1
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(COMMERCIAL DIVISION)
SUIT NO: 22NCC-1078- 07/2012
BI CREDIT & LEASING BERHAD
v.
1. HUATLAND DEVELOPMENT SDN. BHD.
2. LAI SIEW YIN
GROUNDS OF JUDGMENT
Salient Facts
By a Sale and Purchase Agreement dated 24.11.1986 (‘1st SPA’)
the 1st Defendant (‘the Developer’) sold a condominium unit held
under strata title registered grant No. 5815/M1/107, Lot No. 262,
Parcel No.107, Level 13, Type No. M1, Mukim Ampang, District of
Wilayah Persekutuan (‘the Property’) to one Zainal Nazeri bin
Zainuddin (‘1st Purchaser’).
Subsequently the 1st Purchaser sold the Property to Norlela
Construction Sdn. Bhd. (‘NCSB’) by a Sale and Purchase Agreement
dated 27.3.1995 (‘the 2nd SPA’) for RM320,000. The Plaintiff granted
a loan of RM250,000 to the NCSB. Pursuant to the loan a Deed of
2
Assignment was entered between NCSB and the Plaintiff dated
4.11.1996. The charge was not taken as security as the strata
title was not issued yet. When the strata title was issued the 1st
Defendant vide their letter dated 30.8.2000 informed NCSB that
the strata title had been issued and appointed the 2nd Defendant
to perfect the transfer of the property. The 2nd Defendant vide a
letter dated 2.10.2010 requested for the original Deed of Assignment
dated 24.10.1996 for the purpose of applying stamp duty exemption.
The strata title and the Memorandum of Transfer (MOT) were
delivered by the 1st Defendant to the 2nd Defendant vide a letter
dated 24.7.2001.
By a letter dated 2.7.2001 the Plaintiff requested the 2nd Defendant
to forward the original strata title to the Plaintiff to enable the Plaintiff
to prefect the transfer. The strata title and the MOT was delivered
to the 2nd Defendant vide a letter dated 24.7.2001. The title was
duly registered in NCSB’s name and extracted from the Land Office.
NCSB collected from the 2nd Defendant on 7.1.2002.
Eight years later by a letter dated 28.1.2009 the Plaintiff requested
the 2nd Defendant to update the status of the transfer and was told
that NCSB has yet to execute the MOT. The Plaintiff then informed
the 2nd Defendant vide a letter dated 4.2.2009 that NCSB had yet to
execute the MOT.
NCSB defaulted and the Plaintiff proceeded to foreclose the property.
On 5.11.2009 the property was auctioned and sold to a successful
bidder, Cheng Beng Wang (CBW). However, it was eventually
3
discovered that the property has been sold to a third party, Izarina
@ Norlela binti Zainal Nazeri without the knowledge of the
Plaintiff. The property was then transferred to Wong Tat Chee on
14.7.2009. NCSB was wound up on 12.11.2009, 4 months after
the said transfer.
On 8.6.2010 the Plaintiff issued a Notice of Demand against the
2nd Defendant alleging that the 2nd Defendant was negligent as
they had failed to forward to the Plaintiff the individual strata title
and the MOT to perfect the charge. The Plaintiff commenced the
1st suit against the 2nd Defendant on 22.11.2011 for negligence. The
2nd Defendant filed an application to strike out on 13.3.2012 based
on the defence of limitation. By a Notice of Discontinuance dated
26.4.2012 the Plaintiff then withdrew the 1st suit with liberty to file
afresh on 19.4.2012.
The Plaintiff then filed a writ against the 1st Defendant for breach
of undertaking and the duty of care to deliver the strata title and
the duly executed MOT to the Plaintiff. The Plaintiff’s claims against
the 1st Defendant are as follows:i.
Special damages of RM263,379.98;
ii.
Damage to reputation amounting to RM500,000;
iii.
General damages; and
iv.
Interest.
