DALAM MAHKAMAH RAYUAN, MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. W-02(W)-1683-10/2015 ANTARA PASUPATHY A/L KANAGASABY. PERAYU DAN 1. MASTERSKILL (M) SDN BHD 2. SYARIKAT KEMACAHAYA SDN BHD. RESPONDEN-RESPONDEN DALAM MAHKAMAH RAYUAN, MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. W-02(W)-1946-11/2015 ANTARA PASUPATHY A/L KANAGASABY. PERAYU DAN 3. MASTERSKILL (M) SDN BHD 4. SYARIKAT KEMACAHAYA SDN BHD. RESPONDEN-RESPONDEN 1
(DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR) BAHAGIAN SIVIL GUAMAN NO: S6-22-96-2007 ANTARA MASTERSKILL (M) SDN BHD. PLAINTIF DAN 1. KEMACAHAYA DEVELOPMENT SDN BHD 2. K PASUPATHY 3. CHIN YAM MENG 4. LENG KOK ONN 5. SYARIKAT KEMACAHAYA SDN BHD...DEFENDAN-DEFENDAN (DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR) BAHAGIAN SIVIL GUAMAN NO: S6-22-589-2008 ANTARA PASUPATHY A/L KANAGASABY. PLAINTIF DAN 1. SYARIKAT KEMACAHAYA SDN BHD 2. KEMACAHAYA DEVELOPMENT SDN BHD 3. MASTERSKILL (M) SDN BHD...DEFENDAN-DEFENDAN 2
CORAM: DAVID WONG DAK WAH, HMR UMI KALTHUM BINTI ABDUL MAJID, HMR HASNAH BINTI MOHAMMED HASHIM, HMR JUDGMENT OF THE COURT Introduction: 1. Before us are two appeals arising from two High Court suits which were consolidated to be heard together. The two High Court suits are as follows: (i) S6-22-96-2007 Masterskill (M) Sdn Bhd v Kemacahaya Development Sdn Bhd, K Pasupathy, Chin Yam Meng, Leng Kok Onn and Syarikat Kemachaya Sdn Bhd (suit 96) (ii) S6-22-589-2008 Pasupathy A/L Kanagasaby v Syarikat Kemacahaya Sdn Bhd, Kemacahaya Development Sdn Bhd and Masterskill (M) Sdn Bhd (suit 589) 2. In suit 96, the learned Judge after a lengthy trial allowed the claims of the Plaintiff and dismissed the counterclaim of the 2 nd Defendant. 3
3. In suit 589, the learned Judge, in the same lengthy trial, dismissed the claims of the Plaintiff and allowed the counterclaim of the 3 rd Defendant. 4. The aforesaid Plaintiff in suit 96 and 3 rd Defendant in suit 589 are the same and one entity, namely Masterskill (M) Sdn Bhd and it is also the 1 st Respondent in the two appeals before us. 5. The aforesaid Plaintiff in suit 589 and the 2 nd Defendant in suit 96 are the same and one person, namely K Pasupathy and he is the Appellant in the two appeals before us. 6. The appeals before us are as follows: (i) W-02(W)-1683-10/2015 Pasupathy A/L Kanagasaby v Masterskill (M) Sdn Bhd and Syarikat Kemacahaya Sdn Bhd which relates to the learned Judge s dismissal of Pasupathy s claims of ownership of six units of shop lots situated in Taman Kemacahaya, Cheras, Selangor (six shop lots) (ii) W-02(W)-1946-11/2015 Pasupathy A/L Kanagasaby v Masterskill (M) Sdn Bhd and Syarikat Kemacahaya 4
Sdn Bhd which relates to the costs of RM200,000.00 awarded by the learned Judge 7. In this Judgment, we shall call the Appellant as Pasupathy and the Respondent as Masterskill, Kemacahaya Development Sdn Bhd as KDSB and Syarikat Kemachaya Sdn Bhd as SKSB for ease of reference. Background facts: 8. Masterskill via a Sale and Purchase Agreement dated 13.10.2006 (Masterskill 2006 agreement) purchased the six shop lots from SKSB as proprietor and KDSB as the developer with consideration of RM2million. Deposit sum of RM200,000 had been paid by Masterskill. 9. The 2006 agreement was terminated by KDSB via a letter dated 24.11.2006 on the allegation that Masterskill failed to pay the balance price of RM1.8 million. It was the contention of Masterskill that they did not pay because there was caveat lodged by Chin Yam Neng and Leng Kok Onn and the condition precedent for the completion of the 2006 agreement had not been complied with. Hence the aforesaid termination was wrongful. 5
10. That contention however was rebutted by KDSB on the ground that the caveat was removed and Masterskill was informed by a letter from Messrs Woon & Co dated 20.11.2006 that the condition precedent of the SPA has been satisfied and that there was no further claims by Chin Yam Neng and Leng Kok Onn. 11. In view of the termination of the Masterskill 2006 agreement, SKSB as proprietor and KDSB as the developer for the consideration of RM2.5 million sold the six shop lots to Pasupathy via a Sale and Purchase Agreement dated 2.12.2006 (Pasupathy 2006 agreement). 12. Premised on the Pasupathy 2006 agreement, Pasupathy s solicitors on 5.12.2006 wrote to Masterskill demanding vacant possession of the six shop lots. 13. It is the condition of the Pasupathy 2006 agreement that the purchase price of RM2.5million shall be paid to KDSB as follows: a) RM500,000 was to be paid on or before the execution of Pasupathy 2006 agreement and b) the balance of RM2million within 1 month from date of execution of the aforesaid agreement namely by 2.1.2007. 6
