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2017 MarsdenLR 2829
COURT OF APPEAL (PUTRAJAYA)
LIM YEE LAN, J, VARGHESE GEORGE, J, IDRUS HARUN, JJCA
Gerard Jude Timothy Pereira – Plaintiff
Versus
Kasi al KL Palaniappan – Defendant
CIVIL APPEAL NO W-02(NCVC)(W)-975–06 OF 2015
Kamaleswari Shanmugam Chettier (Kamales & Partners) for the appellant.
CT Siew (Abdullah, Ooi & Chan) for the respondent.
Burden of proof in civil cases lies with the plaintiff, who must demonstrate a prima facie case, shifting the burden to the defendant when payments are undisputed.
Headnote:(A) Evidence Act 1950 - Sections 101-103 - Civil appeal against High Court's decision dismissing claim for RM2.67m loans. Appellant claimed funds were personal loans; respondent denied this, requiring proof. High Court ruled absence of documentary evidence constituted failure to prove friendly loan. (Paras 8-9)
(B) Burden of proof in civil cases - Plaintiff bears legal and evidential burden; silence from defendant after demands inferred to support plaintiff’s claim. Appeal granted as trial judge had misapprehended evidence and principles of law concerning friendly loans. (Paras 11-12, 15-16, 32-33)
Facts of the case:
Plaintiff claimed RM2.67m as friendly loans transferred to defendant via telegraphic transfers between 2008-2009. Notices of demand sent, but no response. Lower court dismissed case for lack of proof.
Findings of Court:
Plaintiff proved a prima facie case; lack of explanation from defendant about payments warranted plaintiff’s claim.
Issues: Whether payments were a friendly loan; evidential value of silence and notices of demand.
Ratio Decidendi: Trial judge's findings were plainly wrong, failing to recognize that burden shifted to defendant after plaintiff’s proof of payments.
Result: Appeal allowed, order of High Court set aside and costs of RM15,000 awarded.
| Table of Content |
|---|
| 1. claim for friendly loan failing due to lack of evidence. (Para 3 , 4 , 5 , 6 , 7) |
| 2. high court's dismissal based on evidential insufficiency. (Para 8 , 9) |
| 3. appellate court scrutiny of trial judge's findings. (Para 13 , 14 , 17 , 18 , 19 , 24 , 26 , 30) |
| 4. failure to respond to demand letters can imply acknowledgment. (Para 35 , 36 , 39 , 50 , 51) |
| 5. settlement agreement's relevance to friendly loan claim. (Para 52 , 53 , 54 , 57) |
| 6. appeal granted with ordered costs. (Para 58) |
Lim Yee Lan JCA:
INTRODUCTION
[1]This is the appellant’s appeal against the decision of the Kuala Lumpur High Court dated 14 April 2015 in dismissing the appellant’s claim against the respondent.
[2]The appellant was the plaintiff and the respondent was the defendant at the High Court. In this judgment, we will refer to the parties as they were in the High Court.
BRIEF FACTS
[3]The plaintiff’s claim at the High Court was for the return of a sum of RM2.67m given by him to the defendant as personal loans.
[4]The plaintiff’s pleaded case was that the said sum was effected under various payments made through telegraphic transfers between the years 2008 and 2009 (‘friendly loan’).
[5]The plaintiff sent two notices of demand to the defendant for the return of the friendly loan, the first in September 2011 and the second in May 2012, but there were no replies to the said notices.
[6]The defendant in his defence admitted receipt of the various payments but denied that it was for a friendly loan and the plaintiff was put to strict proof thereof.
[7]The case went on a full trial during which the plaintiff and the defendant testified on their own behalves. No other witness was called by both parties.
DECISION OF THE HIGH COURT
[8]At the conclusion of the trial, the learned trial judge dismissed the plaintiff’s claim with costs of RM20,000 on the ground that the plaintiff failed to prove on a balance of probabilities that the said sum was for a friendly loan.
[9]Briefly the decision of the learned trial judge was premised on the following findings of fact and law:
(a)there was no documentary evidence that the payments made were in the nature of friendly loans except for the oral testimony of the plaintiff. The Court of Appeal’s decision in Tan Aik Teck v Tang Soon Chye
(b)the letters from the plaintiff dated September 2011 and May 2012 requesting for the return of the loans were inconsequential and cannot be evidence of a friendly loan, even though the respondent failed to reply, since it was issued more than two years from the date the payments were made and were most likely made with intention of litigation. The case of Wong Hong Leong David v Norazman Bin Adnan
(c)the settlement agreement that was entered into between the parties meticulously dealt with not only the distribution of the assets of the joint venture but also the apportionment of liabilities. Yet it did not deal with, let alone acknowledge, the existence of any outstanding loans from the plaintiff to the defendant arising from the payments that were the subject matter of the dispute.
THE APPEAL
[10]The plaintiff appealed against the decision of the High Court and it came before us for determination. During the hearing before us, respective counsel had filed in written submissions supplemented by their oral submissions. We will allude to their submissions in the course of this judgment.
DECISION OF THIS COURT
[11]At the conclusion of hearing this appeal, after having taken into consideration the oral and written submissions of learned counsels and perused the record of appeal, we allowed the plaintiff’s appeal with costs and set aside the order of the High Court.
[12]The defendant has applied for leave to appeal to the Federal Court against our decision. We set out the reasons for our decision in allowing the appeal.
REASONS FOR THIS COURT’S DECISION
[13]We were keenly aware that as a general rule an appellate court should be slow to interfere with the findings of fact of a trial court unless the find