4
By an amendment to the writ dated 21.9.2012 the Plaintiff named
the 2nd Defendant as a party. The 2nd Defendant was the firm of
solicitors appointed to handle the transfer of title from the 1st
Defendant to the respective apartment owners of the condominium
known as GCB Court when the strata titles were issued. The 2nd
Defendant handled the sale and purchase of the units in GCB Court
and provided their undertaking to the Plaintiff to the deliver the MOT
and the Strata Title.
It is contended by the Plaintiff that the 2nd Defendant had fraudulently
presented a transfer of ownership in NCSB’s favour. The claims
against the 2nd Defendant are as follows,
i.
Special damages of RM263,379.98;
ii.
Damage to reputation amounting to RM500,000;
iii.
General damages;
iv.
Exemplary damages amounting to RM500,000;
v.
Aggravated damages amounting to RM500,000;and
vi.
Interest.
The Trial
The trial of this matter took place over a period of two days. A total
of seven witnesses testified, namely:For the Plaintiff
i.
Azaharie Siman (PW1), Assistant Manager of SME Bank;
5
ii.
Farida Abdul Talib (PW2), Head of Credit Monitoring,
Pembangunan Leasing Corporation;
iii.
Norimi Musa (PW3), an Officer in the Recovery Section;
iv.
ShamsulIzuuan Aripin (PW4) Head of Credit and
Marketing Pembangunan Leasing Corporation; and
v.
Siti Zaleha Abdul Saha (PW5), Head of Accounting
Pembangunan Leasing Corporation.
1st Defendant
Liang Sheh Wang (DW1) Assistant Accountant with Low Kheng Huat.
2nd Defendant
Lai Siew Yin, (DW2), Advocate and Solicitor.
Issues
A perusal of the pleadings discloses that it appears to be premised on
a cause of action founded on breach of undertaking, negligent and
fraud. It is the Plaintiff’s case that the 1st Defendant failed to deliver
the original strata title of the Property to the Plaintiff causing the
Plaintiff to be deprived of the benefit and interest in the property. It
is the Plaintiff’s pleaded case that the 2nd Defendant had fraudulently
proceeded to present the transfer in favour of NCSB on 30.10.2001.
Findings and Decision
It is observed that the Plaintiff’s claims against the 1st and the 2nd
Defendants are based on separate cause of actions but the relief
6
sought in respect of the liquidated sum against both the Defendants
are identical. The Plaintiff’s cause of action against the 1st Defendant
is premised on purported breach of undertaking and in the alternative,
negligence. It is the Plaintiff’s cause of action against the 2nd
Defendant that the 2nd Defendant had committed fraud in course
of the transfer to NCSB.
Breach of Undertaking
It is the submission of the Learned Counsel for the Plaintiff that
the 1st Defendant’s undertaking dated 18.12.1995 did not specify
that the obligation of the 1st Defendant is fulfilled upon the delivery
of the original strata title to NCSB. The undertaking is to ensure
that the strata title to the said property is free from all encumbrances
upon issuance is delivered to the Lender. The letter dated 18.12.1995
reads as follows,
“
The Branch Manager
Kewangan Industri Berhad
Ground Floor, Wisma MGIC
38, Jalan Dang Wangi
50100 Kuala Lumpur.
Dear Sir,
RE: GCB COURT
PROPERTY : UNIT NO.12.04, 12th Floor
.
BORROWER: NORLELA CONSTRUCTION SDN. BHD.
The above matter refers.
We hereby undertake as follows:(i)
To forward to you or to your solicitor the individual
separate/strata title free from any encumbrances once it is
issued by the relevant authority; and
(ii)
Not to have any charge on the Master Title/property without
your prior consent.
7
Thank you
Yours faithfully,
AMPANG SPECIALIST CENTER SDN BHD
sgd.
YONG KOK SHIANG
Project Manager”.