14. Pasupathy in making payment of the aforesaid RM2.5 million tendered 2 cheques for the sum of RM500,000 and another cheque for the sum of RM2million. 15. However, when the aforesaid 2 cheques were not honoured, SKSB and KDSB then wrote a letter on 11.4.2008 to Pasupathy and did terminate the Pasupathy 2006 agreement. 16. Premised on the termination of the Pasupathy 2006 agreement, KDSB sold the six shop lots again to Masterskill via a Sale and Purchase Agreement dated 8.5.2008 (Masterskill 2008 agreement) for a consideration of RM2.8million. 17. Pasupathy disputed the termination of his agreement which resulted in the two suits alluded earlier. Claims of parties: Suit 96 18. In suit 96 Masterskill claimed that they are the rightful owners of six shop lots. 7
19. Pasupathy as the 2 nd Defendant filed a counterclaim against Masterskill to vacate the six shop lots, details of which are as follows: 11. Defendan Kedua mengulangi dan menerima pakai perkara-perkara yang dinyatakan di dalam perengganperenggan 4 dan 7 Pembelaan dan menyatakan bahawa : - a) Defendan Kedua telah menyempurnakan bayaran penuh harga belian menurut perjanjian jual beli bertarikh 2.12.2006, Defendan Pertama kini adalah pemegang amanah sahaja ke atas Hartanah tersebut untuk Defendan Kedua sehingga masa hakmilik boleh disempurnakan; b) Plaintif masih menduduki dan memiliki Hartanah tersebut walaupun ia seharusnya untuk keluar dan memberi milikan kosong kepada Defendan Kedua pada atau sebelulm 24.2.2007 kerana segala kontrak dibuat antara Plaintiff dan Defendan Pertama tidak mengikat Defendan Kedua; c) Sehingga kini, Plaintif telah enggan atau gagal dan cuai untuk membenarkan Defendan 8
Kedua hak untuk keluar dan masuk ke atas Hartanah tersebut. 12. Dengan yang demikian, Defendan Kedua memohon terhadap Plaintif:- a) dengan serta merta meninggalkan dan menyerahkan milikan kosong hartanah-hartanah seperti berikut kepada Defendan Kedua :- i. Unit No. G-11, Tingkat Bawah, Jenis RKB; ii. Unit No. G-12, Tingkat Bawah, Jenis RKB; iii. Unit No. 1-11, Tingkat Bawah, Jenis RKB; iv. Unit No. 1-12, Tingkat Bawah, Jenis RKB; v. Unit No. 1-13, Tingkat Bawah, Jenis RKB; dan vi. Unit No. 1-14, Tingkat Bawah, Jenis RKB; semuanya dipegang di bawah H.S (M) 4900, Lot PT 5707, Mukim, Hulu Langat, Selangor dan mempunyai alamat pos di G-11, G12, 1-11, 1-12, 1-13 & 1-14 Jalan Kemacahaya 11, Taman Kemacahaya, Batu 9, Cheras, Selangor ( Hartanah tersebut ); b) Plaintif samada dengan sendiri atau melalui pengkhidmat atau agen mereka atau sebaliknya walau bagaimanapun jua ditahan daripada 9
menduduki, menceroboh dan /atau memasuki Hartanah tersebut; c) Ganti rugi am ditaksirkan; d) faedah ke atasnya; e) kos dibayar oleh Plaintif kepada Defendan Kedua; f) lain-lain relif Mahkamah yang Mulia ini anggap wajar dan sesuai diberikan. Suit 589: 20. In suit 589, Pasupathy claimed that he is in fact the rightful owner of the aforesaid six shop lots. Masterskill as the 3 rd Defendant in response counterclaimed that the caveat of Pasupathy on the six shop lots be removed, details are as follows: 15. Oleh yang demikian, Defendan Ketiga memohon perintahperintah seperti berikut:- a) Perintah mengarahkan Plaintif segera menarikbalik kaveat nombor perserahan 889/2007 dan/atau sebarang kaveat lain berkaitan Harta tersebut. 10
b) Gantirugi yang perlu ditaksirkan; c) faedah d) kos e) relif atau perintah lain dan lanjut yang didapati wajar oleh Mahkamah Yang Mulia ini. High Court proceeding: 21. The core issue before the learned Judge in both suits was basically who was the rightful owner of the six shop lots situated in Taman Kemacahaya, Cheras, Selangor. The claimants in essence as intimated above were Pasupathy and Masterskill. SKSB was the landowner and in these appeals, can be said the nominal Respondent. KDSB was the developer of the land but has since been wound up and not a party to these appeals. Both Chin Yam Meng, Leng Kok Onn in suit 96 prior to the trial had given up their claims to the six shop lots. 22. The learned Judge had found that the Masterskill as the rightful owner of the six shop lots premised solely on the agreement entered between the Masterskill and SKSB and KDSB dated 8.5.2008. 11
