Back
2020 MarsdenLR 1505
COURT OF APPEAL PUTRAJAYA
GENNEVA MALAYSIA SDN BHD – Appellant
Versus
TIO JIT HONG & ORS – Respondent
[Civil Appeal No: B-02(IM)(NCC)-542-03/2019]
Valid contracts can be established through conduct without written acceptance; consent from the Public Prosecutor is required to initiate proceedings under AMLA when assets are seized.
Headnote:(A) Rules of High Court 2012 – Order 14 – Summary judgment – Plaintiffs claiming refund for gold transactions – Court affirmed that valid contracts were formed despite lack of formal acceptance – Consent from Public Prosecutor obtained under s 54(3) AMLA for proceeding with suit – Defendants' conduct established acceptance of offers made by the Plaintiffs. (Paras 9, 12, 18, 65, 68)
(B)
Restitution – Plaintiffs entitled to recover funds paid for gold that was not delivered – Court emphasized that seizure under AMLA does not extinguish Defendants' liability. (Paras 17, 19, 63)
Facts of the case:
Appeal against the High Court's summary judgment favoring the Plaintiffs, who alleged non-delivery of gold after making payments to the Defendant. Finding of Court: High Court's ruling upheld, no triable issues existed, and Plaintiffs proved Plaintiffs' claim.
Issues
: Whether binding contracts existed and implications of AMLA on Plaintiffs' claims.
Ratio Decidendi:
Acceptance of offers can be established through conduct despite absence of written acceptance; Plaintiffs met legal prerequisites to initiate suit.
Result:
Appeal dismissed with costs.
Introduction
[1] By notice of appeal dated 19 March 2019, the Appellant appealed against the whole decision of the learned High Court judge (the learned judge) delivered on 1 March 2019 which allowed the Respondents' application for summary judgment under O 14 of the Rules of High Court 2012 (RHC 2012) for the refund of money (restitution) at para 77(l) (i) to (ix) of the Statement of Claim dated 25 July 2018. The Appellant was also ordered to pay interest of 5% on the amount awarded to each and every Respondents based on the date of Customer Purchase Orders and Customer Purchase Bill.
[2] We heard the Appellant's appeal on 3 October 2019 and after perusal of the record of appeal and considered the oral submissions and written submissions of the Appellant and the Respondents, we found there is no merit in the Appellant's appeal. We dismissed the appeal with Costs of RM10,000.00 against the Appellant subject to allocator fee.
[3] The Appellant herein was the Defendant whereas the Respondents named herein was the Plaintiffs. The parties shall be referred to as they were in the Court below.
Background Facts
[4] The Defendant is a company that was engaged in the trade of buying and selling gold bullion.
[5] The Plaintiffs are individuals.
[6] The Plaintiffs allege that they entered into contracts with the Defendant to buy gold from and/or sell gold to the Defendant.
[7] The Plaintiffs claim that they deposited the purchase sums into the Defendant's Account with CIMB Islamic Bank Account No: 14560000662104 but the Defendant failed to deliver the gold to them.
[8] The Plaintiffs also claim that they sold gold to the Defendant but the Defendant failed to pay for the said gold.
Application Under Order 14 RHC 2012
[9] Plaintiffs' filed application for summary judgment dated 28 September 2018 in encl 8 supported by affidavits affirmed by the First to Seventh Plaintiffs on 27 September 2018 and by the Eighth and Ninth Plaintiffs on 28 September 2018 respectively.
[10] In the Statement of Claim, at para 77(b) to (k), the Plaintiffs' claim against the Defendant the payment of monies owed to them or alternatively, payment by restitution at para 77(l)(i) to (ix). The amount claim are all based on Receipts of Customer Purchase Orders and Customer Purchase Bill (CPO and CPB). (See: statement of claim at pp 46 and 47 Rekod Rayuan Bahagian A&B).
[11] In the application for summary judgment, encl 8 (at pp 64 to 157 of Rekod Rayuan Bahagian A&B), the Plaintiffs averred that the Defendant had not paid the arrears of payment and the amount is still owed to the Plaintiffs; the Defendant has no defence to the amount claimed by the Plaintiffs and there is no issues to be tried to the Plaintiffs' claim.
[12] The Defendant opposed to the application by filing its affidavit in reply affirmed on 19 October 2018 (at pp 158 to 182 of Rekod Rayuan Bahagian A&B) amongst others avered the same defence as raised in the statement of defence and based on the defence, the Defendant argued that there are 3 issues to be tried related to the existence of contract between the Plaintiffs and the Defendant, that is the restriction imposed under the Anti Money Laundering Act 2001 (AMLA) and laches. It was the Defendant's case that the three issues ought to be determined in a full trial basis.
Defendant's Submission
[13] The Defendant submitted that there is no contract because there is no written acceptance by the Plaintiffs. For the Defendant, the CPO are mere offers to sell gold to the Defendant. All the CPO contain a clause "I/We hereby declare that I/we am/are aware that this Order does not bind GENNEVA until it is accepted in writing by GENNEVA". However, none of the Plaintiffs adduced any evidence at all of the acceptance by the Defendant. Therefore, there is no evidence of any binding contract between the Plaintiffs and the Defendant.
[14] The Defendant relied on the High Court case of Genneva Malaysia Sdn Bhd v. Abdul Ghani Sher Mohamad where