The 1st Defendant then forwarded the MOT and strata title to the 2nd
Defendant on 24.7.2001 as evidenced by the letter dated 24.7.2001,
“
S.Y. LAI & ASSOCIATES
No. 12-1, 1st Floor
Lorong Yap Hin
Off Jalan Pasar
55100 Kuala Lumpur.
Dear Sir,
RE: GCB COURT CONDOMINIUM
..
P
PROPERTY
: UNIT NO. 12.04 (12D)
FINANCER
: BI Credit & Leasing Berhad
PURCHASER
: Norlela Construction Sdn. Bhd
..
The above matter refers.
We forward herewith the following documents all dully executed by our
authorized signatories for your further action:(a) one (1) copy of the Memorandum of Transfer (Form 14A)
(b) six (6) copies of the Stamping Proforma.
Enclosed also please find:(1)
the Original individual separate Hakmilik Strata No. Berdaftar
Geran 5815/M1/13/107 No. Petak 107 dalam Tingkat No. 13
Bangunan No. M1 Lot No. 262 Mukim Ampang Daerah Wilayah
Persekutuan;
(2)
a certified true copy of the Form 49;
(3)
a copy of the current year (2001) quit rent receipt.
8
Kindly acknowledge receipt of the aforesaid documents by signing and
returning the duplicate copy of this letter.
Yours faithfully,
AMPANG SPECIALIST CENTER SDN BHD
sgd.
AGNES WONG
C.c.: Norlela Construction Sdn Bhd
c.c.: Rusmah Aruman & Associates
9173-A Jalan Negara
Lot 2.05 & 2.07
Taman Melati
2nd Floor Wilayah Kompleks
53100 Kuala Lumpur
2, Jln Munshi Abdullah
50100 Kuala Lumpur.
(Ref:RAA/KIB/M/1892/96/z)
c.c.: BI Credit & Leasing Berhad
Level 10 Bangunan Bank Industri
Bandar Wawasan, 1016 Jalan Sultan Ismail
50790 KUALA LUMPUR .
”.
It is the submission of the Learned Counsel for the 1st Defendant that
the 1st Defendant does not owe a duty of care to the Plaintiff. Even
if there is a duty of care it is submitted that the 1st Defendant has
not breached the said duty of care as it has forwarded the
documents. The 1st Defendant is not privy to the Loan Agreement
between the Plaintiff and NCSB. The 1st Defendant is not even a
party to the Deed of Assignment. The letter dated 18.12.1995 from
the 1st Defendant to the Plaintiff was issued before NCSB was
granted the loan to purchase the property. The MOT and the issue
document of title was delivered to the2nd Defendant by the 1st
Defendant. The Plaintiff was aware of this. The Plaintiff appointed a
firm of solicitors to perfect the said transfer and charge of the
property,
9
“
MESSRS S.Y. LAI & ASSOCIATES
Advocates & Solicitors
No. 12-1, 1st Floor, Lorong Yap Hin
Off Jalan Pasar
55100 Kuala Lumpur.
Attention: Mr. Lai,
RE: UNIT 12.04, GCB COURT CONDOMINIUM
BORROWER: NORLELA CONSTRUCTION SDN. BHD
ACCT. NO. : TL001005
.
.
Reference is made to the above matter and to your letter dated 3 rd
October 2000.
Please find herewith the Deed of Assignment dated 24th October 1996
between Zainal Nazeri Zainuddin and the Borrower, Norlela Construction
Sdn. Bhd. for your further action. Kindly liase with our solicitors, Messrs
Aziz Zakaria Shaiful & Wan of No. 21, 23 & 31, 4th Floor, Jalan Medan
Tunku, 50300 Kuala Lumpur for the transfer purpose.
Please acknowledge receipt by signing and returning the duplicate copy of
this letter.
Thank you
For BI CREDIT & LESING BERHAD
sgd.
AZAHARIE SIMAN
sgd.
