The court ruled that waiver must be pleaded and proven, and contractual late payment interest is enforceable unless proven unreasonable.

Elaine Yap Chin Gaik JC:

Introduction

[1] In this Judgment, the parties will be referred to as they were in the court below. The Plaintiff's claim before the Sessions court was for the recovery of the unpaid balance of 2 invoices issued for services rendered in the sum of RM54,248.44 (out of the total sum invoiced of RM81,372.66), late payment interest at 3% per month ("LPI") and costs.

[2] The 2 invoices were dated 10 June 2020 and 22 July 2020 ("Invoices") and provided that LPI at 3% per month was chargeable if the invoices remained unpaid after 30 days. The Invoices remained unpaid for some 2 years. In May 2022, an action similar to the present was filed by the Plaintiff before the Magistrate. For reasons that are unclear, the action was re-filed in the Sessions court on 27 October 2022.

[3] Before 27 October 2022, the Defendant tendered part-payment of RM27,124.22. Two further payments of RM27,142.22 were made on 4 November 2022 and 14 December 2022. These sums represented only the principal debt and not the accrued LPI claimed.

[4] The Plaintiff maintained its claim for the accrued LPI which proceeded to trial. It was dismissed by the Sessions court Judge who determined that the Plaintiff had waived the imposition of LPI, and that the rate of interest imposed was excessive as it exceeded the limit allowed under the Moneylenders Act 1951 .

Analysis And Findings

[5] At the hearing of the appeal, the Defendant raised a preliminary objection that the appeal was incompetent because the Notice of Appeal was served by email on the last date to do so on 6 June 2024 and a physical copy was only served the following day.

[6] This court heard and in the exercise of its discretion, dismissed the preliminary objection. This court accepted that solicitors in this matter had a consistent practice of service by email, followed by physical delivery; and that the mode of service was therefore agreed upon. In any case, there was no apparent prejudice or miscarriage of justice.

Waiver And Estoppel

[7] The Plaintiff's appeal to this court turned substantively on the question of whether the Sessions court Judge was plainly wrong in dismissing the Plaintiff's claim on the grounds of waiver and estoppel. On this, the Plaintiff argued that the Sessions court Judge had decided the case on a defence that was not pleaded. The Defendant contended that this was not a ground of appeal in the Memorandum of Appeal and should not be canvassed.

[8] In dealing with this point, this court was of the view that a ground of appeal raised on a question of law should be allowed even if it was not stated in the Memorandum of Appeal, provided that it is not premised on any new facts or evidence. It is also subject to the overriding discretion of the court to do justice ( Dato' Tan Chin Woh v. Dato Yalumallai @ M Ramalingam V Muthusamy 2016 MarsdenLR 140 ; [2016] 5 MLJ 590; [2016] 8 CLJ 293; [2016] 4 AMR 817). In this case, it would be ironic and unjust if the argument that the Sessions court Judge had decided the case on an unpleaded point is not addressed simply because it is not pleaded as a ground of appeal in the Memorandum of Appeal, especially if there is merit in the argument.

[9] On a review of the pleadings, this court did find that the defence of waiver was not pleaded in the Defence. The pleaded defence in the action was that the Defendant never received the Invoices and did not agree to the imposition of LPI as no such term was stated in the Plaintiff's quotation.

[10] The court of Appeal in Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v. Capital Insurance Bhd 2003 MarsdenLR 178 ; 2004 MarsdenLR 1822 ; ; held that once a defendant takes that course, he must stand or fall on his pleaded case. He cannot simultaneously put forward an unpleaded case of justification for his conduct. See also Agromate (M) Sdn Bhd v. Felcra Niaga Sdn Bhd 2022 MarsdenLR 1063 ; and Bank Islam Malaysia Berhad v. Aquasix Corporation Sdn Bhd & Ors 2013 MarsdenLR 1380 ; [2014]