A party may substantiate claims or defenses through oral evidence alongside documents, asserting rights to set-off even when documentary proof seems lacking.

JUDGMENT

Wong Hok Chong JC:

Introduction

[1] This is the Defendant appeal against the Learned Magistrate's ("LM") decision to allow the Plaintiff's claim and disallow the Defendants counterclaim after a full trial.

[2] After hearing parties' submissions, I allowed the Defendant's appeal. I dismissed the Plaintiff's claim and allowed the Defendant's counterclaim. These are the grounds for my decision.

Background Facts

[3] Shahaban Beebe Binti Haja Mydin ("Shahaban") purchased of a ¼ share in a property jointly from Che Su Binti Ismail, Mohd Daud Bin Ismail and Elias Bin Ismail. Shahaban had appointed the Plaintiff as her property, and the Defendant as her solicitors, for the transaction. The Plaintiff property agent and the Defendant solicitors were known to each other and have a history of working together on other previous transactions.

[4] The negotiations for the transaction had begun as early as October 2016 and the selling price of RM132,000.00 was agreed in February 2017. However, due to some issues with the distribution of the estate property to the Vendors, the Sale and Purchase Agreement was only executed about 1½ years later on 25 August 2018.

Commission

[5] However, once the sale price had been agreed upon (February 2017), the Plaintiff knew that he stood to receive a commission of RM42,000.00 and that he would be paid through the Defendant on completion of the transaction.

[6] It is unclear whether the commission was to be, or eventually, borne by the Vendors, deducted from the purchase price, or by Shabahan herself. But that is not an issue before this court. It suffices to say that the Defendant was, on completion of the transaction, in possession of the commission due to the Plaintiff.

Advances

[7] Following which, at the Plaintiff's request, the Defendant made a series of advances to the Plaintiff over a period of 14 months from 10 March 2017 to 26 April 2018. The Defendant says that it was agreed that the advances would be set-off against the commission due to the Plaintiff.

[8] There were advances made directly to the Plaintiff totalling 45,400.00. In addition, there were advances in the form of payments made on behalf of the Plaintiff: (a) RM3,000.00 to Messrs. Wan Faridulhadi & Co and (b) RM6,463.98 to RPIB Bank Berhad. In total, the advances totalled RM54,863.98, exceeding the commission of RM42,000.00 by RM12,863.98. This, I imagine, was allowed to happen only because there was some goodwill between the Plaintiff and the Defendant at the material time - a goodwill that was soon to end.

Plaintiffs Claim

[9] The Plaintiff originally claimed for RM42,000.00. That amount was subsequently amended and reduced to RM32,536.02, after taking into account the advances made on the Plaintiff's behalf to Messrs. Wan Faridulhadi & Co and RHB Bank Berhad, totalling RM6,463.98. However, no account was given to the advances made directly to the Plaintiff,

Defendants Set-Off & Counter-claim

[10] The Defendant has no issue with the Plaintiff's claim per se.

[11] Rather, the defence is one of set-off. The Defendant says that they are entitled to set-off the amount advanced directly to the Plaintiff (RM45,400.00) against the Plaintiffs claim (RM32,536.02), which leaves the Defendant still with a net counter-claim of RM12,863.98.

[12] The main issue was, thus, whether the Defendant was entitled to the said set-off and counter-claim.

Defence To Set-Off And Counter-Claim

[13] The Plaintiffs defence to the Defendant's claim of set-off and counter-claim really nothing more than a bare denial. He denies:

(a) at para 4 of his Reply and Defence to Counter-Claim, that any advances, directly to him or on his behalf,were made to him; and

(b) at para 5 of his Reply and Defence to Counter-Claim, that there was an undertaking to permit the Defendant to set-off the amount against the advances.

Learned Magistrates' Decision

[14] The LM dismissed the Defendant's set-off and counter-claim on the grounds that:

(a) there was no direct or documentary evidence to support th