HARUN SULAIMAN
Executive
Cc.
Manager
Aziz Zakaria Shaiful & Wan
No. 21, 23 & 31, 4th Floor
Jalan Medan Tunku
50300 Kuala Lumpur
(Ref:No. AZSW/004/95/2322/S/ss/KIB) .”.
The Plaintiff’s solicitor was Messrs Aziz Zakaria Shaiful & Wan as
mentioned in the aforesaid letter.
10
DW1, Liang Shieh Wang (Assistant Accountant with Low Keng Huat
Berhad the holding company of Huatland Development Sdn. Bhd.)
gave evidence confirming that the 1st Defendant had duly forwarded
the documents and that there was no objection by the Plaintiff to its
solicitors within 6 years of the issuance of the said letter. The Plaintiff
was aware that the MOT was executed with the strata title and
delivered to the 2nd Defendant as the letter was copied to the Plaintiff.
In light of the above and based on the evidence adduced, oral
and documentary I find that the 1st Defendant did not breach the
purported letter of undertaking and had duly fulfilled the undertaking
by delivering the said documents to the 2nd Defendant.
Duty of Care
The 1st Defendant in resisting the Plaintiff's claim took the position
that it was not in breach of its duty of care and it did not cause the
Plaintiff’s loss. It is for the Plaintiff to prove that there exist a duty
of care. The 1st Defendant is not a party to the loan agreement and
with regards to the said undertaking the 1st Defendant has duly
delivered the documents. The 1st Defendant submits that it is not
privy to the loan agreement between the Plaintiff and NCSB nor
the transfer of title. The 2nd Defendant did not act for the 1st
Defendant. The 2nd Defendant had testified in Court confirming
that his firm acted for NCSB in respect of the transfer.
The 1st Defendant has fulfilled its duty of care as a developer by
forwarding the MOT and the strata title to the 2nd Defendant. This was
with the knowledge of the Plaintiff.
11
Based on the evidence the Plaintiff failed to establish that the 1st
Defendant has a duty of care towards the Plaintiff.
Fraud by the 2nd Defendant
It is the Plaintiff’s pleaded case that,
(i)
that the 2nd Defendant vide its letter dated 30.10.2001
presented the transfer for registration with full knowledge
that there was an outstanding loan from NCSB and the
2nd Defendant did not provide a copy of the letter to the
Plaintiff on purpose;
(ii)
that the 2nd Defendant presented the transfer for
registration with full knowledge that the Deed of
Assignment was still in existence;
(iii)
that the 2nd Defendant extracted the title duly registered
in NCSB’s name from the Land Office on 27.12.2001;
(iv)
that the 2nd Defendant surrendered the title duly
registered in NCSB’s name from the Land Office to NCSB
on 7.1.2002;
(v)
that by the 2nd Defendant’s letter dated 4.2.2009, the
2nd Defendant had fraudulently concealed the status of
transfer by informing the Plaintiff on purpose that the
memorandum of transfer had yet to be executed by
NCSB when the Plaintiff vide their letter dated 20.1.2009
and 28.1.2009 requested for the status of the transfer
and informed the 2nd Defendant of the Plaintiff’s intention
12
to proceed to foreclose the property by way of auction
sale; and
(vi)
that the 2nd Defendant at the material times had full
knowledge of the foreclosure proceedings but instead let
the Plaintiff proceed with the foreclosure.
Whether fraud exists is a question of fact, to be decided upon the
circumstances of each particular case. Fraud must mean “actual
fraud, i.e. dishonesty of some sort” for which the registered proprietor
is a party or privy. Raja Azlan Shah (as his Royal Highness then
was) in P.J.T.V. Denson (M) Sdn. Bhd.v. Roxy (M) Sdn. Bhd.
