Eurofine (M) Sdn Bhd V Eon Bank Berhad

  

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W-02-2748-2009

 

DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: W-02-2748-2009

 

ANTARA

 

EUROFINE (M) SDN BHD … PERAYU

 

DAN

 

EON BANK BERHAD … RESPONDEN

 

(92351-V)

 

(Dalam Perkara Mengenai Mahkamah Tinggi Malaya Di Kuala Lumpur

 

(Bahagian Dagang)

 

Guaman Sivil No.D1-22-875-2001

 

Antara

 

EON Bank Berhad (92351-1 v) … Plaintiff

 

Dan

 

1. Natashah Bin Md Noor

 

(Berniaga Di Bawah Nama dan Gaya “Univision

 

Agency & Services”, No.Pendaftaran:832930-X) … Defendan-

 

2. Eurofine (M) Sdn Bhd (No.Syarikat:222099-H) Defendan

 

CORAM

 

ZAINUN BINTI HAJI ALI, FCJ CLEMENT SKINNER, JCA ZAHARAH BINTI IBRAHIM, JCA

 

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W-02-2748-2009

 

JUDGMENT OF THE COURT

 

[1] We had earlier allowed the Appellant’s appeal. These are our reasons for doing so.

 

The High Court proceedings

 

[2] EON Bank Bhd (“the Respondent”) had brought action against the 1st Defendant as principal borrower and against Eurofine (M) Sdn Bhd (“the Appellant”) as guarantor. On 9.11.2009, after a full trial, the learned Judicial Commissioner gave judgment against the Appellant for RM432,898.76 together with interest thereon. The case did not proceed against the 1st Defendant as he had been adjudicated a bankrupt by then.

 

This Appeal

 

[3] At the hearing of this appeal only one ground was argued by the Appellant. The Appellant contended that the learned Judicial Commissioner had erred when she held that a letter of demand had been served on the Appellant, prior to the commencement of this action.

 

[4] The Appellant’s contention is based on the fact that in paragraph 7 of its Statement of Claim, the Respondent had pleaded that by a letter dated 30.12.2000 which was issued by its solicitors, Messrs Isaac & Partners, the Respondent had made a demand on the Appellant for payment of the sum of RM470,373.54 as at 8.11.2000. In paragraph 8

 

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of its Defence, the Appellant pleaded that it never received the letter of demand sent by the Respondent’s solicitors.

 

[5] At the trial the Respondent called one Jenny Lee (PW2), a Partner in the legal firm of Hazidin Chan & Partners who gave evidence to the effect that she was the person who prepared the letter of demand dated 30.12.2000 (exh P15), and that it was sent to the Appellant by Registered Post. To prove that its letter of demand had been posted to the Appellant, the Respondent produced as evidence a document issued by Pos Malaysia Berhad entitled “Kiriman Banyak Barang-Barang Berdaftar” dated 4.1.2001 which shows that the postal authority received for posting by registered post two letters addressed to the Appellant. One letter was addressed to the Appellant at 18-2, Jalan 2/131A, Project Jaya Ind. Est. 6th Mile, Jalan Klang Lama, Kuala Lumpur. The other letter was addressed to the Appellant at A-03-04 Block A, 3rd Floor, Petaling Jaya Ind. Park, Section 13, Jalan Kemajuan 46300 Petaling Jaya.

 

[6] In her cross-examination Jenny Lee acknowledged that the letter of demand which was produced in court was an office copy which did not have her signature on it but she confirmed that she had signed the original. Jenny Lee also confirmed that the letter of demand was sent by the firm of Messrs Isaac & Partners and that the letter was sent to the Post Office by an office boy. The Respondent did not call the office boy as a witness at the trial.

