mails by a person by the name of Alan Wong
who represented the Defendant. He had enquired whether she was
interested to invest,
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“ Got your contact from Jonathan. He was telling me that you are looking
at some investment. Do let me know if you need any help.
Thanks.
Regards
Alan Wong.”.
(Alan Wong’s e-mail to the Plaintiff dated 13.1.2011 pg. 15 A1).
Subsequently by another e-mail dated 17.1.2011 (pg.13 A1), Alan
Wong confirmed that the Defendant could offer an investment
which will provide high rate of returns of more than 5%. Alan Wong
explained to the Plaintiff that the investment is similar to a fixed
deposit in structure but with a capital protected financing,
“ Yes we do have Investment which provide return greater than 5%. Is
very similar to fixed deposit with a capital protected financing structure.”.
Alan Wong also explained through his e-mails to the Plaintiff that
most of the Defendant’s funds are into property investment mainly
in Kuala Lumpur city center. The Defendant’s partners for investment
financing are Asean Finance Bank and in Singapore, the Bank of
Singapore and OCBC. He further told the Plaintiff that the minimum
investment amount for the funds was USD500,000.00 and that
the minimum lock in period is one year with the rate of 7%. If the
lock in is for two years then the rate would be 8% per annum yearly
interest payable.
In another e-mail dated 15.2.2011, Alan Wong informed the Plaintiff
that the Defendant had agreed to offer a fixed rate of return of
7.5% per annum. Attracted by the investment structure and the
terms proposed by the Defendant, the Plaintiff decided to invest
USD500,000.00. The terms of the Investment are as follows,
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(i)
In consideration of the investment of USD500,000.00 the
Defendant agreed
to repay
USD500,000.00 on or
before the expiry of the two years; and
(ii)
The Defendant will pay an income of 7% per annum to
be paid every 12 months.
At a meeting in Singapore between the Parties on 14.3.2011, Alan
Wong again explained the options offered by the Defendant.
The Plaintiff then confirmed her interest in investing the sum of
USD500,000.00 with rate of returns of 7% for a period of two years.
Alan Wong then provided details of the Defendant’s bank account
for purposes of the transfer of funds.
On 11.4.2011, the Plaintiff transferred the sum of USD500,000.00
to the Defendant from her bank account in Banco Santander Totta
S.A. to the account of one Shamir Kumar Nandy at OCBC Bank
Singapore as requested by the Defendant. The details of the
account were given by Alan Wong himself via e-mail dated
15.3.2011. It was only after the funds was transferred and received
by the Defendant, the Defendant proceeded to stamp the said
Facility Agreement. A scanned copy of the agreement was then
e-mailed to the Plaintiff by Alan Wong vide an e-mail dated
20.4.2011. The original copy was posted directly to the Plaintiff.
The Plaintiff was kept informed of the progress of her investment
by Alan Wong. At the end of the tenure of the Facility Agreement, i.e.
on 16.4.2012, the agreed income was supposed to be paid to the
Plaintiff. However, the Plaintiff requested that the said income of
USD35,000.00 be compounded into the principal sum. This was
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agreed by the Defendant. The total amount to be paid to the Plaintiff
is USD572,450.00. The Defendant failed to make the payments
as agreed.
By an e-mail dated 24.4.2013, the Defendant informed the Plaintiff
that the Defendant did not have access to cash at that time and
that they were experiencing delays in relation to their projects.
Subsequently, a meeting was held on 6.5.2013 between the Plaintiff
and the Defendant. The Plaintiff met both Alan Wong and Shamir
Kumar Nandy, a director of the Defendant. The Defendant reassured
the Plaintiff that she will be able to get her monies within 2 months.
Shamir offered the Plaintiff an apartment as an alternative but the
offer was declined by the Plaintiff,
“Q14. What happened at the meeting on 6 May 2013?
The meeting on 6 May 2013 was held at the ShangriLa Hotel in
Singapore. I met Alan Wong and Shamir Kumar Nandy – a
director of the Defendant.