[1980] 1 LNS 55; [1980] 2 MLJ 136 @ 138 said,
“ Fraud is the same in all Courts, but such expressions as ‘constructive
fraud’ are...inaccurate.” but ‘fraud’..implies a willful act, on the part of one,
whereby another is sought to be deprived, by unjustifiable means, of what
he is entitled.” (per Romilly MR in Green v. Nixon [1857] 23 Beav 530 &
535; 53 ER 208). Thus in Waimih Sawmilling Co. Ltd. v. Waione Timber
Co. Ltd [1926] AC 101 & 106 it was said that “if the designed object of a
transfer be to cheat a man of a known existing right, that is fraudulent..”.
The 2nd Defendant’s firm was appointed to perfect the transfer to
NCSB. On 20.3.2000 the 2nd Defendant’s firm wrote a letter to
the Plaintiff requesting for the original Deed of Assignment dated
24.10.1996 to apply for stamp duty exemption payable on the MOT.
The Plaintiff had vide a letter dated 10.10.2000 enclosed the original
Deed of Assignment. The 1st Defendant’s firm then presented the duly
executed MOT together with the relevant documents for registration
of title in the name of NCSB. The title was registered and was
13
extracted from the Land Office on 27.12.2001 and collected by
NCSB representative on 7.1.2002. The registration of the transfer
from NCSB to the third party was registered on 25.5.2009 after a
lapse of 71/2 years.
Based on the evidence adduced the 2nd Defendant’s firm had
presented the transfer for registration to NCSB in accordance to the
instructions of the 1st Defendant to transfer the property to NCSB.
NCSB collected the title form the 2nd Defendant’s firm on 7.1.2001.
DW2 in his Witness Statement explained that the Plaintiff had
enquired about the transfer by a letter dated 4.2.2009. He explained
that at that point of time the old file have been packed and stored.
In order to expedite his firm had contacted the 1st Defendant and
was told that that they do not possessed any records of change
of ownership. His firm then issued the letter dated 4.2.2009 based
on the reply of the 1st Defendant.
The Plaintiff never retained the 2nd Defendant to present the charge
or perfect the security documentation. In discussing the duty of
care owed by a solicitor to his client the case of Neoh Soo Oh &
Ors v. G Rethinasamy [1983] 2 CLJ 218; [1983] CLJ (Rep)
663; [1984] 1 MLJ 126, is referred wherein Gunn Chit Tuan J (as he
then was) emphasized that:
“ …a solicitors duty is to use reasonable care and skill in giving such
advice and taking such action as the facts of a particular case..”.
Based on the evidence adduced there is no dispute that the strata
title and the MOT was delivered to the 2nd Defendant vide a letter
14
dated 24.7.2001. The 1st Defendant had then forwarded the MOT
and strata title to the 2nd Defendant on the said date. By doing so
the 1st Defendant has fulfilled the terms of the undertaking. The
presentation of MOT was done by the 2nd Defendant. The 2nd
Defendant had effected the transfer and released the documents to
NCSB.
During cross-examination PW3, Puan Norimi Musa (Pegawai
Seksyen Recovery) gave evidence that it was the normal practice
for developer to forward strata title,
“ Q:
Bila ada peguam mewakili pihak bank di dalam satu pinjaman
dan ada peguam yang mewakili pihak pinjaman, dalam kes ini
NCSB bukankah ia biasa bagi pihak Defendan Pertama untuk
menyerahkan hakmilik kepada peminjam?
J:
Setuju.”.
In Re-Examination PW3 confirmed that it was agreed that the
documents were to be forwarded to the Plaintiff directly,
“ Pada ketika itu memang pihak Plaintiff telah engage Tetuan Aziz
Zakaria tetapi selepas itu pihak plaintiff telah menamatkan
perkhidmatan Aziz Zakaria dan meminta SY Lai
terus memberi
MOT dan original strata title terus kepada Plaintiff tanpa melalui
Tetuan Aziz Zakaria.”.
