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2024 MarsdenLR 628
HIGH COURT MALAYA KUALA LUMPUR
LIM MEI JIN – Appellant
Versus
LOH YUEN TUCK – Respondent
[Suit No: WA-22NCC-621-12/2020]
The court affirmed that the Defendant failed to establish accord and satisfaction regarding the loan, and the Plaintiff was entitled to claim the loan amount despite its omission from the Will.
Headnote:(A) Contracts – Accord and Satisfaction – The court found no accord and satisfaction regarding the Defendant's obligations under the Memorandum of Agreement (MOA) for a friendly loan, as the alleged repayments were not proven to be for the loan or received by the Deceased. (Paras 67a, 11, 12)
(B) Contracts – Privity of Contract – The MOA and Consultancy Agreement are separate contracts, and the Defendant cannot rely on the Consultancy Agreement to reduce his loan obligations under the MOA. (Paras 67b, 18, 19)
(C) Pleadings – The Defendant did not properly plead the defence of accord and satisfaction or the argument of lack of cause of action. (Paras 67c, 36)
(D) Personal Knowledge – The Plaintiff's concession to reduce the claim does not indicate a lack of personal knowledge or fabrication of the claim. (Paras 67d, 40)
(E) Wills – The inclusion of the MOA loan in the List of Assets allows the Plaintiff to pursue the claim despite its omission from the Will. (Paras 67e, 66)
Facts of the case: The Plaintiff, as executrix of the Deceased's estate, claimed RM1,610,000 from the Defendant, who argued that repayments constituted accord and satisfaction. The court found insufficient evidence for this claim. (Paras 1, 2)
Findings of Court: The Plaintiff's claim for RM910,000 was allowed with interest at 5% per annum. (Para 68)
Issues: The main issues included whether there was accord and satisfaction, the interrelation of the MOA and Consultancy Agreement, the sufficiency of pleadings, and the Plaintiff's entitlement to claim the MOA sum. (Paras 67, 26)
Ratio Decidendi: The court ruled that the Defendant failed to prove accord and satisfaction, the MOA and Consultancy Agreement are distinct, and the Plaintiff's claim was valid despite the Will's omission. (Paras 67, 68)
Result: Judgment for the Plaintiff for RM910,000 with interest and costs.
JUDGMENT
[1] The Plaintiff, suing as the executrix and trustee of the estate of Loh Yuen Weng ("the Deceased'), claims against the Defendant, the brother of the Deceased, for the sum of RM1,610,000 arising from a friendly loan extended by the Deceased to the Defendant pursuant to a Memorandum of Agreement for Private Placement Shares dated 17 April 2015 ("MOA"). Having considered the evidence and the submissions of the parties, I find in favour of the Plaintiff and allow the claim, albeit for the lesser sum of RM910,000. These are the grounds for my decision.
Whether There Is Accord And Satisfaction With Regards To The Defendant's Obligations Under The MOA And Consultancy Agreement
[2] The Defendant submits that there has been accord and satisfaction of the sums owed by him to the Deceased under the MOA dated 17 April 2015 and the related Consultancy Agreement of the same date between the Deceased and Connect IOT Sdn Bhd ("CISB"). The Defendant contends that of the RM910,000 disbursed by the Deceased under the MOA, a total of RM739,516 was repaid in the following manner: RM50,000 by the Defendant himself through two transactions of RM30,000 and RM20,000 respectively as reflected in his CIMB Bank statements dated 7 November 2016 and 7 January 2017; and RM689,516 by CISB via four cheques amounting to RM43,248, RM31,000, RM50,268 and RM565,000 as captured in CISB's bank statements and management accounts. The Defendant also argues that under the Consultancy Agreement between CISB and the Deceased, the Deceased had agreed to bear losses on the Managepay Systems Berhad ("MPS") shares. Due to a loss of RM171,876.56 incurred by CISB on the sale of the MPS shares, the Defendant claims that this sum should be deducted from the loan amount, thereby resulting in accord and satisfaction as the repayments made (RM739,516) exceed the net loan due (RM738,123.44).
[3] The Plaintiff refutes the Defendant's contentions on several grounds. Firstly, the Plaintiff submits that the Defendant's failure to specifically put his case of accord and satisfaction to the Plaintiff's witness during cross-examination amounts to an abandonment of this defence. The Plaintiff refers to two authorities in this regard. In Aik Ming (M) Sdn Bhd & Ors v. Chang Ching Chuen & Ors & Another Case, , the Court of Appeal held at p 775:
"It is essential that a party's case be expressly put to his opponent's material witnesses when they are under cross-examination. A failure in this respect may be treated as an abandonment of the pleaded case and if a party, in the absence of valid reasons, refrains from doing so, then he may be barred from raising it in argument."
[4] Similarly, in Manjit Kaur Pertap Singh v. Dr Nagasparan Natchappan , [2024] 1 MLJ 572 , the Court of Appeal observed at para 26:
"We would also add that failing to challenge the version put by respondent and his staff meant that the appellant had abandoned that part of her pleaded case. A party's case must be expressly put to the opponent's witnesses under cross-examination as a failure to do so would mean that he has taken to accept his opponent's version and would also bar him from raising it in argument."
[5] The Plaintiff contends that by not challenging her testimony on accord and satisfaction, the Defendant must be taken to have accepted her version of events on this issue.
[6] Secondly, the Plaintiff argues that the RM50,000 allegedly paid by the Defendant to the Deceased, through two transactions of RM30,000 and RM20,000 on 25 October 2016 and 21 December 2016 respectively, was not proven to be for repayment of the friendly loan under the MOA. During cross-examination, the Defendant admitted that his bank statements showing these fund transfers do not state the purpose of the payments. The Plaintiff submits that the Defendant has failed to discharge his burden of proving that these payments were made towards settlement of the MOA loan.
[7] Next, the Plaintiff contends that the alle