23. The learned Judge s decision was premised on the following crucial findings: (a) The Masterskill 2006 agreement had been lawfully terminated by KDSB as there was a failure to pay the balance purchase price by Masterskill. (b) The Pasupathy 2006 agreement was also validly terminated by KDSB as there was also a failure on the part of Pasupathy to honor the two cheques amounting to RM2.5 million. (c) The Masterskill 2008 agreement had been fully complied with the payment of the consideration of RM2.8 million to KDSB. (d) There was no correlation between the Masterskill 2006 agreement and Masterskill 2008 agreement in that one was not supplemental to the other. 24. Relying on the aforesaid findings, the learned Judge sustained Masterskill s claim in Suit 96 against Pasupathy and KDSB and SKSB and its counterclaim in Suit 589 against Pasupathy with costs and dismissed Pasupathy s claim in suit 589 against Masterskill and KDSB and SKSB and his counterclaim in Suit 96 with costs. 12
Our grounds of decision: Appeal W-02(W)-1683-10/2015 25. Learned counsel for the Appellant in our view premised this appeal on two main complaints: (a) The learned Judge s decision was premised on an unpleaded matter, more particularly, the Masterskill 2008 agreement. (b) The learned Judge in determining the claim of Pasupathy erred when he ignored the admissions by KDSB that Pasupathy had paid the purchase price. Masterskill s claim - Unpleaded matter: 26. It can hardly be disputed that Masterskill s claim was premised on the Masterskill 2006 agreement. Such was made clear by trial counsel in their proposed issues to be tried which can be summarised as follows: (a) Whether the Masterskill 2006 agreement was lawfully terminated by KDSB? (b) Whether the Pasupathy 2006 agreement was validly entered and lawfully terminated by KDSB? 13
27. That being the case, learned counsel for Pasupathy submitted that once the Masterskill 2006 agreement was found to be lawfully terminated by KDSB, the learned Judge could not and should not then find that Masterskill as the lawful and beneficial owners of the six shop lots premised on the Masterskill 2008 agreement as this was never the case of Masterskill. Learned counsel strongly submitted that this was a classic error of relying on an unpleaded cause of action to justify a conclusion. 28. The only reference to the Masterskill 2008 agreement was in the Rejoinder by Masterskill which reads: 10.1 the sale and purchase agreement dated 8.5.2008 is supplemental to the sale and purchase agreement dated 13.10.2006.. 12. The 3 rd Defendant (Masterskill) further denies that the sale and purchase agreement dated 13.10.2006 has been terminated or suspended by the sale and purchase agreement dated 8.5.2008. 14
We agree with learned counsel for Pasupathy that a party cannot launch a cause of action in a rejoinder. 29. In reply to position taken by Pasupathy, learned counsel for Masterskill admitted correctly that the learned Judge had found for Masterskill on an unpleaded cause of action. However, learned counsel urged us to utilize the so called all-embracing prayer of making an order as the Court deems fit (omnibus prayer) to save the day so to speak. 30. The law on pleadings is simply that parties are bound by them. That is trite (see Amanah Butler (M) Sdn Bhd v Chee Wah (1997) 2 CLJ 79). What that means is that parties in an adversarial system are duty bound, may it be through their legal advisers or otherwise, to frame their causes of action or defences as best they can to advance their causes. The Court is nothing but a neutral umpire in that it will only resolve disputes as framed by the parties themselves. Thus, the Court is not at liberty to fashion a cause of action or a defence in the name of doing justice to the case. Noble as that idea may be, such activism may put the Court in a position where the losing party may get a perception of bias in the judicial process. Such perception must not exist at all. In any event, under the present regime of procedural rules 15