The Plaintiff was represented at all times by solicitors at that material
time as confirmed by PW3.
PW3 testified in evidence that the alleged fraud was discovered
based on a report prepared by the Plaintiff sometime in December
2009. When PW3 was asked why fraud was not pleaded in the
15
1st suit which was filed in 2011, PW3 is evidence was evasive
and inconsistent:
“ S:
Mengikut keterangan puan sendiri, bila report dibuat, Plaintif
telah tahu bahawa Defendan Kedua telah lakukan frod
terhadap Plaintif, itulah keterangan puan sendiri, betul?
J:
Betul.
S:
Saya tanya satu soalan yang obvious puan, mengapa dalam
guaman pertama tuntutan Plaintif terhadap kausa tindakan
Plaintif terhadap Defendan Kedua adalah dalam tort kecuaian
sahaja?
J:
Pada report dan pandangan peribadi saya pada waktu itu,
Plaintif sebenarnya masih belum tahu mengenai frod yang
berlaku setelah Plaintif dapat tahu bila kita dan buat siasatan
dan kita telah berhubung dengan pihak Defendan Pertama
kemudian kami dapati Defendan Pertama sebenarnya telah
me...telah...sorry sebab sekarang ini...
S:
Fikir dulu puan sebelum jawab.
J:
Ok..dalam report yang Plaintif ada Plaintif sebenarnya telah
menukar daripada kecuaian kepada frod setelah pihak-pihak
Plaintif mendapat dokumen-dokumen dan pliding-pliding,
surat-surat yang berkaitan daripada pihak Defendan Pertama
dan Defendan Kedua sendiri jadi sekarang ini pihak Plaintif
percaya yang kausa pertama kecuaian sebenarnya adalah
bukan
kecuaian
kerana
Defendan
Kedua
tahu
bahawa
pinjaman antara pihak Norlela dan pihak Plaintif masih ada
dan....
S:
Puan, saya tidak tanya alasan, dalam jawapan puan sendiri,
tengok jawapan puan sendiri, tengok jawapan di soalan 53,
puan telah memberi testimony bahawa selepas report ini
dikeluarkan pihak Plaintif tahu Defendan Kedua melakukan
frod, betul?
16
J:
Betul.
S:
So, 2 tahun selepas itu, Plaintif masih tahu Defendan Kedua
telah melakukan frod, betul?
J:
Betul.
S:
So, dengan latar belakang itu, saya tanya sekali lagi mengapa
dalam tuntutan pertama hanya tort kecuaian diplidkan?
J:
Saya tidak pasti.
S:
Tetapi puan adalah pegawai yang menjaga fail inikan?
J:
Saya mula ambil alih kes ini pada November 2009 dan sebelum
kes ini dikendalikan oleh pegawai terdahulu dan saya...
S:
Baik, puan telah mengambilalih dalam November 2009,
tuntutan pertama guaman pertama telah difailkan pada
November 2011, 2 tahun selepas puan telah mengambilalih fail
itu, saya katakan kepada puan bahawa puan patut tahu
mengapa guaman pertama memplidkan kausa tindakan tort
kecuaian sahaja?
J:
Saya tidak tahu....saya tak pasti.”.
Under section 101 of the Evidence Act 1950 for every civil claim the
burden of proof lies on the Plaintiff. The Plaintiff must prove the
existence of the facts which he asserts. Section 102 of the same Act
further provides that the burden of proof in the suit lies on that person
who would fail if no evidence at all were given on either side. It
is settled law that the standard of proof required where there is
an allegation of fraud in civil proceedings must be one of beyond
reasonable doubt and not on a balance of probabilities.
Whether fraud exist is a question of fact, to be decided upon the
circumstances of each particular case. Decided cases are only
17
illustrative of fraud. Fraud must mean ‘actual fraud, i.e., dishonesty of
some sort’ for which the registered proprietor is a party or privy.