During the meeting, I expressed my dissatisfaction at the
delay in repayment of the sums and that I had to continuously
ask for updates on the status of the repayment of sums, when
the Defendant ought to be updating me. To this, Shamir
Kumar Nandy apologized for the delay and for not updating
me. He further informed me that the Defendant was
experiencing some minor construction delay with their
project. However, he reassured me that the project is doing
well, and I will be able to get the money back within 2 months.
He further stated that the Defendant’s other clients are also
experiencing a similar situation i.e. delay in repayment. As
such, the Defendant had given apartments to some of their
clients in exchange/to set off the delayed repayment. He then
offered me an apartment, to which I said no as I wanted my
payment in cash.
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He then told me it would take about 2 months to resolve all
the difficulties they were experiencing, and I would definitely
get my money back in July 2013. It was agreed that the
Defendant would make payment to me on or before 16 July
2013 of a total sum of USD589,950.00, being:
(a)
Principal:- USD500,000.00 @ 7% pa amounting to
USD535,000.00;
(b) Roll over Principal and Interest of USD535,000.00 @ 7%
pa amounting to USD572,450.00 which due on the 16th
April 2013;
(c)
Penalty @ 14% pa on USD500,000.00 amounting to
USD175,500.00 up to 16th July 2013.
I then requested for something in writing. At the end of the
meeting, both Alan Wong and Shamir Kumar Nandy agreed to
send to me a draft of an additional agreement for me to
consider for execution.
By an email dated 10 May 2013, I requested from Alan Wong
of the Defendant for a draft of the additional agreement for my
perusal (see page 99 of the Common Bundle of Documents).
This email was also copied to Shamir Kumar Nandy at his
email address datoskn@gmail.com.
By an email dated 14 May 2013, they then sent to me a draft
letter with terms as discussed at the meeting on 6 May 2013
(see page 97 of the Common Bundle of Documents). The draft
letter can be found at page 100 of the Common Bundle of
Documents.”.
It was agreed that the Defendant would pay the Plaintiff before
16.7.2013 a total sum of USD589,500.00. The Plaintiff requested
for an agreement in writing which was agreed by the Defendant.
By an e-mail dated 6.5.2013, the Defendant sent a draft letter
with the terms as discussed and agreed in Singapore. However,
the Plaintiff decided to incorporate the terms agreed into a formal
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agreement, the Investor Agreement. This Agreement was then sent
to the Defendant to be signed and executed. By the Investor
Agreement, the Defendant agreed to pay the Plaintiff the sum of
USD589,000.00 no later than 16.7.2013.
On 16.7.2013, the Plaintiff made a specific request to the Defendant
by e-mail for the monies to be transferred to the Plaintiff’s account
at OCBC Bank Singapore. However, the Plaintiff received a text
message from Alan Wong stating that there was a delay in obtaining
approval from relevant authorities.
The Defendant did not give evidence to challenge the Plaintiff
evidence on the facts of this case. The Plaintiff gave her evidence
on transaction, the terms of the arrangements as well as the sums
of the money she had provided and the purpose of the funds.
No evidence by the Defendant refuting the Plaintiff’s testimony.
Therefore, since the Defendant refrained from giving evidence, the
evidence of the Plaintiff is presumed to be true.
The Intention of the Parties
The general principle of law had been established in the case of
Polygram Records Sdn Bhd v. The Search & Anor [1994] 3
CLJ 806; [1994] 3 MLJ 127 where His Lordship Visu Sinnadurai J,
held that a party who had executed a written contract is bound by
the four corners of the written contract that he had signed unless
if it could be established that the contract was tainted with fraud,
misrepresentation and undue influence. Even in a situation that the
party who had signed the contract has not read the contents of the
contract, he is still bound by the terms of the contract. This principle
had been established and accepted by the Court as early 1934
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through the decision of Scrutton L.J in L’Estrange v. F Groucob,
Ltd [1934] 2 K.B.394 where His Lordship held:
“ When a document containing contractual terms is signed, then, in the
absence of fraud, or I will add, misrepresentation, the party signing it
is bound, and it is wholly immaterial whether he has read the document
or not.”.