of active case management prior to trial by the Court, the parties legal advisers have no excuse not to put all their cards on the table so to speak so that no one is caught by surprise as to what are the issues in dispute. The only exception to what we have said would be, in our view, that there appears quite succinctly ex facie illegality on the facts presented to the Court. That said, we now look at how our apex Courts have treated the omnibus prayer. 31. In Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v Balakrishnan Kaliannan (2013) 7 CLJ 413, the Federal Court was called upon to express its view what the omnibus prayer entails. It was the contention of the Defendant there that the High Court Judge was wrong to order the Defendant to pay to the Plaintiff the balance of the purchase price when the reliefs sought by the Plaintiff were for rescission of the agreement, for the deposit of RM250,000 to be forfeited, for rectification of the land register and for damages. 32. The Federal Court, through Hassan Lah FCJ, had this to say: [21] With respect I am unable to agree with the contention by the defendant that the proceedings tried in the High Court was not for the recovery of any debt or damages, as the 16
remedies sought by the plaintiff were for rescission of the agreement, for the deposit of RM250,000 to be forfeited, for rectification of the land register and for damages. It is to be noted that in prayer (G) of his statement of claim the plaintiff prayed for Lain-lain dan/atau apa-apa relif dan/atau perintah berlainan atau berlanjutan yang Mahkamah Yang Mulia ini fikirkan suai dan manfaat (Any other or further relief or order which this Honourable Court deems fit). This omnibus prayer must not be treated as a mere ornament to pleadings devoid of any meaning (see Lim Eng Kay v. Jaafar Mohamed Said [1982] CLJ 298; [1982] CLJ (Rep) 190; [1982] 2 MLJ 156. In Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771; [1996] 1 MLJ 261 Gopal Sri Ram JCA at pp. 814-815 (CLJ); p. 301 (MLJ) said: In his statement of claim, the appellant has also prayed for further or other relief as this Honourable court thinks fit. In Lim Eng Kay v. Jaafar bin Mohamed Said [1982] 2 MLJ 156 at p.160, a prayer in a statement of claim read Any other relief which this Honourable court deems fit to grant. Salleh Abas FJ (as he then was) said that this prayer must not be treated as a mere ornament to pleadings devoid of any meaning. I am of the view that the same may be said of the like prayer in the present case. This court should, in my judgment, award the appellant such relief as is appropriate in the circumstances of the case. 17
[22] In my view, when the learned trial judge ordered the defendant to pay the plaintiff the balance purchase price of RM750,000 she had in her mind this omnibus prayer in the plaintiff s statement of claim. She was entitled to do so on the facts of this case as the land had been transferred to the defendant. In Guna Sittampalam (supra) Gunn Chit Tuan J at p. 592 (CLJ); pp. 169 and 170 (MLJ) had this to say: The House of Lords has held that the words any debt or damages in s. 3(1) of the UK Law Reform (Miscellaneous Provisions) Act 1934 are very wide, so that they cover any sum of money which is recoverable by one party from another, either at common law or in equity or under a statute (such as the UK Law Reform (Frustrated Contracts) Act 1943 in that case: see BP Exploration Co (Libya) Ltd v. Hunt (No 2)14). As s. 11 of our Civil Law Act 1956 is in pari materia with the said s. 3(1) of the UK Law Reform (Miscellaneous Provisions) Act 1934, the words any debt or damages in s. 11 of our Civil Law Act 1956 should also be construed to cover any sum of money which is recoverable by one party from another. 33. Learned counsel for Masterskill naturally urged us to apply the omnibus prayer premised on the just quoted case. 18