‘Fraud is the same in all Courts..., ‘fraud’...implies a willful act, on the
part of one, whereby another is sought to be deprived, by unjustifiable
means, of what he is entitled. In the case Waimiha Sawmill Co. Ltd.
v. Waione Timber Co. Ltd. [1926] AC 101 @ 106, it is said that ‘if
the designed object of a transfer be to cheat a man of a known
existing right, that is fraudulent...’.
In the case of Loi Heing Chiong v. Kon Tek Shin [1983] CLJ Rep
240; [1983] 1 MLJ 31, where the Federal Court at Page 35, Syed
Othman F.J. held inter alia:
“ ...As regards the law, it has been said that the courts have so far not
ventured to lay down as a general proposition what amounts to fraud, it
can only be determined from acts and circumstances of a particulars
case. It usually takes the form of a statement of what is false or a
suppression of what is true. Where the relative position of the parties is
such as raises the presumption of an unconscientiously use of power
arising out of the circumstances and conditions, the transaction cannot
stand unless the person claiming benefit of it is able to repeal the
presumption by contrary evidence proving to have in point of fact, fair,
just and reasonable per Lord Selborne, L.C in Earl of Aylesford v. Morris;
See also Fry v. Lane.”.
In the Federal Court case of Lembaga
Kemajuan Tanah
Persekutuan (FELDA) & Anor v. Awang Soh Mamat & Ors. And
Another Application [2010] 3 CLJ 895 for it has relevance to the
issue of assessment of damages in the absence of evidence from
the party absent as follows at pages 900-901:
“ Learned counsel for the applicants sought to argue that his clients were
18
seriously prejudiced because the judge had acted upon an allegation of
fraud that must be proved beyond a reasonable doubt. Also, the judge
had made an award of damages which had never been proved. He
referred us to the well known dictum of Lord Goddard LCJ in BonhamCarter v. Hyde Park Hotel [1948] 64 TLR 177 at p. 178 where he said:
In an action for damages it is for the plaintiff to prove his damages, it is
not enough to write down the particulars and throw them at I the head of
the court, saying: 'This is what I have lost; I ask you to give me these
damages'. He has to prove it.”.
Based on the evidence adduced the 2nd Defendant was merely
acting on the instructions of the 1st Defendant to transfer the property
to NCSB and presented the transfer for registration on 30.10.2001.
The 2nd Defendant was still assisting the Plaintiff even in December
2009 in respect of the status of the property by trying to retrieve
the file which was closed in 2001. The conduct of the 2nd Defendant
does shows any intention to deceive the Plaintiff but instead an
attempt to try to resolve the matter.
In coming to a decision in this case, this Court has carefully perused
all the evidence adduced by all the witnesses, both for the Plaintiff
as well as the Defendants. The Court also considered all the
documentary evidence including all relevant contemporaneous
correspondences between the parties. I am satisfied that based on
the facts the Plaintiff had failed to establish its case of fraudulent
act on the standard required by the law, which was beyond
reasonable doubt (see Saminathan v. Pappa [1980] 1 LNS 174 PC).
This standard of proof had been consistently applied by the Courts
in Malaysia. There was no evidence adduced to show that the
2nd Defendant had fraudulently concealed the status of the transfer
19
by informing the Plaintiff on purpose that the MOT had yet to be
executed .In the light of the various evidences adduced and the
circumstances of the case and all of them considered cumulatively,
this Court finds that the Plaintiff has failed to prove beyond
reasonable doubt that the 2nd Defendant committed fraud.
Damages
The burden of proving damages is always on the parties claiming
the said damages. In the case of Tan Geok Khoon & Gerard
Francis Robless v. Paya Terubong Estate Sdn. Bhd. [1987] 1 LNS
79 Justice Edgar Joseph Jr. (as he was then) said:
“ This brings to my mind the famous words of Lord Goddard in BonhamCarter v. Hyde Park Hotel [1948] 64 TLR 177:
Plaintiffs must understand that if they bring actions for damages it is
for them to prove their damage; it is not enough to write down the
particulars, and, so to speak, throw them at the head of the Court,
saying: ‘This is what I have lost, I ask you to give me these
damages. They have to prove it.”.
