Chang Min Tat FJ

(delivering the judgment of the Court): The appeal is concerned with one central issue of fact, the payment of the balance of $135,000 for the purchase of the appellant's property by Lawrence Lam Kwok Fou, the first respondent. The appellant says she has not been paid this sum and makes claim for it. Lawrence Lam says he has paid the money to Yakub, the appellant's husband, who has at all relevant times acted as agent with the authority of the appellant. Yakub denies that he has received this sum. The trial judge found for the respondent-purchaser and the vendor now appeals to this court. The 2nd respondent the party to whom the property was transferred and who was thus clearly the sub-purchaser has been joined in the action, and no objection was ever taken to this joinder.

The trial of this simple issue of fact had been complicated by the somewhat remarkable failure of Lawrence Lam to obtain any receipt from either the appellant or Yakub and remained thus to be solved by oral evidence. Lawrence Lam who was at all relevant times the manager of Kwong Lee Bank of Kuching, was a man who must be taken to be used to dealing with money and who must know that the safety in any financial transaction for the payer lies in a receipt from the payee or the payment by means of a crossed cheque made non-negotiable and payable only to the payee's account and the subsequent payment into the payee's bank account of this cheque. But he said that he did not get any receipt or even attempt to get one from the appellant or her husband to whom he paid this sum not because of mental aberration or forgetfulness but because, to quote his own words, "it is not unusual to pay this large sum without receipt." So here is a bank-manager who clearly did not think a receipt of any material importance and therefore it was usual for him to pay over large sums in cash without demanding proof of receipt. This was the evidence which the learned trial judge found unsatisfactory and he said so clearly, but he held that it was all a matter of proof, that the appellant had not proved her case and therefore the burden had not passed to the respondents to disprove it.

Before dealing with the question of proof, it is necessary to consider the circumstances attending on the sale.

The appellant's property was sold for $300,000 of which $75,000 was to be paid by an exchange of a house at this agreed valuation. The amount to be paid in cash was therefore $225,000. At this time, the appellant's husband Yakub was a customer of Kwong Lee Bank and was given overdraft facilities. The appellant's property had been charged to the Bank to secure the repayment of the sum due on this over-draft. On April 7, 1971, the exchange of properties took place, that is, transfers were executed. The appellant executed a transfer of her property at a stated consideration of $300,000 to the 2nd respondent, as sub-purchaser. Lawrence Lam was a director of this company. A transfer of a house was executed to the appellant. No money passed. On this date, Yakub's account with the Bank was in debit to the extent of $95,882.77. To give effect to the transfer of the appellant's property to the 2nd respondent, the Bank (clearly on the instructions of its manager Lawrence Lam) executed a discharge of the charge. But on this day and for a month thereafter, no money was paid to repay the overdraft at all or even in part. Despite this fact, the security for the overdraft was allowed by a deliberate act of the manager, Lawrence Lam, to be released.

Lawrence Lam's stewardship of the Bank's finances must speak volumes against his reliability. This stewardship must be seen to be all the more remarkable when the statement of defence in paragraphs 3(c) and 6 is set against his oral evidence.

This paragraph 3(c) says that the $225,000 was agreed to be paid by the payment of $95,000 into Yakub's account, $40,000 in cash to him and the remaining $90,000 on vacant possession being given. This appears s