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2025 MarsdenLR 939
HIGH COURT MALAYA SHAH ALAM
LOO AN SWEE – Appellant
Versus
PANG KIM CHOON & ANOR – Respondent
[Suit No: BA-22NCC-64-06/2021]
The absence of a written agreement necessitates critical evaluation of oral evidence and the burden of proof lies with the party asserting the existence of a contract, determining the nature of funds transferred.
Headnote:(A) Evidence Act 1950 - Sections 101 and 102 - Civil proceedings involving claims related to the existence of a friendly loan versus brokerage fees - The plaintiff claims RM835,000.00 was a friendly loan, while defendants assert it was part of a brokerage fee for services rendered. The court dismissed the plaintiff's claim, finding insufficient evidence to establish the existence of a loan. (Paras 15, 18, 86)
(B) Burden of proof - The burden lies with the party asserting a fact, and without a written agreement, the court scrutinizes oral evidence against other evidence presented. (Paras 16, 18)
Facts of the case:
The plaintiff, a long-time friend of the 1st defendant, claims a sum was loaned; however, the defendants contend the amount was a brokerage fee for services regarding land procurement and share sales. Both parties submitted several witness testimonies and documentary evidence. (Paras 1-12)
Findings of Court:
The court concludes that the defendants discharged their burden of proof in their counterclaim, while the plaintiff failed to substantiate his claims. (Paras 20, 86)
Issues: The court addressed whether a loan contract existed, the nature of the RM835,000.00, and the validity of the counterclaim for brokerage fees. (Paras 15, 20)
Ratio Decidendi: The lack of written agreements prompted a thorough examination of oral testimony and documentary evidence. The court determined that the defendants provided credible evidence that the amount claimed was for brokerage fees, not a loan. (Paras 20, 86)
Result: The plaintiff's claim is dismissed, and the defendants' counterclaim is allowed. (Paras 86)
| Table of Content |
|---|
| 1. allegation of friendly loan vs. brokerage fee (Para 1 , 2) |
| 2. background of the plaintiff and defendant's claims (Para 4 , 5 , 12) |
| 3. payments made via cheques and their implications (Para 8 , 10 , 13) |
| 4. existence of loan contract and related admissions (Para 21 , 22 , 24) |
| 5. comparison to previous case handling similar facts (Para 26 , 27 , 28) |
| 6. lack of formal communication regarding loan (Para 38 , 39 , 40) |
| 7. defendants' rights to brokerage fee per services rendered (Para 49 , 52 , 53) |
| 8. final order regarding claims and counterclaims (Para 84 , 86) |
A. Introduction
[1] The plaintiff's claims against the defendants involve a sum of RM835,000.00, allegedly a friendly loan. The defendants acknowledge receiving the amount but deny that it was a loan.
[2] The defendants assert that the sum of RM835,000.00 was part of the brokerage fee promised by the plaintiff to the 1st defendant. They filed a counterclaim to recover the outstanding balance of the brokerage fee from the plaintiff for RM3,765,000.00.
[3] The full trial took place from 10 to 11 June 2024. On 28 January 2025, the High Court dismissed the plaintiff's claim with costs. The reasons for my decision are as follows.
B. Background
[4] The plaintiff filed a suit in the Session Court on 24 September 2020. Based on the amount claimed by the defendants, they filed Originating Summon No BA-24NCVC-1419-12/2020 to transfer the proceedings to the High Court in Shah Alam. On 12 March 2021, the High Court ordered the suit transferred to the High Court under O 57, r 2, Rules of Court 2012.
C. Material Facts
[5] The plaintiff and the 1st defendant are long-time good friends.
[6] The plaintiff's claim against the defendants is for a friendly loan of RM835,000.00 requested by the 1st defendant.
[7] The defendants are a husband and wife. In the Statement of Agreed Facts, the 1st defendant agrees that he received RM805,000.00, and the second accepts that she received RM30,000.00 from the plaintiff.
[8] The plaintiff has made the specified payments via eight cheques from various banks as follows:
(i) A UOB cheque no 56191 dated 15 January 2016 for the sum of RM20,000.00 was given to the first defendant on 14 January 2016;
(ii) A HLB cheque no 302453 amounting to RM30,000.00 was given to the 1st Defendant on 3 March 2016;
(iii) A UOB cheque no 561926 for the sum of RM20,000.00 dated 3 March 2016 was provided to the 1st Defendant on 3 March 2016;
(iv) A UOB cheque no 561940, dated 13 April 2016, was given to the 1st Defendant on 13 April 2016;
(v) A UOB cheque no 714914 dated 2 February 2017 was given to the 1st Defendant on 2 February 2017;
(vi) A UOB cheque no 019019 dated 30 July 2018 was given to the 1st Defendant on 30 July 2018;
(vii) A UOB cheque no 019020 dated 30 July 2018 was given to the 1st Defendant on 30 July 2018; and
(viii) A UOB cheque no 019080, dated 15 February 2019, was given to the 1st Defendant on 15 February 2019.
[9] The plaintiff relies on the Chinese notation 'Pang' in his cheque butts, which means pinjam in Bahasa Melayu.
[10] The defendants deny that RM835,000.00 was paid to them as a friendly loan and assert that it was part of the brokerage fee promised by the plaintiff to the 1st defendant for the services rendered by the 1st defendant as follows:
(i) To procure a quarry land in Mukim Sungai Raya, Daerah Kinta, Negeri Perak from the Perak State Government for the plaintiff's company, Exponential Quarry Sdn Bhd (EQSB); and
(ii) To procure the sale of the EQSB shares to a purchaser known as Omya Malaysia Sdn Bhd (Omya).
[11] No written agreement was entered into between the plaintiff and the 1st defendant regarding the friendly loan or the brokerage fees.
[12] The statement of Agreed Facts, as outlined by the plaintiff and the defendants, is as follows:
a) The 1st and 2nd defendant are husband and wife.
b) The 1st defendant admitted receiving RM805,000.00 from the plaintiff.
c) The 2nd defendant admitted receiving RM30,000.00 from the plaintiff.
d) The pro
