Ng Ah Ba @ Ng Looi Seng&2lagi V Kho Ah Soon


Download PDF Here





RAYUAN SIVIL NO: P-02-700-2000
















[Dalam Perkara Lampiran 53 bertarikh 31hb Mac 1999. Dalam Guaman Sivil No. 22-490-1993 di Mahkamah Tinggi Malaya di


Pulau Pinang]




Ramanda Sdn Bhd – Plaintif




1. Kho Ah Soon


2. Ng Ah Ba @ Ng Looi Seng


3. Tang Yeam Soon


4. Ooi Ah Mat @ Ng Kwang Meng


5. Soonshyan Properties Sdn Bhd – Defendan-






RAYUAN SIVIL NO: P-02-225-2010


















[Dalam Perkara Mengenai Mahkamah Tinggi Malaya


di Pulau Pinang,


Guaman Sivil No: 22-244-1992 (MT-11




Kho Ah Soon – Plaintif




1. Ng Ah Ba @ Ng Looi Seng


2. Tang Yeam Soon


3. Soonshyan Properties Sdn Bhd – Defendan






Datuk Abdul Wahab Patail, JCA Datuk Clement Allan Skinner, JCA Dato’ Mohamad Arif bin Mohd Yusuf, JHC


Date of Decision: 28th March 2013






[1] There are two appeals heard together. We set them out as follows.


Ravuan Sivil No. P-02-700-2000


[2] In Rayuan Sivil No. P-02-700-2000 (“P-02-700-2000”), the main action Penang Civil Suit 22-490-1993 (“CS 22-490-1993”) had been brought by Ramanda Sdn Bhd against Kho Ah Soon (the Respondent herein) and Ng Ah Ba @ Ng Looi Seng, Tang Yeam Soon, Soonshyan Properties Sdn Bhd (the Appellants herein) as 1st, 2nd, 3rd, 4th and 5th Defendants respectively. Ramanda Sdn Bhd eventually succeeded in the Federal Court to obtain an order of specific performance and Soonshyan Properties Sdn Bhd, the 3rd Appellant herein and the registered proprietor, was ordered to transfer to the buyer Ramanda Sdn Bhd Lot 1152 that was sold.


[3] Ramanda Sdn Bhd had paid into Court the balance purchase price of RM2,277,776.79. The Federal Court had ordered on 17/11/1998 the sum to be held in the High Court pending the application by the parties.




[4] Both the Appellants herein by their application at Enclosure 32 and the Respondent herein by Enclosure 53 laid claim to the sum paid into Court.


[5] P-02-700-2000 is the appeal by the Appellants herein against the decision on 14/9/2000 of the High Court in Penang on Enclosure 53 that the balance purchase price of RM2,277,776.79 be paid to the Respondent.


[6] It was submitted for the Appellants that the learned Judge erred because the Respondent:


a) did not contest the claim by the Plaintiff Ramanda Sdn Bhd and left the Appellants to contest the suit;


b) The 3rd Appellant was the registered proprietor of the subject property;


c) The learned Judge erred in finding that there was a “Partnership” between Defendants 1 to 4, and the 3rd Appellant was a “Nominee” proprietor of the asset of the partnership;




d) The existence of a partnership was disputed, and in a later date the Penang High Court in Penang Civil Suit No. 22244-1993 (“CS 22-244-1993”), the High Court on 11/9/2009 had dismissed the case for Respondent after a full trial that there was a partnership.


[7] It was submitted for the Appellants that for these reasons, the balance purchase price was not an asset of any partnership but of the registered proprietor, the 3rd Appellant.


Ravuan Sivil No. P-02-225-2010


[8] Rayuan Sivil No. P-02-225-2010 (“P-02-225-2010”) is an appeal by Kho Ah Soon, the Respondent in P-02-700-2000. The Respondents in P-02-225-2010 are the Appellants in P-02-700-2000.


[9] In the interests of avoiding confusion, we refer to the parties according to their designations in P-02-700-2000. We, therefore, would say that P-02-225-2010 is the Respondent’s appeal against the decision of the Penang High Court in CS 22-244-1993.