The Court of Appeal in John v. Dharmaratnam [1961] 1 LNS 35
[1962] MLJ 187 as well as in Popular Industries Ltd v. Eastern
Garment Manufacturing Sdn. Bhd. [1990] 1 CLJ 133; [1989] 3
MLJ 360, the Court had occasion to say this (at p 367):
“ It is axiomatic that a plaintiff seeking substantial damages has the
burden of proving both the fact and the amount of damages before he
can recover. If he proves neither, the action will fail or he may be
awarded only nominal damages upon proof of the contravention of a
right. Thus nominal damages may be awarded in all cases of breach of
contract (see Marzetti v. Williams 109 ER 842). And, where damage is
shown but its amount is not proved sufficiently or at all, the court will
usually decree nominal damages.”.
20
The Federal Court in Tan Sri Khoo Teck Puat & Anor v. Plenitude
Holdings Sdn. Bhd. referred to the Judgment of Greer LJ in Flint v.
Lovell [1935] 1 KB 354 at p 360 where he said:
“ this court will be disinclined to reverse the finding of a trial judge as to
the amount of damages merely because they think that if they had tried
the case in the first instance they would have given a lesser sum. In
order to justify reversing the trial judge on the question of the amount of
damages it will generally be necessary that this court should be
convinced either that the judge acted upon some wrong principle of law,
or that the amount awarded was so extremely high or so very small as to
make it, in the judgment of this court, an entirely erroneous estimate of
the damage to which the plaintiff is entitled..”.
It was held by the Federal Court in Tan Sri Khoo Teck Puat’s case
that,
“ The correct approach for the judge to have adopted when assessing
damages was to make an estimate as to what the chances were of a
particular thing happening, ie, whether they were more or less even. In
this case, with the increased cost of construction, not forgetting that land
is limited and is always deemed to have a special value, the chances of
the price of houses increasing was part of the ordinary course of things
and more than even. Such an approach would have supported the profit
projections of the second appellant’ expert witness.”.
The Federal Court in Topaiwah v. Salleh [1968] 1 LNS 161, held
that,
“ In order to justify reversing the trial Judge on the question of the amount
of damages it will generally be necessary that this court should be
convinced either that the Judge acted on some wrong principle of law, or
that the amount awarded was so extremely high or so very small as to
make it an entirely erroneous estimate of damages to which the Plaintiff
is entitled.”.
21
In the present case the Plaintiff failed to adduce any evidence, oral
and documentary, that it had suffered any losses as alleged.
Conclusion
On reviewing and considering the evidence as a whole especially the
evidence of all the Plaintiff’s witnesses vis-a-vis the pleadings, and
that of the 1st and 2nd Defendants, I am of the considered view that
the Plaintiff has not proved their case on a balance of probabilities
against the 1st Defendant and beyond reasonable doubt against
the 2nd Defendant for fraud. Accordingly based on the reasons
mentioned above, the Court dismissed the Plaintiff's claims against
the 1st and 2nd Defendants with costs.
sgd.
(HASNAH BINTI DATO’ MOHAMMED HASHIM)
Judge
High Court of Malaya
Kuala Lumpur.
21stMay 2014
22
Counsels:
For the Plaintiff/Appellant:
Messrs. Rohaina & Co.
- Hariharan Tara Singh
- Thalia Rohaina Abdul Latif
For the Defendants/Respondents:
Messrs. Chellam Wong for 1st Defendant
- Mark Ho
- Azad Akhbar Khan
For the Defendants/Respondents:
Messrs. Chellam Wong for 2nd Defendant
- Wong Hock Man
- Rachel Low