34. Another recent case of the apex Court is Shirley Kathreyn Yap v Malcolm Thwaites [2016] 8 CLJ 765 where the Federal Court, through the judgment of Raus Sharif PCA, had dealt with the omnibus prayer. In dealing with that prayer, the learned President reemphasized what was stated by the Federal Court in RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188 where it stated that:... we would like to add that it is not the duty of the court to 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 otherwise the court would be accused of making laws rather than applying them to a given set of facts. 35. What happened in that case was that both the High Court and Court of Appeal had utilised the omnibus prayer to grant a relief to the Respondent there which was not pleaded. This is what the learned President said: 19
[54] This is what had actually happened in this case. The trial judge had unilaterally introduced additional questions and given reliefs on matters which were not specifically pleaded by the plaintiff. Unfortunately, the Court of Appeal agreed that the trial judge was entitled to grant reliefs, even though the reliefs were not pleaded, under the general prayer for Any other relief deemed suitable by the honourable court. The Court of Appeal was of the view that the said general prayer is not a prayer without any meaning and the trial judge was correct to make specific orders under the general prayer. [55] With respect we disagree. On the facts and circumstances of what was pleaded by the plaintiff in his amended statement of claim and in light of the plaintiff s statement given during trial that he was not seeking payment of specific sum but only an accounting of gross stake money, the Court of Appeal was clearly wrong in making such an interpretation on the general prayer of Any other relief deemed suitable by the honourable court. [56] Based on the above, it is our judgment that the Court of Appeal was in error in upholding the decision of the trial judge to make the defendant an accounting party and to order retrospective accounting from 1987 to 2003. This is especially so when the trial judge had found that there 20
was an unequivocal understanding between the parties that the plaintiff would not require the defendant to account to him for the monies received by her in respect of the sole proprietorship and partnership registered under her name, as well as the stake monies and the winning bets during his relationship with the defendant. [57] Thus, based on the facts of this case, we would answer the first question in the negative. A person who is not an accounting party in a de facto husband and wife relationship cannot be an accounting party to account retrospectively upon the termination of the said relationship. 36. Guided by what is said by the Federal Court, we now discuss whether in the circumstances of this case the omnibus prayer ought to be used as requested by learned counsel for Masterskill. In our view, when the learned Judge found that the Masterskill 2006 agreement to be lawfully terminated, the very foundation of Masterskill s cause of action had collapsed. The vague reference to the Masterskill 2008 agreement in the Rejoinder cannot, in our view, be treated by the Court that Masterskill had an alternative cause of action. Paragraphs 10.1 and 12 of the Rejoinder in any event cannot by any stretch of imagination be construed as an alternative cause of action. 21
37. Further, the case of Ritz Garden Hotel (Cameron Highlands) does not help Masterskill as the cause of the action there was the breach of the sale of the land agreement in failing to pay the balance purchase price by the Appellant there. It was argued that as the reliefs sought there were for rescission and forfeiture of deposit paid, the High Court could not order the Appellant to pay the balance of the purchase price which, in essence, was an action for recovery of sum owed. In other words, the High Court had wrongly premised its decision on a unpleaded cause of action. The Federal Court had rightly rejected that argument. As intimated earlier, the cause of action was a breach of the sale of land agreement and when the High Court found that the same ought not be rescinded and saw fit to order for payment of the RM750,000.00 being the balance purchase price, the utilization of the omnibus prayer is appropriate as the relief granted by the High Court related to breach of the sale of land agreement. Unlike in this case, when the cause of action being the Masterskill 2006 agreement had been found to be lawfully terminated and no appeal had been launched by Masterskill, the learned Judge, with respect, was not entitled to rely on something which was not pleaded at all. In our view, the case of 22
