Back
JUDGMENT
[1] The trial of this case is scheduled to be held on 1, 2, 3 and 4 December 2008. The defendant has applied to this Court for subpoenas to be issued to the following persons to be witnesses for the defence at the trial. They are:
(a) Tan Sri William Cheng Heng Jem;
(b) Encik Cheng Yong Liang; and
(c) Encik Charoen Sae Tang.
[2] The subpoena's have been issued and served on the above three persons (hereinafter shall be referred to as the 'Applicants').
[3] The plaintiff and the above three Applicants now, by summons in chambers at encls 27, 31 and 39, apply to this Court to set aside the subpoenas.
[4] There is also an alternative prayer that the applicants be permitted to give their evidence only after the defendant's principal witness has given evidence.
[5] In their statement of claim, the plaintiff claims against the defendant a sum of RM500,000, which the plaintiff had lent to the defendant.
[6] Tan Sri William Cheng is not a director, officer or shareholder of the plaintiff Company. However, it is not disputed that the plaintiff Company is directly or indirectly controlled by Tan Sri William Cheng and his family members.
[7] It is not disputed that by a loan agreement dated 7 April 1990 and a variation agreement dated 12 July 1994, the plaintiff Company gave the defendant Company a loan of RM500,000 which was to be repaid within three months from the date of the issuance of the Certificate of Practical Completion in respect of the defendant's unit entitlement under a project known as Wangsa Intan Klang II & III (hereinafter shall be referred to as 'the project').
[8] What is in dispute between the parties is the nature of the loan. The plaintiff claims that they had granted the defendant a friendly loan of RM500,000, meaning that the loan was interest free. The defendant, on the other hand, alleges that the loan was not a friendly loan and that the plaintiff had charged interest and had in fact collected interests from the defendant in contravention of the
[9] The plaintiff alleges that the defendant had defaulted in the repayment of the loan, and hence the plaintiff filed the present writ action against the defendant claiming the sum of RM500,000.
[10] The defendant in their statement of defence alleges, inter alia:
(a) that the plaintiff is an unlicensed money lender and that the defendant had been charged interest by the plaintiff on four occasions, which interest had been paid by the defendant; and
(b) that the plaintiff is not entitled to recover the loan from the defendant as the loan transaction was illegal as being in contravention of the
Moneylenders Act 1951 .
[11] The defendant also has a counter-claim against the plaintiff, and this counter-claim is for damages in respect of defective works. In order to appreciate the counter-claim, one needs to know some more background facts. It is not disputed that the defendant entered into a joint venture agreement with the plaintiff way back in 1988 to develop five pieces of land in the project mentioned earlier The five pieces of land belonged to the defendant and two other co-owners. Under the joint venture agreement, the plaintiff Company is the developer of the project. Under the joint venture, the defendant and the other co-owners are entitled to 20 percent of the units constructed. The plaintiff, however, delayed the construction until 1994. The RM500,000 loan granted to the defendant by the plaintiff (as mentioned earlier) is somehow linked to this delay on the part of the plaintiff in completing the project, and I do not propose to go into the details.
[12] It is also not disputed that the units in the project were constructed in a defective manner and are sinking.
[13] In the counter-claim, the defendant is alleging defective construction of 23 units of shophouses/apartments in the said project. Hence, the defendant is claiming RM19 million for the defective construction as well as for loss of r
