Back
2023 MarsdenLR 1856
COURT OF APPEAL PUTRAJAYA
PIONEER CONGLOMERATE SDN BHD – Appellant
Versus
TENGGARA KAPITAL SDN BHD – Respondent
[Civil Appeal No: W-02(NCC)(W)-2141-11/2021]
The burden of proof lies with the claimant to substantiate their claim, and failure to provide sufficient evidence results in dismissal of the claim.
Headnote:(A) Evidence Act 1950 - Sections 67, 101, and 102 - Appeal against High Court's dismissal of claim for repayment of RM7,000,000.00 loan - Appellant claimed loan based on Payment Vouchers, while Respondent argued it was a commission - Appellant failed to establish loan through evidence, lacking agreement or Board resolution - Court emphasized burden of proof lies with Appellant to establish claim on balance of probabilities - Respondent's contention of commission supported by evidence of share acquisition - Appeal allowed; judgment of High Court set aside, with RM7 million awarded plus interest. (Paras 8-39)
(B) Burden of Proof - Legal principles dictate that the burden lies on the party asserting a claim to prove it; failure to do so results in dismissal of the claim. (Paras 10, 14)
(C) Evidential Value of Documents - The authenticity of documents must be established through proper evidence; failure to call material witnesses can lead to adverse inferences. (Paras 8, 10, 31)
Facts of the case:
The Appellant alleged an interest-free loan of RM7 million to the Respondent, evidenced by Payment Vouchers. The Respondent claimed the payments were commissions for securing shares. The High Court dismissed the Appellant's claim due to lack of supporting evidence.
Findings of Court:
The Appellant failed to prove the nature of the payments as a loan, and the Respondent's evidence supported the characterization of the payments as commissions.
Issues: Whether the RM7 million was a loan or a commission; whether the Appellant met its burden of proof.
Ratio Decidendi: The court found that the Appellant did not provide sufficient evidence to substantiate its claim of a loan, and the burden shifted to the Respondent to prove the payments were commissions, which they did not do.
Result: Appeal allowed; judgment set aside with RM7 million awarded to Appellant plus interest.
| Table of Content |
|---|
| 1. loan vs. commission (Para 2 , 3 , 4) |
| 2. defendant's defense (Para 5 , 6 , 11) |
| 3. trial court's findings (Para 8 , 9 , 10 , 12 , 14) |
| 4. burden of proof (Para 15 , 16 , 17) |
| 5. admissibility of evidence (Para 18 , 19 , 20) |
| 6. documentary evidence (Para 21 , 22 , 23) |
| 7. allegations of forgery (Para 28 , 29 , 30) |
| 8. appellate court's decision (Para 35 , 36 , 38) |
Introduction
[1] This is an appeal against the decision of the learned Judge of the High Court ['LJ'] given after conducting a full trial. It is against the decision of the LJ wherein the Appellant's claim against the Respondent was dismissed with costs of RM50,000.00. Both parties to the suit were private limited companies engaged in the business of investment holdings (Plaintiff) and wholesale of an assortment of goods (Defendant) respectively.
Factual Background
[2] The Appellant's claim is that at the request of the Respondent, the Appellant had given an interest-free loan to the Respondent in the amount of RM7,000,000.00. The said sum was paid to the Respondent in the following manner:
(i) RM5,000,000.00 was paid via the Appellant's cheque No 000055 on 3 November 2017; and
(ii) RM2,000,000.00 was paid via the Appellant's cheque No 000054 on 15 November 2017.
[3] The Appellant's case rests entirely on the two Payment Vouchers dated 3 November 2017 [Exhs 'P1' and 'P2'] as evidence of the loan. In both the Payment Vouchers, the payments were stated as 'being paid as Advance to Tenggara Kapital Sdn Bhd' ["the notation"] and they bore the signature of Ngu ["DW2"] who was at the material time acting as the Advisor to the Appellant.
[4] The Respondent had failed, refused and/or neglected to re-pay the Appellant the said advancement. Hence, the Appellant claims from the Respondent the return of the said loan amount of RM7 million.
[5] The Respondent's defence is that the Respondent does not deny receiving the two (2) payments under the Payment Vouchers but maintains that the payments were 'brokerage commissions' agreed to be paid to the Respondent by Dato' Chin Swee Chong ["PW1"] who was the Managing Director of the Appellant for securing for the Appellant a controlling interest in one Ta Win Holdings Berhad ["Ta Win"].
[6] There was only one (1) issue for determination before the High Court, whether the payment of RM7,000,000.00 made to the Respondent by the Appellant was an advancement or a commission.
[7] After a full trial, the LJ dismissed the Appellant's claim.
Our Decision
[8] We would begin by examining the reasons given by the LJ in arriving at his decision. A summary of the same is as follows:
1) The Plaintiff had not adduced any evidence at all on the circumstances surrounding the alleged request by the Defendant for the RM7,000,000.00 advance. There is no written communication adduced between the parties leading to the alleged advance. Neither did the Plaintiff's witness give any testimonies on any oral communication from the Defendant requesting for the advance.
2) The Plaintiff also did not adduce any agreement executed between the Plaintiff and the Defendant in respect of any advance, let alone the RM7,000,000.00 that was paid to the Defendant pursuant to the Payment Vouchers.
3) Significantly, there was also no resolution by the Plaintiff's Board of Directors approving the advance of RM7,000,000.00 to the Defendant.
4) There is also no testimony from the Plaintiff's sole witness giving details to this Court of the terms and conditions for the purported advance to the Defendant, including the repayment date for the advance, if any. The alleged advance was paid to the Defendant in end of 2017 and based on the evidence before the Court, no demand for the repayment for such alleged advance was ever made against the Defendant until a month before the filing of this suit when the Plaintiff out of the blue sent out the letter of demand dated 24 April 2019 for the repayment of such alleged sum.
5) On the other hand, the Defendant's witnesses, DW1, DW2, D