Shirley Kathreyn Yap (supra) is similar to this case and ought to be applied here. 38. Accordingly, we opine that the learned Judge was wrong in sustaining the claim of Masterskill on a unpleaded cause of action. Pasupathy s claim: 39. To recapitulate, the learned Judge had dismissed Pasupathy s claim for ownership of the six shop lots and his counterclaim for possession of the same. The learned Judge s reasoning for his decision was simply that Pasupathy had failed to prove that he had paid the consideration of RM2.5 million for the purchase of the six shop lots as required by the Pasupathy 2006 agreement. 40. Learned counsel for Pasupathy however submitted that the learned Judge erred when he ignored various admissions made by SKSB and KDSB as set out in paragraph 6 of the submission dated 20.10.2016. 41. So as to be fair to the learned Judge, we should look at what actually had transpired between the Bench and respective counsel prior to the 23
start of the trial. This can be seen in the notes of proceedings at pages 88-90, RRT III Jilid 1, Bahagian A & B, which read as follows: YA GNS YA GNS YA GNS YA GNS YA GNS YA GNS Ok, this was the tuntutan balas, I just (00:38:30 inaudible). Yes. 17, 18 and 19. We are asking for vacant possession, it s all there. You claim here that you have paid full payment, yes? Yes. That s, that will be our case. Not just deposit. So, you will be adducing evidence to this fact, yes? Yes. Let me get this hearing focused. So, as I just said just now, your, Gunaseelan, your main point here is Defendan Kedua telah membayar penuh baki belian hartanah tersebut kepada Defendan Pertama pada 21, (00:40:08 inaudible). Correct. Masterskill? Yes. Masterskill? Yes, that s your pleading? No, not to Masterskill 24
YA And then? GNS We paid it to. YA Defendan Pertama? You said here. GNS To Kemacahaya Development here, this one. Kemacahaya, the Defendan Pertama, 96. In 96. YA Oh, I see, Defendan Pertama? GNS Yes YA Ok, Kemacahaya, yes? That s your evidence? Your (00:40:33 inaudible)? GNS That s our case, that s what we will establish. YA Masterskill? Your evidence will be? STJ Payment has also been made to Kemacahaya. YA Wait, let me look at your (00:40:46 inaudible). GNS Which Kemacahaya? That s it. YA Yes. No, let me look at your pleading. Ok, I write here as far as Pasupathy in 96, 589, yes? 586-2008, is concerned, our case rests on payment, full payment have been made to Kemacahaya Development yes? Development Sdn. Bhd. On 21.1.2007. Ok, that is your case, yes? 25
GNS YA GNS YA GNS YA GNS YA GNS YA GNS YA GNS YA GNS Yes That is exactly your case? Yes Yes? You ll lead evidence? The thrust of my case. Yes, your thrust ok? You lead evidence on this, yes? Yes. Don t stray off. There s no need for me to. No need for me. Yes, correct. Because you must get the issue properly, you know? Yes. Then we can shorten the trial. Yes. Rather than going somewhere on. On a merry go round, not necessary. 42. It is our considered view that whatever was pleaded had been overtaken by what the counsel at trial had informed the Court what the crux of the Pasupathy s case was and that was simply he had paid the full consideration of RM2.5 million and that would be proved at trial. In our view, from what was produced above from the notes of proceedings, it is crystal clear what the trial counsel had informed the 26
Court what they wanted to do. To now recant, with respect, is not only unfair to the Court, it is also to the other party who would have no doubt prepared for the trial premised on what had been said by the trial counsel. Credit must be given to the learned Judge in the manner in which he had case managed the case and had counsel articulate the issues at hand. Not to give force to what had happened would defeat the very purpose of case management. 43. Further we say that if those admissions were clear as learned counsel for Pasupathy had made it out to be, they should have applied under the Rules of Court 2012 Order 27(2) and (3) which reads as follows: 2. Notice to admit facts (O. 27 r. 2) (1) A party to a cause or matter may not later than fourteen days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit, for the purpose of that cause or matter only, the facts specified in the notice. (2) An admission made in compliance with a notice under this rule shall not be used against the party by whom it was made in any cause or matter other than the cause or matter for the purpose of which it was made or in favour of any 27