[10] P-02-225-2000 is the Respondent Kho Ah Soon’s appeal against the decision after a full trial in CS 22-244-1993 wherein the High Court dismissed the Respondent’s prayers for:


a) a Declaration that the 3rd Appellant herein held Lots No: 1152, 1154, 1236 & 1237, Mukim 14 S.P.T., Penang as trustee;


b) a Declaration that the Appellants herein held no interest in the said lots;


c) a Declaration the Respondent herein held all rights and interest in the said lots;


d) an order that the Appellants immediately return all the documents of title and transfer proprietorship to the Respondent;


e) an order that the Appellants herein pay over the sum of RM627,311-66 being the excess of RM577,179-06 and partnership monies owed of RM50,132.60;


f) an order that the Appellants jointly or severally pay damages to be taxed before the Senior Assistant Registrar; and




g) costs.


[11] The High Court allowed his prayers for:


a) an order that the Appellants herein pay over the sum of RM500,000-00 being the sum borrowed by the 1st and 2nd Appellants; and


b) an order for interest at 8% per annum on the sum allowed above;


Our Observations


[12] We observe that:


a) the earlier writ CS 22-244-1993 was commenced by the Respondent against the Appellants to seek, inter alia, a declaration that the 3rd Appellant herein was holding the subject properties in trust for the Respondent and that the Appellants had no interest in Lots No: 1152, 1154, 1236 & 1237;


b) The later writ CS 22-490-1993 was filed by Ramanda Sdn Bhd against both the Respondent and the Appellants for specific performance of the sale of Lot 1152;




c) Though CS 22-490-1993 was filed later than CS 22-2441993, it was heard earlier;


d) The subject properties are the same.




[13] The chronology of the case is as follows:


a) 06.07.1994: the High Court granted to Ramanda Sdn Bhd leave to enter summary judgment under O 81 of the Rules of the High Court 1980 for specific performance against the Appellants and Respondent;


b) 09.01.1995: the Court of Appeal dismissed the Appellants’ appeal;


c) 26.06.1998: the Federal Court dismissed the Appellants’ appeal;


d) 17.11.1998: the Federal Court amended the order of the High Court, directing that the balance purchase price be paid into Court pending application by the parties;




e) 29.01.1999: an application at Enclosure 32 was filed by the Appellants that the sum be paid out to the 3rd Appellant;


f) 31.03.1999: an application at Enclosure 53 was filed by the Respondent for the sum to be released to the Respondent;


g) 14.09.2000: Enclosure 53 was allowed and Enclosure 32 dismissed;


h) 26.09.2000: the Appellants appealed against the decision on Enclosure 53;


i) 17.03.2008: the Appellants’ appeal was allowed by the Court of Appeal;


j) 20.07.2011: the Respondent filed a notice of motion in the Court of Appeal to set aside the order of 17-03-2008;


k) 12.12.2011: the Respondent’s motion was allowed and appeal in the Court of Appeal was reinstated;


l) 24.04.2012: Court of Appeal directed additional record be filed to include the application at Enclosure 32;




m) 15.10.2012: Hearing before this panel.


[14] We set out the two appeals P-02-700-2000 and P-02-225-2010 below.




[15] We summarise the submissions for the Appellants as follows:


a) In P-02-700-2000, it was submitted that the High Court erred in the decision on Enclosure 53 because:


i) In a contest upon affidavits to make a finding there was a loose partnership; and


ii) The properties were not assets of the 3rd Appellant as the registered owner but held as nominee of the loose partnership.


b) Since the Federal Court had ordered specific performance by the 3rd Appellant to transfer the properties to the buyer, the balance purchase price ought to be paid to the 3rd Appellant. See Ong Thye Peng v Loo Choo Teng & Ors [2004] 2 CLJ 458.




c) The application before the Court was as to how to deal with the balance purchase price which had been paid into Court by the buyer.


d) The RM5 million was paid in respect of another matter dealt with in a related proceeding between the Appellants and Respondent in CS 22-244-1993, where the Respondent’s case of a loose partnership and nominee was dismissed.