In order to understand the true spirit and intent of the respective
parties, the background knowledge available to the Parties would
provide some guide as to what were the intentions of the Parties
at the time the contracts were executed by the contracting Parties.
In the case of Citi Bank v. Ooi Boon Leong [1980] 1 LNS 168
the Court had made reference to the case of Prenn v. Simmonds
[1971] 3 All ER 237, at page 241 where Lord Wilberforce stated:
“ In my opinion, then evidence of negotiations? Ought not to be received,
and evidence should be restricted to evidence of factual background
known to the parties at or before the date of the contract, including
evidence of the ‘genesis’ and objectively the aim of the transaction.”.
In the present case both the oral testimony and contemporaneous
evidence show that the Parties were aware and cognizance of the
purpose of the negotiation that eventually resulted in the execution
of the Facility Agreement and the Investor Agreement. In Berjaya
Times Square Sdn Bhd (formerly known as Berjaya Ditan Sdn.
Bhd. v. M Concept Sdn. Bhd.) [2010] 1 CLJ 269; [2009] 1 LNS;
[2010] 1 MLJ 597 the Federal Court had referred to the case of
Investors Compensation Scheme Ltd v. West Bromwich
Building Society [1998] 1 All ER 98 which had set down five
propositions by which Courts are to be guided in the environment
of contractual interpretation. This was what His Lordship said:
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“ (1) Interpretation is the ascertainment of the meaning which the
document would convey to a reasonable person having all the
background knowledge which would reasonably have been available
to the parties in the situation in which they were at the time of the
contract.
(2) The background was famously referred to by Lord Wilberforce as
the ‘matrix of fact’ but this phrase is, if anything, an understated
description of what the background may include. Subject to the
requirement that it should have been reasonably available absolutely
anything which would have affected the way in which the language of
the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous
negotiations of the parties and their declarations of subjective intent.
They are admissible for rectification. The law makes this distinction for
reasons of practical policy and, in this respect only, legal interpretation
differs from the way we would interpret utterances in ordinary life. The
boundaries of this exception are in some respect unclear. But this is not
the occasion on which to explore them.
(4) The meaning which a document (or any other utterance) would
convey to a reasonable man is not the things as the meaning of its
words. The meaning of words is a matter of dictionaries and grammars;
the meaning of a document is what the parties using those words
against the relevant background would reasonably have been
understood to mean. The background may not merely enable the
reasonable man to choose between the possible meanings of words
which are ambiguous but even (as occasionally happens in ordinary
life) to conclude that the parties must, for whatever reason, have used
wrong words or syntax (see Mannai Investment Co Ltd v. Eagle Star
Life Assuarance Co Ltd [1997] 3 All ER 352; [1997] 2 WLR 945.).
(5) The “rule” that words should be given their ‘natural and ordinary
meaning’ reflects the common sense proposition that we do not easily
accept that people have made linguistic mistakes, particularly in formal
documents. On the other hand, if one would nevertheless conclude
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from the background that something must have gone wrong with the
language, the law does not require judges to attribute to the parties an
intention which they plainly could not have had.”.
The factual matrix of the case as well as the documentary evidence
prove that there was no money lending activity at all by the Plaintiff.
The e-mail trail between the Plaintiff and Alan Wong from the
Defendant supported the contention of the Plaintiff that she had
deposited the sum of USD500,000.00 for investment. The terms of
the Facility Agreement are clear and unambiguous. Clause 1 of the
Facility Agreement stipulates that the Plaintiff had advanced the
sum of USD500,000.00 to the Defendant. Pursuant to the said
Facility Agreement, the Defendant had agreed to pay an income
of 7% per annum in return for the advance of the sum of
USD500,000.00. Throughout the written communications between
the Plaintiff and the Defendant, the term ‘investment’ was used. The
Defendant referred the transaction as an investment even after the
execution of the Agreement.