 

[7] Based on the evidence outlined above, the Appellant had submitted at the High Court that if one looks at the form “Kiriman

 

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Banyak Barang-Barang Berdaftar”, it shows that the particulars of the person sending the two registered letters was given as “Hazidin Chan”and not Messrs Isaac & Partners. Accordingly, the Appellant submitted at the High Court that a prior demand is a pre-condition to the Appellant’s liability under the guarantee but the letter of demand dated 30.12.2000 was never issued and sent by Messrs Isaac & Partners as there was no evidence that Messrs Isaac & Partners had sent the letter dated 30.12.2000 by registered post pursuant to clause 18 of the guarantee. Clause 18 of the guarantee reads:

 

“Any notice or demand hereunder shall be deemed to have been sufficiently given if sent by prepaid letter posted to the surety’s address last known to the Bank or stated hereon and shall be assumed to have reached the surety in the course of post”

 

[8] On this part of the case the learned Judicial Commissioner came to a finding of fact that under the terms of the guarantee, a notice of demand was a pre-condition to the Appellant’s liability to pay. The learned Judicial Commissioner also came to a further finding of fact that the letter of demand had been properly served on the Appellant. At page 17 of her judgment the learned Judicial Commissioner said:

 

“By virtue of the deeming provision in clause 18 the notice of demand dated 30/12/2000 issued and sent via registered post by Messrs Isaac & Partners to the second Defendant’s last known address must be taken as a good and proper service of the same and has discharged the Plaintiff’s liability (SIC). I therefore hold that the notice of demand has been properly served on the second Defendant. Mr S. Chandran sought to make an issue on the Kiriman Barang-Barang Berdaftar marked P15 which shows there was a chop bearing Messrs Hazidin Chan as the name of the sender and not Messrs Isaac & Partners. I think this issue had no merit at all.

 

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We are not concerned with the kiriman barang berdaftar. That document belongs to the postal department. PW2 was not cross examined as to how Hazidin Chan’s chop appear on the kiriman barang berdaftar. The mere presence of Hazidin’s chop on the column “nama pengirim” does not prove the sender is Hazidin Chan because PW2’s unchallenged evidence was that the letter was issued by Messrs Isaac & Partners. Letter head of Isaac & Partners was used. I had no reason whatsoever to doubt PW2’s evidence. I accept her evidence. An attempt by the second Defendant to show they did not receive the letter because they have moved to Nilai, Negeri Sembilan was rejected by the Court because the Plaintiff was not informed of the new address”.

 

[9] Before us, learned Counsel for the Appellant submitted that the learned Judicial Commissioner had erred in arriving at the above findings as the Respondent had failed to discharge the burden on it of proving that Messrs Isaac & Partners had posted the letter of demand dated 30.12.2000 which was addressed to the Appellant. The Appellant gave two main reasons for saying so. Firstly, the learned Judicial Commissioner had failed to critically test Jenny Lee’s oral evidence against the contemporaneous documentary evidence adduced at the trial (see the Federal Court case of Tindok Besar Estate Sdn Bhd v Tinjar [1979] 2 MLJ 229). In particular the learned Judicial Commissioner had failed to appreciate that the Borang Kiriman Banyak Barang-Barang Berdaftar, clashed with Jenny Lee’s oral evidence, in that, the document shows that the two letters which had been received at the Post Office for posting on 4.1.2001 were letters received from “Hazidin Chan” and not Messrs Isaac & Partners as asserted by Jenny Lee. It was said by the Appellant that contrary to what the learned Judicial Commissioner had said about the borang kiriman berdaftar

 

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being of no concern to the Court, the borang in fact constituted conclusive evidence as to who sent the registered letter, since the borang was a receipt issued by the Post Office pursuant to Rule 82(8) of the Post Office Rules 1947 which states that Articles intended for registration must be presented at the counter and a receipt issued for them. Therefore, according to the Appellant, since the borang concerns a matter which is required by law to be reduced to the form of a document, the provisions of s 91 of the Evidence Act will apply so that no evidence shall be given in proof of the matter except the document itself. And according to the Appellant, when the borang is looked at, it shows that the registered letters addressed to the Appellant were received for posting from Hazidin Chan and not Messrs Isaac & Partners.

 

[10] The Appellant contended therefore that the learned Judicial Commissioner was plainly wrong to hold that the letter of demand had been properly served on the Appellant because the learned Judicial Commissioner:

 

(i) had accepted the evidence of Jenny Lee (PW2) on sending of the notice of demand when Jenny Lee had testified that it was sent by the office boy thus rendering this evidence as hearsay and inadmissible;

 

(ii) had uncritically accepted the evidence of Jenny Lee regarding the posting of the letter of demand by Messrs Isaac & Partners when such evidence stood contradicted by the borang kiriman berdaftar which confirms that no letters were received by the Post Office for posting from Messrs

 

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Isaac & Partners on 4.1.2001, contrary to what was alleged by the Respondent;

 

(iii) failed to appreciate that the letter of demand issued by Messrs Isaac & Partners is dated 30.12.2000 whereas the borang kiriman berdaftar is dated 4.1.2001 and shows that the 2 letters mentioned in the borang were received for posting from Hazidin Chan and not Messrs Isaac & Partners but the learned Judicial Commissioner had failed to consider that the Respondent had failed to adduce any evidence to show that the 2 letters which was received by the Post Office for posting on 4.1.2001 from Hazidin Chan was the same letter of demand issued by Messrs Isaac & Partners dated 30.12.2000.

 

[11] We find substance in what the Appellant complains about. Since the learned Judicial Commissioner had come to a finding that under the terms of the guarantee a notice of demand for payment was a precondition to the Appellant’s liability thereunder, it became crucial to the Respondent’s case that it was able to prove that such a demand had indeed been made on the Appellant.

 

[12] To discharge the burden of proof on it the Respondent had sought to rely on the deeming provisions in clause 18 of the guarantee. In our judgment since it is the Respondent’s pleaded case that it was Messrs Isaac & Partners who served the letter of demand on the Appellant, for the Respondent to be able to rely on the deeming provisions in clause 18, the Respondent must first prove that:

 

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(i) Messrs Isaac & Partners had delivered its letter of demand dated 30.12.2000 to the postal authorities for posting by registered mail; and

 

(ii) that the postal authorities had accepted such letter for posting.

 

[13] In our view the Respondent had failed to discharge its evidential burden because the borang kiriman berdaftar issued by the Post Office states that the two letters addressed to the Appellant which the Post Office had received for posting on 4.1.2001 were from Hazidin Chan and not from Messrs Isaac & Partners, contrary to what was pleaded by the Respondent. While Jenny Lee’s evidence is that she signed the letter of demand on Messrs Isaac & Partner’s letter head dated 30.12.2000, she did not post that letter. It was the office boy who allegedly posted that letter to the Appellant at two different addresses, but there is no evidence before the Court that the office boy had actually delivered those letters to the Post Office for posting. In the absence of the office boy’s evidence it was of course open to the Respondent to rely on the borang kiriman berdaftar which was issued by the Post Office as evidence of such posting but the borang was of no help to the Appellant in this case as it showed that whatever letters that the Post Office had received for posting on 4.1.2001 were from Hazidin Chan and not Messrs Isaac & Partners. Even further still, there is also no evidence before the Court to show that the two letters addressed to the Appellant and which are mentioned in the borang kiriman berdaftar as having been received from Hazidin Chan at the Post Office on 4.1.2001, was the same letter of demand issued by Messrs Isaac & Partners. The discrepancy between what Jenny Lee had said in her

 

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oral evidence and what is stated in the borang kiriman berdaftar should have been explained away by the Respondent but it was not.

 

[14] Learned Counsel for the Respondent submitted before us that it was not open to the Appellant to take the point about what is stated on the borang kiriman berdaftar because the issue was not raised in the cross-examination of Jenny Lee. We do not agree. It was the Respondent who carried the burden of proving what it had alleged in its pleadings and if there was a discrepancy between its oral evidence and documentary evidence on the point, it was for the Respondent to explain away the discrepancy which it had failed to do. Non crossexamination on the point by the Appellant would not relieve the Respondent from discharging the burden of proof upon it. We also say that what the unchallenged evidence in this case shows is that a letter of demand addressed to the Appellant dated 30.12.2000 had been issued or written on letterhead belonging to Messrs Isaac & Partners, but there is a marked difference between issuing out a letter of demand and the posting of it to the Appellant. It is the latter aspect that is wanting in this case, especially when the borang kiriman berdaftar issued by the Post Office shows that what was received for posting came from Hazidin Chan and not Messrs Isaac & Partners. What this means in turn is that the Respondent has been unable to show that it had delivered its letter of demand dated 30.12.2000 to the postal authorities for posting or that the postal authorities had received any letters for posting on 4.1.2001 from Messrs Isaac & Partners.

 

[15] The second reason given by the Appellant for saying that the Respondent had not discharged the burden of proof on it and with

 

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which we agree was because it had not shown that its letter of demand dated 30.12.2000 was addressed to the Appellant’s last known address to the Bank. While paragraph 3 of the Respondent’s statement of claim does state what the Appellant’s Registered address is and also what its “alamat penyampaiannya” is, which were the addresses stated in the letter of demand dated 30.12.2000, pleadings do not constitute evidence and none of the Respondent’s witnesses testified that those were the Appellant’s last known address to the Bank; and neither was any address of the Appellant stated in the guarantee. On the contrary in a letter written by the Appellant to the Respondent on 30.10.1999 the Appellant was already using an address at A 03-10, Block A, PJ Industrial Park, Section 13, Jalan Kemajuan, 46200 Petaling Jaya, Selangor Darul Ehsan. The learned Judicial Commissioner rejected the Appellant’s assertion that it had moved to Nilai, Negeri Sembilan at the material time, because the Respondent was not informed of the new address. With respect, it has not been shown to us that there are any provisions in the guarantee requiring the Appellant to do so.

 

[16] It is for the above reasons that we find the learned Judicial Commissioner had misdirected herself when she found that a prior demand for payment had been made on the Appellant. Her finding was clearly unsupported by the evidence. Without a proper demand for payment being made before the filing of this suit, a condition precedent to establish a claim against the Appellant as guarantor had not been satisfied, thereby disentitling the Respondent to judgment in the action (see Mok Hin Wah & Ors v United Malayan Banking Corporation Bhd [1987] 2 MLJ 610 SC).

 

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[17] Before concluding we wish to say that we have not overlooked the

 

submissions made by the Respondent to the effect that a demand for payment on the Appellant was not a condition precedent to liability under the guarantee as the guarantee also contained a principal debtor clause. We decline to consider this contention as the learned Judge had made a finding to the effect that a notice of demand was a precondition to the Appellant’s liability under the guarantee, but the

 

Respondent did not appeal against such finding. Even if the

 

Respondent can take the point, a principal debtor clause does not

 

excuse the Respondent from making a proper demand for payment under the guarantee where a prior demand is a requirement under the guarantee (see Orang Kaya Menteri Paduka Wan Ahmad Isa Shukri Bin Wan Rashid v Kwong Yik Bank Berhad [1989] 3 MLJ 115 SC).

 

[18] In the result, we allowed the appeal with costs of RM70,000.00 here and below.

 

t.t.

 

DATUK CLEMENT SKINNER Judge

 

Court of Appeal, Malaysia

 

Dated: 11th July 2013 PARTIES:

 

For Appellant : Mr T. Jayadeva

 

Messrs Radhakrishnan Advocates & Solicitors,

 

Petaling Jaya

 

For Respondents : Cik Masitah Binti Alias

 

Messrs Hazidin Chan & Partners Advocates & Solicitors Kuala Lumpur

 

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