e) The High Court went on a frolic to lift the corporate veil. It was submitted that the law requires “specific strict pleadings” in lifting of the corporate veil to make a finding there was a partnership and to apply equity. Counsel referred to Alcatel-Lucent (M) Sdn Bhd (formerly known as Alcatel Network Systems (M) Sdn Bhd) v Solid Investments Ltd and another Appeal [2012] 4 MLJ 72 CA. Since the matter was heard on a summons in chambers, there were no pleadings and therefore the judgment of the High Court ought to be set aside.


f) Enclosure 32 was an application by the Appellants for the balance purchase price of RM2,277,776-79 to be paid to




the 3rd Appellant, the registered proprietor. Enclosure 32, it was submitted, was identical with Enclosure 53 save the party to be paid to, either the 3rd Appellant Company or the Respondent.


[16] Although the Appellants herein appealed against the decision on Enclosure 53, they did not appeal against the dismissal of their application at Enclosure 32.




[17] It was submitted for Kho Ah Soon (the Respondent herein) that the High Court erred by:


a) Not applying sections 93, 94 & 98 of the Contracts Act 1950 although the Respondent as guarantor had redeemed the loan from OCBC;


b) The excess sum of RM627,311-66 from the auction of Lot 1237 at RM675,000-00 and partnership monies owed ought, therefore, be paid to the Respondent herein who had paid the redemption sum;




c) Not allowing the claim for damages to be assessed which had been pleaded. Since the Appellants had failed to cross-examine the Respondent herein on the losses and damages suffered, and not rebutted the claim in the evidence adduced through its own witnesses, the defence was a mere denial and is a sham defence.


[18] It was further submitted that by not appealing against the order to pay RM500,000-00, the Appellants herein had accepted the decision after having denied receiving such loan, showed that their defence lacked bona fides.




[19] As can be seen earlier above, the first shot was fired by the Respondent by CS 22-244-1993 seeking declarations that the 3rd Appellant held the lots as a trustee for the Respondent and the Appellants held no interest in the lots.


[20] In the meantime, by CS 22-490-1993, Ramanda Sdn Bhd as buyer eventually obtained from the Federal Court an order of specific performance, leaving the Respondent and Appellants to dispute on the balance purchase price in the High Court.




[21] By Enclosure 32 and Enclosure 53 in CS 22-244-1993, both the Appellants and the Respondent respectively laid claim to the balance purchase price paid into Court. These applications were heard together when, on 14/9/2000, Enclosure 32 was dismissed and Enclosure 53 was allowed.


[22] The Appellants appealed against the decision on Enclosure 53 to release the balance purchase price to the Respondent. But the Appellants did not appeal against the decision on Enclosure 32 to release the said sum to the 3rd Appellant.


[23] Without Enclosure 32 to compare Enclosure 53 with, it was possible for the Appellants to make it appear that their appeal is bona fide.


[24] With the additional record on Enclosure 32, it became apparent that there being no appeal against the decision on Enclosure 32, the order became final when the time within which an appeal may be brought expired.


[25] The consequence is two-fold. The Appellants’ appeal in P-02700-2000 against the decision on Enclosure 53 would firstly contradict




the decision on Enclosure 32 where the sum is sought to be released to the 3rd Appellant herein. If the basis of the Appellants’ case in their own application at Enclosure 32 failed and they did not appeal, then secondly the Appellants are necessarily estopped from rearguing for the release of the said sum to the 3rd Appellant under the guise of an appeal against the decision on Enclosure 53.


[26] If it is accepted, as is evident by not appealing on Enclosure 32 that the said sum is not payable to the 3rd Appellant, the Appellants’ appeal against the decision on Enclosure 53 that the said sum is also not payable to the Respondent, the frivolity of the appeal emerges. The order of the Federal Court, obtained by the Appellants themselves, would be in vain. We conclude it is evident the appeal merely seeks, even if the Appellants cannot have it, to deny the Respondent the said sum. It is clearly an example of a frivolous and needless appeal with absolutely no merit to it.


[27] Which brings us to the appeal at P-02-255-2010.