It is the submission of the Learned Counsel for the Defendant
that the Facility Agreement was in fact a pure money lending
arrangement between the parties for a fixed term with interest of
7%. However, the written communications between the Parties
clearly indicated that it was an investment with a return in investment.
In an e-mail dated 19.1.2011 Alan Wong told the Plaintiff,
“…FYI, we do not market our Financing Facility products in the open
market. Investors can only invest in this facility either through the
introduction from Private Banking or referral….All our Property Financing
Facility are Capital protected with affixed rate given to our investors
depending on the amounts and the lock in tenure.”.
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The Defendant sought to prove that it is a money lending transaction
by asserting that the Plaintiff did not possess a license to lend
money and therefore it is sufficient evidence that the Facility
Agreement is invalid, illegal and unenforceable. I am of the view that
this argument is untenable. The Facility Agreement was executed
between the Parties after the Defendant had approached the
Plaintiff with attractive investment opportunities. The fact that the
Plaintiff does not have a license to lend money is irrelevant as
there is no evidence of any money lending activity by the Plaintiff
and does not make the Facility Agreement invalid, illegal and
unenforceable.
The Defendant failed to demonstrate to this Court that the
transactions were in fact money lending transactions. Based on both
the oral testimony of the Plaintiff supported with the documentary
evidence, I have no hesitation to rule that the Defendant had failed
to discharge the burden placed by the law to prove that the
transaction between the Parties were money lending transaction as
claimed.
Agreement was with SKN International
It is the contention of the Defendant that the Investor Agreement is
between the Plaintiff and SKN International and not the Defendant.
The Plaintiff clarified during reexamination that she had erroneously
placed SKN International on the Agreement which was sent to
the Defendant. The Defendant had made amendments at the end
of the Agreement and proceeded to prepare and execute the said
Investor Agreement.
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No other evidence was adduced by the Defendant to rebut the
contention of the Plaintiff that she had wrongly inserted SKN
International instead of SKN Capital Sdn. Bhd.
Conclusion
By electing not to give evidence and going for a submission of no
case to answer, the Defendant’s case would ultimately stand or fall
based on the strength of submissions. Once a Defendant elects not
to call evidence, then all the evidence led by the Plaintiff must
be assumed to be true. The Defendant did not adduce any other
evidence to rebut or challenge the Plaintiff’s case.
This Court evaluated the totality of the evidence adduced during the
trial, both oral and documentary evidence through cross-examination
as well as reexamination to determine if the Plaintiff had adduced
unopposed evidence which was credible and sufficient to discharge
the initial burden vested on the Defendant. The documentary
evidence tendered and the evidence of PW1 proved that the Facility
Agreement executed between the Plaintiff and the Defendant was
for investment purposes. The Defendant knew of the arrangements
and fully understood the consequences. The evidence clearly shows
that Defendant had participated actively and willingly in all the
negotiations and discussions with the Plaintiff as evidenced from
all the e-mails. The Defendant is therefore under a contractual
obligation to honour the terms of the Facility Agreement as well
as the Investor Agreement. Applying the principles in Jaafar Shaari
and Takako Sakao, the evidence given by the Plaintiff ought to be
presumed to be true and that adverse inference must be drawn
against the Defendant for failing to rebut the Plaintiff’s evidence. I do
21
not find any reason not to regard the evidence given by PW1 as
being truthful and inherently probable.
In coming to a decision in this case, I have carefully considered
the evidence adduced by both Parties and the submissions as
well as authorities tendered in support of their respective cases. I am
satisfied therefore that the Plaintiff has proven her claim on a balance
of probabilities. Accordingly, I allowed the Plaintiff’s claim against the
Defendant.
sgd.
(HASNAH BINTI DATO’ MOHAMMED HASHIM)
Judge
High Court of Malaya
Kuala Lumpur.
9th December 2014
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Counsels:
For the Plaintiff/Respondent:
Denise Don Cornelio Kanhama
[Messrs. Brendan Siva]
- Brendan Siva
- Anita Krishna
For the Defendant/Appellant:
SKN Capital Sdn. Bhd.
[Messrs. George Varughese]
- George Varughese