person other than the person by whom the notice was given, and the Court may at any time allow a party to amend or withdraw an admission so made by him on such terms as it thinks just. (3) A notice to admit facts under paragraph (1) shall be in Form 48 and an admission of facts under paragraph (2) in Form 49. 3. Judgment on admission of facts (O. 27 r. 3) (1) Where admissions of fact are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may give such judgment, or make such order, on the application as it thinks just. (2) An application for a judgment or order under this rule shall be made by a notice of application. 44. The aforesaid rule is quite clear as to what the remedies are. 45. As to the reason why Pasupathy did not avail of Order 27 Rules of Court 2012, this can be seen by what the learned Judge had said of 28
those admissions which were alluded to in the submission of the trial counsel in the High Court: 99. Another point raised in his submission is with regards to the letter dated 12-12-2006, where according to him, KDSB expressly confirmed that it had terminated the sale of the six (6) units to Masterskill and had subsequently sold the same to a third party and copied this letter to Pasupathy. In the said letter KDSB stated as follows...sold the 6 units to a third party which meant that KDSB no longer had any beneficial interest in the 6 units (the Property). 100. On 3-1-2007 Messrs Woon & Co, solicitors for SKSB/KDSB wrote a letter to Messrs Lee Hishamuddin, then solicitors for Masterskill as follows : Our client rejects the conditional final payment of the sum of RM1,120,000 as the six units no longer belong to our client but have been sold to Mr. Pasupathy. As such any dealings pertaining to the six units are to be referred to him. (@ pg 188-189 of Bundle B1). 101. Therefore it is his submission that the above is an admission of fact made by SKSB/KDSB through their Solicitors. Since solicitors are the agents of their client, this admission is binding upon SKSB/KDSB. 29
102. Further, Pasupathy contended that with this admission made by the solicitors for SKSB/KDSB it is clear that SKSB/KDSB had divested their proprietary interests and dominion over the said property to Pasupathy. Thus, according to him Masterskill had actual notice of this divestment not only from Pasupathy s solicitors (letter dated 05-12-2006) but also from the solicitors for SKSB/KDSB. 103. I have considered Pasupathy s submission on the above facts, however my view is, the letter dated 3.1.2007 came one month later after Pasupathy claim to have effected full payment of the purchase price (which was RM2.5 million) to KDSB in accordance with the terms and conditions of the SPA dated 2-12-2006 (Pasupathy s pleaded case). At the material time Pasupathy was still within the time under the SPA to honour the RM 2.5 million. 104. The said letter says that the six units no longer belong to our client but have been sold to Mr. Pasupathy. My view is, Messrs Woon & Co, solicitors for SKSB/KDSB at the material date were not in a position to know whether Pasupathy will honour the 2 cheques presented for payment to complete the SPA. Similarly on 3-1-2007 (at pg-187 of Bundle B1) when KDSB wrote a letter to Pasupathy which was signed by its director, one of Leong 30