[28] The trial of CS 22-244-1993 began on 9/1/2007. It continued on divers dates, ending with submissions on 6/10/2009 and 12/11/2009 and decision on 11/12/2009. But since the decision on Enclosure 32




had become final, and decision on Enclosure 53 was under appeal, the trial on CS-22-244-1993 in so far as it pertains to the matters already dealt with in Enclosure 32 and Enclosure 53, i.e. Lot 1152 ought not to be proceeded with as it would invite contradiction with the earlier decision. The fact that the earlier decision was on an affidavit based application is irrelevant, as by then there is in existence an order of court which until set aside is to be respected. To proceed with a trial reflects no respect for the order of court. The courts are not places to frolic with rematches. It is an abuse of process which cannot be entertained. Otherwise there will be no finality. We find the Appellants’ reliance on the decision on CS 22-244-1993 to support its appeal on P-02-700-2000 to be without merit.


[29] The Respondent’s claim in CS 22-244-1993 went beyond Lot 1152. His argument in the appeal P-02-255-2010 is that since the Appellants did not appeal against the order that they repay the loan, it means they accepted their defence is a sham and the Respondent’s appeal ought to be allowed.


[30] Having examined the grounds of decision of the High Court with some care, we find that the decision of the High Court was point by point decision arrived at on the basis of what was proved and what




was not proved. This is consistent with the fundamental principles of civil procedure that a party discloses the cause of action or the defences and the facts that he relies upon, enabling the other party to elect to check and verify the same. It is a process where parties are enabled to satisfy themselves of the merits of the cause of action or the defence and the truth of the facts relied upon. If not disclosed, a party cannot be allowed to rely upon it as it is unsafe, given the adversarial nature of disputes, to accept it as true and correctly stated. If disclosed and the other party does not avail itself of the opportunity to check and verify, he must be taken to have accepted it, and challenging it in the course of a trial in court provides no assistance unless of course the witness or the other party concedes. Where a cause or fact after having been disclosed, and checked and verified, remains disputed, it is the reasons for the dispute that is examined in a trial. For the purpose of establishing the credibility or otherwise of a witness, his testimony is laid out in an examination-in-chief, tested in cross-examination and clarified where necessary in re-examination. These steps ensure that the decision of a Court is based upon causes and relevant facts that are as far as is humanly possible, determined by the parties and/or his counsel, and where necessary by the Court, to be reasonably safe to rely upon.




[31] In other words, a party may fail not only because his case holds no merit in the first place, but also, even if he has merits, he or such person acting for him fails to plead the cause or facts relied upon therefor, or put before the Court the evidence to prove upon the standard required by law, the fact that is disputed.


[32] The prayers dismissed by the Court were not necessarily in contradiction of the orders that were allowed. In respect of the order at paragraph 84(f), the Court did not accept the Appellants’ explanation and therefore allowed the order as proved upon a balance of probabilities.


[33] We find from a review of the evidence before the Court the decision was an objective result of objective judicial appreciation of the evidence. We did not find any reliance by the Court upon any fact that is contrary to any undisputed or agreed fact. The Court did not rely upon any fact or evidence not properly before it. We find no error of law, principle or of fact which led the Court to a conclusion and decision it would otherwise not have made. We find no reason to intervene as there is no error causing injustice that needs to be rectified.




[34] We, accordingly, dismiss the Appellants’ appeal in Rayuan Sivil No. P-02-700-2000 and the appeal by the Respondent herein in Rayuan Sivil No. P-02-255-2010. Cross appeal is also dismissed.






Court of Appeal, Malaysia Putrajaya


Dated: 28th March 2013


Counsels/Solicitors RS No. P-02-700-2000


for the Appellants: Surinder Singh & Ho Sze Yee


Messrs Ong & Manecksha


for the Respondent: Lim Ping Kok & K.T. Rajah


Messrs Daniel Lim & Co


RS No. P-02-225-2010


for the Appellant: Lim Ping Kok & K.T. Rajah


Messrs Daniel Lim & Co


for the Respondents: Surinder Singh & Ho Sze Yee


Messrs Ong & Manecksha



PDF Source: