The Carbon Company Sdn Bhd

[2017] 6 CLJ v. Ng Lee Hoon 189

A THE CARBON COMPANY SDN BHD v. NG LEE HOON

COURT OF APPEAL, PUTRAJAYA
PRASAD SANDOSHAM ABRAHAM JCA
ZABARIAH MOHD YUSOF JCA
ASMABI MOHAMAD JCA
B [CIVIL APPEAL NO: W-02-989-06-2014]
3 MARCH 2017

CIVIL PROCEDURE: Statement of claim – Pleadings – Action based on tort of

conversion and trespass to goods – Pleadings failed to disclose material facts –
C Whether detrimental to parties – Importance of pleadings – Whether parties strictly
bound to pleadings – Whether court entitled to decide case on matters not pleaded
– Whether court could build case for litigants – Whether burden of proof discharged
when pleadings do not disclose sufficient facts
EVIDENCE: Burden of proof – Whether discharged – Action based on tort of
D
conversion and trespass to goods – Pleadings failed to disclose material facts –
Whether burden of establishing case and introducing evidence discharged – Whether
burden of proof discharged when pleadings do not disclose sufficient facts
By way of a public auction, a piece of land owned by Homeland Parquet
E Industries (‘Homeland’) (‘the property’) was sold to the appellant (‘the
defendant’). The respondent (‘the plaintiff’) was one of the directors of
Greenwood Corporation (M) Sdn Bhd (‘Greenwood’) with its address as that
of Homeland. The plaintiff commenced an action based on tort against the
defendant at the High Court. The facts of the case could be gleaned through
the plaintiff’s statement of claim (‘SOC’) where it was pleaded that she (i) was
F
operating her business as a sole proprietor and had purchased machineries
and kept them at the property with the permission of Homeland; (ii) was
notified that as the successful bidder, the plaintiff was the new owner and it
intended to take vacant possession of the property; (iii) sought to discuss with
the defendant as her machineries were still stored at the property but the
G latter wrongfully and/or deliberately removed the machineries without any
notice and/or without her permission; (iv) suffered losses and damages in the
sum of RM4,367,387.02. No facts were pleaded in the SOC pertaining to the
role played by the plaintiff’s husband (‘PW2’) in the plaintiff’s business.
However, throughout her testimony in court, the plaintiff maintained that her
H role was to merely sign two or three agreements and cheques as and when
directed by PW2, the actual person who runs the business. In refuting the
plaintiff’s claim, the defendant argued, inter alia, that (i) before taking
possession of the property, it had advertised public notices in two
newspapers, giving notice to the owner of the machineries to claim them
I within a specified period; (ii) the plaintiff was not the owner of the
190 Current Law Journal [2017] 6 CLJ

machineries; and (iii) PW2, who was a shareholder of Greenwood and also A
a director of Homeland, came to the property and took away the
machineries. Allowing the claim, the High Court Judge (‘the HCJ’) held that
the plaintiff successfully established her case on the balance of probabilities.
The defendant was ordered to pay damages to the plaintiff in the sum of
RM659,603.60. The defendant appealed against the decision of the High B
Court while the plaintiff cross-appealed, seeking to have the order that its
claim for loss of profit in the sum of RM4,367,387.02 be allowed.
Held (allowing appeal; dismissing cross-appeal)
Per Asmabi Mohamad JCA delivering the judgment of the court:
C
(1) The plaintiff had departed from the pleaded case in the course of the trial
without any amendment being made to the pleading. This was fatal and
ought not to have been condoned by the HCJ. Pleadings play an
important role in civil litigation as parties are bound by their respective
pleadings. The facts pleaded in the pleadings will define the parameters
of each party’s case and serve as a clear notice to the adverse party the D
case that will be adjudicated so as to prevent either party from being
taken by surprise during trial. Pleadings too will serve as a guide to the
court in determining the issues to be tried. In resolving the issues, the
court must rely solely on the pleadings prepared and filed in court. The
court is not entitled to decide the case on a matter not pleaded and the E
trial must be confined to the pleadings. It is also not the function of the
court to build a case for the litigants, inconsistent with the pleadings.
(paras 36, 37, 39, 41 & 43)
(2) Throughout her testimony, the plaintiff did not seem to know anything
about her case but depended solely on the evidence of PW2. PW2 was F
in fact the real mind behind the plaintiff’s business because he was
actually running the business. The plaintiff could not be said to have
proven her case on the balance of probabilities when she knew nothing
about the whole case except having signed two or three documents as
and when instructed by PW2. If the plaintiff opted to run her business G
in such manner, she ought to have pleaded those facts in her SOC.
(paras 29, 30, 34 & 35)
(3) The plaintiff could not be said to have discharged the burden of proof,
placed on her by law, on the balance of probabilities. A party who
desires the court to give judgment in its favour as to the legal right or H
liability bears the burden to prove its case. The burden of proof on that
party is two-fold, namely, the burden of establishing a case and
introducing evidence. The burden lies on the party throughout the case
and the standard of proof is on the balance of probabilities. Once that
party has discharged its evidential burden of proof, the burden would I
 The Carbon Company Sdn Bhd
[2017] 6 CLJ v. Ng Lee Hoon 191

A then shift to its adversary. If a party, in this case the plaintiff, failed to
discharge the burden of proof on the standard required by law, the
adversary, in this case the defendant, does not bear the burden to adduce
any evidence. It was not the defendant’s duty to fill up the gaps in the
plaintiff’s case. (paras 49 & 50)
B Bahasa Malaysia Headnotes
Melalui satu lelongan awam, sebidang tanah milik Homeland Parquet
Industries (‘Homeland’) (‘hartanah’) dijual kepada perayu (‘defendan’).
Responden (‘plaintif’) adalah salah seorang pengarah Greenwood
Corporation (M) Sdn Bhd (‘Greenwood’) yang beralamat di Homeland.
C
Plaintif memulakan satu tindakan berasaskan tort terhadap defendan di
Mahkamah Tinggi. Fakta kes boleh dilihat dalam pernyataan tuntutan (‘PT’)
plaintif yang memplidkan dia (i) menjalankan perniagaannya sebagai pemilik
tunggal dan membeli mesin dan menyimpannya di hartanah tersebut dengan
kebenaran Homeland; (ii) dimaklumkan bahawa sebagai pembida yang
D berjaya, plaintif adalah pemilik baharu dan berhajat mengambil milikan
kosong hartanah; (iii) ingin berbincang dengan defendan kerana mesinnya
masih tersimpan di hartanah tetapi defendan dengan salah dan/atau sengaja
mengalihkan mesin tersebut tanpa notis dan/atau kebenaran plaintif;
(iv) mengalami kerugian dan kerosakan berjumlah RM4,367,387.02. Dalam
E PT, plaintif tidak memplidkan tentang peranan yang dimainkan oleh
suaminya (‘PW2’). Walau bagaimanapun, memberi keterangan di
mahkamah, plaintif menyatakan bahawa peranan dirinya cumalah
menandatangani dua atau tiga perjanjian dan cek apabila diarahkan oleh
PW2, orang yang sebenarnya menjalankan perniagaan tersebut. Membantah
F tuntutan plaintif, defendan mendalihkan, antara lain, bahawa (i) sebelum
mengambil milikan hartanah, defendan telah mengiklankan dua notis awam
dalam dua akhbar, memberi notis kepada pemilik mesin untuk
mengambilnya dalam tempoh masa yang ditetapkan; (ii) plaintif bukan
pemilik mesin; dan (iii) PW2, pemegang saham Greenwood dan juga
pengarah Homeland, datang ke hartanah dan mengambil mesin tersebut.
G
Membenarkan tuntutan, Hakim Mahkamah Tinggi (‘HMT’) memutuskan
plaintif berjaya membuktikan kesnya atas imbangan kebarangkalian.
Defendan diperintahkan membayar ganti rugi berjumlah RM659,603.60
kepada plaintif. Defendan merayu terhadap keputusan Mahkamah Tinggi
manakala plaintif merayu balas, memohon agar mahkamah membenarkan
H perintah tuntutan kerugian keuntungannya yang berjumlah RM4,367,387.02.
Diputuskan (membenarkan rayuan; menolak rayuan balas)
Oleh Asmabi Mohamad HMR menyampaikan penghakiman mahkamah:
(1) Plaintif menyimpang daripada kes yang diplidkan sepanjang perbicaraan
I tanpa membuat apa-apa pindaan pada plidingnya. Ini menjejaskan
kesnya dan tidak sepatutnya dibenarkan oleh HMT. Pliding memainkan
192 Current Law Journal [2017] 6 CLJ

peranan penting dalam litigasi sivil kerana pihak-pihak terikat pada A

pliding masing-masing. Fakta yang diplidkan dalam pliding akan
menggariskan lingkungan kes setiap pihak dan berfungsi sebagai notis
jelas buat pihak lawan kes yang akan dipertimbangkan untuk
mengelakkan mana-mana pihak dikejutkan semasa perbicaraan. Pliding
juga berfungsi sebagai garis panduan buat mahkamah dalam memutuskan B
isu-isu yang hendak dibicarakan. Dalam menyelesaikan isu-isu,
mahkamah mesti bergantung sepenuhnya pada pliding yang disediakan
dan difailkan di mahkamah. Mahkamah tidak berhak memutuskan kes
berdasarkan perkara yang tidak diplidkan dan perbicaraan mestilah
terbatas oleh pliding. Mahkamah juga tidak boleh membina kes untuk C
para pelitigasi, bercanggah dengan pliding.
(2) Sepanjang keterangannya, plaintif seperti tidak tahu apa-apa tentang
kesnya malah bergantung bulat-bulat pada keterangan PW2.
Sebenarnya, PW2 adalah tulang belakang sebalik perniagaan plaintif
kerana dia yang menjalankan perniagaan tersebut. Plaintif tidak boleh D
dikatakan telah membuktikan kesnya atas imbangan kebarangkalian
kerana dia tidak tahu tentang kes ini melainkan telah menandatangani
dua atau tiga dokumen atau cek apabila perlu dan diarahkan oleh PW2.
Jika plaintif memilih untuk menjalankan perniagaannya dengan cara
demikian, dia sepatutnya memplidkan fakta-fakta tersebut dalam PT.
E
(3) Plaintif tidak boleh dikatakan telah melepaskan beban pembuktian, yang
diwajibkan atasnya oleh undang-undang, atas imbangan kebarangkalian.
Pihak yang ingin mahkamah memberi penghakiman berpihak padanya,
berkaitan hak atau liabiliti, memikul beban membuktikan kesnya. Beban
pembuktian yang dipikul pihak tersebut bersifat dua lipatan, khususnya, F
beban membuktikan kes dan mengemukakan keterangan. Beban ini
terletak pada pihak tersebut sepanjang kes dan standard pembuktian
adalah atas imbangan kebarangkalian. Apabila pihak tersebut telah
melepaskan beban pembuktian keterangannya, beban ini beralih ke
pihak lawannya. Jika satu pihak, seperti plaintif dalam kes ini, gagal
G
melepaskan beban pembuktian mengikut standard yang ditetapkan oleh
undang-undang, pihak lawannya, seperti dalam kes ini defendan, tidak
memikul beban mengemukakan apa-apa keterangan. Defendan tidak
berkewajipan mengisi ruang-ruang lompong dalam kes plaintif.
Case(s) referred to: H
Abrath v. North Eastern Railway Co [1883] 11 QBD 440 (CA) (refd)
Asia Hotel Sdn Bhd v. Malayan Insurance (M) Sdn Bhd [1992] 2 CLJ 1185; [1992] 2
CLJ (Rep) 121 HC (refd)
Ferrel v. Secretary of State for Defence [1980] 1 All ER 166 (refd)
Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309 FC (refd)
I
 The Carbon Company Sdn Bhd
[2017] 6 CLJ v. Ng Lee Hoon 193

A Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 CA (refd)
Lembaga Pemegang Amanah Yayasan Sabah & Anor v. Datuk Syed Kecik Syed
Mohamad & Anor and Other Appeals [2000] 3 CLJ 797 CA (refd)
Menah Sulong v. Lim Soo & Anor [1983] 1 CLJ 26; [1983] CLJ (Rep) 263 FC (refd)
RHB Bank Bhd v. Kwan Chew Holdings Sdn Bhd [2010] 1 CLJ 665 FC (refd)
Selvaduray v. Chinniah [1939] 1 LNS 107 SC (refd)
B Yeohata Machineries Sdn Bhd & Anor v. Coil Master Sdn Bhd & Ors [2016] 2 CLJ 414
CA (refd)
Yew Wan Leong v. Lai Kok Chye [1990] 1 CLJ 1113; [1990] 1 CLJ (Rep) 330 SC (refd)
Legislation referred to:
Companies Act 1965, s. 233(1)
C Evidence Act 1950, ss. 2, 101(2)
Rules of Court 2012, O. 18 r. 7
For the appellant - Wong Kim Fatt, Hajinder Singh, Wong Boon Chong & Tengku Haris
Tengku Rostam; M/s Hajinder & Assocs
For the respondent - Vignesh Kumar Krishnasamy & Nurul Zaemah Abd Rahman;
M/s Balendran Chong
D
[Editor’s note: For the High Court judgment, please see Ng Lee Hoon v. The Carbon
Company Sdn Bhd [2015] 1 LNS 1021 (overruled).]
Reported by Najib Tamby

E JUDGMENT
Asmabi Mohamad JCA:
Introduction
[1] This is an appeal by the appellant (the defendant in the High Court)
F against the decision of the High Court at Kuala Lumpur dated 5 May 2014,
which allowed part of the respondent’s (the plaintiff in the High Court) claim
against the appellant, in that, the appellant was ordered to pay the
respondent, damages in the sum of RM659,603.60 with cost and interest.
[2] The respondent in turn cross-appealed seeking to have the order that
G its claim for loss of profit in the sum of RM4,367,387.02 which was
dismissed vide the order dated 5 May 2014, be allowed.
[3] For ease of reference, in this judgment the parties will be referred to
as they were in the High Court.
H Brief Background Of Facts
[4] The brief background facts (agreed facts as in document marked as
“E”) had been set out by the learned judge in the grounds of judgment (GOJ)
at paras. 1 to 5. In order to save judicial time, the same are reproduced as
follows.
I
194 Current Law Journal [2017] 6 CLJ

[5] The plaintiff is a sole proprietor trading under the name and style of A
“Forest Wood Flooring”, with her business address at No. 66, Lorong Air
Putih 21, Taman Seri Maju, 25300 Kuantan, Pahang.
[6] The defendant is a company with its registered address at 45B, Jalan
Kepayang, Kawasan 16, off Jalan Meru, 41050 Klang, Selangor Darul Ehsan
and its business address at Lot 2126, No. 286, Jalan Pulau Carey 42500, B
Telok Panglima Garang, Selangor Darul Ehsan.
[7] Pursuant to an order by the Kuala Terengganu High Court dated
26 August 1999 vide Originating Summons No. 24-35-99, the land described
as H.S. (D) 2485, PT-No. 111, Mukim Bandi, Daerah Kemaman,
C
Terengganu Darul Iman, then owned by Homeland Parquet Industries
(Homeland) and charged to Malayan Banking Berhad (the property), was sold
by public auction.
[8] Homeland had since been wound up pursuant to an order of the court
dated 13 August 1999. D
[9] The plaintiff is one of the directors in a company known as
Greenwood Corporation (M) Sdn Bhd with its address as that of Homeland.
[10] The plaintiff’s husband, one Lee Guan Choon, is a shareholder of
Greenwood Corporation (M) Sdn Bhd and is also a director of Homeland.
E
[11] On or about 28 September 2009, pursuant to a public auction held at
Kuala Terengganu High Court, the defendant was the successful bidder for
the said property which was auctioned off at RM3,060,000.
[12] Around the material time, the plaintiff claimed that she had, with the
consent of Homeland, placed her machine and business equipment (the F
machineries) at the said property for purposes of storage.
[13] The plaintiff alleged that the defendant had wrongfully and/or
unlawfully taken and/or removed the machineries from the said property to
an undisclosed location without the plaintiff’s permission and/or notice
G
causing the plaintiff to suffer loss in the sum of approximately
RM4,367,387.02. The particulars of plaintiff’s loss and damages are as set
out in para. 9 of the plaintiff’s statement of claim (SOC).
[14] A legal demand was made by the plaintiff through her solicitors by
notice of demand dated 12 May 2010 for the sum of RM4,367,387.02. H
[15] When the defendant failed to pay the amount claimed, the plaintiff
commenced this suit on 10 August 2010.
[16] The defendant refuted the plaintiff’s claim and in its amended defence,
the defendant alleged that it has successfully bid for the said property and
before taking possession of the said property, it has advertised public notices I
 The Carbon Company Sdn Bhd
[2017] 6 CLJ v. Ng Lee Hoon 195

A in two newspapers giving notice to the owner of the machineries to claim the
machineries within a specified period. The defendant claimed that the
plaintiff’s husband, came to the property and took away the machineries
which were reported to the police. The defendant denied that the plaintiff
was the owner of the machineries.
B In The High Court
The Plaintiff’s Case
[17] The plaintiff’s case is predicated on two causes of action, conversion
and trespass to goods.
C
[18] Briefly stated, the plaintiff’s case is that:
(a) The plaintiff is a sole proprietorship which deals with the refurbishment,
repair and sale of used machineries relating to the manufacturing of
wood products.
D (b) The plaintiff was given permission by Homeland to store her
machineries and stock woods at the said property.
(c) Around or about 28 September 2009, when the property was put up for
auction sanctioned by the court, the plaintiff had stored her machineries
at the said property.
E
(d) On or about 13 October 2009, the plaintiff’s representative received a
telephone call from the defendant’s agent informing the plaintiff that the
defendant’s agent was at the front gate of the property and wished to
enter and take possession of the said property as the property had been
F
sold to the defendant by way of a public auction.
(e) The plaintiff then informed the defendant that she had not received any
notice for her to vacate the said property and informed the caller that
even if the property had been auctioned vide a public auction, the auction
only involved the property and did not include the machineries stored
G at the said property. The plaintiff indicated her intention to hold
discussion with the defendant so that the matter could be resolved but
the defendant had refused to accede to the plaintiff’s request.
(f) On 16 October 2005, the defendant had without any notice and/or prior
permission of the plaintiff caused the machineries belonging to the
H plaintiff to be removed or taken out from the said property to an
undisclosed location, causing the plaintiff to suffer loss and damages
amounting to RM4,367,387.02.
(g) The particulars of the plaintiff’s loss were as stated in the SOC dated
10 August 2010 at para. 9. This loss includes loss of profits and the cost
I of termination of the contract.
196 Current Law Journal [2017] 6 CLJ

(h) Despite repeated demands from the plaintiff, the defendant had refused A
and/or neglected to pay the plaintiff the sum of RM4,367,387.02.
(i) By her SOC dated 10 August 2010, the plaintiff claimed from the
defendant the said sum including interests.
The Defendant’s Case B
[19] The defendant’s defence to the plaintiff’s claim could be briefly stated
as follows:
(a) The defendant has successfully bidded for the said property vide a public
auction conducted by the Terengganu Court and pursuant to an order
C
dated 28 September 2009. Before taking possession of the said property,
the defendant had caused advertisements to be put in two daily
newspapers notifying the claimant to the machineries to come forward
and claim these machineries within the time stipulated in the said
notices.
D
(b) The defendant denied that the plaintiff was the owner of the machineries
and/or that the plaintiff had suffered damages and/or loss. In any event,
the plaintiff is not entitled to claim any damages from the defendant for
the following reasons:
(i) The company known as Homeland had been wound up on E
13 August 1999;
(ii) The plaintiff’s business was registered on 31 May 2002; and
(iii) Before the defendant took possession of the said property, the
defendant had on 8 October 2009 and 7 October 2009 caused notices F
to be issued in The Sun Newspaper (the English Language daily
newspaper) and in the Utusan Newspaper (the National Language
newspaper) and the defendant had, amongst others, given notice to
the owners of the machineries to contact the defendant within seven
days from the date of these notices to claim the said machineries.
G
(c) The plaintiff had attempted to break open the said property by using
unreasonable force and/or had attempted to commit breach of trust
which led the defendant to lodge a police report.
(d) Alternatively, the defendant stated that the plaintiff was one of the
directors of Greenwood Corporation (M) Sdn Bhd which address was at H
the said property, previously owned by Homeland Parquet Industries
Sdn Bhd, where the plaintiff’s husband by the name of Lee Guan Choon
was one of the shareholders of the said company.
(e) The plaintiff’s husband is also a director in Homeland.
I
 The Carbon Company Sdn Bhd
[2017] 6 CLJ v. Ng Lee Hoon 197

A (f) All the machineries found at the said property were subject to hire
purchase agreements with Maybank Finance Berhad with account
numbers as particularized in para. 15 of the amended defence. All these
agreements had been terminated vide letters issued by Maybank Finance
Berhad through its solicitors Messrs Choong Yik Son & Fiona Ghaus.
B (g) After the merger between Maybank Finance Berhad and Malayan
Banking Berhad on 17 August 2004, vide Originating Summons No. D4-
24-231-2004 and the order for sale and transfer of asset dated 30 May
2004 obtained vide Originating Summons No. D1-24-161-2007 was
given to Gale Force Sdn Bhd by Malayan Banking Berhad.
C
(h) Ever since the defendant became the successful bidder in the public
auction dated 28 September 2009 and subsequently had paid the full
purchase price of the said property, the defendant was subject to
harassment by certain people, including the plaintiff’s husband and/or
persons known to the plaintiff or persons known to her husband
D resulting in police reports having been lodged by the defendant on 16
October 2009 and 22 May 2011 respectively.
(i) On 1 February 2012, the Machineries were stolen and/or taken out from
the said property without the defendant’s knowledge and/or permission
and a police report was lodged vide Ayer Putih/0000-57/12 dated
E
3 February 2012 and Ayer Putih Report/000064/12 dated 5 February
2012 respectively.
(j) The plaintiff’s claim did not disclose a reasonable cause of action against
the defendant, frivolous and vexatious, and an abuse of the process of court.
F (k) Based on the above, the plaintiff was not entitled to her claim.
The Issues
[20] The issues posed for the determination of the High Court were as
stated in para. 11.1 of the GOJ as follows:
G
(a) Whether the plaintiff had placed the machineries in the said property
with the knowledge and permission of Homeland?
(b) Whether the defendant had wrongly taken out and/or removed the
plaintiff’s machineries from the property?
H (c) Whether the defendant had deliberately and intentionally removed,
taken out and/or transferred the plaintiff’s machineries from the said
property?
(d) Whether the defendant is liable to compensate the plaintiff for the
damages suffered as a result of the loss of the machineries in the sum of
I RM4,367,387.02 with interest? and
198 Current Law Journal [2017] 6 CLJ

(e) Whether there was a phone call made by the defendant to the plaintiff A
on 15 October 2009 at about 3pm informing the plaintiff that it was the
successful bidder of the property and intended to take possession of the
said property?
The Appeal/Cross Appeal
B
[21] We heard this appeal by the defendant and the cross-appeal by the
plaintiff on 1 June 2016. After having perused the appeal records, the written
submissions filed herein and having heard both learned counsel’ oral
submissions, we disposed the defendant’s appeal by allowing the same with
costs and set aside the order of the High Court dated 5 May 2014. With
C
respect to the cross-appeal filed by the plaintiff, we dismissed the cross-
appeal with costs. After hearing a short submission on the issue of costs we
awarded costs in the sum of RM20,000 to the defendant subject to allocator.
We ordered for the deposits to be refunded to the plaintiff.
[22] Before we delve with our reasoning for the above decisions, it would D
be appropriate at this juncture to refer to the learned judge’s finding of facts,
to ascertain if the plaintiff had met the threshold of establishing its pleaded
case on the balance of probabilities.
Findings Of The Learned Judge
E
[23] The learned judge made the following findings:
Defective Pleading/No Cause Of Action
(a) The first issue raised by the defendant was that the plaintiff’s pleadings
were defective and the plaintiff has no cause of action against the
defendant. F

(b) The defendant submitted that the plaintiff’s pleading was defective as it
had failed to identify any cause of action in the SOC. Based on the
pleaded paragraphs as stated in the SOC and the general and accepted
method of pleading, the plaintiff failed to construe either cause of action,
G
whether in trespass to goods or conversion.
(c) Besides the defective pleading, it was also the contention of the
defendant that during the trial, the plaintiff had failed to establish either
through her witnesses or the documents tendered in court, the existence
of duty of care between the plaintiff and the defendant. H
(d) The learned judge made a ruling that, upon a perusal of paras. 5, 6, 7
and 8, of the SOC, she was satisfied that the plaintiff has pleaded both
causes of action as required under O. 18 r. 7 of the ROC 2012 ie, for
trespass to goods and conversion. The learned judge found that the
I
 The Carbon Company Sdn Bhd
[2017] 6 CLJ v. Ng Lee Hoon 199

A defendant had trespassed on the plaintiff’s machineries which were

stored in the said property, wrongfully removing the machineries and
the removal was intentionally done without the plaintiff’s permission
and knowledge.
Whether The Plaintiff Has Locus Standi To Sue
B
(a) The defendant contended that the plaintiff has no locus standi to
commence the proceedings against the defendant because PW1 had
pleaded that she is the sole proprietor of Forest Wood Flooring, but at
the trial she testified that the business was not managed by her. Instead,
it was managed by her husband, PW2 who was solely responsible for
C
her business. PW1’s evidence showed that she played a very negligible
role in Forest Wood Flooring and that it was under PW2’s control (see
pp. 1168-1171 of appeal record Part B & C Jilid 5).
(b) In addition to that, the defendant had also contended that the plaintiff
D did not plead that PW2 was the main person behind the said sole
proprietorship and he was in fact the actual owner of the business.
(c) The learned judge was of the view that there was no merit on the issue
raised by the defendant, that the plaintiff was a nominal plaintiff who
was suing for the benefit of some other person and there was reason to
E believe that she was unable to pay costs of the defendant if ordered to
do so.
(d) To this line of argument, the learned judge found that the fact the
defendant had filed an application for security for cost and subsequently
withdrew the application would tantamount to waiving the issue and
F conceding that the plaintiff is not a nominal plaintiff and has the
necessary locus to bring the action against the defendant. The learned
judge ruled that as the defendant had not produced any evidence that the
plaintiff is a nominal plaintiff, the defendant’s contention must fall.
(e) Further the learned judge made a ruling that based on the evidence
G
before her as stated in lines 15 to 35 at p. 19 of the GOJ, she found that
there was evidence to negate the existence of any assignment of any debt
by the plaintiff’s husband to the plaintiff, or that the plaintiff was suing
for her husband’s benefit. This ruling was based on the following:

H (i) At all the material time the plaintiff is suing in her capacity as a sole
proprietor of the business known as Forest Wood Flooring;
(ii) The plaintiff had started her business since 31 May 2002 and
continued to trade until the machineries were removed by the
defendant;
I
200 Current Law Journal [2017] 6 CLJ

(iii) The plaintiff’s had amongst others signed agreements, cheques and A
obtained loan/financing for the benefit of the plaintiff’s business;
(iv) The fact that PW2 is the plaintiff’s husband was never denied by the
plaintiff. Both the plaintiff and her husband had stated that Lee Guan
Choon is more experienced in managing the plaintiff’s business. As
such most of the work was done PW2; and B

(v) PW2 was only working for the plaintiff for which monthly salary
has been paid by the plaintiff. The salary was subject to EPF and
Tax deductions.
Existence Of Machines C

(a) With respect to the machineries, the learned judge found that the
defendant’s submission that the evidence of DW2, one Dato’ Eugene
Lau in his evidence in Chief that the defendant had taken vacant
possession of the said property in October 2009 could not be correct.
According to the learned judge, the defendant could not be said to have D
paid the full price within the stipulated time and taken possession of the
property sometime in October 2009.
(b) The learned judge found that the statement by PW2 that the defendant
had taken possession of the property sometime in October 2009 could
E
not be correct. Firstly, as at the time the defendant took vacant
possession of the property on 15 October 2009, the defendant was not
the registered owner since Form 16F was dated 11 January 2010. The
property was only registered under the defendant’s name on 15 August
2010 as per the land search dated 5 July 2011. Therefore as at
15 October 2009, the defendant has no right to enter the said property F
and remove the machineries.
(c) Secondly, based on the proclamation of sale dated 28 September 2009,
there was no mention that the purchase of the property also included the
machineries found in the said property (see exh. P9 at pp. 60-64 of Core
G
Bundle Part A & B).
(d) Thirdly, at the time the defendant took possession of the property, by
conduct the defendant was aware of the existence of the machineries
which were not part of the auctioned property. The fact that the
defendant advertised notices in newspapers of The Sun and Utusan H
Malaysia on 8 October 2009 and 7 October 2009 respectively, inviting
any claimant to come forward to claim the machineries proved that the
defendant was aware the machineries did not belong to them.
(e) Fourthly, the defendant could not be said to have an indefeasible title
to the property by merely paying 10% of the purchase price. In law, I
only on payment of the full purchase price that the defendant could be
said to have beneficial interest in the property. As the defendant was
 The Carbon Company Sdn Bhd
[2017] 6 CLJ v. Ng Lee Hoon 201

A neither the registered owner nor a beneficial owner, the defendant has
no right to remove the plaintiff’s machineries and/or to place the
advertisement in the newspapers.
(f) Although Homeland was wound up on 13 August 1999, the property
was not vested with the liquidator pursuant to s. 233(1) of the
B Companies Act 1965.
(g) Based on the evidence adduced before her, the learned judge found that
the evidence of PW2 that he carried on the business of the plaintiff
trading principally in machines and wood materials, sale and purchase
of used machines, repair and upgrading of the machine to be sold for
C
profit at the said property which belong to Homeland Parquet Sdn Bhd
before it was wound up, remained unrebutted.
Evidence Of Ownership Of The Machineries
(a) It was the submission of the defendant, that despite the defendant’s
D contention that the plaintiff was unable to show proof that the
Machineries referred to, in the documents tendered in court because the
plaintiff’s witnesses Pang Kiew Kun (PW3) (a representative of
Goindustry Dove Bid Malaysia), Murugan (PW4), (a Director of
Mariposa) and Bee Chen Yen (PW9), (a representative of Dagang
E Nusantara Sdn Bhd) had no personal knowledge of the matter, the
learned judge decided that based on the testimony of PW2, the plaintiff’s
husband and supported by the testimony of the representatives of the
suppliers, the plaintiff had proven her case on the balance of probabilities.
(b) A perusal of the GOJ at pp. 27, 28, 29, 31 and 32, showed that the
F learned judge had relied on the evidence of PW2 extensively to prove
the plaintiff’s case against the defendant. The learned judge was satisfied
that the purchases of the Machineries were made by the plaintiff from
the following evidence:
(i) The evidence of PW2 that the nature of the plaintiff’s business in
G
dealing with sale and purchase of used or second hand machines,
repair and upgrading of these machineries which would be sold at
a profit margin;
(ii) The machineries were purchased between 2005 to 2009;
H (iii) The machineries were purchased using PW2’s own funds or on
credit from the suppliers;
(iv) The transaction with Perpa Parquet Sdn Bhd (Perpa Parquet) is
evidenced by the sale and purchase contract dated 3 October 2005
for the purchase of Second Hand Woodworking Equipment (exh. P1
I
at pp. 5-15 of Core Bundle Part C) with invoice and payment
202 Current Law Journal [2017] 6 CLJ

voucher to Perpa Parquet in the sum of RM350,000 (exh. P16 at A

pp. 17-19 Core Bundle Part C) and official receipt (exh. P17) and
letter of release by Perpa Parquet (exh. P19);
(v) PW2’s transaction with Goindustry Henry Butcher International,
Valuers and Auctioneers in London showed that PW2 bidded in
online auctions of Goindustry Henry Butcher and was successful in B
purchasing three lots of machine (Lots Nos. 928646, 928647 and
928648 respectively) through exhs. P30, P31, P32, P33, P34, P35,
P36, and P37 (at pp. 1550-1560 of RR Part B & C Jilid 7);
(vi) PW2’s transaction with Goindustry Appelboom NV (“Goindustry
C
Appelboom), valuers and auctioneers in Belgium on online auctions
and was successful in purchasing six lots pf machines (Lots
1000153, 1000157 & 1000158 respectively) through exhs. P49,
P50, P51, P52, P53, P54, P55, P56, P57, P58, P59, P60, P61, P62
& P63 (at pp. 1587-1599 of RR Part B & C Jilid 7, p. 207 Core
Bundle Part C & 1611-1612 of RR Part B & C Jilid 7); D

(vii) PW2’s transaction with Dagang Nusantara Sdn Bhd (Dagang

Nusantara) for the purchase of a unit of reconditioned CNC router
through exh. P68 & P69. Dagang Nusantara was also the service
provider and repairer of machine, engaged by PW2 to repair and
E
service his machines;
(viii) PW2’s transaction with Meng Seng Engineering Sdn Bhd (Meng
Seng) for the purchase of two units of Reconditioned Carpenter
Multiple Rip Saw and Reconditioned Engineered Floor Board T &
G (see exh. P71 at p. 1635 of RR Part B & C Jilid 7). Meng Seng F
was also the service provider and repairer of machine, engaged by
PW2 to repair and service his machines;
(ix) The evidence of the suppliers (PW5) supported PW2’s testimony as
in exh. P16, P17 & P19 respectively at pp. 1414-1418 of RR Part
B & C Jilid 1; G

(x) The evidence of PW3 through exhs. P30 and P49 although could not
be positively identified by PW3 but based on the learned judge’s
perusal of these exhibits, the exhibits matched all the respective
documents which PW2 relied as proof of his purchase; and
H
(xi) Based on the above, the learned judge found that there was no ‘gap’
in the evidence presented by the plaintiff.
(c) Despite the argument of the defendant that PW2 was not a credible
witness as he had committed perjury in two aspects of his evidence
whilst testifying in court, as stated in line 15 to 20 of p. 24 of the ikatan I
 The Carbon Company Sdn Bhd
[2017] 6 CLJ v. Ng Lee Hoon 203

A teras perayu and even assuming that the court could not rely on the
photographs tendered in court, a comparison between the specifications
of the Machineries claimed by the plaintiff and the ones under the
Homeland Parquet Hire Purchase Agreement with Maybank there were
differences which the learned judge had identified in line 10 to 30 of the
B GoJ at p. 26 which are:
(i) The suppliers were different;
(ii) The main functions of the machines under hire purchase was for
Filtration, Bandsaw and Sanding Machine whereas the Machineries
under the claim were Multi Spindle Drilling, CNC Machine and
C
General Wood Floor making machine supplied by Perpa Parquet,
Meng Seng and Dagang Nusantara respectively;
(iii) The hire purchase machine and the plaintiff’s machineries were of
different brands;
D (iv) The condition of the machineries under hire purchase were new but
the plaintiff’s machineries were either used or second hand; and
(v) The machines under hire purchase were purchased between 1995 to
1997 whereas the plaintiff’s machineries were purchased around
2005 to 2009.
E
Whether The Machineries Were Removed Deliberately And Intentionally
By The Defendant
(a) The learned judge’s analysis of the evidence pertaining to the events
which led to the removal of the machineries from the said property and/
F or whether such removal was deliberately or intentionally done by the
defendant could be gauged from pp. 35 to 39 of the GOJ.
(b) The learned judge found that there were conflicting evidence between
PW2 and DW1 with respect to this matter and the learned judge
preferred the evidence of the plaintiff to that of the defendant.
G
(c) The learned judge was more persuaded to accept the evidence of PW2
on what transpired on 16 October 2009 as his evidence was supported
by contemporaneous evidence of his police report lodged on 16 October
2009 at 4.45pm as well as the evidence of PW10, the plaintiff’s worker
H
who carried out the repairs to the machineries and guarded the property
as compared to the evidence of DW2. In the police report, PW2 had
stated that the machineries stored in the said property belong to PW1
personally. PW2 had given the instruction to his guard not to let anyone
into the property until he arrived the next day which was agreed to by
the guard (see p. 83 of ikatan dokumen teras).
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204 Current Law Journal [2017] 6 CLJ

(d) A perusal of the notes of proceedings would also show on the same date, A
16 October 2009 at about 7pm the defendant too had lodged a report
pertaining to the same event where the defendant alleged four
unidentified men were said to have entered the property by force despite
being prohibited from doing so by the guard on duty (see exh. D87).
(e) The removal of the machineries were supported by exhs. P14 and P86, B
the evidence of PW2, PW10 who reported to PW2 of the arrival of the
five men to the property and evidence of PW11 that he had helped PW2
to trail the movement of the removal of the Machineries which were
identified by PW2.
C
Our Decision
[24] We were mindful of the limited role of the appellate court in relation
to findings of facts made by the court of first instance.
[25] In the course of that, we had sought guidance from the very often
quoted case of Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; D
[2003] 2 MLJ 97 where the Court of Appeal held as follows:
an appellate court will not generally speaking, intervene unless the trial
court is shown to be plainly wrong in arriving at its decision. But appellate
interference will take place in cases where there has been no or insufficient
judicial appreciation of the evidence. E

[26] Reference is also made to the decision of the Federal Court in

Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309 where the
Federal Court held that the test of “insufficient judicial appreciation of
evidence” adopted by the Court of Appeal was in relation to the process of
determining whether or not the trial court had arrived at its decision or F
finding correctly on the basis of the relevant law and the established
evidence.
[27] Guided by the above established principle, we had therefore carefully
examined the documents that were placed before us in the form of the record
G
of appeal to ascertain if the learned High Court Judge had arrived at her
decision correctly on the basis of the relevant law and evidence before her.
[28] We had examined the SOC very carefully and found that the plaintiff’s
pleadings were plain and simple. For ease of reference we restate the
plaintiff’s pleadings herein for the same to be examined against the evidence H
that was allowed to be adduced in the plaintiff’s favour as follows:
(a) she was operating her business as a sole proprietor dealing with
refurbishment, repair and sale of used machineries relating to the
manufacture of wood products;
I
 The Carbon Company Sdn Bhd
[2017] 6 CLJ v. Ng Lee Hoon 205

A (b) The plaintiff had purchased used and second hand machineries for the
purpose of her business;
(c) She had kept her machineries at the property with the permission of
Homeland;

B (d) The plaintiff and/or her representative had received a telephone call
from the defendant to notify the plaintiff that they were the successful
bidder and the new owner of the property which was sold to them at the
court sanctioned auction. The defendant intended to take vacant
possession of the property;
C (e) The plaintiff sought to discuss with the defendant as her machineries
were still stored in the said property;
(f) The defendant had wrongfully and/or deliberately removed the said
machineries without any notice and/or without the permission of the
plaintiff; and
D
(g) As a result of the defendant’s unlawful and wrongful action, the plaintiff
incurred substantial losses and damage amounting to RM4,367,387.02.
[29] We had perused the notes of the proceedings, especially the evidence
of the plaintiff, Ng Lee Hoon (PW1), who described herself as a sole
E proprietor of Forest Wood Flooring and found that the plaintiff had
attempted to introduce evidence which was not premised on her pleaded
case. Throughout her testimony, the plaintiff did not seem to know anything
about her case but depended solely on the evidence of her husband, Lee
Guan Choon (PW2). This could be seen in PW2’s and the plaintiff’s witness
F statements (PW1) (see pp. 1173-1198, 1168-1171 of RR Bahagian B & C Jilid
5, cross examination of PW2 at pp. 528-631 of RR Bahagian B & C Jilid 2
& pp. 996-1043 of RR Bahagian B & C Jilid 4 and PW1 at pp. 305-321 of
RR Bahagian B & C Jilid 1.
[30] In her testimony the plaintiff said that her role was merely to sign two
G or three agreements and cheques as and when directed by her husband PW2.
The rest of her business was run by PW2 solely, who was familiar with the
facts surrounding the claim (see pp. 1169-1170 (PW1) & 1173-1174 (PW2)
of appeal record Part A & B vol. 5).
[31] We noted that the plaintiff attempted to introduce evidence on facts
H not pleaded in her SOC, and/or introduced evidence contrary to the
plaintiff’s pleaded case. This could be seen in the notes of proceedings where
learned counsel for the defendant had objected to the line of questioning
adopted by the plaintiff when both PW1 and PW2 were giving evidence on
the ground that it was not based on the plaintiff’s pleaded case. In fact, the
I plaintiff had relied solely on the evidence of her husband, PW2 who was in
206 Current Law Journal [2017] 6 CLJ

fact the real mind behind the plaintiff’s business because it was PW2 who A
was actually running the business despite no facts pleaded in the SOC
pertaining to the role of PW2 in the plaintiff’s business.
[32] Notwithstanding, the serious objections that were taken up during the
trial by learned counsel for the defendant, the learned judge overruled these
objections and allowed learned counsel for the plaintiff to proceed to B
introduce evidence contrary to the plaintiff’s pleaded case (see pp. 289 to 296
during the testimony of PW1 & at pp. 329 to 341 of appeal record Part B
& C Jilid 1).
[33] We had shown above that the learned judge had accepted the evidence
C
adduced by PW2, the plaintiff’s key witness, based on the plaintiff’s
unpleaded case to rule that the plaintiff had established her case on the
balance of probabilities. How could the plaintiff be said to have proven her
case on the balance of probabilities when she knew nothing about the whole
case except having signed two or three documents or signing cheques as and
when instructed by PW2. This is supported by the tone in both PW1’s and D
PW’2 witness statements (pp. 1168-1171, 1173-1198 of RR Bahagian B & C
Jilid 5).
[34] If the plaintiff had opted to run her business in the manner that was
done in this case, the plaintiff ought to have pleaded those facts in the SOC
E
so as to give sufficient notice to the defendant of her pleaded case, to enable
the defendant to properly prepare their defence and the evidence for the
purpose of the trial.
[35] We noted that from the SOC, the plaintiff’s claim was simple and
straight forward. The facts that were adduced through PW2 were never F
pleaded by the plaintiff either in her SOC or reply to the defence. The fact
that the plaintiff’s business was actually run by PW2 and the plaintiff was
not involved in the business was never pleaded in the plaintiff’s pleadings.
[36] Pleadings play an important role in civil litigation, as parties are
bound by their respective pleadings. This is trite. The facts pleaded in the G
pleadings will define the parameters of each party’s case and serve as a clear
notice to the adverse party the case that will be adjudicated so as to prevent
either party from being taken by surprise during trial. Pleadings too will
serve a guide to the court in determining the issues to be tried.
[37] In resolving the issues before the court, the court must rely solely on H
the pleadings prepared and filed in court. The significance of pleadings had
been dealt with in a plethora of cases. In Ferrel v. Secretary of State for Defence
[1980] 1 All ER 166, HL, His Lordship Lord Edmund – Davies had this to say:

I
 The Carbon Company Sdn Bhd
[2017] 6 CLJ v. Ng Lee Hoon 207

A It has become fashionable these days to attach decreasing importance to

pleadings, and it is beyond doubt that there have been times when an
insistence on complete compliance with their technicalities put justice at
risk, and, indeed may on occasion have led to its being defeated. But
pleadings continue to play an important part in civil actions, and although
there had been since the Civil Procedure Act 1833 a wide power to permit
B amendments, circumstances may arise when the grant of permission
would work injustice or, at least, necessitate an adjournment which may
prove unfortunate in trials with jury. To shrug off a criticism as ‘a mere
pleading point’ is therefore bad law and bad practice. For the primary
purpose of pleadings remains, and it can still prove vital importance. That
purposes is to define the issues and thereby to inform the parties in
C advance the case they have to meet and to enable them to take steps to
deal with it.
[38] The importance of pleadings had also been emphasised by the Federal
Court in Menah Sulong v. Lim Soo & Anor [1983] 1 CLJ 26 ; [1983] CLJ (Rep)
263 where the Federal Court held:
D
I think it is necessary in this case to emphasize once again that the court
should give their decision in strict compliance with the pleadings.
[39] The court is not entitled to decide the case on a matter not pleaded and
the trial must be confined to the pleadings (see Yew Wan Leong v. Lai Kok
E Chye [1990] 1 CLJ 1113; [1990] 1 CLJ (Rep) 330; Asia Hotel Sdn Bhd v.
Malayan Insurance (M) Sdn Bhd [1992] 2 CLJ 1185).
[40] The need to plead all material facts will be appreciated when the
litigants consider the principle that the parties are barred from adducing
evidence of unpleaded facts during trial (see Asia Hotel Sdn Bhd v. Malayan
F Insurance (M) Sdn Bhd [1992] 2 CLJ 1185; [1992] 2 CLJ (Rep) 121; Lembaga
Pemegang Amanah Yayasan Sabah & Anor v. Datuk Syed Kecik Syed Mohamad
& Anor and Other Appeals [2000] 3 CLJ 797; [2000] 3 MLJ 328 CA).
[41] It is also an established principle that it is not the function of the court
to build a case for the litigants, inconsistent with the pleadings. The Supreme
G
Court in Yew Wan Leong v. Lai Kok Chye [1990] 1 CLJ 1113 ; [1990] 1 CLJ
(Rep) 330; [1990] 2 MLJ 152 held as follows:
In disposing of a suit or matter involving a disputed question of fact, it
is not proper for the Court to displace the case made by a party in its
pleadings and give effect to an entirely new case which the party had not
H made out in its own pleadings. The trial of a suit should be confined to
pleas on which the parties are at variance.
[42] In RHB Bank Bhd v. Kwan Chew Holdings Sdn Bhd [2010] 1 CLJ 665
the Federal Court held as follows:
I
208 Current Law Journal [2017] 6 CLJ

[35] On this, we would like to add that it is not the duty of the court to A
invent or create a cause of action or a defence under the guise of doing
justice for the parties lest it be accused of being biased towards one
against the other. The parties should know best as to what they want and
it is not for the court to pursue a cavalier approach to solving their dispute
by inventing or creating cause or causes of action which were not pleaded
in the first place. Such activism by the court must be discouraged B
otherwise the court would be accused of making laws rather than applying
them to a given set of facts.
[43] Guided by the above authorities and the legal principles on pleading
as discussed above, we were of the considered view that the plaintiff had
departed from the pleaded case in the course of the trial without any C
amendment been made to the pleading. This is fatal and ought not to have
been condoned by the learned judge. We also observed that despite serious
objections having been made by learned counsel for the defendant, the
learned judge had proceeded with the trial and allowed evidence to be
adduced against the plaintiff’s pleaded case. As pleading rules is one relating D
to fairness, the court should at all times maintain the fairness process.
Clearly, the learned judge had erred on this point.
[44] As such, we were constrained to rule that the learned judge had
misdirected herself on the basic principle as to pleading and on this ground
alone, this appeal by the defendant must be allowed. E

[45] For the sake of completeness, we would also delve with the issue
pertaining to burden of proof. We observe that the learned judge had fallen
into error in her finding that the plaintiff had established her case on the
balance of probabilities and allowed the plaintiff’s claim with damages in the
F
sum of RM659,603.60, when there was contradictory evidence as to the
ownership of the machineries, whether the machineries belong to the sole
proprietorship or to PW2. We have clear evidence from the plaintiff that on
one hand she has no knowledge of her pleaded case, and on the other hand
we also have the evidence of PW2 who claimed that the machineries belong
to him as he was the one who purchased the property from his own funds G
(see the police report made by PW2 on 16 October 2009 at p. 83 of core
bundle, PW2’s witness statement at Q & A 36 at p. 82 of the core bundle),
and his evidence throughout the proceedings that he was solely responsible
for the operation of the sole proprietorship and his wife played only a
minimal role in the business. H

[46] We have also attempted to show earlier in this judgment that the
learned judge had relied on the evidence of PW2 to establish the plaintiff’s
case without the plaintiff’s evidence having been adduced except for small
negligible part with regards to signing two or three agreements and cheques
at the instruction of PW2, which PW1 admitted other than affixing her I
signature on those documents of which she knew nothing of.
 The Carbon Company Sdn Bhd
[2017] 6 CLJ v. Ng Lee Hoon 209

A [47] In short from the testimony of PW1 and PW2, it is clearly established
that the plaintiff (PW1) was not running the sole proprietorship but it was
her husband, PW2 who was in full control.
[48] The plaintiff in her pleading failed to mention how PW2 is the actual
owner of the sole proprietorship. The testimony of PW1 clearly showed
B PW1 was not playing any role in the sole proprietorship at all. The sole
proprietorship was in full control of PW2.
[49] The law on the burden of proof is so settled. Pursuant to s. 101(1) of
the Evidence Act 1950, a party who desires the court to give judgment in its
favour as to the legal right or liability bears the burden to prove its case. The
C
burden of proof on that party is twofold, firstly the burden of establishing a
case and secondly the burden of introducing evidence. This burden lies on
the party throughout the case and the standard of proof is on the balance of
probabilities. Once that party has discharged its evidential burden of proof
then the burden would then shift to its adversary. If a party has failed to
D discharge its burden of proof on the standard required by the law, his
adversary does not bear the burden to adduce any evidence. In the case at
hand, the plaintiff, a sole proprietor has to discharge her burden of proof to
prove her case as well as to introduce evidence in support of her pleaded
case. It is not the defendant’s duty to fill up the gaps in the plaintiff’s case/
E or be accused of not establishing their defence (see Yeohata Machineries Sdn
Bhd & Anor v. Coil Master Sdn Bhd & Ors [2016] 2 CLJ 414; Selvaduray v.
Chinniah [1939] 1 LNS 107; [1939] MLJ 253 SC; s. 2 of the Evidence Act
1950; Abrath v. North Eastern Railway Co [1883] 11 QBD 440 (CA)).
[50] The question we need to ask ourselves is that, given these factual
F matrix can the plaintiff be said to have discharged the burden of proof placed
on her by the law, on the balance of probabilities. Our answer is in the
negative.
[51] We are of the view that the learned judge had misdirected herself on
the principle pertaining to burden of proof as discussed above. For the
G
foregoing reasons, we are constrained to hold that the learned judge failed to
judicially appreciate the evidence presented before her so as to render her
decision plainly wrong and thus merit curial intervention.
[52] On the whole we are of the view that the learned judge had misdirected
H herself on these two aspects as discussed above and the judgment of the
learned judge could not be sustained.
Conclusion
[53] Having examined the evidence both testimonial as well as
documentaries, we were satisfied that the learned judge had failed to properly
I
and sufficiently evaluate the evidence adduced before the court. This
warranted our intervention.
210 Current Law Journal [2017] 6 CLJ

[54] We were unanimous in our decision. For the reasons set out above, A
we allowed the defendant’s appeal against part of the learned judge’s decision
which allowed the plaintiff’s claim against the defendant, with damages
assessed in the sum of RM659,603.60 with cost and interests. The High
Court order in relation to the above is therefore set aside. We also dismissed
the plaintiff’s cross-appeal with costs. We ordered costs to the defendant in B
the sum of RM20,000, subject to allocator. We also ordered for the deposit
to be refunded to the appellant.