Choong Wah (DW2) thanking Pasupathy for the cheque for the purchase price and requesting that Masterskill be allowed to continue occupation till 24-2-2007, by the same view, it was done with all intent and purpose that the cheques for the purchase price would be honoured by Pasupathy (see WSDW-2 Q & A 17). After all it is DW2 evidence that Pasupathy at the material time was his family friend and the full trust was put on him. However it is proven later that Pasupathy did not pay any money to honour the 2 cheques otherwise there is no reason for Messrs Woon & Co s to issue letter dated 11-4-2008 to terminate the SPA dated 2-12-2006 on the instruction of SKSB/KDSB. 105. Therefore it is my considered opinion that the letter dated 3.1.2007 above is still subject to completion of the terms and conditions under the SPA before it can render the 6 unit Properties being finally sold or divested their proprietory interests and dominion over the said property to Pasupathy. The letter, thus not binding upon SKSB/KDSB. 46. We deal now with the alleged payment of RM2.5 million by Pasupathy. On this aspect of the case, it would not be wrong for us to say that learned counsel for Pasupathy did not labour too much on it in his 31
submission as the learned Judge had in detail dealt with the evidence in its totality and judiciously and came, in our view, to a correct decision. Further in our view, proof of payments when made by cheques is a task which can be easily fulfilled by showing the 2 cheques had been drawn upon by drawees of the same. It is undisputed that the 2 cheques were not honoured. That being the case, Pasupathy s case simply and plainly cannot be sustained as rightly held by the learned Judge. Respective counterclaims: Pasupathy: 47. To recapitulate, Pasupathy s counterclaim is for an eviction order against Masterskill who is in occupation of the six shop lots. As we find that Pasupathy had failed to prove his ownership of the six shop lots, he is thus not entitled to ask for such relief. Masterskill: 48. Masterskill s counterclaim is for removal of the caveats lodged by Pasupathy on the six shop lots. In view of our finding that Masterskill is not entitled to the orders made by the learned Judge as they had not 32
been properly pleaded, Masterskill does not have the standing to come to Court to seek such removal. Be that as it may and in view of our finding that Pasupathy is also not the owner of the six shop lots and hence no right to lodge the caveats, we find that it is appropriate in the circumstances that the caveats on the six shop lots be removed. Conclusion: Appeal W-02(W)-1683-10/2015 49. This is a case where Pasupathy was not able to provide that basic evidence that the payment via the two cheques had been made to KDSB and SKSB for the purchase of the six shop lots. 50. As for Masterskill, it is simply a case where they had failed to plead their cause of action properly and the learned Judge, with respect, granted a relief to Masterskill premised on a matter not pleaded at all. This had contravened the trite principle of law of pleadings which, in simple English, is one cannot get what he or she does not ask for. 51. In view of the reasons given above, we allow in part of Pasupathy s appeal in the following manner: 33
1. Pasupathy s appeal in respect Suit 96 in which the learned Judge sustained Masterskill s claim is allowed. 2. Pasupathy s appeal in suit 589 in which the learned Judge rejected his claim of ownership of the 6 shop lots is dismissed. 3. Pasupathy s appeal in suit 96 in which the learned Judge rejected his counterclaim is also dismissed. 4. Pasupathy s appeal in suit 589 in which the learned Judge sustained Masterskill s counterclaim to set aside the caveat lodged by Pasupathy is also dismissed. Appeal W-02(W)-1946-11/2015: 52. To recapitulate, this is an appeal against the award of costs of RM200,000.00 to Masterskill by the learned Judge. In view of our conclusions above, we allow the appeal and set aside the order of costs because, in the circumstances, it is only fair that the costs at trial should be borne equally by the respective litigants. 34
53. As for costs for the two appeals before us, we also make no order as to costs. Deposits are refunded. Dated : 2 February 2017 (DAVID WONG DAK WAH) Judge Court of Appeal Malaysia For the Appellant : Datuk Seri Gopal Sri Ram With him T. Gunaseelan, M. Rajkumar & David Yii Nora Hayati & Assoc. For the1 st Respondent : Su Tiang Joo With him R. Jayasingam, KL Pang ZT Chok & Melissa Lim Paul, Amy Chong & Associates For the 2 nd Respondent : Paul Krishnaraja Selladurai With him Amy Chong Paul, Amy Chong & Associates Notice: This copy of the Court's Reasons for Judgment is subject to formal revision. 35