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2024 MarsdenLR 686
HIGH COURT MALAYA KUALA LUMPUR
EWE SAW LEE – Appellant
Versus
DATO SRI ANDREW KAM TAI YEOW (ENCL 1) – Respondent
[Civil Suit No: WA-22NCvC-257-05/2020]
The court affirmed that the burden of proof lies with the plaintiff to establish her claim for repayment of loans, which she successfully did against the defendant's unconvincing defenses.
Headnote:(A) Evidence Act 1950 - Sections 101, 102, and 103 - Limitation Act 1953 - Section 6 - Plaintiff, a businesswoman, claimed repayment of friendly loans totaling RM1,732,500.00 from Defendant, an advocate and businessman - Court found Plaintiff proved her claim on the balance of probabilities, entering final judgment for the amount with interest and costs. (Paras 2.1, 12.1, 15.1)
(B) Burden of Proof - The burden of proof lies on the plaintiff to establish her case on the balance of probabilities, and the evidentiary burden is on those who allege a fact to prove it. (Paras 9.1, 9.2)
(C) Contract Interpretation - The Court must determine the innocent and guilty parties in a breach of contract, considering the factual matrix of the transaction. (Paras 10.1, 12.1)
Facts of the case:
The Plaintiff lent the Defendant sums of money on multiple occasions, totaling RM1.5 million and additional amounts, which the Defendant failed to repay despite assurances. (Paras 4.5, 4.6, 5)
Findings of Court:
The Court found the Defendant's claims of inter-company transactions unconvincing and upheld the Plaintiff's evidence regarding the loans. (Paras 12.1, 13.1)
Issues: The main issues included whether the Defendant was personally liable for the loans and if the claim was time-barred. (Paras 7.9.1, 7.12)
Ratio Decidendi: The Court ruled that the Defendant's denials were unconvincing, and the Plaintiff's evidence was credible, supported by contemporaneous documents and witness testimonies. (Paras 12.2, 14.3)
Result: Plaintiff's claims were allowed, and judgment was entered for the total amount with interest and costs. (Paras 15.1, 15.2, 15.3)
JUDGMENT
Introduction
[1] The parties:
1.1 The plaintiff (P) is a Malaysian businesswoman involved in advertising, PR, market research, and event management. She is the director and/or shareholder of the following companies:
(i) Impact Challenger (M) Sdn Bhd (Com. No: 234100-K).
(ii) Impact Creations (M) Sdn Bhd (Com. No: 240713-A); and
(iii) Global Search Consultants (M) Sdn Bhd (Com No:670517-P).
1.2 The defendant (D) is an advocate & solicitor, and businessman involved in, amongst others, mining and property development in several companies.
(i) Raub Australian Gold Mining Sdn Bhd (Com. No374745-K).
(ii) Indrapura Properties Sdn Bhd (Com No: 207070-H).
(iii) Raub Resources Sdn Bhd (Com No: 330753-P); and
(iv) Akay Holdings Sdn Bhd (Com No: 160758-U).
1.3 The claim against D is for the repayment of the friendly loans that P advanced to him on several occasions since 2013 (the friendly loans).
[2] On 21 November 2023:
2.1 In my considered judgment, I found on the balance of probabilities, P had succeeded in proving her claim against D and entered final judgment in the sum of RM1,732,500.00, interest at the rate of 5% per annum from 21 February 2020 until full realisation. Costs of RM70,000.00 was awarded to P to be paid within 30 days from the date of this order.
2.2 Aggrieved, D filed this appeal against my decision, and these are my reasons.
[3] The witnesses at the trial are as follows:
3.1 P's witnesses:
PW1: Ahmad Zaharan Bin Hj Ibrahim
PW2: Edwin Kok Ming Chin
PW3: Ewe Saw Lee (the P)
PW4: Yong Boon Wan PW5: Yeoh Siew Sun (Steven)
3.2 D's witnesses:
DW1: Teo Chee Hau
DW2: Dato' Sri Andrew Kam Tai Yeow (the D)
Brief Facts
[4] P claimed that sometime in 2012, D commissioned her company, Global Search Consultants.
4.1 To undertake a study of the socio-economic impact of the Raub Gold Mining in Raub, Pahang, where D was involved.
(A) First Cash Advance:
4.2 Subsequently, on 7 May 2013, at a meeting with D, P was informed by D (selling point) that several companies he was associated with were in the process of securing several potential projects in Pahang:
(a) Due to cash flow problems, D requested assistance via a friendly personal cash advance of RM500,000.00 from P, with a promise of repayment within two months of receiving the funds.
(b) D being considered a valued client, P obliged by handing over cash of RM500,000.00, on 1 July 2013 at her office.
(c) In return, at his initiative, D gave P an HSBC Cheque: 920074 (dated 26 September 2013, for RM600,000.00) drawn in favour of Impact Creations as security by Indrapura Properties (D's company) for the friendly advance.
(d) On 24 September 2013, D asked P not to cash the cheque since Indrapura Properties had insufficient funds.
(e) D assured P that he would repay the friendly loan in another way.
(f) P obliged the request.
(g) On 14 October 2013, at a meeting, D replaced the said HSBC cheque with a post-dated Public Bank cheque (26 April 2014) for RM600,000.00 drawn in favour of Impact Creations, also by Indrapura Properties.
(B) Second Cash Advance:
4.3 A few days before 10 September 2013:
(a) D requested yet another friendly loan of RM500,000.00.
(b) Same reason, due to cash flow issues.
(c) P obliged by handing over cash (RM500,000.00) to D on 10 September 2013 at 12:30 pm.
(d) As with the first advance, at his initiative to assure P, D handed over a post-dated HSBC cheque: 920075 (08.10.2013 for RM600,000.00) drawn in favour of Impact Creations by Indrapura Properties.
(e) Similarly with the first advance, a few days before 8 October 2013, D informed P not to encash the cheque until further notice because Indrapura Properties had insufficient funds.
(f) P obliged the request.
(C) The Third Cash Advance:
4.4 On 18 September 2013:
(a) D requested another friendly cash advance for the sum of RM500,000.00 due to, yet again, cash flow issues.
(b) P obliged by handing over cash (RM500,000.00) to D on 20 September 2013 at 03:30 pm.
(c) As with the first two advances, at his initiative to assure P,
